Communicated on 13 July 2017
FIRST SECTION
Application no. 24382/15
Firuze ASGAROVA and Albina VESELOVA
against Armenia
lodged on 15 May 2015
STATEMENT OF FACTS
The first applicant, Ms Firuze Asgarova, is an Azerbaijani national born in 1967 and living in Chinarly settlement, District of Shamkir, Azerbaijan. The second applicant, Ms Albina Veselova, is a Russian national born in 1982 and living in Garagaji village, District of Tartar, Azerbaijan. They are represented before the Court by Mr. A. Baghirov, a lawyer practicing in Baku.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants’ husbands, Mr Dilgam Asgarov and Mr Shahbaz Guliyev, born in 1960 and 1968, respectively, are citizens of Azerbaijan originally from the Kalbajar region, which since 1993 is under the effective control of the Republic of Armenia as part of the territories surrounding the unrecognised “Nagorno-Karabakh Republic” (“NKR”) (see Chiragov and Others v. Armenia [GC], no. 13216/05, § 186, ECHR 2015).
Mr Asgarov and Mr Guliyev travelled to Kalbajar in July 2014, allegedly to visit their homeland and pay respects at the graves of their relatives. On 11 July 2014, possibly in Shaplar village, they were arrested by Armenian military forces whereas a third person accompanying them, Mr Hasan Hasanov, was killed while “resisting arrest”. Armenian media circulated a video showing people in masks wringing Mr Asgarov’s arms, pointing a gun on him, and dragging him into an office shortly after his arrest. The two men were kept in detention for four days without any proceedings to determine the lawfulness of their detention and without their being informed of the charges against them.
On 15 July 2014 the “NKR” Prosecutor-General’s Office opened a criminal case against Mr Asgarov and Mr Guliyev for “subversive acts”. The office expressed that “two Azerbaijani diversionists, [Mr Guilyev] and [Mr Asgarov], have been detained and the weapons found on them have been seized”. On 18 July the same office stated that a 17-year-old “NKR” resident, who had gone missing on 8 July, had been kidnapped by “the members of the Azerbaijani commando group” and that his dead body had been found with gunshot wounds on 15 July.
On an unknown date Mr Asgarov and Mr Guliyev were charged with illegal border crossing, espionage, arms possession, kidnapping and murder. It appears that defence counsel were appointed for them on 27 September 2014 and that their trial began one month later, on 27 October, at the First Instance Court of General Jurisdiction of “NKR” in Stepanakert.
The applicants have submitted video footage which purportedly shows that the two men were brought into the court blindfolded, that masked special forces personnel were present at the trial, that the defence lawyers neither actively participated in the hearing nor advised the defendants and that only the judge’s questions were translated to the defendants, while the statements of the judge and parties were left without translation. Further, the translations that were provided were into Russian, which the defendants cannot easily understand.
On 29 December 2014 Mr Asgarov was convicted of illegal border crossing, espionage, arms possession, kidnapping and murder. He was sentenced to life imprisonment. By the same judgment, Mr Guliyev was convicted of illegal border crossing, espionage, arms possession and kidnapping. He was sentenced to 22 years’ imprisonment. The “NKR” Court of Appeal upheld the convictions on 10 March 2015. On 27 May 2015 the “NKR” Supreme Court declined to hear an appeal.
According to Armenian news reports, Armenian and “NKR” officials made several statements in the media after the arrests and during and after the trial claiming that Mr. Asgarov and Mr. Guliyev were members of a sabotage team and were guilty. On 17 July 2014 the Minister of Defense of the Republic of Armenia, Mr Seyran Ohanyan, stated: “The Azerbaijanis will attempt to give a ‘prisoner of war’ status to the sabotage team members, but the NKR leadership’s and our view is that they are hired criminals, and they will be punished by the NKR laws. They have unlawfully infiltrated [into NKR], [and] committed wrongful acts by killing two people and wounding a military serviceman’s wife.” On 27 October 2014 the “NKR” Judicial Department reported that “the trial of the two members of an Azerbaijani commando group ... began in Nagorno-Karabakh capital Stepanakert on Monday”. In another statement on 1 November 2014 Mr Ohanyan claimed that the ongoing trial was in line with international law and said that “the saboteurs must be punished without fail”. On 2 November 2014 Mr Asgarov’s defence counsel allegedly told the press that there were discrepancies in Mr Asgarov’s testimony and that the forensic examination proved that the 17-year-old boy had been shot from Mr Asgarov’s machine gun.
The applicants claim that Mr Asgarov and Mr Guliyev are kept in strict isolation without contact with other inmates or news from the outside. The men are not allowed to send or receive mail, except during visits by the International Committee of the Red Cross (ICRC), or to receive visits from their families or contact independent lawyers. The applicants also claim that the men are subject to harsh prison conditions, are experiencing declining health and great weight loss and are not allowed to receive food or medicine by mail that would improve their conditions.
Mr Asgarov’s son and brother were invited to the ICRC offices in Barda and Baku, Azerbaijan, on 10 and 11 August 2016, respectively, and were given information on Mr Asgarov’s health condition and shown recent photos of him. They wrote two testimonies, in which they claimed that Mr Asgarov’s health had deteriorated severely during the preceding two years. The son stated that his father had lost his teeth, become grey-haired and had his eyesight impaired.
COMPLAINTS
1. The applicants complain under Article 3 of the Convention that Mr Asgarov, shortly after his arrest, was filmed having a gun pointed at him and his arm wrung as he was dragged into an office by masked persons. Furthermore, Mr Asgarov and Mr Guliyev were brought into the trial courtroom blindfolded, and there were military and masked special forces personnel present during the trial, aggravating their psychological state and sense of degradation. Moreover, the two men are presently kept in strict isolation in prison, without contact with other inmates and without mail, news and – except for ICRC visits – contact with the outside world. The applicants claim that a courtroom video shows that they have lost weight, have bags under their eyes, and have trouble moving on their own and speaking. In this respect, reference is also made to the statements of Mr Asgarov’s son and brother after having seen photos of Mr Asgarov at the ICRC offices.
2. The applicants claim under Article 5 §§ 1-4 of the Convention that Mr Asgarov and Mr Guliyev were unlawfully detained and convicted by a court which lacked competence. Allegedly, the two men were not told of the reasons for their arrest, informed of the charges against them, or brought before a judge for four days, which the applicants argue is not “prompt” within the meaning of Article 5. Additionally, they were not able to seek a remedy to challenge the lawfulness of their detention. Further, the applicants claim that Mr Asgarov and Mr Guliyev were detained within the internationally recognised borders of the Republic of Azerbaijan by the authorities of another State, Armenia. As such, their right to security under Article 5 § 1 was affected. (They refer, in the latter respect, to Öcalan v. Turkey [GC], no. 46221/99, § 85, ECHR 2005-IV.)
3. Moreover, the courts examining the criminal charges against Mr Asgarov and Mr Guliyev were allegedly representing an illegal entity – the “NKR” – and had not been established in accordance with the laws of the Republic of Azerbaijan, to which the territory in question belongs. The courts therefore lacked competence and failed to meet the requirements of independence and impartiality under Article 6 § 1 of the Convention. Also one of the criminal charges – “illegal border crossing” – was such that an “NKR” court could not be impartial.
The applicants further challenge the impartiality of the First Instance Court of General Jurisdiction of “NKR” because, inter alia, exculpatory evidence was ignored by the court, the men “appeared to be permitted to speak to their lawyers only in the presence of armed officers”, and armed police and soldiers were present during the trial.
4. The applicants complain under Article 6 § 2 that Mr Asgarov and Mr Guliyev were not presumed innocent, as Armenian officials made public statements in which they were called “criminals” before and during the trial.
5. The applicants further claim that Mr Asgarov and Mr Guliyev were not informed of the charges against them in a language they understood, were not provided with “practical and effective” legal assistance, and were not given adequate assistance of interpretation, as required by Article 6 § 3. Video footage of the trial allegedly shows that counsels for the defence neither actively participated in the hearing nor advised their clients. Footage also shows that the trial was conducted in Armenian, which the two men do not understand, while the judge’s questions to the defendants were translated into Russian, which they have some difficulty understanding.
6. Under Article 8 of the Convention, the applicants assert that Mr Asgarov and Mr Guliyev were unlawfully arrested and detained and therefore denied their right to return to their homeland and visit the graves of their relatives.
7. The applicants complain that the right to freedom of movement of Mr Asgarov and Mr Guliyev was infringed without legitimate aims by the regime of Nagorno-Karabakh. Because they travelled within territory that is internationally recognised as belonging to Azerbaijan, the charges of “illegal border crossing” brought against them violated their rights under Article 2 of Protocol No. 4 of the Convention.
8. Furthermore, in breach of Article 13 of the Convention, Mr Asgarov and Mr Guliyev did not have an effective remedy against their arbitrary detention and the other alleged violations of their rights. In this respect, it is argued that the “NKR” is not an independent state, but a subordinate local administration for whose acts Armenia is responsible, and that there are no effective remedies for Azerbaijanis in the “NKR” or in Armenia.
9. The applicants finally allege that Mr Asgarov and Mr Guliyev were subjected to discriminatory treatment because of their ethnicity and national origin, in violation of Article 14 of the Convention in conjunction with all the Articles invoked in relation to the above complaints.
QUESTIONS TO THE PARTIES
1. Do the facts of the case demonstrate a jurisdictional link between the Republic of Armenia and Mr Asgarov and Mr Guliyev for the purposes of Article 1 of the Convention by virtue of Armenia, through its agents, exercising authority and control over the individuals in question (cf. Al‑Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 133‑137 and 149-150, ECHR 2011)?
2. Have Mr Asgarov and Mr Guliyev been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention at any time during their arrest, detention, trial or imprisonment?
3. Were Mr Asgarov and Mr Guliyev informed promptly, in a language which they understood, of the reasons for their arrest and the charges against them, as required by Article 5 § 2 of the Convention? If so, on what date did this occur?
4. Were Mr Asgarov and Mr Guliyev brought before a judge or other officer authorised by law to exercise judicial power, as required by Article 5 § 3 of the Convention? If so, on what date did this occur?
5. Did Mr Asgarov and Mr Guliyev have at their disposal an effective procedure by which they could challenge the lawfulness of their detention, as required by Article 5 § 4 of the Convention?
6. Did the courts deciding in the case have jurisdiction to try the criminal charges brought against Mr Asgarov and Mr Guliyev? If so, on what basis did they have such jurisdiction?
7. Did Mr Asgarov and Mr Guliyev have a fair and public hearing by an independent and impartial tribunal established by law, as required by Article 6 § 1 of the Convention?
8. Having regard to the various statements made by officials concerning the case and the charges against Mr Asgarov and Mr Guliyev, was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case?
9. Were Mr Asgarov and Mr Guliyev informed promptly, in a language which they understood and in sufficient detail, of the nature and cause of the accusations against them, as required by Article 6 § 3 (a) of the Convention? If so, on what date did this occur?
10. Were Mr Asgarov and Mr Guliyev afforded adequate time and facilities to prepare their defence, as required by Article 6 § 3 (b) of the Convention?
11. Did Mr Asgarov and Mr Guliyev have “practical and effective” legal assistance under Article 6 § 3 (c) of the Convention, as elaborated in the Court’s case-law (see, for example, Artico v. Italy, 13 May 1980, § 33, Series A no. 37)?
12. Were Mr Asgarov and Mr Guliyev afforded the free assistance of an interpreter and provided with translation or interpretation of all documents or statements in the proceedings which were necessary for them to understand in order to have the benefit of a fair trial, as required under Article 6 § 3 (e) of the Convention and elaborated in the Court’s case-law (see, for example, Lagerblom v. Sweden, no. 26891/95, § 61, 14 January 2003)?
13. Has there been an interference with and a violation of the right of Mr Asgarov and Mr Guliyev to respect for their private and family life, within the meaning of Article 8 of the Convention, by means of the authorities’ preventing them from visiting their alleged ancestral homeland and the graves of their relatives?
14. Does the conviction of Mr Asgarov and Mr Guliyev for illegal border crossing violate their right to liberty of movement under Article 2 of Protocol No. 4, having regard to the fact that they crossed a border which is not internationally recognised?
15. Did the act of illegal border crossing, in the above-mentioned circumstances, constitute a criminal offence under national or international law, as envisaged by Article 7 of the Convention?
16. Did Mr Asgarov and Mr Guliyev have at their disposal an effective domestic remedy for their Convention complaints, as required by Article 13 of the Convention?
17. Have Mr Asgarov and Mr Guliyev suffered discrimination in the enjoyment of their Convention rights on the grounds of their ethnicity and national origin, contrary to Article 14 of the Convention read in conjunction with the Articles invoked in relation to the above complaints?
18. The respondent Government are requested to provide all relevant information and documents concerning the case, in the original and in English translations, including any decisions on the arrest and detention of Mr Asgarov and Mr Guliyev, the decisions on the appointment of defence counsel, the minutes of the court hearings, the judgments and decisions of the courts convicting the two men and the text of the legal provisions applied in support of any decision or judgment issued during the proceedings.
19. The respondent Government are further requested to provide recent information on the health status of Mr Asgarov and Mr Guliyev, complemented by records of medical examinations, in the original and in English translations.
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