FIFTH SECTION
CASE OF PETROSYAN v. AZERBAIJAN
(Application no. 32427/16)
JUDGMENT
Art 2 (substantive and procedural) • Life • No convincing account of circumstances surrounding death of Armenian national while in detention • Lack of effective investigation, including whether ethnic hatred played a role
Art 3 (substantive) • Inhuman and degrading treatment • Sufficient proof of applicant’s son being subjected to severe physical violence in detention prior to his death • Moral suffering of applicant reaching a dimension and character distinct from emotional distress inevitably caused to relatives, given delay and condition of repatriated body, in addition to the lack of effective investigation
STRASBOURG
4 November 2021
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Petrosyan v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Síofra O’Leary, President,
Mārtiņš Mits,
Ganna Yudkivska,
Lətif Hüseynov,
Jovan Ilievski,
Lado Chanturia,
Arnfinn Bårdsen, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Artush Petrosyan (“the applicant”), on 25 April 2016;
the decision to give notice to the Azerbaijani Government (“the Government”) of the application;
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments submitted by the Armenian Government, who had exercised their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention;
Having deliberated in private on 28 September 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns complaints under Articles 2, 3, 5, 8, 13 and 14 in connection with the death of the applicant’s son while in captivity.
THE FACTS
THE Parties2. The applicant was born in 1957 and lives in Chinari in the Tavush region of Armenia. He was represented by Ms K. Gevorkyan, Mr A. Zeynalyan and Ms L. Alaverdyan, lawyers practising in Yerevan, and Mr V. Grigoryan, a lawyer practicing in London.
3. The Azerbaijani Government were represented by their Agent, Mr Ç. Əsgərov.
UNDISPUTED facts4. The applicant’s son, Mr Karen Petrosyan, was born in 1981 and was living with the applicant and other members of the family in Chinari, close to the border to Azerbaijan. On 7 August 2014 he crossed the border into Azerbaijan and was captured by the Azerbaijani armed forces.
5. On the same day two video recordings of Mr Petrosyan were broadcast by Azerbaijani media. In the first one, he was seen being offered tea by a local resident of the village of Aghbulag and having a conversation with some of the other villagers. In the second recording, he was being interrogated, while standing on his knees with his hands cuffed and being restrained by soldiers. The interrogating army general accused him of being a soldier, having killed civilians, incited hatred and caused aggression. Being shown photographs of him in military uniform, allegedly found on his mobile phone together with phone numbers of his military commanders, he stated that he was a military serviceman.
6. On 8 August 2014 the Azerbaijani Ministry of Defence announced in a news report that Mr Petrosyan had died unexpectedly, according to preliminary information due to “acute cardio-pulmonary and myocardial failure”. Experts at the Ganja regional division of the Centre for Forensic Examination and Pathological Anatomy of the Ministry of Defence had reportedly determined the cause of his death. The news report further stated that Mr Petrosyan had been a member of an Armenian reconnaissance and sabotage group. While four other members of the group had allegedly been killed when they had crossed the Azerbaijani-Armenian border in Azerbaijan’s Tovuz region, Mr Petrosyan had been detained as a result of the military action.
7. Efforts were made by Armenia and the International Committee of the Red Cross (ICRC) to have Mr Petrosyan’s body returned. Representatives of the US State Department and the French Ministry for Foreign Affairs expressed their concern about the failure to return the body and give information on the circumstances surrounding the death.
8. According to Azerbaijani media reports on 22 August 2014, the Azerbaijani Ministry for Foreign Affairs reacted to the international criticism by claiming, inter alia, that Mr Petrosyan’s death had been “transparently investigated by medical experts and the ICRC [had been] immediately informed”.
9. On 11 September 2014 the applicant lodged an application with the Court (no. 61737/14). He complained under Articles 3 and 8 of the Convention that his son had died in Azerbaijani detention on 8 August 2014 after having unintentionally crossed the border and having been apprehended by the Azerbaijani military. As the son’s body had not yet been repatriated, the applicant further requested that Rule 39 be applied and the Government of Azerbaijan be ordered to take measures to prevent damage to the corpse, to return it immediately and to explain the delay in returning it. On 30 September 2014 the Court (the Acting President of the Section) decided not to indicate interim measures to the respondent Government, but requested them, under Rule 54 § 2 (a) of the Rules of Court, to explain the Azerbaijani authorities’ official position in connection with the repatriation of the body of Mr Petrosyan and to provide information on the reasons for the delay in returning the body to his relatives.
10. By a letter of 19 September 2014 the Azerbaijani Government referred to the information contained in the news report of 8 August 2014 (see paragraph 6 above) and the photographs and phone numbers allegedly found on Mr Petrosyan’s mobile phone (paragraph 5). They further stated that the Azerbaijani Ministry of Defence had offered Armenia an exchange, with the assistance of the ICRC, of five Armenian captives, all members of the same family, and the body of Mr Petrosyan for two Azerbaijanis in Armenian detention and the body of one Azerbaijani killed by the Armenian armed forces (all captured and killed, respectively, in July 2014). According to the Azerbaijani Government, the Armenian Ministry of Defence had replied through the ICRC that they would return only the body of the killed Azerbaijani in exchange for the five Armenian captives and Mr Petrosyan’s body. The Azerbaijani side had rejected this, insisting on an “all-for-all” approach.
11. On 10 October 2014 Mr Petrosyan’s body was repatriated in a severely decomposed state.
12. On 17 November 2015 the Court struck out the applicant’s application lodged on 11 September 2014 (see paragraph 9 above). As the applicant had not responded to a letter from the Court and otherwise been inactive with regard to following up the application, he was regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention.
facts AS submitted by the applicant13. In the morning of 7 August 2014, while collecting firewood in a nearby grazing area, the applicant’s son lost his bearings, crossed the border and ended up in the village of Aghbulag in Azerbaijan. The first video recording broadcast by Azerbaijani media on the same day (see paragraph 5 above) showed him in civilian clothing, bearing no arms. Later the Azerbaijani military came to the village, arrested him and took him away. The second recording from the same day allegedly showed that Mr Petrosyan, now dressed in military gear, had wounds on his face and was forced to state that he was a military serviceman.
14. On 13 August 2014 the Department of Criminal Investigation in the Tavush province of Armenia opened a criminal investigation under section 2, points 3, 5, 7 and 13, of Article 104 of the Criminal Code of Armenia concerning murder combined with kidnapping or hostage-taking, committed with particular cruelty and with motives of national, racial or religious hate or fanaticism.
15. In response to the claim by the Azerbaijani Ministry for Foreign Affairs on 22 August 2014 that an investigation of Mr Petrosyan’s death had been performed (see paragraph 8 above), the applicant stated that no results of such investigation had been made public or communicated to him.
16. On 9 December 2014 the results of a forensic medical examination, commenced on 11 October and completed on 3 December at the Republican Scientific-Practical Centre of Forensic Medicine of the Armenian Ministry of Health in Yerevan, were presented in an expert opinion by three forensic medical experts. The following conclusions were drawn:
“The following bodily injuries were observed as a result of the post-mortem examination of Karen Petrosyan’s corpse: large zones of contusions on the chest/thorax, lumbar region, both carpa/wrists, soft tissues and muscles of the lower limbs; fractures of 2nd and 6th ribs in a vertical line from the left nipple; and fractures of 1st, 4th, 5th, 6th and 10th ribs in a vertical line from the front of the armpit. All injuries were inflicted while he was still alive by hard and blunt objects of small surface. It was impossible to detect with certainty the cause of Karen Petrosyan’s death, as the cadaver was presented for examination in a state of severe suppurative alterations, when the soft tissues were almost not preserved and the internal organs were missing, which constitutes a ground for concluding that K. Petrosyan might have suffered numerous bodily traumas when alive, which in combination with those detected as a result of the current re-examination, could have caused his death, and which were consistent with life-threatening serious bodily injuries and could have directly caused his death, in particular, such injuries could be considered closed, blunt cranial trauma with severe brain pathology – skull fracture, closed, blunt injuries to the cervical, thoracic, abdominal regions, cut, cut-pierced wounds, and firearm injuries with damage to vessels, nerves, which could cause severe haemorrhagic bleeding and traumatic shock. So far as the bodily injuries detected on Karen Petrosyan’s corpse during post-mortem examination are concerned, all injuries had characteristics of being inflicted within a short period while he was still alive. Hence, it is impossible to assess the degree of harm caused by each of them taken separately, especially as each of them, taken separately, had eventually been a source of traumatic shock, and in particular, the multiple trauma to the ribs usually causing severe pleuropulmonary shock, which according to the degree of dangerousness for health, is classified as bodily injury causing serious health damage. Hence, all bodily injuries detected during the re-examination of K. Petrosyan’s corpse taken separately, as well as in combination, could be qualified as life-threatening serious bodily injuries that could have directly caused death. The commission finds it expedient to note that the state of putrefaction of K. Petrosyan’s body, in which state it was transferred to the Republican Scientific-Practical Centre of Forensic Medicine of the Republic of Armenia Ministry of Health, is untypical of cadavers interred for two months under natural conditions. Rather, this condition is more typical of situations where the cadaver has been subjected to artificial conditions, that lead to it being impossible to detect with certainty the cause of death as well as to collect evidence on other possible factors of external intervention, such as poisoning, electric shock, mechanical choking, rape (oral or anal), presence of semen in the latter case, etc. In this regard, it must be noted that more precise clarification of the results of the second post-mortem examination of Karen Petrosyan’s exhumed corpse would be possible if the expert opinion of the initial post-mortem examination and photos of the corpse were available; the latter are usually a compulsory component of post-mortem examinations under such circumstances as in the current case.
The forensic chemical examination conducted during the current post-mortem examination revealed that alcohol, drugs of the opioid alkaloid series, psychotropic substances, gasoline as well as diesel fuel were not detected in the specimens taken from the internal organs and muscles. In this regard, the commission conducting the examination notes that the forensic chemical examination of the second autopsy may not have detected residues of alcohol in the body due to advanced putrefaction. ...”
17. Furthermore, on 19 March 2015 a forensic psychological examination of Mr Petrosyan’s behaviour and state of mind during the events was made on the basis of video recordings of his encounter with residents of Aghbulag village as well as his subsequent detention and questioning.
18. On 9 April 2015 the forensic experts who had conducted the Armenian forensic examination (see paragraph 16 above) gave a supplementary opinion based on the case materials, answering questions put to them by the applicant’s representatives on 23 February. The supplementary opinion contained, inter alia, the following observations:
“According to the results of the post-mortem examination of Karen Petrosyan’s corpse, a separation of spinal vertebrae was observed only in the cervical region, which can be interpreted to indicate that putrefaction was particularly manifest in the neck area. ...
... In this case, we have almost complete skeletisation of the skull and neck area of K. Petrosyan’s corpse. Besides, the cadaver was covered with soil, which indicates that it was placed in soil before being passed over to the Republic of Armenia. The above stated give reason to conclude that K. Petrosyan’s corpse was in a state of rapid putrefaction – decomposition – and, in particular, that this was disproportionately taking place in different parts of the corpse. Naturally, if the corpse had been buried in a coffin deep in the soil, with his clothing on, or if it had been embalmed, decomposition would have been slow and not as intense as it is in this case. ... Hence, it must be concluded that Karen Petrosyan’s corpse was in an environment where it was exposed to oxygen immediately after his death; it was either laid unburied on the ground or in a shallow grave without any coffin or clothing covering his body or in a partially buried state with some parts of his body protruding to the surface of the soil.
...
During the forensic post-mortem examination of K. Petrosyan’s corpse, his hyoid bone was not found. ...
It is impossible to determine whether the separation of cervical spinal vertebrae – “decapitation” – took place during K. Petrosyan’s lifetime or after he passed away, which means that his “decapitation” in life should not be excluded, as the presence of a wound in that part of the body after death would have caused more intense and accelerated decomposition. This could have resulted in decay of the inter-vertebral ligaments and cartilage and separation of the vertebrae. ...
There is no method applied during initial forensic examination or autopsy that involves separation of the head from the body.
...”
19. On 22 August 2015 the Armenian Prosecutor-General, at the applicant’s request, asked for legal assistance from the Azerbaijani Prosecutor-General in the investigation of the death of the applicant’s son, referring to the Commonwealth of Independent States (CIS) Convention of 22 January 1993 on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases. Specifically, information was requested as to whether any criminal case had been instituted in regard to Mr Petrosyan’s illegal border crossing and subsequent death and whether a post-mortem examination of his body had been performed. If such proceedings had been conducted, documents concerning the criminal case(s) as well as the report of forensic medical experts and tissue samples taken during the autopsy were requested.
20. On 22 October 2015 the Coordinating Council of the prosecutors-general of the member states of the CIS informed the Armenian Prosecutor-General that his request, delivered to the Azerbaijani Prosecutor-General, had been returned without consideration on the ground that there were no diplomatic relations between the two states. The applicant was informed of the Council’s letter on 24 November 2015.
21. In February 2016 the applicant applied directly to the Azerbaijani Prosecutor-General for the information and documents previously requested by the Armenian Prosecutor-General and asked that a criminal investigation be instituted in regard to his son’s death, in case such an investigation had not already been made. No answer has been forthcoming from the Azerbaijani Prosecutor-General.
22. According to the applicant, information about Armenian detainees having been beheaded in Azerbaijan had emerged in the aftermath of the military clashes that took place in early April 2016 (sometimes referred to as the “Four-Day War”). He referred to other applications lodged with the Court, in particular application no. 19243/16, K.S. and N.A. v. Azerbaijan and 21 other applications.
facts AS submitted by the Respondent Government23. The respondent Government claimed that Mr Petrosyan had crossed the Azerbaijani-Armenian border at about 1.30 p.m. on 7 August 2014. A member of a five-man subversive group, he had been apprehended by the Azerbaijani armed forces while the other four members had been killed. A lot of weapons had been found on the members of the group.
24. On 8 August 2014, the day of Mr Petrosyan’s death, a forensic medical examination of his body was conducted at the above-mentioned forensic examination centre in Ganja (see paragraph 6). It was performed by a forensic medical expert between 5.50 and 7.05 p.m. The result of the examination was presented by the expert in an opinion of 25 August, which took into account also a forensic chemical examination of Mr Petrosyan’s blood and parts of his internal organs carried out on 11 August. In introductory notes, the expert stated that the request for a forensic examination had been made by the chief of staff of a military unit after the body of Mr Petrosyan had been brought to a different military unit at 7.40 a.m. on 8 August and there had received cardiac massage, artificial lung ventilation, an intravenous injection of adrenalin and defibrillation but could still not be revived. Following the examination, the expert drew the following conclusions:
“The following bodily injuries were observed during the post-mortem examination of [Mr Petrosyan’s] corpse: scratches on the forehead, left cheek and chin, the backsides of the chest and the left thigh, a bruise next to the left eye, scratches and bruises on middle and lower parts of both shins, wounds on the upper lip, fractures of the fifth, sixth and seventh left ribs. All injuries were inflicted while he was still alive and did not cause his death. They could have been inflicted by hard and blunt objects or by hitting against such objects. As to the time of formation of the injuries, the scratches on the chest and the left thigh appeared minutes before the death, while the other injuries [...] occurred 2-3 days before the death ... .
Having regard to the fact that, during the forensic examination of the corpse of [Mr Petrosyan], no injuries that could have led to death were established, that, during the forensic chemical examination, no methyl, ethyl, propyl, butyl or amyl alcohols, formaldehyde, chloroform, hydrochloride, tetrachloromethane, dichloroethane, toluene, phenol, cresol, phosphorus organic pesticides, Sevin, barbituric acid derivatives, Noxyron, alkaloids (including opium), phenothiazine, pyrazolone, 1,4‑benzodiazepine derivatives or salicylates were detected in the blood and internal organs, and that, during the internal examination of the corpse, cardiac (post‑myocarditis) diffusive microscopic sclerosis in the heart, acute inflammation, oedema of stroma, pulmonary oedema, patchy emphysema, signs of venous hyperaemia in the liver, signs of parenchymal proteinosis in the kidney and cerebral oedema were established, the cause of death was acute cardiovascular and respiratory failure occurring after the myocarditis, as a result of diffusive microscopic sclerosis in the cardiac muscle.
According to the dynamics of the post-mortem changes, death occurred 10-12 hours before the examination of the corpse in the morgue.
...”
THE LAW
25. The applicant complained in the application lodged on 25 April 2016 under Articles 2, 3, 5, 8, 13 and 14 of the Convention that his son had been tortured and killed in illegal detention, that his son’s body had not been repatriated in a timely manner, that there had been no effective investigation and that the alleged violations had occurred as a result of discrimination based on ethnic origin.
AdmissibilityThe matter having already been examinedThe parties’ and third-party’s submissions(a) The respondent Government
26. The respondent Government submitted that the matter of the application had already been examined by the Court in the course of its processing of the application in the case of A.P. v. Azerbaijan ((dec.), no. 61737/14, 17 November 2015) and that it was therefore inadmissible in accordance with Article 35 § 2 (b) of the Convention.
(b) The applicant
27. The applicant argued that his previous application (see paragraphs 9-12 above) had never formed the subject of any formal examination by the Court and could not therefore preclude examination of the instant case. He also maintained that the strike-out decision that had been made in respect of his former application had been a result of technical miscommunication.
(c) The Armenian Government, third-party intervener
28. The Armenian Government supported in general the applicant’s submissions.
The Court’s assessment29. In the present case, the Court does not find it necessary to consider to which degree the matter of the instant application was, if at all, “examined” in the sense that that term is employed in Article 35 § 2 (b) of the Convention by way of the proceedings relating to application no. 61737/14 (see paragraphs 9 and 12 above). It suffices in the circumstances for it to note that, in the light of the very different situation that existed at the time when the applicant requested interim measure – when there was little other information than that his son had died in Azerbaijan – and that at the time when the current application was lodged with the Court on 25 April 2016 – when his son’s body had been repatriated and examined – the application contained “relevant new information” and that it accordingly cannot in any event be declared inadmissible pursuant to that provision.
The six-month time limitThe parties’ and third-party’s submissions(a) The respondent Government
30. The respondent Government submitted that the six-month deadline in Article 35 § 1 of the Convention had to be calculated from 9 April 2015, when the last forensic report had been produced. The acts complained of had ended on 10 October 2014 when the applicant’s son had been repatriated. The request for legal assistance from the Prosecutor’s Office of Azerbaijan had been sent by the Prosecutor-General of Armenia on 22 August 2015, four and a half months after the date of the forensic examination. The applicant should not have had recourse to the CIS Convention and should have been aware of the absence of an effective remedy available to him in the respondent State.
(b) The applicant
31. The applicant submitted that the six-month period should be calculated from 10 April 2016. He submitted that the deadline had started at the time when he could reasonably have become aware of the lack of an effective remedy, and that the establishment of that point in time had to be made by having regard to: (i) the respondent Government’s having refused to provide legal assistance to Armenian authorities, of which he had been informed on 24 November 2015; (ii) a failure of the respondent Government to provide any reasons to the Court in their submissions of 19 September 2015, of which he had become aware on 18 April 2016; and (iii) publication of evidence adduced in the aftermath of the war in April 2016 concerning killing of Armenian detainees on 10 April 2016 (see paragraph 22 above).
(c) The Armenian Government, third-party intervener
32. The Armenian Government joined the submissions of the applicant and added that the respondent Government were inconsistent in their observations to the Court in different cases, as they in other cases had argued the availability of effective remedies whereas as they in this case argued that there had been none.
The Court’s assessment33. The Court set out the relevant principles concerning the application of the six-month time-limit in Article 35 § 1 of the Convention in its judgment in the case of Varnava and Others v. Turkey ([GC], nos. 16064/90 and 8 others, §§ 156-159, ECHR 2009) as follows:
“156. The object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, among other authorities, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000‑I).
157. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Nor can Article 35 § 1 be interpreted in a manner which would require an applicant to seise the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).
158. Consequently, where a death has occurred, applicant relatives are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002, and Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002‑III). The same principles have been applied, mutatis mutandis, to disappearance cases (see Eren and Others v. Turkey (dec.), no. 42428/98, 4 July 2002, and Üçak and Kargili and Others v. Turkey (dec.), nos. 75527/01 and 11837/02, 28 March 2006). ... ”
34. In applying those principles to the facts of this case, the Court observes that, as was not contested by the respondent Government, there was no available remedy to the applicant in the respondent State. The six-month period accordingly ran from the date of the “acts or measures complained of”, or from the date of knowledge of that act or its effect on or prejudice to the applicant.
35. In that connection, the Court notes that the acts or measures complained of in this case relate in part to alleged failures of the respondent State’s authorities to investigate the circumstances of the applicant’s son’s detention and death, which would in turn shed light on the facts relevant to the allegations of substantive violations. That is the case with the complaints under Articles 2 and 3 of the Convention both as concerns the applicant’s son and the applicant’s own suffering, and those under Articles 13 and 14 in so far as they are connected to the complaints under the former provisions. The Court notes that, as to those matters, information material to the complaints under Articles 2 and 3 principally emerged by way of the forensic examinations and the report and opinion given in respect of those on 9 December 2014 and 9 April 2015 (see paragraphs 16 and 18 above, respectively). In the Court’s assessment, the applicant could, after the crucial information therein had become known, reasonably await the outcome of the initiative taken by the Prosecutor-General of Armenia on 22 August 2015 towards the authorities of the respondent State, of which the applicant was informed on 24 November 2015, before applying to the Court (see, mutatis mutandis, Varnava and Others, cited above, § 170; and contrast, for example, Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002).
36. In this connection, the Court reiterates that with regard to the duty on applicants to lodge an application with the Court with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation, it has stated that identifying the exact point in time that this stage occurs, necessarily depends on the circumstances of the case and that it is difficult to determine it with precision. So long as there is some meaningful contact between relatives and authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay by the applicants will not generally arise (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 266 and 268, ECHR 2014 (extracts); and Varnava and Others, cited above, § 165). In the instant case, the Court observes that the initiative taken by the Armenian Prosecutor-General towards the Azerbaijani Prosecutor-General in August 2015 had been at the applicant’s request (see paragraph 19 above). After he had been informed of the outcome in November 2015 (see paragraph 20 above), the applicant applied directly to the Azerbaijani Prosecutor-General for information and documents as well as with a request that a criminal investigation be instituted in case it had not already been made (see paragraph 21 above). Furthermore, while the lack of diplomatic relations between Armenia and Azerbaijan must have been known to the applicant in 2015 and 2016, the Court bears in mind that the lack of diplomatic relations does not absolve a Contracting State from the obligation under Article 2 to cooperate in criminal investigations (see, for example, Saribekyan and Balyan v. Azerbaijan, no. 35746/11, § 73, 30 January 2020, and the references therein).
37. As concerns the applicant’s complaints lodged under Articles 5 and 8 of the Convention, the matters complained of are the alleged deprivation of the applicant’s son’s liberty and failure to provide procedural guarantees in that respect, and the alleged diffusion of a video-recording of his interrogation. Notwithstanding that the video-recording might have been available on the Internet for a longer period of time, in this context all of the foregoing must be considered as “acts or measures” that are alleged to have taken place on 7 and 8 August 2014, more than six months before the application was lodged on 25 April 2016.
38. It follows that the application cannot be declared inadmissible for having been lodged outside of the six-month deadline in Article 35 § 1 of the Convention as concerns the complaints under Articles 2 and 3 and 13 and 14 in conjunction with 2 and 3. The complaints under Articles 5 and 8 and those under 13 and 14 in so far as they relate to Articles 5 and 8 must however be declared inadmissible for having been filed too late.
Abuse of the right to individual applicationThe parties’ and third-party’s submissions(a) The respondent Government
39. The respondent Government submitted that the applicant had deliberately provided the Court with false information about investigative measures in Armenia not having been concluded in order to extend the deadline set for submission of the completed application. They submitted that attention should be paid to the completed application having been submitted to the Court thirty-one months after his former application had been lodged and five months after that application had been struck out.
(b) The applicant
40. The applicant submitted that there had been an error in a translation of one of the documents (in so far as the translation had indicated that a post-mortem examination had “commenced” on 3 December 2014, whereas it had been “completed” that day), but that the correct information emerged from other documents and that the error did not amount to any abuse of his right to individual petition. The time spent on completing the application, which was correctly restated by the respondent Government, did not, either, indicate any abuse.
The Court’s assessment41. The Court reiterates that rejection of an application on grounds of abuse of the right of application is an exceptional measure (see Miroļubovs and Others v. Latvia, no. 798/05, § 62, 15 September 2009). In the instant case, it does not find that the error in the translation reflects any attempt to mislead the Court or that there are any other grounds for considering that the applicant has attempted to do so. Nor does the Court find that there are any other elements that could indicate abuse. The Court accordingly dismisses the respondent Government’s preliminary objection on that point.
The Court’s conclusion on admissibility42. The Court already found that the complaints under Articles 5 and 8 and Articles 13 and 14 as far as they relate to the former articles have been lodged outside of the six-month time-limit and are therefore inadmissible. As regards the remainder of the application, it considers, in the light of the parties’ submissions, that it raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that that part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Moreover, the Court finds that the applicant has the requisite legal interest as next of kin to introduce an application raising complaints related to his son’s death (see, for example, Varnava and Others, cited above, § 111) and that no other ground for declaring it inadmissible has been established. The applicant’s complaints under Articles 2 and 3, and those under 13 and 14 in so far as they relate to those under 2 and 3, must therefore be declared admissible.
ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTIONThe parties’ and third-party’s submissionsThe applicant43. The applicant submitted that his son had been killed by decapitation while under the control of the respondent State’s military authorities, and that there had been a violation of Article 2 of the Convention, which reads:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
The applicant further submitted that there had been no effective investigation carried out in respect of his son’s death.
The respondent Government44. The respondent Government submitted that the applicant’s son had died not because of any alleged ill-treatment on the part of Azerbaijani authorities, but because of a sickness.
The Armenian Government, third-party intervener45. The Armenian Government supported the applicant’s submissions and invited the Court’s attention to the relevant international responses to the events of August 2014. They also contested the validity of the evidence submitted by the respondent Government.
The Court’s assessmentGeneral principles46. Article 2 of the Convention, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective.
47. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused. The obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter.
48. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see, among many other authorities, Salman v. Turkey [GC], no. 21986/93, §§ 97‑100, ECHR 2000‑VII; and Aktaş v. Turkey, 24351/94, §§ 289-291, 24 April 2003).
49. Moreover, the obligation to protect the right to life under Article 2, read in conjunction with the State’s general duty under Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be an effective official investigation when someone has died in suspicious circumstances. This obligation is not confined to cases where it has been established that a person has been killed by an agent of the State. The mere fact that the authorities have been informed of the death will give rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances in which it occurred (see, for instance, Iorga v. Moldova, no. 12219/05, § 26, 23 March 2010, with further references).
50. The essential purpose of an official investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. For an investigation into an alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to identify the perpetrator(s) will risk falling foul of this standard. Furthermore, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see, for instance, Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 221-223 and 225, ECHR 2004‑III, with further references).
Whether the respondent State was responsible for the death of Karen Petrosyan51. The Court observes that on 7 August 2014 Karen Petrosyan crossed the border into Azerbaijan and was captured by the Azerbaijani armed forces. It is undisputed that he thereafter died while being detained by the authorities of the respondent State. It follows that it is incumbent on the respondent State to provide a convincing explanation of the circumstances leading to the death of the applicant’s son. They have in response argued (i) that Mr Petrosyan had died because of a sickness and (ii) that the scratches and bruises on his body and the fractures of the ribs had occurred before he had entered the territory of Azerbaijan.
52. The respondent Government have adduced a report from a forensic examination carried out on 8 August 2014, the day of Karen Petrosyan’s death, concluding that the cause of death had been an acute cardiovascular and respiratory failure occurring after a myocarditis, as a result of diffusive microscopic sclerosis in the cardiac muscle. In the report it was noted that several bodily injures had been observed; it was stated that all of them had been inflicted while he had been still alive and had not caused his death. According to the report, the injuries could have been inflicted by hard and blunt objects or by hitting against such objects, and as to the time of formation of the injuries, the report stated that the scratches on the chest and the left thigh had appeared minutes before the death, while the other injuries had occurred 2-3 days before the death (see paragraph 24 above).
53. The Court notes that, contrary to usual practice, the forensic report was not followed by photographs, which undermines the reliability of the conclusions regarding the alleged cardiac origin of the condition that had allegedly caused the death. There is no information that the applicant’s son, who was 32 years old at the time of his death, had a history of cardiac illness or had other health problems. No such allegation was made by the respondent Government.
54. As regards the injuries, the Court notes that the respondent Government relied on the above report which stated that apart from the scratches on the chest and the left thigh, Mr Petrosyan’s injuries had occurred 2-3 days before his death, in other words, prior to his entering Azerbaijan. The Government failed to comment on the question whether this version of the events was compatible with the video footage showing the applicant being offered tea and conversing with villagers in Aghbulag (see paragraph 5 above). Also, they failed to comment on the applicant’s allegation that in the first video footage, taken before the arrival of the military officers who apprehended the applicant’s son, no injuries are visible on his face and that such injuries are visible on the second video (see paragraphs 5 and 13 above).
55. The applicant has adduced a report from a forensic examination commenced on 11 October 2014, where it was concluded that it was impossible to detect with certainty the cause of Karen Petrosyan’s death, as the corpse had been presented for examination in a state of severe suppurative alterations. Also that report reflected observations of bodily injuries and stated that all bodily injuries detected during the re-examination of the corpse taken separately, as well as in combination, could be qualified as life-threatening serious bodily injuries that could have directly caused death (see paragraph 16 above). In a supplementary opinion of the forensic experts they stated that, as to a separation of cervical spinal vertebrae that had been observed, it was impossible to determine whether that had taken place during Karen Petrosyan’s lifetime or after he had passed away, and that that meant that his “decapitation” in life should not be excluded, as the presence of a wound in that part of the body after death would have caused more intense and accelerated decomposition (see paragraph 18 above). The respondent Government made no submissions in response to what appeared from the forensic reports presented by the applicant.
56. The Court notes that the examinations carried out in Armenia were carried out months after Karen Petrosyan’s death and could not establish the causes of death. However, some of its findings, in particular regarding the fractures of ribs, appear compatible with the findings of the forensic report of the autopsy carried out in Azerbaijan hours after the death. Both reports referred to considerable bodily injuries.
57. Having regard to the above, and drawing inferences from the failure to provide more detailed information, including photographs of the body, the Court finds that the explanation given by the respondent Government regarding the number and type of the injuries suffered by the applicant’s son before his death and regarding the cause of his death is not supported by sufficiently convincing elements.
58. The Court finds, therefore, that the Government have not convincingly accounted for the circumstances of the death of Karen Petrosyan and that the respondent State’s responsibility for his death is engaged. It follows that there has been a violation of Article 2 in its substantive limb.
The alleged failure to investigate59. The Court observes that save for the forensic examination, it has not been informed by the respondent State of any investigation into the circumstances surrounding Karen Petrosyan’s death.
60. Given the information that may be inferred from the medical reports (see, in particular, paragraphs 52-56 above), the Court finds that it cannot be called into question that an investigation should have been carried out. Moreover, the Court takes into account that, according to the respondent Government, Karen Petrosyan was an Armenian citizen who was detained on the ground that he was a member of an armed “subversive” group (see paragraph 23 above). In this connection, the Court cannot overlook the general context of hostility and tension between Azerbaijan and Armenia (see, for example, Saribekyan and Balyan, cited above, §§ 39-40). In the Court’s view, these circumstances also indicated that an investigation should have been carried out by the authorities of the respondent State on their own motion, including as to whether ethnic hatred had played a role in the treatment of Karen Petrosyan (see, mutatis mutandis, Saribekyan and Balyan, cited above, §§ 72 and 86).
61. For those reasons, the Court finds that there has a been a violation of Article 2 of the Convention also in its procedural limb.
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTIONThe parties’ and third-party’s submissionsThe applicant62. The applicant submitted that his son’s rights under Article 3 of the Convention had been violated and alleged in that context that his son had been executed by decapitation, subjected to severe pain and suffering causing him multiple injuries to various parts of his body, and that he had been video recorded when humiliated.
63. Furthermore, the applicant submitted that his own rights under Article 3 of the Convention had been violated owing to the means that had been used to take his son’s life, the failure to disclose the circumstances and events surrounding his son’s death, the dispersion of videos on the Internet, the absence of the hyoid bone and information about ritual decapitations, and the time spent on returning the body and the body’s state upon return.
The respondent Government64. The respondent Government submitted that a delay in repatriation of the applicant’s son’s body had occurred because of the actions of the authorities of the Republic of Armenia which had refused to exchange the bodies of deceased prisoners.
The Armenian Government, third-party intervener65. The Armenian Government supported the applicant’s submissions.
The Court’s assessmentGeneral principles66. Article 3 of the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. No provision is made, as in other substantive clauses of the Convention and its Protocols, for exceptions and no derogation from it is possible under Article 15. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention.
67. Having regard to the strict standards applied in the interpretation of Article 3 of the Convention, ill-treatment must attain a minimum level of severity before it will be considered to fall within the provision’s scope. The assessment of this minimum is relative and depends on all of the circumstances of the case including the duration of its treatment, the physical or mental effects and, in some cases, the age, sex and health of the individual. The practice of the Convention organs requires compliance with a standard of proof “beyond reasonable doubt” that ill‑treatment of such severity occurred.
68. In determining whether a particular form of ill-treatment should be qualified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As noted in previous cases, it appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. In addition to the severity of the treatment, there is a purposive element, as recognised in Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (see, among other authorities, Aktaş v. Turkey, cited above, §§ 310-313).
69. As regards the mental suffering of a victim’s relatives, the Court has consistently acknowledged the profound psychological impact of a serious human rights violation on the victim’s family members who are applicants before the Court. However, in order for a separate violation of Article 3 of the Convention to be found in respect of the victim’s relatives, there should be special factors in place giving their suffering a dimension and character distinct from the emotional distress inevitably stemming from the aforementioned violation itself. The relevant factors include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question and the involvement of the applicants in the attempts to obtain information about the fate of their relative (see, among other authorities, Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 177, ECHR 2013). While a family member of a “disappeared person” can claim to be a victim of treatment contrary to Article 3, the same principle would not usually apply to situations where the person taken into custody has later been found dead. In such cases the Court would normally limit its findings to Article 2. However, if a period of initial disappearance is long it may in certain circumstances give rise to a separate issue under Article 3 (see Bitiyeva and Others v. Russia, no. 36156/04, § 105, 23 April 2009, with further references).
The treatment of Karen Petrosyan70. The Court has found above that the respondent Government have not convincingly accounted for the circumstances of the death of Karen Petrosyan and the injuries that he sustained (see paragraphs 51-58). In that context it has taken note that the forensic reports submitted by both parties reported a large number of bodily injuries and that the statement in the report adduced by the respondent Government to the effect that the injuries had been inflicted “2-3 days before” death are difficult to reconcile with the videos of the applicant that were dispersed (see paragraph 54 above).
71. On the basis of the information available to it, it is not possible for the Court to establish exactly what happened to Karen Petrosyan while in detention. In the light of the injuries that were identified and the lack of plausible explanations as to how they had been inflicted on him, the Court finds however that it has been sufficiently proved that he was victim of severe physical violence prior to his death, to a degree that amounted to a violation of Article 3 of the Convention in respect of him.
The suffering sustained by the applicant72. The Court notes that the applicant was informed of his son’s death on the day after he had been captured (see paragraphs 4-6 above). The applicant was not a witness and the diffusion of the video of his son’s interrogation cannot on its own entail that a violation of Article 3 of the Convention took place in respect of the applicant. As to the respondent Government’s failure to investigate the circumstances of the applicant’s son’s death, the Court also considers that this aspect does not in itself amount to a separate violation of Article 3 distinct from that which has been found above with regard to the procedural limb of Article 2 (see paragraphs 59-61).
73. However, the Court has previously considered that individuals who have been presented with mutilated bodies of close family members could claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of Article 3 (see, for instance, Akpınar and Altun v. Turkey, no. 56760/00, §§ 84-87, 27 February 2007).
74. In this case, the applicant’s son’s body was not repatriated until two months after his death. In the meantime, the applicant had taken different measures, including applying to this Court (see paragraph 9 above). When the corpse was finally returned, it was in a severely decomposed state, internal organs were missing, a separation of cervical spinal vertebrae was observed and the hyoid bone was not found (see paragraphs 16 and 18 above).
75. In the light of those particular circumstances, which in this case come in addition to the failure to investigate the circumstances of the applicant’s son’s death, the Court concludes that the moral suffering endured by the applicant may be said to have reached a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. It accordingly finds that there has been a violation of Article 3 of the Convention also in respect of the applicant.
ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTIONThe parties’ submissions76. The applicant submitted that the respondent State’s refusal to cooperate with Armenian authorities in investigating into the circumstances of his son’s death, and alleged prior ill-treatment, had deprived him of any possible remedies with regard to the alleged violations of his and his son’s rights under Articles 2 and 3 of the Convention, contrary to Article 13 which reads as follows:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
77. The respondent Government submitted, in the context of their admissibility objections, that it was known that the authorities of the Republic of Azerbaijan avoided any contacts with Armenia until the solution of the conflicts between the two States and establishment of inter-State relations.
78. The Armenian Government supported the applicant’s submissions.
B. The Court’s assessment
79. The Court notes that it is undisputed that there were no remedies in Azerbaijan for individuals in the applicant’s situation (see paragraph 34 above). However, it has regard to the reasoning which led it to find a violation of Article 2 in its procedural aspect, notably that the respondent State’s authorities did not carry out any investigation in respect of Karen Petrosyan’s death while in captivity, notwithstanding that the situation so required (see paragraphs 59-61 above).
80. In these circumstances, the Court considers that there is no need to examine the case also under Article 13 of the Convention.
ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION81. The applicant argued that the violations of his son’s rights under Articles 2 and 3 of the Convention had been carried out on the basis of discrimination because of his Armenian origin, contrary to Article 14, which reads as follows:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
82. The respondent Government submitted that, while they condemned any acts constituting crime under generally recognised international law, the applicant had failed to show what kind of difference in treatment had constituted the acts complained of and what was the other category of individuals (e.g. ethnicity) that the applicant compared himself with.
83. The Armenian Government submitted that the applicant’s son had been arbitrarily detained and tortured in the prison as a result of his ethnic Armenian origin and that this had to be viewed in the wider context of the general policy of the authorities of Azerbaijan towards Armenia.
84. The Court notes that the applicants’ complaints under Article 14 of the Convention are essentially based on the same facts that have already been examined under Articles 2 and 3, put in the wider context of the relations between Azerbaijan and Armenia. However, as part of its findings above (see paragraph 60), the Court has already taken into account the general context of hostility and tension between Azerbaijan and Armenia, and concluded that that context also indicated that an investigation into the death of the applicant’s son should have been carried out.
85. For those reasons, the Court considers that there is no need to examine the case also under Article 14 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION86. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
Damage87. The applicant claimed just satisfaction in respect of non-pecuniary damage, fixed at the Court’s discretion.
88. The Government submitted that the applicant had failed to claim an amount and that there was therefore no call for awarding just satisfaction in respect of non-pecuniary damage.
89. The Court finds that the applicant has undoubtedly suffered non-pecuniary damage as a result of the violations found. Ruling on an equitable basis, the Court awards him EUR 40,000 in this respect.
Costs and expenses90. The applicant also claimed EUR 120 for the costs and expenses incurred before the Court. He submitted postal slips to support the claim.
91. The Government submitted that only two of the postal slips were dated subsequent to the application to the Court and accepted the claim in respect of those, which amounted to EUR 8,37 (4,950 Armenian drams).
92. The Court considers that the costs and expenses have been actually and necessarily incurred and are reasonable as to quantum. Recovery is however limited to the expenses that relate to the instant case before the Court. The Court therefore awards the applicant EUR 8,37 under this head.
Default interest93. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
Declares, by a majority, the complaints concerning Articles 5 and 8 inadmissible and the remainder of the application admissible;Holds, by six votes to one, that there has been a violation of Article 2 of the Convention in respect of its procedural as well as its substantive limb;Holds, by six votes to one, that there has been a violation of Article 3 of the Convention in respect of Karen Petrosyan;Holds, by six votes to one, that there has been a violation of Article 3 of the Convention in respect of the applicant;Holds, unanimously, that there is no need to examine the complaints under Articles 13 and 14 of the Convention;Holds, by six votes to one,(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 40,000 (forty-thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 8,37 (eight euros and thirty-seven cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 4 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
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Victor Soloveytchik Síofra O’Leary
Registrar President