Published on 13 May 2024
FIFTH SECTION
Application no. 44364/22
G.A. and H.A.
against Azerbaijan
lodged on 20 September 2022
communicated on 24 April 2024
STATEMENT OF FACTS
1. The applicants are Armenian nationals, who were born in 1954 and 1995, respectively, and live in Aghavnatun. They are, respectively, the father and the brother of G, an Armenian soldier who was born in 1980 and died in 2022. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). They are represented before the Court by Ms A. Chatinyan, a lawyer practising in Vanadzor.
2. The facts of the case may be summarised as follows.
3. On 27 September 2020 a war broke out between Armenia and Azerbaijan over Nagorno-Karabakh and the surrounding territories. It lasted for 44 days until 10 November 2020 when a ceasefire agreement, signed the day before, entered into force. However, several border incidents, including military clashes, have occurred thereafter. On 12-14 September 2022 major clashes erupted along the Armenia-Azerbaijan border, resulting in several hundred soldiers and a few civilians dead or missing, many more soldiers wounded and thousands of Armenian civilians displaced. Many Armenian soldiers were taken captive by the Azerbaijani armed forces.
4. G was a contract soldier in the Armenian armed forces, stationed in the military unit at Vardenis. On 14 September 2022 a video was spread on the “Telegram” mobile application, which showed bodies of several Armenian soldiers. A female soldier appeared stripped, tortured and mutilated; a stone had been placed in one of her eye sockets and a severed finger had been put in her mouth. Allegedly, her throat had been cut. A word, purportedly synonymous with the Special Forces of Azerbaijan, had been written on her chest. Watching the video, family members and other relatives of G immediately recognised her from her physique, facial features and clothes.
5. A request for an interim measure was submitted on 20 September 2022. On 21 September the Court decided to suspend the examination of the request until receipt of information from the respondent Government. The information requested was the following:
(a) whether G had been captured by Azerbaijan; and
(b) if so, (i) the precise details of her capture and death, including the alleged torture and mutilation she was claimed to have suffered, (ii) whether an investigation had been initiated by the Azerbaijani authorities in regard to these allegations (including details of such investigation), and (iii) whether there were any plans to return the body to the Armenian authorities.
6. By a letter of 29 September 2022 the Azerbaijani Government informed the Court that the Military Prosecution Office had opened a criminal investigation in relation to the video mentioned above and stated that the allegations of torture of the female soldier appeared to be groundless.
7. The applicants responded that the lack of information on the criminal investigation, the respondent Government’s assessment that the allegations of torture were groundless and the fact that the bodies of the other soldiers shown in the above-mentioned video had been returned to Armenia indicated that there would not be a meaningful, unbiased investigation in Azerbaijan and that G’s body was intentionally withheld to prevent a complete and impartial investigation of her death with the assistance of relevant international organs. They therefore requested the Court to order the immediate repatriation of the body.
8. On 19 October 2022 the Court invited the Azerbaijani Government to provide detailed information on the ongoing investigation and, assuming that Azerbaijani authorities were in possession of G’s body, indicate what had prevented them from returning it.
9. On 2 November 2022 the Azerbaijani Government responded that they did not have any information on the whereabouts of the female soldier allegedly depicted in the video in question, but stated that the Court would be immediately notified as soon as relevant information would be available. They enclosed a letter from the Azerbaijani First Deputy Prosecutor-General to the Deputy Minister for Foreign Affairs, dated 26 September 2022, wherein it was stated that criminal investigations had been initiated on 20 September in relation to several videos, including one in which persons presumed to be Azerbaijani servicemen were insulting the corpses presumed to be of Armenian soldiers, including a woman. The letter further stated that investigative measures were being carried out as a matter of urgency in order to verify whether the videos were authentic and, if so, to identify the individuals who had committed the illegal acts and who had recorded the videos. To that end, physical and electronic evidence was collected and crime scenes were examined, social network accounts were investigated, witnesses were interrogated and forensic sound and portrait examinations were carried out.
10. No further information has been forthcoming from the Azerbaijani Government.
11. On 20 April 2023 the applicants informed the Court that G’s body had been returned by Azerbaijan and subsequently identified through a DNA analysis. The body allegedly showed multiple injuries and signs of torture. The date of the return of the body has not been specified, but the report of an autopsy performed by an expert at the Scientific-Practical Centre of Forensic Medicine of the Armenian Ministry of Health states that the body was delivered to the morgue on 28 October 2022. The autopsy was finalised on 27 March 2023 and the expert concluded that G had died from a traumatic haemorrhagic shock caused by a combination of penetrating and perforating gunshot and fragment/shrapnel wounds on the chest, abdomen and upper and lower limbs sustained shortly before death. The autopsy also revealed fractures of the skull, nasal bones and lower jaw, which had been caused after death with a blunt object, as well as wounds on the face and abdomen and amputation of the left ear and third finger of the left hand, which had also been caused after death with a sharp piercing or cutting object or tool.
12. G was buried on an unspecified date.
COMPLAINTS
1. The applicants complain under Article 2 of the Convention that G was killed by the Azerbaijani armed forces after having been captured and while being under their control. They also submit that the respondent State refused to conduct a proper investigation of the crime and even withheld G’s body in order to prevent such an investigation.
2. Claiming that there is a pattern in the Azerbaijani armed forces of killing Armenian captives through torture, the applicants submit that G was dismembered, causing her acute physical pain as well as humiliation, amounting to torture in violation of Article 3.
3. Moreover, the applicants contend that they have suffered profound mental distress and anguish amounting to a violation of Article 3, from the day they learned that the military position where G served had come under Azerbaijani fire, especially when the video depicting her dismembered and defaced body was circulated. The video was allegedly circulated deliberately to humiliate and instil fear and suffering in them and the Armenian public. The applicants also refer to the delayed return of the body, which left them uncertain as to whether it would be returned at all.
4. They further assert that they have been unable to properly bury G, in violation of their right to respect for their private and family life under Article 8.
5. In respect of all of the alleged violations, the applicants maintain that they and G have not had an effective remedy, in breach of Article 13. They state that legal remedies in Azerbaijan are not accessible to ethnic Armenians.
6. They also claim, under Article 14 in conjunction with Articles 2, 3, 8, 13 and 34, that the violations in the case are direct results of a policy of racism and discrimination against ethnic Armenians.
7. Finally, the applicants contend that the Azerbaijani authorities’ delay in returning G’s body was made deliberately to prevent a proper investigation and the obtainment of evidence, which hindered the effective exercise of the right of individual application, in violation of Article 34 of the Convention.
QUESTIONS TO THE PARTIES
1. Do the facts of which the applicants complain in the present case fall under the jurisdiction of Azerbaijan? In particular, was G killed after having been captured by the Azerbaijani armed forces and was G’s body mutilated and defaced while in their possession?
2. Has the criminal investigation initiated by the Military Prosecution Office on 20 September 2022 been concluded and, if so, what are the results of that investigation? Reiterating the Court’s requests for information of 21 September and 19 October 2022, the respondent Government are requested to provide a copy of the investigation report, if available, and any other documents and factual information relevant to the case.
3. Have the applicants had at their disposal an effective domestic remedy for their Convention complaints, within the meaning of Article 13 of the Convention? If so, have they exhausted this remedy, as required by Article 35 § 1 (see further Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 115-120, ECHR 2015)?
4. Has the right to life of G, ensured by Article 2 of the Convention, been violated in the present case?
5. Referring to question 2 above and having regard to the procedural protection of the right to life under Article 2 (see, among other authorities, Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), has there been an effective official investigation by the authorities of Azerbaijan of the death of G?
6. Was G subjected to torture or to inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?
7. Referring to questions 2 and 5 above, has there been an effective official investigation in regard to the ill-treatment allegedly suffered by G?
8. Has there been a violation of Article 3 of the Convention in regard to the mental distress and anguish allegedly caused to the applicants on account of the circulation of the video recording in question and of their inability to bury G for some time (see, for instance, Akpınar and Altun v. Turkey, no. 56760/00, §§ 84-87, 27 February 2007)?
9. Has there been a violation of Article 8 of the Convention in regard to the applicants’ alleged inability to properly bury their relative (see, for instance, Maskhadova and Others v. Russia, no. 18071/05, § 208, 6 June 2013)?
10. Have G or the applicants suffered discrimination in the enjoyment of their Convention rights due to ethnicity or nationality or on any other ground contrary to Article 14 of the Convention?
11. Has there been any hindrance by the respondent State in the present case with the effective exercise of the applicants’ right of application, ensured by Article 34 of the Convention?