Legal summary
October 2023
Ghazaryan and Bayramyan v. Azerbaijan - 33050/18
Judgment 5.10.2023 [Section I]
Article 34
Locus standi
Existence of exceptional circumstances allowing applicants to lodge the application, without written authority, in the name and on behalf of their vulnerable son, with mental health issues and in detention
Article 3
Degrading treatment
Inhuman treatment
Prolonged solitary confinement of applicants’ son, without objective assessment of its necessity and procedural safeguards guaranteeing the measure’s proportionality and his welfare: violation
Facts – On 15 July 2018 the applicants’ son, an Armenian national, who lived with them, was apprehended in Azerbaijan close to the Armenian border. He was held in pre-trial detention and convicted of conspiracy to carry out sabotage and terrorist attacks and sentenced to twenty years’ imprisonment. Whilst in detention he was kept in solitary confinement continuously (apart from a few days). The applicants stated that their son had a history of mental and behavioural disorders prior to his arrest. He was returned to Armenia on 15 December 2020 as part of an exchange of prisoners and transferred to a mental-health facility. He was released on 8 February 2021 to continue his treatment at home on an out-patient basis.
Law –
Preliminary objection regarding the applicants’ standing to lodge an application on behalf of their son – The applicants had not provided any written authority to act but rather argued that exceptional circumstances had justified their standing to lodge an application on the behalf of their son as the direct victim of the alleged violations. In particular, they had claimed that their son had been vulnerable – firstly, because he had been detained in complete isolation and, secondly, owing to his having mental health issues.
The Court reiterated that if an application was not lodged by the victim himself or herself, Rule 45 § 3 of the Rules of Court required the production of a duly signed written authority to act. A third party might, in exceptional circumstances, act in the name and on behalf of a vulnerable person without a duly signed written authority to act where the following two main criteria were satisfied: the risk that the direct victim would be deprived of effective protection of his or her Convention rights, and the absence of a conflict of interests between the victim and the applicant. The list of factors capable of rendering a person vulnerable as set out in Lambert and Others v. France [GC] – “on account of his or her age, sex or disability” – was not exhaustive.
The Court accepted that a detainee held incommunicado might be regarded as a vulnerable person who was at risk of being deprived of the effective protection of his or her rights under the Convention and that the same might be the case for a person suffering from mental health problems. If both those factors were present and applied at the same time, they might have to be viewed as a whole with a view to determining whether the person in question was at risk of being deprived of the effective protection of his or her Convention rights.
The applicants’ son had not been detained in complete isolation and the applicants had not disputed that the International Committee of the Red Cross (ICRC) had at least on several occasions visited him and attempted to give him letters from them. At the same time, they had never received any replies to their letters and he had refused to open their letters. The applicants had also pointed out that when they had raised questions concerning the procedure of lodging an application with the Court, the ICRC had refused their requests. They had asked, inter alia, that their son be given power-of-attorney forms in order that he might empower them to lodge an application in his name.
The Court considered that the applicants had sufficiently made out a case that their son had been unable to contribute to the application lodged with before it. It took note, firstly, of the information that had been provided about his history of mental and behavioural disorders prior to the matters complained of, which, among other things, had involved the applicants administering medicines to him by mixing them in his food. Secondly, as to the situation during his period of detention and imprisonment, the Court noted the applicants’ failed attempts to obtain his contribution, in particular via the ICRC, as well as the information about his mental health during that period. While the medical reports produced at that time might appear not to reflect fully the seriousness of his mental health disorder, their descriptions of his symptoms bore a resemblance to the reports produced after his repatriation. The symptoms, also as they were described in the reports dating from the time when he still had been in captivity, on the face of it did not appear indicative of a person capable of lodging an application with the Court. Thirdly, following his repatriation, he had suffered from serious mental health issues.
In sum, the cumulative effect of serious mental health issues of the applicants’ son and his situation during his detention and confinement, had entailed a vulnerability that had rendered him unable to lodge a complaint with the Court. It was not clear he had had any possibility to request the applicants lodge an application on his behalf, to sign a power of attorney authorising the applicants to lodge an application or to lodge such an application himself. Therefore, the Court discerned a risk that he would be deprived the effective protection of his rights if the applicants were not allowed to lodge an application in his stead. Exceptional circumstances existed that allowed the applicants to act in the name and on behalf of their son and they had standing to lodge an application in this respect.
Conclusion: preliminary objection dismissed (ratione personae).
Article 3:
(a) Alleged violation in respect of the applicant’s son – The case did not concern alleged injuries sustained during detention in a manner and in circumstances where it would have been justified to reverse the burden of proof. The Court had to examine the applicants’ submission that firstly, their son had not been provided with the requisite medical care as a prisoner with a mental disability, allegedly leading to a deterioration in his condition, and secondly that he had been kept in solitary confinement.
As regards the issues of mental disability, the information from the ICRC’s doctors had not been entirely conclusive on that point. In addition, while the assessments of the mental health state of the applicants’ son and his need for treatment were very different in the medical documents adduced by the parties, the descriptions of his symptoms bore more similarities. Although the Court did not call into question the information provided by the applicants about their son’s health prior to and subsequent to his captivity, it was nonetheless unable to draw any clear conclusion regarding the medical care that he (i) should have received and (ii) actually did receive during the period in which he had been deprived of his liberty. That information alone did not give it a sufficient basis for drawing any clear conclusion as to whether he had been the victim of ill-treatment within the meaning of Article 3.
Turning to the issue of solitary confinement, it did not appear to be disputed that the applicants’ son had been placed in solitary confinement continuously (apart from a few days) from 15 July 2018 until 15 December 2020. The Government had stated that his placement in solitary confinement had been a safety measure, that he had been kept in a cell measuring nine square metres, had been supervised by doctors and had been allowed to go outside for at least one hour daily. However, while they had indicated that his solitary confinement had not been a matter of a complete sensory or total social isolation, but rather a type of “partial and relative” isolation, no further explanation and no decision or any other document had been provided that would have made it possible to verify the necessity of any confinement measure, such as whose safety it had aimed to ensure, whether its need had been reviewed at any point in time, or whether the applicants’ son had been informed of any reasons for the measure. The Court therefore did not have any grounds for concluding that his placement in solitary confinement for a prolonged period had been based on an objective assessment as to whether the measure had been necessary and appropriate or that there had existed any procedural safeguards guaranteeing his welfare and the proportionality of the measure; accordingly, his solitary confinement had amounted to inhuman and degrading treatment contrary to Article 3, without the Court having to consider separately the applicants’ arguments concerning the physical conditions of his detention.
Conclusion: violation (six votes to one).
(b) Alleged violation in respect of the applicants personally – After the applicants’ son had left their home during the night of 15 July 2018 and his capture had been announced the next day, the applicants had been able to gain only limited information about his situation until he had been returned on 15 December 2020. The Court noted the fear and anguish that they had felt during that period, as described in their application, and did not call into question their emotional distress regarding their son’s captivity, detention, trial and imprisonment, especially so in the light of his particular vulnerability owing to his mental health complaints. However, there were no special features in the instant case that gave the suffering of the applicants a distinct dimension and character as was required before individuals could themselves be deemed to be victims of violations of Article 3 owing to circumstances involving family members.
Conclusion: no violation (unanimously).
The Court also held, by six votes to one, that there had been a violation, firstly, of Article 5 § 1 in that the pre-trial detention of the applicants’ son had not been supported by adequate legal safeguards and therefore failed to meet the “lawfulness” requirement set out therein; and, secondly, of Article 5 § 3 in that the applicants’ son had not been “promptly” brought before a judge or another officer authorised by law to exercise judicial power after his arrest. Lastly, the Court held, unanimously, that there had been no violation of Article 5 § 4 with regard to the initial period of the applicants’ son detention as it had no grounds to consider that an appeal against the relevant decision would not in principle constitute a remedy that would satisfy the requirements of that provision and there was insufficient information for it to draw conclusions about the practical possibility of him lodging such an appeal.
Article 41: EUR 10,000 in respect of non-pecuniary damage, to be held in trust by the applicants for their son.
(See also Lambert and Others v. France [GC], 46043/14, 5 June 2015, Legal Summary; H.F. and Others v. France [GC], 24384/19 and 44234/20, 14 September 2022, Legal Summary; Asgarova and Veselova v. Armenia (dec.), 24382/15, 12 September 2023, Legal Summary)
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This summary by the Registry does not bind the Court.
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