Communicated on 25 November 2016
THIRD SECTION
Application no. 54856/16
Gagik KHALAPYAN and Others
against Azerbaijan
lodged on 15 September 2016
STATEMENT OF FACTS
The applicants are three brothers. The first applicant, Mr Nver Khalapyan, who state that he is a national of the “Nagorno-Karabakh Republic” (“NKR”), was born in 1976 and lives in Martakert, “NKR”. The second applicant, Mr Gagik Khalapyan, who also claim to be a national of the “NKR”, was born in 1978 and lives in Yerevan, Republic of Armenia. The third applicant, Mr Mher Khalapyan, who is a Russian national, was born in 1980 and lives in Saratov, Russian Federation. They are represented before the Court by Mr Ara Ghazaryan, Ms Hasmik Harutyunyan, Ms Haykuhi Harutyunyan, Ms Araks Melkonyan and Mr Artak Zeynalyan, Yerevan.
The facts of the case, as submitted by the applicants, may be summarised as follows.
During the military clashes that took place between 1 and 5 April 2016 close to the border between the “NKR” and Azerbaijan (sometimes referred to as the “Four-Day War”), the Azerbaijani forces attacked and captured the village of Talish in the early morning of 2 April. As a result of the attack and the subsequent shelling, the villagers were forced to flee. It appears that, at the time of the attack, the applicants were residents of the village and managed to escape. Their grandmother – Ms Marusya Khalapyan, born in 1924 – as well as their parents – Mr Valeri Khalapyan, born in 1951, and Ms Razmela Vardanyan, born in 1956 – were not able to flee, however, due to age and health issues. The following day, after the village and the surrounding military positions had been retaken by the “NKR Defence Army”, their dead and mutilated bodies were found in their living room by a journalist: Marusya Khalapyan was lying on a sofa, Valeri Khalapyan was sitting reclining in an armchair with a cane in his hand and Razmela Vardanyan was lying next to him on the floor. The house had been seriously damaged from the shelling.
The Prosecutor-General of the “NKR” opened a criminal investigation. Forensic examinations performed on 5 April 2016 and presented in reports of 13 June revealed that the applicants’ relatives had died from multiple gunshot injuries. Marusya Khalapyan had bullet wounds on her head, neck, chest and abdomen; she also had a stab wound in the abdomen, inflicted shortly before death. Furthermore, her left earlobe had been cut off post-mortem and was missing. Valeri Khalapyan had bullet wounds on his head, chest and abdomen. He also had post-mortem injuries: both earlobes had been cut off and were missing and a stab wound was present on the neck. Razmela Vardanyan had bullet wounds on her head, abdomen and arms. Both her earlobes had been cut off post-mortem and were missing.
COMPLAINTS
1. The applicants complain, under Article 2 of the Convention, that Marusya Khalapyan, Valeri Khalapyan and Razmela Vardanyan were unlawfully killed by the Azerbaijani forces. They state that their relatives were elderly and had reduced mobility and argue that their killing constitute a breach of international humanitarian law. They further claim that the procedural requirements under Article 2 have not been respected, as no effective official investigation by Azerbaijani authorities into the deaths of their relatives has been undertaken.
2. The applicants further claim that they have suffered extreme mental distress and anguish amounting to a violation of Article 3 of the Convention as a consequence of the murder and mutilation of their relatives.
3. Moreover, on behalf of Marusya Khalapyan, they maintain, under Article 3, that she was tortured before she died. The forensic examination purportedly shows that, after having sustained fatal gunshot injuries, she was stabbed in the abdomen while still alive.
4. The applicants, referring to the mutilation of their relatives’ bodies and the failure of the Azerbaijani authorities to return the missing parts, complain that their right to respect for their private and family life under Article 8 of the Convention has been violated.
5. They also claim, on behalf of their deceased relatives, that the mutilation of their bodies constituted a war crime in breach of international humanitarian law and a violation of their rights to physical integrity and personal dignity under Article 8.
6. In respect of the alleged violations of Articles 2, 3 and 8, the applicants maintain that they have not had an effective remedy, in breach of Article 13 of the Convention. They state that there are no diplomatic relations between Azerbaijan and either Armenia or the “NKR” and that ethnic Armenians have no right to enter Azerbaijan where a culture of hatred and racism towards Armenians is promoted.
7. Finally, in conjunction with Articles 2, 3, 8 and 13, the applicants claim, under Article 14 of the Convention, that the violations in the case are due to the ethnic and national origin of themselves and their relatives. They assert that the mutilation of corpses of ethnic Armenians is part of a State-administered practice by Azerbaijani authorities to intimidate the Armenian community as a whole and send a message of hatred and intolerance to ethnic Armenians.
QUESTIONS TO THE PARTIES
1. Do the facts of which the applicants complain in the present case fall under the jurisdiction of Azerbaijan?
2. Do the applicants have 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)?
3. Have the applicants’ relatives’ right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, did the relatives’ death result from a use of force which was absolutely necessary?
4. Having regard to the procedural protection of the right to life under Article 2, has an official inquiry been undertaken by Azerbaijani authorities into the deaths of the applicants’ relatives?
5. Has there been a violation of Article 3 of the Convention in regard to the mental anguish allegedly caused to the applicants by the circumstances related to their relatives’ death (see, for instance, Akpınar and Altun v. Turkey, no. 56760/00, §§ 84-87, 27 February 2007)?
6. Was Ms Marusya Khalapyan subjected to torture or to inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention, before her death?
7. Has there been a violation of the applicants’ right to respect for their private and family life under Article 8 of the Convention in regard to the alleged mutilation of their relatives’ bodies and the applicants’ difficulties in recovering the allegedly severed parts (see, for instance, Maskhadova and Others v. Russia, no. 18071/05, § 208, 6 June 2013)?
8. Has there been a violation of the applicant’s relatives’ right to respect for their private life, within the meaning of Article 8, by virtue of the alleged post-mortem mutilation of their bodies?
9. Have 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?
10. Finally, the Government are requested to provide all relevant information and documents concerning the case.
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