Communicated on 10 November 2015
FIFTH SECTION
Application no. 62161/14
KHOJOYAN and VARDAZARYAN
against Azerbaijan
lodged on 4 September 2014
STATEMENT OF FACTS
The applicants, Ms Hasmik Khojoyan, Ms Heghine Vardazaryan and Mr Haykaz Khojoyan, are Armenian nationals who were born in 1964, 1967 and 1959, respectively. They are represented before the Court by Ms K. Gevokyan, and Mr V. Grigoryan, lawyers practising in Yerevan and London, respectively.
The facts of the case, as submitted by the applicants, may be summarised as follows.
In the morning of 28 January 2014 the applicants’ father, Mr Mamikon Khojoyan, born in 1937 and a resident of the village of Verin Karmiraghbyur in the Tavush province of Armenia, close to the border to Azerbaijan, left his home, telling his family that he was going to collect grapes in the fields. Later the same day, he appeared in a video online, surrounded by a group of people in civilian clothes and a person in Azerbaijani military uniform. He had no signs of injury. On 30 January he was interviewed by Azerbaijani TV. His right arm was now in a cast, as if it had been broken. It was reported that he was in detention, having been apprehended with a gun as part of an Armenian sabotage group. Another Azerbaijani news report from the following day showed that Mr Khojoyan had difficulties standing upright and had further injuries to his left eye and right arm. It was stated that he was receiving medical treatment.
On 4 March 2014, through the mediation of the International Committee of the Red Cross (ICRC), the applicant’s father was handed over to the Armenian authorities.
On 5 March 2014 Azerbaijani TV related an official statement from Azerbaijani authorities that Mr Khojoyan had been injured while captured as an armed guide of an Armenian subversive group and had been taken to Baku where he had received medical treatment, including the removal of a bullet from his arm.
On 6 March 2014 the General Department of Criminal Investigation in Yerevan opened a criminal investigation under section 2, points 4, 6 and 12, of Article 112 of the Criminal Code of Armenia concerning intentional infliction of bodily harm with particular cruelty and with motives of national, racial or religious hate or fanaticism. During the ensuing investigation, the second and third applicants and several other witnesses were heard. The second applicant stated that her father had not had any injuries or wounds when leaving his home in the morning of 28 January and that, when she had visited him in the hospital after his return, he had been extremely frightened and his speech had been incoherent. He had told her that he had been taken to Baku, where he had been severely beaten, forced to sleep on a concrete floor, had salt poured into his wounds and had received injections and had his head burned with incandescent metal. The third applicant confirmed this account, adding that there were many injuries on his father’s body which had been inflicted during his detention in Azerbaijan and that his father’s health had deteriorated badly. His consciousness was blurred and he was unable to communicate with his family what exactly had been done to him. A police investigator attempted to interview Mr Khojoyan, but he was unable to speak, allegedly due to his severe health condition.
Immediately after the handover, Mr Khojoyan was taken to a hospital in Armenia where, the applicants claim, examinations revealed multiple signs of alleged torture, including injuries to his head, ears, ribs and arms. Later, forensic medical experts conducted an examination. In their report, published on 27 March 2014, the following conclusions were drawn:
“Contusion wounds to the top of the head and the right arm, injuries to the left outer ear, right cheek, right shoulder-joint, chest and right knee joint, many scratches on the right thigh, a wound on the right arm, scars remaining from the wounds, haemorrhage of the left arm and left forearm, fractures on the ribs on two sides as well as the elbow, and an open multi-fragmental fracture of the right arm bone have, all taken together, caused grievous bodily harm dangerous to life. The contusions on the head and right arm, the injuries to the outer ear, left arm and left forearm, and the haemorrhage of both thighs were inflicted by blunt firm objects, which caused minor bodily injuries, with short deterioration of health which, taking into account the duration of consequences having a direct causal link with the injuries, lasted not less than six days and not more than 21 days. The scratches on the right cheek, right shoulder joint, chest, right knee joint and right thigh were inflicted by blunt firm objects and did not, taken together and separately, contain features amounting to minor harm to health. The cut wound on the right arm was inflicted by a sharp cutting instrument, which caused minor injury to health, with a short duration which, taking into account the duration of consequences having a direct causal link with the injuries, lasted not less than six days and not more than 21 days. Numerous fractures on two sides of the ribs, inflicted by blunt firm objects and accompanied by a chest deformation, caused grievous bodily harm dangerous to life. Bone fractures on the radius and the ulna were inflicted by blunt firm objects and caused harm to health of medium gravity, with a lasting deterioration of health which, taking into account the immediate link with the injuries, lasted more than 21 days. The bullet which went through the right arm caused an open multi-fragmental fracture of the arm bone and was a result of a shot from a firearm loaded with a bullet, which is evidenced by the wounds, which have turned into scars, on the front and back surfaces of the arm and which caused grievous bodily harm dangerous to life. Having regard to the surgical treatment of the wounds to the arm as well as the absence of medical documents, it is not possible to determine the location of the entrance and exit holes of the shot or the direction and the distance of the shot. There are no signs of sexual acts in the anus, and there are no marks of sperm in the swab examination of the anus, but the absence of the latter does not rule out the possibility of sexual acts in the anus.”
A chemical forensic examination was also undertaken. As presented in a report of 7 April 2014, the examination showed the existence of petroleum and psychotropic medications in Mr Khojoyan’s blood and urine.
Mr Khojoyan was discharged from hospital on 3 April 2014 and died in his home on 20 May 2014.
A post-mortem forensic examination, presented in a report of 17 June 2014, confirmed the description of injuries given in the report of 17 March. It appears, however, that those injuries were not the cause of Mr Khojoyan’s death. Instead, the report stated that he had suffered from a number of injuries and diseases during his life which, taken together, had led to his death. The cause of death was, according to the report, a general intoxication of the organism.
By a decision of 4 July 2014 the criminal investigation was suspended, as there was no possibility to continue it on the territory of Azerbaijan.
COMPLAINTS
1. The applicants complain that, while in detention, their father, Mr Mamikon Khojoyan, was subjected to physical violence and drug injections which posed a danger to his life and, eventually, lead to his death. Allegedly, at the time of his release, he was mentally and physically irreparably injured by this conduct, which constituted torture and degrading treatment. Furthermore, no investigation into the circumstances of his detention and treatment was made by the Azerbaijani authorities. The applicants therefore claim that, in respect of their father, there were breaches of both the substantive and the procedural aspects of Articles 2 and 3 of the Convention.
2. Moreover, in respect of themselves, the applicants assert that they were subjected to mental suffering in violation of Article 3, as they had to see their father’s injuries on television and the Internet while he was still in Azerbaijani custody and, then, after his release, could observe the severity of his injuries and the treatment to which he had been subjected.
3. The applicants further claim that their father was unlawfully deprived of his liberty during the period from 28 January to 4 March 2014, in violation of Article 5 §§ 1-3. He was not informed of the reasons for his detention and was not brought before a judge or other authorised officer.
4. In respect of the alleged violations of Articles 2, 3 and 5, the applicants maintain that they did not have an effective remedy, in breach of Article 13.
5. Finally, in conjunction with all of the above provisions of the Convention, the applicants claim, under Article 14, that the rights of their father as well as their own rights were violated due to their ethnic Armenian origin.
QUESTIONS TO THE PARTIES
1. Was the applicants’ father deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty, which allegedly occurred during the period between 28 January and 4 March 2014, fall within any of the sub-paragraphs of this provision?
2. Was the applicants’ father informed, in a language which he understood, of the reasons for his arrest and of any charge against him, as required by Article 5 § 2 of the Convention?
3. Was the applicants’ father brought before a judge or other officer authorised by law to exercise judicial power, as required by Article 5 § 3 of the Convention?
4. Was the applicants’ father subjected to torture or to inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?
5. Has the applicants’ father’s right to life, ensured by Article 2 of the Convention, been violated in the present case?
6. Having regard to the procedural protection from torture and inhuman or degrading treatment or punishment under Article 3 (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV) and the corresponding procedural protection under Article 2 (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was there an investigation opened by the authorities of Azerbaijan
a) in regard to the injuries sustained by the applicant’s father while being captured or held in detention in Azerbaijan, or
b) if the authorities of Azerbaijan were informed of his later death in Armenia, in regard to whether his injuries and treatment in Azerbaijan caused or contributed to his passing?
7. Given the circumstances surrounding the detention, alleged ill‑treatment and eventual death of the applicants’ father, have the applicants been subjected to inhuman or degrading treatment, in breach of Article 3?
8. Have the applicants had at their disposal an effective domestic remedy for their Convention complaints under Articles 2, 3 and 5, as required by Article 13 of the Convention?
9. Did the applicants or their father suffer discrimination in the enjoyment of their Convention rights on the ground of their Armenian origin, contrary to Article 14 of the Convention read in conjunction with Articles 2, 3, 5 and 13?
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