Communicated on 9 July 2019
THIRD SECTION
Application no. 74508/16
Garik OHANYAN and others
against Azerbaijan
lodged on 1 October 2016
STATEMENT OF FACTS
1. The applicants are a married couple, Mr Garik Ohanyan and Ms. Yeraz Ohanyan, their children Kamo, Kristine, Tamara, Syuzanna and Ruzanna and the first applicant’s mother, Ms Amalya Ohanyan. They are Armenian nationals, who were born in 1978, 1981, 1999, 2005, 2009, 2010, 2013 and 1954, respectively, and used to live in Talish. They are represented before the Court by Ms K. Gevorkyan and Ms L. Alaverdyan, lawyers based in Yerevan.
A. General background
2. At the time of the demise of the Soviet Union, the conflict over the status of the region of Nagorno-Karabakh arose. In September 1991 the establishment of the “Republic of Nagorno-Karabakh” (the “NKR”; in 2017 renamed the “Republic of Artsakh”) was announced, the independence of which has not been recognised by any State or international organisation. In early 1992 the conflict gradually escalated into a full-scale war which ended with the signing, on 5 May 1994, of a ceasefire agreement (the Bishkek Protocol) by Armenia, Azerbaijan and the “NKR”. Following the war, no political settlement of the conflict has been reached; the situation remains hostile and tense and there have been recurring breaches of the ceasefire agreement (see further Chiragov and Others v. Armenia [GC], no. 13216/05, §§ 12-31, 16 June 2015). The most serious such breach started during the night between 1 and 2 April 2016 and lasted until 5 April and involved heavy military clashes close to the border between the “NKR” and Azerbaijan (sometimes referred to as the “Four-Day War”). Further clashes took place later that month. Estimates of casualties vary considerably; official sources indicate at least 100 dead on either side of the conflict. The great majority of the casualties were soldiers but also several civilians died. Many residents in the targeted towns and villages had to leave their homes for certain periods of time. Furthermore, the clashes led to substantial property and infrastructure damage.
B. The circumstances of the case
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The situation in Talish
4. On 2 April 2016, at around 2.30 a.m., the Azerbaijani armed forces began shelling “NKR” towns and villages located along the line of contact between “NKR” and Azerbaijan. The village of Talish, situated 3‑4 kilometres away from that border, was hit first, by artillery and rocket launchers as well as aircraft. The bombardment lasted for several hours. Almost all residents either left the village themselves or were evacuated to other parts of the “NKR”. Many houses, private homes as well as public buildings, and infrastructure were heavily damaged and some villagers were injured and a few others were killed.
5. According to a report drawn up on 26 September 2016 by the head of the Martakert region, the shelling of Talish started at about 2.30 a.m. on 2 April. At that time he had received a telephone call from the head of the Talish village informing him that the village was under bombardment and that one of the shops was on fire. The situation in Talish worsened rapidly. The shellfire targeted several public buildings as well as the village’s infrastructure and the main road connecting Talish and Mataghis.
6. On 2 and 4 April 2016 the Prosecutor-General of the “NKR” opened criminal investigations of the shelling and its human and property consequences. Within that framework, site examinations were conducted in Talish and other affected areas of the “NKR”. These examinations established that considerable damage had been done to many public and private buildings in Talish, including the village school and kindergarten, the village administration building, the events hall, the church and chapel as well as the water reservoir. The number of killed livestock reached several hundreds.
7. An explosives technical report of 22 April 2016 stated that metal fragments found in the surroundings of public buildings and residential houses in the village came from rockets launched by “Grad” and “Uragan” multiple rocket launchers as well as from artillery shells and an artillery fuze. Another such report of 28 April 2016 expressed that the fragments were probably exploded pieces from artillery shells.
8. The shelling of Talish continued sporadically until 5 April 2016, when a ceasefire agreement was reached between the warring parties. Nevertheless, even after the ceasefire it was unsafe for the villagers to return to their dwellings, since several strategic heights around Talish had been captured by the Azerbaijani army. Notably, it appears from the above‑mentioned report by the head of the Martakert region that, as of September 2016, most of the public installations were still damaged and it was dangerous to start the reconstruction works since the Azerbaijani side continued shelling the area. It was still not safe for the village residents to return.
2. The circumstances of the applicants
9. On 2 April 2016, at around 3.30 a.m., the applicants woke up at their home from the sounds of explosion. A projectile fell in their yard and exploded in front of the entrance door, damaging both the house and the adjacent barn. Garik Ohanyan immediately moved the children out of the house. His son Kamo got hit on his left leg. The whole family went to their neighbours’ house, after which S, a family relative, took them to Karvachar (Kalbajar) and then transferred the son to a hospital where he received medical treatment. The applicants stayed at the house of S. This information was given to an officer of the “NKR” police who took witness statements from Garik Ohanyan and S later the same day.
10. On 6 April 2016 an investigator of the investigative department of the “NKR” police conducted a site examination at the applicants’ house and land and the adjacent territory. According to the protocol of the examination, all windows of the house had been broken and the roof, the doors, the door glass and the interior of the house had been damaged. The report further noted that several holes were found around the house with scattered metal fragments that resembled parts of a shell. Garik Ohanyan noted during the site examination that the destruction and damage established had resulted from the shelling of 2 April. It also transpires from the report that Amalya Ohanyan had been injured and received first aid at a hospital in Karvachar and that the family’s youngest daughter, Ruzanna, had received an injury to the head, although no special medical assistance had been sought for her.
11. On 10 April 2016 Yeraz and Amalya Ohanyan and the son Kamo were interviewed by the “NKR” police. Yeraz and Amalya Ohanyan mentioned that, when an explosive fell in their yard, the windows of the house broke and some other parts of the property were damaged. They further stated that, although Garik Ohanyan managed to bring back some of the family’s livestock on 4 April, the remainder of their property was damaged and lost. They both estimated their material damage at 3,000,000 Armenian drams (AMD; approximately 5,500 euros (EUR)), without including the lost livestock. Kamo testified that he had seen shells flying over their house, one of which dropped and exploded in front of their entrance door causing the injury to his left leg. When the family were leaving Talish, Kamo had seen the village being shelled. All of the interviewees noted that the whole family had been scared by the bombardment.
12. Also on 10 April 2016 the “NKR” police decided to recognise the eldest children, Kamo and Kristine, as injured parties, noting that the shellfire had placed them at an immediate risk of physical harm and that they had been forced to leave their home. At the same time, Yeraz Ohanyan, their mother, was recognised as their legal representative.
13. On 14 April 2016 another police investigator conducted a site examination of the barn next to the applicants’ house. According to the protocol, substantial damage had been inflicted on the barn. The head of Talish village confirmed during the site examination that the damage had resulted from the bombardment.
14. An examination of Kamo’s trousers performed by the forensic department of the “NKR” police and presented in a report of 19 April 2016 revealed that the torn parts had been caused by shell fragments from the explosion. Traces of an explosive matter and a stabiliser were found.
15. A report on a forensic medical examination of the son’s injury, issued on 27 April 2016, specified that a fragment of an explosive had wounded his left shin, causing slight harm to his health.
16. A more detailed examination of the applicants’ house was made by experts of the “NKR” authority of forensic examinations. They noted, in a report of 23 May 2016, that the shelling of 2-5 April had damaged the roof, in particular its sides, covering and wooden construction. Furthermore, the walls and the drainpipes, the coating and painting of the ceiling as well as the doors and windows had also been damaged. In monetary terms, the damage was estimated at AMD 5,329,000 (approximately EUR 9,700) and the total cost, including repair work and the cost of alternative housing, at AMD 9,311,279 (EUR 17,000).
17. The applicants have submitted documents of both a general and an individual nature. The general ones consist of a historical background to the conflict, news reports, documents on the characteristics of the weaponry used, statements by Azerbaijani and “NKR” officials, and various documents concerning the shelling and destruction of public and private buildings of Talish and other residential areas of the “NKR” (i.e. site examination protocols, expert examination reports, and photographs). The individual documents comprise the passports of Yeraz and Kamo Ohanyan, birth certificates of the four youngest children, the protocols on the witness statements (see paragraphs 9 and 11 above), the decision of 2 April 2016 of the “NKR” police to conduct a forensic medical examination of Kamo’s injury, the decision of 5 April 2016 of the “NKR” police to conduct the traceological and chemical expert examination of his trousers, the site examination protocols of 6 and 14 April 2016, the decisions of 10 April 2016 of the “NKR” police to recognise Kamo and Kristine as injured parties and their mother as their legal representative, the report of 19 April 2016 on the traceological and chemical expert examination of the son’s trousers, the report of 27 April 2016 on the forensic medical examination, the report of 23 May 2016 on the examination of the applicants’ house, a document issued by the head of Talish village confirming that Garik, Yeraz and Amalya Ohanyan were residents of the village and a document issued by the “NKR” police concerning their citizenship and birthplace.
COMPLAINTS
18. The applicants complain, under Article 2 of the Convention, that, as a result of an indiscriminate military attack by the Azerbaijani armed forces, there had been a real and imminent threat to their lives and their survival had been fortuitous.
19. They also claim under Article 8 of the Convention that, on account of their forced displacement from Talish and inability to use their home, their right to respect for family life and home had been infringed.
20. The applicants further claim that their property was damaged as a result of the shelling, a complaint falling under Article 1 of Protocol No. 1 to the Convention.
21. Invoking Article 13 of the Convention in conjunction with Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1, they maintain that there was no effective remedy in Azerbaijan for their complaints.
22. Finally, under Article 14 of the Convention in conjunction with Articles 2, 8 and 13 of the Convention and Article 1 of Protocol No. 1, the applicants allege that the military attacks had been directed against Armenians due to their ethnic and national origin.
QUESTIONS TO THE PARTIES
1. Do the facts of which the applicants complain in the present case fall under the jurisdiction of Azerbaijan?
2. Have the applicants had at their disposal an effective domestic remedy for their complaints, within the meaning of Article 13 of the Convention? If so, have they exhausted this remedy, as required by Article 35 § 1 (see, for instance, Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 115-120, ECHR 2015)?
3. Were the applicants’ lives threatened in the present case and, if so, was their right to life, ensured by Article 2 of the Convention, violated? In particular:
(a) Was the force used in compliance with the Convention or international humanitarian law?
(b) What types of weapons were used by the Azerbaijani armed forces during the clashes in April 2016?
(c) Were specific targets pre-determined and, if so, which were these targets? Was the applicants’ property or the area in which the family used to live a target and, if so, why?
(d) Were the military operations planned and organised in such a way as to avoid or minimise as far as practicable any injury to the civilian population and any damage to private property? If so, what were the precise precautions taken?
4. Were the applicants subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, as a consequence of the military operations and their effects?
5. Has there been an interference with the applicants’ right to respect for their family life or home, within the meaning of Article 8 § 1 of the Convention? If so, was that interference justified in terms of Article 8 § 2? In particular, did the applicants have to leave and stay away from their home due to the clashes in April 2016 and, if so, for how long were they unable to return?
6. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference justified?
7. 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?
APPENDIX
No.
Applicant’s Name
Birth year
Nationality
1
Garik OHANYAN
1978
Armenian
2
Yeraz OHANYAN
1981
Armenian
3
Kamo OHANYAN
1999
Armenian
4
Kristine OHANYAN
2005
Armenian
5
Tamara OHANYAN
2009
Armenian
6
Syuzanna OHANYAN
2010
Armenian
7
Ruzanna OHANYAN
2013
Armenian
8
Amalya OHANYAN
1954
Armenian
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