Published on 29 April 2024
FIFTH SECTION
Application no. 49955/20
Hranush SHAHBAZYAN
against Azerbaijan
lodged on 14 November 2020
communicated on 9 April 2024
STATEMENT OF FACTS
1. The applicant, Ms Hranush Shahbazyan, is an Armenian national who was born in 1980 and lives in Masis, Armenia. She is the wife of Mr Lyudvig Mkrtchyan, an Armenian national born in 1969, who was captured by the Azerbaijani armed forces on 20 October 2020. She is represented before the Court by Mr A. Zeynalyan and Ms S. Sahakyan, lawyers practising in Yerevan, Armenia, Mr P. Kalfayan, a lawyer practising in Champignie, France, and Mr W. Bourdon, a lawyer practising in Paris, France.
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.
4. On 26 October 2020 a video emerged in Azerbaijani media which showed a group of about eight Armenian soldiers, including Mr Mkrtchyan, lying on the ground, blindfolded, with their hands and feet tied. The Azerbaijani soldiers in the video were dragging the captives around and were kicking them and prodding their bodies with metal rods, demanding information. The applicant was able to identify her husband by his appearance and voice. She also noted that he had wounds on the abdomen.
5. A request for an interim measure was submitted on 14 November 2020. On 19 November the Court granted the request and decided to indicate to the Government of Azerbaijan, under Rule 39 of the Rules of Court, to ensure respect for Mr Mkrtchyan’s Convention rights and to provide him with necessary and appropriate medical treatment.
6. On 20 November 2020 the International Committee of the Red Cross (ICRC) informed the applicant that they had visited her husband.
7. By a letter of 3 December 2020 the Azerbaijani Government informed the Court that Mr Mkrtchyan had been captured as a prisoner of war. They stated that prisoners of war who are captured and held by Azerbaijan are treated in accordance with the rules of international humanitarian law and gave the following general information in regard to Mr Mkrtchyan and many other acknowledged captives:
“To ensure their safety and well-being they were brought to Baku and placed under the supervision of the security authorities of the Republic of Azerbaijan. Their safety, medical treatment and adequate detention conditions are ensured. Domestic authorities have received no complaints from the above individuals regarding the treatment and conditions they are currently held. They are provided with adequate food, clothes, bedding and are under the supervision of the medical personnel. Their conditions and place of detention are equivalent to pre-trial detention conditions under the domestic legal regime. The medical certificates in respect to the above individuals will be provided shortly.”
No medical certificates were provided but, on 15 December, the Azerbaijani Government submitted a photo of the captured Mr Mkrtchyan and stated as follows:
“During the examination upon admission a bullet wound was found in the left hip and left sacrum. Specialized medical care was provided and aseptic dressing was applied. Upon the last examination, his condition is satisfactory. The result of the Covid-19 test is negative.”
8. Further requests for interim measures were submitted. On 23 February 2021 and 2 March 2022 the applicant requested an indication for the Azerbaijani Government to allow meetings in Azerbaijan between her legal representatives and Mr Mkrtchyan. These requests were rejected as the interim measure sought was considered to fall outside the scope of Rule 39. On 4 June 2021 the Armenian Government requested the Court to indicate to the Azerbaijani Government to immediately release Mr Mkrtchyan and four other captives. Also this request was rejected.
9. Criminal proceedings were initiated against Mr Mkrtchyan in Azerbaijan. He was indicted on 20 May 2021 and the first court hearing was held on 2 June. One of the charges against him was that he had tortured Azerbaijani captives during and after the first Nagorno-Karabakh war in the early 1990s. Mr Mkrtchyan confirmed that he had participated in that war but denied having harmed any Azerbaijanis; he pleaded guilty only to a charge of having illegally crossed the state border of Azerbaijan.
10. On 2 August 2021 Mr Mkrtchyan was convicted by the Military Court in Baku. Having examined the testimony of many Azerbaijani witnesses, heard during the preliminary investigation or in court, the court found him guilty under the Criminal Code of Azerbaijan of 16 counts, amongst them arrest or imprisonment of persons contrary to international law (Article 112), torture (Article 113), infringement of laws and customs of war, causing deaths or serious harm to the health of protected persons (Article 115.3), premeditated homicide motivated by national, racial or religious hatred (Article 120.2.12), illegal acquisition, smuggling, storage and carrying of firearms and ammunition (Articles 206.3 and 228.2), creation of an illegal armed group (Article 279.1), attacks on persons by an illegal armed group, causing deaths or other serious consequences (Article 279.3), and illegal crossing of the state border of Azerbaijan by an organised group through the threat or use of physical force (Article 318.2). He was sentenced to 20 years’ imprisonment, calculated from his capture on 20 October 2020.
11. On 9 February 2022 the Azerbaijani Government submitted to the Court medical documents pertaining to Mr Mkrtchyan, including a certificate of his first medical check-up on 29 October 2020, his medical record with entries from October 2020 to February 2022 and the analyses of blood and urine samples in November 2020, October 2021 and January 2022. Pain from the bullet wound mentioned above (at paragraph 7) is noted in the record entries from 2020, whereas the entries from late 2021 and 2022 state that there were no health complaints.
COMPLAINTS
1. Referring to the available photo and video material and claiming that there is a state practice of torture and other violations of the human rights of Armenians by Azerbaijan, the applicant asserts that Mr Mkrtchyan’s rights under Article 3 of the Convention have been violated. In this respect, she states that, although Azerbaijan has declared that captives are treated in accordance with the rules of international humanitarian law (IHL) and that their safety and medical treatment are ensured, the Azerbaijani Government initially provided no medical documents on her husband. Other repatriated Armenian prisoners of war have given testimony of the use of torture and inhuman treatment against captives, including Mr Mkrtchyan. Her husband have also been held in incommunicado detention for a long period of time with no access to independent mechanisms except for one visit from the ICRC, leaving him without protection against treatment contrary to Article 3.
2. The applicant also claims that she is being subjected to mental suffering amounting to a violation of Article 3 as a consequence of the limited information on her husband, the impossibility of communicating with him and the fact that he is detained in a hostile environment where his life and well-being are under threat.
3. The applicants also submit that, under IHL, Mr Mkrtchyan should have been released without delay after the cessation of hostilities. As this has not happened, he is deprived of his liberty in violation of IHL and Article 5 of the Convention. Moreover, his conviction – and hence his continued detention – is unlawful under IHL as he is entitled to combatant privilege and immunity due to his involvement in an international armed conflict.
4. It is further contended that Mr Mkrtchyan did not have a fair trial. In particular, the tribunal convicting him was not independent or impartial given the politicised and nationalistic nature of the charges and as judges of Azerbaijani military tribunals have a very low level of independence. The lack of independence is also shown by the fact that his statements in defence were outlined in only a few sentences in the judgment, whereas the testimony of alleged Azerbaijani victims was transcribed practically word for word. Moreover, the judgment was not adequately reasoned, not specifying the murders with which Mr Mkrtchyan was charged, and presented evidence in an abstract, automatic and stereotypical manner. Also, no effective legal representation was provided, as he had no right to choose a defence lawyer but instead had to rely on state-appointed lawyers who were not independent and apparently did not submit evidence or took other action in his defence. These issues fall under Article 6 of the Convention.
5. The applicant also complains that videos in which Mr Mkrtchyan is shown being subjected to torture and degrading and inhuman treatment were disseminated in Azerbaijani media for propaganda purposes. Allegedly, this violated his right to respect for his private life under Article 8 of the Convention.
6. In respect of the alleged violations of the Convention, the applicant maintains that her husband has not had an effective remedy, in breach of Article 13. She states that no legal remedies in Azerbaijan are accessible to ethnic Armenians.
7. She also claims, under Article 14, that the alleged violations in the case were due to her and her husband’s ethnic and national origin.
8. Finally, the applicant contends that the respondent Government failed to comply with the interim measure indicated by the Court under Rule 39 by not submitting the medical information requested by the Court. This allegedly hindered the effective exercise of the right of individual application, in violation of Article 34 of the Convention.