Published on 29 April 2024
FIFTH SECTION
Application no. 55457/20
Andranik TOSUNYAN and Others
against Azerbaijan
lodged on 18 December 2020
communicated on 9 April 2024
STATEMENT OF FACTS
1. A list of the applicants is set out in the appendix. The thirteen applicants are relatives of nine Armenian soldiers who were captured by the Azerbaijani armed forces in December 2020 and four of the soldiers in question. They are represented before the Court by Mr A. Zeynalyan and Ms S. Sahakyan, lawyers practising in Yerevan.
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 11 December 2020 the Azerbaijani armed forces launched a military offensive in and around the town of Hadrut in the Khojavand (Azerbaijani name) or Martuni (Armenian) district in Nagorno-Karabakh, an area that had remained under Armenian control after the ceasefire. Two days later the Azerbaijani forces had encircled and captured 62 Armenian servicemen. Another approximately 30 servicemen were handed over to the Russian peacekeeping forces.
5. In a letter of 26 December 2020 addressed to the United Nations’ Secretary-General, the Azerbaijani Minister for Foreign Affairs confirmed that 62 servicemen had been detained “as a result of a joint anti-terror operation of the State Security Service and the Ministry of Defence of the Republic of Azerbaijan” and that they were under investigation by the relevant institutions of Azerbaijan. In the letter, he further stated:
“Following the return of Lachin into Azerbaijani control the group was dislocated into areas deeper inside [the] territory of Azerbaijan to organize terrorist activities against the military personnel of the Armed Forces of Azerbaijan and civilians engaging in post-conflict rehabilitation and reconstruction activities in the areas concerned. Five military servicemen of the Armed Forces of Azerbaijan and one civilian personnel member of an Azerbaijani mobile telecommunication company were killed, and two more servicemen were wounded, as a result of a series of terrorist attacks conducted by the sabotage group in the liberated areas of the Khojavand district.”
6. Among the captured servicemen were nine relatives of the applicants who had all served in the same group, stationed near the village of Chaylaggala (Azerbaijani) or Khtsaberd (Armenian), close to Hadrut town:
– Levon Tosunyan, born in 1991,
– Samvel Shukhyan, born in 1999,
– Grigor Saghatelyan, born in 1992,
– Haykaz Hovhannisyan, born in 1992,
– Karen Vardanyan, born in 1977,
– Edik Harutyunyan, born in 1975,
– Hrayr Herabyan, born in 1992,
– Hrayr Tadevosyan, born in 1996, and
– Andranik Manukyan, born in 1990.
Two of them (Messrs Herabyan and Tadevosyan) had participated in the war starting on 27 September 2020 whereas the other seven had been conscripted into the army on 27 November 2020.
7. On 17 December 2020 a video was disseminated on the internet in which Mr Manukyan, surrounded by Azerbaijani soldiers, was forced to state “Karabakh is Azerbaijan”.
8. Requests for interim measures were submitted on 18 and 19 December 2020 in the present case in respect of the nine above-mentioned soldiers and by the Armenian Government in the case Armenia v. Azerbaijan (I) (no. 42521/20) on behalf of the other 53 Armenian servicemen captured at the same time. On 21 December 2020 the Court granted these requests and decided to indicate to the Government of Azerbaijan, under Rule 39 of the Rules of Court, to ensure respect for the Convention rights of the captives and to provide them with necessary and appropriate medical treatment.
9. Criminal proceedings were later initiated against six of the servicemen concerned by the present application. No proceedings were taken against Messrs Vardanyan, Harutyunyan and Shukhyan; they were released from Azerbaijani detention and repatriated to Armenia on 28 January 2021 (the former two) and 4 May 2021 (the latter). Mr Manukyan was indicted but he was released and repatriated on 3 July 2021, before any judgment had been issued against him.
10. On 22, 23 and 29 July 2021 the remaining five captives were convicted by the Grave Crimes Court in Baku under Articles 228.3 (illegal acquisition, transfer, storage, transportation and carrying of weapons, their components, ammunition, explosives and devices by an organised group) and 318.2 (illegal crossing of the state border of the Republic of Azerbaijan by a group of persons by prior conspiracy or an organised group) of the Criminal Code of Azerbaijan. They were all sentenced to six years’ imprisonment. On 13 December 2023 they were released and repatriated to Armenia.
11. As a consequence of the successive repatriations of the nine captives as well as the 53 captives of the Hadrut group represented by the Armenian Government, the Court’s indications under Rule 39 have been lifted.
COMPLAINTS
1. Referring to an alleged state practice of torture and other violations of the human rights of Armenians by Azerbaijan, the applicants assert that the captives’ rights under Article 3 of the Convention were violated. In this respect, they state 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 provided no specific information on the captives in question in the present case. Other repatriated Armenian prisoners of war have given testimony of the use of torture and inhuman treatment against captives. The captives in the present case were also held in incommunicado detention for a long period of time and had no visits from the International Committee of the Red Cross (ICRC) or access to other independent mechanisms, leaving them without protection against treatment contrary to Article 3.
2. The nine applicants who are relatives of the captives also claim that they themselves were subjected to mental suffering amounting to a violation of Article 3 as a consequence of the lack of information on the captives, the impossibility of communicating with them and the fact that they were detained in a hostile environment where their life and well-being were under threat.
3. The applicants also submit that, under IHL, the captives should have been released without delay after the cessation of hostilities. As this did not happen, they were deprived of their liberty in violation of IHL and Article 5 of the Convention. Moreover, the conviction of five of the captives – and hence their continued detention – was unlawful under IHL as they were entitled to combatant privilege and immunity due to their involvement in an international armed conflict.
4. It is further contended that the five captives who were convicted in criminal proceedings did not have a fair trial. In particular, the tribunal convicting them was not independent or impartial given the politicised and nationalistic nature of the charges and the relevant judges’ previous involvement in politically motivated convictions of critics of the Azerbaijani regime and other politically sensitive trials. Moreover, the trials were not public but conducted behind closed doors; no effective legal representation was provided, as the accused 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 defence of the accused; no translation was made during the trial or the interpreter failed to translate the issues discussed; and the presumption of innocence was not respected. These issues fall under Article 6 of the Convention.
5. The applicants also complain that photos of the captives as well as the video in which Mr Manukyan was forced to say “Karabakh is Azerbaijan” were disseminated in Azerbaijani media for propaganda purposes. Allegedly, these incidents violated Articles 8 and 10 of the Convention, respectively.
6. In respect of the alleged violations of the Convention, the applicants maintain that they have not had an effective remedy, in breach of Article 13. They state that no legal remedies in Azerbaijan are accessible to ethnic Armenians.
7. They also claim, under Article 14, that the alleged violations in the case were due to their and the captives’ ethnic and national origin.
8. Finally, the applicants contend that the respondent Government failed to comply with the interim measure indicated by the Court under Rule 39, which hindered the effective exercise of their right of individual application, in violation of Article 34 of the Convention.
APPENDIX
Application no. 55457/20
No.
Applicant’s Name
Date of birth
1.
Andranik TOSUNYAN
21/03/1990
2.
Karlen BALOYAN
12/02/1995
3.
Hrach HERABYAN
05/05/1967
4.
Tigran MANUKYAN
23/02/1964
5.
Seyran SAGHATELYAN
08/01/1967
6.
Artur SHUKHYAN
27/04/1971
7.
Vardan TADEVOSYAN
25/07/1963
8.
Avetik TOSUNYAN
28/11/1987
9.
Flora VASILYAN
07/02/1996
10.
Edik HARUTYUNYAN
01/10/1975
11.
Andranik MANUKYAN
27/11/1990
12.
Samvel SHUKHYAN
27/04/1999
13.
Karen VARDANYAN
04/07/1977