Communicated on 1 July 2020 Published on 20 July 2020

FIFTH SECTION

Application no. 33050/18 Armen GHAZARYAN and Astghik BAYRAMYAN against Azerbaijan lodged on 17 July 2018

STATEMENT OF FACTS

The applicants, Mr Armen Ghazaryan and Ms Astghik Bayramyan , are Armenian nationals who were born in 1959 and 1958, respectively , and live in Berdavan . They are represented before the Court by Mr Ara Ghazaryan and Mr Artur Ghazaryan , lawyers practising in Yerevan , and Ms Meri Baghdasaryan , a non-practising lawyer .

The facts of the case, as submitted by the applicants, may be summarised as follows.

During the night of 15 July 2018 the applicant’s son, Karen Ghazaryan, born in 1984, left the home where he lived with the applicants. The home, a two-story house, is in the village of Berdavan which is situated just 2.7 km from the border to Azerbaijan. The house is on the edge of the village, closest to the border, where the borderline is not clearly marked. According to the applicants, their son was last seen at around 2.30 a.m. when he went down to the kitchen to drink water. In the morning he was not in his room. Left in the room were his mobile phone, wallet and cigarettes, things without which he would normally never leave home. The weather was bad throughout the night, with strong winds and heavy rain, and there was a power outage in the village. The applicants thought that he might have gone to check the power station.

During the following morning the Ministry of Defence of Azerbaijan announced that an armed “diversionist” group had attempted to enter the territory of Azerbaijan and that an Armenian spy, Karen Ghazaryan, had been arrested. A photo of Mr Ghazaryan, dressed in a black military uniform and a black cap and with black face paint, was disseminated by Azerbaijani media. The applicants claim that their son was not dressed in such clothes when he left the home.

Further on 15 July 2018 spokespersons of the Armenian police and the Armenian Ministry of Defence made statements to the effect that Mr Ghazaryan had never served in the armed forces. In the latter statement it was also mentioned that the Minister of Defence, in his capacity as president of the Commission on Prisoners of War, Hostages and Missing Persons, had requested the Yerevan office of the International Committee of the Red Cross (ICRC) to make efforts to bring about the return of Mr Ghazaryan.

On 16 July 2018 a spokesperson of the Armenian Ministry for Foreign Affairs reiterated that Mr Ghazaryan had no connection with the Armenian army. Due to mental health problems he had never been conscripted.

On the same day the head of Berdavan village stated that there was an old road leading to the border and that Mr Ghazaryan, whose mental state was known to everyone in the village, had probably walked down that road and accidentally crossed the border.

On 17 July 2018 the applicants requested the Court to apply Rule 39 of the Rules of Court and to order the Government of Azerbaijan to take measures to protect their son’s health and to arrange for his return to Armenia. The same day the duty judge decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Azerbaijan that they should take all the necessary measures to protect the life and physical integrity of Mr Ghazaryan. He further decided to request the Government, under Rule 54 § 2 (a), to submit information about the place and the conditions in which Mr Ghazaryan was held and as to whether any criminal proceedings had been instituted against him. If there were such proceedings, they were requested to provide all the relevant details and documents.

On 30 and 31 July 2018 the Armenian National Security Service interviewed several people about the disappearance of Karen Ghazaryan, including the applicants, his cousins, his childhood friends, a nurse and two neighbours. On 13 August it opened a criminal investigation on the suspected illegal crossing of the border and kidnapping of Karen Ghazaryan.

On 3 August 2018 the PanArmenian.net news portal published an article which stated that representatives of the Baku office of the ICRC had visited Mr Ghazaryan in captivity. The Yerevan office further told the applicants that they had handed over a letter from them to him, who had not written a reply.

By submissions of 14 August and 12 November 2018 the Government of Azerbaijan responded to the Court’s request for information. They submitted the following. Mr Ghazaryan had been apprehended on 15 July in Kamarli village, about 6 km inside the territory of Azerbaijan. He had been placed under disciplinary arrest by order of the deputy commander of the relevant military unit. On 19 July the Military Prosecutor’s Office had initiated criminal proceedings concerning an illegal crossing of the border and attempted terrorism, sabotage and murder. Witness statements had indicated that, at around 5 a.m. on 15 July, local shepherds had noticed Mr Ghazaryan moving from the border in the direction of the town of Gazakh . They had alerted military servicemen who had apprehended him at approximately 7 a.m. On 19 July the Military Prosecutor’s Office had appointed defence counsel and an interpreter for Mr Ghazaryan. On 21 July the Gazakh District Court had ordered his pre-trial detention for four months. Mr Ghazaryan was held in the detention facility of the State Security Service in Baku. The Government also stated that the applicant’s medical condition did not require any special treatment or care.

In the decisions on the initiation of criminal proceedings and on pre-trial detention the following conclusions were drawn. Mr Ghazaryan had been secretly recruited in December 2016 by a named official of the Armenian National Security Service and had received training on firearms, explosives and ammunition at the end of 2017 in the Noyemberyan area south of Berdavan . On the evening of 14 July 2018 he had been given instructions to carry out explosions in Gazakh . The purpose was to undermine public security, to spread panic among the population, to commit mass killings and other damage to the health of the population, to weaken the military and economic security of Azerbaijan and to destroy enterprises and infrastructure, all in the name of national and religious hatred and hostility. He had been equipped with a pistol, several explosive devices, other military equipment and ammunition and a set of black clothes and had been accompanied by two other persons who had not been identified. They had crossed the mined border area at about 1 a.m. on 15 July. Before being apprehended, Mr Ghazaryan had hid the military equipment under a bush near Kamarli village. Mr Ghazaryan had been questioned at the hearing concerning his pre-trial detention, where he had reportedly confirmed that he had been instructed by National Security Service officials and had been given the equipment mentioned, which he had hid after crossing the border when he had noticed that he had been spotted by civilians. According to the record of his statement, the aim of the operation was to set off an explosion at the central marketplace in Gazakh .

In September 2018 the second applicant sent a letter to the Prosecutor-General of Azerbaijan, requesting an opportunity to communicate with and visit her son, alternatively to talk with his defence counsel. Because of the lack of diplomatic and postal links between Armenia and Azerbaijan, the letter was sent via the applicants’ son-in-law in the United States. No answer to the letter has been received.

At a meeting in November 2018 between representatives of the Ministry of Justice of Armenia and the ICRC, the latter institution stated that it regularly visited Mr Ghazaryan in detention.

On 19 November 2018 the Armenian National Security Service asked for legal assistance from the Azerbaijani Prosecutor-General in relation to the Armenian criminal investigation opened on 13 August 2018 , referring to the Commonwealth of Independent States (CIS) Convention of 22 January 1993 on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases . In what appears to be a reply to this request, the Prosecutor-General, in February 2019, sent a letter to the CIS Coordinating Council, stating, in general terms, that Azerbaijan was ready to restore diplomatic relations with Armenia and co-operation between the Prosecutors-General if Armenia would end its occupation of Azerbaijani territory.

According to news reports published by Azerbaijani news agency Report , the trial against Karen Ghazaryan started on 20 November 2018 before the Military Court of Ganja .

On 27 February 2019 the Military Court convicted Mr Ghazaryan of conspiracy to carry out sabotage and terrorist attacks on the territory of Azerbaijan. He was sentenced to 20 years’ imprisonment.

According to medical records submitted by the applicants, Karen Ghazaryan was in 2013 diagnosed with a mental and behavioural disorder brought on by excessive consumption of alcohol. His disorder is characterised by hallucinations, perceptual distortions, delusions, psychomotor disturbance, and abnormal affect. He was admitted to a mental health unit for nine days in July 2013 and for another 18 days in June/July 2014. When not in institutional care, he has been taking prescription medicine to stabilise his condition. Often the medicine has been ministered by the applicants, who have mixed it with his food.

The applicants submit that they have been in regular contact via Skype with a medical doctor of the ICRC office in Baku. While initially doubting that Mr Ghazaryan has a mental disorder and stating that he was healthy and did not need medication, the doctor has allegedly, since the beginning of 2019, expressed concerns about Mr Ghazaryan’s mental state as he has not eaten properly and has lost considerable weight, as he stays in his cell and refuses to go out for a walk and as he once refused to accept a parcel sent by the applicants. The ICRC doctor had informed the applicants that their son had been examined in January 2019 by Azerbaijani doctors who had concluded that he was in a “reactive state”. The applicants later requested that he undergo an independent medical examination. This request had been passed on to the Azerbaijani detention authorities by the ICRC doctor. At a meeting with an ICRC doctor in May 2019 the applicants were told that their son’s mental state was worrisome. However, on 10 January 2020, when the applicants had their latest meeting with ICRC representatives, they were told that the son’s state of health was assumed to be alright and that he did not receive any medication.

The applicants have not been able to communicate directly with their son. On 17 July 2019 they submitted a written request to the prison where he is serving his sentence, asking for permission to talk to him on the telephone. No response has been provided yet. The applicants have also unsuccessfully tried to contact their son’s defence counsel in Azerbaijan.

COMPLAINTS

1. The applicants contend that their son, Karen Ghazaryan, may have been exposed to a life-threatening situation, taking into account, inter alia , his incommunicado detention, the lack of access to a lawyer, his portrayal as a military prisoner and enemy in an environment of hostile sentiments towards Armenians in Azerbaijan and his mental disability for which he could not be given his prescribed medicine. The applicants therefore claim that, in respect of their son, there has been a breach of Article 2 of the Convention.

2. On the grounds presented above under Article 2, the applicants also contend that their son has been subjected to ill-treatment in violation of Article 3 of the Convention. In addition, as he has not had access to any remedies in Azerbaijani detention, he would not be able to challenge in court any act of ill-treatment. Moreover, in respect of themselves, the applicants assert that they have been and still are suffering from mental anguish and distress, in violation of Article 3, as they learnt that their son was captured as an alleged military prisoner and as they know about previous such cases which ended in the captives’ death or illness.

3. The applicant s further complain under Article 5 §§ 1, 3 and 4 of the Convention that their son has been kept under incommunicado detention since 15 July 2018, which is unlawful under the Criminal Procedure Code of Azerbaijan. Furthermore, he had not been brought promptly before a judge or other official authorised to exercise judicial power and had not been given an opportunity to challenge the lawfulness of his detention.

4. The applicants also argue that their son’s trial was in flagrant denial of justice and thus amounted to a violation of Article 6 § 1 of the Convention. In this respect, they allege, in particular, that the trial was conducted incommunicado with their son unable to communicate with his defence counsel and participate in the proceedings. Basing themselves on a short video published by an Azerbaijani news portal, they state that the son was placed in glass cage accompanied only by security guards, with his counsel on the outside and no indication of an interpreter being present.

5. Under Article 8 of the Convention, the applicants assert that by disseminating pictures in the local media of their son in military-style outfit, whereas he was purportedly dressed in civilian clothes when he left the family home, the Azerbaijani authorities distorted their son’s image to portray him as a “saboteur” caught during military operations.

6. In respect of the above alleged breaches of their son’s and their own rights, the applicants further maintain that there was no effective remedy, in breach of Article 13 of the Convention .

7. Moreover, in conjunction with all of the above provisions of the Convention, the applicants claim, under Article 14, that the rights of their son were violated due to his ethnic Armenian origin.

8. Finally, the applicants maintain that their son’s right to individual petition under Article 34 of the Convention has been violated. They point out that he is in an extremely vulnerable position due to his mental health condition and the fact that he has been arrested and prosecuted and is currently serving a long prison sentence in a foreign country with no diplomatic relations with his own country. Despite this, the Government of Azerbaijan have not provided the applicants with the necessary information about the proceedings against their son or his health status. In particular, following their submissions to the Court on 14 August and 12 November 2018 of certain documents and a statement that the son did not require any special medical care, the Government have not provided any further information on the criminal case or any health updates. Instead, the only sources of information available to the applicants have been some Azerbaijani media reports and the occasional contacts with ICRC representatives.

QUESTIONS TO THE PARTIES

1. Has the applicants’ son’s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, has he been exposed to a life-threatening situation during his detention, trial and imprisonment, having regard to his mental disability and the alleged hostile sentiments towards Armenians in Azerbaijan?

2. Having regard to the same circumstances, has the applicants’ son been subjected to torture or to inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?

3. Having regard to the same circumstances as well as the limited information available to the applicants concerning what has happened to their son since his capture and in regard to his state of health, have the applicants been subjected to inhuman or degrading treatment, in breach of Article 3?

4 . H as the applicant s’ son been deprived of his liberty in breach of Ar ticle 5 § 1 of the Convention? In particular, has his detention been in compliance with the rules of domestic law?

5 . Was the applicants’ son brought promptly before a judge or other officer authorised by law to exercise judicial power, as required by Article 5 § 3 of the Convention?

6. Did the applicant s’ son have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?

7. Did the applicant ’s son have a fair hearing in the determination of the charges against him , in accordance with Article 6 § 1 of the Convention? In particular, was he able to defend himself efficiently with the assistance of legal counsel and an interpreter , as required by Article 6 § 3 (c) and (e) of the Convention?

8. Has there been an interference with and a violation of the applicant ’ s son’s right to respect for his private life, within the meaning of Article 8 of the Convention , by virtue of the dissemination in local Azerbaijani media of pictures of him dressed in a military-style outfit?

9. Have the applicant s and their son had at their disposal effective domestic remedies for the Convention complaints, as required by Article 13 of the Convention?

10. Did the applicant s’ son suffer disc rimination in the enjoyment of his Convention rights on the ground of his Armenian origin , contrary t o Article 14 of the Convention read in conjunction with Article s 2, 3, 5, 6, 8 and 13 ?

11. Has there been any hindrance by the respondent State in the present case with the effective exercise of the applicants’ son’s right of petition as guaranteed by Article 34 of the Convention?

12. Finally, t he Government are requested to provide all relevant information and documents concerning the case, including any decisions or other documents concerning the initial arrest of Karen Ghazaryan, the report of the criminal investigation against him, any submissions filed on his behalf, the minutes of the trial, the judgment given by the Military Court, any appeal against the judgment and any decision or judgment taken following such an appeal as well as medical records or statements concerning him, all documents in both the original and English translation.