C ommunicated on 18 November 2019

THIRD SECTION

Application no. 74573/16 Olya HAKOBYAN against Azerbaijan lodged on 1 October 2016

STATEMENT OF FACTS

1 . The applicant, Ms Olya Hakobyan, is an Armenian national, who was born in 1939 and lives in Mataghis . She is represented before the Court by Mr A. Ghazaryan, Ms Hasmik Harutyunyan , Ms Haykuhi Harutyunyan , Ms A. Melkonyan and Mr A. Zeynalyan , 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 applicant, may be summarised as follows.

1. The situation in Mataghis

4 . On 2 April 2016, at around 3 a.m., the residents of the “NKR” village of Mataghis , situated 4-5 kilometres away from the line of contact between the “NKR” and Azerbaijan, could hear and see explosions in Talish , located a little closer to that border. Later on the Azerbaijani army began shelling Mataghis , using artillery and rocket launchers. The bombardment lasted for several hours. Some residents left the village; others hid in shelters and cellars. Many houses, private homes as well as public buildings, were damaged and some villagers were injured, including the head of the village.

5 . According to a report drawn up on 26 September 2016 by the head of the Martakert region, the shelling of Mataghis was intense already at 4.30 a.m on 2 April. It targeted both public and private buildings as well as the village ’ s infrastructure and the main road connecting Mataghis and Talish . Damage was done to the hydropower plant, the water reservoir, the village school and the kindergarten, among other public installations. The evacuation of women, children and elderly was ordered later that morning, though many residents had already fled the village.

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 Mataghis and other affected areas of the “NKR”.

7 . An explosives technical report of 22 April 2016 stated that metal fragments found in the surroundings of residential houses in the village came from rockets launched by “Grad” multiple rocket launchers. Another such report of 5 May 2016 expressed that the fragments were probably exploded pieces from “Grad”-launched rockets and from artillery shells.

8 . The shelling of Mataghis continued sporadically until 5 April 2016, when a ceasefire agreement was reached between the warring parties. Nevertheless, there was further shelling on Mataghis at the end of April.

2. The circumstances of the applicant

9 . On 2 April 2016, at around 3.30 a.m., the applicant and her husband woke up at home from the sounds of the shelling of Talish . Realising that Mataghis were not under attack, they went back to sleep. However, when the bombardment of Mataghis started later that morning, an explosive fell near their house and shattered windows of their house. They then got up, got dressed and left the house. The applicant ’ s relative took them to Stepanakert by car.

10 . On 13 April 2016 the applicant was interviewed by the “NKR” police. On the same day the investigator decided to recognise the applicant as an injured party, noting that the shellfire had placed her at an immediate risk of physical harm.

11 . On 14 April 2016 the investigator of the “NKR” police decided to order an expert examination of the applicant ’ s house. This examination was carried out by experts of the “NKR” authority of forensic examinations. The experts noted, in a report of 20 May 2016, that the explosion on 2 April had destroyed the first-floor porch and a part of the wall of the house and damaged entrance doors, the garage door, windows and parts of the foundation of the house. In monetary terms, the damage was estimated at 665,400 Armenian drams (AMD; approximately 1,200 euros (EUR)) and the total cost, including repair work and the cost of alternative housing, at AMD 1,442,789 (approximately EUR 2,600).

12 . The applicant has 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 by the Azerbaijani army during the conflict, statements by Azerbaijani and “NKR” officials, and various documents concerning the shelling and destruction of public and private buildings of Mataghis and other residential areas of the “NKR” (i.e. site examination protocols, expert examination reports, and photographs). The individual documents comprise ownership certificates concerning her house, barn, plots of land and adjacent installations, aerial photographs of the property from Google Earth, the decision of 13 April 2016 to recognise the applicant as an injured party, the expert examination report of 20 May 2016, a document issued by the head of the village of Mataghis confirming her residence in the village and a document issued by the “NKR” police concerning her citizenship and birthplace.

COMPLAINTS

13 . The applicant complains, 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 her life and her survival had been fortuitous.

14 . She also claims under Article 8 of the Convention that, on account of her forced displacement from Mataghis , her right to respect for her family life and home had been infringed. Moreover, the quality of life in the village had dramatically deteriorated due to the damage done to public buildings and installations.

15 . Under Article 1 of Protocol No. 1 to the Convention the applicant complains that her house had been damaged as a result of the shelling.

16 . Invoking Article 13 of the Convention in conjunction with Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1, she maintains that there was no effective remedy in Azerbaijan for her complaints.

17 . 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 applicant alleges 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 applicant complains in the present case fall under the jurisdiction of Azerbaijan?

2. Has the applicant had at her disposal an effective domestic remedy for her complaints, within the meaning of Article 13 of the Convention? If so, has she exhausted this remedy, as required by Article 35 § 1 (see, for instance, Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 115-120, ECHR 2015)?

3. Was the applicant ’ s life threatened in the present case and, if so, was her 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 applicant ’ s property or the area in which she and her family 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. Was the applicant 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 applicant ’ s right to respect for her 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 applicant have to leave and stay away from her home due to the clashes in April 2016 and, if so, for how long was she unable to return?

6. Has there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the m eaning of Article 1 of Protocol No. 1? If so, was that interference justified?

7. Has the applicant suffered discrimination in the enjoyment of her Convention rights due to ethnicity or nationality or on any other ground contrary to Article 14 of the Convention?