Communicated on 10 March 2017

FIFTH SECTION

Application no. 32427/16 Artush PETROSYAN against Azerbaijan lodged on 25 April 2016

STATEMENT OF FACTS

The applicant, Mr Artush Petrosyan, is an Armenian national, who was born in 1957 and lives in Chinari. He is represented before the Court by Ms K. Gevorkyan, Mr A. Zeynalyan and Ms L. Alaverdyan, lawyers practising in Yerevan, and Mr V. Grigoryan, a lawyer practicing in London.

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

The applicant ’ s son, Mr Karen Petrosyan, was born in 1981 and was living with the applicant and other members of the family in Chinari in the Tavush province of Armenia, close to the border to Azerbaijan. In the morning of 7 August 2014, while collecting firewood in a nearby grazing area, he got lost and crossed the border and ended up in the village of Aghbulag in Azerbaijan. In civilian clothing and bearing no arms, he was offered tea by a local resident and had a conversation with some of the other villagers. Later the Azerbaijani military came to the village, arrested him and took him away.

On the same day Azerbaijani media broadcast in television programmes and on the internet a video recording of Mr Petrosyan being interrogated, while standing on his knees with his hands cuffed and being restrained by soldiers. The video showed wounds on his face. The interrogating army general accused him of being a soldier, having killed civilians, incited hatred and caused aggression. Being shown pictures of him in military uniform, allegedly found on his mobile phone together with phone numbers of his military commanders, he was forced to state that he was a military serviceman.

On 8 August 2014 the Azerbaijani Ministry of Defence announced in a news report that Mr Petrosyan had died unexpectedly, according to preliminary information due to “acute cardio-pulmonary and myocardial failure”. Experts at the Ganja regional branch of the Ministry of Defence anatomic pathology centre were reportedly determining the cause of his death. The news report further stated that Mr Petrosyan had been a member of an Armenian reconnaissance and sabotage group. While four other members of the group had allegedly been killed when they attempted to cross the Azerbaijani-Armenian contact line in Azerbaijan ’ s Tovuz region, Mr Petrosyan had been detained as a result of the military action.

On 13 August 2014 the Department of Criminal Investigation in the Tavush province of Armenia opened a crimi nal investigation under section 2, points 3, 5, 7 and 13, of Article 104 of the Criminal Code of Armenia concerning murder combined with kidnapping or hostage-taking, committed with particular cruelty and with motives of national, racial or religious hate or fanaticism.

Efforts were made by Armenia and the International Committee of the Red Cross (ICRC) to have Mr Petrosyan ’ s body returned. Representatives of the US State Department and the French Ministry for Foreign Affairs expressed their concern about the failure to return the body and give information on the circumstances surrounding the death.

According to Azerbaijani media reports on 22 August 2014, the Azerbaijani Ministry for Foreign Affairs reacted to the criticism expressed by the United States and France by claiming, inter alia , that Mr Petrosyan ’ s death had been “transparently investigated by medical experts and the ICRC was immediately informed”. The applicant asserts that the results of that investigation have not been made public nor have they been communicated to him.

On 11 September 2014 the applicant lodged an application with the Court (no. 61737/14; later struck out by a decision of 17 November 2015 due to lack of correspondence from the applicant) in the same matter as the present case. The Court requested, under Rule 54 § 2 (a), the Azerbaijani Government to explain the Azerbaijani authorities ’ official position in connection with the repatriation of the body of Mr Petrosyan and to provide information on the reasons for the delay in returning the body to his relatives.

By a letter of 19 September 2014 the Azerbaijani Government confirmed the information contained in the news report of 8 August 2014 as well as the material allegedly found on Mr Petrosyan ’ s mobile phone. They further stated that the Azerbaijani Ministry of Defence had offered Armenia an exchange, with the assistance of the ICRC, of five Armenian captives, all members of the same family, and the body of Mr Petrosyan for two Azerbaijanis in Armenian detention and the body of one Azerbaijani killed by the Armenian armed forces (all captured and killed, respectively, in July 2014). According to the Azerbaijani Government, the Armenian Ministry of Defence had replied through the ICRC that they would return only the body of the killed Azerbaijani in exchange for the five Armenian captives and Mr Petrosyan ’ s body. The Azerbaijani side had rejected this, insisting on an “all-for-all” approach.

On 10 October 2014 Mr Petrosyan ’ s body was repatriated in a severely decomposed state.

On 9 December 2014 the results of a forensic medical examination, performed on 3 December, were presented in an expert opinion. The following conclusions were drawn:

“The following bodily injuries were observed as a result of the post-mortem examination of Karen Petrosyan ’ s corpse: large zones of contusions on the chest/thorax, lumbar region, both carpa/wrists, soft tissues and muscles of the lower limbs; fractures of 2nd and 6th ribs in a vertical line from the left nipple; and fractures of 1st, 4th, 5th, 6th and 10th ribs in a vertical line from the front of the armpit. All injuries were inflicted while he was still alive by hard and blunt objects of small surface. It was impossible to detect with certainty the cause of Karen Petrosyan ’ s death, as the cadaver was presented for examination in a state of severe suppurative alterations, when the soft tissues were almost not preserved and the internal organs were missing, which constitutes a ground for concluding that K. Petrosyan might have suffered numerous bodily traumas when alive, which in combination with those detected as a result of the current re-examination, could have caused his death, and which were consistent with life-threatening serious bodily injuries and could have directly caused his death, in particular, such injuries could be considered closed, blunt cranial trauma with severe brain pathology – skull fracture, closed, blunt injuries to the cervical, thoracic, abdominal regions, cut, cut-pierced wounds, and firearm injuries with damage to vessels, nerves, which could cause severe haemorrhagic bleeding and traumatic shock. So far as the bodily injuries detected on Karen Petrosyan ’ s corpse during post-mortem examination are concerned, all injuries had characteristics of being inflicted within a short period while he was still alive. Hence, it is impossible to assess the degree of harm caused by each of them taken separately, especially as each of them, taken separately, had eventually been a source of traumatic shock, and in particular, the multiple trauma to the ribs usually causing severe pleuropulmonary shock, which according to the degree of dangerousness for health, is classified as bodily injury causing serious health damage. Hence, all bodily injuries detected during the re-examination of K. Petrosyan ’ s corpse taken separately, as well as in combination, could be qualified as life-threatening serious bodily injuries that could have directly caused death. The commission finds it expedient to note that the state of putrefaction of K. Petrosyan ’ s body, in which state it was transferred to the Scientific Research Center of Forensic Medicine of the Republic of Armenia Ministry of Healthcare, is untypical of cadavers interred for two months under natural conditions. Rather, this condition is more typical of situations where the cadaver has been subjected to artificial conditions, that lead to it being impossible to detect with certainty the cause of death as well as to collect evidence on other possible factors of external intervention, such as poisoning, electric shock, mechanical choking, rape (oral or anal), presence of semen in the latter case, etc. In this regard, it must be noted that more precise clarification of the results of the second post-mortem examination of Karen Petrosyan ’ s exhumed corpse would be possible if the expert opinion of the initial post-mortem examination and photos of the corpse were available; the latter are usually a compulsory component of post-mortem examinations under such circumstances as in the current case.

The forensic chemical examination conducted during the current post-mortem examination revealed that alcohol, drugs of the opioid alkaloid series, psychotropic substances, gasoline as well as diesel fuel were not detected in the specimens taken from the internal organs and muscles. In this regard, the commission conducting the examination notes that the forensic chemical examination of the second autopsy may not have detected residues of alcohol in the body due to advanced putrefaction. ...”

On 23 February 2015 the applicant requested the criminal investigator to put further questions to the experts who had conducted the forensic medical examination. Answers were given in an expert opinion of 9 April 2015.

Furthermore, on 19 March 2015 a forensic psychological examination of Mr Petrosyan ’ s behaviour and state of mind during the events was made on the basis of video recordings of his encounter with residents of Aghbulag village as well as his subsequent detention and questioning.

On 17 June 2015 the Armenian Prosecutor-General, at the applicant ’ s request, asked for legal assistance from the Azerbaijani Prosecutor-General in the investigation of the death of the applicant ’ s son, referring to the CIS (Commonwealth of Independent States) Convention of 22 January 1993 on Legal Aid and Legal Relations in Civil, Family and Criminal Cases. Specifically, information was requested as to whether criminal cases had been instituted in regard to Mr Petrosyan ’ s illegal border crossing and subsequent death and whether a post-mortem examination of his body had been performed. If such proceedings had been conducted, documents concerning the criminal case(s) as well as the report of forensic medical experts and tissue samples taken during the autopsy were requested.

On 22 October 2015 the Coordinating Council of the prosecutors-general of the member states of the CIS informed the Armenian Prosecutor-General that his request, delivered to the Azerbaijani Prosecutor-General, had been returned without consideration on the ground that there were no diplomatic relations between the two states. The applicant was informed of the Council ’ s letter on 24 November 2015.

In February 2016 the applicant applied directly to the Azerbaijani Prosecutor-General for the information and documents previously requested by the Armenian Prosecutor-General and asked that a criminal investigation be instituted in regard to his son ’ s death, in case such an investigation had not already been made. No answer has been forthcoming from the Azerbaijani Prosecutor-General.

COMPLAINTS

1. The applicant complains, under Article 2 of the Convention, that his son was murdered in Azerbaijani custody by means of decapitation. Allegedly, having had no signs of injuries when he left home in the morning of 7 August 2014 and during his encounter with residents of Aghbulag village later that day, the Azerbaijani assertions concerning the son ’ s death are manifestly wrong and misleading. Furthermore, there is no indication that there was any type of effective investigation carried out by the authorities of Azerbaijan into the circumstances of the death and the alleged ill-treatment of his son. They also failed to return the body for more than two months and refused to provide any information or legal assistance to the Armenian investigative authorities. The applicant therefore asserts that there were breaches of both the substantive and th e procedural aspects of Article 2.

2. Referring to the injuries on his son ’ s body, as noted in the reports of the Armenian forensic medical examination, as well as the video recording of his interrogation, the applicant further claims, under Article 3, that his son was tortured and ill-treated before he was killed. Having further regard to the above-mentioned procedural failures of the Azerbaijani authorities, both the substantive and the procedural aspects of Article 3 were violated.

3. Moreover, in respect of himself, the applicant asserts that he has been subjected to mental suffering in violation of Article 3, having to see the humiliating interrogation of his son on the internet, finding out about his murder and having to wait for more than two months for the handover of his body and then seeing it in a decomposed state.

4. The applicant claims that his son was arrested and detained by the Azerbaijani authorities without any legal ground and that none of the guarantees under Article 5 were respected.

5. Furthermore, the exposure in the media of the applicant ’ s son in a humiliating and offensive video recording of his interrogation as well as the delay in returning his body while, in the meantime, destroying the body by means of artificially accelerating its putrefaction allegedly involve violations of the son ’ s right to respect for his private life under Article 8.

6. In respect of the alleged violations of Articles 2 and 3, the applicant maintains that he did not have an effective remedy, in breach of Article 13. He asserts that his son was tortured and killed as part of a State-administered practice by Azerbaijani authorities.

7. Finally, in conjunction with Articles 2 and 3, the applicant claims, under Article 14, that the rights of his son were violated due to his ethnic Armenian origin.

QUESTIONS TO THE PARTIES

1. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention?

2. Was the applicant ’ s son deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty, which allegedly occurred between 7 and 8 August 2014, fall within any of the sub-paragraphs of this provision?

3. Was the applicant ’ s son informed, in a language which he understood, of the reasons for his arrest and of any charge against him, as required by Article 5 § 2 of the Convention?

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

5. Was the applicant ’ s son subjected to torture or to inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?

6. Has the applicant ’ s son ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case?

7. Having regard to the procedural protection from torture and inhuman or degrading treatment or punishment under Article 3 (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV) and the corresponding procedural protection under Article 2 (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was there an investigation opened by the authorities of Azerbaijan

a) in regard to the injuries allegedly sustained by the applicant ’ s son while being captured and held in detention in Azerbaijan, or

b) in regard to the circumstances of his death?

8. Given the circumstances surrounding the capture, detention, alleged ill-treatment and death of the applicant ’ s son and the handover of his body and the continuing uncertainty about the events leading to his death, has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3?

9. 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, or a violation of Article 3 of the Convention by virtue of his allegedly humiliating interrogation being broadcast by Azerbaijani TV and made available on the internet?

10. Has the applicant had at his disposal an effective domestic remedy for his Convention complaints under Articles 2 and 3, as required by Article 13 of the Convention?

11. Did the applicant ’ s son suffer discrimination 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 Articles 2 and 3?