Communicated on 10 November 2015

FIFTH SECTION

Application no. 35746/11 Mamikon SARIBEKYAN and Siranush BALYAN against Azerbaijan lodged on 10 June 2011

STATEMENT OF FACTS

The applicants, Mr Mamikon Saribekyan and Ms Siranush Balyan , are Armenian nationals, who were born in 1963 and 1971, respectively, and live in Ttujur . They are represented before the Court by Mr A. Ghazaryan , a lawyer practising in Yerevan.

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

In the morning of 11 September 2010 the applicants ’ son, Mr Manvel Saribekyan , born in 1990 and a resident of the village of Ttujur in the Gegharkunik province of Armenia, close to the border to Azerbaijan, went with his neighbours to the nearby forest to collect wood and look for stray livestock. At around 5 p.m. he lost his orientation in the fog and, as it appeared later, was captured by Azerbaijani border guards.

On 13 September 2010 the applicants reported to the police that their son was missing. The police conducted an investigation of the pasture site where he had last been seen and interviewed the applicants, two of the neighbours with whom he had left the morning he went missing and a few other witnesses. The police also sent a description of him to the regional police departments.

On the same day Azerbaijani media broadcast a report that the border forces had arrested an Armenian spy – or “saboteur” – while he was attempting to cross the border to commit a terrorist act, namely, to blow up a school. In one broadcast, Manvel Saribekyan was seen being interviewed by a reporter, saying that he had been trained in Armenia to carry out terrorist acts on the territory of Azerbaijan.

On 5 October 2010 the Azerbaijani ministry of defence and its military prosecutor announced that Mr Saribekyan had committed suicide by hanging himself in his detention cell. On 26 October the International Committee of the Red Cross (ICRC) delivered to Armenian authorities a death certificate that had been received from Azerbaijani authorities. On 4 November Mr Saribekyan ’ s body was handed over to Armenian authorities in a decomposed state.

On 5 November 2010 the Department of Criminal Investigation in the town of Chambarak , Gegharkunik province, opened a criminal investigation under section 2, points 5 and 13, of Article 104 of the Criminal Code of Armenia concerning murder committed with particular cruelty and with motives of national, racial or religious hate or fanaticism. An external examination of the body was carried out and a forensic medical examination was ordered. Later, the Prosecutor-General instructed the National Security Service to take over the case. During the ensuing investigation, the applicants and several other witnesses, who claimed to have seen the body shortly after its handover, attested that it had several marks of injuries and torture.

On 14 December 2010 the Armenian Prosecutor-General requested 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, the request asked that information be given as to whether any investigation of his death had been carried out by Azerbaijani authorities and, if so, that a copy of the materials of such investigation be provided.

On 21 December 2010 the results of the forensic medical examination were presented in a report. The following conclusions were drawn:

“The following injuries were discovered during the forensic examination of Mr Saribekyan ’ s body: fissure of semi-hard depression of the neck area; haemorrhages into clavipectoral nipple-shaped and neck muscles on both sides, right side of the head skin, both thyroid lobes, soft tissues of both brain lobes (temporal areas), medullary substance, right side of the chest, right lumber and rear surface of the left thigh, tissues and mucous membranes of the rectal area; partial lesion of the rectal wall. All of the above listed injuries were inflicted during life, of which the haemorrhages into the right adipose body of kidney and right side of the nipple-shaped muscles of chest, as well as haemorrhages into the segment lying between the medium and rear axillary lines had occurred up to one day prior to death. Haemorrhages into the right lumbus area, left thigh, rectum and its mucous membranes, as well as lesion of the rectal wall had been inflicted 1-2 days prior to death. The fissure caused by the compression of neck muscles, haemorrhage of both lobes of the thyroid as well the craniocerebral trauma, including haemorrhages of the head skin, soft brain membranes and brain tissues were inflicted immediately before death, of which the fissure, haemorrhages of neck muscles and both lobes of thyroid were caused by the neck compression with a semi-hard ring, while the other injuries were caused with blunt object(s) having a restricted surface. After-death scratches of the right temporal region of the head inflicted with blunt object(s) were also discovered.

During the forensic examination of Mr Saribekyan ’ s body, no gunshot injuries or closed-cut wounds were found.

Mr Saribekyan ’ s death was caused by mechanical asphyxiation as a result of compression of the neck organs with a ring, which is proved by the presence of the open, relatively slanting fissure caused by semi-hard squeezing, running front-to-back and bottom-to-top that was inflicted during life; haemorrhage of lower soft tissues and both thyroid lobes, lungs emphysema, hemorrhage of areas beneath the epicardium and mediastinum. Due to unavailability of data from the previous forensic examination, as well as records describing the appearance of the body at the site of its first discovery, it is impossible to determine the precise time of death. However, based on the degree of putrefaction as well as considering that the body had undergone autopsy and was maintained at low temperatures, it is possible that death had occurred within the timeline mentioned in the decision [of 5 November 2010 to open a criminal investigation, i.e. between 11 September and 5 October 2010].”

No reply to the investigative request of 14 December 2010 having been forthcoming from the Azerbaijani authorities, the Armenian Prosecutor-General extended the period of the pre-trial investigation on 27 December 2010 and on 1 March and 2 May 2011. The last decision extended the investigation until 5 July 2011.

On 5 April 2011 the Armenian Prosecutor-General asked for assistance from the chairman of the Coordinating Council of the prosecutors-general of the member states of the CIS in obtaining an answer to his request of 14 December 2010. The Coordinating Council responded by stating that it had asked the Azerbaijani Prosecutor-General to provide information on criminal investigations in Azerbaijan to both the Council and the Armenian Prosecutor-General. No reply was made to the Council ’ s request.

A second forensic medical examination was ordered by the Deputy Prosecutor-General on 21 June 2011. On 19 July its conclusions confirmed the results of the first examination.

The pre-trial investigation was temporarily suspended by a decision of 16 December 2011 due to the lack of response from the Azerbaijani Government to the request for legal assistance.

COMPLAINTS

1. The applicants complain, under Article 2 of the Convention, that their son died as a result of torture and intentional killing while in detention. The authorities of Azerbaijan failed to conduct an investigation into the circumstances of his death. They therefore claim that there were breaches of both the substantive and the procedural aspects of Article 2.

2. Referring to the Armenian forensic medical examinations, the applicants complain, under Article 3, that their son was also tortured and ill-treated before he was killed. Moreover, in respect of themselves, the applicants assert that they were subjected to mental suffering in the form of stress and anguish, in violation of Article 3, as they did not have any information about the fate of their son for more than 20 days, then had to wait another month for the handover of his body and then seeing his body in a decomposed state with marks of ill-treatment. They continue to suffer because of their inability to find out what happened to their son.

3. In respect of the alleged violations of Articles 2 and 3, the applicants further maintain that they did not have an effective remedy, in breach of Article 13.

4. Finally, 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.

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?

2. Having regard to the procedural protection of the right to life 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 following the death of the applicants ’ son or after the Armenian Prosecutor-General ’ s request for legal assistance under the 1993 CIS Convention?

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

4. Given the circumstances surrounding the disappearance, capture and death of the applicants ’ son and the handover of his body and the continuing uncertainty about the events leading to his death, have the applicants been subjected to inhuman or degrading treatment, in breach of Article 3?

5. Have the applicants had at their disposal an effective domestic remedy for their Convention complaints, as required by Article 13 of the Convention?

6. Did the applicants ’ son suffer discrimination in the enjoyment of his Convention rights on the ground of his Armenian origin, contrary to Article 14 of the Convention read in conjunction with Articles 2 and 3?