Published on 9 January 2023

FIRST SECTION

Application no. 29507/20 Narek SARDARYAN and Others against Azerbaijan lodged on 19 July 2020 communicated on 12 December 2022

STATEMENT OF FACTS

1. A list of the applicants is set out in the appendix.

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

3. The first applicant, Narek Sardaryan, was born in 1990 and lived with his family, namely his parents (his father Suren Sardanyan and his mother Lusik Sardaryan – the second and third applicants), wife (Hermine Arakelyan – the fourth applicant) and children, in the village of Nerqin Khndzoresk, Armenia, where he was a cattle farmer. Narek Sardaryan’s sister, Armenuhi Sardaryan, is the fifth applicant before the Court.

4. Based on an agreement with another municipality located near the Nakhchivan Autonomous Republic, an autonomous entity within the Republic of Azerbaijan, Narek Sardaryan and his cousins, also farmers, would take their cattle to pasture there. They went there on 20 June 2020 and, while there, slept and rested in their trailer-trucks.

5 . Not all Armenian telecommunications providers had coverage in the area where Narek Sardaryan and his cousins had parked their trailer-trucks and they therefore had to walk up a nearby hill to make telephone calls. According to the applicants, Narek Sardaryan had daily telephone contact with his family until 8 July 2020.

6. On that day, 8 July 2020, having milked the cows in the morning, Narek Sardaryan and one of his cousins went back to their trailer-truck to have breakfast, leaving the cattle to graze. After breakfast, at around 10.30 a.m., Narek Sardaryan left the trailer-truck again, heading in the direction of the cattle. His cousin was to join him a while later.

7. At around noon, Narek Sardaryan’s cousin went to where the cattle were, but could not find Narek Sardaryan. When he returned to the trailer ‑ truck at around 4 p.m. and did not find Narek Sardaryan there either, he started to worry. Together with another of Narek Sardaryan’s cousins and other cowherds, they searched the area.

8. On the following day, 9 July 2020, the police were informed of Narek Sardaryan’s disappearance and participated in the search. The police also looked through surveillance materials from the area, but found no sign of Narek Sardaryan.

9. On 15 July 2020 a video was published on the website of MAMUL.am news agency. In the video, Narek Sardaryan was seen sitting in front of the camera, answering questions put to him in Armenian; according to the applicants it could be heard that the person asking the questions made linguistic errors and had an Azerbaijani accent. In the video Narek Sardaryan stated, inter alia , that he had been wanting to cross the border and go to Nakhchivan for a long time, that he had willingly crossed the border, waving a white flag, and asked for political asylum. He also stated that their village head and other named individuals were corrupt and that, in general, corruption reigned in Armenia. According to the applicants, soldiers had poured petrol over Narek Sardaryan and held a lighted match over him while he was speaking, threatening to burn him if he did not say what he was told to.

10 . On 16 July 2020 a criminal case was instituted by the Armenian police relating to illegal border crossing by Narek Sardaryan. The case was sent to the Investigation Department of the Armenian National Security Service for a preliminary investigation.

11. During the investigation, witnesses gave testimony stating that Narek Sardaryan had not appeared to be himself in the video. According to them, he had looked scared and distressed and it had been obvious that he had been repeating a text that had been given to him prior to the recording. Moreover, some of the teeth in his upper jaw had been missing and there was a red/bruised spot on his upper forehead. The witnesses ruled out the possibility that Narek Sardaryan had willingly crossed the border in order to request asylum, as they pointed out that he was happily married and would not have left his beloved family behind.

12. A military chief as well as other soldiers also gave evidence, stating that it had happened before that residents of the area near the pastures adjacent to the military position had become lost and approached the military position, in which case they fired warning shots. The military chief added that the gorge to which Narek Sardaryan took his animals to graze was within direct view of a military position where there were soldiers on duty day and night. The area between the military positions was also mined. The military chief ruled out the possibility that Narek Sardaryan had crossed the border and was convinced that he had been kidnapped in Armenia.

13. According to the applicants, Narek Sardaryan was kept in detention in Azerbaijan and during his detention he was severely beaten in a systematic manner on different parts of his body, with the use of different types of instruments, such as clubs. They also allege that a heated iron wire was inserted in his leg and that a stun gun was used on him. Moreover, they describe Narek Sardaryan being stepped on, having the soles of his feet whipped and his fingers injured, as well as being threatened with injections of petrol and being, inter alia , forced to act as a dog in front of laughing soldiers. With regard to food and hygiene, the applicants state that Narek Sardaryan received one meal a day, if any, and that it consisted of only four spoonfuls of soup which contained cigarette ends, dead flies, a lot of salt, garlic and diesel fuel. At one point he was given a bowl of rice in which a dead rat had been hidden. The applicants also state that Narek Sardaryan was not given toilet paper and not allowed to take a bath unless visits from the Red Cross were planned. Before such visits he had also been taken to a room with a bed, but he had otherwise had to sleep on the floor and was kept in a cold cell with no warm clothes.

14 . On 22 July 2020 the Court granted interim measures on an application from the second to fifth applicants, indicating to the Government of Azerbaijan that they should take all necessary measures to protect the life and physical integrity of their relative, Narek Sardaryan. The Government were also asked to submit to the Court information about Narek Sardaryan, notably about the place and conditions in which he was held; his medical condition (supported by medical certificate(s), if available) and whether he had been examined by an independent medical professional; whether any criminal proceedings had been instituted in regard to him (and if so, to provide all the relevant details and documents, including any charges brought against him); whether a lawyer had been assigned to him; and whether he had the opportunity to communicate fully with his relatives and the Armenian authorities.

15. On 28 July 2020, on the basis of information that had emerged during the investigation that had been started on 16 July 2020 (see paragraph 10 above), another criminal investigation was started, namely into whether Azerbaijan armed forces had illegally crossed the border to Armenia with the intention of kidnapping civilians or committing other illegal actions against the Republic of Armenia. In that case, Narek Sardaryan had the status of victim.

16. On 12 August 2020 a motion in accordance with the procedures set out in the Commonwealth of Independent States (CIS) Convention of 22 January 1993 on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases (the Minsk Convention) was sent by the Prosecutor General of the Republic of Armenia’s Office to the Prosecutor General of the Republic of Azerbaijan’s Office, requesting information about the case relating to Narek Sardaryan. The motion was not answered.

17. Later, through the International Committee of the Red Cross, Narek Sardaryan sent a letter and a video to his family, where he said that he wanted to return to Armenia, his home and his family, and that the condition for his return was that he be exchanged with Azerbaijani prisoners held in Armenia. According to Narek Sardaryan’s family members, Narek Sardaryan was crying, depressed, emotional, uneasy and restless in the video.

18. On 9 September 2020 the Government of Azerbaijan responded to the request for information included in the Court’s decision on interim measures of 22 July 2020 (see paragraph 14 above).

19. On 15 December 2020 Narek Sardaryan was repatriated to Armenia. A certificate from the authorities of Nakhchivan was provided, stating that Narek Sardaryan had undergone a medical examination and was essentially healthy.

20. On 11 February 2021 a report was issued by the Scientific-Practical Center of Forensic Medicine at the Armenian Ministry of Health. According to the report he had, inter alia , an infected wound on the left ankle joint and a phlegmon on the foot.

21. On 5 April 2021 the report of a forensic psychological examination conducted by the National Bureau of Expertises SNPO stated that Nardek Sardaryan’s detention had caused him severe mental suffering.

COMPLAINTS

1. The applicants complain under Article 5 of the Convention that Narek Sardaryan was unlawfully deprived of his liberty, alleging that he was abducted and taken into custody for 160 days without any court order and without any legitimate grounds.

2. Relying on Article 3 of the Convention, the applicants complain that Narek Sardaryan was allegedly tortured and ill-treated during his captivity. In his application, Narek Sardaryan complains, inter alia, of being severely beaten in a systematic manner on different part of his body using different types of instruments such as heavy clubs; of a heated iron wire being inserted into his leg; of electroshocks (a stun gun having been used on him); of being threatened with petrol injections; and of not being provided with an adequate level of food or hygiene.

3. Furthermore, the second to fifth applicants, Narek Sardaryan’s family members, complain that their own mental suffering exceeded the minimum degree of severity of Article 3 of the Convention, given the circumstances of Narek Sardaryan’s detention and the information given to them in that connection.

4. Under Articles 8 and 10 of the Convention the applicants complain of a violation of Narek Sardaryan’s right to respect for his private life and his freedom of expression, arguing that Narek Sardaryan had been coerced into speaking on a video that was broadcast for propaganda purposes.

5. Moreover, the applicants submit that during his captivity, Narek Sardaryan had been deprived of any effective remedies for the alleged violations of Articles 3, 5, 8, 10, 14 and 34 of the Convention, in breach of Article 13.

6. The applicants also submit that the alleged violations of Articles 3, 5, 8, 10, 13 and 34 of the Convention had taken place owing to discrimination against them in their capacity as Armenians, in contravention of Article 14.

7. In addition, the applicants maintain that the Government hindered their right to individual application under Article 34 of the Convention.

QUESTIONS TO THE PARTIES

1. Was the first applicant, Narek Sardaryan, deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty, which allegedly occurred during the period between 8 July and 15 December 2020, fall within any of the sub-paragraphs of this provision?

2. Has Narek Sardaryan been subjected to torture or to inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?

3. Given the circumstances surrounding the detention and alleged ill‑treatment of the first applicant, Narek Sardaryan: have the other applicants, his family members Suren Sardaryan, Lusik Sardaryan, Hermine Arakelyan and Armenuhi Sardaryan been subjected to inhuman or degrading treatment, in breach of Article 3?

4. In view of the alleged circumstances relating to the video recording of Narek Sardaryan, including the publication of the video, has there been a violation of Article 8 and/or Article 10 of the Convention?

5. Has there been any hindrance by the respondent State in the present case to the effective exercise of Narek Sardaryan’s right of individual application, as guaranteed by Article 34 of the Convention?

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

7. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their Armenian origin, contrary to Article 14 of the Convention read in conjunction with Articles 3, 5, 8 and/or 10, 13 and 34?

8. Finally, the Government are requested to provide all relevant information and documents concerning the case, including any decisions or other documents concerning the initial arrest of Mr Narek Sardaryan and his detention as well as medical records or statements concerning him, all documents to be submitted in both the original and English translation.

APPENDIX

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.Narek SARDARYAN

1990Armenian

Village Nerkin Khndzoresk

2.Suren SARDARYAN

1955Armenian

Village Nerkin Khndzoresk

3.Lusik SARDARYAN

1958Armenian

Village Nerkin Khndzoresk

4.Hermine ARAKELYAN

1996Armenian

Village Nerkin Khndzoresk

5.Armenuhi SARDARYAN

1985Armenian

Village Nerkin Khndzoresk