CEDH · CASELAW;COMMUNICATEDCASES;ENG — 10 janvier 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sC7D66CED { margin-top:36pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 30 January 2023   FIFTH SECTION Application no. 24512/21 Vachagan ADAMYAN and Lazar HAKOBYAN against Azerbaijan lodged on 14 May 2021 communicated on 10 January 2023 STATEMENT OF FACTS 1.     The first applicant, Mr Vachagan Adamyan, was born in 1963 and lives in Aravus village in the Syunik region of Armenia. The second applicant, Mr   Lazar Hakobyan, was born in 1986 and lives in Rostov-on-Don in the Russian Federation. They both state that they are nationals of the “Republic of Artsakh”. They are, respectively, the father of Mr Yura Adamyan (“Y.A.”), born in 1995, and the son of Mr Benik Hakobyan (“B.H.”), born in 1947. They are represented before the Court by Mr A. Zeynalyan and Ms   S.   Sahakyan, lawyers practising in Yerevan. The circumstances of the case 2.     The facts of the case, as submitted by the applicants, may be summarised as follows. 3.     Y.A. used to live in Pletants village in the Hadrut region of the “Nagorno-Karabakh Republic” (the “NKR”; in 2017 renamed the “Republic of Artsakh”) together with the first applicant and their family. B.H. used to live in Hadrut town together with his wife. 4.     On 27 September 2020 a war broke out between Armenia and Azerbaijan over the region of Nagorno-Karabakh and the surrounding territories. It lasted for 44 days until 10 November 2020 when a ceasefire agreement, signed the day before, entered into force. 5.     Y.A. enrolled in the “Artsakh Defence Army”. B.H. and his wife stayed in their home, while most Hadrut residents left the town for safety reasons when, in October 2020, Azerbaijani troops gradually captured the town. 6.     Sometime between 9 and 15 October 2020 Y.A. and B.H. were allegedly captured together in or around Hadrut town by the Azerbaijani armed forces and executed shortly thereafter by an Azerbaijani firing squad in the town centre. 7.     On 15 October 2020 two video recordings appeared on the Telegram messaging channels which showed Y.A.’s and B.H.’s capture and execution. The recordings were spread on the internet, allowing the applicants to recognise their relatives. 8.     The first video shows the capture. The voice of a person who is out of picture, speaking Russian with an allegedly heavy Azerbaijani accent, is heard, ordering Y.A. to take off “all that”. He removes his helmet, bulletproof vest and military jacket, then puts his hands in the air and walks out of shot. He is apparently met by other Azerbaijani soldiers and is told, in Russian, to lie down. Then the voice turns to B.H., who had been standing next to Y.A. all the time, ordering him to put his hands in the air and approach the soldiers. When B.H. reaches the cameraman he is pushed to the ground by another soldier who proceeds to point his rifle at B.H. It appears that the out-of-picture person instructs the soldier not to shoot and walks away to search the belongings of the captives with another soldier. When he returns, Y.A. is seen lying face down on the ground with his hands tied behind his back, held by two soldiers at gunpoint. Another two soldiers are apparently tying B.H.’s hands and the latter’s moaning is heard. All the soldiers depicted are in uniforms of the Azerbaijani armed forces. 9.     The second video shows Y.A. and B.H., draped in the flags of the Republic of Armenia and the “Republic of Artsakh”, respectively, sitting on a stone wall in the town centre of Hadrut with their hands tied behind their backs. While trying to stay seated, Y.A. is leaning forward and breathing heavily and B.H. is leaning back with his face covered in blood. Their clothes are torn. A voice, apparently that of the person speaking in the first video, orders, in Azerbaijani, to “aim at their heads”. This is followed by a fusillade of bullets hitting different parts of Y.A.’s and B.H.’s bodies which fall down on the ground amid continuing gunfire. 10.     In a press release of 15 October 2020 the Azerbaijani Prosecutor-General’s Office took note of the videos in question. The Office contended that “according to initial indications, there are reasonable doubts that these videos are fake” and stated that the public would be informed in detail about the results of its investigation. It appears, however, that no further information has been released about the investigation. 11.     On the same date the Prosecutor-General of the “Republic of Artsakh” instituted criminal proceedings relating to the events. 12.     On 24 October 2020 the BBC published an article according to which Bellingcat open-source investigators and British military experts had expressed that the videos were authentic. In particular, by cross-referencing stills from the videos with satellite views of Hadrut and footage from a local TV report, the Bellingcat investigators had identified the place of the capture of Y.A. and B.H. as well as the location of their execution, a park next to Mkrtchyan Street in Hadrut town. They also assumed that the videos were recorded at some point between 9 and 15 October 2020. 13.     In a press release of 2 November 2020 the UN High Commissioner for Human Rights expressed serious concern about the videos which appeared to show war crimes being committed. She stated that “while many faked images have been circulating on social media, in-depth investigations by media organisations into videos that appeared to show Azerbaijani troops summarily executing two captured Armenians in military uniforms uncovered compelling and deeply disturbing information”. 14.     On 4 January 2021, during search operations, the corpse of the wife of B.H. – the second applicant’s mother – was found in front of their house, allegedly with multiple injuries inflicted on her head. She had been buried together with the body of their neighbour. 15.     The bodies of Y.A and B.H have not been returned to the Armenian side. COMPLAINTS 1.     The applicants complain that Y.A. and B.H. were killed by state agents of Azerbaijan in violation of Article 2 of the Convention and international humanitarian law. They assert that the videos published online are authentic and show that Y.A. and B.H. were captured and executed by Azerbaijani soldiers who had full control and authority over them. Also under Article 2, the applicants maintain that Azerbaijani authorities have failed to fulfil their obligation to carry out an effective investigation of the circumstances. The statement by the Azerbaijani Prosecutor-General’s Office, casting doubt on the authenticity of the videos, shows that no effective investigation could be expected. Furthermore, the applicants have not had an opportunity to be part of the investigation and no result has been released. They allege that the Azerbaijani authorities have deliberately kept the bodies in order to prevent a proper investigation in the “Republic of Artsakh”. 2.     Claiming that the videos show that Y.A. and B.H. were heavily beaten and abused before their execution, the applicants claim that they were subjected to treatment prohibited under Article 3 of the Convention. Also in this respect, it is alleged that the Azerbaijani authorities have failed to conduct an effective investigation and are deliberately withholding the bodies. 3.     Moreover, the applicants claim that they have suffered profound mental distress and anguish amounting to a violation of Article 3, which has been exacerbated by their inability to participate in the investigation and the uncertainty as regards the return and burial of the bodies of Y.A. and B.H. The absence of information on the whereabouts and condition of the bodies causes continuing suffering to the family members and allegedly involves a deliberate act by the Azerbaijani authorities to humiliate and instil fear and suffering in the relatives and the Armenian public. 4.     Referring to the non-return of the bodies of Y.A. and B.H., the applicants assert that they have been deprived of the possibility to recover and bury their relatives, violating their right to respect for their private and family life under Article 8 of the Convention. 5.     In respect of all of the alleged violations, the applicants maintain that they have not had an effective remedy, in breach of Article 13 of the Convention. They state that legal remedies in Azerbaijan are not accessible to ethnic Armenians. 6.     Finally, under Article 14 of the Convention in conjunction with Articles   2, 3, 8 and 13, the applicants claim that the violations in the case are direct results of a racist policy and propaganda of hatred against Armenians. The fact that Y.A. and B.H. were draped in the flags of Armenia and the “Republic of Artsakh” prior to being executed serves as evidence of this discriminatory policy. QUESTIONS TO THE PARTIES 1.     Do the facts of which the applicants complain in the present case fall under the jurisdiction of Azerbaijan? In particular, were the applicants’ relatives – Y.A. and B.H. – captured and executed by members of the Azerbaijani armed forces?   2.     Has the investigation initiated by the Prosecutor-General’s Office on 15 October 2020 been concluded and, if so, what are the results of that investigation? The respondent Government are requested to provide a copy of the investigation report, if available, and any other documents and factual information relevant to the case.   3.     Are the bodies of Y.A. and B.H. in the possession of Azerbaijani authorities and, if so, where and under what conditions are they kept?   4.     Have the applicants had at their disposal an effective domestic remedy for their Convention complaints, within the meaning of Article 13 of the Convention? If so, have they exhausted this remedy, as required by Article   35 §   1 (see further Sargsyan v. Azerbaijan [GC], no. 40167/06, §§   115-120, ECHR 2015)?   5.     Has the right to life of Y.A. and B.H., ensured by Article 2 of the Convention, been violated in the present case?   6.     Referring to question 2 above and having regard to the procedural protection of the right to life under Article 2 (see, among other authorities, Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), has there been an effective official investigation by the authorities of Azerbaijan of the execution allegedly depicted in the video recordings posted online?   7.     Were Y.A. and B.H. subjected to torture or to inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?   8.     Referring to questions 2 and 6 above, has there been an effective official investigation in regard to the alleged ill-treatment under Article 3 suffered by Y.A. and B.H.?   9.     Has there been a violation of Article 3 of the Convention in regard to the mental distress and anguish allegedly caused to the applicants (see, for instance, Akpınar and Altun v. Turkey , no. 56760/00, §§ 84-87, 27 February 2007)?   10.     Has there been a violation of Article 8 of the Convention in regard to the applicants’ inability to recover and bury their relatives (see, for instance, Maskhadova and Others v. Russia , no. 18071/05, § 208, 6 June 2013)?   11.     Have Y.A. and B.H. or the applicants suffered discrimination in the enjoyment of their Convention rights due to ethnicity or nationality or on any other ground contrary to Article 14 of the Convention?