FIFTH SECTION
CASE OF PETROSYAN v. AZERBAIJAN
(Application no. 32427/16)
 
JUDGMENT
 
Art 2 (substantive and procedural) • Life • No convincing account of circumstances surrounding death of Armenian national while in detention • Lack of effective investigation, including whether ethnic hatred played a role
Art 3 (substantive) • Inhuman and degrading treatment • Sufficient proof of applicant’s son being subjected to severe physical violence in detention prior to his death • Moral suffering of applicant reaching a dimension and character distinct from emotional distress inevitably caused to relatives, given delay and condition of repatriated body, in addition to the lack of effective investigation

 
STRASBOURG
4 November 2021
 
FINAL
 
28/02/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Petrosyan v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Síofra O’Leary, President,
 Mārtiņš Mits,
 Ganna Yudkivska,
 Lətif Hüseynov,
 Jovan Ilievski,
 Lado Chanturia,
 Arnfinn Bårdsen, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Artush Petrosyan (“the applicant”), on 25 April 2016;
the decision to give notice to the Azerbaijani Government (“the Government”) of the application;
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments submitted by the Armenian Government, who had exercised their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention;
Having deliberated in private on 28 September 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns complaints under Articles 2, 3, 5, 8, 13 and 14 in connection with the death of the applicant’s son while in captivity. THE FACTS
THE Parties
2. The applicant was born in 1957 and lives in Chinari in the Tavush region of Armenia. He was represented by Ms K. Gevorkyan, Mr A. Zeynalyan and Ms L. Alaverdyan, lawyers practising in Yerevan, and Mr V. Grigoryan, a lawyer practicing in London. 3. The Azerbaijani Government were represented by their Agent, Mr Ç. Əsgərov. UNDISPUTED facts
4. 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, close to the border to Azerbaijan. On 7 August 2014 he crossed the border into Azerbaijan and was captured by the Azerbaijani armed forces. 5. On the same day two video recordings of Mr Petrosyan were broadcast by Azerbaijani media. In the first one, he was seen being offered tea by a local resident of the village of Aghbulag and having a conversation with some of the other villagers. In the second recording, he was being interrogated, while standing on his knees with his hands cuffed and being restrained by soldiers. The interrogating army general accused him of being a soldier, having killed civilians, incited hatred and caused aggression. Being shown photographs of him in military uniform, allegedly found on his mobile phone together with phone numbers of his military commanders, he stated that he was a military serviceman. 6. 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 division of the Centre for Forensic Examination and Pathological Anatomy of the Ministry of Defence had reportedly determined 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 had crossed the Azerbaijani-Armenian border in Azerbaijan’s Tovuz region, Mr Petrosyan had been detained as a result of the military action. 7. 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. 8. According to Azerbaijani media reports on 22 August 2014, the Azerbaijani Ministry for Foreign Affairs reacted to the international criticism by claiming, inter alia, that Mr Petrosyan’s death had been “transparently investigated by medical experts and the ICRC [had been] immediately informed”. 9. On 11 September 2014 the applicant lodged an application with the Court (no. 61737/14). He complained under Articles 3 and 8 of the Convention that his son had died in Azerbaijani detention on 8 August 2014 after having unintentionally crossed the border and having been apprehended by the Azerbaijani military. As the son’s body had not yet been repatriated, the applicant further requested that Rule 39 be applied and the Government of Azerbaijan be ordered to take measures to prevent damage to the corpse, to return it immediately and to explain the delay in returning it. On 30 September 2014 the Court (the Acting President of the Section) decided not to indicate interim measures to the respondent Government, but requested them, under Rule 54 § 2 (a) of the Rules of Court, 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. 10. By a letter of 19 September 2014 the Azerbaijani Government referred to the information contained in the news report of 8 August 2014 (see paragraph 6 above) and the photographs and phone numbers allegedly found on Mr Petrosyan’s mobile phone (paragraph 5). 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. 11. On 10 October 2014 Mr Petrosyan’s body was repatriated in a severely decomposed state. 12. On 17 November 2015 the Court struck out the applicant’s application lodged on 11 September 2014 (see paragraph 9 above). As the applicant had not responded to a letter from the Court and otherwise been inactive with regard to following up the application, he was regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention.
facts AS submitted by the applicant
13. In the morning of 7 August 2014, while collecting firewood in a nearby grazing area, the applicant’s son lost his bearings, crossed the border and ended up in the village of Aghbulag in Azerbaijan. The first video recording broadcast by Azerbaijani media on the same day (see paragraph 5 above) showed him in civilian clothing, bearing no arms. Later the Azerbaijani military came to the village, arrested him and took him away. The second recording from the same day allegedly showed that Mr Petrosyan, now dressed in military gear, had wounds on his face and was forced to state that he was a military serviceman. 14. On 13 August 2014 the Department of Criminal Investigation in the Tavush province of Armenia opened a criminal 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. 15. In response to the claim by the Azerbaijani Ministry for Foreign Affairs on 22 August 2014 that an investigation of Mr Petrosyan’s death had been performed (see paragraph 8 above), the applicant stated that no results of such investigation had been made public or communicated to him. 16. On 9 December 2014 the results of a forensic medical examination, commenced on 11 October and completed on 3 December at the Republican Scientific-Practical Centre of Forensic Medicine of the Armenian Ministry of Health in Yerevan, were presented in an expert opinion by three forensic medical experts. 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 Republican Scientific-Practical Centre of Forensic Medicine of the Republic of Armenia Ministry of Health, 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. ...”
17. 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. 18. On 9 April 2015 the forensic experts who had conducted the Armenian forensic examination (see paragraph 16 above) gave a supplementary opinion based on the case materials, answering questions put to them by the applicant’s representatives on 23 February. The supplementary opinion contained, inter alia, the following observations:
“According to the results of the post-mortem examination of Karen Petrosyan’s corpse, a separation of spinal vertebrae was observed only in the cervical region, which can be interpreted to indicate that putrefaction was particularly manifest in the neck area. ...
... In this case, we have almost complete skeletisation of the skull and neck area of K. Petrosyan’s corpse. Besides, the cadaver was covered with soil, which indicates that it was placed in soil before being passed over to the Republic of Armenia. The above stated give reason to conclude that K. Petrosyan’s corpse was in a state of rapid putrefaction – decomposition – and, in particular, that this was disproportionately taking place in different parts of the corpse. Naturally, if the corpse had been buried in a coffin deep in the soil, with his clothing on, or if it had been embalmed, decomposition would have been slow and not as intense as it is in this case. ... Hence, it must be concluded that Karen Petrosyan’s corpse was in an environment where it was exposed to oxygen immediately after his death; it was either laid unburied on the ground or in a shallow grave without any coffin or clothing covering his body or in a partially buried state with some parts of his body protruding to the surface of the soil.
... During the forensic post-mortem examination of K. Petrosyan’s corpse, his hyoid bone was not found. ... It is impossible to determine whether the separation of cervical spinal vertebrae – “decapitation” – took place during K. Petrosyan’s lifetime or after he passed away, which means that his “decapitation” in life should not be excluded, as the presence of a wound in that part of the body after death would have caused more intense and accelerated decomposition. This could have resulted in decay of the inter-vertebral ligaments and cartilage and separation of the vertebrae. ... There is no method applied during initial forensic examination or autopsy that involves separation of the head from the body.
...”
19. On 22 August 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 Commonwealth of Independent States (CIS) Convention of 22 January 1993 on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases. Specifically, information was requested as to whether any criminal case 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. 20. 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. 21. 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. 22. According to the applicant, information about Armenian detainees having been beheaded in Azerbaijan had emerged in the aftermath of the military clashes that took place in early April 2016 (sometimes referred to as the “Four-Day War”). He referred to other applications lodged with the Court, in particular application no. 19243/16, K.S. and N.A. v. Azerbaijan and 21 other applications.
facts AS submitted by the Respondent Government
23. The respondent Government claimed that Mr Petrosyan had crossed the Azerbaijani-Armenian border at about 1.30 p.m. on 7 August 2014. A member of a five-man subversive group, he had been apprehended by the Azerbaijani armed forces while the other four members had been killed. A lot of weapons had been found on the members of the group. 24. On 8 August 2014, the day of Mr Petrosyan’s death, a forensic medical examination of his body was conducted at the above-mentioned forensic examination centre in Ganja (see paragraph 6). It was performed by a forensic medical expert between 5.50 and 7.05 p.m. The result of the examination was presented by the expert in an opinion of 25 August, which took into account also a forensic chemical examination of Mr Petrosyan’s blood and parts of his internal organs carried out on 11 August. In introductory notes, the expert stated that the request for a forensic examination had been made by the chief of staff of a military unit after the body of Mr Petrosyan had been brought to a different military unit at 7.40 a.m. on 8 August and there had received cardiac massage, artificial lung ventilation, an intravenous injection of adrenalin and defibrillation but could still not be revived. Following the examination, the expert drew the following conclusions:
“The following bodily injuries were observed during the post-mortem examination of [Mr Petrosyan’s] corpse: scratches on the forehead, left cheek and chin, the backsides of the chest and the left thigh, a bruise next to the left eye, scratches and bruises on middle and lower parts of both shins, wounds on the upper lip, fractures of the fifth, sixth and seventh left ribs. All injuries were inflicted while he was still alive and did not cause his death. They could have been inflicted by hard and blunt objects or by hitting against such objects. As to the time of formation of the injuries, the scratches on the chest and the left thigh appeared minutes before the death, while the other injuries [...] occurred 2-3 days before the death ... . Having regard to the fact that, during the forensic examination of the corpse of [Mr Petrosyan], no injuries that could have led to death were established, that, during the forensic chemical examination, no methyl, ethyl, propyl, butyl or amyl alcohols, formaldehyde, chloroform, hydrochloride, tetrachloromethane, dichloroethane, toluene, phenol, cresol, phosphorus organic pesticides, Sevin, barbituric acid derivatives, Noxyron, alkaloids (including opium), phenothiazine, pyrazolone, 1,4‑benzodiazepine derivatives or salicylates were detected in the blood and internal organs, and that, during the internal examination of the corpse, cardiac (post‑myocarditis) diffusive microscopic sclerosis in the heart, acute inflammation, oedema of stroma, pulmonary oedema, patchy emphysema, signs of venous hyperaemia in the liver, signs of parenchymal proteinosis in the kidney and cerebral oedema were established, the cause of death was acute cardiovascular and respiratory failure occurring after the myocarditis, as a result of diffusive microscopic sclerosis in the cardiac muscle. According to the dynamics of the post-mortem changes, death occurred 10-12 hours before the examination of the corpse in the morgue.
...”
THE LAW
25. The applicant complained in the application lodged on 25 April 2016 under Articles 2, 3, 5, 8, 13 and 14 of the Convention that his son had been tortured and killed in illegal detention, that his son’s body had not been repatriated in a timely manner, that there had been no effective investigation and that the alleged violations had occurred as a result of discrimination based on ethnic origin. AdmissibilityThe matter having already been examinedThe parties’ and third-party’s submissions

(a)   The respondent Government
26. The respondent Government submitted that the matter of the application had already been examined by the Court in the course of its processing of the application in the case of A.P. v. Azerbaijan ((dec.), no. 61737/14, 17 November 2015) and that it was therefore inadmissible in accordance with Article 35 § 2 (b) of the Convention. (b)   The applicant
27. The applicant argued that his previous application (see paragraphs 9-12 above) had never formed the subject of any formal examination by the Court and could not therefore preclude examination of the instant case. He also maintained that the strike-out decision that had been made in respect of his former application had been a result of technical miscommunication. (c)   The Armenian Government, third-party intervener
28. The Armenian Government supported in general the applicant’s submissions.

Outcome for Article 3: violation