Khojoyan and Vardazaryan v. Azerbaijan (Application no. 62161/14)

A selection of key paragraphs can be found below the judgement.

49.  The Court infers from the respondent Government’s lack of providing any reasonable explanations, that there are merits to the applicants’ allegations that Mr Khojoyan’s injuries had been inflicted on him while in detention and further refers to its above finding that the injuries – which included multiple injuries to his head, ribs, arms and other parts of his body – had posed a serious and imminent risk to his life (see paragraph 34). It therefore concludes that there has been a violation of Article 2 of the Convention in its substantive limb.

52.  In this case, referring in particular to the medical reports concerning Mr Khojoyan’s health at the time of release and its above conclusions with regard to the substantive limb of Article 2 (see paragraphs 46 and 48), the Court finds that the authorities of the respondent State should have undertaken an investigation as there were sufficiently clear indications that Mr Khojoyan’s life had been put at risk during his detention.

54.  The Court accordingly finds that there has been a violation of Article 2 of the Convention also in its procedural limb

64.   As to whether the treatment of Mr Khojoyan amounted to torture, as also alleged by the applicants, the Court must have regard to the distinction embodied in Article 3 of the Convention between this notion and that of inhuman or degrading treatment. Thus, it must ascertain whether a special stigma to deliberate inhuman treatment causing very serious and cruel suffering can be attached to the conduct of authorities (see, among other authorities, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 426, ECHR 2004‑VII). The “severity” of treatment is, like the “minimum severity” required for the application of Article 3, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 100, ECHR 1999‑V). Keeping in mind these criteria, and taking into account the facts that have led the Court to conclude that Article 2 was violated (see, in particular, paragraphs 43-49 above), the Court finds that the ill-treatment to which Mr Khojoyan, at the time a 77 year-old man, was subjected during his captivity from 28 January to 4 March 2014, amounted to torture.

83.  In applying those principles to the facts of this case, the Court notes that the respondent Government have not put forward any materials or concrete information to show that Mr Khojoyan was to be regarded as a prisoner of war. It is also for that reason that the Court above has dismissed the respondent Government’s argument that the Convention as a whole is inapplicable (see paragraphs 22 and 25). No other arguments have been advanced to the effect that Article 5 of the Convention does not apply to the case in respect of Mr Khojoyan, and the respondent Government have not argued that his detention was in conformity with any of the sub-paragraphs in Article 5 § 1 or that Mr Khojoyan was afforded any of the procedural guarantees in the following paragraphs. Nor have they adduced any decision ordering Mr Khojoyan’s detention that could have been appealed against. In the circumstances of the instant case, the foregoing observations suffice for the Court to conclude that there has been a violation of that provision, too.