Lack of state explanation that the applicant’s serious mental damage was not due to degrading conditions of detention at the border for 22 months! Violations of the ECHR
JUDGMENT
Badalyan v. Azerbaijan 22.07.2021 (app. no. 51295/11)
SUMMARY
Humiliating treatment of the applicant by the Azerbaijani forces who arrested him near the border between Armenia and Azerbaijan and held him captive for 22 months. The applicant alleged that this had left him with serious mental health problems.
In the light of the facts, the ECtHR found that the Government had failed to provide a satisfactory and convincing explanation to show that the applicant’s serious mental injuries, which had been identified immediately after his release and which were later diagnosed, had not been caused in whole or in part. conditions of detention and the treatment he suffered while in the custody of the defendant State. It therefore concluded that there had been a breach of the prohibition of inhuman or degrading treatment (Article 3 of the ECHR).
Illegal detention. He asserted that his confession had been obtained through torture and that his confession had been obtained through torture.
According to the ECtHR, the defendant Government did not submit any material or specific information to show that the applicant was to be considered a prisoner of war. Violation of the right to personal liberty and security (Article 5 of the ECHR).
The ECtHR awarded the applicant EUR 30,000 in respect of non-pecuniary damage.
PROVISIONS
Article 3
Article 5
PRINCIPAL FACTS
The applicant, Artur Badalyan, is an Armenian national who was born in in 1978 and lives in
Haghartsin in the Tavush region of Armenia.
The case concerns the applicant’s complaint that the Azerbaijani forces arrested him near the border
between Armenia and Azerbaijan and held him captive for 22 months.
Relying on Article 3 (prohibition of inhuman and degrading treatment) of the Convention,
Mr Badalyan alleges that he was ill-treated during his detention, leaving him with serious
mental-health issues upon his release.
Also relying on Article 5 (right to liberty and security), he alleges that his detention was unlawful. He
argues in particular that as a civilian and not a prisoner of war he should have been immediately
released or informed of the reasons for his detention in a language that he understood, brought
before a judge and given the possibility to challenge the lawfulness of his detention.
THE DECISION OF THE COURT…
Article 3
The Court observes that it is undisputed that the applicant was in the respondent State’s captivity during a period of 22 months, from 9 May 2009 until 17 March 2011 (see paragraph 4 above). It also observes that what has been presented to the court as documentary evidence is principally medical information.
As to the applicant’s health situation before his detention, the respondent Government have not contested that he was declared fit for military service in 1997 and that he served until 1999. However, that was still ten years prior to the events in case and the applicant has not presented medical documents concerning his health condition between 1999 and his detention by the Azerbaijani authorities.
With regard to the situation during the applicant’s detention, the respondent Government have pointed to medical exams having been carried out. As to the applicant’s mental health, the respondent Government have, for the first time in their additional comments to the applicant’s response to their observations before the Court, adduced a transcript from a medical journal, dated 7 March 2011, a little over a week before the applicant’s release, stating that no psychopathological symptoms or signs of mental illness had been detected.
Turning to the applicant’s health situation upon his release, medical reports provided show that he suffered from chronic delusional disorder and delayed reactive paranoia and that he was treated for 29 days in 2011. His mental health condition deteriorated further and in 2015 he was diagnosed with paranoid schizophrenia. The applicant was found to qualify for disability benefits.
The Court observes that the applicant has submitted that his mental condition at the time of his release was a psychological sign of ill-treatment of both a physical and psychological nature and that he has not presented proof of physical injuries. However, before the Court, it has not been disputed that the mental health issues described above, if they were the result of the manner in which the person diagnosed with them has been treated while in detention, are indicative of ill-treatment contrary to Article 3 of the Convention..
In the light of the materials placed before it, the Court finds that the applicant has established a prima facie case that his symptoms of considerable mental health injuries, detected immediately after his release, were in relation to his time in the respondent State’s captivity, whether the later deterioration was a direct consequence of this or not. Furthermore, it notes that the applicant has given a detailed and consistent account of the facts complained of and has provided the only pieces of evidence available to him, notably medical records from examinations upon his release. Therefore, the respondent Government must, in accordance with the general principles cited above, provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim.
The respondent Government, who alone have access to any other information capable of corroborating or refuting allegations, have in response to the applicant’s allegations argued that: (i) the applicant had been captured and held alive and safe, and released safely through negotiations with the cooperation of the ICRC; (ii) the applicant’s allegations of ill‑treatment were supported only by medical documents provided by Armenian agencies; (iii) there was no causal link to suggest that the applicant had been tortured; (iv) being held in captivity for such a long time as 22 months under constant torture, bad feeding and deprivation of sleep, as alleged by the applicant, would have resulted in much more severe health consequences than those presented by him; and (v) the ICRC had conducted regular visits to supervise the applicant’s detention conditions without any reports on ill-treatment having been submitted to them or by them.
As to the latter argument, the Court observes that the ICRC for confidentiality reasons did not release information about the circumstances of the applicant’s detention at his lawyer’s request. With regard to the other arguments, the Court does not consider that they either amount to a satisfactory and convincing explanation supported by evidence as required under the Convention. The Court notes in this regard that the Government did not benefit from the evidence that investigation might have produced since the Government have not shown that any meaningful investigation of the applicant’s allegations ever took place.
The Court further notes that the Government did not provide, including in the proceedings before the Court, information about the places of the applicant’s detention, the conditions of his detention and the daily regime to which he was subjected while in detention. The fact that no information about the applicant’s whereabouts ever reached his family prior to his registration as a captive by the ICRC, almost a year and six months after his initial detention, is also a fact from which inferences can be drawn regarding the manner in which he was treated and its consequences for his mental health.
In the light of the above, the Court finds that the respondent Government have failed to provide a satisfactory and convincing explanation to show that the applicant’s serious mental injuries identified immediately upon his release and diagnosed later were neither entirely, mainly or partly caused by the conditions of his detention and the treatment he underwent while in the respondent State’s captivity. It therefore concludes that there has been a violation of Article 3 of the Convention.
Article 5
The Court notes that the respondent Government have not put forward any materials or concrete information to show that the applicant 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. No other arguments have been advanced to the effect that Article 5 of the Convention does not apply to the applicant’s case, 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 the applicant was afforded any of the procedural guarantees in the following paragraphs. 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.
