Communicated on 21 January 2019

FIRST SECTION

Application no. 51448/15 Heghine PETROSYAN against Armenia lodged on 2 October 2015

STATEMENT OF FACTS

The applicant, Ms Heghine Petrosyan , is an Armenian national who was born in 1972 and lives in Hrazdan . She is represented before the Court by Mr A. Zalyan , lawyer practising in Vanadzor , and Mr A. Sakunts , Human Rights advocate.

A. The circumstances of the case

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

The applicant is the mother of Hayk Movsisyan , who was found dead during the night of 28 November 2012 in a remand centre in the unrecognised Republic of Nagorno Karabakh .

In June 2011 Hayk Movsisyan was drafted into the Armenian army. According to the applicant her son had health issues, but he was nevertheless found fit for combatant service and conscripted.

Hayk Movsisyan was eventually assigned to military unit no. 49971 ( ‘ the military unit ’ ), situated in Nagorno Karabakh .

According to the applicant ’ s submission, from the first days of service her son had been guilty of misconduct, had refused to wear military gear and had harmed himself. However, the military authorities had not undertaken any measures to find out the underlying reasons for his behaviour.

On 27 June 2011 Hayk Movsisyan had left the military unit by jumping over the fence. He had then been discovered by an unknown man who had taken him back to the military unit. Thereafter H.S., chief of battalion, had had a conversation with Hayk Movsisyan in his office during which the latter had injured his own left forearm with a razor blade.

It appears that after this incident Hayk Movsisyan had been taken to the medical service of the military unit and then to the military hospital.

On 7 July 2011 the Third Garrison Investigation Department of the Investigative Service of the Ministry of Defence of the Republic of Armenia ( Ma rtakert , Nagorno Karabakh ) took a decision to institute criminal proceedings under Article 363 § 1 of the Criminal Code of the Republic of Armenia ( ‘ the CC ’ ).

According to the applicant, on 22 July 2011 Hayk Movsisyan was arrested and placed in Nubarashen detention facility in Armenia.

On 25 July 2011 Hayk Movsisyan underwent a military forensic examination, as a result of which he was diagnosed with organic psychotic disorder accompanied with self-harming (attempted suicide).

By its decision of 2 August 2011 the Central Military Commission of the Ministry of Defence of the Republic of Armenia found Hayk Movsisyan unfit for military service in peace time. According to this decision Hayk Movsisyan was fit for non-combatant service in time of war. The decision further stated that the disorder in question could not have been discovered during conscription and that it was not linked to military service.

On 3 August 2011 charges were brought against Hayk Movsisyan under Article 363 § 1 of the CC and an undertaking not to leave was applied.

On 14 September 2011 the charges against Hayk Movsisyan were dropped for absence of corpus delicti in his actions.

It appears that on 17 September 2011 the Minister of Defence issued an order to discharge Hayk Movsisyan from military service on health grounds.

On 29 November 2011 charges were brought against Hayk Movsisyan under Article 363 § 2 of the CC.

On 7 December 2011 the case against Hayk Movsisyan was sent to the Syunik Regional Court ( ‘ the Regional Court ’ ) for examination.

On 31 January 2012 the Regional Court decided to stay the examination of the case, ordered Hayk Movsisyan ’ s detention and declared a search for him.

It appears that on 20 July 2012 Hayk Movsisyan was arrested at the airport in Yerevan and taken to Nubarashen detention facility.

On 26 July 2012 the Regional Court resumed the examination of the case and decided to discontinue the search for Hayk Movsisyan .

It appears that on 10 September 2012 Hayk Movsisyan was transferred to the investigative isolation unit of the penitentiary department of the Nagorno Karabakh Police (Shushi detention facility).

On 20 November 2012 the Regional Court, sitting in an unspecified military unit, found Hayk Movsisyan guilty as charged and sentenced him to three years ’ imprisonment.

On 28 November 2012 at around 1 a.m. Hayk Movsisyan ’ s body was found hanging by his bed sheet from a pole that protruded from the window bars of his cell in Shushi detention facility.

On the same date the Nagorno Karabakh General Prosecutor ’ s Office instituted criminal proceedings no. 122007.12 on account of Hayk Movsisyan ’ s death under Article 110 § 2 of the Criminal Code of the Republic of Nagorno Karabak h (incitement to suicide). The decision stated, in particular, the following:

“On 28 November 2012 during the period between 00.50 a.m. and 1 a.m ... detainee of cell number 8 of the investigative isolation unit of the penitentiary department of Nagorno Karabakh Police ... [Hayk Movsisyan ] hanged himself with his whitish bed sheet from a pole that protrudes from the window bars of that same cell and died ...”

It appears that within the framework of those proceedings the investigator questioned the officers of the detention facility, all of whom denied having noticed anything unusual on the day of the incident. It further appears that Hayk Movsisyan ’ s cell-mates were also questioned and stated that they had heard nothing; they had been sleeping and had woken up when the guard had started screaming.

During his interview P.M., the officer who had provided first aid to Hayk Movsisyan , stated that immediately after his body was freed from the bed sheet he had taken him out into the corridor. He had checked Hayk Movsisyan ’ s pulse and, having found that it was still beating, he had applied artificial respiration and performed heart massage for about ten minutes, after which P.M. had seen that his eyes had opened wide, he had urinated and his abdomen had bloated. He had then realised that Hayk Movsisyan was dead and stopped the intervention.

In the course of the investigation S.A., the head of the detention facility, was questioned and stated, inter alia , that during his stay between 10 September and 27 November 2012 Hayk Movsisyan had not requested medical assistance or complained of health issues. He had been calm and did not socialise with other detainees, therefore neither S.A. himself nor the other officers had put him under specific surveillance. S.A. also denied that Hayk Movsisyan had been subjected to any pressure or ill-treatment.

On 18 March 2013 the investigator made a decision to terminate the prosecution of the officers and detainees of the detention facility since their actions did not constitute a crime. The applicant submits that she was not informed of this decision; neither had she been informed of the investigation or involved in it.

It appears that on 28 March 2013 the Special Investigative Service of Armenia ( ‘ the SIS ’ ) instituted criminal proceedings no. 62202513 under Article 315 § 2 of the CC (official negligence) on the basis of certain evidence gathered within the framework of criminal proceedings no. 122007.12.

On the same date the SIS took over the investigation of case no. 122007.12 and decided to conduct a joint investigation with case no. 62202513. The relevant parts of this decision state as follows;

“It has been revealed as a result of the examination of the materials of the case [no 122007.12] that Hayk Movsisyan had suffered from “organic psychotic disorder ... with attempted suicide” which had been confirmed by the conclusion of the military medical commission and on which basis he had been recognised unfit for military service in peace time ...

Despite this, the investigating authority, that is the Third Garrison Investigation Department, ... had brought charges against him for draft evasion ... while the Syunik regional Court had found him guilty ... and sentenced him to three years ’ imprisonment. Seven days after ... Hayk Movsisyan had committed suicide ...

Having regard to the fact that the materials of case no. 122007.12 contain elements of official negligence on the part of officials in charge of the criminal case concerning Hayk Movsisyan , which has caused grave consequences, a new case has been instituted by [the SIS] ...

Having regard to the fact that criminal cases nos. 122007.12 and 62202513 concern the same incident ...

I decide to join criminal case no. 122007.12 concerning Hayk Movsisyan ’ s suicide and case no. 62202513 on account of official negligence on the part of the authorities engaged in the examination of the criminal case against Hayk Movsisyan ...”

On 11 April 2013 the General Prosecutor lodged an appeal against the judgment of 20 November 2012 seeking Hayk Movsisyan ’ s acquittal.

By its judgment of 16 April 2013 the Criminal Court of Appeal granted the General Prosecutor ’ s appeal and acquitted Hayk Movsisyan .

On 16 May 2013 the General Prosecutor ’ s Office lodged an appeal on points of law against the judgment of 16 April 2013.

On 18 October 2013 the Court of Cassation quashed the Regional Court ’ s judgment of 20 November 2012 and the Court of Appeal ’ s judgment of 16 April 2013 and terminated the proceedings on the grounds of Hayk Movsisyan ’ s death.

In the meantime, on 29 May 2013 the applicant applied to the General Prosecutor of Armenia seeking to be involved in the proceedings concerning criminal case no. 122007.12 and be provided with a copy of the decision to institute those proceedings. The applicant submitted, in particular, that she had no information concerning the investigation into her son ’ s death and that neither she nor any other member of the family had been granted victim status in the proceedings.

On 5 June 2013 the SIS refused to grant the applicant victim status in case no. 122007.12 on the grounds that it had not substantiated that Hayk Movsisyan had committed suicide as a result of ill-treatment, pressure or harassment. As regards the applicant ’ s request to be provided with a copy of the decision to institute criminal case no. 122007.12, she was not involved in the proceedings and therefore was not entitled to receive the document in question. The decision further stated that the applicant could not be granted victim status in criminal case no. 62202513 since it had not yet been established that the officials involved in the criminal case concerning her son had committed an offence under Article 315 § 2 of the CC.

On 27 June 2013 the applicant lodged a complaint against the decision of 5 June 2013 with the Kentron and Nork- Marash District Court of Yerevan ( ‘ the District Court ’ ) seeking to be recognised as the victim ’ s legal successor in the proceedings concerning the death of her son.

By its decision of 16 July 2013 the District Court rejected the applicant ’ s complaint on the grounds that she had failed to appeal to the prosecutor against the decision.

On 17 July 2013 the applicant submitted a request to the SIS seeking to be involved in criminal proceedings no. 62202513.

On 23 July 2013 the SIS again refused to examine the applicant ’ s request on the grounds that it had already examined her identical request of 29 May 2013 while she had not submitted any new arguments.

The applicant lodged an appeal with the General Prosecutor and made a request to be involved in the proceedings.

By letter of 22 August 2013 the applicant was informed that decisions refusing to involve a person in criminal proceedings are not subject to appeal to the prosecutor.

On 18 December 2013 the applicant made a similar request to the investigator. In reply, she was informed by the SIS that her request had not been examined since, by decision of 10 December 2013, criminal proceedings no. 62202513 had been terminated.

On 28 December 2013 the applicant asked the SIS to provide her with the decision of 10 December 2013 and the materials of the case.

By letter of 20 January 2014 the applicant was informed by the SIS that she was not entitled to be provided with copies of the documents sought since she had not been party to the proceedings in question.

On 20 February 2014 the applicant applied to the District Court seeking to have her son recognised as the victim and herself as the victim ’ s legal successor in proceedings no. 62202513 and to oblige the investigator to provide her with the decision of 10 December 2013 and the materials of the case file. She argued, in particular, that her son had been prosecuted and convicted by the authorities of the Republic of Armenia, resulting in his subsequent death in a detention facility in Nagorno Karabakh under the authority of the Republic of Armenia, whereas the victim party had had no possibility whatsoever to participate in the proceedings.

On 30 April 2014 the District Court provided the applicant with the decision of 10 December 2013. As a result, the applicant found out about the results of the investigation carried out by the Nagorno Karabakh authorities in case no. 122007.12 as well as the findings of the SIS. The relevant parts of the decision at issue read as follows:

“It had been established on the basis of the evidence collected by the [ Nagorno Karabakh investigative authorities] that Hayk Movsisyan had not been subjected to any threats, inhuman treatment, psychological pressure or violence ... on the part of the officers or detainees of the [the investigative isolator of the penitentiary department of Nagorno Karabakh Police] ...

...

In the course of the investigation persons in charge of the investigation of the criminal case against Hayk Movsisyan , the prosecutor who had supervised the investigation in that case, the judge, the members of the Central Medical Commission of the Ministry of Defence ... as well as Hayk Movsisyan ’ s parents were questioned and necessary investigative and procedural activities were carried out.

It has not been established, based on the evidence collected in the course of the investigation of the case, that Hayk Movsisyan had been incited to commit suicide as a result of somebody ’ s threats, inhuman or debasing treatment ...

Also, based on the assessment of the evidence collected in the course of the investigation of the case, the examination of the circumstances of the offence committed by [Hayk Movsisyan ], the evidence and the judicial decisions in the case against him, no official negligence, offence against public service and justice or any other offence has been found to have taken place with regard to the performance of their duties by the officials who had conducted the investigation of the criminal case under Article 363 of [the CC] against [Hayk Movsisyan ], had carried out judicial and prosecutorial supervision over that case, had pursued the charges and conducted judicial proceedings.

Thus, no evidence of commission of a crime has been found as a result of the investigation ...”

The applicant lodged an appeal with the General Prosecutor against the decision of 10 December 2013 which was rejected by the latter ’ s decision of 14 July 2014.

On 25 July 2014 the applicant lodged a complaint against the decision of 10 December 2013 with the District Court. The applicant raised a number of detailed arguments in support of her claim that the investigation into the circumstances of her son ’ s death had been flawed and that as a result no reasonable explanation was provided by the State for his death, which had occurred under the full control of the authorities. She also raised a number of arguments with regard to the failure of the authorities to organise proper supervision of her son in view of his known health issues.

It appears that, at the hearing before the District Court on 26 August 2014, the applicant requested the presiding judge to oblige the investigator to submit the materials of the case file to the court. It further appears that M., the presiding judge, granted this request and adjourned the hearing until 9 September 2014.

It appears that at the hearing of 9 September 2014 the presiding judge read out the list of the documents that had been provided by the SIS. The applicant pointed out that the investigating authority had failed to submit the evidence that had served as a basis for the termination of the proceedings by decision of 10 December 2013 and asked for it to be obliged to submit the complete case file. According to the applicant, the presiding judge refused her request and on the same date made a decision to reject her complaint against the decision of 10 December 2013 without having the relevant materials.

On 20 September 2014 the applicant lodged an application against M. with the Council of Justice, arguing that the latter had examined her complaint against the decision to terminate the criminal proceedings without having at his disposal the entirety of the materials that had constituted the basis for that decision. In those circumstances, M. could not have objectively determined whether or not the disputed decision had violated her rights as a victim.

By its decision of 13 October 2014 the Council of Justice refused to institute disciplinary proceedings against M. on the grounds that the latter had not committed gross and undisputable violations of procedural law.

On 25 September 2014 the applicant lodged an appeal against the District Court ’ s decision of 9 September 2014. In addition to her arguments submitted to the District Court, the applicant argued in her appeal that the District Court, without having the necessary materials at its disposal, had failed to conduct a proper judicial review of the decision of 10 December 2013.

It appears that the Criminal Court of Appeal in its turn attempted to obtain the materials of the case from the SIS and adjourned the hearing of 31 October 2014 until receipt of the requested documents. It further appears that the SIS submitted to the Court of Appeal the documents that had already been submitted to the District Court.

According to the applicant, at the hearing of 1 December 2014 the presiding judge had stated that, according to the letter from the General Prosecutor ’ s Office, the prosecution could not provide any other materials. On the same date the applicant requested the presiding judge to make a further attempt to obtain the relevant materials. The judge rejected the request, considering that she had already initiated all possible and necessary means in an attempt to obtain the materials in question.

By decision of 1 December 2014 the Court of Appeal rejected the applicant ’ s appeal.

On 18 December 2014 the applicant lodged an appeal on points of law.

By decision of 20 March 2015, notified to the applicant on 2 April 2015, the Court of Cassation refused the applicant leave to appeal.

B. Relevant domestic law

Article 363 of the Criminal Code, as in force at the material time, set out responsibility for draft evasion by means of self-mutilation, simulated illness or by any other unlawful means. In particular, Article 363 § 1 provided that temporary evasion of performing military service obligations by means of, inter alia , self-mutilation, was punishable by a maximum of three months ’ detention or military confinement for a maximum period of three years or imprisonment for up to th ree years. According to Article 363 § 1, the same offence committed with the purpose of final discharge from military service was punishable by three to six years ’ imprisonment.

Article 315 § 1 provides that an official ’ s failure to perform or to perform properly his duties as a result of bad faith or negligence which has caused a person ’ s death or other grave consequences is punishable by up to five years ’ imprisonment.

COMPLAINTS

The applicant complains under Article 2 of the Convention that the authorities, being aware of her son ’ s health issues, failed to take the necessary measures to protect his life.

She further complains under the same provision that the authorities failed to carry out an effective investigation into her son ’ s death.

The applicant lastly complains under Article 13 of the Convention that, under domestic law, no action for damages was available to her in the absence of the conviction of any particular individual in the criminal proceedings concerning her son ’ s death.

QUESTIONS TO THE PARTIES

1. Do the matters complained of fall within the jurisdiction of Armenia within the meaning of Article 1 of the Convention?

2. Was the applicant ’ s son ’ s right to life, guaranteed by Article 2 of the Convention, violated in the present case?

3. Having regard to the procedural protection of the right to life (see Öneryıldız v. Turkey [GC], no. 48939/99, § 89, ECHR 2004 ‑ XII), was the investigation by the domestic authorities in the present case in breach of the guarantees under Article 2 of the Convention, as alleged by the applicant?

4. Did the applicant have an effective remedy, as required by Article 13 of the Convention, for her complaints under Article 2 of the Convention about the death of her son? In particular, did she have available to her a mechanism by which she could establish the responsibility of any public authority or authorities for that death and obtain damages?

The Government are requested to provide the following:

- a full copy of the indictment of 6 December 2011;

- a copy of expert report no. 49-112 delivered by the Central Medical Commission of the Ministry of Defence and copies of other relevant documents concerning Hayk Movsisyan ’ s early discharge from military service;

- a copy of the record of Hayk Movisyan ’ s arrest dated 20 July 2012;

- a copy of the decision to institute criminal proceedings no. 62202513;

- copies of all relevant documents, including expert reports, records of witness interviews etc. referred to in the decision of 10 December 2013 to terminate the proceedings and which have not already been submitted by the applicant.