Communicated on 28 August 2017

FIRST SECTION

Application no. 67351/13 Mikayel HOVHANNISYAN and Svetlana KARAPETYAN against Armenia lodged on 18 October 2013

STATEMENT OF FACTS

The applicants, Mr Mikayel Hovhannisyan (the first applicant) and Ms Svetlana Karapetyan (the second applicant), are Armenian nationals who were born in 1967 and 1957 respectively and live in Vanadzor and Yerevan. They are represented before the Court by Mr A. Sakunts of the Helsinki Citizens ’ Assembly Vanadzor Office and Mr A. Zalyan, a lawyer practising in Vanadzor.

A. The circumstances of the case

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

The first applicant is the father of Robert Hovhannisyan, deceased at the age of 19. The second applicant is the mother of Andranik Sargsyan, deceased at the age of 21.

Robert Hovhannisyan and Andranik Sargsyan were drafted into the Armenian Army in 2009 and 2008 respectively. They were both assigned to military unit no. 36534 ( ‘ the military unit ’ ), situated in the unrecognised Republic of Nagorno Karabakh.

On 28 July 2010 at around 6 p.m. Robert Hovhannisyan and Andranik Sargsyan and four other servicemen, V.T., G.H. A.M. and K.A., were found dead with gunshot wounds in military position no. 147 of the military unit.

It appears that on the same date the Second Garrison Investigation Department made a decision to institute criminal proceedings into the matte r under Article 104 § 2 (1) of the Criminal Code of Armenia (murder of two or more persons).

On the same date the investigator assigned post-mortem examinations of the bodies of Robert Hovhannisyan, Andranik Sargsyan, G.H., A.M., V.T. and K.A. to determine, inter alia , the cause of death, the presence of injuries and, if there were any injuries, the time of their infliction, as well as the presence of evidence of alcohol consumption.

On 29 July 2010 the investigator interviewed a number of servicemen, including V.P., deputy commander of the military unit, S.G., deputy chief of staff of the military unit, private H.P., squad commander, M.M., platoon commander and private D.H., squad commander.

In particular, V.P. stated at his interview that at around 5 p.m. on 28 July 2010 he had gone to military position no. 147 with S.G., where they had discovered that the servicemen on duty at the observation post (Andranik Sargsyan and K.A.) were asleep. He had then reprimanded the servicemen in question, ordered them not to undertake any actions in the military position and told them that the issue of their disciplinary responsibility would be considered immediately after their shift in the military unit. He had then left the military position and had been informed about 30-40 minutes later that six dead bodies had been found there.

S.G. stated, inter alia , that on 28 July 2010 he had gone to military position no. 147 with V.P. upon the orders of F.B., the military unit commander. On arriving, he had gone up to the observation post with privates G.H. and D.H. where they had discovered Andranik Sargsyan and K.A. asleep. He had not allowed senior lieutenant V.T. to approach the observers, as he suspected that V.T. might hit them. At around 6.30 p.m. on the same day he had been informed that there were victims at military position no. 147. He, V.P. and other officers had returned and discovered six bodies in front of the dugout.

Private D.H. stated, in particular, that at around 5.30 p.m. on 28 July 2010 they had received a call from the military position next to them, informing them that V.P and S.G. were inspecting observation posts. He had escorted them to the observation post where S.G., who was first to enter the post, had discovered that both observers were asleep. When Andranik Sargsyan and K.A. had returned from the observation post, senior lieutenant V.T. had ordered them very angrily to take out their weapons. At that point D.H. was in the dugout and could hear V.T. arguing with Andranik Sargsyan and K.A. outside. That had happened at around 6.15 p.m. Thereafter he had heard slaps and, looking out of the window, had seen V.T. beating Andranik Sargsyan. At that point G.H. had been trying to take V.T. away. At that moment he had heard someone shouting “Robert, no, no, no”. At the same time, he had heard an assault rifle being loaded. Immediately afterwards he had heard a long burst of automatic fire. After it was finished, he had heard someone entering the dugout and thought that it was the person who had been shooting. Frightened, he had hidden between the door and the refrigerator. A couple of seconds later he had heard one single shot, followed by silence. He had then run from the dugout and on his way, on the stairs, he had discovered A.M. ’ s body. He had then seen four other bodies lying on the ground.

According to the statement of private H.P., who had taken the shift in the observation post after Andranik Sargsyan and K.A., he had woken up at around 5.45 p.m. in order to prepare for the shift change. When he had left the dugout, he had seen V.T., A.M. and Robert Hovhannisyan, who was a little further down the street, next to the dugout. Prior to leaving, standing by the door, he had heard V.T. swearing at the sentries who had been found asleep. Inside the trench, on the way to the observation post, he had seen Andranik Sargsyan and K.A. coming back. He had then taken over the shift with another serviceman and about 2 to 3 minutes later they had heard a long burst of continuous gunfire. Then a single shot had been heard 6 to 7 seconds after the gunfire had stopped. Since the observers were not allowed to leave the observation post during their shift, they had stayed where they were. He and the other observer had left the observation post when other officers came to replace them. They had then gone down towards the dugout and seen the bodies. At that point it was clear that K.A. had shot the others since his body was in the trench and it looked as if he had committed suicide, while the others were a bit further away - Andranik Sargsyan, V.T. and G.H. next to each other and Robert Hovhannisyan was about 50 cm away from them. It appears that at his subsequent interviews H. stated that V.T. had been very strict about service, and rude. In his opinion, the incident could have been prevented had V.T. been more tolerant towards Andranik Sargsyan and K.A. He believed that K.A. had shot the servicemen; in his opinion, none of the others would have done so. He also stated that, to his mind, the incident could have been prevented had V.T. ordered Andranik Sargsyan and K.A. to put away their weapons after they had returned from their shift, as required by regulations.

On an unspecified date, the Minister of Defence of Armenia ordered an internal investigation into the incident which had taken place at the military unit on 28 July 2010.

On 3 August 2010 the investigator ordered a ballistic examination of samples taken from the bodies of V.T., Andranik Sargsyan, K.A. and A.M. According to the ballistic experts ’ report delivered on 14 September 2010, the samples taken from V.T. and K.A. contained traces of gunshot residue. Taking into account the quantities of antimony metal, the traces discovered in samples taken from V.T. indicated contact with a weapon, or a shot fired from one, while the traces in samples taken from K.A. were the result of having fired a shot (shots).

On 10 August 2010 the Minister of Defence issued an order based on the results of the internal investigation. The relevant parts of that order read as follows:

“On 28 July ... [K.A.] had fired at his co-servicemen with the Kalashnikov hand ‑ held machine gun assigned to him, as a result of which 5 servicemen died instantly, after which he committed suicide.

It was revealed during the internal investigation that ... [K.A.], seeing [V.T. beating up Andranik Sargsyan] and having realised that he would be next, had taken the hand ‑ held machine gun assigned to him ... and fired ... Thereafter he had taken a loaded magazine from one of the deceased, attached it to his machine gun, entered the trench and committed suicide by firing a shot into his mouth.

In 1992 private [K.A.] had left for the United States with his mother, where he had been convicted of numerous counts of burglary, car theft, possession of illegal firearms and drugs and escape from a correctional facility.

In 2009 [K.A.] was deported from the United States to the Republic of Armenia and drafted into the army.

It has also been revealed during the internal investigation that:

the incident is the consequence of gross violation of rules for carrying out military duty ... as well as humiliation and ill-treatment of servicemen by senior officers...

The incident would not have happened if:

...

2) the personal data concerning conscripts, their characteristics had been adequately examined in the military unit, the criminal offences committed previously by servicemen had been examined in detail...

...

5) the command of the military unit ... had examined the circumstances of [K.A. ’ s] stay in the USA, the offences committed by him, his deportation from the USA and his conscription for military service in the Armenian army...”

Pursuant to the above order, a number of high-ranking officers, including V.P., were demoted while others, including F.B., the military unit commander, and S.G., were transferred to the reserve.

It appears that K.A. had lived in the United States with his mother since he was three years old. He had been convicted of various offences, including several counts of burglary, possession of illegal firearms and drugs, car theft and escape from a juvenile correctional facility. According to the applicants, an American court had issued a restraining order against him, according to which he should not have access to weapons.

It further appears that once in Armenia, K.A. had submitted documents concerning his previous convictions in the United States to the relevant military authorities. By letter of 28 October 2009 the Military Commissar of the Arabkir District of Yerevan reported to the Ministry of Defence that K.A. had submitted documents concerning his criminal record in the United States and enquired whether he was subject to conscription. By a letter of 27 November 2009 the Military Commissar of Arabkir District was informed by the Head of the Ministry of Defence Legal Department that K.A. ’ s personal file had been transmitted to the Military Prosecutor who had stated that he was subject to conscription in accordance with Article 11 § 2 of the Law on Conscription. Taking into account the opinion of the Military Prosecutor, it had been decided to draft K.A. into the army.

On 30 September 2010 the autopsy results were received.

According to report no. 712/35, Andranik Sargsyan had died as a result of gunshot injuries to the waist, buttocks and thigh. Non-ballistic injuries were also found on his body, in the form of abrasions on his elbow and lower arm. These injuries had been inflicted by blunt objects shortly before death or when he was dying. The bio-chemical examination of Andranik Sargsyan ’ s blood sample had shown the presence of 1 per mille ethyl alcohol, which corresponds to low-level alcohol intoxication.

According to report no. 729, Robert Hovhannisyan had died as a result of a ballistic trauma to the head. Other ballistic injuries had been found on his thigh, arms and stomach. The bio-chemical examination of Robert Hovhannisyan ’ s blood sample had shown the presence of 2.6 per mille ethyl alcohol, which corresponds to high-level alcohol intoxication.

According to report no. 60, G.H. had died as a result of ballistic injuries to the chest, stomach, thigh and legs. The bio-chemical examination of blood and urine samples taken from the body had shown the presence of 0.74 and 0.3 per mille ethyl alcohol in blood and urine respectively. Such amounts correspond to low-level alcohol intoxication.

According to report no. 36, A.M. had died as a result of ballistic injuries to various internal organs and elsewhere on the body. Non-ballistic injuries in the form of abrasions in the left corner of the mouth and on the back and upper extremities, bruises on the chest which were inflicted either shortly before death or in the dying moments with blunt objects or tools, were also present. The bio-chemical examination of samples taken from his body had shown the presence of 1.43 and 0.4 per mille ethyl alcohol in the blood and urine samples respectively, which corresponds to low-level alcohol intoxication.

It appea rs that according to report no. 714/36 received on the same date, V.T. had died as a result of ballistic injuries to the neck, chest, stomach, thigh, upper and lower extremities. The bio-chemical examination of V.T. ’ s blood sample had shown the presence of 1.8 per mille ethyl alcohol, which corresponds to high-level alcohol intoxication.

It appears that according to report no. 161, again received on the same date, K.A. had died as a result of ballistic trauma to the skull with the bullet entry hole situated inside the mouth. The bio-chemical examination of K.A. ’ s blood sample had shown the presence of 3.6 per mille ethyl alcohol, which corresponds to high-level alcohol intoxication.

On 28 July 2012 the investigator decided to terminate the proceedings on the ground that the persons who had committed offences, namely K.A. (murder of two or more persons) and V.T. (aggravated abuse of power), were dead. The investigator, with reference to witness statements, the results of forensic medical and other examinations, found the following to have been established:

“... on 28 July 2010 at around 6 p.m. V.T. ... had kicked Andranik Sargsyan in the chest, then punched him in the temple and, having knocked him to the ground, started kicking him in different parts of the body. Military position senior G.H. had tried to intervene and put an end to the beating. At that point ... K.A. had picked up from the ground the ... loaded machine gun ... assigned to him and ...

opened burst fire at V.T. as well as conscripts G.H., Andranik Sargsyan, Robert Hovhannisyan and A.M. thereby killing them; he had then changed the empty bullet magazine, entered the trench, put the barrel of the machine gun in his mouth and committed suicide by firing a single shot.

Thus, senior lieutenant V.T. ... had abused power by beating up [Andranik Sargsyan] for breach of rules of military duty by the latter and K.A. and, having negligently caused grave consequences, had com mitted an offence under Article 375 para. 2 of the Criminal Code ... private K.A. had committed an offence under Article 104 para. 2 (1) of the Criminal Code ... K.A. ’ s suicide was also connected with senior lieutenant V.T. ’ s actions.

Taking into account that V.T. and K.A. have died after committing an offence, it is not possible to prosecute them...”

The applicants appealed against the investigator ’ s decision of 28 July 2012 to the Military Prosecutor on the ground that the investigation into the incident had not been adequate. In particular, they argued that in the circumstances where it had been established that G.H., Andranik Sargsyan and A.M. had been in a state of low-level alcohol intoxication while Robert Hovhannisyan, K.A. and V.T. had had high-level alcohol intoxication, the investigating authority had failed to clarify at what point and how the servicemen had consumed alcohol while on military duty and to find out how they had acquired the alcohol. No explanation was given for the non-ballistic injuries present on A.M. ’ s body. Also, having established that V.T. had possibly been in contact with a gun or had fired one, the investigating authority had failed to address the issue. Furthermore, it was essential to clarify the reason for K.A. killing the other servicemen in a situation where it was believed that he had fired at V.T. on seeing him using violence against Andranik Sargsyan. Therefore, the investigation had failed to clarify K.A. ’ s motive for killing the other servicemen. The applicants additionally argued that the investigation had not adequately addressed the issue of the lawfulness of K.A. ’ s conscription in view of his past criminal record and whether the fact of having ignored a court order, whereby K.A. was not to have access to firearms, had not led to the tragic events of 28 July 2010.

By a decision of 26 October 2012 the Military Prosecutor dismissed the applicants ’ appeal.

On 14 November 2012 the applicants disputed the investigator ’ s decision of 28 July 2012 before the Arabkir and Kanaker-Zeytun District Court of Yerevan (the District Court), raising similar arguments to those submitted before the Military Prosecutor.

On 8 January 2013 the District Court dismissed the applicants ’ complaint.

The applicants lodged an appeal which was dismissed by a decision of the Criminal Court of Appeal of 20 February 2013.

The applicants lodged an appeal on points of law which was declared inadmissible for lack of merit by a decision of the Court of Cassation dated 18 April 2013.

It appears that after the incident of 28 July 2010, the applicants received compensation for funeral costs and a lump-sum for social security death benefits. A decision was made to pay them monthly support in the amount of AMD 30,000 (approximately EUR 55).

B. Relevant domestic law

Criminal Code (as in force at the relevant time)

According to Article 4 § 2 (1), murder of two or more persons shall be punishable by eight to fifteen years ’ imprisonment or a life sentence.

According to Article 375 § 2, abuse of power which has negligently caused grave consequences shall be punishable by three to eight years ’ imprisonment.

Civil Code (in force since 1 January 1999)

According to Article 17 § 1, the person whose rights have been violated may claim full compensation for the damage suffered, unless the law or contract envisages a lower amount of compensation.

According to Article 17 § 2, damages are the expenses borne or to be borne by the person whose rights have been violated, in connection with restoring the violated rights, loss of his property or damage to it (material damage), including lost income.

Article 18 provides that damage caused to natural or legal persons as a result of unlawful actions (inaction) of state and local self-government bodies or their officials is subject to compensation by the Republic of Armenia or the relevant local community.

Article 1077 § 2 provides that damage caused to the life or the health of a person while performing, inter alia , military service is compensated in accordance with the rules prescribed by the Civil Code, if stricter liability is not provided for by statute or contract.

According to Article 1087, persons responsible for damage linked to the victim ’ s death shall reimburse the necessary funeral expenses to the person who has incurred such expenses.

The Law on Conscription of 16 September 1998

Article 11 § 2 provides that persons in respect of whom an investigation or judicial proceedings are being conducted or who have previously been sentenced to imprisonment for grave crime or at least two counts of intentional crimes and have served their punishment in a detention facility for not less than three years, as well as if they have committed an offence included in the list approved by the Ministry of Defence or the General Prosecutor ’ s office, shall not be subject to conscription for mandatory military service.

The Minister of Defence states the manner of conscription or registration in the reserve of those persons who have been sentenced to imprisonment in the past and have served punishment for less than three years.

COMPLAINTS

The applicants complain under Article 2 of the Convention that the State failed to protect the lives of their sons during their military service. They further complain under the same provision and Article 13 that the authorities failed to conduct an effective investigation into their sons ’ deaths, because not all the circumstances of their deaths were clarified and not all the persons responsible for their deaths were identified and punished. They also complain of the lack of a possibility under the domestic law at the relevant time to claim compensation from the State for non-pecuniary damage suffered as a result of their sons ’ deaths.

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 applicants ’ sons ’ 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 Articles 2 and 13 of the Convention, as alleged by the applicants?

4. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 2 of the Convention, as required by Article 13 of the Convention? In particular, was the fact that no compensation for non ‑ pecuniary damage was available to them compatible with the requirements of that Article?

The Government are requested to provide copies of relevant documents concerning the examination of the issue of K.A. ’ s conscription and the resultant decision to draft him into the army. They are further requested to provide a copy of the record of the examination of the crime scene, copies of expert autopsy reports nos. 714/36 and 161 and copies of records of any other investigative measures such as witness interviews, confrontations and so on that the Government considers relevant.