Communicated on 28 March 2017

FIRST SECTION

Application no. 3673/11 Anahit MKRTCHYAN against Armenia lodged on 10 January 2011

STATEMENT OF FACTS

The applicant, Ms Anahit Mkrtchyan, is an Armenian national who was born in 1952 and lives in Baghramyan village, Armenia. She is represented before the Court by Ms A. Melkonyan, a lawyer practising in Yerevan.

A. The circumstances of the case

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

In June 2000 the applicant ’ s son, Arayik Avetisyan, was drafted into the Armenian army. He was assigned to military unit no. 70179 (“the military unit”) situated in the town of Vayk, Armenia.

On 30 October 2001 at around 8.30 p.m. Arayik Avetisyan, aged 22, died as a result of a gunshot wound in the office of the Chief of the third battalion headquarters of the military unit. According to the official version, conscripts K.S., A.K., K.G. and S.M. were in the room with Arayik Avetisyan when he died.

On the same date the place of the incident was examined and a record was drawn up, according to which Arayik Avetisyan ’ s body had been found on the floor in front of the entrance door. The record stated, inter alia, that there was a perforating ballistic trauma to the upper brow area of the deceased ’ s body and that there were blood stains in the area around the head and feet. In the course of the examination of the scene of the incident the military unit doctor stated that, initially, the deceased had been in a seated position with his right knee bent on the floor and his head inclined on a cardboard box under the computer. The doctor stated that he had laid the deceased on the floor in order to provide him with assistance.

On the same date another record was drawn up according to which senior lieutenant S.H., deputy of the third battalion commander of the military unit in charge of armament, had handed over a Makarov LR 2009 pistol and a cartridge belt with seven bullets in his office. Also, S.H. stated that at around 8.30 p.m. he had heard a shot next door, whereupon he had immediately entered the room of the Chief of the battalion headquarters and, in such a hectic situation, he had taken the Makarov pistol from the black table and moved it to his office, where he had unloaded it and placed it on the metal cabinet.

It appears that S.H. had received the Makarov pistol in question earlier that day to hand to M., battalion commander, who was assigned on duty shift the next day.

On 31 October 2001 criminal proceedings were instituted into the circumstances surrounding Arayik Avetisyan ’ s death. The decision to institute criminal proceedings stated that at around 9 p. m. on 30 October 2001 private K.S. had taken the battalion commander ’ s Makarov LR 2009 pistol from the office of the Chief of the battalion headquarters and, being unaware of the fact that it was loaded, and in breach of the rules for safe firearm handling, had fired it, as a result of which the bullet had hit conscript Arayik Avetisyan, causing his death.

On the same date a forensic medical examination of Arayik Avetisyan ’ s body was ordered. The expert was requested to determine, inter alia , the cause of the death, whether any injuries were present on the body and, if so, the time and manner of their infliction and their link with the death.

On the same date K.G. was interviewed as a witness and stated, in particular, the following:

“... at around 8.30 p.m. on 30 October 2001 I went to the office of the Chief of the third battalion headquarters of the military unit to use the computer... [S.M.] was in the same room ... I do not remember whether [A.K.] was also there. About 20 minutes later [S.K.] entered the room... Thereafter senior Arayik Avetisyan came into the room. I do not remember exactly whether [Arayik Avetisyan] came first or [K.S.]. I got very scared of the incident and do not remember certain things... [Arayik Avetisyan] had come to the room to take some documents. As far as I remember there were four of us in the room: me, [K.S.], [Arayik Avetisyan] and [S.M.]. A bit later ... [S.H.] gave S.M. a Makarov gun ... to be handed to ... [M.]. I understood that it was the gun assigned to [M. ] ... [S.M.] put the gun on the table which was in front of the cupboard to the right of the entrance... I do not remember exactly whether it was [S.H.] or [S.M.] who put the gun on the table, but it was one of them. Having approached the table, [Arayik Avetisyan] took the gun and said: “This is my gun; what is it doing here?” He said that as a joke. At that moment [K.S.], who was next to [Arayik Avetisyan], took the gun from him and said: “No, this is my gun”. They were joking. At that point both of them were by the table, after which [Arayik Avetisyan] moved backwards. I was standing by the window, next to the metal cupboard. Having taken the gun, [K.S.] loaded it and held the gun barrel up, towards [Arayik Avetisyan] after which a shot was fired. At that moment [Arayik Avetisyan] was standing next to the computer desk with his back towards the metal cupboard, half-turned with his face towards [K.S.] ... As a result of the shot [Arayik Avetisyan] fell to the floor in between the metal cupboard and the computer desk... I realised that the bullet had hit [Arayik Avetisyan] ... I saw that ... the bullet had hit his forehead and there was bleeding. I bent to lift him up but realised that he had died, there was no way out and I left the room because I was scared. I never went back to that room. I have heard that doctor ... moved the body in order to provide assistance.”

At his interview as a witness, conducted on the same date, S.M. stated, inter alia , that he had been in the room with A.K., Arayik Avetisyan, K.S. and K.G. when S.H. asked him to take the battalion commander ’ s gun to hand it to the latter ’ s adjutant. He had received the gun in the office of S.H. who, before handing the gun to him, had loaded the magazine and put it back into the gun. Thereafter he had returned to the office of the Chief of the third battalion headquarters and put the gun on the table. He had then left the room to meet an officer to whom he was supposed to hand over a package. However, that officer had already left and he had turned to go back to the office when he heard a shot and saw [K.S.] come running out. At that moment S.H. had come to the room to find out what had happened and approached Arayik Avetisyan. S.H. had then placed Arayik Avetisyan ’ s head on the box underneath the computer and given orders to call a doctor. The doctor laid Arayik Avetisyan on the floor to provide first aid but said that it was too late. S.M. further stated that he had not seen who had taken the gun since he had left the room.

When questioned as a witness on the same date, K.S. gave a similar account of the events and stated that he had fired the gun without knowing that it was loaded.

On 6 November 2001 A.K. was questioned as a witness and stated, inter alia , that [K.S.] had shot at Arayik Avetisyan despite the latter asking him not to point the gun at him right before the shot. A.K. also stated that Arayik Avetisyan had no issues with fellow servicemen, with the exception of battalion commander M., who in general did not treat officers well. According to A.K., M. was not present at the time of the incident. He further recounted several episodes of Arayik Avetisyan having been abused by M. First, although he had not personally witnessed it, he had been told by the officers that M. had beaten up Arayik Avetisyan. Second, at the end of the summer or beginning of autumn 2001 he had seen Arayik Avetisyan with a black eye. Later that day Arayik Avetisyan had told the officers that M. had hit him in the eye. Also, probably in August 2001, M. had beaten up Arayik Avetisyan and several other officers. A.K. described various other episodes of officers ’ verbal and physical abuse by M.

On the same date a combined ballistic, traceological and criminalistics examination was ordered to determine, among other things, whether there were any fingerprints on the Makarov pistol and, if so, whether they belonged to K.S., S.H., S.M., K.G., A.K. or Arayik Avetisyan and whether the pistol had been cleaned after it had been fired for the last time.

On 7 November 2001 K.S. was charged with intentional homicide. The decision to bring charges against K.S. stated, in particular, that he had taken the gun, loaded it, pointed it at Arayik Avetisyan and fired, thereby killing the latter for reasons not clarified during the investigation.

On 8 November 2001 S.M. was questioned again and stated, inter alia , that he had seen [K.S.] taking the gun from the table after he had put it there and when he was leaving the room, [K.S.] had the gun. Contrary to his previous statement, S.M. stated that he had been in the room at the time of the shot. He further stated that, when [K.S.] had directed the gun at Arayik Avetisyan, he had told [K.S.] that the gun was loaded but right at that moment the latter had fired.

On 30 November 2001 the forensic medical expert S.S. delivered his report. The relevant parts of the report read as follows:

“... [Arayik Avetisyan ’ s] death had been caused by functional brain failure as a result of a perforating ballistic trauma to the cranium... The following injuries have been revealed during the examination of the body: a wound in the right part of the forehead ([bullet] entry), frontal bone fracture with the wound trajectory... occipital bone fracture from the left side, a wound on the left side of the occipital area ([bullet] exit), a haematoma on the right side of the forehead, bruise on the back side of the left parietal bone. The haematoma and the bruise have been inflicted by a blunt object or tool having a limited surface, while still alive... There are no medical methods to determine the sequence of the injuries. Death occurred immediately after the infliction of the injuries. At the time when Arayik Avetisyan received the injuries, he had been facing towards the barrel of the firearm. The ballistic wound trajectory is directed from the front to the back, right to the left, top to bottom...”

On the same date K.G. was questioned again and stated, inter alia , that he was aware that M. had hit [Arayik Avetisyan] several times.

On 12 December 2001 the results of the combined ballistic, traceological and criminalistics examination were received. According to the experts ’ report, no fingerprints had been discovered on the gun submitted for examination

On 28 December 2001 the applicant was interviewed and stated, in particular, that from the very first days of service in the military unit her son had been physically abused, frightened and humiliated. The command had also extorted money from him. During his aunt ’ s visit he had told her of his intention to change battalion because of M., the commander. After some time he had managed to change battalion. However, 2-3 days later M. had beaten him up, sworn at him and taken him back to the third battalion, after which his life had become unbearable since he was being physically abused on a daily basis. On 20 October 2001 M. had sent Arayik Avetisyan to visit his family with the condition that he should bring back 2 litres of homemade vodka and 100 US dollars. However, finding the requested amount was an impossible task for the applicant due to her family ’ s difficult financial situation. When her son was to return to the military unit on 28 October 2001, she had promised him that she would raise the necessary amount and send it to him. Thereafter, having learnt of their son ’ s murder on 31 October 2001, both she and the father suspected M. right away.

On 21 December 2001 a combined ballistic, micro-particle criminalistics and medical forensic examination was assigned to determine, inter alia , whether the non-ballistic injuries discovered on Arayik Avetisyan ’ s head could have been sustained as a result of his falling after he received the gunshot injury.

On 25 February 2002 the experts ’ report in the above forensic examination was delivered. It stated, in particular, that it could not be ruled out that the occipital bone fracture from the left side discovered on Arayik Avetisyan ’ s head had been sustained as a result of the latter ’ s fall after the shot, but the haematoma to the right side of the forehead had been inflicted directly by a blunt object or tool having a limited surface.

At his additional questioning on 18 June 2002 K.G. stated, inter alia , that after having loaded the gun [K.S.] had suddenly lifted the gun, directed it rapidly at [Arayik Avetisyan ’ s] head and pulled the trigger.

On 29 June 2002 A.K. was interviewed once again. He stated, in particular, the following:

“... my previous statements were not truthful, I made them because I was scared. Now I have a bad conscience and I have decided to tell the truth. On 30 October 2001 at around 8.30 p.m. I went to the office of the Chief of headquarters ... [S.M.] and [K.G.] were there ... About five minutes later Arayik Avetisyan and [K.S.] entered the room... They asked S.M. about ... At that very moment battalion commander [M.] entered ... The commander asked [Arayik Avetisyan]: “You went home, why have you brought only half of the amount?” to which [Arayik Avetisyan] replied: “Commander, the family did not have enough, I have brought what there was.” Without saying anything, the commander had grabbed [Arayik Avetisyan] by the back of his collar, knelt [Arayik Avetisyan] facing towards him and, having pulled his gun with the other hand ..., hit [Arayik Avetisyan] hard, twice, in the occiput with the grip... The commander grasped [Arayik Avetisyan] by the chest with one hand and pulling him up ... said ... [Arayik Avetisyan] took a breath and wanted to say something. At that very moment there was a shot... I saw right away that there was a gunshot wound on his forehead ... I realised that he was dead... Several seconds later [S.H.] and lieutenant [N.] ran into the room. [S.H.] asked, shouting, who had fired the shot, nobody answered. At that point I looked at [M.]. He was standing by the door with the gun in his hand, doing and saying nothing... then [S.H.] told [S.M.] to wash the gun... After some time I tried to go back to the room to see what was going on but the Military Police officers, who had arrived by then, would not let me in... nobody asked me any questions about the incident. The next morning the Military Police officers ... took me to the Military Police Department in Yerevan. I was kept there in the same cell with [K.G.] and [S.M.]. [K.S.] stayed with us in the same cell for two days. He told us there that he had taken responsibility for the murder... all together agreed to testify that way ... I was obliged to testify the way they said since I was afraid that my statement wouldn ’ t stand against theirs and I would find myself in a bad position... I repeat that on the day in question battalion commander [M.] first hit [Arayik Avetisyan] on the head with the grip of the gun and then killed him.”

On 15 August 2002 K.S. was questioned again and reiterated that he was the one who had accidentally shot Arayik Avetisyan. When asked whether he was trying to cover up someone else ’ s guilt in Arayik Avetisyan ’ s murder, K.S. denied having been subjected to any kind of ill-treatment and stated that he had made his statements without any pressure.

On 19 August 2002 the investigator questioned A.K. once again. At his interview A.K. fully retracted his statement of 29 June 2002 and insisted on his initial statement according to which it was K.S. who had shot Arayik Avetisyan. He claimed that any other circumstances mentioned by him before were the result of his imagination. At the same time, he stated that he had not been subjected to any type of ill-treatment during his interview on 29 June 2002.

On 13 September 2002 a ballistics examination was assigned to determine whether gunshot residue was present on M. ’ s military attire and, if so, whether it originated from a shot fired from the Makarov pistol.

On 2 November 2002 the General Prosecutor approved the bill of indictment whereby the charges against K.S. were modified and he was charged under Article 259.1(c) of the old Criminal Code (the old CC) for having breached the rules for safe firearm handling, which had resulted in a person ’ s death. S.H. was charged with handing over a service weapon to another person whose actions had caused a person ’ s death. S.M. was charged with careless storage of a firearm which had resulted in its use by another person, causing death. The prosecution thus found it established that Arayik Avetisyan had died as a result of an accidental shot fired by K.S. Also, charges unrelated to Arayik Avetisyan ’ s death were brought against M. for several episodes of ill-treatment of servicemen. The case was transferred to Vayots Dzor Regional Court (the Regional Court) for examination on the merits on the same date.

By a decision of 9 December 2002 the Regional Court remitted the case to the prosecution for further investigation finding, in particular, that the prosecution had failed to address a number of contradictions between the statements of the accused and witnesses, notably those of K.S. and A.K. and the available forensic data. Also, in contrast to the conclusions of the prosecution, there was ample witness evidence showing that K.S. had shot Arayik Avetisyan intentionally.

Upon appeal by the accused, on 7 February 2003 the Court of Cassation upheld the Regional Court ’ s decision as regards K.S. finding, in particular, that the investigating authority had not properly assessed the evidence. This had resulted in the necessity to bring charges against K.S. for another offence having a higher degree of gravity. At the same time, the Court of Cassation quashed the Regional Court ’ s decision as regards the other accused. The case was thus remitted to the Regional Court for examination as regards S.H., S.M. and M.

On 17 February 2003 the prosecution severed the part concerning S.H., S.M. and M. from the case and sent it to the Regional Court for examination on the merits.

On 30 June 2003 the General Prosecutor approved the bill of indictment in respect of K.S. whereby the latter was charged under Article 259.1(c) of the old CC. The prosecution found it established that K.S. had taken the gun from Arayik Avetisyan and, in breach of the rules for safe firearms handling, had loaded it and then played with the gun by turning it right and left, at which time the gun had gone off at the point when its barrel was directed at Arayik Avetisyan. The case was transferred to the Regional Court for examination on the same date.

By a decision of 28 July 2003 the Regional Court remitted the case to the prosecution for further investigation. In doing so, it stated that the prosecution had ignored the requirements of the Court of Cassation ’ s decision of 7 February 2003.

The prosecution lodged an appeal which was rejected by the Court of Appeal on 27 August 2003. The Court of Appeal found, in particular, that no new evidence had been collected during the further investigation but the prosecution had brought the same charges against K.S. Therefore, the flaws in the investigation had not been eliminated.

On 22 October 2003 the prosecution issued a new indictment whereby K.S. was again charged with breaching the rules for handling weapons, negligently causing a person ’ s death under Article 373 § 3 of the new Criminal Code, which had in the meantime entered into force. The case was sent to the Regional Court for examination.

In the course of the trial K.S. fully admitted his guilt and testified that he had unintentionally loaded the gun and shot Arayik Avetisyan through negligence.

By the judgment of 23 December 2003 the Regional Court found K.S. guilty as charged and sentenced him to six years ’ imprisonment.

The applicant lodged an appeal.

In the proceedings before the Court of Appeal, K.S. refused to testify or answer the majority of the questions put to him.

On 19 July 2004 the Court of Appeal quashed the Regional Court ’ s judgment and remitted the case to the prosecution for further investigation. In doing so, the Court of Appeal stated, inter alia , the following:

“In the course of the investigation witness A.K. made an additional statement [on 29 June 2002] that...

A.K. later retracted this statement while he stated in the Court of Appeal that the statement [of 29 June 2002] had been written by the investigator and he had merely signed it, had not read it, and when it was found out during the trial proceedings that the statement had been written by A.K., the latter explained that the investigator had dictated the text to him... when asked how he could mention circumstances in his statement that were true, he once justified that he had made them up and those had coincided with the truth accidentally, whereas another time he stated that he had made a guess from the questions put to him.

... the investigating authority has failed to establish the origin of the victim ’ s non ‑ ballistic injuries ...”

By a decision of 17 September 2004 the Court of Cassation upheld the decision of 19 July 2004.

The investigation was restarted and several forensic examinations ordered, including an additional combined ballistic, chemical and medical forensic examination to find out, inter alia , whether Arayik Avetisyan ’ s ballistic injury could have been sustained in the circumstances described by K.S., S.M. and K.G. in their respective statements and whether Arayik Avetisyan could have sustained his non-ballistic injuries as a result of his fall after the shot. The experts were also asked to establish the diameter of the bullet entry hole on Arayik Avetisyan ’ s body.

On 31 May 2005 the experts ’ commission delivered its report which stated, in particular, that, taking into account the location of the victim ’ s gunshot wound and the distance from the bullet hole on the wall in the room where the incident had taken place, Arayik Avetisyan could not have sustained his ballistic injury in the circumstances described by K.S. and witnesses S.M. and K.G. The non-ballistic injuries discovered on Arayik Avetisyan ’ s head, notably the haematoma to the right side of the forehead, could not have been caused by his fall but had been inflicted by blunt, firm objects or tools having a limited surface. As for the diameter of the bullet entry hole, the experts stated that it could be determined only after the exhumation of the victim ’ s body, taking into account that there was conflicting data in the case file concerning the diameter of the gunshot wound on the victim ’ s head and the diameter of the bullet submitted for examination.

It appears that the applicant refused to agree to the exhumation of Arayik Avetisyan ’ s body.

In November 2008 the investigation of the case was taken over by the Investigative Department of the Ministry of Defence.

By a decision of 8 February 2009, senior investigator P. made a decision to discontinue K.S. ’ s prosecution for lack of evidence to prove the charges and the absence of further possibilities of collecting new evidence.

On 10 February 2009 P. decided to stay the proceedings on the ground that the investigation had not been capable of identifying the person who had killed Arayik Avetisyan, although all possible investigative measures had been taken. The investigator thus decided to stay the proceedings until the discovery of the person against whom charges should be brought and ordered the Military Police to continue the operative and search activities in order to find the offender. The applicant unsuccessfully contested this decision before the supervising prosecutor and then the Military Prosecutor ’ s Office.

On 15 February 2010 the applicant requested that the proceedings be resumed and that certain other servicemen of the military unit be interviewed.

On 18 February 2010 the investigator partially granted the applicant ’ s request and ordered interviews of certain servicemen and other investigative measures to be carried out, without resuming the proceedings.

On 15 June 2010 the applicant contested P. ’ s decision to stay the proceedings before the Kanaker-Zeytun District of Yerevan (the District Court). She argued, inter alia , that the evidence in the case proved that M. had committed the murder.

It appears that on 9 July 2010 the District Court refused to examine the applicant ’ s complaint for failure to respect the time-limits for contesting the decision of 10 February 2009 whereby the proceedings were stayed.

On 29 July 2010 the applicant once again requested that the proceedings be resumed and further investigative measures carried out, including exhumation, in order to identify the person who had fired the shot.

On 7 August 2010 the investigator decided to grant the applicant ’ s request in part, that is to exhume Arayik Avetisyan ’ s body with her consent and to order an additional combined forensic medical and ballistic examination, as well as conducting other investigative measures, without resuming the proceedings.

The applicant appealed against this decision to the Military Prosecutor requesting that the proceedings be resumed and other hypotheses be considered, including M. ’ s personal or direct involvement in the crime, the personal or direct involvement of one of those present in the room, and so on.

By a letter of 19 October 2010 from the Military Prosecutor ’ s Office, the applicant was informed that her requests had been addressed previously in various other decisions.

The applicant subsequently contested the prosecution ’ s refusal in a letter of 19 October 2010 asking for the proceedings before the District Court to be resumed. She argued that the investigation into Arayik Avetisyan ’ s death had not been effective, and in these circumstances the proceedings should be resumed in order to identify the person responsible for his death.

On 12 January 2011 the District Court rejected the applicant ’ s complaint on the ground that investigative measures could be undertaken in respect of proceedings that had been stayed. In doing so, it relied on Article 258 of the Code of Criminal Procedure.

The applicant lodged an appeal which was granted by the Court of Appeal by a decision of 15 March 2011 and remitted the case to the District Court.

On 17 June 2011 the District Court rejected the applicant ’ s complaint once again.

The applicant ’ s further appeals against this decision were dismissed in the final instance by the Court of Cassation on 12 October 2011.

On 18 July 2016 the applicant ’ s representative sent an enquiry to the Military Investigative Department asking to be informed about the investigative measures, supported by relevant documents and records, which had been undertaken since the stay of the proceedings in 2009.

On 25 July 2016 the applicant ’ s representative received the following response:

“In reply ..., I would inform you that following the stay of the proceedings in case ... the activities with a view to discovering the person who should be charged ... whereas the criminal procedure does not require us to provide you with documents and records in relation to those activities.”

Throughout the investigation the applicant has addressed a number of requests and complaints to various public officials, including the President of Armenia and the Prosecutor General, seeking an objective and effective establishment of the circumstances of her son ’ s death. According to the applicant, the majority of her requests have remained unanswered or have not produced any visible results.

B. Relevant domestic law

1. The Criminal Code (in force until 1 August 2003)

According to Article 259.1 (c), a breach of the rules for handling weapons, as well as munitions, explosive, radioactive or other substances and items dangerous for society that has resulted in the victim ’ s death, is punishable from two to ten years ’ imprisonment.

2. The Criminal Code (in force since 1 August 2003)

According to Article 373 § 3, as in force at the relevant time, a breach of the rules for handling weapons, munitions as well as radioactive substances, explosives or devices dangerous for the environment that have caused a person ’ s death negligently, is punishable from three to seven years ’ imprisonment.

3. The Code of Criminal Procedure

According to Article 258 § 2 (1), after having stayed the proceedings, an investigator shall undertake measures personally or through the police to discover the person against whom charges should be brought. In such a case the investigator may carry out relevant investigative activities, if that is necessary (Article 258 § 3).

COMPLAINTS

The applicant complains under Articles 2 and 13 of the Convention that the authorities have failed to conduct an effective investigation into her son ’ s death.

QUESTIONS TO THE PARTIES

1. Having regard to the procedural protection of the right to life, was the investigation in the present case by the domestic authorities, as from 26 April 2002, the date of the entry into force of the Convention in respect of Armenia, in breach of Article 2 of the Convention?

2. Did the applicant have at her disposal an effective domestic remedy for her Convention complaints, as required by Article 13 of the Convention?