Communicated on 22 November 2016

FIRST SECTION

Application no. 48998/14 Vano Yurii VARYAN against Armenia lodged on 27 June 2014

STATEMENT OF FACTS

The applicant, Mr Vano Varyan , is an Armenian national who was born in 1966 and lives in Abovyan . He is represented before the Court by Mr A. Sakunts , a human rights advocate practising in Vanadzor .

A. The circumstances of the case

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

In 2011 the applicant ’ s son, Tigran Varyan , aged 18, was drafted into the Armenian army. It appears that, in view of his health, Mr Varyan was found fit for non-combatant service.

On an unspecified date Tigran Varyan was assigned to military unit no. 38862 ( ‘ the military unit ’ ), situated in the unrecognised Republic of Nagorno Karabakh .

On 29 February 2012 he was found dead, with a gunshot injury to his lower jaw inflicted by the assault rifle assigned to him.

On the same date the Third Garrison Investigation Department made a decision to institute criminal proceedings concerning Tigran Varyan ’ s death. The decision stated, in particular, the following:

“... at around 10 a.m. on 29 February 2012 [Tigran Varyan ], while on duty in ... the base ... shot himself in the lower jaw with the assault rifle ... assigned to him and died instantly as a result of the ballistic trauma received ... ”

On the same date a forensic medical examination was ordered to determine, inter alia , the cause of Tigran Varyan ’ s death and the presence of any injuries on his body, and the Commander of the Nagorno Karabakh Defence Army ordered an internal investigation into Tigran Varyan ’ s death. A special Commission was formed for this purpose.

On an unspecified date the Commission filed a preliminary report with the Commander of the Nagorno Karabakh Defence Army, based on the results of the internal investigation. The relevant parts of the report read as follows:

“... According to preliminary information [Tigran Varyan ] committed suicide.

... Private [Tigran Varyan ] is described positively ... as a disciplined and conscientious serviceman. He was drafted into the army [having cardiovascular diseases and physical underdevelopment] ... did not have any complaints during regular medical check-ups.

An investigation into the matter launched by the Third Garrison Investigation Department of the [Ministry of Defence of Armenia] is underway.

Approximately two months before the incident, private [Tigran Varyan ] had been reprimanded and verbally abused by junior sergeant [E.S.] for having slept while on duty in the base ...

Within the same time-period ... [Tigran Varyan ] had dirtied the ... toilet because of darkness, as a result of which he was humiliated by ... [E.S.]. With the active participation of the latter, and in compliance with the order of senior lieutenant [H.H. ], ... private [Tigran Varyan ] started to dig a hole for a toilet in another area.

[Two days before the incident ] ... [E.S.] had verbally abused [Tigran Varyan ] for not keeping the base clean enough... had punched him in the chest and made him clean the area again.

At around 4 p.m. on 28 February ... [H.H verbally abused Tigran Varyan ]. In reply to the threats, private [Tigran Varyan ] did not say anything. Continuing with the argument [H.H.] added that it was his fault that up until that moment private [Tigran Varyan ] had not finished the hole for the toilet and instructed him to continue digging the next day ...

According to the explanations provided by junior sergeant [E.S.] and private [R.A.], at around 9 a.m. on the day of the incident ... senior lieutenant [H.H.] went to the base where private [Tigran Varyan ] was on duty, and came back to the shelter 10 minutes later. Approximately 10 to 15 minutes later a shot was heard. All of them went up to the base and discovered private [Tigran Varyan ’ s ] body. Thereafter ... [H.H.] ordered the staff not to tell of the events preceding private [Tigran Varyan ’ s ] suicide ...According to the [H.H. ’ s] report, he did not go to the base on the day of the incident ...

The following shortcomings have been detected:

... [H.H.] failed to organise the shift, left it without any control...

- the shift schedule was often not respected, private [Tigran Varyan ] was put on duty in ... [E.S. ’ s] and ... [R.A. ’ s] stead,

- the administration of the military unit describes senior lieutenant [H.H.] negatively, however he has never been reprimanded...

...

The incident took place as a result of ... poor supervision by the military unit command ... the staff is governed by street rules, there are cases of humiliation and debasement of servicemen... some types of work are considered shameful and undignified, which results in the prevalence of the law of “the strong and the weak”, as a rule, those types of work are performed by the “weak”.”

By order of 13 March 2012 the Minister of Defence of Armenia reprimanded the commander of the military unit, his deputy and the chief of artillery of the military unit. The chief of the artillery unit was discharged into the reserve.

On an unspecified date, charges were brought against H.H. and E.S. In particular, H.H. was charged with aggravated abuse of power and breach of rules for carrying out military service. E.S. was charged with breach of rules of military conduct.

In the course of the investigation H.H. partly admitted to the charges against him and stated, in particular, that he had woken up at around 9.20 a.m. on the day of the incident to be told by E.S. and R.A. that Tigran Varyan could not be found. He had then told them to look in the base, whereupon E.S. went to the base. A minute later E.S. had returned and stated that Tigran Varyan had committed suicide. At first he had thought that E.S. was joking, but when the latter repeated his statement he had immediately gone to the base, where he had found Tigran Varyan lying on the ground, his head, neck and right shoulder entirely covered with blood. Having noticed that Tigran Varyan was in the base without a helmet, belt and the magazine bag, and believing that he was already dead, he had decided to make it appear as if Tigran Varyan had committed suicide at a time when he was on duty in the base so that he, himself, could avoid responsibility. He had returned to the shelter and taken the items in question to the base. Thereafter he had touched Tigran Varyan ’ s hand and verified that he was dead, since his hand was cold. Next he had burnt the military documents of the base and drafted new ones which stated that Tigran Varyan had been on duty in the base from 8 a.m. until 10 a.m. He had given the documents to R.A. and E.S. so that they could sign their names and had himself signed in Tigran Varyan ’ s stead. At around 10 a.m. he had contacted the commander of the unit by radio and reported what had happened.

E.S. admitted the charges in full and gave an account of the events of 29 February 2012 identical to that given by H.H. He also stated that H.H. had told him and R.A. to tell everyone that Tigran Varyan had committed suicide because of family problems.

In the course of the investigation it was also established that on 21 February 2012 another officer of the military unit, junior sergeant G.M., had hit Tigran Varyan for failing to clean the kitchen properly. On an unspecified date, G.M. was charged with abuse of power. He admitted to the charges in full.

A number of servicemen of the military unit were questioned. They mainly confirmed the earlier episodes of Tigran Varyan ’ s abuse by H.H. and E.S. and the incident with G.M. However, none of the servicemen questioned had been eyewitnesses to the events of 29 February 2012, except for private R.A., whose account of the events was identical to that given by H.H. and E.S.

On 29 March 2012 the forensic medical examination was completed. According to the expert ’ s conclusion, Tigran Varyan ’ s death had been caused by functional brain failure as a result of perforating ballistic trauma to the head. The following injuries had been discovered on the body: superficial bruising of the nasal dorsum, base of the skull, right and left eyelids in the area close to the nose, which had been inflicted with a blunt, firm object (objects) shortly (seconds) before death.

On 15 August 2012 a commission of ballistic and medical forensic experts delivered a joint opinion according to which, inter alia , the ballistic trauma on Tigran Varyan ’ s body could have been inflicted by himself or by another person.

On 15 November 2012 the commission of experts assigned to conduct a posthumous forensic psychiatric examination delivered their opinion. The relevant parts of the experts ’ opinion read as follows:

“... Tigran Varyan did not suffer from any psychiatric disorder. As a result of continuous humiliation, violence, insults and debasement by fellow servicemen ... at the time of the commission of the act he had a temporary failure of psychological functioning accompanied by despair, low self-esteem ... which was the reason for his committing suicide ...

Conclusions:

...

[G.M.] ’ s ... acts in respect of Tigran Varyan brought about the latter ’ s depression, but taken alone they would hardly have incited his suicide.

[E.S.] ’ s ... acts in respect of Tigran Varyan brought about the latter ’ s depression but taken alone they would hardly have incited his suicide.

[H.H.] ’ s arguments with and acts in respect of Tigran Varyan in fact could have incited the latter ’ s suicide.

The acts committed by [G.M.], [E.S.] and [H.H.] taken together made Tigran Varyan commit suicide.”

On 14 January 2013 the case was transferred to the Syunik Regional Court for examination on the merits. The relevant parts of the indictment read as follows:

“... At around 10 a.m. on 29 February 2012 ... [E.S.] went to the base and saw private [Tigran Varyan ] on the ground with his head bleeding and the rifle on his chest. Having returned to the shelter, he told senior lieutenant [H.H.] that private [Tigran Varyan ] had committed suicide. Senior lieutenant [H.H.] went to the base and after he came back he took private [Tigran Varyan ’ s ] military helmet, his belt to which the bag with reserve magazines was attached ... Thereafter senior lieutenant [H.H.] destroyed the documents of the military base and in their place drafted new documents according to which private [Tigran Varyan ] had been on duty from 8 a.m. until 10 a.m. [H.H.] then told ... [E.S.] and ... [R.A.] to tell everyone that private [Tigran Varyan ] had had family issues, because of which he had committed suicide ...

On 27 February 2012 ... [E.S.] ... had verbally abused and punched private [Tigran Varyan ] in the chest ... Also, on 28 February 2012 ... [E.S.] ... had verbally abused private [Tigran Varyan ] and punched him in the chest without any justification.

On 21 February 2012 ... junior sergeant [G.M.] had verbally abused private [Tigran Varyan ] and punched him in the chest three times ...”

On an unspecified date, the trial commenced at the Syunik Regional Court sitting in Stepanakert, Nagorno Karabakh (the Regional Court).

On 24 September 2012 the applicant lodged an application with the Regional Court, seeking the transfer of the criminal case. He argued, in particular, that the case had been taken over by the Regional Court, which did not have a seat in the city of Stepanakert and, moreover, had no territorial jurisdiction to examine the case, according to the rules of territorial jurisdiction of the courts of the Republic of Armenia. He submitted that, since the crime had taken place on the territory of Nagorno Karabakh , the Regional Court, which had jurisdiction to examine crimes committed within the territory of the Syunik Region of Armenia, was an unlawfully constituted tribunal to examine the case. According to the applicant, the Regional Court rejected this application by an oral decision.

At the trial the applicant argued that the investigation into his son ’ s death had not been effective in that the circumstances of his death had not been properly established. The applicant submitted in particular that it had not been determined that his son had indeed committed suicide and had not been killed by another person or persons.

On 6 August 2013 the Regional Court found H.H. guilty and sentenced him to four years and six months ’ imprisonment. E.S. and G.M. were also found guilty and sentenced to four months ’ imprisonment. With reference to the pre-trial statements of H.H., E.S. and G.M., all of whom refused to testify in court, the Regional Court established the facts as they had been stated in the bill of indictment and found that Tigran Varyan had committed suicide at around 10 a.m. on 29 February 2012.

The applicant lodged an appeal arguing, in particular, that the proceedings had not brought to light all the circumstances of Tigran Varyan ’ s death or led to the punishment of those responsible for it, including the command staff of the military unit. The applicant argued in detail that a number of important facts pertaining to the death had not been established during the investigation such as, inter alia , the location of the body and the time of the death. Furthermore, there were discrepancies between the facts as established in the report following the internal investigation and the version of the events contained in the case file.

On 28 October 2013 the Criminal Court of Appeal upheld the Regional Court ’ s judgment. As regards the arguments raised by the applicant in his appeal, the Court of Appeal stated the following:

“It has been established during the investigation and court examination of the criminal case that Tigran Varyan died as a result of suicide and not murder, all possible investigative and procedural acts have been employed in order to investigate the crime, those responsible have been held criminally liable.”

The applicant lodged an appeal on points of law raising similar arguments to those submitted in his previous appeal.

On 27 December 2013 the Court of Cassation declared the applicant ’ s appeal on points of law inadmissible for lack of merit.

B. Relevant domestic law

The 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.

COMPLAINTS

The applicant complains under Article 2 of the Convention that the State failed to protect the life of his son during his military service. He further complains, under the same provision and Article 13, that the authorities failed to conduct an effective investigation into his son ’ s death, because not all the circumstances of his death were clarified and not all the persons responsible for his death were identified and punished. He also complains that the State did not provide him with compensation for non ‑ pecuniary damage suffered as a result of his 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 Articles 2 and 13 of the Convention, as alleged by the applicant?

4. Was the applicant ’ s son subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?

5. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 2 of the Con vention, as required by Article 13 of the Convention? In particular, was the fact that no compensation for non ‑ pecuniary damage was available to him compatible with the requirements of that Article?

The Government are also requested to provide copies of the records of questioning of the witnesses, as well as the records of confrontations and the record of the examination of the crime scene.