Communicated on 16 June 2016

FIRST SECTION

Application no. 66336/12 Boris ADAMYAN and Margarit ADAMYAN against Armenia lodged on 25 September 2012

STATEMENT OF FACTS

The applicants, Ms Margarit Adamyan and Mr Boris Adamyan , are Armenian nationals who were born in 1965 and 1963 respectively and live in Vanadzor . They are represented before the Court by Mr K. Tumanyan , 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 applicants are the mother (“the first applicant”) and the uncle (“the second applicant”) of the late Gevorg Kotsinyan .

In May 2010 Gevorg Kotsinyan , born in 1992, was drafted into the Armenian army and assigned to military unit no. 25918 ( ‘ the military unit ’ ) situated in the unrecognised Republic of Nagorno Karabakh .

On 6 February 2011 Gevorg Kotsinyan was severely beaten up by his fellow conscripts T.S. and V.A. and formation commander M.D., all of whom had consumed alcohol earlier, during the celebration of T.S. ’ s birthday. Senior lieutenant A.R., who was put in charge of the division, also participated in the birthday celebration and witnessed servicemen, including M.D., T.S. and V.A., consuming alcohol. In the course of an argument, and eventually a scuffle, which broke out after M.D. reproached Gevorg Kotsinyan for smoking in the barracks, the latter was beaten up by M.D., T.S. and V.A., receiving a number of blows to the head, the chest and other parts of the body. Thereafter Gevorg Kotsinyan managed to run away from them towards the barracks. Once inside the barracks, he lost consciousness and fell to the ground. Fellow servicemen tried to help him but, when he did not regain consciousness, took him to the medical point of the military unit where it was decided to transfer him to the military hospital. Gevorg Kotsinyan died on the way.

On the same day A.R. became aware of what had happened, and those responsible, but did not make a report to his superiors.

It appears that on 7 February 2011 the second applicant was informed by telephone that Gevorg Kotsinyan had died as a result of a heart attack.

On 8 February 2011 it was revealed that in reality Gevorg Kotsinyan had died following his beating. On the same day the Investigative Service of the Ministry of Defence of Armenia started an investigation.

On 10 February 2011 M.D., T.S., V.A. and A. R. were arrested.

On an unspecified date, a forensic medical examination including an autopsy was assigned to determine, inter alia , the cause of Gevorg Kotsinyan ’ s death and the presence of any injuries on his body, their location, gravity and method of infliction.

On 11 February 2011 M.D., T.S. and V.A. were charged with aggravated assault and breach of rules of military conduct, while M.D. was additionally charged with abuse of power. A.R. was charged with abuse of power.

On 14 March 2011 the forensic medical examination was completed. In his opinion, the expert concluded that Gevorg Kotsinyan had died as a result of a sudden cardiac arrest. A number of injuries that were present on the head, chest, abdomen and other parts of the body were found to be in direct causal link with the death.

On 18 March 2011 the second applicant was recognised as the victim ’ s legal heir.

On 31 May 2011 the bill of indictment was finalised and the case was sent to the Syunik Regional Court for examination.

On 18 August 2011 the second applicant lodged a civil claim with the Regional Court seeking compensation for funeral and legal costs in the amount of AMD 1,950,000 (approximately EUR 4,125), to be seized from the accused jointly, and compensation for non-pecuniary damage in the amount of AMD 5,000,000 (approximately EUR 10,500) to be seized from the State budget due to the failure of the Ministry of Defence to protect Gevorg Kotsinyan ’ s right to life.

On 14 November 2011 the Regional Court delivered its judgment, finding M.D., T.S., V.A. and A. R. guilty as charged. In particular, the Regional Court found it substantiated that, under the influence of alcohol, M.D., T.S. and V.A. had intentionally inflicted grave bodily injuries on Gevorg Kotsinyan which had negligently caused his death. Furthermore, A.R., in his capacity as their superior, had failed in his duties since he had not prevented them from drinking, as a result of which M.D., T.S. and V.A., under the influence of alcohol, had negligently caused Gevorg Kotsinyan ’ s death. He had moreover tried to hide what had happened by not reporting the incident to his superiors. The Regional Court sentenced M.D. to imprisonment for eleven years and six months. It sentenced T.S. and V.A. to eleven years ’ imprisonment. A.R. was sentenced to three years ’ imprisonment and exempted from serving his sentence by application of the Act of Amnesty adopted by the National Assembly on 26 May 2011. The judgment in its part relating to the second applicant ’ s civil claim reads as follows:

“The civil claim lodged by the victim ’ s legal heir [the second applicant] against M.D., T.S., V.A. and A. R. seeking compensation for Kotsinyan ’ s funeral expenses in the amount of AMD 1,500,000 should be rejected in view of [the second applicant ’ s] failure to produce documentary evidence substantiating the expenses claimed, as well as the fact that the expenses connected with the funeral have already been covered by the State.

The civil claim with regard to the cost of the contract ... for provision of legal services in the amount of AMD 450,000 and compensation for non-pecuniary damage as a result of the violation of Gevorg Kotsinyan ’ s right to life in the amount of AMD 5,000,000 to be seized from the State budget in favour of [the second applicant] should be left unexamined and, taking into account that these cannot be considered as pecuniary damages sustained directly as a result of the crime, reserve him the right to apply to court via civil procedure.”

On 14 December 2011 the second applicant lodged an appeal, arguing that Gevorg Kotsinyan ’ s death had taken place while the protection of his right to life had been under the responsibility of the State, namely the Ministry of Defence. Consequently, the investigation into his death should have complied with the requirements of Article 2 of the Convention. He also argued that the District Court should have examined the civil claim together with the criminal case and asked for the Regional Court ’ s judgment to be quashed in its part relating to the determination of the civil claim.

On 29 March 2012 the Criminal Court of Appeal upheld the Regional Court ’ s judgment, including its findings regarding the civil claim lodged by the second applicant.

The second applicant lodged an appeal on points of law raising the same arguments as in his previous appeal.

On 17 May 2012 the Court of Cassation declared the second applicant ’ s appeal on points of law inadmissible for lack of merit.

B. Relevant domestic law

1. The Code of Criminal Procedure (in force since 12 January 1999)

Article 154 § 3 provides that the civil claim lodged in criminal proceedings is decided in accordance with the provisions of civil law.

2. 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.

3. The Act of Amnesty adopted by the National Assembly on 26 May 2011 to mark the twentieth anniversary of the independence of the Republic of Armenia

By this act the National Assembly of Armenia decided to, inter alia , exempt persons who had been sentenced to maximum three years of imprisonment from serving their sentence (Section 1(1)). The act was applicable to persons who had committed a crime prior to and including 1 May 2011 (Section 15).

4. The Decision of the Constitutional Court of 5 November 2013 on the conformity of Article 17 § 2 of the Civil Code with the Constitution adopted on the basis of the application lodged by Artur Khachatryan

The Constitutional Court found Article 17 § 2 of the Civil Code incompatible with Articles 3 § 2, 16 § 4, 18 § 1, 19 § 1 and 43 § 2 of the Constitution in so far as it does not envisage non-pecuniary damage as a type of civil damages, and does not provide for a possibility to obtain compensation for non-pecuniary damage by impeding the effective exercise of the right of access to court and the right to a fair trial and at the same time hindering due compliance with its international obligations by the Republic of Armenia.

The Constitutional Court stated that Article 17 § 2 of the Civil Code would lose its legal force at the latest on 1 October 2014.

COMPLAINTS

The applicants complain under Article 2 of the Convention that the State failed to protect Gevorg Kotsinyan ’ s right to life during his military service. They further complain that A.R. was absolved from serving his punishment by application of an amnesty. They also complain under the same provision, and Article 13 of the Convention, that the State failed to provide them compensation for non-pecuniary damage suffered as a result of Gevorg Kotsinyan ’ 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 Gevorg Kotsinyan ’ 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, was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention? In particular, was the fact that A.R. was absolved from serving his sentence compatible with the requirements of this provision?

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?