Communicated on 1 September 2015

THIRD SECTION

Application no. 57129/10 Robert MIRZOYAN against Armenia lodged on 22 September 2010

STATEMENT OF FACTS

The applicant, Mr Robert Mirzoyan , is an Armenian national who was born in 1954 and lives in Marmarashen v illage. He is represented before the Court by Mr Y. Khachatryan, 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 2006 the applicant ’ s son, Gegham Sergoyan , was drafted into the Armenian army.

On 8 November 2006 he was assigned to military unit no. 37673 ( ‘ the military unit ’ ) situated in the unrecognised Republic of Nagorno Karabakh .

On 9 April 2007 Gegham Sergoyan underwent surgery on a toe on his left foot.

On the same date the military unit doctor temporarily discharged Gegham Sergoyan from his duties until 16 April 2007. Because of the surgery he was allowed to wear slippers instead of army boots.

On 15 April 2007 Gegham Sergoyan was put on duty. On that day lieutenant H.G. was the duty officer in charge of the military unit.

H.G. had been hired to perform military service for a period of five years based on an order of the Deputy Minister of Defence of 29 December 2003. According to the personal report provided by the military unit command, H.G. had been a weak officer from the first day of service. He had been the subject of a number of disciplinary penalties, including a “strict reprimand” and “not fully fit for service” in August and September 2004 respectively. In July 2006 H.G. was given another reprimand. It was further indicated by his superiors that H.G. had performance deficiencies and poor professional training.

On 15 April 2007 at 9.40 p.m. H.G., upon seeing Gegham Sergoyan in the duty station room, reproached the latter for having entered without permission. Although Gegham Sergoyan admitted his mistake and tried to leave the room, H.G. verbally abused him and violently pushed him against the wall. Thereafter H.G. pointed his gun at Gegham Sergoyan ’ s head and fired a shot.

On the same date Gegham Sergoyan was taken to the Stepanakert Military Hospital in Nagorno Karabakh (the SMH) where he underwent surgery.

Upon admission to the Stepanakert military hospital it was indicated in Gegham Sergoyan ’ s medical record that he was diagnosed with ballistic trauma of the cervical vertebrae with axis (second cervical vertebra) fracture and mandibular fracture with displacement of the right side.

On 16 April 2007 at 10 a.m. Gegham Sergoyan was examined by doctors H.E., N.C. and A.G. of the SMH who indicated in the relevant record that Gegham Sergoyan had sustained a ballistic trauma to the cervical vertebrae with axis fracture and that he had a fracture of the right side of the lower jaw.

On the same day Gegham Sergoyan was transferred to the Central Military Hospital of the Ministry of Defence of Armenia (the CMH) in Yerevan pursuant to the transfer certificate issued by doctor H.E. The same diagnosis, namely ballistic trauma and fracture of the right side of the jaw, was mentioned in the certificate.

On the same day the Askeran No. 1 Garrison Military Prosecutor ’ s Office instituted criminal proceedings under Article 34-104 § 1 of the Criminal Code of Armenia (attempted murder).

On 17 April 2007 Gegham Sergoyan was admitted to the CMH in Yerevan. It was indicated in the medical record that, according to the transfer diagnosis, Gegham Sergoyan had ballistic trauma of the cervical vertebrae. Mandibular fracture with displacement on the left side and fracture of the second cervical vertebra was also mentioned, with a question mark. The clinical diagnosis made by the doctors of the CMH stated ballistic trauma of the neck with lesion of the cervical part of the spine (second cervical vertebra), ballistic fracture of the second and third vertebrae with traumatic spinal cord injury.

It appears that during his stay at the CMH, Gegham Sergoyan was examined by forensic medical expert A.D. of the Republican Centre of Forensic Medicine of the Ministry of Health of Armenia (the Republican Centre for Forensic Medicine) who stated in his conclusion, inter alia , that the bullet had penetrated from the left side of the lower jaw and, according to descriptions contained in the medical records, it was directed from left to right and upwards from front to back.

On 18 April 2007 H.G. was officially charged with attempted murder and abuse of power resulting in grave consequences (Articles 34-104 § 1 and 375 § 1 of the Criminal Code).

On the same day H.G. was questioned and fully admitted his guilt. He submitted, in particular, that he had been on duty on 15 April 2007 when at 9.40 p.m. he had seen his assistant J.G. and Gegham Sergoyan watching television together in the duty room. Given that Gegham Sergoyan was in slippers, he had given the latter a reprimand for violation of the uniform code and for having entered the duty room without permission, and had sworn at him, grabbed him by the chest and pushed him against the wall. Gegham Sergoyan and J.G. had been laughing while watching television and he had thought they were laughing at him. Although Gegham Sergoyan had said that he would leave the room, he became even angrier since the latter had been laughing while speaking to him. At that moment he had taken out his gun, loaded it and, pointing the gun at the left side of Gegham Sergoyan ’ s face, had sworn at him and shot him in the head. He had shot Gegham Sergoyan with the gun attributed to him.

On 2 May 2007 Gegham Sergoyan died in hospital without having regained consciousness.

On the same day the investigator of the Askeran No. 1 Garrison Military Prosecutor ’ s Office ordered a post-mortem examination of Gegham Sergoyan ’ s body to be conducted in Yerevan by forensic medical expert A.L.D. of the Republican Centre of Forensic Medicine. The expert was requested to determine, inter alia , the cause of death, the existence of any injuries on the body, the time and method of their infliction and their possible link with the death. The expert was also asked to determine whether there were any other external injuries on the body apart from the ballistic trauma, the time of their infliction and their gravity.

On 10 May 2007 the Minister of Defence issued an order on applying disciplinary penalties on persons liable for the events which had taken place in the military unit. The order stated, inter alia , that the military unit command had not thoroughly examined H.G. ’ s moral character, his personal and professional preparation and that there had been no proper control over the observance of the daily schedule. The order further stated that the instructions by the personnel responsible for the daily timeline in the military unit had been of a formal nature and that there had been an unhealthy moral environment among the officers and draft soldiers.

On 15 May 2007 the investigator made a decision to involve the applicant in the proceedings as Gegham Sergoyan ’ s legal successor.

On 1 June 2007 the post-mortem examination, including an autopsy, was completed. Forensic medical expert A.L.D. concluded that Gegham Sergoyan ’ s death had been caused by acute penetrating ballistic trauma to the neck. The expert stated, inter alia, that on 17 April 2007 Gegham Sergoyan had been examined by a maxillofacial surgeon who had not detected any jaw bone pathology on the basis of X-ray computed tomography and radiography results.

It appears that on 9 June 2007 the investigation into Gegham Sergoyan ’ s death was taken over by the Military Prosecutor ’ s Office of Armenia.

On 14 September 2007 the charges against H.G. were modified and he was charged with murder motivated by hooliganism and abuse of power resulting in grave consequences (Articles 104 § 2 (10) and 375 § 1 of the Criminal Code).

On 13 February 2008 the case, together with the finalised bill of indictment, was transmitted to the Southern Criminal Court for examination on the merits. Thereafter the case was transmitted to the Syunik Regional Court for reasons of territorial jurisdiction.

In the course of the proceedings before the Regional Court the applicant lodged a civil claim against the Republic of Armenia, namely the Ministry of Defence and the Ministry of Finance of Armenia, seeking compensation for non-pecuniary damage sustained as a result of the murder of his only son which had caused him deep sorrow and severe mental suffering: he had lost the normal rhythm of life and his health had deteriorated. The applicant relied, in particular, on Article 18 of the Civil Code of Armenia and Articles 2 and 13 of the Convention.

H.G. pleaded guilty before the Regional Court.

A number of witnesses were questioned during the proceedings, including Gegham Sergoyan ’ s fellow servicemen. In particular, witness J.G., who had personally witnessed the events of 15 April 2007, testified that he had seen H.G. swear at Gegham Sergoyan and shoot him in the face.

Several officers of the military unit stated that to their knowledge Gegham Sergoyan had never had any problems with lieutenant H.G. before.

On 1 September 2009 the Syunik Regional Court found H.G. guilty as charged and sentenced him to fifteen years ’ imprisonment. The Regional Court rejected the applicant ’ s civil claim by stating that no compensation for non-pecuniary damage was envisaged under the law. It further stated that although the accused had committed the crime while in military service, the crime had been committed on a personal level and therefore any damage incurred should be compensated by the person liable for it.

On 1 October 2009 the applicant lodged an appeal. He submitted, inter alia , that lieutenant H.G. had committed the crime during his service while being assigned to duty in the military unit on 15 April 2007. Gegham Sergoyan was murdered while performing his obligations linked to service in the army and when he was on duty according to the relevant orders of the military unit command. He further submitted that although no possibility of compensation for non-pecuniary damage existed under Armenian civil law, such a requirement existed under the Convention where, according to Article 6 of the Constitution, ratified international treaties were a constituent part of the legal system of Armenia and, in case of inconsistency with the national law, the norms of the treaty should prevail.

On 2 February 2010 the Court of Appeal rejected the applicant ’ s appeal and upheld the judgment of the Regional Court. As regards the applicant ’ s civil claim, the Court of Appeal relied on Article 1087 of the Civil Code to state that, in the event of the victim ’ s death, only compensation for funeral expenses is envisaged under the civil law.

On 26 February 2010 the applicant lodged an appeal on points of law. The applicant submitted the same arguments as before and reinstated his position concerning his claim for non-pecuniary damages as expressed in his initial civil claim with the Regional Court and in his appeal before the Court of Appeal.

On 1 April 2010 the Court of Cassation declared the applicant ’ s appeal on points of law inadmissible for lack of merit.

B. Relevant domestic law

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

Article 34 provides that attempted crime is the action (inaction) committed through direct wilfulness deliberately aimed at committing the crime if the crime was not completed for reasons beyond the person ’ s control.

Article 104 § 1 provides that murder shall be punishable by imprisonment from six to twelve years.

Article 104 § 2 (10) provides that murder committed out of hooliganism shall be punishable by imprisonment from eight to fifteen years or life imprisonment.

Article 375 § 1 provides that abuse of authority or public position, exceeding public authority, as well as omission by a superior or public official, if such acts were committed for selfish ends, personal interest or interests of a group and which resulted in grave damage, shall be punishable by imprisonment from two to five years.

2. 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.

3. 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 damages caused to natural or legal persons as a result of unlawful actions (inaction) of state and local self-government bodies or their officials are 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 damages linked to the victim ’ s death shall reimburse the necessary funeral expenses to the person who has incurred such expenses.

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 applicant complains under Article 2 of the Convention that his son was intentionally murdered by an officer of the armed forces while performing his military service under the jurisdiction of the Republic of Armenia and, furthermore, that the State should have taken steps to protect his son. He argues in this regard that notwithstanding the negative characteristics of the officer who killed his son, he was not discharged from the army and was allowed to carry a gun.

The applicant complains under Article 13 of the Convention that he had no effective remedy to obtain compensation for non-pecuniary damage suffered as a result of his son ’ s death.

QUESTIONS TO THE PARTIES

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

2. 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 the applicant compatible with the requirements of that Article?