Published on 6 March 2023

FOURTH SECTION

Application no. 3945/18 Sargis KHACHATRYAN against Armenia lodged on 26 December 2017 communicated on 16 February 2023

SUBJECT MATTER OF THE CASE

The case concerns the death of the applicant’s brother, S. Khachatryan, during compulsory military service and the subsequent investigation.

S. Khachatryan was a conscript assigned to military unit no. 60369 of the Armed Forces of Armenia (“the military unit”).

On 5 April 2016, following an alarm signal, all military personnel of the military unit was deployed to positions located in the Kashatagh Province of the “Republic of Nagorno ‑ Karabakh” (the“ NKR”).

At around 10:30 a.m. on 12 April 2016 S. Khachatryan was on watch duty, replacing a fellow serviceman, when he died from a gunshot injury to his head.

During the examination of the scene of the incident on the same date the assault rifle assigned to S. Khachatryan was found. The flash suppressor was not on the rifle but was found on the ground, and the bolt of the rifle was not properly closed. One fired cartridge and a second assault rifle were also found at the scene. The presence of a second assault rifle was subsequently explained during the investigation by the fact that S. Khachatryan had also been given the rifle of another conscript who had been in a military hospital.

On the same date the Investigative Committee of Armenia instituted criminal proceedings under Article 110 of the Criminal Code (incitement to suicide) and ordered an autopsy.

On 18 April 2016 the investigator ordered a combined ballistic, forensic trace and biological examination.

On 22 April 2016 N.K., S. Khachatryan’s father, was recognised as his legal heir in the criminal proceedings.

According to the autopsy report of 15 June 2016 S. Khachatryan’s death had resulted from a penetrating, perforating ballistic injury to his head․ At the moment of sustaining the injury the muzzle of the rifle was pointing at S. Khachatryan’s forehead and was in direct contact with it. The autopsy had also revealed a scratch in the area of his right elbow joint which had been caused 7 to10 days before his death and had no causal link with it.

On 24 June 2016, following a request by N.K. and the applicant, the latter was recognised as S. Khachatryan’s legal heir in the proceedings.

On 6 July 2016 the combined ballistic, forensic trace and biological examination was completed. The ensuing expert report concluded, inter alia , that the assault rifle assigned to S. Khachatryan had a malfunction but was suitable for firing one or more shots; it could not fire without pulling the trigger; one or more shots had been fired from it after the last cleaning and the cartridge found at the scene had been fired from it. The report also stated that the second rifle found at the scene had been functional, could not fire without pulling the trigger and had not fired after its last cleaning. No fingerprints or palm prints had been found on either rifle. During the forensic examination elements of gunshot residue had been found in the samples taken from S. Khachatryan’s uniform, his right hand and his face.

Within the scope of the investigation S. Khachatryan’s commanding officers and fellow servicemen were questioned as witnesses and stated that the victim had not had any problems with other servicemen. They also stated that he had had a habit of playing with his rifle and that they were sure that it had fired by accident because of him playing with it.

On 2 September 2016 the investigator terminated the criminal proceedings finding that S. Khachatryan’s death had resulted from his own negligence. At the same time, the investigator decided to send his decision together with the case file to the Military Prosecutor of Goris Garrison for checking its lawfulness.

On 27 September 2016 the applicant appealed against the investigator’s decision to terminate the proceedings to the Military Prosecutor of Goris Garrison.

In a letter dated 7 October 2016 the Military Prosecutor of Goris Garrison replied that the appeal against the decision at issue had been left without examination because it was subject to appeal to the superior prosecutor, that is the Military Prosecutor of Armenia.

The applicant further appealed to the First Instance Court of the Syunik Region. The latter rejected the appeal on the grounds that he had failed to appeal the decision to the superior prosecutor, who could have been either the Military Prosecutor of Armenia or the Prosecutor General of Armenia. The First Instance Court did not examine the merits of the appeal.

The Criminal Court of Appeal upheld that decision on the grounds that the applicant had failed to appeal the investigator’s decision to the superior prosecutor, that is the Military Prosecutor of Armenia.

On 26 June 2017 the applicant’s appeal on points of law to the Court of Cassation was declared inadmissible for lack of merit.

The applicant complains about his brother’s death and the investigation carried out by the domestic authorities into the matter. In particular, he complains of the authorities’ failure to properly train his brother for safely handling a firearm and of poor supervision by the commanding officers. He also complains that the investigation was not thorough in that it did not convincingly establish whether S. Khachatryan’s death had resulted from negligence. Neither had it established whether the command of the military unit had the right to send his brother, who had been conscripted only 3 months earlier, to the positions located in the Kashatagh Province of the NKR and whether providing him with a malfunctioning assault rifle and assigning him to watch duty with two rifles had been lawful.

The applicant further complains that the refusal to examine his appeal against the decision to terminate the criminal proceedings was unjustified. Lastly, he complains about the absence of an effective legal mechanism to claim compensation for death which had occurred under the control of the authorities. He relies on Articles 2 and 13 of the Convention.

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. Has the applicant exhausted the domestic remedies available to him in respect of his Convention complaints, as required by Article 35 § 1 of the Convention?

3. Was S. Khachatryan’s right to life, ensured by Article 2 of the Convention, violated in the present case (see Nana Muradyan v. Armenia , no. 69517/11, §§ 120-22, 5 April 2022)?

4. Having regard to the procedural protection of the right to life, was the investigation by the domestic authorities in the present case in breach of the guarantees of Article 2 of the Convention (see Nana Muradyan v. Armenia , cited above, §§ 124-27)?

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