Published on 19 June 2023

FOURTH SECTION

Application no. 30374/17 Eliza SAMVELYAN against Armenia lodged on 29 March 2017 communicated on 28 May 2023

SUBJECT MATTER OF THE CASE

The case concerns the death of the applicant’s son, S. Samvelyan, during his compulsory military service and the subsequent investigation.

In December 2011 S. Samvelyan was drafted into the Armenian army after having been recognised as “fit for non-combatant service”. It appears that the reason thereof was his diagnosis of epidermal nevus and acne. He was then assigned to military unit no. 38401 of the Nagorno-Karabakh armed forces (“the military unit”, situated in the “Republic of Nagorno ‑ Karabakh” (the “NKR”)). Following his initial training, he was assigned to the rifle battalion as a grenadier.

On 1 June 2012 S. Samvelyan was assigned watch duty in military position no. 130 (“the military position”). According to the official version, he left his place of duty, went to the underground shelter of the military position and shot himself into the mouth with the assault rifle assigned to him.

During the examination of the scene of the incident on the same date the assault rifle assigned to S. Samvelyan was found on the ground. The trigger guard was closed and there was a bullet in the chamber. It appears that the thirty-round magazine attached to the rifle contained 26 bullets. Three fired cartridges and particles of fired bullets, which were later identified as the cores and the jackets of 2 fired bullets, were also found.

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

On 8 June 2012, following an internal investigation ordered by the Commander of the NKR Defence Army in connection with the incident, a report was drawn up which noted, inter alia , instances of humiliating treatment in respect of S. Samvelyan and concluded that the incident had taken place as a result of poor supervision by the command staff.

On 11 June 2012 the applicant was recognised as S. Samvelyan’s legal heir in the proceedings.

According to the autopsy report delivered on 24 July 2012 S. Samvelyan’s death had resulted from a ballistic injury with the bullet entry having been in the mouth and bullet exit wounds being in the right and left sides at the back of his head. The report also stated that at the time of receiving those injuries the muzzle of the rifle had most likely been in S. Samvelyan’s mouth. There were scratches and bruises on S. Samvelyan’s face, neck, chest, lower and upper limbs, as well as bruises on subcutaneous tissues, which had been inflicted by blunt and hard objects before his death and which were not linked to the death.

On 28 September 2012 the scene of the incident was examined again. According to the relevant record, the ceiling of the underground shelter was damaged there being two spots having irregular edges on it.

On 19 October 2012 the report of the forensic trace and ballistic examination was issued. It concluded, inter alia , that the three fired cartridges found at the scene had been shot from the rifle assigned to S. Samvelyan and that the spots on the ceiling of the underground shelter had most likely resulted from the same shots. It also found that that there were fragments of sweat and grease on S. Samvelyan’s assault rifle but there were no identifiable fingerprints on it.

The investigation eventually concluded that S. Samvelyan had committed suicide as a result of humiliation and abuse by squad commander junior sergeant S.K. and private A.A. The investigation also concluded that senior lieutenant R.K., who was in charge of the military position had, inter alia , regularly failed to carry out his duties and to report incidents of breach of conduct. Moreover, having found S. Samvelyan’s dead body, in order to cover up his own omissions, R.K. had distorted the scene of the incident by putting a military belt on S. Samvelyan, placing the helmet near the body, cleaning the trash and closing the trigger guard of the rifle, in his opinion for safety reasons. S.K., A.A. and R.K. were charged with crimes against the order of military service.

According to the applicant, after the completion of the investigation, she was not given copies of certain documents from the case file. The applicant claims that she then requested the courts to provide her with the copies of the documents in question but was required to pay court fees.

On 2 July 2013 the criminal case was sent for trial to the Court of General Jurisdiction of Syunik Region of Armenia (“the trial court”). It appears that the trial court held its hearings in an unspecified military unit located in the NKR. The applicant requested that the trial be held in Armenia arguing that the venue of the hearings created psychological and other barriers for her participation. Her requests to that end were not granted.

On 30 September 2014 the trial court found S.K. guilty of abusing and exceeding his powers, breaching the rules of combat duty and committing acts of violence against a subordinate and sentenced him to 5 and a half years’ imprisonment. It found A.A. guilty of breaching the rules of combat duty as well as breaching the statutory rules of relationship between servicemen by committing acts of persecution and violence against a non-subordinate and sentenced him to 4 and a half years’ imprisonment. Lastly, the trial court found R.K. guilty of breaching the rules of combat duty, omission in an official capacity and exceeding his powers and sentenced him to 3 years’ imprisonment. At the same time, R.K. was exempted from serving his sentence by application of an Amnesty Act.

The Criminal Court of Appeal upheld the judgment upon appeal.

The applicant lodged an appeal on points of law.

On 28 December 2015 the Court of Cassation declared the applicant’s appeal inadmissible for lack of merit. On 14 September 2016 the applicant requested a copy of that decision which she received on 30 September 2016.

The applicant complains under Article 2 of the Convention that the State failed to protect her son’s life during compulsory military service. She submits that although her son had been found “fit for non-combatant service”, he had nevertheless been assigned to “combatant service”.

She also complains that the criminal proceedings in connection with her son’s death had not been effective. She submits that the investigation was not thorough and from the beginning was limited to the hypothesis of suicide. In addition, the proceedings were not accessible to her and were lengthy.

QUESTIONS TO THE PARTIES

1. Has the applicant complied with the six-month time-limit for lodging her application?

In this connection, the parties are requested to inform the Court about the date when the decision of the Court of Cassation of 28 December 2015 was served on the applicant and provide the copies of relevant documents.

2. Do the matters complained of fall within the jurisdiction of Armenia within the meaning of Article 1 of the Convention (see Nana Muradyan v. Armenia , no. 69517/11, §§ 88-91, 5 April 2022)?

3. Was the applicant’s son’s right to life, ensured by Article 2 of the Convention, violated in the present case (ibid., §§ 120-122)?

4. Having regard to the procedural protection of the right to life, was the investigation in the present case in breach of the requirements of Article 2 of the Convention (ibid., §§ 124-127)?

The parties are requested to clarify the reasons for the military authorities’ decision during S. Samvelyan’s conscription to recognise him fit for non-combatant service and to provide copies of the relevant, including medical documents.