Published on 19 June 2023

FOURTH SECTION

Application no. 43015/18 Hrayr HAMBARYAN against Armenia lodged on 1 September 2018 communicated on 28 May 2023

SUBJECT MATTER OF THE CASE

The case concerns the death of the applicant’s son, H. Hambaryan, during compulsory military service and the ensuing investigation.

H. Hambaryan was performing his compulsory military service in military unit no. 49971 (“the military unit”, situated in the “Republic of Nagorno ‑ Karabakh” (the “NKR”)).

At around 3:15 pm on 8 May 2015 H. Hambaryan died from a gunshot injury to his forehead while performing watch duty in a command post guarded by the military unit.

On the same date, the Investigative Committee of Armenia instituted criminal proceedings under Article 110 of the Criminal Code (“the CC”, incitement to suicide).

On 4 June 2015 the applicant was recognised as H. Hambaryan’s legal heir in the criminal proceedings.

The investigation conducted within the scope of the same criminal proceedings concluded that H. Hambaryan’s death had resulted from suicide. It was established that before his death H. Hambaryan had been subjected to violence and humiliation in relation to which charges were brought against 5 servicemen of the military unit. In particular, private D.H. was charged with breach of military conduct by servicemen in the absence of a subordinate relationship between them by humiliation, bullying, beating and other acts of violence and insulting a serviceman (Articles 359 and 360 of the CC). Junior Sergeant H.Me. was also charged under Article 359 of the CC with breach of military conduct in the absence of a subordinate relationship. Private A.S. was charged with insulting a serviceman under Article 360 of the CC. Lastly, Lieutenant H.Ma. and Junior Sergeant S.H. were charged with omission in an official capacity for failure to report crimes (Article 375 of the CC).

On 20 November 2015 a combined post-mortem psychiatric and psychological examination was ordered. According to the ensuing report received on 9 March 2016, there had been no causal link between the actions or omissions of the servicemen in question (D.H., H.Me., A.S., H.Ma. and S.H.) and H. Hambaryan’s psychological state before his suicide.

On 17 May 2016 the investigator decided not to pursue the prosecution for incitement to suicide. The applicant’s appeal against that decision was dismissed by the prosecutor.

On 18 July 2016 the applicant appealed further to the First Instance Court of General Jurisdiction of Syunik Region (“the Regional Court”).

On 17 January 2017 the Regional Court granted the applicant’s appeal finding that the investigator’s decision not to pursue the prosecution for incitement to suicide had breached H. Hambaryan’s and the applicant’s rights. It also found that, at that stage, the hypothesis of H. Hambaryan’s suicide could not be considered as confirmed.

On 11 May 2017 the investigation into incitement to suicide was resumed on the basis of the Regional Court’s decision.

Meanwhile, on 30 May 2016 the bill of indictment in respect of D.H., H.Me., A.S., H.Ma. and S.H., relating to the above-mentioned charges of breach of military conduct, insulting a serviceman and omission in an official capacity, was finalised and the case was brought before the Regional Court for trial.

On 11 July 2017 the trial court decided to terminate the criminal proceedings against D.H., H.Me. and A.S. on the grounds that their prosecution had become time-barred.

The applicant appealed against the trial court’s decision in so far as it concerned the termination of D.H.’s prosecution.

On 16 October 2017 the Criminal Court of Appeal upheld the trial court’s decision. The applicant’s appeal on points of law to the Court of Cassation was declared inadmissible for lack of merit on 23 February 2018. It appears that this decision was served on the applicant on 2 March 2018.

In the meantime, on 20 September 2017 H.Ma. and S.H. requested that the trial court apply the expedited trial procedure. The applicant did not object to the request as regards H.Ma. but objected as far as S.H. was concerned.

Eventually the trial court applied the expedited trial procedure for both H.Ma. and S.H. and, by its judgment of 16 January 2018, found them guilty as charged imposing on them respectively 2 years’ and 2 and a half years’ suspended sentences. The prosecutor’s and the applicant appeals were dismissed by the Criminal Court of Appeal. The applicant’s further appeal on points of law to the Court of Cassation was declared inadmissible for lack of merit on 21 January 2019.

At the same time, within the framework of the resumed investigation into incitement to suicide two new combined post-mortem psychiatric and psychological examinations were ordered both of which concluded that there had been a causal link between D.H.’s actions and H. Hambaryan’s psychological state before his death.

Based on those expert conclusions the Deputy Prosecutor General submitted an appeal to the Court of Cassation requesting the reopening of the case as regards D.H. in view of newly discovered circumstances.

On 10 January 2020 the Court of Cassation dismissed the appeal essentially finding that D.H.’s further prosecution would breach his right to a fair trial and his right not to be tried twice.

The applicant complains about his son’s death and the domestic authorities’ investigation into the matter. He also complains that his right to an effective remedy was breached as a result of the decision of the Court of Cassation of 10 January 2020.

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 (see Nana Muradyan v. Armenia , no. 69517/11, §§ 88-91, 5 April 2022)?

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

3. 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)?

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

The parties are requested to clarify the outcome of the criminal proceedings that were resumed in May 2017 and provide copies of the relevant documents.