CEDH · CASELAW;COMMUNICATEDCASES;ENG — 1 septembre 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }     Communicated on 1 September 2015   THIRD SECTION Application no. 2186/12 Sergey YENGIBARYAN and Anzhela SIMONYAN against Armenia lodged on 10 December 2011 STATEMENT OF FACTS The applicants, Mr Sergey Yengibaryan and Ms Anzhela Simonyan, are Armenian nationals who were born in 1952 and 1983 respectively and live in Yerevan. They are represented before the Court by Mr E. Marukyan, 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 father and wife of Arman Yengibaryan, deceased. On 14 June 2011 Arman Yengibaryan was shot and killed by two police officers in Yerevan. According to the body of inquiry, at approximately 1.05 p.m. on 14   June 2011 Arman Yengibaryan presented himself as an employee of the water supply company and tried fraudulently to enter the apartment of a private person, G.S., with the purpose of taking the latter’s property by committing robbery. However, Arman Yengibaryan was unable to complete the crime since G.S. did not open the door to the apartment and called the police. Two officers of the Arabkir Department of the Yerevan Police, A.A. and N.P., arrived at the scene and approached the person indicated by G.S. Officers A.A. and N.P. were not in uniform. However, according to their statements, they presented themselves to Arman Yengibaryan as officers of the Arabkir Police Department, showed their identification badges and asked him to go with them to the police station in order to provide some clarifications. The police officers accompanied Arman Yegibaryan to their car, holding him by his arms. On reaching the car, Arman Yengibaryan refused to get inside, resisted the police officers and freed his hands. He then took out a gun, loaded it, pointed it at the officers and threatened to fire, after which he escaped. At that moment the officers loaded their guns. A.A. warned that he would shoot, fired two warning shots in the air and, together with N.P., chased Arman Yengibaryan. According to the statements of the police officers, Arman   Yengibaryan turned while running and fired a shot in their direction. Immediately after that A.A. fired in response. The police officers called the emergency services right away. However, nobody tried to provide first aid to Arman Yengibaryan and his body lay on the ground bleeding until the ambulance arrived at the scene and transferred him to hospital where he died shortly after the beginning of surgery. He never regained consciousness. On 14 June 2011 an investigation was started on account of attempted robbery and inflicting violence dangerous for life or limb on a public official. On that day it was decided to form an investigative team to carry out the preliminary investigation. The relevant decision stated, inter alia , that officer A.A. had shot and wounded an unknown perpetrator with his Makarov service pistol earlier that day while trying to apprehend him. It appears that on the same day one Ekol & Voltran pistol with three bullets inside, one bullet and three bullet shells were discovered and seized on sight. One more spent bullet shell was found in a nearby street. A.A.’s Makarov pistol with four bullets inside was also seized. It further appears that, on the same day, Arman Yengibaryan’s apartment was searched. As a result of the search, five bullets and one metal object were seized. The licence to carry the Ekol & Voltran pistol was also found in the apartment. On the same day a post-mortem examination of Arman Yengibaryan’s body was assigned. On 15 June 2011 the case was sent to the Special Investigative Service. The relevant decision stated that information had been received to the effect that the person who had received gunshot wounds the day before was Arman Yengibaryan. It further stated that a legal assessment of the actions of police officers A.A. and N.P. should also be made within the framework of the existing proceedings and that this was within the exclusive power of the investigators of the Special Investigative Service. On the same day, investigator G.G. of the Special Investigative Service took over the investigation of the case. He also decided to institute new proceedings on account of murder by use of excessive force. These proceedings were joined to the proceedings already instituted the day before. According to the applicants, police officers A.A. and N.P. were questioned on 15 June 2011 at 7.40 p.m. and 9.05 p.m. respectively. A.A. and N.P. gave similar accounts of events and submitted that on 14   June 2011 N.P. had received a telephone call from his friend G.S. He had asked N.P. to describe the appearance of the unknown perpetrator who entered apartments by pretending to be an employee of the water supply company to commit robbery, about whom N.P. had spoken several days before. After N.P. had described that person, G.S. had informed him that a person matching that description had tried to enter his apartment several minutes earlier. However, he had remembered N.P’s story about that person and had not let him in. A.A. and N.P. had asked G.S. to follow that person without being noticed and had driven in the latter’s direction while constantly maintaining telephone contact. Once they had reached the street indicated by G.S., the latter had pointed to the person in question, whom they had approached. N.P. had presented himself to that person, shown his identification badge and asked him to go to the police station in order to provide some clarifications. They had escorted him to the car while holding his arms. Having reached the car, the police officers had been trying to search him for weapons when the latter had started to resist, pushed them and freed his hands. G.S. and people gathered in the street had warned that they had seen a gun. The perpetrator had loaded his gun, threatened to shoot and escaped, after which they had drawn their service pistols, loaded them and ordered him to stop. Thereafter they had fired a warning shot in the air and followed the perpetrator, who had turned while running and fired in their direction. To avoid being shot N.P. had knelt, but A.A., thinking that his fellow officer had been wounded, had fired a shot in reply. The perpetrator had continued to run while bending over and when he had tried to turn and shoot again, A.A. had shot him for the second time, and he had fallen to the ground. On the same day, investigator G.G. ordered a ballistics examination. He submitted to the experts the weapons discovered at the scene of the incident, A.A.’s seized service gun, the objects found in Arman Yengibaryan’s apartment, his clothes and two bullets removed from his body during surgery, which were also seized for examination. The experts were asked to determine, inter alia , the types of weapons submitted to them, their condition, the last time they had been fired and also whether the account of events described by A.A. in his statement could be confirmed by the results of the forensic examination. It appears that, in the course of the investigation, several witnesses were questioned, including G.S. In particular, G.S. stated, inter alia , that during the chase the perpetrator (Arman Yengibaryan) had fired in the direction of the police officers and the latter had fired in response, whereupon the former had fallen. Witness A.H. stated that she had seen one man chasing another while the one being chased had a weapon in his hands. At that moment she had heard three shots, following which the person who was being chased had fallen to the ground. A.B., another witness, submitted that the chased person had fired in the direction of the police officer, who had fired several times in response. Another witness, L.A., gave an account of events similar to that given by the police officers. On 18 June 2011 it was reported in the media that the Chief of Police had confirmed in an interview the day before that on the day of the shooting Arman Yengibaryan had been armed with a gas pistol. He had stated that before Arman Yengibaryan was disarmed by the police officers he had fired in their direction four times and that it was not until after he had been disarmed that it was discovered that his gun was pneumatic. He had further stated that he did not blame the policeman, since the latter had acted lawfully. On 21 June 2011 the post-mortem examination, including an autopsy, was completed. According to the conclusions of forensic medical expert A.D., Arman Yengibaryan’s death was caused by haemorrhagic-traumatic shock, severe disruption of brain function as a result of acute penetrating ballistic trauma to the head and perforating ballistic trauma to the abdomen. On 22 June 2011 the ballistics examination was completed. The experts concluded, inter alia , that the holes in Arman Yengibaryan’s clothes had been caused by firearms and included two bullet entries and one exit hole, the Ekol & Voltran pistol found at the scene was not a firearm, the three bullets inside it were not munitions and that the metal object discovered in Arman   Yengibaryan’s apartment was a constitutive part of the gas pistol. The experts also stated in their opinion that A.A.’s Makarov service pistol was a firearm and that the two spent bullets which had been submitted for examination had been fired from that gun. However, it was impossible to state with certainty that the two spent bullets corresponded to the four bullet cases found at the scene of the incident. The experts finally stated in their opinion that the assessment of A.A.’s statements was not within a forensic expert’s competence. On 23 June 2011 the Chief of Police gave an interview to the media and stated that he had no doubts that Arman Yengibaryan had been involved in several counts of robbery. He further stated that a number of victims had already identified the criminal and that it was, therefore, to be ruled out that the policeman could have shot the wrong person. According to the media, the Chief of Police had then stated that he felt relieved to know that the criminal who had terrorised the whole city had been disarmed and that in his personal view, as the head of police, everything had been done in a lawful manner and there had been nothing illegal in the actions of the policeman. According to another article published in the media on the same day, the Chief of Police had also stated during his interview that, in a situation where someone fires at you, it is hard to aim and shoot at the fingers, no one is protected from that and this cannot be required of a policeman. He had finally stated that he would await the completion of the investigation and would accordingly reward the policeman if it were found that the latter had acted lawfully. On 27 June 2011 the first applicant’s lawyer applied to the Chief of the Special Investigative Service with a request to involve the first applicant in the proceedings as Arman Yengibaryan’s legal heir and himself as the representative of the victim’s legal heir. The lawyer submitted all the necessary documents including an authority signed by the first applicant. By a letter of 1 July 2011 investigator G.G. replied that the question of granting the status of victim’s legal heir to the first applicant as Arman   Yengibaryan’s father and recognising him as the latter’s representative in the proceedings would be considered after a final legal assessment of the actions of the police officers had been made. On 16 July 2011 the first applicant’s lawyer lodged a complaint with the General Prosecutor against the refusal to grant the status of the victim’s legal heir to the first applicant and recognise himself as the latter’s representative. On 21 July 2011 investigator G.G. decided to terminate the criminal proceedings. The decision stated, inter alia , that Arman Yengibaryan had tried to enter G.S.’s apartment fraudulently to commit robbery. However, due to circumstances beyond his control, he was not able to complete the crime. The decision further stated that it had been established during the investigation that Arman Yengibaryan had used violence dangerous for life and limb against police officers A.A. and N.P. and that it had been established at the same time that the use of firearms by the latter during the incident had been lawful. Finally, the decision stated that Arman   Yengibaryan would not be prosecuted for having used violence dangerous for life and limb against representatives of the authorities, police officers A.A. and N.P., because of the death of the person who had committed the crime. The applicants were not informed of this decision. By a letter of 21 July 2011 prosecutor V.M. of the General Prosecutor’s Office gave a similar reply and stated that the questions raised in the complaint of 16 July 2011 would be considered after the legal assessment of the police officers’ actions. On 5 August 2011 an article was published in the media stating that investigator G.G. had informed the newspaper that the proceedings instituted in relation to the shooting of 14   June 2011 were terminated since the investigation had revealed that the actions of the police officers had been lawful. On the same day the first applicant’s lawyer asked investigator G.G. to provide a copy of the decision to terminate the criminal proceedings instituted in relation to the incident of 14 June 2011. It appears that investigator G.G. did not reply to this request. On 22 August 2011 the first applicant’s lawyer applied to the General Prosecutor and complained about the fact that investigator G.G. had refused to provide a copy of the requested decision and that he had not replied at all to his letter of 5 August 2011. On 5 September 2011 the first applicant’s lawyer received a letter from investigator G.G. which stated that there were no grounds to provide him with the copy of the decision since, according to Article 262 of the Code of Criminal Procedure, the investigator sends the decision to terminate criminal proceedings to the suspect, the accused, the defence lawyer, the victim and his representative, the plaintiff and the defendant in the civil claim and their representatives and also to the representatives of physical and legal persons having made the announcement which resulted in the institution of criminal proceedings. On 7 September 2011 the first applicant’s lawyer complained to the Chief of the Investigative Service that, inter alia , investigator G.G. had unlawfully refused to provide a copy of the decision to terminate the criminal proceedings, which resulted in the violation of the first applicant’s rights as Arman Yengibaryan’s parent and legal heir. He asked to be provided with the decision to terminate the criminal proceedings, together with the materials of the case file. On 8 September 2011 the first applicant’s lawyer lodged a complaint with the General Prosecutor against the omission of investigator G.G. and the decision to terminate the criminal proceedings. He stated, inter alia , that in the circumstances where the first applicant was unlawfully denied the status of the victim’s legal heir and the only information they had concerning the proceedings was the newspaper article published on 5   August 2011, he was obliged to submit his arguments against the decision to terminate the proceedings without having familiarised himself either with the relevant decision or with the materials of the case file. The lawyer argued in particular that Arman Yengibaryan’s killing by police officers had not been absolutely necessary within the meaning of Article 2 of the Convention. On 13 September 2011 investigator G.G. sent a letter to the first applicant’s lawyer stating that there were no grounds to provide him with the copy of the decision in question. By a letter of 19 September 2011 prosecutor V.M. informed the first applicant’s lawyer that there were no reasons to quash the decision of 21   July 2011 to terminate the criminal proceedings on account of murder by use of excessive force since it was lawful and well-founded. The copy of the decision in question was enclosed in the letter. On 28 September 2011 the first applicant’s lawyer sent a letter to prosecutor V.M. stating that the latter had failed to provide him with a duly reasoned decision to reject his complaint about the decision to terminate the criminal proceedings. On 30 September 2011 the first applicant’s lawyer lodged a complaint with the Kentron and Nork-Marash District Court of Yerevan against the decision of 21 July 2011 to stop the prosecution and to terminate the criminal proceedings. The lawyer requested the District Court to provide the materials of the case, given that no opportunity to consult the case file had been given by the investigative body. It was stated that the lawyer had lodged the complaint on that day without yet having had access to the case file, in order to comply with the time-limits for disputing the decisions of the investigative body in court. On 31 October 2011 the second applicant asked to be involved in the proceedings. She stated that she would like to join the first applicant’s complaint and that she would also like to be represented by the first applicant’s lawyer in the proceedings. On an unspecified date the District Court granted the request to consult the case file. Having consulted the file, on 1 November 2011 the lawyer submitted arguments on behalf of the applicants to support their complaint. In addition to the arguments already raised in the complaint, it was argued in detail that the force used by the police officers had been excessive and therefore not justified. It was further argued that Arman Yengibaryan was unlawfully not granted the status of victim in the criminal proceedings, which in its turn violated the applicants’ rights. In the circumstances where Arman   Yengibaryan’s relatives were not allowed to participate in the proceedings, were not provided with the decision to terminate the criminal proceedings and in general had no access to the case file, the investigation into his death had not been effective. Another reason why the investigation had not been effective was that police officers A.A. and N.P. had not been questioned immediately after the killing and no measures had been undertaken to prevent them from discussing the incident prior to being questioned. As a result, A.A. and N.P. had made almost identical statements concerning the incident. It was also argued that the authorities, including the Chief of Police and the investigative body, had breached the principle of presumption of innocence in respect of Arman Yengibaryan. In this regard the applicants referred to the public statements by the Chief of Police and the fact that Arman Yengibaryan’s guilt was not yet established given that the proceedings in this regard were still pending. It was finally argued that, as a result of the public statements of the Chief of Police, there had been undue pressure on the investigation. By a decision of 2 November 2011 the District Court rejected the first applicant’s complaint. The Court did not address the arguments raised in the supplement to the complaint submitted on 1 November 2011. Neither did the Court address the second applicant’s request to be involved in the proceedings. In the meantime, by an order of 30 October 2011 the Chief of Police rewarded police officers A.A. and N.P. for excellence in service. On 11 November 2011 the applicants lodged an appeal and reiterated the arguments they had raised before the District Court. They also complained that the District Court had not involved the second applicant in the proceedings and that it had not properly addressed their submissions, including their arguments contained in the additional submissions of 1   November 2011. By three separate letters of 24 November 2011 the Criminal Court of Appeal notified the first applicant, the second applicant and their lawyer that it would examine their appeal on 8 December 2011. Nevertheless, it appears that the Court of Appeal did not officially involve the second applicant as a party to the proceedings. By a decision of 20 December 2011 the Criminal Court of Appeal fully upheld the decision of the District Court of 2 November 2011. On 11 January 2012 the applicants lodged an appeal on points of law raising similar arguments to those submitted in the previous appeal. On 24 February 2012 the Court of Cassation declared the applicants’ appeal on points of law inadmissible for lack of merit. B.     Relevant domestic law The Police Act (adopted on 16 April 2001) According to Article 29 a police officer resorts to physical force, special tools and firearms in cases and in the manner prescribed by the present act in so far as that is necessary for the performance of his duties, if the performance of those duties is not possible by other means. Police officers must undergo special training in the framework of which they acquire skills of negotiation and persuasion for the purpose of limiting the use of physical force, special tools and firearms. They must also be subjected to periodic tests assessing their ability to act in a situation necessitating the use of physical force, special tools and firearms. After the completion of the relevant training a police officer has the right to carry a firearm. A police officer should strive to minimise the harm caused to an offender. According to Article 32 a police officer has the right to use a firearm, inter alia , to resist an attack when his life or limb is endangered as well as to prevent an attempt to take possession of his weapon. COMPLAINTS The applicants complain under Article 2 of the Convention that the killing of Arman Yengibaryan by the police constituted a violation of Article 2 of the Convention in that it was not absolutely necessary within the meaning of this provision. They further complain under the same Article that the authorities failed to conduct an adequate and effective investigation into his death. The applicants complain under Article 6 § 2 of the Convention that the public statements of the Chief of Police constituted a breach of the principle of presumption of innocence in his respect. The applicants lastly complain under Article 13 of the Convention that they had no effective domestic remedy because the investigative bodies and the courts refused to recognise Arman Yengibaryan’s status as a victim, which deprived them of the possibility of exercising their rights as his legal heirs in the proceedings. They further complain that the courts did not in any way address the second applicant’s request to be involved in the proceedings.   QUESTIONS TO THE PARTIES   1.     Was Arman Yengibaryan’s right to life, ensured by Article 2 of the Convention, violated in the present case?   In particular, did his death result from a use of force which was absolutely necessary for the purposes of paragraph 2 (b) of this Article?   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 under Articles 2 and 13 of the Convention?   2.     Can the applicants claim to be victims of an alleged violation of Article   6   § 2 of the Convention?   If so, was the presumption of innocence, guaranteed by this provision, respected in the present case? In particular, was the Chief of Police bound to respect Arman Yengibaryan’s right to be presumed innocent until proved guilty?