CEDH · CASELAW;COMMUNICATEDCASES;ENG — 30 mai 2018

.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 } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 30 May 2018   FIRST SECTION Application no. 69517/11 Nana MURADYAN against Armenia lodged on 23 January 2012 STATEMENT OF FACTS The applicant, Ms Nana Muradyan, is an Armenian national who was born in 1973 and lives in Armavir. She is represented before the Court by Mr M. Shushanyan and Mr R. Revazyan, lawyers practising in Yerevan. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is the mother of Valeri Muradyan, deceased at the age of 18. In November 2009 Valeri Muradyan was drafted into the Armenian Army. He was then assigned to military unit no.   39318 (‘the military unit’), situated in the unrecognised Republic of Nagorno Karabakh. On 15 March 2010 at around 12.35 a.m. Valeri Muradyan’s body was found hanging from a metal pole at the back of the officers’ room of the military unit’s maintenance company. On the same date investigator A. of the First Garrison Investigation Department of the Investigative Service of the Ministry of Defence of the Republic of Armenia (Stepanakert, Nagorno Karabakh) took   a   decision to institute criminal proceedings concerning Valeri Muradyan’s death. The investigator’s decision stated, in particular, the following: “... having considered the report concerning private [Valeri Muradyan’s] suicide, I found out that at around 12.35 a.m. on 15 March 2010 ... private [Valeri   Muradyan’s] body was found hanging from a metal pole with a rope at the back of the officers’ room of the maintenance company of [the military unit]. The given fact contains the elements of the crime stated in Article 110 § 1 of the [Criminal Code of Armenia] ... I decide to institute criminal proceedings under Article 110 § 1 ..., take over the criminal case and conduct an investigation ...” At 1.30 a.m. on the same date investigator A. conducted an examination of the place of the incident, which was finished at 2.50 a.m. and a relevant record was drawn up. According to the record, during the examination the investigator found a military belt carrying the number 118733 in front of the door to the contractual servicemen’s office situated in a building next to the officers’ room of the military unit’s maintenance company. The discovered belt was seized by the investigator. A couple of metres away the investigator found a military hat and a belt, both carrying the number 00000276 and a military jacket carrying number 105388, all of which were seized. The record then went on to describe the position of Valeri   Muradyan’s body, which was said to have been hanging from a metal pole. It was stated, inter alia , that Valeri Muradyan was in military uniform and that there was a chair on the floor, 5 centimetres away from his left heel. After Valeri Muradyan’s body had been removed and taken on a stretcher to the officers’ room of the maintenance company, the remainder of the rope that had been left on the metal pole was also seized. From 2.55 a.m. until 3.30 a.m. A. performed an examination of Valeri   Muradyan’s body. His clothes, including his military jacket, were removed and seized. In the morning on the same date, investigator A. conducted an additional examination of the scene of the incident. It appears that a torn and empty cardboard box with “Muradyan Valerik” written on it was found and seized. No other items relevant for the investigation were recorded as being found during the examination of the officers’ room of the maintenance company and the office of contractual servicemen. On the same date investigator A. ordered a forensic medical examination of Valeri Muradyan’s body to determine, inter alia , the cause of his death, the presence of injuries on his body, whether his death had resulted from the hanging or whether the knot had been put in place after his death and whether it was possible that his death had resulted from suffocation by other means. It appears that in the aftermath of the incident, several servicemen of the maintenance company, including N.G., H.H., A.K. and K.A., were questioned. According to their account of the events, Valeri Muradyan owed 6,000 Armenian drams (AMD) (approximately EUR 11) to serviceman N.G. who had lent the money to Valeri Muradyan for him to pay back another serviceman, M.B., for a mobile telephone bought from the latter. On 14 March 2010 servicemen H.H. and A.K. had requested AMD 2,000 (approximately EUR 4) from N.G. Stating that he did not have the money, N.G. had referred them to Valeri Muradyan who, according to N.G., had agreed to give them AMD 2,000 from the amount initially owed to him. As a result of further discussions on the same day, A.K. and H.H. learnt that Valeri Muradyan had lied to them when he had said that another serviceman, T.H., had agreed to lend him the required amount. Later the same day servicemen A.K. and H.H. had met N.G. to discuss Valeri   Muradyan’s debt. Junior sergeant K.A. had also joined in the conversation. N.G. had offered to meet Valeri Muradyan. At around 9 p.m. they had gone to the contractual servicemen’s office which had been empty at that time. A.K. had then invited Valeri Muradyan, who had been asked to provide an explanation for having lied about the fact that T.H. had promised to lend him money. Valeri Muradyan had bent his head and not answered. Thereafter Valeri Muradyan had stated that he needed to go to the first artillery division urgently. When Valeri Muradyan was leaving, A.K. had told him to find the required amount before midnight. It further appears that in their statements N.G., K.A., H.H. and A.K. had denied inflicting any violence on Valeri Muradyan during the discussions concerning the latter’s debt. Platoon commander A.A. was in charge of the maintenance company on 14 March 2010. At about 10.30 p.m., before giving the “Lights out” order, A.A. went to the armoury, where he had seen all the maintenance company servicemen except Valeri Muradyan. A.A. had enquired as to his whereabouts, to which junior sergeant K.A. had replied, untruthfully, that Valeri Muradyan had gone to the toilet. A.A. had then not verified whether that was indeed the case and had left for his office to continue watching television while K.A. had marked Valeri Muradyan as present in the evening register. At about midnight, private L.T., seeing that Valeri Muradyan’s bed was empty, had informed fellow servicemen. After searching for Valeri   Muradyan for some time the servicemen had discovered his body hanging from a metal pole. At some point the applicant was recognised as Valeri Muradyan’s legal heir in the proceedings. When questioned, the applicant stated, in particular, that during a telephone conversation with her son a couple of days before the incident the latter had told her that he had witnessed a fuel theft at the military unit. She had also stated that she did not believe that her son could have committed suicide and believed that he had been killed by his fellow servicemen whom he had seen stealing fuel. On 19 April 2010 the forensic medical expert delivered his report. The relevant parts of the report read as follows: “... there is a single closed strangulation furrow on the upper third of the neck... On the left side on the front surface of the neck there is a 1.2-1.3 cm wide, dark red serpent-like bruise that is horizontal to the strangulation furrow ...   [Valeri Muradyan’s] death has resulted from mechanical suffocation caused by compression of the neck organs by the knot ... The following injuries have been discovered as a result of the forensic examination of [Valeri Muradyan’s] body: a bruise in the area of the left arm, an abrasion on the right wrist ... which have been inflicted while he was still alive about 2-4 days prior to the death ... are not connected with the death ... Apart from the features inherent to the given type of mechanical suffocation, the forensic examination of [Valeri   Muradyan’s] body has not revealed other specificities ...” On 31 May 2010 investigator A. ordered a posthumous forensic psychiatric and psychological assessment of Valeri Muradyan’s condition prior to his death. The relevant parts of the experts’ report of 27 July 2010 read as follows: “... It should also be noted that [Valeri Muradyan’s] fellow servicemen and officers have said in their statements ... that [Valeri Muradyan] had not complained about military service and was in a good mood during the period preceding his death, moreover he was happy, no anxiety or despair could be noticed ...   It should be noted that the participants in the situation being examined have stated ... that [Valeri Muradyan] was very upset and did not utter a word or respond during the last conversation with him. It is also worth noting that, apart from the mentioned fact, according to the materials of the case file [Valeri Muradyan] had not been subjected to any violence on the part of anyone, he had not been seen unhappy or depressed... ... it can be concluded that while alive and at the moment of committing suicide [Valeri Muradyan] did not suffer from any psychiatric disorder and could give account for his actions and control them. ... [Valeri Muradyan] had found himself in a conflicting situation trying to find money for the payment of the mobile telephone bought from M.B. ... ... according to the materials of the case file [Valeri Muradyan] ... had plans for the future, there is no information about a previous suicide attempt or thoughts [of that sort], his relationships with fellow servicemen were normal... ... it can be concluded that almost immediately before his death [Valeri Muradyan] was in a severely depressed psychological state. It should equally be mentioned that, according to the materials of the case file, [Valeri Muradyan’s] psychological state before his death was provoked by the ... discussions concerning repayment of the money to which contributed the actions of [N.G.], [A.K.], [H.H.] ... ... it can be concluded that there is a causal link between the actions of [N.G.], [A.K.], [H.H.] and [Valeri Muradyan’s] psychological state but those actions should be the subject of legal assessment.” Being dissatisfied with the results of the investigation, the applicant sent various complaints to the authorities claiming that the investigation was failing to establish the true circumstances of her son’s death. On 3 August 2010 the investigation of the case was taken over by investigator A.T. of the Investigation Department of Cases of Special Importance of the Investigative Service of the Ministry of Defence (Yerevan, Armenia). On 6 September 2010 A.T. ordered a forensic biological examination of Valeri Muradyan’s clothes, including his military hat, belt, trousers and jacket, all of which carried the number 00000276, and other items found at the place of the incident, including the military belt carrying the number 118733 and a military jacket carrying number 105388. On 16 September 2010 the expert delivered his report according to which Valeri Muradyan’s trousers were dirty and had whitish traces on them while his shirt was equally dirty and the sleeves covered with white mould traces. No traces of blood, skin or hair particles had been found on the clothes that were examined. On the same day A.T. ordered a forensic trace examination to determine, in particular, whether any traces of a struggle or fight could be detected on the clothing seized at the place of the incident. The expert’s report, delivered on 12 October 2010, concluded that there were no mechanical defects or specific traces on the clothes that had been examined. On 4 October 2010 A.T. ordered a forensic biological examination of the rope to determine whether there were any traces of blood, hair or skin or other biological samples on it. According to the expert’s report of 15   October 2010, the presence of sparse blood had been established in the sample taken from the part 12-13 cm from the knot. However, the blood type had not been determined, probably because of the protein sparseness in the sample for which reason the expert had not proceeded to determining the blood group. It appears that it was established during the investigation that the military belt carrying the number 118733 found at the place of the incident had belonged to N.G.   By decision of 15 January 2011 A.T. decided to suspend the criminal proceedings into Valeri Muradyan’s death. The relevant parts of the decision read as follows: “... According to the materials of the case file, before, during or after the conversation which had taken place at around 9 p.m. on 14 March 2010 ... servicemen N.G., A.K., H.H. and K.A. had not assaulted, threatened, debased or humiliated Valeri Muradyan ... It was also established that during the days preceding the incident, Valeri Muradyan had participated in car repair works in the maintenance company and the bruise in the area of his left arm and the abrasion on his right wrist could have been caused then. ... K.A. and A.A. had failed to fulfil their duties properly, however no significant damage has been caused by their actions and there is no causal link between their actions or inaction and [Valeri Muradyan’s] suicide. K.A. and A.A. could not have predicted that, being absent from the evening call-up [Valeri Muradyan] could have committed suicide ... As a result of the internal investigation into [Valeri Muradyan’s] suicide ... responsible officials, who had breached the internal rules of military conduct, including A.A., had been reprimanded. ... The Stepanakert Military Police Department and the command of the military unit had been instructed to investigate a shortage of fuel in the military unit ... however there had been no cases of fuel shortage ... detected. ... according to the evidence collected in the case [N.G.] had left his belt [at the site where Valeri Muradyan’s body was found] as a result of having forgotten about it and no other information has been received in the case to explain the presence of [N.G.’s] military belt at the site in question. ... The chair that [Valeri Muradyan] used during the suicide is a metal one and, according to the evidence ..., it did not belong to any division, it was at the back of the maintenance company garages and was not in use. ... Thus, all the possible necessary investigative actions have been undertaken during the investigation ... however the person or persons to be charged have not been identified.” On 31 January 2011 the supervising prosecutor instructed A.T. to resume the investigation. It appears that the prosecutor gave A.T. specific instructions concerning investigative measures that should still be undertaken. By decision of 3 February 2011 A.T. resumed the proceedings. On 4 November 2011 the applicant lodged a claim with the Arabkir and Kanaker-Zeytun District Court of Yerevan seeking judicial review of the actions and inaction of investigators A. and A.T., recognition of the violation of Valeri Muradyan’s right to life and establishment of the fact of the ineffectiveness of the investigation into his death. The applicant mainly complained that investigator A. had failed to undertake necessary measures to investigate the circumstances of her son’s death properly, having put forward the suicide hypothesis in a preconceived manner. Neither had investigator A.T. tried to consider other versions of the incident, apart from the suicide hypothesis. Although he had ordered several forensic examinations, those had not produced any visible results. By decision of 12 December 2011 the Arabkir and Kanaker-Zeytun District Court of Yerevan left the applicant’s complaint unexamined on the ground that she had failed to mention specifically the action or decision complained of. Upon the applicant’s appeal, the Criminal Court of Appeal upheld the decision of 12 December 2011 by its decision of 26 January 2012. The applicant lodged an appeal on points of law which was declared inadmissible for lack of merit by the decision of the Court of Cassation of 21 March 2012. It appears that the case was then taken over by investigator A.M. of the Investigation Department of Cases of Special Importance of the Investigative Service of the Ministry of Defence. On 25 June 2013 the applicant enquired about the status of the investigation, in particular about the investigative measures which had taken place in the preceding year. By letter of 4 July 2013 A.M. replied that the investigation continued and that the applicant would be able to study the file upon its completion. On 11 March 2014 the applicant asked to examine the package containing her son’s clothes that had been seized by investigator A. at the scene of the incident. On 8 August 2014 the applicant lodged a complaint with the Prosecutor General which, in particular, stated the following: “... Upon my request ... investigator [A.M.] has performed an additional examination of the sealed package in which my son’s clothes, which are material evidence in the case, were kept. As a result of the examination the following has been revealed: 1. My son’s military boots, which were on him when his body was discovered, were missing from the package; ... In view of the foregoing, I request that the Special Investigative Service [of the Republic of Armenia] be instructed to investigate the above-mentioned circumstances.” By decision of 12 September 2014 the Special Investigative Service refused to institute proceedings against investigator A. The decision referred to A.’s statement according to which he had not considered it important to examine Valeri Muradyan’s military boots and had not put them in the package with the rest of the clothes since he had not detected any injuries on Valeri Muradyan’s lower extremities or his clothes, including his socks, for which reason the boots had not later been sent to the Investigative Service of the Ministry of Defence. The decision of 12 September 2014 was appealed against to the Prosecutor General unsuccessfully, after which the applicant sought its judicial review. On 24 December 2014 the Kentron and Nork-Marash District Court of Yerevan upheld the decision of 12 September 2014. The applicant lodged an appeal which was rejected by the decision of the Criminal Court of Appeal of 26 February 2015. The applicant lodged an appeal on points of law. By decision of 23 July 2015 of the Court of Cassation the applicant was refused leave to appeal. On 7 December 2015 A.M. took a decision to suspend the criminal proceedings. The decision stated, in particular, the following: “... no evidence has been obtained to substantiate that [Valeri Muradyan] has fallen victim to ... humiliation or ill-treatment. ... Thus in the course of the investigation ... all possible investigative measures have been undertaken in order to identify the person/persons who should be charged for having incited [Valeri Muradyan] to commit suicide ...” The applicant appealed against the decision of 7 December 2015 to the Military Prosecutor. By decision of 19 February 2016 the applicant’s appeal was rejected. The applicant lodged a complaint with the Arabkir and Kanaker-Zeytun District Court of Yerevan against the decisions of 7 December 2015 and 19   February 2016. On 7 November 2016 the Arabkir and Kanaker-Zeytun District Court of Yerevan upheld fully the decisions of 7 December 2015 and 19 February 2016. On 29 November 2016 the applicant lodged an appeal. On 21 December 2016 the Prosecutor General sent a letter to the Head of the Investigative Committee, the relevant parts of which read as follows: “Upon my instruction the criminal case [concerning Valeri Muradyan’s death] has been examined by the Department of organisation, supervision and legal assistance of the Prosecutor General’s Office... It has been revealed as a result of the examination of the criminal case that it is necessary to perform a number of investigative and procedural activities with the purpose of ensuring the full and objective investigation, therefore a decision was taken on 21 December 2016 to quash the decision of 7 December 2015 whereby the criminal proceedings were suspended. ... I propose to discuss the question of continuing the investigation in the Department for Investigation of Cases of Special Importance of the Investigative Committee ...” On 23 January 2017 the applicant withdrew her appeal against the decision of 7 November 2016 of the Arabkir and Kanaker-Zeytun District Court of Yerevan on the ground that the investigation had been resumed in the meantime. The Criminal Court of Appeal discontinued the examination of the applicant’s appeal on the same date. As of May 2017 the Investigative Committee continued the investigation into the death of the applicant’s son. B.     Relevant domestic law Article 110 § 1 of the Criminal Code provides that, with indirect intention or involuntarily, provoking a person to commit or attempt suicide through threats, cruel treatment or repeatedly degrading his dignity shall be punishable by imprisonment for a period not exceeding three years. COMPLAINTS The applicant complains under Article 2 of the Convention that the State failed to protect her son’s life during his military service. She further complains under the same provision and Article 13 of the Convention that the authorities failed to carry out an effective investigation into her son’s death.   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.     Was the applicant’s son’s right to life, guaranteed by Article 2 of the Convention, violated in the present case?   3.     Having regard to the procedural protection of the right to life (see Öneryıldız v. Turkey [GC], no. 48939/99, § 89, ECHR 2004 ‑ XII), was the investigation by the domestic authorities in the present case in breach of the guarantees under Article 2 of the Convention, as alleged by the applicant?   4.     Did the applicant have at her disposal an effective domestic remedy for her Convention complaints, as required by Article 13 of the Convention?   The Government are requested to provide a full copy of report no. 238/12 by the forensic medical expert dated 19 April 2010 and a copy of the report of the internal investigation into the incident of 15 March 2010.