CEDH · CASELAW;COMMUNICATEDCASES;ENG — 13 juin 2019

.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 } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 13 June 2019   FIRST SECTION Application no. 5442/15 Romels TOVMASYAN against Armenia lodged on 16 January 2015 STATEMENT OF FACTS The applicant, Mr Romels Tovmasyan, is an Armenian national who was born in 1945 and lives in Byureghavan. He is represented before the Court by Ms L. Minasyan, a lawyer practising in Yerevan. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is the father of Maro Guloyan (maiden name Tovmasyan), who died on 12 July 2012 at the age of twenty-one while pregnant with her second child. According to the official version, which is strongly disputed by the applicant, his daughter committed suicide by hanging herself from a bathrobe belt in the house where she lived with her husband and child. In 2009 Maro Guloyan married G.G. and moved from Byureghavan to Arindj village where she and G.G. lived together with the latter’s parents and brother and G.G.’s uncle and his family, on different floors of the same house. It appears that Maro Guloyan and G.G. had constant fights because of the latter’s unemployment and financial problems as a result of gambling. On 12 July 2012 Maro Guloyan contacted her brother M.T. and asked him to come to her husband’s house, since she wished to divorce and return to her family home. After a conversation with his sister, G.G., and the latter’s brother and mother in the afternoon it was decided that M.T. would return that evening with their parents in order to discuss the issue. At 9 p.m. the Kotayk Police Department received a report from Abovyan medical centre about Maro Guloyan’s death. It appears that Maro Guloyan was taken to the above-mentioned hospital by G.G.’s relatives. According to the hospital records, she was admitted at 7.20 p.m. It further appears that upon arrival at the hospital she was already dead. On the same date the Kotayk Regional Police Department instituted criminal proceedings under Article 110 § 1 of the Criminal Code (incitement to suicide) on account of Maro Guloyan’s death. On the same date the investigator ordered a forensic medical examination of the body including an autopsy to determine, inter alia , the cause and the time of the death, the presence of injuries and, if there were any injuries, the time and manner of their infliction and their possible connection to the death. The expert was also requested to state whether Maro Guloyan had suffered from any disorder during her lifetime and whether there were any traces of compression of Maro Guloyan’s neck by a bathrobe belt and, if so, whether the relevant strangulation furrow could have been inflicted by the bathrobe belt submitted to the expert for examination. On the same date the police took a statement from A.G., the wife of G.G.’s uncle, who said that at around 7 p.m. she had tried to find Maro   Guloyan, who was not replying to her calls. She then became worried because she noticed Maro Guloyan’s one-year-old child alone by the window and started to search for her in the bedrooms. Having entered the kitchen, she saw Maro Guloyan hanging from a blue cloth from a metal pole in the bathroom, which was situated right next to the kitchen. She screamed and, taking a knife at random, cut the rope, took the body down and called for help. Her husband came and they carried Maro Guloyan to the car and took her to Abovyan hospital where she was pronounced dead. According to A.G.’s statement, Maro   Guloyan did not speak on the journey and her pulse could not be felt. On 13 July 2012 the Abovyan medical centre administration informed the investigator upon the latter’s enquiry that Maro Guloyan had not been listed at the mental health and toxicology unit of the hospital. A photojournalist working for a well-known investigative journalism website attended Maro Guloyan’s funeral, which appears to have taken place one or two days after her death, and took pictures, including of the body. When questioned by the investigator, she stated that she had been asked by Maro Guloyan’s relatives to take pictures of several injuries that were present on the body. She had not refused their request and took pictures of the injuries from different angles. Then she called the Women’s Resource Centre whose representatives arrived shortly thereafter, including lawyer Lusine Minasyan, to whom she passed the photographs some time later upon the latter’s request. On 20 July 2012 the applicant was recognised as the victim’s legal heir in the criminal proceedings in question. On the same date Maro Guloyan’s brothers, N.T. and M.T. were interviewed. In particular, M.T. mentioned in his statement that on the day of the incident he had seen his sister at around 4 p.m. when she called him and asked him to come to her home. From the conversation with his sister he had understood that she wished to divorce G.G., who had also expressed his wish to divorce. He had then left for home, to return with their parents. When he was leaving he had not noticed anything extraordinary about his sister; she was only sad because she loved G.G. very much. At home, his mother had been unable to contact his sister for some time. They had then found out that Maro had felt unwell and been taken to hospital. Upon their arrival they had seen G.G.’s relatives and police officers gathered there. They had not been allowed to visit Maro and were given no information. Thereafter they had entered the hospital lobby and seen that Maro’s face was covered. M.T. further stated that Maro loved her life and her child and that he was certain that she could not have had committed suicide. On 16 August 2012 the forensic medical expert A.M. delivered his report. No photographs of the body were attached to the report. The relevant parts of the report state the following: “... The forensic examination has started on 13.07.12 at ... The forensic examination has ended on 16.08.12 ... ... [Maro Guloyan’s] death has resulted from mechanical suffocation caused by compression of the neck organs ... The discovered strangulation furrow was brought about shortly before death as a result of direct application of a relatively firm object, possibly the submitted bathrobe belt, and was in direct link with the death. In the course of the forensic examination of [Maro Guloyan’s] body ecchymoses have been discovered on the front surface of the neck which could also possibly have been inflicted by the submitted belt. A scratch has also been discovered on the right side on the front surface of the neck, which was inflicted during lifetime shortly before death or in agonal condition with a blunt object having a sharp end and which has no direct link to the death. As a result of the absence of a record of the observation of the body at the scene of the incident it is not possible to determine precisely the time of death but, having regard to the [state of the corpse] ... it can be assumed that [Maro   Guloyan] died 16-20 hours before the forensic medical examination ... No objective signs of other injuries have been identified apart from the strangulation furrow on the neck, ecchymoses and the scratch ... at the time of death [Maro   Guloyan] was in a state of subclinical alcohol intoxication ... [Maro Guloyan] was 7-8 weeks’ pregnant ...” At some point during the investigation the photographs taken during the funeral, which showed injuries on Maro Guloyan’s body, were provided to the investigator, who ordered a forensic technical examination of the photographs. In a report delivered on 12 November 2012 the expert confirmed that the photographs in question had not been subjected to any editing. It appears that the applicant requested an additional forensic medical examination, arguing that the injuries that could be seen on the photographs taken during the funeral which had been provided to the investigator had not been noted during the initial forensic medical examination. On 10 September 2012 the investigator ordered Maro Guloyan’s posthumous forensic psychiatric assessment to determine, inter alia , whether the latter had suffered from any mental disorders and her psychological state during the period preceding her death. On the same date the investigator ordered a combined forensic trace and medical examination to determine, inter alia , whether or not the bathrobe belt in question could have served as an instrument for Maro Guloyan to hang herself and whether, in view of the latter’s height, weight and the material characteristics of the given bathrobe belt, it was possible for her to hang herself from the metal pole in question. By a decision of 23 November 2012 the investigator ordered an additional forensic medical examination on the grounds that, in view of the photographs that had been provided, the results of the initial forensic medical examination were subject to doubt and that the circumstances of infliction of the injuries present on Maro Guloyan’s body should be clarified. In order to carry out the additional forensic medical examination the investigator also decided that Maro Guloyan’s body was to be exhumed. In their report delivered on 25 December 2012 the experts stated, in particular, the following: “...the following injuries were discovered: strangulation furrow on the ... neck and ecchymoses in the same area and in the inner soft tissues all of which ... are the consequence of ... mechanical suffocation ... The scratch discovered ... on the right lower jaw area and the ecchymosis on the front surface of the neck have been inflicted while alive prior to death – the scratch [could have been inflicted] by a blunt object which in this case could have been the ligature while the scratch [could have been inflicted] by a sharp-ended object ... ... it could be concluded that the strangulation furrow on [Maro Guloyan’s] neck could have been brought about as a result of hanging herself from the “bathrobe belt”... No injuries other than those described above have been discovered on the exhumed body ... It should also be noted that some injuries, if there were any, could have remained undiscovered because of changes in tissues as a result of decomposition. As regards the “injuries and traces” pictured on the photographs, no injuries have been discovered on the areas in question during the additional forensic medical examination ...” On 28 December 2012 the commission of experts, including expert ‑ psychiatrist V.B., delivered its report summarising the results of the posthumous forensic psychiatric assessment. The relevant parts of the report read as follows: “... [Maro Guloyan] did not suffer from any mental disorder ... it is possible that during the period preceding her death [Maro Guloyan] was in a state of ... depression. Psychologist’s conclusion: the materials of the case file as well as the results of psychological analysis of the information contained in the [investigator’s] decision have been used to reach the present findings which allow describing Maro Guloyan as a positive person... From the provided materials it becomes clear that after the birth of their first child there were fights in the family mainly because [G.G.] did not work and gambled... There is data in the case file showing that Maro Guloyan had a friendly attitude towards the husband’s relatives as well as the neighbours and acquaintances. She loved and had a close connection with her child. There is no information about [Maro Guloyan’s] consumption of alcohol although according to the [initial] forensic medical examination she had died “in a state of subclinical alcohol intoxication”... The circumstances of infliction of the scratch on the front surface of the neck have not been clarified either. The fact that those who knew [Maro Guloyan] describe her as a friendly person who loved life and her child and who in no circumstances had ever expressed any suicidal thoughts, casts doubt on the fact of suicide, especially when all those questioned unequivocally confirm that [Maro Guloyan] had been in a good mood during the days preceding her death. All these circumstances make it difficult to give precise answers to the posed questions. Nevertheless, in response to the questions put by the [investigator’s] decision I state the following: - during the period preceding her death Maro Guloyan was in a state of depression because of the divorce although, according to persons close to her, she was in a good mood. ... - Since the suicide is doubtful, it is not possible to give a precise answer in relation to the causal link. - Taking into account the descriptive and other data contained in the materials of the case file, Maro Guloyan had a mixed sanguine and choleric personality type which in its turn puts into question the commission of suicide by her.” On an unspecified date in January 2013 A.G. was questioned once again. She stated, in particular, that on the day of the incident she was at home and noticed at around 3-4 p.m. that Maro Guloyan’s brother was being seen off. She had then asked her daughter, L.G., to call Maro Guloyan. L.G. had entered the house and returned screaming, telling her to hurry and see what had happened. She had immediately gone in and seen that Maro Guloyan was hanging from the metal pole in the area connecting the kitchen and the bathroom. She then confirmed her earlier statements about cutting the rope and taking the body down. A.G. further stated that her husband and G.G. had come and helped her put the body on the sofa, after which they had taken her to hospital. On 29 January 2013 the combined forensic trace and medical examination was completed. The relevant parts of the experts’ report read as follows: “... taking into account the size and structural characteristics as well as the form and firmness of the bathrobe belt submitted for examination, the possibility that the strangulation furrow on [Maro Guloyan’s] neck resulted from hanging with the ligature formed by the bathrobe belt in question ... cannot be ruled out. ... The presented bathrobe belt ...if turned into a ligature by tying a double knot, could have served as a tool for self-hanging as well as for [Maro Guloyan’s] hanging by a third person ...” On 30 January 2013 G.G.’s father was questioned and stated, in particular, the following: “On 12.07.2012 I ... was working in the construction area not far away from our house where we were building a house... It would be around [5 p.m.] when suddenly ... [L.G.] said in tears: “come, quickly”. All of us ran towards her and saw that my brother ... had put Maro [Guloyan] on the sofa ... I think that Maro [Guloyan’s] genetic problems contributed to the [suicide]. Firstly, Maro [Guloyan] had five brothers, two of whom, [M.T.] and [N.T.] have the same parents as [her] ... Maro [Guloyan’s] half-brother [A.T.] ... committed suicide in ... 2011 while some time later [Av.T., the other brother] whose mental disorder had worsened ... committed suicide in a psychiatric hospital... [M.T.] also has mental issues ... he has self-harmed on his hand several times in the past, that is to say I am of the opinion that Maro [Guloyan] also had issues which contributed to the commission of suicide ... We do not have anything to do with Maro [Guloyan’s] death and would not have wanted this to happen, nobody incited her to suicide and I think that the only reason for it was the mental problem that existed in their genes ...” It appears that the victim party made several requests in relation to the missing bathrobe, the belt of which had allegedly been used as a tool for self-hanging. In relation to this, G.G.’s mother was questioned in February 2013 and stated, in particular, that she had personally sent Maro Guloyan’s everyday clothes, including the bathrobe in question, to her parents so that these could be buried with her. On 12 March 2013 the investigator questioned expert-psychiatrist V.B. The relevant parts of the interrogation state, in particular, the following: “Question: ... after receipt of the results of the posthumous forensic psychiatric assessment ... it has been revealed that the deceased Maro Guloyan had had another two half-brothers ... who had also committed suicide ... notably one of them ... had committed suicide because of divorce ... which coincides with the problem in Maro   Guloyan’s family. Is it possible that Maro Guloyan’s suicide could have a genetic link ...? Answer: There is no scientifically proven answer to your question, although it is known that mental disorders are closely linked to genetics... That Maro Guloyan ... was preoccupied by the fact of her two brothers’ suicide in the past, increases the probability that she could also go that route, although it is not possible to claim unequivocally that this could have been a reason for her to commit suicide. Especially [taking into account] that according to the latest data of the World Health Organisation only 20% of suicides are linked to mental disorders, the rest [are linked] to other unrevealed reasons ...” On 22 March 2013 the investigator carried out a reconstruction of the incident upon the applicant’s request during which A.G. was unable to cut the noose made from Maro Guloyan’s bathrobe belt with the knife and at the same time hold the dummy corresponding to the latter’s weight and height without it falling to the floor. Thereafter A.G. stated that she had not taken down the body but had knelt and Maro Guloyan had fallen on her. By the decision of 22 April 2013 the investigator decided to terminate the criminal proceedings for absence of corpus delicti . With reference to the witness statements, including expert-psychiatrist V.B.’s statement and the results of forensic examinations, the investigator concluded that it had been substantiated that Maro Guloyan had committed suicide as a result of depression because of the situation around the divorce. The applicant appealed against the investigator’s decision of 22 April 2013 to Kotayk Regional Prosecutor’s Office. On 13 May 2013 the Deputy Regional Prosecutor rejected the applicant’s appeal. On May 2013 the applicant sought judicial review of the decision of 23   April 2013 before the Kotayk Regional Court. On 17 June 2013 the applicant requested the Prosecutor General to quash the investigator’s decision of 22 April 2013. By decision of 24 June 2013 the Prosecutor General granted the applicant’s request and quashed the decision in question stating, in particular, the following: “... I find that ... a number of necessary investigative measures have not been carried out: Thus: ... the photographs [taken during Maro Guloyan’s funeral] show injuries on the neck and hands ... which have not been revealed during the autopsy. ... According to ... [A.M.’s] statement and the results of the additional forensic medical examination the mentioned injuries were not present at the time of autopsy. In such circumstances it is necessary to thoroughly investigate the origin of the possible injuries pictured in the photographs. In particular, the members of the personnel of Abovyan medical centre who dealt with Maro Guloyan’s body should be identified and questioned in relation to the injuries ... It should also be clarified whether any other person ... was present during the autopsy apart from the expert ... ... No photographs had been attached to the forensic medical expert’s report. According to a letter of the head of forensic medicine division, the photographs had not been attached to the report because of bad quality. In such circumstances the investigator has not attempted to establish the fact of the photographs having been of poor quality. In this regard it is necessary to find out whether the photographs had been conserved or not as well as to find the person who had taken the photographs during the autopsy and question the latter about the existence of injuries on the victim’s body. Witness [A.G.] has made conflicting statements about the time and circumstances of the discovery and transfer of the body. Kotayk Police Department received a report from Abovyan medical centre at 20:50 whereas according to [A.G.’s] and [L.G.’s] statements Maro Guloyan’s body was discovered at around 15:00-16:00. Other members of the Guloyan family mention the time period between 16:00 and 17:30. In this situation the investigation has not found out what happened during those 4 hours. ... it is necessary to question the members of the Guloyan family once again and conduct a thorough investigation of the latters’ telephone calls... also question the neighbours and relevant staff of Abovyan medical centre ...” On 11 July 2013 the Kotayk Regional Court decided to reject the applicant’s appeal against the investigator’s decision of 22 April 2013. On the same date the applicant requested the Prosecutor General to transfer the investigation of the case to Yerevan for lack of confidence in the Kotayk regional investigative and prosecution authorities. It appears that the applicant’s request was granted, and the investigation was assigned to Nor Nork investigative department in Yerevan. It further appears that in August 2013 investigator D. of the Nor Nork Investigative department took over the investigation. Between August and November 2013 D. questioned the members of the Guloyan family and other witnesses. During her questioning G.G.’s mother stated, inter alia , that on the day of the incident she had been called in from outside at around 5.30 to 6 p.m. When she rushed home to find out what had happened, police officers were there. When the investigator asked G.G.’s mother to comment on the injuries visible in the photographs taken during the funeral, she denied ever having seen any. Upon D.’s enquiry of 21 October 2013, the head of the forensic medicine division of Kotayk region submitted information concerning five other autopsies carried out during the days preceding and following the forensic medical examination of Maro Guloyan’s body, including one that had started on 23 July 2012 and ended on 21 August 2012. According to the letter, the five autopsy reports in question had also lacked an attachment with photographs since the photographs of the relevant bodies had been made on the same poor quality photographic film as those of Maro   Guloyan’s body. On 31 October 2013 G.G.’s mother was additionally questioned in particular as regards Maro Guloyan’s clothes, including the bathrobe and its belt, as well as about the fact that the tests of blood samples taken during the autopsy had shown signs of alcohol consumption. She stated, inter alia , that she had sent Maro Guloyan’s everyday clothes, including the bathrobe whose belt she had used to hang herself, to the morgue with some relatives who had given the clothes, in a plastic bag, to the employee of the morgue. The employee had then given Maro Guloyan’s slippers back. She further stated that Maro Guloyan never drank any alcohol and that she had not noticed any smell of alcohol when she spoke with her daughter-in-law on that day. On 1 November 2013 D. questioned the employee of the morgue, who said that he could not specifically indicate whether the bathrobe in question had been among the clothes provided by the relatives since he had not inspected the contents of the bag. It appears that D. also questioned expert A.M. in relation to the initial forensic medical examination of Maro Guloyan’s body. It further appears that A.M. stated that he had not noticed any injuries other than those mentioned in the autopsy report. As regards the fact that no photographs of the body were attached to the report, A.M. stated that he had thrown away the photographic film with the photographs of Maro Guloyan’s body, and which also contained photographs pertaining to other autopsies, because it had been spoiled. In his statement of 8 November 2013 G.G. stated, inter alia , that his wife never consumed alcohol, even on special occasions. By the decision of 20 November 2013 D. terminated the proceedings for absence of a crime, having concluded that Maro Guloyan had committed suicide as a result of depression in relation to her divorce. On 29 November 2013 the applicant appealed against the decision of 20   November 2013 before the prosecutor. The applicant firstly complained that, contrary to his specific request, he had not been provided with an opportunity to familiarise himself with the materials of the case, that is the evidence gathered after the resumption of the criminal proceedings. He argued that the investigation had failed to clarify a number of issues, including the reasons behind the serious contradictions in A.G.’s statements, the credibility of expert reports, and the presence of alcohol in the victim’s body. Overall the applicant questioned the plausibility of the suicide hypothesis as the cause of his daughter’s death. By decision of 9 December 2013 the prosecutor upheld the decision of 20   November 2013 in full. The applicant sought judicial review of the decision in question before the Avan and Nork District Court of Yerevan (the District Court). The applicant complained that the materials of the case gathered after the resumption of the criminal proceedings had not been made available to him despite his numerous requests. He argued that the fact of withholding the evidence in question reinforced the victim party’s claim that the investigation had not been thorough. He then reiterated his complaints in relation to the deficiencies in the investigation that had been pointed out in the appeal of 29 November 2013. It appears that the requested materials of the case were subsequently provided to the applicant. By submissions of 24 February 2014 the applicant supplemented his initial complaint lodged with the District Court, submitting more detailed arguments to support his complaints concerning the inadequacy of the investigation into the circumstances of his daughter’s death. He argued, inter alia , that no cross-examinations had been conducted despite significant contradictions between witness statements and that the exact time of discovery of the body and the events surrounding and following the discovery had not been clarified, and so on. On 18 March 2014 the District Court fully upheld the decision of 20   November 2014. In doing so, it relied on the findings of the decision. As regards the applicant’s procedural complaints, the District Court stated that the investigative authority had an obligation to conduct cross-examinations only in cases when there were contradictions between the statements of a person who had been charged with a criminal offence and another person; in all other situations this was at the discretion of the investigator. Furthermore, the victim party had been provided with an opportunity to familiarise itself with the requested materials of the case during the judicial review proceedings. The applicant lodged an appeal which was rejected by decision of the Criminal Court of Appeal dated 29 April 2014. The applicant lodged an appeal on points of law raising the same arguments as before. By decision of 2 July 2014 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. This decision was served on the applicant on 16 July 2014. COMPLAINT The applicant complains under Article 2 of the Convention that the authorities failed to carry out an effective investigation into his daughter’s death. QUESTION TO THE PARTIES Having regard to the procedural protection of the right to life (see paragraph   104 of Salman v.   Turkey [GC], no.   21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities into the death of the applicant’s daughter in breach of Article   2 of the Convention?