CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 novembre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } Published on 16 December 2024   FIFTH SECTION Application no. 48207/19 Emil SAFARYAN against Armenia lodged on 4 September 2019 communicated on 29 November 2024 SUBJECT MATTER OF THE CASE The case concerns the death of the applicant’s son, A. Safaryan, during compulsory military service and the ensuing investigation. A. Safaryan was performing his compulsory military service in military unit no. 49971 of the Nagorno-Karabakh armed forces (“the military unit”, situated in the “Republic of Nagorno-Karabakh”). At around 8.40 p.m. on 27 February 2015, when A. Safaryan was on watch duty in a military base guarded by the military unit, he died from a gunshot injury to his chin. On 28 February 2015 the Investigative Committee of Armenia instituted criminal proceedings under Article 110 of the former Criminal Code (incitement to suicide) and ordered an autopsy. The investigation eventually concluded that A. Safaryan had committed suicide as a consequence of the violence and humiliation to which he had been subjected before his death. In that connection, charges were brought against Private G.G. and Junior Sergeant M.H. under Article 359 § 3 of the former Criminal Code (breach of the rules of military conduct by servicemen in the absence of a subordinate relationship between them, in the form of humiliation, bullying, beating or other acts of violence, which resulted in grave consequences). Also, Warrant officer A.S., who had beaten and insulted A. Safaryan in front of the entire personnel of the base when in charge of the given military base on 24 February 2015, was charged under Article 358.1 § 2 of the former Criminal Code (beating a subordinate or carrying out other acts of violence in respect of a subordinate, or threatening to do so, in relation to the performance of duties linked to military service). On 5 March 2015 the report based on the results of the internal investigation into A. Safaryan’s death (ordered by the Chief of the General Staff of the armed forces of Armenia) was delivered. It established, in particular, that one of the reasons for A. Safaryan’s harassment by other servicemen was the fact that he had slept on watch duty several times. That problem had not been reported to the superiors and had not been dealt with properly. The internal investigation concluded that A. Safaryan’s death could have been prevented had there been proper supervision of the military base, psychological and pedagogical work had been carried out with the personnel and had the atmosphere of intolerance and humiliation among servicemen been eliminated. On 8 May 2015 the autopsy report (no. 252/12) was delivered which, apart from the gunshot injury that had caused A. Safaryan’s death, revealed numerous scratches and ecchymoses on different parts of his body  some of them caused immediately before his death and others 2-3 days prior to it. A fracture discovered on the right side of the lower jaw was found to have been caused around 2 hours before the death and was considered to qualify as medium gravity harm to health while A. Safaryan had still been alive. An additional autopsy was ordered to find out, among other things, whether that injury could have resulted from the same gunshot that had caused A.   Safaryan’s death. According to the ensuing expert report (no. 179/L) delivered on 22 October 2015, the given injury could not have been caused by gunfire whereas a strong punch was a possibility. On 15 July 2015 a posthumous forensic psychiatric and psychological examination was ordered. According to the ensuing report (no. 79/15) received on 6 August 2015, A. Safaryan had not suffered from any mental illness. Rather, as a result of regular insults and humiliation by his fellow servicemen he had developed frustration and neurotic depression due to psychological trauma which could have prompted him to commit suicide. The experts considered that there had been a direct causal link between the actions of Private G.G. and Junior Sergeant M.H. and A. Safaryan’s psychological state before his suicide. They found no direct causal link between A.   Safaryan’s suicide and the actions of Warrant officer A.S. Two cartridge cases were found at the scene of the incident both of which had been shot from the rifle assigned to A. Safaryan. During the investigation witnesses and the defendants stated that they had heard two gunshots at the time of the incident. By a judgment of 19 May 2017 the trial court (First Instance Court of General Jurisdiction of Syunik Region) sentenced Private G.G. and Junior Sergeant M.H. to five years’ imprisonment. Warrant officer A.S. was sentenced to one year and three months’ imprisonment (including for the same crime committed in respect of another conscript), which was suspended upon probation. The applicant’s claim for non-pecuniary damage was left without examination for absence of relevant legal regulations in the former Code of Criminal Procedure. The applicant appealed arguing against the leniency of the imposed sentences and the inadequate legal classification of Warrant officer A.S.’s actions. He also claimed that the investigation had failed to explore the hypothesis of murder and to clarify the circumstances surrounding the infliction of the fracture of the lower jaw two hours before his son’s death, as well as, inter alia , the reasons for him having frequently fallen asleep when on duty. On 14 December 2017 the Criminal Court of Appeal partially granted the applicant’s appeal and sentenced Private G.G. and Junior Sergeant M.H. to six years’ imprisonment. The applicant lodged an appeal on points of law against that decision. On 24 December 2018 the Court of Cassation partly granted the applicant’s appeal and quashed the appellate court’s decision as far as Warrant officer A.S.’s sentence was concerned. On 28 March 2019 Criminal Court of Appeal set the case down for examination. The outcome of those proceedings is unknown. The applicant complains under Articles 2 and 13 of the Convention about his son’s death (he alleges that his son was murdered) and the ineffectiveness of the investigation carried out by the domestic authorities. He also complains about the absence of an effective legal mechanism to raise those complaints and to claim compensation for his son’s death, which occurred under the exclusive control of the authorities. 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, §§ 88-92, 5 April 2022; Hovhannisyan and   Karapetyan v. Armenia , no. 67351/13, §§ 59-63, 17 October 2023; Varyan v. Armenia , no. 48998/14, §§ 69-70, 6 June 2024)?   2.     Was A. Safaryan’s right to life, ensured by Article 2 of the Convention, violated in the present case (see Nana Muradyan , cited above, §§ 118-23; Hovhannisyan and Nazaryan v. Armenia , nos. 2169/12 and 29887/14, §§   116 ‑ 23, 8 November 2022; Varyan , cited above, §§ 87-95)?   3.     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 of Articles 2 and/or 13 of the Convention (see Muradyan v.   Armenia , no. 11275/07, §§ 134-36, 24 November 2016; Ohanjanyan v.   Armenia , no. 70665/11, §§ 135-38, 25 April 2023; Hovhannisyan and   Karapetyan v. Armenia , no. 67351/13, §§ 90-95, 17 October 2023)?   4.     Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 2 of the Convention, as required by Article 13 of the Convention? In particular, was there available to him a legal mechanism for establishing any potential liability of State officials or bodies for acts or omissions involving the breach of his son’s rights under Article 2 of the Convention and to claim compensation for non ‑ pecuniary damage flowing from any such breach (see Paul and Audrey Edwards v. the United Kingdom , no. 46477/99 , §§ 96 and 97, ECHR 2002 ‑ II)?   The parties are invited to inform the Court about the developments with regard to the criminal case concerning A. Safaryan’s death since 28 March 2019 and submit the copies of relevant documents.   The Government are invited to submit the copy of the record of the examination of the scene of the incident and the copies of the following forensic expert reports: combined ballistic and trace examination (report no.   10451503), ballistic examination (report no. 12481503) and combined autopsy and trace examination (report no. 28121503).