CEDH · CASELAW;COMMUNICATEDCASES;ENG — 24 mars 2025

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border-top:0.75pt solid #949494; border-right:0.75pt solid #949494; border-left:0.75pt solid #949494; border-bottom-style:solid; border-bottom-width:0.75pt; padding:1.02pt 5.03pt; vertical-align:top } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Published on 14 April 2025   FIFTH SECTION Application no. 76360/17 Andranik POGHOSYAN and Others against Armenia and Russia lodged on 18 October 2017 communicated on 24 March 2025 STATEMENT OF FACTS 1.     The facts of the case, as submitted by the applicants (the list of the applicants is set out in the appendix), may be summarised as follows. BACKGROUND TO THE CASE 2.     On 12 January 2015, at around 6 a.m., a family living in the city of Gyumri of Shirak Region of Armenia was killed in their home. The family comprised two elderly people, S. Avetisyan and H. Avetisyan, their daughter, A. Avetisyan, their son Ar. Avetisyan, the latter’s wife, A. Poghosyan, and their two minor children, three-year-old H.A and six-month-old S.A. All the victims died the same day with the exception of six-month-old S.A., who died seven days later in the hospital because of multiple stab wounds. 3.     The first and second applicants are A. Poghosyan’s parents (her father and mother respectively) and the grandparents of H.A. and S.A. 4.     The third and fourth applicants are the daughters of S. Avetisyan and H. Avetisyan and the sisters of A. Avetisyan and Ar. Avetisyan. 5.     According to the findings of the investigation and the ensuing judgment (see paragraphs 24 and 27 below), V.P., a Russian citizen who had been drafted into the Russian army on 21 May 2014 and transferred to Armenia on 28 November 2014 to continue his service in the Russian military base situated in the city of Gyumri (“the military base”), having a plan to desert the army and return home, had abandoned his guard post on the day of the incident taking with him his assault rifle, 2 magazines loaded with 60 rounds and a bayonet knife. He walked around Gyumri in order to find money and civilian clothes, broke into the victims’ house and killed them, taking some money and other belongings. He had then attempted to flee from Armenia by crossing the border illegally but had been captured and taken into custody at the military base. INVESTIGATIONS carrieD out by the authorities of both respondent states Criminal proceedings instituted by the Russian authorities 6 .     On the day of the incident  that is 12 January 2015  the Investigative Committee of Russia instituted criminal proceedings in relation to the incident. 7.     On 13 January 2015 V.P. was arrested by the border guard of the Russian Federal Security Service patrolling the border between Armenia and Turkey. 8 .     On 14 January 2015 the Investigative Committee of Russia brought charges against V.P. under Article 338 § 2 (desertion with weapons entrusted in military service) and Article 105 § 2 (a) and (c) (murder of two or more persons, including a murder of a minor or another helpless person) of the Russian Criminal Code (“the Russian CC”). 9.     The same day V.P. was detained by a decision of the Fifth Garrison Court of the Russian Federation (“the Garrison Court”), which was apparently sitting at the military base. 10 .     On 15 and 26 January 2015 the Russian authorities additionally instituted another set of criminal proceedings (under Article 222 § 1 of the Russian CC (illegal acquisition, transfer, sale, storage, transportation, or carrying of firearms, their basic parts, ammunition, explosives, and explosive devices) and Article 226 § 3(g) of the Russian CC (theft or possession of weapons, ammunition, explosives, and explosive devices by a person who used his official position)). 11 .     On 28 January 2015 V.P. was additionally charged with the crimes proscribed by Articles 222 § 1 and 226 § 3(g) of the Russian CC (see paragraph 10 above). 12 .     On 13 February 2015 a joint inpatient psychiatric and psychological examination conducted by an expert commission under the Ministry of Defence of Russia was completed. The ensuing expert report contained the following description of V.P.’s military service in Russia and information about his medical files: “... In the first days after arrival at the [military] unit [in Russia], when at the reception of the personnel, because of a conflict with a sergeant, having left the [military] unit for 2 hours without permission and use of alcohol [V.P.] was examined by the psychologist of the [military] unit and was referred to the psychologist of the clinic, who advised private [V.P.] to undergo an examination in the psychological unit of the hospital for symptoms of ‘mental retardation’. [V.P.] was referred to the psychological unit of ... [hospital] by the command staff of the [military] unit. ... According to [V.P.’s] personality profile from the military unit he has shown himself as an average serviceman. Approaches his tasks in bad faith, required constant supervision. Always complains about mental distress ... needs additional pedagogical attention. There have been attempts to leave the military unit without permission ... the serviceman [that is V.P.] assesses the basic values based on the premise that human life is not a special value and, if the opponent is not right, it is permissible to deprive him of life for his careless action, word. There is inadequate behaviour. Is secretive. Conclusion: does not meet the requirements for a military serviceman of the Russian Federation. ... medical profile dated 28 May 2014: arrived for medical care ... on 22 May 2014 ... Diagnosis: ‘Transient personality disorder of an unstable type’. Needs consultation of a psychiatrist at the consultative-diagnostic clinic of [hospital] no. 321, to determine fitness for military service ... ... [V.P.] stayed in ... [hospital] no. 321 from 30 May to 19 June 2014, having been referred there with the diagnosis of mental retardation․ After the examination conducted ... the same day, a preliminary diagnosis of ‘symptoms of mixed personality disorder’ was made․ On 16 June 2014 a final diagnosis was made: ‘healthy’․ According to the prescription sheet, [V.P.] was prescribed a medical examination. (Note from the forensic expert: medication has not been prescribed) ...Emotional instability of the mental state was observed, frivolous attitude for his action  ‘I left and that is it’. The overall level of education is not high but the analytical-comparative functions of thinking are sufficiently developed. No effective symptomatology was discovered. The orientation is correct, sociable, smile on the face without a reason. Emotionally unstable. No signs of irritation ... There are no psychotic disorders. Does not express suicidal thoughts. The behaviour is orderly, manages the routine, interacts when necessary․ Is willing to continue the service (has written a report). The results of special examinations: blood and urine tests of 2 June 2014 without pathologies, [computed tomography] of the brain dated 9 June 2014 without pathologies. [Electroencephalography] dated 5 June 2014  mild general cerebral changes. Mild inflammatory changes in the frontal-central part of the brain. Based on a psychologist’s opinion of 4 June 2014, the diagnosis of oligophrenia is ruled out. Taking into account the above-mentioned, a final diagnosis was made as ‘healthy’ ... is fit for training in the educational unit, ... is fit for military service. In the ‘epicrisis’ [a summary medical report] issued at the time of [V.P’s] discharge [from the hospital of the military unit], [the following] advice was given: dynamic supervision of a psychologist, the doctor of the [military] unit, examination by a ... psychiatrist in one month, rule out service on duty with a weapon and missions outside the [military] unit for 3 months, measures of psychotherapeutic effect.” Having examined V.P., his medical documents and the materials of the criminal case, the expert commission made the following conclusions: “[V.P.] was not found to have suffered from any chronic mental disorder, temporary mental disorder, dementia or other mental disorder at the time of the commission of the acts he is accused of, nor are such established at present. With his mental state, [V.P.] had been able to realise the nature and the public danger of his actions and control them at the time of the commission of the acts of which he is accused ... ... At the time of the commission of the acts of which he is accused, [V.P.] was not in a state of temporary insanity or other emotional state that could have significantly diminished his awareness of his illegal action or his ability to control it.” 13 .     On 12 August 2015 the Garrison Court convicted V.P. of desertion, theft and illegal possession of weapons and ammunition, sentencing him to ten years’ imprisonment. The court found that at around 2 a.m. on 12 January 2015, V.P., having been on watch duty at a guard post of the military base with an assault rifle and 60 bullets assigned to him, intending to reach the place of his permanent residence and to evade military service altogether, took his service weapon and ammunition and left the military base without permission. He illegally carried the given weapon and ammunition outside the military base between 2 and 6 a.m. after which he left those in a house. At around 1 a.m. on 13 January 2015 V.P. was arrested by the border guard officials of the Federal Security Service of Russia at the Armenian border. Criminal proceedings in Armenia Investigation 14 .     On the day of the incident, that is on 12 January 2015, the Investigative Committee of Armenia instituted criminal proceedings under Article 104 § 2 (1) (murder of two or more persons) and Article 235 § 1 (illegal acquisition, sale, possession, transportation or carrying of weapons, ammunition, explosives, or explosive devices) of the former Criminal Code of Armenia (“the former Armenian CC”, in force until 1 July 2022). 15 .     On 14 January 2015 V.P. was charged with murder of more than two persons and attempted murder of six-month-old S.A. with particular cruelty (Article 104 § 2 (1) and Article 34-104 § 2 (5) of the former Armenian CC). 16.     On 19 January 2015 S.A. died in the hospital. 17.     On 28 January 2015 the first applicant was recognised as the legal heir of his daughter, A. Poghosyan, and his grandchildren, H.A. and S. A. in the criminal proceedings. 18.     At some point the third and fourth applicants were apparently given a procedural status of a victim’s legal heir (it is not specified whose in particular) legal heirs in the given criminal proceedings. 19 .     By a decision of 13 July 2015 the Investigative Committee of Russia sent the material gathered by the Russian authorities within the framework of their investigation to the Investigative Committee of Armenia at the request of the Prosecutor General of Armenia. The relevant decision referred to the Agreement of 29 August 1997 “On Jurisdiction and Mutual Legal Assistance in Cases Related to the Deployment of the Russian Military Base on the Territory of the Republic of Armenia” and the Agreement of 20 January 2015 “On the Establishment of a Coordination Headquarters for the Cooperation During the Investigation of the Murder of the Avetisyan Family.” The same decision stated that V.P. had left his guard post without permission at around 2:30 a.m. on 12 January 2015 with the purpose of evading military service, taking with him his service weapon and ammunition, including an assault rifle, bayonet knife and 60 bullets that had been assigned to him while on watch duty. Having used his official position, V.P. had taken and carried the weapons in question until 8 a.m. on 12 January 2015. Between 4 a.m. and 8 a.m. on 12 January 2015, while still being outside of the military base with his service weapon and ammunition, V.P. had illegally entered the victims’ house, intending to take possession of their money and clothes. Having been seen by the residents of the house and being afraid that they might report him to the law-enforcement authorities, he had opened fire from his service assault rifle, killing S. Avetisyan, H. Avetisyan, A. Avetisyan, Ar. Avetisyan and A. Poghosyan. He had then stabbed three-year-old H.A. in the chest with the bayonet knife at least 2 times as a result of which she had died on the spot and had stabbed six-month-old S.A. in the chest at least 3 times causing his death, which had occurred on 19 January 2015. 20.     On 18 July 2015 the Investigative Committee of Armenia decided to take over the investigation of the criminal case received from the Investigative Committee of Russia and to conduct a joint examination with the case it had instituted into the same events (see paragraph 14 above). 21 .     According to the expert report of 17 September 2015 following a combined inpatient psychiatric and psychological forensic examination: “[V.P.] did not suffer and does not suffer from a chronic mental illness. Instead, he is ‘an infantile person with psychopathic personality traits and emotional immaturity’, which is a certain deviation in the general development of a person and is manifested by superficial, primitive, prejudiced judgments, certain childish mentality with elements of concrete thinking, uniformity of emotional reactions, primitive personality. ... Therefore, [V.P.] should be considered sane in connection with the acts that he is accused of. Currently, as a person who does not suffer from a chronic mental illness, he can correctly understand the circumstances that are relevant for the criminal case, [testify] and participate in investigative activities. At the time of the commission of the criminal offence, [V.P.] did not act in a sudden heat of passion, his emotional state did not significantly affect his consciousness and behaviour...” 22.     On 16 October 2015 the initial charges brought against V.P. (see paragraph 15 above) were amended and he was charged under Article 104 §   2(1), (5) and (8) (murder of two or more persons with particular cruelty, motivated by profit, as well as accompanied by robbery), Article 175 § 2(3) and (4) (robbery with breaking into a house with the use of weapons or other objects used as weapons) and Article 34-329 § 1 (illegal attempt to cross the state border) of the former Armenian CC. 23.     The same day the Investigative Committee of Armenia sent a letter to the commander of the relevant unit of the military base stating that the fact that V.P. had abandoned his guard post had been reported to the command staff at around 3:20 a.m. on 12 January 2015, whereas the Armenian Police had been informed thereof only 3 hours later in which circumstances all the necessary measures aimed at finding V.P. sooner had not been taken. It was therefore requested to carry out an internal investigation into the matter and inform the Investigative Committee of Armenia about the results thereof. 24 .     On 19 November 2015 the bill of indictment was finalised by the Investigative Committee of Armenia. It was approved by the Prosecutor General’s Office on 24 November 2015. According to the indictment, V.P. had been drafted into the Russian army on 21 May 2014 and had been assigned to military unit no. 21250 near a village in the Transbaikal Region of Russia. Four days after his arrival, V.P. had left the military unit without permission in order to meet with friends who had visited him, and returned a few hours later being under the influence of alcohol. Because of that behaviour, V.P. had been referred to the psychiatric unit of a military hospital for an inpatient examination. He had been found to be of good health and had been returned to the military unit. He had then left the military unit without permission around 8 to 10 times in order to meet with friends and relatives. On 28 November 2014 he arrived at the military base in order to continue his military service in Armenia. V.P. had intentionally and illegally murdered more than two persons, committed robbery and attempted to illegally cross Armenia’s state border. In particular, at around 2 a.m. on 12 January 2015 V.P., who was on watch duty armed with an AKS-74 type assault rifle (no. 1283689), 60 rounds of 5.45 mm calibre and a bayonet knife (no. 689) assigned to him, left his guard post without permission and wandered around the city of Gyumri trying to find clothes and money. Having arrived at the victims’ house at around 6 a.m. and intending to commit an armed robbery, he had entered the yard through the open door of the gate and approached the house. He had then removed the glass of the front door with his bayonet knife, opened the door from the inside using the key left on the lock, entered the house and killed six of the victims by firing 28 shots from his assault rifle. Thereafter, intending to kill six-month-old S.A. with particular cruelty, V.P. had stabbed him 5 times, inflicting pierced/cut, perforating and non-perforating wounds to the vital organs, around the left half of the chest, the abdomen and left arm, as a result of which the latter died in hospital 7 days later. V.P. then took a sports cap, trousers, a jacket, a pair of boots, three mobile phones, 6,000 Armenian Drams (AMD) (approximately 11 euros (EUR)) in cash and left the scene. Thereafter, intending to illegally cross the state border, he reached the part of Armenia’s state border guarded by the Federal Security Service of the Russian Federation and hid in a small house. At around 5 p.m. on 12 January 2015 V.P. studied the area and returned to his shelter, planning to illegally cross the border at night. At around midnight V.P. tried to illegally cross the border but was captured by the border guard officers at 12 minutes past midnight. Trial 25 .     On 24 November 2015 the case was brought before the Regional Court of General Jurisdiction of Shirak Region of Armenia (“the Regional Court”). 26.     On 9 December 2015 the Regional Court decided to set the case for trial and to hold its hearings in the military base. In doing so, it referred to the fact that V.P. had been serving his sentence imposed by the Garrison Court (see paragraph 13 above) in the garrison detention facility of the military base and considered that holding the hearings in the military base would enable V.P.’s participation and ensure the exercise of his right to a fair trial. 27 .     By its judgment of 23 August 2016 the Regional Court found V.P. guilty as charged and sentenced him to life imprisonment. Appeals 28 .     On 19 September 2016 the first applicant appealed against the Regional Court’s judgment arguing that the Armenian authorities had failed to conduct an effective investigation. 29.     On 19 December 2016 the Criminal Court of Appeal dismissed the appeal. 30.     The first applicant lodged an appeal on points of law against the decision of the Criminal Court of Appeal, raising the same arguments as those raised in his appeal to the Criminal Court of Appeal. 31.     On 18 April 2017 the Court of Cassation declared the first applicant’s appeal inadmissible for lack of merit. That decision was served on his representatives on 28 April 2017. RELEVANT LEGAL FRAMEWORK RUSSIAn law The Constitution 32.     Under Article 61 of the Russian Constitution, the citizens of the Russian Federation may not be deported from Russia or extradited to another State. Criminal Code 33.     Under Article 12 § 2 of the Russian Criminal Code, servicemen of military units of the Russian Federation located outside the Russian Federation bear criminal responsibility for their crimes committed on the territories of foreign states in accordance with the legislation of the Russian Federation unless stipulated otherwise by international agreements of the Russian Federation. 34.     Under Article 13 § 1,   citizens of the Russian Federation who have committed crimes in foreign states shall not be subject to extradition to those states. BILATERAL AGREEMENTS 35.     The relevant provisions of the Agreement of 29 August 1997 “On Jurisdiction and Mutual Legal Assistance in Cases Related to the Deployment of the Russian Military Base on the Territory of the Republic of Armenia” read as follows: Article 4 “In cases concerning crimes and other offences committed by the personnel of the military base and their family members in the Republic of Armenia, the legislation of the Republic of Armenia applies and its law enforcement authorities operate.” Article 5 “The procedure provided for in Article 4 of the present Agreement does not apply in cases concerning crimes and other offences against the Russian Federation or against the personnel of the Russian military base and their family members, in cases related to military crimes, committed by the personnel of the military base and their family members in places of deployment of the Russian military base.” COMPLAINTS 36.     The applicants complain under Article 2 of the Convention that Russia breached their relatives’ right to life. They argue that the Russian authorities had been aware of V.P.’s psychological problems and misconduct. Nevertheless, they provided V.P. with weapons and failed to properly supervise him. Furthermore, the officials of the Russian military base situated in Armenia informed the local law-enforcement authorities about V.P.’s escape belatedly, making it impossible to undertake timely measures to prevent the murders. 37.     The first and second applicants complain under the same provision that the investigation carried out by the Armenian authorities was not effective in that it was not thorough. They further complain under the same provision that the punishment imposed on V.P. was not implemented since, according to what they had learned from the media, he had been transferred to Russia. 38.     The first and second applicants also complain under Article 13 in conjunction with Article 2 of the Convention that they had no possibility to claim compensation from Russia. QUESTIONS TO THE PARTIES A. Questions concerning Russia: 1.     Did the matters complained of by the applicants fall within the jurisdiction of Russia within the meaning of Article 1 of the Convention?   2.     Was there an effective procedure available to the applicants to have the responsibility of Russia, if any, established for the deaths of their relatives and to seek compensation for the damage they suffered? If so, have the applicants exhausted those remedies, as required by Article 35 § 1 of the Convention? If no such remedies existed, has there been a violation of Article   13 of the Convention?   3.     Was the applicants’ relatives’ right to life, ensured by Article 2 of the Convention, violated in the present case? In particular, did the Russian authorities fulfil their obligation under Article 2 of the Convention to protect life (see, for example, Gorovenky and Bugara v. Ukraine , nos. 36146/05 and   42418/05, § 39, 12 January 2012; Makuchyan and Minasyan v.   Azerbaijan and Hungary , no. 17247/13, § 119, 26 May 2020; and Hovhannisyan and Karapetyan v. Armenia , no. 67351/13, § 110, 17 October 2023)?   The Russian Government are requested to provide copies of documents showing any assessments of V.P.’s personality and/or his fitness for military service. They are also requested to provide information on whether or not any military servicemen and/or officials of the Russian military base situated in the city of Gyumri in Armenia were subjected to any liability in connection with the facts of the present case and, if so, provide the copies of the relevant documents. The Russian Government are also requested to provide information on whether V.P. was transferred to Russia and, if so, whether the sentence imposed on him by the Armenian courts is currently being enforced. B. Questions concerning Armenia: Having regard to the State’s procedural obligation to conduct an effective investigation and to enforce a sentence imposed in the context of the right to life (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 171, 14 April 2015; Kitanovska Stanojkovic and Others v. the former Yugoslav Republic of Macedonia , no. 2319/14, § 32, 13   October 2016; and Akelienė v   Lithuania , no. 54917/13, § 85, 16 October 2018) , has there been a breach of Article 2 of the Convention, as alleged by the first and second applicants?   In this context, the Armenian Government are requested to inform the Court whether V.P. was transferred to Russia, and, if so, what measures, if any, the Armenian authorities took to ensure that the sentence imposed on him would be implemented in Armenia or enforced by the Russian authorities following his transfer. Did they ask or receive guaranties from the Russian authorities that the sentence will be enforced?   The Armenian Government are also requested to provide the Agreement of 29 August 1997 “On Jurisdiction and Mutual Legal Assistance in Cases Related to the Deployment of the Russian Military Base on the Territory of the Republic of Armenia” and the Agreement of 20 January 2015 “On the Establishment of a Coordination Headquarters for the Organisation of Cooperation During the Investigation of the Murder of the Avetisyan Family.” The Armenian Government are also requested to provide copies of the decisions recognising the third and fourth applicants as legal heirs in the criminal proceedings.       APPENDIX No. Applicant’s Name Year of birth/registration Nationality Place of residence 1. Andranik POGHOSYAN 1960 Armenian Katchatchkut village 2. Narine POGHOSYAN 1969 Armenian Katchatchkut village 3. Lusine AVETISYAN 1984 Armenian Yerevan 4. Anahit KOSHTOYAN 1992 Armenian Gyumri