The deadly shot by an officer has violated the right to life. The inability to claim compensation for mental illness has violated the right to an effective remedy
JUDGMENT
Mirzoyan v. Armenia 23.05.2019 (no. 57129/10)
SUMMARY
Protection of life. Positive obligation of the state. The applicant’s son served his compulsory military service and was sho by a senior officer on duty. The national courts have rejected the death sentence of the deceased’s father for compensation for mental illness. The European Court of Human Rights has held that there has been a violation of Article 2 (right to life), because the life of each person is under the protection of the state, and violation of Article 13 (right to an effective remedy) for non-award of compensation for mental suffering to relatives of the deceased. The death caused by the failure of the authorities to protect the lives of persons under its supervision is a fundamental principle of the right of effective remedy under Article 13 and overrides domestic law.
PROVISIONS
Article 2
Article 13
PRINCIPAL FACTS
The case concerned the killing of the applicant’s son while he had been on military service.
The applicant, Robert Mirzoyan, is an Armenian national who was born in 1954 and lives in
Marmarashen village (Armenia).
The applicant’s son, Gegham Sergoyan, was performing his compulsory military service in the
unrecognised Republic of Nagorno Karabakh when he was shot in the head by one of his officers in
April 2007. He died without regaining consciousness in May of the same year.
The officer, who had had reprimands from his superiors in the past, admitted the shooting and was
sentenced to 15 years’ imprisonment in 2009. The trial court rejected a civil claim for compensation
from the State which the applicant had lodged during the proceedings, finding that domestic law did
not provide for compensation for non-pecuniary damage.
Appeals by the applicant to both the Court of Appeal and the Court of Cassation were unsuccessful.
He cited in particular the rights on compensation flowing from the Convention, which he argued had
to prevail over domestic law by virtue of Article 6 of the Constitution of Armenia.
Relying on Article 2 (right to life) and Article 13 (right to an effective remedy) of the European
Convention on Human Rights, the applicant complained that the State authorities had failed to
protect his son’s right to life and that his claim against the State for non-pecuniary damage suffered
as a result of that loss had been dismissed.
THE DECISION OF THE COURT
The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. However, the positive obligation is to be interpreted in such a way as not to impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct.
In the context of compulsory military service, the Court has previously held that, as with persons in custody, conscripts are within the exclusive control of the authorities of the State since any events in the army lie wholly, or in large part, within the exclusive knowledge of the authorities, and that the authorities are under a duty to protect them.
The applicant’s son, a draft soldier, was shot by military officer H.G., a lieutenant by rank, who served in the Armenian army on a contractual basis. As noted earlier, the incident took place when H.G. was on active duty and was moreover put in charge of his military unit. In this sense the context of the present case differs from the majority of cases where the Court examined whether or not the State complied with its positive obligation to take operational measures to prevent a real and immediate risk to the life of an identified individual from materialising. The question to be determined in the present case is whether the military authorities, in view of the information available to them and within the scope of their powers, failed to take the necessary measures to protect the life of the applicant’s son, a conscript performing compulsory military service under their responsibility.
The Court notes that H.G. was subjected to criminal responsibility for having killed the applicant’s son, based on the investigation, the results of which have not been disputed by the applicant .
Furthermore, as a result of the internal investigation into the incident carried out by the Ministry of Defence the commanding officers of the military unit were found to have been responsible for the incident in question in so far as they had failed to assess properly H.G.’s personality, moral characteristics and professional competencies. As noted above, the Court is prepared to accept that, in the particular circumstances of the present case, the disciplinary proceedings against the commanders of the military unit constituted an admission by the domestic authorities and therefore an acknowledgment by them of the breach of the State’s positive obligation to protect the right to life of the applicant’s son.
In these circumstances, the Court does not consider it necessary to make its own assessment of the underlying facts and finds that there has been a breach of Article 2 of the Convention.
The applicant complained of the dismissal of his claim against the State for non-pecuniary damage suffered as a result of the loss of his son. He relied on Article 13 of the Convention.
As the Court has stated on many occasions, Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Article 13 thus requires the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although the Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 also varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law.
On the basis of the results of the criminal and disciplinary proceedings carried out by the relevant domestic authorities, the Court found that the defendant State was responsible under Article 2 for failing to protect adequately the life of Gegham Sergoyan during his compulsory military service. The applicant’s complaint in this regard is therefore “arguable” for the purposes of Article 13
The Court observes that the applicant lodged a civil claim against the State, seeking compensation for non-pecuniary damage within the framework of the criminal proceedings against H.G. However, no compensation for non-pecuniary damage was awarded to the applicant because that type of compensation was not envisaged by the domestic law.
The Government claimed that the amount of AMD 2,250,000 received by the deceased’s family should be considered to have included compensation also for the moral damage suffered as a result of the loss of their kin. The Court observes, however, that this claim is not supported by the material before it. In particular, the civil claim filed by the Military Prosecutor against H.G. in the course of the latter’s trial expressly stated that the sum of AMD 2,250,000 paid to Gegham Sergoyan’s family had been intended to cover funeral expenses and further included the insurance benefit in the event of death. Notably, this amount was to be recovered from H.G. as compensation for expenses paid from public funds with regard to Gegham Sergoyan’s medical treatment and payments made to the family after this death. In these circumstances, the Court is not able to accept the Government’s argument that the amount of AMD 2,250,000 could be considered to have constituted compensation for non-pecuniary damage paid to the applicant by the State.
In the above-mentioned case of Poghosyan and Baghdasaryan the Court has already found that the absence of the possibility at the relevant time to claim compensation for non-pecuniary damage suffered as a result of ill-treatment was contrary to the requirements of Article 13 of the Convention. The Court considers that the possibility for the applicant to apply for compensation for non-pecuniary damage suffered as a result of the breach of his son’s right to life should have been all the more available to him. Since no such avenue had been available to him under the law as it stood at the material time, the applicant was deprived of an effective remedy. In the Court’s view, the possibility of obtaining an enforceable award of compensation for moral damage suffered as a result of the authorities’ failure to protect the right to life of one’s child is an essential element of an effective remedy under Article 13 for a bereaved parent. There has accordingly been a violation of Article 13 of the Convention.
Just satisfaction: 15,000 euros (EUR) for non-pecuniary damage(echrcaselaw.com editing).
