Years of inadequate and ineffective research regarding a killing of a soldier have violated the procedural part of the right to life
JUDGMENT
Anahit Mkrtchyan v. Armenia 07.05.2020 (no. 3673/11)
SUMMARY
Death of a soldier. Right to life. Effective research. The applicant is the mother of a soldier who was shot dead while serving in the army. The fatal shooting took place in an office in the presence of 3 eyewitnesses. The investigation was launched immediately and evidence was collected without delay. Nevertheless, 18 years after the incident, after a series of interruptions in the trial, the case is still pending and the culprit has not been discovered.
The Court noted that the investigation was launched without delay by the responsible state. However, it noted that the proceedings were lengthy, that the investigators had made mistakes, and that various court rulings had been issued, indicating a serious lack of functioning of the judiciary.
In addition, the domestic courts, without further investigation, accepted the revocation of the testimony of the main defendant, acquitting him of the charge and did not pay due diligence to locate another key eyewitness, although he was known to be a resident. The ECtHR therefore ruled with 6 votes to one that there was a violation of Article 2 in its proceedings. Accepting this violation, he considered that the examination of the complaint under Article 13 was over.
PROVISIONS
Article 2
Article 13
PRINCIPAL FACTS
The applicant, Anahit Mkrtchyan, is an Armenian national who was born in 1952 and lives in
Baghramyan, a village in Armenia.
The case concerned her complaint about the national authorities’ investigation into the death of her
22-year-old son, Arayik Avetisyan, during his military service.
Just over a year after he was drafted into the army, on 30 October 2001, Ms Mkrtchyan’s son died
from a gunshot wound in the head in the office of his battalion’s commanding officer.
From the outset the official explanation for the incident was that another conscript had accidentally
shot her son. Ms Mkrtchyan, on the other hand, immediately suspected his commanding officer who
she alleged had been abusing her son and extorting money from him.
Immediately after the incident, an investigator carried out an on-site examination and seized a gun.
The following day a criminal case was opened, an autopsy was ordered and several key witnesses,
other conscripts, were questioned.
One week later one of the conscripts was charged with murder. He was eventually indicted for
negligent homicide resulting from breaching the rules on handling firearms. During these
proceedings the domestic courts remitted the case to the prosecution three times, pointing out
shortcomings in the investigation, in particular, a failure to address contradictions in witness
statements and the forensic data.
Both before and during his trial the accused conscript admitted to unintentionally killing the
applicant’s son, but when he was questioned again in March 2011 following another remittal of the
case, he denied all his previous statements, maintaining that he had had to incriminate himself out
of fear for his and his family’s security.
The investigation is still ongoing today, with the criminal proceedings having been stayed for the
second time in March 2019 on the grounds that it had not been possible to identify the person
against whom charges should be brought. The investigation has neither established the origin of the
non-ballistic injuries on the victim’s body, which according to experts had not been caused by his
falling after the gunshot, nor the gun from which the shot was fired.
Relying in particular on Article 2 (right to life) of the European Convention on Human Rights,
Ms Mkrtchyan alleged that the national authorities’ investigation into the death of her son, lasting
so far more than 18 years, had not been effective.
THE DECISION OF THE COURT…
The Court observes at the outset that within hours of Arayik Avetisyan’s death, steps were taken to secure the evidence. In particular, an investigator carried out an on-site examination and seized the gun. Furthermore, the following day a criminal case was opened, an autopsy was ordered and several key witnesses were questioned. In those circumstances, the Court considers that there was no unjustified delay in the investigation.
The Court observes that the investigation which, as noted above, commenced on 31 October 2001, has still not ended today, with the criminal proceedings having been stayed for the second time – albeit that the authorities continue with operative and search activities in the attempt to identify the person responsible. The investigation, which has lasted for more than eighteen years, has so far been incapable of establishing the exact circumstances of Arayik Avetisyan’s death which, according to the official version, took place in the presence of at least three eyewitnesses
In that connection the Court reiterates that in Article 2 cases concerning proceedings instituted to elucidate the circumstances of an individual’s death, lengthy proceedings such as these are a strong indication that the proceedings were defective to the point of constituting a violation of the respondent State’s positive obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify such a course of proceedings. The Court observes that no such reasons have been provided by the respondent Government, which merely described in great detail the vast number of investigative measures and witness interviews that were conducted but did not provide any explanation for the delay.
The Court acknowledges the practical difficulties of investigation work in the present case, such as the conflicting witness testimony and expert evidence. The Government, however, failed to provide a plausible explanation for the investigation not being capable of establishing even such crucial issues as the origin of the non-ballistic injuries on the deceased’s body, which, as clearly established by the experts, had not been caused by his fall as a result of the shot, or the gun from which the shot had been fired.
Furthermore, the Court notes that from the very first day of the investigation, even before they had received the autopsy report and questioned all the key witnesses, the authorities followed the hypothesis that K.S. had shot Arayik Avetisyan by accident, as stated in the decision to institute criminal proceedings. One week later K.S. was charged with murder. He was eventually indicted for negligent homicide as a result of breach of rules for handling firearms. The Court further notes that the domestic courts remitted the case to the prosecution three times in so far as the charges against K.S. were concerned, pointing to inconsistencies and deficiencies in the investigation which in the courts’ opinion had to be addressed. The Court finds that the repeated judicial decisions whereby the case was remitted to the prosecution as a result of errors committed by the investigating authorities within one set of proceedings disclosed in the applicant’s case a serious deficiency in the operation of the judicial system
Lastly, the Court cannot but observe the lack of the required thoroughness on the part of the authorities in dealing with the case. In particular, following A.K.’s statement incriminating M. in the killing of Arayik Avetisyan and thereby suggesting a completely different version of the events as described by him and other witnesses previously the authorities did not take any meaningful steps to follow a different hypothesis and investigate the circumstances described by the witness. What is more, the authorities hastily accepted A.K.’s further retraction of that statement without exploring any further the possibility of any pressure, psychological or other, on the witness . This becomes even more striking in the light of K.S.’s statement made on 17 March 2011 when he denied the version of the events as described in all his previous statements and in fact implied that those had been submitted by him out of fear for his security and that of his family
In addition, the Court cannot overlook the cursory manner in which the authorities attempted to locate A.K., who was believed to be resident in Russia. In particular, the domestic authorities failed to submit any requests to the Russian authorities to clarify A.K.’s address in order to summon him for additional questioning.
In the light of the foregoing, the Court finds that the authorities failed to carry out an effective investigation into Arayik Avetisyan’s death. In view of this conclusion, the Court considers it unnecessary to examine whether the other aspects of the investigation met the requirements of the Convention.
Accordingly, there has been a violation of Article 2 of the Convention under its procedural limb.
Just satisfaction: 24,000 euros (EUR) for non-pecuniary damage and EUR 2,000 for costs and expenses
