Communicated on 31 March 2016
FIRST SECTION
Application no. 29906/14
Aleksandr DIMAKSYAN
against Armenia
lodged on 28 March 2014
STATEMENT OF FACTS
The applicant, Mr Aleksandr Dimaksyan, is an Armenian national who was born in 1965 and lives in Vahagni village in the Lori Region. He is represented before the Court by Mr A. Zalyan, a lawyer practising in Vanadzor.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In November 2010 the applicant’s son, Marat Dimaksyan, aged 18, was drafted into the Armenian army.
On an unspecified date he was assigned to military unit no. 38401 (‘the military unit’) situated in the unrecognised Republic of Nagorno Karabakh.
On 5 February 2012 Marat Dimaksyan was shot by his fellow serviceman G.A. with whom he was on duty that day in base no. 121 (the base) of the military unit. He died on the same day.
On the same day the Second Garrison Investigation Department instituted criminal proceedings on account of Marat Dimaksyan’s death.
It was established during the investigation that on 5 February 2012, at around 7.10 p.m., G.A. and Marat Dimaksyan heard noise and a dog barking while on duty at the base. They went together in the direction of the noise, walking about five metres. G.A., being frightened, and in order to feel more secure, loaded the gun assigned to him. Marat Dimaksyan followed him, keeping a four-metre distance. Having ascertained that there was no longer any noise, they returned to their positions. On their way back, Marat Dimaksyan reminded G.A. that his gun remained loaded but the latter, in breach of the rules for gun handling, ignored him, thinking that he had closed the trigger guard and the gun was safe. After their return G.A. hung the gun from his neck with the muzzle directed to the left while standing three to four metres away from Marat Dimaksyan. They heard a noise again and decided to inspect the territory once more, and with that purpose G.A. decided to go to the right, while Marat Dimaksyan went to the left. Before turning to the right, G.A. took his hands out of his pockets, held the hand grip of the gun with his right hand and his index finger mechanically touched the trigger. At that moment the gun went off and the bullet hit Marat Dimaksyan in the right side of the shoulder girdle, causing him a perforating gunshot injury. As a result of the ballistic trauma, Marat Dimaksyan fell to the ground, whereupon G.A. removed his clothes to find the injury and cried out for help. Fellow servicemen came to help and took Marat Dimaksyan to the dugout on a stretcher, waiting for a car to transfer him to the military hospital. Following this, the servicemen put Marat Dimaksyan in a lorry in which V.S., the chief of the battalion staff, drove him to the military hospital. The road was bumpy and impassable, and the stretcher was moving from one side to the other in the lorry and the servicemen had difficulty holding it. It took them about fifteen minutes to cover four hundred metres, after which they met the ambulance with A.G., the male nurse of the military unit, coming towards them from another base and transferred Marat Dimaksyan to the ambulance. At that time Marat Dimaksyan was still alive, and they headed in the direction of the military hospital in Martuni. Having travelled about six kilometres, the car became overheated. They stopped the car to add water to the overflow tank and continued. However, shortly afterwards the car again overheated. At that moment another lorry approached them, in which Marat Dimaksyan was taken to the military hospital. On the way they met the ambulance of the military hospital which was coming towards them. The ambulance stopped, and the doctors tried to provide aid to Marat Dimaksyan, but he was already dead by that time.
On an unspecified date a forensic medical examination was assigned to determine, inter alia, the cause of Marat Dimaksyan’s death and the existence of any injuries on his body.
On 9 February 2012 G.A. was charged under Article 373 § 3 of the Criminal Code of Armenia for breach of rules of gun handling, as a result of which he had unintentionally caused Marat Dimaksyan’s death.
On an unspecified date the Commander of the Nagorno Karabakh Defence Army ordered an internal investigation into Marat Dimaksyan’s death. A special commission was formed for this purpose.
On an unspecified date in February 2012, the commission filed a report with the Commander of the Nagorno Karabakh Defence Army, based on the results of the internal investigation. The relevant parts of the report read as follows:
“The following shortcomings have been discovered:
...
- Some of G.A.’s signatures on the notice of safety rules of the military position ... staff are forged;
- The entries in G.A.’s individual file are of standard nature and the relevant descriptions are absent (with the frequency of one every six months);
- ... failure of the senior of the base to fulfil properly his official duties;
- As a result of the technical problems of the military unit ambulance the transfer of the injured person was carried out by another car from half-way;
...
According to preliminary data, the lethal gunshot injury was inflicted on private Marat Dimaksyan by private [G.A.] as a result of an unexpectedly fired shot which was a consequence of poor supervision by the administration of the battalion and the senior of the base ...”
On 19 March 2012 the forensic medical examination was completed. According to the expert’s conclusion, Marat Dimaksyan had died as a result of severe blood loss caused by a perforating ballistic trauma to the right side of the shoulder girdle and chest. The expert concluded that the bullet had entered from the right side of the shoulder girdle and come out of the left side of the chest. The opinion also stated that the following injuries had been discovered on the body: a bruise in the occiput area, abrasions on the upper brow, left side of the shoulder girdle, right wrist, ecchymoses on the tip of the nose and left side of the forehead, right foot, on the skull under the skin on the right side of the forehead and occiput, which had been inflicted with blunt objects while Marat Dimaksyan was still alive, not long before death, or while he was dying and were not linked to the cause of the death.
On 7 August 2012 the case was transferred to the Syunik Regional Court for examination on the merits.
On an unspecified date the trial commenced at the Syunik Regional Court sitting in Stepanakert, Nagorno Karabakh (the Regional Court).
On 24 September 2012 the applicant lodged a motion with the Regional Court seeking the transfer of the criminal case. He argued, in particular, that the case had been taken over by the Regional Court, which did not have a seat in the city of Stepanakert and moreover had no territorial jurisdiction to examine the case, according to the rules of territorial jurisdiction of the courts of the Republic of Armenia. He claimed that since the crime had taken place on the territory of Nagorno Karabakh the Regional Court, which had jurisdiction to examine crimes committed within the territory of the Syunik Region of Armenia, was an unlawfully constituted tribunal to examine the case.
According to the applicant, the Regional Court rejected the above motion by an oral decision.
On 25 April 2013 the Regional Court found G.A. guilty as charged and convicted him to imprisonment for four years and six months.
The applicant lodged an appeal reiterating his arguments in relation to the fact that the Regional Court had no jurisdiction to examine the case, adding that he and his representatives had encountered serious difficulties in participating fully in the proceedings since the trial took place in Stepanakert. Referring to the report of the commission which had carried out an internal investigation, the applicant further complained that the Regional Court had not in any way addressed the issue of the responsibility of the administration of the military unit in his son’s death.
On 29 July 2013 the Criminal Court of Appeal upheld the Regional Court’s judgment. In doing so, it stated the following with regard to the applicant’s appeal:
“As for the arguments raised in the appeal submitted by the victim’s legal heir, the Court of Appeal finds that those have already been fully and objectively assessed by the first instance court; therefore the submissions of the representative of the victim’s legal heir cannot serve as a sufficient basis to grant the appeal.”
The applicant lodged an appeal on points of law raising similar arguments to those submitted in his previous appeal.
On 30 September 2013 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit.
B. Relevant domestic law
1. The Criminal Code (in force since 1 August 2003)
According to Article 373 § 3, a breach of the rules for handling weapons, munitions as well as radioactive substances, explosives or devices dangerous for the environment that has caused a person’s death negligently, is punishable by four to eight years’ imprisonment.
2. The Civil Code (in force since 1 January 1999)
According to Article 17 § 1 the person whose rights have been violated may claim full compensation for the damage suffered, unless the law or contract envisages a lower amount of compensation.
According to Article 17 § 2, damages are the expenses borne or to be borne by the person whose rights have been violated, in connection with restoring the violated rights, loss of his property or damage to it (material damage), including lost income.
Article 18 provides that damage caused to natural or legal persons as a result of unlawful actions (inaction) of state and local self-government bodies or their officials is subject to compensation by the Republic of Armenia or the relevant local community.
Article 1077 § 2 provides that damage caused to the life or the health of a person while performing, inter alia, military service is compensated in accordance with the rules prescribed by the Civil Code, if stricter liability is not provided for by statute or contract.
According to Article 1087 persons responsible for damage linked to the victim’s death shall reimburse the necessary funeral expenses to the person who has incurred such expenses.
3. The Decision of the Constitutional Court of 5 November 2013 on the conformity of Article 17 § 2 of the Civil Code with the Constitution adopted on the basis of the application lodged by Artur Khachatryan
The Constitutional Court found Article 17 § 2 of the Civil Code incompatible with Articles 3 § 2, 16 § 4, 18 § 1, 19 § 1 and 43 § 2 of the Constitution in so far as it does not envisage non-pecuniary damage as a type of civil damage and does not provide for a possibility to obtain compensation for non-pecuniary damage by impeding the effective exercise of the right of access to court and the right to a fair trial, and at the same time hindering due compliance with its international obligations by the Republic of Armenia.
The Constitutional Court stated that Article 17 § 2 of the Civil Code would lose its legal force at the latest on 1 October 2014.
COMPLAINTS
The applicant complains under Article 2 of the Convention that the State failed to protect the life of his son during his military service. He further complains under the same provision and Article 13 that the authorities failed to conduct an effective investigation into his son’s death in that all the circumstances of his death were not clarified and not all the persons responsible for his death were identified and punished. He also complains that the State did not provide him compensation for non‑pecuniary damage suffered as a result of his son’s death.
QUESTIONS TO THE PARTIES
1. Was the applicant’s son’s right to life, ensured by Article 2 of the Convention, violated in the present case? In particular, did the authorities fail to protect the right to life of the applicant’s son (see, in particular, the findings of the special commission reflected in its report delivered in February 2012 concerning the poor supervision by the administration of the military base and the failure to organise speedy medical assistance), in breach of Article 2 of the Convention (see, mutatis mutandis, Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, §§ 130-131, ECHR 2008 (extracts); Mojsiejew v. Poland, no. 11818/02, § 63, 24 March 2009 and Trévalec v. Belgium, no. 30812/07, §§ 72-74, 14 June 2011)?
2. Having regard to the procedural protection of the right to life (see Öneryıldız v. Turkey [GC], no. 48939/99, § 89, ECHR 2004‑XII), was the investigation by the domestic authorities in the present case in breach of the guarantees under Articles 2 and 13 of the Convention, as alleged by the applicant? In particular, were the issues concerning the responsibility of the administration of the military unit and the manner in which the applicant’s son’s medical assistance was organised, as pointed out in the above report, adequately addressed during the investigation?
3. 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 the fact that no compensation for non‑pecuniary damage was available to him compatible with the requirements of that Article?
Full & Egal Universal Law Academy