Communicated on 29 September 2015
THIRD SECTION
Application no. 247/11
Laura MEHRABYAN
against Armenia
lodged on 18 December 2010
STATEMENT OF FACTS
The applicant, Ms Laura Mehrabyan, is an Armenian national, who was born in 1941 and lives in Yerevan. She is represented before the Court by Mr A. Ghazaryan, a non-practising lawyer.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the widow of the late Mr Albert Mkrtumyan who worked for Yerevan Thermal Power Plant State CJSC (YTPP) as a power plant maintenance electrician. He had forty-five years’ experience as an electrician, including thirty-six years at the YTPP.
On 5 March 2008 a request was made for maintenance work in the six‑thousand-volt turbine hall of the power plant. According to the relevant work order, Albert Mkrtumyan was assigned to perform the maintenance of the first section of the six-thousand-volt turbine hall. The work order further indicated the equipment which was to be disconnected to ensure safety during the works. In particular, voltage transformers 41T and 64T were to be shut off and the first section of the six-thousand-volt turbine hall was to be grounded.
On the same day at around 10 a.m., Albert Mkrtumyan and his assistant V.M. started the works. According to the relevant record in the operative journal which lists all the works carried out in the production unit, at 10.30 a.m. voltage transformer 41T was shut down and repair work on the first section started at 10.45 a.m.
On 6 March 2008 the works were resumed. At around 3 p.m. Albert Mkrtumyan was killed instantly as the result of an electric shock while performing repair works in the reserve power supply room of the first section of the six-thousand-volt turbine hall.
On the same day the administration of the YTPP informed the police of the accident. The investigator examined the scene of the accident and assigned a forensic medical examination of the deceased’s body.
On an unspecified date the investigator questioned the head of the production unit, his deputy, the shift chief, the head of the security service of the company, the chief engineer and the only witness, V.M. According to the applicant, the latter was questioned twenty days after the accident.
On 3 April 2008 the medical examination was completed. The expert concluded that Albert Mkrtumyan had died as a result of an electric shock caused by technical electricity. The expert’s opinion also stated that, in the absence of the record of the examination of the scene of the accident, it was not possible to determine the exact time of his death.
On an unspecified date the investigator asked the Electrical Trade Union to look into the accident which had taken place on 6 March 2008 at the YTPP. According to its conclusion, the accident had taken place as a result of Albert Mkrtumyan’s failure to respect the power plant safety regulations. The conclusion further stated that no person had been found to be responsible for the accident.
Upon request by the director of the YTPP, a Commission was set up by the State Energy Inspectorate with the purpose of conducting an administrative investigation into the accident.
On an unspecified date the Commission, which was comprised of specialists of the State Energy Inspectorate, the YTPP and the Electrical Trade Union, delivered its opinion. The relevant parts of the Commission’s conclusion read as follows:
“The Commission concludes that the reason for the accident was that Albert Mkrtumyan had breached work discipline and expanded the working space and the work limits stated in the work order by arbitrarily performing the mentioned works in the wired reserve power supply cell. Ignoring ... warning and prohibiting posters, he had opened the door of the reserve power supply cell ... , and entered the cell ... , had confused the locations of live and de-energised wires, had approached at an unauthorised distance the solid wires supplied from transformer 9T and received an electric shock.
At the same time, the Commission considers that the accident in question took place as a result of a combination of circumstances in the absence of the victim’s intention to harm himself.”
On 22 April 2008 the investigator made a decision to refuse to institute criminal proceedings on the ground that no crime had been committed. The decision referred to the conclusions of the Electrical Trade Union and the commission set up by the State Energy Inspectorate as well as the statements of V.M. who had stated, inter alia, that he had reminded Albert Mkrtumyan that the reserve power supply cell was wired but the latter had opened its door with his working tools and entered the cell where he received an electric shock shortly after. The decision stated that it had been revealed during the investigation that Albert Mkrtumyan had arbitrarily performed work which had not been assigned to him by trying to repair the reserve power supply cell which, according to the relevant work order, had been wired and no repair works were to be performed therein. The decision further stated that Albert Mkrtumyan had opened the door of the reserve power supply cell with the help of working tools in his possession and, inter alia, tried to clean the insulators which he believed were not wired. He had then approached six-thousand-volt solid wires at an unauthorised distance and received an electric shock.
On 4 May 2008 the applicant asked the investigator to provide her with the decision of 22 April 2008 and the conclusions of the Electrical Trade Union and the commission set up by the State Energy Inspectorate. The applicant was only provided with a copy of the decision of 22 April 2008.
On 7 May 2008 the applicant lodged a complaint with the Prosecutor against the investigator’s decision. She complained that she had been provided only with the decision on refusal to institute criminal proceedings, although she had also requested copies of the specialists’ conclusions. Therefore, she had no possibility to consult the materials of the case file. The applicant claimed that there were a number of inconsistencies in the investigator’s conclusions with regard to the circumstances of the accident.
On 21 May 2008 the Prosecutor replied to the applicant that the investigator’s decision of 22 April 2008 was lawful and there were no grounds to quash it.
On 3 June 2008 the applicant lodged a claim with the Shengavit District Court of Yerevan (the District Court) raising similar complaints to those submitted in her complaint to the Prosecutor.
On 19 June 2008 the District Court granted the applicant’s claim and quashed the decision of 22 April 2008. It stated that criminal proceedings should be instituted to clarify a number of questions which remained unanswered, including the exact volume of work that was to be performed according to the work order, the equipment that was supposed to be disconnected, the responsible person who had possession of the key to the reserve power supply cell, and how Albert Mkrtumyan was able to open that door without having the key. The District Court also indicated that the investigating authority should consider whether the administration of the YTPP had respected the power plant safety regulations and that relevant forensic examinations should be assigned in view of the fact that the conclusion of the Electrical Trade Union could not be considered an expert conclusion satisfying the requirements of the procedural law.
The Prosecutor lodged an appeal mainly objecting to the findings of the District Court in respect of circumstances which needed to be further investigated.
On 10 July 2008 the Criminal Court of Appeal rejected the Prosecutor’s appeal. In doing so, it found that the investigating authority had failed to substantiate its conclusions with relevant evidence and that forensic examinations, including those with involvement of experts in different fields, should have been assigned to clarify a number of circumstances with regard to the accident.
On 23 July 2008 the Prosecutor decided to institute criminal proceedings.
On 29 July 2008 the applicant requested the status of the victim’s legal heir in the proceedings. The applicant also submitted questions and requested that they be included in the list of questions to be put to the handwriting, electrical and medical experts when forensic examinations were to be assigned.
On 30 July 2008 the investigator assigned a forensic electrical examination. The expert was asked to determine, inter alia, the following:
(a) whether Albert Mkrtumyan was authorised to enter the reserve power supply cell to perform the work assigned to him according to the work order;
(b) the concrete works to be carried out according to the work order;
(c) whether the reserve power supply cell was disconnected during the repair works and whether it could have suddenly become live;
(d) whether the door to the reserve power supply cell could be opened without its key and, if so, with the help of what kind of tool;
(e) taking into account Albert Mkrtumyan’s height and the size of the cell, could his body be in the position in which it had been found?
(f) whether there had been a breach of the power plant safety regulations while performing the repair works and, if so, who were the persons responsible.
By a letter of 8 August 2008 the investigator informed the applicant that there were no sufficient grounds to recognise her as the victim’s legal heir. At the same time, it was stated that her questions would be included in the lists of questions to the experts.
It appears that most of the applicant’s questions addressed to the electrical expert were not included in the list of questions submitted to the expert.
By an opinion of 15 August 2008, the electrical expert concluded that the accident had taken place because of a breach of work discipline, as a result of the failure to respect the power plant safety regulations. It was mentioned in the expert’s conclusion that on 4 September 2008 he had examined the scene of the accident, the reserve power supply cell of the first section of the six-thousand-volt turbine hall, but the state of the cell after the accident had not been preserved and therefore he had based his conclusions on the materials of the case file and the results of the examination. The expert stated, inter alia, that Albert Mkrtumyan’s qualifications did not authorise him to enter the reserve power supply cell and that he was assigned to repair the first section of the six thousand volt turbine hall, according to the work order. He further stated that the door of the reserve power supply cell had been closed from the inside and that it could have been opened from the outside with tongs, two screwdrivers or any other tools. The expert also stated that the reserve solid wires of the six-thousand-volt first section supplied from transformer 9T had been wired. As to the question concerning non-observance of safety regulations, the expert stated that Albert Mkrtumyan had breached these by performing arbitrary works not stated in the work order and having approached live wires at an unauthorised distance (less than 0.6 metres).
On 2 September 2008 the investigator assigned a forensic handwriting examination to find out whether the signature on the work order belonged to Albert Mkrtumyan.
On 4 September 2008 the applicant requested the State Labour Inspectorate to state whether the YTPP had promptly informed it about the accident of 6 March 2008 as required by law.
By a letter of 17 September 2008 the State Labour Inspectorate stated that the YTPP had not promptly reported the accident of 6 March 2008 and that the materials concerning the administrative investigation into the accident were sent on 25 April 2008.
By an opinion of 22 September 2008 the handwriting expert confirmed that Albert Mktrumyan had signed the work order.
On 23 September 2008 the investigator decided to terminate the criminal proceedings on the ground that Albert Mkrtumyan had died as a result of non-observance of safety regulations and arbitrary performance of repair works in the reserve power supply cell, which was against the work order. In particular, he had entered the reserve power supply cell and approached the live wires supplied from transformer 9T at a non-permitted distance, as a result of which he had received an electric shock.
On 29 September 2008 the applicant lodged a complaint with the Prosecutor complaining in the first place that the investigator had unlawfully refused to recognise her as her deceased husband’s legal heir in the proceedings and that he had also failed to include the questions submitted by her in the lists of questions to the experts. She further complained that the investigator had also failed to ask the expert the questions indicated by the District Court in the decision of 19 June 2008.
By a letter of 12 November 2008 the Prosecutor informed the applicant that there were no grounds to recognise her as the victim’s legal heir in the proceedings since it had not been established that Albert Mkrtumyan had suffered damage as a result of a crime. At the same time, the Prosecutor stated that the applicant had no right to complain against the decision to terminate the criminal proceedings.
On 24 November 2008 the applicant lodged a complaint with the District Court seeking the annulment of the investigator’s decision of 23 September 2008. She complained in particular about the fact that she was not provided with a possibility to consult the case file, lodge motions and put questions to the only witness who had been present at the accident. She argued, inter alia, that the investigator had failed to take measures in order to maintain the state of the scene of the accident and that the case file contained only photographs in this respect. As a result, the electrical expert reiterated the conclusions of the Electrical Trade Union and of the Commission, which included the representatives of the YTPP. She further argued that the investigator had failed to investigate who, in what manner, had opened the door of the reserve power supply room and which official was responsible for keeping its key. The applicant raised a number of other flaws in the investigation and also complained about the fact that the YTPP had initiated an administrative investigation only a month after the accident and had failed to inform her about it. Moreover, the YTPP had failed to inform the State Labour Inspectorate promptly about the accident, as it was required to do under the law.
On 3 April 2009 the District Court granted the applicant’s complaint and quashed the decision of 23 September 2008 on the ground that the investigative body had failed to answer the questions indicated in its decision of 19 June 2008 as upheld by the decision of the Criminal Court of Appeal of 10 July 2008.
The Prosecutor lodged an appeal, to which the applicant responded. She argued that the investigative body had failed to clarify a number of circumstances mentioned by the courts in their decisions setting aside the two previous decisions to terminate the proceedings. She also argued that different dates for the performance of repair works were indicated in the work order and in the journal of work orders, and that the relevant record in the journal had been modified so as to include the day when the accident had happened. Apart from other arguments concerning the flaws during the investigation, the applicant also questioned the quality of the electrical expert’s conclusions in view of the fact that the latter had no opportunity to examine the cell in its original state, since it had not been preserved after the accident. The applicant pointed out a number of other inconsistencies in the experts’ conclusions and in V.M.’s statements submitted at different times.
On 19 May 2009 the Criminal Court of Appeal rejected the Prosecutor’s appeal and upheld the District Court’s decision of 3 April 2009. The Court of Appeal found, in particular, that the investigator had not taken all the necessary measures to investigate the accident properly.
On 15 June 2009 the Prosecutor issued an instruction to the investigating body, indicating that it should resume the criminal proceedings, recognise the applicant as the victim’s legal heir and question the electrical expert in relation to his opinion.
On 18 June 2009 the investigator made a decision to resume the proceedings and inform the applicant of this.
On 19 June 2009 the applicant asked to be recognised as Albert Mkrtumyan’s legal heir. Her request was granted on the same day.
On 9 July 2009 the applicant asked to be provided with the materials of the case file and for time to submit motions. The applicant alleges that this request remained unanswered.
In the course of the re-opened proceedings, the investigator once again questioned V.M., the head of the production unit and his deputy. The investigator also questioned the electrical expert.
On 10 July 2009 the investigator decided to terminate the criminal proceedings on the same grounds. The copy of the relevant decision was sent to the applicant by letter of 13 July 2009. The records of interviews with V.M., the head of the production unit, his deputy and the electrical expert were attached to the letter.
On 13 July 2009 the applicant lodged a motion asking the investigator to assign a complex forensic examination and submitted questions to be put to the experts.
On 17 July 2009 the applicant sent a written request to the Prosecutor asking for the investigator’s decision of 10 July 2009 to be quashed. She argued that the investigator did not provide her with an opportunity to consult the case file and failed to address her motion. Moreover, the investigator had failed to comply with the requirements of the courts’ decisions and assign a complex forensic examination to discover the true version of the events.
By a letter of 3 August 2009 the Prosecutor informed the applicant that the case had been remitted to the investigator since he had failed to comply with the requirements of Article 262 of the Code of Criminal Procedure (the CCP). In particular, the investigator failed to inform her, as the victim’s legal heir, of her right to consult the case file and appeal against the decision.
According to the applicant, on 5 August 2009 the investigator visited her at home and took a signature that she had consulted the case file. The applicant claims that she signed such a document given that she had received the copies of the records of interviews with the expert and the three witnesses, together with the decision to terminate the criminal proceedings. However, the investigator did not provide her with copies of any additional documents on that day.
On 10 August 2009 the applicant complained to the Prosecutor that she had no opportunity to consult the case while the investigation was pending. She further complained that the investigator had failed to address her requests of 9 and 13 July 2009.
By a letter of 21 August 2009 the Prosecutor informed the applicant that her complaint of 10 August 2009 had been rejected. The copy of the Prosecutor’s relevant decision was attached to the letter. The decision stated, inter alia, that the investigator had made the case file available to her for consultation and had provided her with copies of documents from it. The decision further stated that there was no right under the CCP for the victim’s legal heir to consult the entire case file during the investigation or to lodge motions seeking to have additional investigative measures or decisions taken after the proceedings have been terminated. Moreover, according to Articles 262 and 263 of the CCP the victim’s legal heir had the right to consult the case file only after the termination of the criminal proceedings, and appeal against the relevant decision in case of disagreement.
On 4 September 2009 the applicant appealed to the District Court against the decision of 10 July 2009. She complained, inter alia, that the decision to recognise her as Albert Mkrtumyan’s legal heir had been of a formal nature since she did not have any genuine part in the proceedings. Thus, despite her specific request in that regard, she was not provided with the materials of the case file to be able to consult them and her motions were left unexamined. The applicant further complained that the investigator had once again failed to comply with the courts’ previous decisions concerning the measures to be taken in order to ensure the effectiveness of the investigation. In particular, the investigator had failed to assign a complex forensic examination and had merely questioned the electrical expert in relation to his opinion, which was no substitute. The applicant also raised a number of other questions that had not been clarified during the investigation, including her allegations that the journal of work orders had been falsified in respect of the dates when the maintenance works were to be performed.
On 10 November 2009 the District Court ruled for the applicant and ordered the reopening of the investigation, stating that a number of questions mentioned in the decisions of the District Court and the Court of Appeal of 19 June 2008 and 10 July 2008 respectively had still not been clarified in the course of the investigation. The District Court referred to the failure to clarify whether Albert Mkrtumyan had the right to perform the work stated in the work order and the failure to assign a forensic examination to find out the possible position of his body.
The Prosecutor lodged an appeal against this decision. He argued, inter alia, that the relevant work order stated that the reserve power supply cell was wired and no repair works were envisaged therein. As for the position of Albert Mkrtumyan’s body, he argued that it had not been necessary to assign a forensic examination in this regard since the forensic medical expert had already stated in his opinion that, after the explosion in the cell, the body could have been found in any possible position. The Prosecutor further argued that it had been substantiated during the investigation that Albert Mkrtumyan had the right to perform the works stated in the relevant work order and that he had opened the door to the reserve power supply cell with his own tools.
The applicant submitted her objections to the appeal by reiterating her statements before the District Court. She argued, inter alia, that according to the work order, regular maintenance works were to be carried out in the first section of the six-thousand-volt turbine hall. The same work order stated that the first section, which includes the reserve power supply cell where the accident happened, should have been earthed. However, it had not been earthed and could not have been earthed since the reserve power supply cell had remained wired, which caused the accident. She further argued that the work order had been altered as regards the transformer supplying the first section and that the investigator had not questioned the persons responsible for the preparation of the work station who had signed the work order.
On 15 January 2010 the Criminal Court of Appeal upheld the District Court’s decision of 10 November 2009. In doing so, the Court of Appeal stated that some of the questions subject to clarification, pointed out by the courts in the two previous sets of proceedings, had not been addressed during the investigation. In particular, it was necessary to establish the position of Albert Mkrtumyan’s body before and after he received the electric shock, whether with his qualification he had the right to perform the work assigned and to clarify the inconsistencies in V.M.’s statements. Also, the statement that Albert Mkrtumyan had opened the door to the reserve power supply cell with the help of his own working tools was groundless and not duly substantiated. The Court of Appeal found that the Prosecutor’s arguments were not supported by relevant facts or evidence gathered during the investigation. The Court of Appeal also referred to the applicant’s arguments against the investigator’s conclusions in the decision to terminate the proceedings and stated that those should be taken into account by the investigator.
On 4 February 2010 the criminal proceedings were resumed once again.
On 23 February 2010 the investigator decided to assign a forensic document examination to find out whether the work order had been altered.
On 3 March 2010 the forensic document expert produced his opinion, according to which the work order had been altered. In particular, the part of the work order stating which transformers should be shut off had been altered to state transformer 41T instead of the original 42T.
On 4 March 2010 the applicant requested permission to copy documents from the case file and to be provided with time to consult the documents and submit her motions in writing. According to the applicant, in reply to her request the investigator proposed that she submit her motions on the same day or the next day. Eventually the applicant and the investigator orally agreed that the applicant would call on 5 March 2010 to reach a final agreement on the date to submit her motion.
On the same day the investigator decided to terminate the criminal proceedings on the same grounds as before. The decision referred to, inter alia, the records of additional questioning of V.M. and the forensic medical expert.
On 11 March 2010 the applicant complained to the investigator’s superior that the investigator had failed to inform her whether she could consult the materials of the case file, make copies from it and lodge motions. She further complained that, in accordance with her agreement with the investigator, she had called him on 5 March 2010 to be informed that he had already decided to terminate the proceedings. It appears that no response followed this complaint.
On 20 March 2010 the applicant lodged a complaint with the Prosecutor about the actions of the investigator and the grounds for terminating the criminal proceedings stated in the decision of 4 March 2010. She argued that the investigator had failed to comply with the decision of the Criminal Court of Appeal of 15 January 2010.
By a letter of 24 March 2010 the Prosecutor informed the applicant that none of the provisions of the CCP guaranteed the right of the victim’s legal heir to consult the materials of a case file before the end of the investigation or lodge motions seeking to have additional investigative measures or procedural decisions taken after the completion of the investigation. Rather, according to Articles 262 and 263 of the CPC, the victim’s legal heir had the right to consult the case file only after the proceedings had been terminated.
By a decision of 15 April 2010 the Prosecutor rejected the applicant’s complaint of 24 March 2010 and fully upheld the investigator’s decision to terminate the criminal proceedings on the same grounds.
The applicant disputed the investigator’s decision of 4 March 2010 to terminate the criminal proceedings in the District Court. She mainly reiterated her arguments submitted in her complaint to the Prosecutor and argued that the investigator had failed to comply with the requirements of the decision of the Criminal Court of Appeal of 15 January 2010.
On 10 May 2010 the District Court rejected the applicant’s complaint, stating that there were no grounds to quash the decision of 4 March 2010.
The applicant lodged an appeal raising similar arguments. In addition, the applicant complained that the District Court had disregarded the fact that the investigator had failed to address the questions pointed out by the Court of Appeal in the decision of 15 January 2010.
On 18 June 2010 the Criminal Court of Appeal rejected the applicant’s appeal for being groundless.
The applicant lodged an appeal on points of law. In addition to her previous arguments concerning the alleged flaws of the investigation, the applicant argued that the decisions of the District Court and the Court of Appeal of 10 May and 18 June 2010 respectively were not reasoned.
On 4 August 2010 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit.
B. Relevant domestic law
1. The Code of Criminal Procedure (in force from 12 January 1999)
Article 80 § 1 provides that a victim’s close relative who expresses a wish to perform a deceased or incapacitated victim’s rights and obligations in criminal proceedings is recognised as his legal heir. The decision to recognise a victim’s close relative as his legal heir upon the request of the relative is taken by the investigating authority, the Prosecutor or by the court (Article 80 § 2). The victim’s legal heir participates in the criminal proceedings in the place of the victim and has the latter’s rights and obligations, except for making statements and performing other non‑transferable rights and obligations (Article 80 § 4). The victim’s legal heir has other rights and obligations under the CPC (Article 80 § 6).
Article 59 sets out the victim’s rights, including the latter’s right to consult the records of those investigative measures in which he has participated (Article 59 § 1(8)) and the right to consult all the materials of the case file and make copies from it once the investigation is over (Article 59 § 1(9)).
Article 247 § 1 sets out the rights of, inter alia, the victim when assigning or performing a forensic examination including the victim’s right to consult the expert’s opinion within ten days of its receipt by the investigator (Article 247 § 1(8)).
According to Article 262 § 1 the investigator sends a copy of the decision to terminate criminal proceedings and stop the prosecution, inter alia, to the victim and his representative. The victim has the right to consult the materials of the case file concerning the terminated proceedings (Article 262 § 3).
Article 263 § 1 provides that, inter alia, the victim has the right to appeal to the supervising Prosecutor against the decision to terminate the criminal proceedings and stop the prosecution within a period of seven days from the moment of receipt of its copy.
2. The Labour Code
According to Article 261 § 1 an administrative investigation is conducted to establish the reasons for accidents in an organisation.
Article 261 § 2 provides that the victim or his representative can participate in the administrative investigation into the workplace accident, has the right to consult the materials concerning the administrative investigation and should be provided with the relevant act drafted as a result of the administrative investigation and, in case of disagreement, can dispute its results before the Chief Labour Inspector or in court.
COMPLAINTS
The applicant complains under Article 2 of the Convention that the authorities failed to conduct an effective investigation into Albert Mkrtumyan’s death. She complains, in particular, that the investigation was not made accessible to her as Albert Mkrtumyan’s legal heir and that the circumstances of the workplace accident were not properly investigated.
QUESTION TO THE PARTIES
Having regard to the procedural protection of the right to life, was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?
Full & Egal Universal Law Academy