FOURTH SECTION
CASE OF DIMAKSYAN v. ARMENIA
(Application no. 29906/14)
 
JUDGMENT
 
Art 2 (substantive and procedural) • Life • Positive obligations • Death of applicant’s son during compulsory military service following accidental shooting by a fellow serviceman • Domestic authorities’ failure to ensure effective implementation of the relevant and adequate safety regulations on the handling of weapons • Failure to give effect to existing regulatory framework governing the organisation of emergency medical assistance to military servicemen in respect of medical care provided to applicant’s son • Failure to avert effectively known risks inherent in military service which have potential for life-endangering incidents especially in ongoing hostilities context • Ineffective investigation
Art 13 (+ Art 2) • Lack of an effective remedy • Legal impossibility of claiming compensation for non-pecuniary damage suffered as a result of the loss of life of one’s child

 
STRASBOURG
17 October 2023
 
FINAL
 
17/01/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dimaksyan v. Armenia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Gabriele Kucsko-Stadlmayer, President,
 Tim Eicke,
 Branko Lubarda,
 Armen Harutyunyan,
 Ana Maria Guerra Martins,
 Anne Louise Bormann,
 Sebastian Răduleţu, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 29906/14) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Aleksandr Dimaksyan (“the applicant”), on 28 March 2014;
the decision to give notice to the Armenian Government (“the Government”) of the applicant’s complaints concerning the death of his son, the alleged inadequacy of the investigation and the impossibility of claiming compensation for non-pecuniary damage from the State and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 26 September 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the death of the applicant’s son during his compulsory military service, allegedly as a result of having been accidentally shot by a fellow serviceman. It raises issues under Articles 2 and 13 of the Convention. THE FACTS
2. The applicant was born in 1965 and lives in the village of Vahagni. He was granted legal aid and was represented by Mr A. Zalyan, a lawyer practising in Vanadzor. 3. The Government were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, the Representative of the Republic of Armenia on International Legal Matters. 4. The facts of the case may be summarised as follows. Background to the case
5. The applicant is the father of M. Dimaksyan, who died at the age of 18. 6. In November 2010 M. Dimaksyan was drafted into the Armenian army. He was assigned to military unit no. 38401 of the Nagorno-Karabakh armed forces (“the military unit”, situated in the “Republic of Nagorno-Karabakh” (the “NKR”)) near the town of Hadrut. 7. On 5 February 2012 M. Dimaksyan was shot by his fellow serviceman G.A., with whom he was on watch duty that day at base no. 121 (“the base”) of the military unit. He died on the same day. Criminal Investigation into the applicant’s son’s death
8. On 5 February 2012 the Second Garrison Investigation Department of the Investigative Service of the Ministry of Defence of the Republic of Armenia (Hadrut, Nagorno-Karabakh) instituted criminal proceedings. 9. On the same date a forensic medical examination was ordered to determine, among other things, the cause of M. Dimaksyan’s death and the existence of any injuries on his body. 10. A number of investigative measures were undertaken, including an inspection of the scene of the incident and forensic ballistic and trace evidence examinations. In addition, a number of witnesses were questioned, including the senior command officers of the military unit and M. Dimaksyan’s fellow servicemen, all of whom confirmed that he had never had any issues with G.A. and expressed the opinion that the incident had been the result of an accident. 11. On 9 February 2012 G.A. was charged under Article 373 § 3 of the Criminal Code of Armenia (see paragraph 27 below) with breaching the rules on handling assault rifles, as a result of which he had unintentionally caused M. Dimaksyan’s death. 12. On 7 March 2012 the applicant was recognised as the victim’s legal successor in the proceedings. 13. On 19 March 2012 the forensic medical examination (see paragraph 9 above) was completed. According to the ensuing report, M. Dimaksyan had died as a result of severe blood loss from a perforation caused by 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 exited the left side of the chest. The report 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 and right wrist; ecchymoses on the tip of the nose, the left side of the forehead and the right foot; and bruising to the skull under the skin on the right side of the forehead and occiput, which had been inflicted with blunt objects while M. Dimaksyan was still alive, not long before his death or while he was dying, and were not linked to the cause of the death. 14. Eventually the following, as reflected in the bill of indictment, was found to have been established during the investigation. The applicant did not contest these findings. 15. On 5 February 2012, at around 7.10 p.m., G.A. and M. Dimaksyan heard a 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. was frightened, and in order to feel more secure he loaded the assault rifle that had been assigned to him. M. 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, M. Dimaksyan reminded G.A. that his assault rifle was still loaded but G.A., in breach of the rules for handling assault rifles, ignored him, thinking that he had closed the trigger guard and the assault rifle was safe. After their return to the base at around 7.30 p.m. G.A. had the assault rifle hanging from his neck with the muzzle pointing to the left while he was standing three to four metres away from M. Dimaksyan. They then heard a noise again and decided to inspect the area once more. G.A. decided to go to the right, while M. Dimaksyan went to the left. Before turning to the right, G.A. took his hands out of his pockets and held the hand grip of the assault rifle with his right hand, and his index finger happened to touch the trigger. At that moment the assault rifle went off and the bullet hit M. Dimaksyan in the right side of the shoulder girdle, causing him a perforating gunshot injury. As a result of the shot M. Dimaksyan fell to the ground, whereupon G.A. removed his clothes to find the injury and cried out for help. Other servicemen came to help and took M. Dimaksyan to the dugout on a stretcher, waiting for a vehicle to transfer him to the military hospital. The servicemen then put M. Dimaksyan in a truck in which Major V.S., the chief of staff of the battalion, drove him to the military hospital. The road was bumpy and impassable, and the stretcher kept moving from one side to the other in the truck and the servicemen had difficulty holding it. It took them about fifteen minutes to cover 400 metres, after which they met a medical vehicle in which A.G., a military paramedic, was travelling towards them from another base and transferred M. Dimaksyan to that vehicle. At that time M. Dimaksyan was still alive, and A.G. and the servicemen headed in the direction of the military hospital in Martuni (a distance of approximately 50 kilometres from Hadrut (see paragraph 6 above)). Having travelled about 6 kilometres, the medical vehicle became overheated. They stopped the vehicle to add water to the radiator and continued. However, shortly afterwards the vehicle again overheated. At that moment another truck happened to be approaching them and they then transferred M. Dimaksyan to it to continue along the road. On the way they met the military hospital ambulance coming towards them. The ambulance stopped, and the doctors tried to provide emergency medical assistance to M. Dimaksyan on the spot, but he was already dead. 16. On 7 August 2012 the case was transferred to the Syunik Regional Court for examination on the merits. Internal investigation into the circumstances of the applicant’s son’s death
17. On an unspecified date the Commander of the Nagorno-Karabakh Defence Army ordered an internal investigation into M. Dimaksyan’s death. A special commission (“the internal commission”) was formed for this purpose. 18. In February 2012 the internal commission filed a report with the Commander of the Nagorno-Karabakh Defence Army, based on the results of that 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 ... are forged;
- The entries in [G.A.’s] individual file are of a standard nature and the relevant descriptions are absent (with one entry every six months);
- ... failure of the senior staff member at the base to fulfil his official duties properly;
- As a result of technical problems with the military unit’s medical vehicle, the transfer of the injured person was carried out from halfway along the route by another vehicle;
... According to the initial information, the lethal gunshot injury was inflicted on Private [M. Dimaksyan] by Private [G.A.] as a result of a shot fired unexpectedly as a consequence of poor supervision by the administration of the battalion and the senior staff member at the base ...”
19. The Government affirmed before the Court that, on the basis of the findings of the internal commission as reflected in its report, disciplinary penalties were imposed on six commanding officers of the military unit, including its commander, for lack of appropriate efforts to ensure the safety and proper supervision of military service. They did not submit any documents in that respect. Trial
20. On 14 August 2012 the trial of G.A. commenced at the Syunik Regional Court sitting in Stepanakert, Nagorno-Karabakh (“the Regional Court”). 21. During the trial G.A. refused to give evidence and pleaded guilty to the charges (see paragraph 11 above). 22. On 25 April 2013 the Regional Court found G.A. guilty as charged (see paragraphs 11 and 15 above) and sentenced him to imprisonment for four years and six months. In doing so, the Regional Court found that G.A., having breached the rules for handling assault rifles, had failed to close the trigger guard of his assault rifle which had then gone off unintentionally, causing M. Dimaksyan’s death. In its judgment the Regional Court only addressed the issues concerning the legal assessment of the offence imputed to G.A. and the determination of the type of the sentence. 23. The applicant lodged an appeal, arguing that he and his representatives had encountered serious difficulties in participating fully in the proceedings since the trial had taken place in Stepanakert. Referring to the report of the internal commission (see paragraph 18 above), 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 for his son’s death. Furthermore, the investigation had failed to clarify the circumstances in which M. Dimaksyan had sustained the non-ballistic injuries described in the autopsy report (see paragraph 13 above), the duration of time between the infliction of the injury and M. Dimaksyan’s death and whether it would have been possible to save his life had the vehicle transporting him not broken down on the road. 24. On 29 July 2013 the Criminal Court of Appeal upheld the Regional Court’s judgment in full. 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 successor, the Court of Appeal finds that they have already been fully and objectively assessed by the first-instance court; the submissions of the representative of the victim’s legal successor are therefore not sufficient grounds to allow the appeal.”
25. The applicant lodged an appeal on points of law, raising similar arguments to those submitted in his previous appeal (see paragraph 23 above). 26. On 30 September 2013 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. RELEVANT LEGAL FRAMEWORK
Criminal Code
27. Article 373 § 3 of the former Criminal Code (in force from 1 August 2003 until 1 July 2022) stated that a breach of the rules for handling weapons, ammunition, radioactive substances, explosives or devices dangerous to the environment that had led to the death of a person caused by negligence was punishable by four to eight years’ imprisonment. Law establishing the Internal Service Regulations of the Armed Forces of the Republic of Armenia («ՀՀ զինված ուժերի ներքին ծառայության կանոնագիրքը հաստատելու մասին» ՀՀ օրենք)
28. The Law establishing the Internal Service Regulations of the Armed Forces of the Republic of Armenia (“the Internal Service Regulations”), which was enacted on 3 December 1996, is the principal legal instrument regulating military service in the armed forces of Armenia. 29. Section 6 of the Internal Service Regulations provides that service personnel are under the protection of the State. Their life, health, honour and dignity are protected by law. Discrediting, threatening, using violence against or encroaching on the life, health and property of service personnel and other actions hindering the performance of their duties and breaching their rights give rise to liability as prescribed by law. 30. Section 11 provides that during the performance of military service, and, if necessary, also outside that service, servicemen have the right to keep, carry, deploy and use weapons. The rules for keeping, carrying, deploying and using weapons are set out in the Internal Service Regulations. Section 11 goes on to list the specific cases when servicemen, as a matter of last resort, have the right to use weapons, including to protect the life and limb of other servicemen and civilians from an attack. 31. Section 12 states, among other things, that weapons should be deployed with prior warning, except in specific cases (set out in the same section). When deploying and using weapons, a serviceman must take all the necessary measures to ensure the safety of any civilians in the surrounding area and, if required, provide emergency medical assistance to anyone who is injured. 32. Under section 73, the commander is a sole leader who, in both wartime and peacetime, is responsible for, among other things, combat training, military discipline and general safety in the military service. 33. Section 78 states, among other things, that the commander (or chief) must take measures to prevent death or injury to staff, set the necessary requirements for ensuring safety, make his subordinates aware of those safety requirements beforehand and require their strict observance when working with armoury and military equipment during combat duty (or combat service) and other types of special military activities listed in the same section. Prior to starting a military activity the commander must personally make sure that conditions are safe for that activity and that subordinates have understood the safety requirements and have the necessary practical skills to implement them. 34. Section 94.2 provides that the deputy commander in charge of military duties must, among other things, supervise the implementation of safety measures while military duties are carried out and the correct use of weapons and military equipment involved in carrying out military duties, as well as regularly train the staff on the guidelines concerning the organisation and carrying out of military duties. 35. Section 316 provides that the doctor (or paramedic) on duty is responsible for internal discipline in the military medical unit. The shift doctor is responsible for providing emergency medical assistance, while the paramedic provides first aid. 36. Section 317 lists the obligations of the doctor (or paramedic) on duty in the military medical unit, including, when called by the serviceman in charge, attending to a patient immediately in order to provide medical care and, in cases requiring emergency medical assistance, transferring the patient to the military medical unit immediately and reporting to the doctor. 37. Chapter 8 of the Internal Service Regulations (sections 329-361), which is entitled “Protecting and strengthening the health of servicemen”, contains the relevant provisions concerning, among other things, the physical exercise and endurance training to be undertaken by servicemen, the material conditions of their military service, sanitary measures, the prevention and control of infection, medical supervision and periodic medical examinations of servicemen, the treatment of ill servicemen in the military medical unit or in hospitals, excusing servicemen from training or other activities for health reasons, and medical record-keeping. Section 351 deals with emergency medical treatment and provides that servicemen who have suddenly fallen ill or have been injured are to be sent to the military medical unit immediately whatever the hour of the day. Section 356 states, among other things, that servicemen are sent to receive treatment outside the military unit by the commander of the military unit on the recommendation of the doctor or, in case of emergency and in the doctor’s absence, of the paramedic on duty, who must at the same time make a report to the chief of the medical service of the military unit and the officer in charge. Patients are transported to a medical facility by the “medical vehicle” (սանիտարական տրանսպորտ)[1] of the military unit on duty and are accompanied by the doctor (or paramedic). 38. Section 451 provides, among other things, that the commander of the military unit is responsible for the organisation of measures aimed at ensuring the consistent safety of military service. In addition to the responsibilities set out in, among other provisions, sections 73 and 78 (see paragraphs 32 and 33 above), the commander of the military unit must constantly oversee the implementation of the safety requirements of military service by the subordinate units (services) during daily activity. 39. In accordance with section 452, commanders of military units, their deputies, divisional chiefs, commanders of sub-divisions and their deputies, and other military officials of military units (sub-divisions) are responsible for the observance of the safety requirements of military service by their subordinates. Right to compensation
40. The relevant provisions of domestic law concerning compensation for damage, as in force at the material time, are set out in Mirzoyan v. Armenia (no. 57129/10, §§ 46-50, 23 May 2019). THE LAW
ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
41. The applicant complained about the death of his son during compulsory military service, and asserted that the authorities had failed to carry out an effective investigation into the matter. He relied on Article 2 of the Convention, the relevant part of which reads as follows:
“1. Everyone’s right to life shall be protected by law.”
AdmissibilityJurisdiction

42. The Government did not contest its jurisdiction over the events in question, which took place in the “NKR” (see paragraph 6 above). Nonetheless, the Court finds it appropriate to address the matter of its own motion (see Muradyan v. Armenia, no. 11275/07, § 123, 24 November 2016). 43. In that connection, the Court notes that it has already examined the issue of Armenia’s jurisdiction in other cases concerning fatalities during military service in Nagorno-Karabakh and found that there was a jurisdictional link for the purposes of Article 1 of the Convention between Armenia and the persons who had died while performing military service in the territory in question (see Muradyan, cited above, §§ 123-27, and Nana Muradyan v. Armenia, no. 69517/11, §§ 86-92, 5 April 2022, concerning the deaths of conscripts during compulsory military service in Nagorno-Karabakh; and compare Mirzoyan v. Armenia no. 57129/10, §§ 54‑56, 23 May 2019, concerning the murder of a conscript during compulsory military service in Nagorno-Karabakh). 44. The incident which resulted in the death of the applicant’s son took place on 5 February 2012 in a military unit situated in the “NKR” (see paragraphs 6 and 7 above). The Court finds no particular circumstances in the present case, which also took place prior to the end of the Nagorno-Karabakh war on 10 November 2020 (see Nana Muradyan, cited above, § 91), that would require it to depart from its findings in Nana Muradyan and therefore considers that there was a jurisdictional link for the purposes of Article 1 of the Convention between Armenia and the applicant’s deceased son. Other grounds for inadmissibility
45. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant
46. The applicant complained that the State had failed to comply with its positive obligation to protect the right to life. He argued that his son had lost his life as a result of the State’s failure to ensure safe conditions for him during his military service, and had also failed to ensure proper emergency medical assistance. 47. In particular, the military authorities in charge of the military unit and specifically of organising watch duty on the day of the incident had failed to ensure that the servicemen assigned to that duty were well prepared and properly trained and had also failed to supervise the correct use of weapons and equipment, contrary to the requirements of the Internal Service Regulations (see paragraph 34 above). Furthermore, the State had failed to ensure the availability of emergency medical assistance. First M. Dimaksyan had been put in a military truck, after which he had been transported to the medical vehicle, which not only had not been running properly but also had lacked appropriate emergency assistance equipment and appliances (see paragraph 15 above) which could have contributed to a positive outcome for him. 48. The applicant submitted that, given the number of accidents and the persistent violations of the ceasefire at the material time, resulting in a number of casualties each year, the authorities were aware or should have been aware of the real and imminent threat to the life of young conscripts when calling them up to the army. However, the authorities had failed to take the necessary measures, including ensuring the availability of emergency medical assistance, to prevent that risk from materialising. 49. As regards the investigation, the applicant submitted that it had failed to identify all those responsible for the death of his son. In particular, only G.A., who had shot his son by accident, had been held criminally liable whereas, according to the forensic medical evidence, his son had died because of severe blood loss (see paragraph 13 above). (b)   The Government
50. The Government relied on provisions of domestic criminal law and also on sections 6 and 11 of the Internal Service Regulations (see paragraphs 29 and 30 above), arguing that the domestic legislation and regulations provided for the necessary protective mechanisms for persons performing military service. 51. Furthermore, G.A., who had caused the death of the applicant’s son by having breached the rules for handling weapons, had been convicted and received an adequate punishment (see paragraph 22 above), which in the Government’s submission showed the capacity of the legal system to enforce the applicable law against the person who had been responsible for the incident. 52. The Government maintained that the authorities had not known and could not have known about the risk to M. Dimaksyan’s life. The fatal shot had been the result of G.A.’s individual actions which should not be attributed to the authorities; to do so would impose a disproportionate burden on them. 53. As regards the issue of emergency medical assistance, the Government asserted that M. Dimaksyan’s transfer to hospital after receiving the injury had been organised properly and as quickly as possible. In order to save time, Major V.S. had driven M. Dimaksyan towards the military hospital with the help of other servicemen, after which they had transferred him to the military unit’s medical vehicle. The overheating of the medical vehicle could not be considered significant because the patient had been immediately transferred to another car (see paragraph 15 above). 54. In so far as the results of the investigation carried out by the internal commission were concerned (see paragraph 18 above), the Government submitted that those were only preliminary findings and were included in the case file of the criminal proceedings. The shortcomings identified in the relevant report were of a disciplinary nature. In any event, there was no causal link between those shortcomings and M. Dimaksyan’s death, given that the accident had taken place because of G.A.’s personal error of judgment. 55. Lastly, the Government submitted that, even if the actions of the administration of the military unit had been flawless, the same accident could still have happened given the unpredictability of human conduct. 56. As regards the investigation, the Government submitted that the authorities had launched it on the day of the incident (see paragraph 8 above) and had carried out a number of investigative measures, including various forensic examinations and witness interviews. The investigation had eventually resulted in G.A.’s conviction. It had been completed within a reasonable time and had been accessible to the victim party, namely the applicant. In particular, the applicant had been granted the procedural status of a victim’s legal successor in the proceedings (see paragraph 12 above), had been properly informed about the decisions to appoint forensic experts to conduct examinations and had been given access to the ensuing expert reports and an opportunity to study the material in the case file after the completion of the investigation. 57. On the basis of the results of the internal investigation (see paragraph 18 above), which had shown failures in ensuring proper supervision and safety and in organising transport for injured personnel by the command of the military unit, six officers, including the unit commander, had been subjected to disciplinary penalties (see paragraph 19 above).

Article of the Convention at issue: Article 13
Outcome: violation