FOURTH SECTION
CASE OF HOVHANNISYAN AND KARAPETYAN v. ARMENIA
(Application no. 67351/13)
 
 
JUDGMENT
 
Art 2 (substantive and procedural) • Life • Positive obligations • Failure to take measures to protect life of two conscripts killed during compulsory military service by a fellow conscript in a shooting incident • Failure to assess character and dangerousness of a conscript who had a criminal record and had been deported from the US on that account • Failure to adopt measures to maintain proper military discipline and prevent occurrence of violence believed to have triggered the shooting • 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 Hovhannisyan and Karapetyan v. Armenia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Gabriele Kucsko-Stadlmayer, President,
 Tim Eicke,
 Faris Vehabović,
 Branko Lubarda,
 Armen Harutyunyan,
 Anja Seibert-Fohr,
 Anne Louise Bormann, judges,
 and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 67351/13) 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 two Armenian nationals, Mr Mikayel Hovhannisyan (“the first applicant”) and Ms Svetlana Karapetyan (“the second applicant”, together “the applicants”), on 18 October 2013;
the decision to give notice to the Armenian Government (“the Government”) of the applicants’ complaints concerning the death of their sons, the alleged inadequacy of the investigation and the impossibility of claiming compensation for non-pecuniary damage from the State and to declare inadmissible the remainder of the application;
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 applicants’ sons as a result of a tragic shooting in the military unit where they were undergoing compulsory military service. It raises issues under Articles 2 and 13 of the Convention. THE FACTS
2. The first applicant was born in 1967 and lives in Vanadzor, and the second applicant was born in 1957 and lives in Yerevan. The applicants, who had been granted legal aid, were represented by Mr A. Zalyan, a lawyer practising in Vanadzor, and Mr A. Sakunts of the Helsinki Citizens’ Assembly Vanadzor Office. 3. The Government were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, 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 first applicant is the father of R. Hovhannisyan, who died at the age of 19. The second applicant is the mother of A. Sargsyan, who died at the age of 21. 6. R. Hovhannisyan and A. Sargsyan were drafted into the Armenian army in 2009 and 2008 respectively. They were both assigned to military unit no. 36534 of the Nagorno-Karabakh armed forces (“the military unit”, situated in the “Republic of Nagorno-Karabakh” (the “NKR”)). 7. On 28 July 2010 at around 6 p.m. R. Hovhannisyan, A. Sargsyan and four other servicemen (Privates G.H., A.M., K.A. and platoon commander Senior Lieutenant V.T.) were found dead with gunshot injuries at post no. 147 of the military unit. Investigation into the applicants’ sons’ death
8. On the same date at around 8 p.m. an investigator of the Second Garrison Investigation Department of the Investigative Service of the Ministry of Defence of the Republic of Armenia (Hadrut, Nagorno-Karabakh) examined the scene of the incident and drew up a report, according to which K.A.’s body had been discovered in the trench leading from the dugout to the observation post, with a Kalashnikov hand‑held machine gun next to his legs. The report then stated, among other things, that five more bodies had been discovered in front of the dugout – Senior Lieutenant V.T., A. Sargsyan and G.H. next to each other close to the pavilion of the dugout, R. Hovhannisyan a bit closer to the pavilion and A.M. under the pavilion by the entrance of the dugout. The investigator took photographs of the scene and the bodies in situ and seized the weapons and various items of military clothing found at the scene. 9. On the same date criminal proceedings were instituted by the Second Garrison Investigation Department of the Investigative Service under Article 104 § 2 (1) of the Criminal Code of Armenia (murder of two or more persons). 10. On the same date the investigator (see paragraph 8 above) ordered autopsies to determine, inter alia, the cause of death, the presence of injuries and, if there were any injuries, the time of their infliction, as well as whether there was any evidence of alcohol consumption. 11. On 29 July 2010 the investigation was taken over by the Investigation Department of Cases of Special Importance of the Investigative Service of the Ministry of Defence (Yerevan, Armenia) and assigned to senior investigator M.B. of the same department. 12. On the same date a number of servicemen were interviewed, including Lieutenant Colonel V.P., deputy commander of the military unit; Lieutenant Colonel S.G., deputy chief of staff of the military unit; Private H.P., squad commander; Captain M.M., platoon commander; and Private D.H., squad commander. 13. Lieutenant Colonel V.P. (see paragraph 12 above) stated at his interview that at around 5 p.m. on 28 July 2010 he had gone to post no. 147 with Lieutenant Colonel S.G., where they had discovered the servicemen on duty at the observation post (Privates A. Sargsyan and K.A.) asleep. He then reprimanded the servicemen in question, ordered them not to undertake any actions at the post and told them that the issue of their disciplinary responsibility would be considered when they returned to the military unit after the shift change. He then left and was informed about thirty to forty minutes later that six bodies had been found at the post. 14. Lieutenant Colonel S.G. (see paragraph 12 above) stated, inter alia, that on 28 July 2010 he had gone to post no. 147 with Lieutenant Colonel V.P. upon the orders of Colonel F.B., the military unit commander. On arriving, he went up to the observation post with Privates G.H. and D.H., where they discovered A. Sargsyan and K.A. asleep. He did not allow Senior Lieutenant V.T., who was also there, to approach the sentries, as he suspected that he might hit them. At around 6.30 p.m. that evening he was informed that there were victims at post no. 147. He, Lieutenant Colonel V.P. and other officers returned and discovered six bodies in front of the dugout. 15. Private D.H. (see paragraph 12 above) stated, in particular, that at around 5.30 p.m. on 28 July 2010 they had received a call from the adjacent post informing them that Lieutenant Colonels V.P. and S.G. were inspecting the observation posts. He escorted them to the observation post, where Lieutenant Colonel S.G., who was the first to enter the post, discovered both sentries (Privates A. Sargsyan and K.A.) asleep. Lieutenant Colonel V.P. arrived a bit later and, having learnt that the sentries had been asleep, ordered them not to undertake any actions while at the observation post and told them that the matter would be discussed after the shift change. Prior to that, and in Lieutenant Colonel S.G.’s presence, Senior Lieutenant V.T. addressed A. Sargsyan and K.A. in a very rude manner and said “Because of [bastards] like these, positions are being taken”. D.H. did not see or hear anyone reprimanding Senior Lieutenant V.T. for the fact that the sentries had been found asleep. However, Senior Lieutenant V.T. was furious because of the entire situation; he called platoon commander Captain M.M. and threatened in very rude language to harm those who had been discovered sleeping if he did not report the matter and have them sent to the military unit right away. When A. Sargsyan and K.A. returned from the observation post, Senior Lieutenant V.T. ordered them very angrily to take out their weapons. At that point D.H. was in the dugout and could hear Senior Lieutenant V.T. arguing with A. Sargsyan and K.A. outside. That happened at around 6.15 p.m. He then heard the sound of someone being hit and, looking out of the window, saw Senior Lieutenant V.T. beating A. Sargsyan. At that point G.H. tried to pull Senior Lieutenant V.T. away, after which he heard someone shouting “[R. Hovhannisyan’s short name], no, no, no!”. He then heard an assault rifle being loaded and a long burst of automatic fire immediately after. After it finished, he heard someone entering the dugout and thought that it was the person who had been shooting. Frightened, he hid between the door and the refrigerator. A couple of seconds later he heard a single shot, followed by silence. He then ran from the dugout and on his way, on the stairs, discovered A.M.’s body. He then saw four other bodies lying on the ground. 16. According to the statement of Private H.P. (see paragraph 12 above), who was on duty at the observation post after A. Sargsyan and K.A., he woke up at around 5.45 p.m. in order to prepare for his shift. When he left the dugout, he saw Senior Lieutenant V.T., A.M. and R. Hovhannisyan, who was a little further down the road, next to the dugout. Prior to leaving, standing by the door, he heard Senior Lieutenant V.T. swearing at the sentries who had been found asleep. On the way to the observation post, he saw A. Sargsyan and K.A. coming back. He then took over the shift with another serviceman and about two to three minutes later they heard a long burst of continuous gunfire. Then, a single shot was heard six to seven seconds after the gunfire had stopped. Since sentries were not allowed to leave their observation post during their shift, they stayed where they were. He and the other sentry left the observation post when other officers came to replace them. They then went down towards the dugout and saw the bodies. At that point it was clear that K.A. had shot the others since his body was in the trench and it looked as if he had committed suicide, while the others were a bit further away – A. Sargsyan, Senior Lieutenant V.T. and G.H. next to each other and R. Hovhannisyan about half a metre away from them. 17. Captain M.M. (see paragraphs 12 and 15 above) described the episode of Senior Lieutenant V.T. calling him after the sentries had been discovered asleep at the observation post and threatening to harm them if not sent to the military unit. In reply, Captain M.M. said that they only had two days to leave the positions and go back to the military unit, where the sentries would be given their punishments. Around ten minutes after that conversation he heard gunfire coming from the direction of post no. 147. 18. At his subsequent interviews, H.P. (see paragraph 16 above) stated that Senior Lieutenant V.T. was very strict about service and rude. In his opinion, the incident could have been prevented had Senior Lieutenant V.T. been more tolerant towards A. Sargsyan and K.A. He believed that K.A. had shot the servicemen; in his opinion, none of the others would have done it. He also stated that, to his mind, the incident could have been prevented had Senior Lieutenant V.T. ordered A. Sargsyan and K.A. to put away their weapons after they had returned from their shift, as required by the regulations. 19. On an unspecified date the Minister of Defence of Armenia ordered an internal investigation into the incident. 20. On 3 August 2010 the investigator ordered a ballistic examination of samples taken from the bodies of Senior Lieutenant V.T., A. Sargsyan, K.A. and A.M. According to the ballistic expert report of 14 September 2010, the samples taken from the bodies of Senior Lieutenant V.T. and K.A. contained traces of gunshot residue. Taking into account the quantities of antimony metal, the traces in the samples taken from the body of Senior Lieutenant V.T. indicated contact with a weapon, or a shot fired from one, while the traces in the samples taken from the body of K.A. indicated that he had fired a shot (shots). 21. On 10 August 2010 the Minister of Defence issued an order based on the results of the internal investigation (see paragraph 19 above), the relevant parts of which read as follows:
“On 28 July ... [K.A.] fired at his co-servicemen with the Kalashnikov hand‑held machine gun assigned to him, as a result of which 5 servicemen died instantly, after which he committed suicide.
...[Lieutenant Colonel V.P.] and [Lieutenant Colonel S.G.] reprimanded [A. Sargsyan] and [K.A.] for sleeping at the observation post. At that moment ... [Senior Lieutenant V.T.] tried to hit [A. Sargsyan and K.A.] but [Lieutenant Colonels V.P. and S.G.] did not let that happen.
... after the shift, the officers came back to the dugout and [Senior Lieutenant V.T.] ... swore at those who had been sleeping ... and started beating up [A. Sargsyan]... According to the initial information [K.A.], seeing [Senior Lieutenant V.T. beating up A. Sargsyan] and realising that he would be next, took the hand‑held machine gun assigned to him ... and fired ... Then, he took a loaded magazine from one of the deceased, attached it to his machine gun, entered the trench and committed suicide by firing a shot into his mouth. Back in 1992 Private [K.A.] had left for the United States with his mother, where he was convicted of numerous counts of burglary, car theft, possession of illegal firearms and drugs and escaping from a correctional facility. In 2009 [K.A.] was deported from the United States to the Republic of Armenia and drafted into the army. It has also been revealed during the internal investigation that:
the incident is the consequence of a gross violation of military rules ... as well as humiliation and ill-treatment of servicemen by senior officers ... The incident would not have happened if:
...
2) the personal data concerning the conscripts and their character had been adequately examined in the military unit, and the criminal offences committed previously by the servicemen had been examined in detail ...
...
5) the command of the military unit ... had examined the circumstances of [K.A.’s] stay in the [United States], the offences committed by him, his deportation from the [United States] and the circumstances of his conscription for military service ...
6) [Lieutenant Colonel V.P.] and [Lieutenant Colonel S.G.] had taken preventive measures to obviate [Senior Lieutenant V.T.’s] violent actions ...
...
8) (c) ...the firearms had been unloaded and stored [by the servicemen who had completed their shift] in accordance with [the relevant provisions of order of the Minister of Defence no. 0250]...
9) the platoon commander [that is, Captain M.M.], having learnt that the sentries had been sleeping ... had reported to his superior and undertaken measures to calm [Senior Lieutenant V.T.’s] anger and discipline him ...
10) non-statutory, street methods, beating and humiliation of the servicemen ... had not been used for breaches of [military rules] .”
Pursuant to the order, a number of high-ranking officers, including Lieutenant Colonel V.P., were demoted, while others, including Colonel F.B., the military unit commander, and Lieutenant Colonel S.G., were transferred to the reserve. 22. By the same order, the Minister of Defence also reprimanded a number of high-ranking officers of military unit no. 42009 of the Nagorno-Karabakh armed forces, including its deputy commander responsible for working with personnel discharged from service. 23. On 30 September 2010 the results of the autopsies (see paragraph 10 above) were received, which contained the following conclusions. 24. A. Sargsyan had died of gunshot injuries to the waist, buttocks and thigh. Non-gunshot injuries were also found on his body, in the form of abrasions on his elbow and lower arm. These injuries had been inflicted by blunt objects shortly before death or when he was dying. A biochemical examination had shown the presence of 1 per mille alcohol in his blood, which corresponded to low-level alcohol intoxication. 25. R. Hovhannisyan had died of a gunshot wound to the head. Other gunshot injuries had been found on his thigh, arms and stomach. A biochemical examination had shown the presence of 2.6 per mille alcohol in his blood, which corresponded to high-level alcohol intoxication. 26. G.H. had died of gunshot injuries to the chest, stomach, thigh and legs. A biochemical examination had shown the presence of 0.74 and 0.3 per mille alcohol in his blood and urine respectively, which corresponded to low-level alcohol intoxication. 27. A.M. had died of gunshot injuries to various internal organs and elsewhere on the body. Non-gunshot injuries were also found, in the form of abrasions in the left corner of the mouth and on the back and upper limbs, and bruises on the chest, which were inflicted either shortly before death or as he was dying, with blunt objects or tools. A biochemical examination had shown the presence of 1.43 and 0.4 per mille alcohol in his blood and urine respectively, which corresponded to low-level alcohol intoxication. 28. Senior Lieutenant V.T. had died of gunshot injuries to the neck, chest, stomach, thigh, and upper and lower limbs. A biochemical examination had shown the presence of 1.8 per mille alcohol in his blood, which corresponded to mid-level alcohol intoxication. No alcohol had been discovered in the urine sample. 29. K.A. had died of a gunshot wound to the skull, with the entry wound situated inside the mouth. A biochemical examination had shown the presence of 3.6 per mille alcohol in his blood. At the time of his death, K.A. was severely intoxicated. 30. On 6 October 2011 investigator M.B. (see paragraph 11 above) ordered a posthumous forensic psychological and psychiatric examination to determine, among other things, whether K.A. had suffered from any psychiatric disorders, what his psychological condition had been during the period before the shooting and his suicide and whether there was a causal link between the ill-treatment and humiliation by Senior Lieutenant V.T. and K.A.’s psychological condition preceding the shooting and the suicide. 31. On 24 October 2011 the relevant commission of experts delivered its report, which stated, inter alia, that K.A. had not suffered from a psychiatric disorder and had been fully aware of his actions. On the basis of the material provided to the experts (a statement of the facts as set out in the decision ordering the forensic examination, autopsy reports, records of interviews with witnesses and forensic experts, K.A.’s books and notebooks found in his personal belongings and so on), the commission concluded as follows:
“... according to the notes in [K.A.’s] notebook, it can be assumed that he frequently reflected on various life issues, his past, being in the army, [hardly] bearing the two years of service and regretted his actions in the past. According to the case material, [K.A.] was described positively and performed his duties in good faith.
... In view of [K.A.’s] level of inebriation and the situation at hand [Senior Lieutenant V.T.’s behaviour], it can be presumed that [K.A.] experienced psychological tension because of the acute conflict situation, but cognitive processes are impaired to such an extent in the event of such a [high] level of inebriation that it is not possible to diagnose them (because of the absence of such methodology, especially during a posthumous forensic psychological and psychiatric examination which is being carried out based on the case material). For those reasons ... it is not possible to accurately determine [K.A.’s] psychological condition, his behaviour and psychological condition were affected by the influence of alcohol ... [K.A.’s] actions were affected by the influence of alcohol and [Senior Lieutenant V.T.’s] actions in the given situation ...”
termination of the investigation
32. On 28 July 2012 investigator M.B. (see paragraph 11 above) decided to terminate the proceedings on the grounds that the persons who had committed offences, namely Private K.A. (murder of two or more persons) and Senior Lieutenant V.T. (aggravated abuse of authority), had died. Referring to witness statements and the results of the forensic medical, posthumous forensic psychiatric and psychological and other examinations, he found the following to have been established:
“... on 28 July 2010 at around 6 p.m. Senior Lieutenant V.T. ... kicked [A. Sargsyan] in the chest, then punched him in the temple and, having knocked him to the ground, started kicking him in various parts of the body. Military post senior [G.H.] tried to intervene and put an end to the beating. At that point ... [K.A.] picked up from the ground the ... loaded machine gun ... assigned to him and ... opened fire at Senior Lieutenant [V.T.] and conscripts [G.H., A. Sargsyan, R. Hovhannisyan and A.M.], killing them; he then changed the empty bullet magazine, entered the trench, put the barrel of the machine gun in his mouth and committed suicide by firing a single shot. Thus, Senior Lieutenant [V.T.] ... abused his power by beating up [A. Sargsyan] for a breach of military rules by the latter and [K.A.] and, having negligently caused grave consequences, committed an offence under Article 375 § 2 of the Criminal Code [aggravated abuse of authority] ... Private [K.A.] committed an offence under Article 104 § 2 (1) of the Criminal Code [aggravated murder] ... [K.A.’s] suicide was also connected to Senior Lieutenant [V.T.’s] actions. Taking into account that Senior Lieutenant [V.T.] and [K.A.] have died since committing the offences in question, it is not possible to prosecute them ...”
33. On 20 September 2012 investigator M.B. (see paragraph 11 above) sent a letter to the applicants’ representative about the decision of 28 July 2012 (see paragraph 32 above). The letter stated that the decision was enclosed. Since the enclosure was missing, the applicants’ representative requested it from investigator M.B. 34. On 16 October 2012 the applicants’ representative received a copy of the decision by hand.
the applicants’ appeals
35. On 19 October 2012 the applicants appealed against the decision of 28 July 2012 (see paragraph 32 above) to the Military Prosecutor, arguing that the investigation into the incident had been inadequate. In particular, although it had been established that the deceased servicemen had been intoxicated at the time of the events in question, the investigating authority had failed to clarify at what point and how they had consumed alcohol while on military duty and to find out how they had acquired it. No explanation had been given for the non-gunshot injuries present on A.M.’s body (see paragraph 27 above). Also, having established that Senior Lieutenant V.T. had possibly come into contact with a gun or had fired one (see paragraph 20 above), the investigating authority had failed to address the issue. Furthermore, it had been essential to clarify why K.A. had killed the other servicemen in a situation where he was believed to have fired at Senior Lieutenant V.T. on seeing him use violence against A. Sargsyan. Therefore, the investigation had failed to clarify K.A.’s motive for killing the other servicemen. The applicants also argued that the investigation had inadequately addressed the issue of the lawfulness of K.A.’s conscription in view of his criminal record and whether or not the disregarding of a court order prohibiting K.A. from having access to firearms had led to the tragic events of 28 July 2010. 36. By a decision of 26 October 2012 the Military Prosecutor dismissed the applicants’ appeal. 37. On 14 November 2012 the applicants disputed the decision to terminate the proceedings (see paragraph 32 above) before the Arabkir and Kanaker-Zeytun District Court of Yerevan (“the District Court”), raising similar arguments to those submitted before the Military Prosecutor (see paragraph 35 above). They also submitted that the investigating authority had failed to inform them of the termination of the criminal proceedings, send them the relevant decision and make the case material available to them. 38. In the course of the proceedings before the District Court, the applicants requested to be provided with the case material. That request was apparently granted. After studying the material, the applicants lodged a supplementary appeal. 39. On 8 January 2013 the District Court dismissed the applicants’ complaint, reiterating the findings set out in the decision of 28 July 2012 (see paragraph 32 above) and stating that their arguments essentially were not supported by the case material. 40. The applicants lodged an appeal, which was dismissed by the Criminal Court of Appeal on 20 February 2013. The court restated the relevant provisions of domestic law and stated that there were no grounds to set aside the District Court’s decision of 8 January 2013. 41. The applicants lodged an appeal on points of law. 42. By a decision of 18 April 2013 the Court of Cassation declared the applicants’ appeal on points of law inadmissible for lack of merit. That decision was served on the applicants’ representative on 23 April 2013. Available information concerning K.a.’s conscription and military service
43. In 1992, at the age of three, K.A. moved from Armenia to the United States with his mother. 44. In December 2006 he was convicted by a US court of several counts of burglary, possession of burglary tools and theft. He was found to be a repeat juvenile offender in view of his past convictions and was placed in the custody of the Division of Youth Corrections of the Colorado Department of Human Services for two years, with a mandatory minimum of one year. 45. In January 2008 K.A. was convicted of escape from custody following conviction for a felony. He was discharged from the Division of Youth Corrections in April 2008. 46. According to the applicants, a US court issued a protective order prohibiting K.A. from having access to weapons. The Government disputed that this was the case. According to the documents submitted by the applicants in support of their application, on K.A.’s first conviction in the United States for illegal possession of a weapon in 2002, when he was put on probation, the relevant decision stated that there were to be no weapons in the home. 47. In April 2009 K.A. was deported from the United States to Armenia because of his criminal record. Once in Armenia, he submitted documents to the military authorities concerning his previous convictions in the United States. 48. By a letter of 28 October 2009, the military commissar of the Arabkir District of Yerevan reported to the Ministry of Defence that K.A. had submitted documents concerning his criminal record in the United States and enquired whether he was subject to conscription. The head of the Ministry of Defence’s Legal Department responded, stating that K.A.’s personal file had been transferred to the Military Prosecutor, who considered him subject to conscription, in accordance with section 11(2) of the Conscription Act (see paragraph 55 below). Taking into account the opinion of the Military Prosecutor, it had been decided to draft K.A. into the army. 49. After being drafted into the army, K.A. was included in the list of servicemen of the military unit who required enhanced supervision in view of their past criminal conviction or punishment for a breach of military discipline. 50. According to K.A.’s personal file, he was unwavering, brave, optimistic and sociable. There are brief records of the topics of eleven conversations held with K.A. in the military unit between December 2009 and July 2010, including on whether he had any issues during service, problems adapting to service or any family issues, to all of which he replied negatively. RELEVANT LEGAL FRAMEWORK
relevant domestic law
Right to compensation
51. The relevant provisions of domestic law concerning compensation of damages, as in force at the material time, are set out in the Court’s judgment in the case of Mirzoyan v. Armenia (no. 57129/10, §§ 46-50, 23 May 2019). Code of Criminal Procedure (as in force at the material time)
52. Article 59 § 1 (9) of the Code of Criminal Procedure provided at the material time that a victim had the right to study and photocopy all the material in the case file and to retrieve any information from the case file upon the completion of the investigation. 53. Article 262 § 1 provided that a copy of the investigator’s decision to terminate the criminal proceedings and to discontinue prosecution would be sent to, inter alia, the suspect, the accused, the lawyer, as well as the victim and his or her representative. The above-mentioned persons would be informed of their right to study the case material and the procedure for lodging an appeal against the decision to terminate the criminal proceedings and to discontinue prosecution (Article 262 § 2). The above-mentioned persons had the right to study the material in the file concerning the terminated case, in accordance with the procedure set out in the Code (Article 262 § 3). 54. Article 263 § 1 provided that within seven days of receiving a copy, the suspect, the accused, the lawyer, the victim, his or her representative and the civil party could appeal against the decision to terminate the criminal proceedings or discontinue prosecution to the supervising prosecutor. Conscription Act of 16 September 1998 (no longer in force)
55. Section 11(2) of the Conscription Act provided that persons who were being investigated or on trial or who had previously been sentenced to imprisonment for committing a serious crime or at least twice for an intentional crime and had served their sentence in a detention facility for no less than three years, as well as those who had committed an offence specified in the list approved by the Ministry of Defence or the Prosecutor General’s Office, were not subject to conscription. Pursuant to the Conscription Act the Minister of Defence would define the procedure for conscription or registration in the reserve of persons who had previously been sentenced to imprisonment and had served a sentence of less than three years. THE LAW
ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
56. The applicants complained about the death of their sons during compulsory military service, and that the authorities had failed to carry out an effective investigation into the matter. They 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

57. The Government submitted that Armenia had no jurisdiction over the complaints raised by the applicants under the substantive limb of Article 2 since K.A., who had been responsible for the loss of the applicants’ sons’ lives, had been performing military service under the supervision of the “NKR” military authorities. They further submitted that the investigation into the incident of 28 July 2010 had been carried out by the Armenian authorities, and that the appeals against the investigator’s decision to terminate the criminal proceedings had been examined by the Armenian courts. There was therefore solid evidence that Armenia had jurisdiction over the complaint raised under the procedural limb of Article 2. The Government considered that Armenia’s jurisdiction in that regard should be acknowledged on the basis of the exception of “State agent authority and control”, as all the acts complained of had been attributable to the Armenian authorities. 58. The applicants submitted that since their sons had been undergoing compulsory military service, any matter in relation to that was within Armenia’s jurisdiction. 59. The Court notes that it has already examined in other cases the issue of Armenia’s jurisdiction over the territory in question and found that Armenia exercised effective control over Nagorno-Karabakh and the surrounding territories and that, therefore, complaints pertaining to events that happened in that area came within the jurisdiction of Armenia for the purposes of Article 1 of the Convention (see Chiragov and Others v. Armenia [GC], no. 13216/05, §§ 169-86, ECHR 2015; Muradyan v. Armenia, no. 11275/07, §§ 123-27, 24 November 2016 and Nana Muradyan v. Armenia, no. 69517/11, §§ 86-92, 5 April 2022, specifically concerning the deaths of conscripts during compulsory military service in Nagorno‑Karabakh; and compare Mirzoyan v. Armenia, no. 57129/10, § 56, 23 May 2019, concerning the murder of a conscript during compulsory military service in Nagorno-Karabakh). 60. In the present case, the applicants’ complaints about the death of their sons fall to be examined under both the substantive and procedural aspects of Article 2 of the Convention. In so far as their complaint under the substantive limb of Article 2 is concerned, the applicants complained that the State had failed to protect their sons’ right to life, referring firstly to the Armenian military authorities’ decision to draft K.A. into the army and secondly to the failure of the commanding officers of the military unit – situated in Nagorno-Karabakh and administered by that entity[1] – to take appropriate steps to safeguard their sons’ life during compulsory military service. At the same time, in so far as their complaint under the procedural limb of Article 2 is concerned, the applicants raised a number of arguments to contest the circumstances of the death of their sons as established during the domestic investigation carried out by the Armenian authorities. 61. In this context, the Court notes that in the recent case of Nana Muradyan (cited above), which also concerned the death of a conscript during compulsory military service in Nagorno-Karabakh and the ensuing investigation by the Armenian authorities, it found that the jurisdictional link between Armenia and the applicant’s deceased son should be established on the basis of its earlier finding in the Grand Chamber case of Chiragov and Others (cited above, §§ 169-86) that at the relevant time (that is, prior to the changes in the situation on the ground as a result of the Nagorno-Karabakh war, which ended on 10 November 2020, with Azerbaijan capturing all the surrounding territories and part of the “NKR” proper and with the deployment of Russian peacekeepers in the area for at least five years) Armenia exercised effective control over Nagorno-Karabakh and the surrounding territories and was under an obligation to secure in that area the rights and freedoms set out in the Convention (see Nana Muradyan, cited above, §§ 90-92, with further references). 62. The incident resulting in the death of the applicants’ sons took place on 28 July 2010 in a military unit situated in the “NKR” (see paragraphs 6 and 7 above). The Court finds no particular circumstances in the instant 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 that judgment and therefore considers that the jurisdictional link between Armenia and the applicants’ deceased sons in the present case should also be established on the grounds that Armenia exercised effective control over Nagorno-Karabakh and the surrounding territories at the material time. 63. For the aforementioned reasons, the Court concludes that there was a jurisdictional link for the purposes of Article 1 of the Convention between Armenia and the applicants’ deceased sons. Compliance with the six-month rule
64. The Government maintained that, in the event that the Court should find that Armenia had jurisdiction over the applicants’ complaint under the substantive limb of Article 2 of the Convention, the six-month period in relation to that complaint should be calculated from 10 August 2010, the date of the order of the Minister of Defence acknowledging discrepancies in the organisation of military duty which had led to the tragic events in question (see paragraph 21 above). At the same time, if the applicants believed that K.A. had been responsible for the breach of their sons’ right to life, the final domestic decision in that regard should be considered the decision of 28 July 2012 terminating the criminal proceedings on the grounds that the persons who had committed the relevant offences, that is K.A. and V.T., were no longer alive (see paragraph 32 above). The Government submitted in this connection that in their appeals before the domestic courts the applicants had not contested the authorities’ conclusion that their sons had been killed by K.A., but had rather raised issues concerning certain details in relation to the incident. 65. The applicants insisted that the final domestic decision was that of the Court of Cassation of 18 April 2013 declaring their appeal on points of law inadmissible (see paragraph 42 above). 66. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant, and, where the situation is a continuing one, once that situation ends (see, among other authorities, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 259, ECHR 2014 (extracts)). 67. The Government first argued that the six-month period in respect of the applicants’ complaint about the State’s alleged failure to protect A. Sargsyan’s and R. Hovhannisyan’s lives during compulsory military service should be calculated from 10 August 2010, the date on which the order of the Minister of Defence had been adopted imposing disciplinary measures following an internal investigation into the incident in question (see paragraph 21 above). The Court observes in this connection that it has recently examined in other cases, and in the light of similar arguments advanced by the Government, whether such orders issued by the Minister of Defence in cases involving fatalities in the army could be considered a “final decision” within the meaning of Article 35 § 1 of the Convention and concluded that they did not (see, in particular, Ashot Malkhasyan v. Armenia, no. 35814/14, §§ 69-71, 11 October 2022, and Hovhannisyan and Nazaryan v. Armenia, nos. 2169/12 and 29887/14, §§ 95-99, 8 November 2022). The Court has no particular reason to depart from that finding in the present case. 68. The Government then argued that, in the alternative, the six-month period in respect of the applicants’ complaint about the State’s alleged failure to protect their sons’ lives should be calculated from 28 July 2012, the date of the investigator’s decision to terminate the criminal proceedings on the grounds that the persons who had committed the relevant offences had died (see paragraph 32 above). The Court notes, however, that under domestic law the decision in question was amenable to appeal (see paragraph 54 above) a possibility which the applicants availed themselves of in order to raise their complaints concerning the effectiveness of the investigation (see paragraphs 35 and 40 above). Hence, there is no basis for the Court to find that the decision of 28 July 2012 constituted a “final decision” within the meaning of Article 35 § 1 of the Convention. 69. The Court has no reason to consider – nor has it been suggested by the Government – that the criminal proceedings regarding the circumstances of A. Sargsyan’s and R. Hovhannisyan’s death were an ineffective remedy in respect of the applicants’ complaints under Article 2 of the Convention. It observes in this connection that the final decision in those proceedings was served on the applicants on 23 April 2013 (see paragraph 42 above), and that the applicants lodged their application on 18 October 2013, that is, in compliance with the six-month rule. The Court therefore dismisses the Government’s objection as to the failure to comply with the six-month rule. Other grounds for inadmissibility
70. 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 applicants
71. The applicants submitted that the State had failed to protect their sons’ right to life during compulsory military service, in breach of Article 2 of the Convention. 72. Their sons, who had been under the exclusive control of the military authorities, had been killed by a conscript during compulsory military service. The authorities had initially failed to properly assess the risks associated with calling up K.A. for compulsory military service in view of his past criminal record in breach of domestic law and had then failed to protect their sons by ensuring proper military discipline in the military unit. According to the official version of events, the crime had occurred because of Senior Lieutenant V.T.’s violent behaviour on the one hand and the influence of alcohol on K.A.’s behaviour on the other, both of which were breaches of military discipline that had not been prevented or properly addressed by those in charge of the military unit. 73. The applicants maintained that a number of crucial circumstances surrounding the incident resulting in their sons’ death – including K.A.’s motive for killing his fellow servicemen, the circumstances surrounding the consumption of alcohol by the servicemen and the presence of non-gunshot injuries on A.M.’s body – had not been clarified either in the course of the investigation or in the court proceedings. 74. They argued that the investigation had not been independent since the Investigative Service was part of the structure of the Ministry of Defence. Investigator M.B., being subordinate to the Minister of Defence, could not have ignored the version of events set out in the latter’s order of 10 August 2010 (a copy of which had been served on him) by following a different line of inquiry into the incident within the scope of the criminal investigation. 75. The applicants had not been granted access to the file either during the investigation or following its completion. They had only been given an opportunity to study the case material through the intervention of the District Court after they had contested M.B.’s decision to terminate the criminal proceedings. (b)   The Government
76. The Government maintained that K.A.’s drafting into the army had been in compliance with the requirements of domestic law, namely the Conscription Act in force at the material time. In particular, K.A. had not served his sentence in a detention facility for more than three years so, as eventually decided by the authorities, he had been subject to mandatory conscription. They stated that during his military service, personal conversations had been held between him and the command staff of the military unit – eleven times according to the notes in his personal file. He had been described positively as a highly disciplined serviceman who had friendly relations with his fellow conscripts. It could therefore never be assumed that he would kill his fellow servicemen. 77. The Government submitted that the investigation had been independent and impartial. The Investigative Service of the Ministry of Defence was an entity separate from its staff. There was therefore no hierarchical or institutional interconnection between the Investigative Service and the members of the armed forces. In addition, the Investigative Service had been created and its functioning could be terminated by the Government, while the head of the Investigative Service was appointed and dismissed by the President of the Republic of Armenia. 78. Referring to the fact that the applicants had been provided with the decisions to commission forensic expert opinions, informed of their rights and represented by a lawyer in the domestic proceedings, the Government maintained that the applicants had been provided with all legal and practical opportunities to effectively participate in the investigation. 79. The Government argued that the investigation had been prompt and adequate. They gave the following response to the applicants’ specific complaints. 80. As regards the issue of consumption of alcohol by the servicemen, the Government stated that during an additional examination of the scene, an empty vodka bottle and beer bottle had been found. In that connection, they submitted the report of that additional examination (carried out on 27 September 2010), according to which an empty beer bottle had been found in the rubbish next to the toilet of post no. 147 of the military unit and an empty vodka bottle had been found among other rubbish thrown in a ditch between post nos. 146 and 147. 81. As to the non-gunshot injuries on A.M.’s body, namely abrasions in the left corner of the mouth, back, upper limbs and bruises on the chest, according to autopsy report no. 36 (see paragraph 27 above) they had been sustained immediately before the death during the “agonal period” and did not have any causal link to the death. Moreover, the investigation had not revealed any evidence of A.M. having those injuries while alive. 82. As to K.A.’s alleged motives for killing his fellow servicemen, the Government relied on the conclusion of the posthumous forensic psychological and psychiatric examination, according to which K.A.’s actions had been affected by the consumption of alcohol and Senior Lieutenant V.T.’s actions. 83. Lastly, the Government pointed out that the applicants had never requested any specific investigative measures to be carried out in order to address the discrepancies which, in their opinion, had undermined the effectiveness of the investigation.

Outcome for Article 2: violation