FIFTH SECTION
CASE OF HAKOBYAN v. GEORGIA
(Application no. 64300/16)
 
 
 
 
JUDGMENT
 
 
STRASBOURG
23 March 2023
 
 
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Hakobyan v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
 Carlo Ranzoni, President,
 Lado Chanturia,
 María Elósegui, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 64300/16) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 October 2016 by a Russian national, Mr Myasnik Hakobyan (“the applicant”), who was born in 1935 and lives in Yerevan and who was represented by Ms H. Grigoryan, a lawyer practising in Yerevan;
the decision to give notice of the complaints under Articles 2 and 13 of the Convention to the Georgian Government (“the Government”), represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 2 March 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The present application concerns the alleged failure of the authorities to carry out an effective criminal investigation into the death of the applicant’s son, in alleged breach of Articles 2 and 13 of the Convention. 2. On 26 July 2015 the dead body of S.H., the applicant’s son, was discovered in a village. A criminal investigation into the suspected murder was opened on the same day and a number of investigative measures were carried out. Individuals who had spotted a car belonging to S.H. near the crime scene and a witness who had seen some individuals fleeing were questioned. Biological and other material was collected for expert examination. 3. On 30 July 2015 three individuals were charged with failure to report the preparation and commission of S.H.’s murder by a certain V.H., who, according to the case material, had come to Georgia for the purpose of killing S.H., and had left immediately afterwards and settled in Russia. The criminal investigation in respect of those three individuals in relation to the offence of failing to report a crime was conducted separately from the one concerning the suspected murder of the applicant’s son. 4. Numerous expert and other examinations were implemented in 2015 and 2016 as part of the criminal investigation into the suspected murder. Multiple witnesses were questioned. 5. On 5 January 2016 a prosecutor granted the applicant the procedural status of a victim in relation to the investigation. He was given an explanation of the relevant procedural rights. 6. On 9 March 2016 a prosecutor supervising the activities of the regional prosecuting authorities examined the applicant’s complaint with respect to the alleged ineffectiveness of the criminal investigation into the murder and instructed the regional authorities to question the applicant and A.B., the victim’s wife, a further time. It was noted that the investigation was to determine the identity of the owner of a woman’s bag seized from the victim’s car and certain other matters relating to the case. A.B., who was based in Armenia at the time, visited Georgia on several occasions in 2017 but, despite the prosecutor’s telephone request, she did not report to the authorities for questioning. 7. On 7 April 2016 the Akhaltsikhe District Court, in public proceedings attended by the applicant, acquitted the three individuals of the charge relating to failure to report a crime. The trial court noted as follows:
“[I]n the instant case the document containing the charges indicates that the [three individuals charged with the offence of failure to report a crime] were made aware of a planned murder and its commission and failed to notify the law-enforcement authority, but it is unclear [from the document in question] when, by whom, and generally in what way they became aware that the murder had been under way. From an analysis of the evidence available in the case file, in particular the record of the questioning of A.I. [one of the individuals charged] and the investigative experiment (verifying his statement on the ground) we can assume that the charges imply that the accused directly participated in the planning of the offence, obtained the weapon and gave it to the person who committed the offence, indicated the victim’s whereabouts, helped him acquire the car which he had needed to move around to commit the crime, and bought the mobile phone SIM cards. These circumstances indicate the [possibility] that the actions of the persons charged with an offence [of failing to report a crime] were criminal in nature. The [prosecution] has not assessed whether the [three individuals concerned] have been charged with failure to report a crime in respect of which their reporting would have resulted in the initiation of criminal proceedings against them for aiding in the commission of a crime. Accordingly, in addition to the fact that the prosecution has not presented any evidence proving the possession of information regarding the preparation of a crime ..., the individuals are charged in such a manner (as is evident from the case material) that it is impossible to convict them. It would be unlawful to convict a person for failing to report a crime which that person had [possibly] committed himself or herself. Accordingly, the charge is unsubstantiated and is based only on assumptions, without the existence of a body of evidence proving guilt.”
8. On 31 January 2017 the Kutaisi Court of Appeal agreed with the trial court’s reasoning and findings. It appears from the case file and the parties’ submissions that the Supreme Court upheld the lower courts’ findings. 9. On 2 June 2017 the Chief Prosecutor’s Office (“the CPO”) sent a legal assistance request to the relevant Russian authorities. It noted that the domestic authorities had sufficient information to believe that V.H. – who had crossed from Georgia into Russia – had been behind S.H.’s murder. The CPO therefore asked its Russian counterparts to locate V.H. and to question him as a witness. A similar request was sent to the Armenian authorities in respect of another witness. 10. On 17 August 2017 the investigator summoned the three acquitted individuals for additional questioning. They did not appear. 11. On several occasions in 2017 the investigator tried to contact a taxi driver who had helped two Armenian men allegedly implicated in the murder of S.H. to buy the car used in the murder, with a view to summoning him for questioning and participation in the identification parade, but his phone was turned off. 12. On 25 January 2018 the Prosecutor General’s Office of the Russian Federation responded to the CPO, noting that it had been unable to determine V.H.’s address. However, it had questioned a certain S.G., who had explained that V.H. had been living in Moscow since April 2017 but was unaware of V.H.’s address or contact information. 13. It appears from information provided by the Government that between February 2018 and July 2022 various investigative measures were implemented. Among other things, in January 2022 the authorities sent a legal assistance request to their Armenian, Russian and Greek counterparts seeking the identification of certain witnesses and potential suspects. Genetic material was also forwarded for identification and comparison with the international DNA database. The respective authorities were unable to locate the individuals concerned and the genetic material submitted by the authorities could not be identified. On 14 April 2022 two photographic identification procedures took place with the participation of a taxi driver (who had been questioned on 29 July 2015 and had stated that he had transported two individuals potentially linked to the murder). The taxi driver could not identify the individuals presented to him as the persons who had ridden in his taxi. 14. The criminal investigation is ongoing. 15. The applicant complained under Article 2 and Article 13 of the Convention that the criminal investigation into the murder of his son had been ineffective.

Outcome for Article 2: violation