Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo

The applicant was born in 1956 and lives in Baghramyan village.

On 26 June 2001 Suren Muradyan was drafted into the Armenian army and assigned to military unit no. 59703 of the Nagorno Karabakh Armed Forces (hereafter, the military unit) situated in the unrecognised Nagorno Karabakh Republic (hereafter, Nagorno Karabakh). During his service he also participated in the activities of the music squad as a trumpet player.

From 24 or 25 July 2002 Suren Muradyan started to feel unwell. His temperature occasionally rose to 40oC, he shivered and had headaches, and suffered from nausea and loss of appetite.

It appears that on the next day Suren Muradyan, who remained in the barracks throughout this period, was visited by the head of the military unit’s medical service, A.H. (hereafter, military unit doctor A.H.). The outcome of this visit is unclear. It further appears that on 27 July 2002, when Suren Muradyan’s condition worsened, his fellow servicemen once again called A.H., who at the time was at the aid post. He refused to visit, telling them that Suren Muradyan should come to the aid post himself.

It further appears that later Suren Muradyan was visited by the head of the military unit’s aid post, S.G. (hereafter, military unit doctor S.G.), who apparently administered anti-fever pills and gave some injections. Suren Muradyan was apparently diagnosed as having “acute respiratory illness”.

Throughout this entire period only two entries were made in Suren Muradyan’s personal medical file kept at the military unit’s aid post, on 29 July and 1 August 2002, according to which Suren Muradyan was suffering from general asthenia, loss of appetite, body aches, muscle pain and high fever. Anti-fever medicine was prescribed, such as analgin and paracetamol.

On 3 August 2002 at 6.30 p.m. Suren Muradyan, whose condition had deteriorated, was taken to the military hospital of Mekhakavan (Nagorno Karabakh) by military unit doctor S.G. At the time of admission Suren Muradyan complained of general asthenia, nausea, fever and shivering. As a preliminary diagnosis “malaria” was indicated. The acting head of the infection unit of the hospital, I.M. (hereafter, hospital doctor I.M.), was assigned as his doctor in charge.

At 6.45 p.m. Suren Muradyan underwent a preliminary examination. His temperature was 38.5oC and his general condition was considered to be of medium gravity. He believed himself to have been ill for the past week with periodic rises of temperature and shivering fits. His lungs were checked and abdomen palpated. Upon palpation, the left side of his abdomen caused him pain, while the right side caused only light pain. In conclusion it was noted that Suren Muradyan was to undergo close observation of his temperature and a parasitological examination, taking into account that he was serving in a malaria hotbed and had preliminary clinical signs of malaria. Anti-fever medicine and vitamins were prescribed and he was put on a drip.

On 4 August 2002 at 11 a.m. Suren Muradyan’s general condition was considered relatively satisfactory and his temperature was 37.2oC. He had no shivering fits.

At 3.30 p.m. Suren Muradyan started shivering and his temperature rose to 39.8oC. A general blood test and a parasitological examination were assigned, and a blood sample was taken for examination.

At 7.40 p.m. Suren Muradyan’s condition worsened. He was conscious and agitated. He vomited, complained of nausea and abdominal pains and was pale and breathing heavily. According to the medical orderly, Suren Muradyan fell down after returning from the lavatory. While being examined, he lost consciousness and his pulse disappeared. A resuscitation specialist was urgently called.

At 7.45 p.m. the resuscitation specialist registered Suren Muradyan’s clinical death and started resuscitation therapy.

At 9.15 p.m., after the resuscitation therapy proved ineffective, Suren Muradyan’s biological death was registered. According to the results of the parasitological test, which became known on the same day, no trace of malaria was discovered in Suren Muradyan’s blood sample.

On 5 August 2002 investigator G. of the Hadrut Garrison Military Prosecutor’s Office of Nagorno Karabakh ordered a post-mortem examination of Suren Muradyan’s body to be conducted by a forensic medical expert in Yerevan, Armenia. The expert was asked to determine the time and cause of death, the existence of any external injuries, their nature, method of infliction and possible link with the death. The abovementioned blood sample was also presented to the expert for a malaria test.

On the same day the investigator conducted an external examination of Suren Muradyan’s body. He then took a statement from a senior nurse from the hospital reception who submitted that Suren Muradyan, upon his arrival at the hospital, was feeling so unwell that he could hardly speak and asked to lie down. After he told hospital doctor I.M. that he had been feeling this way for the last eight days, I.M. angrily asked military unit doctor S.G., who had accompanied Suren Muradyan to the hospital, why he had been brought to the hospital so belatedly. The nurse further confirmed that Suren Muradyan had been brought to the hospital with suspected malaria.

On 6 August 2002 forensic medical expert M.B. started the postmortem examination, including an autopsy, of Suren Muradyan’s body and on the same day sent a telegram to investigator G., saying that Suren Muradyan had died as a result of acute internal bleeding caused by a ruptured spleen resulting from an internal blunt injury to the left side of the abdomen involving old and new bruises.

On the same day the investigator decided, taking into account that Suren Muradyan had been subjected to ill-treatment, to institute criminal proceedings no. 91204602 under Article 105 § 2 of the old Criminal Code of Armenia (intentional infliction of grave bodily harm resulting in the victim’s death).

On 7 August 2002 at least six servicemen of the military unit were questioned as witnesses. According to their statements, on 21 July 2002 a group of servicemen of the military unit, including Suren Muradyan, had been taken to the town of Martuni (Nagorno Karabakh) in order to participate in a comedy contest organised between teams from different military units. The group was accompanied by lieutenant V.G. and captain D.H. (hereafter, officers V.G. and D.H.). After the contest, the servicemen had been taken to a post office, outside which an argument had erupted between officers V.G. and D.H. on one side and Suren Muradyan on the other. Officer V.G. claimed that a watch that Suren Muradyan was wearing belonged to him and had been lost some days before, during a table tennis match. Officers V.G. and D.H. had both started swearing at Suren Muradyan. Officer V.G. had then grabbed Suren Muradyan’s hand and removed the watch. Suren Muradyan had explained that he had borrowed the watch from a fellow serviceman, whose name he did not know, to wear at the comedy contest. Officers V.G. and D.H. did not believe him and gave him a deadline to reveal the identity of that person. They further claimed that a second watch had been lost and ordered Suren Muradyan to find and bring it within the same deadline. Officer D.H. had threatened that, if he failed to do so, he would get into trouble. After the incident the group had walked to the bus to return to the military unit. Suren Muradyan and officers V.G. and D.H. had walked apart, calmly discussing something.

In reply to the investigator’s question, the servicemen stated that neither V.G. nor D.H. had hit Suren Muradyan during the argument. They further stated that they had heard later from Suren Muradyan that during the following days he had been taken on several occasions by officers V.G. and D.H. to the office of lieutenant colonel K.Z., the acting commander of the military unit, who was also its deputy commander (hereafter, officer K.Z.). There he had been given a deadline to comply with their demands. Officer K.Z. had threatened that, if he failed to do so, he would get into trouble and would be punished. From 24-25 July 2002 Suren Muradyan had started to feel unwell and stayed in bed. A couple of times he had been visited by military unit doctors A.H. and S.G. On 2 August a group of servicemen of the military unit had travelled to the town of Stepanakert (Nagorno Karabakh) to participate in another round of the contest. Suren Muradyan had gone along but could not participate as he felt very unwell. The group had returned to the military unit from Stepanakert late at night and on the following day Suren Muradyan had been taken to hospital.

In reply to the investigator’s question, the servicemen stated that they were unaware if Suren Muradyan had been beaten or had been involved in a fight.

On the same date two other servicemen of the military unit, K.E. and G.M., were questioned. Serviceman K.E. stated that he had been present during the table tennis match in question, while serviceman G.M. stated that he was the person who had lent the watch to Suren Muradyan. On 23 or 24 July 2002 (according to serviceman G.M.) or 25 July 2002 (according to serviceman K.E.) all three of them had been taken several times by officers V.G. and D.H. to officer K.Z.’s office in the headquarters, where they were asked about the watches. There they had been given a deadline until 6 p.m. to find and bring the second watch. When they had returned at 6 p.m., Suren Muradyan and serviceman K.E. had been ordered to enter first, while serviceman G.M. had entered after they went out. According to serviceman G.M., they had been given two more days, while according to serviceman K.E., they had been given until Saturday (27 July) morning to find the second watch. Serviceman K.E. further stated that on 27 July he had been temporarily transferred to a different location for works and was no longer involved in this story. He added that when he and Suren Muradyan had been together in the office nobody had touched them.

On 9 and 10 August 2002 respectively the investigator took statements from officers D.H. and V.G. in their capacity of witnesses, who recounted the events that had taken place on 21 July 2002 in Martuni, including the argument between them and Suren Muradyan near the post office. Officer V.G. stated, inter alia, that Suren Muradyan had voluntarily removed and handed the watch to him. Officer D.H. stated, inter alia, that he had met Suren Muradyan on the next morning in front of the headquarters and had given him a three-day deadline to find and bring the second watch. Both officers further stated that following the expiry of the three-day deadline they had taken Suren Muradyan and serviceman K.E. to the office of officer K.Z. who had had a talk with them in private.

No questions were posed by the investigator to officer D.H., while officer V.G. was asked several questions about the argument of 21 July 2002. Officer V.G. admitted swearing at Suren Muradyan, as well as briefly shaking and pulling on his hand, but denied hitting him and could not remember whether he or officer D.H. had slapped him.

On 11 August 2002 the investigator questioned officer D.H. as a witness, posing a number of questions about the argument of 21 July 2002. The investigator further asked for information on the follow-up meetings, to which officer D.H. confirmed his earlier statement, adding that he had not heard any noise coming from officer K.Z.’s office while waiting outside.

On the same date serviceman K.E. was questioned again. He added to his previous statement that officer K.Z. had sworn at them but had not hit them, when he and Suren Muradyan were in his office.

On 12 August 2002 officers D.H. and V.G. were questioned again and asked further questions about the argument of 21 July 2002. Officer D.H. was further asked, inter alia, whether he had had personal motives in summoning Suren Muradyan so often to the headquarters, as well as why no entry had been made in Suren Muradyan’s medical file until 3 August 2002, if he had asked for medical help already on 25 July 2002.

On 17 August 2002 the investigator took a statement from officer K.Z. in his capacity as a witness. Officer K.Z. confirmed that he had summoned Suren Muradyan and serviceman K.E. to his office for a talk in connection with the lost watches. During their talk Suren Muradyan had been allowed to go and fetch serviceman G.M. He had then had a talk with all three of them, releasing G.M. first and ordering the other two to find and bring the second watch. Officer K.Z. further stated that on 29 July 2002 he had again summoned Suren Muradyan and serviceman K.E. but the latter had come alone since Suren Muradyan was unwell. He had then ordered serviceman K.E. to fetch Suren Muradyan. When the latter came, he had asked what was wrong with him and why he was staying in the barracks, to which Suren Muradyan had replied that he had a fever and was taking treatment prescribed by the doctor. He had then given them one week to find the second watch.

The investigator posed two questions to officer K.Z.: (a) whether he had beaten, slapped or sworn at Suren Muradyan or serviceman K.E. when they were in his office, which officer K.Z. denied, and (b) whether he was alone when he met with them, to which officer K.Z. replied that he had met them only in his office.

On 2 September 2002 the applicant was granted victim status.

On 11 September 2002 the post-mortem examination was completed and its results were sent to the Hadrut Garrison Military Prosecutor’s Office. The relevant parts of forensic medical expert M.B.’s conclusions read as follows:

“External examination of the corpse. ... Injuries: There is an abrasion measuring 0.8 x 0.6 cm on the right side of the forehead, which is located lower than the surrounding skin and has a dark red surface. ...

Internal examination of the corpse. ... In the thickness of the muscles in the area of the left side of the abdomen, in the projection of the spleen, bruising measuring 10 x 9 cm was discovered...

The blood sample taken from Suren Muradyan at the hospital was sent to the Ministry of Defence of Armenia and the National Security Service of Armenia for a bacteriological examination...

The following reply, dated 21 August 2002, was received from military unit no. 74252 of the Ministry of Defence of Armenia on 28 August 2002 ... ‘three-day-old malaria agents ... were found as a result of a bacteriological examination under a microscope slide of Suren Muradyan’s blood smear taken at the hospital’. According to the results of the forensic histological examination ... dated 11 September 2002 ... ‘Forensic histological conclusion: ... old and new bruises to soft tissues in the area of the left side of the abdomen; internal bruising of the spleen’.

Forensic medical diagnosis. A closed blunt injury to the abdomen, old and new bruises to soft tissues and muscles in the area of the left side of the abdomen, enlarged spleen..., spleen rupture and bruising, ... Acute internal bleeding. Malaria. An abrasion on the right side of the forehead...

Conclusions.

Suren Muradyan’s death was caused by acute internal bleeding resulting from the rupture of the deformed and enlarged spleen, accompanied by a closed and diffuse abdominal injury and by old and new bruises in the area of the left side of the abdomen.

The following injuries were identified as a result of the forensic medical examination of Suren Muradyan’s corpse: old and new bruises to soft tissues and muscles in the area of the left side of the abdomen, spleen rupture and bruising ... [and] an abrasion on the right side of the forehead. ... Of the above-mentioned bodily injuries the old and new bruises to soft tissues and muscles in the area of the left side of the abdomen [and] spleen rupture and bruising ... were inflicted by blunt objects or tools having a limited surface; judging by the nature of the old and new bruises to soft tissues and muscles in the area of the left side of the abdomen it can be said that the old bruises are more than about 8-10 days old, while the new bruising is about 1-2 days old. The closed and diffuse abdominal injury accompanied by spleen rupture and acute internal bleeding is considered a grave bodily injury posing threat to life and has a direct causal link with [Suren Muradyan’s] death. The abrasion on the right side of the forehead was inflicted while alive by a blunt object having a limited surface and is considered a minor bodily injury...

As indicated above, the death occurred more than 8-10 days after the infliction of the main injuries (the above-mentioned old bruising in the area of the left side of the abdomen, in all probability accompanied by an initial sub-capsular rupture of the spleen and absorbent haemorrhage). As regards the abrasion on the right side of the forehead and the new bruise, these were inflicted 1-2 days before death.

It follows from the reply received from Laboratory no. 3 of the Ministry of Defence of Armenia that three-day-old malaria agents were discovered in the blood sample [taken from Suren Muradyan at the military hospital].

... A. Suren Muradyan’s spleen was enlarged and deformed as a result of malaria.

B. C. As indicated above, the initial closed and blunt abdominal injury, accompanied by the old bruising in the area of the left side of the abdomen, in all probability led to the sub-capsular rupture of the spleen with concentration of blood, which is also indirectly evidenced by the absorbent haemorrhage in the spleen disclosed by the forensic histological examination; the spleen capsule erupted as a result of the increase in concentration of blood in the following days, which led to acute bleeding. This process may last days but it is impossible to determine the exact number of days.

D. It appears from the medical file that on 4 August 2002 at 7.40 p.m. Suren Muradyan fell down in the hospital’s lavatory; taking into account the abovementioned circumstances concerning the spleen rupture and acute internal bleeding, the spleen rupture could not have been caused by the fall in the hospital’s lavatory.”

On 12 September 2002 officers V.G. and D.H. were arrested under Article 251 of the old Criminal Code of Armenia (insult of a subordinate by a violent act by a superior).

On 13 September 2002 they were charged under the same Article and were detained. This decision stated that on 21 July 2002 at around 6.30 p.m. near Martuni post office, officers V.G. and D.H., being public officials and suspecting Suren Muradyan of theft, instead of applying disciplinary sanctions, attacked him in front of about fifteen servicemen by swearing at him, thereby humiliating him. It further stated that officer V.G., having pulled at Suren Muradyan, caused him physical pain.

On 14 September 2002 officers V.G. and D.H. were questioned as suspects and both confirmed that on 21 July 2002 they had pulled and sworn at Suren Muradyan near the Martuni post office. They were asked questions about the swear words used.

On 25 September 2002 investigator G. decided to assign a panel forensic medical examination in order to determine the scope of responsibility of the military unit and the hospital doctors for Suren Muradyan’s death, including the timeliness and accuracy of the diagnosis and the treatment provided, the timeliness of his transfer to hospital and whether they could have detected the injuries revealed by the post-mortem examination. This decision stated, inter alia, that on 21 July 2002 Suren Muradyan had had an argument with two officers of the military unit, V.G. and D.H., after which, starting from 24 July, his health had deteriorated.

On 6 October 2002 a serviceman of the military unit’s music squad was questioned. He stated that Suren Muradyan had had no arguments or scuffles with anybody. On the way back from Martuni, Suren Muradyan had told him that he had got into trouble because of this watch and that “now they would frame him”. However, Suren Muradyan had never told him or others that he had been ill-treated, even in reply to a direct question following his visit to officer K.Z.’s office. The serviceman confirmed that Suren Muradyan had started to feel unwell from 24 July 2002. He further stated that he and others had wiped sweat from Suren Muradyan’s forehead, belly, back and legs during his illness but had not noticed any traces of injuries. On the second day of his illness, military unit doctor A.H. had come to visit him and concluded that he had caught cold. Several days later military unit doctor S.G. had come, said that Suren Muradyan had flu and given him some pills. On the last days Suren Muradyan had been very ill: he had lost a lot of weight and staggered when walking, so they had to accompany him to the toilets.

On 6 November 2002 the experts conducting the panel forensic medical examination produced their opinion. According to its conclusions, it had been possible for the doctors of the military unit not to discover the injuries which led to Suren Muradyan’s death since there were no visible traces of injuries on the surface of the skin. The enlarged spleen might have been caused by malaria and the injury sustained by Suren Muradyan might have brought about the sub-capsular bleeding which later led to a ruptured spleen and acute internal bleeding. Referring to the fact that no malaria agents were discovered in Suren Muradyan’s blood sample by the parasitological examination of 4 August 2002, the experts attributed this to the fact that agents could be detected at the stage of the disease when the sick person experiences shivering and fever accompanied by high temperature. The opinion lastly stated that, given that no malaria agents had been discovered, not specific but symptomatic treatment had to be prescribed, and in fact had been provided in full.

On 7 November 2002 serviceman G.M. was questioned again and stated that both Suren Muradyan and serviceman K.E. had denied having been beaten or sworn at during their first visit to officer K.Z.’s office. When he and Suren Muradyan visited the office the next morning, officer K.Z. had said to him “Why did you enter? You go out, you have received your punishment”. In reply to the investigator’s question, serviceman G.M. stated that he had not noticed any bruises or signs of pain on Suren Muradyan when he came out of the office five minutes later. He could not say what officer K.Z. meant by his statement and whether it meant that now it was Suren Muradyan’s turn to be punished.

On 2 December 2002 the applicant lodged a complaint with the Military Prosecutor of Armenia, arguing in detail that his son had died as a result of a beating by officers V.G., D.H., K.Z. and another officer, B., as well as the failure of the doctors of the military unit, S.G. and A.H., to provide medical assistance. He claimed that serviceman G.M. had admitted during questioning, in his presence, that he had been badly ill-treated by officer K.Z. in his office. Suren Muradyan had been next to enter that office, alone, and the following morning he had been so unwell in bed that he was not able to return to officer K.Z.’s office. The applicant alleged that the beating which resulted in Suren Muradyan’s ruptured spleen and subsequent death had taken place at that moment. He further claimed that the doctors had intentionally refused to provide medical assistance and to transfer Suren Muradyan to hospital in order to cover up the abuse. The applicant requested the Military Prosecutor to identify those responsible for his son’s death.

On 10 December 2002 investigator G. decided to order an additional forensic medical examination. In addition to the questions asked earlier, the experts were requested to determine whether the military unit and the hospital doctors could have detected the spleen enlargement and what they were supposed to do if it had been detected, as well as whether Suren Muradyan’s spleen could have ruptured earlier and been followed by slow bleeding.

On 11 December 2002 the forensic medical experts produced an additional opinion. According to its conclusions, since on 29 July 2002 Suren Muradyan had not complained of abdominal pains, the doctors of the military unit had no reason to suspect malaria and diagnosed his condition as an acute respiratory illness. The opinion further stated that usually a doctor was obliged to deliver a diagnosis after having carefully examined the patient. Suren Muradyan’s medical file contained his complaints but no indication of results of any such examination. If on 29 July 2002 Suren Muradyan’s spleen had already been enlarged, it would have been possible to detect this through palpation and to transfer him to hospital. The same was possible at the hospital. As regards the sub-capsular rupture of the spleen, it was almost impossible to detect. Had the spleen rupture been detected and the spleen removed by surgery, Suren Muradyan’s life could have been saved. Lastly, the injuries discovered by the post-mortem examination were not detected by the doctors since there were no visible traces of injuries on the outer part of the skin.

On 15 December 2002 a serviceman, K.B., who had been undergoing treatment at the hospital when Suren Muradyan was admitted, was questioned. He stated that he had become acquainted with Suren Muradyan upon the latter’s admission to hospital. Suren Muradyan had looked very ill and told him that he had spent the last eight days in the barracks. K.B. further stated that he had not noticed any bruises on Suren Muradyan’s forehead or any fights or arguments during his two-day stay in hospital.

On 4 February 2003 the criminal case against officers V.G. and D.H. concerning the charges of insult was disjoined from the main criminal proceedings concerning Suren Muradyan’s death since there was no causal link between the two. A new number was assigned to the disjoined case (no. 91200703).

During the investigation a number of other unrelated offences committed by officers V.G. and D.H. were revealed. As regards, in particular, officer D.H., the investigation revealed that in April 2002 he had kicked a soldier for sleeping on watch duty and broken the soldier’s arm. Officer D.H. was charged with inflicting bodily injuries.

On 28 February 2003 the bill of indictment concerning the disjoined case was submitted to the Syunik Regional Court.

By a letter of 19 March 2003 the Minister of Defence of Nagorno Karabakh filed a motion with the Syunik Regional Court requesting that a non-custodial sentence be imposed on officer D.H. and that he stay under the control of the military unit command, taking into account his long and diligent service in the armed forces, the report/request of the command of formation no. 42009 and the fact that he regretted his actions and that his actions posed no danger to society.

On 12 April 2003 forensic medical expert M.B. was questioned. He confirmed that Suren Muradyan had already been ill with malaria when he sustained the old bruises in the area of the left side of the abdomen. He stated that the fact that Suren Muradyan was ill might have accelerated the transformation of the sub-capsular rupture into a full rupture and internal bleeding. However, even a healthy spleen could suffer a sub-capsular rupture from a blow, later leading to a full rupture. The transformation of the sub-capsular rupture into full rupture could happen with or without external influence. The expert lastly confirmed that the new bruises found on Suren Muradyan’s body and the abrasion to the left side of his forehead could have been caused by his falling on the hospital floor not long before his death.

On 18 April 2003 serviceman G.M. was questioned again and confirmed that no sound of blows or other loud noise could be heard when he had waited for Suren Muradyan outside the office. Later he had heard rumours that Suren Muradyan had been beaten by officers V.G. and D.H. Serviceman G.M. further explained that he had inquired with Suren Muradyan and serviceman K.E. whether they had been beaten, because officer K.Z. had hit him a few times while in the office. He lastly requested that no criminal proceedings be brought against officer K.Z. because he had hit him just two or three times on his buttocks.

On 24 April 2003 the applicant contacted the investigating authority, willing to provide additional information. On the next day he was questioned and stated that in October-November 2002 he had heard from a former colleague of his, who in mid-August 2002 had visited a relative serving in the same military unit, that he had heard one of the officers saying that a serviceman matching Suren Muradyan’s description had recently died as a result of a beating by officer V.G.

On 26 April 2003 both the former colleague and his relative serving in the military unit were questioned and confirmed this information but could not remember the name of the officer in question. On 4 October 2003 the former colleague’s relative was once again questioned and stated that the officer’s name was V.M.

On 27 April 2003 several more persons were questioned, including military unit doctors S.G. and A.H., hospital doctor I.M., and an orderly of the hospital, H.G.

Military unit doctor S.G. stated, inter alia, that a few months before, during a conversation with serviceman G.M., he had asked the latter to confirm the rumours that Suren Muradyan had been beaten by officers V.G. and D.H., to which serviceman G.M. replied that he was not aware of that. S.G. was further asked questions regarding the medical assistance provided to Suren Muradyan at the military unit.

Military unit doctor A.H. claimed that he had also examined Suren Muradyan once, including palpating his abdomen, but no abnormalities were found or bruises and injuries revealed. He was further asked to explain as to why he had refused to visit Suren Muradyan after being called by the latter’s fellow serviceman.

Hospital doctor I.M. stated that it was he who had initially diagnosed Suren Muradyan as having malaria, because of the symptoms and the fact that he was serving in a malaria hotbed. Suren Muradyan had not told him, except on the day he died, that he had been beaten or that he had fallen, and since there were no symptoms he did not put such questions to the patient. However, on the last day, when he rushed to provide medical aid to Suren Muradyan, the latter, when asked what had happened, told him “I have pain in my belly, I feel very ill, I fell not long ago in the ward”.

Hospital orderly H.G. stated that on 4 August 2002 at 7 p.m. Suren Muradyan had told him that shortly before he had felt giddy and fallen down. About half an hour later he had called a doctor because Suren Muradyan’s condition had worsened and then, after Suren Muradyan lost consciousness, he summoned the resuscitation specialist, who came and started resuscitation procedures.

On an unspecified date the court proceedings into the disjoined criminal case against officers V.G. and D.H. on account of insult commenced at the Syunik Regional Court of Armenia, sitting in Stepanakert (Nagorno Karabakh). It appears that officer V.G. pleaded guilty and admitted that he had sworn at and pushed Suren Muradyan and pulled the watch off his wrist, but said that he had not hit him.

On 5 May 2003 the Syunik Regional Court found officers V.G. and D.H. guilty as charged and sentenced them to one year’s imprisonment.

On 2 June 2003 officer V.G. was released on parole.

On 10 July 2003 the investigation into Suren Muradyan’s death (criminal case no. 91204602) was taken over by the Military Prosecutor’s Office of Armenia and assigned to investigator H.

On 12 September 2003 the applicant lodged a complaint with the Military Prosecutor’s Office of Armenia, claiming that the investigation was flawed and had failed to reveal those responsible for his son’s death, despite the fact that there was sufficient evidence that he had died as a result of illtreatment by the three officers, V.G., D.H. and K.Z.

On 1 October 2003 military unit doctor A.H. was questioned again and confirmed his earlier statement (see paragraph 52 above).

On 6 October 2003 serviceman G.M. was questioned again and added to his previous statements that on the day of their first visit to officer K.Z.’s office, K.Z. had hit him two or three times with a wooden pole on his buttocks when he was alone in his office.

On 11 November 2003 a confrontation was held between serviceman K.E. and another serviceman, during which K.E. stated that on the day of their first visit to officer K.Z.’s office they had also gone to officer D.H.’s office where the latter had started screaming at them because of the stolen watch. Officer K.Z. also threatened to undress them in front of the entire battalion if they failed to find the second watch.

On 5 December 2003 serviceman G.M. was questioned again and described in greater detail how officer K.Z. had taken a wooden pole from behind a safe, told him to lean against the wall and hit him three times on his buttocks.

On 14 April 2004 officer V.G. was questioned and stated that he had not provided the full story in his previous testimony and that during the argument between him and Suren Muradyan on 21 July 2002 he had grabbed the latter’s left wrist with his right hand and started shaking it briskly, during which Suren Muradyan’s fist had touched the left side of his abdomen in the area of the spleen. Being very angry, he had not noticed whether Suren Muradyan’s facial expression had changed as a result of the blow, but he had not displayed any unusual movements or convulsions. Officer V.G. further denied hitting Suren Muradyan.

On 19 April 2004 the investigator questioned two of the servicemen, A.P. and D.M., who had previously testified on 7 August 2002 and asked them to describe how officer V.G. had pulled on Suren Muradyan’s hand on 21 July 2002. According to A.P., officer V.G. had grabbed Suren Muradyan’s left forearm, while according to D.M. – the left wrist, and had pulled forcefully. Suren Muradyan had tried unsuccessfully to free his arm. When he was pulling back his arm, officer V.G.’s hand was also being pulled back with it. Officer V.G. had then removed the watch with his other hand, while still holding on to Suren Muradyan with his right hand.

On 2 August 2004 the applicant was questioned and stated that some days earlier he had bumped into a number of servicemen who had told him about the circumstances of Suren Muradyan’s murder and the identities of those who had ill-treated him. According to them, Suren Muradyan had told them that he had been summoned to the headquarters where he had been badly beaten by officers V.G., D.H. and K.Z., as a result of which he had lost consciousness and been taken back to the barracks by couriers. The applicant requested that these allegations be investigated.

On 9 August 2004 the Military Prosecutor of Armenia addressed a letter to the Head of the National Security Service of Nagorno Karabakh, informing him of the applicant’s allegations and requesting that those circumstances be clarified.

On 17 and 19 August 2004 the investigator questioned officers D.H. and V.G. respectively. Both denied the above allegations. Officer V.G. added that the only time that there had been any use of force in respect of Suren Muradyan was during the incident of 21 July 2002, when he had shaken Suren Muradyan’s hand briskly, during which his hand had touched Suren Muradyan’s abdomen. In reply to the investigator’s question as to why he had earlier stated that it had been Suren Muradyan’s hand that touched the abdomen while now he was stating that it had been his hand, officer V.G. stated that, since he was holding Suren Muradyan’s hand in his hand, both his and Suren Muradyan’s hands had touched the abdomen.

On 2 September 2004 the investigator decided to assign an additional panel forensic medical examination and pose further questions to the medical experts, taking into account that it had been established that during the argument of 21 July 2002 officer V.G. had accidentally hit Suren Muradyan in the left side of the abdomen. It had been further established that on 4 August 2002 Suren Muradyan had fallen at the hospital, with his left hand under his belly.

On 16 September 2004 forensic medical expert M.B. was questioned again. He stated that the sub-capsular rupture and the bruising to the soft tissues had been caused by direct contact with a blunt object. If, during that blow, officer V.G. had held in his hand the deceased’s forearm or part of his wrist, those parts must have touched the front wall of the deceased’s abdomen during the blow, while the injuries, namely the rupture and the bruising to the soft tissues of the abdominal area, were caused by direct contact with officer V.G.’s fist; contact between the deceased’s wrist or forearm with that area could not have caused the sub-capsular rupture. If the deceased’s wrist or forearm or fist touched the abdomen, then officer V.G.’s fist must have undoubtedly touched the front wall of the abdomen.

On 12 October 2004 the panel of experts produced their opinion in reply to the questions posed by the investigator’s decision of 2 September 2004. As regards the responsibility of the military unit and the hospital doctors, the experts found that they had failed to reach a timely and accurate diagnosis and to provide adequate medical treatment. The opinion further included, inter alia, the following questions and answers:

(1) Question: what impact could the blow sustained by Suren Muradyan during the argument of 21 July 2002 have had on his health? Could it have caused spleen rupture, internal bruising and subsequently death? Answer: as a result of the blow sustained during the argument of 21 July 2002, Suren Muradyan sustained bruises to muscles and a sub-capsular rupture of his spleen which later led to his death.

(2) Question: was he ill with malaria on 21 July 2002 and why were no malaria agents found in his blood sample at the military hospital, if threeday-old malaria agents were found in the same sample following a later test? Answer: on 21 July 2002 Suren Muradyan was suffering from malaria.

(3) Question: what impact would the above-mentioned blow have had on his health if he had not been ill with malaria? Answer: depending on the strength, location and nature of the blow, it was possible not to sustain a sub-capsular rupture, but even a light blow could cause spleen rupture to an unhealthy and deformed spleen.

(4) Question: could he have sustained bruises to soft tissues in the area of the left side of his abdomen by falling at the hospital on 4 August 2002? Answer: the new bruising to soft tissues in the area of the left side of Suren Muradyan’s abdomen could have been caused by his fall at the hospital.

(5) Question: exactly when did his spleen rupture occur, and would his life have been unequivocally saved, if diagnosis had been made in a timely manner? Answer: the sub-capsular rupture of Suren Muradyan’s spleen occurred on 21 July 2002, while the second rupture occurred on 4 August 2002 at 7.10 p.m., as a result of which he most likely lost consciousness and fell down. Had the internal bleeding been diagnosed in a timely manner, it might have been possible to save Suren Muradyan’s life.

On 21 October 2004 forensic medical expert K.H., who had contributed to the opinions of 6 November and 11 December 2002 and 12 October 2004, was questioned. Asked about the discrepancies between the findings in those opinions, expert K.H. stated that it must have been an automatic mistake and admitted that she had not read one of the opinions before signing it. She further stated that the reason why no trace of malaria had been discovered at the Mekhakavan hospital could have been due to lack of proper equipment. She lastly stated that an enlarged spleen in a person suffering from malaria would become hard and filled with blood, the capsule would be strained and become more sensitive. Even a light blow might cause a sub-capsular rupture.

On 4 November 2004 hospital doctor I.M. was questioned and added to his previous statement that the pain upon palpation of Suren Muradyan’s abdomen made him suspect that it was connected with malaria. In reply to the investigator’s question as to why he had not administered anti-malaria treatment if he had been convinced of that diagnosis, I.M. replied that he had had to wait for the result of the parasitological test. Furthermore, often an initial negative result of such test did not mean that a patient had no malaria and this could be confirmed only after a third negative result.

On 5 November 2004 the forensic medical expert who had presided over the panel which had produced the opinion of 12 October 2004 was questioned and confirmed the responsibility of both the military unit and the hospital doctors.

On the same date the Head of the National Security Service of Nagorno Karabakh sent a letter, marked “secret”, to the Military Prosecutor of Armenia. The relevant parts of the letter read as follows:

On 15 November 2004 the Minister of Defence of Nagorno Karabakh filed a motion with the Military Prosecutor of Armenia, asking for officer K.Z. not to be prosecuted, taking into account his positive characteristics, his impeccable service in the armed forces and his active participation in the struggle for the existence of Nagorno Karabakh, as well as the report/request of the command of formation no. 42009.

On 17 November 2004 charges were brought against hospital doctor I.M. under Article 375 § 2 of the new Criminal Code of Armenia (abuse of authority or public position, accidentally resulting in grave consequences) on the ground that he had failed to provide adequate treatment to Suren Muradyan.

On 19 November 2004 the Military Prosecutor of Armenia lodged an application with the Court of Cassation seeking to re-open the proceedings concerning the criminal case against officer V.G. on the basis of a newly established circumstance. The Military Prosecutor submitted that all possible hypotheses had been verified and it had been established that, apart from the incident of 21 July 2002, Suren Muradyan had no other conflicts and had good relations with fellow servicemen and officers. It followed from the statements made by officer V.G. on 14 April and 19 August 2004, in which he admitted that during the incident of 21 July 2002 both his and Suren Muradyan’s hands had touched the left side of the victim’s body, that the sub-capsular rupture of Suren Muradyan’s spleen was a result of that incident.

On the same date the applicant lodged a challenge with the General Prosecutor’s Office against the Military Prosecutor and other employees of the Military Prosecutor’s Office, arguing in detail that they had failed to conduct an adequate investigation into his son’s death.

On 18 and 29 November 2004 charges were brought against military unit doctors A.H. and S.G. under Article 375 § 2 of the new Criminal Code of Armenia.

On 24 November 2004 the Senior Assistant to the General Prosecutor decided to dismiss the applicant’s challenge of 19 November 2004. This decision stated, inter alia:

“On 10 July 2003 the criminal case [concerning Suren Muradyan’s death] was transferred from the Hadrut Garrison Military Prosecutor’s Office to the investigative division of the Military Prosecutor’s Office of Armenia, where following an investigation it was disclosed that from 22 to 25 July 2002 [officers D.H. and V.G.] had on several occasions summoned [Suren Muradyan] to the headquarters of the military unit, demanded the lost watch and, having received no positive reply, had taken him to [the acting commander of the military unit, K.Z.], who in his office had hit [Suren Muradyan], as well as serviceman [K.E.], who had been called to the office in connection with the same matter, with a wooden pole.

According to the materials of the case, a number of witnesses testified that during the argument of 21 July 2002 nobody had hit [Suren Muradyan]. In the course of additional questioning [officer V.G.] alleged that during the argument of 21 July 2002 he, infuriated by [Suren Muradyan’s] behaviour, had grabbed his hand and shaken it briskly, during which his hand had touched [Suren Muradyan] in the area of the spleen.”

The decision further referred to the expert opinion of 12 October 2004 and specifically its finding that Suren Muradyan had sustained bruises to muscles and a sub-capsular rupture of his spleen as a result of the blow sustained during the argument of 21 July 2002. The Senior Assistant to the General Prosecutor concluded that the arguments raised by the applicant had been examined in the course of a thorough and objective investigation by the Military Prosecutor’s Office and his challenge was therefore unfounded.

On 10 December 2004 the Court of Cassation quashed the judgment of the Syunik Regional Court of 5 May 2003 in its part concerning officer V.G. (see paragraph 56 above) and remitted the case for further investigation.

On 14 December 2004 the investigator, finding that there were discrepancies between previous expert opinions, and also upon the request of one of the accused, namely military hospital doctor I.M., decided to assign a new panel forensic medical examination.

On 24 December 2004 the criminal case against officer V.G. on charges of insult was re-joined to the main criminal proceedings concerning Suren Muradyan’s death.

On 28 December 2004 new charges were brought against officer V.G. under Article 375 § 2 (abuse of authority or public position, accidentally resulting in grave consequences). It appears that he was detained on the same day.

On 25 January 2005 the panel of experts produced their opinion in reply to the questions posed by the investigator’s decision of 14 December 2004, confirming their earlier findings regarding the responsibility of the military unit and the hospital doctors. The opinion also included, inter alia, the following question and answer:

Question: what was the intensity of the blow sustained by Suren Muradyan, considering that it caused bruising of deep muscles? Answer: it was impossible to determine the exact intensity of the blow in the absence of relevant medical criteria, although it could be asserted that the blow had been of certain intensity.

On 18 February 2005 the applicant lodged a complaint with the General Prosecutor’s Office similar to that of 12 September 2003. He also offered to bring witnesses who, according to him, could tell the truth, namely that on 24 July 2002 his son had been beaten by officers V.G., D.H. and K.Z., as a result of which he had suffered the fatal injury. The witnesses could further confirm that his son had lost consciousness and that military unit doctor A.H. had provided first aid and was therefore aware of the illtreatment.

On 21 and 22 February and 5 and 10 March 2005 the investigator posed a number of questions, suggested by the applicant, to the four forensic medical experts who had produced the opinion of 25 January 2005. Three of the experts were unable to answer the applicant’s question about whether it was possible for his son, who on 21 July 2002 had allegedly been ill with malaria and had an enlarged spleen, not to complain, have fever or shiver and to feel well. The fourth expert stated that his son might have experienced dull pain.

In reply to the applicant’s question about whether it was possible for his son, whose spleen was enlarged and already ruptured, not to complain for three days of any pain, to feel healthy, participate in exercises and to play the trumpet, two of the experts were unable to provide an answer, the third expert stated that it was only a sub-capsular rupture and not a full one, and the fourth expert stated that it was possible for him not to complain if the sub-capsular rupture had been small, and possible to complain if had been big.

In reply to the applicant’s question about how his son would have reacted (screaming, losing consciousness, and so on) when he sustained the injury resulting in extensive bruising and a sub-capsular spleen rupture, three of the experts stated that different people felt and expressed pain differently. The fourth expert stated that it was equally possible for him to feel or not to feel pain. One of the experts also added that it was only a subcapsular rupture and the spleen was not a painful organ.

In reply to the applicant’s question about whether the bruising would have been visible from the outside, one expert referred to the findings in the opinion, two experts said “not necessarily”, while the fourth expert stated that it would have been visible, although external bruises healed faster than internal ones.

In reply to the applicant’s question concerning the responsibility of the military hospital doctor, all experts stated that the doctor had no reason to suspect internal bleeding because the patient had failed to inform him about the injury, there were no visible external traces and the clinical signs were similar to those of malaria. The hospital doctor had carried out all the examinations and tests which he was obliged to in such circumstances. The applicant alleged that each time the investigator had posed this question to an expert, he would first invite him to leave the room. The answers given to this question by all four experts in his absence were almost identical.

On 25 March 2005 the investigator decided to discontinue criminal proceedings against military hospital doctor I.M. for lack of corpus delicti, finding that I.M. had carried out all possible examinations which he was able and obliged to perform in the circumstances. This conclusion was reached on the basis of the above statements of the four forensic medical experts.

On 29 March 2005 the Military Prosecutor of Armenia decided not to prosecute officer K.Z. for beating serviceman G.M. This decision stated that officer K.Z., suspecting Suren Muradyan and serviceman K.E. of lying about the lost watch, had started swearing at them and demanding that they find it. Thereafter he had ordered them to leave his office and called serviceman G.M. When the latter had told the same story as the two other servicemen, officer K.Z. had become furious, started swearing and ordered serviceman G.M. to turn towards the wall, whereupon he had taken a 120 cm long pole and twice hit serviceman G.M. on his buttocks. Serviceman G.M. had started crying and after leaving the office he had asked Suren Muradyan and serviceman K.E. whether they had also been beaten, to which both of them replied “no”. The decision concluded that it was not necessary to prosecute officer K.Z. because he had no criminal record, was known to be of good character and regretted his actions. The motion of the Ministry of Defence of Nagorno Karabakh asking not to prosecute him was also taken into account.

On an unspecified date the applicant submitted to the investigating authority a photograph of his son allegedly performing on stage at the comedy contest in Stepanakert on 2 August 2002, arguing that this proved that his son was not yet that ill on that day. The version that his son felt ill and could not perform had been made up on purpose in order to justify the deterioration of his condition and his transfer to hospital. In reality, upon arriving at the military unit from Stepanakert, he had once again been beaten by the officers on the night from 2 to 3 August 2002, which had caused the spleen rupture. This was also confirmed by the new bruising to soft tissues in the area of the left side of the abdomen revealed during the autopsy.

On 15 April 2005 the bill of indictment was finalised and on 16 April 2005 approved by the Military Prosecutor of Armenia. Its relevant parts stated as follows:

“A number of hypotheses have been checked in the course of the investigation, which have been investigated in an objective manner. Thus, because of a watch found on [Suren Muradyan’s] wrist [officers D.H. and V.G.] invited him to the headquarters on several occasions and presented him to the acting commander of the military unit, [K.Z.], who in an attempt to clarify the above-mentioned question, subjected to beating [serviceman G.M. He] did not, however, beat or hit [Suren Muradyan].

It has been confirmed by the investigation that on 21 July 2002, as [officer V.G.] noticed on Suren Muradyan’s wrist his younger brother’s stolen watch, he argued with him, grabbed his hand, started swearing and shook it briskly, during which he hit Suren Muradyan’s abdomen resulting in a sub-capsular rupture of his spleen. Thereafter from 24 July 2002 Suren Muradyan’s health started to deteriorate while in the military unit. On 25 July 2002 Suren Muradyan was visited by [military unit doctor A.H.,] who failed to diagnose Suren Muradyan’s real illness and to make any entries [in the registers] and, having given several paracetamol pills, left. When on 27 July 2002 [A.H.] was called to provide medical assistance to Suren Muradyan, he refused to come and provide assistance and said that the patient should be brought to the aid post. Thereafter Suren Muradyan’s fellow servicemen called [military unit doctor S.G.]. The latter came, also failed to diagnose Suren Muradyan’s real illness and, having given some anti-fever injections and several paracetamol pills, left. Hence, Suren Muradyan remained ill in the military unit until 3 August 2002, which was also in violation of Order no. 586 of the Minister of Defence of 29 May 2000, namely Suren Muradyan was transferred to hospital later than the prescribed 7 days, as a result of which it was impossible to save [his] life.

During the investigation at his additional questioning as a witness on 14 April and 19 August 2004 [officer V.G.] regretted his actions and stated that he had not provided the full story in his previous statements and added that during the incident of 21 July 2002 both his and Suren Muradyan’s hands had hit the left side of the latter’s abdomen.

The investigation carried out has confirmed that the sub-capsular rupture of Suren Muradyan’s spleen resulted from [officer V.G.’s] actions during the incident of 21 July 2002.”

All three defendants, namely military officer V.G. and military unit doctors A.H. and S.G., were accused under Article 375 § 2 of the CC in connection with the above acts.

On 21 December 2005 the Syunik Regional Court, sitting in the town of Goris (Armenia), found officer V.G. guilty as charged and sentenced him to five years’ imprisonment, minus the one year and twentyfour days already spent in detention, finding it to be confirmed that on 21 July 2002 officer V.G., during an argument with Suren Muradyan about a stolen watch, shook briskly Suren Muradyan’s hand, and in doing so his hand touched the left side of Suren Muradyan’s abdomen causing a subcapsular rupture of the spleen. As regards military unit doctors A.H. and S.G., the Regional Court re-qualified the charges from Article 375 § 2 to Article 376 § 2 of the CC (official negligence resulting in grave consequences) and, applying Article 64 of the CC, sentenced each of them to a fine of 200,000 Armenian drams (AMD). The Regional Court also granted the civil claim lodged by the applicant and ordered officer V.G. to pay 1,000 United States dollars (USD) and military unit doctors A.H. and S.G. to pay AMD 200,000 each as reimbursement of funeral costs and legal costs incurred by the applicant.

On 4 January 2006 the applicant lodged an appeal. He argued in detail that there was sufficient evidence suggesting that his son had been harassed by a number of high-ranking officers, including V.G., D.H. and K.Z., in the period between 21 and 24 July 2002 and that the fatal injury had been inflicted by them on 24 July. The applicant referred, in particular, to a witness statement by his son’s fellow serviceman, according to which his son had woken up in the night of 24 July and complained that he was feeling ill. The same followed from the findings of the post-mortem examination, according to which the initial bruising had been inflicted 8-10 days before death. Furthermore, 24 July was the last day of the deadline fixed by the officers. The investigating authority was deliberately ignoring this evidence and had failed to clarify what had happened on that day, while the proceedings had been perfunctory and not objective and aimed to lead the case into an impasse and not to punish the murderers. The applicant further referred to the fact that serviceman G.M. had admitted that he had been ill-treated by officer K.Z. in his office. It followed from the decision of the General Prosecutor’s Office of 24 November 2004 that the same had happened to his son. The accused, officer V.G., had also admitted in court that he had been outside officer K.Z.’s office when the latter ill-treated Suren Muradyan and that he had heard him scream. Furthermore, no explanation had been given for the second bruising and abrasion on the forehead sustained by his son 1-2 days before his death. The applicant further complained that the Regional Court had failed to clarify what was meant by the “well-known beating of Suren Muradyan” referred to in the letter of the Head of the National Security Service of Nagorno Karabakh, as well as the circumstances and perpetrators of this beating. Lastly, as regards the military unit doctors, the applicant complained that the requalification of the charge had been inaccurate and the sentence imposed too lenient.

Appeals against the judgment of 21 December 2005 were lodged also by officer V.G. and the Prosecutor, who sought harsher penalties.

On 20 March 2006 the Criminal Court of Appeal commenced the appeal proceedings. Officer V.G. admitted before the Court of Appeal that either his or Suren Muradyan’s hand had possibly touched the latter’s abdomen during the argument of 21 July 2002, but argued that Suren Muradyan’s spleen could not have ruptured as a result of that contact.

In the course of the proceedings, upon the applicant’s request, two witnesses, serviceman K.B. (see paragraph 41 above) and hospital orderly H.G. (see paragraph 54 above), were summoned and examined in court.

K.B. stated that Suren Muradyan had told him at the hospital that he had been called to the headquarters by officer D.H. on the day when the latter was on duty and beaten by him, officers V.G. and K.Z. and another officer, N., because of the watch. The officers had pushed him to the ground and started kicking him, while officer K.Z. hit him with a wooden pole. They had demanded that he bring the watch or its value in cash. The most active beaters were officers V.G. and K.Z. He had been beaten so badly that the headquarters couriers had had to carry him back to the barracks. On the next day he was called again by officer K.Z. He had been unable to go but K.Z. had insisted. Thereafter he had remained in the barracks for eight days.

H.G. stated that upon admission to hospital Suren Muradyan was very agitated and kept uttering swear words directed at officers V.G., D.H. and K.Z. He then said that he had been beaten by officers V.G. and K.Z.

Both K.B. and H.G. stated that they had been afraid to tell the truth at their questioning during the investigation as they had been military servicemen at that time. They had been demobilised now, had nothing to be afraid of and were telling the truth. K.B. added that Suren Muradyan had asked him not to tell this to anyone in order not to get into trouble.

Officer K.Z. was also summoned and examined in court. He denied having ill-treated Suren Muradyan, but admitted that he had hit serviceman G.M. for having stolen the first watch.

The Court of Appeal sent an inquiry to the National Security Service of Nagorno Karabakh asking for clarification of the content of the letter of 5 November 2004.

By a letter of 27 April 2006 the Head of the National Security Service of Nagorno Karabakh informed the court that the expression “wellknown beating” had been used merely as a brief description of the incident and had no other meaning.

The applicant submitted once again before the Court of Appeal that his son had died as a result of ill-treatment by officers V.G., D.H. and K.Z., while the military unit doctors had failed to provide adequate medical assistance.

On 20 June 2006 the Criminal Court of Appeal delivered its judgment, upholding that of the Regional Court in its part concerning the guilt of officer V.G. and military unit doctors A.H. and S.G. However, it decided to modify the penalty in respect of A.H. and S.G., imposing a suspended sentence of three and a half and three years’ imprisonment respectively, with two years’ and one and a half years’ probation period respectively. The Court of Appeal decided also to modify the judgment in its part concerning the applicant’s civil claim, by annulling the award of AMD 200,000 to be paid by both A.H. and S.G., on the ground that they had already paid those amounts to the applicant voluntarily.

As regards the statements of former servicemen K.B. and H.G., as well as the applicant’s arguments, the Court of Appeal found that these were not sufficient grounds for bringing harsher charges against officer V.G. or for remitting the case for further investigation with the aim of bringing criminal proceedings against officers D.H. and K.Z. Firstly, the court was required by law to examine the case only in respect of the accused and within the scope of the charge against him. Secondly, the law prescribed only two grounds for remitting a case for further investigation, namely (1) if the investigating authority had committed a substantial violation of procedural law or (2) upon the Prosecutor’s request, if there were grounds for harsher prosecution or prosecution on a different factual basis. No such request had been filed by the Prosecutor, while the investigating authority had carried out a thorough, full and objective investigation by examining a number of hypotheses, none of which confirmed that Suren Muradyan had been ill-treated. The Court of Appeal further noted that both K.B. and H.G. had been questioned on numerous occasions during the investigation but had never made such statements in the past. Moreover, they cited as their source of information the late Suren Muradyan. The Court of Appeal lastly referred to the letter of the Head of the National Security Service of Nagorno Karabakh of 27 April 2006.

On 29 June 2006 the applicant lodged an appeal on points of law, raising similar arguments.

The Prosecutor also lodged an appeal on points of law, seeking that the case be remitted for fresh examination in its part concerning the military unit doctors on the ground that the sentence imposed was too lenient.

On 4 August 2006 the Court of Cassation decided to dismiss the applicant’s appeal and to grant that of the Prosecutor, finding that the sentence imposed on military unit doctors A.H. and S.G. had not been proportionate to the gravity of the offence and remitting that part of the case for fresh examination.

On 15 September 2006 the applicant received a copy of this decision.

On 26 September 2006 the Criminal Court of Appeal examined the case anew in its part concerning military unit doctors A.H. and S.G. and decided to sentence them to four years and three and a half years’ imprisonment respectively. At the same time the Court of Appeal decided to grant amnesty and to release them from serving their sentence.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens

The applicant, who was born in 1992, was detained at the Gaziantep Prison at the time when the application was lodged.

On 26 December 2011 the Mersin Magistrates’ Court decided to restrict access to the file regarding an ongoing investigation against a terrorist organisation.

On 29 December 2011 the applicant was arrested on suspicion of being a member of a terrorist organisation and making its propaganda.

On the same day the applicant’s police statement was taken at the Anti-Terror Branch of the Mersin Security Directorate, in the presence of his lawyer. He was mainly questioned about several records of telephone conversations as well as allegations about the burning of vehicles and throwing Molotov cocktails. He was questioned at length about the telephone conversations that had been intercepted. The police read out the transcripts of the telephone conversations and asked the applicant to comment on them. He was further asked questions about the incriminating statements of one of his co-accused. The applicant used his right to remain silent.

On 30 December 2011 the Mersin Magistrates’ Court ordered the applicant’s detention on remand.

On 16 March 2012 the applicant’s representative lodged an objection against the decision on the applicant’s detention, and requested his release. She also asked the court to lift the restriction of access to the investigation file. On 19 March 2012 the Mersin Magistrates’ Court dismissed the objection, without holding a hearing. The applicant’s representative filed a further objection against that decision.

On 26 March 2012 the Mersin Assize Court dismissed the objection on the basis of the case file, without holding a hearing.

On 20 April 2012 the Mersin Magistrates’ Court ex officio examined the applicant’s detention on remand on the basis of the case-file and decided to extend it.

On 10 September 2012 the Adana public prosecutor filed a bill of indictment against the applicant, accusing him mainly of being a member of a terrorist organisation, making propaganda in its favour, illegal possession of explosives, causing damage to property and having participated in an illegal armed demonstration.

On 1 October 2012 the Adana Assize Court accepted the indictment. On the same date the restriction on the investigation file was lifted.

According to the latest information in the case file, the proceedings against the applicant are still pending before assize court.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)

André Potocki;Mārtiņš Mits;Síofra O’Leary

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law. In application no. 25925/17, the applicant also raised another complaint under the provisions of the Convention.


Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

The applicant was born in 1974 and at the time of lodging his application he was serving his prison sentence in the Bolu F-type prison.

On 25 January 2008 the applicant wrote a letter to the Ministry of Justice, in which he had praised the imprisoned leader of the PKK, Abdullah Öcalan by using the honorific “sayın”, meaning esteemed.

Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, the applicant was found guilty of breaching a prison order by the Bolu F-type Prison Disciplinary Board (referred hereafter as “the board”).

On 1 February 2008 the applicant was sentenced to 11 days’ solitary confinement on the orders of the Board, on account of his statements in the above-mentioned letter.

On 26 February 2008 the Bolu Enforcement Judge rejected the applicant’s objection.

On 11 March 2008 the Bolu Assize Court upheld the judgment of 26 February 2008.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano

The applicants complained of the non-enforcement or delayed enforcement of domestic decisions.


ZUBAN AND HAMIDOVIC v. BOSNIA AND HERZEGOVINA

George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicant in the first case, Ms Samka Zuban, is a citizen of Bosnia and Herzegovina, who was born in 1957 and lives in Sarajevo. She was represented before the Court by Ms A. Imamović, a lawyer practising in Sarajevo. The applicant in the second case, Mr Jasmin Hamidović, is also a citizen of Bosnia and Herzegovina. He was born in 1964 and lives in Ilidža. He was represented before the Court by Mr N. Mulalić, a lawyer practising in Sarajevo.

The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.

The facts of the case, as submitted by the parties, may be summarised as follows.

After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It would appear that more than 100,000 people lost their lives and more than 2,000,000 people were displaced in the course of the war. It is estimated that around 30,000 people went missing and that around one quarter of them is still missing. The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace in Bosnia and Herzegovina entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska.

In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed Resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), headquartered in The Hague. More than 70 individuals have already been convicted and proceedings are ongoing for 20 accused. In the period from February 1996 until October 2004, local prosecutors in Bosnia and Herzegovina were required to submit case files to the ICTY for review; no person could be arrested on suspicion of war crimes unless the ICTY Office of the Prosecutor had received the case file beforehand and found it to contain credible charges (the “Rules of the Road” procedure). Moreover, the ICTY had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice. As part of the ICTY’s completion strategy, in early 2005 war crimes chambers were set up within the Court of Bosnia and Herzegovina (“the State Court”) with primacy over other courts in Bosnia and Herzegovina as regards war crimes. More than 100 persons have been finally convicted by the State Court. Many others have been convicted by the competent Entity courts (see paragraphs 21-22 below).

Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. Reportedly, the ICMP has so far identified by DNA more than 14,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified more than 8,000 missing persons by other methods. In 2005 the Government of Bosnia and Herzegovina and the ICMP established a Missing Persons Institute, also headquartered in Sarajevo (see paragraph 15 below). It became operational on 1 January 2008.

In June 1992, after having been captured by the VRS forces in Ilidža, Fikret Zuban, the husband of Samka Zuban, and Nedžib Hamidović, Jasmin Hamidović’s father, disappeared.

On 2 October 2002 Ms Biljana Plavšić, one of the war-time leading political figures of the Republika Srpska, pleaded guilty before the ICTY to having participated in the persecution of Bosniacs and Croats from, among other municipalities, Ilidža. She was sentenced to 11 years’ imprisonment.

Cases against Radovan Karadžić, the war-time civilian leader of the Republika Srpska, Ratko Mladić, the war-time military leader of that Entity, and Vojislav Šešelj, a leading political figure of Serbia in the 1990s, are also pending before the ICTY. They are charged with the participation in a joint criminal enterprise to permanently remove Bosniacs and Croats from, inter alia, Ilidža.

Domestic authorities have taken statements from the applicants and a number of other persons about these two cases. However, no formal charges have been brought yet. At the same time, domestic authorities have finalised investigations into several other crimes committed in Ilidža during the war; one person has thus far been convicted – R.B.

On 6 April 1998 Samka Zuban sought and obtained a declaration of presumed death with respect to her husband.

Nedžib Hamidović, the father of Jasmin Hamidović, was identified by DNA on 7 November 2006. Fikret Zuban, Samka Zuban’s husband, has not yet been identified.

On 3 November 2004 the Human Rights Commission held that there had been a violation of Articles 3 and 8 of the Convention. It ordered the Republika Srpska to release any and all information in its custody pertaining to the fate or whereabouts of the applicants’ relatives and to conduct a full, meaningful, thorough and detailed investigation aimed at making known the fate or whereabouts of the applicants’ relatives and bringing the responsible to justice. Lastly, it awarded the applicants 5,000 convertible marks (BAM) each for non-pecuniary damage.

The Missing Persons Act 2004 entered into force on 17 November 2004 (Official Gazette of Bosnia and Herzegovina no. 50/04). In accordance with section 3 of the Act, families have the right to know the fate of missing persons (that is, their whereabouts if they are still alive, or the circumstances of death and their place of burial, if they are dead) and to obtain their mortal remains. Under section 4 of the Act, the relevant domestic authorities have the obligation to provide any and all such information in their keeping.

Section 7 of that Act provides for the setting up of a Missing Persons Institute. In 2005 the ICMP and the Government of Bosnia and Herzegovina founded the Institute, headquartered in Sarajevo, pursuant to that provision and the Agreement on Assuming the Role of Co-founders of the Missing Persons Institute of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 13/05). It became operational on 1 January 2008. One of the organs of that Institute is an Advisory Board, comprised of six representatives of families of missing persons (see Article 10 of the Agreement mentioned above).

In accordance with section 9 of the Act, the status of missing person comes to an end on the date of identification. Therefore, if a missing person is declared dead but the mortal remains have not been found and identified, the process of tracing continues.

Pursuant to section 11 of the Act, the families of missing persons are entitled to monthly financial support under some conditions, notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support (in other words, if they are not in paid employment and do not receive welfare benefits beyond 25% of the average salary paid in Bosnia and Herzegovina). Section 15 of the Act provides for the setting up of a Missing Persons Fund for that purpose. However, as the Fund has not yet been established, no payment has been made so far.

Families of missing persons are also entitled to, inter alia, temporary administration of the property of missing persons, burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons (section 18 of the Act).

Section 21 of the Act provides for the setting up of Central Records with the aim of verifying information about missing persons from different sources (government agencies, associations of families of missing persons, the ICMP and the International Committee of the Red Cross) and creating a single database. While Central Records were founded on 3 February 2011, it would appear that the verification process is still ongoing. Once that process is completed, all those recorded as missing will be declared dead (section 27 of the Act), but the tracing process will nevertheless continue (see paragraph 16 above).

Despite the fact that the verification process outlined in paragraph 19 above is pending, any person may request that a declaration of presumed death be issued with respect to a missing person (see the Non-Contentious Procedure Act 1998, Official Gazette of the Federation of Bosnia and Herzegovina, nos. 2/98, 39/04, 73/05; and the Non-Contentious Procedure Act 2009, Official Gazette of the Republika Srpska, no. 36/09).

War crimes cases fall, as a general rule, under the jurisdiction of the State Court, but the State Court may transfer any such case to the competent Entity court in accordance with the criteria set out in paragraph 22 below (see Article 27 of the 2003 Code of Criminal Procedure). For example, only in 2012 the State Court transferred 217 cases to 15 Entity courts.

In accordance with the Book of Rules on the Review of War Crimes Cases of December 2004 the following types of cases were, as a rule, to be heard before the State Court: (a) cases concerning genocide, extermination, multiple murders, rape and other serious sexual assaults as part of a system (such as in camps), enslavement, torture, persecution on a widespread and systematic scale, mass forced detention in camps; (b) cases against past or present military commanders, past or present political leaders, past or present members of the judiciary, past or present police chiefs, camp commanders, persons with a past or present notorious reputation, multiple rapists; (c) cases with insider or suspect witnesses; (d) if there was a risk of witness intimidation; and (e) cases involving perpetrators in an area which is sympathetic to them or where the authorities have a vested interest in preventing public scrutiny of the crimes. All other war crimes cases were, as a rule, to be heard before the Entity courts.

In December 2008 the authorities adopted the National War Crimes Strategy, providing a new set of criteria. However, they are almost identical to those outlined in paragraph 22 above. In addition, the Strategy defines the time-frames, capacities, criteria and mechanisms for managing those cases, standardisation of court practices, issues of regional cooperation, protection and support to victims and witnesses, as well as financial aspects, and supervision over the implementation of the Strategy. One of its objectives is to process the most complex and top priority cases within seven years (thatis, by the end of 2015) and other war crimes cases within fifteen years (that is, by the end of 2023). In order to comply with that time-frame, the local authorities have, inter alia, almost doubled the number of State prosecutors in charge of war crimes (from 19 to 37) in the last 12 months.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicants were all employed at a State-owned limited liability company. Their employment was terminated as of 3 July 2012.

The first applicant, I.B. was born in 1957 and lives in Budapest. A certain part of his severance payment was subject to the 98% special tax in the amount of 3,557,737 Hungarian forints (HUF) (approximately 11,900 euros (EUR)).

The second applicant, L.C. was born in 1963 and lives in Budapest. Part of his severance payment was subject to the 98% special tax in the amount of HUF 3,675,702 (approximately EUR 12,200). The second applicant withdrew his application on 25 February 2016.

The third applicant, A.D. was born in 1968 and lives in Budapest. Part of his severance payment was subject to the 98% special tax in the amount of HUF 2,824,844 (approximately EUR 9,400).

The fourth applicant, E.F. was born in 1959 and lives in Monor. Part of his severance payment was subject to the 98% special tax in the amount of HUF 2,650,902 (approximately EUR 8,800).

The fifth applicant, E.J. was born in 1954 and lives in Solymár. Part of his severance payment was subject to the 98% special tax in the amount of HUF 5,696,384 (approximately EUR 19,000). Due to subsequent amendments of the relevant legislation, the tax rates applicable to the fifth applicant’s severance payment changed retroactively. Accordingly, the National Tax Authority found that part of the applicant’s severance payment had been subject to a flat-rate public charge of 20% in the amount of HUF 746,808 and another part of his severance payment had been subject to a flat-rate public charge of 75%, amounting to HUF 1,558,949. Therefore, the applicant was reimbursed HUF 3,390,627 by the National Tax Authority. The overall tax burden imposed on the applicant’s severance payment was 30.7 %.

The sixth applicant, J.K. was born in 1956 and lives in Budapest. Part of his severance payment was subject to the 98% special tax in the amount of HUF 2,099,845 (approximately EUR 7,000).

The seventh applicant, Z.J.K. was born in 1955 and lives in Budapest. Part of his severance payment was subject to the 98% special tax in the amount of HUF 3,119,393 (approximately EUR 10,400).

The eighth applicant, G.N. was born in 1960 and lives in Budapest. Part of his severance payment was subject to the 98% special tax in the amount of HUF 2,886,807 (approximately EUR 9,600). The eighth applicant withdrew his application on 14 January 2015.

The ninth applicant, I.S. was born in 1957 and lives in Szolnok. Part of his severance payment was subject to the 98% special tax in the amount of HUF 3,972,297 (approximately EUR 13,200).

The tenth applicant, S.S was born in 1965 and lives in Monor. Part of his severance payment was subject to the 98% special tax in the amount of HUF 2,376,658 (approximately EUR 7,900).

The eleventh applicant, F.V. was born in 1955 and lives in Budapest. Part of his severance payment was subject to the 98% special tax in the amount of HUF 3,345,040 (EUR 11,100).