MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1483/H46-2

7 December 2023

1483rd meeting, 5-7 December 2023 (DH) Human rights   H46-2 Muradyan group v. Armenia (Application No. 11275/07) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2023)1242, CM/Del/Dec(2019)1355/H46-1

 

Application	Case	Judgment of	Final on	Indicator for the classification
11275/07	MURADYAN	24/11/2016	24/02/2017	Complex problem
3673/11	ANAHIT MKRTCHYAN	07/05/2020	07/08/2020
69517/11	NANA MURADYAN	05/04/2022	05/07/2022
2303/12	MANUKYAN	21/06/2022	21/06/2022
35814/14	ASHOT MALKHASYAN	11/10/2022	11/01/2023
2169/12	HOVHANNISYAN AND NAZARYAN	08/11/2022	08/02/2023
70665/11	OHANJANYAN[1]	25/04/2023	25/07/2023

·  Cooperation project: ID 25 (CEAD ID 3653) - Strengthening the Application of European Human Rights Standards in the Armed Forces in Armenia ·  Cooperation project: ID 2324 - Human Rights and Women in the Armed Forces in Armenia ·  Cooperation project: ID 2691 - Human Rights and Women in the Armed Forces in Armenia – Phase II ·  Cooperation project: ID 3138 - Fostering Human Rights in the Armed Forces in Armenia

Case description

These cases concern the authorities’ failure to comply with their positive obligation to protect the applicants’ sons’ right to life during their military service, as well as the absence of effective investigations into their deaths which occurred in the period from 2001 to 2010 (substantive and procedural violations of Article 2).

The Court found substantive violations on account of:

·         failure to provide plausible explanation for the deaths (Muradyan, Ohanjanyan);

·         failure to take appropriate and effective measures to prevent the known risk to the life of servicemen from materialising (Manukyan, Nana Muradyan, Hovhannisyan and Nazaryan);

·         lack of any system of psychological assessment and assistance in the military forces, including with regard to the prevention of suicides (Hovhannisyan and Nazaryan);

·         conscription in reckless disregard of a serviceman’s significant health problems (Ashot Malkhasyan).

Status of execution

The Committee of Ministers examined this group of cases for the first time at its 1355^th meeting (September 2019) (DH).

As regards individual measures, noting with interest the reopening of the investigation in the Muradyan case and the investigative measures taken, the Committee urged the authorities, in view of the significant amount of time that had elapsed since the events in question, to step up their efforts to avoid as much as possible the loss of further evidence or prescription and invited them to provide information on the progress achieved.

As regards general measures, the Committee inter alia noted with interest the institutional reforms aimed at ensuring the independence and promptness of investigations; welcomed the introduction of safeguards against ill-treatment; noted also the measures taken to ensure the democratic control mechanism over the armed forces and encouraged the authorities actively to pursue these reforms and to keep the Committee informed about the impact achieved in practice.

In response to the Committee’s decision, on 13 October 2023 the authorities submitted an updated action plan (see DH-DD(2023)1242).

Individual measures:

The just satisfaction has been paid in all cases.

1.   Creation of a working group to address the shortcomings identified by the Court

In October 2020 the Prime Minister created a working group for examination of selected criminal cases, including several cases from the Muradyan group. The goal of the working group is to ensure public scrutiny of high-profile cases and, together with legal representatives and victims, assess the shortcomings and present its observations and recommendations to the Prime Minister, investigating authorities, as well as to public at large. The conclusions of the working group are taken into consideration by the investigating authorities.

2.   Reopening and re-examination of criminal cases

Detailed information was provided about the ongoing investigations in the cases of Muradyan, Anahit Mkrtchyan, Nana Muradyan and Ohanjanyan.

In the Muradyan case, the authorities indicated inter alia that in 2018 and 2019 the investigative group or the head of the group were removed from investigation on account of failure to ensure an effective investigation within a reasonable time. The investigator ordered a forensic medical examination in June 2019, which is pending to date.

As concerns the cases where the criminal proceedings were completed, no request for reopening was lodged by the applicant in the case of Manukyan. In the case of Hovhannisyan and Nazaryan, the applicants’ request for reopening was rejected by the Cassation Court. Considering that in both cases the perpetrators were found guilty by the domestic courts by the time of the delivery of the Court judgments, the authorities asked the Committee to close their examination.

In the Ashot Malkhasyan case, the investigating authorities noted that the statute of limitations for the criminal acts allegedly committed by the military commissar and the doctors has already expired. In August 2023 criminal proceedings were initiated against the investigator for failure to conduct the investigation in due time. This investigation is pending.

General measures

1.   Legislative developments

The authorities carried out a wide range of legislative changes including the adoption of the Criminal Code, the Criminal Procedure Code and the Penitentiary Code drafted with considerable assistance from the Council of Europe. The statute of limitations for torture and for exceeding official powers by using violence was abolished and amnesty and pardon for such crimes was excluded. These legislative reforms have been welcomed by the Committee of Ministers in the framework of the Virabyan group of cases.

2.      Effectiveness of investigations

Ill-treatment cases within the military continue to be investigated by the Investigative Committee. Periodic inspections are conducted and recommendations made to improve its work. Cases of investigators’ misconduct are examined by the Disciplinary Commission created in 2018. In the period 2020-2023 the Disciplinary Commission considered 635 motions and 49 investigators were subjected to disciplinary penalties.

The investigations are supervised by prosecutors, which can give binding instructions to investigative bodies. The Prosecutor’s Office also keeps investigative bodies informed on the implementation of criminal policy priorities, as well as the Convention standards. On 1 April 2021, the General Prosecutor adopted an Order on the “Establishment of standards of effective investigation into deaths in military forces and penitentiary institutions”.

3.   Statistical data

The authorities provided statistical data on investigations into ill-treatment in general and into the use of violence or threat of violence against a subordinate in the army or his close persons (Article 358.1 of the old Criminal Code and Article 520 of the new Criminal Code). As concerns these Articles, the authorities reported the following:

Year	Crimes Reported	Investigations Initiated	Terminated/ Suspended	Sent to Court	Convictions Rendered
2019	49	49	27 term.,1 susp.	22	28
2020	27	27	13 term., 1 susp.	11	8
2021	21	21	12 term.	5	3
2022	54	53	38 term.	4	1
January-June 2023	22	22	12 term.	-	-

4.     Suicide prevention in the armed forces

In order to increase the effectiveness of ill-treatment and suicide/self-harm prevention during military service and to reduce as much as possible any act of violence, the Ministry of Defence drafted a Suicide and Self-Harm Prevention Strategy, which will be made public in the near future.

The authorities highlighted the importance of internal investigations into ill-treatment and suicide cases, as a result of which specific instructions are given to the commanding staff both with preventive and protective purpose. In the period 2019-2023, 45 disciplinary proceedings were initiated in relation to non-combat deaths and suicide cases, and 200 persons were subjected to disciplinary penalties.

5.     Council of Europe cooperation projects

The Council of Europe, in co-operation with the Ministry of Defence and other stakeholders has been implementing projects on human rights in the armed forces since 2016, which inter alia provided legal expertise and conducted awareness raising and educational activities. In particular, the first HELP online model course on human rights in the armed forces was developed and launched and a mobile application “Citizen in Uniform” was designed to promote and protect human rights of recruits, conscripts, professional servicepersons and their family members.

Communications under Rule 9

On 2 February 2023 a communication was submitted by the Center for Law and Justice “Tatoyan” Foundation (see DH-DD(2023)182). It presented a number of recommendations on general measures, such as: staffing all the military units with legal advisors and psychologist officers; review the regulations to ensure effective disciplinary investigations; ensure a proper training for the Military Police and the Military Prosecutor’s Office; strengthen mechanisms of democratic control over the armed forces; and develop the capacities of the Human Rights and Integrity Building Center, operating within the Ministry of Defense and the Public Council adjunct to the Ministry. On 9 February 2023 the authorities replied that these recommendations had been disseminated to all relevant authorities.

 

On 24 October 2023 a communication was submitted by the Helsinki Citizens' Assembly - Vanadzor NGO (see DH-DD(2023)1339-rev). It submitted that in 2022 there were 54 deaths in the army, out of which 6 were suicides and 6 murders, and in the first nine months of 2023 there were 62 deaths, out of which 8 suicides and 2 murders.

Further, it expressed concerns related to the functioning of psychologist officers, raised issues on the promptness of investigations into military offences, as well as the lack of effective mechanism for reporting ill-treatment in the armed forces. On 8 November 2023 the authorities replied that the information provided is either irrelevant for this group of cases or had already been adequately addresses by them before, in their previous submission. In particular, they called into question the statistical data provided by the NGO, which includes death cases not related to the issues raised in the Muradyan group, such as combat deaths and some types of accidents. Further, the authorities highlighted that in 2022 and first half of 2023 there were no murder cases in the army and that during the recent years the number of violent crimes dropped dramatically. The authorities also submitted that 80% of military units have psychologist officers.

Analysis of the Secretariat

Individual measures

A)    Pending investigations

As regards the Muradyan case, it is a matter of concern that the renewed investigation has been ongoing since 2017 without having produced any formal conclusive findings. The repeated dismissal of investigators and the failure to conduct the forensic examination for more than four years, may be indicative of a continuing ineffectiveness of the pending investigation. Given the significant amount of time elapsed since the events in question, it is of crucial importance that the authorities step up their efforts to avoid, to the extent possible, further loss of evidence through the passage of time or prescription.

The Committee could invite the authorities to give the necessary priority to the investigations in the remaining cases[2] and complete them rapidly and effectively, by duly considering the Court’s findings, as well as invite them to provide detailed information on progress, indicating what investigatory steps can still be or are taken, which ones can no longer be taken for practical or legal reasons, what means are deployed to overcome existing obstacles, and what concrete results are expected to be achieved and within what time limit.

B)    Completed criminal proceedings

No further individual measures are possible in the Manukyn and Hovhannisyan and Nazaryan cases, in which the perpetrators had already been convicted by the time of delivery of the Court judgment. The Committee may thus wish to close the examination of these cases by adopting a final resolution.,. This would in no way prejudge the Committee’s continued examination of the outstanding general measures.

No further individual measures are also possible in the Ashot Malkhasyan case, in which the criminal prosecution is prescribed.

General measures

It is recalled that the general measures related to ill-treatment in police custody and lack of effective investigations thereof are already examined in the context of the Virabyan group. Therefore, it is proposed to concentrate in this group of cases on the special measures required to tackle the problem of non-combat deaths in the army and lack of effective investigations thereof.

A)    Non-combat deaths in the armed forces and effectiveness of investigations

The statistical data provided by the authorities for the period 2019-2023 on investigation of violence in the armed forces indicates that criminal investigations are initiated in all reported cases[3] and that the ratio of cases sent to court in the period 2019-2022 vary from 7% to 44%. It is not clear, however, whether these statistics cover non-combat deaths in the army or/and other incidents.  

To allow the Committee to assess the situation and observe the trends, the authorities are thus invited to provide the following statistics for the past five years:

1)     the number of non-combat deaths of servicemen during their military service and their reasons;

2)     the number of criminal cases initiated into these deaths (with the indication of the relevant articles of the Criminal Code);

3)     the number of suspended and terminated criminal cases;

4)     the average length of criminal investigations;

5)     the number of cases sent to the court;

6)     the number of delivered judgments and convictions.

B)    Anonymous referral mechanism

The National Human Rights Action Plan for 2020-2022 envisaged setting up a mechanism for anonymous reporting of torture, inhuman or degrading treatment in the armed forces.[4]According to the Rule 9 communication from the Helsinki Citizens' Assembly - Vanadzor NGO, the deadline for establishment of such a mechanism has been postponed in view of consultations with the domestic stakeholders. A similar activity is envisaged also in the Human Rights Action Plan for 2023-2025.[5] The authorities are thus encouraged to rapidly make progress in the establishment of this mechanism and update the Committee in this regard.

C)    Protection of human rights during military service

It is noted that the National Human Rights Action Plan for 2023-2025 envisages a number of actions to enhance the human rights protection in the armed forces, such as training of commanding officers, military police, investigators, military prosecutors and judges on ill-treatment-related issues, as well as enhancing the climate of tolerance and mutual respect in the armed forces.[6] The authorities are invited to report to the Committee on the implementation of these actions.

The authorities are also invited to provide information on targeted measures to prevent hazing of conscripts as well as bullying and ill-treatment of servicemen by their military hierarchy.

D)    Prevention of suicides, psychological assistance to servicemen and medical examination of conscripts before drafting them into the army

The relevant measures taken by the authorities, including drafting the Suicide and Self-Harm Prevention Strategy are noted with interest. As concerns the medical examination of conscripts, progress was attested by the Human Rights Defender in its annual report of 2021, according to which the number of complaints regarding medical examinations for drafting to army decreased significantly due to the authorities’ efforts. However, the Human Rights Defender raised issues related to the prevention of suicides and provision of medical care during military service. [7] The NGOs also raise a number of issues in their Rule 9 communications about the fact that phycologist officers are not present in all military units and noted the need to improve their professional qualification and functional independence.

The Committee may thus wish to invite the authorities to keep it informed on further measures adopted, including on the actions envisaged in the Suicide and Self-Harm Prevention Strategy, its adoption and further implementation, as well as on ensuring a proper psychological assessment of and assistance to servicemen.

Furthermore, the authorities should be invited to inform the Committee about the steps taken to exclude violations similar to the one in the case of Ashot Malkhasyan, i.e. on medical examination of conscripts regarding their fitness for compulsory military service.[8]

Financing assured: YES