CASE OF AYVAZYAN v. ARMENIA
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect)
Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
5. The applicant was born in 1951 and lives in Rostov-on-Don, Russian Federation. She is the sister of Seyran Ayvazyan, who was born in 1961 and was killed by police officers on 6 March 2006. He had been suffering from a mental disorder (paranoid-type schizophrenia) and at the material time had been living alone in the village of Odzun, in the Lori Region of Armenia. 6. The circumstances of Seryan Ayvazyan’s fatal shooting, as established by the decision issued by the investigator on 3 October 2006 following the end of the investigation (see paragraph 30 below), are as follows. 7. On 6 March 2006 at around 11 a.m. Seyran Ayvazyan went to a local shop, where he took out a knife and, for no reason, stabbed H.Ch., a shop assistant, in the arm, and E.P., a customer entering the shop, in the cheek. He then went home. 8. Some time later, after a telephone call made from the Odzun Medical Centre to the police station of the nearby town of Tumanyan, four police officers, A.A., V.B., A.E. and M.V., arrived at Seyran Ayvazyan’s house. As they approached, Seyran Ayvazyan was in the garden and, having seen the police officers, ran towards the house. The police officers started chasing him. As Seyran Ayvazyan entered the house and was about to shut the door, police officer V.B. reached him and started to push the door open. At that moment Seyran Ayvazyan stabbed V.B. in the arm and cheek with the knife, through the half-open door, and managed to shut the door. V.B. was taken by car to hospital, while A.A. and A.E., who remained at the house, called Tumanyan police station and reported the incident. Then they tried to persuade Seyran Ayvazyan to come out, but the latter refused to do so, threatening to kill anybody who tried to approach the house and sharpening his knives in full view. They contacted one of Seyran Ayvazyan’s sisters, who lived in the same village, but she refused to come. Having received the call from A.A. and A.E, nine more police officers, including A.S., N.N., G.M., R.M., H.Gev., and H.Gri, led by Major A.B., the chief of Tumanyan police station, arrived at the house and surrounded it. The mayor of Odzun, an ambulance and the fire brigade were also called. Another attempt was made to have Seyran Ayvazyan’s relatives, who lived in the same village, come to the scene in order to persuade him to surrender, but they refused to come. Then for about five hours the police officers tried to persuade Seyran Ayvazyan to surrender, but he continued to display the same threatening behaviour as earlier. In the meantime, the police officers contacted the head of Vanadzor Psychiatric Hospital, who told them that it would only be possible to tranquillise Seyran Ayvazyan only in hospital. 9. At around 5 p.m. it was decided to neutralise and apprehend Seyran Ayvazyan by spraying him with water from the hose of a fire engine. After the fire hose had been turned on, six police officers, A.S., N.N., G.M., R.M., H.Gev. and A.A., upon an order from the chief of Tumanyan police station, pushed open the door and entered the house. H.Gev., who was the first to enter, held a small wooden table in front of him as a shield against a knife attack. After the police officers entered, they saw that the way from the corridor into the room had been barricaded with furniture. The police officers decided on the spot to leave the house and the entire group went out. Having seen that the police officers were leaving, Seyran Ayvazyan moved towards them with a knife in each hand, reached H.Gev. by the door to the porch, and stabbed him in the head with one of the knives. H.Gev. immediately fell as a result of the stabbing. As he was lying on the ground, Seyran Ayvazyan tried to stab him again, but at that moment another police officer, H.Gri., who was guarding the entrance, fired a warning shot in the air from his automatic rifle and, seeing that Seyran Ayvazyan was still trying to stab H.Gev., shot at Seyran Ayvazyan’s legs. At the same time, and independently of those actions, police officers A.S., A.A. and R.M., seeing that H.Gev. had fallen as a result of the assault and that Seyran Ayvazyan was trying to stab him again, started to shoot with their pistols at Seyran Ayvazyan’s legs. A.S. fired eight shots, while A.A. and R.M. fired three shots each. As a result of the shooting, Seyran Ayvazyan was wounded, fell and died. 10. During the subsequent on-site inspection, two knives were found in the porch, as well as a hand grenade and one more knife in the corridor. 11. During an inspection of Seyran Ayvazyan’s clothes, two more knives and a medical lancet were discovered. 12. As a result of being assaulted by Seyran Ayvazyan, civilians H.Ch. and E.P. and police officers V.B. and H.Gev. received injuries that were of minor or medium severity, but not life-threatening. 13. The applicant contested these facts and alleged that in reality Seyran Ayvazyan had not posed a threat to police officer H.Gev.’s life and that the police officers had simply executed him in retaliation for his having injured one of their colleagues. 14. On the date of the incident the Lori regional prosecutor’s office decided to institute criminal case no. 55200706 for attempted murder under Article 104, in conjunction with Article 34 of the Criminal Code (CC), on account of Seyran Ayvazyan’s actions, namely his armed assaults on civilians and police officers. 15. On the same date an inspection of the crime scene was conducted and a report produced, which included sketch maps. The house had two rooms, one behind the other, divided by a wall, with a passageway on the right. All along the front of the house there was a porch, which measured 3 by 1.8 metres. There were windows onto the porch on the left, and the main entrance was on the right, in front of the abovementioned passageway. The house also had windows on the right side. The sketch map also noted the positions of Seyran Ayvazyan and police officer H.Gev. at the time of the incident. Seyran Ayvazyan appears to have been on the porch just outside the main entrance and police officer H.Gev. appears to have been next to him. Police officers H.Gri. and R.M. were also on the porch to the left of the main entrance, while police officers A.S. and A.A. were outside the porch in front of the main entrance. 16. On 7 March 2006 an autopsy was conducted. According to the results, Seyran Ayvazyan had received wounds from ten bullets, nine of which had hit him in his calves and thighs and his left forearm and one of which had hit him in the chest. Six bullets had been shot at Seyran Ayvazyan from behind. The direct cause of Seyran Ayvazyan’s death had been severe internal bleeding resulting from a bullet wound to the chest, which had damaged the lower part of the heart and a lung. Death had occurred shortly after Seyran Ayvazyan being wounded. 17. On 11 April 2006 An.A., one of Seyran Ayvazyan’s four sisters, was granted victim status in the instituted criminal proceedings. This decision indicated that, as a result of a crime, physical damage, namely death, had been inflicted on Seyran Ayvazyan. 18. On 18 April 2006 a ballistic examination of cartridge cases and bullets retrieved after the incident was conducted. It was established that they had come from police ammunition. The weapons that had been used were three Makarov pistols and one Kalashnikov automatic rifle. 19. On 16 June 2006 a forensic examination concluded that the five knives and the medical lancet did not fall into the category of “bladed weapons”. All of the knives but one were homemade. 20. On 22 June 2006 a forensic examination report was released. According to the report, Seyran Ayvazyan’s clothes had been damaged by at least twelve bullets shot at close range. 21. On 10 August 2006 a medical expert produced his opinion regarding Seyran Ayvazyan’s mental health, according to which, Seyran Ayvazyan had suffered from a mental disorder – paranoid schizophrenia, and had received treatment for his condition in various mental health institutions since 1993. 22. The investigator took statements from five of the seven police officers involved in the arrest operation and the fatal shooting (A.S., H.Gev., H.Gri., N.N., A.A., G.M. and R.M.). Three of the four police officers who had fired shots, A.S., H.Gri. and A.A., were questioned on 6, 14 and 16 March 2006 respectively, while H.Gev. (who had been injured in the incident) and N.N. were questioned on 7 and 15 March 2006 respectively. The police officers were asked to provide an account of the incident. 23. Police officer A.S.’s account was as follows. Seyran Ayvazyan was in the second (rear) room when the six police officers entered the house. The door was barricaded with an armchair and a wardrobe. As they were entering, he proposed that Seyran Ayvazyan come out of the room but he held the knife as if he wanted to throw it and kept threatening to stab him. Realising that it was not possible to remove him from the room and that he could harm someone, A.S. told the other five police officers that they should all go outside and find another way to neutralise Seyran Ayvazyan. They left the house; the last one to leave was H.Gev., who was holding a table to protect himself in case a knife was thrown. A.S. went down from the porch and was already in the yard when those of his colleagues who had gathered there shouted “He has come out and attacked.” H.Gev. was holding a table, defending himself against Seyran Ayvazyan. A.S. ran towards them and saw Seyran Ayvazyan stab H.Gev. in the head, so he shot at Seyran Ayvazyan’s legs. Seyran Ayvazyan fell down and, while lying on the ground, he threw the same knife at H.Gev. Then he took out another knife and threw it at the police officers. A.S. fired again in his direction. Seyran Ayvazyan then took out a third knife, rolled over, while shouting, and tried to throw the knife in A.S.’s direction. A.S. fired again and Seyran Ayvazyan dropped the knife. The police officers approached and handcuffed him. 24. Police officer H.Gev.’s account was as follows. After the six police officers had entered the house, Seyran Ayvazyan threatened them and told them to leave. They left – that is to say he noticed that the others had already gone out. Realising that he was alone, he tried to leave the house while holding the table. He had not yet reached the door when suddenly Seyran Ayvazyan screamed and ran towards him with a knife in his hand. Seeing this, he tried to move faster towards the door. Seyran Ayvazyan reached him and stabbed him with the knife in the head. This happened in the doorway. Seyran Ayvazyan managed to stab him because he (that is to say Seyran Ayvazyan) was taller, although he (that is to say H.Gev) had managed to a certain extent to push Seyran Ayvazyan back with the table. He fell down on the porch. As he was lying on his side, facing the door and bleeding, he saw Seyran Ayvazyan trying to stab him a second time with the same knife, again in the head. Seyran Ayvazyan was still standing at a distance of one metre away while he (that is to say H.Gev) continued to use the table to defend himself. After Seyran Ayvazyan had tried to stab him for a second time, he heard a number of shots, but could not remember how many. He saw that the shots had hit Seyran Ayvazyan in the legs. Seyran Ayvazyan fell down, with his legs lying next to his own. Seyran Ayvazyan then took out another knife. Seyran Ayvazyan must have thrown the first knife either in his direction or in the direction of those who were behind him, but he could not tell how far away the knife had been thrown. Seyran Ayvazyan subsequently wanted to get up and stab him again, but then he heard other shots. Seyran Ayvazyan was screaming loudly, but while the shots were being fired the others dragged him away from Seyran Ayvazyan and transported him to the hospital. 25. Police officer H.Gri.’s account was as follows. Seyran Ayvazyan hid behind the wardrobe with a knife in his hand and made death threats when the six police officers tried to approach. At that time he was standing with his rifle next to the porch windows. Then he heard Seyran Ayvazyan screaming and saw the others come out of the house and Seyran Ayvazyan, with a knife in his hand, run towards and reach H.Gev. (who had been the last to leave) and stab him in the head. H.Gev. squatted and started bleeding. With the same knife Seyran Ayvazyan tried to stab H.Gev., who was at that time lying on the ground, one more time. He fired a warning shot in the air but seeing that Seyran Ayvazyan was trying to stab H.Gev. again he fired at Seyran Ayvazyan’s left leg, with the aim of neutralising him. Seyran Ayvazyan did not fall after his shot but stumbled back with a knife in his hand. One of the police officers at that moment managed to drag H.Gev. away from Seyran Ayvazyan, who then threw a knife at them and took out another knife to throw again. Seyran Ayvazyan was still standing. He heard a number of other shots but could not tell who had fired them, how many there had been and at which parts of Seyran Ayvazyan’s body the shots had been fired. He did not fire any other shots apart from the above-mentioned two. Then the other police officers managed to approach and disarm Seyran Ayvazyan, who was already on the ground. 26. Police officer N.N.’s account was as follows. Police officer H.Gev. was the first to enter the house, holding a table as a shield, since Seyran Ayvazyan was holding a knife by its blade and was threatening to throw it. He and the others following H.Gev. entered the first room. Seyran Ayvazyan retreated into the second room and barricaded the door with an armchair, which prevented them from entering the second room. Seyran Ayvazyan refused to give up and would not allow them to advance, threatening them with a knife. They were forced to leave the house. While they were still on the porch, he N.N. heard the others saying “He’s coming”. He turned around and saw that Seyran Ayvazyan, having left the house, in the doorway stabbed H.Gev. in the head with a knife. H.Gev. immediately started bleeding. He had tried to defend himself with a table, but Seyran Ayvazyan had managed to stretch his hand over it and stab H.Gev., who had fallen down. As far as N.N. could recall, Seyran Ayvazyan then fell; after falling he threw the knife at them. Then Seyran Ayvazyan took out another knife and wanted to stab H.Gev. again. At that moment N.N. heard shots but did not see who was firing. Then they managed to handcuff Seyran Ayvazyan. 27. Police officer A.A.’s account was as follows. Once the fire engine had started working, they broke down the door and entered the house. H.Gev. was the first to enter – or rather they all entered together, with a small table in front of them for protection. At that moment the fire engine was spraying water at Seyran Ayvazyan, who had barricaded himself in with a wardrobe and moved the wardrobe to protect himself from the water. Seyran Ayvazyan had also placed an armchair between the two rooms, so that they could not enter the second room. They tried to persuade him to throw down the knife, but he continued to threaten them. As Seyran Ayvazyan was not coming out and was refusing to calm down, A.A. received an order to leave the house in order that an alternative plan could be devised. As the six police officers were leaving, Seyran Ayvazyan unexpectedly ran towards them, screaming loudly. A.A. could not see whether Seyran Ayvazyan had a knife since he (that is to say A.A.) was facing the main entrance. He heard somebody outside say “Careful, he’s about to strike”. He then jumped out of the house and over the porch into the yard. Before rolling away, he heard two shots and saw H.Gev. lying in the porch on his back, facing the main entrance. Seyran Ayvazyan was squatting with a knife in his hand and was trying to stab H.Gev., who had already been injured. Thinking that the shots fired earlier had not touched Seyran Ayvazyan and that, if he did not shoot, Seyran Ayvazyan would strike again and kill H.Gev., he took out his weapon, took aim at Seyran Ayvazyan’s legs and fired three shots at them. While shooting, he heard other shots and saw Seyran Ayvazyan fall next to H.Gev. He then saw two knives in Seyran Ayvazyan’s hands. 28. The investigator posed between two to four questions to each of the police officers. A.S. was asked (a) whether it would have been possible to neutralise Seyran Ayvazyan without the use of firearms (answer: negative) and (b) how many firearms had been used for that purpose (three). H.Gev. was asked how much time had elapsed between their entering the house and the stabbing (three to four minutes). H.Gri. was asked who had been beside him at the time of the shooting (police officer A.S.) and how many knives Seyran Ayvazyan had had (at least three). N.N. and A.A. were asked whether they had received an order to shoot before they had entered the house (both: negative). A.A. was also asked (a) who had been beside him at the time of the shooting (he could not remember) and (b) to provide further details of the shooting incident. H.Gev., H.Gri., N.N. and A.A. were also asked whether they had noticed a grenade in Seyran Ayvazyan’s hands or whether he had made threats with a grenade (all four: negative). 29. Between 20 March and 30 July 2006 the investigator took statements from six other police officers who had been present at the scene. Police officers H.Grig. and L.K., who had witnessed the shooting incident, were asked to provide accounts. Police officer D.K. submitted, inter alia, that neighbours and other villagers had been present and had watched the entire incident; this was confirmed by H.Grig. Police officer S.A. submitted, inter alia, that there had been between ten and twenty police officers at the scene. All the above-mentioned police officers submitted that the fire brigade and an ambulance had been called to the scene. L.K. further submitted that he had seen another police officer, A.T., filming the incident but was not sure whether he had been filming during the shooting. A.T., when asked about the video, submitted that no material was available since he had been mistakenly filming without a tape in the camera, which he had discovered only later. 30. On 3 October 2006 an investigator of the Lori regional prosecutor’s office, decided to discontinue criminal case no. 55200706 in the light of the death of Seyran Ayvazyan. By the same decision the investigator refused to institute criminal proceedings against police officers A.S., A.A., R.M. and H.Gri. The wording of the decision first outlined the facts, as established by the investigation (see paragraphs 7-12 above), and concluded that the police officers had employed their service weapons in the light of the exigencies of the situation for the purpose of repelling a life-threatening attack on police officer H.Gev. Thus, their actions had been lawful, as they had been undertaken in compliance with the requirements of sections 32 § 2 and 33 of the Police Act. 31. On an unspecified date the applicant, together with An.A. and her two other sisters, lodged a complaint with the Lori regional prosecutor seeking to quash the part of the decision of 3 October 2006 relating to the refusal to institute criminal proceedings against the police officers. 32. On 16 November 2006 the Lori regional prosecutor informed them by letter that there were no legal grounds for quashing the decision of 3 October 2006 since it had been taken on the basis of an accurate 33. The applicant and her three sisters then lodged a similar complaint with the General Prosecutor’s Office of Armenia. 34. On 19 January 2007 the General Prosecutor’s Office informed them that there were no grounds for quashing the decision of 3 October 2006 since, following a thorough and objective investigation, the actions of the police officers had been determined to have been lawful. 35. On 27 June 2007 An.A. lodged a complaint in her capacity as a victim with the Lori Regional Court against the decision of 3 October 2006, seeking to have invalidated the part of the decision concerning the refusal to institute criminal proceedings against the police officers for killing her brother. In particular, she complained that, despite the fact that her brother had been deliberately killed by the police officers, no separate criminal proceedings had been instituted and no criminal investigation had been conducted into the fact of his killing. She also complained that the police officers had opened fire on Seyran Ayvazyan in a situation where there had been no threat to life or limb for any of them. As to the finding of a grenade in Seyran Ayvazyan’s house, An.A stated that this could not serve as justification for the police officers’ actions, since it had been discovered only after the fatal incident had taken place, and her brother had never threatened the policemen that he would use it. 36. On 29 June 2007 the Lori Regional Court admitted the complaint for examination as having been lodged in compliance with Articles 185 and 263 of the Code of Criminal Procedure (“the CCP”). 37. On 12 September 2007 the Lori Regional Court, relying on the facts, as established by the investigation, examined the complaint and decided to dismiss it, finding that the use of firearms by the police officers had been justified as they had opened fire to prevent, and protect themselves from, Seyran Ayvazyan’s unlawful violent actions. It concluded that the police officers had acted in necessary defence, as provided for by Article 42 of the CC, and also in compliance with sections 32 § 2 and 33 of the Police Act. The Regional Court moreover held that there was no need to institute separate criminal proceedings concerning Seyran Ayvazyan’s killing, since the investigation into that incident had been carried out within the framework of criminal proceedings instituted in relation to Seyran Ayvazyan’s unlawful actions. Separately, the Regional Court found that the complaint against the refusal to institute criminal proceedings had been lodged outside the one-month time-limit prescribed by Article 290 of the CCP. 38. On 27 September 2007 An.A. lodged an appeal against the decision of the Regional Court raising the same arguments as those contained in her original court complaint. She also alleged that she had lodged her complaint in compliance with the procedural rules since neither of the applicable Articles of the CCP, namely Articles 185 and 263 (as in force at the material time), had provided any time-limit for lodging a complaint. 39. On 23 October 2007 the Criminal Court of Appeal examined the merits of the appeal and dismissed it, upholding the findings of the Regional Court concerning the lawfulness of the police officers’ actions. It then also examined the question of the compliance of An.A.’s court complaint with the procedural rules and found that it had not been lodged in compliance with Article 290 of the CCP. 40. On 1 February 2008 An.A. lodged an appeal on points of law against the decision of the Court of Appeal, raising the same arguments regarding both the admissibility and the merits of her court complaint. 41. On 4 March 2008 the Court of Cassation declared the appeal admissible. 42. On 23 May 2008 the Court of Cassation examined the appeal. Turning to the question of compliance with domestic time-limits, it found that the appeal procedure pursued by An.A. was indeed governed by Article 263 § 2, which at the material time had not prescribed any time-limits for contesting the prosecutor’s refusal before the courts. However, the onemonth time-limit prescribed by Article 290 was applicable to her case. The appeal had only been lodged on 27 June 2007 – namely outside that one-month timelimit. Thus, both the Regional Court and the Court of Appeal had exceeded their temporal jurisdiction by examining the merits of An.A.’s complaint. This in itself was sufficient grounds for rejecting the appeal; however, the Court of Cassation found it necessary – taking into account the fact that (a) both courts had examined the merits of the case and had reached findings on the merits, and (b) it was called upon to ensure uniform application of the law – to express a number of legal positions on the matter, which could provide guidance to lower courts in similar cases. 43. The Court of Cassation first examined the question of whether any criminal proceedings had been instituted and any investigation carried out into the killing of Seyran Ayvazyan. Referring to Articles 27 § 1, 175 and 182 §§ 1 and 2 of the CCP, the Court of Cassation concluded that it was impossible to answer that question unequivocally. In particular, a number of factors suggested that criminal case no. 55200706 had been instituted on account of the acts committed by Seyran Ayvazyan rather than his killing. Firstly, the proceedings had been instituted only under Article 104 § 2 (1), in conjunction with Article 34 of the CC (namely in respect of attempted murder of two or more persons) and therefore could not legally be characterised as applying to his killing. Secondly, the wording of the decision to discontinue the proceedings also contained a refusal to institute criminal proceedings against the police officers implicated in his shooting, which confirmed that no criminal proceedings had been instituted on account of that incident. 44. On the other hand, a number of factors suggested that the proceedings instituted had also been based on the fact that he had been killed, and an investigation had been carried out in that connection. Thus, the descriptive part of the wording of the decision to institute proceedings had mentioned the fact that Seyran Ayvazyan had been taken to hospital and had died. Furthermore, Seyran Ayvazyan’s sister, An.A., had been granted victim status in the criminal case by decision of the investigator, moreover, that decision had stated that Seyran Ayvazyan had been deprived of his life “as a result of a crime”. Lastly, certain investigative measures taken in the course of the criminal proceedings had been aimed at obtaining evidence concerning the circumstances of Seyran Ayvazyan’s death, including the inspections of the crime scene, of Seyran Ayvazyan’s body and of his clothes, the autopsy, the forensic examination of his clothes and the interviews with the police officers who had shot at Seyran Ayvazyan or witnessed the shootings. This suggested that some investigation into his death had nevertheless been carried out. Having reached this conclusion, the Court of Cassation decided in any event to examine the question of whether the investigation had been adequate. 45. The Court of Cassation firstly noted that there had been no eyewitnesses to the shooting, other than the police officers. However, not all the police officers who had witnessed the shooting had been questioned. In particular, two of the six officers who had been present at the time of the shooting, namely G.M. and R.M, had not been questioned. Thus, the investigating authority had failed to secure all the evidence relating to the incident. As regards those officers who had been questioned, H.Gri. had been questioned eight days, N.N. nine days and A.A. ten days after the incident. No measures had been taken in the meantime to isolate them from each other. While there was no evidence to suggest that the police officers had colluded with each other, the fact that no steps had been taken to minimise such risk constituted a significant shortcoming in the investigation. Furthermore, no adequate assessment had been made of the direction of the bullets fired at Seyran Ayvazyan. In particular, no reasonable explanation had been determined by the investigation for the fact that six bullets had been fired at Seyran Ayvazyan from behind. 46. On the basis of those findings, the Court of Cassation concluded that the investigation into the killing of Seyran Ayvazyan had not been adequate. Nevertheless, the Court of Cassation decided to dismiss the appeal on points of law on the ground that neither the Lori Regional Court nor the Criminal Court of Appeal had had temporal competence to examine the complaint against the decision of 3 October 2006. 47. On an unspecified date Seyran Ayvazyan’s sister, An.A., died.