European Court of Human Rights

 

 

FIFTH SECTION

CASE OF HAKOBYAN v. GEORGIA

(Application no. 64300/16)

 

 

 

 

JUDGMENT

 

STRASBOURG

23 March 2023

 

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of Hakobyan v. Georgia,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Carlo Ranzoni, President,
          Lado Chanturia,
          María Elósegui, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 64300/16) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 October 2016 by a Russian national, Mr Myasnik Hakobyan (“the applicant”), who was born in 1935 and lives in Yerevan and who was represented by Ms H. Grigoryan, a lawyer practising in Yerevan;

the decision to give notice of the complaints under Articles 2 and 13 of the Convention to the Georgian Government (“the Government”), represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 2 March 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The present application concerns the alleged failure of the authorities to carry out an effective criminal investigation into the death of the applicant’s son, in alleged breach of Articles 2 and 13 of the Convention.

2.  On 26 July 2015 the dead body of S.H., the applicant’s son, was discovered in a village. A criminal investigation into the suspected murder was opened on the same day and a number of investigative measures were carried out. Individuals who had spotted a car belonging to S.H. near the crime scene and a witness who had seen some individuals fleeing were questioned. Biological and other material was collected for expert examination.

3.  On 30 July 2015 three individuals were charged with failure to report the preparation and commission of S.H.’s murder by a certain V.H., who, according to the case material, had come to Georgia for the purpose of killing S.H., and had left immediately afterwards and settled in Russia. The criminal investigation in respect of those three individuals in relation to the offence of failing to report a crime was conducted separately from the one concerning the suspected murder of the applicant’s son.

4.  Numerous expert and other examinations were implemented in 2015 and 2016 as part of the criminal investigation into the suspected murder. Multiple witnesses were questioned.

5.  On 5 January 2016 a prosecutor granted the applicant the procedural status of a victim in relation to the investigation. He was given an explanation of the relevant procedural rights.

6.  On 9 March 2016 a prosecutor supervising the activities of the regional prosecuting authorities examined the applicant’s complaint with respect to the alleged ineffectiveness of the criminal investigation into the murder and instructed the regional authorities to question the applicant and A.B., the victim’s wife, a further time. It was noted that the investigation was to determine the identity of the owner of a woman’s bag seized from the victim’s car and certain other matters relating to the case. A.B., who was based in Armenia at the time, visited Georgia on several occasions in 2017 but, despite the prosecutor’s telephone request, she did not report to the authorities for questioning.

7.  On 7 April 2016 the Akhaltsikhe District Court, in public proceedings attended by the applicant, acquitted the three individuals of the charge relating to failure to report a crime. The trial court noted as follows:

“[I]n the instant case the document containing the charges indicates that the [three individuals charged with the offence of failure to report a crime] were made aware of a planned murder and its commission and failed to notify the law-enforcement authority, but it is unclear [from the document in question] when, by whom, and generally in what way they became aware that the murder had been under way. From an analysis of the evidence available in the case file, in particular the record of the questioning of A.I. [one of the individuals charged] and the investigative experiment (verifying his statement on the ground) we can assume that the charges imply that the accused directly participated in the planning of the offence, obtained the weapon and gave it to the person who committed the offence, indicated the victim’s whereabouts, helped him acquire the car which he had needed to move around to commit the crime, and bought the mobile phone SIM cards. These circumstances indicate the [possibility] that the actions of the persons charged with an offence [of failing to report a crime] were criminal in nature. The [prosecution] has not assessed whether the [three individuals concerned] have been charged with failure to report a crime in respect of which their reporting would have resulted in the initiation of criminal proceedings against them for aiding in the commission of a crime. Accordingly, in addition to the fact that the prosecution has not presented any evidence proving the possession of information regarding the preparation of a crime ..., the individuals are charged in such a manner (as is evident from the case material) that it is impossible to convict them. It would be unlawful to convict a person for failing to report a crime which that person had [possibly] committed himself or herself. Accordingly, the charge is unsubstantiated and is based only on assumptions, without the existence of a body of evidence proving guilt.”

8.  On 31 January 2017 the Kutaisi Court of Appeal agreed with the trial court’s reasoning and findings. It appears from the case file and the parties’ submissions that the Supreme Court upheld the lower courts’ findings.

9.  On 2 June 2017 the Chief Prosecutor’s Office (“the CPO”) sent a legal assistance request to the relevant Russian authorities. It noted that the domestic authorities had sufficient information to believe that V.H. - who had crossed from Georgia into Russia - had been behind S.H.’s murder. The CPO therefore asked its Russian counterparts to locate V.H. and to question him as a witness. A similar request was sent to the Armenian authorities in respect of another witness.

10.  On 17 August 2017 the investigator summoned the three acquitted individuals for additional questioning. They did not appear.

11.  On several occasions in 2017 the investigator tried to contact a taxi driver who had helped two Armenian men allegedly implicated in the murder of S.H. to buy the car used in the murder, with a view to summoning him for questioning and participation in the identification parade, but his phone was turned off.

12.  On 25 January 2018 the Prosecutor General’s Office of the Russian Federation responded to the CPO, noting that it had been unable to determine V.H.’s address. However, it had questioned a certain S.G., who had explained that V.H. had been living in Moscow since April 2017 but was unaware of V.H.’s address or contact information.

13.  It appears from information provided by the Government that between February 2018 and July 2022 various investigative measures were implemented. Among other things, in January 2022 the authorities sent a legal assistance request to their Armenian, Russian and Greek counterparts seeking the identification of certain witnesses and potential suspects. Genetic material was also forwarded for identification and comparison with the international DNA database. The respective authorities were unable to locate the individuals concerned and the genetic material submitted by the authorities could not be identified. On 14 April 2022 two photographic identification procedures took place with the participation of a taxi driver (who had been questioned on 29 July 2015 and had stated that he had transported two individuals potentially linked to the murder). The taxi driver could not identify the individuals presented to him as the persons who had ridden in his taxi.

14.  The criminal investigation is ongoing.

15.  The applicant complained under Article 2 and Article 13 of the Convention that the criminal investigation into the murder of his son had been ineffective.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

16.  Relying on Articles 2 and 13 of the Convention the applicant complained about, among other things, the authorities’ failure to grant him the procedural status of a victim, the belated nature of the legal assistance request sent to the Russian authorities asking for V.H. to be questioned, the fact that no official search had been initiated in respect of V.H, and the authorities’ failure to pursue an obvious line of inquiry in respect of the three acquitted individuals. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114, 124 and 126, 20 March 2018), the Court considers that the complaints fall to be examined solely under Article 2 of the Convention.

17.  The Government disagreed, stating that the procedural obligation under Article 2 of the Convention was one of means and not of the result. Accordingly, when all reasonable measures were taken by the authorities to secure evidence concerning the incident, the procedural aspect of Article 2 of the Convention could not be interpreted as entailing a right for the applicant to have third parties prosecuted. In that connection, multiple witnesses had been questioned and various forensic examinations carried out, three individuals had been charged by the prosecutors but acquitted by the domestic courts, and the applicant and the victim’s wife had not appeared before the authorities when summoned for additional questioning.

18.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

19.  The general principles concerning the effectiveness of a criminal investigation under Article 2 of the Convention have been summarised in Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 172-81, 14 April 2015), and Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, §§ 165-68, 25 June 2019).

20.  The Court takes note of the fact that the authorities opened a criminal investigation into the death of the applicant’s son without delay, and that numerous investigative measures including the questioning of witnesses and forensic and other examinations were carried out. It also observes that the applicant was granted the procedural status of a victim in respect of the criminal investigation and could access the material in the case file and make relevant submissions.

21.  While the Court takes into account the difficulties encountered by the investigating and prosecuting authorities because the possible main culprit behind the murder and some of the witnesses did not reside in Georgia, it cannot overlook the fact that the authorities claimed to have had sufficient indication as early as 30 July 2015 that V.H. had been behind the murder of the applicant’s son (see paragraph 3 above), yet they did not send the request for legal assistance to their Russian counterparts until 2 June 2017, approximately two years after the incident and six months after notice of the present application was given to the Government. By then, the Russian authorities could not locate V.H., who had moved to an unknown address in Moscow in April 2017 (see paragraph 12 above). Nor did the authorities issue a search warrant in respect of V.H. Furthermore, and while various investigative measures were implemented between 2018 and 2022, the Government have not provided a plausible explanation for the delay. For instance, it remains unclear why an identification parade was carried out in April 2022 with the participation of a witness whose identity and potential relevance had been known to the authorities since 29 July 2015 (see paragraph 13 above). The Court finds the delays identified above unjustified, considering that over time, memories of witnesses fade or witnesses may become untraceable and the prospects that any effective investigation can be undertaken will increasingly diminish (see Asllani v. the former Yugoslav Republic of Macedonia, no. 24058/13, § 66, 10 December 2015).

22.  As concerns the failure of the victim’s wife and the applicant to appear before the Georgian prosecuting authorities for further questioning, it does not appear that the authorities had considered whether, in view of the fact that those individuals resided in Armenia, measures other than their in-person questioning in Georgia could have been pursued.

23.  The foregoing considerations are sufficient for the Court to find that the criminal investigation into the death of the applicant’s son has not been effective, in breach of the procedural aspect of Article 2 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  The applicant claimed 40,000 euros (EUR) in respect of pecuniary damage. As regards non-pecuniary damage, the applicant submitted that he had “suffered great mental distress” as a result of the ineffective investigation of his son’s death, which would not be adequately compensated for by the finding of a violation, and he requested an award in respect of non-pecuniary damage without indicating any amount.

25.  The applicant also claimed 4,000 United States dollars (USD) in respect of costs and expenses incurred before the domestic courts and a sum in respect of the proceedings before the Court, to be calculated on the basis of EUR 500 per month from September 2016 until the final resolution of his case.

26.  The Government submitted that the applicant’s request relating to pecuniary damage had been wholly unsubstantiated and that the applicant had failed to request an award in respect of non-pecuniary damage. As regards costs and expenses, the Government argued that the applicant’s claim had been unsubstantiated, inconsistent and excessive.

27.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As concerns non-pecuniary damage, the Court considers that the applicant requested an award without quantifying the amount, effectively leaving the matter to the Court’s discretion (see, for instance, Nagmetov v. Russia [GC], no. 35589/08, § 72, 30 March 2017). Ruling on an equitable basis, the Court awards EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

28.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 in respect of the proceedings before the Court, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of the procedural aspect of Article 2 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts:

(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 23 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

            Martina Keller                                                    Carlo Ranzoni
          Deputy Registrar                                                      President