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CASE OF VIRABYAN V. ARMENIA
(Application no. 40094/05)
JUDGMENT
STRASBOURG
2 October 2012
FINAL
02/01/2013
This judgment has become final under Article 44 § 2 of the Convention.
It may be subject to editorial revision.
In the case of Virabyan v. Armenia,
The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Josep Casadevall, President,
Egbert Myjer,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 11 September 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 40094/05) against the
Republic of Armenia lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
("the Convention") by an Armenian national, Mr Grisha Virabyan ("the
applicant"), on 10 November 2005.
2. The applicant was represented by Ms L. Claridge, Mr M. Muller, Mr
T. Otty and Mr K. Yildiz, lawyers of the Kurdish Human Rights Project
(KHRP) based in London, Mr T. Ter-Yesayan, a lawyer practising in
Yerevan, and Mr A. Ghazaryan, a non-practising lawyer. The Armenian
Government ("the Government") were represented by their Agent, Mr G.
Kostanyan, Representative of the Republic of Armenia at the European
Court of Human Rights.
3. The applicant alleged, in particular, that he had been tortured
while in police custody and no effective investigation had been
carried out into his allegations of torture, that the grounds on which
the criminal proceedings against him had been terminated violated the
presumption of innocence and that his ill-treatment had been motivated
by his political opinion.
4. On 10 September 2008 the President of the Third Section decided to
give notice of the application to the Government. It was also decided
to rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1958 and lives in Shahumyan Village,
Ararat Region of Armenia.
A. Background to the case
6. The applicant was a member of one of the main opposition parties
at the material time in Armenia, the People's Party of Armenia (PPA).
7. In February and March 2003 a presidential election was held in
Armenia. The applicant acted as an authorised election assistant
(Õ¾Õ½Õ¿Õ¡Õ°Õ¾Õ¡Õ® Õ¡Õ¶Õ±) for the PPA candidate who was the main opposition
candidate in the election. Following the election, which was won by
the incumbent President, the international election observation
mission concluded that the overall election process fell short of
international standards. It appears that mass protests followed. The
PPA candidate challenged the election results in the Constitutional
Court, which on 16 April 2003 recommended that a referendum of
confidence in the re-elected President be held in Armenia within a
year.
8. As the April 2004 one-year deadline approached, the opposition
stepped up its campaign to challenge the legitimacy of the re-elected
President and began to hold rallies around the country to express its
demands. Numerous rallies were held in March and April 2004 and the
applicant appears to have participated in them. He alleged that the
authorities had retaliated by arresting and harassing opposition
supporters, including himself. According to him, during this period
the local police officers visited on a daily basis his home in
Shahumyan village where his mother lived, with the intention of taking
him to the police station. He was forced to stay away from home and to
hide in Yerevan.
9. On 12 April 2004 a rally was organised by the opposition parties
which took place on Freedom Square in Yerevan and was followed by a
march towards the presidential residence. Between 10,000 and 15,000
people attended the rally, including the applicant. It appears that
the police eventually dispersed the crowd at around 2 a.m. on 13 April
2004.
B. The applicant's arrest and alleged ill-treatment
1. The circumstances of the applicant's arrest of 23 April 2004
10. According to the police materials, on 23 April 2004 at 5.05 p.m.
an anonymous telephone call was received at the Artashat Police
Department alleging that the applicant, while attending the
demonstration of 12 April 2004, had been carrying a firearm which he
still had on him. Two police officers, R.S. and A.S., were ordered to
bring the applicant to the police station.
11. According to the record of taking the applicant to the Artashat
Police Department, the applicant was taken there on 23 April 2004 at
5.40 p.m. on suspicion of carrying a firearm and for using foul
language towards police officers and not obeying their lawful orders.
It was noted that the applicant refused to sign the record.
12. At 5.50 p.m. the applicant was subjected to a search by the
arresting police officer R.S. and another police officer, A.M., in the
presence of two witnesses, during which a mobile phone and a lighter
were found. The record of the applicant's search similarly noted that
the applicant refused to sign it.
13. Both arresting police officers, R.S. and A.S., reported to the
chief of police that the applicant had used foul language during his
arrest. In particular, the applicant had said "I have had enough of
you! What do you want from me? Why have you come here? Who are you to
take me to the police station?" They further reported that he had made
a fuss and disobeyed their lawful orders but they had somehow managed
to place him in the police car. On the way to the police station he
had continued using foul language, saying that he would have them all
fired and that they would be held responsible for this.
14. The applicant contests this version of events and alleges that he
was stopped near his home by police officers R.S. and A.S. between 2
p.m. and 3 p.m. They asked him to accompany them to the police
station, explaining that the chief of police wanted to have a talk
with him. He agreed and got into the police car without any
resistance. At the police station he was taken to the office of
another police officer, H.M., who asked him questions about his
participation in demonstrations and about a fellow opposition
activist, G.A., who had been arrested some days before. Thereafter he
was taken to the office of deputy chief of police G., who said that he
was using foul language and ordered that an administrative case be
prepared. He was then taken to another office where police officer
A.M. started preparing the administrative case. He was never subjected
to a search.
15. Police officer A.M. drew up a record of an administrative offence
in which it was stated that the applicant had disobeyed the lawful
orders of police officers and used foul language, which constituted an
offence under Article 182 of the Code of Administrative Offences
(CAO). He further drew up a record on taking an explanation which
stated that the applicant had refused to make a statement. Both
records noted that the applicant had refused to sign them.
16. The applicant alleges that, after police officer A.M. had
finished preparing the materials of the administrative case, he said
that those materials would be taken to a court and it would be better
for somebody to intervene otherwise the applicant risked 15 days in
detention. Then the two had a short conversation, during which the
applicant said, inter alia, that he had been brought to the police
station because of his participation in demonstrations, such arrests
being carried out upon the instructions of the President of Armenia.
Then police officer A.M. left the office.
17. The applicant further alleges that, some minutes after police
officer A.M. had left the office, police officer H.M. entered and
started swearing at him. Police officer H.M. then approached him and
kicked him on the left side of his chest and punched him in the face.
The applicant grabbed the mobile phone charger which was on the desk
and hit police officer H.M. Having heard the noise of the scuffle,
three other police officers entered the office and took him to another
room. About ten minutes later police officer H.M. and another police
officer, A.A., came to that room and started brutally beating him.
After they left the room, another police officer, A.K., entered the
room and started hitting him in the area of his scrotum with a metal
object. He was then handcuffed and police officer A.K. continued
punching and kicking him below the waist, after which he lost
consciousness.
18. It appears that at some point an ambulance was called from
Artashat Hospital to have the applicant checked for alcohol
intoxication. According to the record of a medical examination, the
applicant was examined by the ambulance doctor, A.G., at 7 p.m. and
the test results showed that there were signs of alcohol intoxication.
The applicant alleges that in reality the ambulance doctor was called
to check his level of alcohol intoxication at 3.05 p.m. (see also
paragraph 66 below). A police officer, A.H., who assisted in the
check-up, punched him four times in the face and once below his waist.
19. At an unspecified hour arresting police officer R.S. reported to
the chief of police the following:
"During the preparation of materials on an administrative offence in
respect of [the applicant] who was brought to the police station on
the basis of the information received from an unknown citizen on 23
April 2004 at 5.05 p.m. [the applicant] behaved cynically, obscene and
self-confident, using foul language towards the police officers and
refusing to sign the prepared documents. And when [the applicant]
found out that the materials prepared in his respect would be
submitted to a court for examination, he took a mobile phone charger
from the desk and hit the head of the criminal investigation unit
[H.M.] in the face with it, swearing at him and saying that it was he
who had fabricated everything, after which [the applicant] attempted
to hit him a second time with a telephone that was on the desk but he
was prevented from doing so by me and [police officers A.A. and
A.M.]."
20. It appears that police officer A.A. made a similar report. It
further appears that police officer H.M. was taken to hospital.
21. At an unspecified hour investigator M. of the Ararat Regional
Prosecutor's Office decided to institute criminal proceedings no.
27203404 under Article 316 § 1 of the Criminal Code (CC) on the ground
that the applicant had used force against a public official by hitting
police officer H.M. and thereby inflicting injuries not dangerous for
health. This decision was taken on the basis of the materials
submitted by the Artashat Police Department and contained an account
of events similar to that contained in the above police reports.
22. Investigator M. then took witness statements from police officer
A.M. and arresting police officers R.S. and A.S.
23. Police officer A.M. stated that, when the applicant refused to
make a statement in connection with his administrative case, there
were three other police officers present in the office apart from
himself and the applicant, namely police officers R.S., A.A. and H.M.
Seeing that the applicant was refusing to make a statement, police
officer H.M. told him that he would have to be taken to a court. On
hearing that, the applicant exclaimed "It is you who have fabricated
everything", grabbed the mobile phone charger from the desk and hit
police officer H.M. in the face. Immediately thereafter the applicant
reached for the telephone that was on the desk but police officer A.A.
managed to grab the telephone from him. Then the applicant went
towards police officer H.M., they grasped each other and, while
pushing each other, they fell on the chair standing beside the desk,
which collapsed. The applicant was lying on the floor and police
officer H.M. was lying on him. A.M. - together with police officers
A.A. and R.S. - immediately picked them up. The applicant was then
taken to another office, while police officer H.M. was taken to
hospital. In reply to the investigator's question, police officer A.M.
stated that the police officers had been very polite and to-the-point
with the applicant. He had not been made aware of the applicant's
political affiliation and the only thing he had learned from him was
that he was a friend of the PPA candidate. In reply to the
investigator's second question, police officer A.M. stated that none
of the police officers had hit or beaten the applicant at the police
station before or after the incident.
24. Arresting police officer R.S. made a similar statement. In reply
to the investigator's question as to whether any of the police
officers had hit or beaten the applicant at the police station or
prior to taking him there, police officer R.S. stated that none of the
police officers had hit or beaten the applicant. To the contrary,
taking into account his behaviour and his statements about changing
the government, the police officers had been careful and correct with
him in order to avoid any unnecessary conversations. In reply to the
investigator's second question, police officer R.S. stated that he had
not been made aware of the applicant's political affiliation and the
only thing he had learned from him was that he was a friend of the PPA
candidate.
25. Arresting police officer A.S. stated, inter alia, that he was
away at the time of the incident. He further stated that he had found
out about the reasons why the applicant had been brought to the police
station only after bringing him there. No questions were posed by the
investigator.
26. Investigator M. examined the scene of the incident and drew up a
relevant record which included photographs of the broken chair.
27. At 9.45 p.m. investigator M. drew up a record of the applicant's
arrest which stated that the applicant had been arrested at that hour
on suspicion of having inflicted violence not dangerous for health on
police officer H.M. at around 6.30 p.m. at the Artashat Police
Department.
28. At 10 p.m. investigator M. questioned the applicant as a suspect.
According to the record of the suspect's questioning, the applicant
stated that he was unable to testify at that moment and would make a
statement the next morning. It appears from the record that the
applicant's State-appointed lawyer was present at this questioning.
29. According to a record drawn up by another police officer, O.B.,
at an unspecified hour the applicant felt sick and asked for a doctor.
An ambulance was called. The ambulance doctor A.G., having heard the
applicant's complaints, advised an in-patient examination since his
complaints could be examined only with special equipment. It appears
that this visit took place at 11.20 p.m. It further appears that the
applicant was taken to Artashat Hospital by several police officers
but was not allowed to stay there despite the doctor's
recommendations. The applicant spent that night in a cell at the
police station.
2. The applicant's transfer to hospital and his operation on 24 April 2004
30. On 24 April 2004 at 11.20 a.m. the applicant was taken from the
police station to Artashat Hospital, where he underwent a medical
examination and was then taken to the surgical unit.
31. According to the surgeon's certificate dated 24 April 2004, the
applicant was brought to the hospital's surgical unit with the
following initial diagnosis: "Post-traumatic hematoma of the scrotum,
hematocele of the left testicle, laceration?" Surgery was carried out
on the applicant's scrotum. During the surgery the left testicle was
found to be lacerated and crushed with decomposition of tissue and
with a large amount of accumulated blood (about 400 mg). The
applicant's left testicle was removed. Following the surgery,
in-patient treatment was recommended. The certificate further stated
that in the post-surgical period the applicant was not able to testify
or to answer questions.
32. It appears that on the same date the applicant's chest was
X-rayed at the hospital.
33. Later that day investigator M. decided to release the applicant
from custody. The investigator's decision described the circumstances
of the incident as presented in the above police materials and added
that "[the applicant] had also been injured during the incident" and
taken to hospital. Taking into account that the applicant needed
in-patient treatment, there was no need to keep him in custody.
34. Investigator M. also ordered that both the applicant and police
officer H.M. undergo a forensic medical examination. This decision
stated, inter alia, that it had been established by the investigation
that the applicant, who had been taken to the police station on
suspicion of carrying a firearm, had inflicted injuries on police
officer H.M. by hitting him with a mobile phone charger. As a result
of the incident, the applicant had also been injured. The expert was
asked to answer the following questions in respect of the applicant's
injuries:
"- What kind of physical injuries are there on [the applicant's]
body[? C]larify their nature, location, method of infliction, age and
degree of severity.
- Was the injury to [the applicant's] testicle caused by a blow or by
an illness?
- If the injury to [the applicant's] testicle was caused by a blow,
was it caused by one or several blows?"
35. On the same date the investigator took a witness statement from
police officer H.M. He submitted that following the anonymous
telephone call, deputy chief of police G. had immediately called
police officers R.S. and A.S. to his office, informed them about the
information received and ordered them to bring the applicant
immediately to the police station. After about 30 minutes they had
returned with the applicant. Police officer R.S. reported that in the
village and on the way to the police station the applicant had used
foul language, threatened and used insulting expressions towards the
police. Police officer H.M. had then spoken to the applicant and asked
him to give up voluntarily his firearm. The applicant denied ever
having any firearm and said that he had participated and would
continue to participate in demonstrations. He had then continued using
foul language, saying that the police officers' days in office were
numbered and that the government would be changed soon. Police officer
H.M. went on to describe how he and other police officers started
preparing an administrative case against the applicant under Article
182 of the CAO and the manner in which the later incident took place,
providing an account of events similar to that given by other police
officers (see paragraphs 23 and 24 above). No questions were posed by
the investigator.
3. The first allegations of ill-treatment and other developments
36. On 25 April 2004 the applicant was questioned as a suspect at the
hospital by investigator M. and made the following statement:
"...I am a member of the PPA party and I have lately participated in
demonstrations organised by that party. On 23 April 2004 at around 4
p.m. I was coming home from my aunt's place when I noticed a car
parked next to our house. The car moved and our paths met not far from
my house. I saw our [local policeman R.S.] together with one of our
district inspectors whom I did not know. They stopped and started
talking to me. [R.S.] said that they were coming for me and that the
chief (meaning the chief of police) wanted to have a talk with me. I
answered that if I came to the police department they would keep me
"overnight", taking into account the fact that the same had happened
before to my friends. [R.S.] promised me that no such thing would
happen and I agreed to go with them. We went together to the police. I
and [R.S.] went up to the second floor. After waiting for a moment
next to his office, he took me to the Head of the Criminal
Investigation Unit [H.M.]. There [H.M.] started talking and said
"Grisha, what is this all about the demonstrations you are holding and
the government you are changing? You are upsetting the stability of
the country" and things like that[. H]e also said that I had taken
people to the demonstrations and added that I had taken with me, for
instance, [G.A.]. I asked whether [G.A.] could come and prove that I
had taken him to the demonstrations and added that he had his own
brain to decide what to do. [H.M.] left the office telling me that he
would be back soon. A little while later I was invited to go to the
office of the deputy chief of police [G.]. When I entered [G.'s]
office he asked me why I was talking loudly in the hallway and why I
was organising a demonstration in the building [of the police
station]. I answered that I had not been in the hallway and had not
organised any demonstration. [G.] said that I was using foul language
to him there and then and ordered that a case be prepared on account
of my committing an administrative offence. I and [R.S.] came back to
his office where he, in the presence of [another police officer,
A.M.], said that he would not prepare materials against me and left
the room. A little while later [A.M.] was called[. H]e went away, then
returned and started preparing some documents. He inquired about my
personal details but I refused to say anything and only said that I
had higher education. A little while later [H.M.] came. [A.M.] told
him that I refused to provide any information about myself. He ordered
[A.M.] to go and bring form no. 1. [A.M.] left and came back with a
piece of paper on which I could see my photo. [A.M.] filled in some
documents and asked me to sign them[. I] answered that I would not
sign any documents. At that moment a girl came to [A.M.'s office]. He
told the girl to type a court document. [A.M.], apparently having
finished filling in the documents, was about to go, probably to fetch
the court document. I understood by now that I was going to be taken
to a court and sentenced to an "overnight". Besides, [A.M.] also said
that they were about to take me to a court and left the office. At
that moment [H.M.] entered the office. I was sitting in front of one
of the desks. Upon entering the office he immediately started swearing
at me, also saying that it was their country and that they could do
anything they wanted to and that what we were trying to do, meaning
the change of the government, was all in vain. I answered: "You do
what you think is right and we will do what we consider to be right"[.
A]t that moment [H.M.] kicked me. The blow fell on the left side of my
chest. He kicked me with the sharp tip of his shoe. I felt sharp pain
in the area of my ribs. He immediately punched me twice in the face
with his left fist. At that moment I lost my temper and to defend
myself picked up the mobile phone charger from the desk and hit him
with it. The cable stayed in my hand while the charger broke off and
hit [H.M.'s] face. I saw him holding his eye and screaming. At that
moment [A.M.] entered the office and, seeing the chaotic situation,
took me to the nearby office. [H.M. and another police officer, A.A.,]
followed me there and started beating me. I fell down but they went on
beating me. They were kicking and punching me. Then other officers
came and took [H.M. and A.A.] out. I would like to indicate that at
the very beginning both [H.M. and A.A.] kicked me on my testicles.
Some while after [H.M. and A.A.] had been taken away from the office,
[another police officer A.K.] came to the office [(I learned his name
and position from other officers after the incident)] and started
swearing at me, trying to humiliate me, twice spat on me and punched
my testicles[. Then] he kicked my feet several times and left. Before
leaving he hit me again on my testicles with his keys. [A.K.], before
beating me in the office, ordered everybody to leave, saying that he
was going to abuse me. After he left [A.A.] entered the office and
started beating me again, demanding that I stand upright. He was
hitting and saying "Hit back! Why don't you hit back now?" Some time
later an ambulance doctor came to check whether I was drunk. I told
her that I was not drunk. They contacted the chief of traffic
inspection and asked for an "ampoule". [Another police officer, A.H.,]
brought the ampoule. The doctor broke the edge of the ampoule and I
blew in it. At that time I was asserting again that I was not drunk.
[A.H.] hit me on my forehead. He hit me twice on my forehead. It
seemed like he wanted to show deliberately that he was defending the
honour of the uniform. I was in a terrible condition[. I] asked
[another police officer, M.B.,] and he gave me some water, then poured
it on my head, back and face for me to regain consciousness. [Another
police officer, R.H.,] also helped me; he removed my handcuffs,
realising of course that I was in a bad condition..."
37. On 26 April 2004 investigator M. examined the police journal
where under entry no. 153 it was stated that an anonymous telephone
call had been received on 23 April 2004 at 5.05 p.m. alleging that the
applicant had participated in the demonstration of 12 April 2004 with
a firearm and was still carrying it.
38. On 27 April 2004 the applicant was again questioned as a suspect
at the hospital by investigator M. He was asked about the kind of
conversation he had had at the police station before the incident,
concerning the fact that he had been carrying a firearm. The applicant
replied that none of the police officers had asked him about any
firearm. The only thing he had been asked about was why he was
attending demonstrations and taking others with him. Such questions
were asked by police officer H.M. Furthermore, while police officer
A.K. was beating him, he was asking him which of the opposition
leaders was encouraging his activity. The applicant also added that
police officer A.K. had ordered that he be handcuffed with his hands
behind his back, after which he started beating him in that position.
39. Investigator M. also took a witness statement from police officer
A.A., who repeated the submissions made in his report of 23 April 2004
(see paragraph 20 above). No questions were posed by the investigator.
40. On the same date expert G. of the Ararat Regional Division of the
Republican Forensic Medicine Theoretical and Practical Centre (RFMTPC)
of the Ministry of Health received a copy of the investigator's
decision of 24 April 2004 ordering the applicant's forensic medical
examination (see paragraph 34 above).
41. On that day the Ararat Regional Court decided to grant
investigator M.'s request to have the applicant's home searched,
finding that there were sufficient grounds to believe that firearms
could be hidden there.
42. On 28 April 2004 investigator M. decided to seize the X-ray of
the applicant's chest taken at the hospital on 24 April 2004 (see
paragraph 32 above).
43. On 29 April 2004 the applicant's home was searched and no
firearms were found.
44. On the same date investigator M. questioned as a witness police
officer H.M. The investigator asked police officer H.M. to comment on
the applicant's allegations that H.M. had attacked him first and that
he had been ill-treated after the incident by H.M. and police officer
A.A., to which H.M. replied that the applicant was lying and denied
having ill-treated him, repeating his earlier submissions (see
paragraph 35 above). The investigator then asked police officer H.M.
to comment on the applicant's allegation that the police officers
never asked him any questions about a firearm, to which H.M. replied
that the applicant had been taken to the police station on the grounds
of information that he carried a firearm and the conversation with him
concerned that issue. The applicant, however, would constantly change
the topic to demonstrations, changing the government, the police
officers' "numbered days" in office and their punishment.
45. On 30 April 2004 the applicant lodged an application with the
Prime Minister with copies to the General Prosecutor and the Heads of
the National and Regional Police complaining that on 23 April 2004 at
around 2 p.m. he had been taken by deception to the Artashat Police
Department where he had been beaten and tortured for his participation
in demonstrations. He requested that the perpetrators be punished,
indicating their names, which included H.M., A.H., A.K. and A.A., and
citing his statement of 25 April 2004 for further details (see
paragraph 36 above).
46. On the same date the Armenian Ombudsman, who had apparently
visited the applicant in hospital and was following his case, wrote to
the General Prosecutor's Office and the Head of the National Police,
informing them of the following:
"We have carried out an inquiry into possible human rights violations
in connection with the incident that happened to [the applicant] in
the Artashat Police Department on [23 April 2004].
The data that we have obtained provide grounds for us to assert that
acts which are qualified as "cruel, inhuman or degrading treatment"
have been committed in respect of [the applicant] at the Police
Department.
The fact itself that [the applicant] was taken to the Town Police
Department in good health then transferred to a hospital where he
underwent surgery as a result of the injuries suffered shows that he
was subjected to such treatment regardless of his personality and the
acts he had committed just before.
We are worried by the fact that so far the Armenian Police have not
given their report of what has happened.
During the conversations we had with [the representatives of] the
Regional Prosecutor's Office and with the Heads of Regional and Town
Police opinions were expressed, from which it can be assumed that no
appropriate assessment will be given to the lack of grounds for
bringing the applicant to the police station, the lack of sufficient
grounds for arresting him and the institution of criminal proceedings
specifically against [him].
This is especially worrying in the sense that it can lead to a
one-sided and non-impartial investigation..."
47. On the same date investigator M. took a witness statement from
police officer A.K. who submitted that after the incident he had
entered the office where the applicant was and asked everybody else to
leave in order to talk to him in private and to find out the whole
truth. He then had a chat with the applicant who had expressed remorse
for what had happened. The investigator asked A.K. to comment on the
applicant's allegations of ill-treatment, in reply to which A.K.
denied having ill-treated the applicant. The investigator then asked
A.K. to specify which office he had entered to have a chat with the
applicant and who else was in that office, to which A.K. replied that
he was new at the police station and he could not indicate with
certainty the office in question or the identity of the other police
officers who were there.
C. The criminal proceedings against the applicant
48. On 3 May 2004 the applicant was formally charged under Article
316 § 3 of the CC (see paragraph 121 below) with inflicting violence
dangerous for health on a public official. The decision stated that
the applicant had been brought to the police station on suspicion of
illegal possession of a firearm. At around 6.30 p.m. in the office of
police officer R.S., having been informed by police officer H.M. that
an administrative case was to be brought against him, the applicant
took a mobile phone charger from the table and intentionally hit the
right eye of police officer H.M. with it.
49. On the same date the applicant was discharged from the hospital.
His medical card contained information concerning his diagnosis and
treatment similar to that given in the surgeon's certificate of 24
April 2004 (see paragraph 31 above).
50. On the same date investigator M. took a witness statement from
police officer A.H., who similarly denied having ill-treated the
applicant. Two other police officers, R.H. and M.B., were also
questioned as witnesses. Both denied having helped the applicant,
namely by taking off his handcuffs and giving him water. Police
officer R.H. further stated, in reply to the investigator's question,
that the applicant had never complained to him about his health.
51. On 4 May 2004 investigator M. once again questioned the
applicant, who confirmed his earlier allegations.
52. On 5 May 2004 expert G. drew up his report based on the results
of the applicant's forensic medical examination. The report stated at
the outset that the examination had begun on 27 April 2004 and had
been completed on 5 May 2004. It then recounted in detail in the
chapter entitled "The circumstances of the case" the official account
of the incident, namely that the applicant had assaulted a police
officer and had also been injured during the incident, and added at
the end that, according to the applicant, he had been ill-treated. The
report was concluded with the following expert's findings:
"Results of [the applicant's] personal observation: [The patient] is
lying in bed on his back in a semi-active state ... On the outer
surface of the upper third part of the right shin there is a
green-yellow-coloured bruise measuring 2.5 cm and having an irregular
form. No objective features of other bodily injuries to other parts of
the body have been disclosed. On 5 May 2004 [I received the X-ray
consultation made on 30 April 2004 by an RFMTPC X-ray specialist,
according to which] 'No bone changes have been disclosed in the X-ray
of [the applicant's] left side of the chest'...
Conclusion: [the applicant's] bodily injuries, namely the
post-traumatic hematoma of the scrotum, the hematocele of the left
side, the laceration of the left testicle and the bruise on the right
shin, were caused by blunt and rough objects, [and] it cannot be ruled
out [that they were caused] at the time and in the manner described
above. The injury to the left testicle has a traumatic origin and
could have been caused by any type of blow. In order to assess the
degree of gravity of the bodily injury it is necessary to bring the
patient to the forensic medical examination unit for examination on
the twenty-first day following the incident."
53. On 6 May 2004 the applicant complained to the General Prosecutor
that the criminal proceedings against him were unfounded. He submitted
that investigator M. of the Regional Prosecutor's Office, due to his
official duties, was linked to the police officers of the Regional
Police Department and was therefore not impartial. He requested that
investigator M. be removed from the case, that the case be transferred
to the General Prosecutor's Office and that criminal proceedings be
instituted on account of his torture.
54. On 10 May 2004 the Deputy General Prosecutor decided to dismiss
the applicant's request as unfounded.
55. By a letter of 18 May 2004 the applicant was informed by the
General Prosecutor's Office that his request had been dismissed but
for reasons of expediency, upon the instruction of the General
Prosecutor, the criminal case had been transferred for further
investigation to the Yerevan Prosecutor's Office.
56. On 18 May 2004 expert G. supplemented his initial expert report
by including an assessment of the gravity of the injuries. The
conclusion now stated:
"Conclusion: [the applicant's] bodily injuries, namely the
post-traumatic hematoma of the scrotum, the hematocele of the left
side, the laceration of the left testicle and the bruise on the right
shin, were caused by blunt and rough objects, [and] it cannot be ruled
out [that they were caused] at the time and in the manner described
above; [the injuries] caused damage to health of medium degree with
lasting deterioration of health, taking into account that the
immediate effects of the injury lasted more than twenty-one days."
57. On an unspecified date the applicant wrote to the General
Prosecutor's Office, seeking to have a decision taken on his request
to have criminal proceedings instituted against the police officers.
58. On 21 May 2004 the applicant's criminal case was transferred to
the Yerevan City Prosecutor's Office and was taken over by
investigator T. of the Erebuni and Nubarashen District Prosecutor's
Office of Yerevan.
59. On 24 May 2004 investigator T. questioned the applicant's mother,
who stated that the applicant had never possessed a gun. She further
stated that police officers had previously visited their home on
numerous occasions, inquiring about the applicant and saying that they
were looking for him because he participated in demonstrations.
60. On 25 May 2004 investigator T. questioned the applicant's friend,
G.A., whom he had allegedly incited to go to demonstrations with him.
G.A. stated that he was aware that the applicant had been brutally
beaten at the police station and added that this was connected with
his participation in demonstrations. He also confirmed that he had
never seen the applicant with any firearms.
61. On 2 June 2004 the applicant lodged a complaint (Õ¤Õ"Õ´Õ¸O~BÕ´) with the
Erebuni and Nubarashen District Prosecutor, alleging that he had been
tortured and ill-treated at the police station by the police officers
whose names he had indicated in his statement of 25 April 2004, as a
result of which he suffered a grave physical injury. However, charges
were brought only against him and no assessment was made of the
criminal acts committed by the police officers and of the fact that he
had acted in necessary self-defence. Furthermore, he had been brought
to the police station without any grounds and the real reason for his
arrest was the political persecutions taking place in Armenia. The
applicant requested, with reference to, inter alia, Articles 180, 181
and 182 of the Code of Criminal Procedure (CCP) (see paragraphs
108-110 below), that an investigation be carried out, that criminal
proceedings be instituted against the police officers of the Artashat
Police Department and that they be suspended from their duties during
the investigation.
62. On 7 June 2004, in response to this complaint, investigator T.
took a decision on dismissing a motion (Õ´Õ"Õ"Õ¶Õ¸O~@Õ¤Õ¸O~BÕ©ÕµÕ¸O~BÕ¶) filed by the
applicant. The decision stated at the outset that criminal proceedings
had been instituted against the applicant on account of his inflicting
physical injuries on police officer H.M. and that the applicant had
also been injured as a result of the incident. It went on to conclude:
"Having examined the materials of the criminal case, it has been
established that the investigation has been carried out objectively
and all the necessary investigative measures have been taken in the
course of the investigation, during which no evidence has been
obtained to suggest that the police officers of the Artashat Police
Department have exceeded their authority[.H]ence there was no need to
institute [a new set of] criminal proceedings and to carry out
criminal prosecution."
63. On 11 June 2004 a confrontation was held between the applicant
and one of the arresting police officers, A.S. The applicant submitted
that he had been approached by police officers R.S. and A.S. at 3 p.m.
on the date of his arrest and that police officer R.S. had invited him
to the police station for a talk with the chief in connection with the
demonstrations. Police officer A.S. confirmed this submission. He also
admitted that he had not been aware that the applicant was being
brought to the police station on suspicion of illegal possession of a
firearm and had found out about this only upon arrival at the police
station.
64. On 14 June 2004 a confrontation was held between the applicant
and the second arresting police officer, R.S. The latter submitted,
inter alia, that the deputy chief of the police department, G., had
ordered him to bring the applicant to the police station for a talk.
This order was oral and there was no written decision to arrest the
applicant.
65. On 16 June 2004 the applicant requested information from Artashat
Hospital concerning the events of 23-24 April 2004.
66. By two letters of 22 June 2004 the Head of Artashat Hospital
informed the applicant of the following:
"...[O]n 23 and 24 April three ambulance calls were [received] at the
Artashat ambulance station from the Artashat Police Department in
connection with [the applicant] kept at the police station.
First call: ... 23 April 2004 at 3.05 p.m.: the purpose of the call
was the determination of the level of drunkenness.
- doctor on duty [A.G.]
Second call: ... 23 April 2004 at 11.20 p.m.: doctor on duty [A.G.].
Diagnosis: bruising of soft tissues of the left side of the chest,
fractured ribs (?) and contusion of testicles.
Administration of Analgin, Dimedrol and Diclofenac pills.
Third call: ... 24 April 2004 at 11.20 a.m. [the applicant] was
brought to the reception room for a surgeon's consultation; doctor on
duty [V.H.]; diagnosis: contusion of ribs and testicles.
[The applicant] was transferred to the surgical unit."
"...[The applicant] ... was admitted to the surgical unit of the
Artashat Hospital CJSC on 24 April 2004 at 4.40 p.m. upon the referral
... of the hospital's reception room ... with the following diagnosis:
post-traumatic hematoma of the scrotum, hematocele of the left side
and laceration of the left testicle.
According to the description contained in the medical card the above
diagnosis was a result of a trauma..."
67. On 22 June 2004 a confrontation was held between the applicant
and police officer A.M. Both presented their version of the events.
Similar confrontations were held between the applicant and police
officers A.A., H.M., A.H., A.K. and the deputy chief of the police
department G., on 7, 8 and 27 July and 5 August 2004 respectively. All
the police officers denied having ill-treated him. Police officer A.A.
admitted during the confrontation that he was one of the officers who,
after the second ambulance call, had accompanied the applicant to the
hospital where he had his ribs examined. A.A. stated that the doctors
had not detected anything dangerous and the applicant had been taken
back to the police station. He further admitted that he had been
present during the examination of the applicant's ribs but not during
the examination of his testicles.
68. On the same date the applicant was presented with the forensic
medical expert's report of 5 May 2004 and its supplement of 18 May
2004 (see paragraphs 52 and 56 above).
69. On 28 June 2004 the applicant filed a motion, claiming that the
expert's findings were not objective since the injuries sustained by
him had been grave and intentionally inflicted and had resulted in
loss of functionality of a vital organ. The applicant sought to have a
new forensic medical examination ordered.
70. On 6 July 2004 the applicant lodged an appeal with the Criminal
and Military Court of Appeal against the investigator's decision of 7
June 2004. He once again indicated the names of the alleged
perpetrators and complained that the investigation was not impartial
and was aimed at misrepresenting the circumstances of the incident in
order to cover up for the police officers in question. He argued that
there were sufficient reasons to institute criminal proceedings
pursuant to Articles 175, 176 and 180 of the CCP (see paragraphs 105,
106 and 108 below), something which the investigating authority had
failed to do.
71. On the same date investigator T. questioned doctors A.G. and V.H.
Doctor A.G. stated that she had visited the applicant twice at the
Artashat Police Department on 23 April 2004. The first call was
intended to determine his level of intoxication. When she visited him
at the police station following the second call, several hours later,
the applicant was pale, in a cold sweat and in sharp pain. After an
examination a bruising was disclosed in the lower left side part of
the applicant's chest. He also complained of a sharp pain in the
testicle area. First aid was given, after which the applicant was
transferred to Artashat Hospital, since there was an urgent need to
have his chest and ribs X-rayed and for a surgeon's consultation. The
initial diagnosis was rib fracture and testicle injury. She was not
aware of the causes of those injuries, the diagnosis given at the
hospital or how long the applicant had stayed there. Doctor V.H.
stated that, following the applicant's examination at the Artashat
Police Department, where he and a nurse had gone in response to a call
received on 24 April 2004 at around 11 a.m., it was disclosed that he
had contusions to his ribs and testicles. No injuries had been
discovered on other parts of the body. The applicant had then been
transferred to the hospital where surgery was performed. Doctor V.H.
added that these injuries, especially the ones in the area of the
testicles, could have been caused by a strong or a light blow or as a
result of colliding with some object. He was not aware of the causes
of those injuries.
72. On 7 July 2004 investigator T. decided to order a new forensic
medical examination of the applicant on the ground that the veracity
of the expert report of 5 May 2004 and its supplement of 18 May 2004
was open to doubt, referring, inter alia, to the fact that the
expert's findings had been contested by the applicant (see paragraph
69 above). The new examination was to be conducted by the experts of
the Yerevan Division of RFMTPC who were asked to answer the following
questions: (1) what injuries are there on the applicant's body,
including their location, nature, method of infliction, degree of
gravity and age; and (2) whether expert G. had determined the degree
of gravity of the applicant's injuries accurately.
73. On 8 July 2004 investigator T. decided to seize the applicant's
medical card from Artashat Hospital.
74. On 22 July 2004 the Criminal and Military Court of Appeal decided
to leave the applicant's appeal of 6 July 2004 (see paragraph 70
above) unexamined on the ground that the investigator's decision of 7
June 2004 had been taken in the course of the criminal investigation
and was a procedural decision which, according to the relevant
criminal procedure rules, did not fall within the scope of judicial
control and could not be contested before the courts.
75. On the same date the experts received a copy of the
investigator's decision of 7 July 2004 ordering a new forensic medical
examination (see paragraph 72 above).
76. On an unspecified date the applicant lodged an appeal on points
of law against the decision of the Court of Appeal of 22 July 2004. He
submitted that the Court of Appeal was obliged under Article 278 of
the CCP (see paragraph 113 below) to examine his complaint concerning
the lawfulness of the investigator's decision.
77. On 28 July 2004 a new forensic medical expert report was produced
which contained a conclusion almost identical to that made in the
earlier expert report (see paragraphs 52 and 56 above). The report
also stated that the finding concerning the degree of gravity of the
applicant's injuries had been accurate.
78. On 10 August 2004 two confrontations were held between the
applicant and police officers R.H. and M.B. Both denied having
provided any help to the applicant, either by taking off the handcuffs
or giving him water.
79. On 13 August 2004 investigator T. decided to recognise police
officer H.M. as a victim. Police officer H.M. was questioned, during
which he confirmed his earlier statements.
80. On 17 August 2004 the charge against the applicant was modified
by adding the fact of the applicant's alcohol intoxication. The
applicant was again questioned and pleaded not guilty. He submitted
once again that he had been brought to the police station for his
participation in demonstrations and had been brutally beaten.
81. On the same date the investigator decided to end the
investigation since sufficient evidence had been obtained to prepare
an indictment.
D. Termination of the criminal proceedings in respect of the applicant
82. On 30 August 2004 the Erebuni and Nubarashen District Prosecutor
decided to stop the prosecution and to terminate the criminal
proceedings against the applicant with reference to Article 37 § 2(2)
of the CCP (see paragraph 117 below). This decision first
recapitulated the investigating authority's account of events,
according to which the applicant was brought to the police station on
suspicion of having carried firearms at demonstrations. When being
taken to the police station and upon arrival the applicant used foul
language, insulted the police officers and disobeyed their lawful
orders. Having found out that the administrative case instituted on
account of his behaviour would be submitted to a court, the applicant
hit the right eye of police officer H.M. with a mobile phone charger,
thereby intentionally inflicting injuries of medium gravity.
Thereafter the applicant grabbed the telephone from the table and
tried to hit H.M. with it, but was prevented by A.A., after which the
applicant assaulted H.M. and the latter in self-defence kicked the
applicant's testicles, grasped him and fell together with him on the
chair and then on the floor. The decision concluded:
"As a result of the incident [the applicant's] testicle was injured
and removed through surgery, [so] damage of medium gravity was caused
also to his health.
Since [H.M.] acted within the limits of necessary self-defence, no
criminal proceedings were instituted against him, while [the
applicant] was charged under Article 316 § 3 of [the CC]...
Taking into consideration the fact that during the commission of the
offence [the applicant] also suffered damage of medium gravity for his
health, namely his testicle was injured, underwent surgery and was
removed, which is incurable, and that actually by suffering privations
he atoned for his guilt and in such circumstances it is not expedient
to carry out prosecution against him, I decided ... to stop the
prosecution against [the applicant]..."
83. On an unspecified date the applicant contested this decision
before a higher prosecutor.
84. On 24 September 2004 the Court of Cassation decided to dismiss
the applicant's appeal on points of law against the decision of the
Criminal and Military Court of Appeal of 22 July 2004 (see paragraph
74 above) with the following reasoning:
"It follows from the materials of the case that [the applicant] filed
a motion seeking to have criminal proceedings instituted against the
employees of the Artashat Police Department on 2 June 2004, that is at
a time when [a criminal case] had been already instituted on account
of the incident on 23 April 2004 and an investigation into that case
was already underway. Moreover, both the fact of a physical injury
inflicted by [the applicant] on [police officer H.M.] and a physical
injury inflicted by the latter on [the applicant] constituted a
subject of that investigation. In those circumstances, there was no
need to institute a separate criminal case on account of the physical
injury inflicted on [the applicant], since the issues raised by [him]
already constituted a subject of an investigation in a criminal case.
Based on the results of the criminal case on 30 August 2004 the
Erebuni and Nubarashen District Prosecutor of Yerevan decided to end
criminal prosecution against [the applicant] and to terminate the
criminal proceedings.
In such circumstances, given that the issues raised by [the applicant]
have already been a subject of examination by competent authorities
and a final decision has been adopted in that respect, the request to
have a new criminal case instituted concerning the same matter is
incompatible with the requirements of Article 27 of [the CCP]."
85. By a letter of 24 September 2004 the applicant was informed by
the General Prosecutor's Office that the decision to terminate the
criminal proceedings was well-founded and there were no grounds to
quash it.
86. On an unspecified date the applicant lodged an appeal with the
Erebuni and Nubarashen District Court of Yerevan seeking to quash this
decision. He contested the grounds for terminating the criminal
proceedings, arguing in detail that the investigation had been flawed
for many reasons, including overlooking the fact of his unlawful
arrest, which was linked to his participation in demonstrations and
political activities, and his ill-treatment by the police officers,
which was falsely presented as self-defence on the part of police
officer H.M. The testimonies of police officers A.A., R.S., H.M. and
A.K. were false and lacked any probative value, since these persons
were the perpetrators of his brutal beating. Furthermore, the police
officers of the Artashat Police Department had been persecuting him
since March 2004 and the anonymous phone call of 23 April 2004 was a
mere set-up. Because of a slow and biased investigation the
above-mentioned persons had managed to avoid criminal responsibility.
In particular, the investigating authority had failed to arrange
immediate confrontations and did so only in July 2004, thereby
allowing the police officers to coordinate their testimonies, while
the conclusions of the forensic medical expert were not impartial. No
criminal proceedings had been instituted, while the perpetrators were
questioned only two months after the incident, which suggested that
the case was of a political nature and enjoyed a high-ranking
patronage. The fact of his systematic ill-treatment on the night of 23
April 2004 was confirmed by the relevant hospital papers and there
were sufficient grounds to institute criminal proceedings against the
police officers as required by Articles 175 and 176 of the CCP (see
paragraph 105 and 106 below). The applicant insisted that such
proceedings be instituted since the offence committed against him had
absolutely not been investigated. In conclusion he requested that the
criminal proceedings against him be terminated on exonerating grounds
or else he be tried in court where he could prove his innocence.
87. On 12 November 2004 the Erebuni and Nubarashen District Court of
Yerevan examined the applicant's appeal. Both the applicant and a
representative of the investigating authority were present at that
hearing and made submissions. The District Court found the applicant's
appeal to be unsubstantiated and decided to dismiss it.
88. On 22 November 2004 the applicant lodged an appeal against that
decision. In his appeal he argued, inter alia, that the District Court
had ignored the numerous circumstances contained in his appeal against
the prosecutor's decision substantiating the one-sided and flawed
conduct of the investigation. The applicant requested the Court of
Appeal to carry out an objective examination, to quash the decision of
the District Court and to order the prosecutor to terminate his case
on exonerating grounds or to submit the case to a court for
examination on the merits. Attached to this appeal was a copy of the
applicant's appeal lodged with the District Court (see paragraph 86
above).
89. On 24 December 2004 the Criminal and Military Court of Appeal
found that the investigation had been carried out in compliance with
the requirements of the criminal procedure law and the applicant's
procedural and substantive rights had not been violated. It further
found that the Erebuni and Nubarashen District Prosecutor had adopted
a lawful and well-founded decision in compliance with the requirements
of Article 37 of the CCP (see paragraph 117 below) and there were no
grounds to quash the decision of the District Court.
90. On 28 December 2004 the applicant lodged an appeal on points of
law. In his appeal he argued, inter alia, that the lower courts had
ignored the fact that the investigating authority had violated the
requirements of Article 17 of the CCP (see paragraph 102 below) and,
having conducted a one-sided investigation, had found him guilty under
Article 316 § 3 of the CC (see paragraph 121 below). The courts had
overlooked the biased conduct of the investigation, the existence of
false documents in the case and the fact that the entire investigation
was built upon the events surrounding his unlawful arrest by the
police officers. The applicant once again argued that it was not the
police officer but he who had acted in necessary self-defence, and
requested that he be tried by an independent and impartial court in a
public hearing and be allowed to prove his innocence. In conclusion he
asked that the prosecutor's decision of 30 August 2004 and that of the
Court of Appeal be quashed.
91. On 4 February 2005 the Court of Cassation examined the
applicant's appeal, finding:
"[The applicant], relying on the arguments raised before [the District
Court], argued in his appeal [to the Court of Appeal] that the
investigation had been flawed and one-sided, he had been accused
unfairly, the charges against him had been dropped ... on
non-exonerating grounds, the police officers who had ill-treated and
injured him had not been subject to criminal responsibility,
falsifications had taken place during the investigation, the police
officers had given false testimonies, inaccurate forensic medical
conclusions had been produced, etc.
He also raised in his appeal that the decisions taken by the courts
were unreasoned and that no reasoned answers had been given to the
issues raised by him...
Thus, [the applicant], in his appeals lodged with [the District Court
and the Court of Appeal], raised also the questions brought up in
[his] appeal on points of law."
92. The Court of Cassation went on to conclude that the lower courts,
ignoring the requirements of Article 17 § 4 of the CCP (see paragraph
102 below) pursuant to which complaints alleging a violation of
lawfulness in the course of criminal proceedings were to be thoroughly
examined by the authority dealing with the case, had failed to address
the arguments raised by the applicant and adopted decisions containing
no reasoning. It decided to quash the decision of the Court of Appeal
on that ground and to remit the case for a fresh examination.
93. On 3 March 2005 the Criminal and Military Court of Appeal
examined the applicant's application anew and decided to dismiss it.
In doing so, the Court of Appeal stated:
"[The applicant] has asked for the case to be remitted for further
investigation, with the expectation that it will later be brought
before a court, arguing that the investigating authority has committed
numerous violations of the criminal procedure rules, a number of
investigative measures have been falsified and that furthermore he
acted in necessary self-defence.
The Court of Appeal finds that these arguments are groundless as there
is no proof that the investigative measures have been falsified. [The
applicant's] rights envisaged and guaranteed by law have been
respected during the investigation of the case, this being reflected
in relevant records which have been drawn up, including in the
presence of lawyers. The fact that [the applicant] has refused to sign
several records of investigative measures does not suggest that these
records are unlawful.
[The applicant's] arguments that he was brought to the police
department on 23 April 2004 at around 3 p.m. and not 5 p.m. are not
supported by the materials of the case and this fact has nothing to do
with him being guilty or innocent.
[The applicant] admitted that he had inflicted physical injuries on
the police officer [H.M.] with a telephone as if in self-defence.
This fact has been rebutted by the evidence in the case which is why
the proceedings were not terminated by the Erebuni and Nubarashen
District Prosecutor on exonerating grounds.
The prosecuting authority has taken necessary measures envisaged by
law in order to carry out a thorough, complete and objective
examination of the case and to clarify both incriminating and
exculpatory circumstances.
[The applicant's] declarations concerning his innocence and the
alleged violations have been examined in detail during the
proceedings, including the proceedings in the Court of Appeal.
As a result, [the applicant's] right to a fair hearing has been
guaranteed, including the right to be confronted with witnesses who
testified against him and other rights guaranteed by the Convention
for the Protection of Human Rights and Fundamental Freedoms."
94. On 11 March 2005 the applicant lodged an appeal on points of law.
In his appeal he argued, inter alia, that the Court of Appeal had
failed to carry out a proper assessment of the evidence in the case.
It had ignored the fact that the charge was based on fabricated
evidence and, having failed to examine his allegations of procedural
irregularities as required by Article 17 § 4 of the CCP (see paragraph
102 below), agreed with the formulation of the charge against him,
according to which he had resisted the police officers and disobeyed
their lawful orders. The applicant further claimed that the Court of
Appeal, relying solely on the false reports of the police officers,
had found his arrest based on an anonymous telephone call and the
initiation of an administrative case against an unlawfully arrested
person to be lawful. The applicant also argued that the principle of
presumption of innocence had been violated and requested that the
charge against him be determined through a public hearing, taking into
account that the criminal proceedings had been terminated on
non-exonerating grounds and that the charge against him had been found
to be proved. He asked that the prosecutor's decision and those of the
lower courts be quashed.
95. On 13 May 2005 the Court of Cassation dismissed the applicant's
appeal. In doing so, the Court of Cassation stated:
"The arguments raised in [the applicant's] appeal concerning the
violations committed by the prosecuting authority have been examined
by the Court of Appeal. The court rightly stated that no evidence had
been obtained to suggest that the investigative measures had been
falsified or fabricated and that [the applicant] during the
preliminary investigation had availed himself of the rights guaranteed
by [the CCP].
[The applicant's] argument that he hit [H.M.] acting in self-defence
was rebutted by the evidence collected during the investigation.
As regards his argument that the prosecutor groundlessly stopped
prosecution against him in the absence of his consent, [it should be
noted that the CCP] does not require a person's consent when stopping
prosecution on the grounds envisaged by Article 37 § 2 (2) of [the
CCP].
[The applicant] has availed himself of the right of judicial
protection of his rights guaranteed by Article 38 of the Armenian
Constitution, by contesting before the courts the decision of the
investigating authority to stop prosecution and to terminate the
criminal proceedings in accordance with the procedure prescribed by
Article 263 and 290 of [the CCP].
The Court of Appeal, exercising judicial control over the pre-trial
proceedings based on [the applicant's] application, rightly stated
that the prosecutor's decision of 30 August 2004 was lawful and
well-founded and it did not find [the applicant] guilty of commission
of the crime as argued in the appeal.
The chamber finds that, within the grounds of the appeal, the decision
of the Court of Appeal is lawful, well-founded and reasoned and there
are no grounds for annulling it, therefore the appeal must be
dismissed."
II. RELEVANT DOMESTIC LAW
A. The Constitution of 1995 (prior to the amendments introduced in 2005)
96. Article 15 provides that citizens shall enjoy all the rights and
freedoms and bear all the duties prescribed by the Constitution and
laws irrespective of their national origin, race, sex, language,
creed, political or other opinion, social origin, property or other
status.
97. Articles 19 provides that no one shall be subjected to torture,
cruel or degrading treatment and punishment.
98. According to Article 41, a person accused of a crime shall be
presumed innocent until proved guilty, in a procedure prescribed by
law, by a final court sentence.
B. The Code of Criminal Procedure (in force from 12 January 1999), as
in force at the material time
1. Arrest
99. According to Article 128, arrest is the act of taking a person
and keeping him in short-term custody.
100. According to Articles 129 and 130, a person may be arrested (1)
on immediate suspicion of having committed an offence; or (2) on the
basis of a decision adopted by the prosecuting authority. In both
cases an arrest must not exceed 72 hours from the moment of taking a
person into custody.
2. Ill-treatment and investigation
101. According to Article 11 § 7, in the course of criminal
proceedings no one shall be subjected to torture and to unlawful
physical or mental violence, including such treatment inflicted
through the administration of medication, hunger, exhaustion,
hypnosis, denial of medical assistance and other cruel treatment. It
is prohibited to coerce testimony from a suspect, accused, defendant,
victim, witness and other parties to the proceedings by means of
violence, threat, trickery, violation of their rights, and through
other unlawful actions.
102. According to Article 17 § 4, complaints alleging a violation of
lawfulness in the course of criminal proceedings must be thoroughly
examined by the authority dealing with the case.
103. According to Article 27, the body of inquiry, the investigator
and the prosecutor are obliged, within the scope of their
jurisdiction, to institute criminal proceedings in each case when
elements of a crime are disclosed, and to undertake all the measures
prescribed by law in order to disclose the crimes and to identify the
perpetrators.
104. According to Article 41 § 2(4), the court is entitled to request
the prosecutor to institute criminal proceedings in cases prescribed
by this Code.
105. Article 175 obliges the prosecutor, the investigator or the body
of inquiry, within the scope of their jurisdiction, to institute
criminal proceedings if there are grounds envisaged by this Code.
106. According to Article 176, the grounds for instituting criminal
proceedings include, inter alia, information about crimes received
from individuals and discovery of information about a crime or traces
and consequences of a crime by the body of inquiry, the investigator,
the prosecutor, the court or the judge while performing their
functions.
107. According to Article 177, information about crimes received from
individuals can be provided orally or in writing. An oral statement
about a crime made during an investigative measure or court
proceedings shall be entered respectively into the record of the
investigative measure or of the court hearing.
108. According to Article 180, information about crimes must be
examined and decided upon immediately, or in cases where it is
necessary to check whether there are lawful and sufficient grounds to
institute proceedings, within ten days following the receipt of such
information. Within this period, additional documents, explanations or
other materials may be requested, the scene of the incident inspected
and examinations ordered.
109. According to Article 181, one of the following decisions must be
taken in each case when information about a crime is received: (1) to
institute criminal proceedings, (2) to reject the institution of
criminal proceedings, or (3) to hand over the information to the
authority competent to deal with it.
110. According to Article 182, if there are reasons and grounds to
institute criminal proceedings, the prosecutor, the investigator or
the body of inquiry shall adopt a decision to institute criminal
proceedings.
111. According to Article 184 § 1, the body of inquiry, the
investigator or the prosecutor, based on the materials of a criminal
case dealt by them, shall adopt a decision to institute a new and
separate set of criminal proceedings, while the court shall request
the prosecutor to adopt such a decision, if a crime unrelated to the
crimes imputed to the accused is disclosed, which has been committed
by a third person without the involvement of the accused.
112. According to Article 185 §§ 1, 2, 3 and 5, in the absence of
lawful grounds for institution of criminal proceedings, the
prosecutor, the investigator or the body of inquiry shall adopt a
decision to reject the institution of criminal proceedings. A copy of
the decision shall be served on the individual who has reported the
crime. This decision may be contested before a higher prosecutor or
the court of appeal. The court of appeal shall either quash the
decision or uphold it. If the decision is quashed, the prosecutor
shall be obliged to institute criminal proceedings.
113. Article 278, entitled "scope of judicial control", provides that
a court, in cases and procedure prescribed by this Code, shall examine
complaints about the lawfulness of decisions and actions of the body
of inquiry, the investigator, the prosecutor and the bodies carrying
out operative and reconnaissance measures.
114. According to Article 290, the suspect and the accused are
entitled to lodge complaints with a court against the decisions and
actions of the body of inquiry, the investigator, the prosecutor or
the bodies carrying out operative and reconnaissance measures,
including the refusals of such authorities to receive information
about crimes or to institute criminal proceedings and their decisions
to suspend or terminate criminal proceedings or to end criminal
prosecution, in cases prescribed by this Code. If the complaint is
found to be substantiated, the court shall adopt a decision ordering
the authority dealing with the case to stop the violation of a
person's rights and freedoms.
3. Termination of criminal proceedings and the presumption of innocence
115. According to Article 6, which lists the concepts contained in
the CCP, "final decision" means any decision of the authority dealing
with the case which rules out the institution of proceedings or their
continuation, as well as decides on the merits of the case.
116. Article 18 provides that a person suspected or accused of a
crime shall be presumed innocent until proved guilty, in a procedure
prescribed by law, by a final court sentence.
117. According to Article 37 § 2(2), the prosecutor may decide not to
carry out prosecution, if he considers it not to be expedient on the
ground that the person has redeemed the committed act through
suffering, limitation of rights and other privations which he has
suffered in connection with the committed act.
118. On 25 May 2006 Article 37 of the CCP was amended and its
sub-paragraph 2(2) was removed. The amended Article 37 prescribes that
the court, the prosecutor or, upon the prosecutor's approval, the
investigator may terminate the criminal proceedings in cases
prescribed by Articles 72, 73 and 74 of the CC. Article 72 concerns
cases in which the accused actively regretted the offence, Article 73
concerns cases in which the accused was reconciled with the victim and
Article 74 concerns cases in which, due to a change in the situation,
the accused or the act committed by him lost their danger for society.
According to the amended Article 37 of the CCP, in cases envisaged by
Articles 72 and 74 of the CC criminal proceedings may not be
terminated if the accused objects.
119. According to Article 263, an appeal against a decision to
terminate criminal proceedings or to end criminal prosecution may be
lodged with a higher prosecutor within seven days after the receipt of
a copy of the decision. The prosecutor's refusal to grant the appeal
may be contested before a court.
120. According to Article 264, the criminal proceedings shall be
resumed if the decision to terminate criminal proceedings or to end
criminal prosecution is quashed.
C. The Criminal Code (in force from 1 August 2003)
121. According to Article 316 § 3, in force at the material time,
inflicting violence, dangerous for life or limb, on a public official
or his next-of-kin, shall be punishable with imprisonment for a period
of five to ten years.
D. The Code of Administrative Offences (in force from 1 June 1986)
122. Article 182, as in force at the material time, provided that
maliciously disobeying a lawful order or demand of a police officer or
a member of the voluntary police made in the performance of his duties
of preserving public order might lead to the imposition of a fine of
between 50% of and double the fixed minimum wage, or of correctional
labour for between one and two months with the deduction of 20% of
earnings or in cases where, in the circumstances of the case, taking
into account the offender's personality, the application of these
measures would be deemed insufficient, of administrative detention not
exceeding 15 days.
III. RELEVANT INTERNATIONAL AND DOMESTIC DOCUMENTS AND PRESS RELEASES
A. Annual Report: Activities of the Republic of Armenia's Human
Rights Defender (Ombudsman), and on Violations of Human Rights and
Fundamental Freedoms in Armenia During 2004
123. Chapter 3.3 of this Report, which concerned the right to be free
from torture and cruel, inhuman and degrading treatment and
punishment, included an overview of the applicant's particular case.
The relevant extracts provide:
"Violations of this right mainly concerned apprehension of a person by
the police or investigative authority, upon suspicion or facts of
committing a crime or an administrative infringement, the holding of
such persons in custody and their interrogation.
In their complaints, the complainants insist that the police have not
abolished the practices of groundless apprehension, detention, the use
of violence, the extraction of self-incriminating testimony and
evidence, and fabricated prosecution evidence regarding the alleged
crime.
In criminal cases in which the police prepared the file, there are
allegations that the concerned persons had to provide
self-incriminating testimony in conditions of unlawful custody under
the threat and use of violence and intimidation. These persons state
such allegations both during pre-trial proceedings, before the
investigative authority, and in court. Such statements and allegations
are not fully investigated by the authorities; moreover, only
superficial investigations are conducted, but only with the aim of
refuting such allegations.
Cases are not initiated on the basis of complaints addressed to the
Prosecutor General of the country or to regional prosecutors. The
review of such complaints is mainly assigned to the same investigator
who is investigating the case, even when this investigator is the
person whose actions are the subject of such allegations. In rare
cases, when a different unit of prosecution is instructed to
investigate these allegations, there are still no safeguards of an
impartial investigation. During the hearing courts tend to ignore
these allegations.
Grisha Virabyan's criminal case is a rather typical example of this situation.
Virabyan was apprehended and taken to [the Artashat Police Department]
from his village, without any grounds, at around [2.30 p.m. on 23
April 2004]. While in the police station, a police officer insulted,
degraded, cursed at, and hit Virabyan. Virabyan, who did not tolerate
the degrading treatment, in turn hit this police officer. Later, less
grave physical injury was inflicted upon Virabyan while he was in
police custody.
The prosecution initiated a criminal case against Virabyan for
inflicting physical injury upon the police officer. In the criminal
case, all the acts of the police officer were ruled as lawful, and
there was no mention of the fact that Virabyan, who was unlawfully
detained by the police, received his physical injury while in police
custody. Further, no police officer had been punished for inflicting
such injury upon Virabyan.
The Defender's reaction to the case was straightforward: what happened
must be characterized as cruel and degrading treatment against
Virabyan, because the head of an agency is responsible for the health
and security of a person taken or invited to his institution. The
person's behaviour in the institution may not serve as a justification
for injuring him, and the staff have the duty to be tolerant.
In this case, the Defender had a meeting with not only Virabyan, but
also the regional prosecutor and the regional and local police
leadership. The circumstances of the case were discussed, and it was
assumed that an impartial investigation of the case would be ensured.
However, no progress was reported. With this background, the
Prosecutor General was requested to assign another investigative
authority to investigate the case; this request was granted, and [the
Erebuni District Prosecutor's Office] was instructed to investigate
the case. However, there was still no progress, and Virabyan was still
the only one being charged. By that time his indictment was ready to
be sent to court. The Prosecutor General ordered that the charges be
dropped only after the Defender intervened."
124. Chapters 3.4 and 3.5 of this Report, which concerned the right
to freedom of movement and the right to conduct assemblies, contained
the following extracts:
"3.4 Right to Freedom of Movement
The early stages of the Defender's activities coincided with the
demonstrations that were held in the country during March and April of
2004.
The opposition began to hold demonstrations and meetings with
constituents in several regions starting in early February. The
authorities did not interfere with these meetings.
The first time the authorities interfered with the demonstrations was
at the end of March in Gyumri, which involved the arrest of
demonstration participants and the commencement of criminal cases
against them. ...
The Defender found a number of human rights violations in police
actions regarding demonstrations held in the capital city in April.
On the days of the demonstrations, the police reportedly limited the
movement of public transport into the capital city, which violated
citizens' right to freedom of movement within the country. ...
During this period, individuals were frequently apprehended for
administrative infractions and taken to police stations where
administrative detention was ordered against them by the court.
A review of these cases shows that the legislation on administrative
infractions was abused: "foul language" was cited as a basis for
sentencing a person to administrative detention. ...
3.5 Right to Conduct Meetings, Gatherings, Rallies and Protests
The Defender took from the courts a number of cases related to
administrative infractions and conducted a thorough study. The
findings were sent to the Prosecutor General of Armenia and, in light
of the apparent abuses of power in such cases, it was recommended that
the guilty parties be punished. Some of the Defender's findings were
isolated and sent to the Armavir Region Prosecutor for corroboration
and processing. The regional prosecutor later announced that no crime
was identified. The police officers in question were given warnings
for some of the less significant violations."
B. Resolution 1374 (2004) of the Parliamentary Assembly of the
Council of Europe (PACE): Honouring of obligations and commitments by
Armenia, 28 April 2004
125. The relevant extracts from the Resolution provide:
"1. Since the end of March 2004, a series of protests have been
organised by the opposition forces in Armenia, calling for a
'referendum of confidence' in President Kocharian. The possibility of
such a referendum was first mentioned by the Armenian Constitutional
Court following the presidential elections in February and March 2003.
The Constitutional Court later clarified its proposal and the
authorities are calling the opposition demands and protests an attempt
to seize power by force.
2. The demonstrations, although announced, were not authorised by the
authorities, who have threatened the organisers with criminal
prosecution. Following the demonstrations on 5 April, the General
Prosecutor opened criminal investigations against several members of
the opposition and arrested many more, in connection with the
opposition parties' rally. On the same occasion, several journalists
and politicians were beaten up by unknown persons while the police
stood by and took no action.
3. New demonstrations took place on 9, 10 and 12 April in Yerevan. In
the early morning of 13 April, the security forces violently dispersed
some 2,000 to 3,000 protesters who were attempting to march towards
the presidential palace, calling for President Kocharian's
resignation. The police reportedly used truncheons, water cannons and
tears gas, causing dozens of injuries. A number of protesters were
arrested, including members of parliament, some of whom are members of
the Assembly, and some were allegedly mistreated by the police while
in custody. The security forces also assaulted and arrested several
journalists who were covering the opposition rally.
4. Tensions in Armenia continue to run high; new protests are planned
for the week of 26 April. For the time-being there seems to be little
room for dialogue between the authorities and the opposition, even if
some offers have been made and some members of the ruling majority -
for example, the Speaker of the Armenian Parliament - have begun
criticising the heavy-handed crackdown on demonstrations.
5. With regard to the conduct of the authorities, the Parliamentary
Assembly ... is particularly concerned with the fact that:
i. arrests, including those carried out on the basis of the
Administrative Code, ignored the demand to immediately end the
practice of administrative detention and to change the Administrative
Code used as a legal basis for this practice; ...
9. The Assembly calls upon the Armenian authorities to: ...
iii. immediately investigate - in a transparent and credible manner -
the incident and human rights abuses reported during the recent
events...
iv. immediately release the persons detained for their participation
in the demonstrations and immediately end the practice of
administrative detention and amend the Administrative Code to this
effect..."
C. Report by the PACE Committee on the Honouring of Obligations and
Commitments by Member States of the Council of Europe, Doc. 10163, 27
April 2004
126. The Report contains an explanatory memorandum to the draft of
the PACE Resolution 1374. The relevant extracts from the explanatory
memorandum provide:
"Since the end of March, opposition forces in Armenia decided to
jointly organise mass protests to force a 'referendum of confidence'
in President Kocharian. The possibility of such a referendum was first
mentioned by the Armenian Constitutional Court following the
presidential elections in February and March last year, which were
strongly criticised by the international community. ...
The Armenian authorities reacted to the opposition call for protests
with a campaign of political intimidation and administrative and
judicial harassment. Once the protests started, the reaction was even
more ruthless. Demonstrations were violently dispersed, journalists
were beaten up, a large number of opposition supporters were arrested
and premises of the opposition parties were raided by the police.
...
In January 2004 the Assembly adopted its second monitoring report
since the accession of Armenia to the Council of Europe in January
2001. Resolution 1361, adopted on this occasion, takes note of some
encouraging developments that took place in the last two years...
However, the Resolution ... sharply criticised the [presidential and
parliamentary] elections carried out in 2003. Moreover, it listed a
number of serious concerns with regard to the democratic and human
rights conduct of the Armenian authorities and expressed its
expectations that these issues will be speedily dealt with in
accordance with Council of Europe standards and principles.
Regrettably, the reaction of the Armenian authorities in the events of
March and April [2004] demonstrate that the Assembly's request for
further progress was ignored and that, with regard to some of the
Assembly's key concerns, the situation has even worsened.
Administrative detention
With regard to the scandalous and continued use of administrative
detention, Resolution 1361 urged the authorities to amend the
Administrative Code to put an end to this practice which is
incompatible with the organisation's standards. The Assembly also
asked the authorities to submit this new draft to Council of Europe
expertise by April 2004.
Instead of immediately ending this practice and preparing the
necessary legislative drafts to this effect, the Armenian authorities
resorted to a wide use of administrative detentions during the recent
events. While it is difficult to verify the exact number of persons
who were arrested and the legal basis used for their detention, most
reports indicate that their number was between two and three hundred.
The Assembly repeats its demand for an immediate end to the practice
of administrative detention. The Administrative Code must be revised
without any further delay. ...
... Regrettably, according to Human Rights Watch, several persons
arrested during the recent events were subjected to abuse during their
detention by the police. These allegations must be investigated, in a
speedy, transparent and credible manner, and if their veracity is
confirmed, persons responsible should be punished in accordance with
the law."
D. Human Rights Watch Briefing Paper, 4 May 2004, Cycle of
Repression: Human Rights Violations in Armenia
127. The relevant extracts of the Briefing Paper provide:
"Summary
At the end of March 2004, Armenia's political opposition united in
mass peaceful protests to force a "referendum of confidence" in
President Robert Kocharian and to call for his resignation. In
response, the Armenian government embarked on a campaign to break the
popular support for the political opposition with mass arrests,
violent dispersal of demonstrations, raids on political party
headquarters, repression of journalists, and restrictions on travel to
prevent people from participating in demonstrations. Hundreds of
people were detained, many for up to fifteen days; some were tortured
or ill-treated in custody...
The origin of the opposition's demands was the government's failure to
date to redress the deeply flawed 2003 presidential election, which
Kocharian, the incumbent, won. Disturbingly, the government is now
repeating, with increasing violence, a pattern of repression that
surrounded last year's election. At that time, the international
community warned the Armenian government that its intimidation of the
opposition through the use of arrests and administrative detentions
must stop. However, in March and April 2004, the Armenian government
not only began a fresh campaign of detentions, but added to the
intimidation with security force violence. ...
Human Rights Watch calls on the Armenian authorities to cease
intimidating the political opposition, to stop using excessive force
against demonstrators and torture and ill treatment in custody, and to
hold accountable those responsible for these abuses. We call on the
international community to assist the government of Armenia in
urgently addressing this situation and to ensure that further acts of
repression are not repeated. ...
Prelude to April 12-13
At the end of March 2004, two of the main opposition groups, the
Artarutiun (Justice) Alliance, which consists of nine parties -
including the Republic Party, the People's Party, and the National
Unity Party - joined forces and announced its campaign of action.
Following this move, the opposition intensified its efforts, making
further announcements and mobilising in Armenia's provinces. The
authorities responded by restricting freedom of movement, carrying out
detentions, and threatening criminal charges against opposition
campaign organisers. ...
>>From [5 April] the number of rallies in Yerevan steadily increased, as
did the number of opposition supporters detained or otherwise
intimidated. The Republic Party estimated that from the end of March
until [12 April], police had detained, searched, or harassed more than
300 of its supporters. ...
Restrictions on Travel to Yerevan
>>From the end of March until mid-April 2004, police restricted the
movement of opposition supporters trying to travel to Yerevan to
attend rallies by setting up road blocks, stopping cars, questioning
the passengers, and denying permission to travel further to those they
believed were opposition supporters. ...
On the morning of [5 April], between [10.30 a.m. and 12.00 noon],
police stopped nine members of the National Unity Party in three cars
at a check point as they were leaving Vanadzor, Armenia's third
largest city, on the main road to Yerevan. They were intending to
participate in a rally at [3.00 p.m.] in Yerevan. Police held the nine
men at the Vanadzor police station, reportedly telling them, 'we have
saved you from being beaten in Yerevan'. Police took three of the men
to the local courts, which sentenced them to five days of
administrative detention for not following police orders. ...
Detentions: Due Process Violations and Torture
It is difficult to estimate the total number of opposition supporters
detained since the beginning of April 2004. By April 17, the Justice
Alliance had documented the detentions of 327 opposition supporters,
and the Republic Party estimated that about 300 of its members had
been either detained, harassed, or searched...
[Some opposition supporters] were detained and held for from several
hours to fifteen days. Many were held and then released with no
documentation or registration of the arrest ever having occurred.
Others were taken to court, and given penalties of up to fifteen days
in custody for petty offences under the Administrative Code. ...
Torture and ill-treatment in police custody
Human Rights Watch documented several cases of torture and
ill-treatment in police custody during the government crackdown
against the opposition in April 2004. Opposition party officials claim
that during this period police regularly beat their supporters in
police custody: "There were lots of cases of people being beaten at
the police stations after detention, especially those who came from
the regions" [said the press secretary of the People's Party]..."
E. Europe and Central Asia: Summary of Amnesty International's
Concerns in the Region, January-June 2004
128. The Report contains a chapter devoted to Armenia whose relevant
extracts provide:
"Opposition demonstrations in April [2004] were part of a two-month
campaign of mass public protests launched by opposition political
parties demanding the resignation of President Robert Kocharian. ...
During their campaign hundreds of opposition supporters, including
prominent opposition party members, were reportedly arbitrarily
detained throughout the country and dozens were sentenced to 15 days'
administrative detention after trials that were said to have fallen
far short of international fair trial standards..."
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
129. The applicant complained that he had been subjected to torture
at the Artashat Police Department on 23 April 2004 and that the
authorities had failed to carry out an effective instigation into his
allegations of ill-treatment. He invoked Articles 3, 8 and 13 of the
Convention. The Court considers that the applicant's complaints fall
to be examined solely under Article 3 of the Convention, which reads
as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
A. Admissibility
1. Six months
(a) The parties' submissions
(i) The Government
130. The Government claimed that the applicant had failed to lodge
his complaints under Article 3 of the Convention within six months
from the date of the final decision within the meaning of Article 35 §
1 of the Convention. More precisely, the applicant was entitled under
Article 290 of the CCP (see paragraph 114 above) to contest the
decisions of the investigating authority before the domestic courts.
The applicant successfully exercised this right by instituting two
sets of proceedings: the first one contesting the investigator's
decision of 7 June 2004 rejecting his allegations of ill-treatment and
the second one contesting the prosecutor's decision of 30 August 2004
terminating the criminal proceedings against him. The six months
period must be calculated from the date of the final decision in the
first set of proceedings, which was taken by the Court of Cassation on
24 September 2004. The application, which had been lodged with the
Court only on 10 November 2005, was therefore out of time. The
Government argued that the applicant's submission that the six months
period must be calculated from the date of the final decision in the
second set of proceedings, namely 13 May 2005, was ill-founded, since
those proceedings concerned a different issue, namely the termination
of the criminal proceedings, and none of the court decisions taken in
those proceedings concerned the applicant's request to institute
criminal proceedings against the alleged perpetrators of ill-treatment
or contained any ruling on the applicant's allegations of
ill-treatment.
(ii) The applicant
131. The applicant contested the Government's claim. He admitted that
he had instituted two sets of proceedings resulting in two final
decisions being taken by the Court of Cassation on 24 September 2004
and 13 May 2005 respectively. However, his complaint lodged with the
Erebuni and Nubarashen District Prosecutor on 2 June 2004 and
consequently the first set of proceedings instituted by him against
the prosecutor's decision taken on that complaint, which terminated
with the Court of Cassation's decision of 24 September 2004, were not
an effective remedy. More precisely, the prosecutor dismissed his
complaint just five days later, namely on 7 June 2004, without
carrying out any official and independent investigation into his
allegations of ill-treatment and basing his findings solely on the
results of the preliminary investigation carried out in the context of
the criminal case against him. His appeals lodged with the courts
against the decision of 7 June 2004 were also ineffective because the
courts refused to examine them in substance on the ground that the
impugned decision was a procedural decision and they lacked
jurisdiction to do so. In such circumstances, both the prosecutor's
decision of 7 June 2004 and the Court of Cassation's decision of 24
September 2004 could not be considered as a "final decision" within
the meaning of Article 35 § 1.
132. On the other hand, the trial against him was capable of
providing redress for the Article 3 violations that he had suffered.
He had therefore pursued this remedy by lodging an appeal against the
prosecutor's decision of 30 August 2004 terminating the criminal
proceedings against him. Since he had never denied that he had struck
the police officer with a mobile phone charger, the only issue at
trial would have been whether or not he had acted in self-defence, as
he had always maintained. Had he succeeded in this appeal, he would
have been afforded an effective remedy, such as an official
recognition of the fact that he had struck the police officer in
self-defence which would necessarily have implied a finding that he
had been ill-treated in detention. Since the final decision on his
appeal against the prosecutor's decision of 30 August 2004 was taken
by the Court of Cassation on 13 May 2005, he had complied with the six
months' rule by lodging his application on 10 November 2005.
(b) The Court's assessment
133. The Court reiterates that, pursuant to Article 35 § 1 of the
Convention, it may only deal with a matter where it has been
introduced within six months from the date of the final decision in
the process of exhaustion of domestic remedies (see Danov v. Bulgaria,
no. 56796/00, § 56, 26 October 2006).
134. The purpose of the six months' rule is to promote security of
law, to ensure that cases raising issues under the Convention are
dealt with within a reasonable time and to protect the authorities and
other persons concerned from being under uncertainty for a prolonged
period of time (see İcöz v. Turkey (dec.), no. 54919/00, 9 January
2003, and P.M. v. the United Kingdom (dec.), no. 6638/03, 24 August
2004).
135. The only remedies that must be exhausted are those which are
available and sufficient to afford redress in respect of the breaches
alleged, but not such which are inadequate or ineffective (see Aksoy
v. Turkey, 18 December 1996, § 52, Reports of Judgments and Decisions
1996-VI). Furthermore, in a case where an applicant avails himself of
a domestic remedy and it becomes clear, at a later stage, that this
remedy was not effective, the six-month period provided for in Article
35 § 1 of the Convention should in principle be calculated from the
time when the applicant became aware, or should have become aware, of
the ineffectiveness of the remedy (see, among other authorities, Bulut
and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002; İcöz, cited
above; and Chitayev and Chitayev v. Russia, no. 59334/00, § 117, 18
January 2007).
136. The Court notes that Armenian law provides a remedy to the
victims of alleged ill-treatment. In particular, Article 176 of the
CCP enables such victims to inform the relevant authorities about a
crime committed, including any acts of ill-treatment. Pursuant to
Article 177 of the CCP such information may be provided orally or in
writing, while Article 181 of the CCP requires in each case when such
information is provided that a reasoned decision be taken whether to
institute or to reject the institution of criminal proceedings. When
there are sufficient grounds to institute criminal proceedings,
Articles 175 and 182 of the CCP oblige the relevant authorities to do
so. If the authorities decide to reject the institution of criminal
proceedings, such decision can be contested before the courts under
Article 185 of the CCP and, should the courts quash such decision, the
prosecutor is obliged to institute criminal proceedings.
137. The applicant availed himself of this remedy by informing the
authorities of the alleged ill-treatment inflicted on him by the
police officers in his statement of 25 April 2004 which was made only
two days after the alleged ill-treatment (see paragraph 36 above).
Furthermore, this was followed by a number of other letters addressed
to the authorities seeking to have criminal proceedings instituted
against the perpetrators of his alleged ill-treatment (see paragraphs
45, 53 and 57) and culminated in his complaint lodged with the
authorities on 2 June 2004, in which the applicant specifically
invoked the relevant Articles of the CCP, including its Articles 181
and 182 (see paragraph 61 above).
138. Nevertheless, no formal decision was taken by the authorities,
whether to institute or to reject the institution of criminal
proceedings as required by Article 181 of the CCP, which could have
been contested later by the applicant before the courts under Article
185 of the CCP. Instead, for unexplained reasons, the applicant's
complaint of 2 June 2004 was treated by the investigator as a motion
filed in the context of the criminal proceedings against him and a
decision was taken on 7 June 2004 to dismiss that motion, thereby
rejecting in substance his allegations of ill-treatment (see paragraph
61 and 62 above). The applicant attempted to contest that decision
before the courts but his appeals were not examined on the merits on
the ground that the impugned decision was a procedural one and the
courts lacked jurisdiction to review it (see paragraph 74 above).
139. In such circumstances, the remedy available to the applicant
under the above-mentioned Articles of the CCP turned out to be
ineffective, while the court proceedings instituted by him against the
investigator's decision of 7 June 2004 were incapable of providing
redress. Thus, the final decision taken in those proceedings by the
Court of Cassation on 24 September 2004 cannot be taken into account
for the purpose of calculation of the six-months period, as claimed by
the Government.
140. The Court further notes that the applicant argued that he had
also another remedy available to him, that is raising his allegations
of ill-treatment in the course of the trial against him. The
Government disputed that argument, claiming that the applicant's
appeals lodged with the courts against the prosecutor's decision to
discontinue the trial were not effective remedies to be exhausted. In
this respect, the Court observes that the rule of exhaustion of
domestic remedies must be applied with some degree of flexibility and
without excessive formalism. The Court has already held on a number of
occasions that the rule of exhaustion is neither absolute not capable
of being applied automatically; it is essential to have regard to the
circumstances of the individual case (see Akulinin and Babich v.
Russia, no. 5742/02, § 30, 2 October 2008, and Vladimir Fedorov v.
Russia, no. 19223/04, § 40, 30 July 2009).
141. In the present case, as already indicated above, the applicant's
complaint seeking to have criminal proceedings instituted against the
perpetrators of the alleged ill-treatment was examined in substance in
the context of the criminal proceedings against him rather than as a
separate issue and resulted in the investigator's decision of 7 June
2004 taken in the context of those proceedings. Even the Court of
Cassation, in refusing to examine the merits of the applicant's appeal
against that decision, stated that there was no need to institute a
separate set of proceedings because the applicant's allegations of
ill-treatment were closely linked to the subject matter of the
criminal case against him and were to be examined in its context (see
paragraph 84 above). Furthermore, as already indicated above, such
treatment of the applicant's complaint prevented him from putting the
matter before the courts through the appeal procedure envisaged for
cases in which a decision to reject the institution of criminal
proceedings is taken pursuant to Article 181 of the CCP. Thus, the
Court considers that, in the particular circumstances of the case,
having been deprived of any other form of judicial review, the
applicant cannot be blamed for trying to avail himself of judicial
protection in respect of his allegations of ill-treatment by raising
them in the course of the trial against him (see, mutatis mutandis,
Akulinin and Babich, cited above, §§ 25-34, and Vladimir Fedorov,
cited above, §§ 41-50).
142. Furthermore, the Court is of the opinion that such avenue of
exhaustion pursued by the applicant was not, in principle, a prima
facie futile attempt incapable of providing redress. In particular,
since the trial against the applicant was discontinued by a
prosecutor's decision, his criminal case was put before the courts for
the first time following his appeal against that decision. In his
appeal to the courts the applicant complained inter alia about his
alleged ill-treatment and the inadequacy of the investigation and
requested that criminal proceedings be instituted (see paragraph 86
above). Even if the courts were primarily called upon to determine the
question of whether the termination of the criminal proceedings
against the applicant on the grounds provided in the prosecutor's
decision was lawful, nevertheless, in reviewing that decision, they
were required under Article 17 § 4 of the CCP to examine any
complaints alleging a violation of lawfulness in the course of the
proceedings, including the applicant's allegations of ill-treatment.
Furthermore, even if the courts were not vested with power to
institute criminal proceedings, they were entitled to apply with such
a request to a prosecutor under Articles 41 § 2(4) and 184 § 1 of the
CCP. Lastly, the courts were entitled under Article 264 of the CCP to
quash the prosecutor's decision discontinuing the trial and to order a
further investigation into the circumstances of the charge against the
applicant which were closely linked to his allegations of
ill-treatment.
143. The Court further observes that the applicant's appeal was
examined through public and adversarial proceedings, to which both the
applicant and the investigating authority were parties. It is true
that both the District Court and the Court of Appeal failed to address
any of the allegations raised in the applicant's appeal (see
paragraphs 87 and 89 above). However, this became the reason why the
Court of Cassation decided to quash the decision of the Court of
Appeal and to remit the case for a fresh examination. In doing so, the
Court of Cassation took cognisance of the applicant's allegations,
including his allegations of ill-treatment and inadequate
investigation, and ordered, with reference to Article 17 § 4 of the
CCP, that they be duly addressed in a reasoned decision (see
paragraphs 91 and 92 above). Furthermore, during the subsequent fresh
examination of the case, both the Court of Appeal and the Court of
Cassation examined and dismissed the applicant's claims of
self-defence which were closely linked to and could not be separated
from his allegations of ill-treatment (see paragraphs 93 and 95
above). Moreover, both courts explicitly addressed and rejected the
applicant's allegations of ineffective investigation (ibid.).
144. In the light of the foregoing, the Court considers that, in the
particular circumstances of the case, the applicant's appeal lodged
with the courts against the prosecutor's decision of 30 August 2004
was an effective remedy capable of providing redress in respect of his
allegations of ill-treatment. Accordingly, the six months period
provided for in Article 35 § 1 of the Convention should be considered
to have started running from the date of the final decision in those
proceedings, namely 13 May 2005. The applicant has therefore complied
with the six-month rule by introducing his application on 10 November
2005. Consequently, the Government's objection must be dismissed.
2. Conclusion
145. The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The alleged ill-treatment
(a) The parties' submissions
(i) The Government
146. The Government, relying on the findings made by the domestic
authorities in the applicant's criminal case, argued that the
applicant sustained injuries to his testicle as a result of the
incident provoked by him. The applicant was the first to assault a
police officer by hitting him with a mobile phone charger and was
prevented from continuing his assault by other police officers, as a
result of which he - together with the injured police officer - fell
on a chair and then on the floor, sustaining the injuries in question.
The Government claimed that the materials of the applicant's criminal
case contained sufficient evidence supporting this account of events,
including the forensic medical expert reports which stated that the
applicant's injuries could have been caused as a result of the said
incident. There has therefore been no violation of Article 3 in
respect of the treatment received by the applicant in custody.
(ii) The applicant
147. The applicant submitted that there was evidence beyond
reasonable doubt confirming that he had sustained serious injuries
while in police custody. The Government, however, had failed to
provide a satisfactory and convincing explanation for these injuries.
His allegations of ill-treatment made at the domestic level had been
prompt, consistent and detailed, and he had pursued various avenues of
complaint, including after the criminal case against him had been
dropped. In contrast, the testimonies of the police officers provided
during the investigation contained numerous inconsistencies. The
circumstances of his police custody, namely his being interviewed
without a lawyer and the interview not being recorded, reveal a
disregard for safeguards against abuse. Furthermore, according to the
official account of events, he had been examined by a doctor for
alcohol intoxication following the alleged incident. However, no
injuries were recorded during that examination, which suggested that
he must have sustained them at a later time. Lastly, the CPT reports
concluded that persons deprived of their liberty in Armenia faced a
significant risk of being ill-treated.
(b) The Court's assessment
(i) General principles
148. As the Court has stated on many occasions, Article 3 enshrines
one of the most fundamental values of democratic societies. Even in
the most difficult circumstances, such as the fight against terrorism
and organised crime, the Convention prohibits in absolute terms
torture and inhuman or degrading treatment or punishment, irrespective
of the victim's conduct (see Labita v. Italy [GC], no. 26772/95, §
119, ECHR 2000â~@~QIV, and Chahal v. the United Kingdom, 15 November 1996,
§ 79, Reports 1996â~@~QV). Article 3 makes no provision for exceptions and
no derogation from it is permissible under Article 15 § 2 of the
Convention even in the event of a public emergency threatening the
life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95,
ECHR 1999-V, and Assenov and Others v. Bulgaria, 28 October 1998, §
93, Reports 1998â~@~QVIII).
149. The Court reiterates that ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3. The
assessment of this minimum is relative: it depends on all the
circumstances of the case, such as the duration of the treatment, its
physical and mental effects and, in some cases, the sex, age and state
of health of the victim (see Labita, cited above, § 120, and Assenov
and Others, cited above, § 94). In respect of a person deprived of his
liberty, any recourse to physical force which has not been made
strictly necessary by his own conduct diminishes human dignity and is
in principle an infringement of the right set forth in Article 3 of
the Convention (see Ribitsch v. Austria, 4 December 1995, § 38, Series
A no. 336; Selmouni, cited above, § 99, and Sheydayev v. Russia, no.
65859/01, § 59, 7 December 2006).
150. In assessing the evidence on which to base the decision as to
whether there has been a violation of Article 3, the Court has
generally applied the standard of proof "beyond reasonable doubt".
However, such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted
presumptions of fact (see Ireland v. the United Kingdom, 18 January
1978, § 161, Series A no. 25; Labita, cited above, § 121; and Jalloh
v. Germany [GC], no. 54810/00, § 67, ECHR 2006â~@~QIX).
151. Where the events in issue lie wholly, or in large part, within
the exclusive knowledge of the authorities, as in the case of persons
within their control in custody, strong presumptions of fact will
arise in respect of injuries occurring during such detention. Indeed,
the burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Salman v.
Turkey [GC], no. 21986/93, § 100, ECHR 2000â~@~QVII, and Varnava and
Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90,
16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 183, ECHR
2009â~@~Q...). Similarly, where an individual is taken into police custody
in good health and is found to be injured on release, it is incumbent
on the State to provide a plausible explanation of how those injuries
were caused (see, among other authorities, Aksoy v. Turkey, 18
December 1996, § 61, Reports 1996-VI; Selmouni, cited above, § 87; and
Gäfgen v. Germany [GC], no. 22978/05, § 92, ECHR 2010â~@~Q...). Otherwise,
torture or ill-treatment may be presumed in favour of the claimant and
an issue may arise under Article 3 of the Convention (see Mikheyev v.
Russia, no. 77617/01, § 127, 26 January 2006).
(ii) Application of the above principles in the present case
152. The Court observes at the outset that it is undisputed that the
applicant sustained injuries while in police custody, namely bruises
to his chest and ribs and a lacerated testicle. The parties, however,
disagreed as to the circumstances in which those injuries had been
sustained.
153. In this respect, the Court notes that the Government did no more
than refer to the findings of the official domestic investigation in
support of their position. The Court, however, is mindful of its
findings below that the investigation in question was ineffective,
fundamentally flawed and incapable of producing credible findings (see
paragraph 179 below). It notes, as discussed in greater detail below,
that the explanation given for the applicant's injuries in the course
of that investigation, namely that they had been sustained as a result
of a fall, was based entirely on the statements of the police
officers, including the alleged perpetrators, who could not have been
impartial witnesses (see, in particular, paragraph 165 below). It
lacked detail and was accepted by the investigating authority hastily
and without any justification on the very first day of the
investigation and never seriously questioned. The official forensic
medical reports, which did not rule out the possibility of the
applicant's injuries having been sustained in the above-mentioned
circumstances, were seriously deficient and could not be regarded as
reliable evidence (see, in particular, paragraphs 170-172 below).
154. The Court, based on all the materials in its possession, finds
the explanation given for the applicant's injuries both by the
Government and the domestic authorities to be highly dubious and
implausible. It notes, at the same time, that at all stages of the
investigation the applicant presented a consistent and detailed
description of who had ill-treated him and how. His allegations were
compatible with the description of his injuries contained in various
medical records (see paragraphs 31 and 66 above).
155. The Court cannot, in view of the foregoing, consider the
Government's explanation of the applicant's injuries to be
satisfactory and convincing and consequently concludes that his
injuries were attributable to a form of ill-treatment for which the
authorities were responsible.
156. In order to determine whether a particular form of ill-treatment
should be qualified as torture, the Court must have regard to the
distinction, embodied in Article 3, between this notion and that of
inhuman or degrading treatment. As the Court has previously found, it
appears that the intention was that the Convention should, by means of
this distinction, attach a special stigma to deliberate inhuman
treatment causing very serious and cruel suffering (see Ireland v. the
United Kingdom, cited above, § 167, and Selmouni, cited above, § 96).
In addition to the severity of the treatment, there is a purposive
element, as recognised in the United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
which came into force on 26 June 1987, which defines torture in terms
of the intentional infliction of severe pain or suffering with the
aim, inter alia, of obtaining information, inflicting punishment or
intimidating (see Salman, cited above, § 114).
157. The Court observes that the applicant was subjected to a
particularly cruel form of ill-treatment which must have caused him
severe physical and mental pain and suffering. In particular, his
testicles were repeatedly kicked and punched and hit with metal
objects. These injuries had lasting consequences for his health, as
his left testicle was so badly smashed that it had to be removed. He
was further beaten up with his hands handcuffed behind his back and
received blows to his chest and ribs. Strong inferences can be drawn
from the circumstances of the case that the ill-treatment was
inflicted on the applicant intentionally in order either to punish or
to intimidate him or both. Having regard to the nature, degree and
purpose of the ill-treatment, the Court finds that it may be
characterised as acts of torture (see Selmouni, cited above, §§
96-105, and Salman, cited above, § 115).
158. The Court concludes that there has been a substantive violation
of Article 3 of the Convention.
2. The alleged inadequacy of the investigation
(a) The parties' submissions
(i) The Government
159. The Government submitted that the circumstances in which the
applicant had sustained an injury had been examined within the
framework of the criminal case against him. His allegations of
ill-treatment had received a prompt and due response. The
investigation into his criminal case had been carried out by
authorities, the Ararat Regional Prosecutor's Office and the Yerevan
City Prosecutor's Office, which had no hierarchical or institutional
connection with the Artashat Police Department and were therefore
independent and impartial bodies. The authorities had taken all
possible measures to identify those responsible, including numerous
interrogations, confrontations and medical examinations. Moreover, an
additional medical examination had been ordered specifically upon the
applicant's own motion. Furthermore, all the motions and requests
filed by the applicant had been treated with necessary promptness. The
investigation had been open, which was supported by the fact that the
applicant had had access to all the necessary materials in his case.
In sum, the authorities had complied with their positive obligation
under Article 3 to carry out an effective investigation.
(ii) The applicant
160. The applicant submitted that no effective official investigation
capable of leading to the establishment of facts and the
identification and punishment of those responsible had been carried
out into his allegations of ill-treatment. Firstly, there had been no
independent and impartial inquiry. The authorities entrusted with the
investigation did not enjoy sufficient operational autonomy from the
alleged perpetrators and the agency where they served. Furthermore,
the preliminary investigation had been carried out by the same
investigator who had instituted criminal proceedings and brought
charges against him and collected evidence in support of that charge,
which was based entirely on the statements made by the alleged
perpetrators. The investigator, when interviewing the police officers,
had not asked any questions, nor had he considered any of the
inconsistencies in the police evidence or taken evidence from other
witness, including his State-appointed lawyer. The initial forensic
medical examination had been flawed, incomplete and not prompt, while
the second one had been conducted with a significant delay and was
incapable of producing credible findings. The transfer of the case
from one authority to another had not led to an independent
investigation either, since the authority which took over the case had
relied solely on the findings of the preliminary investigation. His
allegations of ill-treatment had been rejected without any
justification, while the alleged perpetrators had never been suspended
from duty.
(b) The Court's assessment
(i) General principles
161. The Court reiterates that where an individual raises an arguable
claim that he has been seriously ill-treated by the police or other
such agents of the State in breach of Article 3, that provision, read
in conjunction with the State's general duty under Article 1 of the
Convention to "secure to everyone within their jurisdiction the rights
and freedoms defined in ... [the] Convention", requires by implication
that there should be an effective official investigation (see Assenov
and Others, cited above, § 102, and Labita, cited above, § 131).
162. An obligation to investigate "is not an obligation of result,
but of means": not every investigation should necessarily be
successful or come to a conclusion which coincides with the claimant's
account of events; however, it should in principle be capable of
leading to the establishment of the facts of the case and, if the
allegations prove to be true, to the identification and, if justified,
punishment of those responsible. Thus, the investigation of serious
allegations of ill-treatment must be thorough. That means that the
authorities must always make a serious attempt to find out what
happened and should not rely on hasty or ill-founded conclusions to
close their investigation or as the basis of their decisions. They
must take all reasonable steps available to them to secure the
evidence concerning the incident including, inter alia, eyewitness
testimony, forensic evidence, and so on. Any deficiency in the
investigation which undermines its ability to establish the cause of
injuries or the identity of the persons responsible will risk falling
foul of this standard (see Mikheyev, cited above, § 108; Akulinin and
Babich, cited above, § 46; and Vladimir Fedorov, cited above, § 67).
163. Furthermore, the investigation must be expedient. In cases under
Articles 2 and 3 of the Convention, where the effectiveness of the
official investigation was at issue, the Court has often assessed
whether the authorities reacted promptly to the complaints at the
relevant time (see Labita, cited above, § 133-135). Consideration was
given to the starting of investigations, delays in taking statements
(see TimurtaÅ~_ v. Turkey, no. 23531/94, § 89, ECHR 2000â~@~QVI, and Tekin
v. Turkey, 9 June 1998, § 67, Reports 1998â~@~QIV), and the length of time
taken during the initial investigation (see Indelicato v. Italy, no.
31143/96, § 37, 18 October 2001).
164. Finally, the Court reiterates that for an investigation into
alleged ill-treatment by State agents to be effective, it should be
independent. The independence of the investigation implies not only
the absence of a hierarchical or institutional connection, but also
independence in practical terms (see Ogur v. Turkey [GC], no.
21594/93, § 91, ECHR 1999â~@~QIII; Mehmet Emin Yuksel v. Turkey, no.
40154/98, § 37, 20 July 2004; and also Ergi v. Turkey, 28 July 1998, §
83, Reports 1998â~@~QIV, where the public prosecutor investigating the
death of a girl during an alleged clash between security forces and
the PKK showed a lack of independence through his heavy reliance on
the information provided by the gendarmes implicated in the incident).
(ii) Application of the above principles in the present case
165. The Court notes that, in the present case, criminal proceedings
were instituted on the very day of the applicant's alleged
ill-treatment and an investigation was launched (see paragraph 21
above). However, it observes that the circumstances of the criminal
case were based solely on the version of events provided by the police
officers, including the alleged perpetrators and their colleagues who
were all in some way involved in the events of 23 April 2004, without
even hearing the applicant or any other witnesses. Moreover, this
version of events was considered an established fact from the very
outset (see, for example, the investigator's decision ordering a
forensic medical examination in paragraph 34 above) and the entire
investigation was conducted on that premise. It is notable that the
police version was so readily accepted by the investigator at a time
when he did not yet even have at his disposal the forensic medical
expert's conclusions as to the nature and possible causes of the
applicant's injuries. As a result, the applicant was the only accused
in those proceedings, while the police officers in question were never
even regarded as possible suspects and, moreover, participated either
as witnesses or, in the case of police officer H.M., a victim.
166. The Court has serious doubts as to whether the investigation
undertaken by the authorities, as described above, could be regarded
as an inquiry whose purpose was to investigate the applicant's
allegations of ill-treatment and to identify and punish those
responsible, as argued by the Government. It appears that its sole
purpose was to prosecute the applicant and to collect evidence in
support of that prosecution.
167. At no point did the investigating authorities provide any
explanation as to why they considered the testimonies of the police
officers credible, and that of the applicant unreliable. The
applicant's numerous requests that his allegations of ill-treatment be
thoroughly investigated and the perpetrators be prosecuted and
punished were either ignored or received a perfunctory response (see,
for example, paragraph 54 above). It therefore appears that the
investigating authorities, without any justification, gave preference
to the evidence provided by the police officers and, in doing so, can
be said to have lacked the requisite objectivity and independence.
168. The Court further observes that about a month after the
investigation was launched the applicant's criminal case was
transferred from the Regional Prosecutor's Office to the Yerevan City
Prosecutor's Office (see paragraph 58 above). Both the domestic
authorities and the Government failed to explain the reasons for this
transfer. In any event, it is notable that the transfer of the
applicant's criminal case, whatever its reason and intended aim, did
not produce significantly different results, since the Yerevan City
Prosecutor's Office was quick to reject the applicant's allegations of
ill-treatment in a perfunctory manner (see paragraph 62 above) and
continued to carry out the same line of prosecution on the basis of
the same version of events.
169. As regards the specific measures taken in the course of the
above investigation, the Court cannot overlook a number of significant
omissions and discrepancies capable of further undermining its
reliability and effectiveness.
170. The Court would point out, in particular, the manner in which
the applicant's forensic medical examination was conducted. The
investigator's decision ordering such examination was taken on the day
following the alleged ill-treatment, namely 24 April 2004 (see
paragraph 34 above). The applicant alleged that forensic expert G.
started his examination only on 5 May 2004. It is not entirely clear
from the expert's report whether this was the case, but it can be
safely assumed that the expert did not commence the examination at
least three days after the investigator's decision (see paragraphs 40
and 52 above). It is to be noted that the resulting expert report
contained no mention of the injuries on the applicant's chest and ribs
(see paragraph 52 above), which only a few days earlier had been
recorded by the doctors of Artashat Hospital (see paragraphs 66 and 71
above). It cannot therefore be ruled out that this omission on the
part of the forensic expert was caused by the delay in question. Nor
can it be ruled out that it was made as a result of a cursory
examination or for possible lack of independence. Whichever it may be,
it prompts the Court to doubt the credibility of the forensic expert's
findings. Moreover, had the forensic expert not failed to record these
injuries, his conclusions as to the possible causes for the
applicant's injuries might have been radically different.
171. The Court further notes a number of other significant
deficiencies in the report produced by forensic expert G. Firstly,
similarly to the overall course of the investigation, it is doubtful
that a report which relied on the hastily accepted police version of
events could be regarded as a measure truly intended and capable of
providing an independent and objective explanation for the possible
causes of the applicant's injuries (see paragraph 52 above). Secondly,
the report failed to give any answer to one of the key questions posed
by the investigator, namely whether the injury to the applicant's
testicle was caused by one or several blows, which, given the
circumstances of the case and the conflicting versions of events, was
crucial for the investigation. Thirdly, the expert's initial
conclusion contained a phrase - "The injury to the left testicle has a
traumatic origin and could have been caused by any type of blow"
(emphasis added, see paragraph 52 above) which could be seen as
suggesting a broad spectrum of possible causes for the applicant's
injuries but which, for unexplained reasons, was deleted from the
updated version of the same conclusion (see paragraph 56 above). This
once again casts doubt on both the independence and thoroughness of
the forensic expert and the credibility of his conclusions.
172. The Court observes that the investigating authorities failed to
address any of the shortcomings of the above-mentioned forensic
medical examination. It is true that, after the applicant contested
the findings contained in the expert's report of 5 May 2004, the
veracity of those findings was brought into question and a new
forensic medical examination was ordered (see paragraph 72 above).
However, this happened after a significant lapse of time, which was
mainly due to the fact that a copy of that report was presented to the
applicant only about one and a half months after it had been produced
(see paragraphs 68 above). As a result, the new forensic medical
examination was not initiated until almost three months after the
incident. The Court is convinced that such a delayed examination was
not capable of providing an accurate record of the applicant's
injuries and consequently leading to credible findings. It therefore
seriously doubts that this measure was able to rectify the
shortcomings of the first forensic medical examination. This is also
confirmed by the fact that the report produced as a result of the new
examination contained findings practically identical to those in the
first report (see paragraph 77 above).
173. The Court is further struck by the fact that the investigating
authorities failed to make any assessment of other medical evidence in
the case, namely the records of Artashat Hospital which, as already
indicated above, revealed injuries to the applicant's chest and ribs
in addition to those to his testicles (see paragraph 66 above), which
were missing from the forensic expert's findings. It appears that no
account was taken of this obviously important evidence at any stage of
the investigation. Despite the seriousness of the applicant's
injuries, the investigating authorities did not examine the hospital
records or question the relevant doctors until almost two and a half
months after the incident (see paragraphs 71 and 73 above) and, even
then, it appears that no importance was given to this evidence and no
conclusions were drawn. No attempts were made to resolve the
discrepancy between this evidence and the findings of the forensic
expert, including by questioning the latter, and no answer was given
to the question of whether the applicant's injuries in their entirety
could have been caused in the circumstances alleged by the police
officers.
174. In view of the foregoing, the Court cannot but conclude that the
authorities failed to secure a timely, proper and objective collection
and assessment of medical evidence vital for the effective outcome of
the investigation.
175. The Court further points out the failure of the investigating
authority immediately to isolate and question the police officers
involved in the incident, thereby failing to prevent a possible
collusion. In this respect, the Court notes that the very first police
reports on the incident did not mention anything about the applicant
falling face-down on a chair (see paragraphs 19 and 20 above), an
explanation which was later relied on to justify his injuries. Such
explanation, nevertheless, started to appear consistently in almost
all the statements taken by the investigator during the subsequent
interviews with the police officers (see, for example, paragraphs 23,
24 and 35 above). Furthermore, having regard to the manner in which
those interviews were conducted, the Court observes that on several
such occasions the police officers were simply asked to provide their
account of events and no questions whatsoever were put to them (see
paragraphs 25, 35 and 39 above). Even on those few occasions when the
investigator did ask questions, there were never more than one or two
questions and in most cases the questions asked were of a standard
nature and lacked specificity (see paragraphs 23, 24, 44, 47 and 50
above). The interviews in question therefore appear to have been a
pure formality and the Court cannot regard them as a serious and
timely attempt to establish the circumstances in which the applicant
suffered his injuries.
176. It must also be noted in this respect that the interviews in
question were conducted in the above-mentioned non-inquisitive manner
despite a number of worrying discrepancies and ambiguities apparent in
the case. In particular, it is not clear why the hospital records
indicated that the doctor's first visit to the police station, whose
purpose was to determine the applicant's level of intoxication, was
made at around 3.05 p.m. on 23 April 2004 (see paragraph 66 above),
while according to the police records the applicant was arrested not
before 5.40 p.m. On the other hand, the record of the applicant's
intoxication examination indicates that the first visit took place at
around 7 p.m. (see paragraph 18 above), which suggests that there may
have been a mistake in the hospital records. However, even assuming
that this was the case, it is highly surprising that the applicant,
who had already suffered - allegedly at 6.30 p.m. (see paragraphs 27
and 48 above) - injuries to his chest and a very serious injury to his
testicle, did not report any of this to the doctor examining him for
alcohol intoxication. Moreover, assuming that the applicant had been
in such an emergency condition since 6.30 p.m., it is not clear why an
ambulance was called to provide first aid only at 11.20 p.m. (see
paragraph 29 above). As already indicated above, no efforts were made
to clarify these important circumstances when taking statements from
the police officers. Nor were any relevant questions put to doctor
A.G. who had made both visits to the police station on the day of the
incident (see paragraph 71 above).
177. The Court would lastly point out a number of other failures and
omissions. Firstly, no attempt was ever made to question the
applicant's state-appointed lawyer, who was apparently present at his
questioning on the night of the incident (see paragraph 28 above), or
police officer O.B., who had drawn up the record indicating that the
applicant felt unwell and required medical assistance (see paragraph
29 above). Secondly, confrontations between the applicant and the
police officers were held with delays of about one and a half up to
three and a half months (see paragraphs 63, 64, 67 and 78 above),
thereby significantly minimising the effectiveness of these measures,
while no confrontation was held between the applicant and deputy chief
of police G. Thirdly, it is not clear on what grounds the prosecutor's
decision terminating the criminal proceedings stated that police
officer H.M. in self-defence had kicked the applicant's testicles (see
paragraph 82 above) when none of the evidence in the case appears to
have contained such an allegation. Lastly, the domestic courts failed
to address thoroughly any of the above-mentioned shortcomings in the
investigation during what appears to have been a cursory examination
of the applicant's allegations (see paragraphs 93 and 95 above).
178. In view of the foregoing, the Court concludes that the
investigation into the applicant's allegations of ill-treatment
undertaken by the authorities was ineffective, inadequate and
fundamentally flawed. It was not capable of producing credible
findings and leading to the establishment of the facts of the case.
The authorities failed to act with due diligence and cannot be said to
have been determined to identify and punish those responsible.
179. Accordingly, there has been a procedural violation of Article 3
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
180. The applicant complained that the grounds on which the criminal
proceedings against him had been terminated violated his right to be
presumed innocent. He relied on Article 6 § 2 of the Convention, which
reads as follows:
"Everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law."
A. Admissibility
181. The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties' submissions
(a) The Government
182. The Government claimed that the grounds on which the Erebuni and
Nubarashen District Prosecutor decided on 30 August 2004 to terminate
the proceedings against the applicant, as prescribed by Article 37 §
2(2) of the CCP, were compatible with the requirements of Article 6 §
2. This was a procedural decision which did not make a finding of
guilt of the accused. Similarly, when a person is arrested on
suspicion of having committed an offence or when the prosecutor brings
charges and later defends them in court, such measures do not imply
that the accused is guilty and do not violate the presumption of
innocence. The decision to terminate the criminal proceedings against
the applicant which, moreover, could be contested before the courts,
merely expressed the prosecutor's unwillingness to take the case to
court and did not contain any statement of the applicant's guilt. With
reference to the judgment in the case of Salabiaku v. France, the
Government argued that presumptions of fact or law operated in every
legal system and the Convention did not prohibit such presumptions in
principle (see Salabiaku v. France, 7 October 1988, § 28, Series A no.
141â~@~QA).
(b) The applicant
183. The applicant claimed that the prosecutor's decision of 30
August 2004 was not merely a procedural decision but a "final
decision", by virtue of Article 6(10) of the CCP, capable of
establishing or implying his guilt. Furthermore, this decision was in
no way comparable to a decision to arrest, to bring charges or to
discontinue proceedings for lack of evidence. Such decisions did not
contain a presumption of guilt, while termination of proceedings on
the grounds envisaged by Article 37 § 2(2) of the CCP contained a
direct link between the reasons for such termination and the question
of his criminal responsibility. The applicant argued that the
prosecutor's decision, which was upheld by three judicial instances,
was either based upon an express finding of guilt or constituted a
judicial decision or statement by a State official that assumed or
reflected that he was guilty, in violation of the requirements of
Article 6 § 2. Furthermore, the findings made in the case of Salabiaku
v. France were distinguishable from and not applicable to his case.
184. The applicant further drew the Court's attention to the fact
that on 25 May 2006 the Armenian parliament amended Article 37 of the
CCP and abolished the ground for termination of proceedings prescribed
by its sub-paragraph 2(2). Thus, such ground for termination of
proceedings as "redemption of the committed act through suffering",
prescribed by former Article 37 § 2(2), which moreover did not require
the consent of the accused, was removed. The applicant argued that
this amendment was introduced because the former Article 37 § 2(2) of
the CCP conflicted, inter alia, with the principle of presumption of
innocence.
2. The Court's assessment
185. The Court reiterates that the presumption of innocence enshrined
in Article 6 § 2 is one of the elements of the fair criminal trial
that is required by Article 6 § 1 (see Deweer v. Belgium, 27 February
1980, § 56, Series A no. 35, and Minelli v. Switzerland, 25 March
1983, § 27, Series A no. 62). It will be violated if a statement of a
public official concerning a person charged with a criminal offence
reflects an opinion that he is guilty before he has been proved so
according to law. It suffices, even in the absence of any formal
finding, that there is some reasoning to suggest that the official
regards the accused as guilty (see Daktaras v. Lithuania, no.
42095/98, § 41, ECHR 2000â~@~QX). Moreover, the principle of the
presumption of innocence may be infringed not only by a judge or court
but also by other public authorities, including prosecutors (see
Allenet de Ribemont v. France, 10 February 1995, § 36, Series A no.
308, and Daktaras, cited above, § 42).
186. Furthermore, a fundamental distinction must be made between a
statement that someone is merely suspected of having committed a crime
and a clear declaration, in the absence of a final conviction, that an
individual has committed the crime in question (see MatijaÅ¡eviÄ~G v.
Serbia, no. 23037/04, § 48, ECHR 2006â~@~QX, and Khaydarov v. Russia, no.
21055/09, § 149, 20 May 2010). The latter infringes the presumption of
innocence, whereas the former has been regarded as unobjectionable in
various situations examined by the Court (see Garycki v. Poland, no.
14348/02, § 67, 6 February 2007). Whether a statement of a public
official is in breach of the principle of the presumption of innocence
must be determined in the context of the particular circumstances in
which the impugned statement was made (see Daktaras, cited above §
43).
187. The Court is therefore called upon to determine whether in the
present case the outcome of the criminal proceedings against the
applicant allowed doubt to be cast on his innocence, although he had
not been proved guilty.
188. The Court notes that the criminal proceedings against the
applicant were terminated at the pre-trial stage by the prosecutor's
decision of 30 August 2004 on the ground prescribed by former Article
37 § 2(2) of the CCP, which allowed termination of proceedings if, in
the prosecutor's opinion, the accused had redeemed the committed act
through suffering and other privations which he had suffered in
connection with the committed act. The prosecutor's decision was
upheld by the domestic courts.
189. Having regard to the prosecutor's decision of 30 August 2004,
the Court notes that this decision was couched in terms which left no
doubt as to the prosecutor's view that the applicant had committed an
offence. In particular, the prosecutor first recapitulated the
circumstances of the case as contained in the charge against the
applicant and in a manner suggesting it to be established that police
officer H.M. had acted in self-defence, while the applicant had
intentionally inflicted injuries on him. The prosecutor went on to
conclude that it was inexpedient to prosecute the applicant because he
had also suffered as a result of the committed act. In doing so, the
prosecutor specifically used the words "during the commission of the
offence [the applicant had] also suffered damage" and "by suffering
privations [the applicant had] atoned for his guilt" (see paragraph 82
above).
190. Both the Court of Appeal and the Court of Cassation upheld this
decision and in substance did not disagree with it. Moreover, in doing
so, both courts found it to be established that the applicant's claim
that he had acted in self-defence was unfounded. It should be
mentioned that the proceedings before the courts did not determine the
question of the applicant's criminal responsibility but the question
of whether it was necessary to terminate the case on the grounds
provided by the prosecutor. Thus, it cannot be said that these
proceedings resulted or were intended to result in the applicant being
"proved guilty according to law".
191. Lastly, the Court observes that the ground for termination of
criminal proceedings envisaged by former Article 37 § 2(2) of the CCP
in itself presupposed that the commission of an imputed act was an
undisputed fact.
192. In view of the foregoing, the Court considers that the reasons
for termination of the criminal case against the applicant given by
the prosecutor and upheld by the courts with reliance on Article 37 §
2(2) of the CCP were in violation of the presumption of innocence.
193. There has accordingly been a violation of Article 6 § 2 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN
CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION
194. The applicant complained that he had been subjected to
ill-treatment because of his political opinion. He relied on Article
14 of the Convention, taken in conjunction with Article 3 of the
Convention, which provides:
"The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such
as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority,
property, birth or other status."
A. Admissibility
195. The Court notes that this complaint is linked to that examined
under Article 3 and must therefore likewise be declared admissible.
B. Merits
1. The parties' submissions
(a) The Government
196. The Government submitted that the applicant had failed to
substantiate with any evidence his allegation that the treatment to
which he had been subjected was politically motivated. Furthermore, he
had failed to demonstrate that he had received different treatment
compared to anybody in an identical situation. More precisely, the
applicant had been taken to the police station on suspicion of
carrying a firearm. He had been questioned in relation to that
suspicion and the injury which he had suffered as a result of the
incident between him and the police officer. The applicant had
admitted that he had been asked at the police station to provide his
identity, which implies that the police officers were not aware of who
he was, let alone of his political activity. Even assuming that the
police officers were aware of the applicant's political activity,
nothing suggests that their actions were motivated by such
considerations. Nor did the applicant indicate any signs or
expressions in the behaviour of the police officers which would
suggest the opposite. His allegations were based solely on a number of
reports describing the general situation in Armenia in 2003-2004.
Thus, he had failed to provide proof beyond reasonable doubt and it
cannot be said that he had suffered discrimination for political
motives contrary to both substantive and procedural guarantees of
Article 14 in conjunction with Article 3.
(b) The applicant
197. The applicant submitted, first, that he had a significant
political profile in Armenia and it was implausible that the police
officers responsible for his arrest would have been unaware of his
opposition political activities. Second, there were numerous reports
before the Court revealing that in March and April 2004 the Armenian
authorities had engaged in widespread suppression of the political
opposition. Third, there was no credible evidential basis for his
arrest which had been effected on the basis of an anonymous telephone
call. Fourth, the testimonies of the police officers concerning the
reasons for his arrest had been inconsistent and implausible. Fifth,
when under arrest he had been asked no questions about the alleged
suspicion and the only questions put had concerned his participation
in the demonstrations and his role in encouraging others to
participate. All these factors confirmed the fact that his arrest had
been politically motivated and consequently that he had suffered
discrimination on the ground of his political opinion contrary to both
substantive and procedural guarantees of Article 14 in conjunction
with Article 3.
2. The Court's assessment
(a) Whether the respondent State is liable for ill-treatment on the
basis of the applicant's political opinion and activity
198. The Court has established above that agents of the respondent
State ill-treated the applicant while in custody in violation of
Article 3 of the Convention. The applicant has further alleged that
there has been a separate violation of Article 14 in that political
motives played a role in his ill-treatment.
199. Discrimination is treating differently, without an objective and
reasonable justification, persons in relevantly similar situations
(see Willis v. United Kingdom, no. 36042/97, § 48, ECHR 2002â~@~QIV). The
Court has examined previously a number of cases in which the
applicants alleged under Article 14 in conjunction with Articles 2 or
3 of the Convention that death or ill-treatment had been inflicted as
a result of discrimination, namely racial hatred. It held that racial
violence is a particular affront to human dignity and, in view of its
perilous consequences, requires from the authorities special vigilance
and a vigorous reaction. It is for this reason that the authorities
must use all available means to combat racism and racist violence,
thereby reinforcing democracy's vision of a society in which diversity
is not perceived as a threat but as a source of its enrichment (see
Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §
145, ECHR 2005â~@~QVII; Bekos and Koutropoulos v. Greece, no. 15250/02, §
63, ECHR 2005â~@~QXIII (extracts); and Stoica v. Romania, no. 42722/02, §
126, 4 March 2008).
200. The Court considers that the foregoing applies also in cases
where the treatment contrary to Article 3 of the Convention is alleged
to have been inflicted for political motives. It reiterates that
pluralism, tolerance and broadmindedness are hallmarks of a
"democratic society" (see Lindon, Otchakovsky-Laurens and July v.
France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007â~@~QIV).
Political pluralism, which implies a peaceful co-existence of a
diversity of political opinions and movements, is of particular
importance for the survival of a democratic society based on the rule
of law, and acts of violence committed by agents of the State which
are intended to suppress, eliminate or discourage political dissent or
to punish those who hold or voice a dissenting political opinion pose
a special threat to the ideals and values of such society.
201. Faced with the applicant's complaint of a violation of Article
14, as formulated, the Court's task is to establish whether or not
political motives were a causal factor in the applicant's
ill-treatment so as to give rise to a breach of Article 14 of the
Convention taken in conjunction with Article 3.
202. It notes in this connection that, in assessing evidence, it has
adopted the standard of proof "beyond reasonable doubt". However, it
has never been its purpose to borrow the approach of the national
legal systems that use that standard. Its role is not to rule on
criminal guilt or civil liability but on Contracting States'
responsibility under the Convention. The specificity of its task under
Article 19 of the Convention - to ensure the observance by the
Contracting States of their engagement to secure the fundamental
rights enshrined in the Convention - conditions its approach to the
issues of evidence and proof. In the proceedings before the Court,
there are no procedural barriers to the admissibility of evidence or
pre-determined formulae for its assessment. It adopts the conclusions
that are, in its view, supported by the free evaluation of all
evidence, including such inferences as may flow from the facts and the
parties' submissions. According to its established case-law, proof may
follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact
(see Nachova and Others [GC], cited above, § 147).
203. Turning to the circumstances of the present case, the Court
takes note of the general context in which the applicant's arrest and
detention took place. In this respect, the Court points out that, as
it has recently found, in March and April 2004, which was a period of
political sensitivity in Armenia, there existed an administrative
practice of deterring or preventing opposition activists from
participating in demonstrations, or punishing them for having done so
(see Hakobyan and Others v. Armenia, 34320/04, §§ 90-99, 10 April
2012). There are a number of elements in the present case which may
allow the Court to reach a finding that in the present case the
applicant fell victim to such administrative practice.
204. The Court observes at the outset that the applicant was an
active member of the opposition. He participated in the rallies
organised by the opposition parties during the above-mentioned period
and was arrested shortly thereafter. Turning to the particular
circumstances of the applicant's arrest, the Court notes a number of
further relevant factors.
205. First, the initial reason for the applicant's arrest was
indirectly linked to his participation in the rally of 12 April 2004.
It is true that it was the allegation that he had carried an illegal
firearm at that demonstration which served as a ground for his arrest
and not his participation per se. However, this allegation was based
solely on an anonymous telephone call allegedly received at the
Artashat Police Department at 5.05 p.m. on 23 April 2004. There is no
objective evidence to support this allegation and the fact that such a
telephone call was indeed received at the police department, such as
for example a recording of that conversation, which may call into
question the veracity of this fact. Nor is there any detailed
transcript of that conversation.
206. Second, the Court finds it hard to believe that, if such a call
was indeed received, the police officers did not even try to verify
the identity of the caller or the veracity of the information
provided, but almost immediately, within less than an hour, proceeded
to arrest the applicant on such precarious grounds without making any
further inquiries. Nor can the Court overlook the fact that this was
done in the absence of any decision by the investigating authority as
required by the domestic law (see paragraph 100 above).
207. Third, this initial suspicion against the applicant was almost
entirely forgotten once he was taken to the police station. The
applicant was not even questioned in connection with that suspicion
but instead an administrative case was initiated against him under
Article 182 of the CAO for disobeying lawful orders of police officers
and using foul language, allegedly because of his behaviour during his
arrest. The sole investigative measure taken in connection with the
initial suspicion appears to be the search of the applicant's home,
which was authorised some four days after the applicant's arrest and
implemented another two days later (see paragraphs 41 and 43 above).
Such lack of any particular expedition in carrying out this measure
appears to be in stark contrast to the haste with which the
applicant's arrest was effected.
208. Fourth, the Court cannot overlook the conflicting statements
made by the two arresting police officers concerning the reasons for
the applicant's arrest. In particular, police officer A.S. admitted
that he had found out about the reasons why the applicant had been
taken to the police station only after taking him there (see paragraph
25 and 63 above). The Court finds it hard to believe that a police
officer, ordered to carry out the arrest of a suspect who is allegedly
carrying an illegal firearm, was not made aware of such an important
fact, especially in view of the potential risks that this might have
carried for the arresting officer. Furthermore, police officer R.S.
admitted that he had been ordered to take the applicant to the police
station "for a talk", not mentioning anything about any firearm (see
paragraph 64 above). Moreover, police officer A.S. confirmed that this
talk was connected with the demonstrations (see paragraph 63 above).
209. Fifth, not only was the initial suspicion against the applicant
left without proper follow-up but the administrative case against him
under Article 182 of the CAO was also abandoned and never revisited
once the incident occurred at the police station and the applicant
faced a new criminal charge, namely the assault of police officer H.M.
210. In view of all the above factors, the Court considers that there
are cogent elements in the present case prompting it to doubt whether
the true reasons for the applicant's arrest and the subsequent
administrative proceedings were those indicated in the relevant police
materials. It further notes that the entirety of the materials before
the Court allow it to draw sufficiently clear and concordant
inferences to the effect that the applicant fell victim to the
administrative practice mentioned above (see paragraph 205 above) and
that the real reason for the applicant's arrest was to discourage him
from participating in the opposition demonstrations or to punish him
for having done so.
211. Having reached this conclusion, the Court is mindful of the fact
that it has been called upon to determine whether the ill-treatment
which the applicant suffered at the hands of the police officers
during his politically motivated arrest was linked to his political
opinion. The Court notes in this respect that some of the reports
mentioned above contain allegations of ill-treatment of opposition
supporters in police custody during the relevant period (see paragraph
127 above). However, the Court cannot lose sight of the fact that its
sole concern is to ascertain whether, in the case at hand, the
applicant's ill-treatment was motivated by his political opinion.
212. The Court notes that it has not ruled out the possibility that
in certain cases of alleged discrimination it may require the
respondent Government to disprove an arguable allegation of
discrimination and - if they fail to do so - find a violation of
Article 14 of the Convention on that basis. However, where it is
alleged - as here - that a violent act was motivated by political
intolerance, such an approach would amount to requiring the respondent
Government to prove the absence of a particular subjective attitude on
the part of the person concerned. While in the legal systems of many
countries proof of the discriminatory effect of a policy or decision
will dispense with the need to prove intent in respect of alleged
discrimination in employment or the provision of services, that
approach is difficult to transpose to a case where it is alleged that
an act of violence was politically motivated (see, mutatis mutandis,
Nachova and Others [GC], cited above, § 147, and Bekos and
Koutropoulos, cited above, § 63).
213. In the present case, the applicant alleged that the violent
behaviour towards him in police custody was motivated by the fact that
he was a member of the political opposition. The police officers
repeatedly made remarks of a political nature when taking him to the
police station, at the police station and while ill-treating him.
Notably, police officer H.M. before assaulting the applicant by
kicking and punching him said that "it was their country and that they
could do anything they wanted to and that what [the applicant and
other supporters of the political opposition] were trying to do,
meaning the change of the government, was all in vain" (see paragraph
36 above). Furthermore, police officer A.K., while beating him, was
asking him "which of the opposition leaders was encouraging his
activity" (see paragraph 38 above).
214. The Court notes that there is no objective way to verify the
applicant's allegations. It is true that the circumstances of the
applicant's politically motivated arrest call for strong criticism and
raise serious concerns. However, this in itself is not sufficient to
conclude that the ill-treatment per se was similarly inflicted for
political motives. Judging by the circumstances of the case, it cannot
be ruled out that the applicant was subjected to ill-treatment as a
revenge for the injury that he had inflicted on police officer H.M.
Nor can it be ruled out that the violent behaviour of the police
officers was triggered by the confrontation between them and the
applicant or for reasons of police brutality which are beyond any
explanation. While such actions must receive the utmost condemnation
and may not be justified or condoned under any circumstances, the
Court cannot conclude beyond reasonable doubt that the applicant's
ill-treatment was motivated by his political opinion.
215. Lastly, the Court does not consider that the alleged failure of
the authorities to carry out an effective investigation into the
alleged political motive for the applicant's ill-treatment should
shift the burden of proof to the respondent Government with regard to
the alleged violation of Article 14 in conjunction with the
substantive aspect of Article 3 of the Convention. The question of the
authorities' compliance with their procedural obligation is a separate
issue, to which the Court will revert below (see Nachova and Others
[GC], cited above, § 157, and Bekos and Koutropoulos, cited above, §
66).
216. In sum, having assessed all the relevant elements, the Court
does not consider that it has been established beyond reasonable doubt
that political motives played a role in the applicant's ill-treatment
by the police.
217. Accordingly, there has been no violation of Article 14 of the
Convention taken in conjunction with Article 3 in its substantive
limb.
(b) Whether the respondent State complied with its obligation to
investigate possible political motives for the applicant's
ill-treatment
218. The Court considers that when investigating violent incidents
State authorities have the additional duty to take all reasonable
steps to unmask any political motive and to establish whether or not
intolerance towards a dissenting political opinion may have played a
role in the events. Failing to do so and treating politically induced
violence and brutality on an equal footing with cases that have no
political overtones would be to turn a blind eye to the specific
nature of acts that are particularly destructive of fundamental
rights. A failure to make a distinction in the way in which situations
that are essentially different are handled may constitute unjustified
treatment irreconcilable with Article 14 of the Convention (see,
mutatis mutandis, Nachova and Others v. Bulgaria, nos. 43577/98 and
43579/98, § 158, 26 February 2004, and Bekos and Koutropoulos, cited
above, § 69).
219. Admittedly, proving political motivation will often be extremely
difficult in practice. The respondent State's obligation to
investigate possible political overtones to a violent act is an
obligation to use best endeavours and not absolute. The authorities
must do what is reasonable in the circumstances to collect and secure
the evidence, explore all practical means of discovering the truth and
deliver fully reasoned, impartial and objective decisions, without
omitting suspicious facts that may be indicative of politically
induced violence (see, mutatis mutandis, Nachova and Others, cited
above, § 159, and Bekos and Koutropoulos, cited above, § 69).
220. The Court further considers that the authorities' duty to
investigate the existence of a possible link between political
attitudes and an act of violence is an aspect of their procedural
obligations arising under Article 3 of the Convention, but may also be
seen as implicit in their responsibilities under Article 14 of the
Convention to secure the fundamental value enshrined in Article 3
without discrimination. Owing to the interplay of the two provisions,
issues such as those in the present case may fall to be examined under
one of the two provisions only, with no separate issue arising under
the other, or may require examination under both Articles. This is a
question to be decided in each case on its facts and depending on the
nature of the allegations made (see Nachova and Others [GC], cited
above, § 161, and Bekos and Koutropoulos, cited above, § 70).
221. In the present case, the Court has already found that the
Armenian authorities violated Article 3 of the Convention in that they
failed to conduct an effective investigation into the incident. It
considers that it must examine separately the complaint that there was
also a failure to investigate a possible causal link between alleged
political motives and the abuse suffered by the applicant at the hands
of the police.
222. The Court notes that the applicant alleged on numerous occasions
before the investigating authorities that his ill-treatment had been
linked to his participation in the opposition demonstrations and had
been politically motivated, requesting that this circumstance be
investigated and the perpetrators be punished (see paragraphs 36, 38,
45, 61 and 80 above). Two other witnesses had also made submissions
which supported this allegation (see paragraph 59 and 60 above). The
Court lastly observes that the lack of reasons for the applicant's
arrest was noted by the Armenian Ombudsman (see paragraph 46 above).
223. In view of the foregoing, the Court considers that the
investigating authorities had before them plausible information which
was sufficient to alert them to the need to carry out an initial
verification and, depending on the outcome, an investigation into
possible political motives for the applicant's ill-treatment.
224. However, the authorities did almost nothing to verify this
information. Only two police officers, A.M. and R.S., were apparently
asked if they were aware of the applicant's political affiliation,
which can hardly be considered to be a real attempt to investigate
such a serious allegation and appears to have been a mere formality
(see paragraphs 23 and 24 above). No further questions were asked,
while the remaining police officers, including H.M. and A.K. whom the
applicant directly implicated in making politically intolerant
statements before and during his ill-treatment, were not even
questioned regarding this allegation. No attempts were made to
investigate the circumstances of the applicant's arrest, including the
numerous inconsistencies and other elements pointing at the possible
politically motivated nature of that measure, and no conclusions were
drawn from the available materials. The Court therefore concludes that
the authorities failed in their duty under Article 14 of the
Convention taken in conjunction with Article 3 to take all possible
steps to investigate whether or not discrimination may have played a
role in the applicant's ill-treatment.
225. Accordingly, there has been a violation of Article 14 of the
Convention taken in conjunction with Article 3 in its procedural limb.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
226. The applicant further raised a number of complaints under
Articles 5, 6 § 1, 10 and 11 of the Convention.
227. Having regard to all the material in its possession, and in so
far as these complaints fall within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols. It follows
that this part of the application must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
228. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention
or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made,
the Court shall, if necessary, afford just satisfaction to the injured
party."
A. Damage
229. The applicant claimed 25,000 euros (EUR) in respect of
non-pecuniary damage.
230. The Government submitted that there had been no violation of any
of the rights guaranteed by the Convention and the applicant could not
therefore claim any non-pecuniary damage.
231. The Court considers that the applicant has undoubtedly suffered
non-pecuniary damage as a result of the violations found. Ruling on an
equitable basis, it awards the applicant EUR 25,000 in respect of
non-pecuniary damage.
B. Costs and expenses
232. The applicant also claimed 4,250 United States dollars (USD) and
3,602.45 pounds sterling (GBP) for the costs and expenses incurred
before the Court. The applicant submitted detailed time sheets stating
hourly rates in respect of his domestic lawyers and one KHRP lawyer.
233. The Government submitted that the claims in respect of the
domestic and foreign lawyers were not duly substantiated with
documentary proof, since the applicant had failed to produce any
contracts certifying that there was an agreement with those lawyers to
provide legal services. Furthermore, the applicant had used the
services of an excessive number of lawyers, despite the fact that the
case was not so complex as to justify such a need.
234. 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 were
reasonable as to quantum. The Court further reiterates that legal
costs are only recoverable in so far as they relate to the violation
found (see Beyeler v. Italy [GC], no. 33202/96, § 27, ECHR 2000-I). In
the present case several of the applicant's complaints were declared
inadmissible. Therefore the claim cannot be allowed in full and some
reduction must be applied. Making its assessment on an equitable
basis, the Court awards the applicant a total sum of EUR 6,000 for
costs and expenses, to be paid in pounds sterling into his
representatives' bank account in the United Kingdom.
C. Default interest
235. The Court considers it appropriate that the default interest
should be based on the marginal lending rate of the European Central
Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning the applicant's ill-treatment,
lack of an effective investigation, the applicant's right to be
presumed innocent, his ill-treatment having been inflicted for
political motives and lack of an effective investigation into this
allegation admissible and the remainder of the application
inadmissible;
2. Holds that there has been a substantive violation of Article 3 of
the Convention in that the applicant was subjected to torture;
3. Holds that there has been a procedural violation of Article 3 of
the Convention in that the authorities failed to carry out an
effective investigation into the applicant's allegations of
ill-treatment;
4. Holds that there has been a violation of Article 6 § 2 of the Convention;
5. Holds that there has been no substantive violation of Article 14
of the Convention in conjunction with Article 3 of the Convention;
6. Holds that there has been a procedural violation of Article 14 of
the Convention in conjunction with Article 3 of the Convention in that
the authorities failed to carry out an effective investigation into
the applicant's allegations that his ill-treatment had been
politically motivated;
7. Holds
(a) that the respondent State is to pay the applicant, within three
months from the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 25,000 (twenty-five thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
the currency of the respondent State at the rate applicable at the
date of settlement;
(ii) EUR 6,000 (six thousand euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses, to be
converted into pounds sterling at the rate applicable at the date of
settlement and to be paid into his representatives' bank account in
the United Kingdom;
(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;
8. Dismisses the remainder of the applicant's claim for just satisfaction.
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113302#{"fulltext":["\"001-113302\""],"itemid":["001-113302"]}
(Application no. 40094/05)
JUDGMENT
STRASBOURG
2 October 2012
FINAL
02/01/2013
This judgment has become final under Article 44 § 2 of the Convention.
It may be subject to editorial revision.
In the case of Virabyan v. Armenia,
The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Josep Casadevall, President,
Egbert Myjer,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 11 September 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 40094/05) against the
Republic of Armenia lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
("the Convention") by an Armenian national, Mr Grisha Virabyan ("the
applicant"), on 10 November 2005.
2. The applicant was represented by Ms L. Claridge, Mr M. Muller, Mr
T. Otty and Mr K. Yildiz, lawyers of the Kurdish Human Rights Project
(KHRP) based in London, Mr T. Ter-Yesayan, a lawyer practising in
Yerevan, and Mr A. Ghazaryan, a non-practising lawyer. The Armenian
Government ("the Government") were represented by their Agent, Mr G.
Kostanyan, Representative of the Republic of Armenia at the European
Court of Human Rights.
3. The applicant alleged, in particular, that he had been tortured
while in police custody and no effective investigation had been
carried out into his allegations of torture, that the grounds on which
the criminal proceedings against him had been terminated violated the
presumption of innocence and that his ill-treatment had been motivated
by his political opinion.
4. On 10 September 2008 the President of the Third Section decided to
give notice of the application to the Government. It was also decided
to rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1958 and lives in Shahumyan Village,
Ararat Region of Armenia.
A. Background to the case
6. The applicant was a member of one of the main opposition parties
at the material time in Armenia, the People's Party of Armenia (PPA).
7. In February and March 2003 a presidential election was held in
Armenia. The applicant acted as an authorised election assistant
(Õ¾Õ½Õ¿Õ¡Õ°Õ¾Õ¡Õ® Õ¡Õ¶Õ±) for the PPA candidate who was the main opposition
candidate in the election. Following the election, which was won by
the incumbent President, the international election observation
mission concluded that the overall election process fell short of
international standards. It appears that mass protests followed. The
PPA candidate challenged the election results in the Constitutional
Court, which on 16 April 2003 recommended that a referendum of
confidence in the re-elected President be held in Armenia within a
year.
8. As the April 2004 one-year deadline approached, the opposition
stepped up its campaign to challenge the legitimacy of the re-elected
President and began to hold rallies around the country to express its
demands. Numerous rallies were held in March and April 2004 and the
applicant appears to have participated in them. He alleged that the
authorities had retaliated by arresting and harassing opposition
supporters, including himself. According to him, during this period
the local police officers visited on a daily basis his home in
Shahumyan village where his mother lived, with the intention of taking
him to the police station. He was forced to stay away from home and to
hide in Yerevan.
9. On 12 April 2004 a rally was organised by the opposition parties
which took place on Freedom Square in Yerevan and was followed by a
march towards the presidential residence. Between 10,000 and 15,000
people attended the rally, including the applicant. It appears that
the police eventually dispersed the crowd at around 2 a.m. on 13 April
2004.
B. The applicant's arrest and alleged ill-treatment
1. The circumstances of the applicant's arrest of 23 April 2004
10. According to the police materials, on 23 April 2004 at 5.05 p.m.
an anonymous telephone call was received at the Artashat Police
Department alleging that the applicant, while attending the
demonstration of 12 April 2004, had been carrying a firearm which he
still had on him. Two police officers, R.S. and A.S., were ordered to
bring the applicant to the police station.
11. According to the record of taking the applicant to the Artashat
Police Department, the applicant was taken there on 23 April 2004 at
5.40 p.m. on suspicion of carrying a firearm and for using foul
language towards police officers and not obeying their lawful orders.
It was noted that the applicant refused to sign the record.
12. At 5.50 p.m. the applicant was subjected to a search by the
arresting police officer R.S. and another police officer, A.M., in the
presence of two witnesses, during which a mobile phone and a lighter
were found. The record of the applicant's search similarly noted that
the applicant refused to sign it.
13. Both arresting police officers, R.S. and A.S., reported to the
chief of police that the applicant had used foul language during his
arrest. In particular, the applicant had said "I have had enough of
you! What do you want from me? Why have you come here? Who are you to
take me to the police station?" They further reported that he had made
a fuss and disobeyed their lawful orders but they had somehow managed
to place him in the police car. On the way to the police station he
had continued using foul language, saying that he would have them all
fired and that they would be held responsible for this.
14. The applicant contests this version of events and alleges that he
was stopped near his home by police officers R.S. and A.S. between 2
p.m. and 3 p.m. They asked him to accompany them to the police
station, explaining that the chief of police wanted to have a talk
with him. He agreed and got into the police car without any
resistance. At the police station he was taken to the office of
another police officer, H.M., who asked him questions about his
participation in demonstrations and about a fellow opposition
activist, G.A., who had been arrested some days before. Thereafter he
was taken to the office of deputy chief of police G., who said that he
was using foul language and ordered that an administrative case be
prepared. He was then taken to another office where police officer
A.M. started preparing the administrative case. He was never subjected
to a search.
15. Police officer A.M. drew up a record of an administrative offence
in which it was stated that the applicant had disobeyed the lawful
orders of police officers and used foul language, which constituted an
offence under Article 182 of the Code of Administrative Offences
(CAO). He further drew up a record on taking an explanation which
stated that the applicant had refused to make a statement. Both
records noted that the applicant had refused to sign them.
16. The applicant alleges that, after police officer A.M. had
finished preparing the materials of the administrative case, he said
that those materials would be taken to a court and it would be better
for somebody to intervene otherwise the applicant risked 15 days in
detention. Then the two had a short conversation, during which the
applicant said, inter alia, that he had been brought to the police
station because of his participation in demonstrations, such arrests
being carried out upon the instructions of the President of Armenia.
Then police officer A.M. left the office.
17. The applicant further alleges that, some minutes after police
officer A.M. had left the office, police officer H.M. entered and
started swearing at him. Police officer H.M. then approached him and
kicked him on the left side of his chest and punched him in the face.
The applicant grabbed the mobile phone charger which was on the desk
and hit police officer H.M. Having heard the noise of the scuffle,
three other police officers entered the office and took him to another
room. About ten minutes later police officer H.M. and another police
officer, A.A., came to that room and started brutally beating him.
After they left the room, another police officer, A.K., entered the
room and started hitting him in the area of his scrotum with a metal
object. He was then handcuffed and police officer A.K. continued
punching and kicking him below the waist, after which he lost
consciousness.
18. It appears that at some point an ambulance was called from
Artashat Hospital to have the applicant checked for alcohol
intoxication. According to the record of a medical examination, the
applicant was examined by the ambulance doctor, A.G., at 7 p.m. and
the test results showed that there were signs of alcohol intoxication.
The applicant alleges that in reality the ambulance doctor was called
to check his level of alcohol intoxication at 3.05 p.m. (see also
paragraph 66 below). A police officer, A.H., who assisted in the
check-up, punched him four times in the face and once below his waist.
19. At an unspecified hour arresting police officer R.S. reported to
the chief of police the following:
"During the preparation of materials on an administrative offence in
respect of [the applicant] who was brought to the police station on
the basis of the information received from an unknown citizen on 23
April 2004 at 5.05 p.m. [the applicant] behaved cynically, obscene and
self-confident, using foul language towards the police officers and
refusing to sign the prepared documents. And when [the applicant]
found out that the materials prepared in his respect would be
submitted to a court for examination, he took a mobile phone charger
from the desk and hit the head of the criminal investigation unit
[H.M.] in the face with it, swearing at him and saying that it was he
who had fabricated everything, after which [the applicant] attempted
to hit him a second time with a telephone that was on the desk but he
was prevented from doing so by me and [police officers A.A. and
A.M.]."
20. It appears that police officer A.A. made a similar report. It
further appears that police officer H.M. was taken to hospital.
21. At an unspecified hour investigator M. of the Ararat Regional
Prosecutor's Office decided to institute criminal proceedings no.
27203404 under Article 316 § 1 of the Criminal Code (CC) on the ground
that the applicant had used force against a public official by hitting
police officer H.M. and thereby inflicting injuries not dangerous for
health. This decision was taken on the basis of the materials
submitted by the Artashat Police Department and contained an account
of events similar to that contained in the above police reports.
22. Investigator M. then took witness statements from police officer
A.M. and arresting police officers R.S. and A.S.
23. Police officer A.M. stated that, when the applicant refused to
make a statement in connection with his administrative case, there
were three other police officers present in the office apart from
himself and the applicant, namely police officers R.S., A.A. and H.M.
Seeing that the applicant was refusing to make a statement, police
officer H.M. told him that he would have to be taken to a court. On
hearing that, the applicant exclaimed "It is you who have fabricated
everything", grabbed the mobile phone charger from the desk and hit
police officer H.M. in the face. Immediately thereafter the applicant
reached for the telephone that was on the desk but police officer A.A.
managed to grab the telephone from him. Then the applicant went
towards police officer H.M., they grasped each other and, while
pushing each other, they fell on the chair standing beside the desk,
which collapsed. The applicant was lying on the floor and police
officer H.M. was lying on him. A.M. - together with police officers
A.A. and R.S. - immediately picked them up. The applicant was then
taken to another office, while police officer H.M. was taken to
hospital. In reply to the investigator's question, police officer A.M.
stated that the police officers had been very polite and to-the-point
with the applicant. He had not been made aware of the applicant's
political affiliation and the only thing he had learned from him was
that he was a friend of the PPA candidate. In reply to the
investigator's second question, police officer A.M. stated that none
of the police officers had hit or beaten the applicant at the police
station before or after the incident.
24. Arresting police officer R.S. made a similar statement. In reply
to the investigator's question as to whether any of the police
officers had hit or beaten the applicant at the police station or
prior to taking him there, police officer R.S. stated that none of the
police officers had hit or beaten the applicant. To the contrary,
taking into account his behaviour and his statements about changing
the government, the police officers had been careful and correct with
him in order to avoid any unnecessary conversations. In reply to the
investigator's second question, police officer R.S. stated that he had
not been made aware of the applicant's political affiliation and the
only thing he had learned from him was that he was a friend of the PPA
candidate.
25. Arresting police officer A.S. stated, inter alia, that he was
away at the time of the incident. He further stated that he had found
out about the reasons why the applicant had been brought to the police
station only after bringing him there. No questions were posed by the
investigator.
26. Investigator M. examined the scene of the incident and drew up a
relevant record which included photographs of the broken chair.
27. At 9.45 p.m. investigator M. drew up a record of the applicant's
arrest which stated that the applicant had been arrested at that hour
on suspicion of having inflicted violence not dangerous for health on
police officer H.M. at around 6.30 p.m. at the Artashat Police
Department.
28. At 10 p.m. investigator M. questioned the applicant as a suspect.
According to the record of the suspect's questioning, the applicant
stated that he was unable to testify at that moment and would make a
statement the next morning. It appears from the record that the
applicant's State-appointed lawyer was present at this questioning.
29. According to a record drawn up by another police officer, O.B.,
at an unspecified hour the applicant felt sick and asked for a doctor.
An ambulance was called. The ambulance doctor A.G., having heard the
applicant's complaints, advised an in-patient examination since his
complaints could be examined only with special equipment. It appears
that this visit took place at 11.20 p.m. It further appears that the
applicant was taken to Artashat Hospital by several police officers
but was not allowed to stay there despite the doctor's
recommendations. The applicant spent that night in a cell at the
police station.
2. The applicant's transfer to hospital and his operation on 24 April 2004
30. On 24 April 2004 at 11.20 a.m. the applicant was taken from the
police station to Artashat Hospital, where he underwent a medical
examination and was then taken to the surgical unit.
31. According to the surgeon's certificate dated 24 April 2004, the
applicant was brought to the hospital's surgical unit with the
following initial diagnosis: "Post-traumatic hematoma of the scrotum,
hematocele of the left testicle, laceration?" Surgery was carried out
on the applicant's scrotum. During the surgery the left testicle was
found to be lacerated and crushed with decomposition of tissue and
with a large amount of accumulated blood (about 400 mg). The
applicant's left testicle was removed. Following the surgery,
in-patient treatment was recommended. The certificate further stated
that in the post-surgical period the applicant was not able to testify
or to answer questions.
32. It appears that on the same date the applicant's chest was
X-rayed at the hospital.
33. Later that day investigator M. decided to release the applicant
from custody. The investigator's decision described the circumstances
of the incident as presented in the above police materials and added
that "[the applicant] had also been injured during the incident" and
taken to hospital. Taking into account that the applicant needed
in-patient treatment, there was no need to keep him in custody.
34. Investigator M. also ordered that both the applicant and police
officer H.M. undergo a forensic medical examination. This decision
stated, inter alia, that it had been established by the investigation
that the applicant, who had been taken to the police station on
suspicion of carrying a firearm, had inflicted injuries on police
officer H.M. by hitting him with a mobile phone charger. As a result
of the incident, the applicant had also been injured. The expert was
asked to answer the following questions in respect of the applicant's
injuries:
"- What kind of physical injuries are there on [the applicant's]
body[? C]larify their nature, location, method of infliction, age and
degree of severity.
- Was the injury to [the applicant's] testicle caused by a blow or by
an illness?
- If the injury to [the applicant's] testicle was caused by a blow,
was it caused by one or several blows?"
35. On the same date the investigator took a witness statement from
police officer H.M. He submitted that following the anonymous
telephone call, deputy chief of police G. had immediately called
police officers R.S. and A.S. to his office, informed them about the
information received and ordered them to bring the applicant
immediately to the police station. After about 30 minutes they had
returned with the applicant. Police officer R.S. reported that in the
village and on the way to the police station the applicant had used
foul language, threatened and used insulting expressions towards the
police. Police officer H.M. had then spoken to the applicant and asked
him to give up voluntarily his firearm. The applicant denied ever
having any firearm and said that he had participated and would
continue to participate in demonstrations. He had then continued using
foul language, saying that the police officers' days in office were
numbered and that the government would be changed soon. Police officer
H.M. went on to describe how he and other police officers started
preparing an administrative case against the applicant under Article
182 of the CAO and the manner in which the later incident took place,
providing an account of events similar to that given by other police
officers (see paragraphs 23 and 24 above). No questions were posed by
the investigator.
3. The first allegations of ill-treatment and other developments
36. On 25 April 2004 the applicant was questioned as a suspect at the
hospital by investigator M. and made the following statement:
"...I am a member of the PPA party and I have lately participated in
demonstrations organised by that party. On 23 April 2004 at around 4
p.m. I was coming home from my aunt's place when I noticed a car
parked next to our house. The car moved and our paths met not far from
my house. I saw our [local policeman R.S.] together with one of our
district inspectors whom I did not know. They stopped and started
talking to me. [R.S.] said that they were coming for me and that the
chief (meaning the chief of police) wanted to have a talk with me. I
answered that if I came to the police department they would keep me
"overnight", taking into account the fact that the same had happened
before to my friends. [R.S.] promised me that no such thing would
happen and I agreed to go with them. We went together to the police. I
and [R.S.] went up to the second floor. After waiting for a moment
next to his office, he took me to the Head of the Criminal
Investigation Unit [H.M.]. There [H.M.] started talking and said
"Grisha, what is this all about the demonstrations you are holding and
the government you are changing? You are upsetting the stability of
the country" and things like that[. H]e also said that I had taken
people to the demonstrations and added that I had taken with me, for
instance, [G.A.]. I asked whether [G.A.] could come and prove that I
had taken him to the demonstrations and added that he had his own
brain to decide what to do. [H.M.] left the office telling me that he
would be back soon. A little while later I was invited to go to the
office of the deputy chief of police [G.]. When I entered [G.'s]
office he asked me why I was talking loudly in the hallway and why I
was organising a demonstration in the building [of the police
station]. I answered that I had not been in the hallway and had not
organised any demonstration. [G.] said that I was using foul language
to him there and then and ordered that a case be prepared on account
of my committing an administrative offence. I and [R.S.] came back to
his office where he, in the presence of [another police officer,
A.M.], said that he would not prepare materials against me and left
the room. A little while later [A.M.] was called[. H]e went away, then
returned and started preparing some documents. He inquired about my
personal details but I refused to say anything and only said that I
had higher education. A little while later [H.M.] came. [A.M.] told
him that I refused to provide any information about myself. He ordered
[A.M.] to go and bring form no. 1. [A.M.] left and came back with a
piece of paper on which I could see my photo. [A.M.] filled in some
documents and asked me to sign them[. I] answered that I would not
sign any documents. At that moment a girl came to [A.M.'s office]. He
told the girl to type a court document. [A.M.], apparently having
finished filling in the documents, was about to go, probably to fetch
the court document. I understood by now that I was going to be taken
to a court and sentenced to an "overnight". Besides, [A.M.] also said
that they were about to take me to a court and left the office. At
that moment [H.M.] entered the office. I was sitting in front of one
of the desks. Upon entering the office he immediately started swearing
at me, also saying that it was their country and that they could do
anything they wanted to and that what we were trying to do, meaning
the change of the government, was all in vain. I answered: "You do
what you think is right and we will do what we consider to be right"[.
A]t that moment [H.M.] kicked me. The blow fell on the left side of my
chest. He kicked me with the sharp tip of his shoe. I felt sharp pain
in the area of my ribs. He immediately punched me twice in the face
with his left fist. At that moment I lost my temper and to defend
myself picked up the mobile phone charger from the desk and hit him
with it. The cable stayed in my hand while the charger broke off and
hit [H.M.'s] face. I saw him holding his eye and screaming. At that
moment [A.M.] entered the office and, seeing the chaotic situation,
took me to the nearby office. [H.M. and another police officer, A.A.,]
followed me there and started beating me. I fell down but they went on
beating me. They were kicking and punching me. Then other officers
came and took [H.M. and A.A.] out. I would like to indicate that at
the very beginning both [H.M. and A.A.] kicked me on my testicles.
Some while after [H.M. and A.A.] had been taken away from the office,
[another police officer A.K.] came to the office [(I learned his name
and position from other officers after the incident)] and started
swearing at me, trying to humiliate me, twice spat on me and punched
my testicles[. Then] he kicked my feet several times and left. Before
leaving he hit me again on my testicles with his keys. [A.K.], before
beating me in the office, ordered everybody to leave, saying that he
was going to abuse me. After he left [A.A.] entered the office and
started beating me again, demanding that I stand upright. He was
hitting and saying "Hit back! Why don't you hit back now?" Some time
later an ambulance doctor came to check whether I was drunk. I told
her that I was not drunk. They contacted the chief of traffic
inspection and asked for an "ampoule". [Another police officer, A.H.,]
brought the ampoule. The doctor broke the edge of the ampoule and I
blew in it. At that time I was asserting again that I was not drunk.
[A.H.] hit me on my forehead. He hit me twice on my forehead. It
seemed like he wanted to show deliberately that he was defending the
honour of the uniform. I was in a terrible condition[. I] asked
[another police officer, M.B.,] and he gave me some water, then poured
it on my head, back and face for me to regain consciousness. [Another
police officer, R.H.,] also helped me; he removed my handcuffs,
realising of course that I was in a bad condition..."
37. On 26 April 2004 investigator M. examined the police journal
where under entry no. 153 it was stated that an anonymous telephone
call had been received on 23 April 2004 at 5.05 p.m. alleging that the
applicant had participated in the demonstration of 12 April 2004 with
a firearm and was still carrying it.
38. On 27 April 2004 the applicant was again questioned as a suspect
at the hospital by investigator M. He was asked about the kind of
conversation he had had at the police station before the incident,
concerning the fact that he had been carrying a firearm. The applicant
replied that none of the police officers had asked him about any
firearm. The only thing he had been asked about was why he was
attending demonstrations and taking others with him. Such questions
were asked by police officer H.M. Furthermore, while police officer
A.K. was beating him, he was asking him which of the opposition
leaders was encouraging his activity. The applicant also added that
police officer A.K. had ordered that he be handcuffed with his hands
behind his back, after which he started beating him in that position.
39. Investigator M. also took a witness statement from police officer
A.A., who repeated the submissions made in his report of 23 April 2004
(see paragraph 20 above). No questions were posed by the investigator.
40. On the same date expert G. of the Ararat Regional Division of the
Republican Forensic Medicine Theoretical and Practical Centre (RFMTPC)
of the Ministry of Health received a copy of the investigator's
decision of 24 April 2004 ordering the applicant's forensic medical
examination (see paragraph 34 above).
41. On that day the Ararat Regional Court decided to grant
investigator M.'s request to have the applicant's home searched,
finding that there were sufficient grounds to believe that firearms
could be hidden there.
42. On 28 April 2004 investigator M. decided to seize the X-ray of
the applicant's chest taken at the hospital on 24 April 2004 (see
paragraph 32 above).
43. On 29 April 2004 the applicant's home was searched and no
firearms were found.
44. On the same date investigator M. questioned as a witness police
officer H.M. The investigator asked police officer H.M. to comment on
the applicant's allegations that H.M. had attacked him first and that
he had been ill-treated after the incident by H.M. and police officer
A.A., to which H.M. replied that the applicant was lying and denied
having ill-treated him, repeating his earlier submissions (see
paragraph 35 above). The investigator then asked police officer H.M.
to comment on the applicant's allegation that the police officers
never asked him any questions about a firearm, to which H.M. replied
that the applicant had been taken to the police station on the grounds
of information that he carried a firearm and the conversation with him
concerned that issue. The applicant, however, would constantly change
the topic to demonstrations, changing the government, the police
officers' "numbered days" in office and their punishment.
45. On 30 April 2004 the applicant lodged an application with the
Prime Minister with copies to the General Prosecutor and the Heads of
the National and Regional Police complaining that on 23 April 2004 at
around 2 p.m. he had been taken by deception to the Artashat Police
Department where he had been beaten and tortured for his participation
in demonstrations. He requested that the perpetrators be punished,
indicating their names, which included H.M., A.H., A.K. and A.A., and
citing his statement of 25 April 2004 for further details (see
paragraph 36 above).
46. On the same date the Armenian Ombudsman, who had apparently
visited the applicant in hospital and was following his case, wrote to
the General Prosecutor's Office and the Head of the National Police,
informing them of the following:
"We have carried out an inquiry into possible human rights violations
in connection with the incident that happened to [the applicant] in
the Artashat Police Department on [23 April 2004].
The data that we have obtained provide grounds for us to assert that
acts which are qualified as "cruel, inhuman or degrading treatment"
have been committed in respect of [the applicant] at the Police
Department.
The fact itself that [the applicant] was taken to the Town Police
Department in good health then transferred to a hospital where he
underwent surgery as a result of the injuries suffered shows that he
was subjected to such treatment regardless of his personality and the
acts he had committed just before.
We are worried by the fact that so far the Armenian Police have not
given their report of what has happened.
During the conversations we had with [the representatives of] the
Regional Prosecutor's Office and with the Heads of Regional and Town
Police opinions were expressed, from which it can be assumed that no
appropriate assessment will be given to the lack of grounds for
bringing the applicant to the police station, the lack of sufficient
grounds for arresting him and the institution of criminal proceedings
specifically against [him].
This is especially worrying in the sense that it can lead to a
one-sided and non-impartial investigation..."
47. On the same date investigator M. took a witness statement from
police officer A.K. who submitted that after the incident he had
entered the office where the applicant was and asked everybody else to
leave in order to talk to him in private and to find out the whole
truth. He then had a chat with the applicant who had expressed remorse
for what had happened. The investigator asked A.K. to comment on the
applicant's allegations of ill-treatment, in reply to which A.K.
denied having ill-treated the applicant. The investigator then asked
A.K. to specify which office he had entered to have a chat with the
applicant and who else was in that office, to which A.K. replied that
he was new at the police station and he could not indicate with
certainty the office in question or the identity of the other police
officers who were there.
C. The criminal proceedings against the applicant
48. On 3 May 2004 the applicant was formally charged under Article
316 § 3 of the CC (see paragraph 121 below) with inflicting violence
dangerous for health on a public official. The decision stated that
the applicant had been brought to the police station on suspicion of
illegal possession of a firearm. At around 6.30 p.m. in the office of
police officer R.S., having been informed by police officer H.M. that
an administrative case was to be brought against him, the applicant
took a mobile phone charger from the table and intentionally hit the
right eye of police officer H.M. with it.
49. On the same date the applicant was discharged from the hospital.
His medical card contained information concerning his diagnosis and
treatment similar to that given in the surgeon's certificate of 24
April 2004 (see paragraph 31 above).
50. On the same date investigator M. took a witness statement from
police officer A.H., who similarly denied having ill-treated the
applicant. Two other police officers, R.H. and M.B., were also
questioned as witnesses. Both denied having helped the applicant,
namely by taking off his handcuffs and giving him water. Police
officer R.H. further stated, in reply to the investigator's question,
that the applicant had never complained to him about his health.
51. On 4 May 2004 investigator M. once again questioned the
applicant, who confirmed his earlier allegations.
52. On 5 May 2004 expert G. drew up his report based on the results
of the applicant's forensic medical examination. The report stated at
the outset that the examination had begun on 27 April 2004 and had
been completed on 5 May 2004. It then recounted in detail in the
chapter entitled "The circumstances of the case" the official account
of the incident, namely that the applicant had assaulted a police
officer and had also been injured during the incident, and added at
the end that, according to the applicant, he had been ill-treated. The
report was concluded with the following expert's findings:
"Results of [the applicant's] personal observation: [The patient] is
lying in bed on his back in a semi-active state ... On the outer
surface of the upper third part of the right shin there is a
green-yellow-coloured bruise measuring 2.5 cm and having an irregular
form. No objective features of other bodily injuries to other parts of
the body have been disclosed. On 5 May 2004 [I received the X-ray
consultation made on 30 April 2004 by an RFMTPC X-ray specialist,
according to which] 'No bone changes have been disclosed in the X-ray
of [the applicant's] left side of the chest'...
Conclusion: [the applicant's] bodily injuries, namely the
post-traumatic hematoma of the scrotum, the hematocele of the left
side, the laceration of the left testicle and the bruise on the right
shin, were caused by blunt and rough objects, [and] it cannot be ruled
out [that they were caused] at the time and in the manner described
above. The injury to the left testicle has a traumatic origin and
could have been caused by any type of blow. In order to assess the
degree of gravity of the bodily injury it is necessary to bring the
patient to the forensic medical examination unit for examination on
the twenty-first day following the incident."
53. On 6 May 2004 the applicant complained to the General Prosecutor
that the criminal proceedings against him were unfounded. He submitted
that investigator M. of the Regional Prosecutor's Office, due to his
official duties, was linked to the police officers of the Regional
Police Department and was therefore not impartial. He requested that
investigator M. be removed from the case, that the case be transferred
to the General Prosecutor's Office and that criminal proceedings be
instituted on account of his torture.
54. On 10 May 2004 the Deputy General Prosecutor decided to dismiss
the applicant's request as unfounded.
55. By a letter of 18 May 2004 the applicant was informed by the
General Prosecutor's Office that his request had been dismissed but
for reasons of expediency, upon the instruction of the General
Prosecutor, the criminal case had been transferred for further
investigation to the Yerevan Prosecutor's Office.
56. On 18 May 2004 expert G. supplemented his initial expert report
by including an assessment of the gravity of the injuries. The
conclusion now stated:
"Conclusion: [the applicant's] bodily injuries, namely the
post-traumatic hematoma of the scrotum, the hematocele of the left
side, the laceration of the left testicle and the bruise on the right
shin, were caused by blunt and rough objects, [and] it cannot be ruled
out [that they were caused] at the time and in the manner described
above; [the injuries] caused damage to health of medium degree with
lasting deterioration of health, taking into account that the
immediate effects of the injury lasted more than twenty-one days."
57. On an unspecified date the applicant wrote to the General
Prosecutor's Office, seeking to have a decision taken on his request
to have criminal proceedings instituted against the police officers.
58. On 21 May 2004 the applicant's criminal case was transferred to
the Yerevan City Prosecutor's Office and was taken over by
investigator T. of the Erebuni and Nubarashen District Prosecutor's
Office of Yerevan.
59. On 24 May 2004 investigator T. questioned the applicant's mother,
who stated that the applicant had never possessed a gun. She further
stated that police officers had previously visited their home on
numerous occasions, inquiring about the applicant and saying that they
were looking for him because he participated in demonstrations.
60. On 25 May 2004 investigator T. questioned the applicant's friend,
G.A., whom he had allegedly incited to go to demonstrations with him.
G.A. stated that he was aware that the applicant had been brutally
beaten at the police station and added that this was connected with
his participation in demonstrations. He also confirmed that he had
never seen the applicant with any firearms.
61. On 2 June 2004 the applicant lodged a complaint (Õ¤Õ"Õ´Õ¸O~BÕ´) with the
Erebuni and Nubarashen District Prosecutor, alleging that he had been
tortured and ill-treated at the police station by the police officers
whose names he had indicated in his statement of 25 April 2004, as a
result of which he suffered a grave physical injury. However, charges
were brought only against him and no assessment was made of the
criminal acts committed by the police officers and of the fact that he
had acted in necessary self-defence. Furthermore, he had been brought
to the police station without any grounds and the real reason for his
arrest was the political persecutions taking place in Armenia. The
applicant requested, with reference to, inter alia, Articles 180, 181
and 182 of the Code of Criminal Procedure (CCP) (see paragraphs
108-110 below), that an investigation be carried out, that criminal
proceedings be instituted against the police officers of the Artashat
Police Department and that they be suspended from their duties during
the investigation.
62. On 7 June 2004, in response to this complaint, investigator T.
took a decision on dismissing a motion (Õ´Õ"Õ"Õ¶Õ¸O~@Õ¤Õ¸O~BÕ©ÕµÕ¸O~BÕ¶) filed by the
applicant. The decision stated at the outset that criminal proceedings
had been instituted against the applicant on account of his inflicting
physical injuries on police officer H.M. and that the applicant had
also been injured as a result of the incident. It went on to conclude:
"Having examined the materials of the criminal case, it has been
established that the investigation has been carried out objectively
and all the necessary investigative measures have been taken in the
course of the investigation, during which no evidence has been
obtained to suggest that the police officers of the Artashat Police
Department have exceeded their authority[.H]ence there was no need to
institute [a new set of] criminal proceedings and to carry out
criminal prosecution."
63. On 11 June 2004 a confrontation was held between the applicant
and one of the arresting police officers, A.S. The applicant submitted
that he had been approached by police officers R.S. and A.S. at 3 p.m.
on the date of his arrest and that police officer R.S. had invited him
to the police station for a talk with the chief in connection with the
demonstrations. Police officer A.S. confirmed this submission. He also
admitted that he had not been aware that the applicant was being
brought to the police station on suspicion of illegal possession of a
firearm and had found out about this only upon arrival at the police
station.
64. On 14 June 2004 a confrontation was held between the applicant
and the second arresting police officer, R.S. The latter submitted,
inter alia, that the deputy chief of the police department, G., had
ordered him to bring the applicant to the police station for a talk.
This order was oral and there was no written decision to arrest the
applicant.
65. On 16 June 2004 the applicant requested information from Artashat
Hospital concerning the events of 23-24 April 2004.
66. By two letters of 22 June 2004 the Head of Artashat Hospital
informed the applicant of the following:
"...[O]n 23 and 24 April three ambulance calls were [received] at the
Artashat ambulance station from the Artashat Police Department in
connection with [the applicant] kept at the police station.
First call: ... 23 April 2004 at 3.05 p.m.: the purpose of the call
was the determination of the level of drunkenness.
- doctor on duty [A.G.]
Second call: ... 23 April 2004 at 11.20 p.m.: doctor on duty [A.G.].
Diagnosis: bruising of soft tissues of the left side of the chest,
fractured ribs (?) and contusion of testicles.
Administration of Analgin, Dimedrol and Diclofenac pills.
Third call: ... 24 April 2004 at 11.20 a.m. [the applicant] was
brought to the reception room for a surgeon's consultation; doctor on
duty [V.H.]; diagnosis: contusion of ribs and testicles.
[The applicant] was transferred to the surgical unit."
"...[The applicant] ... was admitted to the surgical unit of the
Artashat Hospital CJSC on 24 April 2004 at 4.40 p.m. upon the referral
... of the hospital's reception room ... with the following diagnosis:
post-traumatic hematoma of the scrotum, hematocele of the left side
and laceration of the left testicle.
According to the description contained in the medical card the above
diagnosis was a result of a trauma..."
67. On 22 June 2004 a confrontation was held between the applicant
and police officer A.M. Both presented their version of the events.
Similar confrontations were held between the applicant and police
officers A.A., H.M., A.H., A.K. and the deputy chief of the police
department G., on 7, 8 and 27 July and 5 August 2004 respectively. All
the police officers denied having ill-treated him. Police officer A.A.
admitted during the confrontation that he was one of the officers who,
after the second ambulance call, had accompanied the applicant to the
hospital where he had his ribs examined. A.A. stated that the doctors
had not detected anything dangerous and the applicant had been taken
back to the police station. He further admitted that he had been
present during the examination of the applicant's ribs but not during
the examination of his testicles.
68. On the same date the applicant was presented with the forensic
medical expert's report of 5 May 2004 and its supplement of 18 May
2004 (see paragraphs 52 and 56 above).
69. On 28 June 2004 the applicant filed a motion, claiming that the
expert's findings were not objective since the injuries sustained by
him had been grave and intentionally inflicted and had resulted in
loss of functionality of a vital organ. The applicant sought to have a
new forensic medical examination ordered.
70. On 6 July 2004 the applicant lodged an appeal with the Criminal
and Military Court of Appeal against the investigator's decision of 7
June 2004. He once again indicated the names of the alleged
perpetrators and complained that the investigation was not impartial
and was aimed at misrepresenting the circumstances of the incident in
order to cover up for the police officers in question. He argued that
there were sufficient reasons to institute criminal proceedings
pursuant to Articles 175, 176 and 180 of the CCP (see paragraphs 105,
106 and 108 below), something which the investigating authority had
failed to do.
71. On the same date investigator T. questioned doctors A.G. and V.H.
Doctor A.G. stated that she had visited the applicant twice at the
Artashat Police Department on 23 April 2004. The first call was
intended to determine his level of intoxication. When she visited him
at the police station following the second call, several hours later,
the applicant was pale, in a cold sweat and in sharp pain. After an
examination a bruising was disclosed in the lower left side part of
the applicant's chest. He also complained of a sharp pain in the
testicle area. First aid was given, after which the applicant was
transferred to Artashat Hospital, since there was an urgent need to
have his chest and ribs X-rayed and for a surgeon's consultation. The
initial diagnosis was rib fracture and testicle injury. She was not
aware of the causes of those injuries, the diagnosis given at the
hospital or how long the applicant had stayed there. Doctor V.H.
stated that, following the applicant's examination at the Artashat
Police Department, where he and a nurse had gone in response to a call
received on 24 April 2004 at around 11 a.m., it was disclosed that he
had contusions to his ribs and testicles. No injuries had been
discovered on other parts of the body. The applicant had then been
transferred to the hospital where surgery was performed. Doctor V.H.
added that these injuries, especially the ones in the area of the
testicles, could have been caused by a strong or a light blow or as a
result of colliding with some object. He was not aware of the causes
of those injuries.
72. On 7 July 2004 investigator T. decided to order a new forensic
medical examination of the applicant on the ground that the veracity
of the expert report of 5 May 2004 and its supplement of 18 May 2004
was open to doubt, referring, inter alia, to the fact that the
expert's findings had been contested by the applicant (see paragraph
69 above). The new examination was to be conducted by the experts of
the Yerevan Division of RFMTPC who were asked to answer the following
questions: (1) what injuries are there on the applicant's body,
including their location, nature, method of infliction, degree of
gravity and age; and (2) whether expert G. had determined the degree
of gravity of the applicant's injuries accurately.
73. On 8 July 2004 investigator T. decided to seize the applicant's
medical card from Artashat Hospital.
74. On 22 July 2004 the Criminal and Military Court of Appeal decided
to leave the applicant's appeal of 6 July 2004 (see paragraph 70
above) unexamined on the ground that the investigator's decision of 7
June 2004 had been taken in the course of the criminal investigation
and was a procedural decision which, according to the relevant
criminal procedure rules, did not fall within the scope of judicial
control and could not be contested before the courts.
75. On the same date the experts received a copy of the
investigator's decision of 7 July 2004 ordering a new forensic medical
examination (see paragraph 72 above).
76. On an unspecified date the applicant lodged an appeal on points
of law against the decision of the Court of Appeal of 22 July 2004. He
submitted that the Court of Appeal was obliged under Article 278 of
the CCP (see paragraph 113 below) to examine his complaint concerning
the lawfulness of the investigator's decision.
77. On 28 July 2004 a new forensic medical expert report was produced
which contained a conclusion almost identical to that made in the
earlier expert report (see paragraphs 52 and 56 above). The report
also stated that the finding concerning the degree of gravity of the
applicant's injuries had been accurate.
78. On 10 August 2004 two confrontations were held between the
applicant and police officers R.H. and M.B. Both denied having
provided any help to the applicant, either by taking off the handcuffs
or giving him water.
79. On 13 August 2004 investigator T. decided to recognise police
officer H.M. as a victim. Police officer H.M. was questioned, during
which he confirmed his earlier statements.
80. On 17 August 2004 the charge against the applicant was modified
by adding the fact of the applicant's alcohol intoxication. The
applicant was again questioned and pleaded not guilty. He submitted
once again that he had been brought to the police station for his
participation in demonstrations and had been brutally beaten.
81. On the same date the investigator decided to end the
investigation since sufficient evidence had been obtained to prepare
an indictment.
D. Termination of the criminal proceedings in respect of the applicant
82. On 30 August 2004 the Erebuni and Nubarashen District Prosecutor
decided to stop the prosecution and to terminate the criminal
proceedings against the applicant with reference to Article 37 § 2(2)
of the CCP (see paragraph 117 below). This decision first
recapitulated the investigating authority's account of events,
according to which the applicant was brought to the police station on
suspicion of having carried firearms at demonstrations. When being
taken to the police station and upon arrival the applicant used foul
language, insulted the police officers and disobeyed their lawful
orders. Having found out that the administrative case instituted on
account of his behaviour would be submitted to a court, the applicant
hit the right eye of police officer H.M. with a mobile phone charger,
thereby intentionally inflicting injuries of medium gravity.
Thereafter the applicant grabbed the telephone from the table and
tried to hit H.M. with it, but was prevented by A.A., after which the
applicant assaulted H.M. and the latter in self-defence kicked the
applicant's testicles, grasped him and fell together with him on the
chair and then on the floor. The decision concluded:
"As a result of the incident [the applicant's] testicle was injured
and removed through surgery, [so] damage of medium gravity was caused
also to his health.
Since [H.M.] acted within the limits of necessary self-defence, no
criminal proceedings were instituted against him, while [the
applicant] was charged under Article 316 § 3 of [the CC]...
Taking into consideration the fact that during the commission of the
offence [the applicant] also suffered damage of medium gravity for his
health, namely his testicle was injured, underwent surgery and was
removed, which is incurable, and that actually by suffering privations
he atoned for his guilt and in such circumstances it is not expedient
to carry out prosecution against him, I decided ... to stop the
prosecution against [the applicant]..."
83. On an unspecified date the applicant contested this decision
before a higher prosecutor.
84. On 24 September 2004 the Court of Cassation decided to dismiss
the applicant's appeal on points of law against the decision of the
Criminal and Military Court of Appeal of 22 July 2004 (see paragraph
74 above) with the following reasoning:
"It follows from the materials of the case that [the applicant] filed
a motion seeking to have criminal proceedings instituted against the
employees of the Artashat Police Department on 2 June 2004, that is at
a time when [a criminal case] had been already instituted on account
of the incident on 23 April 2004 and an investigation into that case
was already underway. Moreover, both the fact of a physical injury
inflicted by [the applicant] on [police officer H.M.] and a physical
injury inflicted by the latter on [the applicant] constituted a
subject of that investigation. In those circumstances, there was no
need to institute a separate criminal case on account of the physical
injury inflicted on [the applicant], since the issues raised by [him]
already constituted a subject of an investigation in a criminal case.
Based on the results of the criminal case on 30 August 2004 the
Erebuni and Nubarashen District Prosecutor of Yerevan decided to end
criminal prosecution against [the applicant] and to terminate the
criminal proceedings.
In such circumstances, given that the issues raised by [the applicant]
have already been a subject of examination by competent authorities
and a final decision has been adopted in that respect, the request to
have a new criminal case instituted concerning the same matter is
incompatible with the requirements of Article 27 of [the CCP]."
85. By a letter of 24 September 2004 the applicant was informed by
the General Prosecutor's Office that the decision to terminate the
criminal proceedings was well-founded and there were no grounds to
quash it.
86. On an unspecified date the applicant lodged an appeal with the
Erebuni and Nubarashen District Court of Yerevan seeking to quash this
decision. He contested the grounds for terminating the criminal
proceedings, arguing in detail that the investigation had been flawed
for many reasons, including overlooking the fact of his unlawful
arrest, which was linked to his participation in demonstrations and
political activities, and his ill-treatment by the police officers,
which was falsely presented as self-defence on the part of police
officer H.M. The testimonies of police officers A.A., R.S., H.M. and
A.K. were false and lacked any probative value, since these persons
were the perpetrators of his brutal beating. Furthermore, the police
officers of the Artashat Police Department had been persecuting him
since March 2004 and the anonymous phone call of 23 April 2004 was a
mere set-up. Because of a slow and biased investigation the
above-mentioned persons had managed to avoid criminal responsibility.
In particular, the investigating authority had failed to arrange
immediate confrontations and did so only in July 2004, thereby
allowing the police officers to coordinate their testimonies, while
the conclusions of the forensic medical expert were not impartial. No
criminal proceedings had been instituted, while the perpetrators were
questioned only two months after the incident, which suggested that
the case was of a political nature and enjoyed a high-ranking
patronage. The fact of his systematic ill-treatment on the night of 23
April 2004 was confirmed by the relevant hospital papers and there
were sufficient grounds to institute criminal proceedings against the
police officers as required by Articles 175 and 176 of the CCP (see
paragraph 105 and 106 below). The applicant insisted that such
proceedings be instituted since the offence committed against him had
absolutely not been investigated. In conclusion he requested that the
criminal proceedings against him be terminated on exonerating grounds
or else he be tried in court where he could prove his innocence.
87. On 12 November 2004 the Erebuni and Nubarashen District Court of
Yerevan examined the applicant's appeal. Both the applicant and a
representative of the investigating authority were present at that
hearing and made submissions. The District Court found the applicant's
appeal to be unsubstantiated and decided to dismiss it.
88. On 22 November 2004 the applicant lodged an appeal against that
decision. In his appeal he argued, inter alia, that the District Court
had ignored the numerous circumstances contained in his appeal against
the prosecutor's decision substantiating the one-sided and flawed
conduct of the investigation. The applicant requested the Court of
Appeal to carry out an objective examination, to quash the decision of
the District Court and to order the prosecutor to terminate his case
on exonerating grounds or to submit the case to a court for
examination on the merits. Attached to this appeal was a copy of the
applicant's appeal lodged with the District Court (see paragraph 86
above).
89. On 24 December 2004 the Criminal and Military Court of Appeal
found that the investigation had been carried out in compliance with
the requirements of the criminal procedure law and the applicant's
procedural and substantive rights had not been violated. It further
found that the Erebuni and Nubarashen District Prosecutor had adopted
a lawful and well-founded decision in compliance with the requirements
of Article 37 of the CCP (see paragraph 117 below) and there were no
grounds to quash the decision of the District Court.
90. On 28 December 2004 the applicant lodged an appeal on points of
law. In his appeal he argued, inter alia, that the lower courts had
ignored the fact that the investigating authority had violated the
requirements of Article 17 of the CCP (see paragraph 102 below) and,
having conducted a one-sided investigation, had found him guilty under
Article 316 § 3 of the CC (see paragraph 121 below). The courts had
overlooked the biased conduct of the investigation, the existence of
false documents in the case and the fact that the entire investigation
was built upon the events surrounding his unlawful arrest by the
police officers. The applicant once again argued that it was not the
police officer but he who had acted in necessary self-defence, and
requested that he be tried by an independent and impartial court in a
public hearing and be allowed to prove his innocence. In conclusion he
asked that the prosecutor's decision of 30 August 2004 and that of the
Court of Appeal be quashed.
91. On 4 February 2005 the Court of Cassation examined the
applicant's appeal, finding:
"[The applicant], relying on the arguments raised before [the District
Court], argued in his appeal [to the Court of Appeal] that the
investigation had been flawed and one-sided, he had been accused
unfairly, the charges against him had been dropped ... on
non-exonerating grounds, the police officers who had ill-treated and
injured him had not been subject to criminal responsibility,
falsifications had taken place during the investigation, the police
officers had given false testimonies, inaccurate forensic medical
conclusions had been produced, etc.
He also raised in his appeal that the decisions taken by the courts
were unreasoned and that no reasoned answers had been given to the
issues raised by him...
Thus, [the applicant], in his appeals lodged with [the District Court
and the Court of Appeal], raised also the questions brought up in
[his] appeal on points of law."
92. The Court of Cassation went on to conclude that the lower courts,
ignoring the requirements of Article 17 § 4 of the CCP (see paragraph
102 below) pursuant to which complaints alleging a violation of
lawfulness in the course of criminal proceedings were to be thoroughly
examined by the authority dealing with the case, had failed to address
the arguments raised by the applicant and adopted decisions containing
no reasoning. It decided to quash the decision of the Court of Appeal
on that ground and to remit the case for a fresh examination.
93. On 3 March 2005 the Criminal and Military Court of Appeal
examined the applicant's application anew and decided to dismiss it.
In doing so, the Court of Appeal stated:
"[The applicant] has asked for the case to be remitted for further
investigation, with the expectation that it will later be brought
before a court, arguing that the investigating authority has committed
numerous violations of the criminal procedure rules, a number of
investigative measures have been falsified and that furthermore he
acted in necessary self-defence.
The Court of Appeal finds that these arguments are groundless as there
is no proof that the investigative measures have been falsified. [The
applicant's] rights envisaged and guaranteed by law have been
respected during the investigation of the case, this being reflected
in relevant records which have been drawn up, including in the
presence of lawyers. The fact that [the applicant] has refused to sign
several records of investigative measures does not suggest that these
records are unlawful.
[The applicant's] arguments that he was brought to the police
department on 23 April 2004 at around 3 p.m. and not 5 p.m. are not
supported by the materials of the case and this fact has nothing to do
with him being guilty or innocent.
[The applicant] admitted that he had inflicted physical injuries on
the police officer [H.M.] with a telephone as if in self-defence.
This fact has been rebutted by the evidence in the case which is why
the proceedings were not terminated by the Erebuni and Nubarashen
District Prosecutor on exonerating grounds.
The prosecuting authority has taken necessary measures envisaged by
law in order to carry out a thorough, complete and objective
examination of the case and to clarify both incriminating and
exculpatory circumstances.
[The applicant's] declarations concerning his innocence and the
alleged violations have been examined in detail during the
proceedings, including the proceedings in the Court of Appeal.
As a result, [the applicant's] right to a fair hearing has been
guaranteed, including the right to be confronted with witnesses who
testified against him and other rights guaranteed by the Convention
for the Protection of Human Rights and Fundamental Freedoms."
94. On 11 March 2005 the applicant lodged an appeal on points of law.
In his appeal he argued, inter alia, that the Court of Appeal had
failed to carry out a proper assessment of the evidence in the case.
It had ignored the fact that the charge was based on fabricated
evidence and, having failed to examine his allegations of procedural
irregularities as required by Article 17 § 4 of the CCP (see paragraph
102 below), agreed with the formulation of the charge against him,
according to which he had resisted the police officers and disobeyed
their lawful orders. The applicant further claimed that the Court of
Appeal, relying solely on the false reports of the police officers,
had found his arrest based on an anonymous telephone call and the
initiation of an administrative case against an unlawfully arrested
person to be lawful. The applicant also argued that the principle of
presumption of innocence had been violated and requested that the
charge against him be determined through a public hearing, taking into
account that the criminal proceedings had been terminated on
non-exonerating grounds and that the charge against him had been found
to be proved. He asked that the prosecutor's decision and those of the
lower courts be quashed.
95. On 13 May 2005 the Court of Cassation dismissed the applicant's
appeal. In doing so, the Court of Cassation stated:
"The arguments raised in [the applicant's] appeal concerning the
violations committed by the prosecuting authority have been examined
by the Court of Appeal. The court rightly stated that no evidence had
been obtained to suggest that the investigative measures had been
falsified or fabricated and that [the applicant] during the
preliminary investigation had availed himself of the rights guaranteed
by [the CCP].
[The applicant's] argument that he hit [H.M.] acting in self-defence
was rebutted by the evidence collected during the investigation.
As regards his argument that the prosecutor groundlessly stopped
prosecution against him in the absence of his consent, [it should be
noted that the CCP] does not require a person's consent when stopping
prosecution on the grounds envisaged by Article 37 § 2 (2) of [the
CCP].
[The applicant] has availed himself of the right of judicial
protection of his rights guaranteed by Article 38 of the Armenian
Constitution, by contesting before the courts the decision of the
investigating authority to stop prosecution and to terminate the
criminal proceedings in accordance with the procedure prescribed by
Article 263 and 290 of [the CCP].
The Court of Appeal, exercising judicial control over the pre-trial
proceedings based on [the applicant's] application, rightly stated
that the prosecutor's decision of 30 August 2004 was lawful and
well-founded and it did not find [the applicant] guilty of commission
of the crime as argued in the appeal.
The chamber finds that, within the grounds of the appeal, the decision
of the Court of Appeal is lawful, well-founded and reasoned and there
are no grounds for annulling it, therefore the appeal must be
dismissed."
II. RELEVANT DOMESTIC LAW
A. The Constitution of 1995 (prior to the amendments introduced in 2005)
96. Article 15 provides that citizens shall enjoy all the rights and
freedoms and bear all the duties prescribed by the Constitution and
laws irrespective of their national origin, race, sex, language,
creed, political or other opinion, social origin, property or other
status.
97. Articles 19 provides that no one shall be subjected to torture,
cruel or degrading treatment and punishment.
98. According to Article 41, a person accused of a crime shall be
presumed innocent until proved guilty, in a procedure prescribed by
law, by a final court sentence.
B. The Code of Criminal Procedure (in force from 12 January 1999), as
in force at the material time
1. Arrest
99. According to Article 128, arrest is the act of taking a person
and keeping him in short-term custody.
100. According to Articles 129 and 130, a person may be arrested (1)
on immediate suspicion of having committed an offence; or (2) on the
basis of a decision adopted by the prosecuting authority. In both
cases an arrest must not exceed 72 hours from the moment of taking a
person into custody.
2. Ill-treatment and investigation
101. According to Article 11 § 7, in the course of criminal
proceedings no one shall be subjected to torture and to unlawful
physical or mental violence, including such treatment inflicted
through the administration of medication, hunger, exhaustion,
hypnosis, denial of medical assistance and other cruel treatment. It
is prohibited to coerce testimony from a suspect, accused, defendant,
victim, witness and other parties to the proceedings by means of
violence, threat, trickery, violation of their rights, and through
other unlawful actions.
102. According to Article 17 § 4, complaints alleging a violation of
lawfulness in the course of criminal proceedings must be thoroughly
examined by the authority dealing with the case.
103. According to Article 27, the body of inquiry, the investigator
and the prosecutor are obliged, within the scope of their
jurisdiction, to institute criminal proceedings in each case when
elements of a crime are disclosed, and to undertake all the measures
prescribed by law in order to disclose the crimes and to identify the
perpetrators.
104. According to Article 41 § 2(4), the court is entitled to request
the prosecutor to institute criminal proceedings in cases prescribed
by this Code.
105. Article 175 obliges the prosecutor, the investigator or the body
of inquiry, within the scope of their jurisdiction, to institute
criminal proceedings if there are grounds envisaged by this Code.
106. According to Article 176, the grounds for instituting criminal
proceedings include, inter alia, information about crimes received
from individuals and discovery of information about a crime or traces
and consequences of a crime by the body of inquiry, the investigator,
the prosecutor, the court or the judge while performing their
functions.
107. According to Article 177, information about crimes received from
individuals can be provided orally or in writing. An oral statement
about a crime made during an investigative measure or court
proceedings shall be entered respectively into the record of the
investigative measure or of the court hearing.
108. According to Article 180, information about crimes must be
examined and decided upon immediately, or in cases where it is
necessary to check whether there are lawful and sufficient grounds to
institute proceedings, within ten days following the receipt of such
information. Within this period, additional documents, explanations or
other materials may be requested, the scene of the incident inspected
and examinations ordered.
109. According to Article 181, one of the following decisions must be
taken in each case when information about a crime is received: (1) to
institute criminal proceedings, (2) to reject the institution of
criminal proceedings, or (3) to hand over the information to the
authority competent to deal with it.
110. According to Article 182, if there are reasons and grounds to
institute criminal proceedings, the prosecutor, the investigator or
the body of inquiry shall adopt a decision to institute criminal
proceedings.
111. According to Article 184 § 1, the body of inquiry, the
investigator or the prosecutor, based on the materials of a criminal
case dealt by them, shall adopt a decision to institute a new and
separate set of criminal proceedings, while the court shall request
the prosecutor to adopt such a decision, if a crime unrelated to the
crimes imputed to the accused is disclosed, which has been committed
by a third person without the involvement of the accused.
112. According to Article 185 §§ 1, 2, 3 and 5, in the absence of
lawful grounds for institution of criminal proceedings, the
prosecutor, the investigator or the body of inquiry shall adopt a
decision to reject the institution of criminal proceedings. A copy of
the decision shall be served on the individual who has reported the
crime. This decision may be contested before a higher prosecutor or
the court of appeal. The court of appeal shall either quash the
decision or uphold it. If the decision is quashed, the prosecutor
shall be obliged to institute criminal proceedings.
113. Article 278, entitled "scope of judicial control", provides that
a court, in cases and procedure prescribed by this Code, shall examine
complaints about the lawfulness of decisions and actions of the body
of inquiry, the investigator, the prosecutor and the bodies carrying
out operative and reconnaissance measures.
114. According to Article 290, the suspect and the accused are
entitled to lodge complaints with a court against the decisions and
actions of the body of inquiry, the investigator, the prosecutor or
the bodies carrying out operative and reconnaissance measures,
including the refusals of such authorities to receive information
about crimes or to institute criminal proceedings and their decisions
to suspend or terminate criminal proceedings or to end criminal
prosecution, in cases prescribed by this Code. If the complaint is
found to be substantiated, the court shall adopt a decision ordering
the authority dealing with the case to stop the violation of a
person's rights and freedoms.
3. Termination of criminal proceedings and the presumption of innocence
115. According to Article 6, which lists the concepts contained in
the CCP, "final decision" means any decision of the authority dealing
with the case which rules out the institution of proceedings or their
continuation, as well as decides on the merits of the case.
116. Article 18 provides that a person suspected or accused of a
crime shall be presumed innocent until proved guilty, in a procedure
prescribed by law, by a final court sentence.
117. According to Article 37 § 2(2), the prosecutor may decide not to
carry out prosecution, if he considers it not to be expedient on the
ground that the person has redeemed the committed act through
suffering, limitation of rights and other privations which he has
suffered in connection with the committed act.
118. On 25 May 2006 Article 37 of the CCP was amended and its
sub-paragraph 2(2) was removed. The amended Article 37 prescribes that
the court, the prosecutor or, upon the prosecutor's approval, the
investigator may terminate the criminal proceedings in cases
prescribed by Articles 72, 73 and 74 of the CC. Article 72 concerns
cases in which the accused actively regretted the offence, Article 73
concerns cases in which the accused was reconciled with the victim and
Article 74 concerns cases in which, due to a change in the situation,
the accused or the act committed by him lost their danger for society.
According to the amended Article 37 of the CCP, in cases envisaged by
Articles 72 and 74 of the CC criminal proceedings may not be
terminated if the accused objects.
119. According to Article 263, an appeal against a decision to
terminate criminal proceedings or to end criminal prosecution may be
lodged with a higher prosecutor within seven days after the receipt of
a copy of the decision. The prosecutor's refusal to grant the appeal
may be contested before a court.
120. According to Article 264, the criminal proceedings shall be
resumed if the decision to terminate criminal proceedings or to end
criminal prosecution is quashed.
C. The Criminal Code (in force from 1 August 2003)
121. According to Article 316 § 3, in force at the material time,
inflicting violence, dangerous for life or limb, on a public official
or his next-of-kin, shall be punishable with imprisonment for a period
of five to ten years.
D. The Code of Administrative Offences (in force from 1 June 1986)
122. Article 182, as in force at the material time, provided that
maliciously disobeying a lawful order or demand of a police officer or
a member of the voluntary police made in the performance of his duties
of preserving public order might lead to the imposition of a fine of
between 50% of and double the fixed minimum wage, or of correctional
labour for between one and two months with the deduction of 20% of
earnings or in cases where, in the circumstances of the case, taking
into account the offender's personality, the application of these
measures would be deemed insufficient, of administrative detention not
exceeding 15 days.
III. RELEVANT INTERNATIONAL AND DOMESTIC DOCUMENTS AND PRESS RELEASES
A. Annual Report: Activities of the Republic of Armenia's Human
Rights Defender (Ombudsman), and on Violations of Human Rights and
Fundamental Freedoms in Armenia During 2004
123. Chapter 3.3 of this Report, which concerned the right to be free
from torture and cruel, inhuman and degrading treatment and
punishment, included an overview of the applicant's particular case.
The relevant extracts provide:
"Violations of this right mainly concerned apprehension of a person by
the police or investigative authority, upon suspicion or facts of
committing a crime or an administrative infringement, the holding of
such persons in custody and their interrogation.
In their complaints, the complainants insist that the police have not
abolished the practices of groundless apprehension, detention, the use
of violence, the extraction of self-incriminating testimony and
evidence, and fabricated prosecution evidence regarding the alleged
crime.
In criminal cases in which the police prepared the file, there are
allegations that the concerned persons had to provide
self-incriminating testimony in conditions of unlawful custody under
the threat and use of violence and intimidation. These persons state
such allegations both during pre-trial proceedings, before the
investigative authority, and in court. Such statements and allegations
are not fully investigated by the authorities; moreover, only
superficial investigations are conducted, but only with the aim of
refuting such allegations.
Cases are not initiated on the basis of complaints addressed to the
Prosecutor General of the country or to regional prosecutors. The
review of such complaints is mainly assigned to the same investigator
who is investigating the case, even when this investigator is the
person whose actions are the subject of such allegations. In rare
cases, when a different unit of prosecution is instructed to
investigate these allegations, there are still no safeguards of an
impartial investigation. During the hearing courts tend to ignore
these allegations.
Grisha Virabyan's criminal case is a rather typical example of this situation.
Virabyan was apprehended and taken to [the Artashat Police Department]
from his village, without any grounds, at around [2.30 p.m. on 23
April 2004]. While in the police station, a police officer insulted,
degraded, cursed at, and hit Virabyan. Virabyan, who did not tolerate
the degrading treatment, in turn hit this police officer. Later, less
grave physical injury was inflicted upon Virabyan while he was in
police custody.
The prosecution initiated a criminal case against Virabyan for
inflicting physical injury upon the police officer. In the criminal
case, all the acts of the police officer were ruled as lawful, and
there was no mention of the fact that Virabyan, who was unlawfully
detained by the police, received his physical injury while in police
custody. Further, no police officer had been punished for inflicting
such injury upon Virabyan.
The Defender's reaction to the case was straightforward: what happened
must be characterized as cruel and degrading treatment against
Virabyan, because the head of an agency is responsible for the health
and security of a person taken or invited to his institution. The
person's behaviour in the institution may not serve as a justification
for injuring him, and the staff have the duty to be tolerant.
In this case, the Defender had a meeting with not only Virabyan, but
also the regional prosecutor and the regional and local police
leadership. The circumstances of the case were discussed, and it was
assumed that an impartial investigation of the case would be ensured.
However, no progress was reported. With this background, the
Prosecutor General was requested to assign another investigative
authority to investigate the case; this request was granted, and [the
Erebuni District Prosecutor's Office] was instructed to investigate
the case. However, there was still no progress, and Virabyan was still
the only one being charged. By that time his indictment was ready to
be sent to court. The Prosecutor General ordered that the charges be
dropped only after the Defender intervened."
124. Chapters 3.4 and 3.5 of this Report, which concerned the right
to freedom of movement and the right to conduct assemblies, contained
the following extracts:
"3.4 Right to Freedom of Movement
The early stages of the Defender's activities coincided with the
demonstrations that were held in the country during March and April of
2004.
The opposition began to hold demonstrations and meetings with
constituents in several regions starting in early February. The
authorities did not interfere with these meetings.
The first time the authorities interfered with the demonstrations was
at the end of March in Gyumri, which involved the arrest of
demonstration participants and the commencement of criminal cases
against them. ...
The Defender found a number of human rights violations in police
actions regarding demonstrations held in the capital city in April.
On the days of the demonstrations, the police reportedly limited the
movement of public transport into the capital city, which violated
citizens' right to freedom of movement within the country. ...
During this period, individuals were frequently apprehended for
administrative infractions and taken to police stations where
administrative detention was ordered against them by the court.
A review of these cases shows that the legislation on administrative
infractions was abused: "foul language" was cited as a basis for
sentencing a person to administrative detention. ...
3.5 Right to Conduct Meetings, Gatherings, Rallies and Protests
The Defender took from the courts a number of cases related to
administrative infractions and conducted a thorough study. The
findings were sent to the Prosecutor General of Armenia and, in light
of the apparent abuses of power in such cases, it was recommended that
the guilty parties be punished. Some of the Defender's findings were
isolated and sent to the Armavir Region Prosecutor for corroboration
and processing. The regional prosecutor later announced that no crime
was identified. The police officers in question were given warnings
for some of the less significant violations."
B. Resolution 1374 (2004) of the Parliamentary Assembly of the
Council of Europe (PACE): Honouring of obligations and commitments by
Armenia, 28 April 2004
125. The relevant extracts from the Resolution provide:
"1. Since the end of March 2004, a series of protests have been
organised by the opposition forces in Armenia, calling for a
'referendum of confidence' in President Kocharian. The possibility of
such a referendum was first mentioned by the Armenian Constitutional
Court following the presidential elections in February and March 2003.
The Constitutional Court later clarified its proposal and the
authorities are calling the opposition demands and protests an attempt
to seize power by force.
2. The demonstrations, although announced, were not authorised by the
authorities, who have threatened the organisers with criminal
prosecution. Following the demonstrations on 5 April, the General
Prosecutor opened criminal investigations against several members of
the opposition and arrested many more, in connection with the
opposition parties' rally. On the same occasion, several journalists
and politicians were beaten up by unknown persons while the police
stood by and took no action.
3. New demonstrations took place on 9, 10 and 12 April in Yerevan. In
the early morning of 13 April, the security forces violently dispersed
some 2,000 to 3,000 protesters who were attempting to march towards
the presidential palace, calling for President Kocharian's
resignation. The police reportedly used truncheons, water cannons and
tears gas, causing dozens of injuries. A number of protesters were
arrested, including members of parliament, some of whom are members of
the Assembly, and some were allegedly mistreated by the police while
in custody. The security forces also assaulted and arrested several
journalists who were covering the opposition rally.
4. Tensions in Armenia continue to run high; new protests are planned
for the week of 26 April. For the time-being there seems to be little
room for dialogue between the authorities and the opposition, even if
some offers have been made and some members of the ruling majority -
for example, the Speaker of the Armenian Parliament - have begun
criticising the heavy-handed crackdown on demonstrations.
5. With regard to the conduct of the authorities, the Parliamentary
Assembly ... is particularly concerned with the fact that:
i. arrests, including those carried out on the basis of the
Administrative Code, ignored the demand to immediately end the
practice of administrative detention and to change the Administrative
Code used as a legal basis for this practice; ...
9. The Assembly calls upon the Armenian authorities to: ...
iii. immediately investigate - in a transparent and credible manner -
the incident and human rights abuses reported during the recent
events...
iv. immediately release the persons detained for their participation
in the demonstrations and immediately end the practice of
administrative detention and amend the Administrative Code to this
effect..."
C. Report by the PACE Committee on the Honouring of Obligations and
Commitments by Member States of the Council of Europe, Doc. 10163, 27
April 2004
126. The Report contains an explanatory memorandum to the draft of
the PACE Resolution 1374. The relevant extracts from the explanatory
memorandum provide:
"Since the end of March, opposition forces in Armenia decided to
jointly organise mass protests to force a 'referendum of confidence'
in President Kocharian. The possibility of such a referendum was first
mentioned by the Armenian Constitutional Court following the
presidential elections in February and March last year, which were
strongly criticised by the international community. ...
The Armenian authorities reacted to the opposition call for protests
with a campaign of political intimidation and administrative and
judicial harassment. Once the protests started, the reaction was even
more ruthless. Demonstrations were violently dispersed, journalists
were beaten up, a large number of opposition supporters were arrested
and premises of the opposition parties were raided by the police.
...
In January 2004 the Assembly adopted its second monitoring report
since the accession of Armenia to the Council of Europe in January
2001. Resolution 1361, adopted on this occasion, takes note of some
encouraging developments that took place in the last two years...
However, the Resolution ... sharply criticised the [presidential and
parliamentary] elections carried out in 2003. Moreover, it listed a
number of serious concerns with regard to the democratic and human
rights conduct of the Armenian authorities and expressed its
expectations that these issues will be speedily dealt with in
accordance with Council of Europe standards and principles.
Regrettably, the reaction of the Armenian authorities in the events of
March and April [2004] demonstrate that the Assembly's request for
further progress was ignored and that, with regard to some of the
Assembly's key concerns, the situation has even worsened.
Administrative detention
With regard to the scandalous and continued use of administrative
detention, Resolution 1361 urged the authorities to amend the
Administrative Code to put an end to this practice which is
incompatible with the organisation's standards. The Assembly also
asked the authorities to submit this new draft to Council of Europe
expertise by April 2004.
Instead of immediately ending this practice and preparing the
necessary legislative drafts to this effect, the Armenian authorities
resorted to a wide use of administrative detentions during the recent
events. While it is difficult to verify the exact number of persons
who were arrested and the legal basis used for their detention, most
reports indicate that their number was between two and three hundred.
The Assembly repeats its demand for an immediate end to the practice
of administrative detention. The Administrative Code must be revised
without any further delay. ...
... Regrettably, according to Human Rights Watch, several persons
arrested during the recent events were subjected to abuse during their
detention by the police. These allegations must be investigated, in a
speedy, transparent and credible manner, and if their veracity is
confirmed, persons responsible should be punished in accordance with
the law."
D. Human Rights Watch Briefing Paper, 4 May 2004, Cycle of
Repression: Human Rights Violations in Armenia
127. The relevant extracts of the Briefing Paper provide:
"Summary
At the end of March 2004, Armenia's political opposition united in
mass peaceful protests to force a "referendum of confidence" in
President Robert Kocharian and to call for his resignation. In
response, the Armenian government embarked on a campaign to break the
popular support for the political opposition with mass arrests,
violent dispersal of demonstrations, raids on political party
headquarters, repression of journalists, and restrictions on travel to
prevent people from participating in demonstrations. Hundreds of
people were detained, many for up to fifteen days; some were tortured
or ill-treated in custody...
The origin of the opposition's demands was the government's failure to
date to redress the deeply flawed 2003 presidential election, which
Kocharian, the incumbent, won. Disturbingly, the government is now
repeating, with increasing violence, a pattern of repression that
surrounded last year's election. At that time, the international
community warned the Armenian government that its intimidation of the
opposition through the use of arrests and administrative detentions
must stop. However, in March and April 2004, the Armenian government
not only began a fresh campaign of detentions, but added to the
intimidation with security force violence. ...
Human Rights Watch calls on the Armenian authorities to cease
intimidating the political opposition, to stop using excessive force
against demonstrators and torture and ill treatment in custody, and to
hold accountable those responsible for these abuses. We call on the
international community to assist the government of Armenia in
urgently addressing this situation and to ensure that further acts of
repression are not repeated. ...
Prelude to April 12-13
At the end of March 2004, two of the main opposition groups, the
Artarutiun (Justice) Alliance, which consists of nine parties -
including the Republic Party, the People's Party, and the National
Unity Party - joined forces and announced its campaign of action.
Following this move, the opposition intensified its efforts, making
further announcements and mobilising in Armenia's provinces. The
authorities responded by restricting freedom of movement, carrying out
detentions, and threatening criminal charges against opposition
campaign organisers. ...
>>From [5 April] the number of rallies in Yerevan steadily increased, as
did the number of opposition supporters detained or otherwise
intimidated. The Republic Party estimated that from the end of March
until [12 April], police had detained, searched, or harassed more than
300 of its supporters. ...
Restrictions on Travel to Yerevan
>>From the end of March until mid-April 2004, police restricted the
movement of opposition supporters trying to travel to Yerevan to
attend rallies by setting up road blocks, stopping cars, questioning
the passengers, and denying permission to travel further to those they
believed were opposition supporters. ...
On the morning of [5 April], between [10.30 a.m. and 12.00 noon],
police stopped nine members of the National Unity Party in three cars
at a check point as they were leaving Vanadzor, Armenia's third
largest city, on the main road to Yerevan. They were intending to
participate in a rally at [3.00 p.m.] in Yerevan. Police held the nine
men at the Vanadzor police station, reportedly telling them, 'we have
saved you from being beaten in Yerevan'. Police took three of the men
to the local courts, which sentenced them to five days of
administrative detention for not following police orders. ...
Detentions: Due Process Violations and Torture
It is difficult to estimate the total number of opposition supporters
detained since the beginning of April 2004. By April 17, the Justice
Alliance had documented the detentions of 327 opposition supporters,
and the Republic Party estimated that about 300 of its members had
been either detained, harassed, or searched...
[Some opposition supporters] were detained and held for from several
hours to fifteen days. Many were held and then released with no
documentation or registration of the arrest ever having occurred.
Others were taken to court, and given penalties of up to fifteen days
in custody for petty offences under the Administrative Code. ...
Torture and ill-treatment in police custody
Human Rights Watch documented several cases of torture and
ill-treatment in police custody during the government crackdown
against the opposition in April 2004. Opposition party officials claim
that during this period police regularly beat their supporters in
police custody: "There were lots of cases of people being beaten at
the police stations after detention, especially those who came from
the regions" [said the press secretary of the People's Party]..."
E. Europe and Central Asia: Summary of Amnesty International's
Concerns in the Region, January-June 2004
128. The Report contains a chapter devoted to Armenia whose relevant
extracts provide:
"Opposition demonstrations in April [2004] were part of a two-month
campaign of mass public protests launched by opposition political
parties demanding the resignation of President Robert Kocharian. ...
During their campaign hundreds of opposition supporters, including
prominent opposition party members, were reportedly arbitrarily
detained throughout the country and dozens were sentenced to 15 days'
administrative detention after trials that were said to have fallen
far short of international fair trial standards..."
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
129. The applicant complained that he had been subjected to torture
at the Artashat Police Department on 23 April 2004 and that the
authorities had failed to carry out an effective instigation into his
allegations of ill-treatment. He invoked Articles 3, 8 and 13 of the
Convention. The Court considers that the applicant's complaints fall
to be examined solely under Article 3 of the Convention, which reads
as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
A. Admissibility
1. Six months
(a) The parties' submissions
(i) The Government
130. The Government claimed that the applicant had failed to lodge
his complaints under Article 3 of the Convention within six months
from the date of the final decision within the meaning of Article 35 §
1 of the Convention. More precisely, the applicant was entitled under
Article 290 of the CCP (see paragraph 114 above) to contest the
decisions of the investigating authority before the domestic courts.
The applicant successfully exercised this right by instituting two
sets of proceedings: the first one contesting the investigator's
decision of 7 June 2004 rejecting his allegations of ill-treatment and
the second one contesting the prosecutor's decision of 30 August 2004
terminating the criminal proceedings against him. The six months
period must be calculated from the date of the final decision in the
first set of proceedings, which was taken by the Court of Cassation on
24 September 2004. The application, which had been lodged with the
Court only on 10 November 2005, was therefore out of time. The
Government argued that the applicant's submission that the six months
period must be calculated from the date of the final decision in the
second set of proceedings, namely 13 May 2005, was ill-founded, since
those proceedings concerned a different issue, namely the termination
of the criminal proceedings, and none of the court decisions taken in
those proceedings concerned the applicant's request to institute
criminal proceedings against the alleged perpetrators of ill-treatment
or contained any ruling on the applicant's allegations of
ill-treatment.
(ii) The applicant
131. The applicant contested the Government's claim. He admitted that
he had instituted two sets of proceedings resulting in two final
decisions being taken by the Court of Cassation on 24 September 2004
and 13 May 2005 respectively. However, his complaint lodged with the
Erebuni and Nubarashen District Prosecutor on 2 June 2004 and
consequently the first set of proceedings instituted by him against
the prosecutor's decision taken on that complaint, which terminated
with the Court of Cassation's decision of 24 September 2004, were not
an effective remedy. More precisely, the prosecutor dismissed his
complaint just five days later, namely on 7 June 2004, without
carrying out any official and independent investigation into his
allegations of ill-treatment and basing his findings solely on the
results of the preliminary investigation carried out in the context of
the criminal case against him. His appeals lodged with the courts
against the decision of 7 June 2004 were also ineffective because the
courts refused to examine them in substance on the ground that the
impugned decision was a procedural decision and they lacked
jurisdiction to do so. In such circumstances, both the prosecutor's
decision of 7 June 2004 and the Court of Cassation's decision of 24
September 2004 could not be considered as a "final decision" within
the meaning of Article 35 § 1.
132. On the other hand, the trial against him was capable of
providing redress for the Article 3 violations that he had suffered.
He had therefore pursued this remedy by lodging an appeal against the
prosecutor's decision of 30 August 2004 terminating the criminal
proceedings against him. Since he had never denied that he had struck
the police officer with a mobile phone charger, the only issue at
trial would have been whether or not he had acted in self-defence, as
he had always maintained. Had he succeeded in this appeal, he would
have been afforded an effective remedy, such as an official
recognition of the fact that he had struck the police officer in
self-defence which would necessarily have implied a finding that he
had been ill-treated in detention. Since the final decision on his
appeal against the prosecutor's decision of 30 August 2004 was taken
by the Court of Cassation on 13 May 2005, he had complied with the six
months' rule by lodging his application on 10 November 2005.
(b) The Court's assessment
133. The Court reiterates that, pursuant to Article 35 § 1 of the
Convention, it may only deal with a matter where it has been
introduced within six months from the date of the final decision in
the process of exhaustion of domestic remedies (see Danov v. Bulgaria,
no. 56796/00, § 56, 26 October 2006).
134. The purpose of the six months' rule is to promote security of
law, to ensure that cases raising issues under the Convention are
dealt with within a reasonable time and to protect the authorities and
other persons concerned from being under uncertainty for a prolonged
period of time (see İcöz v. Turkey (dec.), no. 54919/00, 9 January
2003, and P.M. v. the United Kingdom (dec.), no. 6638/03, 24 August
2004).
135. The only remedies that must be exhausted are those which are
available and sufficient to afford redress in respect of the breaches
alleged, but not such which are inadequate or ineffective (see Aksoy
v. Turkey, 18 December 1996, § 52, Reports of Judgments and Decisions
1996-VI). Furthermore, in a case where an applicant avails himself of
a domestic remedy and it becomes clear, at a later stage, that this
remedy was not effective, the six-month period provided for in Article
35 § 1 of the Convention should in principle be calculated from the
time when the applicant became aware, or should have become aware, of
the ineffectiveness of the remedy (see, among other authorities, Bulut
and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002; İcöz, cited
above; and Chitayev and Chitayev v. Russia, no. 59334/00, § 117, 18
January 2007).
136. The Court notes that Armenian law provides a remedy to the
victims of alleged ill-treatment. In particular, Article 176 of the
CCP enables such victims to inform the relevant authorities about a
crime committed, including any acts of ill-treatment. Pursuant to
Article 177 of the CCP such information may be provided orally or in
writing, while Article 181 of the CCP requires in each case when such
information is provided that a reasoned decision be taken whether to
institute or to reject the institution of criminal proceedings. When
there are sufficient grounds to institute criminal proceedings,
Articles 175 and 182 of the CCP oblige the relevant authorities to do
so. If the authorities decide to reject the institution of criminal
proceedings, such decision can be contested before the courts under
Article 185 of the CCP and, should the courts quash such decision, the
prosecutor is obliged to institute criminal proceedings.
137. The applicant availed himself of this remedy by informing the
authorities of the alleged ill-treatment inflicted on him by the
police officers in his statement of 25 April 2004 which was made only
two days after the alleged ill-treatment (see paragraph 36 above).
Furthermore, this was followed by a number of other letters addressed
to the authorities seeking to have criminal proceedings instituted
against the perpetrators of his alleged ill-treatment (see paragraphs
45, 53 and 57) and culminated in his complaint lodged with the
authorities on 2 June 2004, in which the applicant specifically
invoked the relevant Articles of the CCP, including its Articles 181
and 182 (see paragraph 61 above).
138. Nevertheless, no formal decision was taken by the authorities,
whether to institute or to reject the institution of criminal
proceedings as required by Article 181 of the CCP, which could have
been contested later by the applicant before the courts under Article
185 of the CCP. Instead, for unexplained reasons, the applicant's
complaint of 2 June 2004 was treated by the investigator as a motion
filed in the context of the criminal proceedings against him and a
decision was taken on 7 June 2004 to dismiss that motion, thereby
rejecting in substance his allegations of ill-treatment (see paragraph
61 and 62 above). The applicant attempted to contest that decision
before the courts but his appeals were not examined on the merits on
the ground that the impugned decision was a procedural one and the
courts lacked jurisdiction to review it (see paragraph 74 above).
139. In such circumstances, the remedy available to the applicant
under the above-mentioned Articles of the CCP turned out to be
ineffective, while the court proceedings instituted by him against the
investigator's decision of 7 June 2004 were incapable of providing
redress. Thus, the final decision taken in those proceedings by the
Court of Cassation on 24 September 2004 cannot be taken into account
for the purpose of calculation of the six-months period, as claimed by
the Government.
140. The Court further notes that the applicant argued that he had
also another remedy available to him, that is raising his allegations
of ill-treatment in the course of the trial against him. The
Government disputed that argument, claiming that the applicant's
appeals lodged with the courts against the prosecutor's decision to
discontinue the trial were not effective remedies to be exhausted. In
this respect, the Court observes that the rule of exhaustion of
domestic remedies must be applied with some degree of flexibility and
without excessive formalism. The Court has already held on a number of
occasions that the rule of exhaustion is neither absolute not capable
of being applied automatically; it is essential to have regard to the
circumstances of the individual case (see Akulinin and Babich v.
Russia, no. 5742/02, § 30, 2 October 2008, and Vladimir Fedorov v.
Russia, no. 19223/04, § 40, 30 July 2009).
141. In the present case, as already indicated above, the applicant's
complaint seeking to have criminal proceedings instituted against the
perpetrators of the alleged ill-treatment was examined in substance in
the context of the criminal proceedings against him rather than as a
separate issue and resulted in the investigator's decision of 7 June
2004 taken in the context of those proceedings. Even the Court of
Cassation, in refusing to examine the merits of the applicant's appeal
against that decision, stated that there was no need to institute a
separate set of proceedings because the applicant's allegations of
ill-treatment were closely linked to the subject matter of the
criminal case against him and were to be examined in its context (see
paragraph 84 above). Furthermore, as already indicated above, such
treatment of the applicant's complaint prevented him from putting the
matter before the courts through the appeal procedure envisaged for
cases in which a decision to reject the institution of criminal
proceedings is taken pursuant to Article 181 of the CCP. Thus, the
Court considers that, in the particular circumstances of the case,
having been deprived of any other form of judicial review, the
applicant cannot be blamed for trying to avail himself of judicial
protection in respect of his allegations of ill-treatment by raising
them in the course of the trial against him (see, mutatis mutandis,
Akulinin and Babich, cited above, §§ 25-34, and Vladimir Fedorov,
cited above, §§ 41-50).
142. Furthermore, the Court is of the opinion that such avenue of
exhaustion pursued by the applicant was not, in principle, a prima
facie futile attempt incapable of providing redress. In particular,
since the trial against the applicant was discontinued by a
prosecutor's decision, his criminal case was put before the courts for
the first time following his appeal against that decision. In his
appeal to the courts the applicant complained inter alia about his
alleged ill-treatment and the inadequacy of the investigation and
requested that criminal proceedings be instituted (see paragraph 86
above). Even if the courts were primarily called upon to determine the
question of whether the termination of the criminal proceedings
against the applicant on the grounds provided in the prosecutor's
decision was lawful, nevertheless, in reviewing that decision, they
were required under Article 17 § 4 of the CCP to examine any
complaints alleging a violation of lawfulness in the course of the
proceedings, including the applicant's allegations of ill-treatment.
Furthermore, even if the courts were not vested with power to
institute criminal proceedings, they were entitled to apply with such
a request to a prosecutor under Articles 41 § 2(4) and 184 § 1 of the
CCP. Lastly, the courts were entitled under Article 264 of the CCP to
quash the prosecutor's decision discontinuing the trial and to order a
further investigation into the circumstances of the charge against the
applicant which were closely linked to his allegations of
ill-treatment.
143. The Court further observes that the applicant's appeal was
examined through public and adversarial proceedings, to which both the
applicant and the investigating authority were parties. It is true
that both the District Court and the Court of Appeal failed to address
any of the allegations raised in the applicant's appeal (see
paragraphs 87 and 89 above). However, this became the reason why the
Court of Cassation decided to quash the decision of the Court of
Appeal and to remit the case for a fresh examination. In doing so, the
Court of Cassation took cognisance of the applicant's allegations,
including his allegations of ill-treatment and inadequate
investigation, and ordered, with reference to Article 17 § 4 of the
CCP, that they be duly addressed in a reasoned decision (see
paragraphs 91 and 92 above). Furthermore, during the subsequent fresh
examination of the case, both the Court of Appeal and the Court of
Cassation examined and dismissed the applicant's claims of
self-defence which were closely linked to and could not be separated
from his allegations of ill-treatment (see paragraphs 93 and 95
above). Moreover, both courts explicitly addressed and rejected the
applicant's allegations of ineffective investigation (ibid.).
144. In the light of the foregoing, the Court considers that, in the
particular circumstances of the case, the applicant's appeal lodged
with the courts against the prosecutor's decision of 30 August 2004
was an effective remedy capable of providing redress in respect of his
allegations of ill-treatment. Accordingly, the six months period
provided for in Article 35 § 1 of the Convention should be considered
to have started running from the date of the final decision in those
proceedings, namely 13 May 2005. The applicant has therefore complied
with the six-month rule by introducing his application on 10 November
2005. Consequently, the Government's objection must be dismissed.
2. Conclusion
145. The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The alleged ill-treatment
(a) The parties' submissions
(i) The Government
146. The Government, relying on the findings made by the domestic
authorities in the applicant's criminal case, argued that the
applicant sustained injuries to his testicle as a result of the
incident provoked by him. The applicant was the first to assault a
police officer by hitting him with a mobile phone charger and was
prevented from continuing his assault by other police officers, as a
result of which he - together with the injured police officer - fell
on a chair and then on the floor, sustaining the injuries in question.
The Government claimed that the materials of the applicant's criminal
case contained sufficient evidence supporting this account of events,
including the forensic medical expert reports which stated that the
applicant's injuries could have been caused as a result of the said
incident. There has therefore been no violation of Article 3 in
respect of the treatment received by the applicant in custody.
(ii) The applicant
147. The applicant submitted that there was evidence beyond
reasonable doubt confirming that he had sustained serious injuries
while in police custody. The Government, however, had failed to
provide a satisfactory and convincing explanation for these injuries.
His allegations of ill-treatment made at the domestic level had been
prompt, consistent and detailed, and he had pursued various avenues of
complaint, including after the criminal case against him had been
dropped. In contrast, the testimonies of the police officers provided
during the investigation contained numerous inconsistencies. The
circumstances of his police custody, namely his being interviewed
without a lawyer and the interview not being recorded, reveal a
disregard for safeguards against abuse. Furthermore, according to the
official account of events, he had been examined by a doctor for
alcohol intoxication following the alleged incident. However, no
injuries were recorded during that examination, which suggested that
he must have sustained them at a later time. Lastly, the CPT reports
concluded that persons deprived of their liberty in Armenia faced a
significant risk of being ill-treated.
(b) The Court's assessment
(i) General principles
148. As the Court has stated on many occasions, Article 3 enshrines
one of the most fundamental values of democratic societies. Even in
the most difficult circumstances, such as the fight against terrorism
and organised crime, the Convention prohibits in absolute terms
torture and inhuman or degrading treatment or punishment, irrespective
of the victim's conduct (see Labita v. Italy [GC], no. 26772/95, §
119, ECHR 2000â~@~QIV, and Chahal v. the United Kingdom, 15 November 1996,
§ 79, Reports 1996â~@~QV). Article 3 makes no provision for exceptions and
no derogation from it is permissible under Article 15 § 2 of the
Convention even in the event of a public emergency threatening the
life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95,
ECHR 1999-V, and Assenov and Others v. Bulgaria, 28 October 1998, §
93, Reports 1998â~@~QVIII).
149. The Court reiterates that ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3. The
assessment of this minimum is relative: it depends on all the
circumstances of the case, such as the duration of the treatment, its
physical and mental effects and, in some cases, the sex, age and state
of health of the victim (see Labita, cited above, § 120, and Assenov
and Others, cited above, § 94). In respect of a person deprived of his
liberty, any recourse to physical force which has not been made
strictly necessary by his own conduct diminishes human dignity and is
in principle an infringement of the right set forth in Article 3 of
the Convention (see Ribitsch v. Austria, 4 December 1995, § 38, Series
A no. 336; Selmouni, cited above, § 99, and Sheydayev v. Russia, no.
65859/01, § 59, 7 December 2006).
150. In assessing the evidence on which to base the decision as to
whether there has been a violation of Article 3, the Court has
generally applied the standard of proof "beyond reasonable doubt".
However, such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted
presumptions of fact (see Ireland v. the United Kingdom, 18 January
1978, § 161, Series A no. 25; Labita, cited above, § 121; and Jalloh
v. Germany [GC], no. 54810/00, § 67, ECHR 2006â~@~QIX).
151. Where the events in issue lie wholly, or in large part, within
the exclusive knowledge of the authorities, as in the case of persons
within their control in custody, strong presumptions of fact will
arise in respect of injuries occurring during such detention. Indeed,
the burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Salman v.
Turkey [GC], no. 21986/93, § 100, ECHR 2000â~@~QVII, and Varnava and
Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90,
16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 183, ECHR
2009â~@~Q...). Similarly, where an individual is taken into police custody
in good health and is found to be injured on release, it is incumbent
on the State to provide a plausible explanation of how those injuries
were caused (see, among other authorities, Aksoy v. Turkey, 18
December 1996, § 61, Reports 1996-VI; Selmouni, cited above, § 87; and
Gäfgen v. Germany [GC], no. 22978/05, § 92, ECHR 2010â~@~Q...). Otherwise,
torture or ill-treatment may be presumed in favour of the claimant and
an issue may arise under Article 3 of the Convention (see Mikheyev v.
Russia, no. 77617/01, § 127, 26 January 2006).
(ii) Application of the above principles in the present case
152. The Court observes at the outset that it is undisputed that the
applicant sustained injuries while in police custody, namely bruises
to his chest and ribs and a lacerated testicle. The parties, however,
disagreed as to the circumstances in which those injuries had been
sustained.
153. In this respect, the Court notes that the Government did no more
than refer to the findings of the official domestic investigation in
support of their position. The Court, however, is mindful of its
findings below that the investigation in question was ineffective,
fundamentally flawed and incapable of producing credible findings (see
paragraph 179 below). It notes, as discussed in greater detail below,
that the explanation given for the applicant's injuries in the course
of that investigation, namely that they had been sustained as a result
of a fall, was based entirely on the statements of the police
officers, including the alleged perpetrators, who could not have been
impartial witnesses (see, in particular, paragraph 165 below). It
lacked detail and was accepted by the investigating authority hastily
and without any justification on the very first day of the
investigation and never seriously questioned. The official forensic
medical reports, which did not rule out the possibility of the
applicant's injuries having been sustained in the above-mentioned
circumstances, were seriously deficient and could not be regarded as
reliable evidence (see, in particular, paragraphs 170-172 below).
154. The Court, based on all the materials in its possession, finds
the explanation given for the applicant's injuries both by the
Government and the domestic authorities to be highly dubious and
implausible. It notes, at the same time, that at all stages of the
investigation the applicant presented a consistent and detailed
description of who had ill-treated him and how. His allegations were
compatible with the description of his injuries contained in various
medical records (see paragraphs 31 and 66 above).
155. The Court cannot, in view of the foregoing, consider the
Government's explanation of the applicant's injuries to be
satisfactory and convincing and consequently concludes that his
injuries were attributable to a form of ill-treatment for which the
authorities were responsible.
156. In order to determine whether a particular form of ill-treatment
should be qualified as torture, the Court must have regard to the
distinction, embodied in Article 3, between this notion and that of
inhuman or degrading treatment. As the Court has previously found, it
appears that the intention was that the Convention should, by means of
this distinction, attach a special stigma to deliberate inhuman
treatment causing very serious and cruel suffering (see Ireland v. the
United Kingdom, cited above, § 167, and Selmouni, cited above, § 96).
In addition to the severity of the treatment, there is a purposive
element, as recognised in the United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
which came into force on 26 June 1987, which defines torture in terms
of the intentional infliction of severe pain or suffering with the
aim, inter alia, of obtaining information, inflicting punishment or
intimidating (see Salman, cited above, § 114).
157. The Court observes that the applicant was subjected to a
particularly cruel form of ill-treatment which must have caused him
severe physical and mental pain and suffering. In particular, his
testicles were repeatedly kicked and punched and hit with metal
objects. These injuries had lasting consequences for his health, as
his left testicle was so badly smashed that it had to be removed. He
was further beaten up with his hands handcuffed behind his back and
received blows to his chest and ribs. Strong inferences can be drawn
from the circumstances of the case that the ill-treatment was
inflicted on the applicant intentionally in order either to punish or
to intimidate him or both. Having regard to the nature, degree and
purpose of the ill-treatment, the Court finds that it may be
characterised as acts of torture (see Selmouni, cited above, §§
96-105, and Salman, cited above, § 115).
158. The Court concludes that there has been a substantive violation
of Article 3 of the Convention.
2. The alleged inadequacy of the investigation
(a) The parties' submissions
(i) The Government
159. The Government submitted that the circumstances in which the
applicant had sustained an injury had been examined within the
framework of the criminal case against him. His allegations of
ill-treatment had received a prompt and due response. The
investigation into his criminal case had been carried out by
authorities, the Ararat Regional Prosecutor's Office and the Yerevan
City Prosecutor's Office, which had no hierarchical or institutional
connection with the Artashat Police Department and were therefore
independent and impartial bodies. The authorities had taken all
possible measures to identify those responsible, including numerous
interrogations, confrontations and medical examinations. Moreover, an
additional medical examination had been ordered specifically upon the
applicant's own motion. Furthermore, all the motions and requests
filed by the applicant had been treated with necessary promptness. The
investigation had been open, which was supported by the fact that the
applicant had had access to all the necessary materials in his case.
In sum, the authorities had complied with their positive obligation
under Article 3 to carry out an effective investigation.
(ii) The applicant
160. The applicant submitted that no effective official investigation
capable of leading to the establishment of facts and the
identification and punishment of those responsible had been carried
out into his allegations of ill-treatment. Firstly, there had been no
independent and impartial inquiry. The authorities entrusted with the
investigation did not enjoy sufficient operational autonomy from the
alleged perpetrators and the agency where they served. Furthermore,
the preliminary investigation had been carried out by the same
investigator who had instituted criminal proceedings and brought
charges against him and collected evidence in support of that charge,
which was based entirely on the statements made by the alleged
perpetrators. The investigator, when interviewing the police officers,
had not asked any questions, nor had he considered any of the
inconsistencies in the police evidence or taken evidence from other
witness, including his State-appointed lawyer. The initial forensic
medical examination had been flawed, incomplete and not prompt, while
the second one had been conducted with a significant delay and was
incapable of producing credible findings. The transfer of the case
from one authority to another had not led to an independent
investigation either, since the authority which took over the case had
relied solely on the findings of the preliminary investigation. His
allegations of ill-treatment had been rejected without any
justification, while the alleged perpetrators had never been suspended
from duty.
(b) The Court's assessment
(i) General principles
161. The Court reiterates that where an individual raises an arguable
claim that he has been seriously ill-treated by the police or other
such agents of the State in breach of Article 3, that provision, read
in conjunction with the State's general duty under Article 1 of the
Convention to "secure to everyone within their jurisdiction the rights
and freedoms defined in ... [the] Convention", requires by implication
that there should be an effective official investigation (see Assenov
and Others, cited above, § 102, and Labita, cited above, § 131).
162. An obligation to investigate "is not an obligation of result,
but of means": not every investigation should necessarily be
successful or come to a conclusion which coincides with the claimant's
account of events; however, it should in principle be capable of
leading to the establishment of the facts of the case and, if the
allegations prove to be true, to the identification and, if justified,
punishment of those responsible. Thus, the investigation of serious
allegations of ill-treatment must be thorough. That means that the
authorities must always make a serious attempt to find out what
happened and should not rely on hasty or ill-founded conclusions to
close their investigation or as the basis of their decisions. They
must take all reasonable steps available to them to secure the
evidence concerning the incident including, inter alia, eyewitness
testimony, forensic evidence, and so on. Any deficiency in the
investigation which undermines its ability to establish the cause of
injuries or the identity of the persons responsible will risk falling
foul of this standard (see Mikheyev, cited above, § 108; Akulinin and
Babich, cited above, § 46; and Vladimir Fedorov, cited above, § 67).
163. Furthermore, the investigation must be expedient. In cases under
Articles 2 and 3 of the Convention, where the effectiveness of the
official investigation was at issue, the Court has often assessed
whether the authorities reacted promptly to the complaints at the
relevant time (see Labita, cited above, § 133-135). Consideration was
given to the starting of investigations, delays in taking statements
(see TimurtaÅ~_ v. Turkey, no. 23531/94, § 89, ECHR 2000â~@~QVI, and Tekin
v. Turkey, 9 June 1998, § 67, Reports 1998â~@~QIV), and the length of time
taken during the initial investigation (see Indelicato v. Italy, no.
31143/96, § 37, 18 October 2001).
164. Finally, the Court reiterates that for an investigation into
alleged ill-treatment by State agents to be effective, it should be
independent. The independence of the investigation implies not only
the absence of a hierarchical or institutional connection, but also
independence in practical terms (see Ogur v. Turkey [GC], no.
21594/93, § 91, ECHR 1999â~@~QIII; Mehmet Emin Yuksel v. Turkey, no.
40154/98, § 37, 20 July 2004; and also Ergi v. Turkey, 28 July 1998, §
83, Reports 1998â~@~QIV, where the public prosecutor investigating the
death of a girl during an alleged clash between security forces and
the PKK showed a lack of independence through his heavy reliance on
the information provided by the gendarmes implicated in the incident).
(ii) Application of the above principles in the present case
165. The Court notes that, in the present case, criminal proceedings
were instituted on the very day of the applicant's alleged
ill-treatment and an investigation was launched (see paragraph 21
above). However, it observes that the circumstances of the criminal
case were based solely on the version of events provided by the police
officers, including the alleged perpetrators and their colleagues who
were all in some way involved in the events of 23 April 2004, without
even hearing the applicant or any other witnesses. Moreover, this
version of events was considered an established fact from the very
outset (see, for example, the investigator's decision ordering a
forensic medical examination in paragraph 34 above) and the entire
investigation was conducted on that premise. It is notable that the
police version was so readily accepted by the investigator at a time
when he did not yet even have at his disposal the forensic medical
expert's conclusions as to the nature and possible causes of the
applicant's injuries. As a result, the applicant was the only accused
in those proceedings, while the police officers in question were never
even regarded as possible suspects and, moreover, participated either
as witnesses or, in the case of police officer H.M., a victim.
166. The Court has serious doubts as to whether the investigation
undertaken by the authorities, as described above, could be regarded
as an inquiry whose purpose was to investigate the applicant's
allegations of ill-treatment and to identify and punish those
responsible, as argued by the Government. It appears that its sole
purpose was to prosecute the applicant and to collect evidence in
support of that prosecution.
167. At no point did the investigating authorities provide any
explanation as to why they considered the testimonies of the police
officers credible, and that of the applicant unreliable. The
applicant's numerous requests that his allegations of ill-treatment be
thoroughly investigated and the perpetrators be prosecuted and
punished were either ignored or received a perfunctory response (see,
for example, paragraph 54 above). It therefore appears that the
investigating authorities, without any justification, gave preference
to the evidence provided by the police officers and, in doing so, can
be said to have lacked the requisite objectivity and independence.
168. The Court further observes that about a month after the
investigation was launched the applicant's criminal case was
transferred from the Regional Prosecutor's Office to the Yerevan City
Prosecutor's Office (see paragraph 58 above). Both the domestic
authorities and the Government failed to explain the reasons for this
transfer. In any event, it is notable that the transfer of the
applicant's criminal case, whatever its reason and intended aim, did
not produce significantly different results, since the Yerevan City
Prosecutor's Office was quick to reject the applicant's allegations of
ill-treatment in a perfunctory manner (see paragraph 62 above) and
continued to carry out the same line of prosecution on the basis of
the same version of events.
169. As regards the specific measures taken in the course of the
above investigation, the Court cannot overlook a number of significant
omissions and discrepancies capable of further undermining its
reliability and effectiveness.
170. The Court would point out, in particular, the manner in which
the applicant's forensic medical examination was conducted. The
investigator's decision ordering such examination was taken on the day
following the alleged ill-treatment, namely 24 April 2004 (see
paragraph 34 above). The applicant alleged that forensic expert G.
started his examination only on 5 May 2004. It is not entirely clear
from the expert's report whether this was the case, but it can be
safely assumed that the expert did not commence the examination at
least three days after the investigator's decision (see paragraphs 40
and 52 above). It is to be noted that the resulting expert report
contained no mention of the injuries on the applicant's chest and ribs
(see paragraph 52 above), which only a few days earlier had been
recorded by the doctors of Artashat Hospital (see paragraphs 66 and 71
above). It cannot therefore be ruled out that this omission on the
part of the forensic expert was caused by the delay in question. Nor
can it be ruled out that it was made as a result of a cursory
examination or for possible lack of independence. Whichever it may be,
it prompts the Court to doubt the credibility of the forensic expert's
findings. Moreover, had the forensic expert not failed to record these
injuries, his conclusions as to the possible causes for the
applicant's injuries might have been radically different.
171. The Court further notes a number of other significant
deficiencies in the report produced by forensic expert G. Firstly,
similarly to the overall course of the investigation, it is doubtful
that a report which relied on the hastily accepted police version of
events could be regarded as a measure truly intended and capable of
providing an independent and objective explanation for the possible
causes of the applicant's injuries (see paragraph 52 above). Secondly,
the report failed to give any answer to one of the key questions posed
by the investigator, namely whether the injury to the applicant's
testicle was caused by one or several blows, which, given the
circumstances of the case and the conflicting versions of events, was
crucial for the investigation. Thirdly, the expert's initial
conclusion contained a phrase - "The injury to the left testicle has a
traumatic origin and could have been caused by any type of blow"
(emphasis added, see paragraph 52 above) which could be seen as
suggesting a broad spectrum of possible causes for the applicant's
injuries but which, for unexplained reasons, was deleted from the
updated version of the same conclusion (see paragraph 56 above). This
once again casts doubt on both the independence and thoroughness of
the forensic expert and the credibility of his conclusions.
172. The Court observes that the investigating authorities failed to
address any of the shortcomings of the above-mentioned forensic
medical examination. It is true that, after the applicant contested
the findings contained in the expert's report of 5 May 2004, the
veracity of those findings was brought into question and a new
forensic medical examination was ordered (see paragraph 72 above).
However, this happened after a significant lapse of time, which was
mainly due to the fact that a copy of that report was presented to the
applicant only about one and a half months after it had been produced
(see paragraphs 68 above). As a result, the new forensic medical
examination was not initiated until almost three months after the
incident. The Court is convinced that such a delayed examination was
not capable of providing an accurate record of the applicant's
injuries and consequently leading to credible findings. It therefore
seriously doubts that this measure was able to rectify the
shortcomings of the first forensic medical examination. This is also
confirmed by the fact that the report produced as a result of the new
examination contained findings practically identical to those in the
first report (see paragraph 77 above).
173. The Court is further struck by the fact that the investigating
authorities failed to make any assessment of other medical evidence in
the case, namely the records of Artashat Hospital which, as already
indicated above, revealed injuries to the applicant's chest and ribs
in addition to those to his testicles (see paragraph 66 above), which
were missing from the forensic expert's findings. It appears that no
account was taken of this obviously important evidence at any stage of
the investigation. Despite the seriousness of the applicant's
injuries, the investigating authorities did not examine the hospital
records or question the relevant doctors until almost two and a half
months after the incident (see paragraphs 71 and 73 above) and, even
then, it appears that no importance was given to this evidence and no
conclusions were drawn. No attempts were made to resolve the
discrepancy between this evidence and the findings of the forensic
expert, including by questioning the latter, and no answer was given
to the question of whether the applicant's injuries in their entirety
could have been caused in the circumstances alleged by the police
officers.
174. In view of the foregoing, the Court cannot but conclude that the
authorities failed to secure a timely, proper and objective collection
and assessment of medical evidence vital for the effective outcome of
the investigation.
175. The Court further points out the failure of the investigating
authority immediately to isolate and question the police officers
involved in the incident, thereby failing to prevent a possible
collusion. In this respect, the Court notes that the very first police
reports on the incident did not mention anything about the applicant
falling face-down on a chair (see paragraphs 19 and 20 above), an
explanation which was later relied on to justify his injuries. Such
explanation, nevertheless, started to appear consistently in almost
all the statements taken by the investigator during the subsequent
interviews with the police officers (see, for example, paragraphs 23,
24 and 35 above). Furthermore, having regard to the manner in which
those interviews were conducted, the Court observes that on several
such occasions the police officers were simply asked to provide their
account of events and no questions whatsoever were put to them (see
paragraphs 25, 35 and 39 above). Even on those few occasions when the
investigator did ask questions, there were never more than one or two
questions and in most cases the questions asked were of a standard
nature and lacked specificity (see paragraphs 23, 24, 44, 47 and 50
above). The interviews in question therefore appear to have been a
pure formality and the Court cannot regard them as a serious and
timely attempt to establish the circumstances in which the applicant
suffered his injuries.
176. It must also be noted in this respect that the interviews in
question were conducted in the above-mentioned non-inquisitive manner
despite a number of worrying discrepancies and ambiguities apparent in
the case. In particular, it is not clear why the hospital records
indicated that the doctor's first visit to the police station, whose
purpose was to determine the applicant's level of intoxication, was
made at around 3.05 p.m. on 23 April 2004 (see paragraph 66 above),
while according to the police records the applicant was arrested not
before 5.40 p.m. On the other hand, the record of the applicant's
intoxication examination indicates that the first visit took place at
around 7 p.m. (see paragraph 18 above), which suggests that there may
have been a mistake in the hospital records. However, even assuming
that this was the case, it is highly surprising that the applicant,
who had already suffered - allegedly at 6.30 p.m. (see paragraphs 27
and 48 above) - injuries to his chest and a very serious injury to his
testicle, did not report any of this to the doctor examining him for
alcohol intoxication. Moreover, assuming that the applicant had been
in such an emergency condition since 6.30 p.m., it is not clear why an
ambulance was called to provide first aid only at 11.20 p.m. (see
paragraph 29 above). As already indicated above, no efforts were made
to clarify these important circumstances when taking statements from
the police officers. Nor were any relevant questions put to doctor
A.G. who had made both visits to the police station on the day of the
incident (see paragraph 71 above).
177. The Court would lastly point out a number of other failures and
omissions. Firstly, no attempt was ever made to question the
applicant's state-appointed lawyer, who was apparently present at his
questioning on the night of the incident (see paragraph 28 above), or
police officer O.B., who had drawn up the record indicating that the
applicant felt unwell and required medical assistance (see paragraph
29 above). Secondly, confrontations between the applicant and the
police officers were held with delays of about one and a half up to
three and a half months (see paragraphs 63, 64, 67 and 78 above),
thereby significantly minimising the effectiveness of these measures,
while no confrontation was held between the applicant and deputy chief
of police G. Thirdly, it is not clear on what grounds the prosecutor's
decision terminating the criminal proceedings stated that police
officer H.M. in self-defence had kicked the applicant's testicles (see
paragraph 82 above) when none of the evidence in the case appears to
have contained such an allegation. Lastly, the domestic courts failed
to address thoroughly any of the above-mentioned shortcomings in the
investigation during what appears to have been a cursory examination
of the applicant's allegations (see paragraphs 93 and 95 above).
178. In view of the foregoing, the Court concludes that the
investigation into the applicant's allegations of ill-treatment
undertaken by the authorities was ineffective, inadequate and
fundamentally flawed. It was not capable of producing credible
findings and leading to the establishment of the facts of the case.
The authorities failed to act with due diligence and cannot be said to
have been determined to identify and punish those responsible.
179. Accordingly, there has been a procedural violation of Article 3
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
180. The applicant complained that the grounds on which the criminal
proceedings against him had been terminated violated his right to be
presumed innocent. He relied on Article 6 § 2 of the Convention, which
reads as follows:
"Everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law."
A. Admissibility
181. The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties' submissions
(a) The Government
182. The Government claimed that the grounds on which the Erebuni and
Nubarashen District Prosecutor decided on 30 August 2004 to terminate
the proceedings against the applicant, as prescribed by Article 37 §
2(2) of the CCP, were compatible with the requirements of Article 6 §
2. This was a procedural decision which did not make a finding of
guilt of the accused. Similarly, when a person is arrested on
suspicion of having committed an offence or when the prosecutor brings
charges and later defends them in court, such measures do not imply
that the accused is guilty and do not violate the presumption of
innocence. The decision to terminate the criminal proceedings against
the applicant which, moreover, could be contested before the courts,
merely expressed the prosecutor's unwillingness to take the case to
court and did not contain any statement of the applicant's guilt. With
reference to the judgment in the case of Salabiaku v. France, the
Government argued that presumptions of fact or law operated in every
legal system and the Convention did not prohibit such presumptions in
principle (see Salabiaku v. France, 7 October 1988, § 28, Series A no.
141â~@~QA).
(b) The applicant
183. The applicant claimed that the prosecutor's decision of 30
August 2004 was not merely a procedural decision but a "final
decision", by virtue of Article 6(10) of the CCP, capable of
establishing or implying his guilt. Furthermore, this decision was in
no way comparable to a decision to arrest, to bring charges or to
discontinue proceedings for lack of evidence. Such decisions did not
contain a presumption of guilt, while termination of proceedings on
the grounds envisaged by Article 37 § 2(2) of the CCP contained a
direct link between the reasons for such termination and the question
of his criminal responsibility. The applicant argued that the
prosecutor's decision, which was upheld by three judicial instances,
was either based upon an express finding of guilt or constituted a
judicial decision or statement by a State official that assumed or
reflected that he was guilty, in violation of the requirements of
Article 6 § 2. Furthermore, the findings made in the case of Salabiaku
v. France were distinguishable from and not applicable to his case.
184. The applicant further drew the Court's attention to the fact
that on 25 May 2006 the Armenian parliament amended Article 37 of the
CCP and abolished the ground for termination of proceedings prescribed
by its sub-paragraph 2(2). Thus, such ground for termination of
proceedings as "redemption of the committed act through suffering",
prescribed by former Article 37 § 2(2), which moreover did not require
the consent of the accused, was removed. The applicant argued that
this amendment was introduced because the former Article 37 § 2(2) of
the CCP conflicted, inter alia, with the principle of presumption of
innocence.
2. The Court's assessment
185. The Court reiterates that the presumption of innocence enshrined
in Article 6 § 2 is one of the elements of the fair criminal trial
that is required by Article 6 § 1 (see Deweer v. Belgium, 27 February
1980, § 56, Series A no. 35, and Minelli v. Switzerland, 25 March
1983, § 27, Series A no. 62). It will be violated if a statement of a
public official concerning a person charged with a criminal offence
reflects an opinion that he is guilty before he has been proved so
according to law. It suffices, even in the absence of any formal
finding, that there is some reasoning to suggest that the official
regards the accused as guilty (see Daktaras v. Lithuania, no.
42095/98, § 41, ECHR 2000â~@~QX). Moreover, the principle of the
presumption of innocence may be infringed not only by a judge or court
but also by other public authorities, including prosecutors (see
Allenet de Ribemont v. France, 10 February 1995, § 36, Series A no.
308, and Daktaras, cited above, § 42).
186. Furthermore, a fundamental distinction must be made between a
statement that someone is merely suspected of having committed a crime
and a clear declaration, in the absence of a final conviction, that an
individual has committed the crime in question (see MatijaÅ¡eviÄ~G v.
Serbia, no. 23037/04, § 48, ECHR 2006â~@~QX, and Khaydarov v. Russia, no.
21055/09, § 149, 20 May 2010). The latter infringes the presumption of
innocence, whereas the former has been regarded as unobjectionable in
various situations examined by the Court (see Garycki v. Poland, no.
14348/02, § 67, 6 February 2007). Whether a statement of a public
official is in breach of the principle of the presumption of innocence
must be determined in the context of the particular circumstances in
which the impugned statement was made (see Daktaras, cited above §
43).
187. The Court is therefore called upon to determine whether in the
present case the outcome of the criminal proceedings against the
applicant allowed doubt to be cast on his innocence, although he had
not been proved guilty.
188. The Court notes that the criminal proceedings against the
applicant were terminated at the pre-trial stage by the prosecutor's
decision of 30 August 2004 on the ground prescribed by former Article
37 § 2(2) of the CCP, which allowed termination of proceedings if, in
the prosecutor's opinion, the accused had redeemed the committed act
through suffering and other privations which he had suffered in
connection with the committed act. The prosecutor's decision was
upheld by the domestic courts.
189. Having regard to the prosecutor's decision of 30 August 2004,
the Court notes that this decision was couched in terms which left no
doubt as to the prosecutor's view that the applicant had committed an
offence. In particular, the prosecutor first recapitulated the
circumstances of the case as contained in the charge against the
applicant and in a manner suggesting it to be established that police
officer H.M. had acted in self-defence, while the applicant had
intentionally inflicted injuries on him. The prosecutor went on to
conclude that it was inexpedient to prosecute the applicant because he
had also suffered as a result of the committed act. In doing so, the
prosecutor specifically used the words "during the commission of the
offence [the applicant had] also suffered damage" and "by suffering
privations [the applicant had] atoned for his guilt" (see paragraph 82
above).
190. Both the Court of Appeal and the Court of Cassation upheld this
decision and in substance did not disagree with it. Moreover, in doing
so, both courts found it to be established that the applicant's claim
that he had acted in self-defence was unfounded. It should be
mentioned that the proceedings before the courts did not determine the
question of the applicant's criminal responsibility but the question
of whether it was necessary to terminate the case on the grounds
provided by the prosecutor. Thus, it cannot be said that these
proceedings resulted or were intended to result in the applicant being
"proved guilty according to law".
191. Lastly, the Court observes that the ground for termination of
criminal proceedings envisaged by former Article 37 § 2(2) of the CCP
in itself presupposed that the commission of an imputed act was an
undisputed fact.
192. In view of the foregoing, the Court considers that the reasons
for termination of the criminal case against the applicant given by
the prosecutor and upheld by the courts with reliance on Article 37 §
2(2) of the CCP were in violation of the presumption of innocence.
193. There has accordingly been a violation of Article 6 § 2 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN
CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION
194. The applicant complained that he had been subjected to
ill-treatment because of his political opinion. He relied on Article
14 of the Convention, taken in conjunction with Article 3 of the
Convention, which provides:
"The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such
as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority,
property, birth or other status."
A. Admissibility
195. The Court notes that this complaint is linked to that examined
under Article 3 and must therefore likewise be declared admissible.
B. Merits
1. The parties' submissions
(a) The Government
196. The Government submitted that the applicant had failed to
substantiate with any evidence his allegation that the treatment to
which he had been subjected was politically motivated. Furthermore, he
had failed to demonstrate that he had received different treatment
compared to anybody in an identical situation. More precisely, the
applicant had been taken to the police station on suspicion of
carrying a firearm. He had been questioned in relation to that
suspicion and the injury which he had suffered as a result of the
incident between him and the police officer. The applicant had
admitted that he had been asked at the police station to provide his
identity, which implies that the police officers were not aware of who
he was, let alone of his political activity. Even assuming that the
police officers were aware of the applicant's political activity,
nothing suggests that their actions were motivated by such
considerations. Nor did the applicant indicate any signs or
expressions in the behaviour of the police officers which would
suggest the opposite. His allegations were based solely on a number of
reports describing the general situation in Armenia in 2003-2004.
Thus, he had failed to provide proof beyond reasonable doubt and it
cannot be said that he had suffered discrimination for political
motives contrary to both substantive and procedural guarantees of
Article 14 in conjunction with Article 3.
(b) The applicant
197. The applicant submitted, first, that he had a significant
political profile in Armenia and it was implausible that the police
officers responsible for his arrest would have been unaware of his
opposition political activities. Second, there were numerous reports
before the Court revealing that in March and April 2004 the Armenian
authorities had engaged in widespread suppression of the political
opposition. Third, there was no credible evidential basis for his
arrest which had been effected on the basis of an anonymous telephone
call. Fourth, the testimonies of the police officers concerning the
reasons for his arrest had been inconsistent and implausible. Fifth,
when under arrest he had been asked no questions about the alleged
suspicion and the only questions put had concerned his participation
in the demonstrations and his role in encouraging others to
participate. All these factors confirmed the fact that his arrest had
been politically motivated and consequently that he had suffered
discrimination on the ground of his political opinion contrary to both
substantive and procedural guarantees of Article 14 in conjunction
with Article 3.
2. The Court's assessment
(a) Whether the respondent State is liable for ill-treatment on the
basis of the applicant's political opinion and activity
198. The Court has established above that agents of the respondent
State ill-treated the applicant while in custody in violation of
Article 3 of the Convention. The applicant has further alleged that
there has been a separate violation of Article 14 in that political
motives played a role in his ill-treatment.
199. Discrimination is treating differently, without an objective and
reasonable justification, persons in relevantly similar situations
(see Willis v. United Kingdom, no. 36042/97, § 48, ECHR 2002â~@~QIV). The
Court has examined previously a number of cases in which the
applicants alleged under Article 14 in conjunction with Articles 2 or
3 of the Convention that death or ill-treatment had been inflicted as
a result of discrimination, namely racial hatred. It held that racial
violence is a particular affront to human dignity and, in view of its
perilous consequences, requires from the authorities special vigilance
and a vigorous reaction. It is for this reason that the authorities
must use all available means to combat racism and racist violence,
thereby reinforcing democracy's vision of a society in which diversity
is not perceived as a threat but as a source of its enrichment (see
Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §
145, ECHR 2005â~@~QVII; Bekos and Koutropoulos v. Greece, no. 15250/02, §
63, ECHR 2005â~@~QXIII (extracts); and Stoica v. Romania, no. 42722/02, §
126, 4 March 2008).
200. The Court considers that the foregoing applies also in cases
where the treatment contrary to Article 3 of the Convention is alleged
to have been inflicted for political motives. It reiterates that
pluralism, tolerance and broadmindedness are hallmarks of a
"democratic society" (see Lindon, Otchakovsky-Laurens and July v.
France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007â~@~QIV).
Political pluralism, which implies a peaceful co-existence of a
diversity of political opinions and movements, is of particular
importance for the survival of a democratic society based on the rule
of law, and acts of violence committed by agents of the State which
are intended to suppress, eliminate or discourage political dissent or
to punish those who hold or voice a dissenting political opinion pose
a special threat to the ideals and values of such society.
201. Faced with the applicant's complaint of a violation of Article
14, as formulated, the Court's task is to establish whether or not
political motives were a causal factor in the applicant's
ill-treatment so as to give rise to a breach of Article 14 of the
Convention taken in conjunction with Article 3.
202. It notes in this connection that, in assessing evidence, it has
adopted the standard of proof "beyond reasonable doubt". However, it
has never been its purpose to borrow the approach of the national
legal systems that use that standard. Its role is not to rule on
criminal guilt or civil liability but on Contracting States'
responsibility under the Convention. The specificity of its task under
Article 19 of the Convention - to ensure the observance by the
Contracting States of their engagement to secure the fundamental
rights enshrined in the Convention - conditions its approach to the
issues of evidence and proof. In the proceedings before the Court,
there are no procedural barriers to the admissibility of evidence or
pre-determined formulae for its assessment. It adopts the conclusions
that are, in its view, supported by the free evaluation of all
evidence, including such inferences as may flow from the facts and the
parties' submissions. According to its established case-law, proof may
follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact
(see Nachova and Others [GC], cited above, § 147).
203. Turning to the circumstances of the present case, the Court
takes note of the general context in which the applicant's arrest and
detention took place. In this respect, the Court points out that, as
it has recently found, in March and April 2004, which was a period of
political sensitivity in Armenia, there existed an administrative
practice of deterring or preventing opposition activists from
participating in demonstrations, or punishing them for having done so
(see Hakobyan and Others v. Armenia, 34320/04, §§ 90-99, 10 April
2012). There are a number of elements in the present case which may
allow the Court to reach a finding that in the present case the
applicant fell victim to such administrative practice.
204. The Court observes at the outset that the applicant was an
active member of the opposition. He participated in the rallies
organised by the opposition parties during the above-mentioned period
and was arrested shortly thereafter. Turning to the particular
circumstances of the applicant's arrest, the Court notes a number of
further relevant factors.
205. First, the initial reason for the applicant's arrest was
indirectly linked to his participation in the rally of 12 April 2004.
It is true that it was the allegation that he had carried an illegal
firearm at that demonstration which served as a ground for his arrest
and not his participation per se. However, this allegation was based
solely on an anonymous telephone call allegedly received at the
Artashat Police Department at 5.05 p.m. on 23 April 2004. There is no
objective evidence to support this allegation and the fact that such a
telephone call was indeed received at the police department, such as
for example a recording of that conversation, which may call into
question the veracity of this fact. Nor is there any detailed
transcript of that conversation.
206. Second, the Court finds it hard to believe that, if such a call
was indeed received, the police officers did not even try to verify
the identity of the caller or the veracity of the information
provided, but almost immediately, within less than an hour, proceeded
to arrest the applicant on such precarious grounds without making any
further inquiries. Nor can the Court overlook the fact that this was
done in the absence of any decision by the investigating authority as
required by the domestic law (see paragraph 100 above).
207. Third, this initial suspicion against the applicant was almost
entirely forgotten once he was taken to the police station. The
applicant was not even questioned in connection with that suspicion
but instead an administrative case was initiated against him under
Article 182 of the CAO for disobeying lawful orders of police officers
and using foul language, allegedly because of his behaviour during his
arrest. The sole investigative measure taken in connection with the
initial suspicion appears to be the search of the applicant's home,
which was authorised some four days after the applicant's arrest and
implemented another two days later (see paragraphs 41 and 43 above).
Such lack of any particular expedition in carrying out this measure
appears to be in stark contrast to the haste with which the
applicant's arrest was effected.
208. Fourth, the Court cannot overlook the conflicting statements
made by the two arresting police officers concerning the reasons for
the applicant's arrest. In particular, police officer A.S. admitted
that he had found out about the reasons why the applicant had been
taken to the police station only after taking him there (see paragraph
25 and 63 above). The Court finds it hard to believe that a police
officer, ordered to carry out the arrest of a suspect who is allegedly
carrying an illegal firearm, was not made aware of such an important
fact, especially in view of the potential risks that this might have
carried for the arresting officer. Furthermore, police officer R.S.
admitted that he had been ordered to take the applicant to the police
station "for a talk", not mentioning anything about any firearm (see
paragraph 64 above). Moreover, police officer A.S. confirmed that this
talk was connected with the demonstrations (see paragraph 63 above).
209. Fifth, not only was the initial suspicion against the applicant
left without proper follow-up but the administrative case against him
under Article 182 of the CAO was also abandoned and never revisited
once the incident occurred at the police station and the applicant
faced a new criminal charge, namely the assault of police officer H.M.
210. In view of all the above factors, the Court considers that there
are cogent elements in the present case prompting it to doubt whether
the true reasons for the applicant's arrest and the subsequent
administrative proceedings were those indicated in the relevant police
materials. It further notes that the entirety of the materials before
the Court allow it to draw sufficiently clear and concordant
inferences to the effect that the applicant fell victim to the
administrative practice mentioned above (see paragraph 205 above) and
that the real reason for the applicant's arrest was to discourage him
from participating in the opposition demonstrations or to punish him
for having done so.
211. Having reached this conclusion, the Court is mindful of the fact
that it has been called upon to determine whether the ill-treatment
which the applicant suffered at the hands of the police officers
during his politically motivated arrest was linked to his political
opinion. The Court notes in this respect that some of the reports
mentioned above contain allegations of ill-treatment of opposition
supporters in police custody during the relevant period (see paragraph
127 above). However, the Court cannot lose sight of the fact that its
sole concern is to ascertain whether, in the case at hand, the
applicant's ill-treatment was motivated by his political opinion.
212. The Court notes that it has not ruled out the possibility that
in certain cases of alleged discrimination it may require the
respondent Government to disprove an arguable allegation of
discrimination and - if they fail to do so - find a violation of
Article 14 of the Convention on that basis. However, where it is
alleged - as here - that a violent act was motivated by political
intolerance, such an approach would amount to requiring the respondent
Government to prove the absence of a particular subjective attitude on
the part of the person concerned. While in the legal systems of many
countries proof of the discriminatory effect of a policy or decision
will dispense with the need to prove intent in respect of alleged
discrimination in employment or the provision of services, that
approach is difficult to transpose to a case where it is alleged that
an act of violence was politically motivated (see, mutatis mutandis,
Nachova and Others [GC], cited above, § 147, and Bekos and
Koutropoulos, cited above, § 63).
213. In the present case, the applicant alleged that the violent
behaviour towards him in police custody was motivated by the fact that
he was a member of the political opposition. The police officers
repeatedly made remarks of a political nature when taking him to the
police station, at the police station and while ill-treating him.
Notably, police officer H.M. before assaulting the applicant by
kicking and punching him said that "it was their country and that they
could do anything they wanted to and that what [the applicant and
other supporters of the political opposition] were trying to do,
meaning the change of the government, was all in vain" (see paragraph
36 above). Furthermore, police officer A.K., while beating him, was
asking him "which of the opposition leaders was encouraging his
activity" (see paragraph 38 above).
214. The Court notes that there is no objective way to verify the
applicant's allegations. It is true that the circumstances of the
applicant's politically motivated arrest call for strong criticism and
raise serious concerns. However, this in itself is not sufficient to
conclude that the ill-treatment per se was similarly inflicted for
political motives. Judging by the circumstances of the case, it cannot
be ruled out that the applicant was subjected to ill-treatment as a
revenge for the injury that he had inflicted on police officer H.M.
Nor can it be ruled out that the violent behaviour of the police
officers was triggered by the confrontation between them and the
applicant or for reasons of police brutality which are beyond any
explanation. While such actions must receive the utmost condemnation
and may not be justified or condoned under any circumstances, the
Court cannot conclude beyond reasonable doubt that the applicant's
ill-treatment was motivated by his political opinion.
215. Lastly, the Court does not consider that the alleged failure of
the authorities to carry out an effective investigation into the
alleged political motive for the applicant's ill-treatment should
shift the burden of proof to the respondent Government with regard to
the alleged violation of Article 14 in conjunction with the
substantive aspect of Article 3 of the Convention. The question of the
authorities' compliance with their procedural obligation is a separate
issue, to which the Court will revert below (see Nachova and Others
[GC], cited above, § 157, and Bekos and Koutropoulos, cited above, §
66).
216. In sum, having assessed all the relevant elements, the Court
does not consider that it has been established beyond reasonable doubt
that political motives played a role in the applicant's ill-treatment
by the police.
217. Accordingly, there has been no violation of Article 14 of the
Convention taken in conjunction with Article 3 in its substantive
limb.
(b) Whether the respondent State complied with its obligation to
investigate possible political motives for the applicant's
ill-treatment
218. The Court considers that when investigating violent incidents
State authorities have the additional duty to take all reasonable
steps to unmask any political motive and to establish whether or not
intolerance towards a dissenting political opinion may have played a
role in the events. Failing to do so and treating politically induced
violence and brutality on an equal footing with cases that have no
political overtones would be to turn a blind eye to the specific
nature of acts that are particularly destructive of fundamental
rights. A failure to make a distinction in the way in which situations
that are essentially different are handled may constitute unjustified
treatment irreconcilable with Article 14 of the Convention (see,
mutatis mutandis, Nachova and Others v. Bulgaria, nos. 43577/98 and
43579/98, § 158, 26 February 2004, and Bekos and Koutropoulos, cited
above, § 69).
219. Admittedly, proving political motivation will often be extremely
difficult in practice. The respondent State's obligation to
investigate possible political overtones to a violent act is an
obligation to use best endeavours and not absolute. The authorities
must do what is reasonable in the circumstances to collect and secure
the evidence, explore all practical means of discovering the truth and
deliver fully reasoned, impartial and objective decisions, without
omitting suspicious facts that may be indicative of politically
induced violence (see, mutatis mutandis, Nachova and Others, cited
above, § 159, and Bekos and Koutropoulos, cited above, § 69).
220. The Court further considers that the authorities' duty to
investigate the existence of a possible link between political
attitudes and an act of violence is an aspect of their procedural
obligations arising under Article 3 of the Convention, but may also be
seen as implicit in their responsibilities under Article 14 of the
Convention to secure the fundamental value enshrined in Article 3
without discrimination. Owing to the interplay of the two provisions,
issues such as those in the present case may fall to be examined under
one of the two provisions only, with no separate issue arising under
the other, or may require examination under both Articles. This is a
question to be decided in each case on its facts and depending on the
nature of the allegations made (see Nachova and Others [GC], cited
above, § 161, and Bekos and Koutropoulos, cited above, § 70).
221. In the present case, the Court has already found that the
Armenian authorities violated Article 3 of the Convention in that they
failed to conduct an effective investigation into the incident. It
considers that it must examine separately the complaint that there was
also a failure to investigate a possible causal link between alleged
political motives and the abuse suffered by the applicant at the hands
of the police.
222. The Court notes that the applicant alleged on numerous occasions
before the investigating authorities that his ill-treatment had been
linked to his participation in the opposition demonstrations and had
been politically motivated, requesting that this circumstance be
investigated and the perpetrators be punished (see paragraphs 36, 38,
45, 61 and 80 above). Two other witnesses had also made submissions
which supported this allegation (see paragraph 59 and 60 above). The
Court lastly observes that the lack of reasons for the applicant's
arrest was noted by the Armenian Ombudsman (see paragraph 46 above).
223. In view of the foregoing, the Court considers that the
investigating authorities had before them plausible information which
was sufficient to alert them to the need to carry out an initial
verification and, depending on the outcome, an investigation into
possible political motives for the applicant's ill-treatment.
224. However, the authorities did almost nothing to verify this
information. Only two police officers, A.M. and R.S., were apparently
asked if they were aware of the applicant's political affiliation,
which can hardly be considered to be a real attempt to investigate
such a serious allegation and appears to have been a mere formality
(see paragraphs 23 and 24 above). No further questions were asked,
while the remaining police officers, including H.M. and A.K. whom the
applicant directly implicated in making politically intolerant
statements before and during his ill-treatment, were not even
questioned regarding this allegation. No attempts were made to
investigate the circumstances of the applicant's arrest, including the
numerous inconsistencies and other elements pointing at the possible
politically motivated nature of that measure, and no conclusions were
drawn from the available materials. The Court therefore concludes that
the authorities failed in their duty under Article 14 of the
Convention taken in conjunction with Article 3 to take all possible
steps to investigate whether or not discrimination may have played a
role in the applicant's ill-treatment.
225. Accordingly, there has been a violation of Article 14 of the
Convention taken in conjunction with Article 3 in its procedural limb.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
226. The applicant further raised a number of complaints under
Articles 5, 6 § 1, 10 and 11 of the Convention.
227. Having regard to all the material in its possession, and in so
far as these complaints fall within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols. It follows
that this part of the application must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
228. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention
or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made,
the Court shall, if necessary, afford just satisfaction to the injured
party."
A. Damage
229. The applicant claimed 25,000 euros (EUR) in respect of
non-pecuniary damage.
230. The Government submitted that there had been no violation of any
of the rights guaranteed by the Convention and the applicant could not
therefore claim any non-pecuniary damage.
231. The Court considers that the applicant has undoubtedly suffered
non-pecuniary damage as a result of the violations found. Ruling on an
equitable basis, it awards the applicant EUR 25,000 in respect of
non-pecuniary damage.
B. Costs and expenses
232. The applicant also claimed 4,250 United States dollars (USD) and
3,602.45 pounds sterling (GBP) for the costs and expenses incurred
before the Court. The applicant submitted detailed time sheets stating
hourly rates in respect of his domestic lawyers and one KHRP lawyer.
233. The Government submitted that the claims in respect of the
domestic and foreign lawyers were not duly substantiated with
documentary proof, since the applicant had failed to produce any
contracts certifying that there was an agreement with those lawyers to
provide legal services. Furthermore, the applicant had used the
services of an excessive number of lawyers, despite the fact that the
case was not so complex as to justify such a need.
234. 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 were
reasonable as to quantum. The Court further reiterates that legal
costs are only recoverable in so far as they relate to the violation
found (see Beyeler v. Italy [GC], no. 33202/96, § 27, ECHR 2000-I). In
the present case several of the applicant's complaints were declared
inadmissible. Therefore the claim cannot be allowed in full and some
reduction must be applied. Making its assessment on an equitable
basis, the Court awards the applicant a total sum of EUR 6,000 for
costs and expenses, to be paid in pounds sterling into his
representatives' bank account in the United Kingdom.
C. Default interest
235. The Court considers it appropriate that the default interest
should be based on the marginal lending rate of the European Central
Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning the applicant's ill-treatment,
lack of an effective investigation, the applicant's right to be
presumed innocent, his ill-treatment having been inflicted for
political motives and lack of an effective investigation into this
allegation admissible and the remainder of the application
inadmissible;
2. Holds that there has been a substantive violation of Article 3 of
the Convention in that the applicant was subjected to torture;
3. Holds that there has been a procedural violation of Article 3 of
the Convention in that the authorities failed to carry out an
effective investigation into the applicant's allegations of
ill-treatment;
4. Holds that there has been a violation of Article 6 § 2 of the Convention;
5. Holds that there has been no substantive violation of Article 14
of the Convention in conjunction with Article 3 of the Convention;
6. Holds that there has been a procedural violation of Article 14 of
the Convention in conjunction with Article 3 of the Convention in that
the authorities failed to carry out an effective investigation into
the applicant's allegations that his ill-treatment had been
politically motivated;
7. Holds
(a) that the respondent State is to pay the applicant, within three
months from the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 25,000 (twenty-five thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
the currency of the respondent State at the rate applicable at the
date of settlement;
(ii) EUR 6,000 (six thousand euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses, to be
converted into pounds sterling at the rate applicable at the date of
settlement and to be paid into his representatives' bank account in
the United Kingdom;
(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;
8. Dismisses the remainder of the applicant's claim for just satisfaction.
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113302#{"fulltext":["\"001-113302\""],"itemid":["001-113302"]}