ITEMID: 001-113302
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF VIRABYAN v. ARMENIA
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Torture);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
TEXT: 5. The applicant was born in 1958 and lives in Shahumyan Village, Ararat Region of Armenia.
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 (վստահված անձ) 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.
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.
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.
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.
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 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 (դիմում) 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 (միջնորդություն) 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.
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.”
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.
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.
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.
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.
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.
122’s personality, the application of these measures would be deemed insufficient, of administrative detention not exceeding 15 days.
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.
’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.”
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...”
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.”
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]...”
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...”
VIOLATED_ARTICLES: 14
3
6
VIOLATED_PARAGRAPHS: 6-2
NON_VIOLATED_ARTICLES: 14
3


ITEMID: 001-86026
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ROSENGREN v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P4-2;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 5. The applicant was born in 1954 and lives in Visby, Sweden. At the time of the events he was living in Romania.
6. On 4 February, 20 and 29 March 1993 the Romanian police took a statement from the applicant in connection with criminal complaints lodged against him by his business partners concerning alleged fraud.
7. On 13 April 1993 criminal proceedings against the applicant were opened and he was placed in police custody on charges of fraud through his business transactions.
The next day, the prosecutor attached to the Supreme Court of Justice ordered the applicant's remand in custody.
8. On 1 November 1993 the prosecutor attached to the Supreme Court of Justice committed the applicant for trial before the Bucharest County Court.
9. On 6 December 1993 the Bucharest County Court held the first hearing in the case. The applicant's lawyer asked for a rescheduling in order to prepare the defence. Several other hearings were scheduled for the taking of evidence. On several occasions the County Court postponed the case due to shortcomings in the summoning procedure.
On 15 November 1994 a witness's testimony was heard, in the presence of the applicant and his lawyer.
10. In a judgment of 29 November 1994, the County Court convicted the applicant of fraud, sentenced him to four years' imprisonment and awarded civil damages to the victims. It also ordered the applicant's expulsion, after having served the sentence, given his Swedish nationality.
11. On 11 May 1995 the Bucharest Court of Appeal allowed an appeal by the applicant and remitted the case to the County Court for a new trial on the merits. It found that the court of first instance had not clarified all the relevant facts and that it had not examined all the charges against the applicant, as formulated by the prosecutor on 1 November 1993.
12. Between 27 June 1995 and 21 January 2000 some forty hearings were scheduled before the Bucharest County Court, the case being repeatedly adjourned for failure to properly summon the parties, the absence of the parties or the absence of the prosecution file. On 30 April 1997 the case was adjourned in order to allow the applicant to hire a new lawyer.
The applicant filed motions for bias against the judges of the County Court on 20 November 1996, 18 June and 13 August 1997. They were all dismissed.
13. On 21 January 2000 the Bucharest County Court, after reassessing the evidence adduced in the case, again convicted and sentenced the applicant to four years' imprisonment, with an obligation to pay civil damages.
14. On 16 October 2000, upon an appeal by the applicant, the Bucharest Court of Appeal ended the trial, as the criminal charges against the applicant had become time-barred. After reassessing the evidence and based on its findings, the Court of Appeal recalculated the amount of civil damages to be awarded to the victims.
15. In a final decision of 12 March 2002, the Supreme Court of Justice, after reassessing the evidence in the case, dismissed an appeal on points of law by the applicant against the decision of 16 October 2000.
16. On 25 October 2002 the ProcuratorGeneral lodged an application with the Supreme Court of Justice to have the part of the final decision of 12 March 2002 concerning the expulsion order quashed (recurs în anulare).
In a final decision of 7 April 2003, the Supreme Court allowed the extraordinary appeal, quashed the part of the final decision of 12 March 2002 concerning the expulsion order and set aside that order on the ground that the applicant had never lost his Romanian citizenship, which would make his expulsion unconstitutional.
17. On 19 December 1995 the Bucharest County Court, upon the applicant's request, revoked the order for his arrest, but imposed on him an obligation not to leave the city, a precautionary measure provided for by the Romanian Code of Criminal Procedure (the “CCP”).
18. On 27 February 1996 the applicant lodged with the Bucharest County Court a request to have this prohibition revoked. He argued that, if allowed to travel abroad for business purposes, the funds to pay the damages could be recovered more quickly. In a decision delivered on the same day, the County Court dismissed the request. It held that it was not necessary for the conduct of his business that the applicant travel abroad or to another town, since he could appoint a representative.
19. On 29 March 1996 the Bucharest Court of Appeal dismissed an appeal by the applicant against this decision. It held that, according to the CCP, the applicant could only challenge the prohibition when appealing against the decision on the merits of the case.
20. On 5 and 26 June, 11 September and 16 October 1996 the County Court rejected further requests from the applicant to have the measure lifted, without specifying reasons. On 18 December 1996 the County Court rejected a similar request on the ground that the circumstances that had led to the taking of the measure had not changed.
21. On 22 October 2001 the applicant left Romania of his own free will and took up residence in Sweden.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-113752
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF VOROBYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial)
JUDGES: Anatoly Kovler;Erik Møse;Linos-Alexandre Sicilianos
TEXT: 4. The applicant was born in 1955 and lives in Yugorsk, a town in the Tyumen region.
5. On 29 May 2002 the applicant brought a court action against his former employer seeking compensation for damage to health related to professional hardship.
6. On 29 November 2004 Yugorskiy District Court (Khanty-Mansiyskiy Region) dismissed his claim as manifestly ill-founded.
7. On 14 December 2004 the applicant lodged an appeal against the judgment of 29 November 2004.
8. According to the Government, on 30 December 2004 the District Court sent a letter to the applicant informing him that the appeal hearing had been scheduled for 8 February 2005.
9. On 8 February 2005 the Khanty-Mansiyskiy Regional Court held a hearing which the applicant did not attend. The adverse party’s representative attended the hearing and made submissions. The Regional Court upheld the judgment of 29 November 2004.
10. On an unspecified date the applicant applied for a supervisory review of the appeal decision of 8 February 2005.
11. By a decision of 14 March 2005 a judge of the Regional Court refused to examine his application on the grounds that the enclosed copy of the appeal decision of 8 February 2005 had not been certified by the relevant court.
12. For a summary of relevant domestic law, as worded at the material time, see Gusak v. Russia (no. 28956/05, § 20, 7 June 2011).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1