Resolution CM/ ResDH (2011)40 [1]

Execution of the judgment of the European Court of Human Rights

Harutyunyan against Armenia

(Application No. 36549/03, judgment of 28/06/2007, final on 28/09/2007 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicant ’ s right to a fair trial on account of the use during his trial of statements obtained from him and two witnesses under duress (violation of Article 6§1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)40

Information about the measures to comply with the judgment in the case of

Harutyunyan against Armenia

Introductory case summary

The case concerns a violation of the applicant ’ s right to a fair trial on account of the use during his trial of statements obtained from him and two witnesses under duress (violation of Article 6§1).

In April 1999 the applicant, who was in the army at that time, was accused of killing a soldier, found guilty of premeditated murder and sentenced to ten years ’ imprisonment. The European Court noted that the applicant and the two witnesses had been coerced into making confessions, a fact confirmed by the domestic courts when the police officers concerned were convicted of ill-treatment. The Court concluded that, regardless of the impact the statements obtained under torture had had on the outcome of the applicant ’ s trial, the use of such evidence rendered his trial as a whole unfair.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

4000 EUR

-

4000 EUR

Paid on 25/10/2007

b) Individual measures

Individual measure in favour of the applicant

The applicant was detained from 17/04/1999 to 22/12/2003 and was released on parole.

On 25/12/2007, the applicant lodged a request for reopening with the Court of Cassation. In this process, the applicant ’ s lawyer had to challenge, before the Constitutional Court , the constitutionality of the provisions of the Code of Criminal Procedure concerning the reopening of proceedings. As a result, these provisions were amended on 26/12/2008 .

Further to the adoption of these amendments, the applicant lodged a new request for reopening with the Court of Syunik Marz . After a number of adjournments because the applicant or his lawyer were not able to participate in the hearing, the hearing was held on 22/03/2010. The Court of Syunik Marz found Mr. Harutyunyan guilty of premeditated murder, sentenced him to ten years ’ imprisonment, but noted that he had already served this sentence. Thus the applicant remains free.

No other individual measure was considered necessary by the Committee of Ministers.

Measures of general impact adopted in the framework of this case to allow individual measure

Provisions on the reopening of criminal proceedings had to be modified. They now read as follows:

Article 426.4 of the Code of Criminal Procedure provides that “a judicial act may be reviewed after a final judgment or decision of an international court, the jurisdiction of which the Republic of Armenia has accepted, finding an infringement of a person ’ s rights protected by an international agreement to which Republic of Armenia is party".

An appeal for review of a judicial act on the grounds of a new circumstance may be submitted within three months following the notification to the persons concerned of the final judgment or decision of an international court the jurisdiction of which the Republic of Armenia has accepted (Article 426.4.3).

The following have the right to submit an appeal for review of judicial acts in the event of newly discovered or new circumstances, as provided under Article 426.2:

(1) parties to the case to which the circumstance is related, except for criminal prosecution bodies;

(2) those who, at the moment of the adoption by the Constitutional Court of the decision on the matter at issue, are in a position to exercise that right in accordance with the requirements (time-limits) of the Republic of Armenia Law “On the Constitutional Court” and the Convention, or who had been deprived of the possibility to have their case examined by the Constitutional Court by virtue of sections 3 or 5 of Article 32 of the said Law;

(3) those who, at the moment of adoption of the relevant decision by an international court the jurisdiction of which the Republic of Armenia has accepted, have the right to appeal to the international court in accordance with the requirements (time-limits) of the relevant international agreement;

(4) the Prosecutor General of the Republic of Armenia and his deputies.

According to Article 426.7.1, an application for review of a judicial act should contain the following information:

(1) name, surname and residential or professional address and position,

(2) the name of the court to which the appeal is addressed,

(3) the date on which the judicial act to be reviewed was delivered,

(4) description of the new circumstance,

(5) the object of the applicant ’ s request,

(6) the list of documents attached to the application,

(7) signature of the applicant.

On the basis of newly discovered or new circumstance, a judicial act of the Court of first instance is reviewed by the Court of Appeal, a judicial act of the Court of Appeal and Court of Cassation is reviewed by the Court of Cassation (Article 426.1.2).

According to Article 426.8.3 the Court delivers the decision about refusal to initiate review proceedings within 10 days upon receiving an application. The decision about refusal to initiate review proceedings can be contested according to the respective regulation of the Code, i . e. Article 426.9 which states that a judicial act of the Court of Appeal can be contested before the Court of Cassation.

II. General measures

The European Court ’ s judgment has been translated and published in the Official Bulletin of the Republic of Armenia No. 65 of 12/12/2007, on the official website of the Office of the Prosecutor of the Republic of Armenia ( www.moj.am ) as well as on the official website of the Prosecutor ’ s office of the Republic of Armenia ( www.genproc.am ), and on the official website of the Judiciary of the Republic of Armenia ( www.court.am ). The text of the judgment in Armenian has been sent to the Constitutional Court, the Court of Cassation, the Courts of Appeal, a ll first-instance courts of general jurisdiction, the Human Rights Defender ’ s Office, the Office of Public Prosecutor, the Police, the Standing Committee on State and Legal Affairs and the Standing Committee on Protection of Human Rights and Public Affairs of the National Assembly .

A study of the European Court of Human Rights case-law, and of the Harutyunyan case in particular, is included in the training curriculum of the Police Academy , the Prosecutors` School, and the Judicial School .

The Armenian Government expect that the case-law of the European Court of Human Rights will be taken into account by domestic authorities.

It has also to be recalled that Article 105 of the Code of Criminal Procedure, which concerns “facts inadmissible as evidence”, states that “in criminal procedure it is illegal to use as evidence or as a basis for an accusation facts obtained: by force, threat, fraud, violation of dignity, as well with the use of other illegal actions, ( ... ) by violation of the investigatory or other essential court proceedings. ( ... ) Any violation of the constitutional rights, freedom of a person and citizen, or of any requirements of this Code in the form of restriction or elimination of the rights guaranteed by law to the persons involved in the case, that influenced or could have influenced the reliability of the facts, shall be considered an essential violation in the process of obtaining evidence ( ... )”.

Conformity of judicial proceedings with Article 105 of the Code of Criminal Procedure is controlled by the domestic courts.

However, the government underlined that no similar case has had to be decided by the domestic courts since the European Court ’ s judgment in the Harutyunyan case and that this is why no particular example of case ‑ law can be mentioned concerning “facts obtained by force or threat”.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Armenia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies