Communicated on 28 November 2017

FIRST SECTION

Application no. 429/15 Feliks GEVORGYAN against Armenia lodged on 18 December 2014

STATEMENT OF FACTS

The applicant, Mr Feliks Gevorgyan , is an Armenian national who was born in 1979 and lives in Yerevan. He is represented before the Court by Mr T. Yegoryan , a lawyer practising in Yerevan.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant alleges that on 28 September 2011 five police officers from Mashtots police station, including the head of the criminal intelligence unit, A.G., and the deputy head of the same unit, A.Sa ., entered his home. They attacked and hit him, threw him to the ground, handcuffed him, violently put him in a police car, and took him to the police station. He was then taken to A.G. ’ s office, where A.G., A.Sa . and other police officers started beating, punching and kicking him and hitting him with batons. His head, legs, and in particular his feet, soles and toes were targeted, and consequently two days later he lost two toenails from his right foot. The police officers demanded that he confess to a murder, which he refused to do. Upon the order of A.G., A.Sa . took a metal rod measuring approximately 25 cm, heated it on an electric stove, and burned the applicant ’ s leg with it. The police officers then started demanding that he confess to a number of robberies instead of murder, which he refused to do, so they continued to beat him. Thereafter, the police officers warned the applicant that his father and brother had also been taken into custody and were being ill-treated, and he then agreed to confess to the robberies. The applicant alleges that his presence at the police station on that date was not recorded in any official document.

According to the record of the applicant being taken to the police station ( Ô±Õ¶Õ±Õ«Õ¶ Õ¢Õ¥Ö€Õ´Õ¡Õ¶ Õ¥Õ¶Õ©Õ¡Ö€Õ¯Õ¥Õ¬Õ¸Ö‚ Õ´Õ¡Õ½Õ«Õ¶ Õ¡Ö€Õ±Õ¡Õ¶Õ¡Õ£Ö€Õ¸Ö‚Õ©ÕµÕ¸Ö‚Õ¶ ), he was taken to Mashtots police station on 29 September 2011 at 7 p.m. by police officers G.T. and A.Su . on suspicion of having committed a robbery. On the same date an investigator from Mashtots police station, V.A., instituted criminal proceedings in respect of the applicant.

On 2 October 2011 the applicant was detained by a court order and transferred to a remand prison. It appears that no injuries were recorded at the time of his admission.

On 4 October 2011 a defence lawyer for the applicant was appointed.

It appears that on 17 October 2011 the applicant lodged a complaint with the General Prosecutor ’ s Office in which he alleged that his confession statement had been made as a result of ill-treatment. He indicated the names of the alleged perpetrators, stated that he had sustained a number of injuries, and described the manner in which they had been inflicted. It appears that that complaint was forwarded to V.A. for examination.

On 19 October 2011 the applicant ’ s lawyer requested that V.A. have a forensic medical examination of the applicant carried out, referring to the applicant ’ s complaint of 17 October 2011 and alleging that he had seen injuries on the applicant ’ s body during their meeting.

On 20 October 2011 the investigator decided to have a forensic medical examination carried out. That decision was received by a forensic medical expert on 21 October 2011. On an unspecified date the expert examined the applicant at the remand prison. On 2 November 2011 he informed the investigator that, in order to give a complete answer to the questions posed by the decision of 20 October 2011, it would be necessary to carry out an X ‑ ray of the bone of the applicant ’ s right shin and foot.

On 14 November 2011 the expert produced his opinion, noting the absence of two toenails and a scar on the applicant ’ s shin, which the applicant alleged to have sustained as a result of the burn. The X-ray which had been carried out had not revealed any changes in the bone structure of the applicant ’ s shins and feet. The expert concluded that there were no other injuries on the applicant ’ s body, but it could not be ruled out that injuries such as scratches and bruises had existed but healed during the weeks preceding the examination. It was impossible to determine if this was the case, because of the delay in the applicant being presented for the examination and the absence of complete medical files. As regards the scar, its origin and age could not be determined either, for similar reasons.

It appears that on 28 November 2011 V.A. decided not to institute criminal proceedings on the basis of the applicant ’ s complaint of 17 October 2011, owing to the absence of a crime.

On 12 December 2011 the applicant ’ s criminal case was set down for trial. The applicant alleges that during the trial proceedings he retracted his confession statement, alleging that it had been made under duress.

On 28 April 2012 the trial court acquitted the applicant. It stated that the entire case against him was founded on his confession statement, which was inadmissible evidence, as it had been obtained by torture. Referring to the applicant ’ s complaint of 17 October 2011 and the findings of the forensic medical expert, the court stated that the investigation into the applicant ’ s allegations of ill-treatment had not been effective. The alleged perpetrators, namely the police officers, had been interviewed by an investigator who worked with them in the same building and the same investigator who had carried out the inquiry into the applicant ’ s criminal case. Thus, no appropriate measures had been taken to verify the applicant ’ s allegations of ill-treatment.

On an unspecified date the prosecution lodged an appeal against that judgment.

On 9 July 2012 the Criminal Court of Appeal quashed the judgment of the trial court and remitted the case. The Court of Appeal endorsed the trial court ’ s findings concerning the ineffectiveness of the investigation, but stated that, on the one hand, the trial court had called for an independent investigation into the applicant ’ s allegations of ill-treatment, but on the other hand, it had found the fact of his ill-treatment established. However, the trial court had had no authority or sufficient grounds to reach such a conclusion, and should have asked a prosecutor to institute criminal proceedings. The Court of Appeal stated that the applicant ’ s complaint had to be examined by the Special Investigative Service (SIS), and only then could the court reach a finding regarding his guilt or innocence.

On 17 June 2013 the trial court wrote a letter to the SIS, notifying it of the findings of the Court of Appeal and forwarding the applicant ’ s complaint for examination.

On 8 August 2013 the General Prosecutor ’ s Office annulled the decision of 28 November 2011 and instituted criminal proceedings under Article 309 § 2 of the Criminal Code (exceeding official authority, accompanied with violence).

On 9 August 2013 the investigation was taken over by an SIS investigator. It appears that a number of investigative measures were taken thereafter. A statement was taken from the applicant, who repeated his allegations of ill-treatment and also alleged that his injuries had not been recorded at the time of his admission to the remand prison, at the request of A.G., who had a close relationship with the deputy head of the remand prison, S.B. Further statements were taken from police officers A.G., A.Sa ., G.T. and A.Su . and the investigator, V.A., all of whom denied that the applicant had been ill-treated. Formal confrontations were held between the applicant and the above-mentioned law-enforcement officers. A statement was also taken from the deputy head of the remand prison, S.B., who denied the applicant ’ s allegations.

On 8 October 2013 the SIS investigator decided to discontinue the criminal proceedings, relying on, inter alia , the testimonies of the police officers, and finding no criminal conduct in their actions.

On 23 October 2013 the applicant contested that decision before the General Prosecutor ’ s Office, which dismissed his complaint by a decision of 4 November 2013.

On 12 November 2013 the applicant applied to the courts.

On 6 February and 7 April 2014 respectively the trial court and the Criminal Court of Appeal dismissed the applicant ’ s appeals and upheld the decisions of the investigating authorities.

On 22 April 2014 the applicant lodged an appeal on points of law, which was declared inadmissible for lack of merit by a decision of the Court of Cassation of 6 June 2014. A copy of that decision was served on the applicant on 18 June 2014.

On 17 September 2014, following a fresh examination of his criminal case, the trial court once again acquitted the applicant for lack of sufficient evidence. It found that the charges against him were based solely on his confession statement made at the outset of the investigation, which, while not inadmissible as such, was nevertheless not supported by any other admissible evidence in the case. That judgment was upheld by the Criminal Court of Appeal on 26 November 2014.

B. Relevant domestic law

Article 309 § 2 of the Criminal Code provides that acts intentionally committed by an official which clearly exceed his authority and cause significant damage to a third party, resulting unintentionally in serious consequences, are punishable by six to ten years ’ imprisonment and a ban on holding certain posts or carrying out certain activities for up to three years.

For a summary of other relevant domestic provisions, see the judgment in the case of Zalyan and Others v. Armenia (see nos. 36894/04 and 3521/07, §§ 148-54 and § 172, 17 March 2016).

COMPLAINT

The applicant complains under Article 3 of the Convention that the authorities failed to carry out an effective investigation into his allegations of ill-treatment.

QUESTION TO THE PARTIES

Having regard to the procedural protection from ill-treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation by the domestic authorities into the applicant ’ s allegations of ill-treatment in the present case in breach of Article 3 of the Convention? The Government are requested to provide copies of the applicant ’ s complaint of 17 October 2011 and the investigator ’ s decision of 28 November 2011 not to institute criminal proceedings on the basis of that complaint.