Communicated on 10 March 2017

FIRST SECTION

Applications nos. 54261/13 and 18361/16 Samvel DAVTYAN against Armenia lodged on 17 August 2013 and 23 March 2016

STATEMENT OF FACTS

The applicant, Mr Samvel Davtyan , is an Armenian national who was born in 1968 and is currently serving a prison sentence. He is represented before the Court by Mr K. Hakobyan, 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.

1. The applicant ’ s deprivation of liberty and alleged ill-treatment

On 23 September 2011 at 8.30 a.m. the applicant, together with fifteen others, was taken by four masked police officers to the Armenian police ’ s Principal Department for the Fight Against Organised Crime (PDFAOC) on suspicion of having committed several counts of armed robbery. The record of bringing the applicant to the police stated that he had resisted arrest and tried to flee, which had led to the use of force against him. One of the police officers sent a report to the head of the PDFAOC, informing him about the arrests and seeking further instructions.

The applicant states that he did not resist arrest and that no physical force or ill-treatment was inflicted on him at the time he was apprehended. Upon arrival at the PDFAOC, the masked officers started to threaten that they would make him disabled and, if necessary, throw him out of the window. They then demanded that he admit to having found a narcotic substance on the street, which he refused to do, so they started hitting him on various parts of his body, resulting in a bleeding nose and a cut temple. The applicant eventually agreed to comply with their demands and admitted during a strip search, which was conducted shortly thereafter in the presence of two attesting witnesses, to the possession of the narcotic substance.

At 11.30 a.m. the applicant was formally placed under arrest by an investigator at the police ’ s Principal Department for Investigations (PDI) on suspicion of committing an offence defined in Article 268 of the Criminal Code (illegal possession of narcotics). During his interview, which was conducted in the absence of a lawyer, the applicant refused to answer the investigator ’ s questions about the substance allegedly found in his possession. According to the record of the explanation to the applicant of his rights, the applicant decided to dispense with a lawyer and to assume his own defence, stating that his decision was not linked to his financial situation.

The applicant alleges that the record of his arrest was actually drawn up at around 5 p.m. His refusal of a lawyer was dictated to him by the investigator, and he agreed because he was in a vulnerable state after his ill-treatment. He further alleges that for four or five hours after his meeting with the investigator the masked police officers, having stripped him and handcuffed his hands and feet to a chair, beat him with rubber batons, delivered electric shocks to him and kicked him on the soles of his feet, back, ribs (resulting in a fractured rib) and other parts of the body, demanding that he confess to the robberies. He refused to confess but was forced to sign the record of his being taken to the police.

At 11.30 p.m. the applicant was transferred to the police facility where arrestees were kept (the arrest facility) and the following injuries were recorded by the medical assistant on duty at the time of his admission: “A wound and swelling on the left temple, reddish traces on the back, wounds on both shins, swelling of the right hand, swelling of both feet, and a wound on the right wrist”. A notification of the applicant ’ s injuries was sent to the investigator. The applicant alleges that not all his injuries were recorded.

On the morning of 24 September 2011 the applicant was taken back to the PDI where, he alleges, his ill-treatment continued until he agreed to make a confession.

At 4.15 p.m. the applicant was questioned by the PDI investigator, to whom he confessed to several counts of armed robbery. No lawyer was present during the questioning. The applicant alleges that he made that confession because he could not withstand the ill-treatment. He provided false information based on what he had overheard from the police officers, while the investigator, who acted in collusion with them, filled in the details.

On 25 September 2011 the PDI investigator decided that a legal aid lawyer should be assigned to the applicant as the applicant had no means to pay for one and there was a need to clarify discrepancies between his statement and those of the other accused. Since the other accused were represented by lawyers, a lawyer ’ s involvement was also required in the applicant ’ s case. The applicant submits that he did not trust the legal aid lawyer as he had been arranged for him by the investigator, which was why he did not inform him of his ill-treatment.

On the same date the applicant was formally charged with various offences defined in the Criminal Code, including Article 175 (aggravated robbery), Article 183 (taking illegal possession of a vehicle without the intention to steal it), Article 222 (creating, leading or being involved in a criminal gang) and Article 268 (illegal possession of narcotics). A court decision was issued to detain him.

On 26 September 2011 at 4.45 p.m. the applicant was transferred to a detention facility.

On the same day the PDI investigator decided to transfer the applicant back to the arrest facility twice for a period of three days between 27-29 September and 30 September-3 October 2011 as it was necessary to carry out a number of investigative measures and it was impossible to organise daily transfers of the applicant from the detention facility. The applicant alleges that his transfer back to the arrest facility was effected in order to continue ill-treating him for the purposes of filling in the details of the initial confession and obtaining evidence incriminating the other suspects. He was taken on a daily basis from the arrest facility to the PDI, where his ill-treatment continued. The applicant further alleges that no investigative measures were carried out with his participation during those periods, apart from one questioning on 3 October 2011.

At 6.45 p.m. the applicant was admitted to the arrest facility and the following injuries were recorded: “scratch wounds on the left temple, both forearms and shins, and a bruise on the left shoulder blade”. A notification of the applicant ’ s injuries was sent to the investigator.

On 27 September 2011 the PDI investigator decided to restrict the applicant ’ s access to the outside world, including prohibiting family visits and telephone calls, finding that such access could have a negative impact on the investigation because not all of the members of the criminal gang had been identified.

2. The investigation into the applicant ’ s injuries

(a) Various investigative measures and other developments

On 1 October 2011 the PDI investigator examined the register of medical examinations at the police arrest facility, noting down the records of the applicant ’ s injuries.

On 3 October 2011 the applicant was questioned by the PDI investigator but refused to testify as to how and where he had sustained his injuries. The applicant submits that he did not wish to testify because he did not trust the investigator. The investigator then decided to order a forensic medical examination of the applicant, citing the notification from the arrest facility of 23 September 2011 and asking the medical experts to clarify whether there were injuries on the applicant ’ s body and, if so, to identify their location, nature, origin, age and seriousness.

On the same day the applicant was taken back to the detention facility.

On 4 October 2011 the applicant was taken by the PDFAOC officers for a medical examination, which was allegedly conducted in their presence. It was noted that the applicant had no complaints. The applicant alleges that he did not inform the medical experts about his fractured rib because of the police officers ’ presence.

On 20 October 2011 the experts produced their report, concluding:

“The injuries sustained by [the applicant], namely the bruising over the left eyebrow (currently a scar), the scratches on the left and right shins and on the sole of the left foot, and the bruises on his forehead and left forearm, were inflicted by a blunt, firm object(s), possibly during the period specified in the [investigator ’ s] decision, and do not qualify as minor injuries. ... ”

On 28 October 2011 the applicant dismissed his legal aid lawyer and hired a private lawyer whom he informed on 1 November 2011 that he had been ill-treated in police custody following his arrest and that he had a fractured rib, which he had not mentioned during his medical examination.

On 4 November 2011 the lawyer requested that the investigator order an additional medical examination to clarify in what circumstances the applicant ’ s injuries had arisen. The lawyer stated that the applicant had not informed the medical expert during the examination of 4 October 2011 about the fracture of the rib inflicted by the police officers following his arrest.

On 16 November 2011 the lawyer complained to the General Prosecutor that the PDI investigator had failed to take any action in response to his request of 4 November 2011, alleging that the investigator was deliberately delaying an additional medical examination in order to allow the applicant ’ s injuries to heal.

On 23 November 2011 the lawyer sent a letter to the head of the detention facility, complaining that the applicant had not received the requisite medical assistance at the facility for his fractured rib and asking for information regarding any injuries detected on the applicant.

On 24 November 2011 a prosecutor at the General Prosecutor ’ s Office forwarded the lawyer ’ s complaint to the PDI, ordering that measures be taken, including, if necessary, having the applicant undergo an additional medical examination and informing him about its results.

On 25 November 2011 the PDI investigator decided to order an additional forensic medical examination, citing the arrest facility ’ s notification of 23 September 2011 and asking the medical experts to clarify whether there were injuries or any signs of injury in the area of the applicant ’ s ribs, including a fractured rib or any traces of one, and, if so, to identify their origin and age.

On 29 November 2011 the applicant was taken for a medical examination. A report was produced on 7 December 2011 and given to the applicant on 13 December 2011. The applicant complained to the medical experts about pain in the left side of his chest which, he alleged, was the result of blows inflicted in police custody. It appears that he had an X-ray of the left side of his chest.

On 30 November 2011 the head of the detention facility, in reply to the lawyer ’ s letter of 23 November 2011, provided a medical certificate signed by the head of the medical team, which stated that on admission to the facility on 26 September 2011 the applicant had undergone an initial medical examination. He had not complained of any ill-treatment in police custody and no traces of ill-treatment had been detected on his body. The applicant alleges that in reality he did not have any medical examination at the time of his admission to the detention facility.

On 7 December 2011 the medical experts produced a new report, reiterating their previous conclusions and adding:

“During [the applicant ’ s] previous ... medical examination there were no complaints or objective signs of a fractured rib, which was confirmed by the current additional medical examination, namely an X-ray which did not reveal any fracture of the rib.”

On 13 December 2011 the experts ’ opinion was presented to the applicant who immediately requested that the medical examination be done again, arguing that the medical experts had failed to answer all the questions or specify whether he had had a fractured rib in the past. The applicant further complained that he had been coerced into making a confession on 24 September 2011 through ill-treatment following his arrest.

On 14 December 2011 the PDI investigator decided to refuse that request as unsubstantiated.

On 28 December 2011 the PDI investigator questioned the head of the detention facility ’ s medical unit, who stated that he had examined the applicant at the time of his admission on 26 September 2011 and that no signs of ill-treatment had been identified. He had even asked the applicant whether he had been subjected to ill-treatment in police custody, which the applicant had denied. There may have been scratches on the applicant ’ s body which he had not recorded but those could not be considered as “signs of ill-treatment”.

On 6 April 2012 the PDI investigator questioned two of the arresting police officers, G.G. and E.M., about what had happened when the applicant had been apprehended, and they made practically identical statements. They submitted, in particular, that the applicant had resisted arrest and tried to flee, so they had had to use force in order to restrain him. He had also fallen down while trying to flee. The officers submitted that the applicant might have sustained injuries as a result of those actions.

On 5 June 2012 the applicant applied to the General Prosecutor, complaining about the ill-treatment he had been subjected to at the initial stage of the investigation into his criminal case and requested that the investigation be transferred to the Special Investigative Service (SIS). His request was rejected by the General Prosecutor ’ s Office on 11 June 2012.

On 7 July 2012 the applicant sent a complaint to the General Prosecutor, alleging that following his arrest he had been ill-treated by police officers who had beaten him with truncheons and given him electric shocks, which had lasted for several days. He had been coerced into making a confession and it had only been then that a State-appointed lawyer had become involved in the case. Nothing had been done to investigate his injuries, which had been falsely explained by the investigators as having been sustained when he had been apprehended, despite the fact that he had not resisted arrest. The applicant requested that the perpetrators be identified and punished. It appears that this complaint was forwarded to the SIS.

On 15 August 2012 an SIS investigator took a statement from the applicant, who maintained his complaint of 7 July 2012 and refused to answer any questions “until the perpetrators have been held accountable, taking into account that nothing has been done in that direction for almost a year”. The applicant submits that he refused to answer the investigator ’ s questions because of lack of trust in him after the investigator had refused to inform him about the progress of the investigation and the measures taken.

(b) Refusal to institute criminal proceedings and the applicant ’ s appeals

On 23 August 2012 the SIS investigator decided to refuse to institute criminal proceedings on the grounds that the injuries had been sustained by the applicant when he had been apprehended as a result of the lawful use of force by the police officers. The investigator referred to the statements of Officers G.G. and E.M., to the applicant ’ s interview of 15 August 2012, the notifications from the arrest facility and the results of the applicant ’ s medical examinations.

On 31 August 2012 the applicant filed a complaint with the General Prosecutor, seeking to have that decision overruled and to have criminal proceedings instituted. He contested the finding that his injuries had been inflicted when he had been apprehended and submitted that no objective and thorough investigation had been conducted.

On 7 September 2012 the General Prosecutor ’ s Office dismissed the applicant ’ s complaint with similar reasoning as before.

On 8 October 2012 the applicant contested the decision of 23 August 2012 before the courts.

On 14 December 2012 the Kentron and Nork- Marash District Court of Yerevan dismissed the applicant ’ s appeal, concluding that “it was obvious from the material obtained that the injuries sustained by [the applicant] originated at the time when he was apprehended as a result of the lawful actions of the police officers”.

On 24 December 2012 the applicant lodged an appeal.

On 21 February 2013 the Criminal Court of Appeal dismissed the applicant ’ s appeal and upheld the District Court ’ s decision.

On 13 March 2013 the applicant lodged an appeal on points of law.

On 19 April 2013 the Court of Cassation declared the appeal inadmissible for lack of merit.

3. The applicant ’ s trial

On 7 September 2012 the prosecutor in the case approved an indictment against the applicant, which, inter alia , made reference to his confession during the investigation, and transferred the case to the Kentron and Nork- Marash District Court of Yerevan for trial.

During the trial, the District Court read out and examined the applicant ’ s confession. The applicant objected to that statement being used as evidence, alleging that it had been obtained as a result of ill-treatment and threats. It appears that he also lodged an application to have the statement excluded from the evidence on the same grounds.

On 26 December 2014 the District Court found the applicant guilty as charged and sentenced him to fifteen years ’ imprisonment and the confiscation of property. In finding the applicant guilty the District Court relied on, inter alia , his confession. In doing so, the District Court decided to dismiss the applicant ’ s application to exclude the confession from the evidence, finding that his allegations of ill-treatment had been investigated by the SIS but had not been confirmed. A decision had been taken to refuse to institute criminal proceedings, which was still valid. There were therefore no reasons to exclude the applicant ’ s confession from the evidence.

On 30 January 2015 the applicant lodged an appeal, complaining, inter alia , about the use of his confession allegedly obtained under torture, with reference to Articles 3 and 6 of the Convention.

On 12 May 2015 the Criminal Court of Appeal upheld the District Court ’ s judgment.

On 19 June 2015 the applicant lodged an appeal on points of law which was declared inadmissible for lack of merit by the Court of Cassation on 19 September 2015. A copy of the decision was served on the applicant on 24 September 2015.

B. Relevant domestic law

Section 29 of the Police Act prescribes, inter alia , that a police officer may use force, special means and firearms as an exceptional measure in the cases and according to a procedure prescribed by law, to the extent that it is necessary for the performance of his duties, if that is not possible through other means. A police officer is obliged: (a) to strive to minimise the harm caused to an offender; (b) to provide first aid – or to ensure that such aid is provided – to an injured person, promptly informing medical institutions of all cases involving bodily injuries and death; and (c) to report promptly to his superior all cases of injuries or death resulting from the use of force, special measures or firearms, as well as each case of the application of special means (except handcuffs and rubber batons) and firearms.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was ill-treated in police custody and that the authorities failed to carry out an effective investigation.

The applicant also complains under Article 3 of the Convention that his confession, which was obtained by torture, was used as evidence in the criminal proceedings against him.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from torture and inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), did the investigation in the present case by the domestic authorities comply with the requirements of Article 3 of the Convention?

3. Did the applicant have a fair hearing in the determination of the criminal charge against him, as required by Article 6 of the Convention? In particular, was the use as evidence of the applicant ’ s confession, allegedly obtained as a result of ill-treatment, in breach of the requirements of that Article (see Harutyunyan v. Armenia , no. 36549/03, § 63, ECHR 2007 ‑ III)?