Communicated on 19 October 2016

FIRST SECTION

Application no. 30779/13 Arman DAVTYAN against Armenia lodged on 26 April 2013

STATEMENT OF FACTS

The applicant, Mr Arman Davtyan , is an Armenian national who was born in 1975 and lives in Yerevan. He is represented before the Court by Mr R. Revazyan , 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 arrest and alleged ill-treatment

The applicant alleges that on 14 June 2011 in the morning he was taken to the Mashtots Police Department in Yerevan on suspicion of robbery. Several police officers started beating him with rubber clubs and parquet boards, to force him to confess, breaking the fingers on his left hand as a result. Thereafter they started to burn various parts of his body by delivering electric shocks. His partner, S.M., and a friend, A.M., were also taken to the same police station and ill-treated.

According to the record of “bringing the applicant to the police”, the applicant was taken to the Mashtots Police Department on 15 June 2011 at 4.30 p.m. A statement was taken from the applicant, who confessed to a number of robberies. At 7 p.m. the investigator drew up the record of the applicant ’ s arrest, stating that the applicant was arrested at that hour upon an immediate suspicion of having committed a robbery . The applicant, who apparently had an injury to his hand, was questioned as a suspect by Investigator S. of the Mashtots Police Department and once again confessed. In reply to the Investigator ’ s question as to how he had sustained the injury, the applicant stated that four days earlier, during a fit of anger, he had punched a wall. Nobody had witnessed this.

On 16 June 2011 at 3.15 a.m. the applicant was admitted to an arrest facility. The following injuries were recorded at the time of admission: “scratch wounds and bruises on his back, swollen right shin”. The administration of the facility informed Investigator S. about the injuries.

On the same date the Investigator decided to assign a medical examination in order to establish the origin of the applicant ’ s injuries. The medical expert was asked to detect any injuries on the applicant ’ s body, to clarify their nature, number, location, age, gravity and sequence and method of infliction, as well as whether they could have been self-inflicted.

The applicant was then examined by a medical expert to whom he apparently stated that on 9 June 2011 he had punched a wall with his left hand, while drunk and angry, after which he had leaned against that wall, thus sustaining the scratches. He had not been in a fight or ill-treated and he had not applied for medical help. The medical expert noted a number of burns on the applicant ’ s chest and back, measuring about 1.5 x 0.5 cm and surrounded by a grey area, and concluded that:

“The injuries sustained by [the applicant, namely the burns on his chest and back], were caused by a hot object, possibly within the mentioned period, causing light damage to health with its short-term deterioration; taking into account that the consequences having an immediate causal link with the injuries are to last at least six days and not more than 21 days.”

On 18 June 2011 the applicant was brought before a court, which decided to detain him.

On 19 June 2011 the applicant was admitted to a detention facility, where he was subjected to a medical examination and the following injuries were recorded: “swellings on the left shin, scratches on the back of the shin, injuries to the back, including scratches, partly scabbed”.

2. The investigation

(a) The initial investigation

On 28 July 2011 the applicant filed a complaint with the General Prosecutor, alleging in detail that on 14 June 2011 at 6 a.m. he and the others had been taken to the Mashtots Police Department where they had been ill-treated and forced to confess. He had had to confess because he could not stand the ill-treatment and because he had been promised that his partner would be released. He further alleged that his admission to the arrest facility had been refused because he had a broken hand, burns on his back and swollen legs. In his testimony to the medical expert he had made a false statement that those injuries had been sustained prior to his arrest.

On 8 August 2011 the applicant ’ s complaint was forwarded to the Mashtots Police Department for investigation, which was apparently assigned to Investigator M. It appears that the Investigator questioned the medical expert and four police officers of the Department. The medical expert stated that the burns on the applicant ’ s body had been scattered over different parts of the body and were of different shapes, hence they could not have been inflicted by an electrical shock device and had been inflicted by a hot object. The police officers denied having ill-treated the applicant or the others. It appears that the applicant ’ s partner and his friend A.M. were also questioned, and similarly denied having been ill-treated.

On 31 October 2011 Investigator M. of the Mashtots Police Department decided, with reference to the above-mentioned investigative measures and the applicant ’ s statement of 15 June 2011 when questioned as a suspect, not to carry out criminal prosecution in connection with the applicant ’ s injuries, for lack of an act of crime.

On an unspecified date the applicant applied to the Helsinki Committee of Armenia complaining of his alleged ill-treatment in police custody and claiming that he had been ordered by the police officers to state, when testifying before Investigator S., that he had sustained the injury to his hand several days earlier as a result of punching a wall.

On 6 February 2012 the applicant ’ s partner filed a similar application with the Helsinki Committee of Armenia, complaining in detail of their alleged ill-treatment and claiming, inter alia , that she had been forced by the police officers, through threats and bullying, to testify during the investigation that they had not been subjected to any ill-treatment.

On 21 February 2012 the Helsinki Committee of Armenia applied to the Special Investigative Service (SIS) with a report of a crime, drawing their attention to the applicant ’ s and his partner ’ s complaints.

On 29 February 2012 the SIS Investigator took a statement from the applicant, who provided a detailed account of his alleged ill-treatment, including the identities of the alleged perpetrators. No questions were posed to the applicant.

On 1 March 2012 the SIS Investigator took a statement from the applicant ’ s partner, who confirmed the allegations of ill-treatment and claimed that her earlier statements denying the ill-treatment had been made under threat.

On 2 March 2012 the SIS Investigator decided to refuse the institution of criminal proceedings on the ground that a decision had already been adopted on this matter, namely the decision of 31 October 2011, which had never been contested and was still in force.

(b) The applicant ’ s appeals to courts

( i ) The appeal against the decision of 31 October 2011

On 28 March 2012 the applicant contested the decision of 31 October 2011 before the courts, seeking, inter alia , to restore the missed time-limit for appeal.

On 20 April 2012 the Ajapnyak and Davtashen District Court of Yerevan decided to dismiss the appeal on the ground that the applicant (a) had failed to apply to the Prosecutor first, as required by law, and (b) had missed the time-limit for appeal prescribed by Article 290 of the Code of Criminal Procedure.

On 4 June 2012 the Criminal Court of Appeal decided to dismiss the applicant ’ s appeal against this decision.

On 2 July 2012 the applicant lodged an appeal on points of law.

On 10 August 2012 the Court of Cassation decided to admit the applicant ’ s appeal for examination.

(ii) The appeal against the decision of 2 March 2012

On 13 March 2012 the applicant contested the decision of 2 March 2012 before the courts.

On 8 May 2012 the Kentron and Nork- Marash District Court of Yerevan decided to dismiss the appeal on the ground that the decision of 31 October 2011 had never been overturned. Furthermore the applicant had testified during the investigation that there had been no ill ‑ treatment.

On 12 June 2012 the Criminal Court of Appeal decided to dismiss the applicant ’ s appeal against this decision.

On 13 July 2012 the applicant lodged an appeal on points of law.

On 17 August 2012 the Court of Cassation decided to admit the applicant ’ s appeal for examination.

(c) The cassation proceedings and the remittal of the case for further investigation

On 1 November 2012 the Court of Cassation examined jointly the applicant ’ s appeals on points of law and decided to grant them, to quash all the decisions of the lower courts and to remit the case for a new examination. The Court of Cassation found that the court decisions dismissing the applicant ’ s appeals against the investigators ’ decisions of 31 October 2011 and 1 March 2012 had been unfounded, since the courts had failed to take into account the fact that neither of the investigators ’ decisions contained any mention of the procedure for appealing against them, such as the time-limits and the authority to which such appeals lay. The Court of Cassation further agreed with the applicant ’ s argument that the investigator of the Mashtots Police Department, who had conducted the investigation resulting in the decision of 31 October 2011, had not been in a position to carry out an impartial inquiry since the case concerned his colleagues at the Mashtots Police Department.

On 14 May 2013 the Ajapnyak and Davtashen District Court of Yerevan, referring to the reasoning of the Court of Cassation, decided to restore the time-limit for appealing against the decision of 31 October 2011 and to quash it on the ground that the investigation had been conducted by the investigator of the Mashtots Police Department in respect of his colleagues and could therefore not have been impartial. The District Court ordered that the case be sent for a new and impartial investigation by the SIS. The decision of 2 March 2012 was also to be quashed, since it had been based on the decision of 31 October 2011.

On 20 June 2013 the General Prosecutor ’ s Office decided to institute criminal proceedings under Article 309 § 2 of the Criminal Code on account of the actions of the police officers of the Mashtots Police Department, which fell outside the scope of their authority and included the applicant ’ s ill-treatment. The case was transmitted for investigation to the SIS.

In the course of the investigation the SIS Investigator questioned a number of persons, including the applicant, the medical expert, Investigator S. and five police officers of the Mashtots Police Department, including its former chief, who denied having ill-treated the applicant. The former chief also made similar submissions during a confrontation with the applicant. The applicant ’ s sister and his friend A.M. were also questioned, while the applicant ’ s partner could not be located for questioning. On 16 October 2013 the applicant was recognised as a victim.

On 31 October 2013 the SIS Investigator decided to terminate the criminal proceedings, finding that the evidence obtained was not sufficient to establish elements of an offence in the actions of the police officers of the Mashtots Police Department.

On 12 November 2013 the applicant contested this decision before the General Prosecutor, who decided to dismiss the appeal on 21 November 2013, finding the Investigator ’ s decision to be well-founded.

On 9 January 2014 the applicant contested both decisions before the courts.

On 28 March 2014 the Kentron and Nork- Marash District Court of Yerevan decided to dismiss the applicant ’ s appeal, finding that the investigation had been complete and objective.

On 23 April 2014 the applicant lodged an appeal.

On 6 June 2014 the Criminal Court of Appeal decided to dismiss the appeal and uphold the decision of the District Court.

On 26 June 2014 the applicant lodged an appeal on points of law which was declared inadmissible for lack of merit by the Court of Cassation on 23 July 2014.

B. Relevant domestic law

Article 309 § 2 of the Criminal Code provides that deliberate actions committed by an official, which obviously fall outside the scope of his authority and cause considerable damage to the rights and lawful interests of individuals or organisations, or the lawful interests of society or the State, if involving ill-treatment, shall be punishable by imprisonment for a period of between two and six years and a forfeiture of the right to hold certain posts or to carry out certain activities for a period not exceeding three years.

Article 290 of the Code of Criminal Procedure provides that the suspect, the accused, the defence lawyer, the victim, the participants in the proceedings and other persons whose rights and lawful interests have been violated are entitled to lodge complaints with a court against the unlawfulness and unfoundedness of the decisions and actions of the body of preliminary inquiry, the investigator, the prosecutor or the bodies carrying out operative and intelligence measures, which are prescribed by the Code, if their complaint has not been granted by a prosecutor. The same persons are entitled to contest before a court the refusal of the body of preliminary inquiry, the investigator or the prosecutor to receive information about crimes or to institute criminal proceedings, as well as decisions to suspend or terminate the criminal proceedings or to terminate the criminal prosecution, in cases prescribed by the Code. The complaint may be lodged with the court situated in the same district as the authority dealing with the case within one month from the date of being informed about its dismissal or, if no reply has been received, within one month after the expiry of one month from the date of lodging the complaint.

COMPLAINT

The applicant complains under Article 3 of the Convention that he was ill-treated while in police custody.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to treatment contrary to Article 3 of the Convention (see Gäfgen v. Germany [GC], no. 22978/05, §§ 87 et seq., ECHR 2010 )?

2. Having regard to the procedural protection from treatment prohibited by Article 3 (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

The Government are requested to submit copies of all the interviews and confrontations conducted during the entire investigation, including those with the law enforcement officers (the police officers, investigators, and so on) and the medical expert.