Communicated on 14 September 2015

THIRD SECTION

Application no. 11222/12 Artur HAKOBYAN against Armenia lodged on 10 February 2012

STATEMENT OF FACTS

The applicant, Mr Artur Hakobyan , is an Armenian national who was born in 1981 and lives in Yerevan . He is represented before the Court by Ms L. Sahakyan and Mr Y. Varosyan , lawyers practising in Yerevan .

A. The circumstances of the case

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

On 27 June 2009 at around 3.30 a.m. the applicant and his friend A.M. met officers of the road traffic police, A.C. and H.J., in the street. It appears that the applicant had met H.J. before.

For an unknown reason an argument began between the applicant, his friend and the police officers, who asked for backup via police radio. As a result, a group of road traffic police officers, including officers K.V. and M.S., arrived at the scene of the incident.

Shortly thereafter the applicant and A.M. were apprehended and taken to the Central Police Department.

According to the applicant, at the police station officers A.C., H.J., K.V. and M.S. ill-treated him and A.M. In particular, officer M.S. hit the applicant in the abdomen, following which the officers started beating him and A.M. The applicant and A.M. received several corporal injuries.

On the same day, criminal proceedings were instituted by the police against the applicant and A.M. for maliciously disobeying the lawful orders of road traffic police officers A.C. and H.J., using foul language when addressing them and using violence not dangerous for life and limb against them.

The applicant was officially arrested on the same day at 8.30 p.m., as stated in the record of his arrest.

It appears that on the same day, A.C. and H.J. submitted reports and stated that the applicant and A.M. had used violence against them. They also produced a damaged police uniform hat and stated that it had been damaged by the applicant and A.M. when using violence against them.

On the same day the investigator assigned forensic medical examinations in respect of A.C. and H.J. to determine whether they had injuries and if so, their nature, method and time of infliction, location and gravity.

On 28 June 2009 at 2.35 a.m. the police officers called an ambulance and the applicant was taken to hospital. The relevant parts of the applicant ’ s medical record drafted at the hospital state the following:

“... At the time of the examination [the applicant] had external deviation of the nose ...

[The applicant] complains of pain in the left side of the abdomen and chest. About twenty-four hours ago received blows to the back and to the abdomen (was beaten up)... Upon palpation of the chest pain is felt at the level of the fifth to the eighth ribs from the back at the left side and in the area of the scapula...

[The applicant] complains of headache and nausea. According to [the applicant ’ s] words he was beaten up and had lost consciousness, mentions memory disorder...

Initial diagnosis – closed-head injury, concussion (with a question mark ) ...

In-patient examination was suggested but left escorted by police officers ...”

According to the applicant, after he had received first aid at the hospital the police officers forcibly took him to a detention facility, despite the indications by doctors that he should remain under their supervision to receive the requisite medical treatment.

Upon arrival at the detention facility for holding arrested persons, the applicant underwent a medical examination. The relevant record indicates that the applicant was admitted to the detention facility at 4.15 a.m. with the following injuries: a bruise on the nose and an abrasion on the lower left side of the abdomen . It was further indicated that “cold compresses” were put on the bruises.

On 29 June 2009 at around 2.30 a.m. an ambulance was called once more to provide medical assistance to the applicant and A.M. in the detention facility. According to the relevant record the applicant complained of pain in the chest which worsened during respiration and movement. It was further indicated that upon palpation the applicant felt pain in the intercostal space on the left side.

On the same day, the investigator questioned the applicant who stated, inter alia , that at the police department the road traffic police officer, whom he knew, swore at him and he swore back. Thereafter one of the road traffic police officers, whom he would recognise, punched him in the chest and the two road traffic police officers who had initially approached him punched and kicked him for about twenty seconds, together with four or five other policemen.

On the same day the investigator assigned a forensic medical examination to determine whether there were any injuries on the applicant ’ s body and, if so, their location and the time and method of their infliction.

On the same day the forensic medical examination started.

On 30 June 2009 the applicant was charged with use of force against a representative of the authorities, and insult.

It appears that on the same day the investigator lodged a motion, seeking the applicant ’ s detention pending trial.

On the same day the Kentron and Nork- Marash District Court of Yerevan (the District Court) refused to authorise the applicant ’ s detention and he was released.

On 6 July 2009 the applicant was admitted to hospital for in-patient care. Upon admission to hospital he complained of difficulty breathing through the left nostril. He submitted that this complication resulted from his having been beaten up ten days before, and that he had not received any treatment for his injuries.

The applicant was diagnosed with nasal septum deviation (nose fracture).

On 8 July 2009 the applicant underwent surgery on his nose under general anaesthetic.

On 13 July 2009 the applicant ’ s forensic medical examination was completed. The expert stated that in his opinion the applicant ’ s nose was deviated to the left side, there was a dark blue-purple ec c hymosis on the nose, and he had difficulty breathing on the left side. The expert further stated that there was a similar e c chymosis on the right lower eyelid, in the right axilla, right scapula area, upper edge of the right glenohumeral joint and that there were abrasions on the nasal dorsum, on the left side of the abdomen and on the back surface of the right elbow joint. The expert submitted, however, that he would be able to reach a conclusion only upon receipt of the results of additional medical examinations and radiography images.

On 15 July 2009 the applicant was discharged from hospital. According to the hospital discharge record, the applicant had come through the surgery without any complications and continued outpatient surveillance was advised.

On the same day the Criminal Court of Appeal quashed the decision of the District Court of 30 June 2009 upon appeal by the prosecutor and the applicant was placed in detention.

On 28 July 2009 the investigation of the criminal case was taken over by the Special Investigative Service (the SIS) as a result of the applicant ’ s lawyers ’ request to that effect lodged with the Prosecutor General.

On 22 August 2009 the applicant was released from detention by the decision of the investigator of the SIS.

On 25 August 2009 the investigator of the SIS questioned witness D.M., a police officer who had been on duty in the police department on the day of the events. He stated, in particular, that he had seen two arrested persons in the duty station of the department with torn clothes and red marks on their faces. He further stated that, in his presence, nobody had beaten those persons but both of them already had injuries and he did not know where and in what circumstances they had been inflicted. Also, the witness stated that he had not noticed any injuries on the police officers.

On 1 September 2009 S.H., another police officer, was questioned and stated, inter alia , that in the duty station of the department he had seen two persons with injuries to their faces, one of whom had a bleeding nose. Later he had learned that those persons had been arrested for having shown resistance to road traffic police officers. He further stated that the arrested persons were not ill-treated in his presence and that the police officers did not have any visible injuries.

On the same day, two other police officers, A.G. and S.E., were also questioned. Both of them stated that they had witnessed injuries on the applicant ’ s face and stated that his nose was bleeding.

On 28 September 2009 the forensic medical expert submitted a supplement to his opinion of 13 July 2009. It was stated in the opinion that, to that day, the results of the medical consultation had not yet been received. On the basis of the available information, the expert concluded that the injuries received by the applicant, namely abrasions on the nasal dorsum and on the left side of the abdomen, ecchymosis on the nasal dorsum, right lower eyelid, right axilla, right scapula area and upper edge of the right glenohumeral joint, had been inflicted by blunt, hard objects possibly for the time indicated, and did not cause light damage to health either taken together or separately. As for the nose fracture, the expert concluded that it was an old injury not linked to the events which had taken place on the day of the incident. However, the conclusions could change upon receipt of the results of consultations, if these disclosed new information.

On 2 February 2010 the SIS instituted criminal proceedings against officers A.C., H.J., K.V. and M.S. for exceeding official powers. These proceedings were joined to the existing criminal proceedings instituted against the applicant.

On 12 February 2010 the investigator decided to terminate the criminal proceedings instituted against the applicant and stop his prosecution for absence of corpus delicti .

On the same day the investigator made a decision to recognise the applicant as a victim in the proceedings instituted against the police officers. The relevant parts of this decision stated the following:

“In the course of the investigation of the criminal case it was found out that ... in the absence of grounds for using physical force in accordance with Article 29 of the Police Act, officers A.C., H.J., K.V. and M.S. had used force in the police department against those arrested, that is M.S. hit [the applicant] in the abdomen; thereafter A.C., H.J., K.V. and M.S. punched and kicked A.M. and [the applicant].

As a result of corporal injuries received because of the force used [the applicant] suffered light damage to health with short-term deterioration of health ...

During the scuffle, officers A.C. and H.J. received injuries not containing elements of light damage to health”

On the same day the applicant was questioned as a victim in the proceedings and stated, inter alia , that at the police department H.J. had sworn at him, to which he had replied, and road traffic police officers M.S., H.J., A.C. and K.V. had brutally beaten him, as a result of which his nose had been broken and he had received a number of corporal injuries.

On the same day A.M., who had also been granted the status of victim in the proceedings, was questioned and stated, inter alia, that he and the applicant had been beaten up at the police department. The next night they had been taken to hospital and an ambulance had been called for them later at the detention facility for holding arrested persons.

On 16 February 2010 A.C. and H.J. were charged with exceeding official powers with use of violence under Article 309 § 2 of the Criminal Code.

On 17 February 2010 K.V. and M.S. were also charged with the same offence.

On 26 February the investigator questioned witness R.G., the applicant ’ s friend, who stated that about three months before the incident he had introduced the applicant to road traffic police officer H.J., whom he knew. The witness further stated that on the day of the incident the applicant ’ s wife had called him in the morning to tell him that the applicant had been taken to the police station, where he went to find the applicant with numerous injuries, including a swollen nose. He also stated that the applicant had told him that one of the police officers who had beaten him was H.J., to whom he had introduced the applicant.

On 26 March 2010 the investigator decided not to bring charges against A.C. and H.J. for making false statements and fabrication of evidence. The decision stated that it had been discovered during the investigation that A.C. and H.J. had made false statements that the applicant and A.M. had used violence against them and that moreover they had produced false evidence, that is a damaged police uniform hat, in that respect. However, in view of the fact that A.C. and H.J. had done so to defend themselves, and because as accused in the proceedings they could not be subjected to criminal liability for their statements, they could not be prosecuted for their actions.

On 20 April 2010 the bill of indictment was finalised and the case was sent to the District Court for examination on the merits.

Before the District Court, the accused officers and the applicant gave different accounts of events. In essence, the applicant maintained that he had been ill-treated by them at the police department while officers A.C. and H.J. claimed that they had to apprehend the applicant and A.M. in the street since they were drunk and disobeyed their lawful orders. The officers denied having ill-treated the applicant after he was taken to the police station.

On 1 June 2011 the District Court found A.C., H.J., K.V. and M.S. not guilty of the offence charged and acquitted them. In doing so, the District Court found, inter alia , that the applicant and A.M. had made conflicting statements during the investigation and at trial concerning the circumstances in which they had met the officers in the street, the reasons for having an argument with them and the circumstances in which they were ill-treated. The District Court found it substantiated that the applicant had received his injuries on 27 June 2009, the day of the incident, and in connection with it. However, it concluded that there was insufficient evidence to substantiate specifically that the police officers had ill-treated the applicant at the police station. Also, the District Court stated that it had not been substantiated that the applicant ’ s nose had been broken as a result of the incident, and that according to the relevant medical documentation it was an old injury.

The applicant and the prosecutor lodged appeals against this judgment.

In his appeal the prosecutor argued, in particular, that the discrepancies pointed out in the judgment of the District Court between the statements of the applicant, A.M. and other witnesses had no connection whatsoever with the charges brought against the accused. The fact that the applicant was ill ‑ treated by police officers had been substantiated by his own statements made from the very beginning of the investigation and by the existence of his bodily injuries recorded by the medical staff of the hospital and the administration of the detention facility. Furthermore, the prosecutor argued that according to the evidence, prior to being taken to the police department the applicant had had no injuries, while afterwards he had sustained such, which fact had been confirmed by forensic medical examination.

In his appeal the applicant claimed that, inter alia , the District Court had acquitted the accused, despite the ample evidence that he had been ill ‑ treated by them. He further argued that the investigation into his allegations of ill-treatment had not been prompt and effective. In particular, instead of starting an investigation to find those responsible for his injuries, the police had instituted proceedings against him in order to cover up the illegal actions of the police officers. Only after the case was handed over to the SIS had the charges against him been dropped and an investigation initiated to find out what had actually happened.

On 10 August 2011 the Criminal Court of Appeal rejected the appeals lodged by the prosecutor and the applicant and upheld the District Court ’ s judgment. In doing so, the Court of Appeal found it established and supported by relevant evidence that the applicant had sustained injuries on 27 June 2009, the day of the incident, at around 3.30 to 4 a.m. However, like the District Court, the Court of Appeal went on to conclude that there was insufficient evidence to substantiate that the applicant had received his injuries as a result of being beaten up and ill-treated by the accused police officers while at the police department. Also, the Court of Appeal stated that the allegation that the applicant ’ s nose had been injured as a result of the alleged ill-treatment was not supported by the materials of the case file. The decision of the Court of Appeal referred, inter alia , to the fact that A.C. and H.J. had also sustained injuries on that day and stated that the investigating authority had failed to find out in what circumstances the applicant, as well as A.C. and H.J., had received injuries and under what circumstances. Furthermore, the Court of Appeal agreed with the District Court in finding that the statements of the applicant and A.M. concerning the events and, in particular, the circumstances in which the applicant and A.M. had met A.C. and H.J., the reasons for their argument and the details of their alleged ill ‑ treatment, conflicted. Like the District Court, it considered those statements to be unreliable as opposed to the statements of A.C., H.J., K.V. and M.S. who had constantly denied having ill-treated the applicant.

The applicant lodged an appeal on points of law against the decision of the Court of Appeal, raising similar arguments to those presented before. The prosecutor also lodged an appeal on points of law.

On 6 October 2011 the Court of Cassation declared the appeals lodged by the applicant and the prosecutor inadmissible for lack of merit.

B. Relevant domestic law

1. The Code of Criminal Procedure (in force from 12 January 1999)

According to Article 190 § 6, the investigators of the special investigative service conduct the investigation into crimes committed by, or with the complicity of, persons performing public special service in relation to their official capacity. If necessary, the General Prosecutor may take from other investigative bodies and hand over to the investigators of the special investigative service those criminal cases which concern crimes committed by, or with the complicity of, public officials listed in this article or in which those persons have been recognised as victims.

2. The Criminal Code (in force since 1 August 2003)

According to Article 309 § 2, actions intentionally committed by an official which have obviously exceeded his official capacity and have caused significant damage to the rights and lawful interests of individuals, organisations , society or the state, committed with use of violence, weapons or special measures, shall be punishable by two to six years of imprisonment with deprivation of the right to hold certain posts or practise certain activities for up to three years.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was ill-treated while in police custody and did not receive adequate medical assistance . He further complains under the same provision that the authorities failed to conduct an effective investigation into his allegations of ill-treatment, as a result of which those responsible were not punished.

QUESTIONS TO THE PARTIES

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

2. Having regard to the procedural protection from inhuman or degrading treatment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?