Published on 26 September 2022

FOURTH SECTION

Applications nos. 9797/16 and 32495/19 Artur DASHYAN against Armenia lodged on 2 February 2016 and 14 May 2019 respectively communicated on 7 September 2022

SUBJECT MATTER OF THE CASE

On 16 November 2013 the applicant, a conscript serving in the territory of the unrecognised Nagorno Karabakh Republic, was assaulted by fellow servicemen while on watch at a military outpost.

On 26 November 2013 a grenade exploded in the dugout where the applicant and his co-servicemen were staying. On the same day criminal case no. 91265313 was opened and the applicant was questioned as a witness in the Second Garrison Investigative Department of the Investigative Service, by the chief of the department, A.H., in connection with the incident, during which he confessed to having triggered the explosion. The applicant was subjected to a forensic medical examination which revealed a frontal bone fracture and a minor shrapnel wound to his foot. The applicant stated to the medical expert that he had sustained his frontal injury as a result of the assault on 16 November 2013. On 27 November 2013 he reiterated his confession when questioned as a suspect in relation to the explosion and was subsequently charged with attempted murder. On 7 December 2013 the applicant retracted his confession and denied his involvement in the explosion.

It appears that on 7 and 19 August 2014 the applicant’s father and the applicant, respectively, filed crime reports alleging, inter alia , that during his interview of 26 November 2013 the applicant had been coerced to confess by A.H., who had slapped him and threatened “to seat him on a bottle”. On 19 August 2014 a criminal case was opened on account of the applicant’s alleged ill-treatment and A.H. was questioned in that connection. However, no charges were brought against him and on 4 September 2014 the investigator decided not to prosecute the alleged perpetrator and to discontinue the criminal case due to lack of corpus delicti.

On 21 October 2014 a new criminal case, no. 90154014, was opened because the person responsible for the applicant’s frontal injury had not been identified. On 23 October 2014 the applicant was interviewed in connection with that case and claimed that A.H. was in fact responsible for his frontal injury and not his co-servicemen. On 30 January 2015 he filed a new crime report alleging, that during his interrogation of 26 November 2013, A.H. had, inter alia , administered blows to his head and face with a belt, causing the injury to his forehead and forcing him to confess. The applicant explained that he had previously claimed to have sustained the injury by his co-servicemen in order to avoid retaliation by A.H. He did not inform the medical expert about the actual circumstances of his injury because he did not trust him and, besides, two military police officers were present during his medical examination and could have reported his statement to A.H.

On 13 February 2015 the investigator again decided not to prosecute A.H. The applicant appealed against that decision, complaining about the adequacy of investigation. His appeals were dismissed by the domestic courts and the final decision was served on him on 4 September 2015.

On 8 December 2016 the Syunik Regional Court found the applicant guilty of attempted murder and sentenced him to 13 years’ imprisonment. In its judgment, the Regional Court relied, inter alia , on the applicant’s confession of 27 November 2013, whereas the confession of 26 November 2013 was not admitted because, while actually being a suspect, the applicant had been interviewed as a witness, thereby breaching his defence rights. In the same judgment the Regional Court also convicted the applicant’s co-servicemen, who had been charged within the scope of criminal case no. 91265313, of assaulting the applicant. This judgment was upheld by the Court of Appeal and the final decision, given by the Court of Cassation, was served on the applicant on 14 November 2018.

The applicant complains under Article 3 about his alleged ill-treatment and the authorities’ alleged failure to carry out an effective investigation into that incident (application no. 9797/16), and under Article 6 of the unfairness of the criminal proceedings conducted against him owing to the domestic courts’ admission of evidence allegedly obtained through ill-treatment (application no. 32495/19).

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to ill-treatment during his interview of 26 November 2013, in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from torture or inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV; Bouyid v. Belgium [GC], no. 23380/09, §§ 114-123, ECHR 2015), 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 the following documents:

(a) the records of the applicant’s interviews of 26 and 27 November and 7 December 2013;

(b) the investigator’s decisions of 26 November 2013 instituting criminal case no. 91265313 and ordering the applicant’s forensic medical examination;

(c) legible copies of the forensic medical examination report no. 648 and the applicant’s interview record of 30 January 2015;

(d) the applicant’s father’s and the applicant’s crime reports of 7 August and 19 August 2014, as well as the records of their respective interviews conducted following those reports.

3. Has there been a violation of the applicant’s right to a fair trial, as guaranteed by Article 6 § 1 of the Convention, on account of the use by the trial court of his confession allegedly obtained in breach of Article 3 of the Convention (see Gäfgen v. Germany [GC], no. 22978/05, § 166, ECHR 2010)?