CASE OF MKHITARYAN v. ARMENIA
Remainder inadmissible;Violation of Art. 3;Violation of Art. 6-1 and 6-3-b;Violation of P7-2;Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
4. The applicant was born in 1965 and lives in the village of Karakert, Armenia. 5. The applicant has been a member of the Armenian Communist Party since 1998. 6. In February and March 2003 a presidential election took place in Armenia. Following the first and second rounds of the election, a series of protest rallies were organised in Yerevan by the opposition parties, alleging irregularities. 7. On 21 March 2003 the applicant participated in a rally in Yerevan which was part of a nationwide public demonstration. Following the demonstration the applicant returned to his home in the village of Karakert. 8. On 22 March 2003 two police officers from the Baghramyan Police Department (ՀՀ ոստիկանության Բաղրամյանի բաժին) visited the applicant at his home. 9. The applicant alleged that this visit had taken place at 7 a.m. The police officers told him that he was required to accompany them to the police station as the chief wished to see him regarding matters unrelated to the demonstration the day before. 10. The Government contested this allegation and submitted that the police officers had visited the applicant at 9 a.m. because they suspected him of having participated in an unauthorised demonstration the previous day. 11. It appears from the materials of the case that the applicant was asked by the police officers to accompany them to the police station. He showed resistance but was nevertheless taken to the police station. 12. According to the Government, at the police station the arresting police officers drew up a record of the applicant’s arrest (արձանագրությաւն բերման ենթարկելու մասին) in which the reasons for his arrest were indicated. This record was allegedly signed by the applicant. 13. In his application form, the applicant alleged that at the police station he had discovered that the real reason for his detention was his participation in the demonstration the previous day. Contrary to what he had been told, the chief of police did not want to see him. His requests to have a lawyer were ignored. In a later submission, the applicant alleged that the chief of police had in fact met him and told him that he would be detained since there were instructions from the Minister of the Interior to arrest temporarily all political activists. 14. According to a written statement (արձանագրություն բացատրություն վերցնելու մասին) made by the applicant at the police station, on 22 March 2003 he had participated in a rally in Yerevan and the same evening he had returned home to his village. The next morning at 9 a.m. the police officers had visited him at home and asked him to accompany them to the police station. An argument had erupted, during which the applicant admitted having disobeyed the lawful orders of the police officers. The applicant had regretted his actions, asked for forgiveness and promised that it would never happen again. 15. The applicant alleged that he had made the above statement since the police officers had led him to believe that his arrest was not in relation to serious matters and that he would not face any serious consequences. 16. The Government contested the above allegations and submitted that the applicant had made the above statement voluntarily. The police officers had informed the applicant of his procedural rights and had advised him to avail himself of his right to have a lawyer but he had not wished to do so. 17. The police officers drew up a record of an administrative offence (վարչական իրավախախտման արձանագրություն) in which it was stated that the applicant “had used foul language and had maliciously disobeyed the lawful orders of the police officers”. The applicant was charged under Article 182 of the Code of Administrative Offences (Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք – “the CAO”). The applicant’s signature did not appear on this record. 18. About two hours after his arrest the applicant was brought before Judge S. of the Armavir Regional Court (Արմավիրի մարզի առաջին ատյանի դատարան). 19. Judge S., after a brief hearing, sentenced the applicant under Article 182 of the CAO to ten days of administrative detention. The judge’s entire finding amounted to the following sentence: “On 22 March 2003 at 9 a.m. in the village of Karakert of the Armavir Region [the applicant] maliciously refused to obey the lawful order of the officers of the Baghramyan Police Department acting in pursuance of their duties of preserving public order; in particular, while being taken to the police station, he disobeyed the police officers, used foul language and prevented them from performing their duty.” 20. According to the record of the court hearing, the hearing was held in public with the participation of the judge, a clerk and the applicant. The judge informed the applicant of his right to challenge the judge and the clerk and to have a lawyer. The applicant did not wish to lodge any challenges or to have a lawyer. The judge then proceeded with examination of evidence. The applicant submitted that the police officers of the Armavir Police Department had visited him at home at 9 a.m. that day and asked him to come to the police station. He had tried to find out why he was being taken to the police station but it turned out that he had used foul language. His attempts to find out the reasons remained unanswered. Thereafter, the judge examined the materials prepared by the police. No further evidence was produced or requests made by the applicant. The judge departed to the deliberation room, after which he returned and announced the decision. 21. According to the applicant, the hearing was conducted in the judge’s office, without examination of any witnesses, and lasted only a few minutes. No charges were presented prior to the hearing. The judge explained that he was in no position to help the applicant or to make any decision other than that which he had made as he was acting on instructions from higher authorities. He also explained that it was not possible to call a lawyer because he had many cases to examine and could not afford to spend more time on the applicant’s case. 22. The applicant was taken to the Armavir Temporary Detention Facility at the Armavir Regional Department of Internal Affairs to serve his sentence. 23. The applicant alleged that, at the detention facility, he had been asked to sign the above record of an administrative offence without reading it, which he refused to do. 24. The Government contested this allegation and claimed that the applicant had actually signed this document while in police custody prior to the court hearing. 25. The applicant alleged, and the Government did not dispute, that at the Armavir Temporary Detention Facility he had been placed with nine other people in a cell measuring 7.5 sq. m. There were no beds in the cell so the detainees had to sleep on the floor. They had no bed linen, blankets or pillows. 26. On 24 March 2003 the applicant and three others were transferred to another cell, as a result of constant oral complaints. The applicant alleged, and the Government did not dispute, that the new cell also measured 7.5 sq. m and was designed for two persons. There were only two metal beds in the cell, each 40-50 cm wide, so the applicant had to share a bed with another detainee. There was no bed linen, blankets or pillows. Two days later, after repeated oral complaints, the applicant was given bedding which was in a very dirty condition. The water provided to the detainees was of such bad quality that he refused to drink it. He had to acquire mineral water from the outside, using the money that he had, with the help of the staff of the detention facility. Food was provided only once a day and it was always buckwheat of poor quality without salt. 27. The applicant further alleged – but the Government disputed – that while in detention he had developed an allergy resulting in a big swelling on his face which had continued to recur from time to time following his release. His health deteriorated as a result of his detention. 28. The applicant finally alleged that, during the entire stay at the detention facility, he had been prevented from having any contact with his family members and had not been permitted to receive newspapers or magazines. 29. On 31 March 2003 the applicant was released from detention after fully serving his sentence. 30. On 23 September 2003 the applicant was diagnosed with a chronic infection of unknown origin. 31. In May 2004 the applicant underwent a medical examination and was diagnosed with suspected tuberculosis of the left lung. According to a medical certificate of 9 August 2005, the applicant was suffering from liver problems. 32. For a summary of the relevant provisions of the CAO see the judgment in the case of Galstyan v. Armenia (no. 26986/03, § 26, 15 November 2007). The provisions of the CAO which were not cited in the above judgment, as in force at the material time, provide: “Maliciously disobeying a lawful order or demand of a police officer or a member of the voluntary police made in the performance of his duties of preserving public order shall result in the imposition of a fine of between 50% and double the fixed minimum wage, or of correctional labour for between one and two months with the ’s personality, the application of these measures would be deemed insufficient, of administrative detention not exceeding 15 days.” 33. The relevant provisions of the Law, as in force at the material time, read as follows: “An arrested or detained person is entitled: ... (3) to lodge, himself or through his lawyer or lawful representative, applications and complaints alleging a violation of his rights and freedoms with the administration of the facility for arrested or detained persons, their superior authorities, a court, a prosecutor’s office, the Ombudsman, the bodies of public administration and local self-governance, non-governmental unions and [political] parties, mass media and international institutions and organisations protecting human rights and freedoms.” “...The living space afforded to arrested and detained persons must comply with the building and sanitary-hygienic norms established for general living spaces. The area of the living space afforded to arrested and detained persons shall not be less than 2.5 sq. m for each individual. Arrested and detained persons must be provided with individual bedding and bed linen.” 34. The relevant provisions of the Decree read as follows: “Special sections of the [facilities for holding arrested persons] shall be reserved for persons who have been subjected to administrative detention for periods prescribed by [the CAO]...” 35. The relevant parts of the Report read as follows: “4. Conditions of detention a. introduction 43. At the outset, the CPT wishes to highlight the criteria which it applies when assessing police detention facilities. All police cells should be clean, of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (for example, a chair or bench) and persons obliged to stay overnight in custody should be provided with a clean mattress and clean blankets. Persons in custody should be able to satisfy the needs of nature when necessary, in clean and decent conditions, and be offered adequate washing facilities. They should have ready access to drinking water and be given food at appropriate times, including at least one full meal (that is, something more substantial than a sandwich) every day. Persons held in custody for 24 hours or more should, as far as possible, be offered one hour of outdoor exercise every day. b. temporary detention centres 44. During the visit, the CPT’s delegation visited temporary detention centres in Yerevan, Akhurian, Hrazdan, Maralik and Sevan. Establishments of this type are used to hold two categories of detainees: criminal suspects and persons under administrative arrest. Conditions of detention in the temporary detention centres visited varied from acceptable (at the Hrazdan Department of Internal Affairs) to poor (e.g. at the Akhurian and Sevan Departments of Internal Affairs). 45. As regards occupancy levels, a consultation of registers and the number of sleeping places per cell suggested that the minimum standard of 2.5 m² of living space per person, as stipulated by the Law on [Conditions for Holding Arrested and Detained Persons], was respected as concerns criminal suspects. However, the CPT must add that this minimum standard is too low. As concerns the cells for administrative detainees, the information gathered during the visit indicated that conditions could become extremely cramped, e.g. up to 6 detainees in a cell of 9 m² in Hrazdan and Sevan. All the centres visited presented deficiencies concerning the in-cell lighting and ventilation. With the exception of the Hrazdan centre, access to natural light was poor (small windows, sometimes - as in Yerevan - covered by metal shutters) or inexistent (e.g. in Akhurian). Artificial lighting was invariably dim, with some cells (e.g. in Yerevan, Akhurian and Maralik) submerged in near darkness. As to ventilation, it left something to be desired at Yerevan and Sevan. As to the state of repair and hygiene of the detention areas, it ranged from quite acceptable at the Hrazdan Department of Internal Affairs to poor at the Sevan establishment. Cells at the Temporary detention centre in Yerevan were in a reasonably good state of repair; however, their level of cleanliness left something to be desired. Detention areas in Akhurian and Maralik were dilapidated but clean. 46. Cells were furnished with beds or wooden sleeping platforms. The delegation noted that mattresses, sheets, pillows and blankets were available for criminal suspects at all the temporary detention centres visited; however, this was not the case for administrative detainees. The delegation did not hear any complaints from persons who were - or had recently been - detained at the centres visited as regards access to a toilet. However, with the notable exception of the Hrazdan Department of Internal Affairs, the communal toilet and washing facilities were dilapidated and dirty. The centres in Yerevan and Hrazdan possessed shower facilities, which could apparently be used by newly-arrived detainees (upon recommendation of a feldsher/doctor) and by those administrative detainees who stayed in the respective establishments for longer than a week. In both centres, the shower facilities were in an acceptable state of repair and cleanliness, and hot water was available. However, the only personal hygiene item that was distributed to detainees was a small piece of soap. 47. According to information provided by police officers in the majority of the temporary detention centres visited, detainees were offered food three times per day, including one hot meal. However, this was not the case at the Sevan Department of Internal Affairs, where food was only delivered once per day, reportedly due to the limited budget set aside for this purpose (320 AMD - i.e. some 50 euro cents - per detainee per day). In this situation, the provision of food was to a large extent ensured by detainees’ families. Detained persons without family contacts had to rely on the generosity of other detainees or individual police officers for food. 48. All the temporary detention centres visited possessed outdoor exercise areas, where detainees were apparently allowed to take exercise for one hour per day (in the case of women and juveniles - for two hours per day). However, at the Temporary Detention Centre of the City Department of Internal Affairs in Yerevan, the delegation was informed that detainees could be deprived of outdoor exercise as a form of punishment for violation of the centre’s internal regulations. 49. The CPT recommends that the Armenian authorities take steps at temporary detention centres to: - ensure that all detainees are offered adequate living space; the objective should be at least 4 m² per person; - provide adequate in-cell lighting (including access to natural light) and ventilation; - maintain the cells and common sanitary facilities in a satisfactory state of repair and hygiene; - ensure that all detainees (including those held for administrative violations) are offered a mattress and blankets at night; - ensure that administrative detainees are able to take a hot shower at least once a week during their period of detention; - ensure that all detainees are offered food - sufficient in quantity and quality - at normal meal times; - put an end to deprivation of outdoor exercise as a disciplinary punishment.” 36. The relevant part of the Report reads as follows: “4. Conditions of detention a. Temporary detention centre of the Department of Internal Affairs of the City of Yerevan 20. Conditions of detention in this facility remained basically the same as those observed during the 2002 visit, i.e. poor. One positive change was that persons under administrative arrest were now provided with bedding (pursuant to Order No. 8 of the Head of the National Police of 20 August 2003). Further, the delegation was informed that the food entitlement for detainees had been increased by Government decision of May 2003. Otherwise, no refurbishment or major repairs had taken place since the previous visit. Consequently, the CPT reiterates the recommendations made in paragraph 49 of the report on the 2002 visit, in particular as regards living space, in-cell lighting, ventilation, state of repair and hygiene.” 37. The relevant parts of the Report read as follows: “4. Conditions of detention a. police holding areas 28. At the beginning of the 2006 visit, the delegation was informed that, pursuant to Order NK–328–NG of the President of the Republic of Armenia, dated 28 December 2004, a large-scale refurbishment programme had been initiated in all police holding areas. The CPT welcomes this. It should also be noted that a recent amendment to the [Law on Conditions for Holding Arrested and Detained Persons] increased the official standard of living space per detained person in police holding areas to 4 m². This can be considered as acceptable when applied to multi-occupancy cells; however, 4 m² is not an adequate size for a single occupancy cell. 29. During the visit, the delegation could observe the impact of the above-mentioned programme. Some of the police holding areas (e.g. in Charentsavan, Gavar and Hrazdan) were still undergoing refurbishment and were to reopen shortly. As regards the already refurbished holding areas, conditions in them were overall of a high standard.”