CASE OF DAVTYAN v. ARMENIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The applicant was born in 1962 and lives in Yerevan. 6. From 1997 to 1999 the applicant worked as the executive director of the Credit Service Bank (hereafter, the Bank). 7. On 19 March 2002 the prosecutor decided to institute criminal proceedings under paragraph 2 of Article 182 of the former Criminal Code (hereafter, the former CC) on account of abuse of official capacity by the former management of the Bank through embezzlement of funds entrusted to it in June 2001 by another company. It appears that at the material time the applicant worked as an advisor to the chamber of control of the Armenian parliament. 8. On 31 March 2003 the applicant was arrested on suspicion of largescale embezzlement, abuse of official capacity and official falsification under paragraph 4 of Article 90, paragraph 1 of Article 182 and Article 187 of the former CC. 9. On 1 April 2003 the applicant was formally charged under paragraph 4 of Article 90, paragraph 1 of Article 182 and Article 187 of the former CC with embezzlement through abuse of his official capacity and official falsification through preparation and use of false accounting documents during his office as the executive director of the Bank from 1997 to 1999, causing damage to the Bank and its clients. It appears that ten other persons were also charged with involvement in these or related crimes. 10. On the same date the Kentron and Nork-Marash District Court of Yerevan granted the investigator’s application to have the applicant placed in pre-trial detention for a period of two months. The applicant alleged that during the hearing his lawyer had requested the court not to impose detention as a preventive measure, due to the applicant’s poor health. The applicant’s detention was subsequently extended by the District Court on two occasions until 31 August 2003. 11. On 2 April 2003 a group of nine members of the Armenian Parliament applied to the Prosecutor General requesting that the applicant’s detention be replaced by another preventive measure in view of, inter alia, the applicant’s poor health. 12. On 10 April 2003 the General Prosecutor’s Office addressed a letter to the Head of Staff of the Parliament, stating that the applicant’s release was not possible since he had committed a grave crime and had refused to return embezzled funds. 13. On 1 August 2003 a new Criminal Code (hereafter, the new CC) entered into force in Armenia. 14. On 11 August 2003 the charges against the applicant were adapted to the new CC and he was formally charged under Article 179 § 3 (1), Article 214 § 1 and Article 325 § 2 of the new CC. 15. On 14 November 2005 the Kentron and Nork-Marash District Court of Yerevan found the applicant guilty under Article 179 § 3 (1) and Article 325 § 1 of the new CC. In particular, the applicant was found to have executed a number of financial operations involving bonds and fixed assets, the proceeds of which he embezzled. The District Court sentenced the applicant to six years’ imprisonment without confiscation of property under Article 179 § 3 (1) and terminated the proceedings under Article 325 § 1 by applying a statute of limitations with reference to Article 35 § 1 (6) of the Code of Criminal Procedure (CCP). 16. On 29 November 2005 the applicant lodged an appeal. 17. On 10 April 2006 the Criminal and Military Court of Appeal decided to uphold the judgment of the District Court. The Court of Appeal found, inter alia, that: “The first instance court, considering [the applicant’s] ... guilt in preparing and using false documents to be substantiated, rightly terminated the proceedings under Article 325 § 1 of [the CC] on the ground envisaged by Article 35 [§ 1] (6) of [the CCP].” 18. On 20 April 2006 the applicant lodged an appeal on points of law. In his appeal he argued, inter alia, that Article 325 of the new CC should not have been applied to his case because documents of commercial organisations could not be considered “official”. He should therefore have been penalised under Article 214 of the new CC instead. 19. On 1 June 2006 the Court of Cassation dismissed the applicant’s appeal. The Court of Cassation found, inter alia, that: “Documents to which public authorities give legal significance are considered official. Official documents may be issued both by public authorities, their officials and bodies of local self-government, and by legal entities, commercial and other types of organisations. Such documents as credit or other financial documents drawn up by commercial banks can also be considered as [official documents], since they also have legal significance...” 20. On 3 April 2003 the applicant was transferred to Nubarashen detention facility. 21. On 4 April 2003 the applicant was examined at the facility’s medical unit and diagnosed as having a throat tumour. He also complained of a sore throat, loss of voice and chest pain. 22. On 28 April 2003 the applicant was examined by an external doctor who recommended that the applicant be examined by an otolaryngology specialist. 23. On 29 April 2003 the applicant was examined by an otolaryngology specialist who confirmed the diagnosis of a throat tumour. In order to determine the nature of the tumour, the doctor recommended: (a) a biopsy to be carried out; (b) computer tomography of the throat; and (c) further examination and treatment. 24. On 8 May 2003 the applicant, apparently in reaction to the medication that he was taking, showed symptoms of anaphylactic shock such as urticaria, coldness of extremities, severe shivering and a drop in blood pressure to 20/40 followed by loss of consciousness. First aid was provided by the detention facility’s medical unit and an ambulance was called. It appears that thereafter the applicant continued to experience symptoms of allergy such as face and body swelling, itching and blood pressure fluctuations. 25. On 20 May 2003 an external allergy specialist was called who diagnosed the applicant as suffering from Quincke’s oedema, pollinosis and an atypical form of bronchial asthma. 26. On 13 June 2003 the applicant’s condition drastically deteriorated. He experienced laboured breathing, facial swelling, drop in blood pressure to 50/20, swelling of extremities and Quincke’s oedema. First aid was provided. 27. On 10 July 2003 the applicant was examined by a psychiatrist. The applicant complained of low spirits, irritability, insomnia and tachycardia, as well as recurring headaches, chest pains and high blood pressure due to frequent emotional stress. From that day on the applicant remained under the psychiatrist’s regular supervision, during which it was found that the applicant was suffering from depression, fits of anger, irritability, insomnia, headaches, chest pains, tension and anxiety. 28. On 5 November 2003 the applicant was examined by prison doctor N., who noted his complaints of haemoptysis, hoarseness and a weakened swallowing reflex. The applicant was also observed to suffer increased pallor and significant weight loss. It appears that these symptoms continued from that day on. 29. On 10 January 2004 the applicant was examined by prison doctor N., who noted his complaints of skin rash and itching and shortness of breath, which were apparently caused by emotional stress. Medication was prescribed. 30. On 20 March 2004 the applicant complained to prison doctor N. of asthenia, hoarseness and a cough which turned into asphyxia. 31. The applicant alleges that on or around 27 April 2004 he was informed that he was going to be transferred from the detention facility’s medical unit to an ordinary cell. The applicant refused to be transferred, referring to his poor health, so he was moved to a punishment cell for three days. On the first night in the punishment cell he was not given blankets or bed linen. On the second night the applicant’s health deteriorated and he experienced laboured breathing, asphyxia attacks and high blood pressure. The applicant asked the guard to call the feldsher (doctor’s assistant). When the feldsher arrived, he was unable to enter the punishment cell because it was locked and the guard did not have the key. It took half an hour to find the key after the feldsher protested. On the morning of the third day the applicant was transferred back to the medical unit. 32. On 20 May 2004 the applicant’s health deteriorated. According to his medical card, his allergy worsened at night and he fell into a collaptoid state. The applicant complained of a cough, itchy skin and nose, shortness of breath, asphyxia attacks, and swelling of the face and lips. 33. On 17 July 2004 a cardiologist was invited to examine the applicant, who complained of severe chest pain, headache and shortness of breath. His blood pressure rose to 180/100. 34. It appears that from August 2004 to January 2005 the applicant continued to show all of the above symptoms at regular medical checkups. 35. On 14 January and 23 February 2005 an ambulance was called as the applicant showed symptoms of stenocardia and hypertension. His blood pressure rose to 160/100. 36. On 27 January 2005 the applicant was examined by a specialist and was advised, inter alia, to undergo an endoscopic examination of the throat and biopsy of the tumour. 37. By a letter of 4 February 2005 the acting chief of Nubarashen detention facility and the head of its medical unit informed the District Court that the applicant had made numerous complaints about his health, including asthenia, loss of weight, voice hoarsening and haemoptysis. After an examination by specialists of the Ministry of Health, the applicant was diagnosed as having a throat tumour. The applicant therefore needed to be examined in a specialised clinic of the Ministry of Health. 38. On an unspecified date in April 2005 the applicant was examined by an external doctor who noted that, in order to reach a final diagnosis concerning the applicant’s throat tumour, he needed to undergo computer tomography or a magnetic resonance imaging (MRI) scan. 39. On 8 April 2005 prison doctor N. informed the District Court that the applicant was unable to participate in the hearing to take place on that date because he was suffering from Quincke’s oedema. 40. The Government alleged, which the applicant disputed, that in April 2005 the doctor suggested that the applicant be transferred to a specialised establishment for treatment, but the applicant refused. 41. On an unspecified date in May 2005 the applicant experienced a rash, skin and nose itch, cough and laboured breathing followed by asphyxia and loss of consciousness. His face and lips were swollen. An ambulance was called and first aid was provided. The diagnosis of Quincke’s oedema, pollinosis and an atypical form of bronchial asthma was confirmed. 42. On 16 May 2005 the applicant was provided with first aid after showing the following symptoms: severe headaches, dizziness, chest pain, shortness of breath and a disruption in coordination of movements. He further experienced persistent dizziness, facial swelling and excessive sweating. The applicant was diagnosed with hypertensive crisis and an acute disturbance of cerebral blood circulation of the vertebrobasilar area. 43. By a letter of 9 June 2005 the chief of Nubarashen detention facility and the head of its medical unit informed the District Court that the applicant had recently been showing symptoms of hoarseness, haemoptysis and asthenia, and that it was impossible to conduct a proper examination at the detention facility’s medical unit. They requested the court to allow the applicant’s transfer to the Armenia Medical Centre in order to carry out a specialised examination, to clarify the diagnosis and to decide on further treatment. The District Court granted this permission. 44. On 10 June 2005 the applicant was examined by an otolaryngologist at the Armenia Medical Centre. A tumour on the vocal cords was diagnosed and he was advised to undergo surgical treatment and a biopsy of the tumour was recommended. 45. By a letter of 20 December 2005 the acting chief of Nubarashen detention facility and the head of its medical unit informed the applicant’s lawyer that the applicant had been admitted for in-patient treatment at the detention facility’s medical unit with the following complaints: laboured breathing, asphyxia, haemoptysis, voice hoarsening, headache, dizziness and frequent loss of consciousness. Following a number of examinations the applicant was diagnosed as suffering from a throat tumour of unknown nature, allergy of unknown aetiology, Quincke’s oedema and fits of anaphylactic shock. According to the conclusions reached by the specialists of the Ministry of Health, the applicant needed to undergo specialised instrumental and histological examinations and surgery. Recently the fits of anaphylactic shock and loss of consciousness had become more frequent. The applicant was under permanent medical surveillance and was receiving symptomatic treatment. 46. By a letter of 22 December 2005 the acting chief of Nubarashen detention facility and the head of its medical unit informed the applicant’s lawyer that it was not possible to carry out the required examinations and surgery for the applicant at the detention facility’s medical unit. 47. On 23 December 2005 the applicant’s lawyer filed an application with the Court of Appeal, requesting that the applicant be released for health reasons. Copies of the letters of 20 and 22 December 2005 were attached to this application. The applicant alleges that the Court of Appeal included this application in the case file without ruling on it. 48. At the hearing of 26 January 2006 the applicant’s lawyer filed another application similar to that of 23 December 2005. She further requested the court to summon the applicant’s prison doctor. A copy of the applicant’s medical record was attached to this application. It appears that the Court of Appeal decided to postpone the examination of this application in order to establish “certain essential circumstances”. The court further requested the applicant’s lawyer to submit a certified copy of the applicant’s medical record. 49. At the hearing of 27 January 2006 the applicant announced that he was unable to testify because of his inability to speak and that he would testify in writing. He requested the court to release him because of his poor health. It appears that the Court of Appeal again decided to postpone the examination of this request in order to establish certain essential circumstances. 50. At the hearing of 31 January 2006 prison doctor N. was examined in court. The doctor, at the outset, presented details of the diseases suffered by the applicant and the dynamics of their development. He further submitted that all possible treatment had been prescribed but, despite occasional improvements, the applicant’s condition continued to deteriorate. The antiallergy treatment had yielded no results. The applicant had been examined on numerous occasions by otolaryngology and oncology specialists who had unanimously concluded that the applicant needed examination and treatment in a specialised clinic. There was no possibility to carry out such treatment at the detention facility’s medical unit, so the applicant received symptomatic treatment. Shortness of breath and asphyxia attacks had become more frequent in December 2005 and January 2006 and were accompanied by coughing and haemoptysis leading to loss of consciousness. The applicant had been resuscitated on several occasions but the growth of the tumour could result in respiratory obstruction causing the applicant’s death, which could occur in a matter of 3 to 4 minutes. Doctor N. recommended the applicant’s immediate transfer to a specialised clinic in order to eliminate the risk of death. He further stated that not only Nubarashen detention facility’s medical unit but the entire penitentiary system lacked the necessary specialists and equipment to carry out a fullscale examination and treatment of the applicant. 51. At the same hearing the applicant’s lawyer filed an application requesting the applicant’s release, which was dismissed by the Court of Appeal. She further requested the court to examine the previously filed applications concerning the applicant’s state of health. It appears that the Court of Appeal again decided to postpone the examination of these applications, stating that the information at its disposal was not sufficient to resolve the question of detention. 52. It appears that during that period the applicant refused to be transferred to a specialised clinic. He alleged that his refusal was motivated by the fact that no assurances had been given to him that the required surgery would actually be performed, since another transfer to an outside clinic without such surgery would have been useless and would only have aggravated his condition. 53. On 6 February 2006 the applicant was transferred to the otolaryngology department of the Armenia Medical Centre because of a drastic deterioration in his health. The applicant underwent another examination and was diagnosed with chronic laryngotracheitis and malignisation of the tumour. An urgent in-patient examination and surgical treatment in a specialised clinic were recommended. 54. At the hearing of 8 February 2006 the applicant was unable to finish his testimony because of his inability to speak and the hearing was adjourned. 55. By a letter of 9 February 2006 the chief of Nubarashen detention facility informed the head of the Criminal Executive Department of the Ministry of Justice that, based on the results of the relevant medical examinations, the conclusions of specialists and the progressive nature of the applicant’s disease, he needed to undergo urgent surgery in a specialised clinic, as the tumour was growing and could cause respiratory obstruction. 56. At the hearing of 15 February 2006 the applicant’s lawyer filed another application with the Court of Appeal seeking to have the applicant released because of his poor health. A certified copy of the applicant’s medical record and a copy of the results of the examination of 6 February 2006 were attached to this application. The Court of Appeal dismissed this application on the ground that the examination of the case was in its final stage and there were no relevant documents, such as an expert opinion, justifying the need to carry out the applicant’s urgent examination and treatment in a specialised clinic. 57. By a letter of 27 February 2006 the chief of Nubarashen detention facility and the head of its medical unit informed the Court of Appeal that the applicant had been examined by specialists at the Armenia Medical Centre and it had been established that his throat tumour had grown and that he was in need of urgent surgery. They requested the applicant’s transfer to the Medical Centre for surgery. The Court of Appeal granted this request. 58. On 2 March 2006 the head of the detention facility’s medical unit informed the Court of Appeal that the applicant was unable to participate in the hearing to take place on that date because he was suffering from fits of asphyxia. 59. On 4 March 2006 the applicant was transferred to the Armenia Medical Centre. He was diagnosed as having “a vocal cord tumour (C-R?), first degree stenosis and, as accompanying pathologies, nasal septum deviation and chronic hypertrophic rhinitis”. The applicant was advised to undergo two operations. The first operation was scheduled for 14 March 2006 but was postponed upon the applicant’s request, as he wished to participate in a court hearing in his case. 60. On 18 March 2006 the applicant was examined by a psychiatrist who diagnosed him as suffering from reactive depression accompanied by a phobic syndrome. It appears that the applicant showed symptoms of suicidal thoughts. Administration of tranquillisers was recommended. 61. On 23 March 2006 the applicant underwent his first operation. Partial excision of the mucous membrane of the nasal septum and a doublesided inferior and right-side medial conchotomy were performed. The doctors noted that the applicant’s mental condition prevented the second operation being carried out and advised that it be performed after the applicant’s general condition had stabilised. 62. On 3 April 2006 the applicant was again examined by a psychiatrist, who diagnosed him as suffering from a severe form of depression without mental symptoms. The psychiatrist recommended that treatment be continued and the applicant be kept under strict supervision to prevent possible suicide attempts. 63. On 5 April 2006 the applicant’s lawyer filed an application with the Court of Appeal requesting the applicant’s release on, inter alia, health grounds. The applicant alleges that the Court of Appeal postponed the examination of this request without giving any reasons. 64. On 25 April 2006 the applicant underwent his second operation which involved the removal of polyps on the vocal cords. The operation went smoothly but complications, including inflammation of the vocal cords, adhesions and haemorrhage, occurred in the post-operative period. 65. On 26 May 2006 the applicant’s condition had improved, and he was discharged from the Armenia Medical Centre and transferred back to the detention facility’s medical unit. 66. On 23 June 2006 the applicant was released on parole.