CASE OF ASHOT HARUTYUNYAN v. ARMENIA
Remainder inadmissible;Violations of Art. 3 (substantive aspect);No violation of Art. 6-1 and 6-2;Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1952. At the time of his death he was serving his sentence at the Kosh penitentiary institution. 6. On 29 November 2001 criminal proceedings were instituted in respect of the applicant on account of fraudulent acquisition of property and falsification of documents. The applicant, who had no previous convictions, was suspected of defrauding his business partner, V.G. 7. On 8 February 2002 the investigating authority ordered an opinion to be prepared by a handwriting expert. On 8 May 2002 the investigating authority ordered two accounting expert opinions to be prepared by two accounting experts V.A. and A.M. 8. On 8 July 2002 the investigating authority recognised V.G. as a victim and as the civil plaintiff. 9. On 14 March 2003 the applicant was formally charged with the above offences, and a new charge of tax evasion. 10. On 6 May 2003 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) decided to detain the applicant. 11. On 12 June 2003 the prosecutor approved the indictment, which was then submitted to the courts. Attached to the indictment was the list of persons subject to be called to court. This list included the accused, the victim, ten witnesses, including the applicant's accountant K.S. and treasurer K.M., and the two accounting experts V.A. and A.M. 12. On 14 June 2003 the criminal case against the applicant was put before the Malatia-Sebastia District Court of Yerevan (Երևան քաղաքի Մալաթիա-Սեբաստիա համայնքի առաջին ատյանի դատարան). 13. On 3 December 2003 the victim lodged his civil claim seeking damages in the amounts of 34,159,008 Armenian drams (AMD) and 119,000 United States dollars (USD). 14. On 27 January 2004 the Malatia-Sebastia District Court of Yerevan found the applicant guilty as charged and sentenced him to seven years in prison. The court also fully granted the victim's civil claim for damages. The court based its judgment on, inter alia, the statements of ten witnesses examined in court, including accountant K.S. and treasurer K.M, an act prepared by the tax authority specialists, two court-ordered accounting expert opinions, the statements of accounting experts V.A. and A.M., and a handwriting expert opinion. 15. On 10 February 2004 the applicant lodged an appeal with the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան). The applicant also submitted written explanations concerning the civil claim, in which he requested the Court of Appeal to call and examine the victim's accountant S.H. as a witness. He also requested that accountant K.S. and treasurer K.M. be called for additional examination. He further asked to call three other persons, K., H. and Z. To substantiate his request to have accountants S.H. and K.S. called and examined, the applicant submitted to the court two accounting reports prepared by them which, according to him, contained exculpatory information. 16. On 19 March 2004 the Criminal and Military Court of Appeal held its first hearing. In the courtroom the applicant was placed in a metal cage which measured about 3 sq. m. The applicant was represented by two defence counsel. At the hearing, the applicant's defence counsel filed a motion with the court, arguing that the applicant's placement in a metal cage in the presence of many people, including relatives and friends, amounted to degrading treatment and humiliated him. Furthermore, this violated the principle of equality of arms, because the applicant, being in a cage, was not able to feel equal to the other parties. The fact that the applicant was a detainee was not sufficient justification to keep him in a metal cage during the court hearings. Nor did the law on arrested and detained persons prescribe placement of a detainee in a metal cage in the courtroom. The defence counsel requested the court to release the applicant from the cage and to allow him to be seated in the seats meant for the parties, namely next to his lawyer. 17. The prosecutor objected to this motion, claiming that the law on arrested and detained persons said nothing about a defendant being released from the metal cage. Besides, the defendant was to be seated in the seat meant for him and that could not be regarded as violating his dignity. The victim's representative also objected to this motion, claiming that the applicant was a detainee, therefore he had to be kept in a metal cage. Furthermore, there were no requisite security measures in the courtroom. 18. The Court of Appeal decided to refuse this motion as unsubstantiated, finding that the placement of the defendant in the seat meant for him during the court hearings did not violate the rights invoked by the defence. The court further stated that its decision was based on security considerations. 19. During the entire proceedings before the Court of Appeal the applicant was kept in the metal cage. The proceedings lasted about two months and included at least twelve public hearings. According to the applicant, the hearings lasted on average about four hours. It appears that they were attended by the applicant's children, wife, siblings and friends, and other members of the public. 20. At the hearing of 21 May 2004 the applicant repeated his request to call witnesses, made earlier in his written explanations. The Court of Appeal refused this request on the ground that accountant K.S. and treasurer K.M. had already been examined and made detailed statements during the investigation and the proceedings in the District Court. As to the accountant S.H., the court stated that it was unnecessary to call her in this particular case. As to K., H. and Z., the court stated that their identity was unknown. 21. On 25 May 2004 the Criminal and Military Court of Appeal upheld the applicant's sentence. The Court of Appeal only partially granted the victim's civil claim, awarding him AMD 23,063,108 and USD 119,000. 22. On 4 June 2004 the applicant lodged an appeal on points of law. 23. On 30 July 2004 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the appeal and upheld the applicant's conviction. 24. It appears that, prior to his placement in detention, the applicant suffered from a number of diseases, including acute bleeding duodenal ulcer and diabetes. It further appears that he had suffered a heart attack in 2001. 25. On 6 May 2003 the applicant was placed in Nubarashen Detention Facility («Նուբարաշեն» քրեակատարողական հիմնարկ). 26. On 7 May 2003 the applicant was examined by a doctor upon his admission to the detention facility. It was noted that he suffered from ischemic heart disease, gallstones and diabetes. 27. On 20 June 2003 the applicant was examined by a surgeon of the facility's medical unit to whom he complained of pain in the epigastric region which worsened at night and improved after eating. He further complained of loss of weight and frequent vomiting. The surgeon noted that the applicant, prior to his detention, had been diagnosed with an acute bleeding duodenal ulcer and recommended to have surgery. The applicant agreed in writing to have surgery. 28. On 26 June 2003 the applicant was transferred to the Hospital for Prisoners («Դատապարտյալների հիվանդանոց» քրեակատարողական հիմնարկ). According to the applicant's treatment plan, developed upon his admission, the applicant was supposed to undergo blood and urine tests, an electrocardiogram, a gastroscopy, and consultations with a cardiologist and an endocrinologist. 29. It appears from the applicant's hospital medical file that the applicant was under regular medical observation. 30. On 27 and 28 June 2003 blood and urine tests were carried out. 31. On 30 June and 4 July 2003 an endoscopy and a gastroscopy were performed. The diagnosis of an acute, bleeding duodenal ulcer was confirmed. It appears that on the latter date the applicant also underwent haemostatic treatment of the ulcer. 32. On 3 July 2003 the applicant underwent an ultrasound scan of his abdominal area and urinary organs. 33. On 7 July 2003 the applicant's gastrointestinal problems exacerbated, causing him to feel dizzy and to collapse. Medical aid was provided. 34. By a letter of 8 July 2003 the chief of the Hospital for Prisoners informed the judge examining the applicant's case that the applicant had been admitted to the hospital as an emergency case and had been diagnosed with an acute bleeding duodenal ulcer. On 4 July 2003 a gastroscopy had been performed, accompanied by haemostatic therapy. The applicant continued to receive treatment and for the time being was unfit for trial. 35. On 11 July 2003 an electrocardiogram was performed. 36. On 23 July 2003 the applicant was examined by an endocrinologist. The endocrinologist recommended an additional glycaemia test on an empty stomach in order to decide on the applicant's further treatment. 37. On 29 July 2003 the applicant was discharged from the hospital and transferred back to the detention facility. According to the relevant discharge certificate (էպիկրիզ) issued by the Chief of the Hospital, M.G., and the Head of the Surgical Unit, A.D.: “Following the relevant examination and consultations carried out in the unit, [the applicant] was diagnosed as having an ulcer, acute bleeding duodenal ulcer, diabetes (type 2, medium degree, subcompensated stage) and diabetic angiopathy, for which, apart from the relevant treatment, on 4 July 2003 [the applicant] received haemostatic therapy of the ulcer and was discharged on 29 July 2003. The patient must undergo regular medical check-ups.” 38. On the same date it was noted in the applicant's medical file that he was being discharged after receiving appropriate treatment and was in satisfactory condition. 39. The Government alleged that the applicant had also undergone the recommended surgery at the hospital. The applicant contested this allegation and claimed that no surgery had been carried out. 40. On 5 August 2003 the applicant was transferred to the medical unit of the detention facility for further treatment since his state of health had deteriorated. At the medical unit, the applicant was examined by a doctor to whom he complained of, inter alia, pain in his chest, dry mouth, asthenia, headache, dizziness and occasional vomiting. Blood and urine tests were carried out. 41. From 11 to 29 August 2003, according to the records made in his medical file, the applicant was under regular medical observation and received medication. Regular check-ups were performed once every two to three days. His state of health during this period was recorded as fluctuating between stable and deteriorated. 42. On 14 August 2003 an ambulance was called to the courtroom since the applicant's heart condition worsened. He was examined by a cardiologist and diagnosed with ischemic heart disease, post-infarction cardiosclerosis and rest stenocardia. An electrocardiogram was prescribed as well as medication including validol, analgin and dimedrol. 43. On 22 August 2003 an ambulance was called to the courtroom for the same reasons. The applicant's heart diagnosis was confirmed and in-patient examination and treatment were recommended. 44. By a letter of 22 August 2003 the examining judge informed the chief of the detention facility about the events of 14 and 22 August 2003 and inquired about the applicant's state of health and whether he was receiving requisite medical assistance. 45. By a letter of 28 August 2003 the chief of the detention facility informed the judge that the applicant was suffering from ischemic heart disease, exertion and rest stenocardia, post-infarction cardiosclerosis, diabetes, diabetic angiopathy and bleeding duodenal ulcer. The letter further stated that the applicant was under constant medical observation and was receiving treatment. 46. On 9 September 2003 the applicant's counsel applied to the Head of the Criminal Corrections Department of the Ministry of Justice (ՀՀ արդարադատության նախարարության քրեակատարողական վարչության պետ), stating that the applicant's state of health required regular medical check-ups and requesting his transfer to the Hospital for Prisoners for treatment. It appears that no reply to this complaint was received 47. On 13 October 2003 the applicant was transferred from the medical unit back to his cell. 48. The applicant alleged that from the date of his transfer to his cell in the detention facility until his transfer to a correctional facility on 13 August 2004 he was never examined by a doctor. He had verbally applied on numerous occasions to the administration of the detention facility requesting medical assistance, but no such assistance or medication had been provided, nor any special diet prescribed. The necessary medicines and food products were provided by his relatives on a regular basis. 49. The Government confirmed that the applicant had verbally applied to the administration of the detention facility for medical assistance within the above-mentioned period, but alleged that such assistance had been provided to the applicant on each and every occasion, including necessary medicines and diet. He was regularly checked by a doctor and, if any symptoms were disclosed, he promptly received the necessary treatment. The detention facility was staffed with the following specialists: two physicians, one psychiatrist-neurologist, one dermatologist, one dentist, one tuberculosis specialist, one laboratory assistant and six doctors' assistants. The latter visited the detainees every day to check their health and the doctors were immediately alerted if there were any problems. 50. In support of this allegation the Government submitted a statement made on 27 June 2006 by the Principal Specialist of the Medical Assistance Unit of the Criminal Corrections Department of the Ministry of Justice, A.H. According to this statement, between October 2003 and August 2004 the applicant had regularly applied to the medical staff of the detention facility and had received medical consultations and out-patient treatment for ischemic heart disease, exertion and rest stenocardia, diabetes and duodenal ulcer. Medication was prescribed, including solution of analgin, papaverin, dibazol, phurosemid, validol, ranitidine, nitrong and diabeton, which the detention facility received on a quarterly basis from the Hospital for Prisoners. 51. On 18 December 2003 the applicant underwent an ultrasound scan of his abdominal area by an outside doctor invited by his relatives. 52. On 9 February 2004, as it appears from the relevant certificate, the applicant was found to be fit for work after being examined by a doctor. 53. The court hearing scheduled for 13 April 2004 was adjourned because of the applicant's poor health. 54. On 17 June 2004 the applicant's counsel applied to the Chief of Nubarashen Detention Facility, complaining that it was dangerous for the applicant, in view of his health, to be kept in a common cell. He further complained that, in spite of this, the applicant had recently been transferred to another cell where conditions were even worse. Counsel requested that the applicant be urgently transferred to a hospital for treatment. 55. On 17 July 2004 the applicant's counsel applied to the Head of the Criminal Corrections Department of the Ministry of Justice, complaining that, notwithstanding the applicant's state of health, he was kept in a common cell. He further complained that the Chief of Nubarashen Detention Facility had failed to transfer the applicant to a hospital and to provide treatment. 56. On 27 July 2004 at 1.20 a.m. an ambulance was called to the detention facility because the applicant suffered a heart attack. 57. On 28 July 2004 the applicant's counsel lodged a similar complaint to that of 17 July 2004, with a copy to the Chief of Nubarashen Detention Facility. 58. By a letter of 29 July 2004 the Head of the Criminal Corrections Department replied to counsel's complaint of 17 July 2004, stating that the applicant had already been hospitalised twice for treatment from 26 June to 29 July 2003 and from 5 August to 13 October 2003. The letter further stated that the applicant was currently under observation by the medical staff and his state of health was satisfactory. 59. On 11 and 12 August 2004 the applicant's counsel lodged two complaints with the Head of the Criminal Corrections Department and with the Minister of Justice, with a copy to the Chief of Nubarashen Detention Facility, claiming that the applicant's state of health was deteriorating daily, but no measures were being taken. He submitted that the applicant's illnesses required a special diet, regular medical check-ups and medication. In spite of this, the applicant was kept in conditions where none of this was available. 60. By a letter of 13 August 2004 the Head of the Criminal Corrections Department replied to the counsel's complaint of 28 July 2004, stating that the letter of 29 July 2004 had already answered the issues raised. 61. On 13 August 2004, after his conviction was upheld in the final instance, the applicant was transferred to Kosh correctional facility to serve his sentence. 62. On 14 August 2004 the applicant was examined by a doctor upon his admission to the correctional facility. He complained of asthenia, dizziness and of pain in his epigastric area and the left part of his back. His general state of health was found to be satisfactory. Medication was prescribed. 63. By a letter of 20 August 2004 the Head of the Criminal Corrections Department replied to the counsel's complaint of 12 August 2004, stating that the applicant had more than once received treatment in various facilities and that he was currently serving his sentence at Kosh correctional facility where his state of health was found to be satisfactory. 64. On 29 December 2006 the Aragatsotn Regional Court (Արագածոտն մարզի առաջին ատյանի դատարան) dismissed the applicant's request to be released on parole, finding that he was not entitled under the law to lodge such a request directly with the courts without the prior approval by the parole board. 65. On an unspecified date the applicant lodged an appeal. 66. On 14 March 2007 the Criminal and Military Court of Appeal reviewed the decision of the Regional Court and decided to examine and grant the applicant's request for release in view of his good behaviour. 67. This decision, though subject to appeal on points of law, was immediately enforceable, so the applicant was released from prison. 68. On 1 June 2007 the Court of Cassation quashed the decision of the Court of Appeal upon the prosecutor's appeal and decided to terminate the proceedings on the same ground as the Regional Court. 69. The applicant was taken back to prison. 70. On 20 January 2009 the applicant died in prison from a heart attack. 71. According to Section 13, a detainee has the right, inter alia, to healthcare, including to receive sufficient food and urgent medical assistance. 72. According to Section 21, the administration of a detention facility shall ensure the sanitary, hygienic and anti-epidemic conditions necessary for the preservation of health of detainees. At least one general practitioner shall work at the detention facility. A detainee in need of specialised medical assistance must be transferred to a specialised or civilian medical institution. 73. According to Article 18, the suspect or the accused shall be considered innocent until his guilt is proved by a final court verdict in accordance with the procedure prescribed by this Code. 74. According to Article 23 § 3, the court does not side with the prosecution or the defence and acts only in the interests of the law. 75. According to Article 65 § 2 (12), the accused has the right to file motions. 76. According to Article 102 § 2, motions and requests must be examined and ruled upon immediately after being filed. 77. According to Article 271 § 1, a list of persons subject to be called to court shall be annexed to the indictment. The investigator must indicate in the list the location of these persons and the pages of the case file which contain their statements or conclusions. 78. According to Article 277 § 1, the prosecutor, by approving the indictment, shall transmit the case to the competent court. 79. According to Article 292, the judge who has taken over the criminal case shall study the materials of the case and within fifteen days after taking over the case shall adopt, inter alia, a decision to set the case down for trial. 80. According to Article 293 § 2, the decision to set the case down for trial must contain, inter alia, the list of persons subject to be called to court. 81. According to Article 331 §§ 1 and 2, in the preparatory stage of the trial, the presiding judge shall inquire whether the prosecution and the defence want to file motions seeking to obtain new evidence and to include it in the case file. The court must examine each motion filed and hear the parties. The court shall grant the motion, if the circumstances which it seeks to disclose may be significant for the case. A decision refusing a motion must be reasoned. 82. According to Article 391 § 5, the parties are entitled to file motions in the court of appeal seeking to call new witnesses. 83. The relevant extracts from the Reports read as follows: “a. Access to a doctor ... 34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay. ... 35. A prison's health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ... Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. 36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ... 37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health. b. Equivalence of care i) general medicine 38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). 39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient's evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment. Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise. 40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.” 84. The relevant extracts from the Report read as follows: “b. health care services in the prisons visited [(four establishments, including Nubarashen Prison)] i. staff and facilities 106. At Nubarashen Prison, the full-time health care team consisted of 7 doctors (head doctor, internist, surgeon, stomatologist, dermato-venerologist, radiologist, psychiatrist), 5 feldshers, a laboratory assistant, an X-ray technician and a dental technician. Assistance was provided by several prisoner orderlies. ... At Nubarashen Prison, the presence of a feldsher was ensured on a 24-hour basis. ... 107. As regards the complement in terms of doctors, the situation at Nubarashen ... [Prison] can be considered satisfactory. ... ... 108. The CPT is particularly concerned about the low number of qualified feldshers and the total lack of qualified nurses at the four establishments. Given the size and structure of the respective inmate populations (with rapid inmate turnover at the two pre-trial facilities and noticeable proportions of older prisoners at the two colonies), the CPT recommends that the nursing staff resources (i.e. feldshers and nurses) at the four establishments be increased. The CPT also wishes to stress that a person competent to provide first aid, preferably with a recognised nursing qualification, should always be present on prison premises, including at night and weekends. 109. In the CPT's view, the employment of inmates as orderlies should be seen as a last resort, and prisoners should under no circumstances be involved in the distribution of medicines. Further, such persons should not be given access to medical files, nor should they be present during medical examinations. The Committee recommends that the position of the prisoners working as orderlies at Nubarashen ... [Prison] (as well as other penal establishments in Armenia) be reviewed, in the light of these considerations. 110. The delegation heard very few complaints about access to the doctor (or, as in Gyumri, to the feldsher). However, at the four prisons, inmates complained about the standard of treatment and care, in particular as regards the range of medication prescribed and the quality of dental care (which appeared to be limited to extractions). At each of the establishments, the transfer of inmates to the Hospital for Prisoners in Yerevan, when required by their state of health, was said to be unproblematic. ... ... 113. The supply of basic medication and related materials was grossly insufficient at each of the establishments. This was hardly surprising, given the very limited budget for acquiring such items. In this regard, the health-care services concerned depended to a considerable extent on donations and inmates' own resources. Reference has already been made to the State's duty of care vis-à-vis persons deprived of their liberty, even in periods of serious economic difficulties ... The CPT recommends that the Armenian authorities take measures without delay to ensure the supply of appropriate medicines and related materials to the prisons visited and, if necessary, to other penitentiary establishments in Armenia.”