CASE OF HARUTYUNYAN v. ARMENIA
Violation of Art. 6-1;Not necessary to examine Art. 6-1 (other complaint);Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses - claim dismissed
Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa
4. The applicant was born in 1980 and lives in Yerevan. 5. On 25 June 1998 the applicant was drafted into the army and assigned to military unit no. 33651, situated next to the border with Azerbaijan. 6. On 3 December 1998 the applicant, together with five fellow servicemen, was placed on watch in position no. 24. 7. On 4 December 1998 one of the six watchmen, serviceman H., was found dead in a nearby trench, having been killed by a machine-gun shot. At the time of the killing, only three of the remaining five watchmen were in the area of position no. 24, namely the applicant and servicemen T. and A. The latter two were apparently cutting wood together not far from the position. It appears that the applicant had been seen to have an argument with H. earlier that day. 8. On 4 March 1999 servicemen T. and A. were brought to a military police station. On 5 March 1999 the applicant was also brought to the same police station. The military police officers started to beat them, seeking to force them to confess to serviceman H.’s murder. According to the applicant, they told the police officers that serviceman H. must have been shot from the other side of the border, to which the officers replied that it had already been established that serviceman H. had been killed at close range, and continued to beat them. 9. The applicant was initially punched and kicked. The police officers then began to hit him with rubber clubs. The applicant lost consciousness on several occasions but was revived and continued to be beaten. After a while the police officers began to squeeze the applicant’s fingertips with pliers. The same torture techniques were applied to servicemen T. and A. 10. On 5 March 1999 serviceman T. confessed to the investigator that he had witnessed how the applicant had taken his machine gun and shot H. Since serviceman A. was with serviceman T. at the time of the murder, he was coerced into making a statement to the effect that serviceman T. had told him that he had witnessed the murder. 11. The police officers subsequently continued to torture the applicant, forcing him to confess to the murder. According to the applicant, this continued for over a month. He was unable to walk and talk properly, and all his fingertips were swollen. 12. On 16 April 1999 the applicant was interrogated as a suspect by the investigator examining the case, to whom he confessed that he had accidentally shot serviceman H. 13. On 17 April 1999 the applicant was formally charged with premeditated murder and questioned as an accused by the investigator; during this interview he repeated his confession. Thereafter he was taken to the crime scene, where he made the same statement in front of a video camera and the relevant record was drawn up. On the same date the applicant was placed in pre-trial detention. 14. According to the applicant, immediately after their release from the police station on an unspecified date, servicemen T. and A. informed the Military Prosecutor of Armenia (ՀՀ զինվորական դատախազ) in writing that they had been coerced into slandering the applicant. 15. On 19 June 1999 the applicant and servicemen T. and A. were subjected to medical examinations, during which various injuries to their fingers and A.’s head were noted. 16. On 11 August 1999 a confrontation was held between the applicant and serviceman T., during which the latter confirmed his earlier testimony against the applicant. 17. On an unspecified date, the applicant’s criminal case was brought before the Syunik Regional Court (Սյունիքի մարզի առաջին ատյանի դատարան). 18. On 26 October 1999 a hearing was held during which serviceman T. confirmed his earlier testimony against the applicant. 19. On 6 December 1999 the Syunik Regional Court found the applicant guilty of premeditated murder and sentenced him to thirteen years’ imprisonment. 20. On 15 June 2000 the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան) quashed this judgment and remitted the case for additional investigation. 21. On 12 September 2000, following the additional investigation, the case was brought again before the Syunik Regional Court. 22. On 13 June 2001 the Syunik Regional Court decided to remit the case for further investigation. 23. On 3 August 2001 the Criminal and Military Court of Appeal quashed this decision on an appeal by the prosecutor and remitted the case to the Syunik Regional Court for examination on the merits. 24. In the proceedings before the Syunik Regional Court, the applicant’s lawyer asked that the applicant’s confession statements of 16 and 17 April 1999 and the statements made by witnesses T. and A. during the investigation in 1999 be declared inadmissible, since they had been obtained under torture. By that time criminal proceedings had already been instituted against the relevant military police officers on account of the torture of the applicant and servicemen T. and A. 25. On 19 June 2002 the Syunik Regional Court found the applicant guilty of premeditated murder and sentenced him to ten years’ imprisonment. The sentence was to be calculated from the first day of the applicant’s detention on 17 April 1999. In its judgment, the Regional Court stated that “[T]he following ha[d] been established during the court examination” and went on to describe the circumstances in which the applicant had shot serviceman H. The Regional Court then stated: “For these actions [the applicant] was charged [with premeditated murder]. During ... questioning on 16 April 1999 [the applicant] admitted to the investigating authority that [serviceman H.] had died from a bullet accidentally shot from [the applicant’s] machine gun. On 17 April 1999 during questioning as an accused he again admitted that [serviceman H.] had died from a bullet which had been shot by [the applicant] as a result of a violation of the rules for the handling of weapons. [The applicant] confirmed this statement during the re-enactment of the circumstances of the incident [on 17 April 1999], the video recording of which has been examined during the court proceedings. [The applicant] later revoked this confession. During the court proceedings [the applicant] pleaded not guilty and stated that he had not killed [serviceman H.]; they had not had an argument on the day of the incident, they had not sworn at each other, he was unaware of the circumstances of [serviceman H.’s] death, and his confession had been made under the influence of the violence and threats inflicted on him by the [police officers]. Such arguments [by the applicant] are unfounded, contradict the evidence obtained during the court examination and cannot serve as a basis for avoiding criminal liability and punishment. [The applicant’s] ... arguments have been rebutted and his commission of the offence has been proven by the following evidence obtained during the court examination: ...” 26. As an example of such evidence, the Regional Court went on to cite the statement made by witness T. on 5 March 1999. It further stated: “[Witness T.] made the same statement before the Syunik Regional Court at [the hearing of 26 October 1999]. During the investigation [witness T.] confirmed this statement at a confrontation with [the applicant on 11 August 1999]. Thereafter [witness T.] revoked this statement and submitted that he had not witnessed the circumstances in which [serviceman H.] had been killed. He also made a similar statement during this court examination, indicating that his statement about witnessing the killing of [serviceman H. by the applicant] had been made under the influence of the violence inflicted on him by the [police officers]. A similar statement was also made by [witness A.].” 27. The Regional Court went on to cite a number of circumstantial and hearsay witness statements and an expert opinion to the effect that the shot had been fired at close range, and concluded that: “Having evaluated the contradictory statements made by [witnesses T. and A.] during the investigation and the court examination, the court finds that in reality the coercion was applied by [the police officers] at the military police station for the purpose of ensuring disclosure of the truth. ... The revocation at a later stage by [witness T.] of his [statements made during the investigation] was aimed at helping [the applicant] to avoid criminal liability. The fact that [witness T.] was aware of the circumstances of [serviceman H.’s] death was confirmed by the unconstrained submissions he made at the [court hearing of 26 October 1999], without being subjected to any ill-treatment or threats, and the stories he told to [two fellow villagers] following his demobilisation.” 28. The Regional Court concluded by citing other evidence substantiating the applicant’s guilt, such as (i) a forensic examination of the victim’s tissue samples and a medical examination of his corpse, according to which he had died from a shot fired at close range; (ii) a ballistic examination, to the effect that the shell found at the crime scene had been fired from AK-74 type machine gun no. 916236, which had been issued to the applicant; (iii) the record of examination of the crime scene, drawn up on 17 April 1999, and a number of other materials. 29. On 9 October 2002 the Avan and Nor Nork District Court of Yerevan (Երևան քաղաքի Ավան և Նոր Նորք համայնքների առաջին ատյանի դատարան) found military police officer M. and three other police officers guilty of abuse of power and imposed sentences ranging from three to three and a half years’ imprisonment. The District Court found: “On 4 March 1999, in connection with the murder of [serviceman H.], ... [police officer M.] brought [servicemen A. and T.] and others to the military police station. On 5 March 1999 [the applicant was also brought to the station]. There [the police officers] beat them for several days, delivered numerous blows to [the applicant] and others with a rubber club and squeezed their fingertips with pliers, causing injuries of various degrees. Then [the police officers] forced them to take off their shoes, put their hands on the backs of their heads and get down on their knees, and started to club their soles. By threatening to continue the ill-treatment, [the police officers] forced [the applicant] to confess that he had murdered [serviceman H.], [serviceman T.] to state that he had witnessed that murder, and [serviceman A.] to state that he was aware of the murder. [The police officers] also threatened the victims with retaliation if they informed any higher authority about the ill-treatment ... On 5 January 2000, in his office in the military police department in Yerevan, [police officer M.] forced [serviceman A.] to state in relation to the ill-treatment that he was not familiar with [police officer M.], that nobody had beaten him and that the injuries on his fingers had been sustained as a result of his hand being squashed by a car door ... The systematic, unprecedented, essentially cruel and degrading actions inflicted by [the police officers on the applicant and others], which had the attributes of torture, entailed grave consequences in that such actions violated the legally guaranteed rights and interests of [the] servicemen ...” 30. This judgment was based on various witness statements, including those of the applicant and servicemen T. and A., and the results of the medical examinations. 31. In his witness statement, the applicant submitted, inter alia, that he had been detained until the end of March 1999 in the military police station, where he was regularly beaten. At the end of March 1999 he was transferred to a military prosecutor’s office but then brought back to the police station on 10 April 1999. On his return journey, police officer M. threatened him with retaliation if he refused to confess. On the same day another police officer also threatened him, but promised to qualify the offence as accidental if the applicant agreed to confess; after this the applicant made his confession statement. 32. In his witness statement, serviceman A. submitted, inter alia, that after testifying to the investigator, he and serviceman T. were kept in the canteen of the police station for about a month. At the beginning of April, police officer M. called him and serviceman T. and demanded that, when questioned by the investigator, they tell him that they had not been beaten or ill-treated in the police station, and that the injuries on their fingers had been sustained as a result of their fingers being squashed by a car door. On 5 January 2000 police officer M. threatened to kill him if he informed the investigator about the ill-treatment. 33. In his witness statement, serviceman T. submitted, inter alia, that on 30 November 1999, under pressure from police officer M., he had testified to the investigator that nobody had beaten him. 34. On an unspecified date the applicant’s lawyer lodged an appeal against this judgment. 35. On 14 November 2002 the Criminal and Military Court of Appeal refused to examine the appeal since, according to the domestic law, a victim in criminal proceedings had the right to appeal only if the proceedings had been instituted on the basis of his or her complaint. 36. On 26 December 2002 the Court of Cassation (ՀՀ վճռաբեկ դատարան) upheld this decision. 37. On an unspecified date the applicant lodged an appeal against his conviction of 19 June 2002. 38. In the proceedings before the Criminal and Military Court of Appeal, the applicant submitted that he was not aware of the circumstances of serviceman H.’s death and that he had been coerced into making his confession statement. 39. Witness T. submitted that he had not seen who had killed serviceman H., since he and witness A. had been absent at the material time. He further submitted that the statement made by him during the preliminary investigation, to the effect that he had witnessed the murder, was untrue and that he had been forced to make it. Immediately after the incident all five servicemen had agreed to say that serviceman H. had been killed by an Azeri sniper, but in reality he knew nothing about the circumstances of H.’s death. Witness A. made similar submissions. 40. On 1 April 2003 the Criminal and Military Court of Appeal decided to uphold the applicant’s conviction. In doing so, the Court of Appeal found that the above submissions were made as a result of collusion between the applicant and the witnesses, aimed at helping him to avoid criminal liability. These submissions were rebutted by the evidence obtained in the case, such as: (a) The applicant’s confession of 16 April 1999 to the investigator. Later and in court the applicant had revoked this statement, as having been made under coercion, but had failed to indicate the details of any coercion applied to him in the investigator’s office. (b) Submissions by witnesses T. and A. to the Syunik Regional Court at the hearing of 26 October 1999, to the effect that one of them had witnessed and the other was aware of the murder. Witnesses T. and A. had later revoked these submissions but accepted that no coercion had been applied to them in court and that these submissions, albeit untrue, had been made voluntarily. (c) Other circumstantial and hearsay witness statements, the relevant expert opinions, various records and the video recording. 41. The Court of Appeal concluded by statfor the charges and had not been used as evidence. 42. On 14 April 2003 the applicant’s lawyer lodged an appeal. He argued, inter alia, that the applicant’s confession statement of 16 April 1999, and the record and the video recording prepared at the crime scene on the following day, had been made as a result of the beatings, ill-treatment and threats inflicted on the applicant, and could not therefore be used as evidence against him. Furthermore, the Court of Appeal should not have relied on the submissions made by witness T. at the very early stage of the proceedings, including the hearing of 26 October 1999, to justify the credibility of his first accusatory statement, made under torture. These submissions had been the result of the fear experienced by witness T. following the unprecedented violence inflicted on him. He had been under constant pressure from the investigators, having been detained on several occasions, and at the time of the above-mentioned hearing he had not yet been demobilised and was afraid of being taken back into custody and subjected to ill-treatment again. As an example of witness T.’s fear of telling the truth, the applicant’s lawyer referred to T.’s testimony of 30 November 1999, in which he had submitted that the injuries to his fingers had been sustained as a result of his fingers being squashed by a car door. For the last three years, however, since he had revoked his earlier statements, witness T. had been insisting that he was not aware of the circumstances of serviceman H.’s death. Finally, the applicant’s lawyer argued that, contrary to what had been indicated in the Court of Appeal’s judgment, witness A. had never made any accusatory submissions against the applicant during the court examination of the case. On the contrary, he had always insisted that witness T. could not have witnessed the murder since they had been together at the material time. 43. On 8 May 2003 the Court of Cassation dismissed the lawyer’s appeal and upheld the Court of Appeal’s judgment. In doing so, the Court of Cassation found, inter alia, that: “The conclusions in the judgment are corroborated by the evidence examined in court, in particular, statements by [witnesses T., A. and others, and the results of various expert opinions]. ... It has been established that after the incident [servicemen T. and A., the applicant and others] agreed ... to testify that [serviceman H.] had been killed by [the Azeris], nevertheless, [serviceman T.] testified in the first-instance court on 26 October 1999 that [serviceman H.] had been killed ... by [the applicant]. The arguments of [the applicant’s] lawyer that the judgment was based on statements by [witnesses T. and A.] which had been obtained under torture are groundless, contradict the materials of the case and are rebutted by the following evidence. [The applicant and witnesses T. and A. were beaten for several days by the police officers] who demanded that they make honest statements concerning the murder of [serviceman H.]. The police officers did not take any statements from them. The statements were taken by the relevant investigator from the military prosecutor’s office, who did not ill-treat them ... [The relevant police officers were convicted]. No criminal proceedings were brought against any of the investigators dealing with the case. ... On 11 August 1999 a confrontation was held between [the applicant and serviceman T. in the presence of the applicant’s lawyer], during which [serviceman T.] contended that [serviceman H.] had been killed with a machine gun [by the applicant]. It has been established that no ill-treatment was inflicted on him at that time. At a later stage [serviceman T.] revoked the above statements and submitted that he had not seen who had killed [serviceman H.], although he did not deny that on several previous occasions he had submitted that it was [the applicant] who had killed [serviceman H.]. The Court of Appeal rightly considered [T.’s] confession statement as reliable and regarded it as proof of [the applicant’s] guilt. During the preliminary investigation [the applicant] testified to the investigator from the military prosecutor’s office that it was he who had killed [serviceman H.], albeit accidentally. Thus, irrespective of the fact that during the preliminary investigation the military police officers ill-treated [the applicant and witnesses T. and A.], the evidence obtained in the case, if evaluated from the perspective of relativity and admissibility, is sufficient in its entirety to convict [the applicant] of the incriminated crime.” 44. On 22 December 2003 the applicant was released on parole. 45. The relevant provisions of the Code of Criminal Procedure (ՀՀ քրեական դատավարության օրենսգիրք) read as follows: “In the course of criminal proceedings no one shall be subjected to torture and to unlawful physical or mental violence, including such treatment inflicted through the administration of medication, hunger, exhaustion, hypnosis, denial of medical assistance and other cruel treatment. It is prohibited to coerce testimony from a suspect, accused, defendant, victim, witness and other parties to the proceedings by means of violence, threat, trickery, violation of their rights, and through other unlawful actions.” “No one shall be obliged to testify against himself ...” “The following materials cannot constitute the basis for charges and be used as evidence in criminal proceedings: (1) materials obtained under violence, threat, trickery, humiliation of a person, and through other unlawful actions ...” “The inadmissibility of factual data as evidence, and the possibility of their limited use in the proceedings, shall be established by the examining authority of its own motion or upon the request of a party.” “Evidence obtained in the case must be thoroughly and objectively examined: it must be analysed, compared with other evidence, new evidence must be collected, and its sources must be verified.” “A judgment shall be composed of introductory, descriptive-motivational and concluding parts.” “The descriptive-motivational part of a judgment shall contain: (1) the content of the accusation; (2) the court’s conclusions with regard to tested and the defendant’s guilt; (3) the evidence on which the court’s conclusions are based; and (4) the legal provisions on which the court relied in reaching its decision.” 46. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as adopted by the United Nations General Assembly on 10 December 1984 (resolution 39/46), provides: “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”