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THIRD
SECTION
DECISION
Application no.
52316/09
Alik MATEVOSYAN
against Armenia
The
European Court of Human Rights (Third Section), sitting on 15 May
2012 as a Chamber composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Ineta
Ziemele,
Luis
López Guerra,
Nona
Tsotsoria,
Kristina
Pardalos,
judges,
and
Marialena Tsirli, Deputy
Section Registrar,
Having
regard to the above application lodged on 24 September 2009,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Alik Matevosyan, is an Armenian national who was born
in 1987 in Abovyan and is currently serving a prison sentence in
Armenia. He is represented before the Court by Mr H. Baghdasaryan, a
lawyer practising in Herher.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- The
applicant was performing military service in the Syunik Region of
Armenia.
- On
29 April 2006 the dead body of a fellow serviceman, A.H., was found
hanging from a tree with his arms tied behind his back with a wire,
on the land adjacent to the applicant’s military unit. On the
same day the Military Prosecutor’s Office of Zangezur Garrison
instituted criminal proceedings on account of A.H.’s death.
- According
to the materials of the case, on 2 May 2006 the applicant was
questioned by an investigator from the Military Prosecutor’s
Office in the town of Kapan in connection with the instituted
criminal case. It appears that on the same day he and his
co-serviceman, R.H., were subjected to disciplinary punishment in the
form of 10 days’ arrest for beating A.H. a month before and the
next day were taken to the disciplinary isolation block of the
Military Police Headquarters in Yerevan, which is apparently situated
in a military unit, where they were kept until 12 May 2006.
- Within
the above period, the applicant and R.H. were questioned at the
Military Police Headquarters as witnesses in the instituted criminal
case. It appears that during questioning on 7 May 2006 R.H. made
confession statements according to which he and the applicant had
murdered A.H. On 16 May 2006 a confrontation was held by the
investigator between R.H. and the applicant.
- It
appears from a letter of the chief of the disciplinary isolation
block addressed to the Military Prosecutor’s Office that on 12
May 2006 the applicant was transferred from the disciplinary
isolation block to a different military unit to the one he was
serving in.
- On
17 May 2006 the applicant was arrested on suspicion of the beating
and murder of A.H. On the same day the investigator requested the
Public Defender’s Office to grant a defence lawyer to the
applicant, who was assigned the next day.
- On
20 May 2006 the applicant was charged with a count of aggravated
violation of military discipline rules and a count of aggravated
murder, as provided by Article 359 § 2 and 104 § 2 (10) of
the Criminal Code. In particular, the investigator found that in
March 2006 the applicant, together with R.H., had subjected A.H. to
beatings and, on 28 April 2006, had murdered him by hanging him from
a tree.
- On
the same day, the Arabkir and Kanaker-Zeytun District Court of
Yerevan, upon an investigator’s motion, decided to detain the
applicant on remand. It appears that the applicant was then
transferred to the common remand centre in Nubarashen.
- According
to the applicant, in reality on 1 May 2006 he was taken to the Kapan
Military Police Department where he was kept until 3 May 2006.
Thereafter, he was taken to the disciplinary isolation block of the
Military Police Headquarters, where he was kept until 20 May 2006.
Throughout the whole period he was subjected to severe beatings and
torture by the military police officers and the investigators who hit
him in the soft parts of the body, as well as the “unnoticed”
parts of the body including the soles of the feet, forcing him to
confess to the murder. No legal representative was allocated to him
at that time. R.H. and another co-serviceman, who had been taken to
the Military Police Headquarters in connection with the death of
A.H., were beaten too. R.H. did not stand up to the beatings and made
confession statements.
- On
21 June 2006, when in the Nubarashen remand centre, the applicant
lodged a complaint with the General Prosecutor’s Office, the
President and the Chairman of the Parliament in which he stated as
follows:
“... On 1 May this year military police officers
came to the military outpost and took me [and two other soldiers] to
the [military police] department. They took statements from us there
and started to beat us. At night [R.H.] and I were kept in the
reception, sitting on the floor with our hands handcuffed to the
walls. I was there until 3 May during which time I witnessed only
beatings and cries from different rooms where the soldiers were being
beaten. On 3 [May], we, 11 soldiers, were brought to the Military
Police Headquarters and I was taken to the room of [senior officer
A.M.] where they started continuously to beat me, now with more
brutal methods. They took off my shoes and with a thin branch started
to beat the soles of my feet. They were forcing me to give false
incriminatory statements. Late at night they would take me to the
disciplinary isolation ward. [Several other co-servicemen] were also
kept there, while the rest stayed in a common room. About 10 days
later, when I was being questioned as a witness, the investigator
took off my shoes. I should mention that I was kept in the isolation
block illegally, upon an order from the superior. I was arrested for
10 days for violation of the internal disciplinary code. Every day
they would take me to the room and try, by beatings and threats, to
force me to give evidence in a way they wanted. At 1.00 at night on
17 or 18 May the investigator came and told me that my girlfriend was
in the next room and that if I refused to testify in a way he wanted
bad things would happen to her. They further threatened me that bad
things would also happen to my 17-year old sister. Chief of the
[operative-investigative] department [M.Gh.] and his deputy [A.Mar.]
would also beat me. When I was not able to eat because my teeth were
aching from many punches and slaps, they threatened me and used
swearwords of a sexual nature. One night, as I was taken back to the
isolation cell [the isolation cell officers] noticed the traces of
beatings on my body and warned [the military police officers] not to
bring me again to the cell in such condition[. C]hief deputy [A.Mar.]
started to beat me and curse at me, asking why I had not told [the
isolation cell officers] that I had touched a door. I could hear the
cries and sobbing of other soldiers coming from the rooms. As one
operative police officer was beating me, the other filmed the
beatings on his cell-phone and showed the film, in my presence, to
his other colleagues and then they would start to humiliate me. They
drove me to such a state that I told them I wanted to die. At that
same minute they put a blank sheet of paper in front of me, gave me a
pen and said that if I wrote down that I wished to commit suicide
they would assist me in doing so. They were proposing that I give
false testimony against [R.H.] in the same words as [R.H.] had
testified against me ... After my confrontation with [R.H.] ... he
started begging me to forgive him and said that he could not resist
the beatings, pain and fear and that he had given false testimony
against me as otherwise bad things would have happened to his family.
I was kept in [the Military Police Headquarters] and isolation cell
not for 10 but 18 days. On 20 May we were taken to the [Arabkir and
Kanaker-Zeytun District] court which ordered our detention. During
the court hearing I stated that I had no involvement in the death of
[A.H.] and that I did not plead guilty. On 15 June the
investigator, together with my defence lawyer, visited me at the
[Nubarashen remand centre] and produced a forensic expert opinion
according to which the grains of sand discovered on the soles of my
military shoes corresponded to those taken from the site of the
crime. I told them that I did not agree with the results of the
expert opinion and the investigator threatened to tell the defence
lawyer to go out [of the cell] for ten minutes and to [beat me] ... .
I am asking and requesting again that the investigative
authorities conduct an impartial and thorough investigation by
observing the ... requirements of the criminal process, to find the
real murderers and to release me and other innocent persons involved
in the investigation from this inhuman nightmare.”
- On
23 September 2006 an investigator from the Military Prosecutor’s
Office, to which the applicant’s complaint had been forwarded,
decided not to institute criminal proceedings. The investigator’s
decision stated as follows:
“During the investigation of the criminal case
[concerning the death of A.H.] the accused [applicant] lodged
complaints with the President and the General Prosecutor of Armenia,
which were received by the Military Prosecutor’s Office. In
those complaints the accused stated that he and ...another accused,
R.H., had been beaten during their stay in the Military Police
Headquarters by the chief of the operative-investigative department
[M.Gh.], his deputy [A.Mar.], and that violence was used against him
also in the room of [senior officer A.M].
Chief of the operative-investigative department [M. Gh.]
gave statements according to which no violence had been used against
[the applicant] and if such a thing had happened the military police
officer who had applied such violence would have been made to answer
for their actions.
Similar statements were made by the chief deputy of the
operative-investigative department [A.Mar.] and senior officer
[A.M.].
According to the [letter of the chief of the
disciplinary isolation ward of the Military Police Headquarters
M.T.], there were no traces of bodily injuries on [the applicant] and
[R.H.] during their admission and stay in the isolation block and the
latter had not lodged any complaints about their health.
Therefore, the fact that during the period of stay of
... [the applicant] and [R.H.] in the Military Police Headquarters no
violence was used against them by the officers of the above
Headquarters has been substantiated during the investigation of the
criminal case [concerning the death of A.H. Hence], there is no
evidence of a crime.
Based on the above ... I decide not to institute
criminal proceedings ... due to the absence of evidence of a crime.”
- According
to the applicant, he had not been served or notified about that
decision and learned about it only upon the conclusion of the
investigation, when consulting the criminal case file.
- On
an unspecified date the investigation was concluded and the criminal
case was referred to the Syunik Regional Court for trial.
- It
appears that on 16 May 2007 the Syunik Regional Court, apparently
upon the applicant’s and R.H.’s allegations of
ill-treatment, ordered a forensic medical examination.
- According
to the results of the applicant’s medical examination produced
on 15 June 2007, no traces of injury were discovered on his body. The
medical examination report then stated that due to the belated
conduct of the examination (a year after) and the absence of any
medical documents it was impossible to say whether the applicant had
suffered any bodily injuries since such injuries might have existed
but then healed leaving no trace.
- During
the medical examination of R.H. an old conjoined fracture of his nose
was discovered whose date, according to the medical examination
report, it was not possible to establish. No other bodily injuries
were found. It appears that the investigator then questioned several
persons, including R.H.’s former co-servicemen, who stated that
during their military service they had noticed that R.H.’s nose
was deformed and that R.H. had told them that he had injured his nose
before his conscription.
- On
20 June 2007 the Military Prosecutor’s Office of Goris Garrison
decided to refuse to institute criminal proceedings concerning R.H.’s
allegation of ill-treatment due to the absence of the event of a
crime.
- On
2 August 2007 the Military Prosecutor’s Office sent a letter to
the Syunik Regional Court informing it that the applicant’s and
R.H.’s allegations of beatings had not been confirmed. In this
respect, the letter referred to the investigator’s decisions of
23 September 2006 and 20 June 2007 as well as the results of the two
forensic medical examinations.
- On
29 August 2007 the Syunik Regional Court found the applicant guilty
on a count of non-aggravated murder in connection with A.H.’s
death, as provided by Article 104 § 1 of the Criminal Code, and
a violation of military discipline rules, as provided by Article 359
§ 2 (2) of the Criminal Code, in connection with A.H.’s
beating and sentenced him cumulatively to nine and a half years’
imprisonment. R.H. was found also guilty and sentenced to a prison
term. The Regional Court also found that R.H.’s testimony could
not be considered as inadmissible evidence because his allegations of
forced confessions had not been substantiated.
- On
7 September 2007 the applicant lodged an appeal against the judgment
of the Syunik Regional Court stating that he did not agree with the
judgment and asking for it to be quashed and to be acquitted since he
was innocent.
- It
appears that all the other parties to the criminal proceedings also
lodged appeals against the judgment of the Syunik Regional Court.
- On
3 December 2007 the Criminal Court of Appeal dismissed all the
appeals by upholding the judgment of 29 August 2007.
- On
an unspecified date the Military Prosecutor’s Office lodged an
appeal on points of law against the judgment of the Court of Appeal
seeking to quash it in its part relating to the evaluation of the
offences with a view to imposing a harsher penalty.
- On
25 July 2008 the Court of Cassation granted the appeal by quashing
the judgment of the Court of Appeal in its part concerning the
evaluation of the offences and remitted the case for a fresh
examination.
- On
12 November 2008 the Criminal Court of Appeal examined the case anew
and re-evaluated the applicant’s offence in connection with
A.H.’s death into two aggravated counts of murder, in
accordance with Article 104 § 2 (10) of the Criminal Code by
increasing his sentence to 15 years’ imprisonment.
- On
an unspecified date the applicant’s defence lawyer lodged an
appeal on points of law against the judgment of the Court of Appeal
of 12 November 2008 claiming, inter alia, that the
applicant had been beaten and tortured by the military police
officers. He further claimed that he and R.H. had been taken into
custody and questioned as witnesses during which R.H. had been forced
to make confession statements.
- On 25 February 2009 the Court of Cassation declared
the appeal inadmissible on the ground that it was precluded from
examining the applicant’s arguments contained in his appeal on
points of law since he had not mentioned them in his appeal of 7
September 2007 and the Criminal Court of Appeal had not examined
them. The Court of Cassation, however, referred to the complaint
concerning the applicant’s alleged ill-treatment by mentioning
the investigator’s decision of 23 September 2006 not to
institute criminal proceedings against the military police officers.
It further noted that no criminal proceedings had been instituted on
account of R.H.’s allegations of ill-treatment.
- On
26 March 2009 the applicant lodged his own appeal on points of law
against the judgment of 12 November 2008 in which he raised arguments
similar to those indicated in his defence lawyer’s appeal.
- On
30 April 2009 the Court of Cassation declared the applicant’s
appeal inadmissible for lack of merit. As to the applicant’s
allegation of ill-treatment, the Court of Cassation found it
unsubstantiated on the same grounds as those indicated in its
decision of 25 February 2009.
- On
11 June 2009 the applicant lodged another appeal on points of law,
which was left unexamined by the Court of Cassation on 7 August 2009
as lodged outside the prescribed six-month time-limit.
- On
an unspecified date thereafter the applicant lodged an application
with the Constitutional Court claiming that the Court of Cassation’s
refusal in its decision of 25 February 2009 to examine all the
arguments indicated in his appeal on points of law was incompatible
with the provisions of the Constitution.
- On
22 December 2009 the Constitutional Court decided, on the basis of
the applicant’s application, that if the Court of Appeal
quashes a judgment of the first instance court and adopts a new legal
act, an appeal on points of law must be available to the parties to
the proceedings in question.
- Following
the decision of the Constitutional Court, on 20 January 2010 the
applicant lodged a new appeal on points of law against the judgment
of 12 November 2008 claiming, inter alia, that neither the
investigative authorities nor the courts had taken into account the
fact that he and R.H. had been beaten and tortured by the military
police officers.
- On
26 March 2010 the Court of Cassation dismissed the applicant’s
appeal finding, inter alia, that the applicant’s
allegation of ill-treatment by military police officers was
unsubstantiated. In doing so, the Court of Cassation relied on the
investigator’s decisions not to institute criminal proceedings
of 23 September 2006 and 27 July 2007 in relation with the
applicant’s and R.H.’s alleged ill-treatment
respectively.
B. Relevant domestic law
The Criminal Code (as in force at the material time)
- Article
104 § 10 provides that murder, that is an intentional unlawful
deprivation of one’s life, if prompted by hooliganism, shall be
punishable for a term of up to 15 years’ imprisonment or life
imprisonment.
- According
to Article 359 § 2 (2), a violation of military discipline
rules, accompanied with violent acts and committed by a group of
persons, shall be punishable for a term of up to five years’
imprisonment.
COMPLAINTS
- The
applicant complains under Article 3 of the Convention that he was
beaten and tortured by military police officers when under arrest and
that neither the investigating authorities nor the domestic courts
took into account his statements concerning the beatings.
- The
applicant complains under Articles 5 §§ 1 (c) and 3 of the
Convention that he was unlawfully arrested from 1 to 20 May 2006.
- The
applicant complains under Article 6 of the Convention that:
(a) he
had no defence lawyer when under arrest despite the fact that the law
obliged the authorities to provide him, as a military serviceman,
with a defence lawyer;
(b) the
domestic courts failed to assess properly the evidence in favour of
his innocence and admitted the evidence obtained under torture; and
(c) the
Court of Cassation failed to give proper reasons for its decisions
and arbitrarily dismissed his appeals on points of law.
- The
applicant complains under Article 14 of the Convention and Article 1
of Protocol No. 12 that both the investigative authorities and the
courts considered the statements of the military police officers to
be credible when deciding not to institute criminal proceedings
against them, while the evidence obtained by those military police
officers through beatings and torture served as the basis for his
conviction.
- Lastly,
the applicant complains under Article 2 of Protocol No. 7 that the
Court of Appeal did not assess properly the factual circumstances of
the case while the Court of Cassation refused to admit the case to
its proceedings.
THE LAW
A. A lack of effective investigation into the
applicant’s allegations of ill-treatment
- The
applicant complains that no effective investigation was conducted by
the authorities into his allegations of ill-treatment by the military
police officers. He invokes Article 3 of the Convention which
provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Court considers that it cannot, on the basis of the file, determine
the admissibility of this part of the application and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of the
Rules of the Court, to give notice of this complaint to the
respondent Government.
B. Other alleged violations of the Convention
- The
applicant also raised a number of other complaints under Article 5
§§ 1 (c) and 3, Article 6 § 1 and 14 of the Convention
as well as Article 1 of Protocol No. 12 and Article 2 of Protocol No.
7 (see paragraphs 40–43 above).
- Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention or its Protocols. It follows that this part
of the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s
complaint concerning the ineffectiveness of the investigation into
his allegations of ill-treatment;
Declares the remainder of the application inadmissible.
Marialena Tsirli Josep Casadevall
Deputy Registrar President
