MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-1

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-1 Mushegh Saghatelyan group v. Armenia (Application No. 23086/08) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)980, CM/Del/Dec(2020)1377/H46-2

 

Application	Case	Judgment of	Final on	Indicator for the classification
23086/08	MUSHEGH SAGHATELYAN	20/09/2018	20/12/2018	Complex problem
36469/08	TER-PETROSYAN	25/04/2019	25/07/2019
61730/08	MATEVOSYAN	10/10/2019	10/10/2019
6822/10	GASPARI	26/03/2020	26/03/2020
44841/08	JHANGIRYAN	08/10/2020	08/01/2021
49021/08	SMBAT AYVAZYAN	08/10/2020	08/01/2021
49020/08	MYASNIK MALKHASYAN	15/10/2020	15/01/2021
8049/10	HOVHANNISYAN	18/05/2021	18/05/2021
1879/10	MIKAYELYAN[1]	31/08/2021	31/08/2021
63845/09	ARZUMANYAN[2]	31/08/2021	31/08/2021

Case description

In the present cases, the Court found various violations of Articles 3, 5, 6, 11 and 13 of the Convention in the context of the dispersal by the authorities of the wide-scale opposition protests against the outcome of the 2008 presidential elections:

-     ill-treatment by the police after the dispersal and absence of any official investigation (substantive and procedural violations of Article 3 in Mushegh Saghatelyan);

-     degrading treatment on account of the conditions of detention in Nubarashen remand prison in 2008 (violation of Article 3[3]);

-     unlawful arrest and detention on various grounds (violations of Article 5 § 1 in Mushegh Saghatelyan, Jhangiryan, Smbat Ayvazyan and Myasnik Malkhasyan) and lack of relevant and sufficient reasons for subsequent detention (violations of Article 5 § 3 in Mushegh Saghatelyan, Jhangiryan and Smbat Ayvazyan), as well as the domestic court’s unjustified refusal to examine the applicant’s appeal against his extended detention (violation of Article 5 § 4 in Smbat Ayvazyan);

-     unfair criminal trials on account of the fact that the courts relied on police testimony for the convictions while summarily rejecting both the allegations of inconsistencies and the requests to call defence witnesses (violations of Article 6 § 1 in Mushegh Saghatelyan, Matevosyan, Gaspari, Smbat Ayvazyan) and on account of the lack of impartiality of the judge, owing to his son’s involvement in the pre-trial investigation of the criminal case in question (Jhangiryan);

-     disproportionate and unnecessary dispersal of the peaceful protests and related detention, prosecution and convictions of activists and opposition supporters (violations of Article 11 in Mushegh Saghatelyan, Ter-Petrosyan, Matevosyan, Jhangiryan, Smbat Ayvazyan, Mikayelyan andArzumanyan);

-     ungrounded dismissal of a civil servant following his participation in the opposition protest (violation of Article 11 in Hovhannisyan);

-     lack of effective domestic remedy for grievances under Article 11 (violation of Article 13 in conjunction with Article 11 in Ter-Petrosyan).

Status of execution

Previous examination: The Committee of Ministers examined this group of cases for the first time at its 1377^th meeting (June 2020) (DH). As regards individual measures, the Committee urged the authorities to finalise the new investigation into the applicant’s ill-treatment in the Mushegh Saghatelyan case and to provide information on the outcome of the reopened criminal proceedings against Mr Matevosyan as well as on the developments in the Gaspari case. As regards general measures, the Committee, inter alia, called on the authorities to adopt the draft laws on combatting ill-treatment without further delay; to clarify the use of audio and video surveillance equipment in police premises, in particular as to the law enforcement agencies obligation to use the interrogation recordings as evidence; to provide information as to the functioning of the judicial remedy against the prison administration in the context of ill-treatment and as to the results of examination of the appeals submitted; strongly urged the authorities to adopt the draft Code of Criminal Procedure without any further delay.

New Action Plan submitted by the authorities: In response to the Committee’s decision, on 5 October 2021 the authorities submitted an updated action plan (see DH-DD(2021)980). It can be summarised as follows:

Individual measures:

As regards the new investigation launched into the applicant’s ill-treatment in the Mushegh Saghatelyan case, the investigative authorities were not able to question the applicant due to his poor health. The authorities submitted that more than 50 witnesses were questioned, and a number of operative-investigative measures were ordered. The investigation is still pending.

Following the re-opening of the criminal proceedings against the applicants in the cases of Matevosyan and Gaspari, the applicants were acquitted on 25 May and 28 October 2020, respectively. The applicants in the cases of Jhangiryan and Smbat Ayvazyan, were acquitted by the Court of Cassation on 18 September and 20 December 2019 respectively.[4] In addition, the authorities indicated that, given the nature of the violations and the factual circumstances in the cases of Myasnik Malkhasyan[5] and Hovhannisyan[6], no other individual measures were necessary.

Lastly, in addition to the information submitted in the previous action plan, the just satisfaction awarded by the Court has been paid in the cases of Jhangiryan, Myasnik Malkhasyan, Smbat Ayvazyan and Hovhannisyan.[7]

General measures:

1.   Ill-treatment and ineffective investigations (violations of Article 3)

The authorities provided detailed information on the recent legislative measures aimed at tackling ill-treatment and to prevent ineffective investigations. In particular, the new Criminal Code (CC) and the new Code of Criminal Procedure (CCP) were adopted on 27 May and 30 June 2021, respectively.[8] A key new element is that the new legislation excludes application of the statute of limitation, pardon or amnesty for ill-treatment inflicted by state agents.

2.   Measures to address poor conditions of detention (violation of Article 3)

As regards a preventive remedy, the authorities presented examples of final judgments of the Administrative Court, where persons deprived of liberty could contest actions, inactivity or decisions of the prison administration (such as failure granting additional hours of outdoor activity, refusal to apply amnesty and imposing a penalty on a convicted detainee).

No additional information was provided by the authorities related to the conditions of detention.

3.   Measures to address Article 5 violations

The new CCP introduces a number of changes aimed at ensuring the rights under Article 5 §§ 1, 3 and 4. They notably relate to the following: a person is considered detained from the moment of the de facto deprivation of liberty; detention on remand is a measure of last resort, which can be applied only if the alternative non-custodial measures are insufficient and only in case of existence of a reasonable suspicion in addition to the ground for detention; the law provides for the maximum period for pre-trial detention, from four to twelve months based on the gravity of the charges; the law defines the time-limits for lodging and examination of detention motions and for the delivery of the respective judicial orders; when requesting extension of the detention, the investigating body must prove before the court that it acted with the required diligence; the person must be released if the initial grounds for detention are no longer relevant; the first instance courts’ detention orders can be challenged before the Court of Appeal regardless of the stage of criminal proceedings.

4.     Measures related to policing peaceful assemblies (violation of Article 11)

In the context of the large-scale reforms in the police sector launched in December 2019, the has authorities have undertaken the establishment of a new Patrol Service. The candidates to be employed in this Service are being selected by a commission comprising representatives of the relevant state bodies, civil society, as well as international partners and psychologists. The training program for the new employees started in December 2020 and, among other topics, includes courses on human rights. On 7 July 2021, the Yerevan subdivision of the Patrol Service launched its activities. It will be fully operational throughout the Republic of Armenia before the first quarter of 2023.

5.     Compensatory remedy

The Civil Code prescribes compensation for non-pecuniary damage for a number of violations of fundamental rights and freedoms, including the right not to be subjected to torture or inhuman or degrading treatment or punishment, right to liberty and security, right to a fair trial, freedom of assembly and association and the right to an effective remedy. Furthermore, a study of judicial practice on the application of the mentioned provisions, conducted by the authorities, revealed that out of the 37 randomly selected complaints 25 were granted in accordance with the requirements of the Civil Code. The remaining complaints were rejected on account of insufficient basis for the compensation and the court decisions were upheld by superior courts.

6.     Training and awareness raising

The training curricula of the Justice Academy, the Police Academy as well as the Centre for Legal Education and Implementation of Rehabilitation Programmes include training courses on the Convention and the Court’s case-law in general, and judgments delivered in respect of Armenia, in particular. Relevant courses on both the Convention and the Court’s case-law are also included in the academic programmes of higher education institutions of Armenia.

Analysis by the Secretariat

Individual measures:

-       Individual measures reported by the authorities

No individual measures are required in respect of the violations of Article 5 in the cases of Jhangiryan, Smbat Ayvazyan andMyasnik Malkhasyan, as the applicants have been released from detention.

Since the applicants were acquitted in the cases of Matevosyan, Gaspari, Jhangiryan and Smbat Ayvazyan, no further individual measures are thus necessary in these cases, and in Mushegh Sagathelyan,[9] as it appears that the violations of Article 6 have been redressed through the re-opening of the proceedings and the applicants’ acquittals.

Likewise, no further individual measures are required in the cases of Mushegh Saghatelyan, Ter-Petrosyan, Matevosyan, Jhangiryan and Smbat Ayvazyan as regards the violations of Article 11. The applicants’ convictions for participation in the protests have been quashed in all cases[10] and it appears that at present no other consequences of their annulled convictions or established breaches persist. Similarly, as regards the case of Hovhannisyan the review of the applicant’s dismissal found to be contrary to Article 11 is no longer possible given the applicant’s failure to request the reopening of domestic proceedings and expiry of the time-limit in this respect.

Consequently, taking into account the just satisfaction payments and the measures undertaken referred to above, the Committee may wish to close its supervision of the cases of Matevosyan, Jhangiryan, Myasnik Malkhasyan, and Hovhannisyan. This would in no way prejudge the Committee’s continued examination of the outstanding general measures.

-       Individual measures still outstanding

Concerning the investigation launched into the applicant’s ill-treatment in the Mushegh Saghatelyan case, the authorities are invited to provide the Committee with detailed information on the means deployed to overcome the existing obstacles in the investigation and as to what investigatory steps can still be taken. It is recalled that the authorities should take all necessary measures to rectify the shortcomings in the investigation identified by the Court, including the failure to provide reasons rejecting the applicant’s account of the events, supported by the forensic medical examination which established his injuries, and his request to call witnesses who were allegedly capable of supporting his account of events.[11] As noted by the Committee during its previous examination, it is important to ensure availability of evidence during the
re-opened investigation and avoid the applicability of prescription through the passage of time. The need for speedy investigation and bringing the case to a close is further underlined by the applicant’s poor health. Information is awaited on the results achieved. The authorities are invited to provide information on the payment of the just satisfaction the case of Gaspari. Information on the individual measures adopted in the new cases of Mikayelyan and Arzumanyan is awaited.

General measures:

It is recalled that the general measures concerning the substantive and procedural violations of Article 3 of the Convention on account of torture in the police custody and lack of effective investigations thereof are already examined in the context of the Virabyan group of cases. It is proposed therefore to concentrate in this group of cases, in addition to the issue of conditions of detention, on the special measures which are required to tackle the problem of disproportionate and unnecessary dispersal of the peaceful protests and interference with the right to freedom of assembly․ Consequently, measures to address the violations of Articles 5, 6 and 13 will be examined also in the context of the violation of Article 11 with a view to assessing whether the issues of unlawful and arbitrary detention, unfair criminal or administrative proceedings and dispersals of public assemblies have already been or are being addressed by the authorities.

A.  Measures to address poor conditions of detention (violation of Article 3 of the Convention)

As concerns material conditions of detention in Nubarashen prison, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in its report on the visit to Armenia in December 2019[12] noted that the conditions in this prison remained poor despite ongoing refurbishment on the ground floor, in the health-care unit and the kitchen. The CPT also noted an important drop in the prison population and the improvement of the quality of the food. The report noted further that the Government intended to close this prison by the end of 2022 and to replace it with a newly constructed establishment.[13] The authorities are invited to keep the Committee informed on the progress in the construction of the new prison and on transitional measures adopted to improve conditions of detention in Nubarashen prison in the meantime.

As concerns the preventive remedy, the examples provided by the authorities of favourable outcome of the complaints against the prison administration are noted. It is important that the complaints against prison administration are examined by the domestic authorities, notably the courts, in due time considering the urgency of each complaint and the special vulnerability of persons deprived of liberty. [14] Therefore, the authorities are invited further to provide information regarding the effectiveness of the preventive remedy.

B.  Measures to prevent the violations related to the exercise of the right to freedom of peaceful assembly (violations of Articles 5, 6, 11 and 13)

It is recalled that the right to freedom of peaceful assembly is a fundamental right in a democratic society. Previously the Committee has been asking for further legislative and practical changes in the light of the relevant recommendations made by the Human Rights Defender of Armenia and the UN Special Rapporteur.[15] In this context, it should be noted that certain legislative measures strengthening the freedom of assembly have been adopted by the authorities in the context of the case of Helsinki Committee of Armenia^[16] and were considered by the Committee as satisfactory. However, it appears that further reforms are still indispensable in practice for the reasons presented below.

Institutional and legal framework guaranteeing freedom of assembly and its implementation

It should be noted that the Armenian Human Rights Defender’s annual report of 2020 highlighted that problems related to the protection of the right to freedom of assembly persisted. It referred to mass apprehensions, disproportionate and unnecessary use of force by the police, failure to immediately inform the person about the reasons for arrest, failure to guaranty the minimum rights of apprehended persons and to determine the initial moment of arrest and detention for a period longer than that established by the law.^[17] In this context, the long-awaited adoption of the new Code of Criminal Procedure is an important and welcome measure. The new Code aims at strengthening the guarantees against unlawful detention and at ensuring fair trial standards, including in the context of mass demonstrations. It is crucial that the authorities ensure its proper implementation and continue their efforts to guarantee the full exercise of the freedom of assembly.

Judicial practice and domestic remedies with respect to conduct of assemblies

Taking into account that the Court found the lack of effective domestic remedy for grievances under Article 11,[18] the authorities submitted previously that the Code of Administrative Procedure provides for the right to complain against any restriction or prohibition of assemblies. In order to enable the Committee to assess the application of this remedy, the authorities are invited to provide examples of judicial practice in in this respect. In addition, it would be useful to receive information on the application of the compensatory remedy in the context of the violations of the freedom to peaceful assembly.  

Statistical data on exercise of freedom of assembly

The authorities are invited to provide the following statistics for the period 2019 – 2021 to allow the Committee to assess the extent to which freedom of assembly is practically secured:

(i)             the number of demonstrations which took place;

(ii)            the number of persons deprived of liberty and sanctioned for participating in mass demonstrations by means of administrative or criminal proceedings;

(iii)           the number of cases in which force was used by the police during demonstrations, notably the crowd control weapons or other means of restraining the protestors;

(iv)          the number of disciplinary and criminal proceedings against police officers related to the unnecessary or disproportionate use of force, unlawful or arbitrary deprivation of liberty of participants at demonstrations.

Other institutional and practical measures

The government’s efforts to change the image of the police and increase public trust in them, as well as to review their professional education by establishing the new Patrol Service are noted. The relevant order of the Chief of the Police prescribes the tasks of the Service to maintain public order and ensure public safety, protect human rights and freedoms, as well as to support other police forces ensuring safety of the mass demonstrations.[19] Nevertheless, this order does not clarify its specific functions with regard to the protection of public order and human rights during mass demonstrations. Thus, clarifications would be welcome in this regard.

In addition to the general training on the Convention and the Court’s case-law, it would be useful to receive information on the specific police trainings as regards public protests.

Financing assured: YES