MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-5

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-5 Virabyan group v. Armenia (Application No. 40094/05) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1237, DH-DD(2024)1300, DH-DD(2024)1340, CM/Del/Dec(2024)1492/H46-1

 

Application	Case	Judgment of	Final on	Indicator for the classification
40094/05	VIRABYAN	02/10/2012	02/01/2013	Complex problem
9935/06	NALBANDYAN	31/03/2015	30/06/2015
11244/12	GULYAN	20/09/2018	20/12/2018
30779/13	DAVTYAN	01/03/2022	01/03/2022
54261/13	DAVTYAN	01/03/2022	01/03/2022
45197/14	ARSENYAN	31/01/2023	31/01/2023
2265/12	VARDANYAN AND KHALAFYAN	08/11/2022	08/02/2023
2186/12	YENGIBARYAN AND SIMONYAN	20/06/2023	20/09/2023

·  Co-operation project: ID 3012 – Support to the effective execution of the judgments of the European Court of Human Rights in Armenia (2023-2024); ·  Co-operation project: VC 3136 – Strengthening the protection of the rights of persons in detention.

Case description

This group of cases concerns ill-treatment, torture or death in police custody, that occurred in the period from 1999 to 2013, and lack of effective investigations in this respect (substantive and procedural violations of Articles 2 and 3).

In Nalbandyan (Nos. 9935/06 and 23339/06) the Court found a violation of Article 6 §§ 1 and 3(c) in that the first and second applicants were deprived of effective legal assistance and a violation of Article 6 § 1 in that the first applicant was disproportionately denied access to court.

In Davtyan (No. 54261/13) the Court also found a violation of Article 6 as regards the unfairness of the applicant’s trial as a whole, considering that the domestic courts relied on the confession obtained under duress when finding the applicant guilty.

This group also concerns the authorities’ failure to comply with their obligation to minimise the risk of loss of life and to demonstrate sufficient consideration for the pre-eminence of the right to life in the planning and control of police operation.^[1]

Status of execution

Previous examination: The Committee of Ministers examined this group of cases last time at its 1492^nd meeting (March 2024) (DH).

As regards individual measures, the Committee noted the extensive measures taken towards achieving redress in the Virabyan case and considered that no further individual measures were necessary. It also decided to close two other cases. Further, it reiterated its call to the authorities to rapidly complete pending investigations in the Nalbandyan and Gulyan cases, provide clarifications as concerns reopening of investigation in the Yengibaryan and Simonyan, and keep the Committee informed on the developments in the Davtyan (No. 30779/13), Davtyan (No. 54261/13), Arsenyan and Vardanyan and Khalafyan cases.

As regards general measures, the Committee encouraged the authorities to continue promoting the “zero-tolerance” policy among all the police officers and invited them to provide updated statistical data on the investigation of ill-treatment cases. It requested the authorities to provide information on:

• measures taken to enhance the institutional capacity of the Investigative Committee, including on the relevant training and capacity building activities; 
• progress in creation of the envisaged anonymous referral mechanism for complaints about alleged
  ill-treatment;
• development of recommendations and forms for documenting and reporting ill-treatment in police custody;
• measures taken to ensure that police operations are conducted in a manner compliant with the authorities’ obligation to minimise the risk of loss of life;
• police reform.

It also decided to close its examination of the aspect related to the authorities’ failure to investigate political motives underlying ill-treatment of the applicant in the Virabyan case (procedural violation of Article 14 in conjunction with Article 3).

In response to the Committee’s decision, the authorities submitted an updated action plan on 3 October 2024 (DH-DD(2024)1237) and a communication on 4 October 2024 (DH-DD(2024)1300). Information on the latest developments was submitted on 18 November 2024 (DH-DD(2024)1340). It can be summarised as follows:

Individual measures:

As regards violations of Article 2 and Article 3[2]

Nalbandyan case: the proceedings were reopened on 9 January 2017 by the Gegharkunik Regional Court and a new investigation was initiated on 26 January 2017. The Special Investigative Service interrogated all possible witnesses, alleged perpetrators and the applicants. It was impossible to interrogate two alleged perpetrators, one witness and one doctor who examined the third applicant, as they were dead by then. The available medical evidence was also examined and confrontations carried out. Criminal charges have been brought for use of force in excess of power accompanied by violence (Article 309 § 2 of the old Criminal Code) against G.H., an investigator at the Gegharkunik Regional Prosecutor’s Office in 2004. Further, the investigative body commissioned forensic psychological examination as well as initiated other investigative measures. However, because of the time elapsed since the events and the omissions in the initial investigation, the evidence obtained as a result of the measures taken was not sufficient to meet the standard of proof beyond reasonable doubt. Therefore, on 22 April 2019 the prosecutor dropped the charges brought against G.H. and the criminal case was suspended according to the requirements of the procedural laws applicable at the material time. Upon the victim’s appeal, these decisions were annulled on 25 August 2020 by the Prosecutor General’s Office. The Investigation Committee continued the investigation and suspended it again on 25 January 2022.^[3]

Gulyan case: the investigation was re-opened on 28 March 2019. More than 50 former and current officers of the Principal Department of Criminal Intelligence, where the incident took place, were questioned as witnesses. Moreover, Mr Gulyan’s widow and one of the five prosecutors of the Shengavit district (the other four are out of the country) who conducted the pre-trial investigation were questioned as well. During the investigation all the police officers stated that Levon Gulyan had not been subjected to any ill-treatment or pressure. Mr Gulyan’s widow attested that she had not noticed any obvious injuries on her husband’s body the night before the incident.

The investigative experiment carried out with three dummies (made in accordance with anthropomorphic data of the victim), which was videotaped from three different angles, showed that his injuries could have been sustained during the fall. This experiment was attended by the victim’s relatives, the legal representative and the forensic medical expert. On 26 February 2021, the investigation was suspended as it was impossible to bring charges against anyone. The applicant appealed against this decision to the court.^[4]

The authorities submitted that in both Nalbandyan and Gulyan cases they explored all possible avenues to obtain new evidence, but given the considerable time passed since the events at issue (20 years in Nalbandyan and 17 years in Gulyan) and considering the shortcomings in the initial investigations and loss of evidence, no further progress in these investigations is possible. Procedurally, following the adoption of the new Code of Criminal Procedure (CCP), which does not provide for possibility of suspension of an investigation, the investigations in Nalbandyan and Gulyan cases were resumed in April 2023. Considering the fact that the new CCP sets a high standard of termination of criminal cases (aiming at fighting the misuse of this procedure by the investigating authorities), these investigations could not be terminated based on the current legislation and are now in the phase of “passive investigation”, meaning that no further investigation is ongoing or feasible. The authorities invited the Committee to close its examination of the individual measures in these cases, and committed to continue the investigation should new evidence arise, despite the eventual closure of these cases by the Committee.^[5]

Davtyan case (No. 54261/13): the authorities recalled that on 18 December 2023 the Court of Cassation dismissed the prosecutor’s request to reopen the investigation into ill-treatment on the ground that it was lodged out of time. In the updated information provided on 18 November 2024 (see DH-DD(2024)1340), the authorities clarified that no other procedural avenues exist at the domestic level to ensure effective investigation into the applicant’s ill-treatment or offer him other means of redress. Hence, they invited the Committee to close the supervision of this case.

Davtyan (No. 30779/13), Arsenyan and Vardanyan and Khalafyan cases: the Court of Cassation reopened the proceedings on the ground of new circumstances.

Yengibaryan and Simonyan case: the Prosecutor’s Office considered ex officio the possibility of reopening the investigation into the death of Mr Yengibaryan. However, it concluded that this is not possible on account of the expiration of the limitation period. The authorities reiterated that the applicants did not apply for the reopening of the proceedings. Hence, the authorities invited the Committee to close the supervision of this case.

As regards other violations

As concerns the violations of Article 6 §§ 1 and 3(c) in the Nalbandyan case, the criminal proceedings against the first and second applicants were reopened, and they were acquitted on 5 December 2023.^[6]

As concerns the violation of Article 6 in the Davtyan case (No. 54261/13), the Court of Cassation granted the defence attorney’s request for the reopening of the criminal proceedings against the applicant, reversed the decisions of the lower courts and sent the case to the first-instance court for a new examination.Following the Court of Cassation’s decision the applicant was immediately released. 

General measures:

A)    Overview of the general measures adopted

The authorities recalled the wide range of legislative, institutional and practical measures adopted in response to the Court’s judgments in this group of cases, which have been reported previously, in particular:

·         As of 2014, Armenia adopted a “zero-tolerance” policy towards ill-treatment by state agents and initiated a large range of substantive and procedural measures aimed at addressing this issue.

·         The new Criminal Code adopted in 2021, includes a definition of torture, compliant with the UN and European standards, and provides for dissuasive sanctions taking into account the aggravating circumstances. This new Code imposes a ban on pardoning, amnesty or application of the statute of limitation for acts of torture.

·         The new CPC, elaborated with Council of Europe co-operation support and adopted in 2021, brought substantive changes to the procedure of initiating criminal investigations: the preparatory phase was excluded, and the investigation is initiated as a rule, while the refusal to initiate is an exception. This CPC is built on a human rights-based approach, thus the threshold for initiating the investigation is very low and unfounded complaints are being filtered only after conducting a set of investigating activities. Although these measures increased the number of initiated criminal cases, they ensure an important procedural safeguard and another step for the implementation of the “zero-tolerance” policy. The new CPC stipulates the minimum rights of the arrested persons, which is in line with the standards of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment (CPT).

·         Further, the CPC provides that all investigative actions, including questionings, should be audio and video recorded from the start till the end without any interruptions (unless it is objectively impossible); the recordings cannot be edited and are attached to the minutes of the questioning. Audio and video surveillance was also installed at the entry and exit points of police stations.

·         After the dissolution of the Special Investigative Service in 2021 and the introduction of the new CPC, the investigation of ill-treatment is conducted by the Investigative Committee. Complaints into alleged ill-treatment by the investigators of the Investigative Committee are examined by the Anti-Corruption Committee.

B)    Information in response to the last decisions of the Committee of Ministers

·         Statistical data

In 2023, the Internal Security and Anti-corruption Department of the Ministry of Internal Affairs conducted 150 disciplinary investigations: in 58 of them no factual data could be obtained to confirm the use of violence, in 92 cases the proceedings were suspended pending criminal investigations. In January-September 2024, 47 disciplinary investigations were initiated: in 10 cases no data could be obtained to confirm the use of violence and 37 cases were suspended pending criminal investigations.  

According to data of the Prosecutor General’s Office, in 2022 340 criminal cases of alleged ill-treatment were investigated, out of which 90 were terminated and 1 sent to court. In 2023, 507 criminal cases were investigated, out of which 106 were terminated and 5 sent to court.

The authorities explained that the discrepancy between the number of investigated cases and those sent to court is due to the very low threshold for initiating an investigation. Unmeritorious cases are being dismissed only after conducting a series of actions and investigative steps, if required. Another factor relied on by the authorities are numerous complaints from persons under investigations, which can allege ill-treatment to defend themselves or retaliate against the investigative body.

 

·         Institutional capacity

In 2022, a new department specialised in investigation of ill-treatment by state agents was established in the Investigative Committee. It is staffed with eight investigators, who according to the provisions of the Law on the Investigative Committee, should undergo a training at the Academy of Justice at least once every two years. The training programme includes inter alia topics on the legal qualification of ill-treatment, methods of investigation, the relevant European human rights standards, including the European Court’s case-law, notably judgments concerning Armenia. In 2023, 168 investigators and 57 senior staff members undertook these trainings. The authorities provided information about additional trainings conducted in 2023 in cooperation with the international and national counterparts, including the Council of Europe, which involved at least 42 investigators.

• Documenting ill-treatment and anonymous referral mechanism for complaints

Both internal and external complaint mechanisms are in place. In particular, in 2021 the Government adopted a decree introducing the procedure of filling in and monitoring the medical examination protocol. The Ministry of Justice adopted the medical examination form and related guidelines. In case of signs of ill-treatment or based on a complaint from a detainee in a penitentiary institution, the procedure required the doctor to send the report to the investigative body, notify the Prosecutor General’s Office and send a copy of the report to the Penitentiary Medical Centre of the Ministry of Health.

Given that this system proved its effectiveness in the penitentiaries, it is now being extended to the police establishments. In contrast with the previous practice when a doctor was called to the police detention facility only when there were signs of bodily injury on the detained person, currently an ambulance is called every time a person is brought to a police detention facility. In addition, the officers of the Patrol Service carrying out apprehensions are equipped with body cameras.

Further, the authorities prepared amendments to the Law on Holding Arrested and Detained Persons, which aim to regulate the procedure for medical examinations and documentation of ill-treatment claims from detained persons. The authorities submitted a copy of the draft medical examination form and draft guidelines explaining how the medical examination should be conducted and the form filled in, referred to the competent authorities and stored. The amendments provide the obligation of the medical staff to immediately report alleged ill-treatment cases to the investigative bodies.

Moreover, the domestic complaint mechanism also includes: (i) the installation of locked complaint boxes in the penitentiary institutions and instituting a confidential postal procedure for receiving complaints from persons deprived of liberty; and (ii) a whistleblowing system, which works also through a unified electronic whistleblowing platform.

In June 2024, a workshop on the documentation of alleged ill-treatment in police detention facilities was organised in the framework of the Council of Europe Project “Strengthening the protection of the rights of persons in detention”. At this event the Council of Europe consultants presented their recommendations for enhancing the system of documenting such cases within police detention facilities.[7]

·         Conduct of police operations

On 24 October 2024, the National Assembly adopted the Law on Police Guard. It regulates the use of force by police, in particular physical force, special means, firearms and combat equipment. It stipulates the situations in which the force can be applied, as well as grounds, conditions and requirements of proportionality. The law provides that police guards should be trained inter alia on human rights, ethical principles of communication with the public, establishing psychological contact and negotiation skills, proportionate use of force, apprehension and search of a person and on other issues, depending on the functions of the unit they are part of.

• Police reform

On 15 November 2024, the Government adopted the new Strategy for Police Reform and Action Plan for 2024-2026. It envisages a series of measures, such as the capacity building of the staff of the Ministry of Internal Affairs on recording ill-treatment complaints, equipping all police units with a unified video surveillance system with centralised storage of video footage, development of leaflets on the rights of arrested persons in ten languages, revision of the regulations on public observers in the police detention facilities.

Finally, the authorities referred to the CPT findings in its Report of 13 November 2024, in particular that most of the persons interviewed stated that they had been treated correctly by the police and that the situation has generally improved as compared to 2019 in the part related to legal safeguards against ill-treatment. They also submitted that three communicated cases,[8] which are currently pending at the Court concern events of 2011-2012 and 2016, i.e. before the adoption of the reported general measures.

In view of the above, the authorities invited the Committee of Ministers to close the case of Virabyan.

Analysis of the Secretariat

Individual measures:

No further individual measures appear possible as concerns violations of Article 2 and 3 in the Nalbandyan and Gulyan cases, where the investigative authorities took all possible measures to rectify the shortcomings in the initial investigations. However it was not possible to identify perpetrators or obtain sufficient evidence to prove commission of a crime by specific individuals. It appears that these investigations have no further prospects of success.

It is noted that the Armenian legislation allows victims to challenge the investigator’s decisions before a prosecutor and/or a court, and that the applicants made use of this recourse; that the just satisfaction awarded by the Court was paid; and that no further individual measures are necessary in the Nalbandyan case as concerns the violations of Article 6 § 1 and 6 § 3 (c) given that the first and second applicants were acquitted.[9]

No further individual measures are also possible in the Yengibaryan and Simonyan case given that, as concluded by the prosecutorial authorities, the statute of limitations for the offence at issue expired.

In these circumstances, the Committee might thus wish to close the cases Nalbandyan, Gulyan and Yengibaryan and Simonyan with deep regret.

It can also be regretted that in the Davtyan case (No. 54261/13), the prosecutorial authorities failed to lodge the reopening request with the Court of Cassation within the statutory time-limit and that, in consequence, this request was dismissed. The Committee could instruct the Secretariat to assess the individual measures in this case in the light of the clarifications provided by the authorities on 18 November 2024.

As concerns the violation of Article 6 in this case (unfair trial, due to the domestic courts reliance on confession obtained under duress), the authorities could be invited to keep the Committee informed on the outcome of the reopened criminal proceedings and on whether this violation was rectified.

As regards the Davtyan,[10]Arsenyan and Vardanyan and Khalafyan cases, the Committee might wish to call the authorities to rapidly complete the pending proceedings and to keep it informed on their progress and outcome. In this context, the Committee could reiterate that the swiftness of the authorities’ actions with regard to the reopened investigations is crucial to avoid the loss of evidence due to the passage of time.

General measures:

At its previous examinations, the Committee has already noted positively a range of important reforms undertaken by the authorities to address the violations similar to those found by the Court in this group of cases. These included, among other measures:

·         the adoption of the new Criminal Code and Criminal Procedure Code, which abolished pardons, amnesties and the statute of limitations for the crime of torture;

·         enhancing safeguards against ill-treatment;

·         placing an obligation on investigative authorities to conduct video recording of investigative actions and installing audio and video surveillance at the entry and exit points of police stations; 

·         legislative and practical measures taken to investigate any political motives underlying ill-treatment;

·         adoption of the forms for documenting ill-treatment in prisons;

·         measures aimed at changing the image of the police, increasing public trust in police officers, as well as reviewing their professional education.

Further measures taken, in particular a comprehensive police reform, continuing capacity building for investigative bodies and enhancing the system of documenting and reporting cases of ill-treatment in police detention facilities, are also positive.

The CPT, in its Report on the visit to Armenia from 12 to 22 September 2023, noted in the part related to the legal safeguards against ill-treatment (information on rights, notification of custody, access to a lawyer and to a doctor), that the situation generally improved as compared to its 2019 periodic visit. It noted that this is at least in part due to the entry into force of the new Criminal Procedure Code. It also observed that most of the persons interviewed by the delegation, who were or had recently been in police custody, stated that they had been treated correctly by the police. It further noted, however, that the delegation had heard some allegations of recent excessive use of force during arrest or during initial questioning in a police establishment and of physical ill-treatment inflicted during questioning by investigators from the Investigative Committee and from the National Security Service.[11]

Thus, the authorities should be encouraged to continue further promoting the “zero-tolerance” policy with determination among the police and staff of the investigative bodies, including the Investigative Committee and the Anti-Corruption Committee. To allow the Committee to observe the trends, the authorities are again invited to provide updated statistical data, disaggregated by articles of the Criminal Code and the state officials concerned, including on the outcome of the cases sent to court, as well as the data on disciplinary investigations.

The measures initiated by the authorities to improve the system of documenting ill-treatment and referral mechanism for complaints of ill-treatment in police detention facilities can be noted with interest. Similarly, as concerns the conduct of police operations, the adoption of the Law on Police Guard on 24 October 2024, which regulates the use of force by the police and impose proportionality exercise, can be welcomed. The authorities could be invited to report on the practical training of Police Guard staff to ensure that force is applied in a manner compliant with Article 3 of the Convention and the authorities’ obligation to minimise the risk of loss of life, as well as on the implementation of the new Strategy for Police Reform. 

Overall conclusion

Given the considerable efforts made by the authorities to prevent similar violations and adoption of a set of important general measures, which include complex legislative and institutional reforms, and recalling that at it last examination the Committee decided that no further individual measures were necessary in the Virabyan case considering the extensive measures already taken by the authorities towards achieving redress, it is proposed to close the case of Virabyan and continue the examination of the remaining individual and general measures in the framework of the Vardanyan and Khalafyan group. At the same time, the authorities are strongly encouraged to continue their efforts to fully address the remaining concerns, and invited to keep the Committee informed on further progress and submit updated information specified above.

Financing assured: YES