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THIRD
SECTION
CASE OF HARUTYUNYAN v. ARMENIA
(Application
no. 36549/03)
JUDGMENT
STRASBOURG
28 June
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Harutyunyan v. Armenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr J.-P.
Costa,
Mrs A. Gyulumyan,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele,
Mrs I.
Berro-Lefèvre, judges,
and Mr S. Quesada, Section
Registrar,
Having
deliberated in private on 7 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36549/03) against the Republic
of Armenia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Armenian national, Mr Misha Harutyunyan
(“the applicant”), on 29 October 2003.
- The
applicant, who had been granted legal aid, was represented by Mr H.
Alumyan, a lawyer practising in Yerevan. The Armenian Government
(“the Government”) were represented by their Agent,
Mr G. Kostanyan, Representative of the Republic of Armenia
at the European Court of Human Rights.
- On
5 July 2005 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the lack of a
fair trial to the Government. Under the provisions of Article 29 §
3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1980 and lives in Yerevan.
1. Background to the case
- 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.
- On
3 December 1998 the applicant, together with five fellow servicemen,
was placed on watch in position no. 24.
- 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.
2. Arrest of the applicant and servicemen T. and A.,
and their ill-treatment
- 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.
- 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
fingernails with pliers. The same torture techniques were applied to
servicemen T. and A.
- 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.
- 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 fingernails were swollen.
3. The applicant's confession and the institution of
criminal proceedings against him
- 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.
- 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.
- 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.
- 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.
- 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.
4. The applicant's conviction at first instance
- On
an unspecified date, the applicant's criminal case was brought before
the Syunik Regional Court (Սյունիքի
մարզի առաջին
ատյանի դատարան).
- On
26 October 1999 a hearing was held during which serviceman T.
confirmed his earlier testimony against the applicant.
- On
6 December 1999 the Syunik Regional Court found the applicant guilty
of premeditated murder and sentenced him to thirteen years'
imprisonment.
- 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.
- On
12 September 2000, following the additional investigation, the case
was brought again before the Syunik Regional Court.
- On
13 June 2001 the Syunik Regional Court decided to remit the case for
further investigation.
- 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.
- In
the proceedings before the Syunik Regional Court, the applicant's
lawyer asked that the applicant's confession statements of
16-17 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 been already instituted against the relevant military police
officers on account of the torture of the applicant and servicemen T.
and A.
- 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: ...”
- 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.].”
- 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.”
- 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.
5. Conviction of the military police officers
- 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
fingernails 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 go 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...”
- 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.
- 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.
- 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.
- In
his witness statement, serviceman T. submitted, inter alia,
that on 30 November 1999, under pressure from police officer M.,
he testified to the investigator that nobody had beaten him.
- On
an unspecified date the applicant's lawyer lodged an appeal against
this judgment.
- 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.
- On
26 December 2002 the Court of Cassation (ՀՀ
վճռաբեկ դատարան)
upheld this decision.
6. Appeal and cassation proceedings in the applicant's
criminal case
- On
an unspecified date the applicant lodged an appeal against his
conviction of 19 June 2002.
- 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.
- 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.
- 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. 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.
- The
Court of Appeal concluded by stating that the evidence obtained under
coercion in the military police station, which was corroborated by
the factual circumstances of the case, had not constituted the basis
for the charges and had not been used as evidence.
- 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 again subjected to ill-treatment. 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 on 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.
- 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.”
- On
22 December 2003 the applicant was released on parole.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Code of Criminal Procedure (ՀՀ
քրեական դատավարության
օրենսգիրք)
read as follows:
Article 11: Security of person
“7. 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.”
Article 20: No obligation to testify
“1. No one shall be obliged to testify
against himself...”
Article 105: Materials inadmissible as evidence
“1. 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...”
Article 106: Establishment of inadmissibility of
evidence
“1. 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.”
Article 126: Examination of evidence
“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.”
Article 369: Drafting of a judgment
“3. A judgment shall be composed of
introductory, descriptive-motivational and concluding parts.”
Article 371: Descriptive-motivational part of a
judgment
“The descriptive-motivational part of a judgment
shall contain: (1) the content of the accusation; (2) the court's
conclusions with regard to the circumstances of the case, the
accusation being 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.”
III. RELEVANT INTERNATIONAL DOCUMENTS
- 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:
Article 15
“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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that his right not to incriminate himself and
his right to a fair trial had been infringed by the use at his trial
of his confession statements and the statements by witnesses T. and
A., obtained under torture. He relied on Article 6 § 1 of the
Convention which, in so far as relevant, provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
A. Admissibility
- The
Government claimed that the Court lacked competence ratione
temporis to examine the applicant's complaints. They submitted
that the evidence in question was obtained under torture from the
applicant and witnesses T. and A. on 16-17 April 1999. Hence, the
facts which, according to the applicant, amounted to a violation of
Article 6 § 1 of the Convention took place prior to the date of
the Convention's entry into force in respect of Armenia, namely 26
April 2002.
- The
applicant submitted that he was complaining under Article 6 § 1
of the Convention about the use of the evidence in question at his
trial. The relevant court proceedings had taken place after the date
of the Convention's entry into force in respect of Armenia.
- The
Court recalls that in accordance with the generally recognised rules
of international law, the Convention only governs, for each
Contracting Party, facts subsequent to its entry into force with
regard to that Party (see, among many other authorities, Jovanović
v. Croatia (dec.), no. 59109/00, ECHR 2002-III). The
Court notes that the applicant does not complain about the fact of
ill-treatment per se, which undoubtedly took place before 26
April 2002, that is, the date of the Convention's entry into force in
respect of Armenia. His complaints relate to the use of evidence
obtained as a result of such ill-treatment in the criminal
proceedings against him. As far as these proceedings are concerned,
the Court notes that the relevant court judgments and decisions were
taken after 26 April 2002 (see paragraphs 25, 40 and 43 above). It
follows that the applicant's complaints fall within the Court's
competence ratione temporis.
- The Court further notes that these complaints are not
manifestly ill founded within the meaning of Article 35 § 3
of the Convention. It also notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
B. Merits
1. The parties' submissions
(a) The Government
- The
Government admitted that the applicant and witnesses T. and A. had
been subjected to torture and forced to make statements during the
investigation in the military police department on 16-17 April 1999.
However, Article 105 of the Code of Criminal Procedure (CCP)
prohibited the use of such evidence. Thus, the domestic courts could
not and did not rely on these statements in convicting the applicant.
They merely referred to them in their judgments as facts which had
taken place, adding that these statements had later been revoked. The
domestic courts were obliged under Article 126 of the CCP to compare
this evidence with other evidence obtained in the case, and to verify
its sources and admissibility. However, it would have been illegal to
admit these statements as evidence since both the applicants and the
witnesses had already revoked them. Besides, when the applicant was
being tried at first instance, criminal proceedings had already been
instituted against the military police officers in question, and, by
the time the Court of Appeal examined the applicant's case, these
police officers had already been convicted.
- Furthermore,
the Court of Appeal stated in its judgment of 1 April 2003 that “the
evidence obtained under coercion in the military police station,
which was corroborated by the factual circumstances of the case, had
not constituted the basis for charges and had not been used as
evidence”. The Court of Appeal also cited all the other
evidence, which, taken in its entirety, was sufficient to secure the
applicant's conviction. This included various witness statements,
expert opinions and other evidence. Nor did the Court of Cassation
rely on the illegally obtained evidence, merely stating in its
decision of 8 May 2003 that the evidence in its entirety was
sufficient to find the applicant guilty. By such “evidence”,
the Court of Cassation was referring only to the statements made by
witnesses during the court proceedings. Finally, had the courts based
their judgments on the applicant's confession statement, then the
crime committed by the applicant would not have been qualified as
“premeditated murder” but as “involuntary
manslaughter” since the applicant had confessed to having
“accidentally shot serviceman H.”. In sum, neither the
Syunik Regional Court nor the Court of Appeal used the applicant's
confession and the statements of witnesses T. and A., obtained under
torture, as a basis for the applicant's conviction.
- The Government further submitted that, even assuming
that the domestic courts used the statements obtained under torture
as a basis for their judgments, there was no violation of Article 6
since the applicant's guilt had been proven by other evidence. In the
case of Schenk v. Switzerland (judgment of 12 July 1988,
Series A no. 140, pp. 29-30, § 48), the
Court found no violation of Article 6 since the unlawfully obtained
evidence was not the only evidence proving the applicant's guilt.
According to the Court's case-law, the admissibility and evaluation
of evidence fell within the competence of the domestic courts, and
the Court had to verify whether the proceedings as a whole were fair.
In the present case, the finding of the applicant's guilt was based
on a number of other items of evidence, including testimonies given
by the applicant and witnesses T. and A. during the court
proceedings.
(b) The applicant
- The
applicant submitted that the Government's assertion that the
statements obtained under torture had not been used as a part of the
basis for his conviction contradicted the facts of the case.
According to Article 369 of the CCP, a judgment was to be composed of
introductory, descriptive-motivational and concluding parts.
According to Article 371 of the CCP, the descriptive-motivational
part of a judgment was to contain: (1) the content of the accusation;
(2) the court's conclusions with regard to the circumstances of the
case, the accusation being tested and the defendant's guilt; (3) the
evidence on which the court's conclusions were based; and (4) the
legal provisions on which the court relied in reaching its decision.
The descriptive-motivational part of the Syunik Regional Court's
judgment of 19 June 2002 started with the words “The following
ha[d] been established during the court examination”, followed
by the circumstances of the case, the conclusions of the court and
the evidence on which these conclusions were based. As such evidence,
the court referred to the applicant's confession statements of 16-17
April 1999 and the statements by witnesses T. and A., obtained under
torture. Thereafter, having compared the statements of witnesses T.
and A. made during the preliminary investigation, including those
made under coercion, with those made at a later stage of the
proceedings, the Regional Court gave preference to the statements
obtained under torture, stating that “the coercion was applied
for the purpose of ensuring disclosure of the truth”.
- Furthermore,
the Court of Appeal, having upheld the judgment of 19 June 2002,
thereby considered it to be lawful and well-grounded. Moreover, the
Court of Appeal itself referred to the applicant's confession
statement of 16 April 1999 as evidence substantiating his guilt. The
Court of Appeal further referred to the statements by witnesses T.
and A., made at the earliest stage of the proceedings before the
Syunik Regional Court. However, as opposed to witness T., witness A.
had never made such submissions before the Regional Court. Thus, the
statements referred to were the statements made by witness A. during
the preliminary investigation, when he was tortured. Furthermore, the
Court of Cassation in its decision of 8 May 2003 did not deny that
the statements by witnesses T. and A., obtained under torture, had
been used as a basis for the applicant's conviction. The Court of
Cassation also referred to the applicant's confession of 16 April
1999 as proof of his guilt. Finally, despite numerous requests by the
defence, none of the courts at all three levels of jurisdiction
delivered a decision declaring the statements obtained under torture
inadmissible, although they were vested with such a right under
Article 106 of the CCP. In sum, the Government's assertion that the
evidence obtained under torture was not used as a basis for the
applicant's conviction contradicted the circumstances of the case.
- The
applicant further submitted that the use of evidence obtained under
torture was in violation of Article 6 of the Convention. It was
evident from the judgments of the courts at all three levels of
jurisdiction that the coerced statements by the applicant and witness
T. played a decisive role in securing the applicant's conviction. It
was true that the applicant's conviction had also been based on a
number of other items of evidence. However, this other evidence was
used simply to confirm the three main items of evidences in the case,
namely the statements by the applicant and witnesses T. and A., made
under duress. The courts also based their convictions on the
statement made by witness T. during the first trial in the Syunik
Regional Court. However, the case had been examined three times by
the Regional Court and at both the second and third trials witness T.
submitted that he had been forced to slander the applicant as a
result of torture and intimidation and that he was not aware of the
circumstances of serviceman H.'s death.
2. The Court's assessment
- The
Court considers it necessary first of all to address the parties'
arguments as to whether the applicant's confession statements of
16-17 April 1999 and the statements by witnesses T. and A. of 5 March
1999, obtained under duress, were used by the domestic courts as
evidence in the criminal proceedings against the applicant. Having
regard to the judgment of the Syunik Regional Court of 19 June 2002,
the Court notes that the Regional Court cited the applicant's
confession statements without expressing any doubts as to their
credibility (see paragraph 25 above). Furthermore, in rebutting the
applicant's plea of innocence, the Regional Court explicitly relied,
inter alia, on witness T.'s statement of 5 March 1999 (see
paragraph 26 above). The Regional Court concluded by stating that
“the coercion was applied by the police officers at the
military police station for the purpose of ensuring disclosure of the
truth” (see paragraph 27 above). This statement prompts the
Court to believe that, despite the fact of ill-treatment, the
Regional Court did not see any reasons to doubt the credibility of
the statements made by the applicant and witnesses T. and A. in
March-April 1999 and therefore to exclude these statements as
evidence. Furthermore, the Criminal and Military Court of Appeal in
its judgment of 1 April 2003 explicitly cited the applicant's
confession statement of 16 April 1999 as proof of his guilt (see
paragraph 40 above). The Court of Cassation in its decision of 8 May
2003 also found that “the Court of Appeal rightly considered
T.'s confession statement as reliable and regarded it as proof of the
applicant's guilt”. It further cited the applicant's
confession, made to the investigator on 16 April 1999, among the
evidence obtained in the case (see paragraph 43 above). The Court
finally notes that none of the courts at all three levels of
jurisdiction explicitly declared the statements in question
inadmissible, despite several requests to that effect by the defence.
- In
the light of the above, the Court concludes that the applicant's
confession statements and the statements by witnesses T. and A.,
obtained under duress, were used by the domestic courts as part of
the evidence on which the applicant's conviction was based. The
Government's assertions to the contrary thus have no basis in the
findings of the domestic courts. It remains therefore to be
determined whether the use of the statements obtained under duress
breached the applicant's rights as guaranteed by Article 6 of the
Convention.
- The
Court reiterates that its duty, according to Article 19 of the
Convention, is to ensure the observance of the engagements undertaken
by the Contracting States to the Convention. In particular, it is not
its function to deal with errors of facts or of law allegedly
committed by a national court unless and in so far as they may have
infringed rights and freedoms protected by the Convention. While
Article 6 guarantees the right to a fair hearing, it does not lay
down any rules on the admissibility of evidence as such, which is
primarily a matter for regulation under national law (see, among
other authorities, Schenk v. Switzerland, cited above,
§ 45-46).
- It
is therefore not the role of the Court to determine, as a matter of
principle, whether particular types of evidence – for example,
evidence obtained unlawfully in terms of domestic law – may be
admissible or, indeed, whether the applicant was guilty or not. The
question which must be answered is whether the proceedings as a
whole, including the way in which the evidence was obtained, were
fair. This involves an examination of the “unlawfulness”
in question and, where violation of another Convention right is
concerned, the nature of the violation found (see, inter alia,
Khan v. the United Kingdom, no. 35394/97, § 34,
ECHR 2000-V, and P.G. and J.H. v. the United Kingdom,
no. 44787/98, § 76, ECHR 2001-IX).
- As
regards, in particular, the examination of the nature of the
Convention violation found the Court recalls that notably in the
cases of Khan (cited above, §§ 25-28) and P.G.
and J.H. v. the United Kingdom (cited above, §§ 37-38)
it has found the use of covert listening devices to be in breach of
Article 8, since recourse to such devices lacked a legal basis in
domestic law and the interferences with the applicants' right to
respect for private life were not “in accordance with the law”.
Nonetheless, the admission in evidence of information obtained
thereby did not in the circumstances of those cases conflict with the
requirements of fairness guaranteed by Article 6 § 1.
- The
Court recalls, however, that different considerations apply to
evidence recovered by a measure found to violate Article 3. An issue
may arise under Article 6 § 1 in respect of evidence obtained in
violation of Article 3 of the Convention, even if the admission of
such evidence was not decisive in securing the conviction. The use of
evidence obtained in violation of Article 3 in criminal proceedings
raises serious issues as to the fairness of such proceedings.
Incriminating evidence – whether in the form of a confession or
real evidence – obtained as a result of acts of violence or
brutality or other forms of treatment which can be characterised as
torture should never be relied on as proof of the victim's guilt,
irrespective of its probative value. Any other conclusion would only
serve to legitimate indirectly the sort of morally reprehensible
conduct which the authors of Article 3 of the Convention sought to
proscribe or, in other words, to “afford brutality the cloak of
law” (see, as the most recent authority, Jalloh v. Germany
[GC], no. 54810/00, §§ 99 and 105, ECHR
2006 ...).
- In
the present case, the Court notes that the applicant was coerced into
making confession statements and witnesses T. and A. into making
statements substantiating the applicant's guilt. This fact was
confirmed by the domestic courts (see paragraphs 29-36 above) and is
not in dispute between the parties. The Court is not called upon to
decide in the present case whether the ill-treatment inflicted on the
applicant and witnesses T. and A. for the purpose of coercing them
into making the above statements amounted to torture within the
meaning of Article 3, this question, in any event, falling outside
the Court's competence ratione temporis (see paragraph 50
above). In this connection, however, the Court notes with approval
the findings of the Avan and Nor Nork District Court of Yerevan in
its judgment of 9 October 2002, condemning the actions of the police
officers and evaluating them as having the attributes of torture (see
paragraph 29 above). Furthermore, the Government in their submissions
also characterised the ill-treatment inflicted on the applicant and
witnesses T. and A. as torture (see paragraph 52 above). Even if the
Court lacks competence ratione temporis to examine the
circumstances surrounding the ill-treatment of the applicant and
witnesses T. and A. within the context of Article 3, it is
nevertheless not precluded from taking the above evaluation into
account for the purposes of deciding on compliance with the
guarantees of Article 6. The Court further recalls its finding that
the statements obtained as a result of such treatment were in fact
used by the domestic courts as evidence in the criminal proceedings
against the applicant (see paragraph 59 above). Moreover, this was
done despite the fact that ill treatment had already been
established in parallel proceedings instituted against the police
officers in question.
- In this respect the Court notes that the domestic
courts justified the use of the confession statements by the fact
that the applicant confessed to the investigator and not to the
police officers who had ill-treated him, the fact that witness T.
confirmed his earlier confession at the confrontation of 11 August
1999 and the fact that both witnesses T. and A. made similar
statements at the hearing of 26 October 1999 before the Syunik
Regional Court. The Court, however, is not convinced by such
justification. First of all, in the Court's opinion, where there is
compelling evidence that a person has been subjected to
ill-treatment, including physical violence and threats, the fact that
this person confessed – or confirmed a coerced confession in
his later statements – to an authority other than the one
responsible for this ill-treatment should not automatically lead to
the conclusion that such confession or later statements were not made
as a consequence of the ill-treatment and the fear that a person may
experience thereafter. Secondly, such justification clearly
contradicted the finding made in the judgment convicting the police
officers in question, according to which “by threatening to
continue the ill-treatment the police officers forced the applicant
to confess” (see paragraph 29 above). Finally, there was ample
evidence before the domestic courts that witnesses T. and A. were
being subjected to continued threats of further torture and
retaliation throughout 1999 and early 2000 (see paragraphs 29 and
32-33 above). Furthermore, the fact that they were still performing
military service could undoubtedly have added to their fear and
affected their statements, which is confirmed by the fact that the
nature of those statements essentially changed after demobilisation.
Hence, the credibility of the statements made by them during that
period should have been seriously questioned, and these statements
should certainly not have been relied upon to justify the credibility
of those made under torture.
- In
the light of the foregoing considerations, the Court concludes that,
regardless of the impact the statements obtained under torture had on
the outcome of the applicant's criminal proceedings, the use of such
evidence rendered his trial as a whole unfair. There has accordingly
been a violation of Article 6 § 1 of the Convention.
- Having
reached this conclusion, the Court does not consider it necessary to
address separately the applicant's argument that the use of his
confession statements undermined his right not to incriminate
himself.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed a total of about 12,000,000 Armenian drams (AMD)
(approx. EUR 22,160) in respect of pecuniary damage. In particular,
during the four years and eight months spent in detention and prison,
each week his parents brought him parcels with food, cigarettes and
hygiene products. Each parcel cost about AMD 20-25,000 (approx. EUR
36-46), so the aggregate amount constituted AMD 5-6,000,000.
Furthermore, during this entire period he was deprived of the
opportunity to work. Assuming that he could earn at least AMD 100,000
per month (approx. EUR 185), this loss amounted to AMD 5,600,000. The
applicant also claimed compensation for non-pecuniary damage in the
amount of EUR 120,000. He submitted that the breaches of the
Convention resulted in his loss of liberty for about four years and
eight months. In addition, he had been branded a murderer throughout
this entire period.
- The
Government submitted that the alleged expenses for parcels, which
were not supported by any documentary evidence, were not a
consequence of the alleged violation. They were neither necessary nor
could be regarded as real damage or lost profit. In any event, these
expenses were exaggerated since, according to the relevant prison
rules, only one parcel per month could be received by a detainee or
convict. With regard to the claim of lost earnings, this claim was of
a hypothetical nature. Besides, there was no causal link between the
applicant's imprisonment and his unemployment. As regards the
non-pecuniary damage, the Government submitted that a finding of a
violation would be sufficient. In any event, the amount claimed was
exorbitant.
- The
Court notes that the applicant's claim concerning expenses for
parcels does not concern any pecuniary loss incurred by him and
relates to expenses allegedly borne by his parents, who were not
applicants in the present case and cannot therefore be regarded as
persons directly affected by the violation found. As regards the loss
of alleged earnings, the Court agrees with the Government that this
claim is of a hypothetical nature. It therefore rejects the
applicant's claim for pecuniary damage. On the other hand, the Court
considers that the applicant must have suffered frustration,
helplessness and anxiety as a result of use of evidence obtained
under torture in the criminal proceedings against him, and that this
cannot be compensated solely by the finding of a violation. The Court
notes, however, that the amount of non-pecuniary damage claimed is
excessive. The Court, ruling on an equitable basis, awards the
applicant EUR 4,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed a total of AMD 13,115,000 (approx. EUR 24,220)
for costs and expenses, including transport and hotel costs in the
amount of AMD 1,464,000 (approx. EUR 2,703) incurred by his lawyer
who, having attended 16 court hearings before the Syunik Regional
Court, had to travel by taxi to Syunik Region and occasionally stay
there overnight; 770 hours of legal work carried out by his lawyer
since May 1999, which amounted to AMD 11,550,000 (approx. EUR
21,330); and postal expenses in the amount of AMD 101,000 (approx.
EUR 186). With regard to the transport costs, the applicant submitted
that he was unable to submit any proof of these costs since only a
few taxis in Armenia were equipped with facilities enabling them to
provide receipts. With regard to the 770 hours of legal work, the
applicant submitted that, since he was insolvent from 2000, he had
reached an agreement with his lawyer that he would pay him the above
sum in the future, after he had been released and was able to earn
money.
- The
Government submitted that the applicant had failed to substantiate
his claims concerning legal fees with any documents. He did not
submit any proof that these costs had been actually incurred or were
necessary, or that an agreement existed between him and his lawyer to
make such payments in the future. In any event, the amount claimed
was exorbitant. With regard to the travel and hotel costs, the
applicant again failed to submit any documentary proof. His
submission that taxis in Armenia were not equipped with the relevant
facilities was untrue, and he had also failed to substantiate the
necessity of travelling to Syunik Region by taxi when other cheaper
means of transport existed. Finally, with regard to postal expenses,
nothing indicated that the postal receipts submitted by the
applicant's representative, Mr Alumyan, concerned communications made
with the Court in connection with the present case and not other
cases in which Mr Alumyan was also involved as the representative.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum (see The Sunday Times v. the United Kingdom (no. 1)
(Article 50), judgment of 6 November 1980, Series A no. 38,
p. 13, § 23). The Court notes that the documentary
evidence produced by the applicant only covers his postal expenses in
the total amount of 144 United States dollars (USD) (approx. EUR
122). As regards the sum which he allegedly owed to his lawyer, the
applicant failed to submit any documentary proof of such an
agreement. Nor did he submit any proof that he owed his lawyer any
money for travel and subsistence costs, or even that such costs had
been actually incurred. In such circumstances, noting that the amount
of costs and expenses substantiated with documentary proof is less
than the sum of EUR 715 received by the applicant in legal aid from
the Council of Europe, the Court rejects the applicant's claim for
costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible ;
- Holds that there has been a violation of Article
6 § 1 of the Convention in that the applicant was denied a fair
trial;
- Holds that there is no need to examine
separately the complaint under Article 6 § 1 of the Convention
concerning an alleged violation of the applicant's right not to
incriminate himself;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four
thousand euros) in respect of non-pecuniary damage, to be converted
into the national currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be
chargeable on this amount;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 28 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
