Communicated on 30 November 2015
FIRST SECTION
Application no. 2265/12
Anahit VARDANYAN and others
against Armenia
lodged on 14 December 2011
STATEMENT OF FACTS
The applicants, Anahit Vardanyan, Vardan Khalafyan, Hmayak Khalafyan and Ani Khalafyan, are Armenian nationals, who were born in 1962, 1986, 1975 and 1992 respectively and live in Charentsavan. They are represented before the Court by A. Zeynalyan and A. Ghazaryan, non‑practising lawyers.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant, Anahit Vardanyan, is the mother of Mr Vahan Khalafyan, who died on 13 April 2010 aged 24. The second, third and fourth applicants, Vardan, Hmayak and Ani Khalafyan, are the victim’s brother, cousin and sister respectively. The third applicant appears to have acted as the legal successor of the victim in the domestic proceedings.
1. The death of Vahan Khalafyan
On 6 April 2010 criminal proceedings were instituted on account of a theft.
On 13 April 2010 in the morning the Head of the Criminal Intelligence Unit of the Charentsavan Town Police Department, A.H., ordered a number of police officers to bring Vahan Khalafyan and three other suspects to the Police Department for questioning in connection with the theft.
At around 10 a.m. Vahan Khalafyan was visited at home by two police officers, M.H. and H.D., and was told to accompany them to the Police Department in connection with an altercation that he had allegedly been involved in. The second applicant was at home and witnessed this.
At the police department Vahan Khalafyan’s arrival was not recorded in the relevant register. The arresting police officers took him to A.H.’s office, whereupon police officer H.D. left, while police officer M.H. stayed in the room. Police officer A.H. started questioning Vahan Khalafyan, demanding that he confess to the crime. After Vahan Khalafyan denied his involvement, police officer A.H. started beating him, kicking and punching different parts of his body. Police officer A.H. then continued questioning Vahan Khalafyan, demanding again that he confess, which lasted about one hour. Thereafter police officer A.H. instructed officers M.H. and H.D. to take Vahan Khalafyan to the office of the Head of Prophylactics Unit, K.M., where A.H. continued to question him, occasionally physically assaulting him.
It appears that at around 12 noon the second applicant was able to enter the Police Department and to see his brother for a few minutes, but not to talk to him. Then the questioning resumed. It also appears that the second applicant was able to see him again at around 4 p.m. for a few minutes, and to offer him some food. Vahan Khalafyan was allowed to have two sandwiches and some water, after which the questioning resumed. At that time police officer A.H. had apparently gone to another town where the stolen goods were allegedly being kept.
At 4.55 p.m. police officer M.H. drew up a “record of bringing a person to the police” (արձանագրություն անձին բերման ենթարկելու մասին), which stated that Vahan Khalafyan had been brought to the police department at 4.55 p.m. on 13 April 2010 by police officers M.H. and H.D. upon suspicion of having committed a theft.
At an unspecified hour, police officer A.H. returned to K.M.’s office where Vahan Khalafyan was still being kept. It appears that three other police officers were present at that time, M.H., G.D. and G.G. Police officer A.H. demanded that Vahan Khalafyan stand up and said that the stolen goods had been found and that his three accomplices had already confessed. Vahan Khalafyan denied his involvement, in response to which police officer A.H. hit him in the face and continued beating him severely, kicking and punching him, mainly in the head and stomach. A.H. then stopped the beating and left the office.
According to the findings of the domestic courts, moments after A.H. left the office Vahan Khalafyan, who at that moment was sitting on one of the chairs lined up by the wall in front of the metal cabinet, of which one door was open, grabbed a knife which was lying on one of the cabinet shelves, stood up, lifted his clothing with his left hand and stabbed himself twice in the abdomen. Officers M.H. and G.D. rushed to stop him, but failed. Vahan Khalafyan fainted and fell to the floor. Other police officers rushed into the room. First aid was provided to Vahan Khalafyan, who was lying on the floor unconscious.
The applicants contest the suicide version of Vahan Khalafyan’s death and allege that he had in fact lost consciousness due to a brain injury sustained as a result of the ill-treatment. In order to cover up the crime, the police officers had decided to create an appearance of suicide by twice stabbing Vahan Khalafyan in the abdomen.
At 5.15 p.m. an ambulance was called. At 5.16 p.m. the ambulance team, which included doctor V.K. and nurse M.A., set off for the police department. Upon arrival a number of injections were given and an external cardiac massage performed, after which Vahan Khalafyan was transferred to hospital where he died at 5.50 p.m.
2. The criminal proceedings
(a) The investigation
On the same date the investigator of the Investigative Division of the Kotayk Regional Principal Investigative Department of the Armenian Police performed an examination of the crime scene with the participation of, inter alia, police officers M.H. and G.D. There was a two-door wooden cabinet in the left corner of the office. The right-hand section of the cabinet was used mostly for clothes, while the left-hand section was composed of four shelves, one of which held various kitchen utensils, including a knife measuring 28 cm (with a 15 cm blade and a 13 cm metal handle). The knife was lying on the edge of the shelf in front of the glasses. The top 10 cm of the blade was bloodstained and there were little hairs on various parts of the blade. In front of the cabinet, at a distance of about 30 cm, there were two chairs next to the wall. The knife was seized as evidence. In the middle of the office, about one metre from the cabinet, there were partly coagulated blood stains on the floor surrounded by cotton wool balls, which were also bloodstained. Police officers M.H. and G.D. submitted, during the examination of the crime scene, that Vahan Khalafyan had been sitting on the chair nearest to the cabinet. While seated, he had opened the left-hand door of the cabinet, which had already been ajar, taken the knife, stood up, lifted his upper clothing with his left hand and stabbed himself in the abdomen with the knife in his right hand. They had screamed and rushed to stop him but had failed to reach him in time. Vahan Khalafyan had fallen on his abdomen, while the knife had fallen next to him. They had provided immediate assistance, called an ambulance and taken him to hospital. Police officer G.D. also submitted that, while first aid was being provided to Vahan Khalafyan, he had picked up the knife by the edge of the handle and put it back on the shelf.
The investigator decided to institute criminal proceedings under Article 110 § 1 of the Criminal Code (CC) for provoking a person to commit suicide. This decision stated that, having studied the materials prepared in connection with Vahan Khalafyan’s suicide, the investigator found that:
“On 13 April 2010 at 4.50 p.m. [Vahan Khalafyan], upon suspicion of having committed a theft, was taken to [the Charentsavan Town Police Department] within the scope of the criminal case ... investigated by the Charentsavan Investigative Unit of the Investigative Division of the Kotayk Regional Principal Investigative Department of the Armenian Police, and while in the office of the Head of the Prophylactics Unit, [K.M.], at around 5.15 p.m. took a kitchen knife from the cabinet and stabbed himself in the abdomen, causing physical injuries. Thereafter Vahan Khalafyan was taken by ambulance to [hospital] where he died from the injuries sustained.”
On the same date, within the scope of an official inquiry launched into the incident, a statement was taken from police officer M.H. in which he provided a similar account of events. He also stated that Vahan Khalafyan had been brought to the police department at 4.55 p.m. and that nobody had ill-treated him prior to the incident.
On 15 April 2010 the investigation into the criminal case was taken over by the Special Investigative Service (SIS).
On the same date Vahan Khalafyan’s body was subjected to a forensic medical examination, the results of which were set out in forensic medical expert opinion no. 353. The expert first recapitulated the circumstances of the case as described in the investigator’s decision and recorded the following injuries: a perforating stab/cut wound on the front surface of the abdomen with damage to the visceral fat and the arteries and veins located in the mesentery of the small intestine, hemoperitoneum: presence of blood (1600.0 ml) and clots (400.0 mg) in the abdominal cavity, and anaemia of internal organs, resulting in acute internal bleeding (injury no. 1); a perforating stab/cut wound on the front surface of the abdomen without damage to internal organs (injury no. 2); two interrupted scratches on the front surface of the abdomen; haemorrhage under the vertex area of the scalp; haemorrhage under the mucus membrane of the left side of the upper lip; haemorrhage on the left side of the chin; and abrasions in the nasal base area, on the frontal surface of the middle third of the right shin, in the right knee pit, on the internal surface of the right ankle joint, on the frontal surface of the upper third of the left shin, on the frontal surface of the middle third of the left shin surrounded by a haemorrhage and on the rear surface of the right elbow joint. Vahan Khalafyna’s death resulted from acute internal bleeding as a consequence of injury no. 1. There was no causal link between injury no. 2 and the death. Both injuries nos. 1 and 2 were sustained during life between several and dozens of minutes prior to death. The wound canal of injury no. 1 had a depth of 10-12 cm and a front-to-back direction with a right-to-left tilt and a slight top-to-bottom tilt in relation to the body’s direct axis, while that of injury no. 2 had a depth of 3 cm and a front-to-back direction with a right-to-left and top-to-bottom tilt in relation to the body’s direct axis. All the remaining injuries were similarly sustained during life, not long before death, except for the abrasion on the right elbow joint which had been sustained 2-3 days earlier. The scratches on the abdomen were caused by a sharp-edged object, while the haemorrhages and the abrasions were caused by a blunt object or objects having a limited surface. The scratches, haemorrhages and abrasions did not qualify as minor injuries and there was no causal link between them and the death. It was possible that the stab/cut wounds to the abdomen had been caused by the knife in question and that they had been self-inflicted.
On 16 April 2010 the SIS investigator performed an additional examination of the crime scene with the participation of, inter alia, police officers M.H. and G.D. It appears that photographs were taken and a video made.
On 19 April 2010 the knife in question was examined and forensic traces expert opinion no. 11411002 was drawn up, according to which towards the base of the blade – next to the handle – there were some traces of sweat and fat containing papillary ridges but these were incomplete, distorted and overlapping and therefore not suitable for a comparative analysis.
On an unspecified date the third applicant was recognised as the victim’s legal successor for the purpose of the criminal proceedings.
On 21 April 2010 A.H., M.H. and G.D. were summoned to the SIS for questioning as witnesses.
On the same date police officer M.H. was arrested and later placed in detention, where he remained until 21 May 2010.
On 23 April 2010 charges were brought against him under Articles 110 § 1 and 309 § 3 of the CC. He was accused of taking Vahan Khalafyan to the police department at around 10 a.m. on 13 April 2010 without an arrest warrant and solely on the oral instruction of police officer A.H. He had then unlawfully kept Vahan Khalafyan in police officer K.M.’s office until around 5 p.m. and had ill-treated him, provoking him to commit suicide.
On 26 April 2010 police officers A.H., G.D. and G.G. were summoned to the SIS for further questioning as witnesses. It appears that several confrontations were held. During the confrontation between police officers A.H. and M.H. the latter accused A.H. of having ill-treated Vahan Khalafyan. Police officer A.H. was also confronted with police officers G.D. and G.G., both of whom stated that they had seen A.H. slap Vahan Khalafyan once before leaving police officer K.M.’s office prior to the incident. During a confrontation between police officers M.H. and G.G. the latter stated that, in police officer K.M.’s office, he had seen police officer A.H. administer blows (punches and kicks) to Vahan Khalafyan, saying “you have to confess, because the other three have already confessed”.
On the same date police officer A.H. was arrested.
On 29 April 2010 charges were brought against him under Article 309 § 3 of the CC on the ground that he had ill-treated Vahan Khalafyan at the police department, thereby exceeding his authority, which had accidentally led to grave consequences. On the same date he was detained.
On 10 May 2010 forensic biological expert opinion no. 166 was produced, according to which the blood stains found on the floor, the cotton wool balls, the knife and the deceased’s clothes were of Vahan Khalafyan’s blood group. There were faeces in the upper rear part of his trousers and the armpit area of his T-shirt.
On the same date the conclusions of the official inquiry were produced and it was recommended that a disciplinary penalty be imposed on police officers G.D. and G.G. for not having disclosed the fact that they had witnessed police officer A.H. inflicting violence on Vahan Khalafyan in police officer K.M.’s office. It was further recommended that police officers A.H. and M.H. be suspended from service and the question of their disciplinary penalty be decided after the completion of the criminal case.
On unspecified dates two more expert opinions were produced: forensic traces expert opinion no. 11401002 and forensic post-mortem psychological and psychiatric expert opinion no. 10-1032. According to the latter document, prior to his death Vahan Khalafyan had been in a state of considerable psychological stress caused by the actions of police officer A.H. There were no signs of temporary insanity in his behaviour as described in the materials of the criminal case. He did not suffer from any chronic psychiatric illness.
On 21 May 2010 the charges against police officer M.H. were modified and he was charged under Article 308 § 1 of the CC on the ground that he had witnessed Vahan Khalafyan’s ill-treatment by police officer A.H., his immediate supervisor, but used his official position against the interests of the service, choosing not to challenge A.H. for selfish ends, in order to maintain a good working relationship.
On 24 May 2010 the Chief of the Armenian Police issued an order following the recommendations made in the conclusions of the official inquiry, suspending police officers A.H. and M.H. and, as a disciplinary penalty, demoting police officers G.D. and G.G.
On 2 June 2010 charges were brought against police officers G.D. and G.G. under Article 308 § 1 of the CC on the same grounds.
On 7 June 2010 the charges against police officer A.H. were supplemented with the details of the injuries suffered by Vahan Khalafyan as a result of his alleged ill-treatment, based on the findings of forensic medical expert opinion no. 353.
On the same date the SIS investigator decided not to prosecute a number of police officers of the Charentsavan Town Police Department, including those who had participated in taking Vahan Khalafyan and other suspects into custody and those who had registered their arrival at the police department. This decision stated that the suspects had been taken to the police department in the morning of 13 April 2010 but, upon police officer A.H.’s instructions, no records were made in the relevant register at the time and such records were made only after 3.30 p.m. It concluded that there was no corpus delicti in the actions of the police officers since they had acted under the instruction and supervision of police officer A.H., who was currently standing trial, and had believed that their actions were lawful.
(b) The court proceedings
On 21 June 2010 the indictment was finalised and the case file was transmitted to Kotayk Regional Court for examination on the merits.
Between July and November 2010 the Regional Court held a number of hearings, during which it summoned and questioned police officers A.H., M.H., G.D. and G.G. as accused.
Police officer A.H. denied having ill-treated Vahan Khalafyan. He submitted that he had been absent when the incident had happened. After hearing noises, he had rushed to police officer K.M.’s office where he saw Vahan Khalafyan on the floor bleeding. Police officer M.H. was holding the knife and had said “He stabbed himself with this”. After he had returned from the hospital, he found out from police officer M.H. that he and the other two police officers had realised that Vahan wanted to stab himself and had tried to grab the knife from his hands, resulting in a scuffle, during which the knife had entered his abdomen. He had then advised M.H. not to tell anyone about this. Before appearing for questioning on 21 April 2010 he and M.H. had agreed to give similar statements. However, later M.H. had started falsely accusing him, because of a bad working relationship. The charges against him were therefore fabricated and he was being used as a scapegoat. Police officer A.H. also accused M.H. of having ill-treated Vahan Khalafyan, namely hitting his head against the wall while accompanying him to the toilet.
Police officer M.H. admitted his guilt and confirmed that A.H. had ill‑treated Vahan Khalafyan, hitting his legs, abdomen and head. Shortly after taking Vahan Khalafyan to police officer K.M.’s office, he had drawn up the record of his “bringing to police”, which Vahan Khalafyan had refused to sign. He had then gone out for a while, and when he came back Vahan Khalafyan was having something to eat. After 4.55 p.m. police officer G.D. had come into the office and sat by the desk, while he was then sitting on the sofa. Police officer G.G. had come in and sat opposite G.D. Then police officer A.H. had entered the office and told Vahan Khalafyan to stand up and said that the other suspects had already confessed. When Vahan Khalafyan had refused to follow suit, A.H. had started beating him again, and Vahan Khalafyan had touched the cabinet, slightly opening the door. A.H. had continued hitting Vahan Khalafyan in the head and abdomen, after which he left, while Vahan Khalafyan stayed in the office, seated on the chair in front of the cabinet. Vahan Khalafyan had then grabbed a knife from the cabinet and stabbed himself, and he and police officer G.D. had failed to stop him.
Police officers G.D. and G.G. made similar statements but claimed that A.H. had only slapped Vahan Khalafyan once after saying that the others had confessed, and before leaving the office. G.D. stated that five minutes later he had heard a noise, turned around and seen that Vahan Khalafyan was about to stab himself. He had rushed towards him but failed to stop him. G.D. further stated that he might not have noticed some other punches or slaps because he had been watching television. G.G. stated that he had heard M.H. shout and had seen Vahan Khalafyan drop the knife.
The Regional Court further questioned a number of police officers, including Head of Department, N.H., Deputy Head of Department, S.T., and one of the police officers who had provided first aid to Vahan Khalafyan, G.H., as well as the second applicant as witnesses.
N.H. stated that after the incident he had had private talks with all the police officers in order to find out the details, but none of them, including those who were in K.M.’s office during the incident, had told him the truth at the beginning. He had found out from police officers G.D. and G.G. that A.H. had slapped Vahan Khalafyan only after their questioning at the SIS on 26 April 2010.
S.T. stated that after the incident he had had a private talk with A.H., M.H. and G.D., and all three of them had tried to convince him that no one had ill-treated Vahan Khalafyan.
G.H. stated that he had been providing mouth-to-mouth resuscitation to Vahan Khalafyan and saw the stab wounds only after unbuttoning his clothes. He had then told police officer M.H. to bring cotton wool balls to cover the wounds.
The second applicant stated that he had visited his brother at the Police Department twice – around noon and around 4 p.m. when he had given him some food. At around 5 p.m. he had met Deputy Head S.T. in front of the station who had told him “We gave your brother 5 minutes to give us his final answer, but he did not say anything. He was claiming to be innocent and then stabbed himself with a kitchen knife”. The second applicant further stated that he had never noticed any self-harm wounds on his brother in the past or heard anything of that kind from him.
The third applicant, as Vahan Khalafyan’s legal successor, alleged before the Regional Court that Vahan Khalafyan had been beaten by police officers in K.M.’s office, as a result of which he had lost consciousness, which had manifested itself through various symptoms, including vomiting. In order to conceal the crime, the police officers, presumably M.H., had then fatally stabbed Vahan Khalafyan in the abdomen to make it look like suicide, after which they had wiped the fingerprints off the knife and cleaned Vahan Khalafyan’s vomit off his face and clothes. The third applicant requested that the charges against the police officers be modified.
The Regional Court lastly summoned and questioned the experts who had produced medical expert opinion no. 353, traces expert opinion no. 11411002 and post-mortem psychological and psychiatric expert opinion no. 10-1032.
The medical expert ruled out Vahan Khalafyan’s choking on his own vomit, because – even if vomit could have been cleaned from his face and the mouth area – his bronchial tubes would have been filled with vomit, whereas they were clean. The two injuries to his abdomen, 12 cm and 3 cm deep respectively, suggested that there had been an attempt at self‑harm. In cases where depth of injuries was equal, it was more difficult to determine their order, but injuries having different depths were characteristic of self‑harm. In his opinion, the first stab had been the shorter one since, when attempting suicide, a person would first stab himself superficially, but then he would take a greater risk and inflict a more confident stab. Self-harm was usually inflicted in the frontal areas of the body, which were more visible and accessible. It was possible for a person to stab himself more than once and there had been cases where people had stabbed themselves more than 20 times. Compared to such cases Vahan Khalafyan’s case involved a minimal amount of self-harm. Therefore, taking into account the direction of the wounds and their features, it became clear that they were characteristic of suicide.
The traces expert stated that the patterns on the knife handle interrupted its flat surface and no fingerprints could be left on those parts. Furthermore, the handle had a non-homogeneous surface and it was possible that no fingerprints would remain.
The psychology expert stated that people react differently to situations of stress such as Vahan Khalafyan experienced: some react constructively, some with resistance and some even by resorting to self-harm.
On 18 September 2010 the third applicant filed a motion requesting that an investigative experiment be carried out, re-enacting the incident in order to determine whether it could realistically have taken place. It appears that the Regional Court refused this motion, with reference to the relevant rules of criminal procedure.
On 29 November 2010 the Kotayk Regional Court found police officer A.H. guilty under Article 309 § 3 of the CC of exceeding his authority, resulting in grave consequences, and police officer M.H. guilty under Article 308 § 1 of the CC of failing to carry out his official duties for reasons of personal interest. A.H. was sentenced to eight years’ imprisonment, while police officer M.H. received a two-year suspended sentence. Police officers G.D. and G.G. were acquitted under Article 308 § 1 of the CC. The Regional Court found that on the morning of 13 April 2010 police officer A.H. had ordered that Vahan Khalafyan be brought to the police department and then in his office had forced Vahan Khalafyan, under threat of violence, to confess to the crime. When Vahan Khalafyan refused to confess, police officer A.H. had ill-treated him by kicking and punching him in various parts of the body. At around 5 p.m. police officer A.H. had continued ill‑treating and beating Vahan Khalafyan in the office of the Head of the Prophylactics Unit in the presence of several other police officers and threatened Vahan Khalafyan that he would ensure his bad treatment at the detention facility. As a result of the ill-treatment, Vahan Khalafyan had received a number of minor injuries. Being in a highly stressed psychological condition because of the ill-treatment, Vahan Khalafyan had taken a kitchen knife from the cabinet and committed suicide by stabbing himself several times in the abdomen. Police officer M.H. had witnessed the ill-treatment but failed to intervene to prevent it. Police officers G.D. and G.G. had also witnessed some of the ill-treatment but it had happened so briefly and quickly (one or two slaps) that it was unreasonable to expect them to prevent it. The Regional Court also found that Vahan Khalafyan had been taken to the police department at around 10 a.m. and his arrival had not been recorded, while the record of his “bringing a person to police” had been drawn up only at 4.55 p.m. The Regional Court rejected A.H.’s testimony and found that his guilt was proved by the statements of police officers M.H., G.D. and G.G., as well as other evidence obtained in the case. His allegation that he was being set up because of a bad working relationship with police officer M.H. was unconvincing. It was an established fact that he had ill-treated Vahan Khalafyan between 4.30 p.m. and 5.00 p.m., with the only discrepancy being between the statement of police officer M.H., according to which the ill-treatment had lasted for some time, and those of police officers G.D. and G.G., according to which they had witnessed only one or two slaps. The Regional Court finally dismissed the third applicant’s allegations, finding that they contradicted the evidence in the case, especially the medical expert’s statement concerning the absence of any vomit in Vahan Khalafyan’s bronchial tubes.
The Regional Court based its findings on, inter alia:
(a) the statements of police officers M.H., G.D. and G.G. made during the investigation and in court;
(b) the statements of the second applicant, his cousin A.K., and a number of other police officers, including K.M., S.T. and N.H.;
(c) medical expert opinion no. 353, biological expert opinion no. 166, traces expert opinions nos. 11401002 and 11411002, and post-mortem psychological and psychiatric expert opinion no. 10-1032;
(d) the statements made by the experts in court;
(e) the examination of the register of persons taken into custody at the Charentsavan Town Police Department, from which it was apparent that the time of taking Vahan Khalafyan and others into custody had been recorded about six to eight hours later;
(f) the knife;
(g) the examination of the crime scene and the relevant video, both produced in court, during which police officer M.H. had described the circumstances of Vahan Khalafyan’s ill-treatment by police officer A.H. and his suicide.
On 28 December 2010 the third applicant lodged an appeal in which he argued, inter alia, that Vahan Khalafyan had died as a result of the ill‑treatment inflicted and not the alleged suicide, which had been faked by the police officers to cover up the crime. However, only the suicide version of events had been examined during the investigation. The Regional Court had failed to recognise explicitly a violation of Vahan Khalafyan’s right to life, freedom from torture and right to liberty and security. The investigating authority and the Regional Court had failed to carry out an objective examination and to establish the truth. Those who had killed Vahan Khalafyan had not been identified and had not received adequate and proportionate punishments.
On 18 April 2011 draft amendments to the CC were presented to the parliament. It was proposed to repeal Article 119 and to add a new Article 309.1 prohibiting ill-treatment committed specifically by a public official.
On 15 June 2011 the Criminal Court of Appeal decided to uphold police officer A.H.’s conviction and police officers G.D. and G.G.’s acquittal. It also decided to apply an amnesty act by quashing police officer M.H.’s conviction and reducing the unserved part of police officer A.H.’s sentence by one third.
On 14 July 2011 the third applicant lodged an appeal on points of law.
On 18 August 2011 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit.
On 9 June 2015 amendments were introduced to the CC. The name of Article 119 was changed from “Torture” to “Causing Strong Physical Pain or Strong Mental Suffering”, providing a punishment for causing strong physical or mental pain if such acts did not contain the elements of an offence proscribed by Article 309.1. A new Article 309.1 was added, entitled “Torture”, which prescribed a punishment for causing strong physical or mental pain if committed by a public official or upon his incitement, instruction or knowledge.
B. Relevant domestic law
The Criminal Code
Article 110 § 1 provides that, with indirect intention or involuntarily, provoking a person to suicide or attempted suicide through threats, cruel treatment or repeated degrading of his dignity shall be punishable by imprisonment for a period not exceeding three years.
Article 119, as in force at the material time, provided that torture, that is any action deliberately causing strong pain or physical or mental suffering, if not resulting in grave or medium damage to health, should be punishable for a period not exceeding three years.
Article 308 § 1 provides that a public official using his official position against the interests of the service or failing to carry out his official duties for selfish, personal or group interests, if causing significant damage to the rights and lawful interests of individuals or organisations, or the lawful interests of society or the State, shall be punishable by a fine of between two and three hundred times the minimal wage, or a forfeiture of the right to hold certain posts or to carry out certain activities for a period not exceeding five years, or detention for a period of two to three months, or imprisonment for a period not exceeding four years.
Article 309 § 3 provides that deliberate actions committed by an official, which obviously fall outside the scope of his authority and cause considerable damage to the rights and lawful interests of individuals or organisations, or the lawful interests of society or the State, if accidentally leading to grave consequences, shall be punishable by imprisonment for a period of between six to ten years and a forfeiture of the right to hold certain posts or to carry out certain activities for a period not exceeding three years.
COMPLAINTS
The applicants complain under Articles 2 and 3 of the Convention about Vahan Khalafyan’s death and ill-treatment. They allege that he died as a result of the ill-treatment inflicted and did not commit suicide. In any event, the authorities bear responsibility for the death, regardless of whether it occurred as a result of suicide or ill-treatment.
The applicants complain under Articles 2, 3 and 13 of the Convention that the authorities failed to carry out an effective investigation into these circumstances and to impose adequate and proportionate punishments. Furthermore, there was a structural problem at the material time in the domestic law which prevented the police officers from being accused and convicted of torture under the CC.
The applicants complain that Vahan Khalafyan’s deprivation of liberty on 13 April 2010 was arbitrary and unlawful, in violation of the requirements of Article 5 § 1 of the Convention.
QUESTIONS TO THE PARTIES
1. Was Vahan Khalafyan’s right to life, ensured by Article 2 of the Convention, violated in the present case?
2. Was Vahan Khalafyan subjected to treatment incompatible with the requirements of Article 3 of the Convention?
3. Having regard to the procedural protection of the right to life and the procedural protection from ill-treatment, was the investigation by the domestic authorities in the present case in breach of Articles 2, 3 and 13 of the Convention?
The Government are requested to submit in particular the following documents:
- Copies of all the statements (բացատրություն) made by police officers A.H., M.H., G.D. and G.G. during the preliminary inquiry and all their interviews (հարցաքննություն) and confrontations (առերեսում) during the investigation;
- Copies of the post-mortem psychological and psychiatric expert opinion no. 10-1032 and the traces expert opinion no. 11401002;
- A copy of the decision recognising the applicant Hmayak Khalafyan as the victim’s legal successor (տուժողի իրավահաջորդ).
4. Did the applicants lodge their complaint under Article 5 § 1 of the Convention within six months from the date of the final decision? In particular, could the criminal investigation into the death and ill-treatment of Vahan Khalafyan be considered an effective remedy in respect of the applicants’ complaint under Article 5 § 1 of the Convention? The Government are requested to explain in this respect whether the alleged violations of that Article could qualify as offences prosecutable under the Armenian criminal law and, if not, whether the applicants had other effective remedies to exhaust.
Was Vahan Khalafyan’s deprivation of liberty compatible with the requirements of Article 5 § 1 of the Convention?
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