Albert Hakobjanyan | Activities | Legal Support | Legal Support | Right to Freedom from Torture | Project։ Stability of HCA Vanadzor in the light of democracy and human rights challenges in the Republic of Armenia 2020 | Publications | News
On 18 September 2019, Criminal Chamber of the RA Court of Cassation upheld complaints of HCA Vanadzor advocate Ani Chatinyan and Gagik Karapetyan by recognizing ineffective the investigation conducted into the torture case.
The Court obliged the body conducting the proceedings in the case of Albert Hakobjanyan and Gagik Karapetyan to eliminate violations of their rights.
A. Hakobjanyan and G. Karapetyan had applied to HCA Vanadzor in order to get a legal protection. In 2016, law enforcement officials used violence against them and then subjected them to torture in the police division. Criminal proceedings were, however, discontinued, and criminal prosecution was stopped based on the absence of corpus delicti.
The reasoning was the following, “...during the preliminary investigation, all the possible investigative and judicial actions were taken, the possibilities to obtain new proofs have expired, and according to Article 18 of the Criminal Procedure Code, in such conditions, where there is an uneliminated doubt, based on the principle of presumption of innocence, it is to be interpreted in favor of police officials”.
In 2017, HCA Vanadzor advocate A. Chatinyan, defender of interests of A. Hakobjanyan and G. Karapetyan, appealed the decision in the RA Prosecutor General’s Office and then in Yerevan Court of General Jurisdiction and Criminal Court of Appeal. All the mentioned appeals were rejected. In November 2018, the advocate filed an appeal in cassation.
In the appeal, the advocate claimed that the body conducting the proceedings had data regarding ill-treatment against A. Hakobjanyan and G. Karapetyan. Not only were they not given an appropriate assessment, but also effective, i.e. comprehensive, complete and objective investigation was not conducted. Had it been conducted, it would have led to the discovery of the crime, the perpetrators and the citizens’ rights would not have been violated. Moreover, the body conducting the proceedings did not pay attention to the condition of interrogating the taxi driver based on the information provided by A. Hakobjanyan and G. Karapetyan. The taxi driver had witnessed how policemen used violence against A. Hakobjanyan and G. Karapetyan and then apprehended them.
According to A. Chatinyan, the lower court did not give a legal assessment to the condition as to how legal it was that Lori region former Police Head A. Ghazaryan and Stepanavan Police Division Head S. Ayvazyan entered the place of detention and arrest in order to have an “operative intelligence conversation”.
When examining the case, the Court found that when taking a decision, the lower courts violated Article 3 of the European Convention, as well as Article 11 and Article 17 of RA Criminal Procedure Code, which could have essentially influenced the outcome of the case. Based on the positions of the ECtHR, in particular, on the part of the right to effective investigation of Article 3 of the Convention, the Court noted that in cases of torture or ill-treatment, the conduction of effective investigation is the positive obligation of the state. Such complaints should be investigated in full detail and the competent instances should take all the measures to collect proofs in regard to the incident, which was not done in this case.
In the context of the positive obligations of the state, the Court of Cassation particularly stressed that the investigation should be conducted in a fast and detailed manner. Thus, competent bodies should make serious efforts in order to discover what happened, and after the investigation is complete or when presenting the reasoning, they should not rely on weak conclusions or conclusions made in a rush, rather, they should take all the available reasonable steps in order to secure the proofs related to the incident, including interrogations of witnesses and medical proofs. Any shortcoming of the conducted investigation that puts under doubt the causes of injuries or the ability to discover those responsible, jeopardizes the efficiency of the investigation.
Besides, in the frame of constitutionality of eliminating violations of fundamental human rights and freedoms, Criminal Chamber of the Court of Cassation stressed the importance of the absolute nature of the prohibition of torture and ill-treatment, and expressed a clear legal position in regard to the criterion of effectiveness of the investigation conducted in case of “being subjected to torture or ill-treatment” or “a reliable announcement” or “a controversial complaint” or the presence of other relevant sufficient signs.
Citing previous decisions, the Court of Cassation mentioned the criteria, only in the presence of which it is possible to speak about an effective investigation. In particular, besides operating properly and quickly, the body conducting the investigation should also be independent and impartial and have the full power to confirm the present proofs, discover the guilty and hold them liable, it is necessary to conduct a detailed investigation in order to obtain proofs in the frame of the case.
The Court of Cassation found that the body conducting the preliminary investigation of the alleged violence against A. Hakobjanyan and G. Karapetyan had all the data and even knew the whereabouts of the taxi driver who had witnessed the incident, but did not make sufficient efforts, including in the frame of international legal aid, in order to find and interrogate him. Whereas, the information presented by the driver could be crucial in discovering those guilty, as well as the controversies between the evidence of G. Karapetyan and A. Hakobjanyan, and the policemen.
With regard to “operative interrogation”, the Court recorded once more that the fact that Lori region former Police Head A. Ghazaryan and Stepanavan Police Division Head S. Ayvazyan entered the place of detention and arrest, with the consent of the investigator, in order to obtain operative information, is inadmissible and illegal and amounts to a direct intervention of the police in investigative actions. As long as the criminal procedure toolkit is not exhausted, the police have no right to conduct investigation, at their initiative, along with the preliminary investigation. The necessary operative intelligence measures envisaged by legislation can only be taken based on public interest in order to support the investigative body. There was no such need in this case.
Based on the approaches of international organizations (according to which the risk of being subjected to torture or ill-treatment is high in the initial stage of preliminary investigation) the Court found particularly concerning the above-mentioned visit of the policemen to the detainee. Moreover, the “operative interrogation” was made when G. Karapetyan had health-related complaints and needed medical aid, especially when one of the them occurred following the policemen’s visit. In such a situation, conducting a detailed investigation was more than important. Whereas, the preliminary investigation body never took any measure to isolate and interrogate the policemen who had committed an act of torture and ill-treatment in order to prevent those policemen from making an agreement on giving a coinciding testimony.
Summing up the judgment, the Court of Cassation recorded that the lower courts’ conclusions regarding the effectiveness of the investigation into the case are groundless. The body conducting the proceedings discontinued the case and did not make a criminal prosecution by reasoning that the possibilities of obtaining new proofs were exhausted.
Based on Article 398 of the Criminal Procedure Code, the Court of Cassation overturned the act made by the lower court, upheld the cassation appeal and obliged the body conducting the proceedings to eliminate the violations of the two citizens’ rights, as recorded by the decision of the Court.