Last Updated on November 5, 2019 by LawEuro
Communicated on 23 January 2018
FIRST SECTION
Application no. 28215/11
Nairi BADALYAN
against Armenia
lodged on 3 May 2011
STATEMENT OF FACTS
The applicant, Mr Nairi Badalyan, is an Armenian national who was born in 1968 and lives in North Hollywood, United States of America (USA).
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant alleges that between November and June 1999, when he was an accused and was detained in a high-profile criminal case (no. 62207199) involving a terrorist act in the Armenian Parliament, he was subjected to continual acts of torture by the investigators and officials of the facility where he was detained, with the purpose of extorting a confession.
On 27 June 2000 the criminal case against the applicant was dropped for lack of evidence. Thereafter the applicant complained to the authorities of the ill-treatment he had allegedly endured. It appears that on 18 July 2000 the applicant underwent a forensic medical examination which revealed injuries on his body whose age, however, could not be established.
On 4 March 2002 a criminal case was instituted (no. 62201102) upon the applicant’s complaint, as well as a complaint lodged by Amnesty International, under Article 183 § 2 of the former Criminal Code (exceeding official authority, accompanied with violence). It appears that the applicant was formally involved in the case as a witness. He was questioned in the course of the investigation on several occasions and reiterated his allegations of ill-treatment.
On 12 March 2002 two military police officers were questioned who denied the applicant’s ill-treatment. On 20 March 2002 an additional panel forensic medical examination was ordered, which produced its conclusions on 3 May 2002 confirming the findings of the previous medical examination. Between October 2002 and April 2003 five officials of the facility where the applicant had been detained were also questioned and similarly denied that the applicant had been ill-treated. It appears that further interviews were conducted with the members of the investigative team in criminal case no. 62207199, including several investigators of the Military Prosecutor’s, the applicant’s four lawyers and other witnesses, including some former cell-mates.
In October 2003 the applicant immigrated to the USA where he was later granted political asylum.
On 21 January 2005 the criminal proceedings were suspended pursuant to Article 31 § 1(5) of the Code of Criminal Procedure (CCP) on the ground that there was force majeure temporarily preventing the further conduct of the proceedings. The decision stated that there was a need to carry out further investigative measures with the applicant’s participation, including interviews and confrontations, in view of the discrepancies between his statements and those of the investigators. However, this was impossible since the applicant had moved to the USA and had stated in his interviews to the press that he had, so far, no intention of returning to Armenia, for security reasons.
By a letter of 26 April 2006 the applicant’s lawyer was informed, in reply to an inquiry about the progress of the case, that the criminal proceedings had been suspended.
On 31 October 2006 the applicant’s lawyer complained to the General Prosecutor about the decision to suspend the proceedings. She argued that “force majeure” within the meaning of Article 31 § 1(5) of the CCP implied an earthquake, flood, war and similar disasters, and requested that the proceedings be resumed.
On an unspecified date the applicant’s lawyer lodged a similar complaint with the courts, seeking to annul the decision of 21 January 2005.
On 24 November 2006 the Kentron and Nork-Marsh District Court of Yerevan dismissed the complaint on the ground that the applicant was involved only as a witness in the case, as opposed to a victim or a civil plaintiff, and therefore was not entitled to appeal against the decision in question.
On 28 January 2007 the applicant’s lawyer applied to the General Prosecutor with a request to recognise the applicant as a victim for the purposes of criminal case no. 62201102. She alleged that the investigating authority had been obliged to recognise the applicant as a victim immediately after the criminal case had been instituted. It had not done so, unlawfully, in order to deprive the applicant of the rights enjoyed by a victim in a criminal case. She further requested that the decision of 21 January 2005 be annulled for lack of force majeure.
On 16 February 2007 the applicant’s lawyer lodged a similar complaint with the courts.
On 6 April 2007 the Kentron and Nork-Marash District Court of Yerevan dismissed the complaint, finding that all the actions of the investigating authority had been lawful.
On 30 May 2007 the Criminal Court of Appeal dismissed an appeal lodged against that decision by the applicant’s lawyer, finding that in order to recognise the applicant as a victim it was necessary to carry out a number of investigative measures, which was impossible in the applicant’s absence.
On 7 April 2009 the applicant lodged a complaint with the General Prosecutor arguing, inter alia, that the suspension of the criminal proceedings under the pretext of his absence was just a means to discontinue the criminal case and to allow the perpetrators to avoid responsibility. He had left Armenia only nineteen months after the case had been instituted. By then the investigating authority had failed to take all the necessary measures to investigate his allegations and therefore his departure had not changed anything and had been simply a pretext. The applicant lastly informed the General Prosecutor that he had returned to Armenia and requested that the criminal proceedings be resumed.
On 4 May 2009 the criminal proceedings were resumed on the ground that the applicant had returned to Armenia.
On the same date the applicant was formally recognised as a victim. The decision recapitulated the applicant’s allegations of ill-treatment and the fact that the existence of injuries had been confirmed by the forensic expert. Furthermore, the applicant had indicated the identities of officials who had allegedly ill-treated him and had requested that he be recognised as a victim in his complaints to the General Prosecutor. In such circumstances, taking into account that the fact of the applicant’s ill-treatment by the above‑mentioned officials had been established by the investigation, it was decided to recognise the applicant as a victim.
On 27 May 2009 an additional panel forensic medical examination was ordered. The experts were asked to confirm the accuracy of the conclusions of the previous forensic medical examinations, including those conducted on 18 July 2000 and 3 May 2002, and to determine what illnesses the applicant suffered from at the material time.
On 8 August 2009 the applicant was formally recognised as a civil plaintiff on the ground that he was entitled to claim compensation for the expenses which he had borne in connection with the damage to his health as a result of ill-treatment.
On 27 August 2009 an investigator of the Military Prosecutor’s Office and two officials of the facility where the applicant had been detained were charged under Article 341 § 3 of the new Criminal Code (coercion of testimony) in connection with the applicant’s alleged ill-treatment.
On 2 November 2009 the investigator dealing with the applicant’s case requested that the investigation be extended until 4 January 2010. The decision stated that there was evidence that the applicant’s ill-treatment might have been ordered and overseen by the then Military Prosecutor and it was necessary to wait for the results of a handwriting expert examination to be able to confirm or deny that suspicion.
On 24 November 2009 the handwriting experts produced their opinion; their findings had not been conclusive.
On 10 December 2009 the applicant lodged a complaint with the Kentron and Nork-Marash District Court of Yerevan, complaining, inter alia, of the length of the investigation and various other procedural irregularities, contesting the actions and omissions of the investigator dealing with his case, as well as other authorities and public officials, and seeking damages.
On 21 December 2009 the District Court returned the applicant’s complaint on the ground that it contained claims of both criminal procedure and civil nature and could not be examined in one set of proceedings. The applicant was asked to separate his claims and to re-submit them according to the relevant rules of criminal and civil procedure. It appears that the applicant complied with that requirement on 16 January 2010, although the outcome of the instituted proceedings is unclear.
On 31 May 2010 the investigator decided to drop the prosecution and to discontinue the criminal case. He found that, while the applicant had likely been subjected to ill-treatment, it was impossible to establish by whom and when. There was not sufficient evidence to continue the prosecution or to bring charges against other officials. Moreover, the criminal case was to be discontinued because of a statutory limitation.
On 8 June 2010 the applicant contested the investigator’s decision before the General Prosecutor’s Office, which dismissed his complaint by its decision of 18 June 2010.
On 25 June 2010 the applicant contested the investigator’s decision before the courts.
On 28 July and 30 August 2010 respectively the trial court and the Criminal Court of Appeal dismissed the applicant’s appeals and upheld the investigator’s decision.
On 30 September 2010 the applicant lodged an appeal on points of law, which was declared inadmissible for lack of merit by a decision of the Court of Cassation of 4 November 2010.
B. Relevant domestic law
Article 31 § 1(5) of the CCP provides that criminal proceedings may be suspended by a decision of the prosecutor, the investigator or the court if there is a force majeure which temporarily prevents the further conduct of the proceedings.
Article 58 of the CCP provides that the person who has suffered non‑pecuniary, physical or pecuniary damage directly as a result of a criminal offence is recognised as a victim.
COMPLAINT
The applicant complains under Article 6 of the Convention that the criminal case no. 62201102 had been conducted with numerous violations of his rights, including his right to a trial within a reasonable time. The investigating authority and the courts failed to give any assessment to those violations.
QUESTION TO THE PARTIES
Having regard to the procedural protection from ill-treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation by the domestic authorities in the present case in breach of Article 3 of the Convention?
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