THIRD SECTION CASE OF VIRABYAN v. ARMENIA (Application no. 40094/05) JUDGMENT STRASBOURG 2 October 2012 FINAL 02/01/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. VIRABYAN v. ARMENIA JUDGMENT 1 In the case of Virabyan v. Armenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President, Egbert Myjer, Corneliu Bîrsan, Alvina Gyulumyan, Ján Šikuta, Luis López Guerra, Kristina Pardalos, judges, and Santiago Quesada, Section Registrar, Having deliberated in private on 11 September 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 40094/05) 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 Grisha Virabyan (“the applicant”), on 10 November 2005. 2. The applicant was represented by Ms L. Claridge, Mr M. Muller, Mr T. Otty and Mr K. Yildiz, lawyers of the Kurdish Human Rights Project (KHRP) based in London, Mr T. Ter-Yesayan, a lawyer practising in Yerevan, and Mr A. Ghazaryan, a non-practising lawyer. 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. 3. The applicant alleged, in particular, that he had been tortured while in police custody and no effective investigation had been carried out into his allegations of torture, that the grounds on which the criminal proceedings against him had been terminated violated the presumption of innocence and that his ill-treatment had been motivated by his political opinion. 4. On 10 September 2008 the President of the Third Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 2 VIRABYAN v. ARMENIA JUDGMENT THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1958 and lives in Shahumyan Village, Ararat Region of Armenia. A. Background to the case 6. The applicant was a member of one of the main opposition parties at the material time in Armenia, the People’s Party of Armenia (PPA). 7. In February and March 2003 a presidential election was held in Armenia. The applicant acted as an authorised election assistant (վստահված անձ) for the PPA candidate who was the main opposition candidate in the election. Following the election, which was won by the incumbent President, the international election observation mission concluded that the overall election process fell short of international standards. It appears that mass protests followed. The PPA candidate challenged the election results in the Constitutional Court, which on 16 April 2003 recommended that a referendum of confidence in the re- elected President be held in Armenia within a year. 8. As the April 2004 one-year deadline approached, the opposition stepped up its campaign to challenge the legitimacy of the re-elected President and began to hold rallies around the country to express its demands. Numerous rallies were held in March and April 2004 and the applicant appears to have participated in them. He alleged that the authorities had retaliated by arresting and harassing opposition supporters, including himself. According to him, during this period the local police officers visited on a daily basis his home in Shahumyan village where his mother lived, with the intention of taking him to the police station. He was forced to stay away from home and to hide in Yerevan. 9. On 12 April 2004 a rally was organised by the opposition parties which took place on Freedom Square in Yerevan and was followed by a march towards the presidential residence. Between 10,000 and 15,000 people attended the rally, including the applicant. It appears that the police eventually dispersed the crowd at around 2 a.m. on 13 April 2004. VIRABYAN v. ARMENIA JUDGMENT 3 B. The applicant’s arrest and alleged ill-treatment 1. The circumstances of the applicant’s arrest of 23 April 2004 10. According to the police materials, on 23 April 2004 at 5.05 p.m. an anonymous telephone call was received at the Artashat Police Department alleging that the applicant, while attending the demonstration of 12 April 2004, had been carrying a firearm which he still had on him. Two police officers, R.S. and A.S., were ordered to bring the applicant to the police station. 11. According to the record of taking the applicant to the Artashat Police Department, the applicant was taken there on 23 April 2004 at 5.40 p.m. on suspicion of carrying a firearm and for using foul language towards police officers and not obeying their lawful orders. It was noted that the applicant refused to sign the record. 12. At 5.50 p.m. the applicant was subjected to a search by the arresting police officer R.S. and another police officer, A.M., in the presence of two witnesses, during which a mobile phone and a lighter were found. The record of the applicant’s search similarly noted that the applicant refused to sign it. 13. Both arresting police officers, R.S. and A.S., reported to the chief of police that the applicant had used foul language during his arrest. In particular, the applicant had said “I have had enough of you! What do you want from me? Why have you come here? Who are you to take me to the police station?” They further reported that he had made a fuss and disobeyed their lawful orders but they had somehow managed to place him in the police car. On the way to the police station he had continued using foul language, saying that he would have them all fired and that they would be held responsible for this. 14. The applicant contests this version of events and alleges that he was stopped near his home by police officers R.S. and A.S. between 2 p.m. and 3 p.m. They asked him to accompany them to the police station, explaining that the chief of police wanted to have a talk with him. He agreed and got into the police car without any resistance. At the police station he was taken to the office of another police officer, H.M., who asked him questions about his participation in demonstrations and about a fellow opposition activist, G.A., who had been arrested some days before. Thereafter he was taken to the office of deputy chief of police G., who said that he was using foul language and ordered that an administrative case be prepared. He was then taken to another office where police officer A.M. started preparing the administrative case. He was never subjected to a search. 15. Police officer A.M. drew up a record of an administrative offence in which it was stated that the applicant had disobeyed the lawful orders of police officers and used foul language, which constituted an offence under 4 VIRABYAN v. ARMENIA JUDGMENT Article 182 of the Code of Administrative Offences (CAO). He further drew up a record on taking an explanation which stated that the applicant had refused to make a statement. Both records noted that the applicant had refused to sign them. 16. The applicant alleges that, after police officer A.M. had finished preparing the materials of the administrative case, he said that those materials would be taken to a court and it would be better for somebody to intervene otherwise the applicant risked 15 days in detention. Then the two had a short conversation, during which the applicant said, inter alia, that he had been brought to the police station because of his participation in demonstrations, such arrests being carried out upon the instructions of the President of Armenia. Then police officer A.M. left the office. 17. The applicant further alleges that, some minutes after police officer A.M. had left the office, police officer H.M. entered and started swearing at him. Police officer H.M. then approached him and kicked him on the left side of his chest and punched him in the face. The applicant grabbed the mobile phone charger which was on the desk and hit police officer H.M. Having heard the noise of the scuffle, three other police officers entered the office and took him to another room. About ten minutes later police officer H.M. and another police officer, A.A., came to that room and started brutally beating him. After they left the room, another police officer, A.K., entered the room and started hitting him in the area of his scrotum with a metal object. He was then handcuffed and police officer A.K. continued punching and kicking him below the waist, after which he lost consciousness. 18. It appears that at some point an ambulance was called from Artashat Hospital to have the applicant checked for alcohol intoxication. According to the record of a medical examination, the applicant was examined by the ambulance doctor, A.G., at 7 p.m. and the test results showed that there were signs of alcohol intoxication. The applicant alleges that in reality the ambulance doctor was called to check his level of alcohol intoxication at 3.05 p.m. (see also paragraph 66 below). A police officer, A.H., who assisted in the check-up, punched him four times in the face and once below his waist. 19. At an unspecified hour arresting police officer R.S. reported to the chief of police the following: “During the preparation of materials on an administrative offence in respect of [the applicant] who was brought to the police station on the basis of the information received from an unknown citizen on 23 April 2004 at 5.05 p.m. [the applicant] behaved cynically, obscene and self-confident, using foul language towards the police officers and refusing to sign the prepared documents. And when [the applicant] found out that the materials prepared in his respect would be submitted to a court for examination, he took a mobile phone charger from the desk and hit the head of the criminal investigation unit [H.M.] in the face with it, swearing at him and saying that it was he who had fabricated everything, after which [the applicant] attempted to hit VIRABYAN v. ARMENIA JUDGMENT 5 him a second time with a telephone that was on the desk but he was prevented from doing so by me and [police officers A.A. and A.M.].” 20. It appears that police officer A.A. made a similar report. It further appears that police officer H.M. was taken to hospital. 21. At an unspecified hour investigator M. of the Ararat Regional Prosecutor’s Office decided to institute criminal proceedings no. 27203404 under Article 316 § 1 of the Criminal Code (CC) on the ground that the applicant had used force against a public official by hitting police officer H.M. and thereby inflicting injuries not dangerous for health. This decision was taken on the basis of the materials submitted by the Artashat Police Department and contained an account of events similar to that contained in the above police reports. 22. Investigator M. then took witness statements from police officer A.M. and arresting police officers R.S. and A.S. 23. Police officer A.M. stated that, when the applicant refused to make a statement in connection with his administrative case, there were three other police officers present in the office apart from himself and the applicant, namely police officers R.S., A.A. and H.M. Seeing that the applicant was refusing to make a statement, police officer H.M. told him that he would have to be taken to a court. On hearing that, the applicant exclaimed “It is you who have fabricated everything”, grabbed the mobile phone charger from the desk and hit police officer H.M. in the face. Immediately thereafter the applicant reached for the telephone that was on the desk but police officer A.A. managed to grab the telephone from him. Then the applicant went towards police officer H.M., they grasped each other and, while pushing each other, they fell on the chair standing beside the desk, which collapsed. The applicant was lying on the floor and police officer H.M. was lying on him. A.M. – together with police officers A.A. and R.S. – immediately picked them up. The applicant was then taken to another office, while police officer H.M. was taken to hospital. In reply to the investigator’s question, police officer A.M. stated that the police officers had been very polite and to-the-point with the applicant. He had not been made aware of the applicant’s political affiliation and the only thing he had learned from him was that he was a friend of the PPA candidate. In reply to the investigator’s second question, police officer A.M. stated that none of the police officers had hit or beaten the applicant at the police station before or after the incident. 24. Arresting police officer R.S. made a similar statement. In reply to the investigator’s question as to whether any of the police officers had hit or beaten the applicant at the police station or prior to taking him there, police officer R.S. stated that none of the police officers had hit or beaten the applicant. To the contrary, taking into account his behaviour and his statements about changing the government, the police officers had been careful and correct with him in order to avoid any unnecessary 6 VIRABYAN v. ARMENIA JUDGMENT conversations. In reply to the investigator’s second question, police officer R.S. stated that he had not been made aware of the applicant’s political affiliation and the only thing he had learned from him was that he was a friend of the PPA candidate. 25. Arresting police officer A.S. stated, inter alia, that he was away at the time of the incident. He further stated that he had found out about the reasons why the applicant had been brought to the police station only after bringing him there. No questions were posed by the investigator. 26. Investigator M. examined the scene of the incident and drew up a relevant record which included photographs of the broken chair. 27. At 9.45 p.m. investigator M. drew up a record of the applicant’s arrest which stated that the applicant had been arrested at that hour on suspicion of having inflicted violence not dangerous for health on police officer H.M. at around 6.30 p.m. at the Artashat Police Department. 28. At 10 p.m. investigator M. questioned the applicant as a suspect. According to the record of the suspect’s questioning, the applicant stated that he was unable to testify at that moment and would make a statement the next morning. It appears from the record that the applicant’s State-appointed lawyer was present at this questioning. 29. According to a record drawn up by another police officer, O.B., at an unspecified hour the applicant felt sick and asked for a doctor. An ambulance was called. The ambulance doctor A.G., having heard the applicant’s complaints, advised an in-patient examination since his complaints could be examined only with special equipment. It appears that this visit took place at 11.20 p.m. It further appears that the applicant was taken to Artashat Hospital by several police officers but was not allowed to stay there despite the doctor’s recommendations. The applicant spent that night in a cell at the police station. 2. The applicant’s transfer to hospital and his operation on 24 April 2004 30. On 24 April 2004 at 11.20 a.m. the applicant was taken from the police station to Artashat Hospital, where he underwent a medical examination and was then taken to the surgical unit. 31. According to the surgeon’s certificate dated 24 April 2004, the applicant was brought to the hospital’s surgical unit with the following initial diagnosis: “Post-traumatic hematoma of the scrotum, hematocele of the left testicle, laceration?” Surgery was carried out on the applicant’s scrotum. During the surgery the left testicle was found to be lacerated and crushed with decomposition of tissue and with a large amount of accumulated blood (about 400 mg). The applicant’s left testicle was removed. Following the surgery, in-patient treatment was recommended. The certificate further stated that in the post-surgical period the applicant was not able to testify or to answer questions. VIRABYAN v. ARMENIA JUDGMENT 7 32. It appears that on the same date the applicant’s chest was X-rayed at the hospital. 33. Later that day investigator M. decided to release the applicant from custody. The investigator’s decision described the circumstances of the incident as presented in the above police materials and added that “[the applicant] had also been injured during the incident” and taken to hospital. Taking into account that the applicant needed in-patient treatment, there was no need to keep him in custody. 34. Investigator M. also ordered that both the applicant and police officer H.M. undergo a forensic medical examination. This decision stated, inter alia, that it had been established by the investigation that the applicant, who had been taken to the police station on suspicion of carrying a firearm, had inflicted injuries on police officer H.M. by hitting him with a mobile phone charger. As a result of the incident, the applicant had also been injured. The expert was asked to answer the following questions in respect of the applicant’s injuries: “- What kind of physical injuries are there on [the applicant’s] body[? C]larify their nature, location, method of infliction, age and degree of severity. - Was the injury to [the applicant’s] testicle caused by a blow or by an illness? - If the injury to [the applicant’s] testicle was caused by a blow, was it caused by one or several blows?” 35. On the same date the investigator took a witness statement from police officer H.M. He submitted that following the anonymous telephone call, deputy chief of police G. had immediately called police officers R.S. and A.S. to his office, informed them about the information received and ordered them to bring the applicant immediately to the police station. After about 30 minutes they had returned with the applicant. Police officer R.S. reported that in the village and on the way to the police station the applicant had used foul language, threatened and used insulting expressions towards the police. Police officer H.M. had then spoken to the applicant and asked him to give up voluntarily his firearm. The applicant denied ever having any firearm and said that he had participated and would continue to participate in demonstrations. He had then continued using foul language, saying that the police officers’ days in office were numbered and that the government would be changed soon. Police officer H.M. went on to describe how he and other police officers started preparing an administrative case against the applicant under Article 182 of the CAO and the manner in which the later incident took place, providing an account of events similar to that given by other police officers (see paragraphs 23 and 24 above). No questions were posed by the investigator. 8 VIRABYAN v. ARMENIA JUDGMENT 3. The first allegations of ill-treatment and other developments 36. On 25 April 2004 the applicant was questioned as a suspect at the hospital by investigator M. and made the following statement: “...I am a member of the PPA party and I have lately participated in demonstrations organised by that party. On 23 April 2004 at around 4 p.m. I was coming home from my aunt’s place when I noticed a car parked next to our house. The car moved and our paths met not far from my house. I saw our [local policeman R.S.] together with one of our district inspectors whom I did not know. They stopped and started talking to me. [R.S.] said that they were coming for me and that the chief (meaning the chief of police) wanted to have a talk with me. I answered that if I came to the police department they would keep me “overnight”, taking into account the fact that the same had happened before to my friends. [R.S.] promised me that no such thing would happen and I agreed to go with them. We went together to the police. I and [R.S.] went up to the second floor. After waiting for a moment next to his office, he took me to the Head of the Criminal Investigation Unit [H.M.]. There [H.M.] started talking and said “Grisha, what is this all about the demonstrations you are holding and the government you are changing? You are upsetting the stability of the country” and things like that[. H]e also said that I had taken people to the demonstrations and added that I had taken with me, for instance, [G.A.]. I asked whether [G.A.] could come and prove that I had taken him to the demonstrations and added that he had his own brain to decide what to do. [H.M.] left the office telling me that he would be back soon. A little while later I was invited to go to the office of the deputy chief of police [G.]. When I entered [G.’s] office he asked me why I was talking loudly in the hallway and why I was organising a demonstration in the building [of the police station]. I answered that I had not been in the hallway and had not organised any demonstration. [G.] said that I was using foul language to him there and then and ordered that a case be prepared on account of my committing an administrative offence. I and [R.S.] came back to his office where he, in the presence of [another police officer, A.M.], said that he would not prepare materials against me and left the room. A little while later [A.M.] was called[. H]e went away, then returned and started preparing some documents. He inquired about my personal details but I refused to say anything and only said that I had higher education. A little while later [H.M.] came. [A.M.] told him that I refused to provide any information about myself. He ordered [A.M.] to go and bring form no. 1. [A.M.] left and came back with a piece of paper on which I could see my photo. [A.M.] filled in some documents and asked me to sign them[. I] answered that I would not sign any documents. At that moment a girl came to [A.M.’s office]. He told the girl to type a court document. [A.M.], apparently having finished filling in the documents, was about to go, probably to fetch the court document. I understood by now that I was going to be taken to a court and sentenced to an “overnight”. Besides, [A.M.] also said that they were about to take me to a court and left the office. At that moment [H.M.] entered the office. I was sitting in front of one of the desks. Upon entering the office he immediately started swearing at me, also saying that it was their country and that they could do anything they wanted to and that what we were trying to do, meaning the change of the government, was all in vain. I answered: “You do what you think is right and we will do what we consider to be right”[. A]t that moment [H.M.] kicked me. The blow fell on the left side of my chest. He kicked me with the sharp tip of his shoe. I felt sharp pain in the area of my ribs. He immediately punched me twice in the face with his left fist. At that moment I lost my temper and to defend myself picked up the mobile phone charger from the desk and hit him with it. The cable stayed in my hand while the charger broke off and hit [H.M.’s] face. I saw him holding his eye and screaming. At that moment [A.M.]