Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Article 35-3 - Ratione materiae);Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Prompt information);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicants were born in 1985 and live in Vanadzor and Gyumri, Armenia.

In May 2003 the applicants were drafted into the Armenian army and assigned to the third infantry battalion of military unit no. 33651, situated near the village of Mataghis in the Martakert Region of the unrecognised Nagorno Karabakh Republic (hereafter, Nagorno Karabakh) (see Chiragov and Others v. Armenia [GC], no. 13216/05, § 28, 16 June 2015).

On 9 January 2004 the Martakert Garrison Prosecutor’s Office instituted criminal proceedings no. 90800104 on account of the murder of two servicemen of the same military unit, R.Y. and H.M., who had been found dead in a nearby canal on 9 and 10 January 2004. They had been murdered on 24 December 2003.

An investigating team was created by order of the Military Prosecutor of Armenia, which was headed by investigator A.H. of the Military Prosecutor’s Office of Armenia. The investigating team also included the investigator of the Gugark Garrison Military Prosecutor’s Office of Armenia, S.T., the investigator of the Martakert Garrison Military Prosecutor’s Office of Nagorno Karabakh, A.K., the Deputy Chief of the Yerevan Military Police Department, V.K., and the Chief of the Stepanakert Military Police Department of Nagorno Karabakh, A.B.

On 16 January 2004 a number of servicemen were arrested and subsequently charged and detained in connection with the murders. It appears that these charges were later dropped for lack of evidence.

By letter of 6 March 2004 the Military Police Chief of Armenia informed the Military Prosecutor of Armenia that three servicemen had testified and implicated three other servicemen, V.H., S.P. and G.Y., in the crime but later retracted their testimony, alleging that they had made those statements under moral and psychological pressure from one of the officers of the Stepanakert Military Police Department and two officers of their military unit.

On 16 April 2004 the first and second applicants were assigned to keep watch at a military outpost.

On 19 April 2004 the investigative team received from one of the officers of military unit no. 33651 an empty envelope allegedly found at the crime scene on 25 December 2003, on which some names were written.

On 20 April 2004 a former serviceman of the same military unit, K.A., was questioned in this connection in the second applicant’s home town of Gyumri. It appears that it was disclosed during this interview that the envelope in question was linked to the second applicant and had been included in a parcel sent to him by his parents at the end of December 2003. It further appears that this fact was confirmed during the questioning of the second applicant’s younger brother, which took place on 21 April 2004 from 11 a.m. to 1.10 p.m.

The applicants alleged that on 19 April 2004 they were taken, in turns, to the office of their military unit’s commander, M.A., for questioning in connection with the murders. The questioning was carried out by investigators A.H. and S.T. and military police officers V.K. and A.B. Chiefs of the Third and Fourth Battalions, E.M. and I.V. respectively, were also present during part of the questioning. The law enforcement officers started beating, threatening and verbally abusing the applicants, forcing them to confess to the murders. On the same day, following their questioning, they were transported by these law enforcement officers to the Martakert Garrison Military Prosecutor’s Office in Nagorno Karabakh by order of the Military Prosecutor of Armenia, where they continued to be illtreated and were kept until their transfer to the Stepanakert Military Police Department for further questioning.

The Government contested these allegations and claimed that on 19 and 20 April 2004 the first and second applicants were on watch at a military outpost. It was only on 21 April 2004 that the second applicant was taken to the office of the commander of the military unit, M.A., for questioning as a witness in connection with the murders. Soon thereafter the commander of the military unit ordered the Chief of the Third Battalion, E.M., to bring also the first applicant from the military outpost for questioning as a witness. The third applicant was also taken for questioning. The questioning was carried out in the office of the commander of the military unit by employees of the military prosecutor’s office and the military police. During questioning it was revealed that on 24 December 2003 the applicants had abandoned their military unit without authorisation and had gone to Mataghis village. This was found to be a grave disciplinary offence and the commander of the military unit decided to impose on them a disciplinary penalty of ten days in isolation. On the same day, namely 21 April 2004, the applicants were taken first to the Martakert Garrison Military Prosecutor’s Office and later to the Stepanakert Military Police Department where they were placed in a disciplinary isolation cell in order to serve their disciplinary penalty.

It appears from the materials of the case that the applicants’ first questioning took place at their military unit, in the office of commander M.A., where they were taken in turns. The questioning was carried out by investigators A.H. and S.T. and military police officers V.K. and A.B. It appears that the Chief of the Fourth Battalion, I.V., was also present for part of the questioning. The applicants were asked questions about a parcel that the second applicant had received from his parents on 24 December 2003, which included food, letters and other items, whether they had eaten the food together after fetching the parcel from Mataghis and, if so, where and when. No record was made of this interview.

It further follows from the materials of the case that on 21 April 2004 the commander of the military unit, M.A., issued Order no. 112, according to which the applicants were considered to be isolated by the Stepanakert Military Police Department and were deprived of their daily allowance as of 22 April 2004. This Order was based on three Isolation Notices dated 21 April 2004 and signed by the commander, which stated that the applicants were to be isolated for a period of ten days on the grounds of a “VMR” (violation of military rules) and were to be kept in a common cell. In the section of the Isolation Notices entitled “Doctor’s conclusion” the note “practically healthy” appeared, followed by the signature of doctor S. The sections of the Isolation Notices which were to include the signature of the chief of the disciplinary isolation cell and his notes regarding the time and date of the applicants’ admission to and release from the disciplinary isolation cell were left blank.

On 21 April 2004 the applicants were questioned as witnesses at the Martakert Garrison Military Prosecutor’s Office. According to the relevant records, the first applicant was questioned by investigator S.T. from 2.50 p.m. to 7.25 p.m., the second applicant was questioned by investigator A.K. from 2.35 p.m. to 7.40 p.m., and the third applicant was questioned by investigator A.H. from 2.05 p.m. to 7.20 p.m. The second applicant admitted during questioning that he and the other two applicants had eaten the food contained in the parcel received from his parents outside the military unit next to the canal on 24 December 2003. The first applicant was asked during questioning to provide an account of what he had done on 24 December 2003. He was then asked whether he was familiar with servicemen R.Y. and H.M. and whether the nearby shop had still been open when he and the other two applicants had eaten the food, as well as two questions regarding the envelope of the letter which had arrived with the parcel.

Later that day at an unspecified hour the applicants were taken to the Stepanakert Military Police Department of Nagorno Karabakh where from 10.35 p.m. to 00.10 a.m. the second applicant was questioned as a witness by investigator A.H. The interview was videotaped by the cameraman of the Media Department of the Nagorno Karabakh Defence Army, A.G.

The applicants were kept at the Stepanakert Military Police Department until 23 April 2004. On that date the Military Prosecutor of Armenia issued a letter addressed to the Defence Minister of Nagorno Karabakh, with a copy to the Chief of Military Police of Armenia, the Chief of the Stepanakert Military Police Department and the commander of military unit no. 33651, having the following content:

“For the purposes of criminal case no. 90800104 examined by the investigative unit of the Military Prosecutor’s Office of Armenia, on 21 April 2004 [the applicants], who were performing their military service at military unit no. 33651, were taken to the Martakert Garrison Military Prosecutor’s Office, whereupon they were taken to the Stepanakert Military Police Department.

It is necessary to transfer the three above-mentioned servicemen to military unit no. 10724 in Yerevan in order to carry out a number of investigative measures with their participation.”

On the same date the applicants were transferred to Yerevan, the second applicant separately from the first and third applicants. At 10.45 p.m. the officer on duty of the Military Police Department of Armenia drew up a record entitled “Receipt” in which it was stated that he had received the first and third applicants from the employees of the Stepanakert Military Police Department.

The applicants alleged that, during the entire period prior to their transfer to Yerevan, they were questioned on numerous occasions as witnesses, in spite of already being suspected of the crime. They were continually subjected to beatings, threats and verbal abuse by investigators A.H. and S.T., military police officers V.K. and A.B. and another officer of the Stepanakert Military Police Department nicknamed M., with the aim of extorting a confession. They were kept in various rooms and cells at different law enforcement agencies and were neither fed nor allowed to sleep. They were transferred from one law enforcement agency to another, blindfolded and handcuffed. The second applicant also alleged that the officers threatened to rape him with a club and to arrest his mother and younger brother, if he refused to confess.

The applicants further alleged that upon their arrival in Yerevan they remained in custody and at an unspecified point were placed in an arrest facility situated at military unit no. 10724 which was administered by the military police (hereafter, the military police arrest facility – ՀՀ Պաշտպանության նախարարության Ռազմական ոստիկանության վարչության քննչական մեկուսարան) upon the instructions of the investigator.

The Government admitted that the applicants had been transferred to Yerevan upon the request of the Military Prosecutor on 23 April 2004, but claimed that this was done as a protective measure under Article 98 of the Code of Criminal Procedure (CCP). They further claimed that the applicants were placed in the military police arrest facility only after their arrest on 24 April 2004.

On 24 April 2004 from 10.45 a.m. to 3.10 p.m. the second applicant was questioned as a witness by investigator A.H. at the Military Prosecutor’s Office of Armenia. This interview was videotaped. During the questioning, the second applicant confessed that it was he and the other two applicants who had committed the murders. According to his statement, on 24 December 2003 he and the other two applicants had left their military unit in order to eat in private the food sent by his parents, near the canal. There they had come across the two fellow servicemen. A quarrel had erupted which led to a fight and resulted in fatal injuries. Having realised that the two fellow servicemen were dead, he and the other two applicants had decided to throw their bodies into the canal.

On the same date the applicants were formally arrested and recognised as suspects. The first applicant’s arrest record was drawn up at 6.35 p.m. at the Military Police Department in Yerevan. The record indicated that he was suspected of complicity in the murder of the two servicemen.

It appears that investigator A.H. invited lawyers M.A. and V.Y. to represent the applicants. M.A. was assigned to represent the second applicant, while V.Y. was assigned to the first and third applicants. The first applicant agreed in writing that his interests be represented by lawyer V.Y.

Later that day the applicants were questioned separately as suspects in the presence of their lawyers. Furthermore, two separate confrontations were held between the second applicant and the first and third applicants respectively, both in the presence of the lawyers. During his questioning and the above confrontations, the second applicant confirmed his earlier confession, while the other two applicants denied their guilt and his account of events.

The applicants alleged that the above-mentioned lawyers had been invited to join the case by the investigators of the Military Prosecutor’s Office and their involvement in the case was merely a formality and amounted to the signing of records and other documents in order to create an appearance of lawfulness. The first applicant also alleged that he had never met with his lawyer in private, while the second applicant alleged that his lawyer, M.A., had not been chosen by him and neither he nor his family had given their consent to the lawyer’s participation in the case.

On the same day at an unspecified hour the officer on duty of the military police arrest facility drew up a record of examination of a person’s body (արձանագրություն անձին մարմնի զննության ենթարկելու մասին) in respect of each applicant, which noted that he, together with two deputy officers, two attesting witnesses, V.V. and K.A. (male and female respectively), and the medical assistant on duty (հերթապահ բուժակ), K.G., examined the applicants’ bodies and that “nothing was detected on [them]”. The time of the examinations was indicated as “9.55 p.m.”, “10.05 p.m.” and “10.10 p.m.” for the second, third and first applicants respectively. The respective records were signed by the applicants and everybody else involved. The Government alleged that these examinations had been carried out upon the applicants’ admission to the military police arrest facility.

On 26 April 2004 the applicants were formally charged with murder under Article 104 of the Criminal Code. The applicants were questioned as accused in the presence of lawyers V.Y. and M.A. It appears that later that day the first and third applicants dispensed with the services of lawyer V.Y.

On the same date the third applicant was visited by his father and his cousin’s husband, H.M. It appears that this visit took place in investigator A.H.’s office and lasted a few minutes.

On the same date investigator A.H. took a decision prohibiting the applicants from meeting with their relatives on the ground that it “might obstruct the interests of the criminal investigation”.

On 27 April 2004 at an unspecified hour the Arabkir and KanakerZeytun District Court of Yerevan examined and granted the investigator’s motions seeking to have the applicants detained on remand. It appears that the motions were presented at the hearings by the investigators dealing with the case, in the first applicant’s case this being investigator A.H. The applicants were present at their respective hearings. It appears that the second applicant, who was represented by lawyer M.A., admitted at the hearing that he and the others had beaten the two fellow servicemen, but had no intention of killing them. It further appears that the first applicant was not represented at his hearing. The record of the hearing stated that lawyer V.Y. had been duly notified but had failed to appear. The applicants’ detention was to be calculated from 24 April 2004 and was valid for a period of two months.

On 29 April 2004 the second applicant was taken to the crime scene in Mataghis for a reconstruction of the crime, which was videotaped.

On 11 May 2004 the second applicant addressed a letter to the Military Prosecutor of Armenia in which he retracted his confession, claiming that he and the other two applicants had nothing to do with the murder. He submitted that he had made his confession because the investigator A.H. had informed him that his mother and younger brother had been arrested and were also held at the Military Prosecutor’s Office of Armenia and had threatened that they would “come to harm”. The investigator further threatened that his younger brother would be assigned to perform his military service at the same military unit and would “come to harm”. The second applicant requested that he be questioned again.

On 14 May 2004 a lawyer, Z.P., was hired by the first applicant’s family to represent his interests.

On 18 May 2004 the second applicant was questioned by investigators A.H. and S.T. in the presence of lawyer M.A. He was asked questions about his letter of 11 May 2004, including whether it had been his idea to write that letter, why he had not written it earlier, whether it had been dictated to him, whether he stood by his allegations and why he had not retracted his confession earlier when he had other chances to do so. The second applicant again denied their involvement in the murder and repeated his allegation that he had made his confession since he had been told that his mother and younger brother had been arrested. In reply to the investigator’s question about whether anyone had forced or coerced him into making the confession, the second applicant replied that no one had forced him. In reply to the investigator’s question about why he had made a false confession, he replied that when he had told the truth the investigators refused to believe him.

By letter of 19 May 2004 investigator A.H. informed the chief of the military police arrest facility that the first applicant’s interests were represented by lawyer Z.P.

On 21 May 2004 the applicants were examined by a board of psychiatrists in order to evaluate whether they were competent to stand trial. They were found not to suffer from any mental health issues either at the time of the offence or at present.

On 25 May 2004 the chief of the military police arrest facility instructed the staff of the facility that lawyer Z.P. had been authorised to represent the first applicant. It appears that the lawyer was allowed to visit the first applicant at the facility. The first applicant alleged that, prior to his first meeting with lawyer Z.P., he had been deprived of any contact with the outside world and of any legal assistance.

On the same date the first applicant addressed a complaint to various authorities, including the General Prosecutor, the Military Prosecutor and the Ombudsman, indicating the number of his criminal case and informing them of the following:

“I, Arayik Zalyan, and my two conscript friends, Razmik Sargsyan and Musa Serobyan, are kept at a military police arrest facility and are falsely accused of a grave crime[, namely] the murder of [servicemen H.M. and R.Y.].

On 19 April 2004 I and Razmik Sargsyan were at a military outpost when Razmik received a call from the military unit and was told to come down because his parents had arrived. About an hour later I also received a call and was told that my parents had also arrived and was summoned to the military unit. I went down and was taken to the commander’s office. In the corridor I saw Musa Serobyan who was standing hunched in the corner. There were four unfamiliar persons in the office, two of whom – as I later found out – were investigators [A.H. and S.T.] of the Military Prosecutor’s Office of Armenia. Chief of the Third Battalion [E.M.] and Chief of the Fourth Battalion [I.], whose last name I do not remember, were also present. The two investigators, [A.H. and S.T.], assaulted me, calling me a “murderer”, demanding that I tell with whom I had eaten on 24 December, beating me and demanding that I explain how we murdered servicemen [H.M. and R.Y.]. I was beaten so hard that my nose bled profusely. The Chief of the Fourth Battalion [I.] then helped me and took me to clean my nose. Thereafter I, Musa Serobyan and Razmik Sargsyan were forced to put our T-shirts over our heads, placed in a car and taken away. We arrived in some place, which – as I later found out – was Martakert. I was taken to a room where I stayed with my T-shirt pulled over my head for about an hour and from where I could hear Razmik’s and Musa’s terrified voices and how they were beaten continuously for about an hour. Then it was my turn. [Investigator S.T.] came to my room, started questioning me, saying that my friends had confessed that we had committed the murder, told me to write the same thing and intimidated me, saying that I would not last long and that I would get a life sentence. At that moment some Major entered the room and said that the deceased were his friend’s children and if we did not write the truth – that we had killed them – he would take me out, kill me, throw me in a pit and say that it was the [Azeris] who had killed me. Thereafter, again with our T-shirts over our heads, we were taken away ... and arrived in some place where I was taken to what appeared to be a police station where I was questioned from 6.00 p.m. to 3.00 a.m. I was questioned, sworn at, beaten, threatened, persuaded and told to write that it was us who had killed [H.M. and R.Y.]. They beat and threatened us for a whole day, not even giving us water to drink. That night at around 3.30 a.m. I was taken down to the Stepanakert Military Police Department’s detention facility, where there were three other persons... I, Musa and Razmik were kept in that facility until the morning of 23 April. Musa and I were taken to Yerevan together by a senior lieutenant of the military police department. I realised that Musa had been severely beaten since his face was covered with red and blue marks of blows. We spent the night of 23 April 2004 in Yerevan on the premises of the military police in а room of some supervised unit where we stayed for one night. Musa and Razmik were also there and were kept in separate rooms. The next day I was questioned in the same building and then taken to a confrontation with Razmik. When I saw Razmik, I could hardly recognise him since his entire face was swollen. I realised that he had been beaten and was extremely frightened of the investigators, which is why he gave false testimony.

I ask you to carry out an investigation and to find the real perpetrators ...”

On 8 June 2004 lawyer Z.P. addressed another complaint to the same authorities, submitting that the applicants had been unlawfully arrested between 19 and 24 April 2004 without an arrest warrant and questioned on numerous occasions on suspicion of having committed a murder. The lawyer further complained in detail about the ill-treatment inflicted on the applicants during that period. She also complained that from 23 April 2004 to the present the applicants, in violation of the law, had been kept at a military police arrest facility, despite their pre-trial detention having been ordered by the court decision of 27 April 2004. Thus, they were deprived of the protection offered by the justice system and were kept under the authority of the military police who were, moreover, working in close cooperation with the Military Prosecutor’s Office. She alleged, inter alia, a violation of Articles 3 and 5 of the Convention.

By a letter of 10 June 2004 the Military Prosecutor informed the first applicant and his lawyer, in reply to their complaints, that:

“The first investigative measures involving [the applicants] were carried out on 21 April 2004 at the Martakert Garrison Military Prosecutor’s Office where they were questioned as witnesses. Before the questioning they had been informed about the right not to testify against themselves ... guaranteed by Article 42 of the Constitution.

In order to clarify a number of discrepancies in their statements, on 21 April 2004 [the applicants] were taken to the Stepanakert Military Police Department of the Ministry of Defence of Armenia for the purpose of conducting confrontations and further questioning.

On 22 April [the second applicant], upon my instruction, was transferred to Yerevan as a witness in a criminal case, since I found it inexpedient for him to continue his military service at his military unit. In Yerevan he stayed in the barracks together with the servicemen entrusted with guarding the building of the Military Prosecutor’s Office of Armenia.

[The first and third applicants] were transferred to Yerevan from Stepanakert on the night of 23-24 April and stayed, without being isolated, in the room envisaged for servicemen on duty of military unit no. 10724...

On 24 April [the second applicant] was questioned again as a witness and he was again informed about the requirements of Article 42 of the Constitution, which is confirmed by his signature under the record of the interview.

[The applicants] were arrested on 24 April 2004 and were immediately provided with lawyers.

From the moment of their arrest all the investigative measures in respect of [the applicants], such as questioning, confrontations, the arraignment, etc., were carried out in the presence of their lawyers.

In compliance with [the CCP] the accused took part in the hearings concerning the imposition of detention, during which they did not make any statements about the ‘illtreatment inflicted’ on them...

The accused are kept in the military police arrest facility in accordance with Annex 14 to the Regulations for the Garrison and Sentry Services.

A medical examination can be conducted in respect of [the first applicant] and the others if a relevant request is made.”

On 10 June 2004 the second applicant’s lawyer M.A. filed a motion with the Military Prosecutor, challenging the impartiality of investigator A.H. and requesting that he be removed from the case. It appears that attached to this motion was a complaint by the second applicant, in which he alleged that the investigator and others had bullied and beaten him in Martakert and Stepanakert, as a result of which he had made a false confession. The lawyer requested that the persons mentioned in the second applicant’s complaint be questioned.

On 12 June 2004 the Military Prosecutor decided to reject the motion as unsubstantiated, finding that all the investigative measures involving the second applicant had been carried out in compliance with the rules of criminal procedure. From the moment of his arrest his lawyer had participated in all the investigative measures, except the reconstruction of 29 April 2004 in which case the lawyer’s absence had been voluntary. Most of the second applicant’s interviews had been videotaped, which further proved that no ill-treatment had been inflicted on him. Moreover, at the detention hearing of 27 April 2004 he had stated that his statements made at those interviews had been true. Following his complaint of 11 May 2004 he had been additionally questioned upon his request and stated that he had not been forced to make any statements.

On 14 June 2004 the first applicant’s lawyer Z.P. filed a similar motion with the Military Prosecutor, challenging the impartiality of investigators A.H. and S.T. and requesting that they be removed from the case on the ground that they had, inter alia, ill-treated the applicants.

On 16 June 2004 the third applicant’s new lawyer, A.A., filed a similar motion with the Military Prosecutor, challenging the impartiality of investigator A.H. and requesting that he be removed from the case on the ground that the investigator had, inter alia, ill-treated the third applicant in Stepanakert, including by administering blows to his head with the handle of his pistol.

On 17 June 2004 the Arabkir and Kanaker-Zeytun District Court of Yerevan examined and granted the investigator’s motions seeking to extend until 24 August 2004 the period of the applicants’ detention, which was to expire on 24 June 2004. The first applicant submitted at the court hearing that his and the second applicant’s testimony had been given under duress.

On 18 June 2004 the Military Prosecutor decided to reject the motion of 14 June 2004 as unsubstantiated, finding that the first applicant had been questioned on 21 April 2004 in compliance with all the rules of criminal procedure, including being informed about the right not to testify against himself guaranteed by Article 42 of the Constitution. No investigative measures involving the first applicant had been carried out on 19 and 20 April 2004. He was arrested on 24 April 2004 and was immediately provided with a lawyer. Neither he nor the third applicant had complained about ill-treatment prior to a similar complaint made by the second applicant. The foregoing indicated that the allegations of illtreatment made by the accused and their lawyers were unsubstantiated, concocted and were aimed at justifying the accused, who were employing coordinated common tactics.

On the same date the Military Prosecutor rejected the third applicant’s motion of 16 June 2004 on similar grounds.

On 25 June 2004 the first applicant lodged an appeal against the decision of 17 June 2004. In his appeal he complained in detail, inter alia, that he and the other applicants had been subjected to ill-treatment by investigator A.H. and other law enforcement officers. The first applicant also complained that he and the other applicants were unlawfully kept at a military police arrest facility.

On 29 and 30 June 2004 the second applicant was questioned again. At the outset he was asked questions in connection with the allegations of illtreatment raised in his complaint of 10 June 2004, namely whether he had suffered any injuries and whether he still had any injuries. The second applicant stated that he had suffered only a swollen jaw, which healed in about three to four days, still being visible at the time of his arrest on 24 April 2004 but not when he had appeared before a judge on 27 April 2004. Currently he had no injuries. The injury to his jaw had been inflicted at the office of the commander of the military unit in Mataghis on 21 April 2004 by S.T., A.H., police officer V.K. and one tall police officer from the Stepanakert Police Department. The same persons had continued to illtreat him at the Military Prosecutor’s Office in Martakert and the Military Police Department in Stepanakert, which made his kidneys hurt and lasted a few days. He had had no other injuries and nobody had ill-treated him following his transfer to Yerevan. When ill-treated, he was being ordered to tell the truth. He had made up the confession himself, without any outside interference. The second applicant was then asked a number of questions in connection with his allegations, including why he had made his confession in Yerevan if no ill-treatment had been inflicted on him there and why he had not raised his allegations of ill-treatment earlier. Lastly, a number of questions were posed about the events of December 2003 and the murder.

On 5 July 2004 the investigation into the applicants’ criminal case was over.

On 6 July 2004 the Criminal and Military Court of Appeal dismissed the first applicant’s appeal of 25 June 2004.

On the same date the Military Prosecutor addressed a letter to the chief of the military police arrest facility, stating that it was no longer necessary to keep the applicants at the arrest facility and requesting that they be transferred to Nubarashen pre-trial detention facility.

On the same date the applicants were transferred from the military police arrest facility to Nubarashen pre-trial detention facility.

On 7 July 2004 the first applicant was subjected to a medical examination at Nubarashen pre-trial detention facility, with the following conclusion:

“No fresh bodily injuries or traces of beatings have been disclosed. Skin and mucous membranes are of a normal colour. Vesicular respiration present in the lungs. Heart sounds [(illegible)] ... The abdomen is soft and pain free. There are no external symptoms of venereal disease.”

Medical file no. 607 was opened. On the front page of the medical file “19 April 2004” was noted as the starting date of the first applicant’s detention.

It appears that the second and third applicants were also subjected to medical examinations and no injuries were recorded.

On 16 July 2004 the General Prosecutor decided to reject another motion filed by the first applicant challenging the impartiality of both the Military Prosecutor and investigators A.H. and S.T., on the ground that, inter alia, the allegations of ill-treatment had not been confirmed. No such allegations had been made by the applicants at the court hearings concerning their detention and they had jointly started raising such complaints only at the end of May 2004.

On 22 July 2004 the Deputy Ombudsman informed the General Prosecutor about the second applicant’s allegations of ill-treatment. The Deputy Ombudsman further stated that the second applicant had been kept from 26 April to 6 July 2004 at a military police arrest facility in violation of the Law on Conditions for Holding Arrestees and Detainees and the Regulations for the Garrison and Sentry Services. The Deputy Ombudsman argued that, according to these legal acts, the second applicant should not have been kept at that facility for more than 72 hours after the court issued its decision to detain.

On 26 July 2004 the Deputy Ombudsman was informed by the General Prosecutor’s Office that the accused had been kept at the military police arrest facility on the basis of Annex 14 to the Regulations for the Garrison and Sentry Services and had been transferred to Nubarashen pretrial detention facility following the entry into force of the amendments to those Regulations adopted by the Parliament on 28 April 2004 and ratified by the President on 22 May 2004.

On 24 September 2004 the Deputy Ombudsman addressed a letter to the General Prosecutor in connection with the first applicant’s complaint of illtreatment. The Deputy Ombudsman pointed out that the above complaint had been transmitted to the Military Prosecutor’s Office, the authority whose actions were the subject of the complaint, and the criminal case continued to be dealt with by the same investigator who was alleged to have inflicted ill-treatment on the accused.

On 3 August 2004 the first applicant made a written statement, declaring that he was going on a hunger strike in protest against the unlawful actions of the law enforcement authorities. He alleged that the charges against him and the others were trumped up and based on a coerced confession. Since all his complaints in this respect had remained unanswered, he wished to continue his protest with a hunger strike.

The following record was made in the first applicant’s medical file:

“Since 11 August 2004 the patient has been on hunger strike and under constant medical observation ...”

On 5 August 2004 the first applicant and his lawyer were granted access to the case file.

By a letter of the same date the investigator informed the chief of Nubarashen pre-trial detention facility about this and added that the first applicant’s detention period was suspended pursuant to Article 138 § 3 of the CCP.

On 24 August 2004 the first applicant’s detention period, as extended by the decision of 17 June 2004 of the Arabkir and KanakerZeytun District Court of Yerevan, expired.

On 9 September 2004 the first applicant and his lawyer finished familiarising themselves with the materials of the case.

On the same date the first applicant filed a motion with the investigator, arguing that from 24 August 2004 there was no court decision authorising his detention and requesting that he be released.

On 10 September 2004 the investigator decided to dismiss that motion, stating that, pursuant to Article 138 § 3 of the CCP, the detention period had been suspended on the date when the first applicant was granted access to the case file, namely 4 August 2004.

On 16 September 2004 the first applicant’s mother asked to be allowed to visit him in detention. She was worried about his health, as he was on hunger strike, but she was not allowed to see him.

On 22 September 2004 the case file was transmitted by the Prosecutor to the Syunik Regional Court, which sat in Stepanakert, Nagorno Karabakh.

On an unspecified date Judge M. of the Syunik Regional Court decided to take over the case.

By a letter of 15 October 2004 the chief of Nubarashen pre-trial detention facility informed the first applicant that his detention period had been suspended in accordance with, inter alia, Article 138 of the CCP by the letter of the Military Prosecutor’s Office of 5 August 2004. The chief of the detention facility further stated that, according to the Military Prosecutor’s letter of 22 September 2004, as of that date the detention period had been accounted for by the Syunik Regional Court.

On 19 October 2004 the first applicant was transferred to the Hospital for Prisoners due to his general emaciation as a result of the hunger strike.

On the same date the first applicant’s lawyer addressed a letter to various public authorities, including the prosecutor in charge of the detention facilities and the Chief of the Hospital for Prisoners, complaining that the first applicant was unlawfully detained without a relevant court decision. She further submitted that the first applicant’s state of health was critical and that no requisite medical assistance had been provided for him by the administration of Nubarashen pre-trial detention facility during the entire hunger strike. The lawyer requested that the first applicant be released immediately.

By a letter of 21 October 2004 the Deputy Chief of the Hospital for Prisoners informed the lawyer that no visceral illnesses had been disclosed following the first applicant’s objective inpatient examination, clinical and biochemical analyses of his blood and urine, and a number of instrumental examinations. There was therefore no need to administer medicine. The first applicant was under constant medical supervision due to his hunger strike and the resulting general emaciation of a minor degree.

On 25 October 2004 the lawyer lodged similar requests with the Kentron and Nork-Marash District Court of Yerevan and the Syunik Regional Court.

By a letter of 26 October 2004 the General Prosecutor’s Office informed the first applicant’s lawyer that he had not been released from detention by virtue of Article 138 § 3 of the CCP.

On 27 October and 1 November 2004 the lawyer again requested the Kentron and Nork-Marash District Court of Yerevan to release the first applicant. She also submitted that she had visited him on 25 October 2004 at the Hospital for Prisoners. He had been lying in bed motionless and looked frail. She further alleged that the psychologist had told her that, if the first applicant continued to remain isolated on hunger strike, his life could be in serious danger. She lastly complained that he had been illtreated when questioned as a witness.

By a letter of 27 October 2004 the District Court informed the first applicant’s lawyer that, in order to have the circumstances of the alleged unlawful methods of investigation examined, she had to apply to the authority dealing with the merits of the case. The District Court was not, however, dealing with the merits of the first applicant’s case.

On 1 November 2004 the lawyer requested the administration of the Hospital for Prisoners to provide details of the treatment provided for the first applicant.

By a letter of 2 November 2004 the Deputy Chief of the Hospital for Prisoners informed her that the first applicant had undergone an examination and no visceral illnesses had been found. Due to his general emaciation, since 22 October 2004 the first applicant had been receiving intravenous injections of 5% glucose and vitamins in order to sustain water and vitamin balance. In his current state of health the first applicant was fit to be transferred to a detention facility.

On 2 November 2004 the first applicant was discharged from the Hospital for Prisoners and transported to Stepanakert, Nagorno Karabakh, to participate in the trial. According to the discharge summary:

“[The first applicant] was taken to the Hospital for Prisoners on 19 October 2004 in order to undergo an inpatient examination.

The detainee underwent a clinical and laboratory instrumental examination, as a result of which no symptoms of visceral illnesses were found. He was examined by a psychiatrist who concluded that he had no psychological disorders.

Taking into account his refusal to eat over a long period of time and the general emaciation of his organism, the detainee was injected with glucose and vitamins through a drip.

Since inpatient treatment is no longer necessary, the detainee is being discharged to remain under further medical supervision by the medical staff of the detention facility.”

On 4 November 2004 Judge M. of the Syunik Regional Court decided to set the case down for trial and to fix the date of the first court hearing, which was to take place on an unspecified day in November 2004. The judge stated in his decision that the first applicant’s detention was to remain unchanged.

On 5 November 2004 the first applicant ended his hunger strike.

On 26 November 2004 the first applicant’s lawyer applied to the Chief of the Nagorno Karabakh Remand Centre, claiming that the first applicant’s state of health was unsatisfactory following his hunger strike and requesting that he be examined by a doctor. It is not clear whether there was any follow-up to this request.

In November 2004 the court hearings in the applicants’ criminal case commenced at the Syunik Regional Court.

The second applicant submitted before the Regional Court that on 19 April 2004 he had been taken to the office of the military unit commander M.A. The Chief of the Fourth Battalion I.V. had also been present. The commander had started asking him questions about a parcel that he had received from his parents on 24 December 2003, including where and with whom he had eaten the food contained in that parcel. He had answered that he had eaten the food with the other two applicants at the military unit, but the commander did not believe him. Thereafter investigators S.T. and A.H. and military police officers V.K. and A.B. had entered the office and started beating him and forcing him to admit that it was he and the other two applicants who had killed the two servicemen. Then the other two applicants had been brought and subjected to beatings. The ill-treatment had continued at the Martakert Garrison Military Prosecutor’s Office and the Stepanakert Military Police Department. Not being able to stand the ill-treatment, he had had to come up with a false story, admitting his and the others’ guilt. Later on he had realised his mistake and asked to be questioned again, during which he retracted his earlier confession.

The first and third applicants submitted that they had been illtreated in similar circumstances.

The Regional Court called and examined investigators A.H., S.T. and A.K. and military police officers V.K. and A.B.

Investigator A.H. submitted that he and the other members of the investigating team had arrived at the military unit near Mataghis on 21 April 2004. Upon his instructions the second applicant had been brought from the military outpost to the military unit, since it was necessary to find out where and with whom he had eaten the food contained in the parcel received from his parents. The first and third applicants were also later brought in for questioning. In order to verify the versions of events presented by the applicants, the latter had been transferred to Martakert and then to Stepanakert where further interviews were conducted. Thereafter the applicants had been transferred to Yerevan where the second applicant confessed to the crime.

Investigator S.T. and military police officers V.K. and A.B. made similar submissions.

Investigator A.K. submitted that he had questioned the second applicant at the Martakert Garrison Prosecutor’s Office but did not know about the outcome of that interview since investigator A.H. and military police officer V.K. had taken over and he had left.

The applicants submitted in reply that investigators A.H. and S.T. and military police officers V.K. and A.B. had ill-treated, beaten and threatened them.

The Regional Court also called and examined Chiefs of the Third and Fourth Battalions E.M. and I.V., cameraman A.G. and an officer of military unit no. 33651, M.A., who had been present at the reconstruction of the crime on 29 April 2004.

I.V. submitted that he had been present on and off during the applicants’ questioning on 21 April 2004 but nobody had ill-treated them in his presence.

E.M. submitted that he had personally delivered the first applicant to the office of the military unit commander on 21 April 2004. The second applicant was already there. Thereafter the law enforcement officers had arrived and he had to leave. Nobody had ill-treated the applicants in his presence.

A.G. submitted that he had been present during the second applicant’s questioning at the Stepanakert Military Police Department and no beatings or violence had been inflicted on the second applicant by investigators A.H. and S.T. or military police officer A.B. Nor did he notice any injuries on the second applicant or bloodstains on the floor.

M.A. submitted that he had been present during the reconstruction of the crime by the second applicant in April 2004. The reconstruction had been filmed by investigator A.H. The second applicant had been calm and no illtreatment or violence had been inflicted on him.

On 18 May 2005 the Syunik Regional Court found the applicants guilty of murder and sentenced them to 15 years’ imprisonment. This judgment was based, inter alia, on the second applicant’s confession statement. As regards the applicants’ allegations of ill-treatment, the Regional Court found them to be unsubstantiated on the following grounds. First, the applicants had not raised any such complaints during their questioning as witnesses on 21 April 2004, during their questioning as suspects and as accused and the two confrontations which were held on 24 and 26 April 2004 in the presence of their lawyers, or during the reconstruction of the crime on 29 April 2004. Second, the second applicant had not raised such allegations even during his additional questioning on 18 May 2004 and did so only in his motion of 10 June 2004, which was followed by similar motions filed by the first and third applicants on 16 June 2004, all of which were dismissed by the Military Prosecutor as unsubstantiated. Third, the fact that no ill-treatment had been inflicted on the applicants was confirmed by the submissions of law enforcement officers A.H., S.T., V.K. A.B. and A.K., Chiefs of the Third and Fourth Battalions E.M. and I.V. and officer M.A. The Regional Court concluded that the motions filed by the applicants and their lawyers, challenging investigator A.H.’s impartiality, and their allegations of ill-treatment, threats and psychological pressure were aimed at helping the applicants to avoid criminal responsibility.

On 1 June 2005 the applicants lodged an appeal against the judgment of the Syunik Regional Court. In their appeal they complained in detail that they had been unlawfully deprived of their liberty from 21 to 24 April 2004 and subjected to ill-treatment during that entire period. They further complained that the authorities had failed to investigate their allegations of ill-treatment in violation of Article 3 of the Convention. Moreover, instead of ordering the institution of criminal proceedings, the Regional Court decided to call and examine the alleged perpetrators as witnesses and to rely on their statements in justifying the conviction.

On an unspecified date, the proceedings commenced in the Criminal and Military Court of Appeal. The applicants repeated in detail their allegations of ill-treatment before the Court of Appeal. They also added that at the time of their admission to the military police arrest facility in Yerevan they had various bodily injuries, including an injured jaw, a bruised eye and a bruised back. They were stripped and examined, but the member of the medical staff who had drawn up the relevant records did not note those injuries. They had signed the records drawn up as a result of these examinations without reading them.

In this connection the Court of Appeal called and questioned medical assistant K.G. who had participated in the examination of the applicants’ bodies at the military police arrest facility. K.G. submitted that the applicants had been admitted to the arrest facility when he was on duty. They had been examined in the presence of witnesses and no bodily injuries had been found. Appropriate records had been drawn up, which were signed also by the applicants. K.G. further submitted that it was impossible for him to fail to record any injuries found, since he would be held personally responsible for such an omission. Nor was it possible for the second applicant to have had an injured jaw, since that was a serious injury which he could not have overlooked.

On 12 December 2005, while their case was still being examined by the Court of Appeal, the applicants lodged another complaint with the General Prosecutor, alleging in detail that they had been deprived of their liberty from 19 to 24 April 2004 and subjected to ill-treatment for the purpose of coercing a confession. They indicated investigators A.H. and S.T. and military police officers V.K., A.B. and M. as the perpetrators and requested that criminal proceedings be instituted against them. The applicants alleged, in particular, that as a result of ill-treatment the second applicant had an injured jaw, the first applicant had a bleeding nose and the third applicant was beaten up and had dirty clothes, having been thrown to the floor and repeatedly kicked. Furthermore, the second applicant was stripped, leaned against the wall and threatened that, if he refused to confess, he would be raped with a club. Thereafter, he was forced to hang on a rod placed on chairs and was threatened with clubs and weapons. When being beaten during his questioning in the office of the chief of Stepanakert Military Police Department A.B., a large amount of blood dripped from the second applicant’s nose onto the floor and he was ordered to lick it off. The applicants finally alleged that they had been kept unlawfully at the military police arrest facility until 6 July 2004 in order to be subjected to further threats and abuse.

By a letter of 26 December 2005 the General Prosecutor’s Office informed the applicants that, during the court examination of the criminal case against them, the Syunik Regional Court, guided by Article 17 § 4 of the CCP, had taken the necessary measures to verify the statements alleging that they had been subjected by the investigators to coercion during the investigation, and found them to be unsubstantiated in its judgment of 18 May 2005.

On 8 January 2006 the applicants lodged a complaint with the Kentron and Nork-Marash District Court of Yerevan under Article 290 of the CCP, complaining that the Prosecutor’s Office, by relying on the examination carried out by the Syunik Regional Court, was refusing to institute criminal proceedings. However, the Syunik Regional Court was not competent to carry out examinations outside the scope of the criminal case before it. The alleged perpetrators were not involved as accused and appeared before the Regional Court only as witnesses. In order to carry out an effective investigation of the allegations of ill-treatment, it was necessary to institute criminal proceedings under Article 181 of the CCP. They requested the District Court to oblige the General Prosecutor to institute such proceedings.

On 1 February 2006 the Kentron and Nork-Marash District Court of Yerevan dismissed the complaint, finding that the General Prosecutor’s reply was in conformity with the law and did not violate the applicants’ rights. The District Court stated, in particular, that complaints alleging a violation of lawfulness in the course of criminal proceedings, pursuant to Article 17 § 4 of the CCP, were to be thoroughly examined by the authority dealing with the merits of the case, while statements about a crime made during a court hearing, pursuant to Article 177 of the CCP, were to be entered into the record of the court hearing.

On 14 February 2006 the applicants lodged an appeal, raising similar arguments to those in their complaint of 8 January 2006.

On 14 March 2006 the Criminal and Military Court of Appeal upheld the decision of the District Court, finding that the applicants’ allegations of ill-treatment had been examined during the proceedings before the Syunik Regional Court and the evidence obtained was evaluated in the ensuing judgment. The case was currently being examined on the merits by the Criminal and Military Court of Appeal, which was not constrained by the appeal and was competent to examine the full scope of the case, including any new evidence. The applicants’ argument that the Regional Court and the Court of Appeal were not competent to conduct proceedings in respect of persons who had not been involved as accused was incorrect, since the courts, in adopting their judgments, were obliged under the criminal procedure law to verify and assess whether the evidence obtained was admissible and relevant and whether or not it had been obtained through violence, threats and other unlawful actions of the police officers as alleged in the applicants’ appeal. Pursuant to Articles 41 § 2 (4) and 184 § 1 of the CCP, the courts, based on the materials of a case examined by them, were entitled to request that the prosecutor adopt a decision instituting criminal proceedings against third persons. Since the case was currently pending before the Court of Appeal, the applicants’ appeal was to be dismissed.

On 28 March 2006 the applicants lodged an appeal on points of law, raising similar arguments. They also claimed that their procedural rights had been violated since the authorities refused to comply with the requirements of Articles 180 and 181 of the CCP.

On 30 May 2006 the Criminal and Military Court of Appeal issued its judgment on the merits of the applicants’ criminal case. It found the applicants guilty and increased their sentences to life imprisonment. The Court of Appeal relied, inter alia, on the second applicant’s confession statement. As regards the applicants’ allegations of ill-treatment, the Court of Appeal found them to be unsubstantiated. In doing so, the Court of Appeal first of all referred to the submissions made before the Regional Court by law enforcement officers A.H., S.T., V.K. A.B. and A.K., Chiefs of the Third and Fourth Battalions E.M. and I.V., officer M.A. and cameraman A.G. The Court of Appeal further referred to the video recording of the reconstruction of the crime, which did not reveal any bodily injuries on the second applicant, who moved and talked freely, and the records of examination of a person’s body drawn up at the military police arrest facility on 24 April 2004.

On 1 June 2006 the Court of Cassation decided to leave the appeal of 28 March 2006 unexamined. It found, in particular, that the applicants had brought a complaint under Article 290 of the CCP against the prosecutor’s actions related to the pre-trial proceedings. However, since the Court of Cassation was the supreme judicial instance and was called upon, pursuant to Article 92 of the Constitution, to ensure the uniform application of the law, its constitutional status prevented it from examining appeals against decisions and actions of the prosecutor related to the pre-trial proceedings. Such appeals might be examined by the Court of Cassation in exceptional circumstances, if they raised an issue of high importance for judicial practice. In such circumstances, the appeal was to be left unexamined since it was brought against a decision which was not subject to appeal in cassation.

On 9 June 2006 the applicants lodged an appeal on points of law against the judgment of the Criminal and Military Court of Appeal of 30 May 2006.

On an unspecified date, the father of one of the murdered servicemen, in his capacity of victim, also lodged an appeal on points of law against that judgment. In his appeal he complained that the criminal case had been conducted with procedural violations, as a result of which three innocent servicemen had been found guilty, while the real perpetrators were never brought to justice.

On 7 August 2006 the Court of Cassation returned the applicants’ appeal, requesting them to correct a shortcoming and to re-submit the appeal in accordance with the newly-adopted amendments to the CCP.

On 11 September 2006 the first and second applicants resubmitted their appeals, seeking to have their conviction quashed and to be acquitted. It appears that on an unspecified date the third applicant also followed suit. The applicants complained in detail that they had been unlawfully deprived of their liberty from 19 to 24 April 2004 and subjected to illtreatment during that period. They further complained that the authorities had failed to investigate their allegations of ill-treatment.

On 9 October 2006 the Court of Cassation decided to admit the applicants’ appeals for examination. On an unspecified date the victim’s appeal was also admitted for examination.

On 22 December 2006 the Court of Cassation decided to dismiss the applicants’ duly the statements of the defence concerning the applicants’ innocence and the existence of exonerating evidence, as well as their allegations of a violation of lawfulness in the course of the proceedings. In such circumstances, the applicants’ appeals seeking an acquittal could not be granted, since it was necessary to carry out a further investigation into the case.

As regards, in particular, the second applicant’s confession statement, the Court of Cassation found that this statement was not supported by other objective evidence in the case. Furthermore, the second applicant had retracted his statement, alleging that he had given it as a result of fear, violence and torture. It was therefore necessary to verify the credibility of the second applicant’s confession statement.

As regards the question of the applicants’ deprivation of liberty and their allegations of ill-treatment, the Court of Cassation stated:

“It follows from the materials of the case that [the applicants] were detained on 24 April 2004. It was indicated in the appeals on points of law that for five days in a row [the applicants], having the status of a witness, had been subjected to violence, torture and inhuman treatment, as a result of which a confession statement was extorted from [the second applicant].

Pursuant to Paragraph 5 of Order no. 112 of 21 April 2004 of the commander of military unit no. 33651, [the third applicant] was ‘considered to be isolated’ by the Stepanakert Military Police Department and was deprived of his daily allowance on the basis of Isolation Notice N-99.

Pursuant to Paragraph 6 of the same Order, [the second and first applicants], who were on military watch, were considered to be ‘isolated by the Stepanakert Military Police Department’ and were deprived of their daily allowances on the basis of Isolation Notices N-100 and N-101.

In the course of the further investigation it is necessary to clarify what it means ‘to consider’ the said soldiers ‘to be isolated by the Stepanakert Military Police Department’ on the basis of isolation notices and what is the substance of such isolation. Has it not led to unlawful restrictions and deprivation of liberty not inherent in measures normally applied in the armed forces?

It is also necessary to verify in detail the arguments raised in the appeals lodged by the defence concerning the infliction of violence on [the applicants] and subjecting them to torture during those days.”

The Court of Cassation also decided to annul the preventive measure and to release the applicants from detention.

On 6 February 2007 the investigation into the applicants’ criminal case was assigned to another investigator of the Military Prosecutor’s Office, V.S. An investigator of the Gugark Garrison Military Prosecutor’s Office of Armenia, S.G., was appointed as his assistant.

On 19 February 2007 the applicants appeared for questioning in their capacity of accused but refused to testify, stating that they considered themselves to be victims rather than accused. They stated that they would be willing to testify in connection with their allegations of torture if a separate criminal case was instituted and they were recognised as victims.

On the same date lawyer Z.P., who at that point was representing all three applicants, challenged the impartiality of employees of the Military Prosecutor’s Office, alleging that they were incapable of carrying out an objective investigation, which was evidenced by all the unlawfulness demonstrated earlier in the case, and requesting that they be removed from the investigation. This challenge was dismissed by the Acting Prosecutor General as unfounded.

On 27 February 2007 lawyer Z.P. filed a motion with the General Prosecutor’s Office requesting that a separate criminal case be instituted. She argued that the criminal case in question had been instituted on account of murder and the applicants were involved as accused. It was not possible to carry out an investigation into allegations of torture within the scope of that criminal case. The applicants had consistently complained for three years about the torture that they had undergone, and indicated the names of the perpetrators, but the authorities refused to make a proper assessment of their allegations.

On 28 February 2007 investigator V.S. rejected the motion, finding that not every report of a crime was sufficient in itself to institute criminal proceedings. Sufficient materials had not yet been obtained to adopt such a decision.

In March and April 2007 the investigators questioned a number of persons, including investigators A.H. and S.T. and military police officers V.K., A.B. and M., the commander of the applicants’ military unit, M.A., three military police officers of the Stepanakert Military Police Department and one officer of the Nagorno Karabakh Defence Army who had transported the applicants from Stepanakert to Yerevan, lawyers M.A. and V.Y., and the third applicant’s cousin’s husband, H.M., who had visited him in detention together with his father on 26 April 2004.

Investigators A.H. and S.T. provided their account of the events and denied having ill-treated the applicants. The transcripts of their interviews, including the questions and answers, contained texts which were word-for-word duplicates. Military police officers V.K. and A.B. similarly denied having ill-treated the applicants. Military police officer M. stated that he had been absent from the Stepanakert Military Police Department during the period when the applicants were taken there and he had never encountered them. Commander of the military unit M.A. stated that on 21 April 2004 he had imposed disciplinary detention on the applicants because of their unauthorised absence from the unit and ordered that they serve it at the Stepanakert Military Police Department. He did not know what questions had been posed to the applicants by the investigators in his office because this had been done in private. No violence had been inflicted in his presence. The officers who had transported the applicants stated that the applicants had not been handcuffed and no violence had been inflicted on them during their transfer. They had not noticed any bodily injuries and the applicants had not complained about their health.

Lawyers M.A. and V.Y. stated that on 24 April 2004 they had received telephone calls from investigator A.H. who had invited them to the Military Prosecutor’s Office to take up the applicants’ defence, since a lawyer’s participation was mandatory in cases involving servicemen. They were presented to the second applicant, who was asked to choose between them, so he chose lawyer M.A. Lawyer M.A. stated that, from that moment, he participated in all the interviews and confrontations involving the second applicant. On 27 April 2004 he met with his parents and signed a contract. Lawyer V.Y. stated that he had represented the first and third applicants until 26 April 2004. On that day he met with the first and third applicants’ parents, who did not wish him to continue representing them. Both lawyers stated that they had not noticed any injuries on the applicants, no illtreatment had been inflicted on the applicants in their presence, no complaints of ill-treatment had been made by the applicants nor any pressure exerted on them by the investigator. Lawyer M.A. added that the second applicant did not raise his allegations of ill-treatment until 15 days later when they met in private at the military police arrest facility. He then advised the second applicant to lodge a complaint with the Military Prosecutor.

H.M. stated that on 24 April 2004 the third applicant’s father had told him that his son had been taken to the Military Prosecutor’s Office. Since he was acquainted with investigator A.H., who lived in his neighbourhood, he promised to find out the reasons for the third applicant’s arrest. On the next day he had bumped into A.H. in the yard and introduced him to the third applicant’s father. They inquired about the reasons for his arrest, to which A.H. had replied that he was investigating a murder case and the third applicant had been arrested in that connection. They had further asked A.H. to give them a possibility to visit the third applicant for a few minutes, to which A.H. replied that on the following day he was going to carry out some investigative measures involving the third applicant at the Military Prosecutor’s Office and he could allow them to see him for a few minutes. On the following day they had gone to the Military Prosecutor’s Office and met with the third applicant for a few minutes in A.H.’s office. In reply to the investigator’s question as to whether he had seen any injuries on the third applicant or received from him any complaints of ill-treatment, H.M. stated that he had not noticed any injuries or received such complaints. Furthermore, since the investigator had left them alone for a few minutes, the third applicant, in his opinion, would at least have told his father about any ill-treatment.

On 2 April 2007 the investigator decided to order a forensic medical examination in respect of the applicants. The experts were requested to answer the following questions: (a) whether there had been or were any injuries on the applicants’ bodies and, if so, what was their origin; (b) if so, whether they could have originated during the period from 19 to 24 April 2004 and not be visible three days later, namely on 27 April 2004; and (c) whether the applicants suffered from any illness and, if so, whether it had been caused by the alleged ill-treatment.

On 10 September 2007 the forensic medical experts produced their conclusions. They found that, according to the applicants’ medical files, they did not have any injuries or suffer from any illnesses at the material time. It was not possible to determine whether the applicants had any injuries or illnesses at present since they had failed to appear for the examination. The experts added that skin, bone and joint injuries, such as wounds, bruises, scratches, fractures and dislocated joints, were usually visible after three days.

On 1 October 2007 the Acting General Prosecutor decided not to institute criminal proceedings against the alleged perpetrators of illtreatment for lack of a criminal act. This decision referred at the outset to the instructions of the Court of Cassation to investigate the circumstances of the applicants’ alleged deprivation of liberty prior to 24 April 2004 and their ill-treatment. As regards the deprivation of liberty, it was found to have been a lawful disciplinary measure imposed by the commander of the military unit within the scope of authority vested in him. It was further found that the investigating team had the right to interview the applicants as witnesses and they had been transferred for that purpose. At the Stepanakert Police Department they were placed in a disciplinary isolation cell and continued to be questioned, but later it was necessary to transfer them to Yerevan for the purposes of the investigation. There the second applicant had made his confession, after which the applicants were arrested. Lawyers were assigned to them and they were detained by a court decision of 27 April 2004. In such circumstances, the applicants’ allegations of unlawful deprivation of liberty and ill-treatment had been rebutted by the evidence collected in the case.

On 25 October 2007 the applicants lodged an appeal against this decision. They complained in detail that they had been unlawfully deprived of their liberty from 19 to 24 April 2004 in the guise of witnesses, while already being suspected of the crime. This had been done in order to deprive them of the safeguards enjoyed by a suspect under the law, such as the right to have a lawyer and the right not to testify, and to coerce them into making a confession. They had never been summoned to appear as witnesses as required by law but instead were forcibly taken from their military unit and transported miles away from one law enforcement agency to another where they were kept in various rooms and cells and subjected to repeated illtreatment. There had been no reasonable suspicion to justify depriving them of their liberty and they had been arrested only once the confession had been secured through coercion. They had then been placed in the military police arrest facility where the investigators continued exerting pressure, and in order to hide any traces of ill-treatment. They had not been informed about the reasons for their deprivation of liberty and were brought before a judge with a delay of eight days. The decision of the Acting General Prosecutor had been unlawful and unfounded. He was obliged by law to institute a separate set of criminal proceedings on account of illtreatment, to recognise them as victims and, after carrying out an investigation, to give a proper assessment to the questions raised by the Court of Cassation in its decision of 22 December 2006. For more than four years they had consistently raised their allegations of ill-treatment and indicated the names of the perpetrators but no effective investigation had ever been carried out. The applicants relied, inter alia, on Articles 3 and 5 of the Convention.

On 23 November 2007 the Kentron and Nork-Marash District Court of Yerevan decided to dismiss the appeal. The decision reads as follows:

“Having studied the appeal and the materials of the criminal case, the court finds that the contested actions were taken in compliance with the law and there has been no violation of a person’s rights or freedoms.”

No appeal was lodged against this decision.

On 18 January 2008 the Military Prosecutor decided to institute criminal proceedings to investigate whether the fact that the starting date of the first applicant’s detention was indicated in his medical file as “19 April 2004” amounted to falsification of an official document. A number of persons were questioned and it was revealed that the note in question had been made by mistake by the head of the medical service based on the first applicant’s oral statement. For this reason it was decided to terminate the criminal proceedings for lack of a criminal act.

On an unspecified date the applicants’ trial resumed in the Shirak Regional Court. According to the applicants, a number of former servicemen of their military unit and also a few civilians testified during the trial that they had been locked up during various periods at the beginning of 2004 at the Martakert Garrison Military Prosecutor’s Office and the Stepanakert Military Police Department and questioned in connection with the murders. Many of them stated that they had been humiliated and brutally illtreated during those periods in order to confess to the crime.

On 18 December 2012 the Shirak Regional Court, having heard numerous witnesses and examined the available evidence, found that the applicants’ guilt had not been substantiated and decided to acquit them. It appears that no appeals were lodged against this judgment.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary

The applicant was born in 1947 and lives in Düsseldorf. He is an internationally active entrepreneur in the media sector and chief executive officer of the media company Innova Film GmbH.

He also holds the position of Vice-President of the World Jewish Congress and President of the Jewish Confederation of Ukraine. In 2010 the former mayor of New York, Michael Bloomberg, publicly honoured the applicant for his efforts to improve AmericanRussian relations.

On 12 June 2001, the daily newspaper The New York Times published an article about an investigation into corruption against R.L. A slightly changed version was also published on the newspaper’s website. The online version, which was the subject of the domestic proceedings (see paragraphs 12-20 below), reads, in so far as relevant, as follows (emphasis added and names abbreviated by the Court):

“[L] Media Company Faces a Federal Inquiry

By [R. B.]

Published: June 12 2001

WASHINGTON, June 10— A company owned by [R.L.], the cosmetics heir and former New York City mayoral candidate, is under investigation by federal prosecutors over allegations that it paid at least $1 million in bribes to Ukrainian officials for a valuable television license, according to lawyers and Justice Department documents.

The United States attorney in Manhattan, [M.W.], has empaneled a grand jury and issued subpoenas, and prosecutors are studying some 6,000 pages of documents from Central European Media enterprise, which [R.L.] founded in 1991 as part of a plan to build a media empire in Europe. It now owns television stations in several Central and Eastern European countries.

In a Federal District Court filing in New York last year, [M.W.] sought the corporate documents, saying that they were needed for a criminal investigation into whether [R.L.]´s Central European Media had ‘made corrupt and unlawful payments to Ukrainian officials’ in violation of the Foreign Corrupt Practices Act, the federal law that prohibits American companies from paying bribes abroad. [R.L.] and the company did not challenge the request and turned over the documents, a lawyer said.

The payments being examined took place in 1996 after Ukraine´s licencing body granted a potentially lucrative licence to [R.L.]´s company despite the fact that the Ukraine Parliament had imposed a ban on new licences.

In Ukraine, Central European Media controls the most popular station through its majority-owned subsidiary Studio 1 + 1.

Prosecutors are studying two transactions related to Central European Media’s Ukraine investment, according to documents and persons close to the investigation. In one, prosecutors are trying to determine if L’s company paid $1.2 million to two Lebanese businessmen living in Ukraine, who then distributed it to some members of Ukraine’s television licensing board.

... [R.L.]’s bid to gain the television license in Ukraine began in 1995. That year, he met in New York with [O.V.], a top adviser to Ukraine President [L.K.], to discuss business opportunities.

The initial meetings between [R.L.] and his representatives and [O.V.] were not promising. ...

[O.V.] suggested that [R.L.] team up with a new Ukrainian television broadcasting company, Studio 1 + 1, in Kiev, and he did. The principal owners were [V.R.] and Boris Fuchsmann, well known around Kiev for their influence and wealth. Less well known were their ties to Russian organized crime, according to reports by the F.B.I. and European law enforcement agencies.

[V.R.], who no longer has an interest in 1 + 1, has denied any links to Russian organized crime. Mr. Fuchsmann did not respond to e-mail inquiries seeking comment on the licensing deal and the F.B.I.’s claim of his ties to organized crime, although an assistant confirmed that he had received the inquiries.

A 1994 F.B.I. report on Russian organized crime in the United States described Mr. Fuchsmann as a gold smuggler and embezzler, whose company in Germany was part of an international organized crime network. He is barred from entering the United States.

Besides Mr. Fuchsmann and [V.R.], there were other, silent owners of Studio 1 + 1. In one internal fax, in April 1996, [J] described the Studio 1 + 1 shareholders as ‘‘extremely powerful’ people whom, she added, ‘I will not mention on this fax.’

Central European Media now owns 60 percent of Studio 1 + 1, and Mr. Fuchsmann owns at least 30 percent, according to public statements.

At the time it went into business with Mr. Fuchsmann and [V.R.], Central European Media did not conduct investigations into their backgrounds, according to a report by [R.L.]’s New York law firm, [D.&P.].

In their 20-page report, which the prosecutors now have, the firm’s lawyers said that [R.L.] had been justified in dealing with Mr. Fuchsmann and [V.R.] because they had been highly recommended by [O.V.], whom the lawyers described as ‘an ardent supporter of free-market business’.

The lawyers also concluded that Central European Media had not engaged in any illegal or improper activities. They said they could not rule out the possibility that Studio 1 + 1 had made improper payments, though they did not believe it had.

The Ukraine’s television licensing board issued a broadcast license to Studio 1 + 1 not only in spite of Parliament’s moratorium, but with only four of the board’s eight members present; the law required at least six members for a vote.

A few days after the license was issued, Central European Media transferred $1.4 million to International Teleservices of Belize, according to a C.M.E. Wire Transfer Request. That is the second transaction being looked at by prosecutors.

The Belize company was indirectly owned by ‘many high Ukrainian officials,’ according to a second C.M.E. document, which did not name them.

A third document shows that International Teleservices had paid this amount to a company in Germany owned by Mr. Fuchsmann, Innova, and that Innova had paid the license fees on behalf of Studio 1 + 1. Innova is part of a Russian organized crime network, according to U.S. and German law enforcement reports.

It is not clear why such a circuitous route was used, and a person involved in the transaction, with inside knowledge of the owners of International Teleservices, said the $1.4 million payment was not for a license fee. He would not say what it was for.

Central European Media officials were nervous about the license they won, and sought the opinion of two law firms in Kiev. Both acknowledged ‘the potential weaknesses’ of the broadcasting license, according to a C.M.E. document. One week later, O.V. had secured a letter from the Ukrainian justice ministry stating that the license was valid.

Federal prosecutors, who opened their case in the wake of a number of private lawsuits challenging the legitimacy of the license award, have been examining documents for nearly a year, and the exact status of the investigation is not clear.”

On 28 May 2001, before publication of the article, the journalist had notified the applicant, via an email to one of his employees, of the planned publication and had asked several questions. On 30 May 2001 the journalist had made a follow-up telephone call to the employee, who confirmed that the applicant had received the questions. However, the applicant refrained from answering the questions or commenting on the planned publication.

Since 12 June 2001 the article, showing the date of first publication, is retrievable from the website of The New York Times. It can also be found through online search engines such as “Google” or “Bing”.

On 31 July 2002 the applicant sought injunctions against certain parts of the article (highlighted in the article, see paragraph 9 above), published in the print and online versions.

On 9 January 2008 the Düsseldorf Regional Court declared the applicant’s action inadmissible due to lack of international jurisdiction on the part of the German courts. It found that, at the material time, the print version of The New York Times was not distributed in Germany and that the Internet version of the newspaper was not directed at a readership in Germany. The Düsseldorf Court of Appeal confirmed that decision by its judgment dated 30 December 2008. On 2 March 2010 the Federal Court of Justice quashed the part of the decision regarding the applicant’s claim for an injunction against the challenged statements in the online version of the article and referred that part of the action back to the Court of Appeal. The court held that the online version of the newspaper was accessible from Germany, and because it mentioned a German businessman in the article, the publication had a direct connection with Germany and German jurisdiction. It therefore affirmed the international jurisdiction of the German courts in that respect.

On 22 June 2011 the Court of Appeal decided on the part of the dispute which had been referred back to it by the Federal Court of Justice. It granted the injunction in so far as the article stated that the applicant had been banned from entering the United States, and dismissed the remainder of the applicant’s action for lack of merit. The Court of Appeal held that German law was applicable with regard to the online publication, as the article was accessible in Germany via the Internet and therefore the alleged violation of the applicant’s reputation had at least occurred in Germany.

The court accepted that the statements interfered with the applicant’s reputation and personality right (allgemeines Persönlichkeitsrecht) as protected by Article 2 § 1 and Article 1 § 1 of the Basic Law (Grundgesetz). However, as the statements had been made in the press, which was constitutionally protected pursuant to Article 5 § 1 of the Basic Law, it was necessary to balance both interests. Moreover, as the statements concerned a suspicion against the applicant, the presumption of innocence arising from Article 6 § 2 of the Convention and from German law also had to be taken into account. The court held that there was in principle a public interest in reporting on criminal offences, including the suspicion of their commission. On the other hand, continued the court, the interference with the rights of personality associated with such reporting required higher standards of care for newspaper reporting, because even if the investigation was later discontinued, “something of the accusation might stick to the person affected”. Therefore, concrete, provable connecting facts which go beyond a vague, intangible suspicion were required, the reporting must concern an incident of great weight and the suspicion must be identified as such. In addition, the reporting must be balanced, the journalist must not fail to report on exculpatory circumstances and the person concerned must, as a rule, be invited to make his own comments before publication.

As regards the statements at issue, the Court of Appeal held that there was a great informational interest on the part of the public in the reporting that the applicant, as a German businessman internationally active in the media sector, was suspected by the secret service of being involved in gold smuggling, embezzlement and organised crime. This assessment was not changed by the fact that the applicant had been mentioned by name in the article, or by the fact that when the article was published in 2001, the criminal offences mentioned therein had occurred more than sixteen years previously. Regarding the latter the court pointed out that the criminal offences had become relevant again, due to new suspicions regarding the involvement of a former mayoral candidate. For the understanding of these suspicions it had been necessary to elaborate on the companies and individuals, including the applicant, involved in the alleged corruption. Similarly, describing the suspected criminal backgrounds of some of the persons involved had been necessary for the readers’ comprehension of the allegation. The court also took into account that the article remained accessible in an online archive of the daily newspaper. It held that there was a recognised public interest not only in information on current events but also in being able to research events from recent history.

The court further considered that the reporting was free from polemic statements and insinuations, and made it sufficiently clear that only insights from FBI reports and the law-enforcement authorities were being reported. This was expressly pointed out in the challenged article with the words, "according to reports by the F.B.I. and European law enforcement agencies". The internal FBI report was confirmed by reports of several other law-enforcement agencies, and the applicant himself, while denying any criminal activities, confirmed certain facts mentioned in those reports during the proceedings. Furthermore, the author of the article had notified the applicant via email that the article would be published. In that context the court also considered that although the applicant had been aware of the defendant’s reporting even before the article had been published, he had waited for more than one year before applying for an injunction against the defendant. Therefore, the applicant had not perceived the interference with his personality right as intolerable.

In sum, the court concluded that the defendant had complied with the required journalistic duty of care and that the reporting had relied on sources and background information, which the journalist could reasonably consider reliable. Therefore, the informational interest of the public outweighed the concerns of protecting the applicant’s personality right, even taking into account that such reporting might seriously damage his private and professional reputation. Regarding the alleged entry ban, the court concluded that there had been no reliable sources and that the applicant had shown that he had recently travelled to the United States.

On 2 October 2012, the Federal Court of Justice rejected a complaint lodged by the applicant against the Court of Appeal’s refusal to grant leave to appeal on points of law.

On 26 April 2013 the Federal Constitutional Court declined to consider a constitutional complaint (no. 1 BvR 2387/12) lodged by the applicant, without providing reasons.


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1954 and lives in Syktyvkar, the Komi Republic. He is a musician and a jazz critic.

On 31 December 2007 the applicant published an article on his personal website about a local jazz festival and its president, Mr Y. The article contained a detailed description of the event and scathing criticism of Mr Y. Using various derivatives of Mr Y.’s surname, the article mocked his professional qualities. The jazz festival was described as being “a shoddy piece of work” and Mr Y.’s delivery “crappy”.

Mr Y. sued the applicant in defamation, arguing that the article was insulting and harmful to his reputation.

On 14 August 2008 the Syktyvkar Town Court found the applicant liable in defamation. The judgment consisted of the text of the article, a summary of the relevant domestic law, a two-page reproduction of the extracts from the article which had been mentioned in the statement of claim and two paragraphs of conclusions. They stated:

“Using a distorted form of the plaintiff’s patronymic and last name ... breaches the plaintiff’s right to a name and to a good name, which is unacceptable under the law. Since the defendant committed a breach of the plaintiff’s intangible assets by way of distorting his patronymic and last name in a negative way, the latter shall have the right to compensation in accordance with Article 152 of the Civil Code.

[The contested extracts] undermine the honour and dignity of the plaintiff as a person, pedagogue and musician because they contain negative information about the plaintiff presented in an affirmative form. Pursuant to Article 152 § 1 of the Civil Code, the burden to prove the truth of the allegations is on the defendant, who did not submit any evidence to the court showing that the impugned statements were true.”

The Town Court awarded the plaintiff 5,000 Russian roubles (RUB) in damages and directed the applicant to publish a retraction on his website.

On 23 October 2008 the Supreme Court of the Komi Republic dismissed an appeal by the applicant. It endorsed the findings of the lower court in a summary judgment. It held that Article 10 of the Convention had not been breached because “the defendant published statements on the Internet which undermined the honour and dignity of the plaintiff as a person, pedagogue and musician and which contained negative information about him”.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of inadequate conditions of detention. In some of the applications, the applicants also raised complaints under other provisions of the Convention.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

The applicant, Mr Gökhan Aydın, is a Turkish national who was born in 1983. He was detained in Tekirdağ F-type prison at the time of the introduction of the application with the Court.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 11 November 2002 the applicant was taken into custody by police officers from the Anti-Terrorist Branch of the Istanbul police headquarters on suspicion of membership of TKP/ML-TIKKO, an illegal organisation.

On 14 November 2002 the Istanbul State Security Court ordered the applicant’s pre-trial detention.

On 26 December 2002 the public prosecutor at the Istanbul State Security Court filed a bill of indictment charging the applicant and ten other persons with attempting to undermine the constitutional order, an offence prescribed by Article 146 § 1 of the former Criminal Code.

Following the promulgation of Law no. 5190 of 16 June 2004, the case against the applicant was transferred to 10th Chamber of the Istanbul Assize Court.

During the proceedings, the first-instance courts examined the applicant’s continued detention at the end of every hearing, either on their own motion or upon the applicant’s request.

On 25 December 2007, at the end of the hearing and in the presence of the applicant, the 10th Chamber of the Istanbul Assize Court ordered the applicant’s continued detention. The applicant objected to this decision. On 27 December 2007 the 11th Chamber of Istanbul Assize Court dismissed his objection without holding an oral hearing and relying on the public prosecutor’s opinion which had not been communicated to the applicant or his representative.

On 24 March 2009 the applicant was convicted as charged and sentenced to life imprisonment. This decision was upheld by the Court of Cassation and became final on 20 January 2011.