The RA Court of Cassation made an important decision regarding the qualification of actions of disproportionate force by officials exercising control over persons in conditions of imprisonment regarding the case of A. Hovhannisyan, an employee of the "Nubarashen" Penitentiary Institution of the RA Ministry of Justice.  

 

In the mentioned criminal case, the employee of the Penitentiary Institution was charged for the act committed in the premises of "Nubarashen" Penitentiary Institution of the RA Ministry of Justice in order to punish the convict A. Aghajanyan with hands and feet by a group of officials, to cause him severe physical pain on purpose, and to hide the incident of torture, as if Aghajanyan used physical force against him, in order to prevent aggression.

 

In the result of the judicial investigation, the Court of General Jurisdiction of the first instance of the city of Yerevan requalified the charge against A. Hovhannisyan, according to the verdict of November 26, 2019 he was found guilty for the official abuse of powers with a group of people combined with violence (which provides for a milder punishment), of committing official forgery, and imposed a final sentence of 4 years imprisonment. At the same time, amnesty was applied to A. Hovhannisyan, and he was released.  

 

The Court of Appeal of the RA rejected the appeals against the verdict, against which the Deputy Prosecutor General of the RA and the representative of the victim's successor filed cassational appeals, asking to annul and amend the decision of the lower courts and find  A. Hovhannisyan guilty for torture and impose proportional punishment on him.

 

In the result of the examination of complaints, the RA Court of Cassation, analyzing the evidence obtained in the case in the light of international conventions and ECHR case law, completely agreed with the findings of the prosecutor's office.

 

According to the Court of Cassation, the lower courts did not consider that the use of physical force against the victim was not strictly necessary, the victim was in the prison, imprisoned, violence was used against him for unaddressed curse.

 

The Court of Cassation did not find it admissible the findings of the First Instance Court that in order to qualify the violence as torture, it is a necessary condition that the incident was preceded by an illegal act by the victim. The argument based on the requalification of the act, that no special measures were used during the beating, the beating was not accompanied by the use of special methods, the cruel treatment did not last long, was not repeated, etc., was also considered unacceptable.

 

Referring to the decision on "M. Saghatelyan vs. Armenia" of the ECHR legal analysis, the Court of Cassation reminded that when an individual is deprived of his liberty or, in general, has faced law enforcement officers, any use of physical force that was not necessary, degrades human dignity and is considered to be a violation of the right envisaged under Article 3 of the Convention.

 

In this sense, the Court reminds: "A slap inflicted by a law enforcement officer on an individual who is fully under his control is a serious attack on the latter's dignity, the slap has a deep impact on the person. A slap in the face affects the part of a person's body that expresses their personality, manifests their social identity, and is the center of their senses of sight, speech, and hearing, which are used to communicate with others.

 

...This is especially true when the slap is inflicted by law enforcement bodies on persons under their control, because it emphasizes the superiority and inferiority that by definition characterize the relationship between the former and the latter under the circumstances.

 

(…) Besides, ...in general, all persons who are under the control of the police or a similar body are in a vulnerable situation. The authorities, therefore, have a duty to protect them (…). By causing humiliation by slapping any of the policemen, the authorities disregard this duty..."

 

According to the Court of Cassation, the victim A. Aghajanyan was in the penitentiary institution, in a  a closed area which was under the control of the state and thus he was in a vulnerable situation. "It is the positive duty of the state to ensure the protection of A. Aghajanyan who is in a vulnerable state. 

 

Taking into account that the subordinate courts commented and assessed incorrectly the factual evidence regarding A. Hovhannisyan’s commitments, the Court of Cassation granted the claims of the Prosecutor’s Office and the representative of the victim's successor, overturned the decision of the Court of Appeal and send the case to the same court for new examination.

 

The actions, the legal analyses and the consequences will have significance in such other cases.

 

The example of the decision was sent to the RA Police, Penitentiary Service of the RA Ministry of Justice to undertake effective steps.