CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 18 mai 2021

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font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .sA50A48B9 { margin-top:14pt; margin-bottom:3pt; text-align:justify } .s9E013676 { width:0.32pt; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4D915BA7 { width:6.88pt; display:inline-block } .s9B01DA62 { width:215.79pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }     FOURTH SECTION CASE OF JHANGIRYAN v. ARMENIA (Applications nos. 44765/08 and 10607/10)             JUDGMENT   STRASBOURG 18 May 2021   This judgment is final but it may be subject to editorial revision. In the case of Jhangiryan v. Armenia, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:   Tim Eicke, President,   Faris Vehabović,   Pere Pastor Vilanova, judges, and Ilse Freiwirth, Deputy Section Registrar, Having regard to: the applications (nos.   44765/08 and 10607/10) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Vardan Jhangiryan (“the applicant”), on 16   July 2008 and 15 January 2010 respectively; the decision to give notice to the Armenian Government (“the Government”) of the complaints concerning the alleged use of unnecessary force during the police operation and the alleged failure of the authorities to conduct an effective investigation therein, the alleged failure to ensure timely and proper medical assistance when under arrest, the alleged lack of adequate treatment and care for the applicant while in detention as well as the alleged lack of adequate conditions for detention, the applicant’s forced participation in the trial despite his poor health and the alleged lack of proper conditions for his transportation, the alleged unlawfulness of the applicant’s detention from 24 April until 16 June 2008 and the alleged lack of effective domestic remedies against the alleged use of unnecessary force and to declare inadmissible the remainder of the applications; the parties’ observations; Having deliberated in private on 13 April 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant, who was suffering from spinal tuberculosis and had problems of mobility, was stopped by the police while driving a car and arrested. He was subsequently prosecuted and convicted for using violence against a police officer. The case concerns the applicant’s allegations of use of excessive force during his arrest, failure by the authorities to investigate the matter effectively, lack of timely and adequate medical assistance in detention and his forced participation in court hearings despite his poor health, in breach of the requirements of Article 3 of the Convention. The applicant’s complaints also concern the lawfulness of his detention, as required by Article 5 § 1 of the Convention and the alleged lack of an effective domestic remedy in respect of his complaint concerning the use of excessive force during his arrest, as required by Article 13 of the Convention. THE FACTS 2.     The applicant was born in 1960 and lives in Yerevan. He was represented by Ms L. Sahakyan, Mr Y. Varosyan and Mr A. Ghazaryan, lawyers practising in Yerevan. 3.     The Government were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, Representative of the Republic of Armenia before the European Court of Human Rights. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     On 19 February 2008 a presidential election was held in Armenia. After the election the opposition, led by the main opposition candidate, Levon   Ter-Petrosyan, started to hold mass protest rallies and demonstrations. 6.     On 22 February 2008 the applicant’s brother, G.J., who was Deputy Prosecutor General at that time, made a speech at an opposition rally held in Yerevan. The next day, the incumbent President issued a decree dismissing him from the post of Deputy Prosecutor General. The police operation of 23 February 2008 The applicant’s version 7 .     According to the applicant, on 23 February 2008 at around 10 p.m. he and G.J. were returning to Yerevan in a car driven by the applicant. After stopping at the intersection near Argavand village, they were attacked by a group of unknown masked and armed persons who, as it was later found out, were police officers. Those persons crashed their unmarked vehicle into the front of their car, blocking their way, got out of it and, firing their guns, surrounded their car. At the same time they also surrounded the second car accompanying them, which was driven by A.S., the applicant’s friend. L.P., G.J’s driver, K.H., G.J’s assistant, and S.H., who appears to have been the applicant’s employee, were riding in the second car. G.J. left the car, introduced himself and asked the persons what they wanted. The masked persons then seated G.J. in their vehicle. Then, in an effort to get the applicant out of the car, they struck several blows on the driver’s side door window and broke it. When the applicant, who was wearing a medical corset because of mobility problems as a result of spinal tuberculosis, opened the car door, the persons who had surrounded his car hit him in the face with a gun butt, dragged him out and threw him to the ground, in a kneeling position, disregarding G.J.’s warnings that he suffered from a spinal disease. During that time police officers fired their guns and injured the applicant. Two police officers, namely G.M. and T.K., were also injured by the shots. Thereafter, shooting also continued near the police officers’ vehicle. Then the applicant, G.J., L.P. and K.H. were taken to the Principal Department for the Fight against Organised Crime (hereafter, the PDFOC) whose police officers had carried out the operation (hereafter, the police operation). 8.     The applicant claims that the operation was carried out at 10 p.m. In support of this, he relies on the fact that a press release was published by Regnum News Agency at 10.44 stating that G.J. and the applicant had been abducted at the Argavand intersection at around 10 p.m. on 23 February 2008 by unknown masked persons. He also relies on a similar press release which was published by A1+ news agency at 11.19 p.m. The Government’s version 9.     The Government contest the applicant´s version of the events and rely on the results of the domestic authorities’ examination of the events (see paragraphs 93, 96 and 98 below). 10 .     According to an announcement made on 23 February 2008 on the Armenian Police website, operative information had been received by the PDFOC that the persons driving two cars (with indication of the licence plates) had been armed and intended to destabilise the situation in Yerevan. At around 11 p.m. the above-mentioned cars had been pulled over near Argavand intersection by PDFOC officers to conduct an inspection. During an inspection, the PDFOC officers encountered resistance from the persons in the cars as a result of which police officer R.M. had accidentally fired his service gun, inflicting minor injuries on two police officers and the applicant, who had put up resistance. The persons in those cars, namely the applicant, G.J., K.H. and L.P. had been taken to the PDFOC. A PSM-type pistol with cartridges had been found in the applicant’s possession and two other pistols in the possession of G.J. and K.H. As a result of the inspection of the cars, a hunting rifle and a Browning-type pistol with cartridges had been discovered, as well as a dagger, handcuffs and a bulletproof vest. The criminal proceedings against the applicant The applicant’s arrest, his alleged ill-treatment by police officers and his medical assistance during the arrest 11.     According to “the record of bringing a person in”, the applicant was “brought in” to the PDFOC on 23   February 2008 at 11.30 p.m. by PDFOC officers S.M. and A.M. on suspicion of having shown resistance to police officers. 12 .     According to the applicant, in the lobby of the administrative building of the PDFOC he and G.J. had been beaten by three persons of the special task force who had thrown them to the ground and started hitting and kicking different parts of their bodies. G.J., seeing his brother’s helpless and bloodstained condition, had asked the police officers not to hit him because of the spinal disease. However, the police officers did not stop but, on the contrary, started to beat him more vigorously, aiming at the spine. The applicant alleges that both he and G.J. sustained numerous bodily injuries as a result of the violence committed by the police officers. Thereafter, from 10 p.m. on 23 February 2008 until about 12.50 a.m. on 24   February 2008 he was kept at the PDFOC. As his firearms wound was bleeding the police officers placed thick layers of paper on his chair to try to conceal the blood stains. 13 .     On 24 February 2008, at 12.50 a.m., the applicant was taken to hospital where it was found that he had received a perforating firearms injury to the buttocks. The wound was disinfected and dressed, after which the applicant was taken back to the PDFOC. 14 .     On 24 February 2008 investigator M. of the Principal Department for Investigations of the Police instituted criminal proceedings against the applicant under Article 316 § 2 (life or health-threatening assault on a public official) of the Criminal Code (case no. 69101308) on account of his alleged use of violence against the police officers. 15.     On the same date, at 2 a.m., a record of the applicant’s arrest was drawn up, according to which the applicant had been arrested on suspicion of using violence against a police officer. 16 .     At 2.15 a.m. the applicant was questioned as a suspect. He stated, inter alia , that two or more persons had taken him out of the car and forced him to the ground. He had then pressed his right hand to his chest since he could not lie down because of his spine disease and had been in a half ‑ kneeling position. When he was in that position, his hand had been on his chest with his arms leaning on the ground while one of the police officers held his left hand and another demanded that he take his hand away from his chest. At that moment he had heard a shot, after which he had been seated in a car and taken to the PDFOC. In the car, a police officer had taken the applicant’s gun from the right side of his waist. That gun had been an official gift to him and he had the necessary licence to carry it. The applicant further submitted that when he was being taken to the PDFOC he had felt that he had been shot in the buttocks but kept silent since it did not bother him but, once in the building, when the police officers saw that he was bleeding they had taken him to hospital where he was given first aid. The applicant denied having sworn at the police officers or threatened them. Asked whether he had hit a police officer after he had been taken out of the car, the applicant denied having shown resistance and stated that he could not possibly have hit anyone considering that he had been forced to the ground immediately after he was taken out of the car. 17 .     After this questioning, until 9 a.m. on 24 February 2008 the applicant was kept in one of the offices of the PDFOC. Throughout the time he was kept in that room, his wound was bleeding and his condition was deteriorating. The police officers eventually took him to the Police Hospital on the same day. 18 .     At 9 a.m. on 24 February 2008 the applicant was admitted to the Police Hospital. In the hospital they took off his medical corset, which he needed in order to move. Furthermore, during the two days of his stay in the hospital, they refused to give him food and water. 19 .     On 26 February 2008 at 1.40 a.m. the applicant’s medical condition worsened again and he was transferred to Central Prison Hospital where he was admitted to the tuberculosis department. The applicant’s forensic medical examinations 20.     On 27 February 2008 investigator M. ordered a forensic medical examination of the applicant to clarify the circumstances in which he had received bodily injuries during the police operation. 21 .     On 29 February 2008 the applicant’s forensic medical examination was carried out in Central Prison Hospital and various bodily injuries were discovered. In particular, the forensic medical report, issued on 21   March 2008, stated as follows: “The bodily injuries sustained by [the applicant], i.e. the perforating firearm-bullet injury around the left side of the buttocks, with damage to the hypodermic tissue; haemorrhage to the left of the eye socket, the anterior side of the right half of the chest, both sides of the buttocks, ... [the lower part] of the left thigh and [the upper part] of the crura; a wound from a blow around the left eyebrow; and scratches on the head and the left crus were inflicted in the following way: the penetrating firearm injury was inflicted by a shot fired from a firearm loaded with a bullet, while the other injuries were inflicted using blunt objects ..., causing medium-gravity health damage, with lasting deterioration of health ... . [The applicant] suffers from tuberculous spondylitis of the 8 th and 9 th thoracic vertebrae ...” 22 .     It appears from the report that the applicant told the doctor that he had been injured during the police operation when he had been hit in the face with a gun butt, taken out of the car, thrown to the ground and beaten. 23 .     On 26 March 2008 a forensic medical examination by an expert commission was ordered to establish the applicant’s medical condition. According to the corresponding report, apparently issued on 7   April 2008, the following forensic medical conclusion was made: “[The applicant] suffers from tuberculous spondylitis of the 7 th , 8 th and 9 th thoracic vertebrae, and of the 2 nd , 3 rd , and 4 th lumbar vertebrae, sustained in the past and treated, and currently in acute condition. The mentioned illness is considered a grave one and requires long-term inpatient treatment under strict bed rest in a specialist clinic, and with additional care.” The applicant’s requests to be recognised as a victim party 24.     In the meantime, the investigation of case no. 69101308 (see paragraph 14 above) was transferred to the Special Investigative Service (hereafter, the SIS). On 7 March 2008 investigator H. of the SIS took over the case. 25 .     On 17 April 2008 the applicant filed an application seeking to be recognised as a victim party on the grounds that he had been beaten and injured by police officers during the police operation. In substantiation of his allegations the applicant referred to the results of the forensic medical examination of 29 February 2008 (see paragraph 21 above). 26 .     On 18 April 2008 investigator H. made a decision to postpone the examination of the application on the grounds that the investigation into the episode of R.M. injuring, inter alia , the applicant continued. 27 .     On 13 June 2008 the applicant and G.J. lodged an application seeking to be recognised as a victim party. In addition to his allegations of ill ‑ treatment during the police operation, the applicant and G.J. submitted that they had been beaten by police officers in the lobby of the PDFOC. 28 .     On 16 June 2008 investigator H. referred to the decision of 18 April 2008 and the grounds stated therein for postponing the examination of the application. 29 .     On 4 July 2008 the applicant and G.J. complained to the General Prosecutor’s Office, seeking to oblige investigator H. to examine the application of 13 June 2008 and to be recognised as a victim party. 30 .     On 16 July 2008 the General Prosecutor’s Office informed the applicant and G.J. in a letter that their application was not based on the requirements of the Code of Criminal Procedure since they already had the status of accused persons in the criminal proceedings. 31 .     On 12 August 2008 the applicant and G.J. lodged a complaint with the Kentron and Nork-Marash District Court of Yerevan (hereafter, the District Court) seeking to be recognised as a victim party in the proceedings. By its decision of 26 August 2008 the District Court dismissed their complaint for the same reasons as those indicated in the letter of the General Prosecutor’s Office of 16 July 2008, that is, the same person could not have the status of an accused and victim party in proceedings at the same time. 32.     In the meantime, on 13 August 2008 investigator H. decided not to carry out criminal prosecution in relation to the applicant’s and G.J.’s allegation of ill-treatment at the PDFOC. This decision stated that G.J. had refused to confirm his earlier statement that he and the applicant had been ill-treated at the PDFOC. Neither had L.P. and K.H. mentioned about having witnessed the applicant’s and G.J.’s beatings during the investigation. At the same time, the applicant had made no allegation of his and his brother’s ill ‑ treatment during his questioning as a suspect on 24   February 2008 and had refused to answer any questions from the prosecutor after having made such an allegation before the trial court on 6   August 2008. 33.     The investigator’s decision also mentioned the names of twenty police officers of the PDFOC who were questioned and denied the allegation of ill-treatment. 34.     On 23 August 2008 the applicant and G.J. appealed against the decision of 13 August 2008 to the General Prosecutor’s Office, which dismissed their appeal on 27 August 2008. 35.     The applicant and G.J. sought judicial review of the decision of 13   August 2008. 36.     On 21 October 2008 the District Court dismissed their complaint. The applicant and G.J. lodged an appeal. 37 .     On 3 December 2008 the Criminal Court of Appeal dismissed the appeal as unsubstantiated, thus upholding the decision of the District Court. In doing so, the Court of Appeal stated that, according to the materials in the case file, a fight had taken place between the applicant and the police officers when they were disarming him at the Argavand intersection. During the fight shots were fired from the service gun of a police officer, as a result of which several persons, including the applicant, were injured. The Court of Appeal referred to the decision of 13 August 2008 (see paragraph 92 below) to institute criminal proceedings against the police officers for exceeding their authority. Since it was still necessary to continue the investigation into the circumstances in which the applicant had sustained his ballistic and non-ballistic injuries, it had been decided to conduct it together with the above-mentioned instituted criminal case. 38.     On 27 December 2008 the applicant and G.J. lodged an appeal on points of law. 39.     On 22 January 2009 the Court of Cassation declared their appeal inadmissible for lack of merit. In the decision it was stated, inter alia , that the applicant, during his arrest, had disobeyed the lawful orders of the representatives of authority and used violence, dangerous for life and limb, against them. Charges against the applicant and his detention on remand 40.     On 25 February 2008 the applicant was charged with using violence, dangerous for life or limb, against police officers under Article 316 § 2 of the Criminal Code. In the decision to bring the charge it was stated that, during the police operation at the Argavand intersection on 23 February 2008, the applicant had disobeyed the lawful orders of police officers to stop the car by driving into the police van. Thereafter, he had threatened the police officers with violence, attempted to take a pistol out of his pocket, put up resistance and used violence, dangerous for life and limb, against the police officers by punching police officer R.M. in the face, inflicting a bodily injury on the latter. 41.     On the same day investigator M. lodged an application with the District Court seeking to detain the applicant. 42.     The applicant submitted a written note stating that, due to his poor health, he was unable to attend the court hearing on the examination of the investigator’s application seeking his detention. In any case, he had a defence lawyer who would represent him in court. 43 .     On the same day the police officers put the damaged, blood-stained medical corset seized earlier on the applicant and, holding him by the arms, took him to the District Court for the examination of the investigator’s application. 44.     On the same date the District Court authorised the applicant’s detention for two months starting from 24 February 2008. The applicant’s request to be released on bail was rejected. 45.     Upon the conclusion of the court examination, the applicant was taken to Nubarashen detention facility from where he was transferred to the Central Prison Hospital (see paragraph 19 above). 46.     On 3 March 2008 the applicant lodged an appeal against his detention order claiming, inter alia , that he was suffering from spinal tuberculosis which, in accordance with Government Decree No. 825-N of 26 May 2006, was included in the list of grave diseases impeding the serving of punishment. 47.     On 7 March 2008 the Criminal Court of Appeal dismissed the applicant’s appeal. As for the applicant’s state of heath, it found that a medical examination had to be carried out in order to answer those questions. Furthermore, the application of the measure of restraint was not related to serving punishment. 48.     On 15 April 2008 the applicant lodged an appeal on points of law. By decision of 4 May 2008 the Court of Cassation refused to examine the appeal as having been lodged out of time. Conditions of the applicant’s detention in Central Prison Hospital 49 .     According to the applicant, the Central Prison Hospital had no appropriate facilities for the detention of persons suffering from spinal tuberculosis. In particular, for most of his detention he was kept in a patient cell which had a squat toilet with a hole in the floor. Because of the nature of his disease, including his inability to squat, having to use that type of toilet subjected him each time to indescribable pain and humiliation. He had to overcome acute pain in order to meet his basic needs of hygiene, such as body care and cleanliness. 50.     The Government submitted that in the Central Prison Hospital the applicant was kept in a special ward for detainees suffering from tuberculosis and not in a cell, as he alleged. The applicant’s trial The applicant’s detention during trial and change of his preventive measure 51.     On 19 April 2008 the investigation of the applicant’s case was concluded and on 23 April 2008 the General Prosecutor sent the applicant’s case to the Yerevan Criminal Court for trial. A copy of the General Prosecutor’s letter of 23 April 2008 was also sent to the Head of the Central Prison Hospital to inform that, as from 23 April 2008, the applicant’s detention term was calculated by Yerevan Criminal Court. 52.     On 25 April 2008 judge M. of the Yerevan Criminal Court took over the case. 53 .     On the same day the applicant lodged a request with the Head of the Central Prison Hospital seeking to be released on the grounds that his detention as ordered by the District Court on 25 February 2008 had expired on 24 April 2008. 54.     On 28 April 2008 the Head of the Central Prison Hospital informed the applicant that, starting from 23 April 2008, the applicant’s detention term was calculated by Yerevan Criminal Court. 55.     On 5 May 2008 the applicant lodged a request, similar to that of 25   April 2008, with the Yerevan Criminal Court. 56.     On 8 May 2008 the Yerevan Criminal Court decided to set the applicant’s case down for trial, assigning 19 May 2008 as the date of the first court hearing of the case. By the same decision it dismissed the applicant’s request to be released, finding that the applicant’s detention had been ordered by a court decision in due process, while no maximum term for the applicant’s detention during trial was prescribed. It also held that the applicant’s detention, as a measure of restraint, had been chosen correctly and was not to be modified or cancelled. 57 .     On 19 May 2008, during the first court hearing of the case, the applicant, who had two defence lawyers, lodged another application to be released. The trial court then decided to postpone its examination of the latter application until the circumstances essential for its determination had been established. 58 .     At the hearing of 3 June 2008 the applicant again lodged an application for release and submitted that his continued detention was causing him physical suffering and therefore contained punitive elements which amounted to torture. In this respect, the applicant referred to the expert commission report of 7 April 2008 (see paragraph 23 above) which indicated that he was in need of long-term inpatient treatment in a specialised clinic under strict bed rest, and additional care. The trial court decided not to examine the applications. 59 .     In response to judge M.’s enquiry, by letter of 13 June 2008 the Head of the Central Prison Hospital informed him that the applicant, diagnosed with relapsed tuberculous spondylitis, had been kept in the tuberculosis department of the institution, where he was receiving appropriate treatment, and that no additional care could be provided to him in the prison institution. 60 .     At the hearing of 16 June 2008 judge M. decided to modify the applicant’s measure of restraint from detention to an obligation not to leave the country on the grounds that there were no adequate facilities to ensure the applicant’s treatment while in detention. In particular, the trial court referred to the applicant’s serious illness and the need for additional care which, as confirmed in the letter of 13 June 2008, could not be ensured at Central Prison Hospital. 61.     The applicant was released on 16 June 2008. The conditions of the applicant’s transport and his participation in the court hearings 62 .     While in detention, the applicant was transported to the trial court in a standard-issue police car where detainees would sit in a closed cell measuring 1 sq. m., on a wooden bench. 63 .     After being released from detention on 16 June 2008, and up until 9   September 2008, the applicant appeared at all the court hearings. During that period he was receiving regular treatment in hospital and at home and doctors advised him to stay in bed. In order to attend the court hearings the applicant had to walk with crutches. 64 .     On 9 September 2008 the applicant’s health deteriorated and he was admitted to hospital. 65 .     On 22 September 2008 the Yerevan Criminal Court decided, upon an application lodged by the applicant’s lawyers, to suspend the applicant’s trial on the grounds that he had been admitted to hospital and was in need of long-term treatment. In this respect, the trial court referred to the findings of the report of the expert commission dated 7 April 2008 (see paragraph 23 above) as well as a letter from the hospital certifying the admission of the applicant who was in need of long-term bed rest care under medical supervision, and his inability to move actively, including to attend the hearings. 66 .     On 2 October 2008 the Yerevan Criminal Court decided to resume the trial on the grounds that on 1 October 2008 it had received a letter from the hospital informing it that on 30 September 2008 the applicant had been discharged from hospital with some improvement. 67 .     Thereafter the trial court regularly scheduled court hearings. The applicant did not attend these hearings. According to him, doing so would have caused his condition to deteriorate. On 9 October 2008 he was forced to attend a court hearing, because in the case of his non-appearance, the trial court would have decided to detain him on remand again. However, just as he reached the court house his pain worsened and he could be taken home only after an ambulance had been called and he had been given an injection to relieve his pain. 68.     Following his discharge from hospital, the applicant received outpatient medical treatment at one of the polyclinics in Yerevan whose doctors visited him regularly. 69 .     On 20 October 2008 the Yerevan Criminal Court sent an enquiry to the administration of the above polyclinic seeking to establish the applicant’s state of health with a view to his further participation in court hearings. On 28 October 2008 the chief of the polyclinic, in reply to the above enquiry, stated that the applicant was considered as second-degree disabled and was under medical supervision by the polyclinic’s doctors. A medical panel held on 27 October 2008 had found that the applicant was suffering from Bekhterev’s disease, namely ankylosing spondylitis, at a progressive stage accompanied with vertebral nerve-root pain syndrome. In addition, the applicant was suffering from tuberculosis of the 8 th and 9 th thoracic vertebrae and the lower part of the left lung, accompanied with breathing deficiency and secondary myocardiodystrophy. Bed rest was prescribed and appropriate treatment was assigned. It was also stated that the issue of the applicant’s further attendance and participation in court hearings fell outside the competence of the polyclinic. 70.     In the period from October until December 2008 the applicant’s lawyers submitted several applications seeking to suspend the trial due to the applicant’s state of health, all of which were dismissed by the trial court. 71 .     On 1 December 2008 the trial court took a decision to compel the applicant to appear on the grounds that he had failed to attend the hearings of 20 and 30 October, 14 November and that of the same date. Starting from that date, before the beginning of each court hearing, the police appeared at the applicant’s home in order to take him to court. However, a nurse from the polyclinic who was taking care of the applicant at his home refused to allow the applicant to be taken to the trial because of his state of health. 72 .     On 11 February 2009 the applicant’s lawyers submitted to the Yerevan Criminal Court a letter from a clinic in Germany according to which the applicant could be treated in that clinic once corresponding medical examinations had been carried out. Based on that letter, the lawyers requested the court to cancel the applicant’s measure of restraint, namely the obligation not to leave (see paragraph 60 above), and to permit him to travel to Germany for the relevant examinations to be carried out. 73.     The trial court refused to examine the request on the grounds that it could not do so in the applicant’s absence. 74 .     On 27   February 2009, before a court hearing assigned on that day, police officers visited the applicant’s home and compelled him to attend the trial court. Because the police officers had not ensured his transfer in a special vehicle designed for patients, he was transferred in an armchair provided by his relatives. However, the court hearing did not take place on that date because of the prosecutor’s failure to appear and the applicant had to return home. 75.     On 1 March 2009 the applicant’s case, following amendments to the Code of Criminal Procedure, was sent to the District Court (M. continuing as presiding judge) for further examination. 76 .     On 17 March 2009 the applicant’s lawyers requested that the obligation not to leave be lifted, so that he could receive treatment abroad. In the case that the trial court insisted on examining such application in the applicant’s presence, the lawyers requested adjournment of the hearing, submitting that the applicant was ready to endure severe pain and to appear before the court so that the question of his treatment could finally be solved. The trial court, without examining the first two requests, adjourned the hearing until the applicant was transferred to the court. On the same day his relatives took him, with much difficulty, to the court. However, as the trial started, the court refused to examine the application and proceeded to hear the prosecutor’s final pleadings. The lawyers then lodged an application seeking the trial court’s authorisation for the applicant’s departure abroad, without cancelling his measure of restraint, for the purpose of his undergoing medical examinations there. However, the trial court refused to examine that application too. 77.     On 27 March 2009 the applicant’s lawyers, because of his serious health problems and spinal pain, were forced to make the final pleadings. Moreover, in order to take less time, the lawyers decided not to make the final pleadings orally but to submit them in writing. Together with the pleadings, his lawyers requested cancellation of the measure of restraint so that the applicant could go abroad for treatment. Because of the pains in his back the applicant renounced his right to make a final speech before the conclusion of the trial. 78.     In its judgment of 31 March 2009 (see paragraph 87 below) the District Court ordered the applicant’s measure of restraint, namely his obligation not to leave, to remain unchanged until his conviction became final. 79.     In his appeal against his conviction the applicant requested the Court of Appeal to cancel his measure of restraint so that he could go abroad for treatment. 80 .     On 11 May 2009 the Court of Appeal decided to admit the applicant’s appeal and to set the case down for examination. By the same decision, the Court of Appeal cancelled the applicant’s measure of restraint on the grounds that it prevented him from receiving medical treatment. In doing so, the Court of Appeal referred to the conclusions of the report of 7   April 2008 and the letter of the clinic in Germany proposing treatment (see paragraphs 23 and 72 above). The examination of evidence and the applicant’s conviction 81 .     During the trial before the District Court, a number of police officers who had participated in the police operation were questioned as witnesses while R.M. testified as a victim party. 82 .     In particular, R.M. stated that during the police operation the applicant had disobeyed his order to get out of the car and remained in the driver’s seat. After being taken by force from the car, the applicant had hit him in the face, and pulled and torn the pocket of his uniform jacket which he wore over his black clothes. During the fight he noticed that the applicant had moved his right arm under his jacket, towards an object resembling a pistol handle. Taking that movement for the applicant’s attempt to take out his pistol he, together with police officers A.A. and T.K., had forced the applicant to the ground and twisted his arms backwards. Almost at the same time, he had accidentally fired two shots from his service gun, injuring the applicant as well as police officers T.K. and G.M. Having neutralised the applicant, he found a pistol on him, which he then handed to his colleague, and took the applicant to the PDFOC. 83.     A number of police officers including A.A., T.K., A.M. and G.M. also appeared before the trial court and gave testimony similar to that of R.M. 84 .     K.H., L.P., A.S. and S.H., who were in the second car accompanying the applicant when the police operation was conducted, also testified before the trial court. None of them stated that they had seen the applicant hitting a police officer. A.S. stated that he had witnessed a police officer hitting the applicant on the head with a gun butt, pulling him out of the car and throwing him to the ground. The others stated that they had seen the applicant either being forced to lie, or already lying, on the ground. 85.     Upon the applicant’s request, G.J. was also summoned to the court and questioned. He testified, inter alia , that in reality not only two but a number of shots had been fired during the incident. 86 .     The trial court also examined the results of R.M.’s forensic medical examination certifying his bodily injuries, namely a bruise and scratches on his face which had not caused minor damage to his health. It also examined the results of the forensic examination of R.M.’s uniform jacket certifying damage to the pocket caused by pulling the fabric. 87 .     On 31 March 2009 the District Court delivered its judgment finding the applicant guilty under Article 316 § 1 of the CC of using violence, not dangerous for life and limb, against police officer R.M., and sentencing him to a suspended term of three years’ imprisonment. In particular, the District Court found that it had not been substantiated that the applicant had used violence dangerous for life and limb against a public official as argued by the prosecution. In convicting the applicant, the District Court found it established that on 23 February 2008, following receipt of operative information about armed persons travelling from Ejmiatsin to Yerevan, an operation was carried out by police officers of the special task force of the PDFOC at 11 p.m. on the same day. During the operation the victim party, police officer R.M., jumped out of the police van and shouted “Police. Don’t move!”. The applicant disobeyed the lawful orders to get out of the car and to hand over his gun, hit police officer R.M. in the face once, pulled the latter’s jacket and tore it. By applying physical force, R.M. and police officers A.A. and T.K. managed to neutralise the applicant, who was found to have a pistol under his jacket. During a fight that took place when neutralising the applicant, two shots were fired from R.M.’s service gun inflicting injuries on the applicant and police officers T.K. and G.M. 88.     On 29 April 2009 the applicant lodged an appeal arguing, inter alia , that the District Court had failed to properly address the evidence, ignored his submissions, dismissed his applications and based its findings solely on the testimony of police officers. 89.     On 15 July 2009 the Court of Appeal upheld the District Court’s judgment in full and dismissed the applicant’s appeal. 90.     On 14 August 2009 the applicant lodged an appeal on points of law. 91.     On 10 September 2009 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. The investigation into the police operation of 23 February 2008 92 .     On 13 August 2008 investigator H. made a decision to institute criminal proceedings under Article 309 § 1 (exceeding authority) of the Criminal Code (case no. 62215508) on account of the police officers having allegedly kept L.P. and K.H. in police custody unlawfully following the police operation of 23 February 2008. Considering that a number of important circumstances had to be clarified for the purposes of the legal qualification of the actions of the police officers during the operation of 23   February 2008, it was necessary to continue the investigation in so far as the use of firearms by the police officer was concerned. It was therefore decided to continue the investigation of the latter episode within the framework of case no. 62215508. 93 .     On 30 June 2009 investigator H. decided to terminate the criminal proceedings in relation to case no. 62215508 and not to prosecute the police officers involved in the police operation. The relevant parts of the decision in so far as the police operation was concerned read as follows: “As regards the ballistic injuries which [the applicant], [T.K.] and [G.M.] received as a result of shots fired from [R.M.’s] service gun, as well as the corporal injuries sustained by [the applicant] during the [police operation] ..., the following has been established: ... [the applicant], having disobeyed ... R.M.’s order [not to move], had driven the car forward in their direction and had been obliged to stop only after having collided with the police ... car. Thereafter, continuing his unlawful activity and disobeying the lawful orders of the police officers to step out of the car and surrender his gun, [the applicant] had sworn and threatened the police officers with retaliation, pulled and damaged [R.M.’s] uniform, punched the latter in the face inflicting injuries which did not qualify as minor damage to health. By use of physical force [R.M.], [A.A] and [T.K.] had neutralised [the applicant] preventing his attempt to pull out the gun kept at his waist under the jacket ... During the scuffle and struggle when neutralising [the applicant] two accidental shots were fired from ... [R.M.’s] service gun which ... injured [the applicant] ..., [T.K.] ... and [G.M.] ...   [R.M.] had stated in relation to those events that ... there was no necessity to use firearms when neutralising [the applicant]. The shots had been fired accidentally. The safety lever had opened chambering a round ... During the entire time the gun had been in his right hand with the barrel directed down and, when they managed to kneel [the applicant] down and tried to tie his hands behind his back, a shot was fired from his gun. At the same moment, parallel to the shot, [the applicant] fell down while he himself, not being able to keep his balance, also fell and then the second shot was fired. At that point he had the gun in his right hand which was pointed at the direction of [the applicant’s car] while he and [the applicant] were almost on the ground. ... [R.M.] had also stated that ... before getting out of the [police van] ... he had pulled out his gun and switched the safety catch on ... that is when neutralising [the applicant] ... the weapons were unholstered ... There was no necessity to use firearms when neutralising [the applicant] ... The safety catch had gone off ... [that] could have happened because of rubbing against the body or clothes ... In relation to [the applicant’s] non-ballistic injuries, [R.M.] had stated that ... during the scuffle because of [the applicant] showing resistance ... [the applicant] had fallen with his face on the ground while he himself had fallen on [the applicant] and probably [the applicant] had sustained his corporal injuries because of the force used to neutralise