CEDH · CASELAW;ADVISORYOPINIONS;PROTOCOL16;OPINIONS;ENG — 26 avril 2022

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text-align:justify; font-size:10pt } .sB853CD25 { font-family:Arial; font-size:9pt } .sD6DE1560 { font-family:Arial; font-size:9pt; font-style:italic } .sB217F55E { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:9pt } .sBACB86A2 { font-family:Arial; font-size:6pt; vertical-align:super; color:#0069d6 } .s391E78BA { font-family:Arial; background-color:#ffffff }   GRAND CHAMBER ADVISORY OPINION on the applicability of statutes of limitation to prosecution, conviction and punishment in respect of an offence constituting, in substance, an act of torture   Requested by the Armenian Court of Cassation (Request no. P16-2021-001)     STRASBOURG 26 April 2022         This opinion is final. It may be subject to editorial revision.   The European Court of Human Rights, sitting as a Grand Chamber composed of:   Robert Spano, President ,   Jon Fridrik Kjølbro,   Síofra O’Leary,   Yonko Grozev,   Georges Ravarani,   Marko Bošnjak,   Egidijus Kūris,   Branko Lubarda,   Armen Harutyunyan,   Alena Poláčková,   Pauliine Koskelo,   Jolien Schukking   Maria Elósegui,   Lorraine Schembri Orland,   Mattias Guyomar,   Ioannis Ktistakis,   Andreas Zünd, judges , and Søren Prebensen, Deputy Grand Chamber Registrar , Having deliberated in private on 13 January and 16 March 2022, Delivers the following opinion, which was adopted on the last-mentioned date: PROCEDURE 1.     In a letter of 1 February 2021 sent to the Registrar of the European Court of Human Rights (“the Court”), the Armenian Court of Cassation requested the Court, under Article 1 of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“Protocol No.   16”), to give an advisory opinion on the question set out in paragraph   10 below. 2.     On 11 March 2021 the Court of Cassation provided further materials and explanations as requested by the Court. The advisory opinion request was therefore considered by the Court to have been formally lodged on the latter date. 3.     On 10 May 2021 the panel of five judges of the Grand Chamber of the Court, composed in accordance with Article 2 § 3 of Protocol No. 16 and Rule   93 § 1 of the Rules of Court, decided to accept the request. 4.     The composition of the Grand Chamber was determined on 12 May 2021 in accordance with Rules 24 § 2 (h) and 94 § 1. 5 .     By letters of 12 May 2021 the Registrar informed the parties to the domestic proceedings that the President was inviting them to submit to the Court written observations on the request for an advisory opinion, by 2 July 2021 (Article 3 of Protocol No. 16 and Rule 94 § 3). Within that time-limit, written observations were submitted by the Armenian General Prosecutor’s Office and by Mr   H.M. and Mr   A.A. 6.     The Armenian Government (“the Government”) submitted written observations under Article 3 of Protocol No. 16. The Commissioner for Human Rights of the Council of Europe did not avail herself of that right. 7 .     Written observations were also received from a group of non-governmental organisations (REDRESS, Association for the Prevention of Torture, International Federation of ACATs (Action by Christians for the Abolition of Torture), International Rehabilitation Council for Torture Victims and Organisation Mondiale Contre la Torture) which had been granted leave by the President to intervene (Article 3 of Protocol No. 16). 8.     Copies of the observations received were transmitted to the Court of Cassation, which did not submit any observations (Rule 94 § 5). 9.     After the close of the written procedure, the President of the Grand Chamber decided that no oral hearing should be held (Rule 94 § 6). THE QUESTION ASKED 10 .     The question asked in the request for an advisory opinion was worded as follows: “Would non-application of statutes of limitation for criminal responsibility for torture or any other crimes equated thereto by invoking the international law sources be compliant with Article 7 of the European Convention, if the domestic law provides for no requirement for non-application of statutes of limitation for criminal responsibility?” The background and the domestic proceedings giving rise to the request for opinion 11.     On 2 October 2012 the Court found a violation of Article 3 (both substantive and procedural) in Virabyan v. Armenia (no. 40094/05, §§   165 ‑ 79, 2 October 2012). It held that Mr Virabyan had been subjected to torture while in police custody in April 2004 and that the authorities had failed to conduct an effective investigation into his allegations of ill-treatment. No prosecution had been launched against the police officers and the only criminal case (no. 27203404) instituted at the material time, which had later been terminated, had been that against Mr Virabyan for assaulting one of the police officers – one of the alleged perpetrators of the torture. 12 .     Following the Court’s judgment on 21 August 2014, criminal case no.   27203404 was reopened. 13.     On 10 May 2016 the investigator, on the basis of the materials of that criminal case, instituted a new criminal case (no. 62212316) under Article   309 § 2 of the Criminal Code (“the CC”), which provides for a penalty for exceeding authority by a public official accompanied by the use of violence (see paragraph 42 below). He also decided to disjoin that case into a separate set of proceedings. 14 .     On 17 and 20 February 2017 two of the police officers implicated in the applicant’s ill-treatment, Mr   H.M. and Mr   A.A., were charged under the above-mentioned Article 309 § 2. 15 .     On 10 March 2017 the investigator dropped the charges against the police officers and terminated criminal case no. 62212316 on the grounds that the relevant limitation period (ten years) had expired, apparently relying on Article 75 § 1(3) of the CC and Article 35 § 1(6) of the Code of Criminal Procedure (“the CCP”) (see paragraphs 40 and 44 below). 16 .     On 15 December 2017 the prosecutor quashed that decision, finding that the investigator had failed to examine whether the termination of the proceedings was compatible with international law (the prosecutor referred, in particular, to Mocanu and Others v. Romania ([GC], nos.   10865/09 and 2   others, § 326, ECHR 2014). 17.     The criminal case was resumed and later brought to trial. 18 .     On 22 February 2019 the First Instance Court of General Jurisdiction of the Ararat and Vayots Dzor Regions delivered its judgment. The court examined the charges against the two police officers and concluded that they had committed an offence and were subject to criminal responsibility under Article 309 § 2 of the CC. In doing so, it held, at the outset, that the criminal case against the officers could not be terminated and the prosecution could not be discontinued on the basis of Article 35 § 1(6) of the CCP (see paragraph 44 below) because the officers “had not accepted their guilt”. The court considered further, however, with reference to Article 75 of the CC and Article 35 of the CCP (see paragraphs 40-41 and 44-48 below) and to the fact that the criminal case against the officers had been terminated because of the expiry of the relevant limitation period (see paragraph 15 above), that the resumption of the criminal case and the officers’ indictment with reference to the Mocanu and   Others case were unacceptable because the prosecution had failed to explain why the position expressed in that case should prevail over the requirements of Article 75 of the CC and Article 35 § 1(6) of the CCP. 19.     It noted that the United Nations Convention Against Torture (UNCAT) contained no provisions prohibiting the application of limitation periods, such that the United Nations Committee Against Torture (CAT) had raised this issue only on an advisory basis, recommending that the Armenian authorities introduce legislative changes abolishing the limitation periods in cases of torture. However, while both the CAT and the Armenian authorities had accepted the need for legislative changes, the only change introduced was a new Article 309.1 in the CC establishing the offence of torture (see paragraph   43 below), whereas no changes had been made to either Article   75 of the CC or Article 35 of the CCP, despite the fact that Article 75 of the CC set out an exhaustive list of offences in respect of which limitation periods were not applicable or were only applicable with restrictions. That meant that there were no legal restrictions on applying limitation periods to offences not listed in Article 75 of the CC, including to persons who had committed acts of torture. 20.     As regards the Convention, the court held that it contained no explicit restrictions on the application of limitation periods in cases of torture and other forms of ill-treatment, whereas the judgments of the Court were not incorporated into domestic law and, in any event, Armenia had not been a party to the case of Mocanu and Others (cited above). The court concluded, with reference to Article 5 § 3 of the Constitution (see paragraph 34 below), that, in such circumstances, there was no conflict between Article 75 of the CC and the provisions of the Convention. The court further held that by applying the above-mentioned judgment of the Court, which had not been given until 2014, the prosecutor had failed to take into account the prohibition on retroactivity of unfavourable criminal laws and other legal acts enshrined both in Article 13 § 2 of the CC (see paragraph 38 below) and the Convention and had thereby breached the accused’s rights as guaranteed by those instruments. 21 .     In the light of the foregoing, the trial court concluded that the limitation period in Article 75 §   1(3) of the CC was applicable in the accused persons’ case and that they were to be exempted from criminal responsibility under Article 309 § 2 of the CC. In conclusion, it found both accused guilty under Article 309 § 2 of the CC but exempted them from criminal responsibility by applying the limitation period set out in Article 75 § 1(3) of the CC. 22 .     On 28 March 2019 the prosecutor lodged an appeal, arguing that the application of the limitation period and the exemption of the accused from criminal responsibility had violated the requirements of the Convention, which prohibited the application of limitation periods in cases of torture. The prosecutor referred in that connection to the exception set out in the second sentence of Article 75 § 6 of the CC (see paragraph 41 below) and submitted that, while the UNCAT and the Convention did not explicitly prohibit the application of limitation periods in cases of torture, both the CAT in its General Comment No. 3 (§§ 38 and 40) and the Court in its judgments in Okkali v. Turkey (no. 52067/99, § 76, ECHR 2006-XII) and Mocanu and Others (cited above) imposed such an obligation. The judgments of the Court were an integral part of the Convention and were directly applicable. Furthermore, the prohibition of torture and other forms of ill-treatment was a jus cogens norm, and exemption from criminal responsibility in cases of such acts through the application of limitation periods resulted in a breach of a State’s international obligations. The prosecutor requested that Article 75 §   1(3) of the CC should not be applied and that an appropriate punishment be imposed on the accused. 23.     On 4 April 2019 the accused also lodged an appeal, arguing that the judgment had been unsubstantiated and unreasoned and that they were innocent. 24 .     On 4 July 2019 the Criminal Court of Appeal dismissed both appeals and upheld the judgment of the First Instance Court. It held that the requirements of domestic law did not allow the courts in this particular case to apply directly the case-law of the Court regarding the prohibition of the application of limitation periods. The findings of the First Instance Court that the accused were to be exempted from criminal responsibility in accordance with Article 75 § 1(3) of the CC (see paragraph 40 below) had been lawful and reasoned, taking into account the need to uphold the principles of lawfulness and equality of all before the law, the requirement that questions of a person’s guilt and punishment be determined only by the rules of criminal law and the unacceptability of applying criminal law by analogy. If, in breach of those requirements, the limitation period were not applied, this would lead to a violation of the accused’s rights and would be liable to produce legal uncertainty and be characterised as arbitrariness. 25 .     On 30 August 2019 the prosecutor lodged an appeal on points of law, repeating the arguments raised in his appeal (see paragraph 22 above). He further argued that the exception set out in the second sentence of Article   75 §   6 of the CC was applicable and had been breached in this case, because the application of limitation periods in respect of acts of torture was prohibited under Article 3 of the Convention. As one of the grounds for admissibility of the appeal, the prosecutor referred to Article 414.2 § 1(1) of the CCP (see paragraph 49 below), arguing that there was a need for development of the law with regard to the prohibition of the application of limitation periods enshrined in Article 75 § 6 of the CC. In particular, it was necessary to determine whether there was an absolute prohibition on the application of limitation periods in cases of torture and other forms of ill-treatment, in the light of the Court’s case-law and the UNCAT. 26 .     On 25 November 2019 the Court of Cassation admitted the prosecutor’s appeal on points of law for examination, finding that the appeal complied, inter alia , with the requirements of Article 414.2 § 1(1) of the CCP. 27.     It appears that the accused also lodged an appeal on points of law, which was declared inadmissible by the Court of Cassation for lack of merit. 28 .     On 27 January 2021 the Court of Cassation held a hearing on the prosecutor’s appeal, with both parties appearing and making submissions in support of their positions. The prosecutor was asked by the court, inter alia , whether the non-application of the limitation period as required by the CC would result in a breach of any of the defendants’ Convention rights, including Article 7, which allowed punishment only on the basis of the law. According to the prosecutor, there was no such risk because international law prohibited the application of limitation periods and Article 7 would not be violated because account was to be taken of international norms having higher legal force. He was further asked to comment, inter alia , on the exception set out in the second sentence of Article 75 § 6 of the CC, including, among other things, whether he knew of any international treaties prohibiting the application of limitation periods, in reply to which the prosecutor referred to the case-law of the Court, as well as the UNCAT. The accused submitted that the courts had correctly exempted them from criminal responsibility by applying the limitation period provided for by law. 29 .     On the same date the Court of Cassation decided to submit a request to the Court for an advisory opinion. That court found at the outset, with reference to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the UNCAT, the findings of the International Criminal Tribunal for the former Yugoslavia (“the ICTY”) in Prosecutor v. Furundžija (IT ‑ 95-17/1-T, 10 December 1998, §§ 144-54) and the Court’s case-law under Article 3 of the Convention, that the prohibition of torture was absolute and therefore constituted jus cogens . The States were under an obligation to ensure an effective investigation into, and the punishment of, such acts, and the identification and accountability of perpetrators of such acts had become a universal trend. 30.     As regards the application of limitation periods in such criminal cases, the Court of Cassation first reiterated the contents of Article 7 of the Convention, Article 35 § 1(6) of the CCP, and Article 75 § 6, Article 309 §   2 and Article 309.1 of the CC (see paragraphs 41 ‑ 44 below). It noted that in its above-mentioned judgment the ICTY had stated that one of the consequences of the jus cogens character given by the international community to the prohibition of torture was that torture could not be covered by a statute of limitation. In a number of judgments (in particular, Yeter v. Turkey , no.   33750/03, § 70, 13   January 2009, and Mocanu and Others , cited above, §   326) the Court had held that criminal proceedings concerning cases of ill-treatment or torture by agents of the State must not be terminated by statute of limitation and that CAT had stressed in that regard that statutes of limitation must not be applicable to acts of torture. The Court of Cassation further observed that, in addition to the above, the Court had stressed that the manner of non-application of limitation periods should also comply with the requirements of Article 7 of the Convention (in this connection, the Court of Cassation again referred to Mocanu and Others , cited above, § 326). Furthermore, the Venice Commission had stated that the principle of legal certainty might be invoked in order to prevent the restoration of an expired limitation period. It was also worth mentioning that in a case concerning war crimes, which were similarly considered a jus   cogens norm, the Court had concluded that no limitation periods were applicable to the acts committed by the applicant (see Kononov v.   Latvia [GC], no. 36376/04, §§ 229-33, ECHR 2010). 31.     The Court of Cassation, moreover, noted that the Committee of Ministers, in the course of execution of the Virabyan judgment, had highlighted the importance of non-application of limitation periods in cases of torture as a general measure. However, no relevant laws had been passed in Armenia to date. In such circumstances, the rule set out in Article 75 § 6 of the CC (see paragraph 41 below), which prohibited the application of limitation periods in respect of certain offences against peace and humanity, was still applicable. At the same time, the legislature had also specified that no limitation periods were applicable to persons who had committed offences envisaged by international treaties to which Armenia was a party, if such treaties prohibited the application of limitation periods. 32 .     In the light of the above, the Court of Cassation concluded that, in order to rule on the prosecutor’s appeal, there was need to submit a request for an advisory opinion to the Court, taking into account, on the one hand, the legal standards developed by the Court and other international bodies regarding the jus cogens nature of the prohibition of torture, and, on the other hand, the importance of complying with the requirements of Article 7 of the Convention. It thus decided to request the Court to address the question quoted at paragraph 10 above. RELEVANT domestic law and practice 33.     The relevant provisions of the Armenian Constitution, Criminal Code and Code of Criminal Procedure, as well as the relevant case-law of the Court of Cassation, read as follows. the constitution AS AMENDED IN 2015 34 .     Article 5 § 3 of the Constitution provides that, in the event of a conflict between international treaties ratified by Armenia and Armenian laws, the provisions of the international treaties are to apply. 35 .     Article 72 provides that no one is to be held guilty for any act or omission which did not constitute a criminal offence at the time it was committed. Nor is a heavier penalty to be imposed than the one that was applicable at the time the criminal offence was committed. 36.     Article 73 § 1 provides that laws and other legal instruments worsening a person’s legal situation have no retroactive effect. the 2003 criminal code 37.     Article 12 § 1 of the CC provides that the criminality and punishability of an act are to be determined in accordance with the criminal law in force at the time it was committed. 38 .     Article 13 § 2 provides that a law defining the scope of the offence, increasing the severity of the penalty or worsening the offender’s situation in any other way has no retroactive effect. 39 .     Article 19 § 4 provides that intentional acts for which the maximum penalty provided by the CC does not exceed ten years’ imprisonment are considered “grave offences”. Article 19 § 5 provides that intentional acts for which the maximum penalty provided by the CC exceeds ten years’ imprisonment or is life imprisonment are considered “particularly grave offences”. 40 .     Article 75 § 1(3) provides that a person is exempted from criminal responsibility if ten years have passed from the moment of commission of a “grave offence”. Article 75 § 1(4) provides that a person is exempted from criminal responsibility if fifteen years have passed from the moment of commission of a “particularly grave offence”. 41 .     Article 75 § 6 provides that no limitation periods apply to persons who have committed offences against peace and humanity envisaged by Articles   384, 386-91 and 393-97 of the CC. Nor do any limitation periods apply to persons who have committed offences envisaged by international treaties to which Armenia is a party if such treaties prohibit the application of limitation periods. 42 .     Article 309 § 2 provides that intentional acts committed by a public official which obviously fell outside the scope of his or her authority and caused significant damage to the rights and lawful interests of individuals or legal entities, or the lawful interests of society or the State, if accompanied by the use of violence, arms or special means, are punishable by two to six   years’ imprisonment, with forfeiture of the right to hold certain posts or carry out certain activities for a period not exceeding three years. 43 .     On 9 June 2015, with effect from 18 July 2015, amendments were made to the CC, and a new provision, Article 309.1, was added, introducing “torture” as an offence punishable by four to eight years’ imprisonment, with forfeiture of the right to hold certain posts or carry out certain activities for a period not exceeding three years (Article 309.1 §   1). The same act, if committed together with a number of aggravating circumstances as listed in Article 309.1 § 2, was punishable by seven to twelve years’ imprisonment, with forfeiture of the right to hold certain posts or carry out certain activities for a period of three years. the 1999 code of criminal procedure 44 .     Article 35 § 1(6) of the CCP provides that if the relevant limitation period has expired, no criminal case may be instituted and no criminal prosecution may be carried out, whereas a criminal case that has already been instituted must be terminated. 45.     Article 35 § 3 provides that the investigator and the prosecutor must decide to terminate the proceedings or to discontinue the prosecution if they discover, at any stage of the pre-trial proceedings, circumstances precluding the continuation of the criminal case. The prosecutor may also discontinue the case after it has been brought before a court, but before the commencement of the court hearings. 46.     Article 35 § 4 provides that the prosecutor is obliged to declare the discontinuation of the prosecution if, during the court proceedings, he or she discovers circumstances precluding the prosecution. Such declaration will serve as grounds for the court to terminate the proceedings and to discontinue the prosecution. 47.     Article 35 § 5 provides that the court must determine the issue of discontinuing the prosecution if it discovers circumstances precluding the prosecution. 48 .     Article 35 § 6 provides that it is not permissible to terminate the criminal case and discontinue the prosecution on the basis of, inter alia , Article 35 § 1(6) if the accused objects. In such cases, criminal proceedings will continue under ordinary procedure. 49 .     Article 414.2 § 1(1) provides that an appeal on points of law is admissible for examination if the Court of Cassation considers that its decision on the issues raised in the appeal may be important for the uniform application of the law. the 2021 criminal code 50.     On 5 May 2021 Armenia adopted a new Criminal Code, which will enter into force on 1 July 2022. Under the new Code, no limitation periods are applicable to the offence of torture and the offence of abusing or exceeding authority by a public official accompanied by use of violence. case-law of the court of cassation 51.     In decision no. KD3/0038/01/17 of 10 January 2020, which concerned a criminal case in which the applicable limitation period had expired, the Court of Cassation held as follows: “17.     From the analysis of [Article 35 of the CCP] it can be seen that it lists the circumstances established under the law which exclude the possibility for both criminal prosecution and the conduct of a criminal case. If any of the circumstances listed is found to exist, the criminal case must be terminated and the criminal prosecution discontinued. ... 20.     ... the Court of Cassation reiterates that the legislature regards the expiry of a limitation period as a circumstance precluding the conduct of a criminal case and the criminal prosecution ... At the same time, the criminal procedure law sets out the consent of the accused as a precondition for the termination of a case on the grounds of expiry of the limitation period, in the absence of which the proceedings must continue in accordance with the general procedure. In particular, in cases where a person objects to the refusal to institute a criminal case, the discontinuation of the criminal prosecution or the termination of the case on the grounds of expiry of the limitation period, he must be afforded the opportunity to contest the charge against him at a trial. In cases where the relevant limitation period for imposition of criminal responsibility expires at the trial stage, the obligation to apply the procedure for termination of criminal responsibility in respect of the accused on that ground lies with the court. Furthermore, the trial stage must be understood as consisting of the proceedings both before the first instance court and before the courts of appeal and cassation. In particular, the court must clarify whether the accused consents to the discontinuation of the criminal prosecution against him on the grounds of expiry of the limitation period. If such consent is given, the court is obliged to discontinue his criminal prosecution; if no such consent is given, the court must continue the court proceedings in accordance with the general procedure, but it must discontinue the criminal prosecution when delivering judgment.” 52.     Since in the same case an amnesty was applied to the accused and he was exempted from punishment, the Court of Cassation addressed that question as well, and held that, where the courts faced a choice between applying an amnesty and applying a limitation period in accordance with Article   35 of the CCP, they were obliged to give preference to the latter because its legal consequences were more favourable for the person concerned. In particular, the application of an amnesty exempted the person only from punishment (in case of a guilty verdict), whereas the application of a limitation period exempted the person from criminal responsibility in general. THE COURT’S OPINION PRELIMINARY CONSIDERATIONS General principles relating to the scope of the Court’s examination 53.     The Court reiterates that, as stated in the Preamble to Protocol No.   16 to the Convention, the aim of the advisory opinion procedure is to further enhance the interaction between the Court and national authorities and thereby reinforce the implementation of the Convention, in accordance with the principle of subsidiarity, by allowing the designated national courts and tribunals to request the Court to give an opinion on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the Protocols thereto” (Article 1 § 1 of Protocol No. 16) arising “in the context of a case pending before [them]” (Article 1 § 2 of Protocol No.   16). The aim of the procedure is not to transfer the dispute to the Court, but rather to give the requesting court guidance on Convention issues when determining the case before it. The Court has no jurisdiction either to assess the facts of a case or to evaluate the merits of the parties’ views on the interpretation of domestic law in the light of Convention law, or to rule on the outcome of the proceedings. Its role is limited to furnishing an opinion in relation to the questions submitted to it. It is for the requesting court or tribunal to resolve the issues raised by the case and to draw, as appropriate, the conclusions which flow from the opinion delivered by the Court for the provisions of national law invoked in the case and for the outcome of the case (see Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother [GC], request no.   P16-2018-001, French Court of Cassation, §   25, 10   April 2019). 54.     The Court has inferred from Article 1 §§ 1 and 2 of Protocol No.   16 that the opinions it delivers under that Protocol “must be confined to points that are directly connected to the proceedings pending at domestic level”. Their value also lies in providing the national courts with guidance on questions of principle relating to the Convention applicable in similar cases (ibid., § 26). 55.     In formulating its opinion, the Court will take due account of the written observations and documents submitted by the participants in the proceedings. Nevertheless, the Court’s task is not to reply to all the grounds and arguments submitted to it or to set out in detail the basis for its reply; under Protocol No. 16, the Court’s role is not to rule in adversarial proceedings on contentious applications by means of a binding judgment but rather, within as short a time-frame as possible, to provide the requesting court or tribunal with guidance enabling it to ensure respect for Convention rights when determining the case before it (ibid., § 34). General observations regarding the context of the present request for an advisory opinion 56.     The Court notes at the outset that the pending case in the context of which the present request for an advisory opinion was made arose on account of acts that had occurred in April 2004 and in relation to which, by its judgment in Virabyan v. Armenia (no. 40094/05, 2 October 2012), the Court had unanimously found procedural and substantive violations of Article 3 of the Convention (ibid., §§   165-79). Subsequently, in the context of the Committee of Ministers’ supervision of the execution of the Court’s judgment under Article 46 § 2 of the Convention (not as yet closed), on 21 August 2014 the criminal case was reopened. On 10 May 2016 new criminal proceedings were instituted and on 17 and 20 February 2017 charges were brought against two of the police officers implicated in the applicant’s ill-treatment, Mr H.M. and Mr A.A., under Article 309 § 2 of the CC (see paragraphs   12 ‑ 14 above). Whilst the trial court found that the defendants had committed an offence under this provision, it held that they were exempted from criminal responsibility pursuant to the ten-year limitation period in Article 75 §   1(3) of the CC (see paragraph 21 above), which decision the Court of Appeal upheld (see paragraph 24 above). The ten-year period had expired in April 2014. A question for the Court of Cassation to determine on further appeal, and which prompted it to make the present advisory opinion request, is whether the proceedings fall to be considered under the aforementioned ten-year limitation period or whether they are to be seen as covered by the exception in Article 75 § 6 of the CC, whereby no limitation period can apply to certain types of offences (offences against peace and humanity or those envisaged in international treaties to which Armenia is a Party and which prohibit the application of limitation periods – see paragraph 25 above). 57.     The Court of Cassation thus asked the Court to clarify whether it would be compatible with the defendants’ rights under Article 7 of the Convention if the domestic courts were to refrain from applying the limitation period applicable in their case pursuant to the above-mentioned international rules (see paragraphs 29-32 above), including Article 3 of the Convention, relating to the prohibition of torture and other forms of ill-treatment and the requirement to punish such acts. The question as so framed implicitly recognises the hierarchy of laws in the Armenian domestic system as enunciated in Article 5 § 3 of the Armenian Constitution and Article 75 §   6 of the CC (see paragraphs 34 and 41 above). 58 .     Bearing in mind the Court of Cassation’s reliance on Article 3 of the Convention when framing the present request (see paragraph 29 above), the Court deems it useful, before turning to the question asked specifically with reference to Article 7 of the Convention, to reiterate its case-law relating to limitation periods under Article 3 in so far as relevant for the present opinion. 59.     The Court notes at the outset that it has accepted that the prohibition of torture has achieved the status of jus cogens or a peremptory norm in international law (see Al-Adsani v. the United Kingdom [GC], no.   35763/97, §§   60-61, ECHR 2001 ‑ XI). Furthermore, it may be recalled that in the judgment in the leading case of Mocanu and Others v. Romania ([GC], nos.   10865/09 and 2 others, § 326, ECHR 2014), also referred to by the Court of Cassation, the Court held as follows: “The Court has also held that in cases concerning torture or ill-treatment inflicted by State agents, criminal proceedings ought not to be discontinued on account of a limitation period, and also that amnesties and pardons should not be tolerated in such cases (see Abdülsamet Yaman v. Turkey , no. 32446/96, § 55, 2 November 2004; Yeter v. Turkey , no.   33750/03, § 70, 13   January 2009; and Association “21 December 1989” and Others [ v.   Romania , nos.   33810/07 and 18817/08], § 144[, 24 May 2011]). Furthermore, the manner in which the limitation period is applied must be compatible with the requirements of the Convention. It is therefore difficult to accept inflexible limitation periods admitting of no exceptions (see, mutatis mutandis , Röman v. Finland , no.   13072/05, § 50, 29 January 2013).” 60.     While finding on the facts that the relevant investigation had been terminated essentially on account of the statutory limitation of criminal liability, the Court held that the procedural obligations arising under (Article   2 and) Article 3 could hardly be considered to have been met where an investigation was terminated through statutory limitation of criminal liability resulting from the authorities’ inactivity (see Mocanu and Others , cited above, § 346). 61.     Thus, the Court has found a violation of the procedural guarantees of Article 3 in cases where the application of limitation periods was brought about by the failure of the authorities to act promptly and with due diligence (see, among other authorities, Batı and Others v. Turkey , nos. 33097/96 and   57834/00, §§   97 and 145-47, ECHR 2004 ‑ IV; Abdülsamet Yaman v.   Turkey , no. 32446/96, § 59, 2 November 2004; Yeşil and Sevim v. Turkey , no.   34738/04, §§   38-42, 5   June 2007; Erdoğan Yılmaz and Others v. Turkey , no. 19374/03, §   57, 14   October 2008; Erdal Aslan v. Turkey , nos. 25060/02 and   1705/03, §§   75 ‑ 79, 2 December 2008; Pădureţ v. Moldova , no. 33134/03, §   75, 5   January 2010; Karagöz and Others v. Turkey , nos. 14352/05 and   2   others, §§   53-55, 13 July 2010; Savin v. Ukraine , no. 34725/08, §§   70 ‑ 71, 16   February 2012; Uğur v. Turkey , no.   37308/05, §   105, 13 January 2015; and Barovov v. Russia , no. 9183/09, §   42, 15 June 2021). 62 .     It should further be recalled that the Court has found violations of Article 3 where prosecutions became time-barred owing to the inadequate characterisation by the domestic authorities of acts of torture or other forms of ill-treatment as less serious offences, leading to shorter limitation periods and allowing the perpetrator to escape criminal responsibility (see, among other authorities, Pădureţ , cited above, § 75; Velev v. Bulgaria , no. 43531/08, §   61, 16 April 2013; and O.R. and L.R. v. the Republic of Moldova , no.   24129/11, §§ 73-74, 30   October 2018). 63 .     Moreover, on several occasions the Court has found a failure to comply with Article 3 guarantees chiefly on account of the absence of appropriate provisions in the national law capable of adequately punishing acts amounting to torture (see Cestaro v. Italy , no. 6884/11, §§   218-26, 7   April 2015; Azzolina and Others v. Italy , nos.   28923/09 and 67599/10, §§   149-65, 26 October 2017; Cirino and Renne v. Italy , nos. 2539/13 and   4705/13, §§ 106-12, 26 October 2017; and Blair and Others v. Italy , nos.   1442/14 and 2 others, §§ 118-34, 26   October 2017). In that connection, the Court also noted that the offences in question had been subject to a statute of limitation, “a circumstance which in itself [sat] uneasily with its case-law concerning torture or other ill-treatment” (see Abdülsamet Yaman , cited above, § 55; Cestaro , cited above, § 208; Cirino and Renne , cited above §   110; and Blair and Others , cited above, § 118-34). 64.     The Court is mindful of the difficulties that may be encountered in the process of execution of its judgments in cases concerning torture and other forms of ill-treatment because of the existence of statutes of limitation in the domestic systems of the member States. However, it notes that a number of member States have taken various measures in order to resolve this problem and thereby to prevent impunity for State officials who have committed such acts. Thus, several member States, including Turkey, the Republic of Moldova, Romania and now Armenia itself, have amended their legislation by abrogating the statutes of limitation for acts of torture. In others, like Italy, to ensure that criminal proceedings do not become time-barred, the law was amended in 2020 to the effect that the limitation period is suspended after the first-instance judgment for the remaining duration of the criminal proceedings. 65.     The Court notes that in Virabyan (cited above), it found a violation of Article 3 on the grounds that the applicant had been subjected to torture and that the authorities had failed to carry out an effective investigation into his allegations of ill-treatment. However, in the Court’s opinion, it would be unacceptable for national authorities to compensate for the failure to discharge their positive obligations under Article 3 of the Convention at the expense of the guarantees of Article 7 of the Convention, one of which is that the criminal law must not be construed extensively to an accused’s detriment (see Myumyun v. Bulgaria , no. 67258/13, §   76, 3   November 2015, with regard to the latter requirement, with references to Başkaya and Okçuoğlu v.   Turkey [GC], nos. 23536/94 and 24408/94, §   36, ECHR 1999-IV; Kononov v.   Latvia [GC], no. 36376/04, §   185, ECHR 2010; and Del Río Prada v. Spain [GC], no. 42750/09, § 78, ECHR   2013). 66.     In particular, and for the purposes of the present Advisory Opinion, it should be noted that it does not follow from the current state of the Court’s case-law that a Contracting Party is required under the Convention not to apply an applicable limitation period and thereby effectively to revive an expired limitation period. The Court has recognised, in the context of the reopening of proceedings, that there may be situations where it is de jure or de facto impossible to reopen criminal investigations into the incidents giving rise to the applications being examined by the Court. Such situations may arise, for example, in cases in which the alleged perpetrators were acquitted and cannot be put on trial for the same offence, or in cases in which the criminal proceedings became time-barred on account of the statute of limitation set out in the national legislation. Indeed, the reopening of criminal proceedings that were terminated on account of the expiry of the statute of limitation may raise issues concerning legal certainty and may thus have a bearing on a defendant’s rights under Article   7 of the Convention (see Taşdemir v.   Turkey ((dec.), no.   52538/09, § 14, 12 March 2019). question concerning article 7 of the convention 67 .     Turning to the specific question which the Court of Cassation has requested it to answer, the Court finds it useful first to reiterate the general principles developed in its case-law as regards the requirements of legal certainty and foreseeability under Article 7 of the Convention. In Del Río Prada (cited above; see also Rohlena v. the Czech Republic [GC], no.   59552/08, §   50, ECHR 2015), it set out the following general principles (also reproduced in Advisory opinion concerning the use