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

• Opinion Number: P16-2021-001
• Respondent State: Armenia

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)

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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:

1. 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).

2. 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?”

3. 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 the case of Virabyan v. Armenia (no. 40094/05, §§ 165-179, 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...