Badalyan v. Armenia (Application no. 28215/11)
A selection of key paragraphs can be found below the judgement.
72. As regards the Government’s claim that the applicant has failed to exhaust domestic remedies by not lodging an appeal on points of law against the decision of the Criminal Court of Appeal of 30 May 2007 (see paragraph 53 above), the Court reiterates that it is incumbent on the Government pleading non-exhaustion to satisfy it that the remedy referred to was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see, among other authorities, Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 205, 22 December 2020).
73. The Court notes at the outset that the above-mentioned decision of the Criminal Court of Appeal, which the applicant did not contest, entered into force from the moment of its delivery (see paragraph 27 above). While the Court of Cassation – pursuant to the rules of criminal procedure in force at the material time – had the authority to review decisions of all the lower courts which had entered into force (see paragraph 47 above), it was not explicitly indicated in the decision itself that it was amenable to appeal (see paragraph 27 above). Furthermore, an appeal on points of law could be lodged within six months and was, moreover, accessible only to the accused, the victim and the civil plaintiff or defendant (see paragraph 47 above). Given those peculiarities of cassation proceedings at the material time, a question arises as to whether, in general, an appeal on points of law was an effective remedy to be used for exhaustion purposes or, if so, whether, in the applicant’s particular case, it was an accessible remedy given his lack of any procedural status at that stage of the proceedings. The Government failed to provide any explanations in that respect. The Court therefore lacks sufficient grounds to accept the Government’s non-exhaustion claim, especially taking into account the fact that the proceedings in question concerned the applicant’s request to be recognised as a victim, a procedural step which the investigating authority was required to take – both under domestic law and under the procedural obligation of Article 3 – of its own motion without leaving it to the applicant’s own initiative (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 111, ECHR 2005-VII).
74. The Court therefore dismisses both of the Government’s preliminary objections.
75. The foregoing considerations are sufficient to enable the Court to conclude that the authorities have failed to carry out an effective investigation into the applicant’s allegations of ill-treatment. In such circumstances, it does not consider it necessary to also address the applicant’s arguments regarding the alleged lack of adequacy and thoroughness of the specific investigative measures taken during the investigation.
76. There has accordingly been a violation of the procedural limb of Article 3 of the Convention.