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1. The author is Svetlana Khachatrian, an Armenian
citizen, born in 1958. She claims to be a victim of violations by Armenia
[FN1] of articles 2, paragraph 3; and 14, paragraphs 1, 3(a),(b) and (e) of
the International Covenant on Civil and Political Rights. She is represented
by counsel.
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[FN1] The Covenant and the Optional Protocol entered into force in relation
to Armenia on 23 September 1993
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FACTUAL BACKGROUND
2.1 Ms. Khachatrian lived with her daughter, her sister-in-law, Ms. Zakarian,
and Ms.Zakarian's son in an apartment in Yerevan. Her relationship with Ms.
Zakarian was strained, and on 7 April 2000, a domestic argument arose
between them. Following the argument, Ms. Khachatrian was standing on the
balcony with her daughter, when Ms. Zakarian approached them waving a knife,
shouting that she was going to kill Ms. Khachatrian. Fearing that she or her
daughter would be injured, Ms. Khachatrian reached for a glass jar and threw
it at Ms. Zakarian, hitting her in the face, and causing Ms. Zakarian to
drop her knife; Ms. Zakarian sustained injuries to her face and was
hospitalized. At the time of the attack, Ms. Zakarian's son was in a room
adjoining the balcony, but the curtains were drawn, and so he could not have
seen what occurred.
2.2 On 12 May 2000, a criminal investigation into the incident was opened,
which was described in the police order opening the investigation as an
incident in which Ms. Khachatrian had intentionally caused light bodily
injury, in apparent contravention of section 109 of the Armenian Criminal
Code. During the investigation, however, the author was questioned, but only
as a witness, not as an accused. Ms. Zakarian's son was also questioned; he
stated that he had seen what occurred, and that at the time of the incident
his mother did not have a knife. However, Ms. Khachatrian's daughter, who
was an eyewitness to the incident, and who could have corroborated her
mother's version of events, was not questioned. Ms. Khachatrian made
numerous oral requests to the investigator for the authorities to question
her daughter, however her requests were refused. On 26 May 2000, she filed a
complaint with the local Procurator about the biased investigation conducted
in the case; she did not receive a reasoned answer to her complaint. On 1
June 2000, she filed a complaint with the city Procurator, complaining that
Ms. Zakarian's son had been questioned about the incident but not her
daughter; this complaint was left unanswered as well.
2.3 On 27 July 2000, the investigator informed her, in the presence of her
lawyer who had only just been allowed to participate in the investigation,
that she would be charged with causing serious bodily injury. She was
presented with the police file and evidence against her, and learned that on
13 May, the prosecutor had issued an order recognizing Ms. Zakarian as the
victim of the incident and as a civil plaintiff. He had also familiarized
Ms. Zakarian with the criminal file against Ms. Khachatrian, including the
medical assessment of her injuries as 'light'. Subsequently, the
investigator had arranged for a further two examinations to be conducted, as
a result of which Ms. Zakarian successfully applied to have her injuries
reclassified as serious. Ms. Khachatrian was not advised of this until the
end of the pre-trial investigation. The investigator had concluded that
there was no evidence to charge Ms. Zakarian for attacking Ms. Khachatrian
with a knife, and returned to Ms. Zakarian a knife which had previously been
seized as evidence.
2.4 At Ms. Khachatrian's trial in the Arabkir and Kanaker-Zeitun Regional
Court, her lawyer asked to examine the daughter, noting that the
investigator had relied on the evidence provided by Ms. Zakarian's son in
deciding to press charges against Ms. Khachatrian instead of Ms. Zakarian.
He submitted that to deny his client the right to question her daughter in
court would violate article 14 of the Covenant, but the court rejected her
lawyer's request without giving a reason.
2.5 On 21 August 2000, Ms. Khachatrian was found guilty and sentenced to two
years imprisonment, deferred for a period of two years. She appealed her
conviction, complaining that she should have been allowed to question her
daughter, and also requesting that she be allowed to question her partner,
who at the time of the attack was waiting outside her building for a bus. On
29 September 2000, the Court of Appeal dismissed her appeal, stating that
sufficient evidence had been compiled to reach a final decision in the case.
Her appeal to the Court of Cassation was dismissed on 26 October 2000, on
the same grounds.
THE COMPLAINT
3.1 The author claims that the courts' failure to allow her to question her
daughter and partner about the events in question gave rise to violations of
article 14, paragraphs (1) and 3(e), as she did not receive a fair trial,
and was unable to examine two material witnesses in her defence, namely her
daughter and her partner.
3.2 She claims that her rights under article 14, paragraph 3(a), were
violated, as she was never formally charged with causing light bodily harm,
even though she was being investigated in this regard; she was not provided
with information about the basis of the charge. Only on 27 June 2000 was she
formally presented with the revised charge of causing serious bodily injury,
the same day on which the investigation formally was concluded.
3.3 The author claims that her rights under article 14, paragraph 3(b), were
violated, because, as a result of not having had the formal status of an
accused until the end of the investigation period, she was deprived of
certain rights in the preparation of her defence, in particular the right to
seek expert opinions. Further, she did not have any possibility to choose
her own lawyer, or to meet with such a person to prepare her defence.
3.4 Finally, the author claims that her right to a remedy under article 2,
paragraph 3, of the Covenant has been violated.
STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS AND AUTHOR'S COMMENTS
4.1 In its submission of 14 May 2002, the State party contended that the
communication is inadmissible and unsubstantiated. It states that on 12 May
2000, a criminal case was opened in relation to an incident in which the
author allegedly caused light bodily injury to Ms. Zakarian in apparent
contravention of the Armenian Criminal Code. On 5 and 14 June 2000, in
accordance with the Armenian Criminal Procedure Code, further medical
examinations of the alleged victim were carried out, which determined that
Ms. Zakarian had suffered permanent facial disfigurement. On 27 June 2000,
the terms of the investigation were altered to reflect the new medical
evidence (i.e. alleged causing of serious bodily injury).
4.2 On 17 May 2000, Ms. Khachatrian was questioned as a witness, as there
was not yet enough evidence to formally charge her and question her as an
accused. Through subsequent questioning of Ms. Zakarian, her son, and
several other persons, sufficient evidence was obtained to charge Ms.
Khachatrian. In the course of the investigation, based on the statements of
Ms. Zakarian and her son, and the protocol of the inspection of the scene,
it was found that Ms. Khachatrian's version of events was not substantiated.
4.3 The requests of Ms. Khachatrian and her lawyer that the authorities
question her daughter, who was then only five years old, were rejected both
by the investigating authorities and the courts, because article 207 of the
Armenian Criminal Procedure Code provides that minors may be examined only
if they are able to provide significant information in relation to a case.
Further, evidence subsequently obtained by the authorities established that
the author's daughter was not in fact at the scene of the incident.
4.4 The State party contends that all stages of the process were conducted
lawfully. All available documentation indicates that the Armenian
authorities involved in this matter acted in accordance with both national
and international legal standards.
5.1 In comments dated 2 July 2002, the author submits that she was not
informed about the nature of the investigation against her in relation to
causing light bodily injury, and was not presented with the final charge and
evidence against her until the end of the investigation; by contrast, Ms.
Zakarian was recognized as a victim much earlier and given access to the
criminal file, in particular the medical evidence.
5.2 The author states that the investigator must have had enough evidence to
formally charge her with causing light bodily injury, because Ms. Zakarian
was recognized as a victim and as a civil claimant.
5.3 The author notes that she suffered an attack on her life, in violation
of article 6 of the Covenant, and that the State party refused to provide
her with a remedy in relation to this, as required by article 2, paragraph 3
of the Covenant.
5.4 Finally, the author states that the State party offered no explanation
of why her request to question her partner was rejected.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its Rules of Procedure,
decide whether or not the case is admissible under the Optional Protocol to
the Covenant.
6.2 The Committee has ascertained, as required under article 5, paragraph
2(a), of the Optional Protocol, that the same matter is not being examined
under another procedure of international investigation or settlement.
6.3 The Committee considers that the author's allegations in relation to the
State party's alleged failure to provide her with a remedy for the alleged
attack on her life by Ms. Zakarian have not been substantiated and are
accordingly inadmissible under article 2 of the Optional Protocol.
6.4 As to the author's claim under articles 14, paragraph 3(a) and 3(b), the
Committee notes that the authorities opened their investigation into the
incident on 12 May 2000, and did not formally press charges against the
author until 27 July 2000. However article 14, paragraph 3(a) applies only
to criminal charges, not to criminal investigations; there were no charges
against the author until 27 July 2000, when she was duly informed of the
charge in question. Furthermore, it has not been established that the
authorities used unfair tactics or deliberately refrained from formally
laying charges they had every intention to press at a later time; rather, as
the State party has explained, charges were not laid at an earlier stage
because there was insufficient evidence to charge the author. Whilst the
author contests this, the Committee is not in a position to resolve this
factual question. Further, the fact that the police shared certain
information with Ms. Zakarian, and issued a certificate recognizing her
right to bring a civil claim against the author does not involve any
violation of article 14(3) of the Covenant, which relates to criminal, and
not to civil proceedings. Finally, the author has not substantiated her
claim that, because she was not formally charged until the very end of the
criminal investigation, she was deprived of the right to seek expert
opinions or choose her own lawyer. Accordingly, the Committee considers
these claims to be inadmissible under article 2 of the Optional Protocol.
6.5 As to the author's remaining claims under article 14, paragraphs 1 and
3(e), the Committee has noted the State party's arguments that the author's
requests for her daughter, and later for her partner, to be examined were
rejected on the basis that minors may only be examined if they are able to
provide significant information in relation to the case, and that evidence
subsequently obtained by the authorities established that in fact neither
the author's daughter, nor her partner, were at the scene of the incident.
The author maintains that her daughter's evidence was critical to her
defence. The Committee observes that, in substance, this part of the
communication relates to an evaluation of elements of facts and evidence. It
refers to its prior jurisprudence and reiterates that it is generally for
the appellate courts of States parties to the Covenant to evaluate facts and
evidence in a particular case, unless it can be ascertained that this
evaluation was clearly arbitrary or amounted to a denial of justice. [FN2]
The material before the Committee does not show that the courts' examination
of the above allegations suffered from such defects. The Committee is not in
a position to evaluate the State party's assessment of the competence of the
author's daughter and partner to give evidence, or the possible relevance of
their evidence to the case. Accordingly, the Committee declares the author's
claims in this regard inadmissible under article 2 of the Optional Protocol.
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[FN2] See, for example, Errol Simms v. Jamaica, Communication No. 541/1993,
Inadmissibility decision adopted on 3 April 1995.
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7. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under article 2, of the Optional
Protocol;
(b) That this decision shall be transmitted to the State party and to the
author, for information.
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Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.
The Covenant and the Optional Protocol entered into force in relation to
Armenia on 23 September 1993 |
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