Whether “Absolute” Means Absolute

On 26 February 2024, the Armenian Cassation Court published a decision following its earlier requested advisory opinion from the European Court of Human Rights (ECtHR) on the applicability of statutes of limitation to the prosecution, conviction and punishment in respect of a torture.

Based on the wide margin of appreciation that the ECtHR had left to the Cassation Court, it decided that on the date of the commission of the underlying criminal act in the case, 23 April 2004, there was an international requirement not to apply statutes of limitations in acts of torture as a part of Armenia’s international treaties and acknowledged the absolute nature of the prohibition of torture. However, it refrained from imposing punishment on the perpetrators.

This blog post aims to explore at what point in time the international consensus on the non-application of statutes of limitation for torture has crystallised. The post will also focus on the contextual meaning of the absolute nature of the prohibition of torture, questioning whether the term “absolute” also encompasses the absolute obligation to convict and punish the perpetrators.

A Brief Background of the Case: A Formalistic Approach to Statutes of Limitation for Torture

The ECtHR advisory opinion was requested following the domestic proceedings initiated in the framework of the execution of the ECtHR judgment of Virabyan v. Armenia, delivered in 2012.

The facts of the Virabyan case pertain to acts committed on April 23, 2004, during which the applicant was tortured while in police custody, with no effective investigation conducted into his allegations of torture. Instead, within the initiated criminal case, the applicant was charged with inflicting violence dangerous for health on a public official, and no assessment was made of the criminal acts committed by the police officers. On August 30, 2004, the Prosecution Office discontinued criminal proceedings against the applicant, without considering his allegations.

In 2012, the ECtHR, among other findings, found a violation of Article 3 of the European Convention on Human Rights (ECHR) in its substantive limb for the injuries caused in custody as well as in its procedural limb for the numerous deficiencies in the investigation, highlighting that the investigation into the applicant’s allegations of ill-treatment undertaken by the authorities was ineffective, inadequate, and fundamentally flawed.

Following the ECtHR judgement, the proceedings were reopened in Armenia in 2016, 12 years after the incident. In order to investigate the acts that had led to the finding of violation of Article 3 of the ECHR, a criminal case was initiated and led to the prosecution of perpetrators in 2018. However, despite the First Instance and Criminal Appeal Courts finding the perpetrators guilty of committing acts equal to torture, they were released from criminal responsibility due to the application of limitation periods.

Article 75(6) sentence 2 of the Armenian Criminal Code (2003 edition) stipulated that limitation periods do not apply to criminal actions which are prescribed by international treaties if these treaties indicate a prohibition of the application of limitation periods. In the proceeding at hand, the Armenian courts highlighted that the UN Convention against Torture does not provide for such regulation. Simultaneously, referencing the ECtHR case-law on the non-application of statutes of limitation for torture (Mocanu and others v. Romania, Grand Chamber judgment of 2014), the courts had found that they could not apply it to the crime committed in 2004.

Hereby, the domestic courts had taken a reserved position, aligning it with the nulla poena sine lege principle (Vasiliauskas v. Lithuania, §154). However, they did not delve into the contextual analyses of the jus cogens nature of torture, as indicated in the 1998 Prosecutor v. Furundžija case (§157) of the International Criminal Tribunal for the former Yugoslavia (ICTY) and in the 2001 Barrios Altos v. Peru case (§41) of the Inter-American Court of Human Rights. Moreover, they did not consider international sources against impunity for torture, including the Brussels Principles against impunity and for international justice, the UN Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, or the Arab Charter on Human Rights. The latter, in its Article 8(2) is the first regional treaty prescribing the non-application of the statute of limitations for torture. Ultimately, the Armenian courts had refrained from addressing the core question of when exactly the international consensus on the non-application of statutes of limitations for torture had crystallised, which could not be retrospectively applied in this case.

Following the ECtHR Advisory Opinion: Did the Opinion Shape the European Legal Order on States’ Erga Omnes Obligations Arising from the Absolute Prohibition of Torture?

Based on the cassation appeal of the General Prosecutor, the Cassation Court fulfilled its mandate under the ECHR Protocol 16 by requesting an advisory opinion from the ECtHR. This marked the third request by the highest court of a member State to the Protocol, facilitating a judicial dialogue with the international court. The Cassation Court questioned whether the non-application of statutes of limitation for criminal responsibility for torture, in line with international law sources, would comply with Article 7 ECHR, especially if domestic law does not have such a requirement.

The ECtHR delivered its landmark advisory opinion in 2022, primarily reiterating its case-law on the competing aspects of Articles 3 and 7 ECHR. The Court highlighted that it had “accepted that the prohibition of torture has achieved the status of jus cogens or a peremptory norm in international law” (§59), referencing Al-Adsani v. The United Kingdom (November 21, 2001, §§60-61). However, it remained unsettled from a procedural perspective how to deal with States’ erga omnes obligation of the non-application of statutes of limitation for torture if their criminal legislation does not have such a requirement. It remained uncertain in that case whether it would be consistent with Article 7 ECHR to invoke available international law sources for the non-application of statutes of limitation for torture.

Subsequently, referring to the Armenian Constitution, the ECtHR transferred the determination of the raised questions from the international to the domestic level. It decided that the domestic courts should ascertain “whether rules of international law, having legal force in the national legal system […] can provide a sufficiently clear and foreseeable legal basis to conclude that the criminal offense is not subject to a statute of limitation” (§78). While this approach is aligned with the principle of subsidiarity, it further extended the uncertainty surrounding the formulated question and deepened the gap between Articles 3 and 7 ECHR.

Following Domestic Proceedings: From Absolute Prohibition of Torture to Quasi-Absolute Conviction and Punishment for Torture

Based on the ECtHR’s Advisory Opinion, the Cassation Court has recently delivered its final decision on February 26, 2024. It stated that, considering Article 6 of the Armenian Constitution (1995 edition), which prescribed that international treaties are part of the domestic legal system, it could be inferred that by virtue of the international treaties ratified by Armenia by 23 April 2004, there was a requirement of non-application of statutes of limitation for criminal responsibility for torture (§44). Among others, the Cassation Court primarily referred to the ICTY decision in Prosecutor v. Furundžija, the ECtHR decision in Abdülsamet Yaman v. Turkey (November 2, 2004, §55), and the Committee Against Torture’s (CAT) recommendations (here and here) (ibid). The Cassation Court also drew parallels with the ECtHR judgment in Kononov v. Latvia, highlighting that no violation of Article 7 ECHR was found when the applicant was convicted in 2000 for war crimes committed in 1944 (§§ 45-46).

Simultaneously, while the Cassation Court decided that there was no statute of limitations for acts of torture, it refrained from imposing punishment on perpetrators. Among other factors, considering, inter alia, the absence of a complaint from the victim, the fact that the perpetrators are no longer working at the police, and the significant passage of around 20 years since the crime, not caused by the actions of perpetrators (§50). Consequently, the Cassation Court found that in these circumstances, the appointment of punishment would not serve its purposes and decided that perpetrators are not subject to punishment (§51).

Although this decision marks a significant shift both domestically and internationally, implying that by April 2004, there was an international consensus on the non-application of limitations statute for torture, certain factors should be mentioned. Notably, the first judgment where the ECtHR directly expressed “regret” on the application of the statute of limitations for torture, was Bati and others v. Turkey (§146), delivered on June 3, 2004, only a few months later than the incidents of the present case. Moreover, although the ICTY case of Prosecutor v. Furundžija is a source of international law, in terms of Article 75(6) of Armenian Criminal Code, it is not imposing treaty obligation on Armenia, and apparently not sufficient for establishing such international consensus. Furthermore, as indicated in the concurring opinion of ECtHR Judges Pinto De Albuquerque and Vučinić, in the case of Mocanu of 2014, “it has not yet been established in international law that the prosecution and punishment of torture must not be subject to statutory limitations”. Additionally, while the cited CAT recommendations of 2003 were merely country-oriented rather than universal, they gained international recognition by the CAT’s general comment of 2012 (§40). Finally, an expert opinion, published by the Council of Europe in 2018, is worth noting, because it indicated that in the ECtHR-case law, torture in general had not obtained the “same status” as the war or other international crimes in terms of providing individuals with sufficient clarity that torture had been punishable without time limits (§31). Thus, these factors potentially cast doubt on the Cassation Court’s position indicating that by April 2004, there was an international consensus on the non-application of the statute of limitations for torture.

The Cassation Court’s decision to refrain from imposing punishment on the offenders is prima facie inconsistent with its position on barring the application of the statute of limitations for torture. To the extent that the discontinued criminal proceedings were reopened at a time when the offences would already have been time-barred and that the Cassation Court considers that limitation periods are not applicable to acts of torture, the passage of a considerable period of time after the crime becomes legally irrelevant. Still, the Cassation Court relied upon the passage of around 20 years when it refrained from imposing punishments. This consists in a de facto application of limitation periods. Due to the absolute nature of torture, which the Cassation Court clearly acknowledged, the imposition of punishment did not have a discretionary nature, drawing upon the same sources cited by the Cassation Court. Thus, the absence of a complaint from the victim and the fact that the perpetrators were no longer working at the police could not have had a decisive impact on the imposition of punishment. In light of the reasons laid down in the Cassation Court’s justifications of the non-application of statute of limitations in its first part, these circumstances could not have been considered by the Court in its second part, while deciding the necessity of punishing the perpetrators.

Overall, it could be stated that the undertaken quasi-absolute approach of the Court reasonably contradicts the first part of the decision. Potentially, this approach also violates the principle of non-derogability, as indicated by the CAT’s general comment (§5), Article 2 of the CAT-Convention, as in the case of Urra Guridi v. Spain (§6.6), and Article 3 ECHR in its procedural limb, as interpreted in the ECtHR advisory opinion (§62).

Conclusion

Despite the criticism raised in this blog post, the Cassation Court’s decision, following the ECtHR advisory opinion, could be interpreted as a step towards establishing international consensus on lifting statutes of limitations in cases of torture as of April 2004. As such, it could serve as a global precedent for other jurisdictions and exert significant influence in the crystallisation of this international consensus. Nevertheless, there is a need for further development to ensure that the absolute punishment of perpetrators is indeed absolute. The next stage of development of such a commitment should thus entail the absolute conviction and punishment of perpetrators who committed the international crime of torture.