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THIRD
SECTION
DECISION
Application no.
44837/08
by Vardan MINASYAN
against
Armenia
The
European Court of Human Rights (Third Section), sitting
on 22 November 2011 as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Ján Šikuta,
Luis López
Guerra,
Nona Tsotsoria,
Mihai Poalelungi,
judges,
and Marialena Tsirli,
Deputy Section Registrar,
Having
regard to the above application lodged on 16 July 2008,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Vardan Minasyan, is an Armenian national who was born
in 1974 and lives in Yerevan. He is represented before the Court by
Ms L. Sahakyan, Mr E. Varosyan, lawyers practising in Yerevan, and
Mr A. Ghazaryan, a non-practising lawyer.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
1. The applicant’s arrest, indictment and
placement in detention
- On
18 December 2007 criminal proceedings were instituted on account of a
fight with use of firearms between two groups of people, which took
place on the same day. As a result of the fight, one person died and
two others were wounded. It appears that the applicant participated
in the fight and opened fire from his two guns. It further appears
that the applicant went into hiding and a search for him was
declared.
- On
22 December 2007 the applicant turned himself in to the police. He
surrendered his two guns and stated that he had used them during the
fight in defence against an assault by unknown persons. He was
arrested and taken into custody.
- On
25 December 2007 the applicant was charged with an aggravated count
of murder, as provided for by Article 104 § 2 (6) of the
Criminal Code (CC), an aggravated count of infliction of heavy
injuries, as provided for by Article 112 § 2 of the CC and
illegal possession of firearms, as envisaged by Article 235 § 1
of the CC.
- On
the same date the investigator filed a motion to the Kotayk Regional
Court seeking to have the applicant detained for two months. The
motion stated that on 18 December 2007 the applicant, in a manner
dangerous to the life of many, had opened fire from
illegally-possessed guns on individuals G.S., R.V., V.H., as a result
of which he had unlawfully and intentionally deprived G.S. of his
life and inflicted serious injuries on R.V. and V.H. The motion
further stated that the applicant had to be detained because, inter
alia, he had committed a grave crime.
- On
the same day the Kotayk Regional Court decided to grant the motion
and detain the applicant for two months, namely from 22 December 2007
until 22 February 2008, finding that the applicant might abscond,
obstruct the examination of the case, avoid criminal liability and
serving the imposed sentence and hinder the execution of the
judgment. In finding so, the Regional Court took into account the
nature and gravity of the imputed offence and the fact that the
applicant had committed a grave crime.
- On
9 January 2008 the applicant lodged an appeal, claiming that his
detention was not based on a reasonable suspicion that he had
committed an offence and that the Regional Court had not adduced
sufficient reasons when finding that his detention was justified. He
also alleged that the principle of the presumption of innocence had
been breached since the Regional Court stated in the affirmative that
he had committed a grave crime.
- On
29 January 2008 the Criminal Court of Appeal upheld the decision of
the Regional Court. The Court of Appeal found that there was
sufficient evidence to raise a reasonable suspicion that the
applicant had committed an offence. In this regard, it referred to
the applicant’s statements made to the investigative bodies and
the results of G.S.’s autopsy, according to which he had died
from a bullet wound. As to the reasons for detention, the Court of
Appeal found that the applicant might obstruct the examination of the
case. In finding so, it referred to the nature and gravity of the
imputed offences, the scope of possible investigative activities and
the circumstances of the case. Concerning the allegation of a
violation of the presumption of innocence, the Court of Appeal found
that the Regional Court’s statement had to be taken solely as
meaning that the offence was imputed.
- It
appears that during the examination of the appeal it was established
that the fatal incident had been the consequence of a casual street
argument that had occurred between the applicant and the victims
earlier the same day.
- On
25 April 2008 the applicant lodged an appeal on points of law.
- On
19 May 2008 the Court of Cassation left the appeal unexamined on the
ground that it had been lodged outside the prescribed one month
time-limit.
2. Prolongation of the applicant’s detention
(a) The first four prolongations of the
applicant’s pre-trial detention
- On
18 February, 18 April, 16 May 2008 and 17 June 2008 the Kentron and
Nork-Marash District Court of Yerevan, on the basis of corresponding
motions lodged by the investigator, prolonged the applicant’s
detention until 22 April, 22 May, 22 June and 22 July 2008
respectively on the ground that, taking into account the hostility
between the applicant and the victim’s friends and relatives,
the applicant might commit a new crime. It further found that, taking
into account the nature and gravity of the imputed offence the
applicant, if at large, might commit a new crime, abscond, obstruct
the examination of the case and avoid criminal liability.
- On
25 February, 22 April, 21 May and 23 June 2008 the applicant lodged
appeals against the decisions of the District Court, claiming inter
alia, that no relevant and sufficient reasons justifying his
detention were invoked by it.
- On
7 March, 7 May, 6 June and 4 July 2008 the Criminal Court of Appeal
upheld the respective decisions of the District Court. In this
respect, it held that the applicant’s continued detention on
remand was justified, taking into account the applicant’s
personality and the nature and gravity of the imputed offence,
punishable by a maximum of life imprisonment, which increased the
likelihood of his absconding.
- On
25 April, 4 June, 4 July and 4 August 2008 the applicant lodged an
appeal on points of law against the respective decisions of the Court
of Appeal.
- On
19 May 2008 the Court of Cassation left the applicant’s appeal
of 25 April 2008 unexamined on the ground that it had been
lodged outside the prescribed one month time-limit.
- On
2 July, 4 August and 5 September 2008 the Court of Cassation declared
the applicant’s appeals of 4 June, 4 July and 4 August 2008
inadmissible for lack of merit.
(b) Modification of the charges and the
fifth prolongation of the detention
- On
4 July 2008 the investigator decided to drop and modify the charges
against the applicant. In particular, the charge of illegal arms
possession (Article 235 § 1 of the CC) was dropped, while the
charges under Article 104 § 2 (6) and Article 112 § 2 (1)
were modified and replaced with the charge for two aggravated counts
of attempted murder (Article 104 § 2 (1) and (6) in conjunction
with Article 34) and the charge for two aggravated counts of
hooliganism (Article 258 §§ 3 (1) and (4) respectively).
- On
10 July 2008 the investigator brought modified charges against the
applicant.
- On
11 July 2008 the investigator filed a motion seeking to have the
applicant’s detention prolonged by two more months.
- On
17 July 2008 the Kentron and Nork-Marash District Court of Yerevan,
having examined the materials of the criminal case, decided to grant
partially the motion and to prolong the applicant’s detention
for one month, namely until 22 August 2008 on the same grounds as
those invoked in its previous decisions. As a reason for considering
that the applicant might avoid responsibility, the District Court
referred to the fact that the applicant had gone into hiding after
committing the crime and thus obstructed the examination of the case.
- On
22 July 2008 the applicant lodged an appeal claiming, inter alia,
that the principle of equality of arms had been violated since the
District Court referred in its decision to certain materials of the
case, which had not been produced during the court examination.
- On
1 August 2008 the Court of Appeal upheld the decision of the District
Court finding that the applicant, if he remained at large, might
abscond, obstruct the proceedings or, given the continuing hostility
between the two sides, the applicant might commit new crimes. As
regards the complaint concerning an alleged violation of the
principle of equality of arms, the Court of Appeal dismissed it,
finding that the District Court had based its decision only on those
materials which had been examined during the hearing and which were
available to both the applicant and his lawyers.
(c) Modification of the charges and the
sixth prolongation of the detention
- On
12 August 2008 the investigator decided to drop and modify the
charges against the applicant. In particular, the charge of an
aggravated count of hooliganism under Article 258 § 3 (1) was
dropped and new charges under Article 104 § 2 (1) and (6) in
conjunction with Article 34 of the CC and Article 258 § 4 of the
CC were brought. The next day the modified charges were brought
against the applicant.
- Meanwhile,
on 12 August 2008 the investigator lodged a motion seeking to prolong
the applicant’s detention for two months.
- On
15 August 2008 the Kentron and Nork-Marash District Court of Yerevan
decided to grant the investigator’s motion partially and
prolonged the applicant’s detention for one month, namely until
22 September 2008.
(d) The seventh prolongation of the
detention
- On
16 September 2008 the investigator brought another motion seeking to
prolong the applicant’s detention for 15 days.
- On
17 September 2008 the Kentron and Nork-Marash District Court of
Yerevan granted the motion and prolonged the applicant’s
detention for 15 days, namely until 7 October 2008, taking into
account the nature and dangerousness of the imputed offence, the
factual circumstances of the case, and the fact that the applicant,
if he remained at large, might abscond, obstruct the proceedings or
avoid criminal liability.
- On
22 September 2008 the applicant lodged an appeal.
- It
appears that in the meantime the investigation was completed and, on
1 October 2008, the applicant’s case was referred to the
Northern Criminal Court for trial.
- On
7 October 2008 the Criminal Court of Appeal decided to leave the
appeal of 22 September 2008 unexamined on the ground that the scope
of judicial control over pre-trial proceedings was limited to the
investigation stage. Since the investigation had been completed and
the case had been referred to a court, it was now up to that court to
examine questions of lawfulness and validity of detention.
- On
7 November 2008 the applicant lodged an appeal on points of law
against the Court of Appeal of 7 October 2008. However, in finalizing
his appeal, the applicant requested that his detention be cancelled,
as ordered by the decision of the District Court of 17 September
2008, and that he be released.
- On
21 November 2008 the Court of Cassation decided to leave the
applicant’s appeal unexamined on the ground that it had been
directed against the decision of the District Court of 17 September
2008, which was not subject to appeal on points of law. In this
respect, it referred to the fact that the request contained in the
applicant’s appeal on points of law was to cancel his detention
as ordered by the decision of the District Court of 17 September
2008.
- In
the meantime, on 15 October 2008 judge M. of the Northern Criminal
Court decided to take over the examination of the case. In the same
decision, the judge imposed detention on the applicant, as a
preventive measure.
- On
27 October 2008 the applicant lodged an appeal against this decision,
claiming that the judge had no right under the procedural law to
order his detention together with the decision to take over the
examination of the case because such a decision could be taken only
together with a decision to set the case down for trial, after
consulting the case file in order to see if ordering detention was
justified. Besides, the detention decision could not be considered as
lawful since it was taken together with another procedural decision,
contained no reasons and no time-limit for detention.
- On
23 December 2008 the Court of Appeal dismissed the appeal, finding
that the applicant’s detention was justified because, taking
into account the gravity and nature of the imputed offence, there was
a high risk that the applicant might abscond or obstruct the
examination. As to the lawfulness of the detention decision, the
Court of Appeal held that, since detention on the sole ground that
the criminal case had been transferred to the trial court was
incompatible with Article 5 § 1 of the Convention, the Northern
Court had ordered the applicant’s detention together with its
decision to take over the examination of the case in order to create
a legal basis for such detention and to make it “lawful”
under Article 5 § 1. As regards the alleged violation of the
procedural law, the Court of Appeal referred to the Court’s
case-law, according to which even flaws in the detention order did
not necessarily render the underlying period of detention unlawful
within the meaning of Article 5 § 1.
- On
22 January 2009 the applicant lodged an appeal on points of law.
- On
9 March 2009 the Court of Cassation declared the applicant’s
appeal admissible.
- On
10 April 2009 the Court of Cassation examined the applicant’s
appeal on the merits and decided to dismiss it, finding that the
Northern Criminal Court was competent to rule on the applicant’s
detention together with its decision to admit the case to its
proceedings, since this was prompted by the necessity to observe the
right to liberty and security of person, as protected by the
Convention.
- On
an unspecified date the criminal case, in accordance with procedural
amendments introduced in the meantime, was transferred to the Kotayk
Regional Court for examination. It appears that during the
examination of the case, the prosecutor decided to modify the charges
against the applicant by replacing them with a charge of attempted
murder in excess of the boundaries of necessary defence (Article 108
in conjunction with Article 34 of the CC) and a charge on an
aggravated count of hooliganism (Article 258 § 3 (1) of the CC).
- On
8 May 2009 the Kotayk Regional Court found the applicant guilty under
Article 108 in conjunction with Article 34 and Article 258 § 3 (1)
and sentenced him to a total of three years’ imprisonment.
B. Relevant domestic law
1. The Criminal Code
- According
to Article 34, an attempted crime is an intentional action (or
omission) aimed directly at committing a crime, if the crime was not
completed due to circumstances which were beyond the person’s
will.
- According
to Article 104 § 2, the murder of two or more persons
(sup-paragraph 1) committed in a manner dangerous to the lives of
many (sub-paragraph 6) shall be punishable by imprisonment from eight
to fifteen years or for life.
- Article
112 § 2 provides that intentional infliction of bodily injuries
or other serious damage to health, which endangers life, to two or
more persons shall be punishable by imprisonment from five to ten
years.
- According
to Article 235 § 1, illegal possession of firearms shall be
punishable by up to three years of imprisonment.
- Article
258 § 3 prescribes that hooliganism accompanied with violent
acts or a threat of such acts, or destroying or damaging another
person’s property, committed by a group of persons or an
organised group shall be punishable by up to five years’
imprisonment. Paragraph 4 of the same Article prescribes that if the
hooliganism, as envisaged by the third paragraph of the same Article,
was committed together with the use of arms or objects used as arms,
it shall be punishable by up to seven years’ imprisonment.
2. The Code of Criminal Procedure
- Article 136 § 2 provides that detention may be
ordered by a court decision only and that the court can adopt such a
decision upon its own initiative during the court proceedings.
- According
to Article 291 § 1 a judge shall, in a procedure prescribed by
law, decide to take over the examination of the case submitted to the
court.
- Article
292 § 1 provides that the judge who has taken over the
examination of the case shall examine the materials of the case and
within fifteen days from the date of taking over the examination of
the case shall adopt a decision setting the case down for trial.
- Article
293 § 2 provides that the decision setting the case down for
trial shall contain a decision cancelling, modifying or imposing a
preventive measure.
- According
to Article 300, together with adopting decisions, the court is
obliged to examine the issue of whether or not to impose a measure of
restraint and whether or not the type of the imposed measure of
restraint is justified.
COMPLAINTS
- The
applicant complains under Article 5 § 1 of the Convention that
(a) from
7 October 2008 until 15 October 2008 his detention was not based on a
court decision;
(b) the
detention decision of 15 October 2008 could not be considered as
“lawful” because the Northern Criminal Court took it in
violation of the procedural law, merged it with another decision and
provided no reasons or time-limit for his detention.
- The
applicant complains under Article 5 § 3 of the Convention that
(a) his
detention was not based on a reasonable suspicion;
(b) the
courts failed to provide relevant and sufficient reasons when
imposing and prolonging his detention;
(c) his
detention was lengthy and the authorities did not display due
diligence in the conduct of the proceedings; and
(d) the
investigating authority and the court violated the presumption of
innocence by stating during the pre-trial stage that he had committed
an offence.
- The
applicant complains under Article 5 § 4 that
(a) the
Court of Appeal failed to examine properly his arguments concerning
the absence of a reasonable suspicion and lack of sufficient reasons
for detention, while the Court of Cassation decided not to admit his
appeals on points of law without good reasons;
(b) the
principle of equality of arms was violated since the domestic courts,
when ordering his detention, relied on the materials of the case file
which had not been produced and examined during court hearings;
(c) the
Court of Appeal was not impartial as the presiding judge had already
drafted a decision dismissing his appeal of 21 May 2008 before the
start of the appeal hearing;
(d) the
Court of Appeal, by its decision of 7 October 2008, refused to
examine his appeal of 22 September 2008; and
(e) a
two-month detention period ordered by a court, without a possibility
to initiate a review of the lawfulness of his detention in the
meantime, cannot be considered as a “reasonable interval”
within the meaning of that Article.
THE LAW
A. Alleged unlawfulness of the applicant’s
detention from 7 to 15 October 2008
- The
applicant complains that there was no court decision authorising his
detention from 7 to 15 October 2008. He invokes Article 5 § 1 of
the Convention, which provides:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so”.
- The
Court considers that it cannot, on the basis of the file, determine
the admissibility of this part of the application and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of the
Rules of the Court, to give notice of this complaint to the
respondent Government.
B. Alleged lack of relevant and sufficient reasons for
the applicant’s detention and the expeditiousness of the
investigation
- The applicant complains that his detention was not
based on relevant and sufficient reasons and that the authorities did
not display special diligence in dealing with his case while he was
in detention. He refers to Article 5 § 3 of the Convention,
which reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The Court considers that it cannot, on the basis of
the file, determine the admissibility of this part of the application
and that it is therefore necessary, in accordance with Rule 54
§ 2 (b) of the Rules of the Court, to give notice of
this complaint to the respondent Government.
C. Non-examination of the applicant’s appeal of
22 September 2008
- The
applicant complains that, by refusing to examine his appeal of
22 September 2008, the domestic courts violated his right to
obtain a review of lawfulness of his detention. In this respect, he
invokes Article 5 § 4 of the Convention, which provides:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful”.
- The Court considers that it cannot, on the basis of
the file, determine the admissibility of this part of the application
and that it is therefore necessary, in accordance with Rule 54
§ 2 (b) of the Rules of the Court, to give notice of
this complaint to the respondent Government.
D. Other alleged violations of the Convention
- The applicant also raises a
number of other complaints under Article 5 §§ 1, 3 and 4 of
the Convention.
- Having regard to all the material in its possession,
and in so far as these complaints fall within its competence, the
Court finds that they do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn
the examination of the applicant’s
complaints concerning the alleged unlawfulness of the
applicant’s detention from 7 to 15 October 2008, the
alleged lack of relevant and sufficient reasons for the applicant’s
detention and the expeditiousness of the investigation, and the
non-examination of the applicant’s appeal of 22 September 2008;
Declares the remainder of
the application inadmissible.
Marialena Tsirli Josep
Casadevall
Deputy Registrar President
