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THIRD
SECTION
CASE OF POGHOSYAN v. ARMENIA
(Application
no. 44068/07)
JUDGMENT
STRASBOURG
20
December 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Poghosyan v.
Armenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Ján Šikuta,
Luis López
Guerra,
Nona Tsotsoria,
Mihai Poalelungi,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 44068/07)
against the Republic of Armenia lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by an
Armenian national, Mr Gaspar Poghosyan (“the applicant”),
on 28 September 2007.
- The applicant was represented by Mr L.
Simonyan, a lawyer practising in Yerevan. The Armenian
Government (“the Government”) were represented by their
Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at
the European Court of Human Rights.
- On
8 September 2009 the President of
the Third Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1981 and lives in Yerevan.
- On
an unspecified date criminal proceedings were instituted in respect
of the applicant on account of fraud and burglary under Article 177 §
2 (3) and (4) and Article 178 § 1 of the Criminal Code.
- On
15 February 2007 formal charges were brought against the applicant.
It appears that the applicant was considered to be in hiding and a
search was initiated.
- On
the same date the Ararat Regional Court examined and granted the
investigator’s motion seeking to have the applicant placed in
pre-trial detention. This decision was based on the nature and degree
of dangerousness of the incriminated acts and on the fact that the
applicant was in hiding and was capable of hindering the
investigation by exerting unlawful pressure on the parties to the
proceedings. Detention was imposed for a period of two months to be
calculated from the moment of the applicant’s arrest.
- On
13 April 2007 the applicant was arrested and taken to the Ararat
Police Department where he was informed about the decision of
15 February 2007. The applicant was then taken to Nubarashen
detention facility.
- On
31 May 2007 the applicant filed a motion with the Ararat Regional
Court seeking to be released on bail. The applicant submitted at the
outset that the Regional Court, despite the requirement of Article
137 § 4 of the Code of Criminal Procedure (CCP) (see paragraph
29 below), had failed to address the question of his release on bail
in its decision of 15 February 2007. He further argued that
the fact that he was not eligible under the law for release on bail
because of the gravity of the charges was in contradiction with the
requirements of Article 5 § 3 of the Convention. He requested
the court to apply the requirements of the Convention and to release
him, arguing that he had never been in hiding. The applicant alleged
that prior to his arrest he had been out of town for business and
that he had never been informed of the criminal proceedings against
him. He finally argued that he had not been brought before a judge
following his arrest, as required by Article 5 § 3 of the
Convention.
- On
5 June 2007 the investigation was completed.
- On
8 June 2007 the Ararat Regional Court examined the motion of 31 May
2007. The Regional Court noted at the outset, with reference to
Article 5 § 3 of the Convention, that the norms of international
law prevailed over domestic law and therefore the question of the
applicant’s release on bail was to be considered. The Regional
Court, however, decided to refuse the applicant’s request for
release, finding that there was a risk of the applicant absconding
and thereby evading liability and punishment in view of the fact that
he had earlier been in hiding. This decision was subject to appeal
within fifteen days.
- On
the same date the bill of indictment was finalised.
- On
12 June 2007 the criminal case was transmitted to the Ararat Regional
Court for examination.
- On
13 June 2007 the applicant’s detention period authorised by the
decision of 15 February 2007 expired.
- On
15 June 2007 the applicant lodged an appeal against the decision of
8 June 2007. He also applied to the chief of Nubarashen
detention facility and requested that he be released, since the
authorised detention period had expired on 13 June 2007.
- On
the same date Judge Y. of the Ararat Regional Court decided to take
over the applicant’s criminal case.
- By
a letter of 18 June 2007 the chief of Nubarashen detention facility
refused the applicant’s request to be released, on the ground
that the case had been transmitted to the Regional Court.
- On
29 June 2007 the applicant lodged an appeal against this refusal with
the Erebuni and Nubarashen District Court of Yerevan, arguing that
his continued detention was unlawful.
- On
2 July 2007 Judge Y. decided to set the applicant’s criminal
case down for trial, scheduling a hearing for 12 July 2007. This
decision stated that it was not necessary to modify or cancel the
applicant’s detention.
- On
6 July 2007 the Criminal Court of Appeal, referring to Chapter 39
of the CCP which prescribes the rules of judicial control over
pre-trial proceedings, decided to leave the applicant’s appeal
of 15 June 2007 unexamined on the ground that the pre-trial
proceedings had already been completed.
- On
12 July 2007 the Erebuni and Nubarashen District Court of Yerevan
dismissed the applicant’s appeal of 29 June 2007, finding that
the refusal to release him had been lawful and in compliance with
Article 138 of the CCP.
- On
27 July 2007 the applicant lodged an appeal against this decision.
- On
2 August 2007 the applicant filed a motion with the Ararat Regional
Court seeking to be released.
- On
the same date the Ararat Regional Court examined and dismissed this
motion. The Regional Court found that the applicant’s detention
after 13 June 2007 was justified under Article 138 § 3 of
the CCP (see paragraph 31 below), while his detention after 2
July 2007 was authorised by the court’s decision of the same
date.
- On
22 August 2007 the Criminal Court of Appeal dismissed the applicant’s
appeal of 27 July 2007 on the same grounds as the District Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Code of Criminal Procedure
- According
to Article 65, the accused is entitled, inter alia, to file
motions.
- According
to Article 134 §§ 1 and 4, preventive measures are measures
of compulsion imposed on the suspect or the accused. They include,
inter alia, detention and bail. Bail is considered an
alternative preventive measure to detention and is imposed only if a
court decision has been issued to detain the accused.
- According
to Article 136 § 2, detention and bail are applied only by a
court decision upon the investigator’s or the prosecutor’s
motion or of the court’s own motion during the court
proceedings. The court can replace detention with bail also upon the
motion of the defence.
- According
to Article 137 § 4, when deciding on detention, the court also
decides on the possibility of releasing the accused on bail and, if
release is possible, sets the amount of bail.
- According
to Article 137 § 5, a court decision imposing detention may be
contested before the appeal court.
- According
to 138 § 1, entitled “Detention period”, the
detention period of an arrested person shall be calculated from the
moment of his actual taking into custody or, if he has not been
arrested, from the moment of execution of the court decision whereby
detention was imposed.
- According
to Article 138 § 3, during the pre-trial proceedings of a
criminal case the detention period may not exceed two months, except
for cases prescribed by this Code. During the pre-trial proceedings
of the criminal case the running of the detention period shall be
suspended on the date when the prosecutor transmits the criminal case
to the court or when detention is cancelled as a preventive measure.
- According
to Article 138 §§ 5 and 6, during the pre-trial proceedings
of a criminal case the accused’s detention period cannot exceed
one year. No maximum detention period is prescribed during the court
proceedings.
- According
to Article 139 §§ 1 and 3, if it is necessary to prolong
the accused’s detention period, the investigator or the
prosecutor must submit a well-grounded motion to the court not later
than ten days before the expiry of the detention period. When
deciding on the prolongation of the accused’s detention period,
the court shall prolong the detention period within the limits
prescribed by this Code, on each occasion for a period not exceeding
two months.
- According
to Article 141 (10), the administration of a detention facility is
obliged, inter alia, immediately to release a person kept in
detention without a relevant court decision or if the detention
period fixed by a court decision has expired.
- According
to Article 285 § 2, a motion seeking to have detention imposed
on an accused for whom a search has been declared shall be examined
by the court in the presence of the person who has filed the motion
and the accused’s lawyer, if any.
- According
to Article 288 § 1, the court of appeal shall carry out the
judicial review of the lawfulness and validity of decisions imposing
or refusing to impose detention, as well as prolonging or refusing to
prolong the detention period.
- According
to Article 291, a criminal case received at the court shall be taken
over by judges in a procedure prescribed by law. A relevant decision
must be adopted.
- According
to Article 292, the judge who has taken over a case shall examine the
materials of the case and within fifteen days from the date of taking
over the case shall adopt, inter alia, a decision setting the
case down for trial.
- According
to Article 293 § 2, the decision setting the case down for trial
shall contain, inter alia, a decision cancelling, modifying or
imposing a preventive measure.
- According
to Article 381 § 1, an appeal must contain (a) the name of the
court to which it is addressed; (b) information about the appellant;
(c) the contested judgment or decision and the name of the court
which issued it; (d) an indication as to whether the whole or part of
the judgment or decision are being contested; (e) the appellant’s
arguments and complaints; (f) substantiating evidence, if any; (g) a
list of attached materials; and (h) the appellant’s signature.
According to Article 381 § 2, the court of appeal shall leave an
appeal unexamined if it does not comply with the requirements set out
in this Article, was lodged by a person who was not entitled to do
so, or was lodged out of time.
B. The Criminal Code
- According
to Article 177 § 2 (3) and (4), burglary with breaking into a
flat, storage or construction committed anew is punishable by two to
six years’ imprisonment.
- According
to Article 178 § 1, fraud is punishable by a maximum of two
years’ imprisonment.
C. The relevant decisions of the Court of Cassation
- On
28 November 2008 the Court of Cassation issued a decision in another
criminal case whose relevant parts read as follows:
“...[T]he Court of Cassation finds unacceptable
the limitation of the right to appeal against decisions imposing
detention or prolonging a detention period on the ground whether the
appeal was lodged within the scope of judicial control over pre-trial
proceedings or during the court proceedings of the case. ...
In the present case, the Criminal Court of Appeal based
its decision to leave the appeal unexamined on the fact that the
investigation had been over and the case had been submitted to court,
which was not envisaged by Article 381 § 2 of [the CCP]. Hence,
the Court of Cassation finds that in the present case an appeal was
lodged against a judicial act subject to appeal, which was not
supposed to be left unexamined. ...
On the violation of ... Article 5 § 4 ... of the
Convention by the Court of Appeal. ...The domestic criminal
procedure law does not envisage any limitation on lodging an appeal
against the general jurisdiction court’s decision imposing
detention or prolonging a detention period, based on the particular
stage of the proceedings.”
- On
26 December 2008 the Court of Cassation issued a decision in another
criminal case whose relevant parts read as follows:
“The Court of Cassation finds that[, inter
alia, Article 285 § 2 of the CCP], as regards imposition of
a preventive measure on an accused in whose respect a search has been
initiated, is incompatible with the requirement of Article 5 § 3
of the Convention that [an arrested person] be promptly brought
before a judge. [The mentioned Article of the CCP] allows imposition
of a preventive measure depriving a person of liberty in the absence
of that person, without providing a possibility for the person
discovered as a result of the search to appear before the court and
for the question of his detention to be discussed in his presence.
The Court of Cassation finds that such rules of the
criminal procedure law will breach Article 5 § 3 of the
Convention and will constitute a grave violation of a person’s
right to liberty if a person discovered as a result of the search is
not brought promptly before a court. ...
...[T]he Court of Cassation finds that a necessary
domestic safeguard for the protection of the right to liberty must be
an additional examination by [the relevant] court of the question of
[detention] in the presence of [the affected] person following his
discovery as a result of the search.”
- On
10 April 2009 the Court of Cassation issued a decision in another
criminal case whose relevant parts read as follows:
“Taking into account the findings reached in the
judgment of the European Court of Human Rights in the case of Ječius
v. Lithuania, the Court of Cassation finds that the suspension of
the detention period on the ground that the case has been transmitted
by the prosecutor to a court constitutes an unlawful limitation of a
person’s right to liberty. Hence, the rules prescribed by
Article 138 § 3 of [the CCP] contradict Article 5 § 1
of [the Convention] and Articles 11 § 2 and 136 § 2 of [the
CCP].
The Court of Cassation finds that in cases in which
there are less than fifteen days left before the expiry of the
two-month detention period, that is less than the time-limit within
which a judge who has taken over the case is to adopt one of the
decisions envisaged by Article 292 of [the CCP], the investigating
authority, when transmitting the case to the court, must also resolve
the question of a person’s detention, namely release him if the
grounds justifying his detention have ceased to exist or file a
motion with the court seeking a prolongation of the detention period
if there are [relevant grounds].”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that his detention between
13 June and 2 July 2007 was unlawful. He invoked Article 5 §
1 of the Convention, which, in so far as relevant, reads as follows:
“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...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant submitted that the domestic law,
namely Article 136 of the CCP, allowed detention only upon a court
decision. His detention period authorised by a court expired on 13
June 2007 and there was no court decision authorising his detention
from that date until 2 July 2007. During that period he was kept in
detention by virtue of Article 138 § 3 of the CCP. The applicant
argued that the relevant provisions of the CCP were ambiguous and did
not meet the Convention requirement of lawfulness. Furthermore, his
detention on the sole ground that his criminal case had been
transmitted to court could not be regarded as lawful within the
meaning of Article 5 § 1. There was therefore no lawful basis
for keeping him in detention between 13 June and 2 July 2007.
- The
Government submitted that the applicant’s detention between
13 June and 2 July 2007 was compatible with the provisions of
the CCP, namely its Article 138 § 3. His detention authorised by
a court was to expire on 13 June 2007. In view of this fact, on 8
June 2007 the bill of indictment was finalised and on 12 June 2007
the criminal case was submitted to the Ararat Regional Court for
examination on the merits. On 2 July 2007 the Regional Court decided
to set the applicant’s case down for trial and to leave the
detention imposed on the applicant unchanged.
- The
Government added that this procedure was in the process of being
amended in order to be brought into compliance with the Court’s
case-law and the practice of other member States of the Council of
Europe. The Government asked the Court to take this into account when
deciding on the present case.
2. The Court’s assessment
- The
Court reiterates that Article 5 of the Convention guarantees the
fundamental right to liberty and security. That right is of primary
importance in a “democratic society” within the meaning
of the Convention (see De Wilde, Ooms and Versyp v. Belgium,
18 June 1971, § 65, Series A no. 12, and
Winterwerp v. the Netherlands, 24 October 1979, § 37,
Series A no. 33).
- The
expressions “lawful” and “in accordance with a
procedure prescribed by law” in Article 5 § 1 essentially
refer back to national law and state the obligation to conform to the
substantive and procedural rules thereof (see, among other
authorities, Benham v. the United Kingdom, 10 June
1996, § 41, Reports 1996-III, and Assanidze v.
Georgia [GC], no. 71503/01, § 171, ECHR 2004 II). A
period of detention is, in principle, “lawful” if it is
based on a court order. Even flaws in the detention order do not
necessarily render the underlying period of detention unlawful within
the meaning of Article 5 § 1 (see, Benham, cited above,
§§ 42-47, and Ječius v. Lithuania,
no. 34578/97, § 68, ECHR 2000-IX).
- However,
the “lawfulness” of detention under domestic law is the
primary but not always a decisive element. The Court must in addition
be satisfied that detention during the period under consideration was
compatible with the purpose of Article 5 § 1, which is to
prevent persons from being deprived of their liberty in an arbitrary
fashion. The Court must moreover ascertain whether domestic law
itself is in conformity with the Convention, including the general
principles expressed or implied therein (see, among other
authorities, Winterwerp, cited above, § 45, and Erkalo
v. the Netherlands, 2 September 1998, § 52, Reports
of Judgments and Decisions 1998 VI).
- On
this last point, the Court stresses that where deprivation of liberty
is concerned it is particularly important that the general principle
of legal certainty be satisfied. It is therefore essential that the
conditions for deprivation of liberty under domestic law be clearly
defined and that the law itself be foreseeable in its application, so
that it meets the standard of “lawfulness” set by the
Convention, a standard which requires that all law be sufficiently
precise to allow the person – if need be, with appropriate
advice – to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail (see
Steel and Others v. the United Kingdom, 23 September 1998, §
54, Reports of Judgments and Decisions 1998 VII).
- Turning
to the circumstances of the present case, the Court notes that the
applicant’s detention period – as authorised by the
decision of the Ararat Regional Court of 15 February 2007 –
expired on 13 June 2007 (see paragraphs 7 and 14 above). In the
meantime, the investigation was over and on 12 June 2007 the criminal
case was transmitted to the Regional Court for examination on the
merits. The next occasion on which a court took a decision concerning
the applicant’s detention was only on 2 July 2007
when the Regional Court decided to set the case down for trial (see
paragraph 19 above). Thus, between 13 June and 2 July 2007 the
applicant remained in detention by virtue of Article 138 § 3 of
the CCP, according to which during the pre-trial proceedings the
running of the detention period was to be suspended on the date when
the prosecutor transmitted the criminal case to the court.
- The Court notes that similar but not identical
situations have been previously examined in a number of other cases
(see Baranowski v. Poland, no. 28358/95, §§ 53-58,
ECHR 2000 III; Ječius, cited above, §§
57-64; and Khudoyorov v. Russia, no. 6847/02, §§ 146-151,
ECHR 2005 ... (extracts)). In particular, in the cases of
Baranowski and Khudoyorov the applicants continued to
remain in detention due to the fact that a bill of indictment had
been lodged with the court competent to try their cases. Unlike the
present case, however, in those cases that practice was not based on
any domestic legal provision. On the other hand, in the case of
Ječius the legal provision which permitted the
applicant’s continued detention on the ground that he had
access to the case file was found by the Court to be lacking legal
certainty.
- The Court notes that Article 138 of the CCP sets out
the rules concerning the detention period, notably its calculation
and time-limits. Pursuant to that Article, during pre-trial
proceedings the detention period may not exceed two months unless
prolonged by a court decision, on each occasion for a period not
exceeding two months (Article 139 § 3 of the CCP). However,
paragraph 3 of Article 138 provides that during the pre-trial
proceedings the running of the detention period is suspended on the
date when the prosecutor transmits the criminal case to the court.
The rule contained in that paragraph was relied on to justify the
continued detention of a person once the criminal case was
transmitted to the court for examination on the merits even if the
pre-trial detention period authorised by a court had already expired,
as happened in the applicant’s case.
- The Court observes that the rule contained in Article
138 § 3 was in direct conflict with the requirement contained in
Article 136 § 2 of the CCP which stipulated that detention could
be applied only by a court decision. It further contradicted
Article 141 (10) of the CCP which required the administration of a
detention facility immediately to release a person kept in detention
without a relevant court decision or if the detention period fixed by
a court decision had expired. The Court does not find the wording of
Article 138 § 3 to be sufficiently precise to provide for a
clear, foreseeable and unequivocal exception to these rules. It
therefore considers that Article 138 § 3 of the CCP failed
to satisfy the principle of legal certainty.
- The Court further notes that in the case of Baranowski
the Court stressed that, for the purposes of Article 5 § 1,
detention which extends over a period of several months and which has
not been ordered by a court or by a judge or any other person
“authorised ... to exercise judicial power” cannot be
considered “lawful” in the sense of that provision. While
this requirement is not explicitly stipulated in Article 5 § 1,
it can be inferred from Article 5 read as a whole, in particular the
wording in paragraph 1 (c) and paragraph 3 (see Baranowski,
cited above, § 57). In the present case, the applicant stayed in
detention without a court decision for nineteen days, which is
shorter than the period in the case of Baranowski (almost four
months) but, in the Court’s opinion, sufficiently long to raise
an issue of lawfulness under Article 5 § 1.
- The Court also notes that Article 138 § 3 of the
CCP did not prescribe any time-limits, thereby failing to provide any
safeguards against a person’s indefinite stay in detention. It
is true that Article 292 of the CCP requires the judge, who has taken
over a case, to adopt a decision on detention within fifteen days
(see paragraph 39 above). However, firstly, this time-limit starts to
run from the date on which the judge decides to take over the case
and not from the date on which the case is received at the court. No
time-limit, however, is prescribed for a judge to decide on taking
over the case after receiving it at the court (see paragraph 38
above). Secondly, there are no safeguards against the failure by a
judge, like in the present case, to comply with the fifteen-day
time-limit (see paragraphs 16 and 19 above). The Court notes
that no explanation was provided for this, even if only short, delay.
Thus, it cannot be ruled out that under Article 138 §
3 of the CCP an individual may be kept in detention without a court
decision for a significantly longer period than the fifteen-day
time-limit prescribed by Article 292 of the CCP or even the nineteen
days of the present case.
- Lastly, the Court cannot overlook the fact that
Article 138 § 3 of the CCP permitted detention by reference to
matters wholly extraneous to Article 5 § 1 (see Ječius,
cited above, § 59). It also notes that similar findings were
reached by the Court of Cassation in its decision of 10 April 2009
(see paragraph 46 above).
- In
view of the above, the Court considers that the applicant’s
detention between 13 June and 2 July 2007 was unlawful within the
meaning of Article 5 § 1.
- There
has accordingly been a violation of Article 5 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that he had not been
brought before a judge after being arrested. He invoked Article 5 §
3 of the Convention, which reads as follows:
“3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant submitted that the decision of 15
February 2007 imposing detention was taken in his absence. On 13
April 2007 he was arrested by the police and taken to a detention
facility but he was never brought before a judge, in breach of the
requirements of Article 5 § 3. The legislative changes which
occurred following the circumstances of the present case could not
eliminate the violation of the Convention which had taken place in
respect of the applicant.
- The
Government submitted that considerable measures had been taken in
order to resolve the issue of bringing a person, who had been
discovered as a result of a search, before a judge. The domestic law
did not require the presence of a person for whom a search had been
declared at the hearing on his detention and was silent on the
measures to be taken when the person sought was discovered. This
question had been addressed by the Court of Cassation in its decision
of 26 December 2008 (see paragraph 45 above).
2. The Court’s assessment
- The
Court reiterates that Article 5 § 3 requires that an arrested
individual be brought promptly before a judge or a judicial officer
(see Kandzhov v. Bulgaria, no. 68294/01, § 65, 6 November
2008). This Article places the judge or the judicial officer under
the obligation of hearing himself the individual brought before him
(see Schiesser v. Switzerland, 4 December 1979, §
31, Series A no. 34). Furthermore, it does not provide for any
possible exceptions from the requirement that a person be brought
promptly before a judge or other judicial officer after his or her
arrest or detention. To conclude otherwise would run counter to the
plain meaning of this provision (see Ladent v. Poland, no.
11036/03, § 75, 18 March 2008).
- In
the present case, the applicant was suspected of having committed a
crime. A detention order was issued on 15 February 2007 by the Ararat
Regional Court in the applicant’s absence, since he was deemed
to have gone into hiding. The Court observes in this respect that the
mere possibility of a court issuing an arrest warrant in absentia
in a situation where a person flees from justice does not
conflict with the provisions of the Convention (see Garabayev v.
Russia, no. 38411/02, § 101, 7 June 2007). However, after
the applicant was arrested by the police on 13 April 2007 and
subsequently detained on the basis of the above-mentioned order, he
was never brought before a judge or a judicial officer for the
purposes of Article 5 § 3. The Court also notes that the
practice of not bringing a person in hiding before a judge following
his arrest was found to be in violation of the guarantees of Article
5 § 3 of the Convention by the Court of Cassation in its
decision of 26 December 2008 (see paragraph 45 above).
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained that his appeal of 15 June
2007 had not been examined by the Court of Appeal. He invoked
Articles 5 § 4 and 13 of the Convention. The Court considers
that this complaint falls to be examined solely under Article 5 §
4 of the Convention, which reads as follows:
“4. 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.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant submitted that the decision of the
Court of Appeal of 6 July 2007 to leave his appeal against
detention unexamined on the ground that the pre-trial proceedings had
terminated was incompatible with Article 5 § 4 of the
Convention. Moreover, there was no domestic provision prescribing
non-examination of an appeal on such grounds.
- The
Government submitted that this question had also been addressed by
the Court of Cassation in its decision of 28 November 2008 (see
paragraph 44 above). The decisions of the Court of Cassation had a
binding force on all the courts and the investigating authorities.
The Government further asked the Court, in deciding on the present
application, to take into account that a number of significant
measures had been taken in relation to the issues raised in it.
2. The Court’s assessment
- The
Court reiterates that, according to its case-law, Article 5 § 4
enshrines, as does Article 6 § 1, the right of access to a
court, which can only be subject to reasonable limitations that do
not impair its very essence (see Shishkov v. Bulgaria, no.
38822/97, § 82-90, ECHR 2003 I (extracts), and Bochev v.
Bulgaria, no. 73481/01, § 70, 13 November 2008).
- Furthermore, Article 5 § 4 does not compel the
Contracting States to set up a second level of jurisdiction for the
examination of applications for release from detention. Nevertheless,
a State which institutes such a system must in principle accord
detainees the same guarantees on appeal as at first instance (see
Toth v. Austria, 12 December 1991, § 84, Series A no.
224; Rutten v. the Netherlands, no. 32605/96, § 53, 24
July 2001; Lanz v. Austria, no. 24430/94, § 42, 31
January 2002; and Svipsta v. Latvia, no. 66820/01, §
129, ECHR 2006 III (extracts)).
- The
Court notes that the Armenian law, namely Articles 137 § 5 and
288 § 1 of the CCP, prescribes a right to appeal against the
first instance court’s decision imposing or prolonging
detention (see paragraphs 30 and 37 above). In the present case, the
applicant filed a motion seeking to be released on bail, which was
dismissed by the decision of the Ararat Regional Court of 8 June
2007. He then availed himself of his right to appeal by lodging an
appeal on 15 June 2007. In the meantime, the investigation was over
and the criminal case was transmitted to the Ararat Regional Court
for examination on the merits. On 6 July 2007 the Court of Appeal
decided to leave the applicant’s appeal of 15 June 2007
unexamined on the ground that the pre-trial proceedings had been
already completed.
- The
Court notes that the domestic law prescribed an exhaustive list of
cases in which an appeal lodged against decisions of the first
instance courts could be left unexamined (see paragraph 41 above).
This list did not include the ground relied upon by the Court of
Appeal in refusing to examine the applicant’s appeal. Thus, the
applicant was denied access to the Court of Appeal on grounds not
envisaged by the domestic law. In any event, the Court considers
denial of judicial review of the applicant’s detention on the
sole ground that the criminal case was no longer considered to be in
its pre-trial stage to be an unjustified restriction on his right to
take proceedings under Article 5 § 4.
- It
is true that, prior to the Court of Appeal’s refusal to examine
the applicant’s appeal, a decision had already been taken by
the Regional Court to leave the applicant’s detention unchanged
(see paragraph 19 above). However, the Court has already found in a
number of cases that the refusal to examine an appeal against
detention simply because a fresh decision extending detention had
been meanwhile adopted by a lower court was in breach of the
requirements of Article 5 § 4 (see Peša v. Croatia,
no. 40523/08, §§ 125-126, 8 April 2010; Šebalj
v. Croatia, no. 4429/09, §§ 222-223,
28 June 2011; and Hađi v. Croatia, no. 42998/08,
§§ 46-47, 1 July 2010). The Court lastly notes that
this practice was found to be unacceptable and in violation of the
guarantees of Article 5 § 4 of the Convention by the Court of
Cassation in its decision of 28 November 2008 (see paragraph 44
above).
- There
has accordingly been a violation of Article 5 § 4 of the
Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant lastly raised a number of other
complaints under Article 5 §§ 1 and 3 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.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed fourteen thousand euros (EUR
14,000) in respect of non-pecuniary damage.
- The
Government submitted that the amount claimed was excessive.
Furthermore, the applicant had failed to specify the kind of
non-pecuniary damage that he had allegedly suffered. The Government
lastly asked the Court to take into account the general measures
taken in relation to the issues raised in the present application.
- The
Court considers that the applicant has undoubtedly sustained
non-pecuniary damage on account of the breaches of the Convention
found in the present judgment. Ruling on an equitable basis, it
awards the applicant EUR 10,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant did not claim any costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the alleged
unlawfulness of the applicant’s detention between 13 June and 2
July 2007, his non-appearance before a judge following his arrest and
the refusal to examine his appeal of 15 June 2007 against detention
admissible under Article 5 §§ 1, 3 and 4 of the Convention
and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention in that his detention between 13 June
and 2 July 2007 lacked legal basis;
- Holds that there has been a violation of Article
5 § 3 of the Convention on account of the applicant not
appearing before a judge following his arrest;
- Holds that there has been a violation of Article
5 § 4 of the Convention on account of the refusal to examine the
applicant’s appeal of 15 June 2007 against detention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 10,000 (ten thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage, to be
converted into Armenian drams at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 20 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
