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THIRD
SECTION
CASE OF MAMIKONYAN v. ARMENIA
(Application
no. 25083/05)
JUDGMENT
STRASBOURG
16
March 2010
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 Mamikonyan v.
Armenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Boštjan M. Zupančič,
Alvina
Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis
López Guerra,
Ann Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 23 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25083/05) 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 Vardan Mamikonyan
(“the applicant”), on 21 June 2005.
- The applicant was represented by Mr N. Baghdasaryan, 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
11 December 2007 the President of the Third Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in Yerevan.
- On
17 August 2003 criminal proceedings were instituted on account of a
traffic accident the previous day which had caused the death of a
person. The victim, P., was taking a walk in the street with his
friend, Z., when he was run over by a car.
- On
9 October 2003 the applicant, who was the driver of the car in
question, was charged under Article 242 § 2 with involuntary
manslaughter resulting from a violation of traffic rules.
- A
number of witnesses made statements during the investigation,
including three eyewitnesses Z., M. and O. Witness Z. stated that he
was taking a walk with P., when he noticed a car driving down the
road at a speed of 70-80 km per hour. When the car was about 13
metres away from them, it suddenly made a sharp turn and headed
towards them. He managed to dodge, but P. was run over. No sound of
brakes was heard before the collision. Similar statements were made
by witnesses M. and O., although the latter stated that the car was
going at a speed of about 90-100 km per hour. It appears that a
confrontation was supposed to be held between the applicant and
witness O. but the latter failed to appear.
- On 25 December 2003 the indictment was finalised and
transmitted to the Erebuni and Nubarashen District Court of Yerevan
(Երևան
քաղաքի Էրեբունի
և Նուբարաշեն
համայնքների
առաջին ատյանի
դատարան).
- On
18 October 2004 the Erebuni and Nubarashen District Court of Yerevan
found the applicant guilty as charged and sentenced him to two years'
imprisonment. This judgment was based on the statements of witnesses
Z. and M., the statements of three other witnesses, the statements of
an auto-technical and medical experts, all of whom were questioned in
court, the statement of witness O. made during the investigation, an
auto-technical and medical expert opinions, and the results of
examinations of the scene of the accident and of the applicant's car.
- On
an unspecified date the applicant lodged an appeal, in which he
apparently raised the issue of non-appearance of witness O.
- On
27 December 2004 the Criminal and Military Court of Appeal (ՀՀ
քրեական և զինվորական
գործերով վերաքննիչ
դատարան)
dismissed the appeal and upheld the judgment of the District Court.
As regards witness O.'s non-appearance at the confrontation, the
Court of Appeal found:
“[Witness O.] has stated ... that he was indeed
unable to come to the confrontation but wishes to indicate that [the
applicant] is a police officer, has connections and is able somehow
to hurt his family. On 16 December 2003 at around 12.20 p.m. he
noticed [the applicant] and a group of men next to the building of
the district prosecutor's office[. R]ealising the reason why they
were gathered there, he did not step out of the car and left from
[there]. He is ready to confirm his statements at a confrontation
with [the applicant], including in court, if his security is ensured.
According to a certificate present in the case file
[(case page 176a)], the confrontation between [witness O.] and [the
applicant] was not possible.”
- On
31 December 2004 the applicant lodged an appeal on points of law
against this judgment. In his appeal, he indicated that the court
judgment was unlawful since it had been adopted with a substantial
violation of procedural law. The applicant requested that the
judgment of the District Court be quashed and a new judgment be
adopted. He also requested that the judgment of the Court of Appeal
be quashed. The applicant added that the main arguments would be
presented in an additional appeal following the receipt of a copy of
the Court of Appeal's judgment.
- By
a letter of 4 January 2005 a copy of the Court of Appeal's judgment
was sent to the applicant.
- According
to a certificate issued on 2 March 2005 by the head of the relevant
post office, this letter was received at the post office on
7 January 2005 and was served on the applicant on 10
January 2005.
- On
12 January 2005 the applicant lodged an appeal on points of law as a
supplement to his appeal of 31 December 2004, which contained eight
pages of legal arguments. The applicant stated at the outset that a
copy of the judgment was received by him on 7 January 2005. He went
on to complain, inter alia, that the statements of witness O.
made during the investigation had been used as a basis for his
conviction. However, he had not been afforded an opportunity to
examine that witness at any stage of the proceedings.
- On
4 February 2005 the Court of Cassation examined and dismissed the
appeal of 31 December 2004, finding:
“The argument put forward by [the applicant] in
his appeal that the judgment is unlawful since it has been adopted
with a substantial violation of procedural law, therefore ... the
judgment of the first instance court must be quashed and a new
judgment must be adopted, is unsubstantiated. ... Article 398 of the
Code of Criminal Procedure clarifies the notion of a substantial
violation of procedural law and paragraph 3 of this Article
enumerates those specific grounds on which a judgment is to be
quashed in any event. In spite of this, [the applicant] did not
indicate in his appeal on points of law on which grounds the Court of
Cassation ... should quash the judgment of the Court of Appeal and
remit the case for a fresh examination. Whereas the Court of
Cassation shall review a judgment of the Court of Appeal, on the
basis of [the applicant's] appeal, within the grounds presented in
the appeal...”
- The
Court of Cassation further stated:
“...as regards the new appeal on points of law
filed in supplement to [the appeal of 31 December 2004], it was
lodged in violation of the time-limit for appeal prescribed by
Article 412 of the Code of Criminal Procedure, therefore the Court of
Cassation will not examine that appeal.”
II. RELEVANT DOMESTIC LAW
A. The Criminal Code
According
to Article 242 § 2, violation of traffic rules by a person
driving a car, which has caused involuntary manslaughter, shall be
punishable by imprisonment for a period not exceeding five years.
B. The Code of Criminal Procedure
- The
relevant provisions of the Code of Criminal Procedure, as in force at
the material time, read as follows:
Article 174: Consequences of missing a time-limit and
the procedure for its restoration
“1. Procedural actions, which have been
performed after the expiry of a time-limit, shall be considered
invalid, unless the time-limit is restored.
2. The person concerned shall apply with a
motion or a request to have the missed time-limit restored to the
authority dealing with the case. ...
3. A time-limit which has been missed for
valid reasons must be restored by a decision of the authority dealing
with the case, upon a motion of the person concerned. ...”
Article 216: Confrontation
“1. The investigator is entitled to arrange a
confrontation of two persons who have been interrogated beforehand
and whose statements contain substantial contradictions. The
investigator is obliged to arrange a confrontation if there are
substantial contradictions between the statements of the accused and
some other person.”
Article 332: Determining the possibility of examining
the case in the absence of a witness, an expert or a specialist who
has not appeared
“1. If one of the witnesses, an expert
or a specialist who has been summoned to the court hearing does not
appear, the court, after hearing the opinion of the parties, shall
decide to continue or adjourn the examination of the case. The court
examination can be continued if the non-appearance of any of the
mentioned persons will not hinder the comprehensive, in-depth and
objective examination of the circumstances of the case.”
Article 342: Reading out of witness statements
“1. Reading out at the trial of witness
statements made during the inquest, the investigation or a previous
court hearing ... is permissible if the witness is absent from the
court hearing for reasons which rule out the possibility of his
appearance in court, if there is substantial contradiction between
those statements and the statements made by that witness in court,
and in other cases prescribed by this Code.”
Article 402: Entry into legal force of decisions and
judgments of the Court of Appeal and their service on the parties
“1. A judgment or a decision of the
Court of Appeal shall enter into legal force ten days after the date
of its pronouncement.
2. A judgment or a decision of the Court of Appeal shall
be served on the convicted or acquitted person, his or her advocates
and lawful representatives ..., provided they participated in the
examination of the case in the Court of Appeal, not later than three
days after the date of its pronouncement.”
Article 407: An appeal on points of law
“3. In cases when an appeal on points
of law ... was lodged out of time, it shall be left unexamined by a
decision of the Court of Cassation.”
Article 412: Time-limits for lodging an appeal
against a court judgment
“1. An appeal on points of law against
a judgment or a decision of the Court of Appeal ... can be lodged
within ten days from the date of delivery of the judgment or
decision.
...
3. Appeals lodged out of time shall not be
examined.”
Article 415: The scope of examination of a case in
the Court of Cassation
“1. The Court of Cassation shall review
... the judgments and decisions of the Court of Appeal which have not
entered into force within the limits of the grounds raised in the
appeal on points of law. ...”
C. Government Decree no. 924-N of 23 May 2002 Approving
Traffic Rules of Armenia (in force from 11 August 2002 to
15 September 2007)
- According
to Paragraph 9.2 of this Decree, the maximum speed limit in urban and
rural areas was 60 km per hour.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the non-examination of his additional
submissions of 12 January 2005 was in violation of the guarantees of
Article 6 § 1 of the Convention, which, in so far as relevant,
read as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 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
Government submitted that the non-examination of the applicant's
additional appeal on points of law of 12 January 2005 was compatible
with the requirements of Article 6 § 1. In particular, the
applicant had ten days to contest the Court of Appeal's judgment of
27 December 2004 before the Court of Cassation, pursuant to
Article 412 of the Code of Criminal Procedure (CCP). He did lodge an
appeal on 31 December 2004, which was examined and dismissed by
the Court of Cassation. As to the appeal of 12 January 2005, this
appeal was lodged out of time and was therefore left unexamined by
the Court of Cassation. The domestic law did not provide for a
procedure of submitting a supplementary appeal in addition to the
initial appeal. There was not even such a concept as “supplementary
appeal” under domestic law. It is true that the domestic law
provided for a possibility to file new submissions in the form of an
additional appeal. However, the applicant should have done that
within the prescribed time-limit.
- Furthermore,
since a copy of the Court of Appeal's judgment was served on the
applicant after the expiry of the time-limit for appeal, the
applicant had the possibility to request the Court of Cassation under
Article 174 of the CCP to restore the time-limit in question.
According to well-established judicial practice, the belated delivery
of a copy of a judgment was a valid ground for the restoration of a
missed time-limit. The applicant, however, failed to avail himself of
that possibility.
- The
applicant submitted that he had lodged an appeal within the
prescribed time-limit, namely on 31 December 2004, and he was
entitled to file new submissions with regard to that appeal in an
additional appeal. Such submissions could be filed at any point but
early enough to allow the court to study them. A copy of the Court of
Appeal's judgment of 27 December 2004 was not served on him
within three days as required by Article 412 § 1 of the CCP, but
was served in fourteen days, namely after the expiry of the
time-limit for appeal. Thus, he was forced to file another document
after the receipt of a copy of the above judgment, which was not a
separate appeal but rather additional submissions supplementing the
appeal of 31 December 2004. At no point did he claim that there was a
right under the Armenian criminal procedure law to lodge a
“supplementary” or an “additional” appeal as
such. The submissions filed on 12 January 2005 were an integral part
of the appeal of 31 December 2004 lodged within the prescribed
time-limit and the Court of Cassation should not have treated them as
a separate appeal. Thus, he had availed himself of his right to file
additional submissions as a supplement to his appeal, but these were
not examined by the Court of Cassation, in violation of Article 6 §
1.
2. The Court's assessment
- The
Court reiterates that the “right to a court”, of which
the right of access is one aspect, is not absolute; it is subject to
limitations permitted by implication, in particular where the
conditions of admissibility of an appeal are concerned, since by its
very nature it calls for regulation by the State, which enjoys a
certain margin of appreciation in this regard. However, these
limitations must not restrict or reduce a person's access in such a
way or to such an extent that the very essence of the right is
impaired; lastly, such limitations will not be compatible with
Article 6 § 1 if they do not pursue a legitimate aim or if there
is not a reasonable relationship of proportionality between the means
employed and the aim sought to be achieved (see Levages
Prestations Services v. France, 23 October 1996, § 40,
Reports of Judgments and Decisions 1996 V, and Brualla
Gómez de la Torre v. Spain, 19 December 1997, § 33,
Reports of Judgments and Decisions 1997 VIII). For the
right of access to be effective, an individual must have a clear and
practical opportunity to challenge an act that is an interference
with his rights (see Bellet v. France, 4 December 1995, §
36, Series A no. 333 B).
- The
Court further reiterates that it is in the first place for the
national authorities, and notably the courts, to interpret domestic
law and that the Court will not substitute its own interpretation for
theirs in the absence of arbitrariness. This applies in particular to
the courts' interpretation of rules of a procedural nature such as
time-limits governing the filing of documents or the lodging of
appeals (see, among other authorities, Tejedor García v.
Spain, 16 December 1997, § 31, Reports of Judgments and
Decisions 1997 VIII).
- The
rules on time-limits for the lodging of applications, appeals or
other pleadings are undoubtedly designed to ensure the proper
administration of justice and compliance with, in particular, the
principle of legal certainty. Those concerned must expect those rules
to be applied. However, the rules in question, or their application,
should not prevent litigants from making use of an available remedy
(see Pérez de Rada Cavanilles v. Spain, 28 October
1998, § 45, Reports of Judgments and Decisions
1998 VIII).
- Turning
to the circumstances of the present case, the Court notes that,
according to the Armenian criminal procedure law at the material
time, the applicant had ten days at his disposal to lodge an appeal
on points of law against the Court of Appeal's judgment of 27
December 2004. The applicant complied with that requirement by
lodging an appeal on points of law on 31 December 2004 without,
however, providing detailed arguments. Such arguments were filed
after the expiry of the ten-day time-limit, namely on 12 January
2005, and were not admitted by the Court of Cassation for
examination.
- The
Court considers at the outset that, while a time-limit of ten days
was not long, it cannot in itself be regarded as being so short as to
deprive the applicant of a real and effective opportunity to make use
of the appeal procedure. Indeed, short time-limits are a standard
feature of appeal systems throughout Contracting States (see Bačev
v. the Former Yugoslav Republic of Macedonia (dec.), no.
13299/02, 14 February 2006).
- The
Court further observes that the ten-day time-limit for lodging an
appeal on points of law started to run not from the date of service
of a copy of the Court of Appeal's judgment, but from the date of
pronouncement of that judgment. The Court does not find such a rule
in itself to be in violation of Article 6 § 1 either, provided
that it is accompanied by sufficient guarantees enabling the
appellants to enjoy effective access to the appeal instance,
including by affording them the opportunity to submit well-grounded
appeals. In this respect, the Court observes that Article 402 §
2 of the CCP required that a copy of the Court of Appeal's judgment
be served on the defendant not later than three days after the date
of its pronouncement. Furthermore, Article 174 of the CCP provided a
possibility to request a restoration of an appeal time-limit which
had been missed for valid reasons.
- The
Court observes, however, that the requirement of Article 402 § 2
of the CCP was not observed in the applicant's case. Moreover, not
only was a copy of the Court of Appeal's judgment of 27 December 2004
not served on the applicant within the required three days, but it
was served on him only after the expiry of the ten-day time-limit for
appeal. Thus, at no time during those ten days did the applicant have
at his disposal a copy of the above judgment to be able to lodge a
well-grounded appeal against it before the expiry of the statutory
time-limit. In such circumstances, the applicant cannot be blamed for
not setting out detailed arguments in his appeal lodged on 31
December 2004, and for doing so only following the expiry of the
statutory time-limit (see, mutatis mutandis, Hadjianastassiou
v. Greece, 16 December 1992, § 33, Series A no. 252).
- As
to the possibility of requesting a restoration of the missed
time-limit under Article 174 of the CCP, it is true that the
applicant did not file such a request. The Court observes, however,
that, as already indicated above, the applicant had complied with the
ten-day time-limit for appeal by lodging an appeal on 31 December
2004. Thus, the document filed with the Court of Cassation on 12
January 2005 was not an appeal as such, but rather additional
submissions as a supplement to his appeal of 31 December 2004. The
parties agreed that the possibility of filing additional submissions
indeed existed, although the Government insisted that such
submissions were to be filed also within the same statutory
time-limit.
- In
this respect, the Court notes, however, that the procedure for filing
additional submissions was not regulated in any way by law. There
were no clear rules or requirements as to the form in which such
submissions were to be filed or whether any time-limits applied to
the filing of such submissions. Article 174 of the CCP, on the other
hand, spoke specifically of the possibility of restoring a
“time-limit” which had been missed for valid reasons.
Thus, the applicant cannot be blamed for not making a request under
Article 174 of the CCP when filing such submissions. In any event,
even assuming that the time-limit for appeal was applicable to the
filing of additional submissions, the Court doubts that, in the
circumstances of the case, the applicant was required to file a
request under Article 174 of the CCP in view of the fact that the
sole reason for his out-of-time filing of additional submissions was
the failure of the authorities to serve on him a copy of the
contested judgment in due time.
- At
the same time, the Court notes that the applicant explicitly stated,
in his appeal of 31 December 2004, that he intended to file
additional arguments following the receipt of a copy of the Court of
Appeal's judgment. Furthermore, the document filed by the applicant
on 12 January 2005, even if entitled “appeal on
points of law”, clearly stated that it was a supplement to the
appeal of 31 December 2004. Moreover, in his supplement of 12 January
2005 the applicant indicated that a copy of the judgment had been
received by him only on 7 January 2005. It is true that there appears
to be a slight discrepancy between the date of receipt indicated by
the applicant in his supplement of 12 January 2005 and that indicated
on the post office certificate of 2 March 2005 (see paragraph 14
above). The Court, however, does not find this discrepancy to be
decisive since both dates fell outside the ten-day statutory
time-limit for appeal. The Court finally notes that, despite the
absence of any clear legal rules regulating the filing of additional
submissions, the applicant acted diligently by filing such
submissions without undue delay, more specifically, only a few days
after receipt of a copy of the Court of Appeal's judgment.
- The
Court of Cassation, however, ignored all the above circumstances and
with very brief reasoning refused to examine the applicant's
additional submissions of 12 January 2005. Thus, the scope of
examination before the Court of Cassation was limited, as required by
Article 415 § 1 of the CCP, only to the grounds raised by the
applicant in his appeal of 31 December 2004 (see, by contrast, Bačev,
cited above). That appeal, however, as already indicated above,
contained practically no legal arguments, for reasons not
attributable to the applicant.
- In
view of all the above circumstances, the Court considers that the
refusal by the Court of Cassation to examine the applicant's
additional submissions of 12 January 2005 placed a disproportionate
restriction on his effective access to that court.
- Accordingly,
there has been a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 3 (d) OF THE
CONVENTION
- The
applicant complained that he was not afforded the opportunity to
examine witness O., whose statements made during the investigation
were used as a basis for his conviction, at any stage of the
proceedings. He invoked Article 6 § 3 (d) of the Convention
which, in so far as relevant provides:
“3. Everyone charged with a criminal
offence has the following minimum rights:
...
(d) to examine or have examined witnesses
against him...”
Admissibility
1. The parties' submissions
- The
Government submitted that witness O. was not the only witness to the
accident to have given testimony implicating the applicant.
Furthermore, his statement was not in substantial contradiction with
the statements of other witnesses who had been examined by the
applicant during the court hearings. The statement of witness O. was
not the only evidence which was used by the courts to establish the
truth. The courts based their findings on the testimonies of two
other eyewitnesses, the examination of traces of blood and fragments
of the car's headlights found at the crime scene, which corresponded
to the testimony of other witnesses and even without this testimony
sufficed to analyse the mechanism of the accident and to make a legal
assessment. Thus, the statement of witness O. played no significant
role in proving the applicant's guilt and there was therefore no
violation of Article 6 § 3 (d).
- The
applicant submitted that each piece of evidence was used by the
courts to establish a particular fact. Thus, the statement of witness
O., according to which he was driving at a speed exceeding the speed
limit, namely 90-100 km per hour, was relied upon by the
auto-technical expert, and subsequently the courts, to reach the
conclusion that he had violated traffic rules. If not for the
statement of witness O., the courts would have reached a different
conclusion, namely that he had not violated traffic rules.
Consequently, there would have been no element of a crime in his
actions and he would have been acquitted. Thus, Article 6 § 3
(d) was breached by his inability to examine witness O.
2. The Court's assessment
- The
Court reiterates that the admissibility of evidence is primarily
governed by the rules of domestic law, and that, as a rule, it is for
the national courts to assess the evidence before them. The task of
the Court is to ascertain whether the proceedings in their entirety,
including the way in which evidence was taken, were fair (see Asch
v. Austria, 26 April 1991, § 26, Series A no. 203, and
Edwards v. the United Kingdom, 16 December 1992, §
34, Series A no. 247 B).
- All
evidence must normally be produced in the presence of the accused at
a public hearing with a view to adversarial argument. This does not
mean, however, that in order to be used as evidence statements of
witnesses should always be made at a public hearing in court: to use
as evidence such statements obtained at the pre-trial stage is not in
itself inconsistent with Article 6 §§ 1 and 3 (d), provided
the rights of the defence have been respected. As a rule, these
rights require that an accused should be given an adequate and proper
opportunity to challenge and question a witness against him, either
at the time the witness makes his statement or at some later stage of
the proceedings (see Delta v. France, 19 December 1990,
§ 36, Series A no. 191 A).
- Turning
to the circumstances of the present case, the Court notes that the
applicant's conviction for involuntary manslaughter resulting from a
violation of traffic rules was, inter alia, based on the
statement made by witness O. during the investigation. No
confrontation was held between the applicant and that witness, who
also did not appear in court, alleging that he feared retaliation.
Thus, at no stage of the proceedings was the applicant able to
examine that witness.
- Nevertheless,
the applicant's conviction cannot be said to have been based to a
decisive extent on the statement of witness O. (see Verdam v. the
Netherlands (dec.), no. 35253/97, 31 August 1999; and, by
contrast, Van Mechelen and Others v. the Netherlands, 23 April
1997, § 63, Reports of Judgments and Decisions 1997 III).
His conviction was based also on the statements of two other key
eyewitnesses, Z. and M., three other witnesses and two experts, and a
number of expert opinions and examinations (see paragraph 9 above).
Thus, the statement made by witness O. was corroborated by other,
equally weighty evidence in the case (see Artner v. Austria,
28 August 1992, § 22, Series A no. 242 A, and Doorson v.
the Netherlands, 26 March 1996, § 80, Reports of
Judgments and Decisions 1996 II).
- Furthermore,
contrary to the applicant's claims, the statement of witness O. was
not the only evidence which led the courts to conclude that the
applicant had violated traffic rules. In fact, the statement of
witness O. was not in substantial contradiction with the statements
made by two other eyewitnesses, since all three of them confirmed
that the applicant had been driving the car at a speed exceeding the
60 km per hour maximum speed limit allowed by law and the minor
discrepancy in their statements – 70-80 km per hour as
opposed to 90-100 km per hour – did not have any impact on the
findings reached by the domestic courts (see paragraphs 7 and 9
above).
- The
Court concludes that the fact that the applicant was unable to
examine witness O. did not, in the circumstances of the case,
infringe the rights of the defence to such an extent to constitute a
breach of Article 6 § 3 (d).
- It
follows that this part of the application is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 7
- The
Court notes that the applicant also invoked Article 2 of Protocol No.
7 in connection with the same facts, alleging that the
non-examination of his additional appeal of 12 January 2005 also gave
rise to a violation of that provision, which reads as follows:
Article 2 of Protocol No. 7
“1. Everyone convicted of a criminal
offence by a tribunal shall have the right to have his conviction or
sentence reviewed by a higher tribunal. The exercise of this right,
including the grounds on which it may be exercised, shall be governed
by law.
2. This right may be subject to exceptions in
regard to offences of a minor character, as prescribed by law, or in
cases in which the person concerned was tried in the first instance
by the highest tribunal or was convicted following an appeal against
acquittal.”
- The
Court considers, however, that this complaint results from the main
issues arising in the case under Article 6 § 1 of the
Convention. Having regard to its findings in respect of Article 6 §
1, it does not consider it necessary to examine separately the
admissibility and merits of this complaint.
IV. 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 30,000 euros (EUR) in respect of non-pecuniary
damage, because he was sentenced to two years' imprisonment.
- The
Government claimed that the applicant had failed to raise any
arguments or adduce evidence in support of his allegation that he had
suffered non-pecuniary damage. Even assuming that the applicant had
sustained any suffering, this was the result of his lawful
imprisonment since the charge against him was based on
incontrovertible evidence.
- The
Court considers that the applicant has undeniably sustained
non-pecuniary damage on account of the breach of the Convention found
in the present judgment. Ruling on an equitable basis, the Court
awards the applicant EUR 1,000 in respect of non-pecuniary damage.
B. Default interest
- The
Court considers it appropriate that the default interest 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 complaint concerning the
non-examination of the applicant's additional submissions of
12 January 2005 admissible and the complaint under Article
6 § 3 (d) of the Convention inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that it is not necessary to examine
separately the admissibility and merits of the complaint under
Article 2 of Protocol No. 7;
- 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 1,000 (one
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 16 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
