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THIRD
SECTION
CASE OF GABRIELYAN v. ARMENIA
(Application
no. 8088/05)
JUDGMENT
STRASBOURG
10
April 2012
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 Gabrielyan v.
Armenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis
López Guerra,
Kristina Pardalos, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 20 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 8088/05)
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 Artak Gabrielyan (“the applicant”),
on 3 February 2005.
2. The
applicant was represented by Mr M. Muller, Mr T. Otty, Mr K. Yildiz
and Ms L. Claridge, lawyers of the Kurdish Human Rights Project
(KHRP) based in London, and Mr T. Ter-Yesayan and Mr E. Babayan,
lawyers 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
10 September 2008 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 1938 and lives in Yerevan.
1. Background to the case
- In
February and March 2003 a presidential election was held in Armenia,
during which the applicant was involved as an authorised election
assistant (վստահված
անձ) for the candidate representing the
People’s Party of Armenia (PPA), who was the main opposition
candidate in the election. Following his defeat by the incumbent
President, the PPA candidate challenged the election results in the
Constitutional Court, which on 16 April 2003 recommended that a
referendum of confidence in the re-elected President be held in
Armenia within a year.
- As
the April 2004 one-year deadline approached, the opposition stepped
up its campaign to challenge the legitimacy of the re-elected
President. At the end of March 2004 two main opposition groups –
the Justice Alliance, consisting of nine parties, including the PPA
and the National Unity Party – announced their intention to
start a series of demonstrations demanding the resignation of the
re-elected President.
- The
applicant alleges that from February 2003 until his arrest in
April 2004 he was repeatedly harassed because of his political
activity. In particular, the police frequently called him to the
police station without any reasons and demanded that he stop his
political activities and support for the opposition.
- On
30 March 2004 criminal proceedings no. 62201704 were instituted under
Article 301 and 318 § 2 of the Criminal Code (CC) against
representatives of the Justice Alliance on account of making calls
for a violent overthrow of the government and change of the Armenian
constitutional order and of publicly insulting government
representatives.
2. The applicant’s arrest and prosecution
- On
8 April 2004 the applicant was handing out leaflets to people at a
marketplace in Yerevan, inciting them to attend a demonstration to be
held in the capital on 9 April 2004. The leaflets had the following
content:
“Fellow countrymen
It is not possible any more to continue this way.
On 9 April at 4 p.m. in Freedom Square we will start our
struggle which aims to establish a lawful government in Armenia. The
future of our homeland depends on the participation of each of us.
National Unity Party Justice Alliance”
- The
applicant was stopped by two police officers, G.D. and G.A., who
demanded that he accompany them to a police station. It appears that
this happened at around 1 p.m.
- According
to the applicant, they arrived at the police station at around 1.30
p.m. At the police station he was placed in a waiting room with a
glass wall next to the corridor, where he spent about ten hours.
During this period he noticed several people behind the glass wall
pointing at him as if to identify him. He had no access to a lawyer
during this period.
- It
appears that at some point the applicant was transferred to a
prosecutor’s office where from 8.55 to 9.05 p.m. and from 9.30
to 10.05 p.m. two confrontations were held between him and two
witnesses, M.M. and N.S., respectively, who worked at the
marketplace. The relevant records stated at the outset that there had
been substantial contradictions between the statements of these
witnesses and the applicant, who at this stage was also involved as a
witness.
- Witness
M.M. stated during the confrontation that earlier that day, at around
2 p.m., he had noticed the applicant handing out leaflets and
saying something to people at the marketplace. Then the applicant had
approached him and given him a leaflet, saying that “the day
after it would be the end of the government and the government would
be changed and that they would put an end to the government and sort
them out”.
- Witness
N.S. stated that the applicant had approached him at around 1 p.m.
and given him a leaflet, saying that he should “come to the
demonstration where they would crush and overcome”, after which
the applicant left.
- The
applicant denied having handed out any leaflets or made any such
statements.
- At
10.30 p.m. an arrest record was drawn up which noted that
eye-witnesses had stated that the applicant had handed out leaflets
and made calls for a violent overthrow of the government. The
applicant again denied these allegations.
- On
the same date the Kentron and Nork-Marash District Court of Yerevan
granted the investigator’s motion to have the applicant’s
flat searched. This decision stated that there were sufficient
grounds to believe that written calls, leaflets, plans and projects
to overthrow the government and change the constitutional order
violently and to insult representatives of the government publicly,
as well as firearms, ammunition and other objects and documents
relevant to the case, could be found in the applicant’s flat.
- On
9 April 2004 the investigator invited a legal aid lawyer, H.I., to
represent the applicant’s interests. According to the relevant
record, the applicant agreed that his interests be represented by
lawyer H.I.
- On
the same date from 10.30 to 11.10 a.m. the applicant’s flat was
searched in the presence of two attesting witnesses but no items were
found.
- From
1.05 to 2.25 p.m. the applicant was questioned as a suspect in the
presence of lawyer H.I. The applicant again denied all the
allegations.
- On
10 April 2004 the applicant was formally charged within the scope of
criminal proceedings no. 62201704 under Article 301 of the CC. This
decision stated:
“...[the applicant], having received from [the
district office] of the National Unity Party leaflets concerning the
demonstration to be held on 9 April 2004 at 4 p.m. on Freedom Square
with the aim of “establishing a lawful government in Armenia”,
distributed these leaflets to citizens and made calls to overthrow
the government and change the constitutional order violently.
On 8 April 2004 at around 1 p.m. [the applicant] was
caught by police officers while he was handing out the leaflets and a
total of 24 leaflets were confiscated from him.
Thus, [the applicant] has made calls to overthrow the
government and change the constitutional order violently, namely he
has committed an offence envisaged under Article 301 of the [CC].”
- The
applicant and his lawyer signed this decision which, inter alia,
stated that the nature of the charge had been explained to the
applicant. The applicant once again gave his consent to be
represented by lawyer H.I. He was then questioned as an accused in
the presence of his lawyer. The applicant submitted that the nature
of the charge was clear to him but denied having distributed leaflets
or made any calls at the marketplace.
- On
the same date the Kentron and Nork-Marash District Court of Yerevan
granted the investigator’s motion, dated 6 April 2004, to have
the applicant detained.
- On
21 April 2004 a confrontation was held between the applicant and
another witness, V.Z., who apparently also worked at the marketplace.
He identified the applicant as the person who had approached him on
8 April 2004, handed him a leaflet and told him to attend a
demonstration on the following day during which a struggle to change
the government would begin and that the authorities were unlawful and
had to be changed. The applicant again denied having distributed
leaflets or made any calls and submitted that witness V.Z. had been
forced by the police to make false submissions. This confrontation
was held in the presence of lawyer H.I.
- On
6 May 2004 another confrontation was held between the applicant and
arresting police officer G.D. who submitted that on 8 April 2004 at
around 12 noon, having noticed that the applicant was distributing
leaflets at the marketplace, they had approached him and asked to
have a look at the leaflets. Having read what the leaflets said, they
asked the applicant to come with them to the police station for
clarification. The applicant denied these allegations. This
confrontation was held in the presence of lawyer H.I.
- On
7 May 2004 another confrontation was held between the applicant and
the second arresting police officer, G.A., who made submissions
similar to those made by police officer G.D. The applicant submitted
in reply that police officer G.A.’s statement was true and that
he had not told the entire truth in his previous submissions. The
applicant admitted that he had distributed the leaflets at the
marketplace but denied having said anything or made any calls for a
violent overthrow of the government. He submitted that he regretted
his actions and requested to be released from detention. This
confrontation was held in the presence of lawyer H.I.
- On
the same day the applicant was again questioned as an accused in the
presence of lawyer H.I., during which he made similar submissions and
pleaded partly guilty.
- Later
that day lawyer H.I. filed a motion with the General Prosecutor’s
Office, seeking to have the applicant released from detention. He
submitted that the applicant was known to be of good character, had a
permanent place of residence, was a pensioner and would not abscond
or obstruct the proceedings if freed. Furthermore, he had no criminal
record, had pleaded guilty and regretted his actions.
- It
appears that on unspecified dates two other witnesses, O.V. and S.K.,
were also questioned in connection with the applicant’s case.
Witness O.V. stated that a tall person had been distributing leaflets
at the marketplace on 8 April 2004. When handing him a leaflet, he
said that a struggle aimed at establishing a lawful government in
Armenia would begin at the demonstration of 9 April 2004. He further
incited everybody to participate in the struggle, topple the
government and make a coup. Witness S.K. stated that a tall elderly
person had handed him a leaflet at the marketplace on 8 April 2004
and incited him to join the struggle, eliminate the current
government, topple them by force and establish a new order.
- The
applicant alleged, which the Government did not dispute, that
throughout the entire investigation his lawyer had never met or
spoken with him in private, while in detention, to provide legal
advice. Furthermore, the lawyer even failed to satisfy his request to
be provided with a copy of the Code of Criminal Procedure.
3. The court proceedings
- On
an unspecified date the applicant’s case was brought before the
Avan and Nor Nork District Court of Yerevan which started its
examination on 31 May 2004. The applicant submitted before the
District Court that he wished to be represented by lawyer H.I.
- The
examining judge noted at the outset that the witnesses had been duly
notified but had failed to appear and inquired about the opinion of
the parties. The prosecutor submitted that they had to be compelled
to appear. The lawyer made a similar submission on the ground that it
was impossible to examine the case without the witnesses. The judge
agreed and adjourned the hearing until 2 June 2004.
- At
the hearing of 2 June 2004 four witnesses appeared, witnesses N.S.
and M.M. and police officers G.D. and G.A..
- Witness
N.S. admitted that he was seeing the applicant for the second time,
the first time being on 8 April 2004 at the prosecutor’s
office. He further submitted that about a month before he was at work
at the marketplace when somebody had approached and given him a
leaflet, adding that “tomorrow at 1 p.m. there would be a
demonstration on Freedom Square”. The person handing out the
leaflets was tall and had grey hair. He gave the leaflet and said
“come at this hour, we will crush, shatter and conquer”.
Witness N.S. submitted that he had understood from these statements
that the demonstrators wanted to change the government. In reply to
the applicant’s lawyer’s questions, witness N.S.
submitted that he was not familiar with that person and he could not
say for sure if it was the applicant who had given the leaflet and
made the statements. He was sure though that he had seen the
applicant at the prosecutor’s office. Witness N.S. explained
that he had stated at the prosecutor’s office that he had not
seen who was distributing the leaflets, to which they replied that it
had been the applicant. In reply to the judge’s question as to
why he had stated unequivocally during the investigation that it was
the applicant who had distributed the leaflets and made the above
statements, witness N.S. submitted that he had said so because he had
been told at the prosecutor’s office that it was the applicant
who was distributing leaflets in the area of the marketplace. He
further submitted that he could not remember who it was, but people
around him said that it was the applicant, so he said the same.
- Witness
M.M. submitted that at some point in May he was at the marketplace
when the applicant, who was distributing leaflets, approached him and
invited him to a demonstration in order to “turn over”
the government. The applicant then left. Witness M.M. further
confirmed his pre-trial statement and asked to rely on it. He also
confirmed that the person distributing the leaflets, like the
applicant, had grey hair and a white shirt and was tall.
- Police
officer G.D. submitted that he was on duty at the marketplace with
police officer G.A. where they noticed a person who was handing out
leaflets. They approached him and brought to the police station,
where he was identified as the applicant. They could not hear what he
was saying to the vendors. In reply to the applicant’s lawyer’s
questions, police officer G.D. said that he personally did not hear
any calls from the applicant. Nor did any of the vendors tell him
that the applicant had made calls.
- Police
officer G.A. made similar submissions.
- The
examining judge then announced that he had received an official
letter from the police stating that witness S.K. had not been found
at his place of residence, that witness O.V. was absent from his
place of residence and lived elsewhere, and that the court’s
decision ordering the appearance of these witnesses, in its part
concerning witness V.Z., had not been executed for reasons not
communicated to the court. The prosecutor requested that the
pre-trial statements of these witnesses be read out. The applicant
and his lawyer consented, after which the statements were read out.
- The
applicant was then examined, during which he admitted that he had
distributed leaflets but denied having made any calls for a violent
overthrow of the government.
- Thereafter
the trial entered its final stage of pleadings. The prosecutor made a
speech, followed by the applicant’s lawyer and the applicant
himself. The lawyer, in particular, made the following speech: “I
find that the defendant must be acquitted”.
- On
the same date the District Court found the applicant guilty as
charged and imposed a one year suspended sentence, ordering at the
same time the applicant’s release from detention under a
written undertaking not to leave his place of residence. The District
Court found, in particular, that:
“On 8 April 2004 [the applicant] received leaflets
from the Avan and Nor Nork district office of National Unity Party
concerning a rally to be held on 9 April 2004 at 4 p.m. on Freedom
Square, distributed them to persons working and involved in trade in
the area of the seventh market situated in [Nork] and made public
calls inciting to a violent overthrow of the government and the
constitutional order. In particular, when handing out leaflets to
[N.S., M.M., V.Z., O.V. and S.K.], he incited them to participate in
the rally telling them ‘You must come by all means, we will
crush, overcome, put an end to the government and sort them out, we
will make a coup, we will violently overthrow the current government
and establish a new order’”
- In
support of its findings the District Court relied on the statements
of witnesses N.S., M.M., V.Z., O.V. and S.K. As regards, in
particular, the statements made by witness N.S. in court, the
District Court dismissed them as unreliable and admitted his
statements made during the confrontation of 8 April 2004. The
District Court justified this decision by the fact that the
statements made by witness N.S. during the confrontation had been
unequivocal. Thus, according to the entirety of the witness
statements relied on by the District Court, the applicant had made
the following calls while handing out the leaflets and inciting
people to attend the demonstration: “we will crush and
overcome” (witness N.S.), “the government will be changed
and we will put an end to the government and sort them out”
(witness M.M.), “a struggle will start at the demonstration
aimed at changing the government and establishing a lawful one”,
“the current government will be overthrown and a new one will
be established”, “the current government is unlawful and
has to be changed” (witness V.Z.), “the government has to
be overthrown and a coup has to be made” (witness O.V.) and
“the current government has to be eliminated and violently
overthrown and a new order has to be established” (witness
S.K.).
- On
14 June 2004 the applicant lodged an appeal, which he apparently
drafted himself. In his appeal the applicant submitted that during
the investigation he had pleaded guilty only to distributing
leaflets, which in any event was not an offence, but he had never
made any calls for a violent overthrow of the government. He was not
a member of any political party, had never participated in
demonstrations or had links with the parties organising them. The
applicant further complained about the fact that the statements made
by witnesses N.S. and M.M. in court, which were favourable for him,
had been considered unreliable, while other witnesses, being ashamed
of their false statements, had failed to appear in court. He argued
that the statements of those witnesses who had not been examined in
court should not have served as a basis for his conviction. The
applicant lastly stated that the arresting police officers had not
heard him make any calls. Thus, he had been convicted on the basis of
statements of two or three witnesses who had seen him for the first
time at the prosecutor’s office.
- On
29 June 2004 the proceedings commenced before the Criminal and
Military Court of Appeal. The applicant submitted before the Court of
Appeal that he wished to be represented by lawyer H.I. and pleaded
not guilty. Lawyer H.I. also claimed that the applicant was not
guilty and asked the court to acquit him.
- At
the hearing of 30 June 2004, following the applicant’s
examination, the presiding judge announced that it was necessary to
summon and examine witnesses O.V., V.Z. and S.K. He further stated
that he had telephoned all three witnesses on the previous day.
O.V.’s wife replied that about a month before he had gone to
Russia for work and his whereabouts were unknown. V.Z.’s wife
replied that he had gone to another region for work and that she had
no further information about him. S.K.’s relatives replied that
he had left Armenia for work. The Court of Appeal decided, taking
into account that the attendance of the above witnesses was
indispensable, that they be compelled to appear. This task was
assigned to the local police department. The hearing was adjourned
until 6 July 2004.
- At
the hearing of 6 July 2004 the presiding judge announced that,
according to the police, the witnesses were absent from their places
of residence. The police had promised to provide further information
in writing. In reply to the presiding judge’s question, the
parties did not object to proceeding with the hearing and requested
that measures be taken to ensure the attendance of the witnesses at
the next hearing.
- At
the hearing of 7 July 2004 the presiding judge informed the parties
that an official letter had been received from the police informing
that witnesses O.V., V.Z. and S.K. were absent from their places of
residence. While reading out that letter, the presiding judge noticed
that the police had visited the wrong address as far as witness V.Z.
was concerned. The prosecutor then requested that their statements be
read out. Lawyer H.I. submitted that the witnesses in question had
made defamatory statements against the applicant during the
investigation which lacked credibility and it was therefore necessary
to bring them to court with the help of the police. The applicant
joined his lawyer’s request and asked that the witnesses in
question appear in court and also present their identity documents.
The Court of Appeal decided that, since a wrong address had been
indicated in the decision ordering V.Z.’s appearance in court,
it was necessary to inform the police of the correct address. As
regards witnesses O.V. and S.K., the former was in Russia, while the
latter was out of town. This was also confirmed by the telephone
calls made by the presiding judge. The Court of Appeal found that, in
such circumstances, there were no reasons to doubt the veracity of
the police information and announced that it would read out and
examine the pre-trial statements of those witnesses. The statements
would then be analysed in the deliberation room and an assessment
would be made as to their credibility, since the evidence examined in
court was sufficient to allow such an assessment. The Court of Appeal
then proceeded to read out the statements in question. The applicant
submitted that their statements did not concern him since there had
been many tall, grey-haired men at the marketplace. The investigating
authority had never arranged his identification by those witnesses
and their statements were therefore false.
- At
the hearing of 12 July 2004 the presiding judge announced that an
official letter had been received from the police, according to which
witness V.Z. indeed resided at the correct address but nobody
answered the door during their visit. The presiding judge announced
that, not being satisfied by the information contained in the police
letter, he personally called V.Z.’s home and became convinced
that nobody was there because nobody answered the telephone. The
prosecutor requested that the statement of witness V.Z. be read out
in court, while both the applicant and his lawyer submitted that the
statement of witness V.Z. lacked credibility and requested that it be
disregarded. The court then proceeded to read out the statement.
- At
the same hearing the applicant filed a motion with the Court of
Appeal dispensing with the services of lawyer H.I. He submitted that
the lawyer had not taken any steps to defend his interests and to
prove his innocence. The lawyer had never come to visit him in
detention despite the requests he had made to the administration of
the detention facility. Furthermore the lawyer, without his
knowledge, had filed a motion on 7 May 2004 seeking his release,
in which the lawyer stated that he had pleaded guilty despite the
fact that he had never pleaded fully guilty, thereby acting to his
detriment and assisting the prosecution in substantiating the charge
against him. The applicant claimed that he had found out about this
motion only during the appeal proceedings. He further claimed in his
motion that he had pleaded guilty to distributing leaflets because he
was not aware that such act did not constitute an offence. He
realised this only following his release from detention because no
copy of the Criminal Code had been provided to him by either the
investigator or his lawyer while in detention, despite his numerous
requests. The applicant lastly claimed that the case against him had
been fabricated. He submitted that, while sitting behind a glass wall
at the police station, he was shown to some people who later became
witnesses and made false statements against him. Some of them he was
not able to examine and only two of them appeared in court. One of
those two retracted his pre-trial statement, while the second one,
because of giving a false statement, was even ashamed to look him in
the eyes and was only able to mumble a confirmation of his pre trial
statement.
- The
applicant stated at the same time that it was his personal choice to
dispense with the services of his lawyer. The Court of Appeal decided
to grant the applicant’s motion and to allow him to defend
himself in person. The lawyer was then asked to leave the courtroom.
- On
the same date the Criminal and Military Court of Appeal adopted its
judgment upholding the applicant’s conviction. In doing so, the
Court of Appeal referred to the statements of witnesses N.S., M.M.,
O.V. and S.K. and of police officers G.D. and G.A. As regards the
statement of witness V.Z., the Court of Appeal found that it should
not have formed a basis for the applicant’s conviction because
that witness had failed to appear in court despite a court order. The
Court of Appeal further rejected the applicant’s claim that he
had only distributed leaflets but not made any calls for a violent
overthrow of the government. In doing so, the Court of Appeal stated
that five witnesses had testified that the applicant had made such
calls. Furthermore, the police officers had arrested him while he was
handing out the leaflets. In the light of the overall sufficiency of
evidence, the fact that witnesses O.V. and S.K. had failed to appear
in court could not put into doubt the applicant’s involvement
in the act and his guilt. The criminal element in his actions lay in
the making of calls inciting violent seizure of power and change of
the constitutional order. Those calls were public and aimed at a big
group of people. Since he made such calls at a marketplace during the
daytime, they were audible to the public. The fact that they were
perceived as calls inciting to a violent overthrow of the government
was confirmed by the witness statements.
- The
Court of Appeal further dismissed the applicant’s complaint
about lawyer H.I., stating that the applicant’s right to
defence had been ensured by the investigating authority, he had
chosen his position regarding the charge against him without any
outside pressure and he had not previously made any complaints about
the lawyer. Furthermore, the fact that the nature of the charge was
clear to the applicant was evident from the records of investigative
measures. He had certified this with his signature in the presence of
his lawyer.
- On
14 July 2004 the applicant lodged an appeal on points of law in which
he raised arguments concerning the witnesses against him and the
alleged failure of lawyer H.I. to provide effective legal assistance,
similar to those raised in his complaint of 12 July 2004. He also
added that the witness statements against him had been fabricated
under police pressure. The witnesses in question were people trying
to make a living by working at the market, so if they had refused to
follow police orders they would have been immediately expelled from
the market.
- On
6 August 2004 the Court of Cassation dismissed the applicant’s
appeal. In doing so, the Court of Cassation found that both witnesses
M.M. and N.S. had made statements implicating the applicant. As
regards the legal representation, the applicant had agreed that
lawyer H.I. defend his interests and the lawyer had properly done so.
- By
a letter of 11 November 2004 the head of staff of the Armenian Bar
Association informed the applicant, in reply to his complaint, that
lawyer H.I. had lawfully carried out the applicant’s defence
and had not done anything illegal. The motion of 7 May 2004 had been
filed upon the applicant’s and his relatives’ request.
II. RELEVANT DOMESTIC LAW
A. The Criminal Code (in force from 1 August 2003)
- The
relevant provisions of the CC provide:
Article 301: Public calls inciting to a violent
change of the constitutional order of Armenia
“Public calls inciting to a violent seizure of
State power and violent change of the constitutional order of Armenia
shall be punishable by a fine of between 300 and 500 times the
minimum wage or by detention of between two and three months or by
imprisonment for a period not exceeding three years.”
B. The Code of Criminal Procedure (in force from 12
January 1999)
- The
relevant provisions of the Code of Criminal Procedure provide:
Article 62: A suspect
“1. A suspect is the person ... who has
been arrested on suspicion of having committed an offence...”
Article 63: Rights and obligations of a suspect
“1. The suspect has the right to
defence. The investigating authority shall allow the suspect to
implement his right to defence by all lawful means.
2. The suspect, in accordance with a
procedure prescribed by this Code, has the right ... to have a
defence counsel or to dispense with a defence counsel and defend
himself in person from the moment when he is presented with the
investigating authority’s decision on arrest, the record of
arrest or the decision on choosing a preventive measure...”
Article 86: A witness
“3. A witness is obliged ... to appear
upon the summons of the authority dealing with the case in order to
give testimonies or to participate in investigative and other
procedural measures...
4. The failure of a witness to comply with
his obligations shall lead to sanctions prescribed by law.”
Article 153: Compulsion to appear
“1. [A] witness ... may be compelled to
appear by a reasoned decision of ... the court if he fails to appear
upon summons without valid reasons. [A] witness ... is obliged to
inform the summoning authority if there are valid reasons preventing
his appearance within the time-limit fixed in the summons.”
Article 216: Confrontation
“1. The investigator is entitled to
carry out a confrontation of two persons who have been questioned
previously and whose statements contain substantial contradictions.
The investigator is obliged to carry out a confrontation if there are
substantial contradictions between the statements of the accused and
some other person.
...
5. In cases envisaged by this Code, a defence
counsel, an interpreter and the lawful representative of the person
being questioned can participate in the confrontation and shall also
sign the record.”
Article 332: Deciding on the possibility of examining
the case in the absence of a witness, expert or specialist who has
failed to appear
“1. If any of the witnesses ...
summoned to court has failed to appear, the court, having heard the
opinions of the parties, shall decide on continuing or adjourning the
proceedings. The proceedings may be continued if the failure to
appear of any of such persons shall not obstruct the thorough,
complete 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 inquiry, 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 426.1: The court reviewing judicial acts on
the ground of newly discovered or new circumstances
“1. Only final acts are subject to
review on the ground of newly discovered or new circumstances.
2. On the ground of newly discovered or new
circumstances a judicial act of the court of first instance shall be
review by the appeal court, while the judicial acts of the appeal
court and the Court of Cassation shall be reviewed by the Court of
Cassation.”
Article 426.4: Grounds and time-limits for review on
the ground of new circumstances
“1. Judicial acts may be reviewed on
the ground of new circumstances [if] ... a violation of a right
guaranteed by an international convention to which
Armenia is a party has been found
by a final judgment or decision of an international court...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that his State-appointed lawyer had failed to
provide effective legal assistance, including by failing ever to meet
with him in private. He further complained that he had been unable to
cross examine witnesses. He relied on Article 6 § 3 (b),
(c) and (d) of the Convention.
- The
Court considers that the applicant’s complaints fall to be
examined under sub-paragraphs (c) and (d) of Article 6 § 3. It
further reiterates that the requirements of Article 6 § 3 are to
be seen as particular aspects of the right to a fair trial guaranteed
by Article 6 § 1. The Court will therefore examine the relevant
complaints under both provisions taken together (see, among other
authorities, F.C.B. v. Italy, 28 August 1991, § 29,
Series A no. 208 B, and Poitrimol v. France, 23 November
1993, § 29, Series A no. 277 A) which, in so far as
relevant, provide:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...”
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him[.]”
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Article 6 § 3 (c) taken together with Article 6
§ 1
(a) The parties’ submissions
(i) The applicant
- The
applicant submitted that the legal aid lawyer, H.I., had failed to
provide effective legal assistance. He never met or spoke with his
lawyer in private and never received any legal advice, which resulted
in his pleading partially guilty. The lawyer even failed to provide a
copy of the Code of Criminal Procedure, despite his request.
Furthermore, the lawyer filed a motion with a court, namely that of 7
May 2004, in which he admitted the applicant’s guilt. The
applicant submitted that he had dispensed with the services of the
lawyer after he found out about this motion. He lastly submitted that
the lawyer had failed to examine the witnesses who gave oral
evidence.
(ii) The Government
- The
Government submitted that the applicant had been granted free legal
assistance from the day of his initial interview on 9 April 2004 and
all the investigative measures, including interviews, confrontations
with witnesses, etc., were carried out in the lawyer’s
presence. The applicant had given his consent to be represented by
the lawyer in question, which he once again confirmed on 10 April
2004. There was no evidence that, during either the investigation or
the proceedings at two judicial instances, he was unsatisfied with
his lawyer. He had never made any statements or complaints about the
lawyer’s behaviour. If the applicant was unsatisfied with his
lawyer, he could have dispensed with his services at any time.
- The
Government further submitted that the motion of 7 May 2004 did not
concern the determination of the charge against the applicant but
only the annulment of his detention, which was moreover rejected by
the investigator. It could not therefore affect the determination of
the charge or the effectiveness of the defence of the applicant’s
rights. Nor did it play any role at any stage of the proceedings.
Moreover, the lawyer pleaded not guilty on behalf of the applicant
before the Court of Appeal.
(b) The Court’s assessment
- The Court reiterates that, although not absolute, the
right of everyone charged with a criminal offence to be effectively
defended by a lawyer, assigned officially if need be, is one of the
fundamental features of a fair trial (see Krombach v. France,
no. 29731/96, § 89, ECHR 2001-II). While Article 6 § 3 (c)
confers on everyone charged with a criminal offence the right to
“defend himself in person or through legal assistance ...”,
it does not specify the manner of exercising this right. It thus
leaves to the Contracting States the choice of the means of ensuring
that it is secured in their judicial systems, the Court’s task
being only to ascertain whether the method they have chosen is
consistent with the requirements of a fair trial (see Sakhnovskiy
v. Russia [GC], no. 21272/03, § 95, 2
November 2010).
- In
that connection it must be borne in mind that the Convention is
intended to guarantee not rights that are theoretical or illusory but
rights that are practical and effective; this is particularly so of
the rights of the defence in view of the prominent place held in a
democratic society by the right to a fair trial, from which they
derive (see Airey v. Ireland, 9 October 1979, § 24,
Series A no. 32). The Court observes that Article 6 § 3 (c) of
the Convention speaks of “assistance” and not of
“nomination”. The mere nomination of a lawyer does not
ensure effective assistance since the lawyer appointed for legal aid
purposes may die, fall seriously ill, be prevented for a protracted
period from acting or shirk his duties. If they are notified of the
situation, the authorities must either replace him or cause him to
fulfil his obligations (see Artico v. Italy, judgment of 13
May 1980, Series A no. 37, § 33).
- In
the present case, the Court notes that on the next day following the
applicant’s arrest a legal aid lawyer, H.I., was invited to
represent his interests (see paragraph 18 above). It appears that the
lawyer was present during all the subsequent investigative measures
involving the applicant, such as interviews (see paragraphs 20 and 27
above), presentation of the charge (see paragraphs 21-22 above) and
confrontations (see paragraphs 24 26 above). However, the mere
presence of a lawyer is not sufficient to satisfy the requirements of
Article 6 § 3 (c). The Court notes with concern that, while
being present at the above investigative measures, the lawyer,
nevertheless, appears to have shown absolute passivity. He does not
appear to have had any involvement whatsoever in the applicant’s
interviews other than signing the relevant records and failed to pose
any questions to the witnesses against the applicant during the
confrontations. Furthermore, nothing suggests that the lawyer ever
met with the applicant to discuss his case and to provide legal
advice. The Court lastly cannot ignore the lawyer’s final
speech made before the District Court which was devoid of any factual
or legal arguments (see paragraph 40 above), as well as the fact that
the lawyer appears not to have had any involvement in the drafting of
the applicant’s appeal against the judgment of the District
Court (see paragraph 43 above).
- However,
despite the foregoing, the Court cannot overlook the fact that the
applicant never raised any complaints or tried to bring any of the
above-mentioned to the attention of the authorities in any other
possible way throughout the entire investigation and proceedings
before the District Court, as well as almost the entire proceedings
before the Court of Appeal. Not only did the applicant explicitly
give his consent to be represented by lawyer H.I. in all the
above-mentioned instances (see paragraphs 18, 22, 31 and 44 above),
but he never showed any signs of dissatisfaction with his lawyer
until the final hearing before the Court of Appeal (see paragraph 49
above). The applicant’s appeal against his conviction by the
District Court was also absolutely silent on this point (see
paragraph 43 above). He did finally raise this issue, as mentioned
above, at the last hearing before the Court of Appeal and in his
appeal to the Court of Cassation (see paragraphs 49 and 53
above). However, as admitted by the applicant himself, this was
mostly motivated by his allegedly belated discovery of the lawyer’s
motion of 7 May 2004, which, according to the applicant, contained
submissions detrimental to his case (see paragraph 26 above), and not
by any other failures or omissions
committed by the lawyer. Thus, such protracted silence on the
applicant’s part and the main reason for his belated complaint
may cast doubt on the credibility of some of his allegations. In any
event, even assuming that the entirety of the applicant’s
allegations are true, it was still incumbent on him to bring the
lawyer’s failures to the attention of the authorities, who
cannot be blamed for such failures if they were not informed of them
in a timely and proper manner.
- Furthermore,
despite the lawyer’s apparently passive behaviour throughout
the investigation he did, nevertheless, file a motion on 7 May 2004
on the applicant’s behalf seeking his release (see paragraph 26
above). The Court does not share the applicant’s view that the
lawyer deliberately acted to his detriment by stating in that motion
that the applicant had pleaded guilty, since it is clear that the
lawyer’s intention was to secure the applicant’s release
from detention. Moreover, the lawyer did pose questions to some of
the witnesses during the proceedings before the District Court and it
can be construed from the answers received that the questions were
pertinent, competent and of help to the applicant’s case (see
paragraphs 34 and 36 above). He also insisted on several occasions
before the Court of Appeal that measures be taken to ensure the
attendance of the witnesses who had failed to appear, alleging that
their statements were defamatory and lacked credibility (see
paragraphs and 46-48 above).
- In
view of the above, there are not sufficient elements in the present
case to conclude that the State-appointed lawyer manifestly failed to
provide effective legal assistance or, even assuming that he did,
that the authorities can be held liable for that failure in the
particular circumstances of the case.
- Accordingly,
there has been no violation of Article 6 § 3 (c) taken together
with Article 6 § 1 of the Convention.
2. Article 6 § 3 (d) taken together with Article 6
§ 1
(a) The parties’ submissions
(i) The applicant
- The
applicant submitted that he was unable to examine properly any of the
witnesses, while witnesses V.Z., O.V. and S.K. were not examined at
all. It was important for him to examine those witnesses because the
first instance court relied on that evidence when convicting him,
while the statements of the remaining witnesses were contradictory
and unclear and not determinative of the charge against him.
- In
particular, since the distribution of leaflets was not considered an
offence, the real issue of fact was whether the applicant had made
calls inciting to a violent overthrow of the government. The only
evidence before the courts which alleged that the applicant had made
such calls was that provided by witnesses V.Z., O.V. and S.K. who had
failed to appear in court and witness N.S. who had made contradictory
statements. The latter witness had failed to identify properly the
applicant and, even though he admitted in court that he had
identified the applicant only because he had been told so by the
prosecutor’s office, the first instance court nevertheless
preferred witness N.S.’s pre-trial statement. As to the
remaining witnesses, witness M.M. identified the applicant as the
person distributing leaflets, while the arresting police officers,
G.A. and G.D., did not hear what the applicant had said while
distributing the leaflets.
- The
applicant objected to the Government’s allegation that it had
been impossible to find and secure the attendance of witnesses V.Z.,
O.V. and S.K. and denied having consented to the reading out of their
statements. Furthermore, the Court of Appeal must have been
influenced by the statements of witnesses V.Z., O.V. and S.K. because
theirs was the only evidence which suggested that he had called for a
violent overthrow of the government. Moreover, the Court of Appeal,
relying on those statements, reached a finding of consistency of
evidence as a ground for dismissing his appeal.
(ii) The Government
- The
Government claimed that the applicant had had the opportunity to
examine witnesses both during the investigation and the court
proceedings. He was not able to challenge the statements of witnesses
V.Z., O.V. and S.K. because, despite the efforts of the authorities,
it was impossible to find and bring them to court. For this reason
the District Court decided to read out their statements and both the
applicant and his lawyer consented to this. Furthermore, these were
not the only witnesses in the applicant’s case and their
statements were identical to the statements of other witnesses whom
the applicant had the opportunity to examine. Thus, their statements
did not play a decisive role in securing the applicant’s guilt.
Moreover, the Court of Appeal did not rely on the statements of
witnesses V.Z., O.V. and S.K., finding that they should not form a
basis for the applicant’s conviction because these witnesses
had failed to appear in court despite a court order. The Government
lastly submitted that the domestic courts were better placed to judge
whether there were any contradictions in the witness evidence.
(b) The Court’s assessment
- The
Court reiterates that the admissibility of evidence is primarily a
matter for regulation by national law and, as a general rule, it is
for the national courts to assess the evidence before them. The
Court’s task under the Convention is not to give a ruling as to
whether statements of witnesses were properly admitted as evidence,
but rather to ascertain whether the proceedings as a whole, including
the way in which evidence was taken, were fair (see, among other
authorities, Doorson v. the Netherlands, 26 March 1996, §
67, Reports of Judgments and Decisions 1996 II).
- Article
6 § 3 (d) of the Convention enshrines the principle that, before
an accused can be convicted, all evidence against him must normally
be produced in his presence at a public hearing with a view to
adversarial argument. Exceptions to this principle are possible but
must not infringe the rights of the defence, which, as a rule,
require that the accused should be given an adequate and proper
opportunity to challenge and question a witness against him, either
when that witness makes his statement or at a later stage of
proceedings (see Delta v. France, 19 December 1990, § 36,
Series A no. 191 A; Van Mechelen and Others v. the
Netherlands, 23 April 1997, § 51, Reports of Judgments
and Decisions 1997 III; and Lucà v. Italy, no.
33354/96, § 39, ECHR 2001 II).
- There
are two requirements which follow from the above general principle.
First, there must be a good reason for the non-attendance of a
witness. Second, when a conviction is based solely or to a decisive
degree on depositions that have been made by a person whom the
accused has had no opportunity to examine or to have examined,
whether during the investigation or at the trial, the rights of the
defence may be restricted to an extent that is incompatible with the
guarantees provided by Article 6 (see Al-Khawaja and Tahery v.
the United Kingdom [GC], nos. 26766/05 and 22228/06,
§ 119, 15 December 2011).
- The
requirement that there be a good reason for admitting the evidence of
an absent witness is a preliminary question which must be examined
before any consideration is given as to whether that evidence was
sole or decisive. Even where the evidence of an absent witness has
not been sole or decisive, the Court has still found a violation of
Article 6 §§ 1 and 3 (d) when no good reason has
been shown for the failure to have the witness examined. This is
because as a general rule witnesses should give evidence during the
trial and that all reasonable efforts will be made to secure their
attendance. Thus, when witnesses do not attend to give live evidence,
there is a duty to enquire whether that absence is justified (ibid.,
§ 120).
- In
the present case, the Court notes that the applicant was found guilty
of making calls inciting to a violent overthrow of the government.
These calls amounted to various statements he allegedly addressed to
a number of individuals at a marketplace while handing out leaflets
inviting them to attend a demonstration. These individuals, namely
N.S., M.M., V.Z., O.V. and S.K., acted as witnesses in the
applicant’s criminal case. Even though the two arresting police
officers, G.A. and G.D., also made statements which were taken into
account by the domestic courts, their statements appear to have
served solely as circumstantial evidence, since neither of the police
officers claimed to have heard the statements made by the applicant
at the marketplace. Thus, the entire criminal case against the
applicant was based on the statements of the above-mentioned five
witnesses.
- The
Government alleged that only two of those witness statements, namely
those made by N.S. and M.M., were actually relied on when convicting
the applicant, since the Criminal and Military Court of Appeal
refused to admit statements of witnesses V.Z., O.V. and S.K. as
evidence. This allegation, however, contradicts the materials of the
case. While the statement of witness V.Z. indeed appears to have been
excluded as evidence by the Court of Appeal, the same cannot be said
of the statements of witnesses O.V. and S.K. On the contrary, the
Court of Appeal explicitly referred to that evidence when
substantiating the applicant’s guilt (see paragraph 51 above).
Thus, the applicant’s conviction was based, inter alia,
on the statements of witnesses O.V. and S.K. The applicant, however,
was not given the opportunity to examine the witnesses or have them
examined either during the pre-trial proceedings or in court. No
judicial authority ever heard those witnesses either.
- The
Court observes that the reason for non-attendance of witnesses O.V.
and S.K. was their alleged absence from Armenia. However, it is not
convinced that, in the particular circumstances of the case, this
could be considered a good reason justifying the failure to have
these witnesses examined and for admitting their evidence. Notably,
the fact that a witness is absent from the country where the
proceedings are conducted is in itself not sufficient to satisfy the
requirements of Article 6 § 3 (d), which requires the
Contracting States to take positive steps to enable the accused to
examine or have examined witnesses against him (see Sadak and
Others v. Turkey, nos. 29900/96, 29901/96, 29902/96 and
29903/96, § 67, ECHR 2001 VIII). Such measures form part of
the diligence which the Contracting States must exercise in order to
ensure that the rights guaranteed by Article 6 are enjoyed in an
effective manner (see Colozza v. Italy, 12 February 1985,
§ 28, Series A no. 89).
- The
Court is ready to accept that the domestic courts made certain
efforts to inquire about the reasons for the absence of witnesses
O.V. and S.K. and to secure their attendance. The District Court
appears to have resorted to the help of the police following their
failure to appear (see paragraphs 32 and 38 above), while the Court
of Appeal decided to compel them to appear, adjourning the hearings
of 30 June and 6 July 2004 and ordering the police to ensure their
attendance at the next hearing (see paragraphs 45 and 46 above).
However, it is not clear what efforts were made by the police to
locate those witnesses other than finding out that they were absent
from their permanent places of residence. There is no evidence
suggesting that the police ever attempted to find out their new
addresses or to inquire about the details of their absence, including
whether it was permanent or temporary and whether O.V. and S.K.
intended to return or to visit home in the foreseeable future. In
spite of such lack of any inquiries, the District Court proceeded to
read out their statements (see paragraph 38 above).
- It
is true that the presiding judge of the Court of Appeal appears to
have personally tried to contact O.V. and S.K., as a result of which
it was disclosed that the former had left for Russia and the latter
had left Armenia (see paragraph 45 above). However, similarly to the
police, he made no further efforts to establish their whereabouts.
The reply of O.V.’s wife that she was unaware of O.V.’s
whereabouts was accepted without any further inquiries and no
attempts were made to establish his location by resorting to
international legal assistance mechanisms if that was indeed the
case. As regards witness S.K., the presiding judge does not appear to
have even inquired about his new whereabouts. No time was allowed or
instructions made to carry out any further inquiries and the Court of
Appeal proceeded hastily to read out the witness statements at the
next hearing of 7 July 2004 (see paragraph 47 above). Moreover, the
Court of Appeal did so despite the fact that it had earlier found the
attendance of the witnesses in question “indispensable”
(see paragraph 45 above).
- The
Court therefore concludes that the efforts made by the authorities
cannot be said to have been sufficient in the circumstances of the
case (see, in this respect, Artner v. Austria, 28 August 1992,
§ 21, Series A no. 242 A, where the Austrian police were
instructed by the trial court to make every effort to find a missing
witness; Berisha v. the Netherlands (dec.), no. 42965/98, 4
May 2000, where the Dutch authorities tried to call a witness
residing in the Slovak Republic through the Slovak authorities; and
Haas v. Germany (dec.), no. 73047/01, 17 November 2005, where
the German authorities made considerable efforts to secure the
attendance of a witness serving a prison sentence in Lebanon). Thus,
it cannot be said that there were good reasons for the failure to
have witnesses O.V. and S.K. examined or that the domestic
authorities complied with their duty to inquire whether their absence
was justified.
- It
is true that the applicant appears to have consented before the
District Court to the pre-trial statements of witnesses O.V. and S.K.
being read out (see paragraph 38 above). This, however, is not
sufficient for the Court to conclude that he thereby waived his right
to examine the witnesses. The Court reiterates that waiver of the
exercise of a right guaranteed by the Convention – in so far as
such waiver is permitted in domestic law – must be established
in an unequivocal manner (see Colozza, cited above, §
28). The Court notes that the applicant complained both before the
Criminal and Military Court of Appeal and before the Court of
Cassation that he had been unable to examine witnesses O.V. and S.K.
(see paragraph 43 and 53 above). He further explicitly requested
before the Court of Appeal that these witnesses appear in court,
alleging that their statements lacked credibility (see paragraph 47
above). The fact that the Court of Appeal made attempts, albeit
unsuccessful, to ensure their appearance similarly suggests that the
applicant was not considered to have waived his right to examine them
(see paragraphs 45-48 above).
- The
foregoing considerations are sufficient to enable the Court to
conclude that the applicant was unreasonably restricted in his right
to examine witnesses whose testimony played a decisive role in
securing his conviction. He was unable to subject their credibility
to scrutiny or cast any doubt on their depositions. This is
particularly worrying taking into account that the witnesses in
question were not personally acquainted with the applicant and were
never even asked to identify him at any stage of the proceedings.
- Accordingly,
there has been a violation of Article 6 § 3 (d) taken together
with Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained about a violation of his right to freedom of
expression. He relied on Article 10 of the Convention which, in so
far as relevant, provides:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
A. Admissibility
1. The parties’ submissions
(a) The Government
- The
Government submitted that the applicant had failed to exhaust the
domestic remedies since he did not raise the question of an alleged
violation of his Article 10 rights at the domestic level. He simply
denied the facts on which the charge against him was based, namely
that he had made public calls inciting to a violent overthrow of the
government, and this was not sufficient for exhaustion purposes.
Furthermore, no issue of a violation of freedom of expression could
arise if, as the applicant claimed, no expression as such was made.
(b) The applicant
- The
applicant submitted that his denial of the facts on which the charge
was based was sufficient for exhaustion purposes. Firstly, the court
proceedings were just one activity of many by the State aimed at
violating his freedom of expression, others being systematic
harassment by the police and the search conducted at his house. The
criminal charge against him was designed to prevent him from
continuing his political activity. Secondly, he indeed denied making
any public calls inciting to a violent overthrow of the government
but this denial was immaterial since he was in any event convicted.
He was thus deprived of an adequate remedy.
- The
applicant argued, in the alternative, that his conviction was based
on facts to which he admitted, namely the distribution of leaflets.
He appealed against this conviction and thereby exhausted the
domestic remedies.
2. The Court’s assessment
- The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges those
seeking to bring a case against the State before an international
judicial body to use first the remedies provided by the national
legal system, thus dispensing States from answering before an
international body for their acts before they have had an opportunity
to put matters right through their own legal systems. In order to
comply with the rule, normal recourse should be had by an applicant
to remedies which are available and sufficient to afford redress in
respect of the breaches alleged (see, among other authorities,
Assenov and Others v. Bulgaria no. 24760/94, § 85, ECHR
1999-VIII).
- While in the context of machinery for the protection
of human rights the rule of exhaustion of domestic remedies must be
applied with some degree of flexibility and without excessive
formalism, it does not require merely that applications should be
made to the appropriate domestic courts and that use should be made
of remedies designed to challenge impugned decisions which allegedly
violate a Convention right. It normally requires also that the
complaints intended to be made subsequently at the international
level should have been aired before those same courts, at
least in substance and in compliance with the formal requirements and
time limits laid down in domestic law (see, among other
authorities, Azinas v. Cyprus [GC], no. 56679/00, §
38, ECHR 2004 III).
- The object of the rule on exhaustion of domestic
remedies is to allow the national authorities (primarily the judicial
authorities) to address the allegation made of violation of a
Convention right and, where appropriate, to afford redress before
that allegation is submitted to the Court. In so far as there exists
at national level a remedy enabling the national courts to address,
at least in substance, the argument of violation of the Convention
right, it is that remedy which should be used. If the complaint
presented before the Court has not been put, either explicitly or in
substance, to the national courts when it could have been raised in
the exercise of a remedy available to the applicant, the national
legal order has been denied the opportunity to address the Convention
issue which the rule on exhaustion of domestic remedies is intended
to give it. It is not sufficient that the applicant may have,
unsuccessfully, exercised another remedy which could have overturned
the impugned measure on other grounds not connected with the
complaint of violation of a Convention right. It is the Convention
complaint which must have been aired at national level for there to
have been exhaustion of “effective remedies”. It would be
contrary to the subsidiary character of the Convention machinery if
an applicant, ignoring a possible Convention argument, could rely on
some other ground before the national authorities for challenging an
impugned measure, but then lodge an application before the Court on
the basis of the Convention argument (ibid.).
- Turning
to the circumstances of the present case, the Court notes once again
that the applicant was charged and convicted of making public calls
inciting a violent overthrow of the government. The applicant never
claimed before any domestic judicial authority that his charge and
conviction on that ground violated his right to freedom of expression
(see paragraphs 39, 43 and 53 above). Moreover, he did not even make
such claims in the alternative but solely alleged before all the
instances that he had never made the calls in question. As regards
the distribution of leaflets, the Court does not agree with the
applicant that this act in itself formed a basis for his conviction.
Moreover, by making this assertion the applicant contradicted his own
submissions under Article 6 § 3 (d) (see paragraph 72 above). In
any event, even assuming that distribution of leaflets formed a basis
for the applicant’s conviction, the applicant still did not
allege before the domestic courts a violation of his right to freedom
of expression on that ground either. Thus, the applicant failed to
raise in substance before the domestic courts his Convention
complaint which he submitted to the Court.
- It
follows that the applicant has failed to exhaust domestic remedies,
and that this part of the application must be rejected pursuant to
Article 35 §§ 1 and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant lastly raised a number of other
complaints under Article 3, Article 5 §§ 1, 2, 3 and 4, and
Articles 8, 11, 13 and 14 of the Convention, as well as Article 3 of
Protocol No. 1.
- 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.
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 a total of
303,800 Armenian drams in respect of pecuniary damage, which included
lost profit and the costs of medical treatment and food parcels
incurred as a result of his pre-trial detention. The applicant also
claimed EUR 15,000 in respect of non pecuniary damage.
- The
Government submitted that the applicant’s claim for pecuniary
damage was not duly substantiated and had no causal link with the
alleged violations. They further asked the Court to reject the
applicant’s claim for non-pecuniary damage.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR
2,500 in respect of non pecuniary damage.
- On
the other hand, the Court considers it necessary to point out that a
judgment in which it finds a violation of the Convention or its
Protocols imposes on the respondent State a legal obligation not just
to pay those concerned the sums awarded by way of just satisfaction,
if any, but also to choose, subject to supervision by the Committee
of Ministers, the general and/or, if appropriate, individual measures
to be adopted in its domestic legal order to put an end to the
violation found by the Court and make all feasible reparation for its
consequences in such a way as to restore as far as possible the
situation existing before the breach (see Scozzari and
Giunta v. Italy [GC], nos. 39221/98 and 41963/98, §
249, ECHR 2000-VIII; Ilaşcu and Others v. Moldova and Russia
[GC], no. 48787/99, § 487, ECHR 2004 VII; and
Lungoci v. Romania, no. 62710/00, § 55, 26 January
2006). In the case of a violation of Article 6 of the Convention, the
applicant should as far as possible be put in the position he would
have been in had the requirements of this provision not been
disregarded (see, mutatis mutandis, Sejdovic v. Italy [GC],
no. 56581/00, § 127, ECHR 2006-...; and Yanakiev v. Bulgaria,
no. 40476/98, § 89, 10 August 2006).
- The
Court notes in this connection that Articles 426.1 and 426.4 of the
Code of Criminal Procedure allow the reopening of the domestic
proceedings if the Court has found a violation of the Convention or
its Protocols (see paragraph 57 above). The Court is in any event of
the view that the most appropriate form of redress in cases where it
finds that a trial was held in breach of the fair trial guarantees of
Article 6 of the Convention would, as a rule, is to reopen the
proceedings in due course and re-examine the case in keeping with all
the requirements of a fair trial (see, mutatis mutandis, Lungoci,
cited above, § 56).
B. Costs and expenses
- The
applicant also claimed 2,700 United States
dollars (USD) and 5,932.45 pounds sterling (GBP) for the costs and
expenses incurred before the Court. The applicant submitted detailed
time sheets stating hourly rates in support of his claims.
- The
Government submitted that the claims in respect of the domestic and
foreign lawyers were not duly substantiated with documentary proof,
since the applicant had failed to produce any invoices, contracts or
any other legal document. Furthermore, the applicant had used the
services of an excessive number of lawyers, despite the fact that the
case was not so complex as to justify such a need.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court notes at the
outset that no power of attorney has ever been submitted in respect
of one of the KHRP lawyers and therefore rejects the relevant claims.
The Court further reiterates that legal costs are only recoverable in
so far as they relate to the violation found (see Beyeler v. Italy
[GC], no. 33202/96, § 27, ECHR 2000 I). The Court
notes that in the present case only a violation of Article 6 was
found on one count while the entirety of the written pleadings,
including the initial application and the subsequent observations,
concerned numerous Articles of the Convention and Protocol No. 1.
Therefore the claim cannot be allowed in full and a considerable
reduction must be applied. Making its own assessment, the Court
awards the applicant a total sum of EUR 1,600 for costs and expenses,
to be paid in pounds sterling into his representatives’ bank
account in the United Kingdom.
C. 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 an alleged
violation of the applicant’s right to effective legal
assistance and his right to examine witnesses against him admissible
under Article 6 § 1 taken together with Article 6 § 3 (c)
and (d) of the Convention and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 6 § 1, taken together with Article 6 § 3 (c) of the
Convention, on account of the alleged failure by the applicant’s
legal aid lawyer to provide effective legal assistance;
- Holds that there has been a violation of Article
6 § 1, taken together with Article 6 §
3 (d) of the Convention, on account of the applicant’s
inability to examine witnesses against him;
- 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, the following amounts, to be converted into
Armenian drams at the rate applicable at the date of settlement:
(i) EUR
2,500 (two thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
1,600 (one thousand six hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs
and expenses, to be converted into pounds sterling at the rate
applicable at the date of settlement and to be paid into their
representatives’ bank account in the United Kingdom;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 10 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
