FIRST SECTION

DECISION

Application no . 75636/11 Albert KHACHATRYAN against Armenia

The European Court of Human Rights (First Section), sitting on 4 October 2016 as a Committee composed of:

Ledi Bianku , President, Linos -Alexandre Sicilianos , Armen Harutyunyan , judges, and Renata Degener , Deputy Section Registrar ,

Having regard to the above application lodged on 25 November 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Albert Khachatryan, is an Armenian national, who was born in 1981 and lives in Artamed Village. He was represented before the Court by Ms G. Sargsyan and Ms S. Sahakyan , lawyers practising in Yerevan.

2. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan , Representative of the Government of Armenia before the European Court of Human Rights.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicant ’ s arrest and detention

4. On 30 April 2011 the applicant was arrested by the police on suspicion of armed robbery with violence.

5. On the same date he was charged under Article 175 § 2 (3 and 4) of the Criminal Code for robbery with violence by illegal entry into an apartment and use of a weapon. Also, on the same date, the investigator of the Nor Nork investigation unit filed a motion with the Avan and Nor Nork District Court of Yerevan, seeking to have the applicant detained for two months. Still on the same date the District Court granted the investigator ’ s motion stating, inter alia , that there was a reasonable suspicion that the applicant had committed the offence with which he had been charged.

6. Upon appeal, on 23 May 2011 the Criminal Court of Appeal upheld the District Court ’ s decision to authorise the applicant ’ s detention.

7. The applicant lodged an appeal on points of law.

8. On 5 August 2011 the Court of Cassation declared the appeal inadmissible for lack of merit.

2. The applicant ’ s release on bail

9. On 30 May 2011 the applicant ’ s counsel filed a motion with the District Court seeking the applicant ’ s release on bail.

10. On the same date the District Court granted the above motion, finding that the payment of the amount of security, that is one million Armenian Drams, would secure the applicant ’ s proper behaviour in the course of the investigation. The decision further stated that the applicant should be immediately released from detention following submission of proof of the payment of security.

11. The applicant claimed that the next day, on 31 May 2011 at about 10.30 a.m., his counsel paid the full amount of security and submitted the relevant receipt. He was released in the evening at about 8.00 p.m. The Government argued that the receipt of the paid security had been submitted by counsel at an unspecified time and that the applicant had been released at 3.45 p.m., a fact which appeared from the letter of the Penitentiary Department of the Ministry of Justice.

B. Relevant domestic law

1. The Code of Criminal Procedure

12. According to Article 142 § 1 (6) of the Code of Criminal Procedure (in force from 12 January 1999), the accused shall be released on bail on the basis of a decision of the body conducting the criminal proceedings when the amount of security fixed by the court has been paid.

13. According to Article 142 § 3 of the same Code, the head of the administration of the detention facility shall immediately release the accused, once the copy of the relevant decision of the body conducting the investigation is received.

14. According to Article 143 § 5 of the same Code, upon receiving proof of payment of security, the body conducting the criminal proceedings shall immediately issue an order to release the accused.

15. Article 290 § 1 of the same Code provides the following:

“Complaints against unlawful and ungrounded decrees and actions, envisaged in this Code, of the person in charge of investigation, the investigator, the prosecutor and operative and investigatory bodies can be submitted to the court by the suspect, the accused, the lawyer, the injured person, participants of criminal proceedings, other persons whose rights and legal interests were breached by these decrees and actions, if their complaints were not satisfied by the prosecutor.”

2. The Law on Treatment of Arrestees and Detainees

16. Section 13 of the Law on Treatment of Arrestees and Detainees (as in force at the material time) provides as follows:

“Arrestees and detainees shall have the right:

...

3) to complain about violations of his/her rights and freedoms, both personally and through his/her attorney or legal representative to the administration of the places of arrest or detention, to their superiors, to the court, to the prosecutor ’ s office, to the Ombudsman, to central and local government bodies, public organisations and parties, the media, as well as to international bodies or organisations involved in protection of human rights and freedoms.”

3. The Law on the Prosecution

17. Section 29 of the Law on the Prosecution (in force from 1 May 2007, as in force at the material time) provides as follows:

“1. The prosecutor shall supervise the lawfulness of the enforcement of sentences and other compulsory measures.

...

4. When exercising the powers stipulated by this Article, the prosecutor shall have the right:

1) at any time, without any hindrance, to visit all places in which persons deprived of liberty are kept;

2) to become familiar with documents based on which a person was subjected to a sentence or another compulsory measure;

...

5) to release immediately persons kept unlawfully in places of deprivation of liberty...

6) In case of doubt that the rights and liberties of persons subjected to a sentence or other compulsory measures have been breached, to demand explanations from officials on actions taken by the latter or their inaction[.]”

COMPLAINT

18. The applicant complained under Article 5 § 1 of the Convention that he had not been immediately released from detention after payment of the amount of security fixed by the District Court in its decision of 30 May 2011.

THE LAW

19. The applicant complained that his delayed release on bail after payment of security violated Article 5 § 1 of the Convention.

1. The Government ’ s preliminary objections

20. The Government argued that the applicant had not exhausted the effective remedies available to him. He had never complained at the domestic level of the alleged delay in his release following the payment of security. The domestic courts had thus never had any opportunity to deal with the matter before it was brought before the Court. The applicant could have complained separately about his unlawful detention, but had failed to do so. The domestic law provided him with the right to lodge a complaint against alleged unlawful actions of persons in charge. Since he had failed to do so, the application should be declared inadmissible under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

21. The Government further argued that the applicant ’ s application should be rejected for lack of victim status. He had not provided any evidence to support his claim that, following the submission of the receipt of the payment of security by counsel on 31 May 2011, allegedly at about 10.30 a.m., he had not been released until the evening at about 8.00 p.m. The bank receipt submitted by the applicant did not contain any information about the time of the payment. As to the time of the applicant ’ s release, according to the letter of the Penitentiary Department of the Ministry of Justice the applicant had been released at 3.45 p.m. and not at 8.00 p.m. as alleged by him. The 24-hour journal indicated not only departures and returns within 24 hours but also releases. Moreover, it appeared from the Form B which was handed to the applicant when leaving the penitentiary institution, that he had left the institution at 3.50 p.m. The application should therefore be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention for lack of victim status.

2. The applicant

22. The applicant claimed that the penitentiary journal provided by the Government did not show the time of his release as this column had been left blank. The fact that the person released before the applicant had been released at 3.45 p.m. did not show that the applicant had been released at the same time, as the journal had not been completed in chronological order. Moreover, the journal was meant for detainees leaving and returning within 24 hours. It did not properly reflect the situation of the applicant, who was not returning to the prison, but was released.

3. The Court ’ s assessment

23. The Court notes that the Government raised two preliminary objections in their observations: on non-exhaustion of effective domestic remedies in respect of his allegedly delayed release from detention in remand and on the lack of the applicant ’ s victim status. However, it is not necessary for the Court to determine whether or not the applicant lacked victim status since the application is in any event inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

24. Article 35 § 1 reads as follows:

“ The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

25. The Court reiterates that the purpose of the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see Selmouni v. France [GC], no. 25803/94 , § 74, ECHR 1999-V, with further references).

26. The Court notes that the Government argued that the applicant did not complain at the domestic level of the alleged delay of his release following the payment of security. The applicant could have complained separately about the matter but had failed to do so, thereby failing to exhaust the effective domestic remedies. The applicant did not comment at all on the exhaustion issue in his observations to the Court (see paragraphs 20-22 above).

27. The Court notes that, according to section 13 of the Law on Treatment of Arrestees and Detainees, arrestees and detainees have the right to complain about violations of their rights and freedoms, both personally and through their attorney or legal representative, inter alia, to a court or to a prosecutor ’ s office (see paragraph 16 above). It appears from the case file that, on 30 May 2011, the applicant ’ s counsel filed a motion with the District Court, seeking the applicant ’ s release on bail. The District Court granted the motion on the same date, and the applicant was released on the following day. There is no indication in the case file that the applicant had at any point lodged a complaint concerning the alleged delay of his release following the payment of security (see paragraphs 9-11 above). Nor has it been claimed by the applicant that the above remedy was not effective. Consequently, there is no reason which could have dispensed the applicant from raising the issue before the domestic authorities, or from advancing arguments to the same or like effect before them, thus drawing their attention to the problem he intended to submit subsequently, if need be, to the institutions responsible for European supervision (see Ahmet Sadık v. Greece , 15 November 1996, § 33, Reports of Judgments and Decisions 1996 ‑ V).

28. It follows that the Government ’ s objection is upheld and the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 27 October 2016 .

Renata Degener Ledi Bianku              Deputy Registrar President