Communicated on 6 October 2020 Published on 26 October 2020

FIRST SECTION

Application no. 4693/12 Sergey MKHITARYAN against Armenia and 3 other applications (see list appended)

The applicants are Armenian nationals. They are represented before the Court by Mr L. Simonyan , Ms S. Aghvanyan , Ms S. Poghosyan and Ms N. Rshtuni , lawyers practising in Yerevan.

The facts of the cases, as submitted by the applicants, may be summarised as follows.

On 13 May 2009 the first applicant, who was in hiding, was charged with negligent homicide.

On 26 November 2010 police officers found and arrested the first applicant.

On 28 November 2010 the Shirak Regional Court, upon the investigator ’ s application, ordered the first applicant ’ s detention for two months, concluding that his past behaviour indicated that he was a flight risk. His detention was then twice extended on 20 January and 21 March 2011 on the same grounds, on each occasion by two months.

On an unspecified date the investigation was completed and the case was referred to court.

It appears that on 26 April 2011 the Shirak Regional Court, through a written procedure, decided to set the case down for trial stating, inter alia , that the first applicant ’ s detention was “to remain unchanged”.

It further appears that on 16 May 2011 the first applicant made a request to be released on bail which was rejected by the Regional Court.

On an unspecified date the first applicant lodged an application with the Shirak Regional Court arguing, inter alia , that when deciding to leave his detention unchanged the court had failed to address his request for bail and had not set any time-limit for his detention. The first applicant asked the court to replace his detention with bail.

On 28 June 2011 the Shirak Regional Court found that the application should be refused since a similar request had already been examined and decided by the court on 16 May 2011 and that there were no new grounds to replace the detention with bail.

On 17 October 2011 the first applicant lodged another application with the Shirak Regional Court requesting release on bail. The first applicant also argued that the court ’ s decision leaving his detention unchanged was unlawful and was incompatible with Article 5 § 1 of the Convention since no time-limit had been set for his detention, thereby leaving him in a state of uncertainty.

On 25 October 2011 the Shirak Regional Court rejected the first applicant ’ s request for bail on the ground s that the reasons justifying his detention still persisted. The court further noted that the domestic law did not require a time-limit to be set when leaving detention unchanged, which implied that it should remain unchanged until the end of the trial.

At the time of introduction of the application on 14 January 2012 the applicant was still in detention.

(a) Pre-trial detention

On 24 November 2015 a criminal case was instituted in respect of the second, third and fourth applicants (hereafter, the applicants) who were suspected of having been part of a criminal gang and having illegally acquired arms and ammunition.

On 25 November 2015 the second and third applicants were arrested and later charged.

On 27 November 2015 the Kentron and Nork- Marash District Court of Yerevan , upon the investigator ’ s application, ordered their detention for a period of two months on the ground s that they could hide from the investigating authority, commit a new act prohibited by criminal law as well as obstruct the investigation by exerting unlawful influence on the persons involved in the proceedings.

On 2 December 2015 the second applicant lodged an appeal against that decision arguing, inter alia , that the District Court had failed to consider that he had a permanent place of residence and a job, and was married with three minor children who were dependent on him. The second applicant further contended that the court had failed to substantiate that he would obstruct the investigation or fail to appear before the investigating authority.

On 3 December 2015 the fourth applicant was arrested and later charged.

It appears that on 4 December 2015 the District Court ordered the fourth applicant ’ s detention, upon the investigator ’ s application.

On 11 December 2015 the Criminal Court of Appeal decided to uphold the decision of the District Court in the second applicant ’ s case. In particular, the Court of Appeal relied on the following reasons: there was a reasonable suspicion that the applicant had been involved in the imputed acts, which were punishable by more than one year ’ s imprisonment; besides, considering the extent of possible investigatory measures to be carried out for establishing the truth, there was a high risk of his hiding from the investigating authority, obstructing the investigation by exerting unlawful influence on the persons involved in the proceedings and concealing or falsifying materials vital for the case. In reaching that conclusion, the Court of Appeal also stressed the nature and the degree of social danger of the imputed act as well as the manner of its commission and the degree of carrying out the criminal intent. As regards the second applicant ’ s personality and his personal situation, the Court of Appeal deemed those insufficient to rule out possible unlawful conduct.

On 20 January, 18 March, 18 May, 20 July and 20 September 2016 the District Court extended the second applicant ’ s detention on the same grounds, on each occasion for a period of two months, taking into account the seriousness of the charges and the necessity to conduct a number of investigative measures.

The second applicant lodged appeals against these decisions which were dismissed by the Court of Appeal on 10 February, 5 April, 9 June, 6 September and 14 October 2016 respectively, which found those decisions to be well-founded.

It appears that the third and fourth applicants ’ pre-trial detention was also periodically extended, each time for two months.

(b) The applicants ’ detention during trial

On 10 November 2016 the prosecution confirmed the bill of indictment and on an unspecified date the criminal case was transmitted to the District Court to be examined on the merits.

On 14 November 2016 the second applicant filed an application with the District Court arguing, inter alia , that the court decisions extending his detention were stereotyped and couched in general terms. The second applicant pointed out that the investigation had already been completed and it was no longer possible to justify his detention on the ground s of exerting unlawful influence on the participants in the proceedings. Nothing in the case file could indicate that he would commit a new offence. As regards the risk of his absconding, the second applicant submitted that he did not possess a valid passport since it had expired. In the alternative he asked the court to release him on bail, noting that his identity was known, he had a permanent place of residence, he was married with three minor children and he had no prior convictions.

On 24 November 2016 the judge, to whom the case was assigned, decided, through a written procedure, to set the case down for trial. By the same decision the judge, after having examined the materials of the criminal case and the second applicant ’ s application of 14 November 2016, found that:

“... [the application] is unsubstantiated and should be rejected since the grounds for imposing on [the applicant] detention as a preventive measure continue to persist; therefore ... the detention is to remain unchanged since the necessity for the said preventive measure has not ceased to exist.”

In the case of the third and fourth applicants, this decision stated:

“Having examined the preventive measure imposed on the [applicant], [namely] detention, I find that it is to remain unchanged since its necessity has not ceased to exist.”

On 20 January 2017 the second applicant applied to the District Court and, relying on Article 5 of the Convention, argued that his detention was unlawful since the court, when setting the case down for trial, had decided on his detention in the absence of an application filed by the investigator. The second applicant, inter alia , argued that the impugned decision had been taken without ensuring his or his lawyer ’ s presence.

On 21 July 2017 the District Court rejected the second applicant ’ s application, finding that the reasons for his detention still persisted. Notably, the court reasoned that the applicant had been charged with a serious offence which was punishable by six to ten years ’ imprisonment, in which circumstances the risk of his absconding, if at liberty, was high. As regards the personal circumstances of the second applicant, the court found these insufficient to conclude that he would not abscond or exert unlawful influence on the persons involved in the proceedings.

On the same date the fourth applicant requested the District Court to release him on bail. In particular, he argued that his identity was known and he had never tried to hide from the investigation. The fourth applicant drew the court ’ s attenti on to his poor state of health – he was second-group disabled and suffered from several diseases, and at the time of applying to the court, he was under dispensary supervision. The fourth applicant also pointed out that he had obtained several State medals for courage and was described positively by his friends and neighbours.

On the same date the District Court dismissed the fourth applicant ’ s request with similar reasoning to its decision of 21 July 2017.

At the time of introduction of his application on 23 May 2017 the third applicant was still in detention. It also follows from the second applicant ’ s most recent submissions of 8 June 2018 that he was in detention on that date.

On 16 February 2018 the fourth applicant ’ s lawyer lodged a new application with the Court of General Jurisdiction of Yerevan asking i t to replace his detention with another measure of restraint or release him on bail. The fourth applicant argued, inter alia , that the c ourt ’ s decision of 24 November 2016 leaving his detention unchanged was broadly worded and standard. He further argued that, even if there had been legal ground s to reman d him in pre-trial detention, this could no longer be sufficient for his deprivation of liberty. No reasons could justify his further detention since, after the completion of the investigation, all the relevant investigatory measures had been carried out and all the co-accused had been provided with the materials of the criminal case. In the alternative, the fourth applicant contended that his proper conduct could be ensured by bail. He pointed out that his identity was known, he had a permanent place of residence, he was married with three children, he was second-group disabled, he was a war veteran, he had no citizenship other than Armenian and his passport was in the possession of the investigating authority. The application also underlined the fourth applicant ’ s poor state of health and his recent admission to hospital.

On 16 March 2018 the Court of General Jurisdiction of Yerevan refused the fourth applicant ’ s request for bail since the reasons justifying his detention still persisted. In particular, the risk of his absconding if at large was high, having regard to the seriousness of the imputed offence, which was punishable by six to ten years ’ imprisonment. As regards the fourth applicant ’ s personal situation, the court deemed it insufficient to preclude the risk of flight.

On an unspecified date the fourth applicant filed anoth er application with the c ourt seeking to have his detention replaced with another measure of restraint or be released on bail. He relied on similar grounds to those mentioned in his application of 16 February 2018.

On 22 June 2018 the c ourt decided to grant the application by replacing the detention with a written undertaking not to leave his place of residence, having regard to the fourth applicant ’ s health problems, his being second-group disabled and the length of his detention pending trial. On the same date the fourth applicant was released.

COMPLAINTS

1. The applicants complain that the decision of 26 April 2011 of the Shirak Regional Court, as regards the first applicant, and the decision of 24 November 2016 of the Kentron and Nork- Marash District Court of Yerevan, as regards the other applicants, were incomp atible with Article 5 § 1 of the Convention because they contained no reasons and authorised their detention for an unlimited period of time.

2. The second applicant complains under Article 5 § 3 of the Convention that the courts failed to provide relevant and sufficient reasons for his detention. The fourth applicant raises the same complaint with respect to the refusal of the Court of General Jurisdiction of Yerevan to allow his application for release on 16 March 2018.

3. The second and third applicants complain under Article 5 §§ 1 and 3 of the Convention that their right to be heard either in person or through a lawyer was infringed since they could not attend the court session setting the case down for trial.

QUESTIONS TO THE PARTIES

1. Was the applicants ’ detention authorised by the decisions of 26 April 2011 and 24 November 2016 compatible w ith the requirements of Article 5 § 1 of the Convention? In particular, did those decisions afford adequate protection from arbitrariness and meet the requirement of lawfulness within the meaning of that Article?

2. Did the courts provide “relevant and sufficient” reasons for the second applicant ’ s detention, as well as for the refusal to allow the fourth applicant ’ s application for release on 16 March 2018, as required by Article 5 § 3 of the Convention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 84 et seq., 5 July 2016, and Ara Harutyunyan v. Armenia , no. 629/11, §§ 48 et seq., 20 October 2016)?

3. Was the second and third applicants ’ right to be heard either in person or through some form of representation, as guaranteed under Article 5 § 4, infringed when the courts decided on the question of their detention when setting the case down for trial without holding a hearing (see Kampanis v. Greece , 13 July 1995, § 47, Series A no. 318 ‑ B 235; Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999 ‑ II; and Khodorkovskiy v. Russia , no. 5829/04, § 235, 31 May 2011)?

APPENDIX

No.

Application no.

Lodged on

Applicant name

date of birth

place of residence

Represented by

4693/12

14/01/2012

Sergey MKHITARYAN

19/08/1991

Gyumri

Liparit SIMONYAN

5728/17

21/11/2016

Artur VARDANYAN

07/09/1981

Yerevan

Sirush AGHVANYAN

39583/17

23/05/2017

Khachik AVETISYAN

14/02/1960

Yerevan

Syuzanna POGHOSYAN

45189/18

16/09/2018

Harutyun SARIBEKYAN

22/11/1967

Arevshat

Narine RSHTUNI