Communicated on 29 September 2020 Published on 1 9 October 2020

F IRST SECTION

Application no. 24627/16 Ashot KUYUMJYAN against Armenia lodged on 22 April 2016

STATEMENT OF FACTS

The applicant, Mr Ashot Kuyumjyan , is an Armenian national who was born in 1978 and lives in Yerevan. He is represented before the Court by Ms I. Petrosyan and Mr K. Mezhlumyan , lawyers practising in Yerevan.

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

On 23 November 2014 the applicant was arrested and later charged with misappropriation of goods worth a large amount of money from a telecommunications company for which he worked.

On 27 November 2014 the Kentron and Nork- Marash District Court of Yerevan, upon the investigator ’ s application, ordered the applicant ’ s pre ‑ trial detention for a period of two months, taking into account the nature and the dangerousness of the imputed act, adding that, if at liberty, the applicant could obstruct the investigation by exerting unlawful influence on the persons involved in the proceedings. The applicant ’ s request for bail was rejected on the same grounds that justified his detention.

On 19 January, 18 March and 19 May 2015 the District Court, upon the investigator ’ s applications, extended the applicant ’ s detention, on each occasion for a period of two months, having regard to the seriousness of the imputed act and the severity of the anticipated penalty. It also observed that the applicant could obstruct the investigation by exerting unlawful influence on the persons involved in the proceedings and that it was necessary to carry out a number of investigatory measures. In the latter decision the court also specified that, since there were persons involved in the imputed act who had not been questioned yet, as well as persons who had testified against the applicant, the latter could influence them to testify in his favour.

On 29 May 2015 the applicant appealed against the decision of 19 May 2015 arguing, inter alia , that the risk of his influencing persons involved in the proceedings was not supported by any fact or evidence and was groundless. The court had failed to take into account his personal circumstances, such as his family situation and stable residence, that he was of good character, had no prior convictions; that he had been the one to find out about the mishandling at the company and had informed the management accordingly; he had shown readiness to assist the investigation.

On 12 June 2015 the Criminal Court of Appeal rejected the applicant ’ s appeal and upheld the decision of the District Court, finding that the reasons justifying the applicant ’ s detention, namely that he could obstruct the investigation by exerting unlawful influence on the persons involved in the proceedings, concealing or falsifying materials vital for the case, still persisted. The appellate court added that the gravity of the imputed act and the severity of the anticipated penalty, together with other circumstances of the case, allowed the conclusion that there were reasons warranting the applicant ’ s detention.

On 14 July 2015 the investigator requested the District Court to extend the applicant ’ s detention for a further two-month period on the same grounds as before.

The applicant objected to the investigator ’ s application arguing, inter alia , that the grounds relied on therein were identical to those specified in the previous applications seeking the extension of his detention period. The applicant contended that the investigator had, in abstract terms, referred to the necessity to continue interviews, without providing any further details; besides, the domestic law prescribed other grounds for detention than the need to carry out investigatory measures. The applicant further argued that the allegation that he would put pressure on persons who had not been interviewed yet was groundless. He once again drew the court ’ s attention to his personality and his personal situation, which had been disregarded by the investigator. Alternatively, he asked the court to grant bail .

On 18 July 2015 the District Court granted the investigator ’ s application and rejected the applicant ’ s request for bail. The decision of the court relied on the following grounds: that there was a reasonable suspicion that the applicant was involved in the imputed act; the nature and the dangerousness of the act; that, if released, the applicant could obstruct the investigation by exerting unlawful influence on the persons involved in the proceedings; the severity of the anticipated penalty and the need to carry out certain investigatory measures.

It appears that this decision, which was subject to appeal within five days from the date of pronouncement, was not served on the applicant.

On 28 July and 7 August 2015 the applicant requested that the District Court provide him with its decision of 18 July 2015 so that he could lodge an appeal against the extension of his detention. The applicant pointed out that by failing to provide him with the impugned decision, the District Court deprived him of the right to challenge the lawfulness of his detention as enshrined in Article 5 § 4 of the Convention.

On 18 August 2015 the applicant, who had not received the decision of the District Court of 18 July 2015, lodged an appeal against it. Notably, he reiterated his objections about the extension of his detention and argued that the District Court had breached his right to challenge the lawfulness of his detention by failing to serve on him the contested decision; thus his detention was unlawful and he should be released without delay.

On 26 August 2015 the applicant filed an application with the Court of Appeal requesting that his appeal be admitted immediately and the relevant decision of the District Court extending his detention be provided to him with an additional five-day period to supplement his appeal.

By a decision of 31 August 2015 the Court of Appeal admitted the applicant ’ s appeal of 18 August 2015 and set a court hearing for 3 September 2015.

On 3 September 2015 the decision of the District Court of 18 July 2015 was served on the applicant by the Court of Appeal.

On an unspecified date the applicant supplemented his initial appeal. He submitted, inter alia , that the District Court had relied only on reasonable suspicion, the diligence of the investigating authority and the gravity of the imputed offence. The court had failed to specify any concrete facts justifying his detention. No reasons were given for refusing his request for bail.

On 9 September 2015 the Court of Appeal upheld the decision of the District Court of 18 July 2015 and rejected the applicant ’ s appeal. The Court of Appeal reasoned that it was not sufficiently convinced that, if released, the applicant would not abscond, obstruct the investigation or court proceedings or the investigatory measures to be carried out, in particular, that he would not influence his possible accomplices and employees of the company to testify in his favour or evade criminal responsibility and punishment. The appellate court also found that neither bail nor the applicant ’ s personal situation could ensure his appropriate behaviour. As regards the failure of the District Court to provide the applicant with its decision of 18 July 2015, the Court of Appeal acknowledged that the lower court had failed to serve the copy of the impugned decision on the defence by the time the appeal had been filed; however, the appellate court held that this could not be relied on as grounds to release the applicant or grant bail.

On 19 September 2015 the District Court extended the applicant ’ s detention for a further two-month period, having regard to the need to carry out investigatory measures, the applicant ’ s involvement in the imputed offence as well the seriousness of the offence and the severity of the anticipated penalty, which increased the possibility that he could fail to appear before the investigating authority or obstruct the investigation through unlawful influence on the persons involved in the proceedings if at liberty. As regards the applicant ’ s request for bail, the court, taking into account the gravity of the offence and the severity of the anticipated penalty, found that bail could not ensure the applicant ’ s appropriate behaviour.

On 28 September 2015 the applicant lodged an appeal which was dismissed by the Court of Appeal on 16 October 2015 on the grounds that the reasons for his detention still persisted: namely that, if at large, he could abscond , obstruct the investigation by exerting unlawful influence on the persons involved in the proceedings or concealing or falsifying materials vital for the case and evade criminal responsibility and punishment. The Court of Appeal emphasised that the case contained compelling facts such as to rule out the possibility of the applicant ’ s appropriate behaviour if at liberty and that his personal situation could not be relied on to ensure his proper conduct.

Article 285 § 1 of the Code of Criminal Procedure (CCP) provides that the prosecutor or the investigator files an application with a court seeking to have detention imposed as a preventive measure or a period of detention extended, if such a necessity arises.

Article 285 § 5 of the CCP provides that, having examined an application, the judge takes a decision to impose detention as a preventive measure, to extend a period of detention or to refuse an application. On the date of delivery of the decision, the court serves the decision on the body which filed the application, the accused, the defence lawyer and the injured party, and in the case of their absence from the court hearing, sends them the decision in due manner.

Article 379 § 1 (3) of the CCP provides that appeals against the decisions of the first-instance court, inter alia, imposing or extending the period of detention can be lodged within five days from the date of their pronouncement.

COMPLAINTS

1. The applicant complains under Article 5 § 3 that the courts failed to provide “relevant and sufficient” reasons for his detention and of the lack of “special diligence” in the conduct of the proceedings against him.

2. The applicant also complains under Article 5 § 4 that his right to challenge effectively the lawfulness of his detention was infringed by the failure of the Kentron and Nork- Marash District Court of Yerevan to serve on him the decision of 18 July 2015 whereby his detention was extended.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s pre-trial detention compatible with the requirements of Article 5 § 3 of the Convention? In particular:

(a) Did the domestic court provide relevant and sufficient reasons for the applicant ’ s detention 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)?

(b) If so, did the authorities display due diligence in the conduct of the proceedings, as required by this provision (see Muradkhanyan v. Armenia , no. 12895/06, § 85, 5 June 2012) ?

2. Did the applicant exhaust the domestic remedies, as required by Article 35 § 1 of the Convention, in respect of the detention periods authorised by the decisions of 27 November 2014 and 19 January and 18 March 2015, given that he did not lodge appeals with the Criminal Court of Appeal against those decisions (see Polonskiy v. Russia , no. 30033/05, § 132, 19 March 2009 )?

3. Was the applicant ’ s right to bring proceedings to have the lawfulness of his detention reviewed by a court, guaranteed by Article 5 § 4 of the Convention, respected in the present case, taking into account the manner in which the decision of the Kentron and Nork- Marash District Court of Yerevan of 18 July 2015 was served on the applicant (see, mutatis mutandis, Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012, and Černák v. Slovakia , no. 36997/08, §§ 78 and 82, 17 December 2013) ?