Communicated on 9 July 2020 Published on 27 July 2020

FIRST SECTION

Application no. 45049/14 Vahe KHACHATRYAN against Armenia lodged on 11 June 2014

STATEMENT OF FACTS

The applicant, Mr Vahe Khachatryan, is an Armenian national who was born in 1979 and is detained in Yerevan Prison. He is represented before the Court by Mr A. Grigoryan and Mr E. Petrosyan , lawyers practising in Yerevan.

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

On 11 August 2005 at around 1.00 to 2.00 a.m. a certain M. was stabbed to death in the street.

On the same date, criminal proceedings were instituted in connection with M. ’ s death, the applicant and his friends, H., Z., V. and S. being the main suspects.

In the course of the investigation the applicant went into hiding.

On 29 December 2005 a search for him was ordered.

On 21 January 2006 the charges concerning the applicant were severed from the main criminal case.

On 11 February 2006 the criminal proceedings against the applicant were stayed while the investigation in respect of his co-accused continued.

On 4 February 2009 the Yerevan Criminal Court found the applicant ’ s co-accused H., Z., V. and S., guilty of M. ’ s murder.

On 6 July 2012 the applicant was arrested and the criminal proceedings instituted against him in 2005 were resumed.

In the course of the investigation several witnesses were questioned, including M.H. and M.V., the eyewitnesses to the events.

M.H. stated, inter alia , that on 11 August 2005 at around 2 a.m. she had seen the applicant, H., Z., V. and S. having an argument with M. in the street. Having severely beaten up M., they had eventually killed him.

It appears that, during the investigation, the applicant denied his involvement in the events of 11 August 2005. He submitted that at the time of M. ’ s murder he had been at his workplace, namely the chemical plant “ Nairit ”, where he was working on the night shift.

The investigator subsequently decided to hold a confrontation between M.H. and the applicant.

It appears that at a confrontation on 1 August 2012, M.H. reiterated her earlier statements while the applicant denied his involvement in M. ’ s murder, once again stating that at the time of M. ’ s murder he had been at his workplace on the night shift.

M.V. gave an account of the events similar to that given by M.H. stating, inter alia , that he had seen the applicant and his friends killing M. It appears that no confrontation was held between M.V. and the applicant.

On 17 August 2012 the applicant was charged with aggravated murder and aggravated hooliganism.

On 24 August 2012 the case was referred to the Shengavit District Court of Yerevan (the District Court) for examination on the merits.

According to the applicant, he pleaded not guilty and submitted that the statements of the witnesses who testified against him did not reflect the truth since at the time of M. ’ s murder he had been at his workplace.

It appears that at the hearing of 2 April 2013 the applicant requested the court to admit as evidence and examine the employees ’ attendance-tracking registers retained by his former employer at the material time. In particular, he stated that his alibi could be confirmed by those registers which indicated that at the time of M. ’ s murder, namely from 8.00 p.m. on 10 August 2005 until 8.00 a.m. the following morning, he had been at his workplace on the night shift. He also submitted that on 8 January 2006 the investigative authority had seized those registers within the framework of the main criminal proceedings instituted in 2005 against him and his co-accused H., Z., V. and S.

On 2 April 2013 the District Court ’ s presiding judge addressed a written request to the Special Investigative Service seeking to have the above ‑ mentioned registers examined in court.

On 16 April 2013 the Deputy Chief of the Special Investigative Service responded that, due to the reorganisation of t he General Prosecutor ’ s Office , the case file had been sent to the Investigatory Department of the Police on 20 November 2007. Therefore, there was a probability that those registers had been retained by that Department.

According to the applicant, the registers in question were never transmitted and examined in court, since they had disappeared from the criminal case file in unknown circumstances.

On 8 April 2013 the applicant lodged an application with the Special Investigative Service seeking to have criminal proceedings instituted on account of the alleged disappearance of the employees ’ attendance-tracking registers which, according to him, constituted exculpatory material proving his innocence.

On 27 June 2013 the investigator dismissed the applicant ’ s application as unsubstantiated. He stated, inter alia , that the non-disclosure of those registers did not have any negative impact on the applicant ’ s defence rights since the copy of the relevant page of those registers was in fact included in the applicant ’ s case file.

The applicant contested the investigator ’ s above-mentioned decision arguing, in particular, that in reality no copy of the relevant page of the registers in question had been attached to his case file.

By a decision of 18 July 2013 the General Prosecutor ’ s Office dismissed the applicant ’ s complaint. It appears that no appeal was lodged against this decision.

On an unspecified date the applicant lodged an application with the District Court requesting it to require the competent authorities to initiate proceedings in order to establish the location of the registers in question. It appears that the court dismissed this application for lack of substantiation.

It further appears that in the course of the proceedings before the District Court, the applicant also requested that witnesses M.H. and M.V. be examined in court. The applicant submitted that, after certain attempts to secure their presence, the court eventually rejected his request on the grounds that the competent authorities could not locate M.H. while M.V. was not in Armenia.

On 5 August 2013 the District Court found the applicant guilty as charged and sentenced him to eight years and six months ’ imprisonment. In substantiating the applicant ’ s guilt, the District Court relied, inter alia , on M.H. ’ s and M.V. ’ s pre-trial statements.

The applicant lodged an appeal arguing, inter alia , that he had not been provided with an opportunity to cross-examine the witnesses against him during the trial, although there were substantial contradictions between their statements and the version of the events put forward by him. He further complained that the District Court had failed to summon properly the witnesses and relied on their pre-trial statements without good reason. Lastly, he complained that by failing to undertake any measures to secure the disclosure of exculpatory material (the employees ’ attendance-tracking registers) , the District Court had violated his right to a fair trial as guaranteed by Article 6 of the Convention.

On 30 September 2013 the Criminal Court of Appeal upheld the applicant ’ s conviction having relied on M.H. ’ s and M.V. ’ s pre-trial statements. It did not address the applicant ’ s complaints concerning the impossibility to examine the witnesses against him during the trial and the issue of the non-disclosure of evidence allegedly proving his innocence.

On 29 October 2013 the applicant lodged an appeal on points of law raising arguments similar to those submitted in his previous appeal.

On 11 December 2013 the Court of Cassation declared the applicant ’ s appeal on points of law inadmissible for lack of merit.

For a summary of the relevant provisions of the domestic law see the judgment in the case of Gabrielyan v. Armenia (see no. 8088/05, § 57, 10 April 2012).

According to Article 122 § 1 of the Code of Criminal Procedure (in force since 1999), a document is any record made on paper, magnetic, electronic or on other data in lexical, digital, graphic, or other symbolic form, that could serve to clarify factual circumstances of a case.

According to Article 123 § 3, the documents shall be attached to the materials of the criminal case by the investigative authority and kept with the case throughout the proceedings.

COMPLAINTS

Relying on Article 6 §§ 1 and 3 (d) of the Convention, the applicant complains that he did not have a fair trial. In particular:

1) the non-disclosure of evidence, namely, the employees ’ attendance ‑ tracking registers , was in breach of his right to an adversarial trial guaranteed by Article 6 § 1 of the Convention ; and

2) the fact that he was not given an opportunity to examine in court prosecution witnesses M.H. and M.V . was in breach of the requirements of Article 6 § 3 (d) of the Convention.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular:

a) Were the employees ’ attendance-tracking registers examined at the applicant ’ s trial? If not, did the non-examination of the registers in question affect the overall fairness of the applicant ’ s trial, in breach of the requirements of Article 6 § 1 of the Convention (see Jespers v. Belgium , no. 8403/78, § 59, Commission ’ s report of 14 December 1981, Decisions and Reports 27, p. 88; Mirilashvili v. Russia , no. 6293/04, §§ 210-212, 11 December 2008; and Khodorkovskiy and Lebedev v. Russia (No. 2), nos. 51111/07 and 42757/07, §§ 517-519, 14 January 2020 )?

b) Did the fact that the applicant was not able to examine prosecution witnesses M.H. and M.V. at his trial violate his rights guaranteed by Article 6 § 3 (d) of the Convention (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-131, ECHR 2015 )?

The Government are requested to provide copies of the following documents: the bill of indictment, the records of the interviews of witnesses M.H. and M.V., as well as the records of confrontations held, if any, and documents relating to the reasons for their non-attendance at the applicant ’ s trial (court decisions to compel them, letters from the police, and so on).