Communicated on 25 June 2020 Published on 15 July 2020

FIRST SECTION

Application no. 30223/15 Hakob ABAJYAN against Armenia lodged on 16 June 2015

STATEMENT OF FACTS

The applicant, Mr Hakob Abajyan , is an Armenian national who was born in 1990 and is detained in Ejmiatsin .

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

On unspecified dates in August 2011 A. and her husband Y. were murdered in unknown circumstances.

On 1 September 2011 A. ’ s body was found in a village with strangulation marks on her neck. At this point, the location of Y. ’ s body was not known.

On the same date criminal proceedings were instituted on account of A. ’ s murder .

On 19 September 2011 the applicant, who knew A. and Y., was summoned by the investigator and questioned as a witness in the presence of a lawyer, N., in connection with the criminal case. He did not confess or make any incriminating statements and did not provide any specific information relating to the circumstances of the crime.

On an unspecified date criminal proceedings were instituted also in connection with Y. ’ s murder, although the latter ’ s body had not yet been found.

On 26 October 2011 the applicant and his father were taken to the police station, where from 8 p.m. until 8.25 p.m. the applicant was again questioned as a witness. According to the relevant record, no lawyer was present at the questioning.

On the same date at 9.30 p.m. the applicant and his father were arrested on suspicion of having murdered A.

At 9.40 p.m. the applicant was again questioned as a suspect in the absence of a lawyer, in connection with both A. ’ s and Y. ’ s murders. It was noted in the record of the questioning that the applicant had been informed of his right to be assisted by a lawyer and not to incriminate himself. It was then noted that before starting the questioning, the applicant had indicated that he did not wish to be assisted by a lawyer and that he was capable of defending himself. During the questioning, the applicant confessed that he and his father had killed Y. and then A. He provided a number of details concerning their murder.

On the same date at around 11 p.m. lawyers N. and R., who had been hired by the applicant ’ s mother, arrived at the police station where the applicant and his father were held. It appears that the police officers prohibited the lawyers from entering the police station. In the meantime, being apprised of his rights as a suspect, the applicant made a written statement that he wished to waive his right of access to a lawyer. He submitted in particular that he did not wish to be assisted by the two lawyers hired by his mother and that in general he did not wish to have a lawyer. He also stated that he was capable of representing his own interests and that the waiver of his right of access to a lawyer was not connected with his financial situation.

On 27 October 2011 the applicant was admitted to a detention facility.

On the same date the investigator issued a decision prohibiting the applicant ’ s visits and telephone calls on the grounds that there was a risk that the accused might hinder the proper conduct of the investigation by tampering with the witnesses.

It appears that as of 27 October 2011 the authorities repeatedly denied lawyers N. and R. access to the applicant on the grounds that he had refused their services in writing.

On 28 October 2011 the investigator conducted a crime scene reconstruction in the presence of two attesting witnesses and a criminalist. The relevant verbatim record of this investigative measure indicates that in response to the investigator ’ s question as to whether the applicant wished to be assisted by a lawyer, he had replied in the negative.

During the crime scene reconstruction, the applicant reiterated his confession and provided a detailed account of the events in question, by providing relevant clarifications upon the investigator ’ s request. He showed the precise places of the criminal acts, the location where he and his father had hidden Y. ’ s body and other items related to the murders of A. and Y. The verbatim record of the reconstruction was signed by the applicant without his leaving any statements or comments.

On the same date at 2.33 p.m. the applicant was further questioned and reiterated his earlier confession. Once again, he refused to be assisted by a lawyer.

On 29 October 2011 the applicant was charged with complicity to aggravated murder, aggravated kidnapping and illegal possession of firearms.

During the investigation, the applicant ’ s mother and lawyers N. and R. addressed different requests and letters to the authorities, including the Human Rights Defender, the Head of the Police, the Head of the General Investigation Department of the Police and the Prosecutor General, stating that they suspected that the applicant had been pressured to waive his right to be assisted by a lawyer. They argued that that the applicant ’ s waiver of legal assistance had not been voluntary.

On 31 October 2011 the applicant addressed a written request to the investigator, seeking to have lawyers N. and R. involved in the proceedings.

On 8 November 2011 lawyers N. and R. were allowed to provide legal assistance to the applicant.

On 23 December 2011 the applicant lodged a request with the General Prosecutor, the Head of Police and the Deputy Head of Police, seeking the recusal of all the investigators included in the investigating team dealing with the criminal case against him. He argued, inter alia , that on the day following his arrest, namely 27 October 2011, he had not been informed that his lawyers N. and R. had arrived at the police station where he was held. He further stated that he had been forced to waive his right to a lawyer and to legal assistance and to make self-incriminating statements which were dictated by the investigators. He submitted that the investigators had threatened to bring charges also against his mother and to seek life imprisonment of his father in the event that he refused to comply with the investigators ’ demands. Lastly, the applicant submitted that all the self ‑ incriminatory statements given between 26 October 2011 and 8 November 2011 (the day on which he was allowed to benefit from the assistance of lawyers) did not reflect the truth since they had been obtained in violation of his defence rights.

By letter of 10 January 2012 the General Prosecutor informed the applicant that his request had been sent to the Special Investigative Service (SIS) for examination.

It appears that on 20 February 2012 the SIS refused the applicant ’ s request as unsubstantiated.

It further appears that, at some point during the investigation, lawyers N. and R. requested that criminal proceedings be instituted against the police officers who had allegedly ill-treated the applicant while in custody and forced him to confess.

That request was rejected on the grounds that the forensic medical examination had not revealed any fresh injuries on the applicant.

On 5 June 2012 the case was sent to the Kentron and Nork- Marash District Court of Yerevan ( “ the District Court ” ) for examination on the merits.

In the course of the proceedings before the District Court the applicant retracted all of his previous self-incriminatory statements, stating that they had been obtained under duress, in breach of his defence rights. He denied any involvement in the murders of A. and Y. and submitted that the waiver of his right to legal assistance had not been voluntary. Furthermore, the applicant submitted that the written confessions, as well as the notes concerning the waiver of his right to legal assistance, had been dictated by the investigator. He therefore requested the District Court not to admit the evidence, which had been obtained in breach of his defence rights.

On 4 November 2013 the District Court found the applicant guilty as ch arged and sentenced him to six teen years ’ imprisonment. In substantiation of the applicant ’ s guilt, the District Court relied, inter alia , on the applicant ’ s pre-trial self-incriminatory statements, as well as the record of the crime scene reconstruction of 28 October 2011. As regards the applicant ’ s allegations concerning the breach of his defence rights, the District Court stated, inter alia , that the absence of a lawyer at the applicant ’ s arrest and during certain investigative activities was due to the applicant ’ s waiver of legal assistance, of his own free will.

The applicant lodged an appeal arguing, inter alia , that his self ‑ incriminating statements made during the pre-trial investigation and the record of the crime scene reconstruction dated 28 October 2011 could not be relied on by the District Court since that evidence had been collected in breach of his right to legal assistance. He argued that the waiver of the right to a lawyer during the early stage of the investigation was not voluntary since the relevant statements concerning his alleged waiver had been dictated by the investigators and had been obtained under duress and as a result of ill-treatment.

On 3 July 2014 the Criminal Court of Appeal ( “ the Court of Appeal ” ) upheld the applicant ’ s conviction having relied, inter alia , on his pre-trial statements as well as on the record of the crime scene reconstruction of 28 October 2011. As regards the applicant ’ s complaints concerning the alleged breach of his defence rights during the pre-trial investigation, the Court of Appeal dismissed them as unsubstantiated and upheld the District Court ’ s findings. Furthermore, the Court of Appeal dismissed as unsubstantiated the applicant ’ s allegation that he had been ill-treated by the police, having observed that a forensic medical examination had revealed no bodily injuries.

On 15 October 2014 the applicant lodged an appeal on points of law raising arguments similar to those submitted in his previous appeal.

On 23 December 2014 the Court of Cassation declared the applicant ’ s appeal on points of law inadmissible for lack of merit.

According to Article 20, everyone has the right to legal assistance. In cases prescribed by law, legal assistance is provided free of charge. Everyone has the right to defence counsel of his own choosing from the moment of his arrest, detention or accusation.

Articles 63 and 65 provide that the suspect and the accused have the right to defence counsel and to be questioned in the presence of defence counsel. The suspect enjoys this right 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, while the accused enjoys it from the moment when the charge is brought.

According to Article 69, defence counsel ’ s participation in the criminal proceedings is compulsory if, inter alia , the suspect or the accused has expressed such a wish. Defence counsel ’ s compulsory participation in the criminal proceedings is to be secured by the authority dealing with the criminal case.

According to Article 72 § 1, the refusal of defence counsel by the suspect or the accused means his intention is to conduct his defence without the assistance of a lawyer. The suspect ’ s or the accused ’ s statement refusing a lawyer is to be entered into a record.

According to Article 72 § 2, the authority dealing with the criminal case shall accept the refusal of defence counsel only if it has been announced by the suspect or the accused on their own initiative, voluntarily and in the presence of the appointed defence counsel or defence counsel who might have been appointed.

COMPLAINT

The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention that he did not have a fair trial on account of the denial of his access to a lawyer and the subsequent use of evidence obtained under duress and in the absence of a lawyer. The applicant submits that the waiver of his right to legal assistance during the early stages of the criminal proceedings had not been voluntary.

QUESTION TO THE PARTIES

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, did the applicant waive his right to be represented by a lawyer of his own choosing as guaranteed by Article 6 § 3 (c) of the Convention? If so, was the purported waiver “knowing and intelligent”? Was it attended by minimum safeguards commensurate to its importance (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 115, ECHR 2017 (extracts))?

The Government are requested to provide copies of all documents relating to the applicant ’ s request seeking to have criminal proceedings instituted against police officers for his alleged ill-treatment (crime report, the decision in respect of the crime report, the applicant ’ s appeals, if any) ; the copy of the decision of the Special Investigative Service on the applicant ’ s request lodged on 23 December 2011 seeking the recusal of the investigators included in the investigating team dealing with the criminal case against him as well as the applicant ’ s appeals against that decision, if any.