Communicated on 24 June 2020 Published on 15 July 2020

FIRST SECTION

Application no. 76757/14 Aram MUGHALYAN against Armenia lodged on 28 November 2014

STATEMENT OF FACTS

The applicant, Mr Aram Mughalyan , is an Armenian national who was born in 1988 and lives in Yerevan.

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

On 13 March 2013 criminal proceedings were instituted on account of intentional damage to property (attempted destruction of one thousand two hundred bales of hay and the adjacent area) which belonged to a certain S.

At some point the applicant was invited to the police station to provide written explanations in connection with the criminal case.

On 30 March 2013 he made several self-incriminatory statements according to which he and his friends G., A. and R. had burned bales of hay with the help of diesel fuel in a cattle barn situated in Armavir Region. He further submitted that they had done so for personal amusement.

It appears that on 11 April 2013 another set of criminal proceedings was instituted on account of the same events.

It further appears that in view of the similar subject matter of the above ‑ mentioned sets of criminal proceedings, by a decision adopted on the same date the investigator decided to join the criminal cases for joint examination.

On 17 April 2013 the applicant and his friends G., A. and R. were arrested on suspicion of causing intentional damage to S. ’ s property.

On 20 April 2013 the applicant was charged with aggravated hooliganism and placed in pre-trial detention.

On 4 July 2013 the applicant was additionally charged with attempted intentional destruction or damage to S. ’ s property committed by arson, explosion or other publicly dangerous method causing grave harm.

It appears that in the course of the investigation several witnesses were questioned, including S., who had been granted victim status in criminal proceedings, N.M., his wife, and M.M., P.T., and M.N., who were S. ’ s neighbours .

S. stated, inter alia , that on 6 January 2013 at around 1.30 a.m. he had been at home when he heard his dogs barking outside. When he had gone outside, he had seen that his bales of hay were on fire. In order to avoid the fire spreading to all the bales of hay in the barn, he and his family members had extinguished the fire. S. also stated that similar incidents had taken place again on 19 and 26 January 2013, during the night. When, on 29 March 2013, unknown persons had attempted to set fire to his hay bales again, his neighbour M.M. had noticed an unfamiliar car near his house and had noted the licence plate number and reported it to the police.

When questioned, M.M. stated, inter alia , that on 29 March 2013 at around 11 p.m. he had seen a BMW car close to S. ’ s cattle barn. He also stated that he had seen a blazing fire and that two individuals had driven away in that car while he had managed to note down the car ’ s number plate.

N.M., P.T., and M.N. made similar statements, confirming that on numerous occasions in January and March 2013 some unknown people had attempted to burn bales of hay belonging to S.

On 1 August 2013 the case was sent to the trial court for examination on the merits.

According to the materials in the case file, the applicant pleaded not guilty and denied his involvement in any offence imputed to him.

It appears that during the trial proceedings S. and the witnesses M.M., N.M., P.T., and M.N. reiterated their pre-trial statements.

On 15 October 2013 the Armavir Regional Court (“the Regional Court”) found the applicant guilty as charged and sentenced him to two years and six months ’ imprisonment. In substantiation of the applicant ’ s guilt, the Regional Court relied, inter alia , on statements from S. and witnesses, and on material and forensic expert evidence. The District Court made no reference to the applicant ’ s statements of 30 March 2013. At the same time, it decided to exempt the applicant from serving his sentence by applying the Amnesty Act adopted by the National Assembly on 3 October 2013.

The applicant lodged an appeal arguing, inter alia , that his conviction had been unlawful since the Regional Court had not properly assessed evidence submitted to it. He further argued that the Regional Court ’ s judgment had lacked proper reasoning and had been adopted in substantial violation of procedural law. The prosecution did not submit a response to the applicant ’ s appeal.

On 4 December 2013 the Criminal Court of Appeal (“the Court of Appeal”) decided to set the applicant ’ s criminal case down for trial. It also decided that the case would be examined in accordance with the rules applicable to proceedings before the Court of Cassation.

The applicant submitted that, in the proceedings before the Court of Appeal, he had lodged several applications challenging the admissibility of evidence relied on by the Regional Court in the judgment of 15 October 2013 to substantiate his guilt.

It appears that the Court of Appeal did not address those applications.

It further appears that, at the hearing of 5 March 2014, the Court of Appeal examined an application lodged by the prosecutor, whereby the latter sought permission to adduce new evidence incriminating the applicant.

According to the applicant, on the same date the Court of Appeal allowed the prosecutor ’ s application and admitted as evidence the record of his explanation given on 30 March 2013.

By a decision of 20 March 2014 the Court of Appeal amended the applicant ’ s sentence by imposing imprisonment for two years and four months and a fine of 50,000 Armenian drams (approximately 100 euros). Although the Court of Appeal upheld the remainder of the judgment of 15 October 2013, contrary to the Regional Court, the Court of Appeal relied, inter alia , on the record of the applicant ’ s explanation of 30 March 2013, which was adduced by the Prosecutor at the hearing of 5 March 2014 to substantiate the applicant ’ s guilt. Like the Regional Court, the Court of Appeal decided to exempt the applicant from serving his punishment by virtue of the Amnesty Act of 3 October 2013.

The applicant lodged an appeal on points of law. He argued, inter alia , that his right to an adversarial trial and the principle of equality of arms as guaranteed under Article 6 of the Convention had not been respected owing to the fact that the Court of Appeal had examined and granted an application lodged by the prosecution, whereas his own applications were not examined at all. Furthermore, when setting the case down for trial, the Court of Appeal had decided that the proceedings would be conducted in accordance with the rules applicable to proceedings before the Court of Cassation. However, it had then changed the nature of the proceedings without his prior knowledge. In doing so, it had accepted new documentary evidence (the record of his written explanation dated 30 March 2013) from the prosecution and moreover relied on it to substantiate his guilt. Therefore, he was deprived of a reasonable opportunity to present his case under conditions that did not place him at a disadvantage vis-à-vis the prosecution .

On 6 June 2014 the Court of Cassation declared the applicant ’ s appeal on points of law inadmissible for lack of merit.

The Code of Criminal Procedure (in force since 1999)

According to Article 180 § 1, reports on crimes must be examined and decided upon without delay and within a period of ten days in cases where it is necessary to check whether there are lawful and sufficient grounds to institute proceedings ( հետաքննություն , “inquiry”). Within that period the authorities may take certain measures, such as requesting explanations and ordering forensic examinations (Article 180 § 2).

According to Article 382 § 3, which provides the modalities for notification of claims lodged with the Court of Appeal, in exceptional cases parties have the right to submit new materials in connection with their appeal or the appeal lodged by the opponent party if, inter alia , they substantiate that they did not objectively have the opportunity to submit those materials previously before the first instance court.

According to Article 390 § 1, the examination of cases in the Court of Appeal is carried out in accordance with, inter alia , the rules applicable to proceedings before the Court of Cassation.

According to Article 418 § 1, the examination of the case in the Court of Cassation begins with the report of the judge of the Chamber of the Court of Cassation.

According to Article 418 § 2, the rapporteur states the circumstances of the case, the content of the judgment or decision and the arguments raised in the appeal on points of law.

According to Article 418 § 3, the plaintiff has the right to be present at the hearing before the Court of Cassation.

According to Article 418 § 5, if explanations are needed, the person who lodged the appeal on points of law may be summoned to the hearing of the Court of Cassation, as may the parties to the proceedings, who will be notified of the time and place of the hearing. Failure to appear shall not preclude the examination of the case.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that the Court of Appeal admitted as evidence the record of his explanation of 30 March 2013 adduced by the prosecution, which deprived him of a reasonable opportunity to present his case under conditions that did not place him at a disadvantage vis-à-vis the prosecution.

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, were the principles of adversarial hearing and equality of arms guaranteed by that provision respected in the proceedings before the Civil Court of Appeal as regards the examination and admission of the record of explanation of 30 March 2013 as evidence (see Bulut v. Austria , 22 February 1996, § 49, Reports of Judgments and Decisions 1996 ‑ II; Borgers v. Belgium , 30 October 1991, Series A no. 214 ‑ B; and Zahirovi ć v. Croatia , no. 58590/11, §§ 44-50, 25 April 2013 )?

The Government are requested to provide copies of the following documents: the decision on bringing charges against the applicant; the bill of indictment, the records of the applicant ’ s pre-trial statements, if any; the records of the interviews of victim S. and witnesses M.M., N.M., P.T., and M.N.; as well as the applications lodged by the applicant with the Criminal Court of Appeal seeking to exclude evidence relied on by the Regional Court in the judgment of 15 October 2013 .