Communicated on 16 June 2020 Published on 6 July 2020

FIRST SECTION

Application no. 26522/15 Ashot ARUSHANYAN against Armenia lodged on 25 May 2015

STATEMENT OF FACTS

The applicant, Mr Ashot Arushanyan , is an Armenian national who was born in 1986 and lives in Hrazdan . He is represented before the Court by Mr L. Simonyan , a lawyer practising in Yerevan.

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

The applicant worked as a senior risk management specialist in a bank.

On 20 June 2012 he was arrested on suspicion of having assisted in the theft of an exceptionally large amount of money.

On 23 Jun e 2012 he was formally charged under Article 177 § 3 (1) of the Criminal Code with assisting in the theft of an exceptionally large amount of money by providing relevant information about the money to the offenders.

In the course of the investigation several witnesses were questioned, including A.G., who was one of the co-accused in the criminal proceedings.

At the questioning of 20 June 2012 A.G. stated, inter alia , that he and E.K., another co-accused, had obtained the information about the stolen money from the applicant. According to A.G., the applicant had provided confidential bank documents concerning the transfer of the amount in question and its location.

During his questioning held on the same date the applicant submitted, inter alia , that he had never provided any information to A.G. and E.K. about the stolen money and that there were no grounds for his accusation.

Due to substantial contradictions between A.G. ’ s statements and those of the applicant, the investigator decided to hold a confrontation between them.

At a confrontation which took place on 21 June 2012, A.G. reiterated his earlier statements while the applicant denied that he had ever provided any confidential bank document concerning the transfer of the stolen money and its location.

According to the materials in the case file, T.A., the applicant ’ s privately-hired defence counsel, was absent from the confrontation for a certain period of time.

On 26 June 2012 A.G. committed suicide in unknown circumstances.

On 20 September 2012 the bill of indictment was finalised and the case was sent to the Kentron and Nork- Marash District Court of Yerevan ( “ the District Court ” ) for examination on the merits.

By its decision of 18 December 2012 the Board of the Chamber of Advocates imposed a disciplinary measure on T.A. The relevant parts of this decision read as follows:

“The Board of the Chamber of Advocates states that during the confrontation, by leaving the place of the accomplishment of an investigative measure for 10 to 15 minutes, by failing to finish the investigative measure conducted with the participation of his client ... the respondent [T. A.,] had in fact failed to implement his duty provided under the Code of Conduct, namely to advise and to protect his client promptly, conscientiously and diligently, thereby depriving [the applicant] of the Constitutional right to receive effective legal assistance”.

On 30 January 2013 the District Court found the applicant guilty as charged and sentenced him to five years and six months ’ imprisonment with confiscation of thirty percent of his property. In convicting the applicant, the District Court relied, inter alia , on A.G. ’ s pre-trial statements as well as on the record of the confrontation held between A.G. and the applicant on 21 June 2012.

The applicant lodged an appeal arguing, inter alia , that A.G. ’ s pre-trial statements had been admitted in evidence against him although the formal confrontation between them had been held in violation of his defence rights. In particular, he alleged that T.A. had been absent for approximately thirty to forty minutes during the confrontation. He further submitted that as a result of such conduct T.A. had been subjected to disciplinary measures by the Board of the Chamber of Advocates. Furthermore, the applicant submitted a secretly- recorded conversation between his father and T.A. in which T.A. had admitted that he had been absent for forty minutes from the relevant confrontation since he was simultaneously dealing with another case. The applicant submitted an expert report confirming the authenticity of the recording.

On 23 July 2013 the Criminal Court of Appeal ( “ the Court of Appeal ” ) reversed the District Court ’ s judgment and remitted the case for a new examination. As regards the alleged violations of the applicant ’ s defence rights which occurred at the confrontation between him and A.G., the Court of Appeal stated the following:

“From the content of the video [recording] examined by the Court of Appeal and from the materials and decision of the ... Chamber of Advocates, it appears that during the aforementioned confrontation [which was conducted] in the presence of [T. A.], ... there were breaches [of the applicant ’ s defence rights], which have been invoked both by the defence counsel in his final pleading, as well as in the corresponding decision of the Chamber of Advocates of the Republic of Armenia.

It appears from the video recording that [T. A.] did not deny that he had been absent for 40 minutes from the confrontation due to his involvement with another case.

During the fresh examination [of the case] it is also necessary to determine the issue of admitting as evidence the secretly-recorded conversation [between the applicant ’ s father and T.A] [in the light of the requirements of] Article 105 of the Code of Criminal Procedure as a circumstance for [the applicant ’ s] acquittal as well as the conclusions of the RA Chamber of Advocates regarding [T. A. ’ s] disciplinary liability...”.

On 28 October 2013 the District Court decided to set the case down for trial.

In the course of the proceedings before the District Court the applicant made similar arguments to those made before the Court of Appeal as regards the violation of his defence rights at the confrontation held between him and A.G. on 21 June 2012. In particular, he submitted that the record of that confrontation could not be relied on by the District Court since it had been obtained in violation of his defence rights.

By its judgment of 16 June 2014 the District Court found the applicant guilty and imposed the same prison sentence as before, but without confiscation of property. When convicting the applicant, the District Court did not make reference to A.G. ’ s pre-trial statements. As regards the issue of admitting the record of the confrontation between A.G. and the applicant in evidence, the District Court stated the following:

“The Court ... reaffirming the inadmissibility of [A.G. ’ s pre-trial statement and the record of the confrontation between A.G. and the applicant] as well as the impossibility of relying on that evidence to substantiate the accused ’ s guilt, finds that ... they should not be interpreted and considered as evidence, but should serve as a relevant and trustworthy hypothesis and should be examined together with other evidence obtained [in the course of the investigation of the criminal case].

The Court considers that the grounds for the inadmissibility of the aforementioned evidence were of a technical nature. In particular, the investigative authority acquired the evidence [in question] in violation of [the applicant ’ s] and [A.G. ’ s] fundamental rights”.

The applicant lodged an appeal arguing, inter alia , that he had not had an opportunity to cross-examine A.G. properly during the investigation. He further argued that although the District Court had considered A.G. ’ s pre ‑ trial statements and the record of the confrontation as inadmissible evidence, it had nevertheless based its conclusions on that evidence, finding it to be a “trustworthy hypothesis”.

On 28 November 2014 the Court of Appeal upheld the judgment of 16 June 2014. In substantiation of the applicant ’ s guilt, the Court of Appeal relied, inter alia , on A.G. ’ s pre-trial statements, as well as on the record of the confrontation held between A.G. and the applicant on 21 June 2012. In doing so , it stated, in particular, the following:

“The [Court of Appeal], having regard to the prosecutor ’ s position..., having once again analysed the question of lawfulness ... of [A.G. ’ s] statement of 20 June 2012, as well as the record of the confrontation held between the latter and [the applicant]... reached the conclusion that the [District] Court ’ s findings as to the inadmissibility of that evidence do not stem from the requirements of Article 105 of the Code of Criminal Procedure. ... Without any valid justification, the [District] Court granted the application of the defence to exclude [A.G. ’ s] statement of 20 June 2012, as well as the record of the confrontation from the evidence while the investigator had not committed any substantial violations of the ... Code of Criminal Procedure when carrying out the investigative measures in question ...

As regards the [District] Court ’ s decision to declare inadmissible as evidence the record of the confrontation held between [A.G.] and [the applicant] on 21 June 2012, the Court of Appeal finds that it was also unfounded, as during the questioning at the confrontation [the applicant ’ s] defence counsel was present ..., and before starting the confrontation the investigator ... explained to [the applicant] and his [defence] counsel their rights. Therefore, the record of that investigative [measure ] complies with the requirements of Article 216 of the Code of Criminal Procedure”.

On 25 December 2014 the applicant lodged an appeal on points of law. He argued, inter alia , that there had been no proper confrontation between him and A.G. and that its record could not be relied on by the Court of Appeal since it had been obtained in violation of his defence rights.

On 5 March 2015 the Court of Cassation declared the applicant ’ s appeal on points of law inadmissible for lack of merit.

1. The Code of Criminal Procedure (in force since 1999)

According to Article 86 § 1, a witness is a person who has been called to testify by a party or the authority dealing with the criminal case and who may be aware of any circumstance related to the case which needs to be clarified.

According to Article 105 § 2, in criminal procedure it is illegal to use as evidence or as a basis for accusation facts obtained in violation of the defence rights of the suspect and accused.

According to Article 106 § 1, the inadmissibility of factual data as evidence, and the possibility of its limited use in the proceedings, shall be established by the examining authority of its own motion or upon the request of a party.

According to Article 216 § 1 the investigator is entitled to carry out a confrontation of two persons who have been questioned previously and whose statements contain substantial contradictions. The investigator is obliged to carry out a confrontation if there are substantial contradictions between the statements of the accused and some other person.

According to Article 342 § 1, the reading out at the trial of witness statements made during the inquiry, the investigation or a previous court hearing is permissible if the witness is absent from the court hearing for reasons which rule out the possibility of his appearance in court, if there is substantial contradiction between those statements and the statements made by that witness in court, and in other cases prescribed by this Code.

2. The Advocacy Act

Article 19 § 1 provides that advocates have a duty to act honestly and in good faith when protecting the rights and lawful interests of the client and by all ways and means which are not prohibited under the legislation of the Republic of Armenia.

3. The Code of Professional Conduct for Advocates

Rule 2.6.1 provides that in accordance with the law and the requirements of professional conduct, an advocate should always act in the best interests of the client and must put those interests before his/her own interests.

Rule 2.7.2 provides that an advocate must provide diligent legal assistance to the client within the scope of his/her professional capacity, which implies knowledge of the relevant branch of law, study of all the circumstances concerning the client ’ s assignment and undertaking of actions necessary for the proper performance of that assignment.

Rule 3.5.3 provides that an advocate must advise and represent the client promptly, conscientiously and diligently and act on his/her behalf.

COMPLAINTS

Relying on Article 6 §§ 1 and 3 (c) and (d) of the Convention, the applicant complains that his right to a fair trial was breached.

In particular, the applicant complains that the confrontation held between him and A.G. on 21 June 2012 was conducted in violation of his defence rights while the record of that confrontation was eventually relied on by the courts when convicting him.

The applicant further complains that his conviction was based on the pre ‑ trial statements of a dead witness, A.G., whom he had no opportunity to cross-examine during the criminal proceedings against him.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with the requirements of Article 6 §§ 1 and 3 (c) and (d) of the Convention? In particular:

a) Was the applicant ’ s right to effective legal assistance, as guaranteed by Article 6 § 3 (c) of the Convention, respected having regard to the fact that T.A. was absent for a certain period of time during the confrontation held between A.G. and the applicant on 21 June 2012 (see Artico v. Italy , no. 669 4/74, §§ 33 and 36, 13 May 1980; Imbrioscia v. Switzerland , no. 13972/88, § 41, 24 November 1993; and Czekalla v. Portugal , no. 38830/97, §§ 65 and 7 1 , 10 October 2002)?

b) Was it a breach of the applicant ’ s right guaranteed by Article 6 § 3 (d) of the Convention that the pre-trial statement of essential witness A.G. was admitted in evidence, since he had died (see Al ‑ Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 118-147, ECHR 2011; and Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-131, ECHR 2015)?