Communicated on 25 May 2020 Published on 15 June 2020

FIRST SECTION

Application no. 278/15 Saribek HARUTYUNYAN against Armenia lodged on 1 December 2014

STATEMENT OF FACTS

The applicant, Mr Saribek Harutyunyan , is an Armenian national who was born in 1979 and is detained in Yerevan. He is represented before the Court by Mr S. Jaghinyan , a lawyer practising in Yerevan.

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

On 17 April 2012 at about midnight a certain K. was severely beaten up during an argument in the street. As a result, K. died in hospital on 26 April 2012.

On 19 April 2012 criminal proceedings were instituted in connection with the above events.

On 27 April 2012 the applicant was arrested on suspicion of having beaten up K.

In the course of the investigation several witnesses were questioned, including M., the sole eyewitness to the events.

At the interviews held on 20 and 26 April 2012 respectively, M. stated inter alia , that on 17 April 2012 at about midnight he had been at home when he had heard loud voices from the outside. When he came out, he saw that K. and the applicant were having an argument during which the applicant had hit K. on the head. As a result, K. had fallen on his back and lost consciousness. M. further stated that he had told the applicant to go away. He had then provided K. with medical assistance, as a result of which the latter had regained consciousness. Shortly after, K. ’ s friends had come to his house and had taken K. to hospital.

It appears that on 26 April 2012 the investigator tried to question the applicant, who refused to make any statement in respect of the events of 17 April 2012, relying on his constitutional right to remain silent.

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

At a confrontation on 27 April 2012, M. reiterated his earlier statements while the applicant refused to make any statement or to comment on M. ’ s statements, once again pointing out his constitutional right to remain silent.

On 28 April 2012 the applicant was charged with wilful infliction of bodily harm to K., which had negligently caused the latter ’ s death.

On 2 May 2012 the applicant lodged an application with the investigator seeking to exclude the record of the confrontation held between him and M. on 27 April 2012 from the evidence. He submitted, inter alia , that he had not been properly questioned prior to the confrontation, which was a pre ‑ condition for holding a confrontation. Therefore, the record of the confrontation could not be relied on for the purposes of his indictment since it had been obtained in violation of the requirements of Article 216 § 1 of the Code of Criminal Procedure (the CCP).

On 10 May 2012 the investigator rejected the applicant ’ s application, stating that the confrontation held between the applicant and M. had been lawful and that it had pursued the aim of providing the applicant with a reasonable opportunity to cross-examine M. and challenge his statements.

On 24 July 2012 the applicant requested that an additional confrontation with M. be held. The investigator dismissed his application on the ground that a confrontation had already been held between him and M. and there was no need to carry out any further confrontation.

On an unspecified date, M. died in unknown circumstances.

On 28 December 2012 the case file, including the finalised indictment, was sent to the Arabkir and Kanaker-Zeytun District Court of Yerevan (“the District Court”) for examination on the merits.

On 8 November 2013 the District Court found the applicant guilty as charged and sentenced him to seven years ’ imprisonment. When convicting the applicant, the District Court did not make reference to M. ’ s pre-trial statements. As regards the issue of admitting the record of the confrontation between M. and the applicant in evidence, the District Court stated, inter alia , that the confrontation held between the a pplicant and M. on 27 April 2012 had been carried out in violation of the requirements of Article 216 § 1 of the CCP. In particular, the District Court found that the investigator had failed to observe the statutory requirement of questioning the applicant before holding the relevant confrontation.

On the same date the District Court adopted a separate decision finding, inter alia , that a number of measures carried out during the pre-trial investigation had breached the applicant ’ s procedural rights. The District Court therefore found it necessary to adopt a supplementary decision and draw the relevant investigative authority ’ s attention to the procedural breaches that had occurred during the pre-trial stage of the criminal proceedings against the applicant.

The applicant lodged an appeal arguing, inter alia , that his conviction was unlawful since the District Court had not properly assessed the evidence submitted before it.

On 24 January 2014 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 record of the confrontation between the applicant and M., the Court of Appeal found that the District Court ’ s findings as to the inadmissibility of that piece of evidence had been groundless. In particular, the Court of Appeal stated the following:

“It should be noted that although there was no substantial contradiction between the statements of ... [the applicant and M.], ... in the course of the pre-trial investigation of the present case the applicant, who had [the status of] a suspect, enjoyed the right to cross-examine a witness against him as provided under Article 65 § 2 (6) of [the CCP] ... the confrontation [held between] [the applicant] and [M.] was the only opportunity for the applicant to cross-examine [M.], a witness against him, taking into account the impossibility to examine [M.] at the trial, since he died [prior to the applicant ’s trial].”

The applicant, the prosecutor and the victim ’ s legal heir lodged appeals on points of law. In his appeal on points of law the applicant argued, inter alia , that the Court of Appeal had exceeded its jurisdiction by relying on evidence, namely the record of the confrontation held between the applicant and M. on 27 April 2012, which had previously been declared inadmissible by the District Court. He further submitted that there had been no proper confrontation between him and M. and that its record could not have been relied on by the Court of Appeal since it had been obtained in violation of the requirements of Article 216 § 1 of the CCP.

On 31 May 2014 the Court of Cassation quashed the Court of Appeal ’ s decision and upheld the judgment of the District Court dated 8 November 2013. However, contrary to the District Court ’ s findings, in substantiation of the applicant ’ s guilt, the Court of Cassation relied, inter alia , on M. ’ s pre-trial statements as well as on the record of the confrontation held between M. and the applicant on 27 April 2012. In doing so , it stated, in particular, the following:

“The Court of Cassation states that the investigative body is entitled to carry out a confrontation between the witness and the accused (suspect) if the latter, in exercise of his constitutional right, refuses to testify. Thus, in the present case, when holding a confrontation between [the applicant and M.], the investigative body has actually provided [the applicant] with an opportunity to challenge the statements made against him, thereby securing ... [his rights] as guaranteed under Article 6 § 3 (d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Consequently, the District Court ’ s findings as to the inadmissibility of the record of the confrontation were groundless, since during the pre-trial investigation [the applicant] refused to testify. In such circumstances, there was an [objective] impossibility for holding a confrontation in the sense of Article 216 of [the CCP].

Having said that, the Court of Cassation [upholds] the position of the Court of Appeal that the confrontation held between [the applicant] and [M.] on 27 April 2012 was conducted in accordance with the requirements of [the CCP]. It must [therefore] be considered as a dmissible evidence.”

According to Article 22, no person was under an obligation to testify against himself, his spouse or next of kin.

According to Article 65 § 2 (6), the accused has the right to testify and refuse to testify, to be cross-examined with the persons testifying against him.

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 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 a substantial contradiction between those statements and the statements made by that witness in court, and in other cases enumerated in this Code.

COMPLAINT

The applicant complains under Article 6 § 3 (d) of the Convention that his conviction was based on the pre-trial statements of M., a deceased witness, whom he had no opportunity to cross-examine properly during the criminal proceedings against him.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention?

In particular, was there a breach of the applicant ’ s right guaranteed by Article 6 § 3 (d) of the Convention on account of the fact that the pre-trial statement of deceased witness M. was admitted in evidence (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)?