Communicated on 4 March 2020 Published on 30 March 2020

FIRST SECTION

Application s no s . 5760/17 and 26674/18 Arman SHKHRDUMYAN against Armenia and Artem MARGARYAN against Armenia (see list appended)

The relevant details of the applicants are set out in the appendix.

At the relevant time the applicant was the deputy head of the “ Zvartnots ” border control division of the National Security Service (NSS) border guard control troops.

On 18 November 2014, a certain H.Z. was already in the boarding area of Zvartnots airport in Yerevan and due to leave for Belgium when the officers of the NSS prevented her departure on grounds of illegal migration.

It appears that on the same date criminal proceedings were instituted on account of the above events.

On 18 November 2014 the applicant was arrested on suspicion of having organised H.Z. ’ s illegal migration to Belgium together with a certain J.Y., upon a preliminary agreement.

On 20 November 2014 he was formally charged under Article 329.1 § 3 ((2) and (4)) of the Criminal Code with organising illegal migration committed for mercenary motives by a group of persons acting upon a preliminary agreement and through abuse of authority. On the same date he was detained.

In the course of the investigation several witnesses were questioned, including H.Z. and her father, Z.A.

H.Z. was questioned on 20 November 2014. She stated, inter alia , that on 15 November 2014, together with her father, Z.A., she had gone to J.Y. ’ s flat where she had met an unknown man. During that meeting she had told J.Y. and the man in question that she had to visit Belgium. J.Y. and the unknown man had said that since the Schengen visa would be delivered by the Lithuanian consulate, it was necessary to enter that country first and then leave for Belgium. The unknown man had specified the travel itinerary. Thereafter, he had made a telephone call in their presence and ordered tickets. He had not specified the price for the tickets and had said that J. Y. would tell them later.

At an additional questioning on 16 December 2014, H.Z. confirmed her previous statements and added that, in her opinion, the unknown man had been informed of their arrangements with J.Y.

On 15 December 2014 Z.A. was questioned. He stated, inter alia , that during the meeting in J.Y. ’ s flat on 14 November 2014 he had had a conversation with a man whom he had asked for advice concerning the reservation of tickets for his daughter ’ s departure to Belgium. That man had then called someone to reserve the tickets. Z.A. further stated that, if he were to meet the same man, he would probably be able to recognise him.

On 23 December 2014 an identity parade was organised by the investigative body and Z.A. was invited to identify the applicant. It appears that Z.A. stated that he did not recognise anyone among the four persons presented to him.

At an additional questioning on 24 December 2015 Z.A. stated, inter alia , that during the identification parade he had not pointed anyone out since he had not wanted to take such a responsibility and was afraid to make a mistake and mention the wrong person through negligence. However, he was personally convinced that, among the four persons presented to him for identification, the man whom he had met was the person standing second from the left in the row (the applicant).

On 3 July 2015 the bill of indictment was finalised and the case was sent to the Kentron and Nork- Marash District Court of Yerevan for examination on the merits.

It appears that witnesses H.Z. and Z.A. were not summoned to the applicant ’ s trial.

On 22 December 2015 the District Court found the applicant guilty as charged and sentenced him to three years ’ imprisonment with a ban on holding certain posts and carrying out certain activities. In doing so, the District Court relied, inter alia , on the pre-trial statements of witnesses H.Z. and Z.A.

On 13 January 2016 the applicant lodged an appeal submitting, inter alia , that he had not cross-examined the witnesses against him during the investigation, although there were substantial contradictions between their statements and the versions of the events suggested by him and the other co ‑ accused. The applicant further complained that by failing to summon the witnesses in question and by relying on their pre-trial statements, the District Court had violated his right to a fair trial as guaranteed by Article 6 of the Convention.

By a judgment of 26 May 2016 the Criminal Court of Appeal amended the applicant ’ s sentence by imposing three years ’ imprisonment without a ban on holding certain posts and carrying out certain activities. The Court of Appeal upheld the remainder of the District Court ’ s judgment. In substantiating the applicant ’ s guilt, the Criminal Court of Appeal also relied on Z.A. ’ s statements. It did not address the applicant ’ s complaints concerning the impossibility to examine the witnesses against him during the trial. The Court of Appeal did not make reference to H.Z. ’ s statements.

On 25 June 2016 the applicant lodged an appeal on points of law raising arguments similar to those submitted in his previous appeal.

On 5 October 2016 the Court of Cassation declared the applicant ’ s appeal inadmissible for lack of merit.

At the relevant time the applicant was a head of department at the Gyumri Military Commissariat.

In November 2016 a certain H.G. applied to the applicant, seeking to replace his military passbook, which he had lost. It appears that there were some difficulties concerning the documents required for replacing the military passbook in question.

On 9 November 2016 H.G. filed a police report against the applicant alleging that on 8 November 2016 he had solicited a bribe from him to deliver a new military passbook. According to H.G., he had met the applicant in the latter ’ s office and he had demanded a sum of 200 United States dollars (USD) in the presence of a certain T.M.

On the same date criminal proceedings were instituted.

On 10 November 2016 the Chief of Military police of the Ministry of Defence applied to the Malatia-Sebastia District Court of Yerevan seeking authorisation to carry out a covert operation in respect of the applicant, namely internal surveillance.

On the same date the District Court granted the request and authorised the applicant ’ s surveillance for a period of one month.

On the same date senior officer L.M. of the Military Police conducted a covert operation targeting the applicant. He equipped H.G. with a tape ‑ recorder and instructed him to record his conversations with the applicant. On the same date, at around 5.45 p.m., H.G. was received by the applicant in his office. In accordance with the instructions, H.G. engaged the applicant in a conversation about the required sum. It appears that on the same day the applicant received the money from H.G. and the conversation during their meeting was recorded on a tape-recorder. It further appears that the moment after the applicant received the money, the police arrested him in his office. The applicant then voluntarily handed the money to the police officers.

On 12 November 2016 the applicant was charged under Article 311 of the Criminal Code with bribe-taking.

In the course of the investigation the police questioned a number of witnesses, including H.G. who stated, inter alia , that on 8 November 2016, together with a certain T.M., he had gone to the Military Commissariat, where the applicant worked. During the meeting with the applicant, he and T.M. had presented him with all the necessary documents and asked if it was possible to accelerate the procedure for obtaining the military passbook. The applicant had allegedly asked whether USD 200 would suit him. At first he had not understood what exactly the applicant meant. Thereafter, he had responded that he would think about it and give a response later.

It appears that, due to substantial contradictions between H.G. ’ s statements and those of the applicant, the investigator decided to hold a confrontation between them.

It further appears that a confrontation took place on 11 November 2016 where H.G. reiterated his earlier statements.

On 16 January 2017 the bill of indictment was finalised and the case was sent to the Shirak Regional Court for examination on the merits.

On an unspecified date the applicant applied to have H.G. summoned to be examined in court.

It appears that the Regional Court dismissed this request on the grounds that a confrontation had been held between the applicant and H.G. during which the applicant and his lawyers had had an opportunity to challenge H.G. Thus, the rights of the defence had been respected.

On 22 June 2017 the Regional Court found the applicant guilty as charged and imposed a one-year sentence with a ban on holding managerial posts in State institutions. In substantiating the applicant ’ s guilt, the Regional Court relied, inter alia , on H.G. ’ s pre-trial statements.

On 20 July 2017 the applicant lodged an appeal against the Regional Court ’ s judgment claiming, inter alia , that there had been no confrontation between him and H.G. during the investigation. He further complained that the Regional Court had failed to summon H.G. properly and relied on his pre-trial statements. Thus, the applicant had not been given an opportunity to cross-examine the witness in question at his trial. Lastly, he argued that H.G. ’ s pre-trial statements could not be considered reliable since, during questioning, he had always been under the influence of alcohol.

On 31 October 2017 the Criminal Court of Appeal upheld the applicant ’ s conviction. In doing so, the Court of Appeal indicated that the applicant had been given an opportunity to cross-examine H.G. during the investigation. However, he had failed to use the opportunity to question him. Moreover, during the proceedings before the Regional Court H.G. was abroad and the Regional Court did not have an objective possibility to secure his attendance at the applicant ’ s trial.

On 10 January 2018 the applicant lodged an appeal on points of law raising arguments similar to those submitted in his previous appeal.

On 12 February 2018 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 domestic law see the judgment in the case of Gabrielyan v. Armenia (see no. 8088/05, § 57, 10 April 2012).

COMPLAINTS

The applicants complain under Article 6 § 3 (d) of the Convention that they were not given an opportunity to examine witnesses against them during the criminal proceedings. In particular, the applicant in case no. 5760/17 complains that he was unable to examine prosecution witnesses H.Z. and Z.A. at his trial while the applicant in case no. 26674/18 complains that he did not examine prosecution witness H.G. at any time during the criminal proceedings.

COMMON QUESTION

Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? In particular, did the fact that the applicants were not able to examine the witnesses against them at their trial violate the ir rights guaranteed by Article 6 § 3 (d) of the Convention? (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-131, ECHR 2015 ) .

CASE-SPECIFIC QUESTIONS

1. Application No. 5760/17

Has the applicant exhausted all effective domestic remedies available to him in respect of his complaint under Article 6 § 3 (d) of the Convention, as required by Article 35 § 1 of the Convention?

2. Application No. 26674/18

Did the applicant have an opportunity to examine witness H.G. during the investigation?

The Government are requested to provide copies of the following documents from the case file: the records of confrontations, if any, and documents relating to the reasons for H.G. ’ s non-attendance at the applicant ’ s trial, if there are any.

APPENDIX

No.

Application

no.

Lodged on

Applicant name

date of birth

place of residence

Represented by

5760/17

24/12/2016

Arman SHKHRDUMYAN

17/01/1979

Yerevan

Seda SAFARYAN

26674/18

29/05/2018

Artem MARGARYAN

18/05/1984

Yerevan

Armen TEVANYAN

Karen KAMALYAN