Communicated on 11 May 2016

FIRST SECTION

Application no. 34684/13 Marzpetuni AVUSHYAN against Armenia lodged on 21 May 2013

STATEMENT OF FACTS

The applicant, Mr Marzpetuni Avushyan , is an Armenian national who was born in 1971 in Karakert , where he lived prior to his detention. He is represented before the Court by Mr T. Hayrapetyan , a lawyer practising in Yerevan.

A. The circumstances of the case

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

On 5 February 2010 the applicant was arrested on suspicion of robbery.

On 8 February 2010 he was placed in detention.

It appears that at some point during the investigation the applicant complained about alleged ill-treatment by several police officers during his arrest.

According to the applicant, an internal investigation was carried out by the regional police in relation to his complaints, the conclusion of which stated that after his apprehension on 5 February 2010 he had provided some clarifications and was released thereafter at 3 a.m. on the same day. He was arrested again later that same day, at about 6 p.m.

On an unspecified date the applicant was charged with robbery, allegedly committed with two other persons, and illegal arms possession.

On 27 December 2011 the Armavir Regional Court (the Regional Court) sentenced the applicant to nine years in prison. His two co-accused were also convicted and received custodial sentences.

The applicant lodged an appeal asking either for the Regional Court ’ s judgment to be quashed and the case sent for a fresh examination by the same court, or to have his conviction quashed and be acquitted.

On 11 July 2012 the Criminal Court of Appeal quashed the Regional Court ’ s judgment in respect of the applicant and remitted the case for a new examination. In doing so, the Court of Appeal found, inter alia , that the Regional Court had failed to secure the applicant ’ s right to a fair trial within a reasonable time as guaranteed by the Constitution and the Convention. Also, the Regional Court had delayed the examination of the applicant ’ s motions, in violation of the rules of criminal procedure.

On 4 September 2012, Judge K. of the Regional Court decided to set the case down for trial on 13 September 2012. The decision stated that the applicant ’ s detention should remain unchanged.

According to the applicant, the hearings in his case were postponed and rescheduled several times. Eventually, at the hearing held on 30 October 2012, the applicant lodged a motion seeking to be released from detention through application of a non-custodial preventive measure, or alternatively to be released on bail. He claimed that the reasons for his detention had ceased to exist long before. In particular, his actual detention had been excessively long; he had a minor child and an unemployed wife who took care of the child alone, and he had shown good behaviour. The applicant further claims that all the preconditions existed for his release on bail: his identity was known, he had a permanent place of residence and had never tried to hide from the investigation.

It appears that on the same day Judge K. decided to postpone the examination of the applicant ’ s motion until certain significant circumstances, which were important in taking a decision on the motion, were clarified. According to the applicant, the judge stated that before considering the motion, it was still necessary to question the victims and the witnesses and examine all the evidence.

On an unspecified date the applicant lodged an appeal against the decision of 4 September 2012 and against the non-examination of his motion of 30 October 2012. Submitting arguments in favour of his release similar to those submitted in his motion, the applicant argued that by postponing the examination of his motion the Regional Court had violated his rights under Article 5 § 3 of the Convention. In particular, he argued that the Regional Court had made his right to release pending trial dependent on whether or not all the evidence in the criminal case had been examined, considering the latter fact more important than his right to be released. He also complained that the Regional Court had failed to provide any reasons for keeping his detention unchanged.

On 14 November 2012 the Criminal Court of Appeal decided to leave the applicant ’ s appeal unexamined on the ground that the decisions complained of were not subject to appeal.

The applicant lodged an appeal on points of law against this decision. Reiterating his previous arguments, he submitted, inter alia , that his motion seeking to be released was not speedily examined, as required by Article 5 § 4 of the Convention, and that his detention was unreasonably long, in violation of the guarantees of Article 5 § 3 of the Convention.

On 21 December 2012 the Court of Cassation declared the applicant ’ s appeal on points of law inadmissible for lack of merit.

On 10 April 2013 the Regional Court examined the applicant ’ s motion of 30 October 2012 and rejected it. In doing so, it found that there was a high risk of the applicant evading trial and that there were not sufficient guarantees for his release; he could abscond, obstruct the administration of justice and exert influence on other participants in the proceedings.

The applicant lodged an appeal against the Regional Court ’ s decision of 10 April 2013, submitting the same arguments as before in favour of his unconditional release or, alternatively, his release on bail.

On 7 May 2013 the Criminal Court of Appeal decided to leave the applicant ’ s appeal unexamined on the ground that the decision of 10 April 2013, by which his detention was kept unchanged, was not subject to appeal, as opposed to decisions on authorisation, change or annulment of preventive measures.

As of 21 May 2013, when the applicant lodged his application with the Court, he was still under detention.

On 6 February 2014 the Regional Court sentenced the applicant to nine years in prison.

Upon the applicant ’ s appeal, on 24 July 2014 the Criminal Court of Appeal partially quashed the Regional Court ’ s judgment of 6 February 2014. In doing so, the Court of Appeal acquitted the applicant of one of the two counts of robbery with which he was charged and sentenced him to a total of eight years and six months in prison.

The applicant lodged an appeal on points of law which was declared inadmissible for lack of merit on 12 December 2014.

B. Relevant domestic law

The Code of Criminal Procedure (in force since 12 January 1999)

Article 102 § 2 provides that motions and requests should be examined and decided upon immediately after their submission, unless another procedure is envisaged by the present code. The examination of a motion can be postponed by the body conducting the criminal proceedings until the clarification of circumstances important for taking a decision on the motion.

COMPLAINTS

The applicant complains under Article 5 § 3 of the Convention that his detention was unreasonably long due to circumstances beyond his control. In particular, the Regional Court often delayed the examination of motions and postponed hearings without proper reasons. He further complains under the same provision that the domestic courts failed to provide relevant and sufficient reasons for his continued detention and that his right to be released pending trial was violated because of the unreasoned refusal to release him on bail.

The applicant complains under Article 5 § 4 of the Convention that his motion of 30 October 2012 was not speedily examined.

QUESTIONS TO THE PARTIES

1. Did the applicant exhaust the domestic remedies available to him in respect of his complaints under Article 5 § 3, as required by Article 35 § 1 of the Convention?

If so, did the applicant ’ s pre-trial detention comply with the “reasonable time” requirement and the requirement that the domestic courts provide “relevant” and “sufficient” reasons for it, as required by Article 5 § 3 of the Convention?

2. Did the length of the proceedings in the present case, by which the applicant sought to challenge the lawfulness of his detention, comply with the “speed” requirement of Article 5 § 4 of the Convention in view of the fact that the applicant ’ s motion of 30 October 2012 was examined by the Armavir Regional Court on 10 April 2013?

The Government are requested to provide a copy of the conclusion of the internal police investigation carried out in the course of the criminal proceedings against the applicant.