Communicated on 6 October 2015

THIRD SECTION

Application no. 13610/12 Vardan MARTIROSYAN against Armenia lodged on 7 March 2012

STATEMENT OF FACTS

The applicant, Mr Vardan Martirosyan, is an Armenian national who was born in 1984 and lives in Yerevan. He is represented before the Court by Mr T. Safaryan , 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 1 July 2011 at around 8 p.m. the applicant, a customs broker, was apprehended at the airport in Yerevan by agents of the National Security Service on suspicion of involvement in illegal drug exportation.

On 2 July 2011 criminal proceedings were instituted against the applicant on account of attempted drug smuggling.

On the same date at 1 a.m. the applicant was formally put under arrest. The record of arrest stated that he had been caught immediately after having committed the imputed offence.

On 3 July 2011 the applicant was officially charged with attempted drug smuggling for having assisted another person, S., in an attempt to export drugs illegally from Armenia via the Yerevan-Amsterdam flight.

On the same date the investigator decided to lodge a motion seeking to have the applicant detained for two months. The relevant motion referred to the gravity of the offence and stated that, if he were to remain at large, the applicant could abscond, obstruct the investigation by exerting unlawful influence on the parties to the proceedings and suppress the evidence.

On the same day the Kentron and Nork- Marash District Court of Yerevan (the District Court) granted the investigator ’ s motion and ordered the applicant ’ s detention for a period of two months on the same grounds as those stated in the motion and with reference to the existence of a reasonable suspicion that the applicant had committed the offence imputed to him.

The applicant did not appeal against this decision.

On 21 August 2011 the investigator decided to lodge a motion seeking to extend the applicant ’ s detention for two months. The motion stated that it was necessary to carry out a number of investigative measures which would facilitate the legal assessment of, inter alia , the applicant ’ s actions as well as the discovery of other persons possibly involved in the same offence. The grounds justifying the applicant ’ s further detention were similar to those relied on in the previous motion.

On 26 August 2011 the District Court authorised the applicant ’ s detention for two more months on similar grounds to those stated in its previous decision.

The applicant did not appeal against this decision either.

On 20 October 2011 the investigator decided to lodge a motion seeking to extend the applicant ’ s detention for another two months on similar grounds.

On 28 October 2011 the District Court extended the applicant ’ s detention by two months. In its decision the District Court stated that the applicant ’ s further detention was justified in view of the gravity of the offence committed by him and given that the grounds for his detention persisted. The District Court also refused to release the applicant on bail.

On 2 November 2011 the applicant lodged an appeal. He submitted, inter alia , that the District Court had authorised his detention and refused to release him on bail without any factual basis or evidence suggesting that he would abscond or obstruct the investigation and despite the fact that he had no criminal record or past involvement in the drugs trade and had permanent residence and employment. On the contrary, he had cooperated with the investigating authorities by providing all the information known to him and had never tried to hide from the prosecution. The applicant further complained that the decision of the District Court, when referring to the “gravity of the offence committed by him” to justify his detention, reflected an opinion that he was guilty of the offence in question, in breach of the principle of presumption of innocence.

On 10 November 2011 the Criminal Court of Appeal rejected the applicant ’ s appeal. In doing so, it concluded that the grounds for keeping the applicant in detention persisted. As for the allegations concerning the breach of the presumption of innocence, the Court of Appeal stated that although the District Court had mentioned that it had taken into consideration the nature and gravity of the offence committed by the applicant, it had granted the investigator ’ s motion in compliance with the relevant provisions of the Code of Criminal Procedure.

On 26 November 2011 the applicant lodged an appeal on points of law which was declared inadmissible for lack of merit by a decision of the Court of Cassation of 22 December 2011.

On 21 December 2011 the investigator decided to lodge a motion seeking to extend the applicant ’ s detention for two months.

On 28 December 2011 the District Court granted the investigator ’ s motion and authorised the applicant ’ s detention for two more months. In doing so, the District Court referred to the gravity of the offence committed by the applicant and the need to continue the investigation.

On 29 December 2011 the applicant lodged an appeal raising the same arguments as in his previous appeal, with regard to the reasonableness of his continued detention and the breach of the presumption of innocence.

On 19 January 2012 the Criminal Court of Appeal rejected the applicant ’ s appeal. The Court of Appeal found that the District Court had exceeded its authority at the given stage of the proceedings when it stated that it “takes into account the nature and gravity of the offence committed by the accused” and therefore the motion lodged by the investigator could not be granted on this ground. However, the Court of Appeal concluded that the applicant should remain in detention, given the nature and gravity of the offence imputed to him and the reasonable suspicion that he could abscond or obstruct the investigation.

On 6 February 2012 the applicant lodged an appeal on points of law which was declared inadmissible for lack of merit by a decision of the Court of Cassation of 20 March 2012.

On 20 February 2012 the investigator decided to lodge another motion seeking the applicant ’ s further detention for one month. Apart from the grounds for the applicant ’ s detention relied on in previous motions, the investigator mentioned the fact that the accused and the lawyers were still consulting the case file, and that the prosecutor also needed time to examine the materials of the case.

On 28 February 2012 the District Court authorised the applicant ’ s detention for one more month on the same grounds as before.

On 4 March 2012 the applicant lodged an appeal.

By a letter dated 14 March 2012 the Criminal Court of Appeal summoned the applicant ’ s defence lawyer to appear at the hearing of the appeal at 4 p.m. on 15 March 2012. This letter was dispatched on 15 March 2012.

On 15 March 2012 the Court of Appeal held a hearing and rejected the applicant ’ s appeal stating that there was still a reasonable suspicion that the applicant would abscond. Neither the applicant nor his lawyer were present at this hearing, which was held in the presence of the investigator who made his submissions in support of the applicant ’ s further detention. The decision stated that, being aware of the date and time of the hearing, the applicant ’ s lawyer had failed to appear and had informed the court by telephone that he did not object to the appeal being heard in his absence.

According to the applicant, at around 4.30 p.m. on 15 March 2012 his lawyer had received a telephone call from the investigator who informed him that the hearing of the appeal had been set to take place at 4 p.m. The lawyer responded that he had not received a summons informing him of the date and time of the hearing and said that he was unable to attend the hearing due to other business. However, the lawyer did not ask that the hearing be held in his absence.

The applicant ’ s lawyer received the summons on 16 March 2012.

The applicant did not lodge an appeal on points of law against the decision of the Court of Appeal of 15 March 2012.

It appears that in March 2012 the bill of indictment was finalised and the case was sent to the Malatia-Sebastia District Court of Yerevan (the Malatia-Sebastia District Court) for examination on the merits. It further appears that Judge F. of this court took over the case.

On 27 March 2012 Judge F. made a decision to set the case down for trial. The relevant parts of the decision stated the following:

“Having examined the criminal case against ... [the applicant] ..., Judge F. of the Malatia-Sebastia District Court of Yerevan d ecides to set criminal case no. EMD/0026/01/12 for trial on 6 April 2012 at 12.30 pm. in the Malatia-Sebastia District Court of Yerevan in order to hold ... [the applicant] criminally liable for the offences envisaged by Articles ... of the Criminal Code.

... and [decides to] leave the preventive measure chosen in respect of the accused persons unchanged.”

On 25 February 2013 the applicant lodged a motion seeking to be released from detention.

On the same day Judge F. decided to reject the motion on the ground that the reasonable suspicion that the applicant had committed the offence with which he was charged, and the grounds for his detention, still persisted.

On 20 August 2013 the Malatia-Sebastia District Court delivered a judgment on the merits of the case and convicted the applicant, sentencing him to imprisonment for four years and six months.

B. Relevant domestic law

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

According to Article 288 § 3 the judicial review of, inter alia , a decision to extend pre-trial detention is carried out in camera with the participation of the prosecutor and the defence lawyer. Failure to appear by a party who was aware in advance of the date of the examination of the appeal does not hinder the judicial review.

Article 293 § 2 provides that the decision setting the case down for trial shall contain, inter alia , a decision cancelling, modifying or imposing a preventive measure.

According to Article 300 when adopting decisions (during the trial preparation stage) the court is obliged to examine the issue of whether or not to impose a measure of restraint on the accused and whether or not the type of the imposed measure of restraint is justified.

COMPLAINTS

1. The applicant complains under Article 5 § 1 of the Convention that the decisions of 28 October 2011, 28 December 2011 and 28 February 2012 were unlawful since, contrary to the requirements of domestic law, they did not rely on any facts or evidence that would support the reasons for his detention.

The applicant further complains under the same provision that the decision of the Malatia-Sebastia District Court of 27 March 2012 to set the case down for trial was unlawful since it did not comply with the requirements of Article 300 of the Code of Criminal Procedure.

2. The applicant complains under Article 5 § 3 of the Convention that the domestic courts failed to provide relevant and sufficient reasons when extending his detention during the pre-trial proceedings and ordering it to remain unchanged by the decision to set the case down for trial.

3. The applicant complains under Article 5 § 4 of the Convention that neither he nor his lawyer were duly notified about the hearing held at the Criminal Court of Appeal on 15 March 2012.

The applicant further complains under the same provision that the Criminal Court of Appeal failed to address his arguments concerning the lack of proper reasons for his detention.

4. The applicant also complains under Article 5 § 5 of the Convention that he did not enjoy in law or in practice an enforceable right to compensation for his allegedly unlawful detention.

5. Lastly, the applicant complains under Article 6 § 2 of the Convention that the decisions of 28 October 2011 and 28 December 2011 of the Kentron and Nork- Marash District Court of Yerevan were in breach of the principle of presumption of innocence in that they referred to the “offence committed by him” to justify his detention. The applicant further complains that the statement contained in the decision of 27 March 2012 of the Malatia ‑ Sebastia District Court, according to which that court had decided to set his case down for trial in order to hold him criminally liable for the offences charged, fell short of the requirements of this provision.

QUESTIONS TO THE PARTIES

1. Were the decisions of the Kentron and Nork- Marash District Court of 28 October, 28 December 2011 and 28 February 2012 lawful within the meaning of Article 5 § 1 of the Convention?

2. Was the applicant ’ s detention, based on the decision of the Malatia ‑ Sebastia District Court of 27 March 2012, lawful within the meaning of Article 5 § 1 of the Convention?

3. Did the applicant exhaust the domestic remedies available to him in respect of his complaints under Article 5 §§ 3 and 4, as required by Article 35 § 1 of the Convention, in view of the fact that he did not lodge an appeal on points of law against the decision of 15 March 2012?

Was lodging an appeal on points of law against this decision an effective remedy for the purposes of Article 35 § 1 of the Convention in respect of the applicant ’ s complaints under Article 5 §§ 3 and 4?

If so:

- did the domestic courts provide “relevant” and “sufficient” reasons for the applicant ’ s detention, as required by Article 5 § 3 of the Convention?

- was the hearing of 15 March 2012 before the Criminal Court of Appeal conducted in an adversarial manner and with respect to the principle of equality of arms, as required by Article 5 § 4 of the Convention?

- was the procedure by which the applicant sought to challenge the lawfulness of his detention in conformity with Article 5 § 4 of the Convention?

In particular, did the Criminal Court of Appeal properly address the applicant ’ s arguments in favour of his release raised in his appeals against the decisions of the Kentron and Nork- Marash District Court of 28 October, 28 December 2011 and 28 February 2012?

4. Did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 §§ 1, 3 and 4, as required by Article 5 § 5 of the Convention?

5. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case?

In particular, were the decisions of 28 October and 28 December 2011 of the Kentron and Nork- Marash District Court and the decision of 27 March 2012 of the Malatia-Sebastia District Court compatible with the requirements of this provision?