THIRD SECTION

Application no . 53166/10 Viktor PAPYAN against Armenia lodged on 22 November 2010

STATEMENT OF FACTS

The applicant, Mr Viktor Papyan , is an Armenian national who was born in 1958 and lives in Yerevan. He is represented before the Court by Mr V. Gevorgyan , 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.

At the relevant time the applicant was head of the investigative division at Kotayk investigative department.

From 24 January 2008 a criminal case against A.P, for causing bodily injuries to another person, was under investigation in the applicant ’ s division. One of the investigators of the same division, namely S.K., was in charge of that criminal case.

According to the applicant, starting from May 2008 A.P ’ s mother, Z.P., repeatedly contacted S.K., proposing that the charges against her son be mitigated in exchange for payment of a certain sum of money. S.K. rejected the offer and informed Z.P. that her son ’ s case would be investigated in accordance with the law.

On 2 July 2008 an officer of the National Security Service ( the NSS ) , A.K., telephoned the applicant and suggested helping Z.P. in exchange for payment of a certain sum of money, since she was his relative.

It appears that on the same date A.K. had a telephone conversation of approximately 50 minutes with Z.P.

On an unspecified date Z.P. visited S.K. and again suggested mitigating the charges against her son in exchange for payment of a certain sum of money. According to the applicant, S.K. tentatively agreed, hoping that Z.P would not be able to raise the requested amount.

According to a detailed telephone bill produced by the applicant, on 4 July 2008 ten telephone calls were made from A.K ’ s mobile phone to Z.P ’ s phone.

On 4 July 2008 Z.P. decided to report the applicant to the police. According to Z.P ’ s report, S.K. had solicited a bribe from her in order to mitigate the charges brought against her son. She also noted in the report that she had met S.K on the same day at about 11.25 a.m. when the latter demanded that she provide the required sum by 4.30 p.m.

On the same date the officer of the NSS applied to the Kentron and Nork-Marash District Court of Yerevan requesting authorisation to carry out a covert operation (operative investigative action) in respect of S.K., namely external and internal surveillance envisaged by the “Law on operational intelligence activity”.

On the same date from 9.20 a.m. to 9.40 a.m. the District Court, presided by one judge, examined and finally granted the motion authorising S.K ’ s external and internal surveillance for two months.

On 7 July 2008 the NSS conducted a covert operation targeting S.K. They equipped Z.P. with a tape-recorder and instructed her to record her conversations with S.K. They also gave her banknotes marked with a special marker visible only under ultra-violet light, to be handed over to S.K.

On the same date, acting on the NSS ’ s instructions, Z.P. came to see S.K. Since S.K was absent at that moment, she was received by the applicant in his office. In accordance with the instructions, Z.P. engaged the applicant in conversation about the sum demanded. Their conversation was recorded by Z.P. Later S.K entered the applicant ’ s office and accompanied Z.P to his office. It appears that Z.P handed over money to S.K.

As soon as Z.P. had left the building, the NSS officers entered S.K ’ s office, apprehended him, searched his office and found the marked money in the Code of Criminal Procedure hidden under the sofa. According to the applicant the search was conducted without the court authorisation required under domestic law. Following the search, a record on “finding an amount given as a bribe” was drawn up, according to which marked banknotes had been found in S.K. ’ s office. Two attesting witnesses, namely A.V. and G.M., who had been present during the search of S.K ’ s office, signed the record.

According to the applicant, no attesting witnesses had been present during the search and their signatures had been added later on.

On 10 July 2008 the applicant was charged under Article 311 of the Criminal Code (the CC) with bribetaking .

On the same date the Kentron and Nork-Marash District Court examined and granted the investigator ’ s application, ordering the applicant ’ s detention for a period of two months.

The applicant ’ s detention was extended twice during the investigation, each time for a period of two months.

On an unspecified date the bill of indictment was finalised and the case was sent to court.

On 30 December 2008 the Northern Criminal Court decided to set the case down for trial. By the same decision it left the applicant ’ s detention unchanged.

On 27 February 2009, following changes in the procedural law, the case was transmitted to Kotayk Regional Court for examination.

During the hearing of 21 May 2009 the applicant ’ s lawyer challenged the impartiality of the judge, requested the court to recuse the prosecutor and also asked to have the hearings recorded.

The regional court dismissed all these motions.

On 25 August 2009 the applicant ’ s lawyer applied to summon and examine seven investigators working in the investigative division at Kotayk investigative department.

This motion was also dismissed by the court.

On 8 September 2009 the applicant ’ s lawyers requested the Regional Court to obtain and examine the original versions of the recordings of the covert operations carried out on 7 July 2008. He also requested an examination of those recordings in order to clarify whether they had been modified.

On 22 September 2009 the applicant ’ s lawyer applied to summon and examine A.V., the attesting witness who had signed the record of the operative investigative action carried out on 7 July 2007. He argued that in reality A.V. had not been present during the action referred to and had signed the records later on.

On 23 September 2009 the applicant ’ s lawyer applied to summon and examine the second attesting witness, G.M., who had also signed the same record.

These motions were also dismissed by the Regional Court.

During the hearing of 23 September 2009 the applicant ’ s lawyer submitted the protocol of A.V. ’ s private inquiry, requesting that it be recognised as evidence and attached to the materials of the case.

On 25 September 2009 the Regional Court granted the motion.

On 6 October 2009 and 23 November 2009 the applicant challenged the impartiality of the judge, arguing that he was not impartial and that this violated the principle of equality of arms. This motion was also dismissed by the court.

On 23 November 2009 the Regional Court finished examining the evidence and pronounced the beginning of court pleadings.

It appears that on 10 December 2012 the applicant changed his lawyer.

On 21 January 2010 the applicant ’ s new lawyer applied to resume the examination of the evidence, arguing that he had many motions to lodge.

This motion was dismissed by the court.

On 25 February 2010 the Regional Court found the applicant guilty as charged and imposed an eight-year sentence. In substantiating the applicant ’ s guilt the trial court relied in its judgment also on the record on “finding an amount given as a bribe” as well as recordings made by Z.P.

On an unspecified date the applicant lodged an appeal against the Regional Court ’ s judgment. In his appeal he raised numerous arguments, including that he had been incited by the NNS officers to commit a crime.

On 17 June 2010 the applicant ’ s lawyer applied to summon and examine attesting witness A.V. On the same date the Criminal Court of Appeal granted the motion.

On 24 June 2010 the examining judge announced that he had received an official letter from the municipal authorities of Garni , the village where A.V. resided, informing the court that they did not know A.V. ’ s whereabouts.

The applicant ’ s lawyer asked the court to compel witness A.V. to appear before the court. According to the applicant the Court of Appeal dismissed this motion and read out A.V. ’ s pre-trial statements.

On 30 July 2010 the Criminal Court of Appeal decided to dismiss the appeal. In doing so the Court of Appeal stated that there was no evidence in the case file suggesting that the applicant or S.K. were forced or otherwise incited to take a bribe. Moreover, there was no evidence that there had been an entrapment by the NSS, since S.K. had failed to disclose the content of his conversation with A.K before the Regional Court. The Court of Appeal also stated that S.K. knew exactly what he was doing, and did not deny it, having partially confessed that he had demanded a certain sum of money in order to “ free himself from Z.P”. Finally it concluded that nothing indicated that there had been entrapment by the NSS, their agents or Z.P.

On 30 August 2010 the applicant lodged an appeal on points of law.

On 6 October 2010 the Court of Cassation declared the applicant ’ s appeal inadmissible.

B. Relevant domestic law

1. The Law on Operational Intelligence Activity (in force from 8 December 2007 )

According to Article 21, external surveillance is the tracing of persons without infringing the inviolability of residence, or monitoring of the course of specific incidents and events in open areas or public places with or without use of special and other technical means as well as the corroboration of surveillance results with or without use of video recording, photographic, electronic and other means.

According to Article 22 (2), internal surveillance is the tracing of a person (persons) inside the residence with or without use of special and other technical means and monitoring of certain incidents and events as well as the corroboration of surveillance results with or without use of video recording, audio recording, photographic , electronic and other means.

According to Article 30 (1), imitation of taking or giving bribes, as an operational intelligence measure, may be carried out only for the disclosure of the crime of taking and giving bribes based exclusively on the written statement of the person to whom giving or taking a bribe was proposed.

According to Article 34 (1), internal surveillance, imitation of taking and giving bribes, may be conducted only with the court ’ s authorisation .

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

According to Article 86 (§§ 3 and 4) a witness is obliged to appear upon the summons of the authority dealing with the case. The failure of a witness to comply with his obligations shall result in imposition of sanctions prescribed by the law.

According to Article 153 § 2, a witness may be compelled to appear by a reasoned decision of the court and shall inform the summoning authority of any valid reasons for not appearing within the set time-limit.

According to Article 332 § 1, if a summoned witness fails to appear, the court, having heard the opinions of the parties, decides whether to continue or adjourn the trial proceedings. The proceedings may be continued if the failure to appear of any such person does not impede the thorough, complete and objective examination of the circumstances of the case.

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.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that he was convicted as a result of police incitement and that the authorities failed to conduct an adequate investigation into the use of entrapment in inducing him to commit a crime. In particular, he complains that the District Court did not refer to the fact that prior to Z.P ’ s report to the NSS she had had several conversations with NSS officers and that the Criminal Court of Appeal dismissed his application to summon and examine A.K. as a witness.

2. The applicant complains under Article 6 § 3 (d) that the trial court dismissed his request to summon the attesting witness, A.V., who had allegedly been present during the search of S.K ’ s office.

3. The applicant complains under Article 8 that the interception and recording of his conversation with Z.P. interfered with his private life, since there was no court authorisation to conduct any covert operation in respect of him and his conversation with Z.P. was recorded on the basis of the court authorisation allowing only S.K. ’ s surveillance.

QUESTIONS to the parties

1. Was the applicant incited to commit a criminal offence? Did the domestic courts properly examine his incitement allegations ?

( a ) Was the applicant the victim of “entrapment” and did the domestic courts properly deal with his claim in that respect (see, for instance, Ramanauskas v. Lithuania [GC], no. 74420/01, ECHR 2008)?

(b) 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 (see, as a recent authority, Ramanauskas v. Lithuania [GC], no. 74420 / 01 , § 49 et seq., ECHR 2008 ‑ ... and further case-law referred to)? In particular :

(i) Was the applicant induced by State agents or other persons under their control to commit the criminal offence (bribery) of which he was then convicted?

(ii) Prior to the operation on 7 July 2008, did the domestic authorities have any good reason to suspect the applicant of any previous, ongoing or envisaged criminal activity in the field of bribery?

(iii) Was the applicant afforded adequate procedural safeguards enabling him to raise a complaint about entrapment before the domestic courts?

(iv) Were the applicant ’ s objections to the admissibility of evidence obtained in the course of the operation on 7 July 2008 taken fully into account by the Regional Court and the Criminal Court of Appeal?

2. Did the applicant have a fair hearing in the determination of the criminal charge against him in accordance with Article 6 § 1 of the Convention? In particular, was he given an opportunity to examine the witnesses against him as required by Article 6 § 3 (d) of the Convention ?

3 . Has there been a violation of the applicant ’ s rights guaranteed by Article 8 of the Convention as a result of the surveillance conducted by the NSS? In particular, was the interception of the applicant ’ s conversation with Z.P. in accordance with law ?