THIRD SECTION

Application no. 13479/11 Davit AVETISYAN against Armenia lodged on 19 February 2011

STATEMENT OF FACTS

The applicant, Mr Davit Avetisyan , is an Armenian national who was born in 1971 and is currently serving his sentence in a penitentiary institution. He is represented before the Court by Mr H. Alumyan , 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.

1. Background to the case

On 27 April 2009 the applicant, joined by his friend, D.T. and two other persons, D.O. and M.S., went to the town of Goris to visit his friend, M.K., who was serving his sentence in a penitentiary institution there.

Upon their arrival, the administration of the penitentiary institution refused to grant them permission to see M.K. Nevertheless, they were allowed to hand over a parcel to be delivered to him.

The applicant gave money to D.T., D.O. and M.S. to buy food for M.K. and stayed in the penitentiary facility in order to start the formalities. D.T., D.O. and M.S. brought a cake that they had bought from a local store.

According to the applicant, D.T. and D.O. handed over the cake, after which they all left the penitentiary institution.

The subsequent inspection of the parcel revealed that it contained certain items prohibited by law. Namely, according to the relevant records, a disposable syringe filled with liquid had been discovered inside the cake.

On the same date the investigator decided to assign a forensic medical examination of the items discovered.

On 29 April 2009 the expert delivered his opinion, which stated that the substances examined were narcotics.

On 30 April 2009 the investigator of the Goris investigation unit instituted criminal proceedings on account of illegal acquisition and supply of narcotics.

2. The criminal proceedings against the applicant

On 11 May 2009 the applicant was charged with acquisition and supply of narcotics in large amounts under Article 266 § 2 (2) of the Criminal Code.

In the course of the investigation M.S., D.T. and D.O. were questioned as witnesses.

In particular, M.S. testified that, inter alia , he had seen the applicant putting the discovered items inside the cake and spreading the cream so that they would not be seen. D.T. and D.O. testified that they had given the cake to the applicant before it was handed over to the administration of the penitentiary institution.

At a confrontation with the applicant held on 4 November 2009, M.S. reiterated his previous statements.

On an unspecified date the applicant complained about the way the confrontation between him and M.S. had been conducted. He complained, inter alia , that the investigator had failed to record a number of important statements proving his innocence and that he had put several questions to M.S. which were neither recorded nor answered. In this connection the Deputy Prosecutor of the Syunik Region questioned the applicant on 6 November 2009 and recorded his complaints. The applicant also requested that another confrontation be held. According to the applicant, his complaints and requests remained unanswered.

On 19 November 2009 the bill of indictment was finalised and the case was transmitted to the Syunik Regional Court to be set down for trial. The list of persons to be summoned for trial included M.S., D.T., D.O. and the officer of the penitentiary facility who had inspected the parcel.

3. The applicant ’ s trial

On 26 November 2009 the Regional Court took over the case and scheduled the first hearing for 7 December 2009.

On 1 December 2009 the Regional Court summoned M.S., D.T. and D.O. to the hearing.

On an unspecified date, M.S. sent a written request to the Regional Court stating that he would be in Yerevan for personal business from 4 December until the end of the month and would not be able to appear in court.

On 7 December 2009 the Regional Court summoned M.S., D.T. and D.O. to the hearing rescheduled for 17 December 2009.

On 17 December 2009 the Regional Court judge decided to compel witnesses M.S., D.T. and D.O. to appear before the court, given that they had failed to state any valid reasons for their non-attendance.

According to the applicant, the police was not diligent in finding the whereabouts of the witnesses and as a result they were unable to execute the Regional Court ’ s order and secure the witnesses ’ presence at the rescheduled hearing.

On 15 April 2010 the Regional Court held a hearing in the absence of witnesses M.S., D.T. and D.O. The Regional Court found the applicant guilty as charged and sentenced him to five and a half years ’ imprisonment. In doing so, it mainly relied on the pre-trial statements of these witnesses.

The applicant lodged an appeal complaining, inter alia , that the witnesses against him were not questioned in court.

On 29 June 2010 the Criminal Court of Appeal upheld the applicant ’ s conviction. The Court of Appeal stated that the Regional Court had duly examined and decided upon the applicant ’ s motions seeking to have the witnesses questioned in court.

On 20 July 2010 the applicant lodged an appeal on points of law complaining, inter alia, about the non-examination of witnesses against him either in the Regional Court or in the Court of Appeal.

On 20 August 2010 the Court of Cassation returned the applicant ’ s appeal on points of law, declaring it inadmissible for lack of merit.

B. Relevant domestic law

1. The Criminal Code (in force from 1 August 2003)

According to Article 266 § 2 (2), illegal possession or supply of narcotic drugs or psychotropic substances in large amounts is punishable by imprisonment from five to ten years with or without confiscation of property.

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.

COMPLAINT

The applicant complains under Article 6 § 3 (d) of the Convention that he had no opportunity to examine the witnesses against him at his trial.

QUESTION TO THE PARTIES

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?