THIRD SECTION

Application no. 35688/11 Spartak MANUCHARYAN against Armenia lodged on 31 May 2011

STATEMENT OF FACTS

The applicant, Mr Spartak Manucharyan , is an Armenian national, who was born in 1976 and lives in Yerevan. He is represented before the Court by Mr Marukyan , a lawyer practising in Vanadzor .

A. The circumstances of the case

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

1. The criminal proceedings against the applicant

On 1 July 2009 criminal proceedings were instituted on account of the murder of K.S. who was shot dead at 1.30 a.m. that day in a street in Vanadzor .

On the same date the applicant appeared before the Alaverdi Police unit, surrendered a gun and confessed to the murder.

On the same date the applicant was charged with murder and illegal possession of firearms.

On 3 July 2009 the applicant was questioned by the investigator. He did not admit his involvement in K.S. ’ s murder and refused to testify.

In the course of the investigation the sole eye-witness, K.M., who was K.S. ’ s girlfriend and had been present at the scene of the murder, testified that it had been the applicant who, after yelling and swearing, had started to shoot at K.S. ’ s car.

It appears that during the pre-trial investigation no confrontation was held between the applicant and K.M.

On 27 April 2010 the bill of indictment was finalised and the case was transmitted to the Lori Regional Court to be set down for trial.

2. The applicant ’ s trial

On an unspecified date the Regional Court took over the case and scheduled the first hearing.

It appears that the Regional Court held hearings in the absence of witness K.M.

On 4 November 2010 the Regional Court found the applicant guilty as charged and sentenced him to thirteen years ’ imprisonment. In doing so, it mainly relied on the pre-trial statements of witness K.M.

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

On 20 December 2011 the Criminal Court of Appeal took over the case and scheduled the first hearing on 11 January 2011.

On 11 January 2011 the applicant ’ s lawyer filed a motion with the Court of Appeal seeking, inter alia , to have witness K.M summoned and examined.

According to the applicant, the Court of Appeal granted the motion and decided to summon witness K.M. Finally witness K.M. did not appear before the court.

The applicant motioned to declare K.M. ’ s statements inadmissible. According to the applicant the Court of Appeal left this motion unexamined.

On 26 January 2011 the Criminal Court of Appeal upheld the applicant ’ s conviction. In doing so the Court of Appeal relied on the evidence examined by the Regional Court.

On 22 February 2011 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 12 April 2011 the Court of Cassation returned the applicant ’ s appeal on points of law, declaring it inadmissible for lack of merit.

B. Relevant domestic law

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 the 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 the prosecution witness K.M. was not examined at the 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 witness against him, namely K.M., as required by Article 6 § 3 (d) of the Convention?