THIRD SECTION

Application no. 27866/10 Vaghinak TER-SARGSYAN against Armenia lodged on 11 May 2010

STATEMENT OF FACTS

The applicant, Mr Vaghinak Ter-Sargsyan , is an Armenian national who was born in 1970 and lives in Armavir . He is represented before the Court by Mr G h . Papoyan , a lawyer practising in Armavir .

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 in Kazakhstan

On 8 October 2000 criminal proceedings were instituted in Kazakhstan on account of the murder of an individual committed the previous day in Kostanay , Kazakhstan. The applicant and his friend, B.M., were suspected of having committed this murder.

On 21 January 2004 the applicant was charged under Articles 92 and 179 of the Criminal Code of Kazakhstan and his detention was authorised. Since the applicant ’ s whereabouts were unknown, a search was initiated for him.

On 29 May 2006 the Kostanay Regional Court found B.M. guilty of murder and sentenced him to seventeen years ’ imprisonment.

On 21 June 2006 new charges were brought against the applicant under Articles 103 and 96 of the Criminal Code of Kazakhstan for premeditated murder.

Since the applicant is an Armenian national, the case was sent to Armenia for him to be prosecuted in his country of nationality.

2. The criminal proceedings against the applicant in Armenia

On 8 July 2008 the Vagharshapat Police investigation unit took over the case and the charges against the applicant were brought into conformity with the relevant provisions of the Criminal Code of Armenia ( ‘ the CC ’ ). The applicant was formally accused of premeditated murder under Articles 104 and 112 of the CC.

On 22 August 2008 the Armavir Regional Court authorised the applicant ’ s detention.

On 10 September 2008 the charges against the applicant were modified and he was charged under Article 104 § 2 (7) of the CC.

According to the applicant, he filed a motion with the investigator seeking to be confronted with witnesses V.H., G.A., G.T., K.H., L.T. and O.D who had testified against him during the investigation of the case in Kazakhstan. However, the investigator dismissed his motion on the ground that both in the course of the investigation and at B.M. ’ s trial those witnesses had reinstated their statements against him.

According to the applicant, he complained to the Prosecutor General about the investigator ’ s decision but his complaint was left unexamined and on 20 October 2008 the case file, including the finalised indictment, was transmitted to the Southern Criminal Court (one of the first instance criminal courts before the relevant amendments to the Code of Criminal Procedure) to be set down for trial.

3. The applicant ’ s trial and conviction at first instance

O n an unspecified date the applicant ’ s lawyer filed a motion seeking to remit the case for further investigation on the ground that, inter alia , it was necessary to carry out several confrontations given that there were substantial contradictions between the applicant ’ s statements and the statements of witnesses V.H., G.A., G.T., K.H., L.T. and O. D.

According to the applicant, the Southern Criminal Court never examined the above motion.

Following the amendments to the Code of Criminal Procedure the case was transmitted to the Armavir Regional Court to be examined on the merits.

On 25 March 2009 the Regional Court decided to set the case down for trial.

At trial the applicant pleaded not guilty and claimed that the statements of the witnesses having testified against him did not reflect the truth.

According to the applicant, the witnesses residing in Kazakhstan were not properly summoned and the Regional Court did not obtain any proof that they had been notified about the trial. At the preparatory hearing the victim ’ s successor submitted declarations from five out of the eleven witnesses stating their reasons for being unable to attend the hearings. According to the applicant the declarations, drafted in Russian, were not properly examined by the Regional Court in order to establish their content but were included in the case file and it was decided to continue the examination of the case in the absence of all the witnesses.

In the course of the trial the applicant claims to have filed a motion seeking to have examined the video recordings from the crime scene that were a part of the evidence against him, but the Regional Court dismissed his motion without any grounds. In particular, the applicant claimed that there were contradictions between the statements of different witnesses regarding his outerwear on the day of the crime and the examination of those recordings would dispel these contradictions.

On 19 June 2009 the Regional Court found the applicant guilty as charged and sentenced him to fourteen years ’ imprisonment. In doing so, the Regional Court mainly relied on the trial statements of the victim ’ s successor and the pre-trial statements of eleven witnesses. The Regional Court also cited as material evidence the video recordings from the crime scene.

4. The appeal proceedings against the applicant ’ s conviction

On an unspecified date the applicant lodged an appeal against his conviction claiming, inter alia, that there had been no confrontation between him, B.M. and the witnesses against him during the investigation of the case either in Kazakhstan or in Armenia, although there were substantial contradictions between their statements and his own version of the events of 8 October 2000. The applicant further complained that by failing to summon properly the witnesses and by relying on their pre-trial statements without good reason, the Regional Court had violated his right to a fair trial as guaranteed by Article 6 of the Convention. He also complained about the fact that the Regional Court refused to examine the video recordings from the crime scene which were relied on as evidence against him.

On 31 August 2009 the Criminal Court of Appeal upheld the applicant ’ s conviction. In doing so, the Court of Appeal relied on the same evidence and stated that, according to the materials of the case, the witnesses had been properly summoned but had submitted statements about their inability to appear before the court due to lack of funds or reasons relating to family or work and reinstated their statements made during the pre-trial investigation.

On an unspecified date the applicant lodged an appeal on points of law raising arguments similar to those submitted in his previous appeal.

On 12 November 2009 the Court of Cassation declared the applicant ’ s appeal on points of law inadmissible for lack of merit stating, inter alia , that the Court of Appeal had reached the correct conclusion as regards the applicant ’ s complaints about his inability to examine the witnesses against him.

B. Relevant domestic law

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

According to Article 104 § 2 (7) murder committed by a group of persons is punished with imprisonment from 8 to 15 years or life imprisonment.

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 in order to testify or to participate in investigative and other procedural activities. The failure of a witness to comply with his obligations shall result in imposition of sanctions prescribed by the law.

According to Article 105 in criminal procedure it is illegal to use as evidence or as a basis for accusation facts obtained by violation of the defence rights of the suspect and accused.

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 216 § 1 the investigator is entitled to carry out a confrontation of two persons who have been questioned previously and whose statements contain substantial contradictions. The investigator is obliged to carry out a confrontation if there are substantial contradictions between the statements of the accused and some other person.

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 § 1 that his conviction was based on inadmissible evidence, namely the video recordings from the crime scene which were not examined during the court proceedings.

2. The applicant complains under Article 6 § 3 (d) that he was not confronted with the witnesses against him during the pre-trial investigation and had no opportunity to examine them at the trial.

QUESTIONs 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:

- were the video recordings from the crime scene examined at the applicant ’ s trial? If not, did the non-examination of the recordings affect the fairness of his trial?

- was he given an opportunity to examine the witnesses against him as required by Article 6 § 3 (d) of the Convention?