Published on 4 December 2023

FOURTH SECTION

Application no. 21350/19 Hrayr HAKOBYAN against Armenia lodged on 15 April 2019 communicated on 14 November 2023

SUBJECT MATTER OF THE CASE

The applicant was charged with swindling in particularly large amounts committed in an organised group and with forgery of official documents. The case concerned misappropriation of state funds by multiple co-accused through, inter alia , formally recruiting employees, who had actually never worked, and appropriating their salaries. The key prosecution witness against the applicant in so far as charges of swindling were concerned, H.Z., had been questioned twice during the pre-trial investigation. At her second interview, she made incriminating statements against him. The witness stated, in particular, that she had regularly handed the applicant and her other supervisor part of the money that she had earned for completing assignments in place of other employees who, despite being formally employed, had not actually worked. When questioned in court, H.Z. retracted her last statement incriminating the applicant and stressed that in fact she had kept the salary received to herself and that she had never given any money to the applicant. The witness claimed that the investigator had not recorded her second statement correctly, the interview record did not reflect her account, and that the investigator had tried to confuse her. She added that she had signed the interview record without reading it.

Based on H.Z.’s statement made in court, a criminal investigation was opened to verify her allegations which were not confirmed. Thereafter, a new investigation was opened against H.Z. for making false accusations against the investigator. When being questioned as a suspect in the scope of this new case, H.Z. once again retracted her statement made earlier in the trial court and accepted that her second pre-trial statement incriminating the applicant had been recorded correctly by the investigator. The criminal proceedings against her were terminated on the grounds of active repentance. Based on her new testimony, the prosecution requested the trial court to call and examine the witness for the second time. During this second examination the prosecution asked the witness, inter alia , whether her second pre-trial statement that she had passed money to her supervisors, including the applicant, was correct and the witness confirmed her statement but did not answer to more detailed questions since she could no longer recollect the facts of the case. As it follows from the record of the court hearing, the applicant’s representative was able to put some questions to H.Z. as regards the circumstances in which her second pre-trial interview record had been drafted and whether it had been based on her account, to which the witness responded in the affirmative. Nevertheless, the judge did not allow the applicant’s representative to question the witness about the discrepancies between her statements, including having passed money to the applicant and the circumstances surrounding it. In particular, the judge excluded those questions and did not let the witness reply on the grounds that the latter had been called for an additional examination regarding the circumstances related to the decision on termination of the criminal proceedings against her and she could not therefore be questioned about other matters. The judge dismissed the applicant’s lawyer’s objections that the witness was giving new information that she had never made in court before. The judge insisted that the defence should have asked for the witness’s additional examination on those matters beforehand. The defence lawyer argued that they could not have put those questions to H.Z. during her first in-court examination since at that time she had rejected the fact of ever handing money to the applicant. This argument was rejected by the judge on the same grounds. The trial court convicted the applicant as charged relying, inter alia , on H.Z.’s statements incriminating the applicant.

The trial court’s judgment was upheld by the Criminal Court of Appeal which endorsed the reasoning of the trial court. On 16 October 2018 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit.

The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that his right to a fair trial, in particular the principles of adversarial hearing and equality of arms, was violated. The applicant submits that he was not able to cross-examine H.Z. – a key prosecution witness – as regards the latter’s statement on his involvement in the imputed offence and the domestic courts failed to adequately address his objections made in that respect. The applicant claims that H.Z.’s statement was decisive for his conviction since it was the only direct evidence against him in so far as charges of swindling were concerned.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (d) of the Convention? In particular, were the principles of adversarial hearing and equality of arms respected as regards the applicant’s right to examine witness H.Z. during her second questioning in court? Did the domestic courts provide adequate reasons for the alleged limitation of the applicant’s right to put questions to H.Z. ( Pichugin v. Russia , no. 38623/03, §§ 193 et seq., 23 October 2012; Bondar v. Ukraine , no. 18895/08, §§ 74 et seq., 16 April 2019; and Chernika v. Ukraine , no. 53791/11, §§ 40-41 and 46, 12 March 2020)?