Case of European Court of Human Rights, October 22, 2020 (case GHAVALYAN v. ARMENIA)
|Resolution Date:||October 22, 2020|
Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)
CASE OF GHAVALYAN v. ARMENIA
(Application no. 50423/08)
Art 5 § 3 • Reasonableness of pre-trial detention • Applicant detained after arrest on suspicion of aiding and abetting tax evasion • Absence of relevant and sufficient reasons
Art 5 § 4 • Review by a court • Denial of judicial review of detention solely on grounds that criminal case no longer considered to be in pre-trial stage an unjustified restriction • Procedural guarantees of review • Absence of applicant’s lawyer during appeal hearing against detention after alleged due notification by telephone • Absence of procedure for manner of notifying lawyers • Failure to provide sufficient safeguards against arbitrariness
22 October 2020
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Ghavalyan v. Armenia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Ksenija Turković, President,Krzysztof Wojtyczek,Linos-Alexandre Sicilianos,Armen Harutyunyan,Pauliine Koskelo,Tim Eicke,Raffaele Sabato, judges,and Abel Campos, Section Registrar,
Having regard to:
the application (no. 50423/08) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Ms Anush Ghavalyan (“the applicant”), on 16 October 2008;
the decision to give notice of the application to the Armenian Government (“the Government”);
the parties’ observations;
the letter by the applicant’s son informing the Court of the applicant’s death and of his wish to pursue the application lodged by her;
Having deliberated in private on 29 September 2020,
Delivers the following judgment, which was adopted on that date:
The present case concerns the alleged failure of the domestic courts to provide relevant and sufficient reasons for the applicant’s detention; the refusal of the Criminal Court of Appeal to examine an appeal by the applicant against a court order extending her detention; and respect for the principle of equality of arms at a detention hearing before the Criminal Court of Appeal.
The applicant was born in 1972. At the time of her death on 21 July 2019 she was living in Yerevan. She was represented by Mr A. Zohrabyan, a lawyer practising in Yerevan.
The Government were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, Representative of the Republic of Armenia to the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 March 2008 the applicant, who had worked as a cashier at a catering company, was arrested on suspicion of aiding and abetting tax evasion. She alleged that the investigator had urged her to cooperate and promised that she would not be arrested if she made incriminating statements against the manager of the company. Only after she had refused to do so was she taken into custody.
On 24 March 2008 she was charged.
On the same date the investigator applied to the court to have the applicant detained for a period of two months on the grounds that she might abscond and obstruct the proceedings by interfering with witnesses.
The applicant objected to the investigator’s application, arguing, inter alia, that her detention was unjustified. She had always diligently appeared when summoned by the investigator and had never attempted to abscond or obstruct the proceedings.
On the same date the Kentron and Nork-Marash District Court of Yerevan allowed the investigator’s application, taking into account the nature and gravity of the offence imputed to the applicant and the fact that she might obstruct the proceedings and exert unlawful influence on those involved in the proceedings. The District Court ordered the applicant’s detention for twenty days, as opposed to two months, taking into account that she was a woman, was known to be of good character, had no previous convictions and had a dependent child. The decision stated that it could be contested before the Criminal Court of Appeal within five days.
On 26 March 2008 the applicant lodged an appeal, raising similar arguments.
On 4 April 2008 the Criminal Court of Appeal upheld the decision of the District Court. It considered there to be a real risk of the applicant obstructing the proceedings by exerting unlawful influence on those involved in the proceedings, since three other cashiers who had also been charged were in hiding. The decision stated that it entered into force immediately upon adoption.
On 23 April 2008 the applicant lodged an appeal on points of law with the Court of Cassation. In her appeal, she argued in substance that her detention was in violation of Article 5 § 1 (c) of the Convention and the Armenian Constitution because it was not based on a reasonable suspicion and there were no grounds justifying her detention, such as her being a flight risk. As grounds for admissibility of the appeal, the applicant relied on Article 414.2 § 1 (1) to (3) of the Code of Criminal Procedure (CCP), arguing that the examination of her appeal would allow the Court of Cassation to ensure uniform application of the law and that the alleged judicial error made by the Criminal Court of Appeal had resulted in serious consequences for her and her family.
On 19 May 2008 the Court of Cassation declared the appeal on points of law inadmissible, reasoning that the appeal on points of law indicated the applicant as the appellant but did not contain her signature and had only been signed by her lawyer.
On 31 March 2008 the investigator applied to the court for a two-month extension of the applicant’s detention, which was due to expire on 10 April 2008.
On 7 April 2008 the Kentron and Nork-Marash District Court of Yerevan allowed the application in part and extended the applicant’s detention by a month, until 10 May 2008. The court took into account the nature and gravity of the offence imputed to the applicant, the fact that if she remained at large, she might abscond and obstruct the proceedings, and the fact that she was a woman, had a dependent child and mother, had no previous convictions and was known to be of good character. The decision stated that it could be contested before the Criminal Court of Appeal within five days.
On 8 April 2008 the applicant lodged an appeal.
On an unspecified date the hearing on the appeal was scheduled for 3 p.m. on 17 April 2008.
The Government alleged that the applicant’s representatives had been notified of the hearing and submitted several handwritten documents entitled “transcript of a telephone conversation” (հեռախոսագիր) in support of their allegation. According to one such transcript, at 4.10 p.m. on 16 April 2008 a judge’s assistant at the Criminal Court of Appeal called the offices of the applicant’s representatives and informed the secretary that the hearing was scheduled for 3 p.m. the next day. The secretary promised to pass on the message. At 4.30 p.m. the assistant called the offices again and was informed by the secretary that the applicant’s lawyer, Mr Zohrabyan, was aware of the hearing and that she would inform him again.
On 17 April 2008 the hearing at the Criminal Court of Appeal began as scheduled. The presiding judge stated at the outset that the applicant’s lawyers had been duly notified. In particular, the assistant had called and informed them, and had even tried to call them again in the morning. The presiding judge asked those appearing in court whether they had any information regarding the lawyers’ absence. The investigator stated that he was not aware of the reasons for their absence, but added that he himself had found out about the hearing from the lawyers the previous day, before he had even been contacted by the court. The Criminal Court of Appeal decided to proceed with the hearing and heard both the prosecutor and the investigator. It appears that the hearing lasted about half an hour and was then adjourned until 10 a.m. the next morning.
According to another “transcript of a telephone conversation” submitted by the Government, following the hearing, at 4.20 p.m., the judge’s assistant called Mr Zohrabyan on his mobile telephone in order to enquire about the reasons for his absence, but he did not answer. The assistant then called the lawyers’ offices and informed an employee, N., that the hearing had been adjourned until the next morning. According to the same transcript, the judge’s assistant called the offices again at 9.15 a.m. the next day and spoke to a trainee, A., who said that she would inform the lawyers of the hearing. Between 9.15 and 10 a.m. the judge’s assistant made calls to Mr Zohrabyan’s mobile telephone but he did not answer.
At 10 a.m. on 18 April 2008 the Criminal Court of Appeal resumed the hearing. The presiding judge stated that they had once again tried to contact the lawyers. Numerous calls had been made to the lawyer’s mobile telephone but he had never answered, while at the office it had always been a secretary or trainee who had answered and promised to try to inform the lawyers. The court decided to proceed with the hearing. It heard both the prosecutor and the investigator and upheld the decision of the District Court, finding that the applicant had been accused of a serious crime punishable by imprisonment alone, which increased the possibility of her absconding. The appellate court repeated that there was a risk that the applicant would obstruct the proceedings by unlawfully influencing those involved in the proceedings who were in hiding. The decision stated that it entered into force immediately upon adoption. It appears that a copy of the decision was served on the applicant on 28 April 2008.
The applicant contested the Government’s above allegations and claimed...
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