Communicated on 24 May 2016
FIRST SECTION
Application no. 1837/10
Khosrov AVAGYAN
against Armenia
lodged on 28 December 2009
STATEMENT OF FACTS
The applicant, Mr Khosrov Avagyan, is an Armenian national, who was born in 1946 and lives in Yerevan. He is represented before the Court by Ms H. Harutyunyan, 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.
On 2 January 2007 M.G. and V.G., elderly sisters, were found dead in V.G.’s apartment where they lived together following which the prosecution started an investigation into their death. It appears that the applicant had known V.G. who had drawn up a will on 5 April 2006 according to which she had bequeathed her apartment to the applicant.
On the same day forensic medical examinations, including autopsies, were assigned to determine, inter alia, the cause of the deaths of the two sisters.
On 2 February 2007 expert A.D. issued two opinions (nos. 22 and 23). According to the first one, M.G. had died as a result of acute heart failure brought about by low body temperature while opinion no. 23 stated that V.G. had died as a result of hypothermia.
On 9 February 2007 the prosecutor decided to terminate the investigation. Relying on forensic medical opinions nos. 22 and 23, the prosecutor found that the sisters’ death had not been intentional or caused by negligence.
On 14 February 2007 the applicant submitted V.G.’s will to the notary and gave his acceptance to inherit her apartment.
On 1 June 2007 M.G. and V.G.’s niece applied to the Prosecutor’s Office stating that although V.G. had bequeathed the apartment to her by the will certified by a public notary back in 1991, she had been informed that the applicant had submitted another will with respect to the same apartment according to which the apartment was to pass on to him. She alleged that her aunt’s signature had been forged in that will.
It appears that on 11 July 2007 additional post-mortem forensic medical examinations on exhumation of the bodies of M.G. and V.G. were assigned to determine, inter alia, whether forensic opinions nos. 22 and 23 had correctly determined the causes of their death and, if not, whether it was possible that they had died as a result of having been poisoned.
On 7 August 2007 the investigator decided to start an investigation on account of forgery.
It appears that at some point during the investigation the applicant stated that he had never visited the apartment where M.G. and V.G. lived and did not know its location. Sometime in 2006 V.G., whom he knew, visited him in his home to hand him some documents, namely a will and other documents from the notary informing him that she had bequeathed her apartment to him.
On 25 September 2007 experts G.H and A.B. delivered opinions nos. 13/631/K and 14/630/K according to which both sisters had died as a result of poisoning by compounds containing phosphorous.
On 26 September 2007 the applicant was charged with fraud and two counts of murder committed for gain.
It appears that on 26 May 2008 further post-mortem forensic medical examinations on additional exhumation of the bodies of M.G. and V.G. were assigned which were completed on 27 June 2008. Opinions nos. 12/525/K and 13/526/K delivered by experts S.H. and S.S. confirmed the presence of phosphorous compounds in the bodies of the two victims.
On 8 July 2008 the applicant’s case was transferred to the Yerevan Criminal Court for trial.
At some point during the proceedings the applicant requested to examine the experts who had delivered conflicting opinions in order to clarify a number of issues that required specialist knowledge. This request was rejected by the trial court judge at the hearing of 25 September 2008.
On 21 October 2008 the Yerevan Criminal Court found the applicant guilty of two counts of aggravated murder committed for gain and sentenced him to life imprisonment. In doing so, it mostly relied on the trial statements of the victims’ relatives and neighbours, who confirmed that the applicant had visited the sisters in their apartment for several times, the expert opinions, material evidence seized from the applicant’s apartment namely the originals of the ownership certificate in respect of V.G.’s apartment, V.G.’s will drawn up on 5 April 2006 and a duplicate of V.G.’s death certificate. In finding the applicant guilty, the trial court also took into account the fact that he had previously been convicted of murder carried out for financial gain for killing an elderly woman to obtain possession of her apartment.
The applicant lodged an appeal arguing, inter alia, that he had been deprived of the opportunity to examine the experts with regard to their contradictory opinions.
On 12 February 2009 the Criminal Court of Appeal rejected the applicant’s appeal without addressing the complaint about his inability to have the experts examined during his trial.
On 2 July 2009 the applicant lodged an appeal on points of law raising similar complaints as before.
On 28 July 2009 the Court of Cassation declared the applicant’s appeal inadmissible for lack of merit.
B. Relevant domestic law
The Code of Criminal Procedure (in force from 12 January 1999)
According to Article 114 § 2, an expert may be questioned with a view to clarify his/her opinion. The record of the expert’s questioning cannot replace his/her opinion (Article 114 § 3).
According to Article 243, an expert examination is carried out on the basis of the decision of the investigating authority.
Article 247 § 1 sets out a list of the rights of the suspect and the accused when an expert examination is being assigned, including the right to get acquainted with the decision to assign an examination before it is carried out, the right to request an additional forensic examination in case of disagreement with the opinion delivered by the expert and the right to participate in the questioning of the expert if that is done on the basis of his/her request.
According to Article 252 § 1, if the expert opinion is not sufficiently clear and contains gaps which may be filled without additional examination, or if there is a need to clarify the methods applied and terminology used, the investigator may question the expert in accordance with the rules applicable to the questioning of witnesses.
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention taken together with Article 6 § 3 (d) that he was deprived of the possibility to examine the experts in order to challenge the credibility of their opinions while these were considered as decisive evidence in securing his conviction.
QUESTIONS TO THE PARTIES
Did the applicant have a fair hearing as required by Article 6 § 1 of the Convention? In particular, were the applicant’s rights guaranteed by Article 6 § 3 (d) of the Convention respected? In particular:
- was he able to examine the experts whose opinions were used as evidence against him during his trial?
- what were the reasons for the refusal to summon the experts before the Yerevan Criminal Court and/or their absence from the applicant’s trial?
- to what extent was the applicant’s conviction based on the experts’ opinions?
- was the applicant afforded adequate procedural safeguards to compensate his inability to examine the experts during his trial?
The Government are requested to submit copies of the following documents: the decisions of 11 July 2007 to assign additional post-mortem forensic medical examinations and the decisions of 26 May 2008 to assign further post-mortem forensic medical examinations.
Full & Egal Universal Law Academy