Communicated on 4 November 2016
FIRST SECTION
Application no. 14078/12
Garik DADAYAN
against Armenia
lodged on 5 March 2012
STATEMENT OF FACTS
The applicant, Mr Garik Dadayan, is an Armenian national who was born in 1954 and lives in Yerevan. He is represented before the Court by Mr K. Sardaryan, 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 11 March 2010 two individuals, S.T. and H.O., were arrested by the Georgian law-enforcement authorities in Tbilisi when they tried to sell 15 g of enriched uranium, which they had transported on the same day from Armenia by train.
On 22 April 2010 the National Security Service of Armenia instituted criminal proceedings in relation to the matter.
On the same date the applicant was arrested on suspicion of having aided and abetted S.T. and H.O. in the offence. He was believed to have acquired the enriched uranium which he had then sold to H.O. in Yerevan. Thereafter, H.O. and S.T. had smuggled the radioactive substance to Tbilisi where they were arrested.
On 23 April 2010 the applicant was charged with aiding and abetting S.T. and H.O. in the offence.
The applicant denied the charges. His case was that H.O., whom he had known for about ten years, had owed him money for a long time. In February 2010 he had been robbed in Ukraine, after which he had somehow reached Moscow to find a job but had then been obliged to return to Yerevan. However, since his money had been stolen, he decided to ask his debtor H.O. to send him some money for his journey. After his return he had met H.O. in Yerevan several times in order to discuss financial matters relating to the payment of the rest of the debt.
On 28 April 2010 H.O. was questioned as a witness at the Ministry of Internal Affairs of Georgia. He stated that, inter alia, the applicant had given him 1 g of a radioactive substance either in 2002 or 2003. At the beginning of March 2010 he and S.T. asked the applicant, who was in Russia at the time, whether he would be able to obtain radioactive substances. During the conversation the applicant enquired about the price that had been offered per gramme of such a substance. The next day he called H.O. and offered to bring the requested radioactive substance to Armenia. Since the applicant had no means to travel, they transferred money to him. The applicant arrived in Armenia several days later and gave the radioactive substance to H.O. They agreed that H.O. would pay the applicant after the deal. When asked whether he owed any money to the applicant, H.O. denied ever having borrowed from him.
On 29 April 2010 S.T. was also questioned as a witness at the Ministry of Internal Affairs of Georgia. He stated, inter alia, that when he was in Georgia, some people had offered to buy uranium from him. He had then come to Armenia and asked H.O. to find the applicant so that he could provide them with uranium. S.T. further stated that H.O. had been in contact with the applicant who had agreed to come to Armenia and give him uranium. Thereafter they had sent travel money to the applicant by bank transfer. He had then met H.O. at the railway station. H.O. had brought the radioactive substance and stated that he had taken it from the applicant.
On 8 December 2010 the bill of indictment was finalised and the case was transferred to Tavush Regional Court for trial. The following evidence was relied on in the bill of indictment: the witness statements made by H.O. and S.T. in Georgia; the conclusion of a forensic examination conducted in Georgia, according to which the substance seized from S.T. contained enriched uranium; regular telephone correspondence between the applicant and H.O. in the period between 1 September 2009 and 30 March 2010, and in particular two telephone calls made on 10 March 2010; and the relevant exit and entry stamps in the applicant’s passport proving that he had arrived in Yerevan from Moscow on 10 March 2010.
At one of the hearings before the Regional Court the applicant submitted a written request seeking, inter alia, the temporary transfer of H.O. and S.T. from the prison in Georgia so that they could be examined at the trial.
On 27 January 2011 the Presiding Judge ordered H.O’s and S.T.’s temporary transfer to Armenia by means of international legal assistance.
By letter of 29 April 2011 the Ministry of Justice of Georgia stated that it was impossible to secure H.O.’s and S.T.’s transfer on the ground that H.O. and S.T. had been convicted by a judgment of the Tbilisi Court of Appeal of 30 March 2011, which was still subject to appeal on points of law.
At the hearing of 24 May 2011 the Presiding Judge informed the parties of the reply received from the Ministry of Justice of Georgia.
At the same hearing the applicant asked to summon as a witness S.G., the conductor of the train who had been questioned during the investigation, on the ground that some of his statements were in contradiction with the statements of H.O. and S.T. The trial court rejected this request, considering it ungrounded.
On 25 May 2011 the Regional Court convicted the applicant and sentenced him to seven years’ imprisonment, ordering confiscation of property. In doing so, the Regional Court relied on the statements of H.O. and S.T. made during the questioning in Georgia, the statements of witnesses G.D. and K.O., the applicant’s friend and H.O.’s daughter respectively, the results of forensic examinations carried out in Georgia and Armenia confirming that the discovered substance contained enriched uranium, the evidence of telephone correspondence between the applicant and H.O. and the existence of exit and entry stamps in the applicant’s passport proving that he had arrived in Yerevan from Moscow on 10 March 2010.
The applicant lodged an appeal complaining, inter alia, about the lack of opportunity to cross-examine H.O. and S.T. at trial and the trial court’s refusal to summon S.G.
On 13 July 2011 the Criminal Court of Appeal upheld the applicant’s conviction. The judgment did not address the applicant’s arguments with regard to the impossibility of examining H.O. and S.T. and the refusal to examine witness S.G.
The applicant lodged an appeal on points of law raising similar arguments to those brought in the previous appeal.
By decision of 17 September 2011 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit.
B. Relevant domestic law
1. The Code of Criminal Procedure
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 imposition of sanctions prescribed by the law.
Article 153 § 2 states that 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.
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 (Article 332 § 1).
According to Article 342 § 1, the reading out at 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
The applicant complains under Article 6 § 1 read in conjunction with Article 6 § 3(d) of the Convention that he was not given an opportunity to cross-examine H.O. and S.T. at his trial. He further complains under the same provision of the courts’ refusal to examine witness S.G.
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 of the Convention? In particular:
- Did the fact that the applicant was not able to obtain the attendance and examination of witnesses H.O. and S.T. at his trial violate his rights guaranteed by Article 6 § 3(d) of the Convention?
- Was the trial court’s refusal to examine witness S.G. on behalf of the applicant in breach of his rights under the same provision?
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