Communicated on 29 September 2015
THIRD SECTION
Application no. 44143/12
Davit GHAMBARYAN
against Armenia
lodged on 4 July 2012
STATEMENT OF FACTS
The applicant, Mr Davit Ghambaryan, is an Armenian national who was born in 1974 and is detained in Yerevan. He is represented before the Court by Mr T. Safaryan, 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.
The applicant is a former policeman who guarded the National Library of Armenia.
On 27 December 2011 the applicant was arrested on suspicion of his involvement in a failed attempt to steal books from the National Library the previous day.
On 29 December 2011 the applicant was charged with attempted grand theft.
On 30 December 2011 the Kentron and Nork-Marash District Court of Yerevan (the District Court) ordered the applicant’s detention for two months.
On 16 February 2012 the investigator decided to lodge a motion with the District Court seeking to have the applicant’s detention extended for two months. The investigator submitted that there was ample evidence, including his own incriminatory statement, that the applicant had indeed committed the offence with which he was charged. He requested that the applicant’s detention be extended for two more months on the ground that he needed to receive conclusions of experts, the results of inventories and replies concerning requests for international legal cooperation in order to carry out relevant investigative measures connected with them. It was further stated that, based on the materials of the case, there were grounds to believe that the applicant, if he were to remain at large, could go into hiding in order to avoid punishment for the grave offence with which he was charged and obstruct the examination of the case by using his position and connections as a policeman to influence the witnesses and his co-accused and also commit a new offence.
Before the District Court, the applicant objected to the investigator’s motion and argued that his detention was not necessary since he had a permanent place of residence, young children and was of good character. In the alternative he asked to be released on bail.
On 21 February 2012 the District Court made a decision to extend the applicant’s detention for two months. The District Court found that, on the basis of the materials submitted to it, there was a reasonable suspicion that the applicant had committed the crime with which he was charged. It further referred to the gravity of the offence and also to the fact that the applicant was a former policeman in which circumstances, if he were to remain at large, there was a high probability of his hiding from the body of inquiry and obstructing its work by exerting unlawful influence on the persons involved in the criminal proceedings while it was still necessary to carry out a number of investigative and procedural actions. As to the request to grant bail, with reference to the reasons for the applicant’s detention, the District Court refused to release him on bail and stated that his proper behaviour could not be ensured by means of alternative preventive measures.
On 26 February 2012 the applicant lodged an appeal. He submitted, in particular, that the applicant had no prior conviction, had a permanent residence, had three young children under his care and that he had received a positive character reference from his place of residence. He argued that the body of inquiry had not specified any fact or submitted any evidence supporting its assumption that the applicant would not behave properly. He further argued that in its decision the District Court had not specified which materials of the case made it come to the conclusion that the applicant’s proper behaviour during the proceedings could be ensured solely by detaining him. Finally it was argued that, ignoring the personal situation of the applicant and the fact that he had never tried to hide from the body of inquiry or obstruct the investigation, the District Court had refused to release him on bail.
On 12 March 2012 the Criminal Court of Appeal rejected the appeal and upheld the decision to extend the applicant’s detention.
On 20 April 2012 the District Court made a decision to extend the applicant’s detention for another two months on grounds identical to those stated in the decision of 21 February 2012 of the same court.
On an unspecified date in May the bill of indictment was finalised and the case was sent to court for examination on the merits.
On 8 June 2012 Judge M. of the District Court made a decision to set the case down for trial. By the same decision, Judge M. decided that the preventive measure applied in respect of the applicant, namely his detention, was to remain unchanged, taking into account the nature and dangerousness of the offence, its gravity and the fact that it was punishable by imprisonment for a maximum duration of more than a year. It was also mentioned that there was a high probability that the applicant, if he were to remain at large, would exert unlawful influence on other parties to the criminal proceedings. No time-limit was fixed for the detention.
On 15 June 2012 the applicant lodged an appeal against the decision of 8 June 2012. He complained about the fact that the District Court had failed to indicate any specific facts or evidence which led it to conclude that the applicant would exert unlawful influence on the participants of the proceedings if he were to remain at large. He argued that the District Court had extended the applicant’s detention for an indefinite period of time, relying on the gravity of the offence and the potential punishment for that offence. He further argued that the District Court had ignored the fact that all the evidence had already been submitted to court and there was therefore no reason to believe that the applicant might obstruct the process of gathering evidence. As to the necessity to ensure the applicant’s attendance at trial, according to the lawyer this could be done by granting bail, whereas the District Court had not even considered this possibility.
On 22 June 2012 the Criminal Court of Appeal decided to leave the appeal unexamined on the ground that the decision to set a case down for trial is not subject to appeal.
On 5 July 2012 the applicant lodged an appeal on points of law.
On 10 August 2012 the Court of Cassation declared the appeal inadmissible for lack of merit.
On 26 December 2012 the District Court found the applicant guilty as charged and sentenced him to imprisonment for four years and six months.
B. Relevant domestic law
The Code of Criminal Procedure (in force from 12 January 1999)
Article 293 § 2 provides that the decision setting the case down for trial shall contain, inter alia, a decision cancelling, modifying or imposing a preventive measure.
According to Article 300, when adopting decisions the court is obliged to examine the issue of whether or not to impose a measure of restraint on the accused and whether or not the type of measure of restraint imposed is justified.
COMPLAINTS
The applicant complains under Article 5 § 3 of the Convention that the domestic courts failed to provide relevant and sufficient reasons when extending his detention and ordering it to remain unchanged by the decision to set the case down for trial.
The applicant complains under Article 5 § 4 of the Convention that the Court of Appeal failed to examine properly his arguments pertaining to the lack of sufficient reasons for his detention.
The applicant complains under Article 5 § 5 of the Convention that he did not enjoy in law or in practice an enforceable right to compensation for his allegedly unlawful detention.
QUESTIONS TO THE PARTIES
1. Did the applicant exhaust the domestic remedies available to him in respect of his complaint under Article 5 § 3, as required by Article 35 § 1 of the Convention, in view of the fact that he did not lodge an appeal on points of law against the decision of the Criminal Court of Appeal 12 March 2012 and did not appeal against the decision of the Kentron and Nork-Marash District Court of 20 April 2012?
If so, did the domestic courts provide “relevant” and “sufficient” reasons for the applicant’s detention both at the investigation and trial stages, as required by Article 5 § 3 of the Convention?
2. Did the applicant exhaust the domestic remedies available to him in respect of his complaint under Article 5 § 4, as required by Article 35 § 1 of the Convention, in view of the fact that he did not lodge an appeal on points of law against the decision of the Criminal Court of Appeal 12 March 2012?
If so, was the procedure by which the applicant sought to challenge the lawfulness of his detention in conformity with Article 5 § 4 of the Convention? In particular, did the Criminal Court of Appeal properly address the applicant’s arguments in favour of his release raised in his appeal?
3. Did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5, as required by Article 5 § 5 of the Convention?
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