Communicated on 30 August 2016
FIRST SECTION
Application no. 43478/11
Karine HAMBARDZUMYAN against Armenia
lodged on 27 June 2011
STATEMENT OF FACTS
The applicant, Karine Hambardzumyan, is an Armenian national who was born in 1956 and is currently serving her sentence at Abovyan correctional facility. She is represented before the Court by Mr L. Simonyan, 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 worked as the deputy chief of the women’s unit of Abovyan correctional facility.
On 2 February 2010 one of the prisoners in the same unit, A.S., reported to the Head of the Department Against Organised Crime of the Armenian Police that the applicant had demanded that she pay a bribe in return for transfer to an open-type prison.
On the same date the Head of the Department Against Organised Crime of the Armenian Police applied to the Kentron and Nork-Marash District Court of Yerevan, seeking authorisation to carry out operative and intelligence measures, namely video and audio recordings for a period of one month. The motion stated that there were elements of an offence prescribed by Article 311 of the Criminal Code (bribe-taking) in the applicant’s actions and the requested measures were necessary for the purpose of disclosure of the above-mentioned offence, full establishment of the circumstances and identification of those involved.
On 3 February 2010 the District Court decided to grant the motion. It stated, in particular:
“Having studied the collected materials and the submitted motion, the court finds that the motion is substantiated and must be granted ... [The court therefore] decides to grant the motion [and] to authorise the conduct of video and audio recordings for a period of one month for the purpose of disclosure of the above-mentioned crime.”
The court warrant stated that it was subject to appeal before the Criminal Court of Appeal within 15 days.
On the same date, the police launched a covert operation targeting the applicant. It appears that A.S. contacted the applicant by telephone to set up a meeting, during which the applicant, inter alia, asked A.S. whether she would be able finally to pay the money. This conversation was intercepted by the police. For their meeting, which took place on the same day, the police equipped A.S. with a tape-recorder and instructed her to record her conversation with the applicant. It appears that A.S. and the applicant met near the applicant’s home and discussed questions related to the amounts to be paid.
On 4 February 2010 the police officers gave A.S. banknotes processed with a special chemical agent, to be handed over to the applicant. It appears that on the same day the applicant received the money from A.S. and the conversation during their meeting was again recorded on a tape-recorder. It further appears that the moment after the applicant received the money the police approached and arrested the applicant, while capturing this process on a video camera.
On 7 February 2010 the applicant was charged under Article 311 of the Criminal Code with bribe-taking involving a particularly large amount of money. The applicant did not admit her guilt and submitted that A.S. had owed her a certain amount of money, which she was actually returning.
On 8 February 2010 the recordings made as a result of the covert operation were provided to the investigating authority.
On an unspecified date they were examined by a forensic video/audio expert and a relevant expert opinion was produced.
On 11 May 2010 the investigator modified the charges against the applicant and brought new charges against her under Articles 178 § 3 (1), 311 §§ 3 (3 and 4) and 4 (2) and 34-313 § 2 (2) of the Criminal Code for fraud, bribe‑taking and attempt to act as an intermediary in bribe-taking.
On 12 May 2010 the investigation was over and the applicant was granted access to the case file. It appears that on the same day she became aware of the court warrant of 3 February 2010 and the covert operation conducted on its basis.
On 25 May 2010 the bill of indictment was finalised and the case was sent to court.
In the proceedings before the Kentron and Nork-Marash District Court of Yerevan the applicant filed a motion, seeking to exclude as evidence the audio recordings received as a result of the covert operation and the relevant expert opinion and to impose a prohibition on their use. She submitted that the warrant of 3 February 2010 was vague, since it did not name her as the person to be subjected to secret surveillance. She alleged that the court warrant could have served as a basis for surveillance of any person. Thus, she had been subjected to secret surveillance without a relevant court warrant in violation of the requirements of Article 23 of the Constitution, including the right to respect for private life and to secrecy of communications, and Article 286 of the Code of Criminal Procedure. She further relied on Articles 22 of the Constitution and Article 105 of the Code of Criminal Procedure as regards the admissibility of this evidence.
The applicant alleges that the District Court decided to adjourn the examination of this motion and to return to it when adopting its judgment.
On 9 November 2010 the Kentron and Nork-Marash District Court found the applicant guilty as charged and imposed a nine-year sentence. In substantiating the applicant’s guilt, the District Court relied, inter alia, on the recordings made on the basis of the court warrant of 3 February 2010, including the telephone conversation of 3 February 2010 and the conversations that took place between the applicant and A.S. during their meetings of 3 and 4 February 2010, as well as the expert opinion of the forensic video/audio expert. It further cited as evidence the testimony of A.S. who had been recognised as a victim, the testimonies of eight witnesses, the relevant banknotes, the expert opinion of the forensic chemical expert, A.S.’s personal file, the information received from the mobile network operators concerning telephone calls made by the applicant on A.S.’s number, the motion of 2 February 2010 and the court warrant of 3 February 2010. The District Court stated, inter alia, that the applicant’s allegations of procedural violations had not been confirmed.
On an unspecified date, the applicant lodged an appeal in which she raised similar arguments in respect of the court warrant of 3 February 2010 and claimed that the results of the surveillance should not have been relied on by the District Court.
On 1 March 2011 the Criminal Court of Appeal decided to dismiss the appeal, reaching, inter alia, the following conclusions:
“As regards the arguments raised in the appeal that [the applicant] was video and audio-taped and that her telephone conversations were intercepted by the police in violation of her rights and freedoms guaranteed by the Constitution and the Code of Criminal Procedure, namely in the absence of a relevant court warrant authorising the video and audio recordings, it must be noted that the materials of the case contain a judicial act granting such authorisation. Thus, the video and audio recordings in question were made in accordance with a procedure prescribed by law and in this case the relevant restrictions were justified. Consequently, the arguments of the defence are unsubstantiated and not based on the objective information available in the case and cannot have any legal consequences if granted.
Furthermore, the arguments raised do not have any impact on the credibility of the information contained in the above-mentioned recordings and on reaching an accurate decision in this case.”
On 24 March 2011 the applicant lodged an appeal on points of law.
On 28 April 2011 the Court of Cassation declared the appeal inadmissible for lack of merit.
B. Relevant domestic law
1. The Constitution of 2005 (in force at the material time)
Article 22 imposes a prohibition on the use of unlawfully obtained evidence.
Article 23 provides that everyone has the right to respect for his private and family life. Everyone has the right to secrecy of his correspondence, telephone conversations, and postal, telegraphic and other means of communication, which can be restricted only in cases and in accordance with a procedure prescribed by law and upon a court warrant.
2. The Code of Criminal Procedure
Article 284 prescribes that operative and intelligence measures which restrict the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications of persons may be carried out only upon a judicial warrant, save in cases where one of the interlocutors has agreed beforehand that his conversations be intercepted or monitored. It further prescribes the procedure for the judicial examination of motions seeking authorisation to carry out secret surveillance of telephone conversations filed by the head of the authority charged with carrying out operative and intelligence measures. The motion must indicate the grounds justifying such measure, the information sought to be obtained through such measure, the place and time-limit for such measure, as well as all other relevant elements. The materials substantiating the need to carry out such measure must be attached to the motions. The court must indicate the reasons for granting or refusing the motion.
Article 286 prescribes that a court warrant must contain: the date and the place of drafting the decision, the judge’s last name, the official who has submitted the motion, an indication of the investigative activity or the operative and intelligence measure or the measure of restraint to be applied, specifying the activity or the measure and the persons in whose respect it is applied, the time-limit during which the measure is effective, the official or authority competent to carry out the warrant and the judge’s signature certified by a seal.
3. The Operative and Intelligence Measures Act
Section 21 prescribes that external surveillance is the tracing of persons or monitoring the course of various events and developments in open air or public places, without infringing the inviolability of residence, and with or without the use of special and other technical means, as well as the recording of surveillance results with or without the use of video recording, photographic, electronic and other data carrying devices.
COMPLAINTS
The applicant complains under Article 8 of the Convention that the recording of her conversation with A.S. was unlawful, since the court warrant of 3 February 2010 was too vague and did not meet the requirements established by law.
The applicant complains under Article 6 § 1 of the Convention that the domestic courts failed to take reasoned decisions, if any, concerning her motion seeking to have the results of the secret surveillance excluded as inadmissible evidence.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies in respect of her complaint under Article 8 of the Convention and lodged that complaint within six months from the date of the final decision, as required by Article 35 § 1 of the Convention? The Government are requested to specify whether the applicant had any effective remedies against the court warrant of 3 February 2010 and whether she exhausted such remedies. They are further requested to clarify whether raising the Article 8 complaint during the trial against her was an effective remedy in respect of that complaint within the meaning of Article 35 § 1 of the Convention?
Has there been a violation of the applicant’s rights guaranteed by Article 8 of the Convention as a result of the covert operation conducted by the police? In particular, did the court warrant of 3 February 2010 authorising the applicant’s secret surveillance meet the requirements of that Article?
2. Did the applicant have a fair hearing in the determination of the criminal charge against her, in accordance with Article 6 § 1 of the Convention? In particular, was the admission of the results of the applicant’s secret surveillance as evidence compatible with the requirements of that Article?
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