Communicated on 23 March 2018
FIRST SECTION
Application no. 69931/10
Gevorg HAYRAPETYAN
against Armenia
lodged on 18 November 2010
STATEMENT OF FACTS
The applicant, Mr Gevorg Hayrapetyan, is an Armenian national who was born in 1963 and lives in Yerevan. He is represented before the Court by Mr W. Bowring and Ms S. Safaryan, lawyers practising in London and Yerevan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 3 September 2009 the applicant was arrested on suspicion of drugs smuggling by an organised group and possession of firearms and was placed in custody in the detention facility of the National Security Service (NSS).
As a result of a search of the applicant’s apartment on 4 September 2009, the investigation found various types of weapons and ammunition, personal notes, compact discs, military maps and military registry books. Some of those materials apparently contained classified information on various military operations, military orders and their execution, military shifts and equipment and other information of military significance.
On 7 September 2009 the NSS investigator issued a decision prohibiting visits and telephone calls to the applicant at the detention facility. The investigator reasoned that this measure was justified by the nature and the seriousness of the charges and relied on Article 17 of the Law on Detention Conditions for Arrested and Detained Persons.
On 22 October 2009, on the basis of insufficiency of evidence, the investigator discontinued the criminal prosecution against the applicant under the charge of drugs smuggling.
On the same date the applicant was charged with state treason, for spying for the special services of Azerbaijan, as well as for illegal possession of firearms.
In January 2010 the Avan and Nor-Nork District Court of Yerevan commenced the applicant’s trial. It appears that on the basis of an application by the prosecutor, the District Court decided to conduct the trial in camera on the ground that the materials of the criminal case contained state secrets and that examination of those materials at public hearings would result in their disclosure.
On an unspecified date at the commencement of the trial, the applicant submitted before the District Court that some of the materials of the criminal case were illegible, namely his pre-trial testimony and witness statements, as they had been handwritten by the investigator. The District Court ordered the prosecution to produce those materials in legible form. The prosecution submitted typewritten documents allegedly reproducing the original handwritten materials. The applicant submitted that those typewritten documents misrepresented his pre-trial statements with regard to key facts relied upon by the prosecution. It appears that the applicant filed an application with the District Court seeking to order forensic examination of the handwritten materials concerned, in order to reveal their content and verify their compatibility with the typewritten reproductions. That application was apparently refused.
On an unspecified date, the applicant filed an application with the District Court seeking to rescind the restrictions imposed by the decision of 7 September 2009. He argued that the District Court had failed to examine the necessity of such restrictions at the commencement of the trial, and referred to his rights under Article 8 of the Convention.
On 15 March 2010 the District Court rejected the request on rescinding the restrictions on the applicant’s communication with the outside world. The District Court noted that the necessity for such limitation existed during the investigation and persisted during the trial. The District Court reasoned that lifting the prohibitions imposed on the applicant would significantly undermine its ability to conduct comprehensive, complete and objective examination of the case due to the nature and gravity of the charges, while such limitations did not affect the applicant’s rights of defence and the adversarial nature of the proceedings.
On 30 March 2010 the applicant filed an application with the District Court seeking to declare certain handwritten evidence held in the criminal case, including pre-trial statements by the applicant and witnesses, inadmissible and exclude it from the evidence. The application was refused.
On 22 April 2010 the applicant filed an application with the District Court seeking to quash the investigator’s decision of 7 September 2009, reasoning that visits to him at the detention facility would contribute to maintaining family ties and strengthen his psychological health.
On 13 May 2010 the District Court partly granted the applicant’s application as regards the prohibition on visits, but maintained the prohibition on telephone calls.
On 24 June 2010 the applicant filed an application with the District Court seeking to hold the hearings in public, reasoning that the evidence containing state secrets had already been examined and, therefore, there were no reasons to continue the proceedings in camera. The District Court, however, continued the trial in camera.
On 18 October 2010 the applicant filed an application with the District Court seeking to rescind the restriction on his telephone calls at the detention facility, reasoning that such communication could contribute to the improvement of his mental and physical health.
On 25 October 2010 the District Court found the applicant guilty and sentenced him to 12 years’ imprisonment. The District Court relied on witness statements, intercepted the applicant’s communications and various pieces of real evidence, such as photographs of military positions, military maps, books, equipment and other materials of a military nature with an indication “top secret”. As regards the handwritten materials of the criminal case indicated by the applicant as illegible, the District Court concluded that his rights had not been breached as he had been interrogated in the presence of his lawyer, the materials of the criminal case had been disclosed to him and to his lawyer, and none of them had made a declaration about the illegibility of those materials at that stage.
On the same date the District Court also lifted the prohibition on the applicant’s telephone calls.
On 24 November 2010 the applicant lodged an appeal. The applicant argued, inter alia, that the lack of publicity of the trial proceedings breached his rights under Article 6 of the Convention. He argued that some of the materials of the case did not contain state secrets, while some video materials allegedly containing such secrets had already been broadcast by the media during the trial proceedings. He also argued that the use of illegible handwritten materials of the criminal case had breached his right to a fair trial.
On 21 April 2011 the Criminal Court of Appeal, sitting in camera, rejected the applicant’s appeal. As regards the applicant’s arguments on the lack of public hearing, the Criminal Court of Appeal noted that in camera proceedings were justified under the domestic law and Article 6 of the Convention, as the charges against the applicant related to state secrets. As regards the applicant’s arguments on the illegibility of the handwritten materials, the Criminal Court of Appeal held that these records were not entirely illegible, but admitted that some parts of the records were legible with difficulty. It noted that the applicant’s defence rights had, nevertheless, not been breached, as during the investigation the applicant had been questioned in the presence of his lawyer and the materials of the criminal case had been disclosed to him and his lawyer, while he had failed to file an application with regard to the illegibility of the investigator’s handwriting.
The applicant lodged an appeal on points of law, which the Court of Cassation declared inadmissible on 22 June 2011 for lack of merit.
B. Relevant domestic law
Section 13 of the Law on Detention Conditions for Arrested and Detained Persons (in force since 2002) provides that an arrested or detained person is entitled to communicate with the outside world. Section 17 of the same Law provides that, in the interests of investigation, the authority conducting the proceedings may decide to prohibit detained persons to make telephone calls.
COMPLAINTS
1. The applicant complains that the reliance of the domestic courts on handwritten materials of the criminal case breached his right to a fair trial under Article 6 § 1 of the Convention, as those materials were illegible and, as a result, he was deprived of the opportunity to oppose their content and use.
2. The applicant complains that the lack of publicity for the entire trial breached his right to a public hearing under Article 6 § 1 of the Convention.
3. The applicant complains under Article 8 that his right to correspondence was breached as a result of the ban on his telephone calls at the detention facility.
QUESTIONS TO THE PARTIES
1. Did the criminal proceedings against the applicant comply with the requirements of Article 6 § 1 of the Convention? In particular:
(a) did the fact that the domestic courts, in convicting the applicant, relied on handwritten evidence which was illegible violate the applicant’s right to a fair hearing?
(b) did the fact that the trial was held in camera violate the applicant’s right to a public hearing?
The Government are requested to submit copies of the handwritten materials of the criminal case on which the domestic courts relied when convicting the applicant and a copy of the decision of the Avan and Nor‑Nork District Court of Yerevan to hold the applicant’s trial in camera.
2. Has there been a violation of the applicant’s right to respect for his correspondence, contrary to Article 8 of the Convention, as a result of the prohibition on his telephone calls at the detention facility?
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