Communicated on 2 October 2020
Published on 21 October 2020
FOURTH SECTION
Application no. 72645/16
Ani HOVHANNISYAN against Armenia
and 3 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Armenian nationals. They are represented before the Court by Mr L. Simonyan, Ms S. Sargsyan, Mr T. Hayrapetyan and Mr E. Tumasyan, lawyers practising in Yerevan.The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.Applications nos. 72645/16 and 24326/17 (the first and second applicants respectively)
On 3 May 2016 the first applicant, editor-in-chief of a web-based media site called analitik.am, was arrested on suspicion of extortion in conspiracy with her assistant and was later charged. She was accused of requesting and obtaining from a Member of the National Assembly, T.U., a significant sum of money by publishing and threatening to publish further defamatory information about him or his close relatives.
On 6 May 2016 the Arabkir and Kanaker-Zeytun District Court of Yerevan, upon the investigator’s application, ordered the first applicant’s pre-trial detention for two months. The court observed that, if at large, she could obstruct the investigation by exerting unlawful influence on the persons involved in the proceedings, namely through possible defamatory publications about T.U., and commit an act prohibited by criminal law. The District Court also took into account the seriousness of the charge and the severity of the anticipated penalty.
On an unspecified date the first applicant appealed against that decision. She argued, in particular, that the case file did not contain any evidence that, if at large, she could misbehave or obstruct the investigation. The first applicant contended that the court, relying on the gravity of the imputed offence and her professional activity, had reached unsubstantiated conclusions that she would obstruct the investigation and commit a new offence. The court had failed to take into account that the applicant, having learnt of her assistant’s arrest, had voluntarily gone to the police station, and that the persons involved in the proceedings, namely her assistant and another witness, S.H., had already been questioned. The first applicant further argued that she could in no way influence T.U., who had announced that he would not testify against her when she had already been placed in custody. Lastly, she pointed out that the court had failed to consider that she was female, had a permanent place of residence, was of good character and had no prior convictions.
On 16 May 2016 the Criminal Court of Appeal rejected the first applicant’s appeal and endorsed the decision of the District Court. The Court of Appeal found that the conclusions of the investigator and the District Court were well-founded and that the materials submitted contained sufficient predictive factual circumstances to show that the applicant could obstruct the investigation. As regards her personal situation and her character, the Court of Appeal found these insufficient to allow her appeal. It noted that, while claiming to have gone voluntarily to the police station, the first applicant had been arrested at the police station.
On 26 May 2016 the second applicant was arrested on suspicion of extortion in conspiracy with the first applicant.
On 26 and 27 May 2016 charges were brought against the first and second applicants respectively, for requesting from a third person, K.B., a particularly large sum of money by publishing and threatening to publish further defamatory information about him and his close relatives at analitik.am and armcrimenews.com websites. The second applicant was also charged with abetting the first applicant’s brother, G.H., to bribe a State official in order to prevent the first applicant’s placement in pre-trial detention.
On 29 May 2016 the District Court, upon the investigator’s application, ordered the second applicant’s detention for a period of two months. The court held that, if at liberty, he could obstruct the investigation by exerting unlawful influence on the persons involved in the proceedings, in particular, by forcing witnesses, those who had been interviewed and those who had not yet been interviewed, to testify in his favour through possible publications about them and thereby evade criminal responsibility.
On 30 June and 30 August 2016 the District Court extended the first applicant’s detention, each time for two months, and rejected her applications for bail. Having regard to the gravity of the offences and the severity of the anticipated penalty, the court reasoned that there was still an increased risk that, if at liberty, the first applicant could obstruct the investigation by exerting unlawful influence on the persons involved in the proceedings, namely by forcing them to testify in her favour and concealing materials vital for the case. The court further found that she could obstruct the investigation and commit a criminal offence by publishing or threatening to publish defamatory information about those persons, or evade criminal responsibility and punishment. The court also observed that the investigating authority had displayed special diligence and it was still necessary to carry out a number of investigatory and procedural measures to finalise the case.
On 4 July and 5 September 2016 the first applicant appealed against these decisions, arguing, among other things, that the investigating authority had already searched her office and places of residence and seized all relevant materials, including computers: thus, there had been no risk of concealment of materials. As to pressure being brought to bear on others through defamatory publications, she argued that this had been mere speculation with no supporting evidence, amounting to censorship; besides, it had been unclear who she would influence – T.U. or K.B. Lastly, she argued that bail should be allowed and that, if at large, she would display proper conduct. In her latter appeal the applicant also complained of lack of due diligence on the part of the investigating authority, alleging that most of the interviews and confrontations could have been organised earlier, while others had been unrelated to her charges.
On 21 July and 22 September 2016 the District Court extended the second applicant’s detention, on each occasion for two months, having regard to the seriousness of the charges, the concrete circumstances of the case, the need to carry out a number of investigatory measures, and the fact that the reasons for his detention still persisted. In the latter decision the court specified that, if at large, the second applicant might obstruct the investigation by putting pressure on persons who had been questioned and who had not yet been questioned, by publishing or threatening to publish defamatory information about them, as well as concealing materials vital for the case, and thereby evade criminal responsibility and punishment.
On 26 July and 27 September 2016 the second applicant appealed against the above-mentioned detention orders, submitting, inter alia, that the reasons for his detention lacked any factual background. As regards his obstructing the investigation through possible publications at armcrimenews.com, the applicant denied having run that website and further argued that, in any event, it had been down for two months.
By decisions of 15 July, 5 August, 28 September and 10 October 2016 the Court of Appeal rejected the first and second applicants’ appeals and upheld the decisions of the District Court of 30 June, 21 July, 30 August and 22 September 2016.
On 29 October 2016 the District Court extended the first applicant’s detention and rejected her application for release on the same grounds as before. Despite the investigator’s request to extend her detention for two months, the court allowed the applicant’s further detention for one month and ten days, considering this period sufficient to obtain certain video/audio expert reports and to finalise the case. This decision was upheld on appeal.
On 7 and 11 November 2016 the charges against the second and first applicants respectively, concerning the extortion of funds from K.B., were dropped.
On 12 November 2016 the first applicant’s charges were amended and supplemented. While her charges on account of extortion from T.U. remained valid, she was further charged with extortion from a bank. In particular, she was accused of requesting from the bank through her assistant a large sum of money by publishing and threatening to publish further information causing considerable damage to the interests of the bank.
On 15 November 2016 the second applicant’s charges were also modified: he was charged with attempted fraud and preparation of bribery on account of abetting G.H. to bribe a State official.
On 21 November 2016 the District Court extended the second applicant’s detention for one month on similar grounds to the previous time, adding also the risk of his absconding.
On 28 November 2016 the second applicant appealed against that decision submitting, inter alia, that there was no need to carry out further investigatory measures since the investigation had been completed on 18 November 2016. The risk that he would abscond and evade criminal responsibility and punishment had not been relied on by the investigator before and was not supported by factual information. Besides, it had not been proved that the news website in question, whereby he could have posted defamatory publications, belonged to him and, in any event, that website no longer existed. The applicant also alleged that the offences imputed to him were of minor gravity, so his pre-trial detention should not exceed six months.
It appears that on 30 November 2016 the first applicant and her lawyer were informed by the investigator that the evidence had been sufficient to issue a bill of indictment on account of extortion of funds from T.U. and the bank and on 2 December 2016 they were provided with the materials of the criminal case. On the latter date the investigation was completed.
On 9 December 2016 the Court of Appeal rejected the second applicant’s appeal of 28 November 2016 and upheld the decision of the District Court.
Again on 9 December 2016 the District Court extended the first applicant’s detention for another month and rejected her application for bail on the same grounds as previously. The court also took into account the period needed for the applicant to study the materials of the case and for the investigating authority to finalise the criminal case.
On 12 December 2016 the first applicant appealed against that decision arguing, among other things, that the District Court, without any evidence that she would obstruct the investigation, had automatically granted the investigator’s application. The applicant pointed out that the investigator had considered the collected evidence sufficient to issue the bill of indictment and all the case materials were at their disposal. Therefore, nothing could support the conclusion that, if at large, she could obstruct the investigation or conceal materials. She further argued that the investigating authority had failed to display special diligence. The court had previously allowed her detention only for a further month and ten days, finding this period sufficient to complete relevant investigatory measures and to finalise the case. However, by allowing the investigator’s application, the court had contradicted its previous approach, whereas it should have dismissed it, finding a lack of due diligence on the part of the investigating authority. The applicant also contended that the court had failed to take into account her personality and her personal circumstances when dismissing her application for bail.
On 23 December 2016 the Court of Appeal rejected the first applicant’s appeal and upheld the decision of the District Court of 9 December 2016.Application no. 37868/17 (the third applicant)
On 20 July 2016 the third applicant was arrested on suspicion of aiding an armed group to seize buildings and facilities and take hostages and was later charged. In particular, the applicant was accused of the following actions: he had sought to provide for the members of the group a secure, interception-free wireless connection, so that the group could covertly get in touch with external sources and coordinate its actions; on 18 July 2016, having been informed by a member of the group of the movement of special police equipment stationed near the seized area, he had publicised this information, with a view to thwarting the operations of law‑enforcement authorities; on 19 July 2016, on the instructions of members of the group, he had taken measures to transfer demonstrators from Freedom Square to the vicinity of the seized police station, intending to thwart the authorities’ actions to neutralise the armed group; and lastly, with a view to discrediting the authorities in the eyes of the demonstrators, the applicant had spread false information on the internet through different persons that the authorities had poisoned members of the group and had sought to break negotiations with them.
On 22 July 2016 the investigator of the National Security Service lodged an application seeking the third applicant’s placement in pre-trial detention for a period of two months. Relying on the nature and the degree of social danger of the imputed act, as well as the gravity of the offence, the investigator reasoned that the applicant could hide from the investigating authority and evade criminal responsibility, obstruct the investigation or court proceedings by exerting unlawful influence on the persons involved in the proceedings, or conceal materials vital for the case.
On the same date the Kentron and Nork-Marash District Court of Yerevan examined the investigator’s application and decided to grant it. In particular, the court, having regard to the seriousness of the charges and the severity of the anticipated penalty, found that there were sufficient grounds to believe that, if at large, the third applicant could hide from the investigating authority, as well as commit an offence, since the alleged criminal actions of the armed group were ongoing. The court rejected the applicant’s request to be released on bail since more lenient measures of restraint could not ensure his proper conduct.
On 27 July 2016 the third applicant appealed against that decision arguing, inter alia, that the District Court, in violation with Article 5 of the Convention, had failed to specify any materials confirming that he was a flight risk or could commit a new offence. He also pointed out that the court had, of its own initiative, relied on the risk of his reoffending, whereas that ground had not been relied upon by the investigator. The applicant further contended that the court had failed to provide any reasons for its refusal to grant bail.
On 3 August 2016 the Criminal Court of Appeal rejected the third applicant’s appeal and upheld the decision of the District Court of 22 July 2016. Relying on the nature and the degree of danger of the imputed offences, as well as the concrete circumstances of the case, the Court of Appeal reasoned that there was a high possibility that, if at large, the third applicant could abscond and obstruct the investigation or court proceedings.
On 19 September 2016 the District Court, upon the investigator’s application, extended the third applicant’s detention for another two-month period. In particular the court, relying on the gravity of the offences and the severity of the anticipated penalty, found that there was still a high risk that, if at liberty, he could obstruct the investigation by exerting unlawful influence on the persons involved in the proceedings, namely by forcing witnesses who had already been interviewed, as well as those who had not, to testify in his favour. The court reasoned that its conclusion about the applicant’s possible conduct stemmed from the fact that the relevant investigative and operative-intelligence actions were still underway, which, at the given stage of the investigation, increased the possibility of interference with the establishment of the truth; besides, it was still necessary to carry out a number of investigatory and procedural measures.
On 24 September 2016 the third applicant filed an application to be released on bail. In particular, the applicant pointed out that he had never tried to abscond from the investigating authority. He argued, among other things, that he was a well-known and respected person and a political figure; many renowned public and political figures, including several Members of the National Assembly, had offered their personal surety as a guarantee that, if released, he would comply with his procedural obligations. The third applicant also drew the court’s attention to the fact that he had a permanent place of residence in Armenia, that he was the father of five children who were dependent on him, and to his poor state of health and his need to undergo a medical examination in hospital.
On the same date the third applicant appealed against the District Court’s decision of 19 September 2016 submitting, inter alia, that the investigator had failed to display due diligence since the majority of the investigatory and operative-intelligence measures conducted had been unrelated to his charges. The court’s conclusion that he would obstruct the investigation had not been based on any case material and had been couched in general terms; the court had only relied on the severity of the charges. The applicant also argued that the court had failed to consider less stringent preventive measures than detention on remand, invoking arguments similar to those mentioned in his application for bail.
On 6 October 2016 the District Court refused the third applicant’s request for bail on the ground that there were no new reasons to alter the preventive measure imposed on him and that the reasons justifying his detention still persisted. While having regard to the applicant’s personal situation, his personality and the sureties provided for him, the court found that, based on the aforesaid, these could not be relied on as grounds to replace his detention with bail.
The decisions of the District Court of 19 September and 6 October 2016 were upheld on appeal.
On 18 November 2016 the District Court extended the third applicant’s detention for another two months and rejected his request for bail. The court, inter alia, found that there was still a high risk that, if at large, the applicant could abscond and obstruct the investigation by exerting unlawful influence on the persons involved in the proceedings, namely on witnesses who had not yet been questioned and possible accomplices of the organised group, as well as on persons who had gone into hiding. The court also took into account the need to carry out a number of investigatory measures. The applicant’s request for bail was rejected on the same grounds as before.
On 23 November 2016 the third applicant appealed against that decision, inter alia, reiterating his arguments about the lack of reasons for his detention. The applicant alleged that no one had testified against him: therefore there had been no grounds to suspect him of influencing witnesses. He also submitted that the investigator had failed to display special diligence and there had been no need to carry out any further investigatory measures since the investigator had announced the completion of the investigation immediately after the hearing.
On 9 December 2016 the Court of Appeal rejected the third applicant’s appeal and endorsed the decision of the District Court. The Court of Appeal found that the impugned decision was well-founded and that the applicant had failed to adduce sufficient and real justifications or evidence indicating that he would in no way obstruct the investigation if he remained at large.
On 4 October 2017 judge A.G., who had taken over the case on 17 May 2017 following the completion of the investigation, decided, among other things, to leave the third applicant’s and other co-accused persons’ detention unchanged, taking into account the gravity and the nature of the acts imputed to them, the features of the commission of those acts, the covert preparatory activity conducted supposedly for a continuous period; the stable, continuous relations between the alleged co-accused persons; that the investigation with regard to other perpetrators was still underway; and the unlawful conduct of the accused persons aimed at disrupting the court proceedings, including by making public calls to commit new offences accompanied with violence. The court found that, if at liberty, the accused persons, including the applicant, could abscond from the investigating authority, obstruct the court proceedings and commit new offences prohibited by the Criminal Code.Application no. 55566/19 (the fourth applicant)
On 7 September 2018 the fourth applicant was arrested on suspicion of embezzlement in particularly large amounts from the Central Bank of Armenia and was later charged.
On 10 September 2018 the Court of General Jurisdiction of Yerevan, upon the investigator’s application, ordered the fourth applicant’s pre-trial detention for a period of two months, finding that a more lenient preventive measure could not ensure her proper conduct. The court, taking into account the seriousness of the imputed offence, which was punishable exclusively by imprisonment, found that there was a high possibility that, if at liberty, the fourth applicant would abscond and obstruct the investigation or court proceedings by exerting unlawful influence on the persons involved in the proceedings. As regards her request for bail the court, having regard to the above, found that bail should not be granted.
On 1 November 2018 the court extended the fourth applicant’s detention for a further two-month period on the ground that, given the high degree of social danger of the imputed serious offence and the risk of imprisonment, the applicant could abscond if at large. Having regard to the fact that the majority of persons who had been interviewed and who had still to be interviewed were the applicant’s former colleagues, the court observed that there was an increased possibility that she could either, through her stable personal links or by herself, influence them, including those who had testified against her, to testify in her favour. The court also took into account the need to carry out a number of investigatory measures.
On 27 December 2018, 27 February 2019 and 3 May 2019 the court further extended the applicant’s detention, on each occasion for two months, on the same grounds specified in its decision of 10 September 2018. In reaching this conclusion, it also observed the need to carry out certain investigatory measures and the particularly large amount of damage caused to the State by the commission of the imputed offence. By decisions of 27 December 2018 and 27 February 2019 it also refused the applicant’s requests to be released on bail.
On an unspecified date the fourth applicant lodged an appeal against the decision of 3 May 2019, submitting, inter alia, that the court had disregarded the fact that the investigating authority had failed to produce sufficient evidence to justify her detention or to show that the reasons for her detention still persisted. It had not considered the lack of due diligence on the part of the investigating authority.
On 10 June 2019 the Court of Appeal rejected the fourth applicant’s appeal and upheld the decision of the court of 3 May 2019. The Court of Appeal agreed with the findings of the lower court that, at the given stage of the proceedings, there were sufficient grounds to believe that, if at large, the applicant could abscond and obstruct the investigation by exerting unlawful influence on the persons involved in the proceedings. In that connection, the Court of Appeal noted that the applicant was accused of a serious, premeditated offence against property, which was punishable exclusively by imprisonment. The Court of Appeal also took into account the particularities of the imputed act, its nature and degree of social danger, possible manner of the commission of the offence, the severity of the anticipated penalty, the applicant’s alleged behaviour after the commission of the offence – apparently referring to her failure to reimburse the pecuniary damage inflicted, the operative-investigative situation of the case and the reasonable prediction following from it with regard to the applicant’s possible behaviour. At the same time, the Court of Appeal held that the lower court’s findings that the applicant would obstruct the court proceedings were groundless which, however, was not sufficient to set aside the contested decision since the court had, in essence, made the correct decision.
COMPLAINT
The applicants complain under Article 5 § 3 that the courts failed to provide “relevant and sufficient” reasons for their detention. In particular, they argue that the reasons provided did not justify their detention and overall were abstract and stereotyped; the third applicant also complains that the District Court, when ordering his detention on 22 July 2016, relied on a ground, namely the risk of his reoffending, which had not been relied upon by the investigator. Lastly, the first, third and fourth applicants complain that the authorities failed to display due diligence in the conduct of the proceedings against them.
QUESTIONS TO THE PARTIES
1. Was the applicants’ pre-trial detention compatible with the requirements of Article 5 § 3 of the Convention? In particular:
(a) Did the domestic courts provide relevant and sufficient reasons for the applicants’ detention as required by Article 5 § 3 of the Convention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 84 et seq., 5 July 2016, and Ara Harutyunyan v. Armenia, no. 629/11, §§ 48 et seq., 20 October 2016)?
(b) If so, did the authorities display due diligence in the conduct of the proceedings against the first, third and fourth applicants, as required by this provision (see Muradkhanyan v. Armenia, no. 12895/06, § 85, 5 June 2012)?
2. Did the fourth applicant exhaust the domestic remedies, as required by Article 35 § 1 of the Convention, in respect of the detention periods authorised by the decisions of 10 September, 1 November and 27 December 2018 and 27 February 2019, given that she did not lodge appeals with the Criminal Court of Appeal against those decisions (see Polonskiy v. Russia, no. 30033/05, § 132, 19 March 2009)?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
72645/16
28/10/2016
Ani HOVHANNISYAN
19/08/1985
Abovyan
Liparit SIMONYAN
24326/17
27/03/2017
Artak GALSTYAN
15/06/1967
Yerevan
Susanna SARGSYAN
37868/17
17/05/2017
Garo YEGHNUKIAN
08/04/1959
Yerevan
Tigran
HAYRAPETYAN
55566/19
15/10/2019
Susanna PETROSYAN
30/12/1986
Yerevan
Edgar
TUMASYAN
Full & Egal Universal Law Academy