Communicated on 16 November 2016
FIRST SECTION
Application no. 20544/14
Armen Napoleoni KHALOYAN
against Armenia
lodged on 25 February 2014
STATEMENT OF FACTS
The applicant, Mr Armen Napoleoni Khaloyan, is an Armenian national who was born in 1963 and is detained in Hrazdan. He is represented before the Court by Mr R. Revazyan, 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 25 October 2012 the applicant had an argument with the adviser to the Chief of Police in the lobby of the Police Headquarters building. The applicant was taken to the Marash Police Department on suspicion of disturbance of the peace.
It appears that the applicant was subjected to a personal search and was found to be carrying a knife. It further appears that he was then allowed to leave.
On 31 October 2012 the applicant was charged with hooliganism and illegal possession of a melee weapon.
On 2 November 2012 the applicant was apprehended by police officers and taken to Arabkir Police Department. According to the applicant, he was physically and verbally assaulted there by officer H.K.
On 3 November 2012 the applicant was charged with an additional count of hooliganism and assaulting a representative of the authorities. The relevant decision stated that the applicant had interfered with the work of the police department, sworn at H.K and punched him.
On the same date the Arabkir and Kanaker-Zeytun District Court of Yerevan ordered the applicant’s detention for a period of two months.
According to the applicant, at the hearing before the Arabkir and Kanaker-Zeytun District Court he stated that the investigating authority had not provided him with a lawyer, despite his request.
On 9 November 2011 the applicant requested free legal assistance since he could not afford to hire a lawyer.
It appears that on the same date the applicant was appointed a lawyer, S.H. from the Public Defender’s Office.
At his interview on 13 November 2012 the applicant refused to make any statement and asked to be represented by another lawyer from the Public Defender’s Office.
On 14 November 2012 the applicant lodged a written request to the investigator, asking for a public defence lawyer to be appointed for him.
On 15 November 2012 the two sets of criminal proceedings against the applicant were joined.
On 28 December 2012 the Kentron and Nork-Marash District Court of Yerevan (the District Court) made a decision which stated, in particular, the following:
“On 14.11.2012 [the applicant] submitted an application to the investigating authority requesting that he be provided with a lawyer from the Public Defender’s Office of the Chamber of Advocates ...
Taking into account that according to Article 70 § 3 (1) of the Code of Criminal Procedure ... based on the application by the suspect or the accused, the body conducting the investigation orders the Chamber of Advocates to appoint a lawyer, according to Article 6 of the Advocacy Act the State ensures free legal assistance in accordance with ... the Code of Criminal Procedure, taking into account that [the applicant] has no employment, does not have an opportunity to benefit from remunerated legal services, the court finds that [the applicant’s] application is well‑founded and should be granted.
... the court decides to order the Chamber of Advocates ... to appoint a lawyer in order to defend [the applicant] and exonerate [the applicant] from payment of the fee for the lawyer’s services ...”
On 8 January 2013 the applicant was provided with a lawyer at the hearing before the District Court.
By judgment of 16 April 2013 the District Court convicted the applicant and sentenced him to five years’ imprisonment and a fine. In doing so, the District Court stated, inter alia, the following:
“The lawyer’s arguments that in the course of the investigation [the applicant’s] rights, including his right to a lawyer, have been violated, are groundless since [the applicant] had been provided with a [lawyer], had dispensed with the latter’s services of his own will and had chosen another lawyer ...”
The applicant lodged an appeal arguing, inter alia, that he should have been provided with a lawyer already on 25 October 2012 when he was taken to the Marash Police Department. He argued that although official charges were brought against him later, he was in fact already a suspect when he was taken there. However, not only was he not provided with a lawyer, but he was not even offered one. Furthermore, the applicant argued that he had refused to be represented by S.H. but had not refused to have any lawyer at all.
On 14 June 2013 the Criminal Court of Appeal upheld the District Court’s judgment in its entirety.
The applicant lodged an appeal on points of law which was declared inadmissible for lack of merit by the decision of the Court of Cassation of 24 August 2013.
B. Relevant domestic law
1. The Code of Criminal Procedure
Article 69
Mandatory participation of counsel
“1. Counsel’s participation in criminal proceedings is mandatory when:
1) the suspect or the accused has expressed his wish to that effect;
...
2. Counsel’s participation in criminal proceedings is mandatory:
1) from the moment when the suspect or the accused expresses such a wish in a situation envisaged by point 1 of paragraph 1 of this provision;
...
3. The wish to be represented by counsel, expressed by the suspect or the accused, does not predetermine counsel’s mandatory participation in criminal proceedings if he had dispensed with appointed counsel and this was accepted by the investigating authority.”
Article 70
Invitation, appointment, replacement of counsel and other means of counsel’s participation in criminal proceedings
“1. Advocates participate in criminal proceedings as counsel:
...
2) upon appointment by the Chamber of Advocates of the Republic of Armenia further to a request by the authority conducting the criminal proceedings.
3. The investigating authority requests the Chamber of Advocates of the Republic of Armenia to appoint cousnel when:
1) the suspect or the accused makes an application to that effect;
2) counsel’s participation in the criminal proceedings is mandatory and the suspect or the accused is not assisted by counsel.”
Article 72
Dispensing with counsel
“1. Dispensing with counsel is considered the suspect’s or the accused’s intention to defend himself without legal assistance by a lawyer.
...
4. The suspect or the accused, who had previously dispensed with counsel, has the right to change his view in that respect at any time during the criminal proceedings. In such a situation the participation of new counsel is not a ground to restart the criminal proceedings.”
2. The Advocacy Act
Article 6 § 4 provides that the State guarantees free legal assistance to persons mentioned in Article 41 of this Act in cases and procedure set out in the same provision.
Article 41 § 4 provides that the authority conducting criminal proceedings ensures free legal assistance through the Public Defender’s Office in cases envisaged by the legislation of the Republic of Armenia or international treaties or in the interest of justice.
COMPLAINT
The applicant complains under Article 6 § 3 (b) and (c) of the Convention that he was not provided with a defence lawyer in a timely manner during the criminal proceedings against him.
QUESTION TO THE PARTIES
Was the applicant’s right to free legal assistance, within the meaning of Article Article 6 § 1 taken in conjunction with Article 6 § 3 (c) of the Convention, respected in the impugned proceedings?
The Government are requested to provide a copy of the record of the hearing of 3 November 2012 before the Arabkir and Kanaker-Zeytun District Court of Yerevan.
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