Communicated on 24 February 2017
FIRST SECTION
Application no. 18550/13
Aram MARTIROSYAN and Artur MARTIROSYAN
against Armenia
lodged on 4 March 2013
STATEMENT OF FACTS
The applicants, Mr Aram Martirosyan (the first applicant) and Mr Artur Martirosyan (the second applicant), are Armenian nationals who were born in 1966 and 1975 respectively and are detained in Sevan prison. They are 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 applicants, may be summarised as follows.
The applicants are brothers and used to live and run their business activity in the town of Gavar before their conviction and imprisonment.
On 5 November 2009 a resident of Gavar, H.H., reported to the police that at around 6.20 p.m. his car had been shot at from a black sports utility vehicle in a street in Gavar, as a result of which his son H. and his friend, who were with him in the car, had received gunshot injuries and been taken to hospital.
On the same date the Gavar Investigative Department instituted criminal proceedings for attempted murder and illegal possession of firearms.
In the course of the investigation a number of persons were questioned, including eyewitnesses and police officers. It was revealed that at around 1 p.m. on 5 November 2009 the applicants and their friend H.P. had beaten up V.M., the son-in-law of H.H. Later that day the shooting in the street had taken place. Thereafter the applicants had gone missing, and H.P. had left the country.
During his interview H.H., who had been given the status of victim in the proceedings, stated, inter alia, that his car had been shot at from a black sports utility car in which he had seen the first applicant. When the car drove away, he had recognised it as the second applicant’s car.
A.S., a person close to the applicants’ family and employed by them in one of their businesses, stated at his interview that on the day of the events he had met the applicants and H.P. shortly after the shooting and had understood from their conversation that they were the ones who had shot at H.H.’s car.
S.G., the applicants’ relative, stated during his interview that on the day of the events the second applicant had called him to enquire about the incident. In particular, he had tried to find out who had been inside H.H.’s car and what exactly had happened to them. He was later informed by his son that the latter had heard from the people gathered at the place of the incident that the applicants had shot at H.H.’s car. He had then talked to the second applicant and tried to obtain more specific information from him. The second applicant had not denied anything, after which it became clear that it had been the applicants who had committed the offence.
M.M., a friend of the Gavar Mayor who was the applicants’ relative, stated at his interview that he had lent his car to the Mayor (who had allegedly then helped the applicants to leave the town). Thereafter he had heard from the people gathered in the street that the applicants had shot at H.H.’s car and fled. He had found his car the next morning entirely covered with mud.
At some point S.K., the first applicant’s friend, was questioned and stated, inter alia, that in November 2009 the first applicant had called him and asked to put up his guests in S.K.’s empty apartment in Yerevan for a couple of days. On the same day he met the first applicant and gave him the key to the apartment. The next day he went to the apartment where he found the first applicant and two other men whom he did not know. Several days later he decided to visit the first applicant and his guests once again but they had already left. He submitted that he did not know the real reasons for the first applicant and his guests visiting Yerevan and staying in his apartment.
On 10 November 2009 a new set of proceedings was instituted for hooliganism. The applicants and H.P. were charged with aggravated hooliganism and a search warrant was issued in respect of them.
On 9 December 2009 H.P. was arrested. He was also charged with illegal crossing of the State border.
It appears that H.P. accepted the charges. During his interview he stated, inter alia, that after the incident with V.M. on 5 November 2009, the applicants had given him various types of firearms which he had put in the second applicant’s sports utility vehicle. While driving together with the applicants, they had noticed H.H.’s car in the street which had turned and started to follow them. They had then seen that H.H. was armed and the first applicant had screamed to open fire, which H.P. had done from the back seat where he was sitting. Subsequently, the applicants had also fired their guns. The shooting had lasted for about twenty seconds, after which the second applicant had driven towards the centre of Gavar. Several seconds later they had heard shooting behind them.
On 9 April 2010 the proceedings in respect of H.P. were severed from the main proceedings.
On 5 May 2010 the proceedings were stayed on the ground that the identity of the suspect as regards the attempted murder was unknown and, as regards the episode of hooliganism, the accused had absconded.
By judgment of 11 May 2010 of the Gegharkunik Regional Court, H.P. was found guilty as charged and received a custodial sentence.
On 15 June 2010 the applicants gave themselves up to the police.
By judgment of 26 October 2010 the Regional Court found the applicants guilty of hooliganism. They received custodial sentences and were put on parole.
On 7 September 2010 the proceedings were once again stayed as regards the attempted murder on the ground that the identity of the offender was unknown.
On 4 March 2011 the proceedings were resumed and the case was assigned to the Special Investigative Service.
On 14 March 2011 the applicants were detained and charged with attempted murder of two or more persons committed by a group and illegal possession of firearms.
The applicants pleaded not guilty and refused to make any statements during the investigation.
On 16 March 2011 H.P. was charged with the same offences as the applicants.
It appears that in the course of the trial the Regional Court attempted to secure the presence of victims H.H. and H., but they failed to appear. It further appears that H.H. had addressed several applications to the Regional Court stating that he was not willing to attend the trial in order to avoid experiencing the trauma involved in the events once again and H. had informed the court that he would be travelling abroad with his father in order to receive medical treatment.
On 23 February 2012 the Regional Court found the applicants and H.P. guilty as charged and sentenced them to thirteen and twelve years’ imprisonment respectively. In doing so, the Regional Court relied, among other evidence, on the pre-trial statements of H.H., witnesses A.S., M.M., S.G. and S.K., all of whom failed to attend the applicants’ trial.
The applicants lodged appeals complaining, inter alia, that the pre-trial statements of H.H. and witnesses A.S., M.M., S.G. and S.K. had been admitted in evidence against them although they had failed to attend the proceedings.
On 20 July 2012 the Criminal Court of Appeal upheld the Regional Court’s judgment in full.
The applicants lodged appeals on points of law raising similar arguments to those raised in the previous appeal.
On 7 September 2012 the Court of Cassation declared the applicants’ appeals on points of law inadmissible for lack of merit.
B. Relevant domestic law
The following provisions of the Code of Criminal Procedure are relevant in the context of the present case.
Article 86: A witness
“3. A witness is obliged ... to appear upon the summons of the authority dealing with the case in order to give testimony or to participate in investigative and other procedural measures...
4. The failure of a witness to comply with his obligations shall lead to sanctions prescribed by law.”
Article 153: Compulsion to appear
“1. [A] witness ... may be compelled to appear by a reasoned decision of ... the court if he fails to appear upon summons without valid reasons. [A] witness ... is obliged to inform the summoning authority if there are valid reasons preventing his appearance within the time-limit fixed in the summons.”
Article 216: Confrontation
“1. The investigator is entitled to carry out a confrontation of two persons who have been questioned previously and whose statements contain substantial contradictions. The investigator is obliged to carry out a confrontation if there are substantial contradictions between the statements of the accused and some other person.
...
3. The persons summoned to a confrontation are asked in turns to give their account of the circumstances in relation to which the confrontation is being carried out. Thereafter the investigator asks questions. The persons summoned to a confrontation may ask each other questions, with the investigator’s permission.
...
5. In cases envisaged by this Code, defence counsel, an interpreter and the lawful representative of the person being questioned can participate in the confrontation and shall also sign the record.”
Article 332: Deciding on the possibility of examining the case in the absence of a witness, expert or specialist who has failed to appear
“1. If any of the witnesses ... summoned to court has failed to appear, the court, having heard the opinions of the parties, shall decide on continuing or adjourning the proceedings. The proceedings may be continued if the failure to appear of any such persons shall not obstruct the thorough, complete and objective examination of the circumstances of the case.”
Article 342: Reading out of witness statements
“1. Reading out at the trial of witness statements made during the inquiry, the investigation or a previous court hearing ... is permissible if the witness is absent from the court hearing for reasons which rule out the possibility of his appearance in court, if there is substantial contradiction between those statements and the statements made by that witness in court, and in other cases prescribed by this Code.”
COMPLAINT
The applicants complain under Article 6 § 1 taken in conjunction with Article 6 § 3(d) of the Convention that they were not given an opportunity to cross-examine victim H.H. and witnesses A.S., M.M., S.G. and S.K. at their trial.
QUESTION TO THE PARTIES
Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? In particular, did the fact that the applicants were not able to obtain the attendance and examination of victim H.H. and witnesses A.S., M.M., S.G. and S.K. at their trial violate their rights guaranteed by Article 6 § 3(d) of the Convention? (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-131, ECHR 2015).
The Government are requested to provide copies of the following documents from the case file: the bill of indictment, the records of the interviews held with the victim and the above-mentioned witnesses, as well as the records of confrontations held, if any, and documents relating to the reasons for their non-attendance at the applicants’ trial (court decisions to compel them, letters from the police etc.).
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