Communicated on 30 November 2017
FIRST SECTION
Application no. 36588/13
Hakob TOSUNYAN
against Armenia
lodged on 29 May 2013
STATEMENT OF FACTS
The applicant, Mr Hakob Tosunyan, is an Armenian national who was born in 1959 and lives in Kajaran. He is represented before the Court by Mr T. Hayrapetyan and Mr V. Manukyan, lawyers 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 6 September 2012 the applicant was arrested on suspicion of committing an offence under Article 340 § 2 of the Criminal Code (compelling a witness to make a false statement).
On 8 September 2012 he was charged under that Article.
On the same date the Kentron and Nork-Marash District Court of Yerevan allowed an investigator’s application seeking to have the applicant detained for a period of two months. The court held, referring to the case material, that there was a reasonable suspicion that the applicant had committed the imputed offence, while the nature and dangerousness of the offence and the case material provided sufficient grounds to conclude that there was a high likelihood that he would obstruct the pre-trial investigation or the court proceedings by exerting unlawful influence on the persons involved in the proceedings and concealing or falsifying materials vital for the case if at large. The court also dismissed an application by him for bail on the same grounds.
On 8 December 2012 another charge was brought against the applicant under Articles 38 and 349 of the Criminal Code (complicity in falsification of evidence by an investigator in a criminal case).
On 1 November and 28 December 2012 and 27 February, 29 April and 1 July 2013 the court extended his detention by two months on the same grounds.
On 30 August 2013 the court extended the applicant’s detention, which was due to expire on 6 September 2013, by fifteen days until 21 September 2013. In the meantime, the investigation into his criminal case was completed and transferred to the Syunik Regional Court for examination on the merits.
On 18 September 2013 a judge of that court decided, with reference to Article 291 of the Code of Criminal Procedure, to take over the case. In the same decision the judge stated that the applicant’s detention was justified and was “to remain unchanged” since he might abscond, commit another offence, obstruct the proceedings, exert unlawful influence on the persons involved in the proceedings and evade criminal responsibility and punishment if at large.
It appears that on 30 September 2013 the judge decided to set the case down for trial, stating, inter alia, that the applicant’s detention was “to remain unchanged”.
On 3 December 2013 and 19 June, 31 July and 10 October 2014 the applicant lodged applications for bail, all of which were dismissed by the presiding judge.
On 2 October 2014 the applicant lodged another application, seeking to be released. He argued, inter alia, that his detention since 18 September 2013 had been arbitrary and unlawful since the ruling on detention taken on that date was not compatible with Article 5 § 1 of the Convention. In particular, it had been taken by the judge while adopting a decision unrelated to questions of detention and without hearing the parties, contained no reasoning whatsoever and authorised his detention for an unlimited period of time. The application was dismissed by the presiding judge the same day.
On 27 January 2015 the applicant’s criminal case was taken over by another judge of the Syunik Regional Court. In the same decision the judge found that there were no grounds to lift the applicant’s detention or to replace it with another preventive measure; it was therefore to remain unchanged.
On 6 May, 10 September, 1 October, 12 November and 1 December 2015 and 19 January, 16 February and 1 March 2016 the applicant lodged applications for bail, all of which were dismissed by the presiding judge.
On 18 March 2016 the Syunik Regional Court found the applicant guilty as charged and sentenced him to four years’ imprisonment.
B. Relevant domestic law
Article 65 of the Code of Criminal Procedure provides that an accused is entitled to lodge applications, which, pursuant to Article 102, must be examined and ruled on immediately.
Article 291 provides that a criminal case received by a court is taken over by one of its judges in accordance with a prescribed procedure and a relevant decision is adopted.
Article 292 provides that the judge who takes over a case examines the case material and within fifteen days of the date of taking over the case adopts a number of decisions, including a decision setting the case down for trial.
Article 293 § 2 provides that the decision setting the case down for trial must contain, inter alia, a ruling imposing, lifting or changing a preventive measure.
Article 300 provides that, when adopting decisions, the court is obliged to examine the issue of whether or not to impose a preventive measure or, if such a measure has already been imposed, whether or not it is justified.
COMPLAINTS
The applicant complains under Article 5 § 1 of the Convention that the decision of 18 September 2013 authorised his detention for an unlimited period of time, which lasted until his conviction on 18 March 2016, and thereby failed to afford adequate protection from arbitrariness and meet the requirement of lawfulness.
The applicant also complains under Article 5 § 3 that the courts failed to provide relevant and sufficient reasons for his detention and that his pre-trial detention was in breach of the “reasonable time” requirement.
QUESTIONS TO THE PARTIES
1. Was the applicant’s detention between 18 September 2013 and 18 March 2016 compatible with the requirements of Article 5 § 1 of the Convention? In particular, did the decisions authorising his detention during that period afford adequate protection from arbitrariness and meet the requirement of lawfulness within the meaning of that Article? The Government are requested to provide a copy of the decision of the Syunik Regional Court of 30 September 2013 setting the case down for trial.
2. Did the applicant’s pre-trial detention comply with the “reasonable time” requirement and the requirement that the domestic courts provide “relevant and sufficient” reasons for it, enshrined in Article 5 § 3 of the Convention?
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