In the case of Piruzyan v. Armenia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 5 June 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 33376/07) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Kamo Piruzyan (“the applicant”), on 25 July 2007.
2. The applicant was represented before the Court by Ms L. Sahakyan and Mr Y. Varosyan, lawyers practising in Yerevan, and Mr A. Ghazaryan, a non-practising lawyer. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights.
3. The applicant alleged, in particular, that his placement in a metal cage during the court proceedings amounted to degrading treatment; his detention between 19 February and 12 March 2007 had been unlawful; the courts had failed to provide reasons for his continued detention; he had had no possibility to be released on bail due to the gravity of the imputed offence; the detention hearing of 12 December 2006 had not been adversarial and had failed to ensure equality of arms; his arguments concerning the lack of a reasonable suspicion had not been adequately addressed; and the Court of Appeal had refused to examine his appeal of 27 January 2007.
4. On 21 January 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1978 and lives in Yerevan.
6. The applicant alleges that on 18 October 2006 at 9.20 a.m. he was taken to the local police station in the town of Alaverdi in connection with an armed assault that had taken place earlier on that day. He further alleges that his arrest was not recorded and several hours later he was released.
7. On 19 October 2006 criminal proceedings were instituted in respect of the applicant under Article 175 § 2 (2) and (4) of the Criminal Code (CC). The proceedings were instituted upon the complaint of the victim, G.H., who lived in the same building as the applicant. According to G.H., on 18 October 2006 at 8.45 p.m. the applicant, who was masked, attacked him on the ground floor of their building, hit him on the head with a metal rod and grabbed his briefcase, which was full of expensive jewellery.
8. On the same date at 8 p.m. the applicant was formally arrested on suspicion of having committed the above-mentioned offence. The arrest record was signed by the applicant.
9. On 22 October 2006 the applicant was formally charged with banditry under the above-mentioned Article. This decision added that following the incident the victim had pursued the applicant, who was forced to drop the briefcase and to flee. It was signed by the applicant.
10. On the same date the investigator filed a motion with the Lori Regional Court, seeking to have the applicant detained for a period of two months on the grounds that he had previous convictions, that the offence committed by him belonged to the category of grave crimes and that, if at large, he would abscond.
11. On the same date the Regional Court examined and granted the investigator’s motion, finding that the materials of the case provided sufficient reasons to believe that the applicant could abscond and obstruct the investigation, taking into account the nature and degree of dangerousness of the imputed offence.
12. On 8 December 2006 the investigator filed a motion seeking to have the applicant’s detention extended by two months. This motion stated that a number of examinations had been carried out during the investigation, including chemical and biological examinations and an examination of trace evidence. However, there was a need to carry out an additional biological examination and to modify the charge. The investigator argued that the applicant, if released, would abscond since he had committed a grave crime and could commit new offences since he had previous convictions. He had not admitted his guilt and would therefore obstruct the investigation. In support of this motion the investigator submitted a number of materials of the criminal case, such as the decision to institute criminal proceedings, the arrest record and the decision to bring charges.
13. On 12 December 2006 the Regional Court examined the investigator’s motion. The applicant was present at this hearing and was seated next to his lawyer.
14. The applicant objected to the investigator’s motion and requested the court to release him on bail. He submitted at the outset that there was no reasonable suspicion that he had committed an offence. The fact that he had committed offences in the past did not justify detaining him in this particular case. The Regional Court stated in this respect that it was not examining the case on the merits, including the question of the applicant’s guilt, but was examining the motion seeking an extension of the applicant’s detention and the validity of that motion. There was a difference between the issues of guilt and of the existence of a reasonable suspicion.
15. The applicant further submitted that there was no concrete evidence justifying his detention. The investigator, in reply to the applicant’s request to produce any such evidence, admitted that no such evidence was available. He submitted that a number of examinations had been ordered and it was necessary to take a blood sample in order to determine whether the applicant’s blood group corresponded to the traces of blood found on the victim’s shoes. The presiding judge then asked the investigator to present all the materials of the criminal case. Shortly thereafter the judge departed to the deliberation room.
16. The Regional Court, having examined the investigator’s motion and the materials confirming that it was well-founded, decided to grant partially the investigator’s motion and to extend the applicant’s detention by one month, namely until 19 January 2007, on the ground that on 8 December 2006 the investigator had ordered a biological examination which had not yet been completed. The court further decided to refuse the applicant’s request for bail, with reference to Article 143 § 1 of the Code of Criminal Procedure (CCP), on the ground that he was accused of a grave crime.
17. On 27 December 2006 the applicant lodged an appeal. He submitted, inter alia, that there was no reasonable suspicion of his having committed an offence. The documents submitted by the investigator in support of his motion, such as the decision to institute criminal proceedings, the arrest record and the decision to bring charges, were not sufficient to suggest the existence of a reasonable suspicion. Moreover, the Regional Court had refused in general to address the issue of the existence of a reasonable suspicion. The applicant further contested the allegation that he could commit new offences, which was based solely on the fact that he had previous convictions. Furthermore, there was no concrete evidence suggesting that he would abscond and the need to carry out an additional biological examination could not serve as a ground for his continued detention. Lastly, the applicant argued that the proceedings in the Regional Court had not been adversarial and had violated the principle of equality of arms since the presiding judge, having failed to examine at the hearing any evidence suggesting the existence of a reasonable suspicion, received from the investigator the entire case file before departing to the deliberation room. The applicant had not had access to any of those materials or the possibility to comment on them.
18. On 25 January 2007 the Criminal and Military Court of Appeal upheld the decision of the Regional Court. The Court of Appeal stated that the investigating authority had submitted certain evidence substantiating the applicant’s guilt, which confirmed his involvement in the event. Thus, there was reasonable suspicion that the applicant had committed an offence. The Court of Appeal found that there was a need to extend the applicant’s detention, taking into account the dangerousness and nature of the imputed offence and the fact that he could abscond and obstruct the investigation. His application for bail was to be dismissed on the same grounds. Thus, the findings of the Regional Court to extend detention and to refuse bail were well-founded and reasoned. There were no grounds to modify that decision.
19. On 9 January 2007 the investigator filed a motion seeking to have the applicant’s detention extended by one month on the same grounds as previously.
20. On 12 January 2007 the Regional Court examined the investigator’s motion. The applicant was present at this hearing and was seated next to his lawyer. He objected to the investigator’s motion and requested the court to release him on bail. The Regional Court decided to grant the motion and to extend the applicant’s detention by one month, namely until 19 February 2007, on the ground that the investigator had ordered a number of examinations which had not yet been completed. The court further decided to refuse the applicant’s request for bail on the same ground as previously.
21. On 27 January 2007 the applicant lodged an appeal.
22. On 8 February 2007 the charges against the applicant were modified. In addition to the original charge the applicant was also accused of recidivism and attempted murder.
23. On 16 February 2007 the investigation was over and the applicant was granted access to the materials of the case.
24. On 19 February 2007 the applicant’s detention period, authorised by the decision of 12 January 2007, expired.
25. On the same date the prosecutor approved the indictment and the case was sent to the Lori Regional Court for examination on the merits.
26. On the same date the Court of Appeal decided to leave the applicant’s appeal of 27 January 2007 unexamined on the ground that the investigation had been completed and the case transmitted to the Regional Court.
27. On 5 March 2007 the applicant filed a motion with the Regional Court claiming that his detention had been unlawful since 19 February 2007 and requesting his release. A similar request was filed with the chief of the detention facility where the applicant was held.
28. By a letter of 6 March 2007 the chief of the detention facility refused this request, with reference to Article 138 of the CCP, on the ground that the case had been transmitted to the Regional Court.
29. On 12 March 2007 the Regional Court dismissed the motion of 5 March 2007 on the same grounds.
30. On the same date the Regional Court decided to put the applicant’s criminal case down for trial. This decision stated that the applicant’s detention was to remain unchanged.
31. In the courtroom, during the proceedings before the Regional Court, the applicant was placed in a metal cage measuring about 4.5 sq. m. He was represented by a lawyer.
32. At the hearing of 21 March 2007 the applicant filed a motion requesting to be released from the cage. The Regional Court decided to adjourn the examination of that question.
33. At the hearing of 30 March 2007 the applicant challenged the presiding judge. He submitted, inter alia, that his placement in the metal cage amounted to inhuman and degrading treatment, and also violated the principle of equality of arms and the presumption of innocence. Despite all this, the presiding judge had failed to take any measures to eliminate these encroachments on his rights. It appears that this challenge was dismissed as unfounded.
34. The applicant alleged that following the dismissal of this challenge he again requested to be released from the cage, but the court refused this request on the ground that it had no other means to ensure security in the courtroom. The Government alleged that no further steps were taken by the applicant in this connection following the dismissal of the challenge.
35. During the entire proceedings before the Regional Court the applicant was kept in the metal cage. The proceedings lasted almost nine months and included twenty-one public hearings at which the applicant was present. The hearings lasted between 25 minutes and 7 hours. It appears that the case attracted public attention in the town of Alaverdi and the hearings were attended by the applicant’s family and friends, and numerous other members of the public, including other inhabitants of the town and many students.
36. On 24 July and 18 August 2007 the applicant lodged appeals on points of law against the decisions of 25 January and 19 February 2007.
37. At the hearing on 8 August 2007 the applicant filed a motion requesting the Regional Court to cancel his detention or otherwise to release him on bail. He submitted that he had been in detention for almost ten months. There were no grounds justifying his continued detention; since all the witnesses had already been examined, he could not obstruct the proceedings. The prosecutor objected to this motion, stating that the applicant could not be released on bail since he was accused of a grave crime. The Regional Court decided to dismiss the applicant’s motion on the ground that the examination of the case was not yet over and there were insufficient grounds to cancel his detention or to release him on bail.
38. On 6 September 2007 the Court of Cassation decided to return the applicant’s appeals of 24 July and 18 August 2007 for lack of merit.
39. On an unspecified date the prosecutor decided to drop the charges and filed a motion with the Regional Court seeking to terminate the criminal proceedings against the applicant on the ground that the evidence obtained was not sufficient to support the charges against him.
40. On 5 December 2007 the Lori Regional Court decided to grant this motion and to terminate the criminal proceedings against the applicant with reference to Article 35 § 4 of the CCP.
41. On the same date the applicant was released from detention.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Criminal Code (in force since 1 August 2003)
42. According to Article 19 offences, by their nature and degree of danger posed to society, are divided into offences of minor gravity, medium gravity, grave offences and particularly grave offences. Pre-meditated acts which are punishable by a maximum of five years’ imprisonment fall into the category of offences of medium gravity, while those punishable by a maximum of ten years’ imprisonment are considered grave offences.
43. According to Article 175 § (2) and (4), banditry, that is an assault aimed at stealing somebody else’s property accompanied with violence or threat of violence dangerous to life or health, if committed for the purpose of stealing property in a large amount and with the use of a weapon or other articles used as a weapon, shall be punishable with a prison sentence of between six and ten years.
B. The Code of Criminal Procedure (in force since 12 January 1999)
1. Right to appeal
44. According to Article 6 (10), a final decision is any decision taken by the authority dealing with the case, which precludes institution and continuation of proceedings or resolves a case on the merits.
45. According to Article 65 § 2 (20), the accused is entitled to lodge appeals against the actions and decisions of the body of inquiry, the investigator, the prosecutor and the court, including the verdict and any other final judicial decision.
46. According to Article 384, as in force at the material time, appeals could be lodged only against final decisions of the first instance court.
2. Detention
47. According to Article 134, preventive measures are measures of compulsion imposed on an arrestee or the accused in order to prevent their inappropriate behaviour in the course of the criminal proceedings and to ensure the enforcement of the judgment. Preventive measures include, inter alia, detention and bail.
48. According to Article 135, the court can impose a preventive measure only when the materials obtained in the criminal case provide sufficient grounds to believe that the suspect or the accused may: (1) abscond from the authority dealing with the case; (2) hinder the examination of the case during the pre-trial or court proceedings by exerting unlawful influence on persons involved in the criminal proceedings, by concealing or falsifying materials significant for the case, by failing to appear upon the summons of the authority dealing with the case without valid reasons or by other means; (3) commit an act prohibited by criminal law; (4) avoid criminal liability and serving the imposed sentence; and (5) hinder the execution of the judgment. Detention and bail can be imposed on the accused only if the highest punishment prescribed for the imputed crime is imprisonment for a term exceeding one year or if there are sufficient grounds to believe that the suspect or the accused might commit any of the actions referred to above. When deciding on the necessity of imposing a preventive measure or choosing the type of preventive measure to be imposed on the suspect or the accused, the following should be taken into account: (1) the nature and degree of danger of the imputed offence; (2) the personality of the suspect or the accused; (3) age and state of health; (4) sex; (5) occupation; (6) family status and dependants, if any; (7) property situation; (8) if he has a permanent residence; and (9) other important circumstances.
49. According to Article 136 § 2, detention and bail can be imposed only by a court decision upon the investigator’s or the prosecutor’s motion or of the court’s own motion during the court examination of the criminal case. The court can replace detention with bail, also upon the motion of the defence.
50. According to Article 138 § 3, during the pre-trial proceedings of a criminal case the detention period may not exceed two months, except for cases prescribed by this Code. During the pre-trial proceedings of the criminal case the running of the detention period shall be suspended on the date when the prosecutor transmits the criminal case to the court or when detention is cancelled as a preventive measure.
51. Article 143 § 1 prescribes that bail is the money, shares or other values deposited with the court by one or more persons in order to secure the release of a person accused of a crime of minor or medium gravity.
52. According to Article 285 § 1, the prosecutor’s or the investigator’s motion seeking to have detention imposed or extended must indicate the reasons and grounds necessitating the suspect’s detention. Materials substantiating the motion shall be attached to it.
3. Access to case file
53. According to Article 65 § 2(16), the accused has the right to familiarise himself with all the materials of the case upon the completion of the investigation.
54. According to Article 73 § 1(12), defence counsel is entitled to familiarise himself with all the materials of the case, to make copies of and to take notes on any information contained in the case and in any volume, after the completion of the investigation.
55. According to Article 201, materials of the investigation may be made public only upon the permission of the authority dealing with the case.
56. According to Article 265, the investigator, finding that the collected materials are sufficient to draw up the bill of indictment, informs the accused of this and decides on the location and time for him to familiarise himself with the materials of the case.
4. Termination of criminal proceedings
57. According to Article 35 § 4, the prosecutor, having discovered in court circumstances excluding criminal prosecution, is obliged to declare that the criminal prosecution against the accused is to be dropped. Such a declaration serves as a ground for the court to terminate the proceedings and to stop the criminal prosecution.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
58. The applicant complained that his placement in a metal cage during court proceedings was in violation of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
1. Exhaustion of domestic remedies
59. The Government claimed that the applicant had failed to exhaust the domestic remedies. Following the rejection of his challenge on 30 March 2007, the applicant never raised this issue again, despite the fact that there were over 20 hearings held before the Lori Regional Court. Furthermore, he failed to raise it in his appeals to a higher court, even though he was entitled to do so under Article 65 of the CCP.
60. The applicant submitted that the decisions taken on 21 and 30 March 2007 were interim decisions and were not subject to appeal.
61. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against the State before an international judicial body to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Assenov and Others v. Bulgaria no. 24760/94, § 85, ECHR 1999-VIII).
62. The only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that special circumstances existed which absolved him or her from this requirement (see Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001, and Melnik v. Ukraine, no. 72286/01, § 67, 28 March 2006).
63. In the present case, the applicant was placed in a metal cage during the proceedings before the Lori Regional Court. It appears that there was no specific procedure to follow for a defendant who wished to be released from the metal cage. This in itself raises doubts as to whether there were any effective remedies for the applicant to exhaust. In any event, it follows from the materials of the case that at least twice the applicant addressed the Regional Court requesting, inter alia, that he be released from the cage and alleging that his placement there amounted to inhuman and degrading treatment. No answer was given to the applicant’s request on the first occasion when it was decided to adjourn that question, while on the second occasion the Regional Court did not touch upon it either (see paragraphs 32 and 33 above). Thus, even assuming that the procedure followed by the applicant was a proper avenue of exhaustion for this type of complaint, it proved to be ineffective in his particular case.
64. Lastly, the Court observes that indeed the domestic law did not envisage a possibility of appeal against the decisions in question. It notes that Article 65 of the CCP, referred to by the Government, prescribes a general right of the accused to lodge appeals. However, more specific provisions of the CCP, namely Article 384, precluded those decisions from being contested before the Court of Appeal.
65. In conclusion, even assuming that there were effective remedies to exhaust, the applicant can be considered to have done everything which could be reasonably expected of him in the particular circumstances. The Government’s objection as to non-exhaustion must therefore be dismissed.
2. Conclusion
66. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
67. The Government submitted that the authorities had no intention to subject the applicant to treatment incompatible with Article 3. His placement in a metal cage was an appropriate safety measure in view of the fact that the applicant had previous convictions (in 1997, 2001 and 2002), the particular circumstances of the case and the applicant’s personality.
68. The applicant submitted that his previous convictions, which had been imposed on him for non-violent offences, namely theft, were not sufficient to justify his placement in a metal cage. The judge, in refusing his request to be released from the cage, made only a general reference to security considerations. He had been exposed to the public during almost nine months of court hearings, which humiliated him in his own eyes and those of his family, friends and the wide public of Alaverdi which is a small town with a small community of inhabitants. Nothing in his behaviour had justified such a measure.
2. The Court’s assessment
69. The Court observes at the outset that Article 3 enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct (see, among other authorities, Labita v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV)
70. The Court notes that it has previously found a violation of Article 3 in a case in which the applicant was placed in a metal cage during court hearings (see Ashot Harutyunyan v. Armenia, no. 34334/04, §§ 126-129, 15 June 2010). The circumstances of the present case are similar. In particular, contrary to what the Government claim, no specific reasons were given by the Lori Regional Court for placing and keeping the applicant in the metal cage, such as his previous convictions or his personality. Moreover, it appears that the Regional Court failed to take any decision on the applicant’s request to be released from the cage.
71. In any event, the Court notes that nothing in the applicant’s behaviour could have justified such a security measure. During the court hearings concerning his detention, where no security measures were applied to him, the applicant behaved in an orderly manner and no incidents were recorded (see paragraphs 13 and 20 above). It is true that the applicant had previous convictions and was accused of a violent crime. However, nothing in the materials suggests that his previous convictions concerned violent crimes. As regards the accusations against him, the Court considers that this fact alone was not sufficient to justify the imposition of such a stringent security measure.
72. Thus, lack of any justification by the Lori Regional Court and of any specific reasons for placing and keeping the applicant in the metal cage prompt the Court to believe that, similarly to the case of Ashot Harutyunyan, these acts were not necessitated by any real risk of his absconding or resorting to violence but by the simple fact that it was the seat where he, as a defendant in a criminal case, was meant to be seated (ibid., § 127).
73. The Court observes that the proceedings before the Lori Regional Court lasted from March to December 2007 and at least twenty-one public hearings were held. The hearings lasted between 25 minutes and 7 hours. During this entire period the applicant was observed by the public, including his family and friends, in a metal cage. The Court considers that such a harsh appearance of judicial proceedings could lead an average observer to believe that an extremely dangerous criminal was on trial. Furthermore, it agrees with the applicant that such a form of public exposure humiliated him in his own eyes, if not in those of the public, and aroused in him feelings of inferiority. Moreover, such humiliating treatment could easily have had an impact on the applicant’s powers of concentration and mental alertness during the proceedings bearing on such an important issue as his criminal liability (ibid., § 128).
74. In the light of the above considerations, the Court concludes that the imposition of such a stringent and humiliating measure on the applicant during the proceedings before the Lori Regional Court, which was not justified by any real security risk, amounted to degrading treatment. There has accordingly been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
75. The applicant complained that his detention between 19 February and 12 March 2007 was not authorised by a court and was therefore unlawful. He invoked Article 5 § 1 of the Convention, which, in so far as relevant, reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law...”
A. Admissibility
76. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
77. The Government submitted that the applicant’s detention between 19 February and 12 March 2007 was in compliance with the law, namely Article 138 § 3 of the CCP.
78. The applicant contested this submission, claiming that Article 138 § 3 of the CCP could not be considered as a lawful ground for his detention.
2. The Court’s assessment
79. The Court reiterates that Article 5 of the Convention guarantees the fundamental right to liberty and security. That right is of primary importance in a “democratic society” within the meaning of the Convention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12).
80. Where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Steel and Others v. the United Kingdom, 23 September 1998, § 54, Reports of Judgments and Decisions 1998-VII).
81. The Court notes that it has already examined an identical complaint in another case against Armenia, in which it concluded that there had been a violation of Article 5 § 1 of the Convention in that the applicant’s detention was not based on a court decision and was therefore unlawful within the meaning of that provision (see Poghosyan v. Armenia, no. 44068/07, §§ 56-64, 20 December 2011). It sees no reason to reach a different conclusion in the present case and concludes that the applicant’s detention between 19 February and 12 March 2007 was unlawful within the meaning of Article 5 § 1.
82. There has accordingly been a violation of Article 5 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
83. The applicant further complained that the domestic courts had failed to provide reasons for his lengthy detention and that his release on bail had been precluded by law due to the gravity of the offence. He relied on Article 5 § 3 of the Convention, which reads as follows:
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
A. Admissibility
1. Compatibility ratione personae
(a) The parties’ submissions
84. The Government argued, as regards the alleged impossibility of the applicant’s release on bail, that the applicant could not claim to be a victim of a violation of Article 5 § 3. It is true that the Lori Regional Court, in its decision of 12 December 2006, based its refusal to release the applicant on bail on Article 143 § 1 of the CCP, however, no such ground was provided by the Court of Appeal in reviewing that decision on 25 January 2007. The Court of Appeal examined the particular circumstances of the case and based its refusal on such factors as the existence of a reasonable suspicion and the danger of his absconding and obstructing justice. Thus, there was no automatic refusal of bail on the basis of Article 143 § 1 of the CCP. In conclusion, this Article had not been applied to the applicant and this complaint was therefore incompatible ratione personae.
85. The applicant argued that the fact that the Court of Appeal, in its decision of 25 January 2007, did not explicitly refer to Article 143 § 1 of the CCP did not deprive him of victim status. The Court of Appeal simply failed to address the question of his release on bail. Furthermore, it upheld the decision of the Lori Regional Court, thereby confirming the grounds for refusal of bail given by that court. In any event, Article 143 § 1 of the CCP was applied to him by the Regional Court on two subsequent occasions, namely on 12 January and 8 August 2007, in decisions which were not subjected to a review by the Court of Appeal. Thus, he could claim to be a victim of a violation of Article 5 § 3 on that ground.
(b) The Court’s assessment
86. The Court reiterates that the term “victim” used in Article 34 of the Convention denotes the person directly affected by the act or omission which is at issue (see, among other authorities, Vatan v. Russia, no. 47978/99, § 48, 7 October 2004).
87. In the present case, the applicant requested to be released on bail on several occasions. On at least two occasions the Lori Regional Court dismissed the applicant’s requests on the grounds provided by Article 143 § 1 of the CCP with an explicit reference to that provision, which precluded release on bail of a detainee accused of a grave or a particularly grave offence (see paragraphs 16 and 20 above). The Government’s assertion that the Court of Appeal, in reviewing one of those decisions, refused bail on a different ground appears to contradict the materials of the case. In particular, even though the Court of Appeal did not make an explicit reference to Article 143 § 1 of the CCP, it follows from the content and essence of that decision that it confirmed the findings reached by the Regional Court, including those concerning refusal of bail. Thus, the Court agrees with the applicant that his application for bail was refused on the grounds provided by Article 143 § 1 of the CCP and that he can claim to be a victim of an alleged violation of Article 5 § 3 on this ground. The Government’s objection as to incompatibility ratione personae must therefore be dismissed.
2. Conclusion
88. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. The alleged lack of reasons for the applicant’s continued detention
(a) The parties’ submissions
89. The Government argued that the domestic authorities had provided relevant and sufficient reasons for the applicant’s continued detention, such as the danger of his absconding, obstructing the proceedings and committing a new offence in view of his previous convictions.
90. The applicant submitted that the domestic courts had failed to provide reasons for his continued detention and their reasoning basically amounted to citation of the relevant legal provisions without making any assessment of his particular circumstances.
(b) The Court’s assessment
(i) General principles
91. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 58, ECHR 2003-IX (extracts); Becciev v. Moldova, no. 9190/03, § 53, 4 October 2005; and Khodorkovskiy v. Russia, no. 5829/04, § 182, 31 May 2011).
92. The domestic courts must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release (see Letellier v. France, 26 June 1991, § 35, Series A no. 207). Arguments for and against release must not be general and abstract (see Clooth v. Belgium, 12 December 1991, § 44, Series A no. 225).
93. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, § 153, ECHR 2000-IV).
94. The Convention case-law has developed four basic acceptable reasons for detaining a person before judgment when that person is suspected of having committed an offence: the risk that the accused would fail to appear for trial (see Stögmüller v. Austria, 10 November 1969, § 15, Series A no. 9); the risk that the accused, if released, would take action to prejudice the administration of justice (see Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7) or commit further offences (see Matznetter v. Austria, 10 November 1969, § 9, Series A no. 10) or cause public disorder (see Letellier, cited above, § 51).
95. The danger of an accused’s absconding cannot be gauged solely on the basis of the severity of the sentence risked. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial (see Yagci and Sargin v. Turkey, 8 June 1995, § 52, Series A no. 319-A). The risk of absconding has to be assessed in the light of the factors relating to the person’s character, his morals, home, occupation, assets, family ties and all kinds of links with the country in which he is prosecuted. The expectation of heavy sentence and the weight of evidence may be relevant but is not as such decisive and the possibility of obtaining guarantees may have to be used to offset any risk (see Neumeister v. Austria, 27 June 1968, § 10, Series A no. 8).
96. The danger of the accused’s hindering the proper conduct of the proceedings cannot be relied upon in abstracto, it has to be supported by factual evidence (see Trzaska v. Poland, no. 25792/94, § 65, 11 July 2000).
(ii) Application of the above principles in the present case
97. In the present case, the Court notes that the domestic courts, when ordering the applicant’s detention and its extension, relied on the risk of his absconding and obstructing the proceedings in view of the serious nature of the charge, and on several occasions on the fact that certain investigative measures were to be carried out and that the proceedings were still pending.
98. The Court observes at the outset that such grounds as the need to carry out further investigative measures or the fact that the proceedings have not yet been completed do not fall within any of the acceptable reasons for detaining a person pending trial under Article 5 § 3.
99. As to the risk of absconding or obstructing the proceedings, the Court notes that both the Regional Court and the Court of Appeal limited themselves to repeating these grounds in their decisions in an abstract and stereotyped way, without indicating any reasons as to why they considered to be well-founded the allegations that the applicant might abscond or obstruct the proceedings. Nor have they attempted to refute the arguments made by the applicant. A general reference to the serious nature of the offence with which the applicant had been charged, on which the courts relied on several occasions, cannot be considered as a sufficient justification of the alleged risks.
100. In the light of the above, the Court considers that the reasons relied on by the Lori Regional Court and the Criminal and Military Court of Appeal in their decisions concerning the applicant’s detention and its extension were not “relevant and sufficient”. Accordingly there has been a violation of Article 5 § 3 of the Convention on this count.
2. Impossibility of release on bail
(a) The parties’ submissions
101. The applicant submitted that the refusal to release him on bail on the ground provided by Article 143 § 1 of the CCP was in conflict with the guarantees of Article 5 § 3.
102. The Government did not comment on this point.
(b) The Court’s assessment
103. The Court reiterates that under Article 5 § 3 the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures to ensure his appearance at trial. Indeed, that Article lays down not only the right to “trial within a reasonable time or release pending trial” but also provides that “release may be conditioned by guarantees to appear for trial” (see Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000).
104. The Court further observes that it has previously found a violation of Article 5 § 3 in a number of cases in which an application for bail was refused automatically by virtue of the law (see Caballero v. the United Kingdom [GC], no. 32819/96, § 21, ECHR 2000-II, and S.B.C. v. the United Kingdom, no. 39360/98, §§ 23-24, 19 June 2001).
105. In the present case, the applicant’s requests to be released on bail were similarly dismissed on the ground that he was accused of an offence which under Article 19 of the CC qualified as a grave offence and that Article 143 § 1 of the CCP precluded release on bail in such cases. The Court considers that such automatic rejection of the applicant’s applications for bail, devoid of any judicial control of the particular circumstances of his detention, was incompatible with the guarantees of Article 5 § 3.
106. There has accordingly been a violation of Article 5 § 3 of the Convention on this count.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
107. The applicant complained that the detention hearing of 12 December 2006 was not adversarial and failed to ensure equality of arms. Furthermore, his arguments concerning the lack of a reasonable suspicion had not been adequately addressed. Lastly, the Court of Appeal refused to examine his appeal of 27 January 2007. He invoked Article 5 § 4 of the Convention, which, in so far as relevant, reads as follows:
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
A. Admissibility
1. Adversarial proceedings and equality of arms
108. The Government submitted that Article 5 § 4 was not applicable to the detention hearing of 12 December 2006 since it determined questions of extension of the applicant’s detention upon the investigator’s motion, whereas this Article was applicable only to proceedings initiated by the detainee. Therefore, the detention hearing in question fell within the ambit of Article 5 § 3 which did not require that proceedings in the first instance court be adversarial.
109. The applicant submitted that the Government’s argument regarding inapplicability of Article 5 § 4 to the proceedings in question was unacceptable. He argued that the guarantees of Article 5 § 3 and Article 5 § 4 were applicable concurrently. The fact that the hearing concerned extension of his detention was immaterial and what was important was the subject matter of his arguments at that hearing, namely that he was deprived of access to important documents. Thus, Article 5 § 4 was applicable.
110. The Court notes that the Government’s objection is closely linked to the substance of the applicant’s complaint and must therefore be joined to the merits.
2. Conclusion
111. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. Adversarial proceedings and equality of arms
(a) The parties’ submissions
(i) The Government
112. The Government submitted that Article 201 of the CCP allowed preliminary investigation materials to be made public only upon the permission of the investigating authority. Hence, before the hearing of 12 December 2006 the investigator, together with his motion seeking extension of detention, submitted certain documents to the Regional Court in support of his motion. At the same time the investigator did not find it appropriate to present all the files to the applicant and his lawyer, since according to the law the accused had the right to familiarise himself with the materials of the case only upon completion of the investigation. However, this did not raise an issue since the proceedings in question were covered by Article 5 § 3, as opposed to Article 5 § 4, and the requirement of an adversarial hearing did not apply.
(ii) The applicant
113. The applicant submitted that, before departing to the deliberation room, the judge received from the investigator the case file, which was not disclosed to the applicant. Only documents of a procedural nature, such as to institute criminal proceedings, the record of arrest and the charge, which had been attached to the investigator’s motion, were provided to him. The fact that the judge took the entire investigation file with him to the deliberation room meant that the judge relied on certain documents in that file without giving him the opportunity to challenge or oppose them. The decision of 12 December 2006 stated that it was based on materials confirming that the investigator’s motion was well-founded, materials which he could not comment on or challenge.
(b) The Court’s assessment
114. The Court will first address the question of applicability of Article 5 § 4 to the proceedings in question, namely the detention hearing of 12 December 2006 at which the Lori Regional Court decided to grant the investigator’s motion seeking to extend the applicant’s detention.
115. It notes that a similar objection to the one raised by the Government in the present case was examined and dismissed in the case of Lebedev v. Russia. In that case, the Court held that it was of little relevance whether the domestic court decided on an application for release lodged by the defence or a request for detention introduced by the prosecution (see Lebedev v. Russia, no. 4493/04, § 72, 25 October 2007). In reaching this conclusion the Court referred to a number of cases in which it had decided that the extension of the applicant’s detention on remand by a court at the request of the prosecution also attracted the guarantees of Article 5 § 4 (see Graužinis v. Lithuania, no. 37975/97, § 33, 10 October 2000; Wloch v. Poland, no. 27785/95, §§ 125 et seq., ECHR 2000-XI; and Telecki v Poland (dec.) no. 56552/00, 3 July 2003). The Court went on to conclude that Article 5 § 4 was applicable to the proceedings determining questions of extension of the applicant’s detention (see Lebedev, cited above, § 74). The Court therefore concludes that the guarantees of Article 5 § 4 are applicable to the detention hearing of 12 December 2006 and decides to dismiss the Government’s objection.
116. The Court reiterates that Article 5 § 4 requires that a court examining an appeal against detention provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person. Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client’s detention (see Lamy v. Belgium, 30 March 1989, § 29, Series A no. 151; Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999-II; and Garcia Alva v. Germany, no. 23541/94, § 39, 13 February 2001).
117. Turning to the circumstances of the present case, the Court notes that on 8 December 2006 the investigator filed a motion with the Lori Regional Court seeking to have the applicant’s detention extended. Attached to this motion were a number of documents of the criminal case, such as the decision to institute criminal proceedings, the applicant’s arrest record and the decision to bring charges, namely documents which had previously been presented to the applicant. This motion was examined at the hearing of 12 December 2006, at which both the applicant and his lawyer were present. However, before departing to the deliberation room to take his decision, the presiding judge requested from the investigator the entire criminal case file. The Government admitted that the applicant had not had access to all the materials of the case file.
118. It is not for the Court to speculate whether, in deciding on the extension of the applicant’s detention, the presiding judge based his decision also on documents which had not been made available to the applicant. The fact that the presiding judge, before taking his decision, requested the entire case file creates a strong presumption that this may indeed have been the case. In any event, the manner in which the judge examined the investigator’s motion is in itself sufficient to conclude that the applicant was deprived of an effective opportunity to challenge that motion and therefore there was a failure to ensure adversarial proceedings and equality of arms between the parties.
119. There has accordingly been a violation of Article 5 § 4 of the Convention on this count.
2. Scope and nature of judicial control
120. The Government submitted that the judicial control of the lawfulness of the applicant’s detention carried out upon the investigator’s motion of 8 December 2006 complied with the requirements of Article 5 § 4.
121. The applicant claimed that at the detention hearing of 12 December 2006 the judge had refused to address the question of existence of a “reasonable suspicion”. The judge justified this by saying that the court was not examining the applicant’s guilt. Such refusal narrowed the scope and nature of the judicial control to limits unacceptable under Article 5 § 4.
122. The Court notes that this complaint similarly concerns the detention hearing of 12 December 2006 and is closely linked to the one examined above (see paragraphs 114-119 above). In view of the findings reached above, the Court does not find it necessary to examine this complaint separately.
3. Non-examination of the appeal of 27 January 2007
(a) The parties’ submissions
123. The Government submitted that the Court of Appeal’s decision not to examine the applicant’s appeal of 27 January 2007 was in compliance with Article 5 § 4. This was justified by the fact that the investigation was over and the case fell outside the scope of judicial control over the pre-trial stage of the proceedings.
124. The applicant submitted that the failure to examine his appeal of 27 January 2007 violated the guarantees of Article 5 § 4. First, the Court of Appeal was not authorised under the domestic law and practice to leave his appeal unexamined. Furthermore, it was unacceptable to delay the examination of his appeal until 19 February 2007 and then to refuse to examine it on the ground that in the meantime the investigation had been completed.
(b) The Court’s assessment
125. The Court reiterates that, according to its case-law, Article 5 § 4 enshrines, as does Article 6 § 1, the right of access to a court, which can only be subject to reasonable limitations that do not impair its very essence (see Shishkov v. Bulgaria, no. 38822/97, § 82-90, ECHR 2003-I (extracts), and Bochev v. Bulgaria, no. 73481/01, § 70, 13 November 2008).
126. The Court notes that it has already examined a similar complaint in another case against Armenia, in which it held that denial of judicial review of the applicant’s detention on the sole ground that the criminal case was no longer considered to be in its pre-trial stage had been an unjustified restriction on his right to take proceedings under Article 5 § 4 and concluded that there had been a violation of that provision (see Poghosyan v. Armenia, no. 44068/07, §§ 78-81, 20 December 2011). The circumstances of the present case are almost identical (see paragraph 26 above). The Court therefore sees no reason to reach a different conclusion.
127. There has accordingly been a violation of Article 5 § 4 of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
128. Lastly, the applicant raised a number of other complaints under Article 5 §§ 1 and 4 and Article 6 §§ 1 and 2 of the Convention.
129. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
130. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
131. The applicant claimed a total of 11,761 euros (EUR) in respect of pecuniary damage. This included the cost of food parcels delivered by his family (EUR 5,900), travel expenses to the detention facility borne by his family (EUR 1,280) and loss of income during fourteen months of detention (EUR 4,581). In support of the latter claim the applicant submitted a certificate from a private company which stated that he had been employed by them as a stone quarrying worker with an average monthly salary of 152,000 Armenian drams and was released from work on 19 October 2006 as a result of his arrest. He further claimed EUR 30,000 in respect of non-pecuniary damage.
132. The Government claimed that the alleged expenses for food parcels were not necessary as the applicant was provided with food at the detention facility. Furthermore, the alleged food parcel and travel expenses did not concern any pecuniary loss incurred by him. Moreover, they were not duly documented. As regards the alleged lost income, there was no causal link between the applicant’s detention and loss of his work. Furthermore, the certificate submitted by the applicant could not be considered as proper evidence in support of his claim. Such evidence could be either an employment contract or the relevant extract from the applicant’s workbook.
133. The Court notes in respect of the alleged food and travel expenses that these do not concern any pecuniary loss incurred by the applicant and are expenses allegedly borne by his family members who were not applicants in the present case and cannot therefore be regarded as persons directly affected by the violations found (see Harutyunyan v. Armenia, no. 36549/03, § 71, ECHR 2007-III). As regards the applicant’s claim for lost income, the Court does not discern a causal link between the damage claimed and the violations found. It therefore rejects the applicant’s claim for pecuniary damage. At the same time, the Court considers that the applicant undoubtedly suffered non-pecuniary damage as a result of the violations found and decides to award him EUR 8,000 in respect of such damage.
B. Costs and expenses
134. The applicant also claimed EUR 3,030 for the costs and expenses incurred before the Court, including EUR 3,000 for legal costs and EUR 30 for postal expenses. In support of his claims he submitted a breakdown of the lawyers’ work and two postal receipts (20 March 2008 AMD 2,820 and 5 February 2008 AMD 5,650).
135. The Government submitted that the applicant had failed to produce any evidence that the legal costs had been actually incurred. This shows that his representatives had worked free of charge. As to the postal expenses, the applicant submitted only two postal receipts which did not reflect all the alleged expenses.
136. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant did not produce any documentary proof in support of his claim for lawyers’ fees. This claim must therefore be rejected. As to the postal expenses, regard being had to the documents in its possession, the Court considers it reasonable to award EUR 18.
C. Default interest
137. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning the applicant’s placement in a metal cage, the unlawfulness of his detention between 19 February and 12 March 2007, the lack of relevant and sufficient reasons for his continued detention, the impossibility of release on bail, the failure to ensure adversarial proceedings and equality of arms at the detention hearing of 12 December 2006, the failure to address adequately his arguments concerning the lack of a reasonable suspicion and the failure of the Court of Appeal to examine his appeal of 27 January 2007 admissible under Article 3 and Article 5 §§ 1, 3 and 4 of the Convention and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s placement in a metal cage during the court proceedings;
3. Holds that there has been a violation of Article 5 § 1 of the Convention in that the applicant’s detention between 19 February and 12 March 2007 lacked legal basis;
4. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the failure to provide relevant and sufficient reasons for the applicant’s continued detention;
5. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the automatic rejection of the applicant’s applications for bail;
6. Holds that there has been a violation of Article 5 § 4 of the Convention in that the proceedings in the Lori Regional Court of 12 December 2006 were not adversarial and failed to ensure equality of arms;
7. Holds that there is no need to examine the complaint under Article 5 § 4 of the Convention about the alleged failure to address adequately his arguments concerning the alleged lack of a reasonable suspicion;
8. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the refusal to examine the applicant’s appeal of 27 January 2007 against detention;
9. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 18 (eighteen euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
10. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 26 June 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
