CASE OF PIRUZYAN AGAINST ARMENIA
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Release pending trial);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
5. The applicant was born in 1978 and lives in Yerevan. 6. The applicant alleged that at 9.20 a.m. on 18 October 2006 he had been taken to the local police station in the town of Alaverdi in connection with an armed assault that had taken place earlier that day. He further alleged that his arrest had not been recorded and that he had been released several hours later. 7. On 19 October 2006 criminal proceedings were instituted against 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., at 8.45 p.m. on 18 October 2006 the applicant, who had been wearing a mask, had attacked him on the ground floor of their building, hit him on the head with a metal rod and grabbed his briefcase, which had been full of expensive jewellery. 8. At 8 p.m. on the same day the applicant was formally arrested on suspicion of having committed the above-mentioned offence. The arrest report was signed by the applicant. 9. On 22 October 2006 the applicant was formally charged with robbery under the above-mentioned Article. The charge sheet specified that following the incident the victim had pursued the applicant, who had been forced to drop the briefcase and flee. It was signed by the applicant. 10. On the same date the investigator applied to the Lori Regional Court to have the applicant detained for a period of two months on the grounds that he had previous convictions, the offence belonged to the category of serious crimes and that, if at large, he would abscond. 11. On the same date the Regional Court examined and granted the investigator’s application, finding that the case materials provided sufficient grounds for believing that the applicant might abscond and obstruct the investigation, having regard to the nature and degree of dangerousness of the offence in question. 12. On 8 December 2006 the investigator sought to have the applicant’s detention extended by a further two months. The application stated that a number of examinations had been carried out during the investigation, including chemical and biological examinations and an examination of the traces left by the crime. However, an additional biological examination had to be carried out and the charge amended. The investigator argued that the applicant, if released, would abscond since he had committed a serious crime and might commit further offences as he had previous convictions. He had not admitted his guilt and would therefore obstruct the investigation. The investigator submitted, in support of his application, a number of case materials, such as the decision to institute criminal proceedings, the arrest report and the decision to bring charges. 13. On 12 December 2006 the Regional Court examined the investigator’s application. The applicant was present at that hearing and was seated next to his lawyer. 14. The applicant objected to the investigator’s application and asked 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 that regard that it was not examining the case on the merits, including the question of the applicant’s guilt, but was examining the validity of the application for an extension of the applicant’s detention. There was a difference between the issue of guilt and that of the existence of a reasonable suspicion. 15. The applicant further submitted that there was no concrete evidence justifying his detention. In response to a request by the applicant to produce evidence, the investigator admitted that no such evidence was available. He submitted that a number of examinations had been ordered and that 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 case. Shortly afterwards, the judge withdrew to the deliberation room. 16. The Regional Court, having examined the investigator’s application and the materials confirming that it was well-founded, decided to grant the application in part and to extend the applicant’s detention by one month – 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. Referring to Article 143 § 1 of the Code of Criminal Procedure (CCP), the court further decided to refuse the applicant’s request for bail, on the ground that he was accused of a serious 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 application, such as the decision to institute criminal proceedings, the arrest report and the decision to bring charges, were not sufficient to found a reasonable suspicion. Moreover, the Regional Court had refused, in general terms, to address the issue of the existence of a reasonable suspicion. The applicant further contested the allegation that he might commit further 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 at the hearing to examine any evidence on which to found a reasonable suspicion, had received the entire case file from the investigator before withdrawing to the deliberation room. The applicant had neither had access to any of those materials nor 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. It stated that the investigating authority had submitted certain evidence substantiating the applicant’s guilt which confirmed his involvement in the event. Thus, there was a 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, having regard to the dangerousness and nature of the alleged offence and the fact that he might abscond and obstruct the investigation. It dismissed his application for bail on the same grounds. It considered that the decision of the Regional Court to extend detention and refuse bail was well-founded and reasoned and that there were no grounds to amend that decision. 19. On 9 January 2007 the investigator lodged an application seeking to have the applicant’s detention extended by one month on the same grounds as before. 20. On 12 January 2007 the Regional Court examined the investigator’s application. The applicant was present at that hearing and was seated next to his lawyer. He objected to the investigator’s application and asked the court to release him on bail. The Regional Court decided to grant the application and to extend the applicant’s detention by one month – 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 before. 21. On 27 January 2007 the applicant lodged an appeal. 22. On 8 February 2007 the charges against the applicant were amended. In addition to the original charge the applicant was also accused of recidivism and attempted murder. 23. On 16 February 2007 the investigation was completed and the applicant was granted access to the materials in 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 lodged an application with the Regional Court claiming that his detention had been unlawful since 19 February 2007 and requesting his release. A similar application was made to 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 the request, referring 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 application of 5 March 2007 on the same grounds. 30. On the same date the Regional Court decided to set the applicant’s criminal case down for trial. The 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 requested 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 had amounted to inhuman and degrading treatment and also violated the principle of equality of arms and the presumption of innocence, despite which the presiding judge had failed to take any measures to eliminate those encroachments on his rights. It appears that this challenge was dismissed as unfounded. 34. The applicant alleged that following the dismissal of that challenge he had again requested to be released from the cage, but the court had refused his request on the ground that it had no other means of ensuring security in the courtroom. The Government alleged that no further steps had been taken by the applicant in that 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 twenty-five minutes and seven hours. It appears that the case attracted public attention in the town of Alaverdi and that 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 asked the Regional Court to revoke his detention order or otherwise 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 and he could not obstruct the proceedings. The prosecutor objected to the request, stating that the applicant could not be released on bail because he was accused of a serious crime. The Regional Court decided to dismiss the applicant’s request on the ground that the examination of the case was not yet over and there were insufficient grounds to revoke his detention or 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 sought an order from the Regional Court terminating 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 that application and to terminate the criminal proceedings against the applicant under Article 35 § 4 of the CCP. 41. On the same date the applicant was released from detention. 42. Under Article 19, offences, according to their nature and the degree of danger posed to society, are divided into offences of minor seriousness, medium seriousness, serious offences and particularly serious offences. Premeditated acts punishable by a maximum of five years’ imprisonment fall into the category of offences of medium seriousness, while those punishable by a maximum of ten years’ imprisonment are considered serious offences. 43. Under Article 175 § 2 (2) and (4), robbery, that is, assault for the purpose of stealing another’s property accompanied with violence or the threat of violence endangering life or health, if committed for the purpose of stealing a large amount of property and with the use of a weapon or other articles used as a weapon, is punishable by imprisonment of between six and ten years. 44. Under Article 6 § 10, a final decision is any decision taken by the authority dealing with the case which precludes the institution or continuation of proceedings or resolves a case on the merits. 45. Under Article 65 § 2 (20), the accused is entitled to lodge appeals against the actions and decisions of the inquiry officer, the investigator, the prosecutor and the court, including the verdict and any other final judicial decision. 46. Under Article 384, as in force at the material time, appeals could be lodged only against final decisions of the first-instance court. 47. Under 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. Article 135 provides that 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, concealing or falsifying materials significant for the case, failing to appear following a summons by the authority dealing with the case without valid reason, or by other means; (3) commit an act prohibited by criminal law; (4) avoid criminal liability and serving the imposed sentence; or (5) hinder the execution of the judgment. Detention and bail can be imposed on the accused only if the severest punishment prescribed for the alleged 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 must be taken into account: (1) the nature and degree of danger of the alleged offence; (2) the personality of the suspect or the accused; (3) his or her age and state of health; (4) his or her sex; (5) his or her occupation; (6) his or her family status and dependants, if any; (7) his or her property situation; (8) whether the suspect has a permanent residence; and (9) other important circumstances. 49. Article 136 § 2 provides that detention and bail can be imposed only by a court decision on an application by the investigator or the prosecutor or of the court’s own motion during its examination of the criminal case. The court can replace detention with bail, also on an application by the defence. 50. Under 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 the Code. During the pre-trial proceedings of the criminal case the detention period is suspended on the date when the prosecutor transmits the criminal case to the court or when detention is revoked as a preventive measure. 51. Article 143 § 1 provides that “bail” is the money, shares or other property 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 seriousness. 52. Pursuant to Article 285 § 1, an application by the prosecutor or the investigator to have detention imposed or extended must indicate the reasons and grounds necessitating the suspect’s detention. Materials substantiating the application must be attached to it. 53. Under Article 65 § 2(16), the accused has the right to familiarise him or herself with all the materials of the case upon the completion of the investigation. 54. Under Article 73 § 1(12), defence counsel is entitled to familiarise him or herself with all the materials of the case, to make copies of and take notes on any information contained in the case and in any volume, after the completion of the investigation. 55. Pursuant to Article 201, materials of the investigation can be made public only with the permission of the authority dealing with the case. 56. Pursuant to Article 265, the investigator, on determining that the materials gathered are sufficient to draw up the bill of indictment, informs the accused accordingly and decides where and when he or she can familiarise him or herself with the materials of the case. 57. Pursuant to Article 35 § 4, where the prosecutor discovers, in court, circumstances that rule out a criminal prosecution, he or she must 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 stop the criminal prosecution.