CASE OF ASATRYAN v. ARMENIA
Violation of Art. 5-1-c;Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Non-pecuniary damage - award
Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
4. The applicant was born in 1960 and lives in Yerevan. 5. On 23 September 2005, at 5.50 p.m., the applicant was taken into custody on suspicion of attempted murder. 6. On 26 September 2005 formal charges were brought against the applicant. 7. On the same date the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան) granted the investigator’s relevant motion and ordered the applicant’s detention on remand for a period of two months, to be calculated from 23 September 2005. 8. On 14 November 2005 the investigator filed a motion with the District Court, seeking to have the applicant’s detention on remand prolonged for another two months. 9. On 22 November 2005 the District Court examined and dismissed this motion. This decision was subject to appeal. 10. On 23 November 2005 at around 11 a.m. a copy of this decision was presented by the applicant’s lawyer to the Chief of the Yerevan-Kentron Detention Facility («Երևան-Կենտրոն» քրեակատարողական հիմնարկի պետ) where the applicant was held. 11. On the same date the prosecutor lodged an appeal against the above decision. 12. Later that day at 5.30 p.m. the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան) commenced the examination of the prosecutor’s appeal. The applicant was escorted to the hearing by four national security officers in an official car. 13. At 5.45 p.m. the applicant’s lawyer arrived and requested a ten-minute recess to be able to consult with the applicant. The Government alleged that the lawyer was deliberately late for the hearing, while the applicant claimed that her lawyer was informed by telephone about this hearing only at 5.30 p.m. 14. At 5.50 p.m. the applicant’s detention period authorised by the decision of 26 September 2005 expired. 15. Following the recess, the lawyer challenged the impartiality of the bench. He first alleged that the court had not given the applicant sufficient time to prepare her defence and also failed to ensure equality of arms. Furthermore, there were four national security officers in the court building who prevented the applicant, who was formally already at liberty, from going out of the building. Thus, the fact that such things were happening in the building of the Court of Appeal suggested that the outcome of the proceedings was already pre-determined. 16. The court departed to the deliberation room to examine this challenge, after which it returned and announced its decision dismissing it. 17. Thereafter another twenty-minute recess was announced by the court for the defence to be able to familiarise itself with the prosecutor’s appeal and the materials of the case. During the recess an ambulance was called because the applicant felt unwell. Her blood pressure rose to 180/100 but no injections could be administered as she was allergic, so the doctor recommended adjourning the hearing. 18. The hearing resumed at 8.03 p.m. The applicant’s lawyer requested the adjournment of the hearing in view of the deterioration of the applicant’s health and in order for him to be able to familiarise himself with the prosecutor’s appeal in adequate conditions. The court granted this request and adjourned the hearing until 1 p.m. on 24 November 2005. 19. The court hearing was over at around 8.30 p.m. 20. The applicant alleged and the Government did not dispute that during the entire court hearing she was monitored by four national security officers and was not allowed to move freely, to leave the courtroom during the breaks or to go home. After the court hearing was over, she was forcibly taken by these officers and pushed into the same car and taken back to the Yerevan-Kentron Detention Facility. This was done after one of the officers had a private consultation and received instructions from the presiding judge in the deliberation room. 21. On 24 November 2005 at 1 p.m. the Court of Appeal resumed the examination of the prosecutor’s appeal. The applicant was not present at this hearing. 22. The applicant’s lawyers again challenged the impartiality of the bench, alleging that the court had manifested a biased attitude. In particular, the court summoned a hearing on the prosecutor’s appeal immediately before the expiry of the applicant’s detention period. Furthermore, the court did not release the applicant despite the fact that her detention had not been prolonged. Finally, after the hearing was over, the presiding judge departed to the deliberation room where he had a consultation with a national security officer, as a result of which it was decided to keep the applicant in detention. Thereafter she was transported to a national security isolation cell. The lawyers claimed that all the above suggested that the Court of Appeal was not impartial. 23. The court examined and dismissed this challenge. 24. Thereafter, one of the applicant’s lawyers made a declaration stating that, following the court hearing of 23 November 2005, the applicant had been taken away by national security officers in an unknown direction, despite the fact that she was already free by virtue of the law. The lawyers refused to participate in the hearing in such circumstances and left the courtroom. 25. The Court of Appeal examined the prosecutor’s appeal in their absence and decided to quash the decision of the District Court of 22 November 2005 and to prolong the applicant’s detention on remand for another two months. 26. On 28 November 2005 one of the applicant’s lawyers addressed a letter to the Chief of the Yerevan-Kentron Detention Facility, complaining: “... You ..., as the chief of administration of the detention facility where [the applicant] is kept, at 5.45 p.m. on 23 November 2005 not only did not release her, but had her escorted to court by four officers in an official car having State licence no. 150 SS 02, during the entire [court hearing] you monitored her actions until 8.30 p.m. on [that date], forbidding her to move freely, and at around 8.30-8.45, with the assistance of the same officers, you forcibly (holding her arms, pushing her) placed her in the above car and transported her to the Yerevan-Kentron Detention Facility where you received her, according to the information at our disposal, without a relevant court decision. In that period (between 9 p.m. and 11 p.m.) the defence called you on numerous occasions and you stated that you would keep [the applicant] until the court hearing scheduled for 1 p.m. on the next day was over...” 27. On 5 December 2005 the applicant’s lawyers lodged an appeal on points of law against the Court of Appeal’s decision. In their appeal, they again complained about the fact that the applicant had not been released from custody on 23 November 2005. 28. On 8 December 2005 the applicant’s lawyers made a similar declaration addressed to the Prosecutor General. 29. By a letter of 9 December 2005 the Court of Cassation (ՀՀ վճռաբեկ դատարան) returned the appeal since it was no longer competent to examine it following the constitutional amendments. 30. The relevant provisions of the CCP read as follows: “5. The court, the body of inquest, the investigator and the prosecutor are obliged immediately to release any person illegally deprived of his liberty. The chief of administration of a detention facility does not have the right to receive a person for purposes of detention without a relevant court decision and is obliged immediately to release any person whose period of detention has expired.” “2. Detention ... shall 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...” “5. The court’s decision to choose detention as a preventive measure can be contested before a higher court.” “1. The accused’s detention period shall be calculated from the moment of him being actually taken into custody at the time of the arrest... ... 3. In the pre-trial proceedings of a criminal case the detention period cannot exceed two months, except for cases prescribed by this Code... 4. In the pre-trial proceedings of a criminal case the accused’s detention period can be prolonged by a court for up to one year in view of the particular complexity of the case.” “1. If it is necessary to prolong the accused’s detention period, the investigator or the prosecutor must submit a well-grounded motion to the court not later than ten days before the expiry of the detention period. The court, if it agrees on the necessity of prolonging the detention period, shall adopt an appropriate decision not later than five days before the expiry of the detention period. ... 3. When deciding on the prolongation of the accused’s detention period, the court shall prolong the detention period within the limits prescribed by this Code, on each occasion for a period not exceeding two months.” “The administration of a detention facility is obliged: ... (10) immediately to release a person kept in detention without an appropriate court decision or whose detention period imposed by a court decision has expired.” “1. The accused must be released from detention upon the decision of the relevant authority dealing with the criminal case, if: ... (4) when deciding on the question of detention, the detention period set by the court has expired and has not been prolonged... ... 3. ... In cases envisaged under [sub-paragraph 4] of paragraph 1 of this Article ... the chief of administration of the detention facility shall immediately release the detainee.” “2. A court decision imposing a preventive measure can be contested before the court of appeal.” 31. The relevant provisions of the Law read as follows: “An arrested or detained person is entitled to ... lodge applications and complaints, both himself and through his lawyer or lawful representative, with ... the courts...” “...[C]omplaints ... addressed to ... a judge ... shall be sent to [him] in a sealed envelope within one day.”