CASE OF MINASYAN v. ARMENIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The applicant was born in 1974 and lives in Yerevan. 6. On 18 December 2007 criminal proceedings were instituted on account of a fight with use of firearms between two groups of people, which had taken place that day. As a result of the fight, one person died and two others were wounded. The applicant went into hiding after having participated in the fight and a search for him was declared. 7. On 22 December 2007 the applicant turned himself in to the police. He surrendered his two guns and stated that he had used them during the fight in defence against an assault by unknown persons. He was arrested and taken into custody. 8. On 25 December 2007 the applicant was charged with aggravated murder, under Article 104 § 2 (6) of the Criminal Code (CC), aggravated infliction of serious injuries, under Article 112 § 2 of the CC, and illegal possession of firearms, under Article 235 § 1 of the CC. 9. On the same day the investigator applied to the Kotayk Regional Court seeking to have the applicant detained for two months. The application stated that on 18 December 2007 the applicant, in a manner dangerous to the life of many, had opened fire from illegally-possessed guns on individuals G.S., R.V. and V.H., as a result of which he had unlawfully and intentionally deprived G.S. of his life and inflicted serious injuries on R.V. and V.H. The application further stated that the applicant had to be detained, inter alia, because he had committed a serious crime. 10. On the same day the Kotayk Regional Court decided to grant the motion and detain the applicant for two months, from 22 December 2007 until 22 February 2008. The court found that the applicant might abscond, obstruct the examination of the case, avoid criminal liability and serving the imposed sentence as well as hinder the execution of the judgment. In so finding, the court took into account the nature and gravity of the imputed offence and the fact that the applicant had committed a serious crime. 11. On 9 January 2008 the applicant lodged an appeal, claiming that his detention was not based on a reasonable suspicion that he had committed an offence and that the Regional Court had not adduced sufficient reasons when finding that his detention was justified. He also alleged that the principle of the presumption of innocence had been breached since the Regional Court had stated in the affirmative that he had committed a grave crime. 12. On 29 January 2008 the Criminal Court of Appeal upheld the decision of the Regional Court. The Court of Appeal found that there was sufficient evidence to raise a reasonable suspicion that the applicant had committed an offence. In this regard, it referred to the applicant’s statements to the investigative bodies and the results of G.S.’s autopsy, according to which he had died from a bullet wound. As to the reasons for detention, the Court of Appeal found that the applicant might obstruct the examination of the case. In so’s statement had to be taken solely as meaning that the offence was imputed. 13. On 25 April 2008 the applicant lodged an appeal on points of law. 14. On 19 May 2008 the Court of Cassation left the appeal unexamined on the ground that it had been lodged outside the prescribed one-month time-limit. 15. On 18 February, 18 April, 16 May 2008 and 17 June 2008 the Kentron and Nork-Marash District Court of Yerevan, on the basis of corresponding motions lodged by the investigator, extended the applicant’s detention, ultimately until 22 July 2008, on the ground that, taking into account the hostility between the applicant and the victim’s friends and relatives which had resulted in the burning of the applicant’s property, the applicant might commit a crime. It further found that, taking into account the nature and gravity of the imputed offence the applicant, if at large, might commit a new crime, abscond, obstruct the examination of the case and avoid criminal liability. 16. The applicant appealed against the decisions of the District Court claiming, inter alia, that the court had provided no relevant and sufficient reasons justifying his detention. 17. On 7 March, 7 May, 6 June and 4 July 2008 the Criminal Court of Appeal upheld the respective decisions of the District Court. It held that the applicant’s continued detention on remand was justified, taking into account the applicant’s personality and the nature and gravity of the imputed offence, punishable by a maximum of life imprisonment, which increased the likelihood of his absconding. 18. The applicant appealed on points of law against the respective decisions of the Court of Appeal. 19. On 19 May 2008 the Court of Cassation decided to leave the applicant’s first appeal unexamined on the ground that it had been lodged outside the prescribed one-month time-limit. On 2 July, 4 August and 5 September 2008 the Court of Cassation declared the applicant’s other appeals inadmissible for lack of merit. 20. On 4 July 2008 the investigator decided to drop some charges against the applicant and modify others. In particular, the charge of illegal arms possession (Article 235 § 1 of the CC) was dropped, while the charges under Article 104 § 2 (6) and Article 112 § 2 (1) were modified and replaced with a charge for two counts of aggravated attempted murder (Article 104 § 2 (1) and (6) in conjunction with Article 34) and a charge for two counts of aggravated hooliganism (Article 258 §§ 3 (1) and (4) respectively). 21. On 11 July 2008 the investigator applied to have the applicant’s detention extended by two more months. 22. On 17 July 2008 the District Court, having examined the materials of the criminal case, decided to grant partially the request and to extend the applicant’s detention for one month, until 22 August 2008, on the same grounds as those invoked in its previous decisions. As a reason for considering that the applicant might avoid responsibility, the court referred to the fact that the applicant had gone into hiding after committing the crime and thus obstructed the examination of the case. 23. On 1 August 2008, upon the applicant’s appeal, the Court of Appeal upheld the decision of the District Court finding that the applicant, if he remained at large, might abscond, obstruct the proceedings or, given the continuing hostility between the two sides, might commit new crimes. 24. On 12 August 2008 the investigator decided to drop or modify the charges against the applicant. In particular, the charge of aggravated hooliganism under Article 258 § 3 (1) was dropped and new charges under Article 104 § 2 (1) and (6) in conjunction with Article 34 of the CC and Article 258 § 4 of the CC were brought. 25. Meanwhile, on 12 August 2008 the investigator applied to have the applicant’s detention extended for two months. 26. On 15 August 2008 the District Court of Yerevan granted the investigator’s request partially and extended the applicant’s detention for one month, until 22 September 2008. 27. On 16 September 2008 the investigator applied again to have the applicant’s detention extended for 15 days. 28. On 17 September 2008 District Court granted the request and extended the applicant’ 29. On 22 September 2008 the applicant lodged an appeal. 30. It appears that, in the meantime, the investigation was completed and, on 1 October 2008, the applicant’s case was referred to the Northern Criminal Court for trial. 31. On 7 October 2008 the Criminal Court of Appeal decided to leave the appeal of 22 September 2008 unexamined on the ground that the scope of judicial control over pre-trial proceedings was limited to the investigation stage. Since the investigation had been completed and the case had been referred to a court, it was now up to that court to examine questions of lawfulness and validity of detention. 32. On 7 November 2008 the applicant lodged an appeal on points of law against the Court of Appeal’s decision of 7 October 2008. However, in finalising his appeal, the applicant requested that his detention be cancelled. 33. On 21 November 2008 the Court of Cassation decided to leave the applicant’s appeal unexamined on the ground that it had been directed against the decision of the District Court of 17 September 2008, which was not subject to an appeal on points of law. In this respect, it referred to the fact that the request contained in the applicant’s appeal on points of law was to cancel his detention as ordered by the decision of the District Court of 17 September 2008. 34. In the meantime, on 15 October 2008 the judge of the Northern Criminal Court decided to take over the examination of the case. In the same decision, the judge imposed detention on the applicant, as a preventive measure. 35. On 27 October 2008 the applicant lodged an appeal against this decision. 36. On 23 December 2008 the Court of Appeal dismissed the applicant’s appeal, finding that his detention was justified because, taking into account the gravity and nature of the imputed offence, there was a high risk that he might abscond or obstruct the examination. 37. On 10 April 2009 the Court of Cassation dismissed the applicant’s appeal on points of law. 38. On an unspecified date the criminal case, in accordance with procedural amendments introduced in the meantime, was transferred to the Kotayk Regional Court for examination. It appears that, during the examination of the case, the prosecutor decided to modify the charges against the applicant by replacing them with a charge of attempted murder in excess of the boundaries of necessary defence (Article 108 in conjunction with Article 34 of the CC) and a charge of aggravated hooliganism (Article 258 § 3 (1) of the CC). 39. On 8 May 2009 the Kotayk Regional Court found the applicant guilty under Article 108 in conjunction with Article 34 and Article 258 § 3 (1) and sentenced him to a total of three years’ imprisonment.