CASE OF KIRAKOSYAN v. ARMENIA (No. 2)
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
5. The applicant was born in 1960 and lives in the village of Karakert, Armenia. 6. The applicant has been a member of an opposition political party, the National Democratic Union, since 1995. Since 1997 he has headed the party’s local offices in the Baghramyan area. 7. In March and April 2004 a series of protest rallies were organised in Yerevan by the opposition parties who voiced their criticism of the alleged irregularities which had taken place during the presidential election of February-March 2003 and challenged the legitimacy of the re-elected President. It appears that the applicant participated in these rallies. He alleged that the authorities retaliated by arresting, harassing and searching opposition supporters. 8. On 10 April 2004 at 5.10 p.m. the applicant was arrested and taken to a police station where an administrative case was initiated against him for disobeying the lawful orders of police officers. 9. On the same date the Armavir Regional Court sentenced the applicant to ten days’ administrative detention. 10. The running of the ten-day administrative sentence was to be calculated from 10 April 2004 at 5.10 p.m. The applicant was taken to a detention facility in the town of Ejmiatsin where he served his sentence. 11. On 20 April 2004 at an unspecified hour, the Armavir Regional Court examined and granted an investigator’s motion, which had apparently been lodged on the same date, seeking to have the applicant’s home searched. The judicial warrant stated: “The investigating authority has found it substantiated that on 27 March 2004 at around 12 noon the residents of the village of Myasnikyan of the Armavir Region [K.K. and B.K.] inflicted violence dangerous for health in the pasture located in the administrative area of Lernagogh village in the Armavir Region on representatives of the authorities performing their official duties, [namely] the head of Lernagogh village [S.M.] and head of staff of the Village Council [A.M.]. According to operative information, [B.K. and K.K.] had a weapon during the incident[. F]or the purpose of hiding the mentioned weapon, they gave it to the resident of Karakert village, member of the Union of Yezidis of the Baghramyan area, [the applicant], who may have hidden the mentioned weapon in one of his homes in Karakert village. On 27 March 2004 the Armavir Regional Prosecutor’s Office instituted criminal proceedings no. 65200604 ... concerning this fact. In view of the fact that the facts of the criminal case provide sufficient grounds to believe that an illegally possessed weapon and ammunition may be found in [the applicant’s] home situated in Karakert village in the Armavir Region, as well as other objects and valuables having significance for the criminal case, the court therefore finds that the motion is well-founded and must be granted.” 12. It was stated in the warrant that it could be contested within 15 days before the Criminal and Military Court of Appeal. 13. The applicant alleged that on that day, several hours before the expiry of his administrative sentence, he was taken from the Ejmiatsin detention facility to the Baghramyan Police Department. From there he was escorted home by at least ten police officers. 14. According to the search record, the search was conducted from 5.10 p.m. to 6.55 p.m. by seven police officers of the Baghramyan Police Department, E.M., B.M., M.G., A.Ge., S.M., G.E. and A.Ga. Two neighbours, G.G. and M.S., were asked by the head of the police team to participate in the search as attesting witnesses. The applicant was asked to surrender the illegal weapon allegedly hidden in his house. The applicant stated that he had no illegal objects at home. As a result of the search, a plastic bag containing a cannabis-like herb was found in the boiler situated in the hallway. The applicant stated that he did not know what it was and who it belonged to. It was mentioned at the end of the record that the applicant had refused to sign the record without providing any reasons. 15. According to the applicant and the statements of the two attesting witnesses which were appended to the application form, the search was conducted in the following manner. Upon his return home, accompanied by police officers, the applicant found his pregnant wife in a critical condition, apparently suffering a miscarriage, and his one-year-old son crying beside her. On seeing him, the applicant’s wife fainted. A doctor was called and a number of female neighbours came to help. At that point the head of the police team informed the applicant that his house was to be searched, briefly showing him the relevant search warrant. The applicant alleged that attesting witnesses G.G. and M.S. were asked to participate only after the search had already begun. It appears that G.G. was a war veteran who had suffered concussion and was seriously disabled, while M.S. was seventyfour years old. The search was conducted by more than ten police officers who also used two specially trained dogs. Having searched the house and not found anything, the police officers started searching the yard and the adjacent buildings. The applicant alleged that during the search of the outside premises, the front door of his house was left open and people, including police officers, were coming and going. Moreover, a group of police officers was standing by the front door while the others continued the search. Having found nothing outside the house, the head of the police team announced that they would again search inside the house, to which attesting witness G.G. objected. Following the additional search the police officers found the above-mentioned plastic bag. The attesting witnesses submitted that their objections were not recorded. Moreover, they were persuaded and bullied by the police officers to sign the search record. 16. The applicant alleged that he was taken back to the police station where the chief of police promised that, if he renounced his political convictions and resigned from the party, no further action would be taken in relation to the cannabis. The applicant refused to make such a deal. 17. The applicant further alleged that he was kept at the police station overnight. There he was given a meal, including a hamburger. About 15 to 20 minutes after having eaten the meal he felt sick, started vomiting and lost consciousness. An ambulance was called and some injections were administered. According to the applicant, his meal had been laced with a drug. 18. On 21 April 2004 criminal proceedings were instituted against the applicant under Article 268 § 2 of the Criminal Code on account of illegal drug possession. On the same date at 11.18 p.m. the applicant was formally arrested. 19. On the same date the investigator decided to subject the applicant to a forensic toxicological examination. The applicant alleged that he did not receive a copy of this decision. He was taken to the Republican Centre for Narcotics where a urine sample was taken. 20. It appears that on the same date, a lawyer was engaged in the case. It further appears that the applicant was questioned and denied the drug possession allegations. 21. On an unspecified date the plastic bag and the herbal substance, weighing approximately 59 grams, were examined by a forensic expert and the substance was found to be cannabis. 22. On 23 April 2004 the applicant was formally charged with illegal drug possession and detained by a court order. 23. On the same date, a toxicological expert opinion was produced, according to which the applicant’s urine sample contained traces indicating cannabis consumption. 24. On the same date the lawyer filed a motion with the Armavir Regional Prosecutor seeking to stop the prosecution on the ground that, inter alia, the search had been conducted with numerous procedural violations. A similar complaint was lodged on 27 April 2004. 25. According to the applicant, on an unspecified date his lawyer requested a further examination of the cannabis and the plastic bag by a forensic expert. This request was rejected. He further alleged that, during the investigation, the police officers put pressure on the two attesting witnesses not to attend confrontations which had apparently been requested by the applicant. 26. On 7 May 2004 the applicant’s lawyer applied to the Armavir Regional Prosecutor, challenging the investigator’s impartiality and complaining in detail about the unlawful manner in which the search had been executed, alleging, inter alia, that the bag containing cannabis had been planted by the police officers conducting the search. 27. On 9 June 2004 the applicant’s lawyer complained to the Armavir Regional Prosecutor that the search warrant had lacked proper grounds and that the search had been conducted with numerous procedural violations. The lawyer argued that the investigator had failed to obtain any evidence when investigating his allegations of irregularities. Such evidence could have been obtained by questioning the applicant’s neighbours and the doctor who had provided first aid to his wife, who had been present during the search, and by holding confrontations between the applicant and the attesting witnesses. 28. On an unspecified date the applicant’s criminal case was brought before the Armavir Regional Court. 29. It appears that, in the proceedings before the Regional Court, the applicant’s lawyer filed a motion seeking to exclude the results of the search as unlawfully obtained evidence. It further appears that the Regional Court did not take any decision on this motion. 30. Attesting witnesses M.S. and G.G. both testified before the trial court. In reply to the questions put by the applicant’s lawyer M.S. stated, inter alia, that he and G.G. were watching the police officers as much as they could while entering and going out of the rooms together with the police officers. When giving his account of the events G.G. stated among other things that he helped one of the police officers to reach the water boiler from which a plastic bag and a plate were taken out. He further stated that both the plastic bag and the plate were covered with dust. However, the plate was dustier compared to the plastic bag. Both M.S. and G.G. stated that they did not remember whether they were informed of their right to have the objections that they might have included in the search record and that the applicant refused to sign it stating that the discovered bag did not belong to him. 31. On 22 June 2004 the Armavir Regional Court found the applicant guilty as charged and sentenced him to one and a half years’ imprisonment. In doing so, the Regional Court relied on, inter alia, the witness testimony of the police officers who had conducted the search, including E.M., A.Gh., M.G., M.M., L.F. and A.Ga., and of the two attesting witnesses, as well as the results of the analysis of the applicant’s urine sample. 32. On 29 June 2004 the applicant’s lawyer lodged an appeal. The lawyer argued, inter alia, that the search of the applicant’s home had been conducted with a number of procedural violations and therefore its results could not be used as evidence. In particular, he claimed that the search warrant was not presented to the applicant to get acquainted with it, no signature was obtained from him in this respect and that his objections were not included into the record of the search. He further argued that the search had been authorised by the court on the basis of fabricated police materials and therefore lacked any valid grounds. He also submitted that, according to the Code of Criminal Procedure, the Regional Court should not have relied on the testimony of the police officers, since they had been summoned and examined solely in connection with the performance of their procedural duties and not in connection with the irregularities alleged by the applicant. Furthermore, the Regional Court had failed to take into account the submissions of the attesting witnesses which confirmed the applicant’s allegations of irregularities. 33. On 10 August 2004 the Criminal and Military Court of Appeal upheld the applicant’s conviction finding, inter alia, that no significant procedural violations had taken place during the investigation of the case. The Court of Appeal relied on the same evidence, except for the testimony of the police officers. 34. No appeal was lodged against this judgment within the ten-day statutory time-limit, so it became final. 35. On 6 September 2004 the applicant was released on parole. 36. On 15 November 2004 an advocate holding a special licence lodged an appeal on points of law on behalf of the applicant against the final judgment of the Court of Appeal. He requested that the judgment of the Court of Appeal be quashed and the case be remitted for further investigation due to the procedural violations taken place during the investigation, including the execution of the search. 37. On 10 December 2004 the Court of Cassation examined the appeal on the merits and decided to dismiss it finding that, inter alia, no significant violations of the procedural law had taken place which required the case being remitted for further investigation.