CASE OF AGANIKYAN v. ARMENIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
Aleš Pejchal;Armen Harutyunyan
4. The applicant was born in 1953 and lives in Yerevan. 5. On 30 December 2004 an investigator decided to institute criminal proceedings in connection with alleged usury by the applicant, proscribed by Article 213 § 1 of the Criminal Code (“the CC”). 6. On 10 January 2005 the Kentron and Nork-Marash District Court of Yerevan ordered a search of the applicant’s apartment. 7. On 20 June 2005 the applicant was formally charged under Article 213 § 2 (1) and (2) of the CC with performing usury as a profession which resulted in dire financial consequences for the injured parties. On the same day the investigator decided, as a preventive measure, to have the applicant give a written undertaking not to leave his place of residence. 8. On 23 June 2005 the investigator decided to confiscate for security the applicant’s property. 9. On 10 August 2005 the investigator sent the bill of indictment to the Kentron and Nork-Marash district prosecutor (“the prosecutor”) for approval but on 15 August 2005 the prosecutor refused to approve it and returned the case to the investigator for further investigation. 10. On 15 October 2005 the investigator initiated another set of criminal proceedings, under Article 178 § 2 (2) of the CC, concerning the acquisition of property rights through fraud by the applicant. On the same day this case was merged with the case on usury. 11. On 8 and 29 December 2005 respectively the investigator ordered forensic handwriting examinations to be conducted. The results of these examinations were received on 13 and 20 January 2006 respectively. 12. On 7 March 2006 the investigator decided to amend the applicant’s charges and to bring new charges against him under Article 178 §§ 2 (2) and 3 (1), Article 182 § 3 (2), Article 213 § 2 (1) and (2), and Article 349 § 1 of the CC on account of fraud in large and particularly large amounts, extortion in particularly large amounts, usury performed as a profession which resulted in dire financial consequences for the injured parties, and forgery of evidence. 13. On the same date the investigator lodged an application with the Kentron and Nork-Marash District Court of Yerevan, seeking to have the applicant detained for a period of two months, which was rejected by the District Court. However, upon an appeal by the prosecutor, on 28 March 2006 the Court of Appeal overturned the District Court’s decision and ordered the applicant’s detention for a period of two months. 14. On 29 and 30 March and 13 April 2006 the investigator lodged applications with the District Court for a search warrant and to confiscate information covered by bank secrecy. These applications were granted on 29 and 31 March and 13 April 2006. 15. On 14 July 2006 the supervising prosecutor approved the bill of indictment and the case was sent to the District Court, which took it over on 24 July 2006. 16. By the District Court’s decision of 18 August 2006 the case was set for trial. Between 25 August 2006 and 11 October 2007, the court held twelve hearings which were adjourned because of the absence of victims and/or witnesses. In addition, on ten occasions the hearings were adjourned because of applications by the prosecutor or on the court’s own motion, and on nine occasions because the applicant’s applications were granted. On three occasions the court decided to have the absent witnesses and/or victims brought by force to the hearing. 17. On 9 July 2007 the District Court granted an application by the applicant’s counsel to have him released on bail. 18. On 15 October 2007 the powers of the judge in charge of the applicant’s case were suspended. On 1 November 2007 another judge took over the case and the examination of the case started anew. 19. Between 21 November 2007 and 23 December 2010, the court held forty hearings which were adjourned because of the absence of the applicant or his lawyer or because of applications lodged by them. In addition, on thirty-five occasions the hearings were adjourned because of the absence of the victims or witnesses or because of applications lodged by them, and on thirty-two occasions because the prosecutor’s applications had been granted or because the court had decided to adjourn the case of its own motion. On five occasions the court decided to have the absent witnesses and victims brought by force to the hearing. 20. On 28 August 2009 and 12 October 2010 respectively the prosecutor decided to amend the charges and/or to bring new charges against the applicant. 21. In March and June 2010 the District Court partially granted or refused applications, introduced by the applicant and one of the victims, requesting that it order a forensic examination. 22. On 31 January 2011 the District Court gave judgement, finding the applicant guilty of five counts of the offences set out in Article 178 § 3 (1) (fraud), Article 182 § 3 (2) (extortion), Article 213 § 2 (1) and (2) (usury), and Article 349 § 1 (forgery of evidence) of the CC and sentenced him to nine years’ imprisonment, confiscated half of his property and imposed a fine of 400,000 Armenian drams (AMD). It appears that during the proceedings the District Court examined forty-seven witnesses, about thirty pieces of documentary evidence and five expert opinions, one of which was ordered by the District Court. 23. The applicant and the prosecutor appealed against this judgment. 24. On 3 October 2011 the Criminal Court of Appeal rejected the appeals and upheld the District Court’s judgment. 25. The applicant’s counsel lodged an appeal on points of law. 26. On 21 November 2011 the Court of Cassation declared the appeal inadmissible for lack of merit.