CASE OF TER-SARGSYAN v. ARMENIA
Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo
5. On 7 October 2000 S.M. was stabbed by two persons during an event in a café in the town of Kostanay, Kazakhstan. He died on the way to hospital. 6. The following day the authorities of Kazakhstan started an investigation into the incident, the applicant and his friend, B.M., being the main suspects. 7. A number of eyewitnesses were questioned. In particular, witness Kh.H., the owner of the café, stated that he had seen the applicant and B.M. having a conversation with the victim and his nephew, G.T. At the time of the incident he had been outside the café and went back in when he heard the noise. Thereafter he learnt from those present that B.M. and the applicant had stabbed the victim and escaped. Witness K.H., Kh.H.’s son, stated that he had been in the kitchen when he heard the noise and came out into the hall. He then saw the applicant with a knife in his hands going towards the victim. Witness G.T. stated that he had been with his uncle, the victim, in the café and had witnessed the applicant and B.M. stabbing him. Witness O.D., the cook who worked in the café at the relevant time, stated that she had seen the applicant and B.M. having an argument with the victim and stabbing him, after which both of them had fled. Witness V.H., Kh.H.’s brother, who had also been in the café that night, stated that he had seen B.M. and the victim having an argument, after which the former had stabbed the victim, and then the applicant had also stabbed him. Witness G.A. submitted that he had been in the café with his wife on the day of the incident and had witnessed B.M. and the applicant attacking the victim and that he had seen a knife in the applicant’s hands. A number of other persons, namely A.O. and A.G., singers, V.K. and E.B., guests, and L.T., the camera person in charge of filming the event, were also questioned. These witnesses did not provide any concrete details or mention any names and stated that they had either been far away from those fighting or for some other reason had not seen exactly what happened. Witness L.T. had recognised the applicant in a photograph shown to him during the investigation. 8. On 21 January 2004 the investigative authorities of Kazakhstan brought charges against the applicant and his detention was ordered. Since his whereabouts were unknown, a search was initiated for him. 9. On 5 November 2004 the applicant was arrested in Armenia. 10. In May 2005 the applicant was released after no agreement was reached between the law enforcement authorities of Armenia and Kazakhstan as regards his extradition. 11. On 29 May 2006 the Kostanay Regional Court found B.M. guilty of murder and sentenced him to seventeen years’ imprisonment. 12. As regards the applicant, the case was sent to Armenia for him to be prosecuted in his country of nationality. 13. On 8 July 2008 the Vagharshapat Police investigation unit took over the case and the charges against the applicant were brought into conformity with the relevant provisions of the Criminal Code of Armenia. The applicant was charged with premeditated murder. 14. On 21 August 2008 the applicant was arrested. He was questioned on the same day and refused to make any statement in respect of the events of 7 October 2000. 15. In the course of the investigation the applicant requested a confrontation with witnesses V.H., G.A., G.T., K.H., L.T. and O.D. The investigator dismissed his motion on the ground that both in the course of the investigation and at B.M.’s trial those witnesses had reinstated their statements against him. 16. On 20 October 2008 the case file, including the finalised indictment, was transmitted to the Southern Criminal Court (one of the first instance criminal courts before the relevant amendments to the Code of Criminal Procedure) to be set down for trial. 17. On an unspecified date the applicant’s lawyer filed a motion seeking to remit the case for further investigation on the ground that, inter alia, it was necessary to carry out several confrontations given that there were substantial contradictions between the applicant’s statements and the statements of witnesses V.H., G.A., G.T., K.H., L.T. and O. D. It appears that the Southern Criminal Court never examined this request. 18. Following the amendments to the Code of Criminal Procedure the case was taken over by the Armavir Regional Court. 19. According to the applicant, the eleven witnesses residing in Kazakhstan (see paragraph 7 above), who had made statements against him, were not properly summoned and the Regional Court did not obtain any proof that they had been notified about the trial. The applicant further claimed that at the preparatory hearing the victim’s legal heir, S.M.’s wife, had submitted declarations from five out of the eleven witnesses stating their reasons for being unable to attend the hearings. The declarations, drafted in Russian, were not properly examined by the Regional Court but were included in the case file and it was decided to continue the examination of the case in the absence of all the witnesses. 20. The Government argued that all eleven witnesses were properly summoned to the applicant’s trial. However, it had not been possible to locate all of them, while eight of the witnesses submitted to the trial court declarations certified by a notary in Kazakhstan stating their inability to attend the trial for financial, family or work-related issues. 21. The applicant pleaded not guilty at the trial and contested the veracity of the statements of the witnesses made during the investigation of the case in Kazakhstan. 22. The victim’s legal heir testified before the trial court that on 7 October 2000 her husband, S.M., had attended an event in the café together with G.T. She had then been told by relatives that her husband had been stabbed during a fight. 23. At the hearing of 26 May 2009 the applicant filed a motion seeking to have examined in court the video recordings from the crime scene included in the case file. He claimed that it was necessary to identify other witnesses of the incident and clarify the colour of his outerwear on the day of the crime. The Regional Court dismissed this motion. 24. On 19 June 2009 the Regional Court convicted the applicant of murder and sentenced him to fourteen years’ imprisonment. In doing so, the Regional Court stated, in particular, the following: “The Court, taking into account and having assessed the evidence supporting the accusation, finds that [the applicant’s] guilt in the offence was established by the following evidence that has been collected in the course of the investigation and examined in the court proceedings: The [trial] statement of the victim’s legal heir ... according to which at around 8 p.m. on 7 October 2000 her husband S.M. attended an event in ... the café together with G.T. She was told ... by the relatives that during a fight in the café Armenian men [B.M.] and [the applicant] had stabbed her husband... The statement of witness Kh.H. ... (witness Kh.H.’s pre-trial statement was read out) The statement of witness K.H. ... (witness K.H.’s pre-trial statement was read out). The statement of witness G.T. ... (witness G.T.’s pre-trial statement was read out). The statement of witness O.D. ... (witness O.D.’s pre-trial statement was read out). The statement of witness V.H. ... (witness V.H.’s pre-trial statement was read out). The statement of witness G.A. ... (witness G.A.’s pre-trial statement was read out). The statement of witness A.O. ... (witness A.O.’s pre-trial statement was read out). The statement of witness A.G. ... (witness A.G.’s pre-trial statement was read out). The statement of witness V.K. ... (witness V.K.’s pre-trial statement was read out). The statement of witness L.T. ... (witness L.T.’s pre-trial statement was read out). The statement of witness E.B. ... (witness E.B.’s pre-trial statement was read out). [The applicant’s] guilt ... has been substantiated also by: The judgment of 29.05.2006 of Kostanay Regional Court ... ... clarifications provided by expert ... during the above-mentioned court proceedings that there were two penetrating knife injuries on the body ... each one of the injuries could by itself have caused the death. The statement of technical expert [during the proceedings before the Kostanay Regional Court] ... The conclusion of the forensic medical examination of 31.10.2000 ... S.M.’s death had been caused by extensive haemorrhage as a result of liver wounds. The statement of forensic medical expert [during the proceedings before the Kostanay Regional Court] ... Each stab wounded the liver. The conclusion of technical forensic examination of 21.10.2005 ... according to which ... the traces of two penetrating wounds ... discovered on S.M.’s vest could have been inflicted by a ... knife. The records of examination of the crime scene, records of ... examination of victim S.M.’s clothes, two video recordings of the event, the video recording of the examination of the body during the examination of the crime scene and forensic medical examination.” 25. The applicant lodged an appeal claiming, inter alia, that there had been no confrontation between him, B.M. and the witnesses against him during the investigation of the case, either in Kazakhstan or in Armenia. He further complained that the Regional Court had failed to summon properly the witnesses and relied on their pre-trial statements without good reason. He also complained about the fact that the video recordings from the crime scene had not been examined during the trial, although the Regional Court relied on them as evidence against him. 26. On 31 August 2009 the Criminal Court of Appeal upheld the applicant’s conviction with reliance on the same evidence. As regards the non-attendance of witnesses the Court of Appeal stated that, according to the materials of the case, the witnesses had been properly summoned but had submitted statements about their inability to appear before the court due to lack of funds or reasons relating to family or work and reinstated their statements made during the pre-trial investigation. 27. The applicant lodged an appeal on points of law raising arguments similar to those submitted in his previous appeal. 28. On 12 November 2009 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit stating, inter alia, that the Court of Appeal had reached the correct conclusion as regards the applicant’s complaints about his inability to examine the witnesses against him.