CASE OF ASATRYAN 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)
Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo;Robert Spano
5. The present case concerns the applicant’s trial and conviction for attempted murder of M. G., a businessman and former parliamentarian. A co-defendant, Y. W., was tried and convicted for assisting an offender. 6. The facts of the case may be summarised as follows. 7. On 29 December 2001 a bomb placed under M.G.’s car detonated when the latter started the engine in the morning. M.G. survived without major injuries. 8. On the same date the District Prosecutor’s Office started an investigation into the matter. When questioned by police officers, M.G. pointed to the applicant’s ex-husband, A.G., with whom he had major disagreements over business-related issues, as the only possible offender. 9. On the same day A.G. was summoned to the police station. Having acknowledged the existence of disagreements with M.G., he denied the offence and stated that he had been at home with his son, V.G., the night before the incident. 10. On the same day V.G. was arrested on suspicion of attempted murder. The charges against him were eventually dropped several months later since his involvement in the offence had not been established. 11. On 18 February 2002 A. At., A.G.’s friend who also knew the applicant and the family, was interviewed. He stated, inter alia, that he was aware of A.G.’s problems with M.G. and that the applicant had always been against A.G. doing business with M.G. since she considered the latter a “scammer”. 12. On the same date A.A., A.G.’s neighbour, was interviewed and described his family as a normal and ordinary one. She mentioned that about a year before, the applicant had complained about M.G. because he owed them some money. 13. On 29 January 2002 L.G., the applicant’s daughter, was interviewed and stated, inter alia, that she had learnt about her parents’ divorce three or four years previously. The parents had maintained good relations and the family was in contact almost every day. She also stated that, most of the time, the applicant stayed in the apartment where the father lived. 14. On 21 February 2002 A.B., the applicant’s neighbour, was interviewed. He stated that he had known the members of the family, A.G., the applicant and their two children V.G. and L.G., since 2001, when they had settled in the building. 15. On 16 September 2005 Y.W., a friend of the family, was arrested following the discovery of a large quantity of firearms and explosives in his house. Shortly after, Y.W. confessed to M.G.’s attempted murder and stated that he had acted on the applicant’s orders. 16. On 23 September 2005 the applicant was arrested and charged with instigation of attempted murder and property damage. 17. On an unspecified date the investigation was concluded and the criminal case was referred to the Avan and Nor-Nork District Court of Yerevan for trial. The bill of indictment included L.G. in the witness call list while it appears that A.At., A.A. and A.B. were not included in it. 18. At the trial, Y.W. retracted his pre-trial statements, claiming that they had been obtained under duress. The applicant denied any involvement in M.G.’s attempted murder, stating that she had divorced A.G. in 1999 and since then she had lived with their daughter L.G. in another apartment while A.G. lived with their son, V.G. She also stated that at some point she had been asked to sign some documents in relation to a contract between A.G. and M.G. since the contract concerned the sale of the house where she used to live, which she did. However, in general she had no connection with A.G. and tried not to maintain any contact with him. 19. At the hearing of 22 June 2006 the applicant’s lawyer asked for L.G. to be excluded from the witness call list, since the latter was the applicant’s daughter. This request was granted when L.G. expressed her wish to use the testimonial privilege. 20. On 12 October 2007 the District Court found the applicant guilty as charged and sentenced her cumulatively to nine years’ imprisonment. Y.W. was also convicted. The District Court found it established that the applicant had ordered M.G.’s murder as the property-related disputes between the latter and A.G. had also affected her property rights. In this connection the District Court mainly relied on the trial statements of S.A., Y.W.’s spouse, and L.C., his former colleague and the fact that the applicant was involved in court disputes with M.G., which showed that both she and A.G. had a strained relationship with the latter. 21. On 29 October 2007 the applicant lodged an appeal against the judgment of the District Court. On 3 December 2007 she lodged a supplement to her appeal claiming, inter alia, that she had no reason to murder M.G. as she had been living separately from A.G. since their divorce in 1999 and had no interest in his business activities. 22. In the course of the proceedings before the Criminal Court of Appeal Y.W. retracted his statements made before the District Court and submitted that in reality he had organised the explosion of M.G.’s car upon the applicant’s request. However, he had no intention of killing M.G., but was trying to frighten him. The applicant maintained her defence. 23. On 18 June 2008 the Criminal Court of Appeal dismissed the applicant’s appeal and upheld the judgment of 12 October 2007 as regards her conviction and sentence, while Y.W.’s sentence was reduced. In its judgment the Court of Appeal, inter alia, established that although the applicant had divorced A.G., she had maintained a family-like relationship with him and expressed her annoyance at M.G.’s actions in the presence of different people. In this respect, the judgment of the Court of Appeal referred to L.G.’s pre-trial statement of 29 January 2002, A.At.’s pre-trial statement of 18 February 2002, as well as the pre-trial statements of two neighbours, A.A. and A.B., made on 18 and 21 February 2002 respectively. 24. On 21 November 2008 the applicant lodged an appeal on points of law claiming, inter alia, that the Court of Appeal had based its conclusions on the pre-trial statements of L.G., A.A., A.B. and A.At., which had not been read out and examined either by the Avan and Nor-Nork District Court of Yerevan or the Court of Appeal. Furthermore, she had had no opportunity to question these witnesses. 25. On 15 December 2008 the Court of Cassation declared the applicant’s appeal inadmissible for lack of merit. 26. On 14 April 2009 the applicant lodged an application with the Constitutional Court challenging the compatibility with the Constitution of certain provisions of the Code of Criminal Procedure (hereafter, the CCP) allowing the Court of Cassation not to indicate reasons when declaring inadmissible an appeal on points of law. 27. On 28 July 2009 the Constitutional Court granted the application by finding such provisions of the CCP incompatible with the Constitution. 28. On 11 August 2009 the applicant, based on the above decision of the Constitutional Court, requested the Court of Cassation to reopen the proceedings and to re-examine her appeal on points of law of 21 November 2008. 29. By decision of 25 September 2009 the Court of Cassation reopened the proceedings, re-examined the applicant’s appeal on points of law and declared it inadmissible for lack of merit. In doing so, the Court of Cassation, inter alia, indicated that the Criminal Court of Appeal’s conclusion concerning the applicant’s guilt was correct as it was based, among other things, on the witness statements of L.G. and A.A.