CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 2 octobre 2012

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margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sFCF63115 { width:173.58pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid }     THIRD SECTION           CASE OF SEFILYAN v. ARMENIA   (Application no. 22491/08)                 JUDGMENT       STRASBOURG   2 October 2012   FINAL   02/01/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sefilyan v. Armenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Josep Casadevall, President,   Egbert Myjer,   Corneliu Bîrsan,   Alvina Gyulumyan,   Ján Šikuta,   Luis López Guerra,   Nona Tsotsoria, judges, and Santiago Quesada, Section Registrar, Having deliberated in private on 11 September 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 22491/08) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lebanese national, Mr Zhirayr Sefilyan (“the applicant”), on 11 May 2007. 2.     The applicant was represented by Mr V. Grigoryan and Mr   A.   Zakaryan, lawyers practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr   G.   Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 3.     The applicant alleged, in particular, that his detention between 10 and 22 June 2007 had been unlawful, that the courts had failed to provide reasons for his continued detention, that the proceedings of 7 February 2007 in the District Court had not been adversarial, that he had been deprived of an oral hearing before the Court of Appeal on 14 May 2007 and that the secret surveillance of his telephone communications had been unlawful and disproportionate. 4.     On 7 January 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1967 and lives in Yerevan. 6.     The applicant is an active member of civil society who holds leading positions in several NGOs, including the Unity of Armenian Volunteers, the Defence of Liberated Lands and Araks ‑ Kur charity fund. He is of an Armenian origin and since 1992 has apparently been permanently resident in Armenia where he has a family and owns an apartment. A.     Secret surveillance of the applicant’s telephone communications 7.     The applicant appears to be a critic of the Armenian authorities. He alleges that in this connection he has been invited to visit the National Security Service (NSS) on several occasions, where he was ordered to stop his cooperation with the opposition and his criticism of the government. 8.     On an unspecified date the Head of the Principal Department for Safeguarding the Constitutional Order and Fight Against Terrorism of the NSS filed a motion, seeking to carry out secret surveillance and recording of the applicant’s telephone and other conversations. 9.     On 15 August 2006 the Kentron and Nork-Marash District Court of Yerevan examined the motion, finding: “It is evident from the materials submitted to the court and the motion that the Principal Department for Safeguarding the Constitutional Order and Fight Against Terrorism of the NSS has sufficient grounds to believe that [the applicant], born in 1967 in Lebanon, a Lebanese national, residing at 17 Lepsius Str, apt 42, Yerevan, leader of the Armenian Volunteers Unity organisation, is carrying out activities aimed to destabilise the internal political situation in Armenia and to create a situation of civil disobedience, thereby creating a basis for the change of government in Armenia through unconstitutional means by making public calls.” 10.     The District Court decided to grant the motion, authorising the interception and recording of the applicant’s telephone and other conversations made to and from the applicant’s three mobile and three landline numbers for a period of six months, taking into account that they might contain information substantiating the above-mentioned circumstances, the use of which would facilitate the disclosure of a crime and obtaining evidence, since there were elements of an offence prescribed by Article 301 of the Criminal Code (CC) in the applicant’s actions. In doing so, the District Court referred to, inter alia , Articles 281 and 284 of the Code of Criminal Procedure (CCP). B.     The criminal proceedings against the applicant and his placement in detention 11.     On 2 December 2006 the applicant gave a speech at an assembly organised by the Unity of Armenian Volunteers. The assembly took place in the hall of the Yerevan State Choreography College and was attended by about 150 people. The applicant called on the participants of the assembly to get organised, otherwise nothing would move forward. It was not enough to keep telling the President and the Prime Minister to resign; they would never do that. Peaceful assemblies would not make them resign. Nor would external pressure. He called on the participants to create a significant force, in order to make the authorities resign, stating that the main and only objective was to get rid of them. He further stressed that they should not allow those in power to multiply, otherwise the future plans of the participants of the assembly would encounter serious obstacles. The applicant called the authorities “monsters” who would become even more dangerous if they were allowed to multiply. The applicant agreed with other speech makers that any means were acceptable for achieving their goals. 12.     On 8 December 2006 the Investigative Department of the National Security Service decided to institute criminal proceedings under Article 301 of the CC on the ground that public calls for a violent overthrow of the government had been made during the speeches given at the above assembly. 13.     On 9 December 2006 at 10.30 p.m. the applicant was arrested and taken to the NSS. 14.     On the same date the applicant’s office was searched, as a result of which a revolver and various types of bullets were found. 15.     On 10 December 2006 at 3.45 p.m. the relevant arrest record was drawn up. It stated that the applicant was suspected of offences under Articles   235   § 1 and 301 of the CC. It appears that his passport was seized. 16.     On the same date the applicant was questioned as a suspect. He refused to give testimony, stating that the criminal proceedings against him were politically motivated. 17.     On 12 December 2006 the applicant was formally charged under Articles   235 § 1 and 301 of the CC. He was accused of making calls for a violent overthrow of the government and of not handing in, and illegally keeping, his weapon after his demobilisation in 1998. Another person, V.M., who had also given a speech at the above assembly, was accused together with the applicant under Article 301 of the CC. Their speeches had been recorded. 18.     On the same date the investigator filed a motion with the Kentron and Nork-Marash District Court of Yerevan, seeking to have the applicant detained for a period of two months and arguing that, if at large, he could abscond and obstruct the investigation. It appears that on the same date three members of the parliament filed a statement with the District Court, giving their personal guarantees for the applicant’s proper conduct and requesting that no detention be imposed. 19.     On the same date the District Court examined the investigator’s motion, including the charge and the circumstances surrounding it. The District Court decided to grant the motion, taking into account the nature and degree of dangerousness of the imputed offence and the fact that it was at the top of the list of offences directed against state power and finding that the materials of the case provided sufficient reasons to believe that the applicant could abscond and obstruct the investigation by exerting unlawful influence on persons involved in the proceedings. 20.     On 19 December 2006 the applicant lodged an appeal, arguing, inter alia , that there was no reasonable suspicion of his having committed an offence and that the District Court had failed to provide reasons justifying the necessity of his placement in detention. He submitted, in particular, that the investigating authority had a recording of his speech at its disposal, so the allegation that he could unlawfully influence witnesses was unfounded. Furthermore, the allegation that he could abscond was not supported by any arguments or evidence, while the court did not take into account the fact that he was a permanent resident in Armenia, with two minor children and an elderly, sick mother who were dependent on him. 21.     On 27 December 2006 the Criminal and Military Court of Appeal dismissed the applicant’s appeal. In dismissing the applicant’s argument about the lack of a reasonable suspicion, the Court of Appeal found that his involvement in the imputed acts, which included features of offences envisaged by Articles 235 § 1 and 301 of the CC, was substantiated by evidence, such as various records and expert opinions, produced by the investigator and examined in court. As to the reasons given by the District Court, the Court of Appeal found these to be justified. 22.     On the same date the applicant filed a motion requesting to be released on bail. He submitted that he was known to the investigating authority and the court, he had a clear and concrete place of residence and he had never attempted to abscond. He asked the court to fix the amount of bail. 23.     On 30 December 2007 another person, V.A., who was the applicant’s friend, was also charged under Article 235 § 1 of the CC with illegal possession of firearms and ammunition in the context of the same criminal proceedings. 24.     On 7 January 2007 the District Court refused the applicant’s request for bail, citing the same grounds as those justifying his detention. 25.     On 22 January 2007 the Court of Appeal upheld this decision, adding that the applicant was a foreign national and therefore could abscond. Furthermore, it was unacceptable to release the applicant on bail in view of the fact that his co-accused, V.A., who was also charged with illegal possession of firearms and ammunition, was in detention. C.     Extension of the applicant’s detention and the court proceedings 26.     On 1 February 2007 the investigator filed a motion with the District Court seeking to have the applicant’s detention period, which was to expire on 10 February 2007, extended by two months. The investigator argued that the applicant could abscond because he was a foreign national. He further argued that on 15 January 2007 the applicant had transmitted through his lawyer a short note to co-accused V.A. which said “be strong”. This suggested that he was attempting to exert unlawful influence on the participants in the proceedings. 27.     On 7 February 2007 the District Court, having examined the investigator’s motion and other materials, granted this motion, finding that there was a need to carry out further investigative measures and citing the same grounds as before in justifying the applicant’s continued detention. 28.     On 8 February 2007 the applicant lodged an appeal. In his appeal he argued, inter alia , that the extension of his detention had been effected in violation of the time-limits prescribed by Article 139 § 1 of the CCP. 29.     On 23 February 2007 the Court of Appeal dismissed the appeal, finding that the District Court, taking into account the circumstances mentioned in the investigator’s motion, had taken a reasoned decision, since the grounds for the applicant’s detention had not ceased to exist. As to the violation of the time-limits, the Court of Appeal considered this not to be of such gravity as to have affected the correct outcome of examination of the investigator’s motion. 30.     On 30 March 2007 the investigator filed a motion with the District Court seeking to have the applicant’s detention period, which was to expire on 10   April 2007, extended by two months on the same grounds. 31.     On 4 April 2007 the District Court examined and granted this motion on the same grounds. In the proceedings before the District Court the applicant’s lawyer asked the court whether any evidence had been submitted by the investigator in support of his motion which would be examined in court. The presiding judge replied that the materials of the criminal case related to the motion had been submitted by the investigator during the examination of his previous motion. These materials had been examined and returned by the court. The criminal procedure rules did not allow the lawyers access to the materials of a criminal case before the completion of the investigation. 32.     Following this announcement the applicant’s lawyer challenged the judge’s impartiality, inter alia , on the ground that the judge had not disclosed the materials in question to the defence during the previous proceedings. The judge dismissed this challenge with reference to, inter alia , Article 73 § 1 (12) of the CCP. 33.     On 19 April 2007 the applicant lodged an appeal, raising similar arguments as previously. 34.     The applicant alleged that his lawyers had not been notified of the hearing to take place upon his appeal and were therefore not able to appear. 35.     The Government contested this allegation and alleged that on 11   May 2007 the Court of Appeal had sent notifications to both the General Prosecutor’s Office and the applicant’s lawyers, which were received by them, informing them that the hearing on the applicant’s appeal would take place on 14 May 2007. 36.     On 14 May 2007 the applicants lawyers filed a challenge with the Chairman of the Court of Appeal, contesting the impartiality of the judges who were assigned to examine the appeal. The lawyers stated in their challenge that they had been informed on 11 March that the case had been assigned to a judge rapporteur. 37.     On the same date the Court of Appeal examined the applicant’s appeal in the absence of both parties. The Court of Appeal decided to dismiss the appeal with the same reasoning as on 23 February 2007. This decision stated that the parties had been duly notified of the hearing but failed to appear. The same follows from the transcript of the court hearing, in which it was stated that the parties had also been informed by a judge’s assistant by telephone. It appears that a copy of this decision was received by the applicant’s lawyers on 18 May 2007. 38.     In May 2007 the investigation was over and from 15 to 29 May the applicant was granted access to the case file. He submits that only then did he find out about the decision of 15 August 2006 authorising the secret surveillance of his telephone communications. 39.     On 5 June 2007 the prosecutor approved the indictment and the case was sent to court. 40.     On 7 June 2007 Judge M. of the Kentron and Nork-Marash District Court of Yerevan decided to take over the applicant’s criminal case. 41.     On 10 June 2007 the applicant’s detention period, authorised by the decision of 4 April 2007, expired. 42.     On 12 June 2007 the applicant complained to the General Prosecutor and the Minister of Justice that his detention authorised by a court had expired on 10 June 2007 and that his continued detention was unlawful. He sought to be released. 43.     On 22 June 2007 Judge M. decided to put the applicant’s criminal case down for trial. This decision stated that the preventive measure imposed on the applicant was to remain unchanged. 44.     On 6 August 2007 the Kentron and Nork-Marash District Court of Yerevan found the applicant guilty under Article 235 § 1 and acquitted him under Article 301. The District Court, having examined the statements the applicant had made in his speech, found that they could not be qualified as calls for a violent overthrow of the government. As to the charge of illegal possession of a weapon, the District Court found that the applicant had kept the weapon and the ammunition without a permit after his demobilisation. The applicant was sentenced to one year and six months’ imprisonment. The applicant’s two co-accused were found guilty as charged. 45.     On 25 September 2007 the Criminal Court of Appeal upheld this judgment on appeal. II.     RELEVANT DOMESTIC LAW A.     The Criminal Code (in force from 1 August 2003) 46.     The relevant provisions of the CC provide: Article 235: Illegal acquisition, sale, possession, transportation or carrying of arms, ammunition and explosive materials or devices “1.     Illegal acquisition, sale, possession, transportation or carrying of firearms, except for smooth-bore firearms and their bullets, ammunition, sawn-off firearms, bullets and explosive materials or devices shall be punishable by detention of up to three months or by imprisonment for a period not exceeding three years.” Article 301: Public calls aimed at violently changing the constitutional order of Armenia “Public calls aimed at violently seizing State power and violently changing the constitutional order of Armenia shall be punishable by a fine of between 300 and 500 times the minimum wage or by detention of between two and three months or by imprisonment for a period not exceeding three years.” B.     The Code of Criminal Procedure (in force from 12 January 1999) 1.     Detention 47.     For a summary of the relevant provisions see the judgment in the case of Poghosyan v. Armenia (no. 44068/07, §§ 26-41, 20 December 2011). The provisions of the CCP which were not cited in that judgment read as follows. 48.     According to Article 135, the court, the prosecutor, the investigator or the body of inquest can impose a preventive measure only when the materials obtained in the criminal case provide sufficient grounds to believe that the suspect or the accused may: (1) abscond from the authority dealing with the case; (2) hinder the examination of the case during the pre-trial or court proceedings by exerting unlawful influence on persons involved in the criminal proceedings, by concealing or falsifying materials significant for the case, by failing to appear upon the summons of the authority dealing with the case without valid reasons or by other means; (3) commit an act prohibited by criminal law; (4) avoid criminal liability and serving the imposed sentence; and (5) hinder the execution of the judgment. When deciding on the necessity of imposing a preventive measure or choosing the type of preventive measure to be imposed on the suspect or the accused, the following should be taken into account: (1) the nature and degree of danger of the imputed offence; (2) the personality of the suspect or the accused; (3)   age and state of health; (4) sex; (5) occupation; (6) family status and dependants, if any; (7) property situation; (8) whether he has a permanent residence; and (9) other important circumstances. 49.     According to Article 139 § 1, if it is necessary to extend the accused’s detention period, the investigator or the prosecutor must submit a well-grounded motion to the court not later than ten days before the expiry of the detention period. The court, agreeing with the necessity of extending the detention period, shall adopt an appropriate decision not later than five days before the expiry of the detention period. 50.     According to Article 285 § 1, the prosecutor or the investigator shall file a motion with a court seeking to have detention imposed as a preventive measure or the period of detention extended, if such a necessity arises. The motion must indicate the reasons and grounds necessitating the suspect’s detention. Materials substantiating the motion shall be attached to it. if such is engaged in the case, about the place and time of the court hearing. 51.     According to Article 288 § 3, judicial control of detention by the court of appeal shall be carried out in camera in the presence of the prosecutor and defence counsel. Failure to appear of a party who has been notified of the day of the hearing beforehand shall not obstruct the judicial examination. 2.     Access to case file 52.     According to Article 65 § 2(16), the accused has the right to familiarise himself with all the materials of the case upon the completion of the investigation. 53.     According to Article 73 § 1(12), defence counsel is entitled to familiarise himself with all the materials of the case, to make copies of and to take notes on any information contained in the case and in any volume, after the completion of the investigation. 54.     According to Article 201, materials of the investigation may be made public only with the permission of the authority dealing with the case. 55.     According to Article 265, the investigator, finding that the collected materials are sufficient to draw up the bill of indictment, informs the accused of this and decides on the location and time for his familiarising with the materials of the case. 3.     Secret surveillance of telephone conversations 56.     According to Article 281, operative and search activities which restrict the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications of citizens shall be carried out only upon a judicial warrant. The types of operative and search activities carried out upon a judicial warrant shall be defined by the Operative and Search Activities Act. 57.     According to Article 284, operative and search activities which restrict the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications of persons may be carried out only upon a judicial warrant, save in cases where one of the interlocutors has agreed beforehand that his conversations be intercepted or monitored. This Article further prescribes the procedure for the judicial examination of motions seeking authorisation to carry out secret surveillance of telephone conversations filed by the head of the authority charged with carrying out operative and search activities. The motion must indicate the grounds justifying such activity, the information sought to be obtained through such activity, the place and time-limit for such activity, as well as all other relevant elements. The materials substantiating the need to carry out such activity must be attached to the motions. The court must indicate the reasons for granting or refusing the motion. The period during which the judicial warrant is effective shall be calculated from the date of its adoption and may not exceed six months, unless decided otherwise by the warrant. The period of an operative and search activity may be extended upon a reasoned motion by the authority carrying out the operative and search activity in accordance with the procedure prescribed by this Article. C.     The Operative and Search Activities Act (adopted on 22 October 2007 and entered into force on 8 December 2007) 58.     The Operative and Search Activities Act prescribes the notion of operative and search activities, their objectives and principles, bodies carrying out such activities, their rights and obligations, types of such activities and control and supervision over them. 59.     Article 14 prescribed the types of operative and search activities which included surveillance of telephone conversations. 60.     Article 26 prescribed certain technical aspects of secret surveillance of telephone conversations, including of landline, mobile and internet conversations. 61.     Article 31 prescribed that secret surveillance of telephone conversations as an operative and search activity may be authorised only if a person is suspected of a grave or particularly grave crime and if there is sufficient evidence that it is impossible to obtain the information sought by the authority carrying out the activity through other means. 62.     According to Article 39, the overall period of secret surveillance of telephone conversations may not exceed twelve months. D.     The Law on Legal Acts (in force from 31 May 2002) 63.     According to Article 68 § 4, if a rule prescribed by a legal act can be implemented only by adopting another legal act envisaged by the first legal act or if its implementation is directly dependent on the adoption of another legal act, then the legal act in question in its part concerning that rule shall be effective from the date on which the other legal act enters into force. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 64.     The applicant complained that his detention between 10 and 22 June 2007 was not authorised by a court and was therefore unlawful and that the extension of his detention on 7 February 2007 was not carried out in compliance with the time-limits prescribed by law. He invoked Article 5 § 1 of the Convention, which, in so far as relevant, reads as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law...” A.     Admissibility 1.     Compliance with domestic time-limits when extending detention (a)     The parties’ submissions 65.     The Government submitted that the fact that the five-day time-limit prescribed by Article 139 § 1 of the CCP had not been observed by the District Court when deciding on 7 February 2007 to extend the applicant’s detention did not have any adverse effect on the applicant’s rights guaranteed by Article 5 § 1. The formal non-compliance with the time-limit in question due to some shortcomings in court administration did not render the applicant’s detention arbitrary within the meaning of Article 5 § 1, since the applicant was already in detention and the District Court decided that it was to remain unchanged. 66.     The applicant submitted that his detention was to expire on 9   February 2007 and not 10 February 2007, since the start of his detention should have been calculated from the date of his actual taking into custody and not from the date on which the record of his arrest was drawn up. In any event, both the investigator and the District Court failed to comply with the time-limits prescribed by Article 139 § 1 of the CCP. These were grave violations of domestic law and a good reason to quash the decision of the District Court. Furthermore, since a breach of the domestic law entailed a violation of Article 5 § 1, the failure to comply with the time-limits in his case resulted in a breach of that provision. (b)     The Court’s assessment 67.     The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and enshrine the obligation to conform to the substantive and procedural rules thereof. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should review whether this law has been complied with (see, among many other authorities, Benham v.   the United Kingdom , 10 June 1996, § 41, Reports of Judgments and Decisions 1996 ‑ III, and Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004 ‑ II). A period of detention is, in principle, “lawful” if it is based on a court order. Even flaws in the detention order do not necessarily render the underlying period of detention unlawful within the meaning of Article   5   §   1 (see Benham , cited above, §§ 42-47, and Jėčius v. Lithuania , no. 34578/97, § 68, ECHR 2000 ‑ IX). 68.     In the present case, the applicant’s two-month detention period authorised by a court was to expire on 10 February 2007. The applicant contested this and claimed that the expiry date was 9 February 2007. The Court does not find it necessary to rule on this disagreement for the following reasons. Article 139 § 1 of the CCP required the investigator, if he deemed necessary to seek extension of detention, to submit a motion for extension not later than ten days, and the court to adopt its decision not later than five days, before the expiry of the detention period. The investigator in the applicant’s case submitted a motion for extension on 1 February 2007, while the District Court adopted its decision granting that motion and extending the applicant’s detention by two months on 7 February 2007. 69.     The Court notes that at the time when the District Court decided on 7   February 2007 to extend the applicant’s detention, his on-going detention was still valid as authorised by the District Court’s previous decision of 12   December 2006. Furthermore, the decision of 7 February 2007, while taken with a short delay, was nevertheless taken several days before the expiry of the authorised detention period. It was adopted by a competent court upon the investigator’s motion as required by the domestic law. The Court considers that the alleged procedural shortcoming in question, namely the short delays in the filing and examination of the investigator’s motion, was of such a formal and minor nature that it did not in any way affect the lawfulness of the relevant detention period. 70.     It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 2.     Lawfulness of detention between 10 and 22 June 2007 71.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 72.     The Government submitted that the applicant’s detention between 10 and 22 June 2007 was in compliance with the law, namely Article 138 § 3 of the CCP. 73.     The applicant contested this submission, claiming that Article 138 §   3 of the CCP could not be considered as a lawful ground for his detention. 2.     The Court’s assessment 74.     The Court reiterates that Article 5 of the Convention guarantees the fundamental right to liberty and security. That right is of primary importance in a “democratic society” within the meaning of the Convention (see De Wilde, Ooms and Versyp v. Belgium , 18   June 1971, §   65, Series   A no. 12). 75.     Where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Steel and Others v. the United Kingdom , 23 September 1998, § 54, Reports 1998-VII). 76.     The Court notes that it has already examined an identical complaint in another case against Armenia, in which it concluded that there had been a violation of Article 5 § 1 of the Convention in that the applicant’s detention was not based on a court decision and was therefore unlawful within the meaning of that provision (see Poghosyan , cited above, §§ 56-64). It sees no reason to reach a different conclusion in the present case and concludes that the applicant’s detention between 10 and 22 June 2007 was unlawful within the meaning of Article 5 § 1. 77.     There has accordingly been a violation of Article 5 § 1 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 78.     The applicant complained of the fact that the domestic courts had failed to provide reasons for his continued detention. He relied on Article   5   §   3 of the Convention, which reads as follows: “3.     Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A.     Admissibility 79.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 80.     The Government argued that the domestic courts had provided relevant and sufficient reasons for the applicant’s continued detention based on the materials of the case. 81.     The applicant submitted that the domestic courts had failed to provide relevant and sufficient reasons for his continued detention and their reasoning basically amounted to citation of the relevant legal provisions without making any assessment of his particular circumstances. The courts had ignored the fact that the offences with which he was charged were of minor gravity and also failed to take into account his personal situation. Lastly, the investigation had not been carried out with special diligence because it had lasted more than six months despite the fact that all the evidence in the case had been collected on the second day of the investigation. 2.     The Court’s assessment (a)     General principles 82.     A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (see Smirnova v. Russia , nos.   46133/99 and 48183/99, § 58, ECHR 2003 ‑ IX (extracts); Becciev v.   Moldova , no. 9190/03, § 53, 4 October 2005; and Khodorkovskiy v.   Russia , no. 5829/04, § 182, 31 May 2011). 83.     The domestic courts must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release (see Letellier v. France , 26 June 1991, § 35, Series A no. 207). Arguments for and against release must not be general and abstract (see Clooth v. Belgium , 12 December 1991, § 44, Series A no.   225). 84.     The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §   153, ECHR 2000 ‑ IV). 85.     The Convention case-law has developed four basic acceptable reasons for detaining a person before judgment when that person is suspected of having committed an offence: the risk that the accused would fail to appear for trial (see Stögmüller v. Austria , 10 November 1969, § 15, Series A no. 9); the risk that the accused, if released, would take action to prejudice the administration of justice (see Wemhoff v. Germany , 27 June 1968, § 14, Series A no. 7) or commit further offences (see Matznetter v.   Austria , 10 November 1969, § 9, Series A no. 10) or cause public disorder (see Letellier , cited above, § 51). 86.     The danger of an accused’s absconding cannot be gauged solely on the basis of the severity of the sentence risked. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial (see Yağcı and Sargın v. Turkey , 8 June 1995, § 52, Series A no. 319 ‑ A). The risk of absconding has to be assessed in the light of the factors relating to the person’s character, his morals, home, occupation, assets, family ties and all kinds of links with the country in which he is prosecuted. The expectation of heavy sentence and the weight of evidence may be relevant but is not as such decisive and the possibility of obtaining guarantees may have to be used to offset any risk (see Neumeister v. Austria , 27 June 1968, § 10, Series A no. 8). 87.     The danger of the accused’s hindering the proper conduct of the proceedings cannot be relied upon in abstracto , it has to be supported by factual evidence (see Trzaska v. Poland , no. 25792/94, § 65, 11 July 2000). (b)     Application of the above principles in the present case 88.     In the present case, the Court notes that the domestic courts, when ordering the applicant’s detention and its extension, relied on the gravity of the charge and the risk of his absconding and obstructing the proceedings. 89.     The Court observes that both the Kentron and Nork-Marash District Court of Yerevan and the Criminal and Military Court of Appeal, in their decisions ordering and extending the applicant’s detention, limited themselves to repeating these grounds in an abstract and stereotyped way, without indicating any reasons as to why they considered to be well-founded the allegations that the applicant could abscond or obstruct the proceedings. Nor have they attempted to refute the arguments made by the applicant. A general reference to the serious nature of the offence with which the applicant had been charged, on which the courts relied on several occasions, cannot be considered as a sufficient justification of the alleged risks. Furthermore, once the case was brought before a court, the trial court failed to give any reasons whatsoever when extending the applicant’s detention (see paragraph 43 above). 90.     It is true that on one occasion, when refusing the applicant’s application for bail, the Court of Appeal justified the risk of his absconding by the fact that he was a foreign national (see paragraph 25 above). The Court considers that, while a relevant factor, this in itself was not sufficient to justify the refusal of bail. The Court of Appeal failed to take into account any of the factors established in the Court’s case-law (see paragraph 86 above), including the fact that the applicant had resided on a permanent basis in Armenia since 1992 and had a family and property and apparently strong social links with the country. The fact that his passport had been seized was also overlooked, although it significantly minimised the risk of flight. 91.     As to the other ground for refusal of bail mentioned in the same decision of the Court of Appeal, namely that a co-accused had also been placed in detention, the Court does not see in what way this was relevant for the applicant’s case. Thus, when the only reason for continued detention is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, his release pending trial must be ordered if it is possible to obtain from him guarantees that will ensure such appearance (see Wemhoff , cited above, § 15). In the present case, the domestic courts failed even to consider this possibility and refused his application for bail without carrying out a thorough examination of his particular situation. 92.     In the light of the above, the Court considers that the reasons relied on by the District Court and the Court of Appeal in their decisions concerning the applicant’s detention, its extension and when refusing bail were not “relevant and sufficient”. 93.     Accordingly there has been a violation of Article 5 § 3 of the Convention. III.     ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 94.     The applicant complained that the proceedings of 7 February 2007 in the Kentron and Nork-Marash District Court of Yerevan were not adversarial and that he had been deprived of an oral hearing before the Court of Appeal on 14 May 2007. He invoked Article 5 § 3 of the Convention. The Court decided to examine these complaints under Article   5   §   4 of the Convention (see paragraphs 101-102 below) which, in so far as relevant, reads as follows: “4.     Everyone who is deprived of his liberty by arre