CEDH · CASELAW;COMMUNICATEDCASES;ENG — 30 août 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 30 August 2016   FIRST SECTION Application no. 63106/12 Norik POGHOSYAN against Armenia lodged on 18 September 2012 STATEMENT OF FACTS The applicant, Mr Norik Poghosyan, is an Armenian national who was born in 1983 and lives in Metsavan Village. He is represented before the Court by Mr K. Tumanyan, a lawyer practising in Vanadzor. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 29 September 2008 the applicant was charged with a drug-related crime. On 17 October 2008 the Lori Regional Court decided to detain the applicant. On 12 October 2009 the Lori Regional Court found the applicant guilty as charged and sentenced him to three years’ imprisonment. On 22 December 2009 the Criminal Court of Appeal decided to uphold the guilty verdict, but to reduce the sentence to one year and six months’ imprisonment. On 26 March 2010 the Court of Cassation decided to quash those judgments and remit the case for a fresh examination. On 16 April 2010 the applicant was released from prison after having served his sentence. On 5 October 2010 the Lori Regional Court decided to acquit the applicant. This judgment was upheld upon appeal by higher courts and became final. On 21 July 2011 the applicant filed a civil claim against the State seeking compensation for both pecuniary and non-pecuniary damage, estimating the latter at 6,500,736 Armenian drams (AMD). He argued that he was entitled to compensation as his acquittal had rendered unlawful the time spent in detention. He relied on, inter alia , Articles 17 and 1064 of the Civil Code, Article 66 of the Code of Criminal Procedure and Article 5 § 5 of the Convention. On 23 December 2011 the Lori Regional Court decided to grant partially the applicant’s claim for pecuniary damages, namely lost income. In doing so, the Regional Court referred to Article 16 of the Constitution and Article   5 § 5 of the Convention, as well as the Court of Cassation’s decision of 1 July 2011 in the case of Mr A. Davtyan and Vanq Ltd. The Regional Court further decided to terminate the proceedings in their part concerning the claim for non-pecuniary damages on the ground that the law did not envisage such type of compensation. On 24 January 2012 the applicant lodged an appeal in which he argued, inter alia , that the Regional Court, in deciding on his claim for non ‑ pecuniary damages, should have been guided by Article 5 § 5 of the Convention which prevailed over the domestic law. On 28 March 2012 the Civil Court of Appeal upheld the judgment of the Regional Court in its part concerning the applicant’s claim for non ‑ pecuniary damages. On 12 April 2012 the applicant lodged an appeal on points of law, raising similar arguments. On 23 May 2012 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. B.     Relevant domestic law and practice 1.     The Constitution Article 16 provides that everyone has the right to liberty and security of person. Everyone has the right to compensation in case of unlawful detention on the grounds and in accordance with a procedure prescribed by law. 2.     The Civil Code Article 17 provides that a person whose rights have been violated may claim full compensation for the damage suffered, unless the law or a contract envisages a lower amount of compensation. Damages are the expenses borne or to be borne by the person, whose rights have been violated, in connection with restoring the violated rights, loss of his property or damage to it (material damage), including lost earnings which the person would have gained in normal conditions of civil life, had his rights not been violated (lost income). Article 1064 provides that damage caused as a result of unlawful conviction, criminal prosecution, imposition of a preventive measure in the form of detention or a written undertaking not to leave, and imposition of an administrative penalty shall be compensated in full, in a procedure prescribed by law, by the Republic of Armenia, regardless of the fault of the officials of the body of inquiry, the investigating authority, the prosecutor’s office or the courts. 3.     The Code of Criminal Procedure Article 66 provides that an acquitted person is entitled to claim full compensation as a result of unlawful arrest, detention, indictment and conviction, taking into account the possible lost profits. 4.     The Court of Cassation’s decision of 1 July 2011 in the case of Mr   A.   Davtyan and Vanq Ltd (case no. HKD1/0012/02/08) The Court of Cassation, in interpreting the rules applicable in cases of unlawful prosecution and detention, made the following findings in another case involving similar circumstances. The right to claim compensation for unlawful deprivation of liberty as a result of unlawful actions of public authorities was a constitutional right which was also guaranteed by international treaties. It followed from the analysis of Article 1064 of the Civil Code that the legislature, driven by the peculiarities of the status of an acquitted person, the necessity to remedy his legal and factual situation and the constitutional and international legal provisions, stipulated the rules of compensation in full for damage caused to the acquitted person who had been unlawfully deprived of his liberty. The damage to be compensated is that resulting from unlawful conviction, criminal prosecution or imposition of a preventive measure in the form of detention or a written undertaking not to leave. Article 17 of the Civil Code was also applicable to the assessment of the necessity and the amount of compensation for damages borne by the acquitted person. It followed from the analysis of that provision that damage was to be compensated where there was unlawful behaviour by a public authority and there was a causal link between the unlawful behaviour and the resulting damage, if any. In reaching these findings the Court of Cassation also relied on Article 16 of the Constitution and Article 5 § 5 of the Convention, citing extensively the Court’s case-law regarding the latter. COMPLAINT The applicant complains under Article 5 § 5 of the Convention that no compensation for non-pecuniary damage was available to him under Armenian law for his unjustified detention.   QUESTIONS TO THE PARTIES Is Article 5 § 5 of the Convention applicable to the applicant’s case? In particular, did the fact of the applicant’s acquittal render his detention incompatible with the guarantees of Article 5 of the Convention under the domestic law and practice? If so, was the fact that the applicant was denied compensation for non ‑ pecuniary damage compatible with the requirements Article 5 § 5 of the Convention (see Khachatryan and Others v. Armenia , no. 23978/06, §§   158-159, 27 November 2012)?