CEDH · CASELAW;COMMUNICATEDCASES;ENG — 7 novembre 2018

.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 } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 7 November 2018   FIRST SECTION Application no. 41126/13 Arsen ARTSRUNI against Armenia lodged on 21 June 2013 STATEMENT OF FACTS The applicant, Mr Arsen Artsruni, is a Lebanese national who was born in 1961 and is detained in Nubarashen prison. He is represented before the Court by Ms N. Rshtuni, a lawyer practising in Yerevan. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 10 December 1996 the Criminal Panel of the Supreme Court convicted the applicant of organised crime, one count of solicited murder and one count of solicited murder in aggravating circumstances (second offence) and drug trafficking under Articles 72, 17-100 and 17-99 (8) of the 1961 Criminal Code respectively and sentenced him to the death penalty together with confiscation of his personal property. The relevant parts of the judgment read as follows: “... [the applicant] ... in prior agreement with ... [A.M.] [another accused in the same case] had planned ... [A.N.’s] murder ... ... On 12 October 1999 ... the accused, [A.M.] and [two other accused] ... had fired shots at [A.N.], killing him, and then killed his wife who had entered the room upon hearing the gunshots ... ... In April 1994 [the applicant] instructed A.M. to kill [G.S.] ... ... on 2 May 1994 ... [A.M.] and [another member of the organised criminal group] ... killed [G.S.] near the latter’s garage ... ... The body of evidence collected in relation to the [episode of A.N.’s and his wife’s killing] shows that ... [the applicant] had been the instigator of [A.N.’s murder] and A.M. had acted upon his order. ... [the applicant] should be charged under Article 17-100 of the [Criminal Code] only for having organised [A.N.’s] murder ... whereas [A.N.’s wife’s] murder should not be imputed to him, taking into account that [her] killing had not been part of [the applicant’s] prior agreement with [A.M.] ... ... it has been established that after having organised [A.N.’s] murder [the applicant] had organised [G.S.’s] murder, in which circumstances his charges in respect of this episode should be modified under Article 17-99 (8) of the [Criminal Code]. ... Thus ... [the applicant] should bear criminal responsibility under Articles 72, 17-100 and 17-99 (8) of the [Criminal Code] for having created and headed an organised criminal group ..., having organised [A.N.’s] and [G.S.’s] murders by the members of the organised criminal group and drug trafficking. ... In view of the foregoing ... the Criminal Panel ... finds [the applicant] guilty ... [decides to] sentence him to twelve years’ imprisonment under Article 72 with confiscation of his personal property ... to 12 years’ imprisonment under Article   17 ‑ 100 and to ... death penalty under Article 17-99 (8). ... in accordance with the principle of absorption of a lesser penalty ... [decides to] assign the death penalty as the final punishment with confiscation of personal property.” By presidential decree of 1 August 2003 the applicant was granted a pardon and the death penalty was replaced with life imprisonment. On 18 April 2003 a new Criminal Code was adopted. By application of 31 July 2006 the Deputy Prosecutor General requested the Erebuni and Nubarashen District Court of Yerevan (“District Court”) to revise the judgment of 10 December 1996 with a view to bringing it into conformity with the new Criminal Code. By decision of 8 August 2006 the District Court granted the prosecutor’s application with the following reasoning: “According to the Law of 18 April 2003 on bringing the Criminal Code into force, the Criminal Code adopted on 7 March 1961 ceased to be in force from 1 August 2003. Pursuant to section 3 of the above-mentioned law, punishments of persons convicted under the [old Criminal Code] who have not yet completed their sentences should be brought into conformity with the [Criminal Code] in cases where a convict’s sentence is more severe than the maximum punishment stated by the corresponding provision of the [Criminal Code] while according to section 6 of the above-mentioned law, the punishment of persons sentenced to the death penalty under ... the [old Criminal Code] is replaced by life imprisonment ... ... the judgment ... of 10 December 1996 in respect of [the applicant] and the offences committed by the latter should be brought into conformity with the [Criminal Code] while life imprisonment assigned by the [presidential decree] should remain. ... decides ... that the offences committed by [the applicant] correspond to Articles   222 § 1, 38-104 § 1 and 104 § 2 (1) and (15) of the [new Criminal Code] ...” It appears that the applicant did not appeal against the District Court’s decision of 8 August 2006. On 23 May 2011 the legislature adopted an amendment to the Criminal Code whereby Article 104 § 2 (15) (repeated murder) was abolished. On 14 June 2011 the applicant lodged an application with the District Court seeking revision of the Supreme Court’s judgment of 10 December 1996 in his respect in the light of the amendment to the Criminal Code of 23   May 2011. On 22 August 2011 the applicant’s lawyer lodged an appeal against the District Court’s decision of 8 August 2006 arguing that, as a result of the trial judge’s negligence, a technical error had occurred in the decision in that the offence committed by the applicant had been stated as corresponding to Article 104 § 2 (1) and (15) whereas it should have been stated as corresponding to Article 38-104 § 2 (15). By decision of 31 August 2011 the Criminal Court of Appeal left the application of 22 August 2011 unexamined for having been lodged out of time. The applicant’s lawyer lodged an appeal on points of law against the decision of 31 August 2011. By decision of 25 November 2011 the applicant’s lawyer was granted leave to appeal. On 22 December 2011 the Court of Cassation quashed the District Court’s decision of 8 August 2006, and the decision of the Court of Appeal of 31 August 2011, and remitted the case to the District Court for a new examination. On 6 March 2012 the District Court joined the examination of the applicant’s request of 14 June 2011 and his lawyer’s appeal against the decision of 8 August 2006 in one set of proceedings, on the grounds that both concerned the revision of the judgment of the Criminal Panel of the Supreme Court concerning the applicant. On 12 July 2012 the District Court delivered its decision, the relevant parts of which read as follows: “... having brought [the judgment of 10 December 1996] into conformity with the Criminal Code adopted on 18 April 2003, the court finds that ... the offences committed by [the applicant] correspond to Articles 222 § 1, 38-104 § 1 and 38-104 §   2 (15) of the Criminal Code as in force at 1 August 2003. ... by the [amendment of 23.05.2011] Article 21 of the Criminal Code which provided for the repetition of offences, lost its force ... On this ground, Article 104 § 2 (15) of the Criminal Code /murder committed by a person who has previously committed a murder/ lost its force. ... [The old Criminal Code] as well as the Criminal Code in force contain an identical description of the offence of organised crime ... therefore the court finds that the offence imputed to [the applicant] under Article 72 [of the old Criminal Code] corresponds to the offence envisaged by Article 222 § 1 of the Criminal Code in force ... therefore the punishment assigned by the judgment under this provision should remain unchanged. Under [the old Criminal Code] aggravated murder was punishable ... under Article   99 while non-aggravated murder was punishable under Article 100... Article 99 of [the old Criminal Code] provided for two separate elements of a crime rendering a murder an aggravated one, there was the murder of two or more persons /point 4/ and also premeditated murder committed by a person who had previously committed a murder ... /point 8/. Article 104 § 2 of the [Criminal Code] used to consider the murder of two or more persons ... and the murder committed by a person who had previously committed a murder ... as separate elements rendering a murder aggravated. By the legislative amendment of 23.05.2011 Article 104 § 2 (15) ... lost its force. Thus, [the old Criminal Code] as well as the Criminal Code as in force at 1.08.2003 and at present provided and continued to consider the /premeditated/ killing of two or more persons ... as aggravated murder. ... the decriminalisation of Article 104 § 2 (15) of the Criminal Code does not ... exclude the existence of the given type of aggravated murder that is the murder of two or more persons ... As a result of the examination of the materials of the case, in particular having regard to the purposes of the organised criminal group [led by the applicant] ... it has been established that the killing of a number of persons had been envisaged... and the two murders in the present case, as a result of the operation of the organised criminal group and the consequences thereof, had been included within the context of the creation and operation of the group. ... the court concludes that the inclusion of two counts of solicited murder imputed to the applicant by the judgment of ... 10 December 1996 into one offence, that is solicited murder of two persons, corresponds to Article 38-104 § 2 (1). The provision in question envisages also life imprisonment. ... the court decides to ... bring the judgment of ... 10 December 1996 into conformity with Articles 222 § 1 and 38-104 § 2 (1) of the [Criminal Code], leave [the applicant’s] sentence, that is life imprisonment, unchanged ...” The applicant lodged an appeal. He argued, in particular, that the District Court did not have the power to re-examine the case on the merits. Having been bound by the conclusions of the final judgment of 10 December 1996 as regards the legal assessment of his offences, it should have limited itself to bringing that judgment into conformity with the legislation currently in force. He further argued that the District Court, not having the materials of the case at its disposal, since the majority of them had been destroyed, had carried out a legal assessment of his actions which had already been the subject of examination in the final judgment of 1996, with corresponding sentences having been imposed. In particular, notwithstanding the fact that the Supreme Court had come to the conclusion that the murders solicited by him had been committed at different times and were not part of a common intention or committed for the same motive, the District Court had nevertheless found that the two murders had been the result of the activity of the organised criminal group and that the consequences of that activity were in line with the purposes of the creation and operation of the group. The District Court had merged two separate offences, that is one count of solicited murder and another of solicited aggravated murder, into one count of aggravated murder, which contradicted the Supreme Court’s assessment of the offences imputed to him. The applicant finally argued that, according to the state of the law in 1993, for different murders to fall under Article   99   (4) (murder of two or more persons) they should have constituted one crime committed with a common intent either at the same time or at different times. It could not be ruled out that, following the amendments of 23 May 2011, the practice could change to apply Article 104 § 2 (1) to multiple murders, but such change in practice should not extend to crimes committed prior to that change - the more so in cases where final judgments had been adopted. On 11 September 2012 the Criminal Court of Appeal upheld the District Court’s decision of 12 July 2012. The decision stated, in particular, the following: “The Court of Appeal notes that there are differences between the offences set out in Article 104 § 2 (1) and [Article 104 § 2 (15)]. The offence set out in Article 104 § 2 (1) ... is described by a common intent which has resulted in killing two or more persons. The content of Article 104 § 2 (15), which has lost its force, shows that it concerns at least two ... offences committed at different times which have created the consequences mentioned in this provision and there is a link between those consequences and a common intent. Consequently, Article 104 § 2 (1) has no connection with repetition of offences. In view of the above, the Court of Appeal finds that ... there are no grounds to grant the appeal ...” The applicant lodged an appeal on points of law. By decision of 27 November 2012 the applicant was granted leave to appeal. On 15 February 2013 the Court of Cassation rejected the applicant’s appeal on points of law. The relevant parts of this decision read as follows: “... the Court of Cassation finds that in the context of abolishment of Article 21 (repetition of offences) and Article 104 § 2 (15) (murder by a person who has previously committed a murder) of the ... Criminal Code and amendments ... to Article 20 (multiple offences) ... as a result of the [amendments of 23 May 2011] ... there is an issue of uniform application of the law with regard to the ... offence (murder of two or more persons) set out in Article 104 § 2 (1) of the Criminal Code ... ... the Court of Cassation notes that in the event of Article 104 § 2 (15) ... having lost its force, the element envisaged by Article 104 § 2 (1) that is the murder of two or more persons remains as an aggravating circumstance for murder... Having extended the notion of multiple offences (Article 20 § 1 (1) ... ), the legislature had not abolished the [specific] legal provisions setting out responsibility for offences committed in respect of two or more persons ... including ... Article 104 § 2 (1). In particular, there is legislatively-provided multiplicity where the legislature considers the commission of more than one offence as an element affecting the qualification of the given offence, making it aggravated ... ... cases of murder of two or more persons with the same intent as well as premeditated murder of two or more persons for unrelated motifs (in other words, a new murder committed by a person who had previously committed murder) should be qualified under Article 104 § 2 (1) ... if the person has not been convicted for them... ... the Court of Cassation notes that ... the [District Court] had considered that the murder of two persons solicited by [the applicant] should be qualified under the specific provision of the Criminal Code [that is Article 104 § 2 (1)] ... and not on the basis of rules of multiplicity of offences provided in Article 20 § 1 (1) ... Therefore ... the District Court’s decision of 12 July 2012 as well as the decision of the Court of Appeal ... of 11 September 2012 are well-founded... ... it is evident that, according to the criminal law in force at the time when [the applicant] offended, the crimes of murder of two or more persons and murder by a person who had previously committed premeditated murder ... were set out in Articles   99 (4) and (8) of the [old Criminal Code] respectively ... Therefore, by the judgment of the Criminal Panel of the Supreme Court [the applicant] had been found guilty under Articles 72, 17-100 and under Article 17-99 (8) for having solicited the murder of two persons ... ... the offences imputed to [the applicant] have been brought into conformity with the provisions of the Criminal Code [in force] in relation to the same factual circumstances ... and ... as a result his situation has not worsened. In other words, [the applicant] has not been convicted twice for the same offence, but the offences imputed to him by a final judgment have been brought into conformity with the [relevant] provisions of the Criminal Code ... ... the Court of Cassation notes that, as a result of abolishment of Article 104 §   2   (15) by the [amendment of 23 May 2011], the murder of two or more persons as a type of aggravated murder has not been decriminalised and thus [the applicant’s] situation with regard to the qualification of the offence has not improved. In view of the foregoing ... there has not been any violation of [the principle of retroactivity of lighter punishment] set out in Article 13 of the Criminal Code ... in [the applicant’s] case ...” B.     Relevant domestic law 1.     The Constitution of the Republic of Armenia (with the amendments of 27 November 2005) Article 22 “... The imposition of a heavier punishment than the one in effect at the time when the crime was committed shall be prohibited. No one shall be held guilty for a crime on account of any act which did not constitute a crime under the law at the time when it was committed. The law eliminating or mitigating the penalty for the offence shall be retroactive. The law prescribing or increasing liability shall not be retroactive. No one shall be tried twice for the same act.” 2.     The Criminal Code in force from 7 March 1961 until 1 August 2003 Article 17: Complicity “Complicity is the joint deliberate participation of two or more persons in the commission of an offence. ... The instigator is the person who has solicited or commanded the commission of an the offence. ...” Article 72: Organised crime “Creation of armed criminal groups with the purpose of attacking state and non ‑ governmental enterprises, organisations, bodies or separate individuals and participation in such groups and in attacks carried out by them is punishable by imprisonment from three to fifteen years with confiscation of property and exile or the death penalty with confiscation of property.” Article 99: Premeditated aggravated murder “Premeditated murder ... 4. of two or more persons; ... 8. by an especially dangerous re-offender or a person who has previously committed premeditated murder (with the exception of excessive self-defence ... ); ... is punishable by imprisonment from eight to fifteen years or the death penalty.” Article 100: Premeditated murder “Premeditated murder which has been committed without the aggravating circumstances mentioned in Article 99 of the present code is punishable by imprisonment from five to twelve years.” 3.     The Criminal Code in force from 1 August 2003 The relevant provisions of the acting Criminal Code, as in force prior to the amendments of 23 May 2011, read as follows: Article 13: Retroactivity of criminal law “1. A law is applied retrospectively if it decriminalises an offence, sets out a more lenient penalty or is otherwise more favourable to the person who has committed an offence, that is it applies to persons who have committed the relevant offence prior to the coming into force of that law, including to those persons who are serving their sentence ...” Article 20: Multiplicity of offences “1. Multiplicity of offences is: 1) the commission of two or more offences, prescribed by different articles or different parts of the same article of the present code, for none of which the person has been convicted; ... 2. In case of multiplicity of offences, a person bears responsibility for each offence in accordance with the relevant provision of the present code or part thereof.” Article 21: Repetition of offences “1. Repetition of offences is considered the commission of two or more offences prescribed by the same article of the present code or by the same part thereof. ...” Article 38: Types of complicity “... 3. The person who has commanded and led the commission of a crime, as well as [the person] who has created an organised criminal group or criminal conspiracy or has led them, is considered an instigator ...” Article 104: Murder “1. Murder that is premeditated killing of another is punishable by imprisonment from six to twelve years. 2. Murder 1) of two or more persons; ... 15) by a person who had previously committed murder ... is punishable by imprisonment from eight to fifteen years or life imprisonment.” Article 222: Organised crime “1. Creation, leadership of an organised armed group with the purpose of attacking individuals and organisations or participation in attacks carried out by the group is punishable by imprisonment from ten to fifteen years with or without confiscation of property.” 4.     The Law of 23 May 2011 on making amendments and supplements to the Criminal Code of the Republic of Armenia Pursuant to this law Article 20 § 1 (1) of the Criminal Code was redrafted to state the following: “1. Multiplicity of offences is: 1) the commission of two or more offences prescribed by the present code (by different articles or by the same article or by the same or different parts or points of the same article) for none of which the person has been convicted;” Article 21 was abolished. Article 59 § 4, which prescribed a maximum of fifteen years’ imprisonment for multiple offences and a maximum of twenty-five years’ imprisonment in case of recidivism, was amended to state the following: “4. When imposing a penalty for multiple offences by fully or partially adding up the terms of imprisonment, the maximum imprisonment term may not exceed twenty ‑ five years, while it may not exceed thirty years in case of recidivism.” Article 66, which sets out the sentencing rules for multiple offences, was amended to read as follows: “1. In the case of multiplicity of offences the court, by imposing a separate penalty (principal or additional) for each offence, sets the final penalty by fully or partially adding up the imposed penalties. ... 4. If multiple offences include grave or particularly grave offences, the final penalty is imposed by fully or partially adding up the penalties. In addition, the final imprisonment sentence may not exceed twenty-five years. If the court imposes life imprisonment for one of the multiple offences, the final principal penalty is determined through absorption...” Article 104 § 2 (15) was abolished while the penalties for murder (Article   104 § 1) and aggravated murder (Article 104 § 2) were changed to eight to fifteen years’ imprisonment and twelve to twenty years’ or life imprisonment respectively. 5.     The Code of Criminal Procedure Article 24 § 6 provides that a court’s judgments and decisions in a criminal case may be reviewed only by relevant higher courts in accordance with the procedure set out by the Code of Criminal Procedure. According to Article 52 § 2 the prosecutor lodges a relevant application with a court until 1 August 2006 with the purpose of revision of those judicial acts that concern persons sentenced to the death penalty and which have not yet been subject to revision in judicial proceedings. COMPLAINTS The applicant complains under Article 7 of the Convention that his conviction for the murder of two or more persons, in the proceedings concerning the revision of his sentence imposed by the final judgment of 10   December 1996, was against the state of the law and legal practice that existed at the time when he committed the relevant offences. Furthermore, as a result of the manner in which the domestic courts carried out the revision of the judgment of 10 December 1996 following the amendments to the Criminal Code of 23 May 2011, the principle of retrospectivity of the more lenient criminal law was violated. The applicant also complains under Article 4 of Protocol No. 7 to the Convention that he was convicted for the same offences twice, since within the framework of sentence revision proceedings the courts had made a new legal assessment of the offences of which he had already been convicted by the final judgment of 10 December 1996. QUESTIONS TO THE PARTIES 1.     Having regard to the state of the law and practice at the time when the applicant committed two counts of solicited murder, of which he was convicted by the final judgment of 10 December 1996, was the domestic courts’ decision adopted within the framework of the sentence revision proceedings reasonably foreseeable to the applicant, as required by Article   7 of the Convention?   Furthermore, did the domestic law provide the applicant the possibility, within the meaning of Article 7 of the Convention, to benefit from the more favourable provisions of the Criminal Code as amended on 23 May 2011? If so, was the principle of retrospectivity of the more lenient criminal law respected in the applicant’s case?   2.     Has the applicant been punished twice for the same offence in the territory of the respondent State, as prohibited by Article   4 §   1 of Protocol   No.   7, as a result of the manner in which the courts conducted the revision of the applicant’s sentence imposed by the final judgment of 10   December 1996?   If so, did the proceedings fall within the exceptions envisaged by Article   4 §   2 of Protocol No.   7? Furthermore, what was the legal basis for the revision of the judgment of 10 December 1996 on the merits, as opposed to the examination of issues relating to the sentence imposed by that judgment?