CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 juin 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } Communicated on 16 June 2020 Published on 6 July 2020   FIRST SECTION Application no. 66265/17 Hrant MAZMANYAN against Armenia lodged on 23 August 2017 STATEMENT OF FACTS The applicant, Mr Hrant Mazmanyan, is an Armenian national who was born in 1970 and lives in Yerevan. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. At the relevant time the applicant worked as a senior operative officer in the National Security Service (NSS). E.N. was his head of department. On 1 November 2007 at around 8 p.m. the applicant apprehended a certain K.K. at Zvartnots airport in Yerevan and took him to the NSS headquarters on suspicion of smuggling. This operation was carried out under E.N.’s supervision. K.K. was kept in an office in the NSS administrative building until around 9 a.m. on 2 November 2007. In 2008 the applicant left the service at the NSS. On 16 July 2013 criminal proceedings were instituted on account of various corruption-related offences reported by K.K. During the investigation K.K. revealed that on 1 November 2007 he was kept without any legal grounds at the NSS headquarters. It appears that during the investigation K.K. submitted that during his stay in an office at NSS headquarters on the night of 1 to 2 November 2007 the applicant was with him. It further appears that when questioned about the events at issue, the applicant indicated that he had kept K.K. in his office upon E.N.’s oral instructions, which E.N. denied when questioned. On 13 May 2014 the investigator decided not to prosecute the applicant due to the expiry of the statutory limitation periods. At the same time, the investigator decided not to prosecute E.N., for absence of corpus delicti . On 2 July 2014 the applicant appealed against that decision, arguing that he was against the application of statutory limitation periods in the criminal case against him. On 26 August 2014 the Kentron and Nork-Marash District Court of Yerevan (“the District Court”) rejected the applicant’s complaints. Upon the applicant’s appeal on 13 October 2014 the Criminal Court of Appeal quashed the District Court’s decision in its entirety thereby annulling the investigator’s decision of 13 May 2014. On 27 March 2015 the Court of Cassation in the final instance upheld that decision. On 14 July 2015 the investigator instituted criminal proceedings on account of K.K.’s unlawful detention on 1 November 2007. When questioned on 31 July 2015, K.K. stated, inter alia , that the applicant had stayed with him upon E.N.’s order who, in his turn, received orders from T.A. On 1 September 2015 E.N. was questioned and denied having given any order to the applicant to deprive K.K. of liberty unlawfully. During his questioning held on the same date, the applicant submitted, inter alia , that he had stayed with K.K. upon T.A.’s and E.N.’s order and that he had not had any personal intention of keeping K.K. in his office. He further argued that he had executed his supervisors’ order. When questioned, T.A. denied that he had given any order either to E.N. or the applicant to deprive K.K. of liberty unlawfully. He further submitted that he was convinced that each operation carried out at the NSS headquarters was in accordance with law. Due to substantial contradictions between E.N.’s statements and those of the applicant, the investigator decided to hold a confrontation between them. At a confrontation on 5 September 2015 E.N. reiterated his earlier statements while the applicant submitted that K.K.’s apprehension had been carried out under E.N.’s supervision and that he had kept K.K. in his office upon T.A.’s and E.N.’s order. The applicant also submitted that he had refused to stay with K.K. in his office overnight due to his participation in a meeting organised at the Mayor’s office next morning. However, E.N. had insisted, stating that there was no other officer in their department who could stay with K.K. On the same date another confrontation was held between the applicant and T.A. during which T.A. reiterated his earlier statements. The applicant submitted that T.A. had not given him any direct order to keep K.K. in his office but that T.A. had told him to be careful during the night, which was perceived by the applicant as an order. On 19 October 2015 the applicant was charged with exceeding official powers under Article 309 § 1 of the Criminal Code. On 2 November 2015 the case file, including the finalised indictment, was sent to the Kentron and Nork-Marash District Court of Yerevan (the District Court) for examination on the merits. At the hearing of 25 January 2016 the applicant applied to have E.N. summoned so that he could be examined in court. It appears that the District Court dismissed his application. According to the applicant, the reason for this refusal was that the case was being examined merely in connection with the applicant’s accusation. On 17 March 2016 the District Court found the applicant guilty as charged. In convicting the applicant the District Court relied, inter alia , on K.K.’s and T.A.’s statements. The District Court did not make reference to E.N.’s pre-trial statements. No sentence was imposed on the applicant because of the expiry of the statutory limitation period. The applicant lodged an appeal arguing, inter alia , that the District Court had failed to examine E.N. On 24 September 2016 the Criminal Court of Appeal (“the Court of Appeal”) upheld the applicant’s conviction. As regards the examination of E.N., in the applicant’s submission, the Court of Appeal stated that it was not entitled to examine unlimited evidence and that a confrontation had already been held between him and E.N. during the investigation. The applicant lodged an appeal on points of law, raising arguments similar to those submitted in his previous appeal. On 8 February 2017 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. Relevant domestic law The Code of Criminal Procedure (in force since 1999)   According to Article 65 § 2 (12), the accused has the right to submit applications. According to Article 86 § 1, a witness is a person who has been called to testify by a party or the authority dealing with the criminal case and who may be aware of any circumstance related to the case which needs to be clarified. According to Article 102 §§ 2 and 3, applications and requests must be examined and ruled upon immediately after being filed. The decisions on applications and requests must be reasoned. According to Article 216 § 1 the investigator is entitled to carry out a confrontation of two persons who have been questioned previously and whose statements contain substantial contradictions. The investigator is obliged to carry out a confrontation if there are substantial contradictions between the statements of the accused and some other person. According to Article 331 §§ 1 and 2, in the preparatory stage of the trial the presiding judge shall inquire whether the prosecution and the defence want to file applications seeking to obtain new evidence and to include it in the case file. The court must examine each application filed and hear the parties. The court shall grant the application, if the circumstances which it seeks to disclose may be significant for the case. A decision refusing a motion must be reasoned. According to Article 392 § 1, upon completion of the examination of evidence, the presiding judge shall inquire of the parties whether they want to file applications seeking to complete the trial proceedings, and after the examination of those applications, proceed to the contentious phase. COMPLAINT The applicant complains under Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention that he was not given an opportunity to examine witness E.N. at his trial. QUESTION TO THE PARTIES Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, was the domestic courts’ refusal of the applicant’s request to examine witness E.N. at his trial in breach of his right to obtain the attendance and examination of witnesses on his behalf, as guaranteed under Article 6 § 3 (d) of the Convention (see Murtazaliyeva v. Russia [GC], no.   36658/05, §§ 139-168, 18 December 2018 ) ?