CEDH · CASELAW;COMMUNICATEDCASES;ENG — 4 avril 2024

.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 } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s6B505E72 { margin:0pt; padding-left:0pt } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .s3CA22BA { font-family:Arial; text-transform:uppercase } Published on 22 April 2024   FOURTH SECTION Application no. 28350/18 Artak MATSAKYAN against Armenia lodged on 15 May 2018 communicated on 4 April 2024 STATEMENT OF FACTS 1.     The applicant, Mr Artak Matsakyan, is an Armenian national who was born in 1986 and is detained in Hrazdan. He is represented before the Court by Ms   G.   Grigoryan, a lawyer practising in Yerevan. 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     On 13   March 2017 the applicant was arrested on suspicion of large-scale theft. His detention was ordered by a court more than 72 hours after he was taken into custody. The applicant complained that this was not in line with domestic law before the Kotayk Regional Court (which ordered his detention) and before the Criminal Court of Appeal (“the Court of Appeal”), but to no avail. In particular, it appears that by a decision of 13   April 2017, the Court of Appeal refused to examine this issue. 4.     The applicant lodged an appeal on points of law. It appears that he contested, inter alia , the lawfulness of his deprivation of liberty in excess of 72 hours, as well as his detention. 5.     By a decision of 15 November 2017, the Court of Cassation decided that, for the uniform application of the law, it should express a legal position in respect of the first issue, namely the judicial review of lawfulness of arrest. The Court of Cassation found, inter alia , that where a person deprived of liberty raised for the first time the issue of lawfulness of his or her arrest before a court, or the latter of its own motion unveiled a breach of the arrestee’s procedural rights during his or her deprivation of liberty, that court should examine the lawfulness of the arrestee’s deprivation of liberty. If a violation was found, the court should order the arrestee’s release as well as, in accordance with the legal position expressed by the Court of Cassation in its decision no. EADD/0085/06/09 (see paragraph 17 below), acknowledge the breach of deprivation of liberty in excess of the maximum period, make an additional decision drawing the attention of the relevant state officials to serious violations revealed during the court examination which took place at the pre ‑ trial stage, or, in the event of an obvious and gross violation, apply to the prosecutor to initiate a criminal case and explain the procedure for lodging a compensation claim for unlawful arrest. Applying these principles to the applicant’s case, the Court of Cassation essentially found that the applicant’s arrest in excess of 72 hours had been in breach of the domestic law and had thus violated his right to liberty. It nevertheless found that the applicant’s detention ordered by the first-instance court had been lawful – there was a reasonable suspicion of his having committed an offence and the reasons relied on by the lower instances to order his detention were relevant and sufficient. Consequently, the Court of Cassation acknowledged a violation of the applicant’s right to liberty as regards his arrest in excess of 72 hours, issued an additional decision drawing the attention of the relevant authority to the breach of the applicant’s rights with a view to preventing similar violations, and noted that the applicant could seek compensation for the breach of his rights through civil procedure. It nevertheless rejected the applicant’s appeal on the grounds that his two ‑ month detention had been lawful. 6.     On 6   May 2017 the first-instance court extended the applicant’s detention for another two months until 13 July 2017. The applicant appealed against this decision. 7.     On 29   May 2017 the Court of Appeal held a hearing in the applicant’s and his lawyer’s absence and dismissed his appeal. 8.     The applicant lodged an appeal on points of law. It appears that he complained, inter alia , that his lawyer had not been properly notified of the hearing of 29   May 2017. 9.     By a separate decision of 15 November 2017, the Court of Cassation found that the Court of Appeal had breached the applicant’s procedural rights, namely the right to a fair trial, and thus the domestic law because it had failed properly to notify the applicant’s representative of the day of the court hearing. The Court of Cassation, however, rejected the applicant’s appeal seeking his release on the grounds that his two-month detention, as upheld by the Court of Appeal, had already expired. RELEVANT LEGAL FRAMEWORK AND PRACTICE CODE OF CRIMINAL PROCEDURE (“the CCP”; as in force at the relevant time) 10.     Article   129 § 2 of the CCP provides that an arrest on immediate suspicion of having committed an offence may not exceed   72 hours   from the moment of taking into custody. 11.     Article   132 § 1 provides that an arrested person must be released upon a decision of the authority conducting the criminal proceedings if, inter alia , the maximum time ‑ limit for an arrest prescribed by the CCP has expired and the court has not adopted a decision to detain the accused. 12.     Article   288 § 3 provides that the judicial review of detention before the Court of Appeal takes place in a closed hearing, in the presence of the prosecutor and the defence lawyer. 13.     Article   390 § 2, concerning the procedure before the Court of Appeal, provides that the parties are notified of the place and the date of the hearing. 14.     Article   403 provides that the Court of Cassation reviews decisions of the Court of Appeal determining a case on the merits and those not determining a case on the merits, as well as decisions of the Court of Appeal taken following a review of decisions of the first-instance court not determining a case on the merits. 15.     Article   406 provides that an appeal on points of law may be lodged on grounds of a judicial error, namely a violation of procedural or substantive law which has, or may have, affected the outcome of the case, or in the event of new or newly-emerged circumstances. 16.     Article   414.2 § 1 provides that an appeal on points of law is admissible for examination if: (i) the decision of the Court of Cassation on the issues raised in the appeal may be important for the uniform application of the law; (ii) the Court of Appeal has made a prima facie judicial error which may have, or has had, serious consequences; or (iii) there is a new or newly-emerged circumstance. DECISION OF THE COURT OF CASSATION NO. EADD/0085/06/09 of 18 DECEMBER 2009 17 .     In the decision at issue, the Court of Cassation, inter alia , found that in each case where the court, while considering an application for imposing detention, found a breach of the procedure for arrest, it should undertake the relevant measures under the law. In the event of arrest exceeding a 72-hour maximum period, those measures should be: (a) acknowledgement of the breach of arrest in excess of 72 hours; (b) adoption of an additional decision drawing the attention of the relevant state officials to serious violations revealed during the court examination, which took place at the pre-trial stage, or in the event of an obvious and gross violation, application to the prosecutor to initiate a criminal case; and (c) clarification of the procedure to obtain compensation in respect of non-pecuniary damage for unlawful arrest by applying to the first-instance court of general jurisdiction. COMPLAINTS 18.     The applicant essentially complains under Article 5 §§ 1 and 4 of the Convention of his deprivation of liberty in excess of the 72-hour maximum period allowed by law and his representative’s absence from the appeal court hearing of 29   May 2017. QUESTIONS TO THE PARTIES 1.     Has the applicant complied with the six-month time-limit laid down in Article   35 §   1 of the Convention in respect of his complaints under Article   5 §§ 1 and 4 of the Convention? In particular, were the proceedings instituted by the applicant before the Court of Cassation an effective remedy within the meaning of Article 35 §   1 of the Convention in respect of his complaints under Article 5 §§ 1 and 4 of the Convention (see Arzumanyan v.   Armenia , no. 25935/08, §§ 31-32, 11   January 2018; Ghavalyan v.   Armenia , no.   50423/08, §§ 101-102, 22 October 2020; and Vardan Martirosyan v.   Armenia , no. 13610/12, § 41, 15   June 2021)? Assuming that the proceedings before the Court of Cassation were an effective remedy, can the applicant still claim to be a victim of a violation of Article   5 §§   1 and 4 of the Convention, within the meaning of Article   34 of the Convention, taking into account the findings of the Court of Cassation? 2.     Has there been a violation of Article 5 § 1 of the Convention as a result of the applicant’s arrest exceeding the 72-hour maximum period allowed by law? 3.     Was the hearing of 29 May 2017 before the Criminal Court of Appeal conducted in an adversarial manner and with respect to the principle of equality of arms, as required by Article 5 § 4 of the Convention, given the applicant’s lawyer’s absence from that hearing (see   Şandru v.   Romania , no.   33882/05, §§ 44 and 46, 15 October 2013, and Vardan Martirosyan , cited above, §   91)? The parties are requested to submit the applicant’s appeals on points of law lodged with the Court of Cassation.