CEDH · CASELAW;COMMUNICATEDCASES;ENG — 15 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 6 May 2024   FOURTH SECTION Application no. 30509/22 Arpine MAYSURYAN against Armenia lodged on 14 June 2022 communicated on 15 April 2024 STATEMENT OF FACTS The applicant, Ms Arpine Maysuryan, is an Armenian national, who was born in 1983 and lives in Yerevan. She is represented before the Court by Mr   G. Martirosyan, a lawyer practising in Yerevan. The facts of the case, as submitted by the applicant, may be summarised as follows. On 29 October 2012 criminal proceedings were instituted under Article   178 § 3 (1) (fraud on a particularly large scale) of the Criminal Code (“the CC”) on the basis of a crime report filed by a private person, Z.P., who alleged that she had signed a contract for the sale of her flat and a loan agreement with the applicant and A.H., another private person, on the condition that they would pay the price of the flat on a later date. However, they had not paid the price of the flat in the amount of 35,000 United States dollars as agreed and had not returned the registration of the flat back into her name. On 13 November 2012 Z․P․ was recognised as a victim in the criminal proceedings. On 12 August 2013 the applicant was arrested. Two days later she was charged under Article 178 § 3 (1) of the CC and was detained by a decision of the Kentron and Nork-Marash District Court of Yerevan (“the District Court”). On 20 August 2013 the investigator decided to bring charges under the same Article against A.H. and, since his whereabouts were unknown, place him on the wanted list. On 10 September 2013 the applicant was released on bail. On 11 February 2014 the investigator decided to separate the proceedings in respect of A.H. from the investigation in respect of the applicant. On 24 February 2014 the bill of indictment was drawn up and was subsequently sent to the prosecutor who, on 3 March 2014, decided not to approve it. Consequently, the criminal case was returned to the investigator for further investigation. On 30 October 2014 the charges brought against the applicant were amended and new charges were brought against her under Articles   178 §   3   (1), 325 §   1 (forgery) and 349 §   1 (falsification of evidence) of the CC in connection with the allegedly fraudulent acquisition of Z.P.’s flat and the falsification of documents attesting to the payment of the full price of the flat, in conspiracy with A.H. On 2 December 2014 the case was sent to the District Court for examination on the merits and was set for trial by the District Court’s decision of 16 December 2014. On the same date Z․P․ died․ Ten days later, her daughter was recognised as Z․P․’s legal heir in the proceedings. On 27 January 2017 the District Court found the applicant guilty under Articles   325 §   1 and 349 §   1 of the CC but exempted her from criminal responsibility on account of the expiry of the statute of limitation. It also found the applicant guilty under Article   178 §   3   (1) of the CC and sentenced her to five years’ imprisonment. The applicant and her defence counsel lodged appeals against the judgment, which were admitted for examination by the Criminal Court of Appeal on 10 March 2017. On 27 December 2018 the Criminal Court of Appeal decided to quash the judgment of the District Court and acquit the applicant on all charges. On 17 April 2019 the Deputy Prosecutor General appealed against the decision. On 14 June 2019 the Court of Cassation admitted the appeal for examination. On 25 May 2020 the Court of Cassation adopted its decision on the merits, finding the applicant guilty. It concluded that the Criminal Court of Appeal had failed to conduct a proper assessment of the evidence. As for the punishment imposed on the applicant, the Court of Cassation, taking into account, inter alia, the length of the proceedings, decided that the minimum punishment of four years’ imprisonment, should be imposed on the applicant under Article   178 §   3   (1) of the CC. At the same time, it exempted the applicant from criminal liability by application of an Amnesty Act. According to the applicant, the operative part of the Court of Cassation’s decision was pronounced on the date when it was adopted. The full text of the decision was sent to the applicant on 11 February 2022 and was received by her on 19 February 2022. RELEVANT LEGAL FRAMEWORK Criminal Code (2003-2022) Article 178 § 3 (1) of the Criminal Code provided that fraud, that is the embezzlement or acquisition of rights in respect of a particularly large amount of somebody else’s property through deception or abuse of trust shall be punishable by imprisonment for a period between four and eight years with or without confiscation of property. Civil Code (1999) Օn 1 November 2014 the Civil Code was supplemented by new Articles   162.1 and 1087.2, which introduced the possibility of claiming compensation for non-pecuniary damage from the State for a violation of the rights guaranteed by Articles 2, 3 and 5 of the Convention. On 1 January 2016 these provisions were further amended by expanding the list of rights. Article 162.1 § 2, as in force at the relevant time, provided that a person has the right to claim compensation for non-pecuniary damage if it has been established by a prosecuting authority or a court that, as a result of a decision, action or omission of a State or local governance body or one of its officials, his or her fundamental rights guaranteed by the Constitution and the Convention, including, inter alia , the right to a fair trial, have been violated. Article   1087.2   §§ 3 and 4 provide that non-pecuniary damage suffered as a result of a violation of fundamental rights may be compensated regardless of whether there is any fault on the part of a State official. Non-pecuniary damage is compensated from the State budget. If the fundamental right mentioned in Article 162.1 has been violated by a local governance body or one of its officials, non-pecuniary damage is compensated from the relevant local budget. Article   1087.2   §§ 5 and 6 provide that the amount of compensation for non-pecuniary damage is decided by a court in accordance with the principles of reasonableness, equitableness and proportionality. When determining the amount of compensation for non-pecuniary damage, the court takes into account the nature, degree and duration of physical or mental suffering, the consequences of the damage caused, the presence of guilt in causing the damage, the personal characteristics of the person who suffered non-pecuniary damage, as well as other relevant circumstances. Under Article 1087.2   §§   7   (2) and 8, the amount of compensation for non ‑ pecuniary damage suffered as a result of the violation of a person’s right to a fair trial cannot exceed two thousand times the minimum wage (two thousand times the minimum wage being approximately EUR 3,700 at the relevant time). The amount of compensation for non-pecuniary damage may, in exceptional cases, exceed that limit if the damage has led to serious consequences. By the Constitutional Court decision of 3 March 2020, the phrase “in exceptional cases” in Article 1087.2 was declared unconstitutional and invalid. Under Article 1087.2   § 9, which was further amended on 9 January 2017, a claim for compensation for non ‑ pecuniary damage may be submitted to a court together with a claim seeking to establish a breach of the rights set out in Article 162.1, within one year from the moment the person became aware of the breach or from the date on which a judicial decision establishing the breach of the right in question entered into force. COMPLAINTS The applicant complains under Article 6 § 1 of the Convention of the excessive length of the criminal proceedings. The applicant also complains under Article 13 of the Convention that there is no mechanism in Armenian law for complaining about the length of judicial proceedings. QUESTIONS TO THE PARTIES 1.   Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention (see Grigoryan v. Armenia , no. 3627/06, §§ 126-127, 10 July 2012)?   2.   Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 6 § 1 concerning the length of the proceedings, as required by Article 13 of the Convention (see, among other authorities, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 182-189)?   In the affirmative, has the applicant exhausted such remedies?   The Government are requested to support their arguments with examples of domestic judicial practice.