CEDH · CASELAW;COMMUNICATEDCASES;ENG — 24 juin 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 } .s127E6952 { margin-top:66pt; margin-bottom:14pt; text-indent:14.2pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } Published on 15 July 2024   FOURTH SECTION Application no. 18350/18 Semyon YEDIGARYAN against Armenia lodged on 5 April 2018 communicated on 24 June 2024 SUBJECT MATTER OF THE CASE The applicant was convicted of robbing and killing (together with his associates) a sales manager of a diamond trading company in the United Arab Emirates (“the UAE”). On 23 January 2014 the applicant, together with his two associates, was arrested in Yerevan pursuant to an international search warrant issued by the UAE authorities. The request on the applicant’s extradition was rejected since he had Armenian citizenship and, upon the request of the UAE authorities, the applicant was prosecuted in accordance with the Armenian Code of Criminal Procedure (“the CCP”). The indictment against the applicant was based for the most part on the evidence gathered in the UAE and transmitted to Armenia on a USB drive, including, among other things, the following: - the witness statement of M.A.I. (its English translation provided to the Armenian authorities) who had been questioned by the UAE police, according to which he had delivered coffee to the victim’s office and had seen the applicant and H.M. (who was one of the applicant’s co-accused in the proceedings) examining diamonds not long before the imputed crime. - Records of two identification parades according to which the witness had identified the applicant and H.M. by their photos. It appears from the two records in question (their English translations provided to the Armenian authorities) that during the identification parade held on 18 February 2014 the witness had stated with hesitation that he had seen precisely the applicant and H.M.. The next day a second identification parade was held when the witness was shown other photos (presumably extracted from video surveillance recordings) during which he had confirmed having had seen the applicant and H.M. - The results of the forensic fingerprint examination (carried out in the UAE) of the applicant’s fingerprints, which had apparently been taken upon his entry into the detention centre and provided to the UAE authorities by the Armenian authorities, which had established that some fingerprints discovered at the crime scene had belonged to the applicant. - The results of the forensic DNA test (apparently also carried out in the UAE) which had shown that the applicant’s blood sample was matching with the blood traces found at the crime scene. - The copies of closed-circuit television (“CCTV”) recordings of the buildings surrounding the victim’s office showing two men (who were identified as the applicant and H.M. during the investigation) entering the diamond trading company’s office and leaving it. During the trial the applicant requested to be provided with the fingerprints found at the crime scene, as well as the digital video recorder (“the DVR”) device and the adhesive tape (used for suffocating the victim) found at the crime scene on which fingerprints had been discovered. It appears that this request was forwarded to the UAE authorities which responded through Interpol that the available evidence, including the photos of the fingerprints and of other evidence found at the crime scene as well as the results of the forensic examinations had been already transmitted to Armenia while the fingerprints were being kept by the Dubai police. As for the DVR device, it had not been connected to any camera and had not recorded anything on the day of the crime. They also informed that the witnesses, with the exception of one (not M.A.I.), had refused to testify before the trial court. The applicant also requested the trial court to order a forensic audio-visual examination of the CCTV recordings in order to clarify whether the interruptions in the recordings had resulted from editing and, if so, whether the deleted parts contained the images of other persons; also whether the images of persons appearing in the available recordings could be matched with the faces of the accused. The trial court rejected that request on the grounds that such an examination could only be conducted on the basis of the original recordings which had not been provided to the Armenian authorities. The court stated that in any event there was other evidence showing the applicant’s presence in the victim’s office. The applicant objected against the use against him of the evidence gathered in the UAE. In particular, as regards the identification parade, he claimed that it had been carried out in breach of Article 221 § 1 of the CCP in force at the material time, according to which, prior to the identification parade the investigator would ask the witness about the appearance and features of the person to be identified whereas M.A.I. had not described the applicant’s features by which he would recognise him. Furthermore, prior to the identification parade M.A.I. had stated that he had not focused on the faces of the persons in the victim’s office and he was not sure whether he would recognise them. As for the forensic fingerprint examination, the applicant claimed that it also had been carried out in breach of the requirements of domestic law. Thus, according to Article 253 of the CCP in force at the material time, the investigator had to make a reasoned decision in order to take samples from a person for examination. That procedure was to be done in the presence of an expert or a specialist and the taken samples had to be packed and stamped. His fingerprints had not been taken according to that procedure. Instead, some fingerprints had been sent to the UAE authorities from the detention centre and he could not be sure whose fingerprints had actually been sent. On 26 January 2017 the trial court convicted the applicant mainly on the basis of the evidence described above, including the results of forensic fingerprint and DNA examinations, the (edited) CCTV recordings, the witness statement of M.A.I. and the records of both identification parades, as well as the evidence against H.M. (the diamonds and adhesive tape found in his bag at the airport upon his arrival to Armenia, his driver’s licence found at the crime scene, his initial confession to the Armenian authorities to have committed the imputed crime on his own which he later retracted and so on). As to the argument that the applicant’s fingerprints had been obtained in an unlawful manner, the trial court found that, although the given evidence had been taken in breach of the CCP requirements, it was not the sole and decisive evidence against the applicant. As for the use of the statements of absent witnesses, including of M.A.I., and the records of the identification parades, it stated that, although the right to confrontation had not been secured, the given witness statements were not the sole and decisive evidence against the applicant in that his guilt had sufficiently been proven by the evidence produced by the prosecution. The applicant appealed arguing inter alia that the evidence gathered from the crime scene, namely the fingerprints, traces of blood, the DVR device and the adhesive tape, as well as the original (unedited) CCTV recordings had not been examined during the trial thereby depriving the defence of the possibility to challenge that evidence. He also complained of the failure to secure the appearance of the witnesses, who had testified against him. On 28 July 2017 the Criminal Court of Appeal rejected the applicant’s appeal endorsing the trial court’s reasoning in full. The applicant’s appeal on points of law was declared inadmissible for lack of merit by the Court of Cassation on 27 September 2017 (decision served on 5 October 2017). The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention of the overall fairness of the proceedings and the lack of an opportunity to examine the witness M.A.I., whose statement had carried a decisive weight in his conviction, at any stage of the proceedings. QUESTIONS 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 and 3 (d) of the Convention? In particular:   (a)     Did the applicant have a reasonable opportunity to challenge the authenticity of the evidence on which his conviction was based, including the results of the forensic DNA and fingerprint examinations and the video surveillance recordings obtained through CCTV, and to oppose its use (see Laska and Lika v. Albania , nos. 12315/04 and 17605/04, §§ 57-72, 20 April 2010; Horvatić v. Croatia , no. 36044/09, §§ 76-87, 17 October 2013; and Budak v. Turkey , no. 69762/12, §§ 68-91, 16 February 2021)?   (b)     Were the applicant’s rights guaranteed by Article 6 §§ 1 and 3 (d) of the Convention breached due to fact that he was not able to obtain the attendance and examination of witness M.A.I. at his trial (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-31, ECHR 2015)?   The Government are invited to submit the following: (a) a copy of the record of the examination of the crime scene, (b) information regarding the relevant UAE legislation on taking evidence, in particular from the crime scene, (c) a copy of the record on collection of the applicant’s blood samples for the purpose of a forensic DNA examination and a copy of the ensuing forensic expert report.