I correctly predicted that there was a violation of human rights in AFITSERYAN v. ARMENIA.

Information

  • Judgment date: 2022-06-21
  • Communication date: 2018-01-09
  • Application number(s): 28597/14
  • Country:   ARM
  • Relevant ECHR article(s): 5, 5-1
  • Conclusion:
    Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
  • Result: Violation
    • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.801362
  • Prediction: Violation

  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Mr Kamo Afitseryan, is an Armenian national who was born in 1972 and lives in Vanadzor.
He is represented before the Court by Mr K. Tumanyan, a lawyer practising in Vanadzor.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
On 25 April 2013 the applicant was arrested on suspicion of abusing his authority as an employee of a private bank and causing significant financial damage to the bank.
On 27 April 2013 the Lori Regional Court decided to detain the applicant, upon an application by the investigator in the case, for a period of two months calculated from the time of his arrest.
The Regional Court stated that there was a reasonable suspicion that the applicant had committed the imputed offence, which gave reason to believe that he might exert unlawful influence on witnesses and thereby obstruct the investigation if he was at large.
The applicant’s detention was twice extended for two months by the court on the same grounds, namely on 20 June and 15 August 2013.
On 22 October 2013 the Lori Regional Court decided to extend the applicant’s detention by one more month, until 25 November 2013.
No appeals were lodged against that decision.
On 29 October 2013 the applicant lodged an application for bail.
On 7 November 2013 the Lori Regional Court decided to allow the application and replaced detention with bail.
On 8 November 2013 the applicant paid the bail and was released from detention.
On 9 November 2013 the prosecutor lodged an appeal against the decision of 7 November 2013.
On 25 November 2013 the Criminal Court of Appeal allowed the appeal, quashing the decision of 7 November 2013 and at the same time endorsing the decision of 22 October 2013.
The Court of Appeal stated that the time spent by the applicant in detention – from 25 October to 8 November 2013 – was to be counted towards his overall detention period.
On 3 December 2013 the applicant was taken into custody and placed in detention on the basis of that decision.
In the meantime, the investigation into the applicant’s criminal case was completed and it was transferred to the Lori Regional Court for examination on the merits.
On 18 December 2013 the Court of Appeal informed the applicant, in reply to a request from him for clarification of its decision, that the ruling of 22 October 2013 had extended his detention period until 25 November 2013.
As he had been released from detention on 8 November 2013, he had to stay in detention for the part of the period of detention set by the decision of 22 October 2013 which he had not served.
On 20 December 2013 the Lori Regional Court decided to set the case down for trial, stating that the preventive measure imposed on the applicant, namely detention, was “to remain unchanged” since the reasons for it have not ceased to exist.
On 9 January 2014 the applicant lodged an appeal against that decision, which was left unexamined by the Court of Appeal on 29 January 2014 on the grounds that it was not amenable to appeal under domestic law.
B.
Relevant domestic law Article 134 of the Code of Criminal Procedure (CCP) provides that preventive measures are measures of compulsion which are imposed on a suspect or accused for the purposes of preventing inappropriate behaviour in the course of criminal proceedings and ensuring the enforcement of a judgment.
Preventive measures include detention and bail.
Bail is considered as an alternative to detention and can only be imposed if there has been a court decision on detention.
Article 136 § 2 of the CCP provides that detention and bail can only be imposed by a court decision upon an application from an investigator or prosecutor or of a court’s own motion during court proceedings.
Courts can also replace detention with bail upon an application from the defence.
Article 150 of the CCP provides that a court decision in pre-trial proceedings imposing or rejecting a preventive measure or extending or refusing to extend detention can be contested before an appeal court.
COMPLAINTS The applicant complains under Article 5 § 1 of the Convention that his detention between 3 and 20 December 2013 was neither prescribed by law nor based on a court decision as required by the domestic law.
The applicant complains under Article 5 § 1 (c) of the Convention that during the court proceedings he was kept in detention on the basis of the trial court’s decision of 20 December 2013 which contained no reasons whatsoever.

Judgment

FOURTH SECTION
CASE OF AFITSERYAN v. ARMENIA
(Application no. 28597/14)

JUDGMENT
STRASBOURG
21 June 2022

This judgment is final but it may be subject to editorial revision. In the case of Afitseryan v. Armenia,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Jolien Schukking, President, Armen Harutyunyan, Ana Maria Guerra Martins, judges,and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 28597/14) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 March 2014 by an Armenian national, Mr Kamo Afitseryan, born in 1972 and living in Vanadzor (“the applicant”) who was represented by Mr K. Tumanyan, a lawyer practising in Vanadzor;
the decision to give notice of the application to the Armenian Government (“the Government”), represented by their Agent, Mr Y. Kirakosyan, Representative of the Republic of Armenia on International Legal Matters;
the parties’ observations;
Having deliberated in private on 31 May 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the lawfulness of two periods of the applicant’s detention: (a) the period between 3 and 20 December 2013, and (b) the period during trial from 20 December 2013 until his conviction on 19 January 2015. It raises issues under Article 5 § 1 of the Convention. 2. The applicant was an accused in a criminal case. In April 2013 the Lori Regional Court ordered and later extended the applicant’s detention until October 2013. On 22 October 2013 the Regional Court extended his detention by another month, until 25 November 2013. No appeals were lodged against that decision. On 29 October 2013 the applicant applied for bail which was allowed by the Regional Court on 7 November 2013. On 8 November 2013 the applicant was released on bail. On 25 November 2013 the Criminal Court of Appeal quashed the decision of 7 November 2013 upon the prosecutor’s appeal and endorsed the decision of 22 October 2013. On 3 December 2013 the applicant was placed in detention as a result of that decision. In the meantime, the investigation into the his criminal case was completed and the case was transferred to the Regional Court for trial. On 18 December 2013 the Court of Appeal informed the applicant, in reply to a request for clarification of its decision, that the ruling of 22 October 2013 had extended his detention until 25 November 2013. Since he had been released from detention on 8 November 2013, he had to stay in detention for a period equivalent to the unserved part of the detention period fixed by the decision of 22 October 2013 (17 days). 3. On 20 December 2013 the Regional Court set the case down for trial, stating in its decision that the applicant’s detention was “to remain unchanged” since the reasons for it had not ceased to exist. The applicant lodged an appeal against that decision, which was left unexamined by the Court of Appeal on 29 January 2014 on the grounds that the decision was not amenable to appeal under domestic law. On 19 January 2015 the Regional Court found the applicant guilty as charged. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
4. The Government claimed that the applicant had failed to exhaust the domestic remedies in respect of both periods of detention, arguing that his appeals on points of law against the Court of Appeal’s decisions of 25 November 2013 and 29 January 2014 had been deficient. The Court notes, however, that it has already found that an appeal on points of law is not an effective remedy in detention cases (see Vardan Martirosyan v. Armenia, no. 13610/12, § 41, 15 June 2021, with further references). No new elements have been adduced in the present case to depart from that finding. The Government’s objection must therefore be dismissed. 5. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 6. The general principles concerning Article 5 § 1 have been summarised in Denis and Irvine v. Belgium ([GC], nos. 62819/17 and 63921/17, §§ 123‐33, 1 June 2021). 7. The Court notes that the applicant was released on bail by the Regional Court on 8 November 2013. However, on 25 November 2013 the Court of Appeal quashed that decision and endorsed an earlier decision of the Regional Court, taken on 22 October 2013, whereby the applicant’s detention had been extended until 25 November 2013. The applicant stayed in detention on the basis of the Court of Appeal’s decision from 3 to 20 December, when a new decision regarding his detention was taken by the trial court. The Court of Appeal justified the lawfulness of that period of detention by the fact that the applicant, having been released on 8 November 2013, had not served 17 days of detention (between 8 and 25 November 2013) as ordered by the decision of 22 October 2013 (see paragraph 2 above). 8. The Court observes, firstly, that the Government failed to adduce any domestic provision which authorised the Court of Appeal to endorse a decision of the first-instance court extending detention, which, moreover, had not been previously contested, when examining an appeal against the first‐instance court’s decision allowing bail. Indeed, domestic law did not envisage such a possibility. Thus, the applicant’s detention between 3 and 20 December was neither ordered in compliance with domestic law, nor based on a valid court order as required by domestic law. 9. Secondly, even assuming that the Court of Appeal had such an authority, the decision of 22 October 2013 explicitly authorised the applicant’s detention only until 25 November. Thus, it could not be regarded as a valid basis for the applicant’s detention during a later period, namely between 3 and 20 December 2013. The Court of Appeal justified its decision with the fact that 17 days of the one-month detention imposed by the Regional Court’s decision of 22 October 2013 had remained “unserved” by the applicant due to his release on bail on 8 November 2013. However, not only was such justification not based on any domestic provision, the approach and the formulations used by the Court of Appeal give the impression that it viewed detention not as a preventive measure but as something akin to a penalty which the applicant was to “serve”, which, in the Court’s opinion, negated the very essence of the right to liberty. It follows that that period of detention was not in compliance with domestic law, was not based on a valid court decision and was arbitrary. 10. There has accordingly been a violation of Article 5 § 1 of the Convention as regards the period between 3 and 20 December 2013. 11. The applicant also complained under Article 5 § 1 of the Convention about the period of his detention during trial. The Court notes that this complaint is covered by its well‐established case-law. 12. The Government argued, with reference to the case of Martirosyan v. Armenia (no. 23341/06, §§ 44-49, 5 February 2013), that the applicant had failed to exhaust the domestic remedies by not lodging any applications for release in the course of his detention during trial. However, the present case, as opposed to the case of Martirosyan which concerned the length of the applicant’s detention, concerns the lawfulness of a specific period of the applicant’s detention as authorised by the Regional Court’s decision of 20 December 2013, which provided the legal basis for the applicant’s continued detention during that entire period and was not amenable to appeal (see paragraph 3 above). Thus, there were no domestic remedies to exhaust against that decision and the Government’s objection must be dismissed. 13. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. Having examined all the material before it, the Court concludes that it discloses a violation of Article 5 § 1 of the Convention in the light of its findings in the judgment of Vardan Martirosyan (cited above, §§ 46-50). 14. There has accordingly been a violation of Article 5 § 1 of the Convention as regards the period from 20 December 2013 to 19 January 2015. APPLICATION OF ARTICLE 41 OF THE CONVENTION
15. The applicant claimed 1,400 euros (EUR) in respect of pecuniary damage, EUR 21,000 in respect of non-pecuniary damage and 1,200,000 Armenian drams in respect of costs and expenses incurred before the Court. 16. The Government claimed that the applicant’s pecuniary claims were unsubstantiated, while his non-pecuniary claims were exaggerated. He also failed to submit sufficient information about the work done by his lawyer, namely the number of hours and the hourly rate. 17. The Court notes that the applicant has failed to substantiate his claim for pecuniary damage with any evidence; it therefore rejects this claim. However, it awards the applicant EUR 6,600 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant. 18. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,500 for the proceedings before the Court, plus any tax that may be chargeable to the applicant. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 6,600 (six thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 21 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Ilse Freiwirth Jolien Schukking Deputy Registrar President

FOURTH SECTION
CASE OF AFITSERYAN v. ARMENIA
(Application no. 28597/14)

JUDGMENT
STRASBOURG
21 June 2022

This judgment is final but it may be subject to editorial revision. In the case of Afitseryan v. Armenia,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Jolien Schukking, President, Armen Harutyunyan, Ana Maria Guerra Martins, judges,and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 28597/14) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 March 2014 by an Armenian national, Mr Kamo Afitseryan, born in 1972 and living in Vanadzor (“the applicant”) who was represented by Mr K. Tumanyan, a lawyer practising in Vanadzor;
the decision to give notice of the application to the Armenian Government (“the Government”), represented by their Agent, Mr Y. Kirakosyan, Representative of the Republic of Armenia on International Legal Matters;
the parties’ observations;
Having deliberated in private on 31 May 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the lawfulness of two periods of the applicant’s detention: (a) the period between 3 and 20 December 2013, and (b) the period during trial from 20 December 2013 until his conviction on 19 January 2015. It raises issues under Article 5 § 1 of the Convention. 2. The applicant was an accused in a criminal case. In April 2013 the Lori Regional Court ordered and later extended the applicant’s detention until October 2013. On 22 October 2013 the Regional Court extended his detention by another month, until 25 November 2013. No appeals were lodged against that decision. On 29 October 2013 the applicant applied for bail which was allowed by the Regional Court on 7 November 2013. On 8 November 2013 the applicant was released on bail. On 25 November 2013 the Criminal Court of Appeal quashed the decision of 7 November 2013 upon the prosecutor’s appeal and endorsed the decision of 22 October 2013. On 3 December 2013 the applicant was placed in detention as a result of that decision. In the meantime, the investigation into the his criminal case was completed and the case was transferred to the Regional Court for trial. On 18 December 2013 the Court of Appeal informed the applicant, in reply to a request for clarification of its decision, that the ruling of 22 October 2013 had extended his detention until 25 November 2013. Since he had been released from detention on 8 November 2013, he had to stay in detention for a period equivalent to the unserved part of the detention period fixed by the decision of 22 October 2013 (17 days). 3. On 20 December 2013 the Regional Court set the case down for trial, stating in its decision that the applicant’s detention was “to remain unchanged” since the reasons for it had not ceased to exist. The applicant lodged an appeal against that decision, which was left unexamined by the Court of Appeal on 29 January 2014 on the grounds that the decision was not amenable to appeal under domestic law. On 19 January 2015 the Regional Court found the applicant guilty as charged. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
4. The Government claimed that the applicant had failed to exhaust the domestic remedies in respect of both periods of detention, arguing that his appeals on points of law against the Court of Appeal’s decisions of 25 November 2013 and 29 January 2014 had been deficient. The Court notes, however, that it has already found that an appeal on points of law is not an effective remedy in detention cases (see Vardan Martirosyan v. Armenia, no. 13610/12, § 41, 15 June 2021, with further references). No new elements have been adduced in the present case to depart from that finding. The Government’s objection must therefore be dismissed. 5. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 6. The general principles concerning Article 5 § 1 have been summarised in Denis and Irvine v. Belgium ([GC], nos. 62819/17 and 63921/17, §§ 123‐33, 1 June 2021). 7. The Court notes that the applicant was released on bail by the Regional Court on 8 November 2013. However, on 25 November 2013 the Court of Appeal quashed that decision and endorsed an earlier decision of the Regional Court, taken on 22 October 2013, whereby the applicant’s detention had been extended until 25 November 2013. The applicant stayed in detention on the basis of the Court of Appeal’s decision from 3 to 20 December, when a new decision regarding his detention was taken by the trial court. The Court of Appeal justified the lawfulness of that period of detention by the fact that the applicant, having been released on 8 November 2013, had not served 17 days of detention (between 8 and 25 November 2013) as ordered by the decision of 22 October 2013 (see paragraph 2 above). 8. The Court observes, firstly, that the Government failed to adduce any domestic provision which authorised the Court of Appeal to endorse a decision of the first-instance court extending detention, which, moreover, had not been previously contested, when examining an appeal against the first‐instance court’s decision allowing bail. Indeed, domestic law did not envisage such a possibility. Thus, the applicant’s detention between 3 and 20 December was neither ordered in compliance with domestic law, nor based on a valid court order as required by domestic law. 9. Secondly, even assuming that the Court of Appeal had such an authority, the decision of 22 October 2013 explicitly authorised the applicant’s detention only until 25 November. Thus, it could not be regarded as a valid basis for the applicant’s detention during a later period, namely between 3 and 20 December 2013. The Court of Appeal justified its decision with the fact that 17 days of the one-month detention imposed by the Regional Court’s decision of 22 October 2013 had remained “unserved” by the applicant due to his release on bail on 8 November 2013. However, not only was such justification not based on any domestic provision, the approach and the formulations used by the Court of Appeal give the impression that it viewed detention not as a preventive measure but as something akin to a penalty which the applicant was to “serve”, which, in the Court’s opinion, negated the very essence of the right to liberty. It follows that that period of detention was not in compliance with domestic law, was not based on a valid court decision and was arbitrary. 10. There has accordingly been a violation of Article 5 § 1 of the Convention as regards the period between 3 and 20 December 2013. 11. The applicant also complained under Article 5 § 1 of the Convention about the period of his detention during trial. The Court notes that this complaint is covered by its well‐established case-law. 12. The Government argued, with reference to the case of Martirosyan v. Armenia (no. 23341/06, §§ 44-49, 5 February 2013), that the applicant had failed to exhaust the domestic remedies by not lodging any applications for release in the course of his detention during trial. However, the present case, as opposed to the case of Martirosyan which concerned the length of the applicant’s detention, concerns the lawfulness of a specific period of the applicant’s detention as authorised by the Regional Court’s decision of 20 December 2013, which provided the legal basis for the applicant’s continued detention during that entire period and was not amenable to appeal (see paragraph 3 above). Thus, there were no domestic remedies to exhaust against that decision and the Government’s objection must be dismissed. 13. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. Having examined all the material before it, the Court concludes that it discloses a violation of Article 5 § 1 of the Convention in the light of its findings in the judgment of Vardan Martirosyan (cited above, §§ 46-50). 14. There has accordingly been a violation of Article 5 § 1 of the Convention as regards the period from 20 December 2013 to 19 January 2015. APPLICATION OF ARTICLE 41 OF THE CONVENTION
15. The applicant claimed 1,400 euros (EUR) in respect of pecuniary damage, EUR 21,000 in respect of non-pecuniary damage and 1,200,000 Armenian drams in respect of costs and expenses incurred before the Court. 16. The Government claimed that the applicant’s pecuniary claims were unsubstantiated, while his non-pecuniary claims were exaggerated. He also failed to submit sufficient information about the work done by his lawyer, namely the number of hours and the hourly rate. 17. The Court notes that the applicant has failed to substantiate his claim for pecuniary damage with any evidence; it therefore rejects this claim. However, it awards the applicant EUR 6,600 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant. 18. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,500 for the proceedings before the Court, plus any tax that may be chargeable to the applicant. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 6,600 (six thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 21 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Ilse Freiwirth Jolien Schukking Deputy Registrar President