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

Information

  • Judgment date: 2021-12-21
  • Communication date: 2018-03-23
  • Application number(s): 69931/10
  • Country:   ARM
  • Relevant ECHR article(s): 6, 6-1, 8, 8-1
  • Conclusion:
    Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings
    Article 6-1 - Public hearing)
  • Result: Violation
  • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.659774
  • 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 Gevorg Hayrapetyan, is an Armenian national who was born in 1963 and lives in Yerevan.
He is represented before the Court by Mr W. Bowring and Ms S. Safaryan, lawyers practising in London and Yerevan.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
On 3 September 2009 the applicant was arrested on suspicion of drugs smuggling by an organised group and possession of firearms and was placed in custody in the detention facility of the National Security Service (NSS).
As a result of a search of the applicant’s apartment on 4 September 2009, the investigation found various types of weapons and ammunition, personal notes, compact discs, military maps and military registry books.
Some of those materials apparently contained classified information on various military operations, military orders and their execution, military shifts and equipment and other information of military significance.
On 7 September 2009 the NSS investigator issued a decision prohibiting visits and telephone calls to the applicant at the detention facility.
The investigator reasoned that this measure was justified by the nature and the seriousness of the charges and relied on Article 17 of the Law on Detention Conditions for Arrested and Detained Persons.
On 22 October 2009, on the basis of insufficiency of evidence, the investigator discontinued the criminal prosecution against the applicant under the charge of drugs smuggling.
On the same date the applicant was charged with state treason, for spying for the special services of Azerbaijan, as well as for illegal possession of firearms.
In January 2010 the Avan and Nor-Nork District Court of Yerevan commenced the applicant’s trial.
It appears that on the basis of an application by the prosecutor, the District Court decided to conduct the trial in camera on the ground that the materials of the criminal case contained state secrets and that examination of those materials at public hearings would result in their disclosure.
On an unspecified date at the commencement of the trial, the applicant submitted before the District Court that some of the materials of the criminal case were illegible, namely his pre-trial testimony and witness statements, as they had been handwritten by the investigator.
The District Court ordered the prosecution to produce those materials in legible form.
The prosecution submitted typewritten documents allegedly reproducing the original handwritten materials.
The applicant submitted that those typewritten documents misrepresented his pre-trial statements with regard to key facts relied upon by the prosecution.
It appears that the applicant filed an application with the District Court seeking to order forensic examination of the handwritten materials concerned, in order to reveal their content and verify their compatibility with the typewritten reproductions.
That application was apparently refused.
On an unspecified date, the applicant filed an application with the District Court seeking to rescind the restrictions imposed by the decision of 7 September 2009.
He argued that the District Court had failed to examine the necessity of such restrictions at the commencement of the trial, and referred to his rights under Article 8 of the Convention.
On 15 March 2010 the District Court rejected the request on rescinding the restrictions on the applicant’s communication with the outside world.
The District Court noted that the necessity for such limitation existed during the investigation and persisted during the trial.
The District Court reasoned that lifting the prohibitions imposed on the applicant would significantly undermine its ability to conduct comprehensive, complete and objective examination of the case due to the nature and gravity of the charges, while such limitations did not affect the applicant’s rights of defence and the adversarial nature of the proceedings.
On 30 March 2010 the applicant filed an application with the District Court seeking to declare certain handwritten evidence held in the criminal case, including pre-trial statements by the applicant and witnesses, inadmissible and exclude it from the evidence.
The application was refused.
On 22 April 2010 the applicant filed an application with the District Court seeking to quash the investigator’s decision of 7 September 2009, reasoning that visits to him at the detention facility would contribute to maintaining family ties and strengthen his psychological health.
On 13 May 2010 the District Court partly granted the applicant’s application as regards the prohibition on visits, but maintained the prohibition on telephone calls.
On 24 June 2010 the applicant filed an application with the District Court seeking to hold the hearings in public, reasoning that the evidence containing state secrets had already been examined and, therefore, there were no reasons to continue the proceedings in camera.
The District Court, however, continued the trial in camera.
On 18 October 2010 the applicant filed an application with the District Court seeking to rescind the restriction on his telephone calls at the detention facility, reasoning that such communication could contribute to the improvement of his mental and physical health.
On 25 October 2010 the District Court found the applicant guilty and sentenced him to 12 years’ imprisonment.
The District Court relied on witness statements, intercepted the applicant’s communications and various pieces of real evidence, such as photographs of military positions, military maps, books, equipment and other materials of a military nature with an indication “top secret”.
As regards the handwritten materials of the criminal case indicated by the applicant as illegible, the District Court concluded that his rights had not been breached as he had been interrogated in the presence of his lawyer, the materials of the criminal case had been disclosed to him and to his lawyer, and none of them had made a declaration about the illegibility of those materials at that stage.
On the same date the District Court also lifted the prohibition on the applicant’s telephone calls.
On 24 November 2010 the applicant lodged an appeal.
The applicant argued, inter alia, that the lack of publicity of the trial proceedings breached his rights under Article 6 of the Convention.
He argued that some of the materials of the case did not contain state secrets, while some video materials allegedly containing such secrets had already been broadcast by the media during the trial proceedings.
He also argued that the use of illegible handwritten materials of the criminal case had breached his right to a fair trial.
On 21 April 2011 the Criminal Court of Appeal, sitting in camera, rejected the applicant’s appeal.
As regards the applicant’s arguments on the lack of public hearing, the Criminal Court of Appeal noted that in camera proceedings were justified under the domestic law and Article 6 of the Convention, as the charges against the applicant related to state secrets.
As regards the applicant’s arguments on the illegibility of the handwritten materials, the Criminal Court of Appeal held that these records were not entirely illegible, but admitted that some parts of the records were legible with difficulty.
It noted that the applicant’s defence rights had, nevertheless, not been breached, as during the investigation the applicant had been questioned in the presence of his lawyer and the materials of the criminal case had been disclosed to him and his lawyer, while he had failed to file an application with regard to the illegibility of the investigator’s handwriting.
The applicant lodged an appeal on points of law, which the Court of Cassation declared inadmissible on 22 June 2011 for lack of merit.
B.
Relevant domestic law Section 13 of the Law on Detention Conditions for Arrested and Detained Persons (in force since 2002) provides that an arrested or detained person is entitled to communicate with the outside world.
Section 17 of the same Law provides that, in the interests of investigation, the authority conducting the proceedings may decide to prohibit detained persons to make telephone calls.
COMPLAINTS 1.
The applicant complains that the reliance of the domestic courts on handwritten materials of the criminal case breached his right to a fair trial under Article 6 § 1 of the Convention, as those materials were illegible and, as a result, he was deprived of the opportunity to oppose their content and use.
2.
The applicant complains that the lack of publicity for the entire trial breached his right to a public hearing under Article 6 § 1 of the Convention.
3.
The applicant complains under Article 8 that his right to correspondence was breached as a result of the ban on his telephone calls at the detention facility.

Judgment

FOURTH SECTION
CASE OF HAYRAPETYAN v. ARMENIA
(Application no.
69931/10)

JUDGMENT
STRASBOURG
21 December 2021

This judgment is final but it may be subject to editorial revision.
In the case of Hayrapetyan 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.
69931/10) 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 18 November 2010 by an Armenian national, Mr Gevorg Hayrapetyan, born in 1963 and living in Yerevan (“the applicant”) who was represented by Mr W. Bowring and Ms S. Safaryan, lawyers practising in London and Yerevan respectively;
the decision to give notice of the complaints concerning the alleged breach of the right to a fair and public hearing and the right to respect for correspondence to the Armenian Government (“the Government”), represented by their Agent, Mr Y. Kirakosyan, Representative of the Republic of Armenia before the European Court of Human Rights, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 30 November 2021,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1.
The application concerns criminal proceedings for high treason against the applicant. He raises complaints under Articles 6 and 8 of the Convention. 2. As a result of a search of the applicant’s apartment, the National Security Service (NSS) found various types of weapons and ammunition, personal notes, compact discs, military maps and military registry books. Some of those materials apparently contained classified information on various military operations, military orders and their execution, military shifts and equipment and other information of military significance. 3. In September 2009 the NSS charged the applicant with high treason, spying for the special services of Azerbaijan, and illegal possession of firearms. The applicant was taken in pre-trial detention. The NSS further prohibited the applicant from receiving visits (except from his lawyer) and from making or receiving telephone calls at the detention facility. 4. The applicant’s trial before the Avan and Nor-Nork District Court of Yerevan (“the trial court”) was conducted in camera. By its decision of 22 January 2010 the trial court granted the prosecution’s request to conduct the trial in camera on the grounds that the case contained state and official secrets. 5. During the trial the applicant complained that some of the materials of the criminal case were illegible, namely his pre-trial testimony and witness statements, as they had been handwritten by the investigator. The trial court ordered the prosecution to produce those materials in legible form. The prosecution submitted the typewritten versions of the impugned documents. 6. On 13 May 2010 the trial court lifted the prohibition on the applicant’s visits. 7. By the judgment of 25 October 2010, which was fully upheld on appeal, the trial court found the applicant guilty as charged and sentenced him to twelve years’ imprisonment. It relied on witness evidence obtained during the investigation and confirmed in court, the applicant’s intercepted communications and various pieces of material evidence, such as photographs of military positions, military maps, books, equipment and other materials of a military nature with an indication “top secret”. As regards the handwritten materials of the criminal case indicated by the applicant as illegible, the trial court concluded that his rights had not been breached as he had been questioned by the investigator in the presence of his lawyer, the materials of the criminal case had been disclosed to him and to his lawyer, and none of them had complained about the illegibility of those materials at that stage. 8. On the same date the trial court also lifted the prohibition on the applicant to make or receive telephone calls at the detention facility. 9. The applicant complained under Article 6 § 1 of the Convention that the domestic courts’ decision to conduct the entirety of the judicial proceedings in camera had led to his trial being unfair. He further complained under the same provision that the domestic courts relied on illegible handwritten materials in evidence against him. The applicant also complained under Article 8 of the Convention of an interference with his right to respect for his correspondence on account of the restriction of his telephone conversations during the investigation and trial. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION on account of the lack of a public hearing
10.
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. 11. The general principles concerning the public nature of judicial proceedings and the derogation from that principle have been summarized in the cases of Belashev v. Russia (no. 28617/03, §§ 79-80, 4 December 2008), Welke and Białek v. Poland (no. 15924/05, §§ 73-74, 1 March 2011) and Yam v. the United Kingdom (no. 31295/11, §§ 52-57, 16 January 2020). In particular, the Court, in interpreting the right to a public hearing, has applied a test of strict necessity whatever the justification advanced for the lack of publicity. Thus before excluding the public from criminal proceedings, the national court must make a specific finding that exclusion is necessary to protect a compelling governmental interest and must limit secrecy to the extent necessary to preserve that interest (see Yam, cited above, § 54, with further references). 12. The trial court, at the request of the prosecutor, decided on 22 January 2010 to hold the applicant’s entire trial in camera, considering that a public hearing might disclose information containing state and official secrets (see paragraph 4 above). It did not specify what particular circumstances justified its decision to hold the entire trial in camera. 13. While the Court accepts that the decision at issue was based on national security concerns considering that the case against the applicant related to the examination of evidence potentially involving state or official secrets, it reiterates that the mere presence of classified information in the case file does not automatically imply a need to close a trial to the public, without balancing openness with national security concerns (see Belashev, cited above, § 83). 14. The trial court did not elaborate on the reasons for holding the applicant’s entire trial in camera as opposed to certain parts of it. Neither did it take any measures to counterbalance the detrimental effect that the decision to hold the applicant’s trial in camera must have had on public confidence in the proper administration of justice for the sake of protecting the State’s interest in keeping its secrets (ibid., § 84). Lastly, there is nothing to indicate that the trial court considered any alternatives such as holding closed sessions involving the examination of the classified material but preferred to close the entire trial to the public. In sum, it has not been shown that holding the entire trial in camera corresponded to the test of strict necessity. 15. There has accordingly been a violation of Article 6 § 1 of the Convention. REMAINING COMPLAINTS
16.
The applicant also complained of the use of allegedly illegible handwritten statements in evidence against him and the restriction of his telephone calls while he was in pre-trial detention. 17. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
18.
The applicant did not make any claims in respect of pecuniary damage. He left the amount of the award in respect of non-pecuniary damage to the Court’s discretion. He claimed 8,500 euros (EUR) in respect of costs and expenses. 19. The Government contested those claims. 20. The Court awards the applicant EUR 3,600 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant. 21. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses for lack of adequate supporting documentation. 22. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 3,600 (three thousand six hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‐pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Ilse Freiwirth Jolien Schukking Deputy Registrar President

FOURTH SECTION
CASE OF HAYRAPETYAN v. ARMENIA
(Application no.
69931/10)

JUDGMENT
STRASBOURG
21 December 2021

This judgment is final but it may be subject to editorial revision.
In the case of Hayrapetyan 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.
69931/10) 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 18 November 2010 by an Armenian national, Mr Gevorg Hayrapetyan, born in 1963 and living in Yerevan (“the applicant”) who was represented by Mr W. Bowring and Ms S. Safaryan, lawyers practising in London and Yerevan respectively;
the decision to give notice of the complaints concerning the alleged breach of the right to a fair and public hearing and the right to respect for correspondence to the Armenian Government (“the Government”), represented by their Agent, Mr Y. Kirakosyan, Representative of the Republic of Armenia before the European Court of Human Rights, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 30 November 2021,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1.
The application concerns criminal proceedings for high treason against the applicant. He raises complaints under Articles 6 and 8 of the Convention. 2. As a result of a search of the applicant’s apartment, the National Security Service (NSS) found various types of weapons and ammunition, personal notes, compact discs, military maps and military registry books. Some of those materials apparently contained classified information on various military operations, military orders and their execution, military shifts and equipment and other information of military significance. 3. In September 2009 the NSS charged the applicant with high treason, spying for the special services of Azerbaijan, and illegal possession of firearms. The applicant was taken in pre-trial detention. The NSS further prohibited the applicant from receiving visits (except from his lawyer) and from making or receiving telephone calls at the detention facility. 4. The applicant’s trial before the Avan and Nor-Nork District Court of Yerevan (“the trial court”) was conducted in camera. By its decision of 22 January 2010 the trial court granted the prosecution’s request to conduct the trial in camera on the grounds that the case contained state and official secrets. 5. During the trial the applicant complained that some of the materials of the criminal case were illegible, namely his pre-trial testimony and witness statements, as they had been handwritten by the investigator. The trial court ordered the prosecution to produce those materials in legible form. The prosecution submitted the typewritten versions of the impugned documents. 6. On 13 May 2010 the trial court lifted the prohibition on the applicant’s visits. 7. By the judgment of 25 October 2010, which was fully upheld on appeal, the trial court found the applicant guilty as charged and sentenced him to twelve years’ imprisonment. It relied on witness evidence obtained during the investigation and confirmed in court, the applicant’s intercepted communications and various pieces of material evidence, such as photographs of military positions, military maps, books, equipment and other materials of a military nature with an indication “top secret”. As regards the handwritten materials of the criminal case indicated by the applicant as illegible, the trial court concluded that his rights had not been breached as he had been questioned by the investigator in the presence of his lawyer, the materials of the criminal case had been disclosed to him and to his lawyer, and none of them had complained about the illegibility of those materials at that stage. 8. On the same date the trial court also lifted the prohibition on the applicant to make or receive telephone calls at the detention facility. 9. The applicant complained under Article 6 § 1 of the Convention that the domestic courts’ decision to conduct the entirety of the judicial proceedings in camera had led to his trial being unfair. He further complained under the same provision that the domestic courts relied on illegible handwritten materials in evidence against him. The applicant also complained under Article 8 of the Convention of an interference with his right to respect for his correspondence on account of the restriction of his telephone conversations during the investigation and trial. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION on account of the lack of a public hearing
10.
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. 11. The general principles concerning the public nature of judicial proceedings and the derogation from that principle have been summarized in the cases of Belashev v. Russia (no. 28617/03, §§ 79-80, 4 December 2008), Welke and Białek v. Poland (no. 15924/05, §§ 73-74, 1 March 2011) and Yam v. the United Kingdom (no. 31295/11, §§ 52-57, 16 January 2020). In particular, the Court, in interpreting the right to a public hearing, has applied a test of strict necessity whatever the justification advanced for the lack of publicity. Thus before excluding the public from criminal proceedings, the national court must make a specific finding that exclusion is necessary to protect a compelling governmental interest and must limit secrecy to the extent necessary to preserve that interest (see Yam, cited above, § 54, with further references). 12. The trial court, at the request of the prosecutor, decided on 22 January 2010 to hold the applicant’s entire trial in camera, considering that a public hearing might disclose information containing state and official secrets (see paragraph 4 above). It did not specify what particular circumstances justified its decision to hold the entire trial in camera. 13. While the Court accepts that the decision at issue was based on national security concerns considering that the case against the applicant related to the examination of evidence potentially involving state or official secrets, it reiterates that the mere presence of classified information in the case file does not automatically imply a need to close a trial to the public, without balancing openness with national security concerns (see Belashev, cited above, § 83). 14. The trial court did not elaborate on the reasons for holding the applicant’s entire trial in camera as opposed to certain parts of it. Neither did it take any measures to counterbalance the detrimental effect that the decision to hold the applicant’s trial in camera must have had on public confidence in the proper administration of justice for the sake of protecting the State’s interest in keeping its secrets (ibid., § 84). Lastly, there is nothing to indicate that the trial court considered any alternatives such as holding closed sessions involving the examination of the classified material but preferred to close the entire trial to the public. In sum, it has not been shown that holding the entire trial in camera corresponded to the test of strict necessity. 15. There has accordingly been a violation of Article 6 § 1 of the Convention. REMAINING COMPLAINTS
16.
The applicant also complained of the use of allegedly illegible handwritten statements in evidence against him and the restriction of his telephone calls while he was in pre-trial detention. 17. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
18.
The applicant did not make any claims in respect of pecuniary damage. He left the amount of the award in respect of non-pecuniary damage to the Court’s discretion. He claimed 8,500 euros (EUR) in respect of costs and expenses. 19. The Government contested those claims. 20. The Court awards the applicant EUR 3,600 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant. 21. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses for lack of adequate supporting documentation. 22. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 3,600 (three thousand six hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‐pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Ilse Freiwirth Jolien Schukking Deputy Registrar President