I correctly predicted that there was a violation of human rights in SHILINA AND FILKOV v. ARMENIA.

Information

• Judgment date: 2025-09-11
• Communication date: 2009-01-20
• Application number(s): 8010/05
• Country:   ARM
• Relevant ECHR article(s): 6, 6-1, 6-3-b, 6-3-c, 6-3-d, 6-3-e, 8, 8-1, 10, 10-1
• Conclusion:
  Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings
  Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial
  Article 6-3-d - Examination of witnesses)
• Result: Violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.530844
• Prediction: Violation

• Consistent

Communication text used for prediction

23 January 2009 THE FACTS The applicants, Ms Nina Shilina and Mr Edgar Filkov, are Armenian nationals who were born in 1949 and 1972 and are currently serving prison sentences in Abovyan and Kentron penitentiary institutions situated in Abovyan and Yerevan respectively.
They are represented before the Court by Mr N. Koval, a lawyer practising in Kiev.
A.
The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows.
1.
Background to the case The applicants are husband and wife.
They are ethnic Russians and do not appear to have a command of Armenian.
In 1988 the applicant Shilina (hereafter the first applicant) moved from Sumgait, Azerbaijani SSR, to the town of Jermuk, Armenian SSR.
In 1993 the first applicant moved to live in Baku.
In 1997 the first applicant met the applicant Filkov (hereafter the second applicant) whom she married.
The same year they moved to Armenia, first to Yeghegnadzor, then to Artashat and finally to Yerevan.
On 27 July 2000 the first applicant, who at that time still held an old Soviet passport, applied to the Armenian authorities to receive a new passport since she had lost her old one.
On 9 August 2000 she was granted an Armenian passport.
2.
The first investigative measures On 20 June 2002 a third person, E.O., whose husband, A.O., had worked for several years at the General Headquarters of the Ministry of Defence of Armenia before being dismissed in December 2001, filed a report with the Ministry of National Security (MNS), giving the following information.
From February 2001 until May 2002 she and her husband had been neighbours of the applicants, with whom they had had a friendly relationship.
The first applicant had often inquired about her husband’s work and on one occasion even persuaded her to let her copy materials from her husband’s work-related notebook, which he kept at home and which contained information concerning military units, their locations and the names of commanders.
On 16 January 2002, at the birthday party of another neighbour, A.Y., the first applicant, in a private conversation with E.O., had started inciting her to collect information of a military nature about Armenia, promising good remuneration.
The first applicant had said that this information would then be communicated to acquaintances whom she met on her frequent visits to Tbilisi.
She had not specified the identities of those acquaintances.
She had advised E.O.
to use her contacts in order to get a job at the General Headquarters.
Not having received a definite answer from E.O., the first applicant had repeated her request at a later meeting at the beginning of June 2002, specifying in greater detail the type of information required and blackmailing E.O., after which E.O.
had decided to report the first applicant’s actions.
On 26 June 2002 the investigator filed a motion with the Kentron and Nork-Marash District Court of Yerevan (Երեւան քաղաքի Կենտրոն եւ Նորք-Մարաշ համայնքների առաջին ատյանի դատարան), seeking to have the applicants’ flat bugged.
The request stated: “Operative information has been received at the Operative Department of the [MNS] about the resident of Yerevan, [the first applicant], regularly meeting with persons who are of interest to the [MNS] and collecting information about the Armenian Armed Forces.
[I decided to file a motion seeking authorisation to have the conversations taking place in the first applicant’s flat intercepted and recorded for a period of six months] in view of the fact that the conversations taking place in [the first applicant’s] flat may contain information corroborating the above circumstance, the use of which will facilitate the disclosure of a crime and the collection of evidence, since [the first applicant’s] actions contain a criminal element envisaged by Article 59 of the Criminal Code [(hereafter, the former CC)]...” On an unspecified date the Kentron and Nork-Marash District Court of Yerevan decided to grant this request.
It appears that the applicants’ telephone was tapped and their flat was bugged.
They allege that the listening device in their flat was planted by one of their neighbours.
On 1 July 2002 another report was filed with the MNS, this time by neighbour A.Y., giving the following information.
In April 2001 A.Y.
had moved from Russia to Yerevan, where he had lived on the same floor as the applicants, with whom he had soon created a friendly relationship.
Once, during a lunch with the first applicant in the summer of 2001, she had told him that several years earlier in Tbilisi she had been recruited by intelligence services, for whom she had since been collecting information concerning Armenia.
She had offered A.Y.
remuneration if he also agreed to collect information, including information concerning the military unit in Berd.
In August 2001 the applicants had moved out of their flat but the first applicant had repeated her offer at later meetings in November 2001 and on 29 June 2002.
At the last meeting, the first applicant had specified in greater detail the information required, which had also included the military unit situated in a village not far from Berd called Mehrab.
Since he had had problems understanding the name of that village, she had written the name plus the first three digits of the military unit in Berd on a sheet of paper.
Having concluded that the first applicant was involved in illegal activities, A.Y.
had decided to report her actions.
It appears that, following this additional report, the MNS officers requested authorisation to carry out an investigative operation involving A.Y., who was instructed to offer his services to the first applicant in obtaining the requested information.
It further appears that this operation was carried out in the course of July 2002.
On 27 July 2002 A.Y.
provided a further explanation.
He submitted that on 2 July 2002 he had visited the first applicant at home, where they had discussed his trip to Berd for the purpose of obtaining information about the number, type and commanders of the military unit.
The first applicant had promised to pay him 50 United States dollars (USD) after her forthcoming trip to Tbilisi.
On 9 July 2002 A.Y.
had travelled to Berd where he had spent one day and upon returning to Yerevan had visited the first applicant on 11 July 2002.
During this meeting A.Y.
had made a drawing of the routes from Yerevan to Berd and then to the village of Tavuz, and the location of the relevant military units.
He had also informed the first applicant about the quantity of equipment and number of servicemen in the military unit, and the number, type and commanders of the unit.
The promised remuneration was paid to A.Y.
on 26 July 2002 in the presence of the second applicant).
It appears that the above drawings and information were provided to the first applicant by A.Y.
in accordance with the plans and information given to him by the MNS officers.
3.
The applicants’ arrest and prosecution The applicants allege that they were arrested by MNS officers on 5 August 2002 at around 5 p.m. – the first applicant at home, the second applicant in the street.
No warrants of arrest were presented to them and they were immediately taken to the MNS, each being unaware of the other’s arrest.
During the following day of unrecorded arrest they were forced to confess.
The first applicant was questioned by MNS officer G. who threatened that, if she refused to cooperate, the second applicant and her son, R.K., would also be arrested.
Furthermore, criminal liability would be imposed on her son for avoiding military service.
On the other hand, if she agreed to cooperate, the second applicant and her son would avoid any trouble and she would be assisted in overcoming her own problems.
Officer G. also offered her a deal, namely to become a counterintelligence agent.
Thereafter the first applicant agreed to write an explanation (բացատրություն), with hints and leads given by officer G., inventing a story of her involvement with the intelligence services by using some real people and events.
The second applicant, in the meantime, was kept overnight in a different office where MNS officers were forcing him to admit that he was an Azerbaijani spy.
They used threats, including to arrest his entire family, shouting and swear words addressed at his family members.
His requests for medical assistance were refused.
When the second applicant refused to confess, one of the MNS officers threatened to execute him.
The applicants further allege that the next morning officer G. came to the office where the first applicant was kept, to pick up her written explanation.
In reply to her inquiry as to whether she was entitled to have a lawyer, officer G. replied that, if she wanted one, she would need to be taken to an investigator but then their deal would no longer be possible.
Officer G. left and came back in about one hour and asked the first applicant to write about how the second applicant had been recruited by the intelligence services.
She refused but officer G. told her that the second applicant was already at the MNS and was writing his confession.
He threatened that the second applicant would be kept under arrest until she agreed to write the necessary explanation.
After some more pressure, the first applicant agreed to write an explanation implicating the second applicant.
This explanation was shown to the second applicant who then also agreed to write an explanation after he was persuaded that he would thereby help his wife.
According to the materials of the case, the applicants were brought to the MNS on 6 August 2002 at an unspecified time.
There, during the several hours preceding their formal arrest, they wrote the above-mentioned explanations confessing to the crime.
The first applicant described in detail how, in the spring of 1993, she had been recruited by the Azerbaijani intelligence services and had provided military and other information to them under the codename “Argo”.
At first she had been based in Baku but in 1998 she had moved back to Armenia and continued her cooperation with a meeting point in Tbilisi.
The information in question was gathered mainly from Armenian newspapers.
Her last assignment, which she had received at the beginning of 2002, was to collect information about the military unit in Berd, which she decided to do with the help of a former neighbour, A.Y., whose nephew was performing his military service somewhere near Berd.
The first applicant also submitted that the Azerbaijani intelligence services had expressed interest in her former neighbour, officer A.O., but her relationship with him had not been good enough for her to obtain any information.
The second applicant stated that in 1997 he had travelled to Tbilisi with the first applicant where they had met some secret agents who had tricked him into signing papers certifying his cooperation with them under the codename “Johnny”.
On 6 August 2002 criminal proceedings were instituted under Article 59 of the former CC.
The decision stated that in 1993 the applicants had been recruited by the Azerbaijani intelligence services and since then they had collected and provided to them both secret and other information to the detriment of Armenia’s sovereignty, territorial integrity, national security and defence.
It appears that, on the same date, the investigator filed a motion with the Kentron and Nork-Marash District Court of Yerevan, seeking to have the first applicant’s flat searched on the ground that documents and materials containing military secrets and other information, as well as objects, articles, currency, sums of money and stocks substantiating the fact of espionage could be found in the flat.
At an unspecified hour the Kentron and Nork-Marash District Court examined and decided to grant this motion.
The judicial warrant stated: “Having studied the materials of the criminal case and the motion submitted by the investigating authority, the court finds that the motion must be granted since there are sufficient grounds to believe that documents and materials containing military secrets and other information, as well as objects, articles, currency, sums of money and stocks substantiating the fact of espionage could be found in [the first applicant’s] flat.” It was stated in the warrant that it could be contested before the Criminal and Military Court of Appeal (ՀՀ քրեական եւ զինվորական գործերով վերաքննիչ դատարան).
From 6.05 p.m. to 7.40 p.m. the applicants’ flat was searched.
The search was conducted in the presence of two neighbours, who had been invited to participate as attesting witnesses, and the applicants’ landlady to whom the search warrant had been presented.
As a result, a total of twenty-eight different objects were seized, including several notebooks belonging to the first applicant, several telephone/address books, a world map published in 1986, a map of the Vayots Dzor Region of Armenia, a map of Sumgait, a piece of paper containing notes in Georgian, a map of the Georgian military route, а telephone directory, three photograph albums, three envelopes containing letters, various IDs and documents, some books in Russian, a 20 dollar bill, documents related to the second applicant’s job application to the military unit in Yeghegnadzor, a bank transfer slip certifying the transfer of USD 10 to the first applicant’s son R.K. on 31 July 2002, and a piece of a yellow-coloured substance.
As regards the latter, it appears that it was later examined and found to be trotyl, which the applicants allege was placed in their flat by neighbour A.Y.
At 7.35 p.m. and 8.40 p.m. the second and the first applicants respectively were formally arrested.
The relevant arrest records stated that the applicants were arrested in offices nos.
401 and 491 of the MNS.
On 7 August 2002 a legal aid lawyer, G.M., was appointed to represent both applicants.
On the same date an interpreter was invited to participate in the case.
From 2.25 p.m. to 9.55 p.m. the first applicant was questioned as a suspect by investigator O. in office no.
491, during which she repeated her earlier statements.
The first applicant alleges that the investigator gave her a copy of her earlier explanation and pressured her to copy it.
From 6.20 p.m. to 9.15 p.m. the second applicant was questioned as a suspect by investigator Z. in office no.
475.
Both records of the above questionings were signed by the first and the second applicants respectively, the relevant investigator and lawyer G.M.
On 8 August 2002 the first applicant was formally charged with high treason in the form of espionage under Article 59 of the former CC.
This decision stated that the applicant had been recruited by the Azerbaijani intelligence services in 1993 and since then she had been collecting, and providing to them, information about the military units situated in Armenia, their commanders, servicemen and equipment, and the political and economic situation in the country, as well as a number of Armenian newspapers.
She was also accused of recruiting a number of other individuals, including the second applicant and their relatives, I.F.
and A.G. On the same date the two other suspects in the case, I.F.
and A.G., were also arrested.
They were also later charged with high treason.
On the same date neighbour A.Y.
was questioned as a witness, during which he repeated his earlier statements.
On 9 August 2002 the second applicant was formally charged with high treason under Article 59 of the former CC.
On the same date the second applicant was questioned as an accused.
He admitted guilt and repeated his earlier statements.
The record of the questioning was drawn up in Armenian and was signed, inter alia, by lawyer G.M.
and an interpreter.
On the same date the applicants were detained by court order.
It appears that from August until the end of the investigation in November 2002 the applicants were questioned on numerous occasions and participated in various investigative measures.
They allege that throughout this entire period lawyer G.M.
appeared on only two occasions, while the interpreter was absent until November 2002.
On 11 September 2002 an expert opinion was prepared, according to which the information on pages 2 to 6 of officer A.O.’s notebook contained State secrets.
On 10 October 2002 an investigative experiment was carried out with the participation of the first applicant.
This experiment was connected with another suspicion against the first applicant, namely that she had attempted to commit an act of sabotage in 1993 in the Erebuni hotel in Yerevan.
It involved the first applicant identifying the relevant room at the hotel and describing the circumstances of this attempted offence.
On 13 November 2002 the first applicant’s son R.K. was questioned by investigator O. in Ukraine where he lived at that time.
R.K., who had allegedly been aware of his mother’s cooperation with the Azerbaijani intelligence service, described certain details of his life with his mother in Baku between 1993 and 1996, which included information related to her spying activity.
It appears that R.K. refused to sign this statement so it was signed by the investigator instead.
On 21 November 2002 officer A.O.
was charged with divulging State secrets.
On 26 November 2002 the charge against the first applicant was modified and the accusation of an attempted act of sabotage was added under Article 63 in conjunction with Article 15 of the former CC.
From 27 November to 10 December 2002 the first applicant was granted access to the case file.
From 28 November to 9 December 2002 the second applicant was granted access to the case file.
On 20 December 2002 the Deputy General Prosecutor approved the indictment, including the list of prosecution witnesses to be summoned to court.
The list contained the names of nineteen witnesses, including neighbour A.Y.
Neighbour E.O.
was not included in that list.
4.
The court proceedings On 19 March 2003 the trial commenced in the Kentron and Nork-Marash District Court of Yerevan.
It appears that a new lawyer was appointed on that date to represent the applicants.
It appears that from 7 May to 7 October 2003 the trial was conducted in camera.
This decision was apparently motivated by the fact that certain materials containing State secrets were being examined in court.
On 1 August 2003 a new Criminal Code (hereafter, the new CC) entered into force in Armenia.
It appears that in the proceedings before the District Court the applicants denied part of the statements contained in their confessions made during the investigation and, when making their final defence speeches, completely retracted these confessions.
It further appears that they alleged that they had not in reality been assisted by a lawyer or an interpreter during the investigation.
They requested that lawyer G.M.
and the relevant interpreter be summoned to court but these requests were overruled.
On 26 January 2004 the Kentron and Nork-Marash District Court of Yerevan found the first applicant guilty of high treason under Article 299 § 1 and an attempted act of sabotage under Article 303 in conjunction with Article 34 of the new CC, and the second applicant guilty of high treason under Article 299 § 1 of the new CC.
The District Court sentenced the first and second applicants to fifteen and thirteen years’ imprisonment respectively.
The co-accused, I.F.
and A.G., were sentenced to ten years’ and officer A.O.
to one year and six months’ imprisonment.
In doing so, the District Court established the following.
In 1988 the first applicant moved from Azerbaijan to Armenia.
In 1993 on her trip to Tbilisi she was spotted and later recruited by the Azerbaijani secret services who entrusted her with carrying out subversive and spying activities in Armenia.
The first applicant then moved to Baku with her son.
In May 1993 she received an assignment to carry out an act of sabotage together with a third person, R., in the Erebuni hotel in Yerevan.
Having arrived at the hotel, the first applicant and R. checked into a room which was intended for the night shift guard, S.K., upon the latter’s consent.
Two days later they departed unexpectedly, having planted in the room an explosive made of trotyl, which did not go off for technical reasons.
Thereafter the first applicant was entrusted with collecting information about the political and socio-economic situation in Armenia, which she did on her subsequent trips to Armenia, using mass media publications and making inquiries.
In 1995 she was assigned with the code name “Argo” and was instructed to collect military and other information in Armenia and Nagorno Karabakh, including the location and numbers of military units, their commanders, officers, equipment and armament, the Russian military units, the political and socio-economic situation in Armenia, petrol prices and merchandise imported from Iran.
The first applicant was also entrusted with establishing contacts with military officials and politicians and exploring the possibilities of their recruitment.
In 1995 and 1996 I.F.
and A.G. respectively became involved in the first applicant’s espionage network, carrying out various assignments.
The first applicant married A.G.’s brother, the second applicant, who was also recruited in 1997 under the code name “Johnny” and was assigned to collecting military information in Armenia and getting a job at the military unit in Yeghegnadzor.
From that period until 6 August 2002 he participated in the criminal activities described above and, together with the first applicant, disposed of the proceeds received by her for providing military and other information to the secret services.
From 1995 to 1997 the first applicant regularly travelled from Baku to Armenia and, having collected military and other information, communicated it to the secret services, on each occasion receiving USD 150-300 as remuneration.
From April 1997, having moved to Armenia, first to Yeghegnadzor and Artashat and finally to Yerevan, she continued these activities by making regular trips to Tbilisi until her arrest on 6 August 2002.
Having moved to Yeghegnadzor, the second applicant took steps to get a job at the military unit but later gave up the idea.
As regards in particular the period between 1997 and 2002, the District Court noted: “From the moment of her arrival and during her stay in Armenia [the first applicant] communicated information about the [Armenian] and [Russian] military units located in Yerevan, the communications unit and the Russian border-guarding brigade located in Artashat, the military units located along the Yerevan-Yeghegnadzor highway, the military units located in the town of Yeghegnadzor, the villages of Berd and Tavuz of the Tavush Region, and the town of Stepanakert and the Mardakert Region of [Nagorno Karabakh], and the flights from Yerevan’s Erebuni airport to Stepanakert.
For the information about the military units located in the town of Berd and the village of Tavuz of the Tavush Region received from [A.Y.]
in July 2002, [the first applicant] gave him USD 50 out of the promised USD 100 in the presence of [the second applicant].
Having established close relations with a number of military officers, she communicated information about them, their telephone numbers and characteristics to the [Azerbaijani] intelligence service, having been instructed by the latter to consolidate [her] relations with some of them to check the appropriateness of their future recruitment.
In particular, [she established contact] with the officer of the Yeghegnadzor military unit [A.G.] and the former senior officer of the operative department of [the General Headquarters of the Ministry of Defence of Armenia A.O.].
[A.G.] was of interest to them because he had received his higher education in Baku, was ethnic Georgian and had relatives in Georgia, while [A.O.
was interested] because of his post at the General Headquarters[.
H]owever, some while after receiving the above information, [the Azerbaijani intelligence officers] lost interest in them and did not ask for additional information.
[The first applicant] also used public sources of information to collect and communicate military and other information[, such as] the press, television, and telephone and address books, and regularly provided to the [Azerbaijani] intelligence service copies of a number of newspapers published in [Armenia]... From March to August 2001 [the first applicant] rented a flat ... neighbouring that of [A.O.’s] family and maintained close relations with them.
Due to the fact that [A.O.]
served as a senior officer of the operative department of [the General Headquarters of the Ministry of Defence of Armenia] and, contrary to the interests of [his] service, kept at home a notebook with notes on [his] official activities, pages 2 to 6 of which contained notes on the organisational structure of military units of the armed forces located in [Armenia] and [Nagorno Karabakh], the code and real names of the military units and their permanent locations, as well as information on the call signs of the above military units, personal data and the telephone numbers of the commanders, [the first applicant] during a visit to their flat in October 2001, having familiarised herself with the content of the notebook, asked [A.O.’s] wife, [E.O.
], to copy and to communicate to her information contained in pages 2 to 6 of the notebook without giving any reasons.
Having implemented [the first applicant’s] request, [E.O.
], upon her husband’s consent, copied this information on four sheets of paper and communicated it to the applicant during their next meeting, and it was later transmitted by [the first applicant] to the Azerbaijani intelligence officers.
According to the conclusion of the experts of the General Headquarters [of the Ministry of Defence of Armenia], the military information contained in pages 2 to 6 of [A.O.’s] notebook contains State secrets.” In reaching these findings, the District Court rejected the applicants’ arguments about their innocence, relying on their confessions made during the investigation and other evidence, including nineteen witness statements, neighbour E.O.’s report of 20 June 2002 and various material evidence.
As regards the charge of high treason, the District Court relied on fifteen witness statements and neighbour E.O.’s report of 20 June 2002.
The statements of neighbour A.Y.
and the first applicant’s son R.K. and E.O.’s above-mentioned report were read out in court, since A.Y.
and R.K. had apparently failed to appear, while E.O.
had not been included in the list of witnesses.
The remaining thirteen witness statements contained general information about the lifestyle of the applicants and other co-accused, including their trips to Tbilisi and Nagorno Karabakh.
As regards the charge of the act of sabotage, the District Court relied on the statements of employees of the Erebuni hotel, G.M., F.G., S.K.
and A.K.
and expert F.B., of whom only G.M.
and F.G. had been examined in court.
Witnesses S.K.
and A.K., who were the only employees of the hotel who had allegedly met the first applicant and R., who were described by these witnesses as the “Armenian married couple from Krasnodar”, had died in 1994 and 1998 respectively and the District Court read out their statements made in July 1993 during an investigation into that incident.
Expert F.B., who in 1993 had examined the explosives found in the hotel room, failed to appear and requested that the Court rely on his statement made during the investigation.
As material evidence, the District Court cited (a) a 50 dollar bill paid by the first applicant to neighbour A.Y.
; (b) the sheet of paper on which the first applicant wrote instructions for A.Y., including the names of locations such as Berd and Mehrab and the number of the military unit; (c) the plan of the military unit in Berd drawn by A.Y.
; (d) the objects seized during the search, including a 20 dollar bill paid to the first applicant by the Azerbaijani intelligence officers, two notebooks in which she had made notes related to her criminal activities, a telephone directory from which she had provided information to the Azerbaijani intelligence officers, documents related to the second applicant’s job application to the military unit in Yeghegnadzor, and a bank transfer slip certifying the transfer of USD 10 to the first applicant’s son R.K. on 31 July 2002; (e) a number of objects seized during the search of the flat of co-accused I.F.
; (f) officer A.O.’s notebook; (g) sixty-five tape recordings of intercepted telephone calls and conversations in the applicants’ flat; and (h) the explosive ingredients discovered on 31 May 1993 in room no.
313 of the Erebuni hotel.
The District Court also cited a number of records prepared during the investigation, including the record of photo identification by the applicants of one of the Azerbaijani intelligence officers and the record of photo identification by the first applicant of the night shift guard of the Erebuni hotel, S.K., and the expert opinion of 11 September 2002.
On 1 February 2004 the first applicant lodged an appeal.
She claimed that the prosecuting authority had failed to submit any evidence corroborating the charge.
None of the witnesses examined in court had made implicating statements, while other witnesses, who had made such statements, had not been examined during either the investigation or the court proceedings.
She further claimed that the charge had been based on her false confession statement which had been obtained by unlawful means and which she had retracted in court.
She finally complained that part of the trial had been held in camera and that the District Court had failed to examine her complaints about the absence of the lawyer and the interpreter during the investigation.
On 2 February 2004 the second applicant also lodged an appeal, stating that his conviction was unsubstantiated and that he would submit further reasons after receiving a copy of the judgment.
On an unspecified date the first applicant’s son, R.K., filed an application with the General Prosecutor of Armenia, revoking his witness statement of 13 November 2002 on the ground that the statement had been obtained by investigator O. by means of trickery and threats.
He requested that the statement, which had not even been signed by him, be excluded from the evidence.
R.K. further added that he had not been examined in the proceedings before the District Court, despite the fact that the charge had been partly based on his witness statement.
According to the first applicant, on 29 June 2004 she lodged several complaints with the General Prosecutor, alleging, inter alia, that lawyer G.M., by not providing any legal assistance during the investigation, had actually been siding with the investigator, that the interpreter had not been present during the investigation, that the report of her neighbour E.O.
of 20 June 2002 contained false information and that a number of her belongings had been looted during the search of her flat.
It appears that a list of such items was attached to her last complaint.
By a letter of 6 July 2004 the General Prosecutor’s Office informed the first applicant that her complaints about allegedly unlawful actions of investigator O. and lawyer G.M.
during the investigation had been examined and not confirmed.
On 19 July 2004 the Criminal and Military Court of Appeal upheld the applicants’ conviction.
The Court of Appeal relied on the same evidence as the District Court, in addition citing parts of the transcripts of the tape recordings which had been examined in court and which contained the first applicant’s conversations with neighbour A.Y.
that had taken place in July 2002 and a number of other conversations in which the first applicant expressed fear about being exposed by A.Y.
and mentioned the reasons for becoming involved in spying activities.
In dismissing the arguments raised in the applicants’ appeals, the Court of Appeal found: “[The applicant’s] arguments that procedural violations have taken place during the investigation, in particular, that the lawyer, the interpreter and the attesting witnesses have not participated in all the investigative measures or that their participation has been of a formal nature, are rebutted by the records of questionings and of other investigative measures, according to which, in compliance with rules of criminal procedure, the lawyer, the interpreter and the attesting witnesses have participated in the necessary investigative measures, [which they] have confirmed with their signatures, while neither [the applicants] nor the other accused filed any applications and motions during the investigation alleging a breach of their rights or raising any other question.
During the investigation the interpreter was only absent from the investigative measure which was carried out with [the first applicant’s] participation on 10 October 2002[.
This measure] – from the beginning to the end – was conducted in Russian and the record was also drawn up in Russian, which contradicted the requirements of [the CCP], but taking into account the fact that Russian was [the first applicant’s] mother tongue ... the Court of Appeal considers that in essence her rights were not violated and does not regard this as a substantial violation of rules of criminal procedure.
Nor can the drawing up of the arrest record only several hours after [the applicants and I.F.]
were brought to the [MNS] and necessary statements were taken from them be considered as such.” On 21 July 2004 the first applicant lodged an appeal on points of law.
In her appeal she claimed that the charge against her was based solely on her confession statement and the false statements of E.O., A.Y.
and R.K. None of these persons had been examined during the investigation or the court proceedings.
Furthermore, E.O.’s report should not have been used as evidence because she had not even been included in the list of witnesses, while R.K.’s statement did not contain his signature and had later been retracted by him.
She further claimed that the courts should not have relied on the results of the secretly intercepted conversations because only the transcript of the alleged tape recordings had been produced in court but not the recordings themselves.
Moreover, these recordings had never been disclosed to her.
She finally claimed that she had not been assisted by a lawyer or an interpreter during the investigation.
On 27 July 2004 the first applicant supplemented her initial appeal on points of law.
She submitted, inter alia, that she had confessed during her unrecorded arrest and that she been convicted partly for communicating information which was in the public domain.
On 21 July 2004 the second applicant also lodged an appeal on points of law, complaining about the fact that the tape recordings had not been examined in court and that he had not been assisted by a lawyer or an interpreter during the investigation.
On 3 September 2004 the Court of Cassation dismissed the applicants’ appeals.
In doing so, the Court of Cassation found: “[The second applicant’s] guilt for committing a crime envisaged by Article 299 of [the CC] is substantiated by the entirety of evidence which has been obtained in compliance with the guarantees of [the CCP] and which has been examined in court and spelled out in the judgment.
In particular, his confession statement made during the investigation and in the court of first instance and the statements of the defendants [I.F., A.G. and A.H. and the first applicant] made during the investigation and in court... [The second applicant’s] guilt is also substantiated by the statements of [S.K., A.K., G.M., F.G., A.Y., N.F., I.G., A.A., R.A., G.K., V.H., G.H., A.G., A.N., J.B. and R.K.].
The veracity of the above statements and their correspondence with the circumstances of the case are substantiated by the following evidence which has been examined in court: the records of searches of [the applicants’ and I.F.’s] flats; 65 tape recordings of covert interception of telephone conversations and their transcripts; the record of a person’s photo identification; the certificate of 11 September 2001 from Anelik Bank, the record of examination of the hotel register in Mardakert in [Nagorno Karabakh]; the expert opinion of 11 September 2002 concerning the degree of secrecy of information and other materials.
The mentioned evidence has been properly examined during the court proceedings... [The applicants’] arguments raised in the appeals that no lawyer, interpreter or attesting witnesses were present during the investigative measures carried out during the investigation are groundless and are not supported by the materials of the case since, as it transpires from the case file, all the questionings and investigative measures have been carried out in compliance with the procedural rules[.
T]he presence of the lawyer, the interpreter and the attesting witnesses is confirmed by their signatures and there are no reasons to doubt the authenticity [of these signatures].
[The first applicant’s] arguments that she was also not acquainted with all the materials of the case during the investigation and with the record of the court hearing are also groundless.
It follows from the record of presenting the materials of the criminal case to the defendant ... that [the first applicant] and her lawyer [G.M.]
were acquainting themselves with volume 2 on 27 November 2002 from 10 a.m. to 12.15 p.m. and from 2 p.m. to 5.50 p.m., with pages 1 to 172 of volume 1 on 2 December from 10.05 a.m. to 5 p.m., with pages 173 to 247 of volume 1 on 4 December from 10 a.m. to 12.45 p.m., with volume 3 on 8 December from 10 a.m. to 2 p.m.. with pages 1 to 119 of volume 4 on 9 December, and with pages 120 to 212 of volume 4 on 10 December from 3 p.m. to 6 p.m.
The defendant and her lawyer, having signed the record, did not make any statements or requests.
... As regards the other argument raised by [the applicants] that tape recordings of secret surveillance recognised as material evidence were not examined during the court proceedings, it is evident from the materials of the case that the secret surveillance was carried out in compliance with the provisions of the Code of Criminal Procedure and the tape recordings were recognised as material evidence.
These recordings were transcribed and on that basis a transcript was drawn up containing a word-for-word account of the conversations.
The above transcripts, in their parts relevant to the scope of the charge, were read out and examined during the court proceedings.
In such circumstances, the court’s refusal to grant the request to have the recordings played back [in court] was well-founded and reasoned.
As regards [the first applicant’s] argument that the witness statements mentioned in her appeal were false, this is also not supported by the materials of the case, since the veracity of these statements was duly checked by the court by correlating with other evidence and was justly recognised as admissible...” B.
Relevant domestic law 1.
The Code of Criminal Procedure (in force from 12 January 1999) The relevant provisions of the Code, as in force at the material time, provide: Article 55: The investigator “1.
The investigator is the public official who conducts an investigation into a criminal case within the scope of his competences.
... 4.
The investigator shall be, in particular, entitled: ... (12) to engage ... interpreters ... in the case...; (16) to ensure the appointment of lawyers as defence counsel in a criminal case...” Article 62: A suspect “1.
A suspect is the person ... who has been arrested on suspicion of having committed an offence...” Article 63: Rights and obligations of a suspect “1.
The suspect has the right to defence.
The investigating authority shall allow the suspect to implement his right to defence by all lawful means.
2.
The suspect, in accordance with a procedure prescribed by this Code, has the right: ... (4) to have a defence counsel ... from the moment when he is presented with the investigating authority’s decision on arrest, the record of arrest or the decision on choosing a preventive measure...; (6) to be questioned in the presence of [his] defence counsel...” Article 65: Rights and obligations of an accused “1.
The accused has the right to defence.
The investigating authority shall allow the accused to implement his right to defence by all lawful means.
2.
The accused, in accordance with a procedure prescribed by this Code, has the right: ... (3) to have a defence counsel ... from the moment when the charge is brought; (6) to be questioned in the presence of [his] defence counsel...” Article 69: Compulsory participation of defence counsel “1.
A defence counsel’s participation in the criminal proceedings is compulsory if: (1) the suspect or the accused expressed such a wish; ... (4) the suspect or the accused does not have a command or does not have a sufficient command of the language in which the criminal proceedings are conducted... ... 4.
The defence counsel’s compulsory participation in the criminal proceedings shall be secured by the authority dealing with the criminal case.” Article 70: Inviting, appointing and replacing defence counsel and other grounds for his participation in the proceedings “1.
Lawyers shall participate in the criminal proceedings as defence counsel: ... (2) by being appointed by the Armenian Union of Advocates upon the request of the authority dealing with the criminal case...” Article 86: A witness “1.
A witness is the person, who may be aware of the circumstances to be clarified in the given case, called by the party or the authority dealing with the criminal case to make a statement.” Article 104: The notion of evidence “2.
The following evidence shall be admitted in the criminal proceedings: (1) the statements of the suspect; (2) the statements of the accused; (3) the statements of the victim; (4) the statements of a witness; (5) the statements of the convicted person; (6) an expert opinion; (7) material evidence; (8) records of investigative and judicial measures; [and] (9) other documents.” Article 105: Materials inadmissible as evidence “1.
The [following] materials cannot constitute the basis for charges and be used as evidence in criminal proceedings: (1) [materials obtained] under violence, threat, trickery, humiliation of a person, and through other unlawful actions; (2) [materials obtained] with substantial violation of the right to defence of the suspect and the accused and of the rights and the additional guarantees prescribed by this Code of persons not having a command of the language in which the proceedings are conducted; ... (5) [materials obtained] in violation of the procedure for carrying out an investigative or [any] other procedural measure...” Article 106: Establishment of inadmissibility of evidence “1.
The inadmissibility of factual data as evidence, and the possibility of their limited use in the proceedings, shall be established by the authority dealing with the case of its own motion or upon the request of a party.
2.
The obligation to substantiate the admissibility of evidence is laid on the party having obtained the evidence.
If the requirements of this Code were upheld when the evidence was obtained, the obligation to substantiate its inadmissibility lies with the party contesting its admissibility.” Article 128: The notion of arrest “1.
An arrest is [the act of] taking a person into custody, bringing him before the investigating authority or the authority dealing with the case, drawing up a relevant record and informing him about it, with the aim of keeping [that person] in short-term custody in places and conditions defined by the law.
Article 216: Confrontation “1.
The investigator is entitled to carry out a confrontation of two persons who have been questioned previously and whose statements contain substantial contradictions.
The investigator is obliged to carry out a confrontation if there are substantial contradictions between the statements of the accused and some other person.” Article 225: Grounds for conducting a search “1.
The investigator, having sufficient grounds to believe that on some premises or in some other place or in somebody’s possession there are instruments of crime, objects and valuables acquired by criminal means, as well as other objects and documents which may be important for the case, shall conduct a search in order to find and take such objects.
... 3.
The search of a home is conducted only by a judicial warrant.” Article 227: Persons present during a search or a seizure “1.
A search or a seizure shall be conducted in the presence of attesting witnesses.
2.
If necessary, an interpreter and an expert shall take part in the search or the seizure.
3.
The presence of the person and his adult family member, in whose presence the search or the seizure is being conducted, must be ensured when conducting the search or the seizure.
If their presence is impossible, a representative of the apartment maintenance office or the local authority shall be invited.
... 5.
The persons whose premises are being searched or whose items are being seized, as well as the attesting witnesses, specialists, interpreters, representatives and lawyers are entitled to be present during all the actions of the investigator and to make statements which must be entered into the record.” Article 228: Procedure for conducting a search or a seizure 1.
The investigator shall be entitled to enter any dwellings or other premises on the basis of the search or seizure warrant.
2.
Before starting the search or the seizure the investigator shall be obliged to present the search warrant to the person whose premises are being searched or whose items are being seized.
This should be confirmed by his signature.
3.
When conducting a search, the investigator or the specialist can use technical tools[.
This fact] should be indicated in the search record.
4.
The investigator shall be obliged to take measures to prevent the fact of a search or a seizure, including their results and the personal circumstances of the person whose premises are being searched, from being made public.
5.
The investigator shall be entitled to prohibit the persons present at the premises, which are being searched or where a seizure is being conducted, from leaving or from communicating with each other and others before the investigative measure is over.
... 7.
When conducting a search, after presenting and making public the search warrant, the investigator shall advise the surrender of the objects and documents subject to seizure or of a person in hiding.
If such items are surrendered voluntarily, a relevant entry shall be made in the record.
If the sought objects, documents or a person in hiding are not surrendered or not fully surrendered, [then] the search shall be conducted.
8.
All objects and documents taken shall be presented to the participants in the investigative measure, described in detail in the record and, if necessary, sealed by the investigator’s seal.
9.
When conducting a search or a seizure the investigator shall be entitled to open closed buildings and storage, if their owner refuses to open them voluntarily...” Article 230: The record of a search or a seizure “1.
When the search or the seizure is over, the investigator shall draw up appropriate records which must indicate the place where the investigative measure was carried out, the time, whether the sought items and persons were surrendered voluntarily, the name, surname and the position of the person who conducted the search, the names, surnames and addresses of the attesting witnesses, as well as the names, surnames, the positions and the legal status of other participants in the search.
2.
All the seized objects must be indicated in the record of the investigative measure, with an accurate indication of their quantity, size, weight, individual features and other peculiarities.
3.
If attempts were made to eliminate or hide the disclosed objects or documents during the investigative measure, this fact shall be indicated in the record.
4.
The investigator shall be obliged to familiarise all the participants in the investigative measure with the record[.
The participants], having familiarised themselves with it, shall sign the record and shall be entitled to demand that their comments are incorporated in it.” Article 231: Mandatory service of a copy of the search or the seizure record “1.
A copy of the search or the seizure record shall be served against a receipt on the person in whose premises the investigative measure was carried out or on his adult family members or, if none of them is present, on the representative of the apartment maintenance office or the local authority in whose area the investigative measure was carried out...” Article 241: Interception of telephone conversations “1.
If there are sufficient grounds to believe that information, which may be important for the case, may be contained in conversations carried out by telephone or other means of communication by the suspect, the accused and other persons aware of crimes, the interception and recording of such conversations may be authorised by a judicial warrant.
2.
The investigator shall adopt a reasoned decision on initiating a motion to the court about the need to intercept and record conversations[.
The decision] shall indicate the criminal case and grounds, on which the appropriate investigative measure shall be carried out, the name and family name of persons whose conversations are subject to be intercepted, the time-limit of surveillance, and the agency entrusted with the implementation of the technical aspects of the interception and recording.
The decision shall be submitted to a court.
3.
If the judge authorises the interception and recording of conversations, the warrant shall be transmitted by the investigator to the appropriate agency for implementation.
4.
The interception and recording of conversations may be authorised for a period not exceeding six months.
They shall be stopped when they are no longer necessary, but in any event not after the completion of the investigation.
5.
The investigator shall be entitled to request the recording at any point during the authorised period in order to examine and listen to it.
[The recording] shall be transmitted to the investigator in a sealed condition with an accompanying letter, in which the time when the recording of conversations started and finished and the necessary technical description of methods applied must be indicated.
6.
The examination and listening to the recording by the investigator shall be carried out with the participation of attesting witnesses and, if necessary, a specialist, and a transcript must be drawn up, which must contain a word-for-word account of the part of the recording relevant for the case.
The recording must be attached to the transcript, while the part irrelevant for the case shall be destroyed after the judgment becomes final or the proceedings are terminated.” Article 271: Annexes to the indictment “1.
The list of persons to be called to court shall be annexed to the indictment.
The investigator shall indicate in the list the location of these persons and the pages of the case file which contain their statements or conclusions.” Article 278: Sphere of judicial supervision “1.
The courts shall examine motions seeking to have investigative and operative-search measures carried out... ... 3.
The judicial warrants issued in accordance with the first paragraph of this article can be reviewed by a higher court on the basis of an appeal filed by the prosecutor, the authority which has filed the motion or the persons or their representatives whose interests have been affected.” Article 282: Motions seeking to have investigative measures carried out or measures of judicial restraint applied “1.
The reason for starting the court proceedings shall be the motion contained in a reasoned decision of the investigating authority, the investigator or the prosecutor.
2.
The decision’s reasoning must contain information about the offence in respect of which it is intended to carry out an appropriate investigative measure, indication of the information to be obtained as a result of such measures connected with the restriction of the citizens’ constitutional rights and freedoms, the time, place and immediate performers of the appropriate measures and the manner of recording the results, as well as other information which is necessary for the court to issue a lawful and reasoned warrant.
If the [submitted] materials are not sufficient, the judge can require supplements.” Article 289: Appeals against judicial warrants [authorising] the implementation of investigative and operative-search measures and the application of measures of judicial restraint and their review “Appeals against judicial warrants [authorising] the implementation of investigative and operative-search measures and the application of measures of judicial restraint and their review shall be made in accordance with the rules contained in articles 287 and 288 of this Code[, which prescribe that appeals shall be lodged with the court of appeal].” Article 290: Lodging an appeal against unlawful and groundless decisions and actions of the body of inquiry, the investigator, the prosecutor and the authority carrying out operative-search measures “1.
The suspect, the accused, the advocate, the victim, the participants in criminal proceedings and other persons whose rights and lawful interests have been violated by decisions and actions of the body of inquiry, the investigator, the prosecutor or the authority carrying out operative and investigative measures envisaged by this Code which are unlawful and groundless, can lodge a complaint against the unlawfulness and groundlessness of these decisions and actions with a court, if their complaint has not been granted by a prosecutor.
... 3.
The complaint can be lodged with the court situated in the same district as the authority dealing with the case within one month from the date of being informed about its dismissal or, if no reply has been received, within one month after the expiry of one month from the date of lodging the complaint.
4.
The complaint shall be examined by a single judge within ten days from the date of its receipt, the applicant and the authority dealing with the case being informed of this.
Failure of the applicant or [the representative of] the authority dealing with the case to appear shall not prevent the examination of the case, but the judge may require the presence of the above persons.
The authority dealing with the case shall be obliged to present to the court materials concerning the complaint.
[The representative of] the authority dealing with the case and the applicant shall be entitled to give explanations.
5.
If the complaint is found to be well-founded, the judge shall decide to order the body of inquiry to remedy the violation of the person’s rights and freedoms.
If the contested actions are found to be lawful and the person’s rights or freedoms not violated, the court shall decide to dismiss the complaint.
A copy of the judge’s decision shall be sent to the applicant and to the authority dealing with the case.” Article 342: Reading out of witness statements “1.
Reading out at the trial of witness statements made during the inquiry, the investigation or a previous court hearing ... is permissible if the witness is absent from the court hearing for reasons which rule out the possibility of his appearance in court, if there is substantial contradiction between those statements and the statements made by that witness in court, and in other cases prescribed by this Code.” 2.
The Criminal Code of 1961 (no longer in force as of 1 August 2003) The relevant provisions of the Code read as follows: Article 15: Liability for preparing an offence and committing an attempted offence “...An attempted offence is the pre-meditated act directly aimed at a commission of an offence, if the offence has not been completed for involuntary reasons...” Article 59: High treason “High treason, that is a premeditated act committed by an Armenian national to the detriment of Armenia’s sovereignty, territorial integrity or national security and defence, such as joining the enemy, espionage, disclosure of a State or military secret to a foreign State, flight abroad or refusal to return from abroad, assistance to a foreign country in carrying out hostile activities against Armenia, and conspiracy to usurp power, shall be punishable by ten to fifteen years’ imprisonment with confiscation of property and two to five years of exile or without exile, or by the death penalty with confiscation of property...” Article 63: Act of sabotage “Commission of explosions, arson and other acts with the purpose of weakening the State and aimed at mass extermination of people or injuring them or damaging their health in some other way, destruction or damaging of enterprises, structures, communication routes or means, communication facilities or other State or public property, or mass poisonings or spreading of epidemics or animal epidemics, shall be punishable by eight to fifteen years’ imprisonment with confiscation of property and two to five years of exile or without exile, or by the death penalty with confiscation of property.” 3.
The Criminal Code of 2003 (in force from 1 August 2003) The relevant provisions of the Code read as follows: Article 34: Attempted offence “An attempted offence is the pre-meditated act (omission) directly aimed at a commission of an offence, if the offence has not been completed for involuntary reasons.” Article 299: High treason “1.
High treason, namely joining the enemy, espionage, disclosure of a State secret to a foreign State or a foreign organisation or their representatives or assisting them by other means in carrying out hostile activities, committed by an Armenian national to the detriment of Armenia’s sovereignty, territorial integrity or foreign security, shall be punishable by ten to fifteen years’ imprisonment with or without confiscation of property...” Article 303: Act of sabotage “Commission of explosions, arson and other acts with the purpose of weakening the State and aimed at mass extermination of people or damaging their health, destruction or damaging of organisations, structures, communication routes or means, communication facilities or other property, or mass poisoning or spreading of epidemics or animal epidemics, shall be punishable by ten to fifteen years’ imprisonment.” COMPLAINTS 1.
The applicants complain under Article 5 §§ 1 (c) and 3 of the Convention that their stay in custody until their formal arrest on 6 August 2002 was unlawful and that they were brought before a judge for the first time only on 19 March 2003.
2.
The applicants complain, without invoking any article of the Convention, about the alleged extortion of confession statements and their subsequent use at trial.
3.
The applicants complain under Article 6 § 1 of the Convention that (a) part of the proceedings in the District Court was not public; (b) the materials obtained through the interception of conversations in their flat were unlawful and should not have been admitted as evidence; and (c) the materials obtained as a result of the investigative operation involving witness A.Y.
should not have been admitted since this evidence was obtained as a result of incitement.
4.
The applicants complain under Article 6 § 2 of the Convention that the entire trial was conducted in such a manner that they were forced to prove their innocence.
5.
The applicants complain under Article 6 § 3 (a) of the Convention that the charges against them were brought only on the fourth day of their arrest.
6.
The applicants complain under Article 6 §§ 3 (b) and (c) of the Convention that they were practically deprived of any legal assistance from the moment of their arrest until the commencement of the trial on 19 March 2003.
The State-appointed lawyer G.M.
appeared on only two occasions and his signatures were added to all the records at a later stage.
7.
The applicants complain under Article 6 § 3 (d) of the Convention that (a) none of the key witnesses, including E.O., A.Y.
and R.K., was examined either during the investigation or the court proceedings; and (b) their requests to call witnesses on their behalf, including the relevant investigator, lawyer G.M., the interpreter and a number of servicemen who were allegedly able to confirm their version of events, were dismissed by the courts.
8.
The applicants complain under Article 6 § 3 (e) of the Convention that the interpreter appointed for the first applicant was absent during the entire investigation, while no interpreter was appointed for the second applicant.
They further complain that the quality of interpretation was very poor in the proceedings before the Court of Appeal.
9.
The applicants complain under Article 7 of the Convention that (a) Article 299 of the new CC could not be applied to the first applicant because she became an Armenian national allegedly only in 2000, while the charge concerned events from 1993 to 2002; and (b) the accusation of high treason should not have covered the events concerning Nagorno Karabakh since that territory was not a part of Armenia.
10.
The applicants complain under Article 8 of the Convention that (a) the secret surveillance of their telephone calls and conversations in their flat was unlawfully authorised before the institution of criminal proceedings.
Furthermore, the law did not prescribe such a measure as bugging of a flat; and (b) the intrusion of the police officers into their flat on 5 August 2002 was unlawful since they did not have a warrant of arrest and failed even to show their ID.
11.
The first applicant complains under Article 10 of the Convention that her freedom to receive and impart information was violated.
In particular: (a) the prosecution failed to adduce any evidence proving that the information she received from E.O.
and A.Y.
was communicated to a foreign intelligence service; and (b) she was convicted for communicating information which was in the public domain.
12.
The applicants complain under Article 13 of the Convention that the domestic courts did not provide an effective remedy, by failing to examine their case objectively.
13.
The applicants complain under Article 14 of the Convention that they were subjected to discrimination during the trial because of being ethnic Russians.
14.
The applicants complain under Article 1 of Protocol No.
1 that (a) as a result of their conviction they were deprived of all their property; and (b) some of their belongings were stolen during the search of their home, while some other personal items were seized and never returned.
QUESTIONS TO THE PARTIES 1.
Did the applicants exhaust the domestic remedies in respect of their complaints under Article 6 of the Convention, as required by Article 35 § 1 of the Convention?
The Government are requested to submit copies of all the relevant complaints, motions and applications lodged by the applicants during the investigation and court proceedings, copies of their appeals lodged with the courts against their conviction and copies of the relevant sections of the records of court hearings in which the applicants raised any of these complaints.
2.
Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention?
In particular: - did the admission as evidence of the applicants’ confession statements (explanations) impair the fairness of the proceedings in question?
The Government are requested to provide details, including copies of all relevant documents, about the circumstances in which these confession statements were obtained.
- did the admission as evidence of the material obtained as a result of secret surveillance impair the fairness of the proceedings in question?
- was the fact that only the transcript of secretly recorded material was disclosed to the defence and produced in court, as opposed to the tape recordings themselves, compatible with the fairness requirement of that article?
- were their rights guaranteed by Article 6 § 3 (b) and (c) of the Convention respected?
In particular, were the applicants’ right to have adequate facilities for the preparation of their defence and their right to effective legal assistance ensured in the course of the criminal proceedings against him?
The Government are requested to provide copies of all the documents related to the appointment, removal and replacement of a lawyer, as well as copies of all the records of the applicants’ questionings during the investigation and copies of all the documents related to the applicants’ access to the case file after the completion of the investigation.
- were the applicants able to examine witnesses against them, as required by Article 6 § 3 (d) of the Convention?
- did the applicants require, and were they afforded, the free assistance of an interpreter, within the meaning of Article 6 § 3 (e) of the Convention?
The Government are requested to provide copies of all the documents related to the appointment, removal and replacement of an interpreter, if any.
2.
Have the applicants exhausted the domestic remedies in respect of their complaints under Article 8 of the Convention concerning the interferences with their right to respect for their private life, correspondence and home, and lodged these complaints within six months from the date of the final decision, as required by Article 35 § 1 of the Convention?
The Government are requested to provide copies of all the complaints and appeals lodged by the applicants in connection with these complaints.
3.
Has there been a violation of the applicants’ right to respect for their private life, correspondence and home, contrary to Article 8 of the Convention, as regards the secret surveillance of the conversations in their flat?
The Government are requested to provide a copy of the decision of the Kentron and Nork-Marash District Court of Yerevan authorising the secret surveillance of the first applicant’s flat.
4.
Has there been a violation of the applicants’ right to respect for their private life, correspondence and home, contrary to Article 8 of the Convention, as regards the secret surveillance of their telephone conversations?
The Government are requested to provide a copy of the decision of the Kentron and Nork-Marash District Court of Yerevan authorising the secret surveillance of the applicants’ telephone conversations.
5.
Has there been a violation of the applicants’ right to respect for home, contrary to Article 8 of the Convention, as regards both the grounds for the search warrant and its manner of execution?
The Government are requested to submit a copy of the investigator’s motion seeking to have the first applicant’s flat searched and a typewritten transcript of the search record (խուզարկության արձանագրություն).
23 January 2009 THE FACTS The applicants, Ms Nina Shilina and Mr Edgar Filkov, are Armenian nationals who were born in 1949 and 1972 and are currently serving prison sentences in Abovyan and Kentron penitentiary institutions situated in Abovyan and Yerevan respectively.
They are represented before the Court by Mr N. Koval, a lawyer practising in Kiev.
A.
The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows.
1.
Background to the case The applicants are husband and wife.
They are ethnic Russians and do not appear to have a command of Armenian.
In 1988 the applicant Shilina (hereafter the first applicant) moved from Sumgait, Azerbaijani SSR, to the town of Jermuk, Armenian SSR.
In 1993 the first applicant moved to live in Baku.
In 1997 the first applicant met the applicant Filkov (hereafter the second applicant) whom she married.
The same year they moved to Armenia, first to Yeghegnadzor, then to Artashat and finally to Yerevan.
On 27 July 2000 the first applicant, who at that time still held an old Soviet passport, applied to the Armenian authorities to receive a new passport since she had lost her old one.
On 9 August 2000 she was granted an Armenian passport.
2.
The first investigative measures On 20 June 2002 a third person, E.O., whose husband, A.O., had worked for several years at the General Headquarters of the Ministry of Defence of Armenia before being dismissed in December 2001, filed a report with the Ministry of National Security (MNS), giving the following information.
From February 2001 until May 2002 she and her husband had been neighbours of the applicants, with whom they had had a friendly relationship.
The first applicant had often inquired about her husband’s work and on one occasion even persuaded her to let her copy materials from her husband’s work-related notebook, which he kept at home and which contained information concerning military units, their locations and the names of commanders.
On 16 January 2002, at the birthday party of another neighbour, A.Y., the first applicant, in a private conversation with E.O., had started inciting her to collect information of a military nature about Armenia, promising good remuneration.
The first applicant had said that this information would then be communicated to acquaintances whom she met on her frequent visits to Tbilisi.
She had not specified the identities of those acquaintances.
She had advised E.O.
to use her contacts in order to get a job at the General Headquarters.
Not having received a definite answer from E.O., the first applicant had repeated her request at a later meeting at the beginning of June 2002, specifying in greater detail the type of information required and blackmailing E.O., after which E.O.
had decided to report the first applicant’s actions.
On 26 June 2002 the investigator filed a motion with the Kentron and Nork-Marash District Court of Yerevan (Երեւան քաղաքի Կենտրոն եւ Նորք-Մարաշ համայնքների առաջին ատյանի դատարան), seeking to have the applicants’ flat bugged.
The request stated: “Operative information has been received at the Operative Department of the [MNS] about the resident of Yerevan, [the first applicant], regularly meeting with persons who are of interest to the [MNS] and collecting information about the Armenian Armed Forces.
[I decided to file a motion seeking authorisation to have the conversations taking place in the first applicant’s flat intercepted and recorded for a period of six months] in view of the fact that the conversations taking place in [the first applicant’s] flat may contain information corroborating the above circumstance, the use of which will facilitate the disclosure of a crime and the collection of evidence, since [the first applicant’s] actions contain a criminal element envisaged by Article 59 of the Criminal Code [(hereafter, the former CC)]...” On an unspecified date the Kentron and Nork-Marash District Court of Yerevan decided to grant this request.
It appears that the applicants’ telephone was tapped and their flat was bugged.
They allege that the listening device in their flat was planted by one of their neighbours.
On 1 July 2002 another report was filed with the MNS, this time by neighbour A.Y., giving the following information.
In April 2001 A.Y.
had moved from Russia to Yerevan, where he had lived on the same floor as the applicants, with whom he had soon created a friendly relationship.
Once, during a lunch with the first applicant in the summer of 2001, she had told him that several years earlier in Tbilisi she had been recruited by intelligence services, for whom she had since been collecting information concerning Armenia.
She had offered A.Y.
remuneration if he also agreed to collect information, including information concerning the military unit in Berd.
In August 2001 the applicants had moved out of their flat but the first applicant had repeated her offer at later meetings in November 2001 and on 29 June 2002.
At the last meeting, the first applicant had specified in greater detail the information required, which had also included the military unit situated in a village not far from Berd called Mehrab.
Since he had had problems understanding the name of that village, she had written the name plus the first three digits of the military unit in Berd on a sheet of paper.
Having concluded that the first applicant was involved in illegal activities, A.Y.
had decided to report her actions.
It appears that, following this additional report, the MNS officers requested authorisation to carry out an investigative operation involving A.Y., who was instructed to offer his services to the first applicant in obtaining the requested information.
It further appears that this operation was carried out in the course of July 2002.
On 27 July 2002 A.Y.
provided a further explanation.
He submitted that on 2 July 2002 he had visited the first applicant at home, where they had discussed his trip to Berd for the purpose of obtaining information about the number, type and commanders of the military unit.
The first applicant had promised to pay him 50 United States dollars (USD) after her forthcoming trip to Tbilisi.
On 9 July 2002 A.Y.
had travelled to Berd where he had spent one day and upon returning to Yerevan had visited the first applicant on 11 July 2002.
During this meeting A.Y.
had made a drawing of the routes from Yerevan to Berd and then to the village of Tavuz, and the location of the relevant military units.
He had also informed the first applicant about the quantity of equipment and number of servicemen in the military unit, and the number, type and commanders of the unit.
The promised remuneration was paid to A.Y.
on 26 July 2002 in the presence of the second applicant).
It appears that the above drawings and information were provided to the first applicant by A.Y.
in accordance with the plans and information given to him by the MNS officers.
3.
The applicants’ arrest and prosecution The applicants allege that they were arrested by MNS officers on 5 August 2002 at around 5 p.m. – the first applicant at home, the second applicant in the street.
No warrants of arrest were presented to them and they were immediately taken to the MNS, each being unaware of the other’s arrest.
During the following day of unrecorded arrest they were forced to confess.
The first applicant was questioned by MNS officer G. who threatened that, if she refused to cooperate, the second applicant and her son, R.K., would also be arrested.
Furthermore, criminal liability would be imposed on her son for avoiding military service.
On the other hand, if she agreed to cooperate, the second applicant and her son would avoid any trouble and she would be assisted in overcoming her own problems.
Officer G. also offered her a deal, namely to become a counterintelligence agent.
Thereafter the first applicant agreed to write an explanation (բացատրություն), with hints and leads given by officer G., inventing a story of her involvement with the intelligence services by using some real people and events.
The second applicant, in the meantime, was kept overnight in a different office where MNS officers were forcing him to admit that he was an Azerbaijani spy.
They used threats, including to arrest his entire family, shouting and swear words addressed at his family members.
His requests for medical assistance were refused.
When the second applicant refused to confess, one of the MNS officers threatened to execute him.
The applicants further allege that the next morning officer G. came to the office where the first applicant was kept, to pick up her written explanation.
In reply to her inquiry as to whether she was entitled to have a lawyer, officer G. replied that, if she wanted one, she would need to be taken to an investigator but then their deal would no longer be possible.
Officer G. left and came back in about one hour and asked the first applicant to write about how the second applicant had been recruited by the intelligence services.
She refused but officer G. told her that the second applicant was already at the MNS and was writing his confession.
He threatened that the second applicant would be kept under arrest until she agreed to write the necessary explanation.
After some more pressure, the first applicant agreed to write an explanation implicating the second applicant.
This explanation was shown to the second applicant who then also agreed to write an explanation after he was persuaded that he would thereby help his wife.
According to the materials of the case, the applicants were brought to the MNS on 6 August 2002 at an unspecified time.
There, during the several hours preceding their formal arrest, they wrote the above-mentioned explanations confessing to the crime.
The first applicant described in detail how, in the spring of 1993, she had been recruited by the Azerbaijani intelligence services and had provided military and other information to them under the codename “Argo”.
At first she had been based in Baku but in 1998 she had moved back to Armenia and continued her cooperation with a meeting point in Tbilisi.
The information in question was gathered mainly from Armenian newspapers.
Her last assignment, which she had received at the beginning of 2002, was to collect information about the military unit in Berd, which she decided to do with the help of a former neighbour, A.Y., whose nephew was performing his military service somewhere near Berd.
The first applicant also submitted that the Azerbaijani intelligence services had expressed interest in her former neighbour, officer A.O., but her relationship with him had not been good enough for her to obtain any information.
The second applicant stated that in 1997 he had travelled to Tbilisi with the first applicant where they had met some secret agents who had tricked him into signing papers certifying his cooperation with them under the codename “Johnny”.
On 6 August 2002 criminal proceedings were instituted under Article 59 of the former CC.
The decision stated that in 1993 the applicants had been recruited by the Azerbaijani intelligence services and since then they had collected and provided to them both secret and other information to the detriment of Armenia’s sovereignty, territorial integrity, national security and defence.
It appears that, on the same date, the investigator filed a motion with the Kentron and Nork-Marash District Court of Yerevan, seeking to have the first applicant’s flat searched on the ground that documents and materials containing military secrets and other information, as well as objects, articles, currency, sums of money and stocks substantiating the fact of espionage could be found in the flat.
At an unspecified hour the Kentron and Nork-Marash District Court examined and decided to grant this motion.
The judicial warrant stated: “Having studied the materials of the criminal case and the motion submitted by the investigating authority, the court finds that the motion must be granted since there are sufficient grounds to believe that documents and materials containing military secrets and other information, as well as objects, articles, currency, sums of money and stocks substantiating the fact of espionage could be found in [the first applicant’s] flat.” It was stated in the warrant that it could be contested before the Criminal and Military Court of Appeal (ՀՀ քրեական եւ զինվորական գործերով վերաքննիչ դատարան).
From 6.05 p.m. to 7.40 p.m. the applicants’ flat was searched.
The search was conducted in the presence of two neighbours, who had been invited to participate as attesting witnesses, and the applicants’ landlady to whom the search warrant had been presented.
As a result, a total of twenty-eight different objects were seized, including several notebooks belonging to the first applicant, several telephone/address books, a world map published in 1986, a map of the Vayots Dzor Region of Armenia, a map of Sumgait, a piece of paper containing notes in Georgian, a map of the Georgian military route, а telephone directory, three photograph albums, three envelopes containing letters, various IDs and documents, some books in Russian, a 20 dollar bill, documents related to the second applicant’s job application to the military unit in Yeghegnadzor, a bank transfer slip certifying the transfer of USD 10 to the first applicant’s son R.K. on 31 July 2002, and a piece of a yellow-coloured substance.
As regards the latter, it appears that it was later examined and found to be trotyl, which the applicants allege was placed in their flat by neighbour A.Y.
At 7.35 p.m. and 8.40 p.m. the second and the first applicants respectively were formally arrested.
The relevant arrest records stated that the applicants were arrested in offices nos.
401 and 491 of the MNS.
On 7 August 2002 a legal aid lawyer, G.M., was appointed to represent both applicants.
On the same date an interpreter was invited to participate in the case.
From 2.25 p.m. to 9.55 p.m. the first applicant was questioned as a suspect by investigator O. in office no.
491, during which she repeated her earlier statements.
The first applicant alleges that the investigator gave her a copy of her earlier explanation and pressured her to copy it.
From 6.20 p.m. to 9.15 p.m. the second applicant was questioned as a suspect by investigator Z. in office no.
475.
Both records of the above questionings were signed by the first and the second applicants respectively, the relevant investigator and lawyer G.M.
On 8 August 2002 the first applicant was formally charged with high treason in the form of espionage under Article 59 of the former CC.
This decision stated that the applicant had been recruited by the Azerbaijani intelligence services in 1993 and since then she had been collecting, and providing to them, information about the military units situated in Armenia, their commanders, servicemen and equipment, and the political and economic situation in the country, as well as a number of Armenian newspapers.
She was also accused of recruiting a number of other individuals, including the second applicant and their relatives, I.F.
and A.G. On the same date the two other suspects in the case, I.F.
and A.G., were also arrested.
They were also later charged with high treason.
On the same date neighbour A.Y.
was questioned as a witness, during which he repeated his earlier statements.
On 9 August 2002 the second applicant was formally charged with high treason under Article 59 of the former CC.
On the same date the second applicant was questioned as an accused.
He admitted guilt and repeated his earlier statements.
The record of the questioning was drawn up in Armenian and was signed, inter alia, by lawyer G.M.
and an interpreter.
On the same date the applicants were detained by court order.
It appears that from August until the end of the investigation in November 2002 the applicants were questioned on numerous occasions and participated in various investigative measures.
They allege that throughout this entire period lawyer G.M.
appeared on only two occasions, while the interpreter was absent until November 2002.
On 11 September 2002 an expert opinion was prepared, according to which the information on pages 2 to 6 of officer A.O.’s notebook contained State secrets.
On 10 October 2002 an investigative experiment was carried out with the participation of the first applicant.
This experiment was connected with another suspicion against the first applicant, namely that she had attempted to commit an act of sabotage in 1993 in the Erebuni hotel in Yerevan.
It involved the first applicant identifying the relevant room at the hotel and describing the circumstances of this attempted offence.
On 13 November 2002 the first applicant’s son R.K. was questioned by investigator O. in Ukraine where he lived at that time.
R.K., who had allegedly been aware of his mother’s cooperation with the Azerbaijani intelligence service, described certain details of his life with his mother in Baku between 1993 and 1996, which included information related to her spying activity.
It appears that R.K. refused to sign this statement so it was signed by the investigator instead.
On 21 November 2002 officer A.O.
was charged with divulging State secrets.
On 26 November 2002 the charge against the first applicant was modified and the accusation of an attempted act of sabotage was added under Article 63 in conjunction with Article 15 of the former CC.
From 27 November to 10 December 2002 the first applicant was granted access to the case file.
From 28 November to 9 December 2002 the second applicant was granted access to the case file.
On 20 December 2002 the Deputy General Prosecutor approved the indictment, including the list of prosecution witnesses to be summoned to court.
The list contained the names of nineteen witnesses, including neighbour A.Y.
Neighbour E.O.
was not included in that list.
4.
The court proceedings On 19 March 2003 the trial commenced in the Kentron and Nork-Marash District Court of Yerevan.
It appears that a new lawyer was appointed on that date to represent the applicants.
It appears that from 7 May to 7 October 2003 the trial was conducted in camera.
This decision was apparently motivated by the fact that certain materials containing State secrets were being examined in court.
On 1 August 2003 a new Criminal Code (hereafter, the new CC) entered into force in Armenia.
It appears that in the proceedings before the District Court the applicants denied part of the statements contained in their confessions made during the investigation and, when making their final defence speeches, completely retracted these confessions.
It further appears that they alleged that they had not in reality been assisted by a lawyer or an interpreter during the investigation.
They requested that lawyer G.M.
and the relevant interpreter be summoned to court but these requests were overruled.
On 26 January 2004 the Kentron and Nork-Marash District Court of Yerevan found the first applicant guilty of high treason under Article 299 § 1 and an attempted act of sabotage under Article 303 in conjunction with Article 34 of the new CC, and the second applicant guilty of high treason under Article 299 § 1 of the new CC.
The District Court sentenced the first and second applicants to fifteen and thirteen years’ imprisonment respectively.
The co-accused, I.F.
and A.G., were sentenced to ten years’ and officer A.O.
to one year and six months’ imprisonment.
In doing so, the District Court established the following.
In 1988 the first applicant moved from Azerbaijan to Armenia.
In 1993 on her trip to Tbilisi she was spotted and later recruited by the Azerbaijani secret services who entrusted her with carrying out subversive and spying activities in Armenia.
The first applicant then moved to Baku with her son.
In May 1993 she received an assignment to carry out an act of sabotage together with a third person, R., in the Erebuni hotel in Yerevan.
Having arrived at the hotel, the first applicant and R. checked into a room which was intended for the night shift guard, S.K., upon the latter’s consent.
Two days later they departed unexpectedly, having planted in the room an explosive made of trotyl, which did not go off for technical reasons.
Thereafter the first applicant was entrusted with collecting information about the political and socio-economic situation in Armenia, which she did on her subsequent trips to Armenia, using mass media publications and making inquiries.
In 1995 she was assigned with the code name “Argo” and was instructed to collect military and other information in Armenia and Nagorno Karabakh, including the location and numbers of military units, their commanders, officers, equipment and armament, the Russian military units, the political and socio-economic situation in Armenia, petrol prices and merchandise imported from Iran.
The first applicant was also entrusted with establishing contacts with military officials and politicians and exploring the possibilities of their recruitment.
In 1995 and 1996 I.F.
and A.G. respectively became involved in the first applicant’s espionage network, carrying out various assignments.
The first applicant married A.G.’s brother, the second applicant, who was also recruited in 1997 under the code name “Johnny” and was assigned to collecting military information in Armenia and getting a job at the military unit in Yeghegnadzor.
From that period until 6 August 2002 he participated in the criminal activities described above and, together with the first applicant, disposed of the proceeds received by her for providing military and other information to the secret services.
From 1995 to 1997 the first applicant regularly travelled from Baku to Armenia and, having collected military and other information, communicated it to the secret services, on each occasion receiving USD 150-300 as remuneration.
From April 1997, having moved to Armenia, first to Yeghegnadzor and Artashat and finally to Yerevan, she continued these activities by making regular trips to Tbilisi until her arrest on 6 August 2002.
Having moved to Yeghegnadzor, the second applicant took steps to get a job at the military unit but later gave up the idea.
As regards in particular the period between 1997 and 2002, the District Court noted: “From the moment of her arrival and during her stay in Armenia [the first applicant] communicated information about the [Armenian] and [Russian] military units located in Yerevan, the communications unit and the Russian border-guarding brigade located in Artashat, the military units located along the Yerevan-Yeghegnadzor highway, the military units located in the town of Yeghegnadzor, the villages of Berd and Tavuz of the Tavush Region, and the town of Stepanakert and the Mardakert Region of [Nagorno Karabakh], and the flights from Yerevan’s Erebuni airport to Stepanakert.
For the information about the military units located in the town of Berd and the village of Tavuz of the Tavush Region received from [A.Y.]
in July 2002, [the first applicant] gave him USD 50 out of the promised USD 100 in the presence of [the second applicant].
Having established close relations with a number of military officers, she communicated information about them, their telephone numbers and characteristics to the [Azerbaijani] intelligence service, having been instructed by the latter to consolidate [her] relations with some of them to check the appropriateness of their future recruitment.
In particular, [she established contact] with the officer of the Yeghegnadzor military unit [A.G.] and the former senior officer of the operative department of [the General Headquarters of the Ministry of Defence of Armenia A.O.].
[A.G.] was of interest to them because he had received his higher education in Baku, was ethnic Georgian and had relatives in Georgia, while [A.O.
was interested] because of his post at the General Headquarters[.
H]owever, some while after receiving the above information, [the Azerbaijani intelligence officers] lost interest in them and did not ask for additional information.
[The first applicant] also used public sources of information to collect and communicate military and other information[, such as] the press, television, and telephone and address books, and regularly provided to the [Azerbaijani] intelligence service copies of a number of newspapers published in [Armenia]... From March to August 2001 [the first applicant] rented a flat ... neighbouring that of [A.O.’s] family and maintained close relations with them.
Due to the fact that [A.O.]
served as a senior officer of the operative department of [the General Headquarters of the Ministry of Defence of Armenia] and, contrary to the interests of [his] service, kept at home a notebook with notes on [his] official activities, pages 2 to 6 of which contained notes on the organisational structure of military units of the armed forces located in [Armenia] and [Nagorno Karabakh], the code and real names of the military units and their permanent locations, as well as information on the call signs of the above military units, personal data and the telephone numbers of the commanders, [the first applicant] during a visit to their flat in October 2001, having familiarised herself with the content of the notebook, asked [A.O.’s] wife, [E.O.
], to copy and to communicate to her information contained in pages 2 to 6 of the notebook without giving any reasons.
Having implemented [the first applicant’s] request, [E.O.
], upon her husband’s consent, copied this information on four sheets of paper and communicated it to the applicant during their next meeting, and it was later transmitted by [the first applicant] to the Azerbaijani intelligence officers.
According to the conclusion of the experts of the General Headquarters [of the Ministry of Defence of Armenia], the military information contained in pages 2 to 6 of [A.O.’s] notebook contains State secrets.” In reaching these findings, the District Court rejected the applicants’ arguments about their innocence, relying on their confessions made during the investigation and other evidence, including nineteen witness statements, neighbour E.O.’s report of 20 June 2002 and various material evidence.
As regards the charge of high treason, the District Court relied on fifteen witness statements and neighbour E.O.’s report of 20 June 2002.
The statements of neighbour A.Y.
and the first applicant’s son R.K. and E.O.’s above-mentioned report were read out in court, since A.Y.
and R.K. had apparently failed to appear, while E.O.
had not been included in the list of witnesses.
The remaining thirteen witness statements contained general information about the lifestyle of the applicants and other co-accused, including their trips to Tbilisi and Nagorno Karabakh.
As regards the charge of the act of sabotage, the District Court relied on the statements of employees of the Erebuni hotel, G.M., F.G., S.K.
and A.K.
and expert F.B., of whom only G.M.
and F.G. had been examined in court.
Witnesses S.K.
and A.K., who were the only employees of the hotel who had allegedly met the first applicant and R., who were described by these witnesses as the “Armenian married couple from Krasnodar”, had died in 1994 and 1998 respectively and the District Court read out their statements made in July 1993 during an investigation into that incident.
Expert F.B., who in 1993 had examined the explosives found in the hotel room, failed to appear and requested that the Court rely on his statement made during the investigation.
As material evidence, the District Court cited (a) a 50 dollar bill paid by the first applicant to neighbour A.Y.
; (b) the sheet of paper on which the first applicant wrote instructions for A.Y., including the names of locations such as Berd and Mehrab and the number of the military unit; (c) the plan of the military unit in Berd drawn by A.Y.
; (d) the objects seized during the search, including a 20 dollar bill paid to the first applicant by the Azerbaijani intelligence officers, two notebooks in which she had made notes related to her criminal activities, a telephone directory from which she had provided information to the Azerbaijani intelligence officers, documents related to the second applicant’s job application to the military unit in Yeghegnadzor, and a bank transfer slip certifying the transfer of USD 10 to the first applicant’s son R.K. on 31 July 2002; (e) a number of objects seized during the search of the flat of co-accused I.F.
; (f) officer A.O.’s notebook; (g) sixty-five tape recordings of intercepted telephone calls and conversations in the applicants’ flat; and (h) the explosive ingredients discovered on 31 May 1993 in room no.
313 of the Erebuni hotel.
The District Court also cited a number of records prepared during the investigation, including the record of photo identification by the applicants of one of the Azerbaijani intelligence officers and the record of photo identification by the first applicant of the night shift guard of the Erebuni hotel, S.K., and the expert opinion of 11 September 2002.
On 1 February 2004 the first applicant lodged an appeal.
She claimed that the prosecuting authority had failed to submit any evidence corroborating the charge.
None of the witnesses examined in court had made implicating statements, while other witnesses, who had made such statements, had not been examined during either the investigation or the court proceedings.
She further claimed that the charge had been based on her false confession statement which had been obtained by unlawful means and which she had retracted in court.
She finally complained that part of the trial had been held in camera and that the District Court had failed to examine her complaints about the absence of the lawyer and the interpreter during the investigation.
On 2 February 2004 the second applicant also lodged an appeal, stating that his conviction was unsubstantiated and that he would submit further reasons after receiving a copy of the judgment.
On an unspecified date the first applicant’s son, R.K., filed an application with the General Prosecutor of Armenia, revoking his witness statement of 13 November 2002 on the ground that the statement had been obtained by investigator O. by means of trickery and threats.
He requested that the statement, which had not even been signed by him, be excluded from the evidence.
R.K. further added that he had not been examined in the proceedings before the District Court, despite the fact that the charge had been partly based on his witness statement.
According to the first applicant, on 29 June 2004 she lodged several complaints with the General Prosecutor, alleging, inter alia, that lawyer G.M., by not providing any legal assistance during the investigation, had actually been siding with the investigator, that the interpreter had not been present during the investigation, that the report of her neighbour E.O.
of 20 June 2002 contained false information and that a number of her belongings had been looted during the search of her flat.
It appears that a list of such items was attached to her last complaint.
By a letter of 6 July 2004 the General Prosecutor’s Office informed the first applicant that her complaints about allegedly unlawful actions of investigator O. and lawyer G.M.
during the investigation had been examined and not confirmed.
On 19 July 2004 the Criminal and Military Court of Appeal upheld the applicants’ conviction.
The Court of Appeal relied on the same evidence as the District Court, in addition citing parts of the transcripts of the tape recordings which had been examined in court and which contained the first applicant’s conversations with neighbour A.Y.
that had taken place in July 2002 and a number of other conversations in which the first applicant expressed fear about being exposed by A.Y.
and mentioned the reasons for becoming involved in spying activities.
In dismissing the arguments raised in the applicants’ appeals, the Court of Appeal found: “[The applicant’s] arguments that procedural violations have taken place during the investigation, in particular, that the lawyer, the interpreter and the attesting witnesses have not participated in all the investigative measures or that their participation has been of a formal nature, are rebutted by the records of questionings and of other investigative measures, according to which, in compliance with rules of criminal procedure, the lawyer, the interpreter and the attesting witnesses have participated in the necessary investigative measures, [which they] have confirmed with their signatures, while neither [the applicants] nor the other accused filed any applications and motions during the investigation alleging a breach of their rights or raising any other question.
During the investigation the interpreter was only absent from the investigative measure which was carried out with [the first applicant’s] participation on 10 October 2002[.
This measure] – from the beginning to the end – was conducted in Russian and the record was also drawn up in Russian, which contradicted the requirements of [the CCP], but taking into account the fact that Russian was [the first applicant’s] mother tongue ... the Court of Appeal considers that in essence her rights were not violated and does not regard this as a substantial violation of rules of criminal procedure.
Nor can the drawing up of the arrest record only several hours after [the applicants and I.F.]
were brought to the [MNS] and necessary statements were taken from them be considered as such.” On 21 July 2004 the first applicant lodged an appeal on points of law.
In her appeal she claimed that the charge against her was based solely on her confession statement and the false statements of E.O., A.Y.
and R.K. None of these persons had been examined during the investigation or the court proceedings.
Furthermore, E.O.’s report should not have been used as evidence because she had not even been included in the list of witnesses, while R.K.’s statement did not contain his signature and had later been retracted by him.
She further claimed that the courts should not have relied on the results of the secretly intercepted conversations because only the transcript of the alleged tape recordings had been produced in court but not the recordings themselves.
Moreover, these recordings had never been disclosed to her.
She finally claimed that she had not been assisted by a lawyer or an interpreter during the investigation.
On 27 July 2004 the first applicant supplemented her initial appeal on points of law.
She submitted, inter alia, that she had confessed during her unrecorded arrest and that she been convicted partly for communicating information which was in the public domain.
On 21 July 2004 the second applicant also lodged an appeal on points of law, complaining about the fact that the tape recordings had not been examined in court and that he had not been assisted by a lawyer or an interpreter during the investigation.
On 3 September 2004 the Court of Cassation dismissed the applicants’ appeals.
In doing so, the Court of Cassation found: “[The second applicant’s] guilt for committing a crime envisaged by Article 299 of [the CC] is substantiated by the entirety of evidence which has been obtained in compliance with the guarantees of [the CCP] and which has been examined in court and spelled out in the judgment.
In particular, his confession statement made during the investigation and in the court of first instance and the statements of the defendants [I.F., A.G. and A.H. and the first applicant] made during the investigation and in court... [The second applicant’s] guilt is also substantiated by the statements of [S.K., A.K., G.M., F.G., A.Y., N.F., I.G., A.A., R.A., G.K., V.H., G.H., A.G., A.N., J.B. and R.K.].
The veracity of the above statements and their correspondence with the circumstances of the case are substantiated by the following evidence which has been examined in court: the records of searches of [the applicants’ and I.F.’s] flats; 65 tape recordings of covert interception of telephone conversations and their transcripts; the record of a person’s photo identification; the certificate of 11 September 2001 from Anelik Bank, the record of examination of the hotel register in Mardakert in [Nagorno Karabakh]; the expert opinion of 11 September 2002 concerning the degree of secrecy of information and other materials.
The mentioned evidence has been properly examined during the court proceedings... [The applicants’] arguments raised in the appeals that no lawyer, interpreter or attesting witnesses were present during the investigative measures carried out during the investigation are groundless and are not supported by the materials of the case since, as it transpires from the case file, all the questionings and investigative measures have been carried out in compliance with the procedural rules[.
T]he presence of the lawyer, the interpreter and the attesting witnesses is confirmed by their signatures and there are no reasons to doubt the authenticity [of these signatures].
[The first applicant’s] arguments that she was also not acquainted with all the materials of the case during the investigation and with the record of the court hearing are also groundless.
It follows from the record of presenting the materials of the criminal case to the defendant ... that [the first applicant] and her lawyer [G.M.]
were acquainting themselves with volume 2 on 27 November 2002 from 10 a.m. to 12.15 p.m. and from 2 p.m. to 5.50 p.m., with pages 1 to 172 of volume 1 on 2 December from 10.05 a.m. to 5 p.m., with pages 173 to 247 of volume 1 on 4 December from 10 a.m. to 12.45 p.m., with volume 3 on 8 December from 10 a.m. to 2 p.m.. with pages 1 to 119 of volume 4 on 9 December, and with pages 120 to 212 of volume 4 on 10 December from 3 p.m. to 6 p.m.
The defendant and her lawyer, having signed the record, did not make any statements or requests.
... As regards the other argument raised by [the applicants] that tape recordings of secret surveillance recognised as material evidence were not examined during the court proceedings, it is evident from the materials of the case that the secret surveillance was carried out in compliance with the provisions of the Code of Criminal Procedure and the tape recordings were recognised as material evidence.
These recordings were transcribed and on that basis a transcript was drawn up containing a word-for-word account of the conversations.
The above transcripts, in their parts relevant to the scope of the charge, were read out and examined during the court proceedings.
In such circumstances, the court’s refusal to grant the request to have the recordings played back [in court] was well-founded and reasoned.
As regards [the first applicant’s] argument that the witness statements mentioned in her appeal were false, this is also not supported by the materials of the case, since the veracity of these statements was duly checked by the court by correlating with other evidence and was justly recognised as admissible...” B.
Relevant domestic law 1.
The Code of Criminal Procedure (in force from 12 January 1999) The relevant provisions of the Code, as in force at the material time, provide: Article 55: The investigator “1.
The investigator is the public official who conducts an investigation into a criminal case within the scope of his competences.
... 4.
The investigator shall be, in particular, entitled: ... (12) to engage ... interpreters ... in the case...; (16) to ensure the appointment of lawyers as defence counsel in a criminal case...” Article 62: A suspect “1.
A suspect is the person ... who has been arrested on suspicion of having committed an offence...” Article 63: Rights and obligations of a suspect “1.
The suspect has the right to defence.
The investigating authority shall allow the suspect to implement his right to defence by all lawful means.
2.
The suspect, in accordance with a procedure prescribed by this Code, has the right: ... (4) to have a defence counsel ... from the moment when he is presented with the investigating authority’s decision on arrest, the record of arrest or the decision on choosing a preventive measure...; (6) to be questioned in the presence of [his] defence counsel...” Article 65: Rights and obligations of an accused “1.
The accused has the right to defence.
The investigating authority shall allow the accused to implement his right to defence by all lawful means.
2.
The accused, in accordance with a procedure prescribed by this Code, has the right: ... (3) to have a defence counsel ... from the moment when the charge is brought; (6) to be questioned in the presence of [his] defence counsel...” Article 69: Compulsory participation of defence counsel “1.
A defence counsel’s participation in the criminal proceedings is compulsory if: (1) the suspect or the accused expressed such a wish; ... (4) the suspect or the accused does not have a command or does not have a sufficient command of the language in which the criminal proceedings are conducted... ... 4.
The defence counsel’s compulsory participation in the criminal proceedings shall be secured by the authority dealing with the criminal case.” Article 70: Inviting, appointing and replacing defence counsel and other grounds for his participation in the proceedings “1.
Lawyers shall participate in the criminal proceedings as defence counsel: ... (2) by being appointed by the Armenian Union of Advocates upon the request of the authority dealing with the criminal case...” Article 86: A witness “1.
A witness is the person, who may be aware of the circumstances to be clarified in the given case, called by the party or the authority dealing with the criminal case to make a statement.” Article 104: The notion of evidence “2.
The following evidence shall be admitted in the criminal proceedings: (1) the statements of the suspect; (2) the statements of the accused; (3) the statements of the victim; (4) the statements of a witness; (5) the statements of the convicted person; (6) an expert opinion; (7) material evidence; (8) records of investigative and judicial measures; [and] (9) other documents.” Article 105: Materials inadmissible as evidence “1.
The [following] materials cannot constitute the basis for charges and be used as evidence in criminal proceedings: (1) [materials obtained] under violence, threat, trickery, humiliation of a person, and through other unlawful actions; (2) [materials obtained] with substantial violation of the right to defence of the suspect and the accused and of the rights and the additional guarantees prescribed by this Code of persons not having a command of the language in which the proceedings are conducted; ... (5) [materials obtained] in violation of the procedure for carrying out an investigative or [any] other procedural measure...” Article 106: Establishment of inadmissibility of evidence “1.
The inadmissibility of factual data as evidence, and the possibility of their limited use in the proceedings, shall be established by the authority dealing with the case of its own motion or upon the request of a party.
2.
The obligation to substantiate the admissibility of evidence is laid on the party having obtained the evidence.
If the requirements of this Code were upheld when the evidence was obtained, the obligation to substantiate its inadmissibility lies with the party contesting its admissibility.” Article 128: The notion of arrest “1.
An arrest is [the act of] taking a person into custody, bringing him before the investigating authority or the authority dealing with the case, drawing up a relevant record and informing him about it, with the aim of keeping [that person] in short-term custody in places and conditions defined by the law.
Article 216: Confrontation “1.
The investigator is entitled to carry out a confrontation of two persons who have been questioned previously and whose statements contain substantial contradictions.
The investigator is obliged to carry out a confrontation if there are substantial contradictions between the statements of the accused and some other person.” Article 225: Grounds for conducting a search “1.
The investigator, having sufficient grounds to believe that on some premises or in some other place or in somebody’s possession there are instruments of crime, objects and valuables acquired by criminal means, as well as other objects and documents which may be important for the case, shall conduct a search in order to find and take such objects.
... 3.
The search of a home is conducted only by a judicial warrant.” Article 227: Persons present during a search or a seizure “1.
A search or a seizure shall be conducted in the presence of attesting witnesses.
2.
If necessary, an interpreter and an expert shall take part in the search or the seizure.
3.
The presence of the person and his adult family member, in whose presence the search or the seizure is being conducted, must be ensured when conducting the search or the seizure.
If their presence is impossible, a representative of the apartment maintenance office or the local authority shall be invited.
... 5.
The persons whose premises are being searched or whose items are being seized, as well as the attesting witnesses, specialists, interpreters, representatives and lawyers are entitled to be present during all the actions of the investigator and to make statements which must be entered into the record.” Article 228: Procedure for conducting a search or a seizure 1.
The investigator shall be entitled to enter any dwellings or other premises on the basis of the search or seizure warrant.
2.
Before starting the search or the seizure the investigator shall be obliged to present the search warrant to the person whose premises are being searched or whose items are being seized.
This should be confirmed by his signature.
3.
When conducting a search, the investigator or the specialist can use technical tools[.
This fact] should be indicated in the search record.
4.
The investigator shall be obliged to take measures to prevent the fact of a search or a seizure, including their results and the personal circumstances of the person whose premises are being searched, from being made public.
5.
The investigator shall be entitled to prohibit the persons present at the premises, which are being searched or where a seizure is being conducted, from leaving or from communicating with each other and others before the investigative measure is over.
... 7.
When conducting a search, after presenting and making public the search warrant, the investigator shall advise the surrender of the objects and documents subject to seizure or of a person in hiding.
If such items are surrendered voluntarily, a relevant entry shall be made in the record.
If the sought objects, documents or a person in hiding are not surrendered or not fully surrendered, [then] the search shall be conducted.
8.
All objects and documents taken shall be presented to the participants in the investigative measure, described in detail in the record and, if necessary, sealed by the investigator’s seal.
9.
When conducting a search or a seizure the investigator shall be entitled to open closed buildings and storage, if their owner refuses to open them voluntarily...” Article 230: The record of a search or a seizure “1.
When the search or the seizure is over, the investigator shall draw up appropriate records which must indicate the place where the investigative measure was carried out, the time, whether the sought items and persons were surrendered voluntarily, the name, surname and the position of the person who conducted the search, the names, surnames and addresses of the attesting witnesses, as well as the names, surnames, the positions and the legal status of other participants in the search.
2.
All the seized objects must be indicated in the record of the investigative measure, with an accurate indication of their quantity, size, weight, individual features and other peculiarities.
3.
If attempts were made to eliminate or hide the disclosed objects or documents during the investigative measure, this fact shall be indicated in the record.
4.
The investigator shall be obliged to familiarise all the participants in the investigative measure with the record[.
The participants], having familiarised themselves with it, shall sign the record and shall be entitled to demand that their comments are incorporated in it.” Article 231: Mandatory service of a copy of the search or the seizure record “1.
A copy of the search or the seizure record shall be served against a receipt on the person in whose premises the investigative measure was carried out or on his adult family members or, if none of them is present, on the representative of the apartment maintenance office or the local authority in whose area the investigative measure was carried out...” Article 241: Interception of telephone conversations “1.
If there are sufficient grounds to believe that information, which may be important for the case, may be contained in conversations carried out by telephone or other means of communication by the suspect, the accused and other persons aware of crimes, the interception and recording of such conversations may be authorised by a judicial warrant.
2.
The investigator shall adopt a reasoned decision on initiating a motion to the court about the need to intercept and record conversations[.
The decision] shall indicate the criminal case and grounds, on which the appropriate investigative measure shall be carried out, the name and family name of persons whose conversations are subject to be intercepted, the time-limit of surveillance, and the agency entrusted with the implementation of the technical aspects of the interception and recording.
The decision shall be submitted to a court.
3.
If the judge authorises the interception and recording of conversations, the warrant shall be transmitted by the investigator to the appropriate agency for implementation.
4.
The interception and recording of conversations may be authorised for a period not exceeding six months.
They shall be stopped when they are no longer necessary, but in any event not after the completion of the investigation.
5.
The investigator shall be entitled to request the recording at any point during the authorised period in order to examine and listen to it.
[The recording] shall be transmitted to the investigator in a sealed condition with an accompanying letter, in which the time when the recording of conversations started and finished and the necessary technical description of methods applied must be indicated.
6.
The examination and listening to the recording by the investigator shall be carried out with the participation of attesting witnesses and, if necessary, a specialist, and a transcript must be drawn up, which must contain a word-for-word account of the part of the recording relevant for the case.
The recording must be attached to the transcript, while the part irrelevant for the case shall be destroyed after the judgment becomes final or the proceedings are terminated.” Article 271: Annexes to the indictment “1.
The list of persons to be called to court shall be annexed to the indictment.
The investigator shall indicate in the list the location of these persons and the pages of the case file which contain their statements or conclusions.” Article 278: Sphere of judicial supervision “1.
The courts shall examine motions seeking to have investigative and operative-search measures carried out... ... 3.
The judicial warrants issued in accordance with the first paragraph of this article can be reviewed by a higher court on the basis of an appeal filed by the prosecutor, the authority which has filed the motion or the persons or their representatives whose interests have been affected.” Article 282: Motions seeking to have investigative measures carried out or measures of judicial restraint applied “1.
The reason for starting the court proceedings shall be the motion contained in a reasoned decision of the investigating authority, the investigator or the prosecutor.
2.
The decision’s reasoning must contain information about the offence in respect of which it is intended to carry out an appropriate investigative measure, indication of the information to be obtained as a result of such measures connected with the restriction of the citizens’ constitutional rights and freedoms, the time, place and immediate performers of the appropriate measures and the manner of recording the results, as well as other information which is necessary for the court to issue a lawful and reasoned warrant.
If the [submitted] materials are not sufficient, the judge can require supplements.” Article 289: Appeals against judicial warrants [authorising] the implementation of investigative and operative-search measures and the application of measures of judicial restraint and their review “Appeals against judicial warrants [authorising] the implementation of investigative and operative-search measures and the application of measures of judicial restraint and their review shall be made in accordance with the rules contained in articles 287 and 288 of this Code[, which prescribe that appeals shall be lodged with the court of appeal].” Article 290: Lodging an appeal against unlawful and groundless decisions and actions of the body of inquiry, the investigator, the prosecutor and the authority carrying out operative-search measures “1.
The suspect, the accused, the advocate, the victim, the participants in criminal proceedings and other persons whose rights and lawful interests have been violated by decisions and actions of the body of inquiry, the investigator, the prosecutor or the authority carrying out operative and investigative measures envisaged by this Code which are unlawful and groundless, can lodge a complaint against the unlawfulness and groundlessness of these decisions and actions with a court, if their complaint has not been granted by a prosecutor.
... 3.
The complaint can be lodged with the court situated in the same district as the authority dealing with the case within one month from the date of being informed about its dismissal or, if no reply has been received, within one month after the expiry of one month from the date of lodging the complaint.
4.
The complaint shall be examined by a single judge within ten days from the date of its receipt, the applicant and the authority dealing with the case being informed of this.
Failure of the applicant or [the representative of] the authority dealing with the case to appear shall not prevent the examination of the case, but the judge may require the presence of the above persons.
The authority dealing with the case shall be obliged to present to the court materials concerning the complaint.
[The representative of] the authority dealing with the case and the applicant shall be entitled to give explanations.
5.
If the complaint is found to be well-founded, the judge shall decide to order the body of inquiry to remedy the violation of the person’s rights and freedoms.
If the contested actions are found to be lawful and the person’s rights or freedoms not violated, the court shall decide to dismiss the complaint.
A copy of the judge’s decision shall be sent to the applicant and to the authority dealing with the case.” Article 342: Reading out of witness statements “1.
Reading out at the trial of witness statements made during the inquiry, the investigation or a previous court hearing ... is permissible if the witness is absent from the court hearing for reasons which rule out the possibility of his appearance in court, if there is substantial contradiction between those statements and the statements made by that witness in court, and in other cases prescribed by this Code.” 2.
The Criminal Code of 1961 (no longer in force as of 1 August 2003) The relevant provisions of the Code read as follows: Article 15: Liability for preparing an offence and committing an attempted offence “...An attempted offence is the pre-meditated act directly aimed at a commission of an offence, if the offence has not been completed for involuntary reasons...” Article 59: High treason “High treason, that is a premeditated act committed by an Armenian national to the detriment of Armenia’s sovereignty, territorial integrity or national security and defence, such as joining the enemy, espionage, disclosure of a State or military secret to a foreign State, flight abroad or refusal to return from abroad, assistance to a foreign country in carrying out hostile activities against Armenia, and conspiracy to usurp power, shall be punishable by ten to fifteen years’ imprisonment with confiscation of property and two to five years of exile or without exile, or by the death penalty with confiscation of property...” Article 63: Act of sabotage “Commission of explosions, arson and other acts with the purpose of weakening the State and aimed at mass extermination of people or injuring them or damaging their health in some other way, destruction or damaging of enterprises, structures, communication routes or means, communication facilities or other State or public property, or mass poisonings or spreading of epidemics or animal epidemics, shall be punishable by eight to fifteen years’ imprisonment with confiscation of property and two to five years of exile or without exile, or by the death penalty with confiscation of property.” 3.
The Criminal Code of 2003 (in force from 1 August 2003) The relevant provisions of the Code read as follows: Article 34: Attempted offence “An attempted offence is the pre-meditated act (omission) directly aimed at a commission of an offence, if the offence has not been completed for involuntary reasons.” Article 299: High treason “1.
High treason, namely joining the enemy, espionage, disclosure of a State secret to a foreign State or a foreign organisation or their representatives or assisting them by other means in carrying out hostile activities, committed by an Armenian national to the detriment of Armenia’s sovereignty, territorial integrity or foreign security, shall be punishable by ten to fifteen years’ imprisonment with or without confiscation of property...” Article 303: Act of sabotage “Commission of explosions, arson and other acts with the purpose of weakening the State and aimed at mass extermination of people or damaging their health, destruction or damaging of organisations, structures, communication routes or means, communication facilities or other property, or mass poisoning or spreading of epidemics or animal epidemics, shall be punishable by ten to fifteen years’ imprisonment.” COMPLAINTS 1.
The applicants complain under Article 5 §§ 1 (c) and 3 of the Convention that their stay in custody until their formal arrest on 6 August 2002 was unlawful and that they were brought before a judge for the first time only on 19 March 2003.
2.
The applicants complain, without invoking any article of the Convention, about the alleged extortion of confession statements and their subsequent use at trial.
3.
The applicants complain under Article 6 § 1 of the Convention that (a) part of the proceedings in the District Court was not public; (b) the materials obtained through the interception of conversations in their flat were unlawful and should not have been admitted as evidence; and (c) the materials obtained as a result of the investigative operation involving witness A.Y.
should not have been admitted since this evidence was obtained as a result of incitement.
4.
The applicants complain under Article 6 § 2 of the Convention that the entire trial was conducted in such a manner that they were forced to prove their innocence.
5.
The applicants complain under Article 6 § 3 (a) of the Convention that the charges against them were brought only on the fourth day of their arrest.
6.
The applicants complain under Article 6 §§ 3 (b) and (c) of the Convention that they were practically deprived of any legal assistance from the moment of their arrest until the commencement of the trial on 19 March 2003.
The State-appointed lawyer G.M.
appeared on only two occasions and his signatures were added to all the records at a later stage.
7.
The applicants complain under Article 6 § 3 (d) of the Convention that (a) none of the key witnesses, including E.O., A.Y.
and R.K., was examined either during the investigation or the court proceedings; and (b) their requests to call witnesses on their behalf, including the relevant investigator, lawyer G.M., the interpreter and a number of servicemen who were allegedly able to confirm their version of events, were dismissed by the courts.
8.
The applicants complain under Article 6 § 3 (e) of the Convention that the interpreter appointed for the first applicant was absent during the entire investigation, while no interpreter was appointed for the second applicant.
They further complain that the quality of interpretation was very poor in the proceedings before the Court of Appeal.
9.
The applicants complain under Article 7 of the Convention that (a) Article 299 of the new CC could not be applied to the first applicant because she became an Armenian national allegedly only in 2000, while the charge concerned events from 1993 to 2002; and (b) the accusation of high treason should not have covered the events concerning Nagorno Karabakh since that territory was not a part of Armenia.
10.
The applicants complain under Article 8 of the Convention that (a) the secret surveillance of their telephone calls and conversations in their flat was unlawfully authorised before the institution of criminal proceedings.
Furthermore, the law did not prescribe such a measure as bugging of a flat; and (b) the intrusion of the police officers into their flat on 5 August 2002 was unlawful since they did not have a warrant of arrest and failed even to show their ID.
11.
The first applicant complains under Article 10 of the Convention that her freedom to receive and impart information was violated.
In particular: (a) the prosecution failed to adduce any evidence proving that the information she received from E.O.
and A.Y.
was communicated to a foreign intelligence service; and (b) she was convicted for communicating information which was in the public domain.
12.
The applicants complain under Article 13 of the Convention that the domestic courts did not provide an effective remedy, by failing to examine their case objectively.
13.
The applicants complain under Article 14 of the Convention that they were subjected to discrimination during the trial because of being ethnic Russians.
14.
The applicants complain under Article 1 of Protocol No.
1 that (a) as a result of their conviction they were deprived of all their property; and (b) some of their belongings were stolen during the search of their home, while some other personal items were seized and never returned.