THIRD SECTION Application no. 12895/06

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Ararat Muradkhanyan, is an Armenian national who was born in 1963 and lives in Yerevan. He is represented before the Court by Mr L. Simonyan, a lawyer practising in Yerevan.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  Institution of two sets of criminal proceedings against the applicant in Armenia and Ukraine
(a)  Institution of criminal proceedings against the applicant in Armenia
On 24 June 2002 criminal proceedings no. 12207102 were instituted on account of the premeditated murder of several individuals committed on that day in Yerevan. The applicant, whose whereabouts were unknown, was suspected of committing this murder. On 5 July 2002 the applicant was formally accused of illegal possession of firearms under Article 232 of the former Criminal Code of Armenia and a motion was filed by the investigator seeking to have him detained on remand. On the same date, the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) granted this motion in the applicant's absence and ordered his detention, stating: “Having examined the motion lodged by the authority dealing with the case and the materials of the criminal case, taking into account the nature and degree of danger of the imputed offence and the fact that the only penalty envisaged for the offence committed by the accused is imprisonment, the court came to the conclusion that the materials obtained in the criminal case provide sufficient grounds to believe that the motion must be granted, since the accused is hiding from the authority dealing with the case and his whereabouts are unknown.” Since the applicant's whereabouts were unknown, a search was initiated in respect of him. On 11 September 2002 the charge against the applicant was modified by the General Prosecutor's Office of Armenia (ՀՀ գլխավոր դատախազություն) and he was accused of murder, attempted murder and illegal possession of firearms under Articles 99, 15-99 and 232 of the former Criminal Code of Armenia. On 25 October 2002 the criminal proceedings against the applicant were stayed since his whereabouts could not be established.

(b)  The applicant's detention in Ukraine in connection with another criminal charge On an unspecified date, criminal proceedings no. 01710009 were instituted in Ukraine on account of the murder of an individual committed on 31 March 2001 in Poltava, Ukraine. According to the applicant, on 24 January 2003 he was arrested in Voronezh, Russia, by Ukrainian law enforcement officers and forcefully transported to Poltava, where on 27 January 2003 he was placed in custody. On 30 January 2003 the Kyivsky District Court of Poltava Region ordered the applicant's detention. On 13 March 2003 the applicant was formally accused of murder and a threat to kill under Articles 115 and 129 of the Criminal Code of Ukraine. It appears that the applicant's detention was thereafter prolonged on several occasions by the Ukrainian courts. On 30 January 2004 the General Prosecutor's Office of Armenia requested the applicant's extradition to Armenia in connection with criminal case no. 12207102. On 12 April 2004 the Ukrainian authorities decided to extradite the applicant to Armenia and to transmit criminal case no. 01710009 to the Armenian authorities for further investigation.
2.  The applicant's detention in Armenia
(a)  The applicant's pre-trial detention
On 18 May 2004 the applicant was extradited to Armenia, where he was immediately detained. On 24 May 2004 criminal proceedings no. 12207102 were resumed. On 21 June 2004 the criminal charge against the applicant was modified, bringing it into conformity with the new Criminal Code adopted in 2003. The applicant was accused under Articles 104, 34-104 and 235 of the Criminal Code of murder and attempted murder of several individuals, and illegal possession of firearms. On 12 July 2004 the Kentron and Nork-Marash District Court of Yerevan examined and granted the investigator's motion seeking to prolong until 18 September 2004 the applicant's detention, which was to expire on 18 July 2004. The District Court found that it was necessary to prolong the applicant's detention in order to carry out a number of investigative activities. On the same date, the investigator dealing with the case found that it was impossible to continue the investigation into criminal case no. 01710009 on the territory of Armenia and decided to return that case to the Ukrainian authorities. On 13 September 2004 the investigation into criminal case no. 12207102 was completed and the applicant was granted access to the case file until 23 September 2004.

(b)  The applicant's detention during the court proceedings
On 24 September 2004 the case was transmitted to the Erebuni and Nubarashen District Court of Yerevan (Երևան քաղաքի Էրեբունի և Նուբարաշեն համայնքների առաջին ատյանի դատարան) to be examined on the merits. On 6 October 2004 the District Court decided to set the case down for trial, fixing the date of the first hearing for 14 October 2004. This decision also stated that “the preventive measure imposed on the accused should remain unchanged”. It appears that thereafter court proceedings were carried out which lasted about one year, during which the applicant stayed in detention. It further appears that the applicant did not lodge any requests for release within this period.
(c)  Remittal of the case for further investigation
On 14 October 2005 the Erebuni and Nubarashen District Court of Yerevan found that the investigating authority had failed to carry out a thorough investigation and decided to remit the case for further investigation. The District Court stated that “the detention should remain unchanged”. The applicant lodged an appeal.
On 9 November 2005 the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան) upheld the decision of the District Court, stating that “the reasons for keeping the applicant in detention still persisted”. The applicant lodged a cassation appeal. On 16 December 2005 the Court of Cassation (ՀՀ վճռաբեկ դատարան) left the applicant's cassation appeal without examination since it did not meet the procedural requirements. The Court of Cassation further stated that the applicant's “detention should remain unchanged”. On 27 December 2005 the investigator took over the case. On the same date, he filed a motion seeking to prolong until 28 February 2006 the applicant's detention which, according to this motion, was to expire on 30 December 2005. On 29 December 2005 the applicant's lawyers lodged objections to this motion in which they submitted, inter alia, that this motion had been lodged in violation of the time-limits established in Article 139 § 1 of the Code of Criminal Procedure (CCP) and that the applicant had been in pre-trial detention for a period exceeding the one year limit allowed under Article 138 § 5 of the CCP. On the same date, the Kentron and Nork-Marash District Court of Yerevan granted this motion, finding: “Having examined the motion submitted by the authority dealing with the case and the materials of the criminal case, having heard the accused and his lawyers, the court has found that it is necessary to prolong [the applicant's] detention period in order to carry out a number of investigative activities in the criminal case...”
On 10 January 2006 the applicant's lawyers lodged an appeal in which they made similar submissions to the ones in their objections. On 3 February 2006 the Criminal and Military Court of Appeal found that the decision of the District Court was reasoned and decided to uphold it. On 9 February 2006 the applicant's lawyers lodged a cassation appeal. By a letter of 27 February 2006 the Chairman of the Court of Cassation (ՀՀ վճռաբեկ դատարանի նախագահ) returned the appeal unexamined in accordance with the decision of the Council of Court Chairmen (ՀՀ դատարանների նախագահների խորհուրդ) of 8 December 2005 taken in connection with the entry into force of the constitutional amendments concerning the status of the Court of Cassation.
On 23 February and 26 April 2006 the Kentron and Nork-Marash District Court, upon the investigator's relevant motions, prolonged the applicant's detention on two further occasions. In addition to the reasons given before, the District Court stated that the applicant, if released, could hinder the pre-trial examination of the case by exerting unlawful influence on persons involved in the proceedings and could abscond.
These decisions were upheld by the Criminal and Military Court of Appeal on 21 March and 23 May 2006 respectively. The Court of Appeal added that the applicant was accused of a very grave crime, that he had fled before and a search had been initiated in respect of him and that, if released, he could abscond and hinder the investigation.
On 4 May 2006 the Court of Cassation once again decided to leave the applicant's cassation appeal lodged against the Court of Appeal's decision of 21 March 2006 unexamined apparently for the same reasons as before.
(d)  Resumption of the court proceedings and the applicant's conviction at first instance
On 24 May 2006 the case was transmitted to the Kentron and Nork-Marash District Court of Yerevan to be examined on the merits.
It appears that on 25 May 2006 the applicant's lawyers requested the District Court to terminate the prosecution and to release the applicant.
On 2 June 2006 the District Court decided to set the case down for trial, fixing the date of the first hearing for 19 June 2006. In its decision, the District Court stated that the detention was to remain unchanged.
According to the applicant, the hearing of 19 June 2006 was adjourned for unknown reasons for an indefinite period of time.
On 16 October 2006 the District Court held the first hearing on the applicant's case. This was followed by court hearing of 17 and 18 October 2006. The District Court held further hearings on 14-16, 20 and 22-23 November 2006.
At the hearing of 20 November 2006 the applicant and his lawyers verbally requested that the preventive measure imposed on him be modified and that he be released on the ground that, inter alia, his detention had been lengthy.
On the same date, the District Court decided to refuse this request, finding:
“[The applicant] has been accused of crimes envisaged under Article 104 § 2 (1) and (6), Article 34-104 § 2 (1) and (6) and Article 235 § 1 of the Criminal Code. Detention was imposed on him as a preventive measure by a court decision in the course of the investigation. The reasons contained in the above-mentioned decision still persist at this stage of the proceedings...”
Further hearings were held in December 2006, January-April and July-August 2007.
On 24 September 2007 the Kentron and Nork-Marash District Court of Yerevan found the applicant guilty and sentenced him to life imprisonment.

B.  Relevant domestic law
 

1.  The Code of Criminal Procedure
The relevant provisions of the Code of Criminal Procedure read as follows:
Article 65: The rights and obligations of the accused
“2.  The accused, in accordance with the procedure prescribed by this Code, is entitled: ... (12) lodge motions...”
Article 134: The concept and types of preventive measures
“1.  Preventive measures are measures of compulsion imposed on an arrestee or the accused in order to prevent their inappropriate behaviour in the course of the criminal proceedings and to ensure the enforcement of the judgment.
2.  Preventive measures include: (1) detention; (2) bail; ...
3.  Detention and bail can be imposed only on the accused...”
Article 135: Grounds for imposing a preventive measure
“1.  The court, the prosecutor, the investigator or the body of inquest can impose a preventive measure only when the materials obtained in the criminal case provide sufficient grounds to believe that the suspect or the accused may: (1) abscond from the authority dealing with the case; (2) hinder the examination of the case during the pre-trial or court proceedings by exerting unlawful influence on persons involved in the criminal proceedings, by concealing or falsifying materials significant for the case, by failing to appear upon the summons of the authority dealing with the case without valid reasons or by other means; (3) commit an act prohibited by criminal law; (4) avoid criminal liability and serving the imposed sentence; and (5) hinder the execution of the judgment.
2.  Detention and its alternative preventive measure can be imposed on the accused only if the highest punishment prescribed for the [committed] crime is imprisonment for a term exceeding one year or if there are sufficient grounds to believe that the suspect or the accused can commit any of the actions referred to in the first paragraph of this article.
3.  When deciding on the necessity of imposing a preventive measure or choosing the type of preventive measure to be imposed on the suspect or the accused, the following should be taken into account: (1) the nature and degree of danger of the imputed offence; (2) the personality of the suspect or the accused; (3) age and state of health; (4) sex; (5) occupation; (6) family status and dependants, if any; (7) property situation; (8) if he has a permanent residence; and (9) other important circumstances.”
Article 136: Imposition of a preventive measure
“2.  Detention and bail shall be imposed only by a court decision upon the investigator's or the prosecutor's motion or of the court's own motion during the court examination of the criminal case. The court can replace the detention with bail also upon the motion of the defence.”
Article 137: Detention
“1.  Detention is the keeping of a person detained in places and conditions prescribed by law.
...
4.  When deciding on detention, the court shall simultaneously determine the issue of the accused's possible release from detention on bail and, accepting the possibility of such release, shall set the amount of bail...
5.  The court's decision to choose detention as a preventive measure can be contested before a higher court.”
Article 138: Detention period
“1.  The accused's detention period shall be calculated from the moment of him being taken into custody at the time of the arrest or, if he was not arrested, from the moment of enforcement of the court decision imposing detention.
...
3.  During the pre-trial proceedings of a criminal case the detention period cannot exceed two months, except for cases prescribed by this Code ... The running of the detention period in the pre-trial proceedings of a criminal case shall be suspended when the prosecutor transmits the criminal case to the court or when the accused or his lawyer are familiarising themselves with the case file...
4.  During the pre-trial proceedings of a criminal case the accused's detention period can be prolonged by a court up to one year in view of the particular complexity of the case.
5.  During the pre-trial proceedings of a criminal case the accused's detention period cannot exceed ... one year...
6.  There is no maximum detention period during the court proceedings.”
Article 139: Prolongation of the detention period
“1.  If it is necessary to prolong the accused's detention period, the investigator or the prosecutor must submit a well-grounded motion to the court not later than ten days before the expiry of the detention period. The court, agreeing with the necessity of prolonging the detention period, shall adopt an appropriate decision not later than five days before the expiry of the detention period.
2.  When deciding on the prolongation of the detention period, the court is entitled to accept the possibility of releasing the accused on bail and to set the amount of bail.
3.  When deciding on the prolongation of the accused's detention period, the court shall prolong the detention period within the limits prescribed by this Code, on each occasion for a period not exceeding two months.”
Article 292: Decisions to be adopted when preparing a case for trial
“The judge who has taken over a case shall examine the materials of the case and within fifteen days from the date of taking over the case shall adopt one of the following decisions: (1) to set the case down for trial...”
Article 293: The decision to set the case down for trial
“1.  The court shall decide to set the case down for trial, if the materials of the case do not contain circumstances allowing to terminate the proceedings and if there were no substantial violations of procedural law during the pre-trial proceedings.
2.  The decision setting the case down for trial shall contain ... a decision cancelling, modifying or imposing a preventive measure...”
Article 300: A decision on preventive measures
“When adopting decisions ... the court is obliged to decide on the issue whether or not to impose on the accused a preventive measure and whether or not the preventive measure, if such has been imposed, is justified.”
Article 311: Remittal of the criminal case for further investigation
“The court shall remit the case for further investigation ... if there has been a substantial violation of procedural law by the body of inquest or the investigating authority which cannot be eliminated during the court proceedings...”
Article 312: Deciding on a preventive measure
“The court, in the course of the court proceedings, having heard the defendant's explanation and the opinion of the parties, is entitled to impose, modify or cancel a preventive measure in respect of the defendant.”
Article 403: Review of the judgment and decisions through cassation proceedings [as in force at the material time]
“Judgments and decisions of the first instance court and the court of appeal which have entered into legal force, and judgments and decisions of the court of appeal which have not entered into legal force can be reviewed through cassation proceedings.”
2.  The Criminal Code of 2003
The relevant provisions of the Criminal Code read as follows:
Article 34: Attempted crime
“An attempted crime is a premeditated action (inaction) aimed directly at committing a crime, if the commission of the crime has not been completed due to circumstances which were beyond the person's will.”
Article 104: Murder
“2.  Murder: (1) of two or more individuals; ... (6) [committed] in a manner dangerous to the lives of many ... shall be punishable by imprisonment from eight to fifteen years or life imprisonment.”
Article 235: Illegal acquisition, sale, possession, trafficking or carrying of arms, ammunition, explosives or explosive devices
“Illegal acquisition, sale, possession, trafficking or carrying of firearms, except for smooth-bore firearms and their cartridges, of ammunition, rifle cartridges, explosives or explosive devices shall be punishable by a maximum of three months of detention or a maximum of three years of imprisonment.”

COMPLAINTS
1.  The applicant complains under Article 5 § 1 of the Convention that
(a)  his pre-trial detention lasted more than one year, which is the maximum period permitted under Article 138 § 5 of the CCP; and
(b)  his detention period was prolonged on 29 December 2005 by the Kentron and Nork-Marash District Court of Yerevan in violation of the deadlines prescribed by Article 139 § 1 of the CCP.
2.  The applicant complains under Article 5 § 1 (a) of the Convention that between 18 and 24 September 2004 he was detained without a court decision.
3.  The applicant complains under Article 5 § 1 (c) of the Convention that the court decisions prolonging his detention were unreasoned, were taken mechanically and were not based on a reasonable suspicion.
4.  The applicant complains under Articles 5 § 4, 6 § 1 and 13 of the Convention about the refusal of the Court of Cassation to examine his cassation appeal of 9 February 2006.

QUESTIONS TO THE PARTIES

1.  Was the prolongation of the applicant's detention on 29 December 2005 carried out in compliance with a procedure prescribed by law as required under Article 5 § 1 of the Convention? The Government are requested to explain on what grounds the investigator's motion of 27 December 2005 stated that the applicant's detention was to expire on 30 December 2005 and, if it was to expire on that date, whether the deadlines prescribed by Article 139 § 1 of the Code of Criminal Procedure were respected.
2.  Was the length of the applicant's detention in Armenia in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?
3.  Was the non-examination of the applicant's cassation appeal of 9 February 2006 lodged with the Court of Cassation against the decision of the Criminal and Military Court of Appeal of 3 February 2006 compatible with the requirements of Article 5 § 4? The Government are requested to explain whether the applicant, at the material time, enjoyed in law or in practise the right to bring a cassation appeal (վճռաբեկ բողոք) against his detention. They are also requested to submit a copy of the decision of the Council of Court Chairmen (դատարանների նախագահների խորհուրդ) of 8 December 2005, referred to in the letter of the Chairman of the Court of Cassation (ՀՀ վճռաբեկ դատարանի նախագահ) of 27 February 2006.