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THIRD SECTION

Application no. 3571/09
Silva ASATRYAN
against Armenia
lodged on 15 June 2009

STATEMENT OF FACTS

The applicant, Ms Silva Asatryan, is an Armenian national who was born in 1960 and is currently serving her prison sentence in Abovyan Penitentiary. She was represented before the Court by Mr K. Mezhlumyan, 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.

On 29 December 2001 an assassination attempt against M.G., a businessman, took place in Yerevan. It appears that on the same day criminal proceedings were instituted on that account.

On 23 September 2005 the applicant was arrested on suspicion of ordering M.G.’s assassination. On 26 September 2005 she was charged with instigation of attempted murder and property damage and was detained.

On an unspecified date thereafter the investigation into the assassination attempt was concluded and the criminal case was referred to the Avan and Nor-Nork District Court of Yerevan for trial.

On 12 October 2007 the District Court found the applicant guilty as charged and sentenced her cumulatively to nine years’ imprisonment. As it was established by the District Court, the applicant had ordered M.G.’s assassination as the latter had a property-related court dispute with her ex-husband, A.G., which affected the applicant’s property rights and in which she was also involved.

It appears that during the trial the applicant lodged a motion seeking to summon as a witness a certain A.K., alleging that he was a former owner of the plot of land in dispute between M.G. and A.G. and that therefore there could be no civil dispute between them. It further appears that the District Court dismissed the motion as being lodged after the conclusion of the witness examination stage of the trial.

On 29 October 2007 the applicant lodged an appeal against the judgment of the District Court. On 3 December 2007 she lodged a supplement to her appeal claiming, inter alia, that she had no reason to murder M.G. as she had been living separately from her ex-husband since their divorce in 1999 and had no interest in his business activities.

On 18 June 2008 the Criminal Court of Appeal dismissed the applicant’s appeal and upheld the judgment of 12 October 2007. The Court of Appeal, inter alia, established that although the applicant had divorced A.G., she had maintained a family-like relationship with him and expressed her annoyance with M.G.’s actions in the presence of different people. In this respect, the Court of Appeal relied on the pre-trial witness statements of L.G., the daughter of the applicant and A.G., as well as their neighbours A.A., A.B. and A.At., made to the investigative authority in 2001-2002.

On 21 November 2008 the applicant lodged an appeal on points of law claiming, inter alia, that the Court of Appeal had based its conclusions on the pre-trial statements of L.G., A.A., A.B. and A.At., which had been examined by neither the Avan and Nor-Nork District Court of Yerevan nor the Court of Appeal and whom she had had no opportunity to question. She thus alleged that her right to adversarial proceedings and to equality of arms, as protected by Articles 6 §§ 1 and 3 of the Convention, had been breached.

On 15 December 2008 the Court of Cassation declared the applicant’s appeal inadmissible for lack of merit.

It appears that on 14 April 2009 the applicant lodged an application with the Constitutional Court challenging the compatibility with the Constitution of certain provisions of the Code of Criminal Procedure (hereafter, the CCP) allowing the Court of Cassation not to indicate reasons when declaring inadmissible an appeal on points of law.

On 28 July 2009 the Constitutional Court granted the application by finding such provisions of the CCP incompatible with the corresponding provisions of the Constitution.

It appears that on 11 August 2009 the applicant, based on the above decision of the Constitutional Court, lodged a request with the Court of Cassation seeking to reopen the proceedings and to re-examine her appeal on points of law of 21 November 2008 by admitting it to its proceedings.

Based on the above request, on 25 September 2009 the Court of Cassation reopened the proceedings, re-examined the applicant’s appeal on points of law and decided to declare it inadmissible for lack of merit. In doing so, the Court of Cassation, inter alia, indicated that the Criminal Court of Appeal’s conclusion concerning the applicant’s guilt was correct as it was based, among other things, on the witness statements of L.G. and A.A.

B.  Relevant domestic law

The Code of Criminal Procedure

In accordance with Article 23 § 1 of the Code of Criminal Procedure, criminal proceedings shall be conducted on the basis of the principle of adversarial proceedings.

Pursuant to Article 86 § 3, a witness is obliged to appear upon the summons of the authority dealing with the case in order to give testimony.

Article 332 § 1 stipulates that if any person summoned to court has failed to appear the court, having heard the opinions of the parties, shall decide on continuing or adjourning the proceedings. The proceedings may be continued if the failure to appear of any such persons shall not obstruct the thorough, complete and objective examination of the circumstances of the case.

According to Article 342 § 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.

According to Article 358 § 1, a court judgment must be lawful and substantiated. Paragraph 3 further establishes that a judgment is substantiated if its conclusions are based on the evidence examined during the court proceedings.

COMPLAINTS

1.  The applicant complains under Article 6 § 1 of the Convention that she was deprived of access to court as the Court of Cassation declared her appeal on points of law inadmissible without indicating any reasons for this.

2.  The applicant complains under Articles 6 §§ 1 and 3 (d) of the Convention that:

(a)  her right to adversarial proceedings and the principle of equality of arms were violated as the pre-trial statements of witness L.G., A.A., A.B. and A.At., relied on by the Criminal Court of Appeal in its verdict, had not been read out and examined in court. Moreover, she had no opportunity to cross-examine those witnesses at any time during the criminal proceedings against her; and

(b)  by dismissing her motions to call additional witnesses for her defence the domestic courts violated the principle of the equality of arms.

3.  The applicant complains under Article 7 of the Convention that she was subjected to a heavier penalty as a result of the retrospective application of a stricter method of accumulation of her two sentences by the domestic courts.

4.  In her submissions received by the Court on 31 March 2010 the applicant also complained under Article 6 § 1 of the Convention about the refusal of the Court of Cassation to admit her appeal on points of law following the reopening of the proceedings.

QUESTIONS TO THE PARTIES

Were the statements of witnesses L.G., A.A., A.B. and A.At., relied on by the Criminal Court of Appeal in its verdict, examined in court?

-  if no, did the use of such evidence violate the applicant’s right to adversarial proceedings, as guaranteed by Article 6 § 1 of the Convention?

-  if yes, did the applicant have an opportunity to examine or to have examined those witnesses? If no, did this violate the applicant’s right to examine witnesses against her, as guaranteed by Article 6 § 1 and 6 § 3 (d) of the Convention?