Beruflich Dokumente
Kultur Dokumente
JUDGMENT
STRASBOURG
6 September 2018
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
DADAYAN v. ARMENIA JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 14078/12) against the
Republic of Armenia lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by an Armenian national, Mr Garik Dadayan (“the
applicant”), on 5 March 2012.
2. The applicant was represented by Mr K. Sardaryan, a lawyer
practising in Yerevan. The Armenian Government (“the Government”) were
represented by their Agent, Mr G. Kostanyan, Representative of the
Government of Armenia to the European Court of Human Rights.
3. The applicant alleged, in particular, that he had not been given an
opportunity to cross-examine two witnesses at his trial.
4. On 4 November 2016 the complaint under Article 6 § 3 (d) of the
Convention concerning the applicant’s inability to have witnesses against
him examined was communicated to the Government, and the remainder of
the application was declared inadmissible pursuant to Rule 54 § 3 of the
Rules of Court.
THE FACTS
the radioactive substance back to Georgia and stated that he had taken it
from the applicant.
13. On 8 December 2010 the bill of indictment was finalised and the
case was transferred to the Tavush Regional Court for trial. The following
evidence was relied on in the bill of indictment: the witness statements
made by S.T. and H.O. in Georgia; other witness statements, in particular
those of K.O. and V.G., made in Armenia; the conclusion of a forensic
examination conducted in Georgia, according to which the substance seized
from S.T. contained enriched uranium; regular telephone correspondence
between the applicant and H.O. in the period between 1 September 2009
and 30 March 2010, and in particular two telephone calls made on 10 March
2010; and the relevant exit and entry stamps in the applicant’s passport
proving that he had arrived in Yerevan from Moscow on 10 March 2010.
14. At one of the hearings before the Regional Court, relying, inter alia,
on the Strasbourg Convention of 1959 on Mutual Assistance in Criminal
Matters, the applicant requested the temporary transfer of S.T. and H.O.
from the prison in Georgia so that they could be examined at the trial.
15. His request was granted. Thus, on 27 January 2011 the presiding
judge ordered S.T.’s and H.O’s temporary transfer to Armenia.
16. By a letter of 29 April 2011, the Ministry of Justice of Georgia,
refused to grant the request by referring to Article 11 § 1(b) of the
Strasbourg Convention, which states that a request for assistance may be
refused if “his or her presence is necessary at criminal proceedings pending
in the territory of the requested Party”. The Ministry of Justice added that
S.T.’s and H.O.’s had been convicted by a judgment of the Tbilisi Court of
Appeal of 30 March 2011, but that the judgment was still open to an appeal
on points of law.
17. On 6 May 2011 the applicant’s representative allowed the Regional
Court to continue with the examination of the case even if S.T. and H.O.
could not be transferred to Armenia, since the applicant was ill. However,
he asked the court not to rely in its judgment on the testimony given in
Georgia by those absent witnesses.
18. At a hearing of 24 May 2011 the presiding judge informed the
parties of the reply received from the Ministry of Justice of Georgia.
19. At the same hearing the applicant asked to summon S.G. – the
conductor of the train who had been questioned during the investigation – as
a witness, on the grounds that some of his statements were in contradiction
with the statements of S.T. and H.O. The trial court rejected that
application, considering it unfounded.
20. On 25 May 2011 the Regional Court convicted the applicant and
sentenced him to seven years’ imprisonment, and ordered the confiscation
of his property. In doing so, the Regional Court relied on the statements of
S.T. and H.O. made during the questioning in Georgia; the statements of the
witnesses V.D. and K.O. – the applicant’s friend and H.O.’s daughter
4 DADAYAN v. ARMENIA JUDGMENT
Article 3 § 2
“If the requesting Party desires witnesses or experts to give evidence on oath, it shall
expressly so request, and the requested Party shall comply with the request if the law
of its country does not prohibit it.
...”
Article 11
“1. A person in custody whose personal appearance for evidentiary purposes other
than for standing trial is applied for by the requesting Party shall be temporarily
transferred to its territory, provided that he or she shall be sent back within the period
stipulated by the requested Party and subject to the provisions of Article 12 of this
Convention, in so far as these are applicable.
Transfer may be refused if:
a. the person in custody does not consent;
b. his or her presence is necessary at criminal proceedings pending in the territory of
the requested Party;
c. transfer is liable to prolong his or her detention, or
d. there are other overriding grounds for not transferring him or her to the territory
of the requesting Party.
...
3. The transferred person shall remain in custody in the territory of the requesting
Party and, where applicable, in the territory of the Party through which transit is
requested, unless the Party from whom transfer is requested applies for his or her
release.”
THE LAW
31. The relevant parts of Article 6 §§ 1 and 3 (d) of the Convention read
as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled
to a fair ... hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him;
...”
A. Admissibility
32. The Court notes that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
35. As to the refusal to hear S.G., the applicant had requested that that
witness be heard because of the contradictions between his pre-trial
testimony and the statements of the absent witnesses. The failure to hear
him had constituted not only a breach of the applicant’s rights under
Article 6 § 3 (d), but also an insufficient counterbalancing measure under
the Al-Khawaja (see Al-Khawaja and Tahery v. the United Kingdom [GC],
nos. 26766/05 and 22228/06, ECHR 2011) test.
48. The reason for S.T. and H.O.’s absence from the trial was that their
transfer had been refused by the Ministry of Justice in Georgia, due to the
fact, that at the relevant time their convictions were still open to an appeal
on points of law (see paragraph 16 above). The Court finds it noteworthy,
though, that after receiving that information, the trial court did not initiate
any further attempts in the matter, for example, try to find out whether the
convictions of S.T. and H.O. would become final and, if so, when, and
whether, under the Strasbourg Convention of 1959 on Mutual Assistance in
Criminal Matters (see paragraph 29 above), they could be transferred to
Armenia for the trial at a later stage. Nor does it appear that other means
that would have enabled the applicant to examine the witnesses were
contemplated, for instance the possibility of having oral evidence from them
taken in Georgia, or by video link. As regards the latter, the Court notes that
the Government argued that this would not have been possible since the
authorities had not been properly equipped (see paragraph 36 above).
However, in the light of the facts as supplied by the parties, it does not seem
that the trial court ever considered recourse to that measure (see
paragraphs 14-20 above).
49. Even assuming that there was no good reason justifying the failure to
have these persons examined at the hearing, the absence of a good reason is
not the end of the matter. Although it constitutes a very important factor to
be weighed in the overall balance, together with the other relevant
considerations, it is nevertheless a consideration which is not in itself
conclusively indicative of a lack of fairness of criminal proceedings (see
Seton, cited above, § 62).
(ii) Whether the evidence was “sole or decisive”
50. The second stage of the test in Al-Khawaja and Tahery is assessing
whether or not the evidence of the absent witness whose statements were
admitted in evidence constituted the sole or decisive basis for the
defendant’s conviction. The Government argued that the evidence of the
absent witnesses S.T. and H.O. had not been sole and decisive in securing
the applicant’s conviction, while the applicant argued that their evidence
had been the only evidence proving that it had been he who had sold them
the enriched uranium.
51. The Court observes in this respect that the Regional Court’s
judgment, which was later fully upheld by the Criminal Court of Appeal,
also referred to evidence other than the statements of S.T. and H.O. The
Regional Court also relied on the statements of the witnesses G.D. and K.O.
– the applicant’s friend and H.O.’s daughter respectively; the results of
forensic examinations carried out in Georgia and Armenia confirming that
the substance discovered contained enriched uranium; the evidence of
telephone correspondence between the applicant and H.O.; and the
existence of exit and entry stamps in the applicant’s passport proving that he
12 DADAYAN v. ARMENIA JUDGMENT
(compare, for example, Al-Khawaja and Tahery, cited above, § 157, and
Paić, cited above, § 43).
(iv) Conclusion
55. The foregoing considerations are sufficient to enable the Court to
conclude that the applicant’s right to a fair trial was breached in the instant
case.
56. There has accordingly been a violation of Article 6 §§ 1 and 3 (d) of
the Convention.
A. Damage
61. The applicant also claimed EUR 9,200 for costs and expenses
incurred before the Court. In this respect he submitted a lawyer’s contract.
62. The Government maintained that the applicant had failed to present
any itemised information on costs and expenses, in particular, the hours
worked and the hourly rate used. Nor was there any documented proof that
the costs and expenses, including the translation fees, had actually been
incurred and paid for. In any event, the amount claimed was unjustified and
excessive.
63. According to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, the applicant has only submitted a lawyer’s
contract. Agreements of this nature – giving rise to obligations solely
between lawyer and client – cannot bind the Court. Nevertheless, having
14 DADAYAN v. ARMENIA JUDGMENT
regard to the issue before it, and the fact that it is clear that the lawyer
represented the applicant in the proceedings before the Court, it considers it
reasonable to award EUR 1,000 for costs and expenses.
C. Default interest
64. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
2. Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the
Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be converted
into the currency of the respondent State at the rate applicable at the date
of settlement;
(i) EUR 2,400 (two thousand four hundred euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be
chargeable, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;