BALASANYAN v. ARMENIA

 
 
 
Communicated on 3 May 2019
 
FIRST SECTION
Application no. 76124/14
Hovhannes BALASANYAN
against Armenia
lodged on 17 November 2014
STATEMENT OF FACTS
The applicant, Mr Hovhannes Balasanyan, is an Armenian national who was born in 1967. At the time of lodging his application, he was detained in Goris detention facility. He is represented before the Court by Mr T. Safaryan, 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 25 February 2014 the applicant was arrested on suspicion of organising drug smuggling.
On 27 February 2014 the investigator of the National Security Service (“the NSS”) filed an application with the Kentron and Nork-Marash District Court of Yerevan (“the District Court”), seeking to detain the applicant for two months. Invoking the seriousness of the charges against the applicant, the investigator argued that the applicant could abscond, obstruct the investigation by exerting undue influence on those involved in the criminal proceedings and evade criminal responsibility.
On the same day the District Court granted the investigator’s application. It reasoned that, since the anticipated minimum sentence was seven years’ imprisonment, there was an increased risk that the applicant could abscond and hinder the investigation. In substantiation of the latter ground, the District Court referred to a witness statement, according to which the applicant had transferred the keys to his apartment and car to that witness through his lawyer and had asked her to collect some clothing for him from his apartment, after which that witness had secretly taken the applicant’s clothes and other things from his apartment.
On 28 February 2014 the investigator of the NSS adopted a decision on restriction of the applicant’s visits and telephone calls at the remand prison for an unspecified period of time. The investigator reasoned that such a measure was necessary for ensuring the investigative measures and that visits and telephone calls could hinder the discovery of the truth. The investigator relied on 137 § 3 of the Code of Criminal Procedure and Section 15 of the Law on Conditions for Holding Arrested and Detained Persons (“the Custody Act”).
On 4 March 2017 the applicant lodged an appeal against the decision of the District Court of 27 February 2014. He argued, among other things, that there were no relevant and sufficient reasons for detaining him. In particular, he argued that the witness statement relied upon by the District Court did not reveal any risk of improper conduct if he were to be set free.
On 17 March 2014 the Criminal Court of Appeal rejected the applicant’s appeal and endorsed the decision of the District Court.
The applicant lodged an appeal on points of law against that decision.
On 14 April 2014 the investigator of the NSS filed an application with the District Court, seeking to extend the applicant’s detention for two months. The investigator reasoned that the applicant’s continued detention was necessary “for the ongoing investigation, with a view to taking evidence from witnesses, collecting evidence, amending the charges against the applicant and co-accused persons, providing legal qualification to the actions of other persons involved in the proceedings, completing the investigation, providing the materials of the investigation to the accused persons, while in the meantime ensuring objective, comprehensive and complete investigation”. Invoking the seriousness of the charges against the applicant, the investigator argued that the applicant could abscond, obstruct the investigation by exerting undue influence on those involved in the criminal proceedings and evade criminal responsibility.
On 22 April 2014 the District Court granted the investigator’s application. It stated that the seriousness of the anticipated minimum sentence substantially increased the risk that the applicant could obstruct the investigation, while less severe preventive measures could not ensure his proper conduct. The District Court concluded that the previous grounds for the applicant’s detention still persisted.
The applicant appealed against that decision.
On 13 May 2014 the Court of Cassation declared the applicant’s appeal against the decision of 17 March 2014 inadmissible for lack of merit. The applicant received that decision on 16 May 2014.
On 15 May 2014 the Criminal Court of Appeal rejected the applicant’s appeal against the decision of 22 April 2014, reasoning that the grounds for the applicant’s detention continued.
On 12 June 2014 the investigator filed an application with the District Court, seeking to extend the applicant’s detention for two months. The investigator cited the reasons given in his application of 14 April 2014 in support of his new application.
On 20 June 2014 the District Court granted the investigator’s application. Relying on the seriousness of the charges against the applicant and stressing the severity of the anticipated sanction, as well as the need to carry out the investigation, the District Court found that the grounds for the applicant’s detention were still valid.
The applicant appealed against that decision.
On 11 July 2014 the investigation in respect of the applicant was completed.
On 14 July 2014 the applicant filed an application with the NSS investigator, seeking to be released or have his preventive measure altered, as the investigation had already been completed and he could no longer obstruct it.
On the same day the NSS investigator rejected the application, reasoning that the grounds for the applicant’s detention persisted.
On 17 July 2014 the Criminal Court of Appeal rejected the applicant’s appeal against the decision of 20 June 2014, reasoning that the grounds for the applicant’s detention persisted.
The applicant filed an appeal on points of law against that decision.
On 18 July 2014 the applicant filed an application with the Prosecutor General, seeking to be released or to have his preventive measure altered, as the investigation had already been completed and he could no longer obstruct it.
On 29 July 2014 the Prosecutor General referred the application to the Syunik Regional Court, reasoning that the investigation had been completed, and the case was transmitted to the Regional Court for trial.
On 11 August 2014 the applicant filed an application with the presiding judge of the Syunik Regional Court, the NSS investigator and the head of the remand prison, seeking to abolish the restriction on his telephone calls and visits, reasoning that such restriction was unlawful under domestic law. He argued, in particular, that under domestic law restriction of the communication of an accused person was linked to the conduct of the investigation. Since the investigation in his case had been completed on 11 July 2014, there were no legal grounds to continue such restrictions.
On 18 September 2014 the Regional Court examined and rejected the applicant’s application of 29 July 2014, reasoning that the grounds for his detention persisted and that he could still abscond or obstruct the proceedings.
According to the applicant, on the same date during the court session the Regional Court rescinded the restriction on the applicant’s telephone calls and visits at the remand prison.
On 26 September 2014 the Court of Cassation declared the applicant’s appeal on points of law against the decision of 17 July 2014 inadmissible for lack of merit.
B.  Relevant domestic law
Article 137 § 3 of the Code of Criminal Procedure provides that the investigator shall have the power to give mandatory instructions to the administration of a detention facility to keep several accused persons separate from each other with a view to preventing the accused from communicating with other detainees, as well as other instructions prescribed by law, which do not contradict the regime of keeping detained persons.
Section 15 of the Law on Conditions for Holding Arrested and Detained Persons provides that in the interests of investigation, the body conducting the proceedings may restrict visits to a detained person at the detention facility by relatives, representatives of mass media and other persons.
COMPLAINTS
1. The applicant complains under Article 5 § 3 of the Convention that the authorities failed to provide “relevant and sufficient” reasons justifying his detention.
2. The applicant complains under Article 5 § 5 of the Convention that under domestic law and practice he was deprived of the possibility to claim compensation for non-pecuniary damage caused by detention in contravention of the requirements of Article 5.
3. The applicant complains under Article 8 of the Convention, and under Article 13 in conjunction with Article 8 of the Convention, that his right to respect for correspondence and family life was breached as a result of the restriction on his telephone calls and visits, and that he did not have an effective remedy under domestic law in that respect.
 
QUESTIONS TO THE PARTIES
1. Did the courts provide “relevant and sufficient” reasons for the applicant’s detention, as required by Article 5 § 3 of the Convention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 84 et seq., 5 July 2016, and Ara Harutyunyan v. Armenia, no. 629/11, §§ 48 et seq., 20 October 2016)?
2. Was the lack of compensation for non-pecuniary damage as a result of detention in contravention of the requirements of Article 5 in breach of the applicant’s right guaranteed by Article 5 § 5 of the Convention (see Khachatryan and Others v. Armenia, no. 23978/06, 27 November 2012; Sahakyan v. Armenia, no. 66256/11, 10 November 2015)?
3. Has there been a violation of the applicant’s right to respect for his correspondence and family life, contrary to Article 8 of the Convention, as a result of the prohibition on his telephone calls and visits at the remand prison (see Estrikh v. Latvia, no. 73819/01, §§ 165-168, 18 January 2007; Kučera v. Slovakia, no. 48666/99, § 127, 17 July 2007; Moiseyev v. Russia, no. 62936/00, §§ 246, 249-250, 9 October 2008)?
Did the applicant have at his disposal an effective remedy against the alleged violation of his rights under Article 8, as required by Article 13 of the Convention? If yes, did the applicant exhaust those domestic remedies?

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