Temporary detention with a standard but insufficient reasoning. Violation of the right to personal liberty
JUDGMENT
Ghavalyan v. Armenia 22.10.2020 (app. no. 50423/08)
SUMMARY
Temporary detention and reasoning. Adequate reasoning is required and not general and standard. Proportionality of temporary detention. Procedural guarantees for adversarial proceedings.
The applicant was charged with tax evasion and remanded in custody for 8 months. The decisions on pre-trial detention contained general reasons, not specific evidence. The domestic courts did not summon the applicant and her lawyer during the hearing of the appeals against the detention order and the Court of Cassation did not quickly consider the applicant’s appeal.
The Court found that the domestic courts, in discussing the detention and extension, had failed to provide a relevant and sufficient reasoning. They referred only to the stereotypical reason for the risk of escape without evidence relating to the applicant personally. The ECtHR found a violation of Article 5§3 of the ECHR.
With regard to the hearing, the ECtHR found that the domestic courts were content to summon the lawyer by telephone and did not consider the reason for his absence from the hearing and the lawfulness of his summons. It considered that they had failed to provide adequate safeguards against arbitrariness and had not ensured equality of arms. Violation of Article 5§4.
PROVISIONS
Article 5§3
Article 5§4
PRINCIPAL FACTS
The applicant, Anush Ghavalyan, now deceased, was an Armenian national who was born in 1972
and lived in Yerevan.
The case concerned several complaints related to her detention on tax evasion charges.
The applicant, who worked as a cashier at a catering company, was arrested in March 2008 on
suspicion of tax evasion and taken into custody. The courts first ordered her detention for 20 days,
then – despite her appeals – repeatedly extended it, essentially because of the risk of her
absconding or obstructing the investigation. She was ultimately released on bail in November 2008
during the trial court’s examination of her case.
Relying on Article 5 § 3 (right to liberty and security) of the European Convention, the applicant
complained that the courts had failed to properly justify her continued detention. She also raised
several complaints under Article 5 § 4 (right to have lawfulness of detention decided speedily by a
court) alleging: that the Criminal Court of Appeal had failed to examine speedily one of her appeals,
dated 13 June 2008, against a court order extending her detention and eventually had refused to
examine it, leaving it to the trial court to decide; that her lawyers had not been notified of two
hearings to examine the extension of her detention in April 2008, in breach of the principle of
equality of arms; and, that the Court of Cassation had failed to speedily examine her appeals on
points of law against decisions extending her detention, eventually refusing to examine her appeal
of April 2008.
THE DECISION OF THE COURT…
5 § 3
The applicant complained that the courts had failed to provide relevant and sufficient reasons for her continued detention.
The Court refers to its general principles under Article 5 § 3 of the Convention relating to the right to be released pending trial and notes that the domestic courts, when ordering the applicant’s detention and its extension, referred to the risks of her absconding and obstructing the proceedings. However, both the Kentron and Nork-Marash District Court of Yerevan and the Criminal Court of Appeal mostly limited themselves to repeating those grounds in an abstract and stereotyped manner, without indicating any specific reasons as to why they considered those risks to be well-founded or trying to refute the applicant’s argument. The Court notes that it has already examined a number of cases against Armenia, in which a violation of Article 5 § 3 of the Convention was found in similar circumstances .
It is true that on one occasion the Criminal Court of Appeal justified its assertion that the applicant might unlawfully influence three other suspects by referring to the fact that they were in hiding. However, it is not clear how the fact that three other suspects were in hiding meant that there was a real risk of unlawful conduct on the part of the applicant. It is notable that the Court of Appeal’s reasoning lacked any specific details.
Lastly, the Court notes the contrast between the domestic courts’ repeated statements that the applicant was known to be of good character and their findings that the risks of her absconding and obstructing the investigation were justified.
The Court therefore concludes that the domestic courts failed to provide relevant and sufficient reasons for their decisions ordering and extending the applicant’s detention.
There has accordingly been a violation of Article 5 § 3 of the Convention.
5 § 4
The Court reiterates that Article 5 § 4 requires that a court examining an appeal against detention provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person .
In the present case, the Court notes that the domestic rules of procedure required the presence of both the prosecution and defence counsel at the hearings in which the detainee’s appeal against a decision extending pre-trial detention was examined, but the court was authorised to proceed with the examination if a party who had been notified of the day of the hearing failed to appear
The Court notes, however, that domestic criminal procedure law did not contain any rules on notifying parties of hearings concerning detention, by telephone or other means. Thus, the alleged attempts to notify the applicant’s lawyers were not based on any rules. In the Court’s opinion, such a lack of rules significantly increased the likelihood of arbitrariness. Indeed, there is no objective way of verifying whether the alleged telephone calls were actually made and, if so, whether the transcripts in question accurately reflected their content.
Furthermore, even assuming that that was how parties to detention proceedings were generally notified of hearings, it cannot be ruled out that on this particular occasion such a method of notification failed. In such circumstances, the Court is not satisfied, in the absence of clearly defined rules, with the manner in which the authorities allegedly tried to fulfil their obligation to ensure the presence of the applicant’s lawyers at the hearing of 17 to 18 April 2008, since they failed to provide sufficient safeguards against arbitrariness. As a result, the applicant’s lawyers were absent from the hearing at which both the investigator and the prosecutor were present and made submissions. The Court considers that the manner in which that hearing was conducted breached the adversarial nature of the proceedings and the principle of equality of arms between the parties.
There has accordingly been a violation of Article 5 § 4 of the Convention.
