Criminal conviction based on written testimonies abroad. Inability of the accused to examine the witnesses in the audience.

JUDGMENT 

Dadayan v. Armenia 6.09.2018 (no. 14078/12)

see here 

SUMMARY

The case concerned criminal proceedings brought against an Armenian national, Garik Dadayan, for aiding and abetting the smuggling of enriched uranium into Georgia. The two smugglers were prosecuted and convicted in Georgia, while Mr Dadayan was prosecuted and convicted in Armenia, essentially on the basis of the smugglers’ witness statements to the Georgian authorities. The Court found in particular that Mr Dadayan’s defence rights had been substantially affected because the Armenian trial court had never heard the smugglers in person. The Georgian authorities had refused their transfer to Armenia pending the criminal proceedings against them in Georgia. This was despite the fact that those witness statements had been the sole basis on which the courts could decide whether or not Mr Dadayan had been involved in selling the radioactive substance

PROVISION 

Article 6 par. 3d

PRINCIPAL FACTS 

The applicant, Garik Dadayan, is an Armenian national who was born in 1954 and lives in Yerevan
(Armenia).

On 11 March 2010 the Georgian law-enforcement authorities arrested two men, H.O. and S.T., when
they tried to sell 15g of enriched uranium which they had just transported from Armenia by train.
The Georgian authorities informed the Armenian security services that H.O. and S.T. had bought the
radioactive substance from the applicant, Mr Dadayan.

The two accused smugglers were questioned as witnesses in Georgia in April 2010. They both stated
that they had paid Mr Dadayan to travel from Russia to Armenia and bring them the uranium to
Yerevan railway station.

H.O. and S.T. were then prosecuted in Georgia and convicted in March 2011, while Mr Dadayan was
arrested and prosecuted in Armenia.

During his trial, he requested that H.O. and S.T. be brought before court for questioning. However,
the Georgian authorities refused because the two men’s convictions were still open to appeal on
points of law.

Mr Dadayan was found guilty in May 2011 and sentenced to seven years’ imprisonment. The trial
court relied on H.O. and S.T.’s witness statements; forensic examinations carried out in Georgia and
Armenia confirming that the smuggled substance contained enriched uranium; records of telephone
calls between Mr Dadayan and H.O.; and the exit and entry stamps in Mr Dadayan’s passport
proving that he had arrived in Yerevan from Moscow on 10 March 2010.

The Court of Appeal subsequently upheld Mr Dadayan’s conviction, without addressing his
complaint about not being able to cross-examine S.T. and H.O. He also lodged an appeal on points of
law, without success.

THE DECISION OF THE COURT 

The Court noted that one of the requirements of a fair trial was the possibility for the accused to
confront witnesses in the presence of the judge who ultimately had to decide the case. This was
because a judge’s observations on the demeanour and credibility of a witness could have
consequences for the accused.

In Mr Dadayan’s case, the witnesses S.T. and H.O. had been absent from his trial because the
Georgian authorities had refused to authorise their transfer to Armenia. However, there had been
no good reason for the trial court to then admit the statements of those absent witnesses as
evidence without them being examined in court. Indeed, the trial court had not made any further
attempts to try to find out whether it would be possible to transfer the two witnesses to Armenia if
and when their convictions became final. Nor had any other means of examining them been
contemplated, for example via video link.

Moreover, their statements had been fundamental for the case because it was the sole basis on
which the courts could decide whether Mr Dadayan had been involved in selling enriched uranium.
Not hearing those witnesses in person had therefore substantially affected his defence rights.
Instead, the courts had based its conclusions on witness evidence which had never even been
examined.

Lastly, there had not been sufficient procedural safeguards in place to compensate for those
handicaps to the defence. Although he had had the possibility to challenge the admissibility of S.T
and H.O.’s testimony, he had not been able to challenge their statements during the investigation
stage, which had taken place in Georgia, while his prosecution and conviction had been in Armenia.
There was nothing to indicate that the trial court had approached the untested evidence with any
specific caution.

The Court therefore concluded that, overall, Mr Dadayan had not had a fair trial, in breach of
Article 6 §§ 1 and 3 (d).

Just satisfaction (Article 41)

The Court held that Armenia was to pay Mr Dadayan 2,400 euros (EUR) in respect of non-pecuniary damage and EUR 1,000 in respect of costs and expenses(echrcaelaw.com editing). 


ECHRCaseLaw

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