Last Updated on April 28, 2019 by LawEuro
Communicated on 26 March 2019
FIRST SECTION
Application no. 20409/11
Armen MATEVOSYAN
against Armenia
lodged on 23 March 2011
STATEMENT OF FACTS
The applicant, Mr Armen Matevosyan, is an Armenian national who was born in 1978. He is represented before the Court by Mr G. Simonyan, 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.
In Krasnodar, Russia, the applicant was charged with breach of inviolability of a dwelling under Article 139 § 1, wilful infliction of bodily harm under Article 115 § 1 and the murder of three persons under Article 105 § 2 (a) and (c) of the Criminal Code of Russia.
On 19 September 2005 the Krasnodar District Court found the applicant guilty as charged and sentenced him to twenty years’ imprisonment under Article 105 § 2 (a) and (c) of the Criminal Code of Russia, and to corrective community service for six months and confiscation of 20% of his salary for each of the offences under Articles 115 § 1 and 139 § 1. As a result, the Krasnodar District Court imposed on the applicant a cumulative sentence of twenty years and four months’ imprisonment.
On an unspecified date the Minister of Justice of Armenia and the Prosecutor General of Russia reached an agreement on the applicant’s transfer to Armenia to serve his sentence.
On 9 September 2008 the Chelyabinsk Regional Court ordered the applicant’s transfer to Armenia, to serve the remainder of his sentence.
On 6 March 2009 the Armenian Prosecutor General sought judicial recognition of the judgment of 19 September 2005, whereby the applicant’s sentence would be brought into conformity with the Criminal Code of Armenia, in accordance with the rules set out in the Moscow Convention on Transfer of Sentenced Persons for Enforcement of Custodial Sentences.
On 15 May 2009 the Erebuni and Nubarashen District Court of Yerevan (“District Court”) decided to leave the sentence imposed by the judgment of 19 September 2005 unchanged.
The applicant appealed against that decision. He argued that maintaining his original sentence of twenty years and four months’ imprisonment was unlawful under Armenian law, as it exceeded the maximum sentence prescribed by Article 104 § 2 (1) of the Criminal Code of Armenia.
On 29 June 2009 the Criminal Court of Appeal quashed and amended the decision of 15 May 2009. The Court of Appeal reasoned that the District Court had failed adequately to recognise and enforce the judgment of 19 September 2005. Furthermore, it had breached Article 12 of the Moscow Convention, according to which the adapted custodial sentence could not exceed the maximum punishment prescribed by the law of the administering state, which was fifteen years in Armenia. In the meantime, the Criminal Court of Appeal applied the rules of cumulative sentencing under Article 66 § 4 of the Criminal Code and sentenced the applicant to fifteen years’ imprisonment under Article 104 § 2 (1) of the Criminal Code, and to fines under Articles 117 (infliction of bodily harm) and 147 § 1 (breaching inviolability of a dwelling).
The Prosecutor lodged an appeal on points of law against that decision. He argued, inter alia, that the sentence of fifteen year’s imprisonment was unlawful, as Article 104 § 2 (1) of the Criminal Code also provided for a possibility to impose on the applicant life imprisonment, which would have been in conformity with the judgment of 19 September 2005.
On 26 November 2009 the Court of Cassation quashed the contested decision and remitted the case for new examination. The Court of Cassation reasoned that the District Court had to determine the applicable law and address the relationship between the provisions of the Moscow and Strasbourg Conventions, as well as the legal effect of the bilateral transfer agreement.
On 21 May 2010 the District Court sentenced the applicant to fifteen years’ imprisonment. It noted that Armenia and Russia were parties to both the Moscow and Strasbourg Conventions. Relying on Article 10 of the Strasbourg Convention, the District Court stated that the administering state could neither aggravate, by nature or duration, the punishment imposed in the sentencing state, nor exceed the maximum punishment prescribed under the law of the administering state. The District Court noted in that regard that in cases of murder, Armenian law prescribed a maximum punishment of fifteen years’ imprisonment or life imprisonment. Life imprisonment, however, would change the nature of the applicant’s original sentence, since according to Article 49 of the Criminal Code life imprisonment and imprisonment for a certain term were two distinct types of punishment. Even though the Krasnodar District Court had the possibility under Russian law to impose on the applicant life imprisonment, it chose to sentence him to imprisonment for a certain period of time. Therefore, the administering state, namely Armenia, was not competent to change the type of the punishment and impose on the applicant life imprisonment. Thus the applicant’s punishment had to be fixed at fifteen years’ imprisonment.
The decision of 21 May 2010 stated that it was subject to appeal within ten days of its pronouncement.
On 22 June 2010 the prosecution appealed against that decision.
On 28 June 2010 the applicant made written submissions to the Criminal Court of Appeal arguing, inter alia, that the appeal against the decision of 21 May 2010 had been lodged out of time.
On 21 July 2010 the Criminal Court of Appeal quashed and amended the decision of 21 May 2010 and sentenced the applicant to twenty years of imprisonment. In doing so, it reasoned as follows:
“Erebuni and Nubarashen District Court of Yerevan imposed 15 years’ imprisonment, whereas Article 104 § 2 of the Criminal Code also provides for the possibility of imposing life-sentence, which means that maintaining the convict’s 20 years’ imprisonment imposed by the Krasnodar Regional Court does not deteriorate his situation, and, additionally, such is the requirement of justice. Therefore, the appellate court finds that decreasing the term of imprisonment for 5 years was in breach of the Code of Criminal Procedure, while the contested judicial act violated the very essence of justice and the necessity to maintain balance between constitutionally protected interests.”
It concluded that imposing twenty years’ imprisonment on the applicant was in line with both domestic law and international treaties ratified by Armenia. The Criminal Court of Appeal did not address the applicant’s submissions of 28 June 2010.
The applicant lodged an appeal on points of law against that decision. The applicant argued, inter alia, that the penalty imposed by the decision of 21 July 2010 was unlawful. The Criminal Court of Appeal erred in comparing imprisonment for fixed term with imprisonment for life, since, both under the Russian and the Armenian criminal laws, they were two distinct types of punishments. Finally, the applicant submitted that the Criminal Court of Appeal had not addressed his arguments as regards the lack of compliance by the prosecution with the procedural time-limits for lodging an appeal against the decision of 21 May 2010.
On 17 September 2010 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit, and that decision was served on the applicant on 24 September 2010.
B. Relevant domestic and international law
1. Criminal Code of Armenia (in force from 1 August 2003)
According to Article 49, which lists all types of criminal sanctions, imprisonment for certain periods of time and life imprisonment are listed as distinct types of punishment.
According to Article 66 § 4, in cases of cumulative sentencing, the term of imprisonment cannot exceed fifteen years.
According to Article 104 § 2 (1), murder of two or more persons shall be punishable by eight to fifteen years’ imprisonment or by life imprisonment.
According to Article 117, infliction of light bodily harm shall be punishable by a fine or by detention for up to two months.
According to Article 147 § 1, entry to a dwelling against the will of a person shall be punishable by a fine or by detention for up to two months.
2. Criminal Code of Russia (in force since 13 June 1996)
According to Article 105 § 2 (a) and (c), murder of two or more persons, as well as murder of a person, who is apparently in a vulnerable state, shall be punishable by eight to twenty years’ imprisonment or by life imprisonment or by the death penalty.
3. Convention on the Transfer of Sentenced Persons (signed in Strasbourg on 21 March 1983)
According to Article 10, if the sentence is by its nature or duration incompatible with the law of the administering state, that state may adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing state, nor exceed the maximum prescribed by the law of the administering state.
4. Convention on the Transfer of Sentenced Persons for Enforcement of Custodial Sentences (signed in Moscow on 6 March 1998 by Armenia and other Member States of the Commonwealth of Independent States)
According to Article 12, the administering state shall ensure continuation of enforcement of the sentence in accordance with its law and shall refrain from worsening the situation of the convict. According to the same provision, if the maximum custodial sentence is more lenient under the law of the administering state than the sentence prescribed by the judgment, then the court assigns the maximum custodial sentence under the law of the administering state.
COMPLAINTS
The applicant complains under Article 7 of the Convention, as well as under Article 4 of Protocol No. 7, that his sentence of twenty years’ imprisonment imposed by the decision of the Criminal Court of Appeal of 21 July 2010 was unlawful.
In particular, the applicant complains that:
(a) the prosecution’s appeal of 22 June 2010 was in breach of the relevant applicable procedural provisions;
(b) the appellate courts did not address his arguments concerning the fact that the prosecution’s appeal of 22 June 2010 had been lodged out of time.
QUESTIONS TO THE PARTIES
1. Was the sentence imposed on the applicant by the Criminal Court of Appeal on 21 July 2010 lawful, as required by Article 7 of the Convention?
In this connection:
(a) was the appeal filed by the prosecution on 22 June 2010 in accordance with the applicable relevant procedural provisions?
(b) for what reasons did the appellate courts omit to deal with the applicant’s allegations on the fact that the prosecution’s appeal would have been filed out of time?
2. Was the same situation also in violation of Article 4 of Protocol No. 7?
Leave a Reply