Communicated on 15 January 2019
FIRST SECTION
Applications nos. 22665/10 and 2305/11
Nikol PASHINYAN
against Armenia
lodged on 1 April 2010
STATEMENT OF FACTS
The applicant, Mr Nikol Pashinyan, is an Armenian national who was born in 1975 and lives in Yerevan. He is represented before the Court by Mr V. Grigoryan, 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.
1. Events preceding the 19 February 2008 presidential election
The applicant was the editor-in-chief of Haykakan Zhamanak (Armenian Times) daily newspaper at the material time. He was an active supporter, and a member of the pre-election headquarters, of Mr Levon Ter-Petrosyan, a former President of Armenia who announced on 26 October 2007 that he would stand in the presidential election to be held in Armenia on 19 February 2008.
On 23 October 2007 the applicant, with a group of other supporters of Mr Ter-Petrosyan, held a street procession with the aim of informing the public of an upcoming rally. The applicant alleges that the police first demanded that the procession be stopped, and then assaulted and arrested the participants.
On the same date, criminal case no. 13126707 was instituted. This decision stated that, on 23 October 2007 at around 7.30 p.m., a group of people had disrupted traffic on Abovyan Street and entered into an unjustified argument with the police officers who had called them to order. The group had shown a disrespectful attitude towards passers-by, drivers and the police officers, had sworn for about 20 minutes at the police and the authorities, and had resisted and assaulted the police officers.
On 24 October 2007 the investigator imposed on the applicant a written undertaking not to leave his place of residence.
On 30 October 2007 the applicant was formally charged under Article 316 § 1 of the Criminal Code (CC) with assault on a public official in connection with the above events. He was alleged to have disobeyed the lawful orders of the police officers, pulled and pushed them and intentionally kicked one of the officers.
2. The 19 February 2008 presidential election and post-election demonstrations
On 19 February 2008 a presidential election was held in Armenia. The main contenders were the then Prime Minister, Mr Sargsyan, representing the ruling party, and the main opposition candidate, Mr Ter-Petrosyan.
Immediately after the announcement of the preliminary results of the election, Mr Ter-Petrosyan called on his supporters to gather at Freedom Square in central Yerevan (also known as Opera Square) in order to protest against the irregularities which had allegedly occurred in the election process, announcing that the election had not been free and fair. From 20 February 2008 onwards, nationwide daily protest rallies were held by Mr Ter-Petrosyan’s supporters, their main meeting place being Freedom Square and the surrounding park. It appears that the rallies at Freedom Square attracted at times tens of thousands of people, while several hundred demonstrators stayed in that area around the clock, having set up a camp. It further appears that the applicant was an active participant in the rallies, attending them on a daily basis and regularly giving speeches. The applicant alleges that the demonstrations were peaceful and were aimed at annulling the results of the rigged election and holding a new election. The authorities responded by carrying out unlawful persecution and harassment of opposition supporters and those who gave speeches at Freedom Square. On 23 and 24 February 2008 a number of high-ranking officials who supported or were suspected of supporting the opposition were dismissed from office, and a number of opposition leaders and activists were arrested.
On 24 February 2008 the Central Election Commission announced that Mr Sargsyan had won the election with around 52% of all votes cast, while Mr Ter-Petrosyan had received around 21% of votes.
On the same date, criminal case no. 58200608 was instituted under Article 300 § 1 of the CC. This decision stated:
“During the Armenian presidential election [the applicant, S.M., H.H., M.M., P.M.], others and the presidential candidate, Levon Ter-Petrosyan, having found out that, according to the preliminary results, he has lost the election and has received only 21.5% of votes, by creating an atmosphere of distrust in the country towards lawful authorities and disrupting the regular work of institutions and organisations, as well as inciting the creation of armed groups and their use in the future, has committed acts aimed at usurping State power, violently seizing State power in violation of the Constitution and violently overthrowing the constitutional order of Armenia.”
On 26 February 2008 the investigator decided to lift the written undertaking imposed on the applicant within the scope of criminal case no. 13126707 and to lodge an application with a court seeking to have the applicant detained for a period of two months. The investigator stated that the applicant had been summoned, but failed to appear for questioning in connection with criminal case no. 13126707. An attempt to bring the applicant in by force had failed because his whereabouts were unknown. Since the applicant had gone into hiding, on 26 February 2008 a search for him had been launched.
On the same date the Kentron and Nork-Marash District Court of Yerevan, having heard the investigator’s submissions and examined the materials of the case, decided to grant the application, taking into account that a search had been initiated in respect of the applicant which gave sufficient reasons to believe that he had gone into hiding.
The applicant alleges that he continued attending and giving speeches at the rallies and therefore his whereabouts could not have been unknown to the authorities.
On 29 February 2008 the rallies were still in full swing.
3. The events of 1-2 March 2008 and institution of further criminal cases
On 1 March 2008, apparently at some point between 6 and 7 a.m., the police arrived at Freedom Square. The applicant alleges that they attacked and brutally beat the demonstrators camping at the square. The demonstrators fled from Freedom Square to the area adjacent to the French, Italian and Russian Embassies, the Yerevan Mayor’s Office and the Myasnikyan statue.
On the same date, criminal case no. 62202508 was instituted under, inter alia, Article 225.1 § 1 and Article 316 § 2 of the CC in connection with the events at Freedom Square. The decision stated:
“After the announcement of the preliminary results of the presidential election of 19 February 2008, the presidential candidate, Mr Levon Ter-Petrosyan, members of parliament, [K.S. and S.M.], the chief editor of Haykakan Zhamanak daily newspaper, [the applicant], and others organised and held mass public events at Yerevan’s Freedom Square in violation of the procedure prescribed by law and incited disobedience to the decisions ordering an end to the events held in violation of the procedure prescribed by law, while a number of participants in the mass events illegally possessed and carried illegally obtained arms and ammunition.
On 1 March 2008 at around 6 a.m., when the police took measures aimed at forcibly ending the public events held in violation of the procedure prescribed by law, in compliance with the requirements of section 14 of the Assemblies, Rallies, Marches and Demonstrations Act, the organisers and participants of the events, disobeying the lawful orders of the [police officers], who were performing their official duties, committed a life- and health-threatening assault on them with clubs, metal rods and other adapted objects, which had been in their possession for that purpose, causing the police officers injuries of varying severity.”
It appears that the demonstrators who had gathered near the Yerevan Mayor’s Office were joined by numerous others who apparently poured into that area in response to the events of the early morning in order to voice their discontent. The applicant alleges that police and military forces and equipment started to encircle that area. Then another brutal attack was launched on the demonstrators. The demonstrators had to defend themselves with random objects. They barricaded the area with public and private means of transportation and continued the demonstration peacefully. He, together with a number of other opposition leaders, had called on the public to stay calm and tried to prevent new clashes by creating a human chain between the police forces and the demonstrators. The latter were waiting in vain for Mr Ter-Petrosyan to arrive because, in the meantime, he had been placed under house arrest.
It further appears that, gradually, the number of demonstrators swelled to thousands who were spread across the area of the Yerevan Mayor’s Office and several adjacent streets, including Grigor Lusavorich, Mashtots, Leo and Paronyan streets. The applicant alleges that the police and military forces launched several more attacks on the demonstrators. Not only were crowd control weapons used, but also live ammunition, snipers and military equipment. It also appears that clashes took place and the standoff between the authorities and the demonstrators continued until late at night, resulting in ten deaths and numerous injured and a state of emergency being declared by the incumbent President Kocharyan which, inter alia, prohibited the holding of any further rallies and other mass public events for a period of twenty days.
On 2 March 2008 another criminal case was instituted, no. 62202608, under Article 225 § 3 and Article 235 § 2 of the CC, in connection with the above-mentioned events. The decision stated:
“[Mr Ter-Petrosyan], the candidate running for president in the presidential election of 19 February 2008, and his followers and supporters, members of parliament [K.S. and S.M.], the chief editor of Haykakan Zhamanak daily newspaper, [the applicant], and others, not willing to concede defeat at the election, with the aim of casting doubt on the election, instilling distrust towards the results among large segments of the population, creating illusions of public discontent and revolt and discrediting the election and the authorities, from 1 March 2008 in the area of the Yerevan Mayor’s Office and central streets organised mass disorder involving murders, violence, massacre, arson, destruction of property and armed resistance to public officials, with the use of firearms, explosives and other adapted objects.”
On the same date, criminal cases nos. 62202508 and 62202608 were joined under the latter number on the ground that they concerned the same persons.
It also appears that the applicant went into hiding around that period.
4. The charges against the applicant and his pre-trial detention
On 4 March 2008 the applicant was formally charged under Article 225 § 3, Article 225.1 § 1 and Article 300 § 1 of the CC. This decision stated:
“[the applicant] conspired with the presidential candidate Levon Ter-Petrosyan and a number of his supporters, if Levon Ter-Petrosyan were to suffer a defeat at the presidential election, to unbridle a whole set of actions aimed at unconstitutionally usurping State power by destabilising the internal political situation in the country, deteriorating the State system through various types of pressure and even inciting to mass violence[. B]eing determined, in view of the role assigned to him in that project, to assist to the utmost in the implementation of [their] criminal intention, [the applicant], together with Levon Ter-Petrosyan and a number of his other supporters, starting from the very day after the election, organised and held in Yerevan, in violation of the procedure prescribed by law, continuous mass public events, marches and round-the-clock demonstrations and sit-ins, disturbing the life of the capital, the traffic, the normal functioning of public institutions and the peace and quiet of the population, and pursuing the aim of casting doubt on the legitimacy of the election in the eyes of the international community, instilling distrust towards the election results among large segments of the population and creating illusions of public discontent and revolt[. During these events] he publicly gave incendiary speeches and made public calls inciting to civil disobedience, disobedience against lawful orders of the law-enforcement authorities and assistance in disintegration of the State system and overthrow of the current government, thereby enflaming populistic passions and readiness to resort to mass disruptiveness among the demonstrators[. Thereafter], on 1 March, addressing the crowd gathered at the area adjacent to the Yerevan Mayor’s Office as an official election assistant of Levon Ter-Petrosyan, he instigated and organised mass disorder which involved mass violence, widespread massacre, arson, destruction and damage of public and private property, overt looting, armed resistance against public officials, mass assaults on public officials with the use of firearms and explosives, and murders.”
On 11 March 2008 criminal case no. 13126707 was joined to the case no. 62202608.
On 24 March 2009 the investigator decided to drop and modify part of the charges against the applicant. In particular, the charge under Article 300 § 1 of the CC was dropped, since that provision had been amended and as a result was not applicable, while the charge under Article 225 § 3 of the CC was replaced with a charge under Article 225 § 1 of the CC, since the former had been repealed in the meantime.
On 1 July 2009 the applicant voluntarily turned himself in to the authorities.
On 3 July 2009 the applicant was brought before the Kentron and Nork‑Marash District Court of Yerevan which decided to detain him for a period of two months on the ground that he was a flight risk and could obstruct the proceedings, taking into account the fact that a search had been launched in his respect.
On 16 July 2009 the Criminal Court of Appeal upheld this decision, stating that a search for him had been launched and he had appeared before the investigating authority only one year and four months later.
On 4 August 2009 the investigator decided to drop the charge under Article 225.1 § 1 of the CC on the ground that the unlawfully conducted mass public events had been organised and held with the intention of organising mass disorder. Those actions were therefore to be examined solely under Article 225 § 1 of the CC.
On 27 August 2009 the District Court extended the applicant’s detention by two months on the same grounds. This decision was upheld upon the applicant’s appeal by the Criminal Court of Appeal on 11 September 2009.
5. The applicant’s trial
On 28 September 2009 the indictment was approved and on 1 October 2009 the applicant’s criminal case was sent to court.
On 12 October 2009 the District Court decided to set the case down for trial and to keep the applicant in detention, considering the probability of his fleeing to be high, taking into account the fact that he was accused of a grave crime and that he had been in hiding and a search for him had been initiated.
On an unspecified date the applicant lodged an application with the District Court, seeking to be released.
On 22 October 2009 the District Court dismissed the application, relying on the same grounds, as well as considering that, being accused of organising mass disorder and enjoying authority with many of the participants and eyewitnesses of the mass disorder, the risk of his influencing witnesses was high.
On 19 January 2010 the District Court acquitted the applicant under Article 316 § 1 of the CC on grounds of insufficient evidence, but found him guilty under Article 225 § 1 of the CC, sentencing him to seven years’ imprisonment. The District Court found it to be established as follows:
“Serzh Sargsyan won the 19 February 2008 presidential election. After the announcement of the election’s preliminary results, starting from 20 February 2008 [the applicant], together with [A.A., S.S., H.H., M.M. and S.M. who had already been convicted under Article 225 § 1 of the CC in a separate set of proceedings], as well as a number of other persons, unleashed organisational work with the aim of causing discontent with the election process and its results among the population and preparing the crowd gathered at the mass public events held at Yerevan’s Freedom Square to use violence and to show disobedience, including spreading false information alleging that the mass public events had been authorised by the authorities, that around 500,000 people had participated in those events, that the election results had been rigged and that the presidential candidate Levon‑Ter‑Petrosyan had received about 60% of the votes, and obtaining household items and providing means to groups of people in order to ensure their continuous participation in those events. Rods, batons, metal fixtures, gasoline, metal objects considered to be projectile bladed weapons, firearms and ammunition were distributed to a group of participants in the mass public events held at Freedom Square. ...
With the intention of inciting and carrying out mass disorder in Yerevan on 1 March 2008, the members of the group, both personally and with the help of others, formed groups of people ready to use mass violence and organised distribution among those persons of illegally obtained firearms, ammunition, explosive substances, explosive devices, bladed weapons and various objects adapted to inflict violence.”
The District Court went on to describe some acts committed by S.M., M.M., H.H. and a number of others. The applicant, having found out about the imminent arrival of the police forces in the early morning of 1 March 2008, together with his co-thinkers woke up those camping at Freedom Square and called on them to arm themselves and to give a “proper welcome”, namely to show resistance, to the police. As a result, the crowd attacked the police officers who had approached and asked to carry out an inspection for weapons. The police operation eventually led to the discovery of various weapons and ammunition, which had been brought to the Square to be used during the planned mass disorder.
“Thereafter, the participants in the mass event, as guided by [the applicant, A.A.] and others, moved to and gathered near the area of the Myasnikyan statue, considered an important road junction, in the vicinity of sites under special protection, such as the Embassies of France, Italy and the Russian Federation. At around 11 a.m. the participants in the mass disorder blocked Grigor Lusavorich Street by placing trolleybuses across the driveway, after which they attacked the police officers who were preserving public order. [The applicant], together with [A.A., S.M. and others, in order to bring to completion their intention to instigate mass disorder, refused the offer made by the authorities to move the mass event to another location for the purpose of ensuring order and the safety of participants in the event. Moreover, with their orders and speeches, they organised and oversaw keeping the gathered crowd in the same location for a long period of time, derailing its relocation, as well as the process of arming themselves with objects adapted to inflict injuries and other objects at hand, assaulting the police officers and showing active disobedience to their lawful orders. As organised and directly instructed by [the applicant, S.S. and others], barricades were created by damaging transportation means and other property and by putting them out of order. [The applicant] gave instructions [to the demonstrators] to arm themselves and to be ready to resist, as well as to recruit new people at any cost.”
The District Court proceeded to describe certain acts committed by the participants in the mass event and found that the applicant, together with a number of others, structured and oversaw the activities of the organisers and participants in the mass disorder.
“[The applicant] continuously circulated among the participants in the mass disorder and organised the formation and dislocation of their groups.
In order to ensure the unreserved compliance with orders given for the purpose of organising mass disorder, he gave concrete instructions: to split into groups, build barricades, arm themselves with stones, sticks and other objects in order to injure the police officers, grab batons and shields from the police officers, and exhorted to obey him and the other organisers of the mass disorder.
[The applicant] publicly encouraged the participants in the mass disorder to grab shields and batons from the police officers, saying ‘...guys, you wouldn’t believe how good I felt...’.
In order to instil hatred towards the authorities and to create readiness for disobedience and violence, he called on the soldiers and police officers, who were involved in maintaining public order, not to carry out their duties, to join the participants in the mass disorder and to turn their weapons towards the authorities.
Furthermore, he gave concrete instructions on how to reinforce the positions and to prepare for new acts of violence.
Continuing to lead and organise the ongoing mass disorder, he made public declarations about the territories taken over by the participants in the disorder and declared that all the soldiers had fled and the entire process was under their control, in order to keep the participants in the mass disorder around and to inspire them.
In order to organise the process of mass disorder and to coordinate the activities of its participants, [the applicant] regularly invited other organisers of the mass disorder for consultations, thereby systematising their activities.
Being in the epicentre of the mass disorder, [the applicant] regularly exchanged information with [A.A. and S.S.] about the massacre, arson, intentional destruction, damage and looting of property taking place on Grigor Lusavorich, Mashtots, Leo and Paronyan streets of Yerevan under their supervision.”
The District Court went on to indicate the consequences of those events, including nine deaths, hundreds of injured and the amount of pecuniary damage. It concluded that the events in question amounted to “mass disorder” within the meaning of Article 225 § 1 of the CC and that the applicant’s actions fell within the scope of that provision. In reaching these conclusions, the District Court relied on: (a) a number of witness statements; (b) recordings of the intercepted telephone conversations held on 1 March 2008 between the applicant and A.A., as well as between A.A. and a number of other persons; (c) several video recordings, including of speeches made by the applicant in the area of the Myasnikyan statue and the Yerevan Mayor’s Office; (d) various materials concerning damage to property; (e) the records of inspection of the scene, according to which weapons and ammunition had been found at Freedom Square after the police operation; and (f) the results of various examinations, including ballistic and explosives.
On 19 February 2010 the applicant lodged an appeal in which he argued, inter alia, that his conviction had violated the guarantees of Article 10 of the Convention. He alleged that the authorities had embarked on a campaign of political repression against the supporters of Mr Ter-Petrosyan before and during the peaceful demonstrations held at Freedom Square, including by initiating unlawful criminal prosecution of such persons following the dispersal of the assembly on 1 March 2008. The speeches made at Freedom Square involved no incitement to violence nor a violent overthrow of the government. To the contrary, Freedom Square had become an important platform for public debate on a topic of significant public concern and the leaders of the opposition regularly stressed in their speeches the importance of adhering to the rule of law. The applicant denied that he had guided the demonstrators to the area of the Yerevan Mayor’s Office and the Myasnikyan statue and submitted that the demonstrators had fled to that area on escaping from the police and being pursued by them after their brutal dispersal from Freedom Square. He further contested that the actions of the demonstrators could be characterised as “mass disorder” and, even assuming that they could, the District Court had failed to indicate any concrete actions taken by him towards the organisation of such mass disorder. There had been no preliminary agreement between the so-called organisers of the alleged mass disorder and some of them had not even been acquainted with each other before meeting for the first time in court. He had never incited to violence or any other actions which could be characterised as “mass disorder”. When he arrived in the vicinity of the Mayor’s Office, the demonstrators had already barricaded themselves and detached various objects from a nearby building site for self-defence.
On 9 March 2010 the Criminal Court of Appeal dismissed the applicant’s appeal and upheld his conviction. It held, in particular, that the applicant had participated in the assembly held from 20 February to 1 March 2008, during which he had availed himself of his freedom of expression by freely imparting information and ideas without any interference by the authorities. However, during the demonstrations held in various parts of Yerevan he had committed a criminal office, namely organising mass disorder. The rights guaranteed under Article 11 were subject to limitations. Thus, he had been prosecuted for criminal conduct during the demonstrations, rather than for his participation in the demonstrations and expressing his opinion. There had therefore not been an interference with the applicant’s right to freedom of peaceful assembly. Furthermore, taking into account the weapons and ammunition found at Freedom Square, the assembly at Freedom Square had not been peaceful, and nor had the assembly in the area adjacent to the Mayor’s Office.
On 10 April 2010 the applicant lodged an appeal on points of law.
On 30 April 2010 the Court of Cassation declared his appeal on points of law inadmissible for lack of merit.
B. Relevant domestic law
Criminal Code
Article 225 § 1 prescribes a penalty for organising mass disorder involving violence, massacre (ջարդեր), arson, destruction of or damage to property, or armed resistance to public officials. Article 225 § 3 prescribes a penalty for the same acts, if involving murder.
Article 225.1 § 1 prescribes a penalty for organising and holding a public event in violation of the procedure prescribed by law.
Article 300 § 1 provides that usurpation of State power, that is activities aimed at violently seizing or retaining State power in violation of the Armenian Constitution, violently overthrowing Armenia’s constitutional order or violently violating Armenia’s territorial integrity, is punishable by imprisonment for a period from ten to fifteen years.
Article 316 § 1 provides that non-life-threatening or non‑health‑threatening assault or threat of such assault on a public official or his or her next-of-kin, connected with the performance of his or her official duties, is punishable by a fine of between 300 and 500 times the minimum wage or detention of up to one month or imprisonment for a period not exceeding five years.
COMPLAINTS
The applicant complains under Article 5 of the Convention that his detention, as authorised by the decision of 12 October 2009 of the Kentron and Nork-Marash District Court of Yerevan, failed to satisfy the requirement of lawfulness.
The applicant complains under Article 10 of the Convention that he was prosecuted and convicted for speeches and statements he made during the peaceful demonstrations held between 20 February and 1 March 2008. Furthermore, his prosecution was politically motivated and was aimed at preventing his opposition activities and punishing him for his opposition views and activities.
QUESTIONS TO THE PARTIES
1. Was the applicant’s detention between 12 October 2009 and 19 January 2010 compatible with the requirements of Article 5 § 1 of the Convention? In particular, did the decisions authorising his detention during that period afford adequate protection from arbitrariness and meet the requirement of lawfulness within the meaning of that Article?
2. Has there been a violation of the applicant’s right to freedom of expression and freedom of peaceful assembly, contrary to Articles 10 and 11 of the Convention? In particular, were the applicant’s prosecution and conviction compatible with the requirements of those Articles?
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