SAGHATELYAN v. ARMENIA

2 December 2010

THIRD SECTION

Application no. 23086/08
by Mushegh SAGHATELYAN
against Armenia
lodged on 22 April 2008

STATEMENT OF FACTS

THE FACTS

1. The applicant, Mr Mushegh Saghatelyan, is an Armenian national who was born in 1950 and lives in Yerevan. He is represented before the Court by Mr V. Grigoryan and S. Safaryan, lawyers practising in Yerevan.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The 19 February 2008 presidential election in Armenia and post-election demonstrations

3. On 19 February 2008 a presidential election was held in Armenia. The main contenders were the then Prime Minister, Serzh Sargsyan, and the main opposition candidate, Levon Ter-Petrosyan, who had also served as President of Armenia between 1991 and 1998.

4. The applicant, who had occupied the post of the Head of Penitentiary Department of the Ministry of Interior during Levon Ter-Petrosyan’s presidency, was an active supporter of his candidacy.

5. It appears that immediately after the election, Levon Ter-Petrosyan announced that the election had not been free and fair. From 20 February 2008 onwards, nationwide protest rallies were held by thousands of Levon Ter-Petrosyan’s supporters, the main meeting place for them being the central Freedom Square in Yerevan and the surrounding park (known as Opera Square). It appears that a few hundred of the demonstrators, including the applicant, stayed in that area around the clock, having set up tents. It further appears that these demonstrations were held without notifying the authorities as required by law, but the authorities did not make any attempt to interfere with their conduct. It also appears that on the first day of the protest rallies the applicant gave a speech at one of the demonstrations.

6. On 24 February 2008 the Central Election Commission announced that Prime Minister Sargsyan had won the election with around 52% of all votes cast, while Levon Ter-Petrosyan received around 21% of votes.

2. The events of 1 March 2008 and institution of criminal proceedings

7. On 1 March 2008, apparently at some point between 6 and 7 a.m., police forces arrived on Freedom Square.

8. The applicant alleges that the police, without any prior warning or orders to disperse, unexpectedly attacked the several hundred demonstrators based on the square and started beating them with rubber truncheons and destroying the tents. It appears that clashes took place. The applicant further alleges that he and the other demonstrators had to flee from the square, but were followed by the police.

9. On the same date criminal proceedings no. 62202508 were instituted under Article 225.1 §§ 1 and 2, Article 235 §§ 1 and 2 and Article 316 § 2 of the Criminal Code (CC). This decision stated:

“After the announcement of the preliminary results of the presidential election of 19 February 2008, the presidential candidate, Levon Ter-Petrosyan, members of parliament, [K.S. and S.M.], the chief editor of “Haykakan Zhamanak” daily, [N.P.], and others organised and held mass public events on Yerevan’s Freedom Square in violation of the procedure prescribed by law and made calls inciting to disobey 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 weapons 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 public officials performing their duties, namely the police, inflicted violence on the latter dangerous for their life and health with pre-arranged clubs, metal rods and other adapted tools, causing [them] injuries of various gravity.”

10. It appears that later that day the violence escalated and more clashes took place between the law enforcement authorities and the demonstrators, part of whom had relocated to the area surrounding the French Embassy and the Yerevan Mayor’s Office and were joined by thousands of others. The clashes 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.

11. On 2 March 2008 another set of criminal proceedings was instituted, no. 62202608, under Article 225 § 3 and Article 235 § 2 of the CC. This decision stated:

“The self-nominated presidential candidate at the presidential election of 19 February 2008, Levon Ter-Petrosyan, and his followers and supporters, members of parliament [K.S. and S.M.], the chief editor of “Haykakan Zhamanak” daily, [N.P.], 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 riots which involved murders, violence, pogroms, arson, destruction of property and armed resistance to public officials, effected with the use of firearms, explosives and other adapted objects.”

12. It appears that on the same date a number of police officers, including police officer A.Arsh. who had sustained injuries as a result of the police operation on the morning of 1 March 2008, were recognised as victims for the purpose of criminal proceedings no. 62202508. It further appears that police officer A.Arsh. was subjected to a medical examination and light injuries to his head were recorded.

13. By a letter of 10 March 2008 the Chief of Special Investigative Service requested detailed information from the Deputy Chief of the Armenian Police concerning the police operation of 1 March 2008.

14. By a letter of 27 March 2008 the Deputy Chief of the Armenian Police replied to the above request. According to his reply, the organisers and the participants of the unauthorised rallies that were held between 20 and 29 February 2008 had been on numerous occasions informed about the unlawful nature of those events. The police operation of 1 March 2008 was based on the reconnaissance information received on the previous day by the police and the national security service, according to which a large quantity of metal rods, wooden clubs, firearms and explosives was to be distributed to the demonstrators in order to instigate mass riots. The aim of the operation was to verify that information and to inspect the location. A number of unarmed police officers entered Opera Square where they were attacked by 800-900 demonstrators armed with metal rods and wooden clubs, who were expecting the arrival of the police. The police officers were beaten and stones, pointed metal objects and Molotov cocktails were thrown at them. An on-the-spot decision was taken to engage the special forces, which had been previously deployed on the approaches to the square to prevent a possible deterioration of the situation and were equipped with helmets, shields and rubber truncheons. The operation was carried out between 7 and 7.30 a.m. and was followed by a search. As a result numerous specially adapted metal objects, weapons, ammunition and Molotov cocktails were found. Dozens of the most active and aggressive participants of the mass riots were taken into police custody.

3. The criminal proceedings against the applicant

(a) The applicant’s arrest and his alleged ill-treatment

15. According to the record of bringing a person to police (արձանագրություն բերման ենթարկելու մասին), on 1 March 2008 at around 6.30 a.m. the applicant was brought from 1 Grigor Lusavorich Street by three police officers, E.R., H.S. and A.A., to the Central Police Department. The record stated that the applicant had been brought to the police station for organising unauthorised demonstrations at Freedom Square in support of Levon Ter-Petrosyan, resisting police officers and failing to follow their lawful orders. The applicant refused to sign this record.

16. The applicant alleges that in reality he was arrested by about 10-15 persons who did not introduce themselves as police officers and were masked. These persons had been following him all the way from Freedom Square. When he reached Arshakunyats Street, he managed to catch a taxi, but the taxi was blocked after about 1-2 km by a police car near the Press House situated at 1 Grigor Lusavorich Street. The above persons forced him and a few others who were with him in the taxi, and were apparently also fleeing, out of the taxi and started kicking, punching and hitting him and the others with rubber truncheons. He then lost consciousness and was taken to the Central Police Department.

17. The applicant further alleges that upon his arrival at the Central Police Department the arresting and a number of other police officers started to beat and humiliate him again. Different parts of his body were hit, including his head and legs, as a result of which he fell on the floor bleeding and was unable to get up. He was then again hit on the head, which resulted in concussion and loss of consciousness. Twice an ambulance was called to provide medical assistance. According to the applicant, the violence was being inflicted upon the instructions of the chief police officers.

18. It appears that police officers E.R., H.S. and A.A. reported to their superiors about the fact that the applicant had been brought to the police station.

19. An undated letter from the Chief of the Central Police Department stated:

“As a result of mass events organised and held on Yerevan’s Freedom Square in violation of the procedure prescribed by law, on 1 March 2008 at around 7 a.m. the officers of the Armenian police, having received an order, demanded the persons gathered at the square to clear the square and to terminate the mass event that they had been holding for days[. H]owever, they did not obey the lawful orders of the police officers, by inflicting violence dangerous for health and life of public officials subjected [them] to mass beatings and did not obey their lawful orders, for which the activists of the above-mentioned rally were brought to the Central Police Department of Yerevan, among them: [A.M., the applicant, D.A., M.A., V.H. and H.B.].

A clasp knife was discovered in [the applicant’s] possession during his personal inspection carried out at the police station...”

20. The applicant alleges that no such item was ever found in his possession.

21. According to a record of questioning, from 7.20 to 7.40 p.m. the applicant was questioned as a witness. He stated that he had been informed in connection with which criminal case he had been invited to testify as a witness and that it had been explained to him that as a witness he was obliged to testify or risk criminal responsibility. He, nevertheless, did not wish to testify as he had not committed any offence. This record was signed by the applicant.

22. The applicant alleges that he was kept in a cell at the Central Police Department until around 10 p.m. Then an investigator came to question him but, since he was unable to give testimony, the investigator left.

23. At 10.30 p.m. the investigator drew up a record of an arrest (արձանագրություն անձի ձերբակալման մասին) which stated that the applicant was arrested at that hour on suspicion of having committed offences prescribed by Articles 225.1 § 2 and 316 § 2 of the CC.

24. On 2 March 2008, in the morning, the applicant was transferred to a police temporary detention facility. According to a letter of the administration of the detention facility, the applicant was subjected to a medical examination at the time of admission. An open wound on the left part of his head was recorded, while his left eye was found to be bluish-red. The applicant complained of pain in his legs.

25. The applicant alleges that this medical examination was not carried out properly and only the obvious injuries were recorded for purely formal reasons.

26. On the same date the applicant was questioned as a suspect within the scope of criminal case no. 62202508. He submitted that he had not committed any offence and was participating in a peaceful demonstration on Freedom Square when at around 6.30 a.m. thousands of police officers started beating the demonstrators with rubber truncheons without prior warning or orders to disperse. He and the others fled but the police officers followed them and he was eventually arrested. He was severely beaten both during his apprehension and at the police station by the arresting police officers. The applicant was further asked questions about his participation in the demonstrations held after 19 February 2008. He admitted his participation but denied that the demonstrators had any weapons.

27. Later that day the investigator decided to order a medical examination of the applicant. This decision stated that during the events of 1 March 2008 a number of people had been injured, including the applicant. It was therefore necessary to clarify the location, nature, sequence of infliction, age and gravity of any injuries on the applicant’s body and the method of their infliction.

28. On 3 March 2008 the applicant filed a motion seeking to be released from arrest, claiming that he had been arrested in the absence of a reasonable suspicion.

29. On 5 March 2008 the applicant was transferred to Vardashen pre-trial detention facility. At the time of admission a record of physical injuries was drawn up, signed by the applicant, which indicated the following injuries on his body:

“... a bruise on the lower part of the left eye socket, scratch wounds on the shins, a bruise measuring 10 x 12 cm on the external surface of the left shoulder-blade and a scabbed wound measuring 2 x 3 cm on the rear part of the left temple. The indicated injuries, according to [the applicant], are four days old.”

30. The applicant alleges that this medical examination was also not carried out properly and not all the injuries were recorded.

31. It appears that on 10 March 2008 a medical expert examined the applicant at the detention facility as requested by the investigator’s decision of 2 March 2008. The applicant submitted to the expert that on 1 March 2008 at around 7-7.30 p.m., when he was about to leave by taxi, a police car blocked the way and he was taken out of the taxi by police officers who proceeded to beat him, hitting him with rubber truncheons and kicking him. He further submitted that upon arrival at the police station the arresting police officers continued to beat him and an ambulance was called to provide medical assistance.

32. On 3 April 2008 the expert opinion was prepared which contained the following findings and conclusions:

“A wound measuring 0.9 x 0.2 cm, covered with a grey crust and mobile when touched, is detected on the left part of the back of the head; the surrounding skin, in the area measuring 2.3 x 1.7 cm, has changed colour to pale pink. There is a bruise on the left side of the outer part of the upper and lower eye-lids and the cheek area of a non-dense nature and pale yellow greenish colour. Both parts of the chest are symmetrical and are equally involved in the respiration process. There is a bruise measuring 6.3 x 2.8 cm of unclear contour, non-dense nature and pale greenish-yellow colour on the right part of the chest on the same line as the rear armpit and at the level of the third and fourth ribs, which has also partly spread on the rear area of the shoulder line. It is not painful when palpated. There is a bruise measuring 1.8 x 1.5 cm on the front surface of the upper third part of the right leg of a pale greenish-blue colour. There are small scratches covered with grey scabs on the inner surface of the joint between the leg and the foot, which are raised compared to the surrounding unharmed skin.

Conclusions. The injuries sustained by [the applicant, as described above,] were caused by blunt objects, possibly within the period as indicated in the circumstances of the case, which both jointly and separately do not qualify as mild bodily injuries. Since the injuries were inflicted within a short period, it is impossible to determine the sequence of [their] infliction.”

33. The applicant alleges that the expert was not impartial and independent and the injuries recorded did not fully reflect his real state of health.

34. On 2 May 2008 the applicant’s lawyer wrote to the Chief of the Central Police Department inquiring about the circumstances in which the above injuries had been inflicted on the applicant, whether they had been inflicted at the police station or prior to his arrival there and, if it was the latter, whether any record was made in the police registers. It appears that no reply was received to this inquiry.

35. On 3 June 2008 the applicant applied to the General Prosecutor requesting, with reference to Articles 175-177 and 184 of the Code of Criminal Procedure (CCP), that criminal proceedings be instituted and an investigation be carried out into the fact of his ill-treatment. He submitted that the circumstances of his arrest contained an element of an offence since he had been beaten and tortured and his injuries were recorded in various documents. No assessment, however, had been given to this circumstance in the context of the criminal case against him.

36. It appears that no reply was given or decision taken on this complaint.

(b) The investigation

(i) The initial charges and the applicant’s detention

37. On 3 March 2008 the applicant was formally charged under Articles 225.1 § 2, 301, 316 § 2 and 318 § 1 of the CC within the scope of criminal case no. 62202608 of having organised and conducted from 20 February 2008 onwards, together with Levon Ter-Petrosyan and others, unlawful public events, demonstrations, 24-hour long rallies, pickets and sit‑ins which disturbed the normal life, traffic and functioning of public and private institutions and involved calls inciting a violent overthrow of the government and public insults at public officials. Thereafter, on 1 March 2008 at around 6 a.m., when police officers demanded the demonstrators gathered at Freedom Square to allow them to check the veracity of the information that the demonstrators had arms and ammunition and once again warned them to end the unlawful event, he and other demonstrators, disobeying their lawful orders, inflicted violence on the police officers dangerous for their life and health.

38. On 4 March 2008 the applicant complained to the Chief of the Special Investigative Service that, inter alia, his 72-hour arrest permitted by law had already expired in violation of Article 5 § 1 (c) of the Convention and that he was still unaware on what evidence the charge against him was based.

39. On the same date at 7 p.m. the applicant was brought before the Kentron and Nork-Marash District Court of Yerevan which examined the investigator’s motion seeking to have him detained for a period of two months. The motion – a one page document – was composed of the circumstances of the case as contained in the charge against the applicant and a brief motivation in support of the investigator’s request.

40. The applicant submitted before the court that he had been brutally beaten and humiliated in the street and had received numerous injuries. He further submitted that no police officer had ever approached him, told him that they were looking for weapons or that the demonstration was unlawful and demanded that they disperse. The applicant also claimed that he was not a member of any political party and had not organised any demonstrations, and the charge against him was politically motivated. He lastly complained that the investigator’s motion had not been presented to him in order for him to prepare his defence and asked that he be given two hours for that purpose.

41. A thirty minute recess was announced to allow the applicant and his lawyer to familiarise themselves with the motion and to prepare for the hearing. Following the recess, the applicant submitted that the charges against him lacked corpus delicti. As regards the charge under Article 316 of the CC, a group of 20-25 persons, without presenting themselves as police officers and looking like an ordinary group, unexpectedly attacked and beat him in the street and by doing so created an appearance of resistance. Moreover, no actual police officer to whom he had put up the alleged resistance was identified. Furthermore, his rights guaranteed by, inter alia, Article 10 of the Convention had been violated because he was prosecuted for simply being present at the demonstrations. As regards the charge under Article 301 of the CC, this was not based on any evidence and what precise calls inciting a violent overthrow of the government he had allegedly made was not even mentioned.

42. The District Court decided to grant the investigator’s motion. It first recapitulated the circumstances as presented in the charge against the applicant and concluded that the motion was substantiated, taking into account the nature and dangerousness of the imputed act and the fact that, if he remained at large, the applicant could abscond, obstruct the proceedings, continue his criminal activities and avoid criminal responsibility and serving the penalty.

43. On 10 March 2008 the applicant lodged an appeal. In his appeal he argued, inter alia, that the charge against him was unsubstantiated, lacked certainty and clarity, and was not based on sufficient evidence or any witness testimonies. In violation of the guarantees of Article 5 § 1 (c) of the Convention, an artificial ground was created to justify his detention, that is resistance to a public official, which had never happened. Furthermore, there were not sufficient grounds justifying his detention: he was known to be of good character, had a permanent place of residence, did not seek to evade the investigation or refuse to appear before the investigating authority. No real evidence of any attempt to obstruct the proceedings was presented. Nor could he, if he remained at large, engage in similar activities given the state of emergency declared in the country.

44. On 21 March 2008 the Criminal Court of Appeal dismissed the appeal, finding that the applicant’s detention was based on a reasonable suspicion and found the grounds invoked by the District Court in justification of detention as sufficient.

45. It appears that on 28 March 2008 confrontations were held between the applicant and arresting police officers E.R., H.S. and A.A., as well as another police officer, A.P., who was apparently at the Central Police Department when the applicant was taken there on 1 March 2008.

46. On 7 May 2008 the Court of Cassation declared inadmissible the applicant’s appeal against the Court of Appeal’s decision of 21 March 2008.

47. On 25 April 2008 the Kentron and Nork-Marash District Court of Yerevan prolonged the applicant’s detention by two months, finding that it was still necessary to carry out a number of investigative measures and that, if he remained at large, the applicant could abscond, obstruct the proceedings, commit another offence and avoid criminal responsibility and serving the penalty. The applicant’s request to be released on bail was dismissed.

48. On an unspecified date the applicant lodged an appeal against this decision which was apparently dismissed by the Criminal Court of Appeal.

49. On 18 June 2008 seven members of parliament filed a request with the General Prosecutor, seeking to have the applicant’s detention replaced with their personal guarantee. They claimed at the outset that the detention of several hundred persons, including the applicant, following the presidential election was a disproportionate measure and was not based on reasonable suspicions. They further submitted that they personally knew the applicant and guaranteed that, if he remained at large, he would not abscond, obstruct the proceedings, commit another offence or evade his penalty, if any.

50. On 26 June 2008 the Kentron and Nork-Marash District Court of Yerevan prolonged the applicant’s detention by two more months, finding that it was still necessary to carry out a number of investigative measures and that, if he remained at large, the applicant could abscond, obstruct the proceedings by exerting unlawful pressure on the participants in the proceedings and concealing or destroying important materials, and commit another offence.

51. On 28 June 2008 the applicant lodged an appeal arguing, inter alia, that his continued detention was not based on a reasonable suspicion and that the courts gave standardised reasons when prolonging his detention. He claimed that the investigation and his detention were being prolonged in order to find justification for the unsubstantiated charge against him.

52. On 15 July 2008 the Criminal Court of Appeal dismissed the applicant’s appeal.

(ii) The applicant’s complaint against the police actions of 1 March 2008

53. On 12 June 2008 the applicant lodged a complaint with the Kentron and Nork-Marash District Court of Yerevan under Article 290 of the CCP. He sought to have the police order which served as the basis for the police intervention of 1 March 2008 and the intervention itself declared unlawful and unfounded. He submitted that he had participated in the demonstrations held from 20 February 2008 onwards. The demonstrations had been held in compliance with the Constitution and Article 11 of the Convention and involved no criminal behaviour. In the morning of 1 March 2008 armed police forces suddenly invaded Freedom Square and started beating the peaceful demonstrators. The police attack was unjustified and failed to meet the requirements of paragraph 2 of Article 11 of the Convention. The true purpose of the police actions, which was justified as an attempt to restore public order, was to launch political persecution of supporters of Levon Ter‑Petrosyan, including himself, by provoking the demonstrators to engage in clashes, creating artificial charges and punishing them for exercising their right to freedom of assembly. Thus, the exercise of his right to freedom of expression and freedom of assembly had been criminalised and he was facing unfounded charges as a result of unlawful police actions. The applicant requested that the decision to institute criminal proceedings and to bring charges against him be quashed and the proceedings be terminated.

54. On 8 July 2008 the Kentron and Nor-Marash District Court of Yerevan decided to dismiss the complaint, finding that the order of the chief of police was not a decision or action prescribed by the CCP and therefore could not be contested under Article 290. As regards the applicant’s request to quash the decisions in question and to terminate the proceedings, the District Court found that such requests could be lodged with a court only after having applied to a prosecutor, which the applicant had failed to do.

55. On 21 July 2008 the applicant lodged an appeal. In his appeal, he argued, inter alia, that the District Court had incorrectly interpreted Article 290 of the CCP. It had failed to make any assessment of the police actions and its conclusion that the order of the chief of police did not fall within the scope of criminal procedure law had not been based on the circumstances of the case. The police actions had been unlawful and disproportionate and the force used against peaceful demonstrators had been excessive, while the decision to institute criminal proceedings was artificial by its nature. Thus, such actions and the decision that followed should have been found incompatible with the requirements of the CCP.

56. On 9 August 2008 the Criminal Court of Appeal decided to uphold the decision of the District Court and to dismiss the applicant’s appeal. The Court of Appeal found, relying on Articles 278 and 290 of the CCP, that the contested police order and decision to institute criminal proceedings, as well as ordering the investigating authority to terminate the criminal proceedings, were beyond the scope of judicial control over pre-trial proceedings. Furthermore, such judicial control applied only to the period following institution of criminal proceedings.

57. On 3 November 2008 the applicant lodged an appeal on points of law.

58. On 21 November 2008 the Court of Cassation left the appeal unexamined on the grounds that it had been lodged out of time and that no proof was attached to the appeal certifying that its copy had been served on the opponent party.

(iii) The modified charges

59. It appears that on 28 and 30 July 2008 photo identifications of the applicant were carried out by police officer A.Arsh. and another police officer, A.Aru., who had apparently also participated in the police operation on the morning of 1 March 2008 and witnessed the incident involving police officer A.Arsh. It further appears that both police officers identified the applicant as the person who had assaulted A.Arsh. It also appears that, according to police officer A.Aru.’s version of events, the applicant also physically resisted him when he later unsuccessfully attempted to arrest the applicant on Arshakunyats street. Police officer A.Aru. was also recognised as a victim.

60. On 5 August 2008 the investigator decided to drop the charges under Articles 225.1 § 2, 301 and 318 § 1 of the CC and to supplement the charge under Article 316 § 2 of the CC with new charges under Articles 235 § 4 and 316 § 1 of the CC.

61. According to that decision, during the clash between the demonstrators and the police which took place on 1 March 2008 at around 7 a.m., the applicant refused to follow the lawful orders of the police officers, attacked police officer A.Arsh., twice hit him on his head with a stick and disappeared into the crowd. Police officer A.Aru. saw the offence committed by the applicant but failed to arrest him. Thereafter police officer A.Aru. continued to perform his duties in the area of Arshakunyats Street, where he noticed the applicant. He tried to take the applicant to a police station but the latter resisted, pushed, pulled and kicked him and tried to escape in a taxi. Police officers E.R., H.S. and A.A. who were also in that area saw all this and took the applicant to the Central Police Department, during which a weapon, namely a knife, was found in his possession. The applicant’s actions were qualified under Articles 235 § 4 and 316 §§ 1 and 2 of the CC and he was formally charged under those Articles.

62. As regards the charge under Article 225.1 § 2 of the CC, the investigator found that it had to be dropped since it had been established that on 1 March 2008 at around 7 a.m. on Freedom Square the police officers did not order the demonstrators to disperse but to allow them to inspect the area. Thus, the applicant’s actions did not contain features of a crime prescribed by that Article.

63. As regards the charge under Article 301 of the CC, it had to be dropped on grounds of insufficient evidence since the applicant’s involvement in an attempt to seize State power could not be established.

64. As regards the charge under Article 318 § 1 of the CC, it had to be dropped since that Article had been repealed in the meantime.

65. On 6 August 2008 the applicant’s case was disjoined from criminal case no. 62202608 into a separate set of proceedings, no. 62215008.

66. On 13 August 2008 the bill of indictment was prepared under Articles 235 § 4 and 316 §§ 1 and 2 of the CC. In support of the charges against the applicant, the prosecution relied on the statements of police officers A.Arsh. and A.Aru., arresting police officers E.R., H.S. and A.A., police officer A.P., and the driver of the police car, M.G. Two expert opinions were also invoked, one stating that the knife found in the applicant’s possession was a weapon and the other confirming that the injuries sustained by police officer A.Arsh. caused light damage to his health. It was further stated that the charge was also substantiated by the fact that various weapons and ammunition had been found on Freedom Square. It was lastly stated in the indictment that, during the clash between the police officers and the persons inflicting violence on them, the applicant also sustained injuries which did not even qualify as light injuries. The investigation in that respect was still pending.

(c) The proceedings at first instance

67. On 13 August 2008 the applicant’s case was transmitted to the Yerevan Criminal Court for examination on the merits.

68. In the proceedings before the Criminal Court, police officer A.Arsh. submitted that on 1 March 2008 when the police asked the demonstrators gathered at Freedom Square to allow them to carry out an inspection for weapons, the demonstrators reacted violently. They tried to calm them down but the applicant attacked him and hit him twice on the head with a stick, after which he fled.

69. Police officer A.Aru. submitted that he had noticed how one of the demonstrators, namely the applicant, attacked police officer A.Arsh. and hit him on the head with a stick. He thereafter continued to perform his duty in the area of Arshakunyats street, where he noticed the applicant. He asked the applicant to go with him to a police station, but the applicant hit him several times on his chest, kicked his shield and fled.

70. Police officer H.S. submitted that the applicant had inflicted violence on police officers on Arshakunyats street, by hitting and pulling them. He and police officers E.R. and A.A. took the applicant to a police station in a patrol car and a knife, mobile phones and a bunch of keys fell from his pockets.

71. Police officer E.R. submitted that, when performing his duty on Arshakunyats street, he noticed one individual who was punching and kicking police officers. That person tried to flee but he and police officers H.S. and A.A. took him to a police station where he was identified as the applicant. A knife, a mobile phone and a bunch of keys were found in his possession. Police officer A.A. made similar submissions but stated that two mobile phones fell from the applicant’s pockets.

72. Police officer A.P. submitted that on 1 March 2008 he was at the Central Police Department when the applicant was brought there and a clasp knife found in his possession was presented. Relevant documents were drawn up, and the applicant did not deny that the knife belonged to him. The applicant was taken to the police station on suspicion of inflicting violence on police officers.

73. Police driver M.G. submitted that a knife was discovered in the applicant’s possession when he was being taken to the police station.

74. The applicant denied his guilt and submitted that, even if he had participated in the demonstrations held from 20 February 2008, he had not done anything illegal. He and his co-thinkers who were at Freedom Square on 1 March 2008 found out about the upcoming arrival of the police several hours in advance. After the police had arrived, he had not hit anyone and had tried to escape. Having reached Arshakunyats street, he was brutally beaten by police officers and transported to the Central Police Department where he was also beaten. He never carried a knife and no knife was ever found in his possession.

75. It appears that, in the proceedings before the Criminal Court, the applicant filed several motions requesting that a number of persons, A.M., N.T., D.A., M.A., V.H., H.B., S.A., H.T. and S.M., be called and examined as witnesses. He argued that the testimony of A.M., D.A., M.A., V.H. and H.B., who were also active demonstrators, would support his allegation that the actions of the police were unlawful from the very start, that on 1 March 2008 at around 6 a.m. he and the others had been attacked by the police and other forces without prior warning, that at 7 a.m. he was already at the police station and that he continued to be ill-treated there. He further argued that the testimony of N.T. and S.M., who were next to him at Freedom Square when the demonstrators were attacked by the police, would support his allegation that as early as at 6.45 a.m. there was nobody at Freedom Square apart from the police and that the imputed offence could not have happened in such circumstances.

76. It appears that the Yerevan Criminal Court dismissed the applicant’s motions.

77. On 23 October 2008 the Yerevan Criminal Court found the applicant guilty under Article 235 § 4 and Article 316 §§ 1 and 2 of the CC. The court sentenced him under Article 235 § 4 to a fine in the amount of 400,000 Armenian drams (AMD), under Article 316 § 1 to a fine in the amount of AMD 500,000 and under Article 316 § 2 to five years’ imprisonment. In doing so, the Criminal Court found it to be established that:

“In the period preceding 1 March 2008 reconnaissance information was received by the Armenian Police and National Security Service that the demonstrators gathered at Yerevan’s Freedom Square had in their possession firearms, ammunition, clubs, rods and other articles for the purpose of causing physical injuries and violence. On 1 March 2008 at around 7 a.m. the police officers demanded the persons gathered at Yerevan’s Freedom Square to allow them to verify the above information by inspecting the area. The mentioned lawful demand of the police was announced out loud several times. Some of the people gathered at Freedom Square, including [the applicant], had already been informed several hours before about the planned police operation. The police officers of the State Defence Service brigade of the police, with the aim of preserving public order in that area, approached Freedom Square where [the applicant], in front of the statue of Hovhannes Tumanyan, hit the victim, [police officer A.Arsh.], twice on the head with a stick, causing damage to his health of light gravity resulting in brief deterioration of health, after which he disappeared in the crowd. [Police officer A.Aru., the second victim,] noticed the act committed by [the applicant]. [The latter] continued his duty in the area adjacent to Tigratn Mets publishing house situated on Arshakunyats Street, where he once again noticed [the applicant] and tried to bring him to the police station. [The applicant], disobeying [police officer A.Aru.’s] lawful order to appear at the police station, inflicted on [him] violence not dangerous to health by pushing, pulling and kicking [him], and tried to escape in a random taxi. [Police officers A.A., E.R. and H.S.], who were performing their duties at that time in the same area, noticed the incident and brought [the applicant] to the Central Police Department, during which a cold weapon – a knife – fell from [the applicant’s] pocket, as well as two mobile phones and a bunch of keys.

On 1 March 2008 at 9 p.m. [the applicant] was arrested and on 4 March 2008 he was detained.”

78. In reaching the above findings, the Yerevan Criminal Court relied on the following evidence: (a) the above statements of police officers A.Arsh., A.Aru., H.S., E.R., A.A., A.P. and police driver M.G., as well as the statements of police officers E.R. and A.P. made during the confrontations with the applicant; (b) an expert opinion, according to which the knife in question was a cold weapon, and a record of inspection of the knife, which contained its detailed description; (c) a medical expert opinion concerning the injuries sustained by police officer A.Arsh.; (d) the records of the applicant’s photo identifications by police officers A.Arsh. and A.Aru.; (e) a letter of the Deputy Chief of Police, according to which on 1 March 2008 police officers of the State Defence Service brigade were on duty at Freedom Square; and (f) expert opinions and records confirming that various weapons and ammunition were found on Freedom Square.

79. The Yerevan Criminal Court found the applicant’s submissions to be unreliable and an attempt to avoid criminal responsibility.

(d) The proceedings before the appeal and cassation courts

80. On 10 November 2008 the applicant lodged an appeal. In his appeal he raised numerous arguments, including that the charge against him was trumped up and politically motivated, that he had been ill-treated both at the time of his apprehension and at the police station and that no investigation had been carried out into his allegations of ill-treatment, that the interference with his freedom of peaceful assembly had been unlawful, unjustified and accompanied with use of excessive force by the police, that the only witnesses in the case were police officers who were not impartial and trustworthy witnesses and had moreover made contradictory and conflicting statements which constituted the sole basis for his conviction, that the principle of equality of arms had been violated since his request to call and examine witnesses on his behalf had been groundlessly dismissed, and that on 1 March 2008 he was questioned as a witness without a lawyer.

81. On 10 December 2008 the Criminal Court of Appeal examined the applicant’s appeal in an expedited procedure and decided on the same day to dismiss the appeal, relying on the same evidence. In doing so, the Court of Appeal found, inter alia, that the fact that the victims and witnesses in the case were police officers did not diminish the probative value of their statements and it was unacceptable to view this as a predetermining and prejudicial circumstance. Furthermore, the criminal case was also based on a number of records of inspection of the crime scene, expert opinions and records of photo identification.

82. As regards the applicant’s allegations of ill-treatment, the Court of Appeal stated that it was still necessary to carry out a comprehensive investigation into the circumstances under which injuries were sustained by persons, including the applicant, who had participated in the mass riots of 1‑2 March 2008 which involved widespread clashes, violence, arson, destruction and looting of property, armed resistance to police, use of weapons and explosives and murders. Since the investigation in the applicant’s case had been completed, his case was disjoined from criminal case no. 62202608, while the latter was still pending.

83. On 27 January 2009 the applicant lodged an appeal on points of law, raising similar arguments to his appeal of 10 November 2008 and invoking, inter alia, Articles 3, 5, 6, 10 and 11 of the Convention.

84. On 10 March 2009 the Court of Cassation declared the applicant’s appeal inadmissible.

85. It appears that at the end of November 2010 the applicant was released from prison after having served more than half of his sentence.

B. Relevant domestic law

1. The Criminal Code (in force from 1 August 2003)

86. Article 225.1 § 2 prescribes that making calls inciting to disobey a decision ordering an end to a public event held in violation of the procedure prescribed by law shall be punishable by a fine of between 300 and 500 times the minimum wage or detention of up to three months.

87. Article 235 § 4 prescribes that illegal carrying of a gas, cold or missile weapon shall be punishable by a fine of between 200 and 600 times the minimum wage or detention of between one and three months or imprisonment for a period not exceeding two years.

88. Article 301 prescribes that making public calls inciting a violent overthrow of the government and a violent change of the constitutional order of Armenia shall be punishable by a fine of between 300 and 500 times the minimum wage or by detention of between two and three months or by imprisonment for a period not exceeding three years.

89. Article 316 § 1 prescribes that inflicting violence or threatening to inflict violence, not dangerous for life or health, on a public official or his next-of-kin, connected with the performance of his official duties, shall be 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. Article 316 § 2 prescribes that inflicting violence, dangerous for life or health, on persons mentioned in the first paragraph of this Article, connected with the performance of their duties, shall be punishable by imprisonment for a period from five to ten years.

90. Article 318 § 1 prescribes that publicly insulting a public official, in connection with performance of his duties, shall be punishable by a fine of between 100 and 500 times the minimum wage or detention of up to one month.

2. The Code of Criminal Procedure (in force from 12 January 1999)

(a) Ill-treatment and investigation

91. Article 175 obliges the prosecutor, the investigator or the body of inquiry, within the scope of their jurisdiction, to institute criminal proceedings if there are grounds envisaged by this Code.

92. According to Article 176, the grounds for instituting criminal proceedings include, inter alia, information about crimes received from individuals and discovery of information about a crime or traces and consequences of a crime by the body of inquiry, the investigator, the prosecutor, the court or the judge while performing their functions.

93. According to Article 177, information about crimes received from individuals can be provided orally or in writing. An oral statement about a crime made during an investigative measure or court proceedings shall be entered into the record of the investigative measure or of the court hearing.

94. According to Article 180, information about crimes must be examined and decided upon immediately, or in cases where it is necessary to check whether there are lawful and sufficient grounds to institute proceedings, within ten days following the receipt of such information. Within this period, additional documents, explanations or other materials may be requested, the scene of the incident inspected, persons arrested and searched if there is a sufficient suspicion of them having committed an offence, and examinations ordered.

95. According to Article 181, one of the following decisions must be taken in each case when information about a crime is received: (1) to institute criminal proceedings, (2) to reject the institution of criminal proceedings, or (3) to hand over the information to the authority competent to deal with it.

96. According to Article 184 § 1, the body of inquiry, the investigator or the prosecutor, based on the materials of a criminal case dealt by them, shall adopt a decision to institute a new and separate set of criminal proceedings, while the court shall request the prosecutor to adopt such a decision, if a crime unrelated to the crimes imputed to the accused is disclosed, which has been committed by a third person without the involvement of the accused.

(b) Arrest and detention

97. According to Article 128 §§ 1 and 3, an arrest is the act of taking a person into custody for the purpose of preventing him from committing an offence or from fleeing after having committed an offence, bringing him before the investigating authority or the authority dealing with the case, drawing up a relevant record and informing him about it, with the aim of keeping that person in short-term custody in places and conditions defined by the law. A person may be arrested (1) on immediate suspicion of having committed an offence; or (2) on the basis of an arrest warrant issued by the investigating authority.

98. According to Article 129 § 2, a person suspected of having committed an offence may be arrested if (a) he was caught while committing a criminal act or immediately thereafter; (b) an eye witness directly pointed out that person as the perpetrator of a criminal act; (c) obvious traces linking that person to a criminal act have been discovered on him, his clothes or other objects used by him, or in his home or vehicle; or (d) there are other grounds to suspect a person who has made an attempt to flee from the crime scene or the authority dealing with the criminal case or who has no permanent residence or resides elsewhere or whose identity is unclear. The period of arrest of a person suspected of having committed an offence may not exceed 72 hours from the moment of taking him into custody.

99. According to Article 131.1 §§ 1 and 2, a record of a suspect’s arrest shall be drawn up within three hours after bringing a suspect before the body of inquiry, the investigator or the prosecutor and a copy shall be given to the arrested person. The record shall indicate the time (date, hour and minute) when it was drawn up, the time, place, reason(s) and purpose of the arrest, the article of the CC under which a person is suspected of having committed an offence, the results of his personal search and other circumstances, including the statements and motions of the arrested person.

100. According to Article 132, the arrested person must be released upon the decision of the authority dealing with the case if (1) the suspicion of having committed an offence has not been confirmed; (2) there is no need to keep the person in custody; or (3) the maximum time-limit for an arrest prescribed by this Code has expired and the court has not adopted a decision to detain the accused.

101. According to Article 134 §§ 1, 2 and 3, preventive measures are measures of compulsion imposed on an arrestee or the accused in order to prevent their inappropriate behaviour in the course of the criminal proceedings and to ensure the enforcement of the judgment. Preventive measures include, inter alia, detention, bail and personal guarantees. Detention and bail may be imposed only on the accused.

102. Article 136 § 2 provides that detention and bail may be imposed only by a court decision upon the investigator’s or the prosecutor’s motion or of the court’s own motion during the court examination of the criminal case. The court can replace the detention with bail also upon the motion of the defence.

103. According to Article 138 § 1, the accused’s detention period shall be calculated from the moment of his being actually taken into custody when being arrested or, if he was not arrested, from the moment of enforcement of the court decision imposing detention.

104. Article 145 §§ 1 and 2 provides that a personal guarantee is a written undertaking made by trustworthy persons that they guarantee, with their word and monetary payment (500 times the minimum wage), the accused’s proper behaviour, his appearance upon the summons of the authority dealing with the criminal case and performance of other obligations.

105. Article 278, entitled “scope of judicial control”, provides that a court, in cases and procedure prescribed by this Code, shall examine complaints about the lawfulness of decisions and actions of the body of inquiry, the investigator, the prosecutor and the bodies carrying out operative and reconnaissance measures.

106. Article 290 provides that the suspect and the accused are entitled to lodge complaints with a court against the decisions and actions of the body of inquiry, the investigator, the prosecutor or the bodies carrying out operative and reconnaissance measures, prescribed by this Code. If the complaint is found to be substantiated, the court shall adopt a decision ordering the authority dealing with the case to stop the violation of a person’s rights and freedoms.

3. The Assemblies, Rallies, Marches and Demonstrations Act (in force from 22 May 2004)

107. According to Section 2, public events include peaceful assemblies, rallies, marches (parades) or demonstrations (including sit-ins). Mass public events are those public events which have a hundred or more participants. Non-mass public events are those public events which have less than a hundred participants.

108. According to Section 7 §§ 1 and 4, everyone has the right to participate in public events. Participants of a public event are not allowed to carry, use or apply weapons, ammunition, explosives, poisonous, inflammable or any other objects or substances which may harm the life, health or property of others.

109. According to Section 10 §§ 1, 2 and 4, except cases when a non-mass public event spontaneously turns into a mass public event, mass public events may be held only after notifying the competent authority in writing. Everyone has the right to hold non-mass public events without notifying the competent authority and without violating public order. The organisers shall send written notification of the intention to hold a mass public event to the head of the local authority where the event is to be organised or to the Mayor of Yerevan, if the public event is to be held in Yerevan, not later than five working days and not earlier than twenty days before the planned date of the event.

110. According to Section 12 § 6, as a result of examination of the notification, in the absence of the circumstances prescribed by this Act allowing to ban the planned event, the notification about the mass public event shall be taken into consideration and the event shall be held in the place and at the time indicated in the notification. In the presence of such circumstances, a decision shall be taken banning the mass public event.

111. According to Section 14, the police are entitled to decide to terminate a public event and to order the organisers to terminate the event, by allowing them reasonable time to do so, only if, inter alia, the mass public event is being held without notification, except for the cases in which a non-mass public event spontaneously turns into a mass public event. The organiser, having received the above order, is obliged to announce immediately the termination of the event and to take measures aimed at ending the event within a time-limit prescribed by the police. The police are entitled to terminate forcibly a public event only if (a) the order to terminate an event is not immediately announced to the participants by the organiser; or (b) the order to terminate the public event has not been complied with within the prescribed time-limit and its continuation poses a real threat to the life and health of others, State and public security, public order or public or private property. A representative of the police, before the forcible termination of an event, is obliged to inform the participants at least twice through a loudspeaker about the order to terminate the public event and to prescribe a reasonable time-limit for termination. If the public event is not terminated within such time-limit, the police are entitled to terminate the event forcibly, using lawful means. This procedure shall not be applied if an outbreak of mass riots takes place in the location where the public event is held requiring implementation of urgent measures.

C. Relevant international and domestic documents

1. Resolution 1609 (2008) of the Parliamentary Assembly of the Council of Europe (PACE): Functioning of democratic institutions in Armenia, 17 April 2008

112. The relevant extract from the Resolution provides:

“1. On 19 February 2008, a presidential election took place in Armenia. Although the ad hoc committee which observed this election considered that it was “administered mostly in line with Council of Europe standards”, it found a number of violations and shortcomings, the most important of which were: unequal campaign conditions for the candidates, the lack of transparency of the election administration and a complaints and appeals process that did not give complainants access to an effective legal remedy. In addition, a number of cases of electoral fraud were witnessed.

2. The Parliamentary Assembly regrets that the violations and shortcomings observed did nothing to restore the currently lacking public confidence in the electoral process and raised questions among a part of the Armenian public with regard to the credibility of the outcome of the election. This lack of public confidence was the basis for the peaceful protests – held without prior official notification – that ensued after the announcement of the preliminary results, and which were tolerated by the authorities for ten days.

3. The Assembly deplores the clashes between the police and the protesters and the escalation of violence on 1 March 2008 which resulted in 10 deaths and about 200 people being injured. The exact circumstances that led to the tragic events of 1 March, as well as the manner in which they were handled by the authorities, including the imposition of a state of emergency in Yerevan from 1 to 20 March 2008 and the alleged excessive use of force by the police, are issues of considerable controversy and should be the subject of a credible independent investigation.

4. The Assembly condemns the arrest and continuing detention of scores of persons, including more than 100 opposition supporters and three members of parliament, some of them on seemingly artificial and politically motivated charges. This constitutes a de facto crackdown on the opposition by the authorities. ...

6. While the outbreak of public resentment culminating in the tragic events of 1 March 2008 may have been unexpected, the Assembly believes that the underlying causes of the crisis are deeply rooted in the failure of the key institutions of the state to perform their functions in full compliance with democratic standards and the principles of the rule of law and the protection of human rights. More specifically

...

6.3. despite successful legislative reforms, the courts still lack the necessary independence to inspire the public’s trust as impartial arbiters including in the context of the electoral process; this explains the low number of election-related complaints filed with them. The same lack of judicial independence is also reflected in the fact that the courts do not appear to question the necessity of keeping people in detention pending trial and generally respond favourably to requests by the prosecutors without properly weighing up the grounds for this, as required by Article 5, paragraph 3, of the European Convention on Human Rights...;

6.4. in the absence of adequate judicial control, the arrest and continuing detention of persons on seemingly artificial charges, after contesting the fairness of the presidential election or their participation in the protest afterwards can only point to the political motivation of such acts. This is unacceptable in a Council of Europe member state and cannot be tolerated by the Assembly;

...

12. ... the Assembly considers that, for [an open and constructive dialogue between the political forces in Armenian society] to start and be successful, a number of conditions need to be met as a matter of priority, in order to build confidence vis-à-vis the opposition and provide proof that the ruling majority is seriously committed to pursuing further reforms:

12.1. an independent, transparent and credible inquiry into the events of 1 March and the circumstances that led to them, including the alleged excessive use of force by the police and violence by the protesters, should be carried out immediately. The international community should be ready to monitor and assist such an inquiry;

12.2. the persons detained on seemingly artificial and politically motivated charges or who did not personally commit any violent acts or serious offences in connection with them should be released as a matter of urgency ...”

2. Resolution 1620 (2008) of the PACE: Implementation by Armenia of Assembly Resolution 1609 (2008), 25 June 2008

113. The relevant extracts from the Resolution provide:

“4. As regards compliance by the authorities with the demands set out in its Resolution 1609, the Assembly ... welcomes the recent developments with regard to the release of persons seemingly detained on artificial and politically motivated charges, who did not personally commit any violent acts or serious offences. However, it considers that progress on this issue is not sufficient to ensure that the requirements of the Assembly are fully met. In addition, the Assembly considers that:

- the cases still under investigation should be closed or promptly brought before the courts to ensure the right to a fair trial within a reasonable time in compliance with the case law of the European Court of Human Rights (the Court);

- the cases under Articles 300 and 225 of the Criminal Code should be dropped unless there is strong evidence that the accused have personally committed acts of violence or ordered, abetted or assisted the committing of such acts;

- a verdict based solely on a single police testimony without corroborating evidence is not acceptable;

- the National Assembly should take into account the negative opinion of the Venice Commission on the proposed amendments to Articles 225, 225.1, 301 and 301.1 of the Criminal Code.

...

5. The detention and conviction of opposition supporters in relation to the events of 1 March 2008 is a point of contention that will continue to strain the relations between the opposition and the authorities and could hinder constructive dialogue on the reforms needed for Armenia. The Assembly urges the Armenian authorities to consider all legal means available to them, including amnesty, pardons and dismissal of charges with respect to all persons detained or sentenced by a court in relation to the events of 1 and 2 March 2008, with the exception of those who have personally committed acts of violence or ordered, abetted or assisted the committing of such acts or those who committed other serious criminal offences, as an expression of goodwill in order to foster confidence in Armenian society and dialogue between all political forces.”

3. Resolution 1643 (2009): Implementation by Armenia of Assembly Resolutions 1609 (2008) and 1620 (2008), 27 January 2009

114. The relevant extracts from the Resolution provide:

“4. The Assembly regrets that, until the last moment, only limited progress was made by the Armenian authorities with regard to its earlier demands, as expressed in Resolutions 1609 (2008) and 1620 (2008), concerning the release of persons deprived of their liberty in relation to the events of 1 and 2 March 2008. It notes in particular that, contrary to Assembly demands:

4.1. a significant number of prosecution cases and convictions was based solely on police testimony, without substantial corroborating evidence;

4.2. a very limited number of charges under Articles 225 and 300 of the Criminal Code of Armenia has been dropped.

5. The Assembly notes that doubts have been voiced, including by the Council of Europe Commissioner for Human Rights, regarding the nature of the charges brought under Articles 225 and 300 of the Criminal Code, as well as with regard to the legal proceedings against those convicted in relation to the events of 1 and 2 March 2008. The Assembly therefore considers that, under such conditions, the charges against a significant number of persons, especially those charged under Articles 225, paragraph 3, and 300 of the Criminal Code and those based solely on police evidence, could have been politically motivated. The Assembly is seriously concerned about the implications of this situation if left unaddressed.”

4. Report by the Council of Europe Commissioner for Human Rights on His Special Visit to Armenia, 12-15 March 2008, CommDH(2008)11REV

115. The relevant extracts from the Report provide:

“On 20 February, Mr. Ter Petrosian called on his supporter[s] to begin a peaceful demonstration in the centre of Yerevan. The protest manifestation started on 21 February in ... Opera square ...

On 1 March, the police decided to carry out a search operation among the demonstrators assembled on ... Opera square. The Head of Police explained to the Commissioner that the police had received information that the demonstrators were arming themselves with weapons and ammunition, an allegation that is refuted by the demonstrators themselves. According to the Head of Police, the initial intent was also to move them to another location in the city in order to avoid problems of public transport and sanitation in the city.

The search operation reportedly started early Saturday morning at approximately 6.30, according to several interlocutors. During this operation tents were taken down and people were beaten and injured. Demonstrators started resisting and clashes broke out between the police and security forces and the demonstrators.

According to ... both parties, a tentative agreement seems to have been reached later that same morning to relocate the demonstration and allow it to continue, either in front of the [Myasnikyan] monument or close to the main train station. However, this agreement appears never to have been properly communicated to the demonstrators by their leaders, notably Mr. Ter Petrosian, who at that stage was prevented from leaving his residence.

The demonstrators started to move in the direction of the French and Russian Embassies, apparently thinking that they might be safe to demonstrate there. In the adjacent small streets, heavy clashes broke out and eight people were killed.

According to the information given by the Head of Police and Prosecutor General, ... [a] police officer died trying to prevent a hand grenade from going off. Three civilians died from teargas cartridge and four from bullets. The Prosecutor General stated that the [ammunition] had penetrated the bodies, which appears to indicate that they must have been fired at a very close range.

Clashes between the police and security forces and agitated protesters seem to have occurred on at least three occasions during the course of 1 March. The Commissioner was shown several different pictures and videos from the events. From these it seems clear that excessive ... force was used by police and the security forces. This is also confirmed by the sheer number of injured persons and [passing] civilians, registered in the hospitals as well as found in places of detention, having beating marks, [concussion] and open scars [on] their [skulls]. According to representatives of non-governmental organizations, the official number of injured civilians may be underreported, as several of those injured were turned away from hospitals and medical clinics on 1 March.

According to the Head of Police some protesters were armed with wooden sticks, iron sticks and “hedgehogs”. He also stated that the protesters used fire arms - which was contested by the representatives of the opposition whom the Commissioner met.

It seems clear that some of the demonstrators did commit violent acts against the police and security forces, such as throwing stones, using improvised wooden or iron sticks to [fend] off the police. Some protesters also burnt cars and buses. The majority of the injured police officers and conscripts had scrape wounds from metal pieces on the lower part of their legs. The sources of these wounds were not clear, whether home made bombs, hand grenades or ammunition used for crowd control purposes by the security forces.

There are conflicting and contradictory versions of what in fact happened and how the situation evolved and eventually got out of hand. It is difficult to get a clear picture of the developments over the day.

The lack of trust in the information relayed by the official sources was compounded by the restrictions imposed on the media during the State of Emergency. This has heavily contributed to many rumours, which in turn has added to the already hostile environment and polarization. ...

The Commissioner visited a number of detainees in Nubarashen Prison, the Temporary holding facility of the National Security Service and the Holding Centre of Yerevan City Police Department. They claimed that the police had used excessive of force in connection with arrest. [It] ... seems to the Commissioner that beating took place in a number of cases at the time of arrest and during transportation of ... [those] apprehended to the different precincts. A few of the detainees stated that they had been [subjected] to [abuse] during interrogation. Also national and international monitoring bodies which the Commissioner met reported that ill-treatment by the police had increased. ...

The prosecutors have consistently brought the same charges irrespective of the person’s actual doing and involvement. A few articles in the Criminal Code are regularly invoked: [Article 225 § 3, Article 316 and Article 300]. ...

The Prosecutors have applied standardized language in the charges against ... [those] arrested. The judges seemed not to have entered into a serious test of the charges, the legality of the apprehension and the proportionality of deprivation of liberty vis-à-vis the gravity of the crime. The Courts seem to have routinely granted pre-trial detention (so called preventive judgment) of two months to allow the prosecutor to investigate further and prepare the charges and the criminal case. Members of the Bar association informed the Commissioner that they had decided to “boycott” proceedings before one judge, who just “rubberstamped” all requests by the Prosecutor.”

5. Report to the Armenian Government on the visit to Armenia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 15 to 17 March 2008, CPT/Inf(2010)7

116. The relevant extracts from the Report provide:

On the basis of [a full list of the persons detained in connection with the events of 1 March 2008] provided by the Armenian authorities ..., the delegation carried out individual interviews with most of the persons remanded in custody on charges related to the post-election events, who were being held at Nubarashen, Vardashen and Yerevan-Kentron prisons (some 70 people). It also interviewed several persons detained at the Temporary holding facility of the National Security Service and the Holding Centre of Yerevan City Police Department. ...

Practically all the persons who had been detained by law enforcement officers on 1 March 2008 alleged that they had been physically ill-treated at the time of their apprehension, even though they apparently had not offered resistance. The ill‑treatment alleged consisted in the main of truncheon blows, kicks and punches to the body and head, and being pushed to the ground and dragged into a police vehicle. In some cases, the beating had apparently continued during transportation to police establishments and upon arrival there. According to several of the persons alleging ill‑treatment, some of the law enforcement officials involved were wearing masks and did not have any form of identification on their clothing.

Further, the delegation received a few allegations of physical ill-treatment at the time of questioning by the police. The ill-treatment was described to have consisted essentially of slaps, punches, kicks and truncheon blows, and was apparently inflicted with the purpose of obtaining confessions (in particular, from persons suspected of having committed violence against law enforcement officials during the clashes on 1 March 2008) or information implicating other persons.”

6. Ad-Hoc Public Report of Armenia’s Human Rights Defender (Ombudsman): On the 2008 February 19 Presidential Election and the Post-Electoral Developments

117. The Armenian Ombudsman carried out a comprehensive and in‑depth analysis of the post-election events in Armenia. The relevant extracts from the Report provide:

“3.2.1 The Freedom Square Operation (6.40 a.m. on March 1, 2008)

The March 1 events started with the forcible termination of the peaceful sit-in on Freedom Square. At 6.40 a.m., police officers wearing protective clothing and carrying shields and truncheons attacked the demonstrators that were on Freedom Square. ...

... from February 21 to March 1 ... thousands of citizens spontaneously went to Freedom Square at varying times of the day to protest [against] the way in which the election had been administered and the official results of the election, a matter that touches the interests of all Armenian citizens and their collective right to form the power by the expression of their free will. The OSCE/ODIHR report explicitly states: “From 21 February to early morning on 1 March, protesters maintained a peaceful, though not formally sanctioned, assembly in Freedom Square. They also held numerous peaceful processions. On 21 February 2008, speakers announced that their intention was to reach annulment and repetition of the election. The authorities overall accommodated the protest actions.”

... These demonstrations had been viewed in the context of the electoral process also by the [President Robert Kocharyan], who had said in a press conference: “The unlicensed demonstrations were not terminated by the Police for nine consecutive days only due to one reason: I was prohibiting such termination. The reason was the post-electoral recount and appeals process. I thought that the dispersal of demonstrations would be perceived as the authorities’ attempt to undermine the recount or appeals process.”

... the March 1 interference was justified with the argument that, on February 29, the Police and the National Security Service of the Republic of Armenia had received intelligence information according to which arms were building up in Freedom Square. To render the situation harmless, the Police undertook in the morning of March 1 an operation intended to seize those socially-dangerous materials.

The Campaign Headquarters of Levon Ter-Petrossian and the opposition “Heritage” Party represented in the National Assembly both insist that the objective of the events in the morning of March 1 was, under the disguise of a locality inspection operation, to violently terminate the peaceful demonstrations that had been continuing for 10 days, to remove the citizens participating in the sit-in from there, and to prohibit future demonstrations on Freedom Square.”

7. Human Rights Watch Report: Democracy on Rocky [Ground], Armenia’s Disputed 2008 Presidential Election, Post-Election Violence, and the One-Sided Pursuit of Accountability, February 2009

118. The relevant extracts from the Report provide:

“The [statements] Human Rights Watch took from demonstrators and bystanders suggest that the first police action, in the early morning of March 1 against the Freedom Square tent encampment, entailed excessive use of force, without warning and in the absence, at the start, of resistance. Although later [protesters] began throwing stones at police from side streets near Freedom Square, one participant described being beaten up by police who found him lying on the ground. ...

Early morning removal of [protesters] and protest camp at Freedom Square

On the night of February 29 to March 1, several hundred [protesters] were on Freedom Square, staying in some 25 to 30 tents. Police moved against the [protesters’] camp early on the morning of March 1.

According to first deputy police chief [A.M.], speaking to Human Rights Watch four weeks later, the police had arrived at the square on March 1 to conduct a search, acting on information that demonstrators had been arming themselves with metal rods, and possibly firearms, in preparation for committing acts of violent protest on March 1. [A.M.] said that initially a group of 25-30 police [officers], including experts and investigators, were sent to do the search of the protestors’ camp. When the group tried to conduct the search, the [protesters] turned aggressive and resisted police with wooden sticks and iron bars, resulting in injuries to several policemen. At that stage more police had to be deployed and had to use force to disperse the crowd and support the group conducting the search. According to [A.M.], this operation lasted for about 30 minutes and 10 policemen sustained injuries as a result. Despite Human Rights Watch’s request, [A.M.] did not provide any details about these injured police and the nature of the injuries sustained.

Several witnesses interviewed separately by Human Rights Watch consistently described a different sequence of events in front of the Opera House on the morning of March 1. According to them, some time shortly after 6 a.m., while it was still dark and as demonstrators started waking, news spread that police were arriving at Freedom Square. Hundreds of Special Forces police in riot [armour], with helmets, plastic shields, and rubber truncheons, started approaching the square, in four or five rows, from Tumanyan Street and Mashtots Avenue. Police surrounded the square and stood there for a few minutes.

Levon Ter-Petrossian, who had been sleeping in his car parked at the square, was woken up. According to the account he gave Human Rights Watch, he addressed the [protesters], some of whom by this time were out of their tents, asking them to step back from the police line, and then to stay where they were and wait for instructions from the police. He also warned the police that there were women and children among the demonstrators.

Even before Ter-Petrossian finished his address, police advanced towards the demonstrators in several lines, beating their truncheons against their plastic shields. According to multiple witnesses, the police made no audible demand for anyone to disperse nor gave any indication of the purpose of their presence. They started pushing demonstrators from the square with their shields, causing some to panic and scream and others to run. Some demonstrators appeared ready to fight the police, which was why, according to Ter-Petrossian, he urged the crowd not to resist the police. Others were still in their tents.

Immediately afterwards, without any warning, riot police attacked the demonstrators, using rubber truncheons, iron sticks, and electric shock batons. ... As a result of the early morning police actions on Freedom Square, 31 people were officially reported to be injured, including six policemen.

The police claimed that after the demonstrators were dispersed they found a stock of real and makeshift weapons, including “three guns, 15 grenades, two bullet cases and 138 bullets of various calibres, plastic explosives, [a] big number of makeshift weapons, syringes and drugs.” All witnesses and victims interviewed by Human Rights Watch claimed that the alleged arms cache was planted after the demonstration was dispersed. The chairman of the ad hoc parliamentary commission established to investigate the March 1 events told Human Rights Watch in January 2009 that he had not seen any evidence linking the arms cache to the demonstration’s participants or organizers.”

COMPLAINTS

119. The applicant complains under Article 3 of the Convention that he was ill-treated and humiliated at the time of his apprehension and at the police station on 1 March 2008. He further complains under the same Article that the persons who ill-treated him have not been identified and punished.

120. The applicant complains under Article 5 §§ 1 (c) and 3 of the Convention that

(a) he was unlawfully deprived of his liberty from 7 a.m. to 10 p.m. on 1 March 2008;

(b) his arrest lasted longer than the 72 hours permitted by law;

(c) his arrest and detention were not based on a reasonable suspicion;

(d) the reasons for his arrest were not communicated to him;

(e) the investigator’s motion of 4 March 2008 was not presented to him in advance and he was therefore not given sufficient time to prepare his case prior to being brought before a judge on that date; and

(f) the courts, when ordering and prolonging his detention and refusing bail, failed to adopt reasoned decisions which resulted in his unjustified and lengthy detention.

121. The applicant complains under Article 6 §§ 1 and 3 (b) and (d) of the Convention that

(a) the criminal case against him was trumped up, politically motivated and was based solely on police evidence which, moreover, lacked any detail and contained contradictory statements. The police officers were not trustworthy and impartial witnesses because their own actions were unlawful. The principle of equality of arms and his right to call witnesses were violated because the prosecution were able to build their case on the witness statements of the police officers while he was not allowed to call any witnesses on his behalf;

(b) he was interviewed in the absence of a lawyer on 1 March 2008;

(c) the expedited procedure applied by the Criminal Court of Appeal failed to ensure adversarial proceedings and a thorough examination of his case;

(d) Article 316 of the CC was not applicable to his case because the police actions were unlawful from the very start and any physical resistance on his part, even assuming that such took place, lacked corpus delicti under that Article;

(e) the Criminal Court of Appeal failed to address his allegations of ill‑treatment, of unlawful arrest and of him having been interviewed without a lawyer;

(f) the Criminal Court of Appeal failed to examine his arguments that the evidence concerning the knife was not reliable and credible and that the records of the confrontations of 28 March 2008 were inadmissible evidence because these confrontations had been held in violation of the prescribed procedure. Furthermore, the Court of Appeal ignored the fact that during the first several months he was being accused of assaulting and resisting unidentified police officers and only later the fabricated version involving the police officers in question came up; and

(g) the Court of Cassation’s decision of 10 March 2009 was not sufficiently reasoned.

122. The applicant complains under Article 10 of the Convention that his prosecution unlawfully interfered with his freedom of expression because it was linked to a speech he made at a rally on 20 February 2008.

123. The applicant complains about a violation of his right to freedom of peaceful assembly guaranteed by Article 11 of the Convention. He alleges that the police operation of 1 March 2008 was unlawful and that the police were the first to attack the demonstrators. The charges against him were trumped up and he was in reality prosecuted for his participation in peaceful rallies and his political beliefs.

124. The applicant also invokes Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to treatment incompatible with the requirements of Article 3 of the Convention during his apprehension and at the police station on 1 March 2008? Have the authorities complied with their positive obligation under Article 3 of the Convention to carry out an effective investigation into the applicant’s allegations of ill-treatment?

2. Was the applicant’s deprivation of liberty between 6.30 a.m. on 1 March 2008 and the time when the Kentron and Nork-Marash District Court of Yerevan decided on 4 March 2008 to detain the applicant lawful within the meaning of Article 5 § 1 of the Convention?

The Government are requested to explain on what grounds the applicant was apprehended in the early morning of 1 March 2008? If and insofar as he was not apprehended as a suspect, does the Armenian law provide for the possibility to apprehend a non-suspect and bring that non-suspect to a police station for questioning and keep him there?

The Government are further requested to explain whether the applicant was de facto deprived of his liberty after he had been apprehended in the early morning of 1 March 2008 or was he free to leave whenever he wanted until the moment when an official record of arrest was drawn up at 10.30 p.m. on that day?

3. Were the applicant’s arrest and detention based on a reasonable suspicion of his having committed an offence as required by Article 5 § 1 (c) of the Convention?

4. Was the applicant informed promptly of the reasons for his arrest, as required by Article 5 § 2 of the Convention?

5. Did the domestic courts provide “relevant” and “sufficient” reasons for the applicant’s detention, as required by Article 5 § 3 of the Convention?

6. Did the applicant have a fair hearing in the determination of the charge against him, as required by Article 6 § 1 of the Convention? In particular:

- was the principle of equality of arms respected?

- was the trial fair, given that the applicant’s conviction was based mainly on police evidence?

- was the applicant able to obtain the attendance of witnesses on his behalf, as required by Article 6 § 3 (d) of the Convention?

The Government are requested to submit copies of (a) the police reports prepared by arresting police officers E.R., H.S. and A.A. concerning the applicant’s bringing to the police station on 1 March 2008 (see paragraph 18); (b) testimonies of the police officers who acted as witnesses in the applicant’s criminal case; and (c) the applicant’s motions filed during the court proceedings seeking to obtain the attendance of witnesses on his behalf and the relevant court decisions taken on such motions or, if such motions and decisions were made verbally, the records of the relevant court hearings.

7. Did the police operation in the early morning of 1 March 2008, the applicant’s prosecution and subsequent conviction amount to an interference with his right to freedom of expression and freedom of peaceful assembly as guaranteed by Articles 10 and 11 of the Convention? If so, did the interference comply with the requirements of Articles 10 § 2 and 11 § 2 of the Convention?

The parties are requested to provide a detailed account of the events leading to the above-mentioned police operation and of the operation itself. The Government are further requested to provide information concerning the results of the parliamentary investigation into the events of 1 March 2008.

Full & Egal Universal Law Academy