Information Note on the Court’s case-law 244
October 2020
Smbat Ayvazyan v. Armenia - 49021/08
Judgment 8.10.2020 [Section I]
Article 11
Article 11-1
Freedom of peaceful assembly
Arbitrary prosecution and conviction of opposition supporters, linked to their participation in a protest movement: violation
[This summary also covers the judgment Jhangiryan v. Armenia, nos. 44841/08 and 63701/09, 8 October 2020].
Facts – On 19 February 2008, a presidential election was held in Armenia. Immediately after the announcement of the preliminary results, an opposition candidate Mr Ter-Petrosyan called on his supporters 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.
In the case of Jhangiryan, the applicant made a speech at one such rally, expressing his support for the opposition candidate and criticising the conduct of the presidential election. In the case of Smbat Ayzayzan, the applicant was a member of an opposition party and a supporter of Mr Ter-Petrosyan’s candidacy. He was an active participant in the rallies, regularly attending the demonstrations and sit-ins. Both applicants were subsequently arrested and detained, and ultimately convicted for unrelated charges, against which they appealed unsuccessfully.
The applicants alleged that the true reason behind their prosecutions and convictions had been to punish them as opposition supporters and for their participation in the rallies.
Law – Article 11:
a) Whether there had been an interference:
The Court had already examined a number of similar cases against Armenia. As noted in Mushegh Saghatelyan v. Armenia (23086/08, 20 September 2018, Information Note 221), the present case had taken place in a period of increased political sensitivity in Armenia involving opposition rallies held in protest against an allegedly unfair presidential election result. The response of the authorities that followed, including the arrests and detention of scores of opposition supporters, had been condemned by the Parliamentary Assembly of the Council of Europe (PACE) and described as a “de facto crackdown on the opposition”. The charges brought against many of them had been suspected to have been “artificial and politically motivated”.
Bearing in mind the foregoing, which called for special vigilance and scrutiny on the part of the Court in dealing with the applicants’ cases, the Court referred to a number of factors:
1. In Jhangiryan, the applicant, a high‑ranking public official, had been fired from his post after publicly expressing his support for the protest movement and criticising the election as fraudulent. On the day following his speech and on the very day of his dismissal, a police operation had been conducted that had resulted in initiation of a criminal case against him. In Smbat Ayvazyan, the applicant, a member of the political opposition and a known public figure, had been arrested when the rallies were in full swing. His arrest had thus been indirectly linked to his participation in the ongoing protests, as he had been alleged to have been illegally armed while on his way from a demonstration.
2. The criminal cases against the applicants had been initiated in a controversial manner. The trigger for the applicants’ arrests had been, respectively, some unspecified “operative information” (Jhangiryan), and an anonymous telephone call (Smbat Ayvazyan) received by the authorities. The precise nature and scope of both sources of information had never been revealed or examined at any stage of the proceedings. It was notable that the initial reasons for taking the applicants into custody (in Jhangiryan, being armed and part of an armed group planning to destabilise the situation in Yerevan, and in Smbat Ayvazyan, being armed) had been almost immediately forgotten once new grounds for prosecuting them had emerged following their arrests. In Jhangiryan, the applicant had never even been questioned in connection with that initial suspicion, but instead a criminal case had been instituted on a different ground, namely alleged illegal possession of another pistol. In Smbat Ayvazyan, the applicant had been charged of an assault on a police officer in custody. Those factors, as well as the striking vagueness of all the official documents concerning the initial reasons for the applicants’ arrests, prompted the Court to believe that there had been no genuine reasons for taking the applicants into custody and the fact that they had been arrested on such precarious grounds gave the impression that the intention had been to deprive the applicants of their liberty at any cost and that their arrests might have been effected in bad faith.
3. The charges against the applicants had appeared to be unrelated to the protest movement following the disputed presidential election. Yet their cases had been joined with the main criminal case against the leaders and supporters of the opposition in connection with that protest movement. Among other things, both applicants’ alleged involvement in “usurpation of State power” had also been relied upon to extend their detention.
4. In Jhangiryan, the charge of being illegally in possession of a pistol had lacked detail and had been eventually dropped for lack of evidence, apparently without any meaningful investigation into it and with reasoning that had failed to clarify the question as to why it had been necessary to bring that charge in the first place.
In Smbat Ayzazyan the weapon had allegedly been found in the applicant’s possession on the very first day of his arrest. However, no charge in that respect had been brought against him for the following four months, which cast doubt on the credibility and genuineness of that charge. The bringing of that charge had happened around the same period when the authorities had given up on their attempts to charge the applicant with the offence of usurpation of State power, which gave an impression that the authorities had wanted to secure the applicant’s conviction at any cost. It was also not clear why the applicant had been taken for a drug trust, which had then given rise to the disputed incident, in the first place.
As for the applicants’ convictions for assault on police officers while in custody, these had been based exclusively on the testimony of the police officers concerned and the findings of fact made in that respect by the domestic courts appeared to have been a mere and unquestioned recapitulation of the circumstances as presented in those testimonies. Thus, the manner in which the proceedings relating to the charges had been conducted was strikingly similar to other cases where opposition activists had been prosecuted and convicted for similar acts, in similar circumstances and on the basis of similar evidence, which pointed to the existence of a repetitive pattern and cast doubt on the credibility of the criminal proceedings against the applicants.
5. The applicants’ criminal case, while on the whole seemingly unrelated to the protest movement, had been, nevertheless, included among the cases monitored by the Organisation for Security and Cooperation in Europe/Office for Democratic Institutions and Human Rights (OSCE/ODIHR) as part of a trial monitoring project of more than a hundred cases instituted against the leaders and supporters of the opposition in connection with the events of 1‑2 March 2008.
The entirety of the materials before it allowed the Court to make sufficiently strong, clear and concordant inferences as to the applicants’ prosecutions, and consequently the resulting convictions, being linked to their involvement in and the support shown for the protest movement led by the opposition. The Court was therefore prepared to assume that the entirety of the facts on which the applicants’ prosecutions and convictions had been based could be regarded, on arguable grounds, as instances of an “interference” with their right to freedom of peaceful assembly.
b) Whether the interference was prescribed by law:
As the true reason for the applicants’ convictions had been their active participation in the protest movement, the impugned interferences with their freedom of peaceful assembly could only be characterised as manifestly arbitrary and, consequently, unlawful for the purposes of Article 11.
Conclusion: violation (unanimously).
In the case of Jhangiryan, the Court also found, unanimously, that there had been a violation of Article 5 § 1 on the basis that the applicant’s initial arrest had been unlawful; a violation of Article 5 § 1 (c) on account of a lack of reasonable suspicion of the applicant having committed an offence; a violation of Article 5 § 3 on account of the domestic courts’ failure to provide relevant and sufficient reasons for the applicant’s continued detention; and a violation of Article 6 § 1 on account of the involvement of the trial judge’s son in an investigation of the protest movement.
In the case of Smbat Ayzazyan, the Court also found, unanimously, that there had been a violation of Article 5 § 1 on the basis that the applicant’s detention had been unlawful; of Article 5 § 3 on account of the domestic courts’ failure to provide relevant and sufficient reasons for the applicant’s continued detention; a violation of Article 5 § 4 on account of the Court of Appeal’s unjustified refusal to examine the applicant’s appeal against his extended detention; and a violation of Article 6 § 1 on account of a limitation of the applicant’s defence rights incompatible with his right to a fair hearing.
Article 41: EUR 14,000 to each applicant in respect of non-pecuniary damage.
(See also Hakobyan and others v. Armenia, 34230/04, 10 April 2012; Virabyan v. Armenia, 40094/05, 2 October 2012, Information Note 156; Huseynli and Others v. Azerbaijan, 67360/11, 67964/11 and 69379/11, 11 February 2016, Information Note 193; Mushegh Saghatelyan v. Armenia, 23086/08, 20 September 2018, Information Note 221).
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This summary by the Registry does not bind the Court.
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