Impartial court because the father of the investigator who participated in the pre-trial procedure. The conviction of a prosecutor and a politician who participated in a demonstration for electoral fraud violated the right to assemble

JUDGMENT

Jhangiryan v. Armenia 08.10.2020 (app. no. 44841/08 and  63701/09) &

Smbat Ayvazyan v. Armenia 08.10.2020 (app.no.  49021/08)

SUMMARY

Participation in a demonstration – protest and the right to assemble. The applicants are public figures, prosecutors and former opposition MPs respectively. They took part in demonstrations that broke out in Armenia for election fraud. They were arrested and remanded in custody without charge.

The first applicant prosecutor was charged with illegal possession of firearms and resisting police officers.

The ECtHR found that at the time of his arrest, he had a firearms license, which was known to the police officers who arrested him. He therefore held that his arrest and continued detention without a court order was illegal. Violation of Article 5§ 1 (c) due to unlawful arrest and Article 5§3 due to unlawful detention.

It  then found a breach of the fair trial, because the Court that tried him did not ensure impartiality as the judge was the investigator’s father who interrogated him at the pre-trial stage. Violation of Article 6§1.

The second applicant was arrested on charges of resisting police officers and was remanded in custody without a court order.

He appealed against the continuation of the temporary detention, The domestic courts refused to hear the appeal. The ECtHR found a violation of Article 5 § 1 due to unlawful pre-trial detention and Article 5 § 3 due to its continuation and a violation of Article 5 § 4 due to the refusal of the domestic courts to consider his appeal against pre-trial detention.

The ECtHR then ruled that the fair trial had been breached because the domestic courts did not secure a retaliatory trial as they did not allow the applicant to examine witnesses but based the reasons for their decisions on the statements of the police officers involved. Violation of Article 6 §1,

Finally, the ECtHR, for both applicants, after finding that the charges against them were unfounded, ruled that their arrest was due to their participation in a demonstration, therefore there was a violation of Article 11 of the ECHR. It awarded each of them the sum of 14,000 for non-pecuniary damage.

PROVISIONS

Article 5§1,

Article 5§1 (c),

Article 5§3,

Article 5§4,

Article 6§1,

Article 11

PRINCIPAL FACTS

These cases concerned two well-known Armenian public figures’ allegations of a politically
motivated crackdown following a wide-scale protest against the 2008 presidential elections.

Nationwide rallies, alleging election irregularities, had broken out after the February 2008 election.
Daily demonstrations were held in the centre of Yerevan, where the protestors also set up a camp.
On 1 March in the early hours, the police broke it up, triggering clashes.

The applicant in the first case, Gagik Jhangiryan, was at the time Deputy General Prosecutor, and the
applicant in the second case, Smbat Ayvazyan, was a former member of the Armenian Parliament
who had occupied different posts in the Government. Both applicants were involved in the protest
movement. Mr Ayvazyan was an active participant in the rallies, while Mr Jhangiryan made a speech
at Freedom Square on 22 February criticising the conduct of the election and expressing his support
for the opposition candidate. He was dismissed from his post the next day.

According to the applicants, they were stopped in their cars by a group of masked gunmen and
taken into police custody on 23 and 24 February, respectively. The police suspected the applicants of
being armed after receiving anonymous tip-offs.

The applicants were formally arrested the day after being taken into custody. They were both
charged with assaulting police officers during their custody; Mr Jhangiryan was also charged with
illegal possession of two pistols, charges which were later dropped because he was found to have a
valid licence for the weapons.

On 27 February they were brought before a judge who ordered their detention for two months. All
their appeals against their detention were dismissed.

Several months later a new charge, “conspiracy to usurp power”, was brought against them and
used as a ground for extending their detention after their cases were joined to the main criminal
case instituted against the leaders and supporters of the opposition involved in the protest
movement.

That charge was however dropped for lack of evidence, and they were ultimately found guilty in
March 2009 and November 2008 of the assault charge. They were sentenced to between two and
three years’ imprisonment, each. Mr Ayvazyan was also found guilty of another new charge
introduced in June 2008 for illegally possessing a spring baton found on him when he was arrested.

They appealed, arguing in particular that the courts’ findings were based solely on police testimony
and that the real reason for their prosecution and conviction was to punish them for their political
views and their active support for the protest movement. Their appeals were dismissed as
unsubstantiated, however, they were both released in June 2009 under an amnesty.

The applicants alleged in particular under Article 11 (freedom of assembly and association) that their
prosecution and conviction had been to prevent them from participating in demonstrations and to
punish them for their political opinions.

They also brought varying complaints under Article 5 §§ 1, 3 and 4 (right to liberty and security).
Mr Jhangiryan alleged that his arrest had been unlawful and had not been based on a reasonable
suspicion, while Mr Ayvazyan complained that his detention between 15 and 22 July 2008 without a
court decision had been unlawful and that the courts had refused to examine one of his appeals
against his detention. They both alleged that the courts had failed to properly justify their continued
detention.

They also complained under Article 6 (right to a fair trial) about the unfairness of the criminal cases
against them: Mr Jhangiryan alleged that the trial court judge adjudicating his case had not been
impartial because his son had been a member of the investigative team dealing with the main
criminal case concerning the protest movement; and Mr Ayvazyan complained that his conviction of
assault had been based on the statements of police officers without giving him the opportunity to
question some of those officers or call witnesses in his defence.

THE DECISION OF THE COURT…

Jhangiryan v. Armenia  (app. 44481/08 and 63701/09)

Article  5§ 1 (c)

The Court reiterates that the “reasonableness” of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention laid down in Article 5 § 1 (c) of the Convention. This requires the existence of some facts or information which would satisfy an objective observer that the person concerned may have committed the offence, though what may be regarded as reasonable will depend on all the circumstances of the case.

Turning to the circumstances of the present case, the Court notes that no arrest warrant was issued in respect of the applicant, while the only two formal documents related to the applicant’s police custody, namely the record of the applicant’s bringing-in and the record of his arrest, contained almost none of the grounds indicated by the Government and, in any event, contained very little detail. Thus, the record of the applicant’s bringing-in was couched in very abstract terms and contained no references to any provisions of criminal law or any factual details or evidence regarding the alleged offences, while the record of the applicant’s arrest of 24 February 2008, which served as the sole formal basis for the applicant’s deprivation of liberty until a detention order was issued by the District Court on 27 February 2008, indicated the possession of a CZ-75 B-type pistol as the only ground for the applicant’s arrest. No further factual details of the suspected offence were provided, including as to why it was believed that the pistol in question was possessed by the applicant illegally, or any evidence which could give rise to that suspicion.

The Court further refers to the applicant’s allegation, which the Government did not explicitly dispute, that the police had been aware at the time of his arrest of the fact that he had held a licence to possess and carry the pistol in question. Indeed, it follows from the materials of the case that this information had been known to the arresting officers, although it is not clear when exactly it came to light: during the police operation or upon verification conducted at the PDFOC. In any event, it is safe to assume that, at the very latest when the applicant’s record of arrest was drawn up, this information was already available to the police. It is not clear whether the investigator who ordered the applicant’s arrest overlooked or simply ignored that fact. Whichever it may be, as the official documents related to the applicant’s arrest stand, it cannot be said that the applicant’s arrest was based on a reasonable suspicion of his having committed an offence.

Accordingly, there has been a violation of Article 5 § 1 (c) of the Convention on that ground.

Article 5 § 3

 In the present case, the domestic courts similarly justified the applicant’s continued detention with a mere citation of the relevant domestic provisions and a reference to the gravity of the imputed offence without addressing the specific facts of his case or providing any details as to why the risks of absconding, obstructing justice or reoffending were justified. As to the Government’s argument regarding the post held by the applicant in the past, the Court notes that this ground was never mentioned by the domestic courts to justify the applicant’s continued detention. The Court therefore concludes that the domestic courts failed to provide relevant and sufficient reasons for the applicant’s detention.

Accordingly, there has been a violation of Article 5 § 3 of the Convention.

Article  6 § 1

The Court reiterates that it is of fundamental importance in a democratic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned, in the accused. To that end Article 6 requires a tribunal falling within its scope to be impartial. Impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. The Court has thus distinguished between a subjective approach, that is endeavouring to ascertain the personal conviction or interest of a given judge in a particular case, and an objective approach, that is determining whether he or she offered sufficient guarantees to rule out any legitimate doubt in this respect.

In the present case, A.V., namely the son of the trial court judge, Z.V., who examined the applicant’s case, had been a member of the investigative team dealing with the criminal case, no. 62202608, within the framework of which the applicant’s particular case had been investigated. Thus, Judge Z.V. and Investigator A.V. are lineal consanguine relatives of the first degree . As regards the involvement of A.V. in the proceedings at issue, the Court notes at the outset that, according to Article 90 § 1(3) of the CCP, A.V. was a participant and therefore a party to the criminal proceedings, which would appear to justify the judge’s recusal under that provision. This element, however, was considered irrelevant and not a factor preventing the judge from sitting on the case. Having regard to A.V.’s actual involvement in the proceedings, it is true that the investigative team was composed of numerous investigators and there is no indication that A.V. had been involved in any specific investigative measure taken in respect of the applicant. Nevertheless, taking into account the nature of criminal case no. 62202608 and its distinctive context, the Court does not find this to be decisive in the particular circumstances of the present case. It is to be noted that criminal case no. 62202608 was instituted to investigate the leaders and supporters of the political opposition in connection with the protest movement which unfolded in Armenia following the presidential election and culminated in the events of 1 and 2 March 2008, including the applicant, who showed his support for that movement and, as a consequence, stood trial. The son of the trial court judge was involved in the investigation of that criminal case which, given the particular, politically-sensitive context and the importance of appearances, understandably raised doubts in the applicant’s mind as to impartiality of the judge.

In the Court’s view the above is sufficient to conclude that, in the particular circumstances of the present case, there were ascertainable facts which could raise objectively justified doubts as to the impartiality of the trial court judge. Thus, there was at least an appearance of a lack of impartiality by Judge Z.V., owing to his son’s involvement in the pre-trial investigation of the criminal case in question.

Accordingly, there has been a violation of Article 6 § 1 of the Convention on account of lack of impartiality of the tribunal.

Article 10 and 11

n the present case, it is in dispute between the parties whether there was an interference with the applicant’s right to freedom of assembly. The applicant alleged that the true reason behind his prosecution and conviction was to punish him for the speech he had given at Freedom Square and to neutralise him as an opposition supporter of high standing, while the Government denied that and argued that he had been prosecuted exclusively for the offences in question.

Firstly, the Court points to the fact that the applicant was a high‑ranking public official who was 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 at Freedom Square critical of the authorities, and on the very day of his dismissal, a police operation was conducted that resulted in initiation of a criminal case against the applicant.

 Secondly, the Court notes the controversial manner in which the criminal case against the applicant was initiated. In particular, it appears from the announcement made on 23 February 2008 on the website of the Armenian police that the trigger for the police operation that led to the applicant’s arrest was some unspecified “operative information” received at the PDFOC . The precise nature and source of that information were never revealed or examined at any stage of the proceedings. Thus, it is not clear on what grounds the applicant and those accompanying him were believed to be illegally armed and, moreover, to have the intention, as it was stated in very vague terms, to “destabilise the situation in Yerevan”. No details of that plan were provided, including the manner in which such destabilisation was to be carried out or the motives behind it, including whether it was in any way linked to the ongoing protest movement. It is notable that the allegation that the applicant was part of an armed group planning to destabilise the situation in Yerevan was never investigated or even brought up during the ensuing investigation and the case was treated as an ordinary case of illegal possession of a weapon without any wider context, which gives an impression that no such information ever existed and that it was simply used as a pretext to stop and search the applicant.

Thirdly, the Court notes that, while the initial charges against the applicant, namely the alleged illegal possession of a Browning pistol and an assault on two police officers while in custody, appeared to be unrelated to the protest movement that gripped Armenia following the disputed presidential election of 19 February 2008, for unexplained reasons his case was joined with the main criminal case no. 62202608 instituted against the leaders and supporters of the opposition in connection with that protest movement . Moreover, during one of his interviews the applicant, while facing those charges, was asked questions almost exclusively related to the speech he had given at Freedom Square on 22 February 2008. Furthermore, at a later stage a charge was brought against the applicant under Article 300 of the CC of “usurpation of power” which, even if drafted in a rather vague manner, can be understood to have concerned the applicant’s involvement in the protest movement led by Mr Ter-Petrosyan, including the support shown by the applicant to that movement through his participation in the assembly at Freedom Square and the speech he had given there. While that charge was eventually dropped, the investigator requested an extension of the applicant’s detention with reference to that charge, as well as to the main criminal case instituted to investigate the protest movement.

Fourthly, it is undisputed that the Browning pistol, similarly to the CZ-75 B-type pistol, was legally owned by the applicant. No explanation was provided at any stage of the investigation as to why it was suspected to be an illegal weapon, given that the applicant had a valid licence . The charge, once again, lacked detail and was eventually dropped for lack of evidence, apparently without any meaningful investigation into it and with reasoning that failed to clarify the question as to why it was necessary to bring that charge in the first place. Thus, the sole basis for the applicant’s eventual conviction was an act which he had allegedly committed after having been taken into custody, namely an assault on two police officers. Moreover, that conviction was based exclusively on the testimony of the police officers concerned and the findings of fact made in that respect by the domestic courts appear to have been a mere and unquestioned recapitulation of the circumstances as presented in that testimony. Thus, the manner in which the proceedings relating to that charge were conducted is 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 points to the existence of a repetitive pattern and casts doubt on the credibility of the criminal proceedings against the applicant.

Lastly, it is notable that the applicant’s criminal case, while on the whole seemingly unrelated to the protest movement, was, nevertheless, included among the cases monitored by the 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 Court therefore finds a number of striking resemblances between the applicant’s case and those cited above. In view of all the above factors, the Court considers that there are cogent elements in the present case prompting it to doubt whether the true reasons for the applicant’s arrest and subsequent prosecution were those indicated in the relevant police materials. The entirety of the materials before it allow the Court to draw sufficiently strong, clear and concordant inferences as to the applicant’s prosecution, and consequently the resulting conviction, being linked to his involvement in and the support shown for the protest movement led by the opposition. The Court is, therefore, prepared to assume that the entirety of the facts on which the applicant’s prosecution and conviction were based can be regarded, on arguable grounds, as an instance of an “interference” with his right to freedom of peaceful assembly.

SMBAT AYVAZYAN v. ARMENIA (App. no.  49021/08)

Article 5 § 1

In the present case, the domestic court adjourned the case to 14 July 2008, but failed to rule on the applicant’s continued detention, which then expired on 15 July 2008. Therefore, there was no court order ordering the detention of the applicant until 22 July 2008, when the national court considered that question. The Court emphasizes in this connection that a mere retrospective reference to a typographical error cannot be regarded as a remedy for that situation.

Consequently, there has been a violation of Article 5 § 1 of the Convention.

Article 5 § 3

The Court notes that the applicant’s complaint concerns the inability of the domestic courts to provide relevant and sufficient reasons for the continuation of his detention, which began with the above-mentioned initial decision of the District Court on 27 February 2008 and ended on the date on which it was adjudicated. guilty party, ie on 19 November 2008. It is true that the applicant did not appeal against that original decision. However, he raised the issue of the lack of grounds for his temporary detention before the Court of Appeal in two subsequent appeals. The Court therefore decided to dismiss the remainder of the Government’s objection to non-exhaustion of remedies.

Consequently, there has been a violation of Article 5 § 3 of the Convention.

Article 5 § 4 

The applicant alleged that his refusal to examine his appeal on 24 June 2008 had breached the guarantees of Article 5 § 4.

The Court notes that it has already considered a similar complaint in a number of cases against Armenia, in which it ruled that the refusal of judicial review of the applicant’s detention on the sole ground that the criminal case was no longer considered at the pre-trial stage was an unjustified restriction on his right to appealed in accordance with Article 5 (4) and concluded that there had been a breach of this provision. Consequently, there has been a violation of Article 5 § 4 of the Convention.

 Article 6§1

The applicant complained that (a) his conviction was based on police statements, while he was not allowed to call witnesses on his behalf and (b) he was unable to examine two witnesses.

The indictment against the applicant accordingly relied to a large and decisive extent on the testimony of three police officers who were actively involved in the events in question.

Furthermore, the fact that the written statements of the applicant’s lawyer about the persons he had called to call as witnesses were included in the case file could not be offset by the fact that those witnesses were not called and did not take part in the hearing. Nor does the court seem to have paid due attention to this evidence. The Court therefore considers that the domestic courts, in a dispute over the key facts on which the charges are based, did not use every reasonable opportunity to verify the accusatory statements of the police officers who were the only witnesses to the prosecution and played an active role. the disputed events. Their unconditional approval of the version of events on the basis of police statements, the unsatisfactory treatment of the applicant’s claims and the refusal to examine the defense witnesses without due regard to the importance of their statements may be considered to have led to a restriction of , Incompatible with the guarantees of the right to a fair trial.

In view of the above, the Court concludes that the criminal proceedings against the applicant, in their entirety, were conducted in breach of his right to a fair trial in accordance with Article 6 § 1 of the Convention.

Article 10 and 11

The Court notes that the parties are in fact challenging the factual basis for the applicant ‘s prosecution and conviction.

First, it is common ground that the applicant was a member of the political opposition and a well-known public figure who took an active part in the post-election protests and was arrested when rallies were in full swing and was indirectly linked to his participation in the ongoing protests. The plaintiff allegedly had been illegally armed while going to the demonstration.

Second, the Court notes the controversial manner in which the criminal case was brought against the applicant. In particular, the reason for the applicant’s arrest was an alleged anonymous telephone call received at PDFOC. However, there is no objective evidence to support the fact that such a telephone call was actually received in PDFOC, such as a recording of this conversation or a detailed copy of it. All the above factors, as well as the striking ambiguity of all the official documents concerning the original reasons for the applicant’s arrest, led the Court to believe that there were no real reasons for his detention.

Third, it is not clear why the applicant was examined for drugs in his blood, which subsequently gave rise to the disputed event. The police report of his arrest stated that the alleged illegal possession of weapons was the only reason for his arrest and did not mention anything about any suspicions about drugs.

Fourth, the Court noted that, while formally charged with threatening and assaulting police officers on 24 February 2008 in circumstances unrelated to the protest movement that erupted in Armenia after the disputed presidential election of 19 February 2008, the applicant’s criminal case was adjourned. the main criminal case against the leaders and supporters of the opposition in connection with this protest movement. In addition, this was done with reference to his participation in the organization and conduct of these gatherings. The facts of this criminal case and the alleged involvement of the applicant in a conspiracy to “usurp state power” constituted the reason for the extension of his detention. In addition, there were severe restrictions on his contact with the outside world, again in relation to this criminal case, although the only formal charge against the applicant was that of a minor attack.

Fifth, with regard to the applicant’s final conviction for allegedly possessing a firearm and assaulting a police officer during detention, the Court noted that the weapon in question, a spring, was in his possession on the first day of his arrest. However, for unexplained reasons, no relevant charges were brought against him for the next four months, which casts doubt on the credibility and authenticity of this charge.

In addition, as regards the applicant’s conviction for assault, that conviction was based solely on the testimony of the police officers involved. And the findings of fact made by the domestic courts seem to have been a simple and unmistakable summary of the circumstances as presented in this testimony. Thus, the manner in which the prosecution was conducted on this charge is strikingly similar to other cases in which opposition activists have been prosecuted and convicted of similar acts, in similar circumstances and on the basis of similar evidence, showing the existence of repeated tactics and casts doubt on the credibility of the criminal proceedings against the applicant.

Finally, it is noteworthy that the applicant’s criminal case, while not entirely related to the protest movement, was nevertheless included in the OSCE / ODIHR’s cases as part of a follow-up project on more than a hundred cases against leaders and supporters of the opposition in connection with the events of 1 March 2008.

The Court therefore considered that all the facts on which the applicant’s prosecution and conviction were based could be regarded, for questionable reasons, as an interference with his right to freedom of peaceful assembly.

The Court reiterated that an intervention would constitute a breach of Article 11 unless “prescribed by law”, pursues one or more legitimate objectives under paragraph 2 and is “necessary in a democratic society” to achieve those objectives. Indeed, the applicant was prosecuted and convicted of a number of offenses, including carrying a cold steel weapon and assaulting a police officer, while the real reason for his criminal punishment was his active participation in the protest movement. In those circumstances, the interference with the applicant’s freedom of peaceful assembly could only be described as manifestly arbitrary and therefore unlawful for the purposes of Article 11 of the Convention.

The Court therefore concluded that the intervention in question did not satisfy the condition of legality of the Convention. In those circumstances, it was not necessary to determine whether the intervention pursued a legitimate aim and, if so, whether it was proportionate to the objective pursued.

There has accordingly been a violation of Article 11 of the Convention

Just satisfaction: to each applicant, 14,000 euros (EUR) in respect of non-pecuniary damage and
EUR 2,000 in respect of costs and expenses.