Pre trial detention without evidence and reasonable evidence violated the right to liberty and security
JUDGMENT
Myasnik Malkhasyan v. Armenia 15.10.2020 (app. no. 49020/08)
SUMMARY
Provisional detention. Lack of evidence and reasonable indications. Deprivation of liberty without legal reason.
The applicant took part in political rallies. He was arrested and temporarily detained for more than 6 months without reasonable evidence for the charge specifically attributed to him for attempting to overthrow the regime. He brought an application for violation of the right to freedom and security.
The Court reiterated that a person can only be detained in criminal proceedings, with the aim of appearing before the competent investigating authority for a “reasonable suspicion” that he had “committed an offense”.
In the present case, the ECtHR found that the charges against the applicant were formulated in very general and abstract terms, without specific factual details of the acts allegedly committed.
The Court considered that the material presented did not meet the minimum standard laid down in Article 5 § 1 (c) of the Convention on the reasonableness of the suspicion required for the arrest of a person and found a violation of Article 5 § 1 (c).
It awarded the applicant EUR 5,085 for damages, EUR 7,500 for non-pecuniary damage and costs.
PROVISION
Article 5§1 (c)
PRINCIPAL FACTS
The applicant, Myasnik Malkhasyan, is an Armenian national who was born in 1961 and lives in
Yerevan.
The case concerned his arrest and pre-trial detention, amid the wide-scale protest against the 2008
presidential elections and an alleged politically motivated crackdown.
Nationwide rallies, alleging election irregularities, broke out after the February 2008 election. Daily
demonstrations were held in the centre of Yerevan, in particular at Freedom Square, where the
protestors also set up a camp. On 1 March in the early hours, the police broke up the camp, after
which several thousand protesters gathered in the area of the Myasnikyan monument and adjacent
streets. Later that day clashes took place between protesters and the police in this area which
continued until early morning the next day, and resulted in ten people being killed, numerous
injured and damage to property.
The applicant, an opposition member of parliament, had been attending the protests and had given
speeches. He submits that he was not at Freedom Square camp during the police operation, arriving
around 12 noon at an area around Myasnikyan monument where most of the protestors had been
forced to relocate. He says that he addressed the crowd through a loudspeaker, calling for calm and
restraint.
The following day at 6 a.m., when leaving the area in a taxi, he was taken into custody on suspicion
of organising mass disorder and was later charged with that offence, as well as with an attempt to
usurp State power in connection with the protest movement and the events which unfolded in
Yerevan on 1 March 2008.
All his appeals against his pre-trial detention were dismissed on grounds of the gravity of the
offences, and the risk of his absconding. He unsuccessfully complained that there was no evidence
giving rise to a reasonable suspicion that he had committed any of the criminal offences with which
he had been charged and that he was a member of parliament with no previous convictions and a
permanent place of residence.
The only charge which was ultimately retained against him was for organising mass disorder. He was
convicted of this charge in June 2009, the courts ruling that the protest movement, including the
violence which had broken out, had been part of a plan to overthrow the government masterminded
by the applicant, along with other opposition leaders. The courts essentially relied on one witness
statement alleging that the applicant had transported and stored metal rods and wooden clubs in a
tent on Freedom Square, and three other witness statements saying that he had incited protestors
at the Myasnikyan monument to arm themselves and attack the police.
He was sentenced to five years in prison, but was immediately released under an amnesty.
Relying in particular on Article 5 §§ 1 (right to liberty and security) of the European Convention on
Human Rights, the applicant complained that his arrest and detention had not been based on a
reasonable suspicion and that the courts had failed to properly justify his continued detention.
THE DECISION OF THE COURT…
Article 5 § 1(c)
The Court reiterates that Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty which must be interpreted strictly. A person may be detained under Article 5 § 1 (c) only in the context of criminal proceedings, for the purpose of bringing him before the competent legal authority on “reasonable suspicion” of “having committed an offence”.
The Court noted that the applicant in the present case complained of a lack of “reasonable” suspicion against him throughout his detention.
Turning to the applicant’s particular case, the Court notes that the very first document drafted in respect of the applicant’s police custody indicated that he had been taken into custody on suspicion of, inter alia, “organising mass disorder” without, however, providing any factual details, as well as grounds or evidence which gave rise to that suspicion. The record of the applicant’s arrest was drafted in a similar manner. Thus, while stating that the applicant was arrested under Article 300 of the CC on suspicion of having committed “usurpation of power”, namely actions aimed at violent seizure of State power or violent overthrow of the constitutional order, it failed, however, to indicate any specific acts which the applicant had allegedly committed within the meaning of that provision or any evidence on which that suspicion was based.
The Court notes that the applicant was prosecuted and detained on such precarious grounds for more than six months until a new and somewhat more detailed charge was brought against him on 29 August 2008. However, even that document cannot be said to have contained sufficient information to satisfy the requirements of Article 5 § 1 (c), especially taking into account that it was produced after more than six months of investigations.
Firstly, many of the allegations against the applicant were still presented in a vague manner without sufficient factual detail. No examples or citations were provided of the applicant’s allegedly “provocative speeches”, incitement to “violent seizure of State power”, orders “to resist the police officers and to assault them” and similar.
Secondly, and more importantly, the allegations against the applicant, including some more serious ones such as his alleged incitement to violence in the area near the Myasnikyan monument, were not backed up by a single piece of evidence. No evidence whatsoever was cited or attached in support of the suspicions against the applicant and it is not clear on what grounds the applicant was believed to have committed the acts in question.
Thirdly, after the charge of 29 August 2008 was brought, the applicant’s pre-trial detention was extended only once, namely on 29 October 2008, but even then the domestic court did not examine the question of existence of a reasonable suspicion. Consequently, no relevant factual details or evidence were produced or examined at that stage of the pre-trial detention either.
Lastly, the Court cannot overlook the fact that serious doubts have been voiced by the PACE Monitoring Committee regarding the version, according to which the events of 1 and 2 March 2008 had been part of a planned and organised attempt by the leaders of the opposition to seize violently State power or, in other words, to carry out a coup, and in fact such prosecutions were deemed highly likely to be politically motivated. The Court itself has previously concluded that there was no convincing evidence to suggest that there had been a build-up of arms at Freedom Square for the purpose of instigating mass disorder. It has rejected the allegations that the police were deployed at Freedom Square in order to carry out an inspection for weapons and that armed demonstrators were first to attack, and has found that the main, if not only, purpose of the police operation in the early morning of 1 March 2008 was to disperse the assembly at Freedom Square and that any clashes that happened there must likely have been caused by the measures taken by the police to end the assembly, including the alleged excessive use of force, as opposed to being premeditated acts. There are a number of credible reports which suggest that the gathering of people in the area of the Myasnikyan monument, including their later being armed, were spontaneous and unorganised developments and that the escalation of violence later that day may have similarly been a response to the earlier dispersal of demonstrators from Freedom Square, including its heavy‑handed nature, as well as a number of other similar or uncontrollable events which had happened later that day. The Court notes that the Government have failed to produce any evidence in the present case which would prompt it to doubt the above reports or the findings reached in the Mushegh Saghatelyan case.
The Court is mindful of the fact that the applicant’s case has been taken to trial. That, however, does not affect the Court’s findings in connection with the present complaint, where it is called upon to consider whether the deprivation of the applicant’s liberty during the pre‑trial period was justified on the basis of the information or facts available at the relevant time. In this respect, having regard to the above analysis, the Court finds that the material put before it does not meet the minimum standard set by Article 5 § 1 (c) of the Convention for the reasonableness of a suspicion required for an individual’s arrest and continued detention. Accordingly, during the period the Court is considering in the present case, the applicant was deprived of his liberty in the absence of a “reasonable suspicion” of his having committed a criminal offence.
Accordingly, there has been a violation of Article 5 § 1 (c) of the Convention.
Article 5 § 3
The Court did not consider it necessary to examine separately any issues under Article 5 § 3 of the Convention.
Article 5 § 4
The Court notes that the applicant’s submissions in this respect are somewhat contradictory, claiming, on the one hand, that the vague reference to “certain evidence” substantiating the existence of a reasonable suspicion in the decision of the Criminal Court of Appeal of 21 March 2008 suggested that no such evidence had existed and, on the other hand, that the proceedings had not been adversarial because such evidence had not been presented to him. The Court, however, is mindful of its finding above that the charges against the applicant and his pre-trial detention were not based on any specific evidence and that no such evidence was ever produced before the courts. In such circumstances, there is no appearance of a violation of the applicant’s rights guaranteed by Article 5 § 4 of the Convention.
Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
