ECHR ruling of October 08, 2020 in the case "Jhangiryan v. Armenia"" (aplication N 44841/08 and 63701/09), " Smbat Ayvazyan v. Armenia" (aplication No. 49021/08).
In 2008, the applicants were assisted in preparing the aplications. Subsequently, the aplications was communicated to Armenia.
A complaint about the arbitrary initiation of a criminal case and the conviction of opposition representatives in connection with their participation in protest actions was successfully considered in the case. The case involved a violation of the requirements of article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
Presidential elections were held in Armenia on February 19, 2008. Immediately after the announcement of the preliminary election results, the opposition candidate Ter-Petrosyan called on his supporters to protest against the violations that allegedly took place during the elections, claiming that the elections were not free and fair. Since February 20, 2008, Ter-Petrosyan's supporters have held daily protests throughout the country.
In the case "Jhangiryan v. Armenia" (Jhangiryan v. Armenia), the applicant made a speech during one of these actions, expressing support for the opposition candidate and criticizing the conduct of the presidential elections. In the case "Smbat Ayvazyan v. Armenia" (Smbat Ayvazyan v. Armenia), the applicant was a member of the opposition party and a supporter of Ter-Petrosyan. He actively participated in protest actions, regularly attending demonstrations and sit-ins. Both applicants were detained, remanded in custody and then convicted on charges unrelated to the present case, which the applicants unsuccessfully appealed.
The applicants claimed that the real reason for their criminal prosecution and finding them guilty was punishment for supporting the opposition and participating in protest actions.
Regarding compliance with article 11 of the Convention. (a) Whether there has been an intervention. The European Court has already considered a number of similar complaints against Armenia. As noted in the case "Mushegh Saghatelyan v. Armenia" (Judgment of the European Court of Justice of September 20, 2018, complaint No. 23086/08), the circumstances of the present case took place during a period of increased political instability in Armenia, which included opposition demonstrations held in protest against the results of allegedly unfair presidential elections. The subsequent response of the Armenian authorities, which included the detention and detention of a number of opposition supporters, was condemned by the Parliamentary Assembly of the Council of Europe and called "the actual defeat of the opposition". The charges brought against many opposition supporters were considered as allegedly "artificial and politically motivated".
Taking into account the above points, which required the European Court to be particularly thorough and attentive when considering the applicants ' case, the European Court referred to the following factors.
- In the case of Jhangiryan v. Armenia, the applicant, a high-ranking official, was dismissed from his post after he publicly expressed support for the opposition movement and criticized the elections as fraudulent. On the day after the applicant's speech and on the day of his dismissal, a police operation was carried out, which ended with the initiation of a criminal case against the applicant. In the case "Smbat Ayvazyan v. Armenia" (Smbat Ayvazyan v. Armenia), the applicant, a member of the political opposition and a well-known public figure, was detained in the midst of an opposition public event. Thus, his detention was indirectly connected with the ongoing protest actions, since it was alleged that he allegedly had a weapon with him when he was walking from the demonstration.
- Criminal cases against the applicants were initiated in various ways. The reasons for the applicants ' detention were, respectively, unidentified "operational information" ("Jhangiryan v. Armenia") and an anonymous phone call ("Smbat Ayvazyan v. Armenia") received by the Armenian authorities. The exact nature and both sources of information were never disclosed and considered at any stage of the consideration of cases. It should be noted that the initial reasons for the detention of the applicants (in the case "Jhangiryan v. Armenia" (Jhangiryan v. Armenia) - carrying weapons and participating in an armed group that planned to destabilize the situation in Yerevan, and carrying weapons in the case "Smbat Ayvazyan v. Armenia" (Smbat Ayvazyan v. Armenia)) they were almost immediately forgotten as soon as new grounds for bringing charges against the applicants appeared after the arrests. In the case "Jhangiryan v. Armenia" (Jhangiryan v. Armenia) the applicant was never questioned in connection with the initial suspicions against him, but instead a criminal case was initiated on a different basis, namely, in connection with the illegal possession of other firearms. In the case "Smbat Ayvazyan v. Armenia" (Smbat Ayvazyan v. Armenia), the applicant was accused of assaulting a police officer while in custody. These factors, as well as the surprising vagueness of the contents of all official documents regarding the initial reasons for the applicants 'detention, led the Court to believe that there were no valid reasons for the applicants' detention, and the fact that the applicants were detained on such dubious grounds gave the impression that the authorities intended to deprive the applicants of their freedom at any cost and that the detentions were carried out in bad faith.
- The allegations against the applicants did not seem to relate to the protests that followed the disputed presidential election. Nevertheless, the applicants ' cases were combined with the main criminal case against the leaders and supporters of the opposition, initiated in connection with the protest actions. Among other things, when extending the applicants ' detention, references were also made to their participation in the "usurpation of State power".
- In the case "Jhangiryan v. Armenia" (Jhangiryan v. Armenia), the charge of illegal possession of firearms did not contain sufficient details and was eventually dropped due to lack of evidence, obviously without conducting any meaningful investigation and for a reason that did not answer the question why this charge was necessary to be brought.
In the case "Smbat Ayvazyan v. Armenia" (Smbat Ayvazyan v. Armenia), the weapon was allegedly found in the applicant's possession on the first day when he was detained. However, during the following four months, no charges were brought against the applicant in connection with this fact, which casts doubt on the credibility and truth of the charge against him. This accusation appeared around the time when the Armenian authorities abandoned their attempts to accuse the applicant of usurpation of state power, which gave the impression that the Armenian authorities wanted to get the applicant convicted at any cost. It is also unclear why the applicant was sent for examination on the issue of possible drug use by the applicant, which in the first place caused the disputed incident.
As for the applicants ' convictions for assaulting police officers while in custody, these verdicts were based solely on the testimony of the relevant police officers, and the conclusions reached in this regard by the Armenian courts regarding the facts, apparently, were only verbatim retellings of the circumstances, not questioned, as they were set out in the above-mentioned testimony. Consequently, the method of consideration of criminal cases was strikingly similar to the method of consideration of other cases in which opposition activists were accused and convicted of similar acts, under similar circumstances and on the basis of the same evidence, which indicated the existence of a recurring pattern and called into question the reliability of criminal cases against the applicants.
- The criminal cases against the applicants, although they did not seem to be related to the protests in general, were nevertheless included in the list of cases monitored by the Organization for Security and Co - operation in Europe / Office for Democratic Institutions and Human Rights (OSCE/ODIHR) as part of a project to monitor the judicial proceedings in more than 100 cases initiated against opposition leaders and supporters in connection with the events of March 1-2, 2008 in Armenia.
All the materials submitted to the European Court made it possible to draw fairly confident, accurate and consistent conclusions regarding the criminal prosecution of the applicants and the subsequent sentences related to the applicants ' participation in opposition-led protest actions and the support provided to the applicants for these events. In this regard, the European Court was ready to assume that the whole set of facts on which the charges brought against the applicants and the sentences in their cases were based could be considered for good reasons as examples of "interference" with the applicants ' right to freedom of peaceful assembly.
(b) Whether the interference was provided for by law. Since the real reason for the applicants 'conviction in criminal cases was their active participation in protest actions, the contested interference with the applicants' right to freedom of peaceful assembly can only be recognized as clearly arbitrary and, therefore, illegal within the meaning of article 11 of the Convention.
The case involved a violation of the requirements of article 11 of the Convention (adopted unanimously).
In the case "Jhangiryan v. Armenia" (Jhangiryan v. Armenia) The European Court also found unanimously that there were violations of Article 5, paragraph 1, of the Convention due to the fact that the applicant's initial detention was illegal, article 5, paragraph 1 (c) of the Convention due to the absence of a reasonable suspicion that the applicant had committed a crime, Article 5, paragraph 3 of the Convention due to the inability of the Armenian courts to provide relevant and sufficient grounds for extending the applicant's detention, and Article 6, paragraph 1, of the Convention due to the participation of the son of the judge who examined the cases in the investigation of incidents, related to protest actions.
In the case "Smbat Ayvazyan v. Armenia" (Smbat Ayvazyan v. Armenia) The European Court also found unanimously that there were violations of Article 5, paragraph 1, of the Convention due to the fact that the applicant's detention was illegal, Article 5, paragraph 3, of the Convention due to the inability of the Armenian courts to provide relevant and sufficient grounds for extending the applicant's detention, Article 5, paragraph 4, of the Convention due to the unjustified refusal of the Court of Appeal to consider the applicant's complaint about the extension of his detention, and Article 6, paragraph 1, of the Convention due to restrictions on the applicant's right to defense, incompatible with the applicant's right to a fair trial.
In the application of article 41 of the Convention. The European Court awarded each of the applicants 14,000 euros in compensation for non-pecuniary damage.