Communicated on 28 March 2017

FIRST SECTION

Application no. 22329/13 Armen BADALYAN against Armenia lodged on 20 March 2013

STATEMENT OF FACTS

The applicant, Mr Armen Badalyan , is an Armenian national who was born in 1976 and lives in Metsamor . He is represented before the Court by Mr A. Ghazaryan, a lawyer practising in Yerevan, and Mr A. Zeynalyan , a non-practising lawyer.

A. The circumstances of the case

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

On 23 June 2011 the applicant filed a request with the authorities, seeking to launch criminal proceedings against another person.

On 22 July 2011 there was an exchange of telephone calls and SMS messages between the applicant and the investigator who was in charge of the examination of his request. During one of these calls and in an SMS, the applicant insulted the investigator whilst expressing his dissatisfaction with the manner of processing of his request of 23 June 2011.

On the same day criminal proceedings were instituted against the applicant.

On 25 July 2011 the applicant was charged under Article 316 of the Criminal Code, which prescribes a penalty for uttering threats of using violence against a representative of a public authority.

During those proceedings the investigator, who was involved as an injured party, and his colleague, who was involved as a witness, provided statements against the applicant. In particular, they testified that during a phone call on 22 July 2011, in addition to using insulting words, the applicant had also threatened the investigator with causing physical harm in connection with the processing of the applicant ’ s request.

On 10 July 2012 the prosecutor decided to amend the charge against the applicant. In particular, he dropped the charge under Article 316 and brought a new charge under Article 347 § 2 of the Criminal Code, which prescribes a penalty for uttering threats to an investigator in connection with the conduct of an investigation.

During the trial proceedings the applicant submitted that he had only insulted the investigator, but had not threatened him. He argued that even if he had threatened the investigator, in the absence of formal criminal proceedings, and therefore of an investigation, such a threat could not constitute an offence as defined in Article 347 § 2 of the Criminal Code.

On 6 August 2012 the Armavir Regional Court convicted the applicant of the offence defined in Article 347 § 2 of the Criminal Code and sentenced him to 1 year ’ s and 6 months ’ imprisonment. According to the Regional Court ’ s interpretation of that provision, the main objects protected by the offence were the interests of justice and the safety of persons conducting criminal proceedings. The Region al Court concluded that Article 347 § 2 of the Criminal Code was applicable irrespective of the stage of the criminal proceedings during which the applicant had uttered threats to the investigator in connection with the discharge of his official duties, as such threats diminished the interests of justice and the safety of the persons conducting the criminal proceedings.

The applicant appealed against that judgment.

On 20 September 2012 the Criminal Court of Appeal rejected the applicant ’ s appeal and upheld the judgment of the Regional Court.

The applicant lodged an appeal on points of law.

On 26 November 2012 the Court of Cassation declared the applicant ’ s appeal on points of law inadmissible for lack of merit.

B. Relevant domestic law

Article 347 of the Criminal Code (in force since 2003) prescribes:

“1. Uttering threats to cause death, bodily harm or destruction of or damage to property to a judge or his next of kin, in connection with the examination of a case or case-file material in court, shall be punishable by a fine in the amount of three to five hundred times the monthly minimum salary or by imprisonment for a term of up to three years.

2. The same act committed against ... an investigator... or his next of kin in connection with conducting an investigation... shall be punishable by a fine in the amount of two to four hundred times of the monthly minimum salary or detention for a term of one to three months or imprisonment for a term of up to two years”

Article 192 § 1 of the Code of Criminal Procedure (in force since 1999), which is entitled “Commencement of investigation”, provides:

“An investigation shall be conducted only after a decision to institute criminal proceedings has been taken.”

COMPLAINT

The applicant complains under Article 7 of the Convention that he was convicted under Article 347 § 2 of the Criminal Code for an act which, at the material time, did not constitute an offence under that provision because penalty which it prescribed related to uttering threats to an investigator in connection with the conduct of an investigation, whereas in his case no criminal proceedings had been instituted and therefore no official investigation was being carried out.

QUESTION TO THE PARTIES

Was the applicant ’ s conviction under Article 347 § 2 of the Criminal Code compatible with the requirements of Article 7 of the Convention (see, for example, Vasiliauskas v. Lithuania [GC], no. 35343/05, §§ 153-155, 20 October 2015)? In particular, was it foreseeable for the applicant that at the material time, uttering threats to the investigator ‒ in a situation where no criminal proceedings or formal investigation had yet been instituted ‒ constituted an offence under Article 347 § 2 of the Criminal Code?