THIRD SECTION

Application no . 1879/10 Sasun MIKAYELYAN against Armenia lodged on 25 December 2009

STATEMENT OF FACTS

The applicant, Mr Sasun Mikayelyan , is an Armenian national who was born in 1957 and lives in Yerevan. He is represented before the Court by Mr M. Shushanyan , a lawyer practising in Yerevan.

A. The circumstances of the case

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

1. The 19 February 2008 presidential election in Armenia and post ‑ election demonstrations

The applicant was a member of parliament at the material time.

On 19 February 2008 a presidential election was held in Armenia.

It appears that immediately after the election, protest rallies were held by thousands of opposition supporters, the main meeting place for them being the central Freedom Square in Yerevan and the surrounding park (known as Opera Square ). It appears that a few hundred demonstrators stayed in that area around the clock, having set up tents. According to the applicant, he regularly attended the ongoing demonstrations and sit-ins.

2. The events of 1 March 2008 and institution of criminal proceedings

On 1 March 2008, apparently at some point between 6 and 7 a.m., police forces arrived on Freedom Square . It appears that clashes took place between the police and the demonstrators, who were forced out of the square.

On the same date criminal proceedings were instituted for organising and holding unauthorised mass public events, making calls inciting to disobey the decisions ordering an end to the unauthorised events, illegal possession and carrying of weapons, and using violence, dangerous to life, against police officers who were carrying out their official duties.

It appears that some of the demonstrators, who had fled Freedom Square , relocated to the area surrounding the French Embassy and the Yerevan Mayor ’ s Office.

It appears that later that day the violence escalated and more clashes took place in Yerevan between the law enforcement authorities and the opposition supporters. The clashes continued until late at night, resulting in ten deaths and many injured.

On 2 March 2008 another set of criminal proceedings was instituted for organising mass disorder resulting in violence and casualties, and illegal possession and carrying of weapons.

On the same day the first criminal case was joined to the second one (hereinafter the main criminal case).

3. The criminal proceedings against the applicant

On 4 March 2008 the General Prosecutor applied to the Armenian parliament for an authorisation to bring charges against the applicant and to have him and three other members of parliament detained. This request stated that there was sufficient evidence justifying detention, including the risk of absconding and obstructing justice.

On the same date the Armenian Parliament granted the General Prosecutor ’ s request.

On 5 March 2008 the applicant was formally charged under Articles 225 § 3 and 300 § 1 of the Criminal Code (“the CC”) within the scope of the main criminal case. This decision stated that, after the opposition candidate lost at the presidential election of 19 February 2008, the applicant joined his group of supporters and, having conspired with them to usurp State power in violation of the constitutional order, actively participated in carrying out activities for that purpose. The applicant, three other members of parliament and a number of other opposition supporters of the above-mentioned goals incited and organised mass riots which took place in Yerevan on 1 and 2 March 2008 and involved mass violence, pogroms, arson, destruction and damage of public and private property, armed resistance to public officials, effected with the use of firearms, explosives and other adapted objects, as well as murder.

On the same day a search was declared for the applicant and an application was filed by the investigator, seeking to have the applicant detained.

On the same date, the Kentron and Nork-Marash District Court of Yerevan granted this motion in the applicant ’ s absence and ordered his detention for a period of two months. On 6 May, 7 July and 7 November 2008 the same court further extended the applicant ’ s detention, on each occasion by two months.

On 10 March 2008 searches were conducted of the premises belonging to the applicant. According to the applicant nothing illegal was found during the searches.

On 12 March 2008 the applicant was arrested by officers of the National Security Service.

It appears that on the same day a search was conducted in the restaurant belonging to the applicant, during which some ammunition and firearms were found and seized. On the same day new charges were brought against the applicant under Article 235 of the CC for illegal possession of firearms.

On 13 March 2008 the applicant was questioned by the investigator. He did not admit his guilt for charges brought under Articles 225 § 3 and 300 § 1 of the CC and refused to testify.

On 12 June 2008 an additional charge was brought against the applicant under Article 235 § 2 of the CC for illegal possession of firearms committed in a group.

On 29 August 2008 the charge under Article 235 § 2 of the CC was modified and new charge was brought against him under Article 235 §§ 1 and 2 of the CC.

During the investigation concerning the applicant ’ s case the investigative authority questioned several witnesses, including E.K., Y.M., A.M., R.B., Geg.A ., N.G., V.S., G.A., T.K. and V.S. According to their witness testimony, the applicant had been one of the organisers of, and an active participant in the events following the presidential election.

On 1 December 2008 the bill of indictment was finalised and the case was sent to court.

On the same day the Yerevan Criminal Court decided to set the case down for trial and to keep the applicant in detention on the same grounds.

On 9 December 2008 the applicant ’ s lawyer applied to the Criminal Court seeking termination of the applicant ’ s prosecution and his release.

The Criminal Court adjourned the examination of the application for the termination of the applicant ’ s prosecution and decided to leave the applicant ’ s detention unchanged.

On an unspecified date, following changes in the procedural law, the case was transmitted to the Kentron and Nork-Marash District Court of Yerevan for examination.

On 18 March 2009 amendments were introduced in Articles 225 and 300 of the CC: Article 225 § 3 was repealed, while the substance of Article 300 § 1 was modified.

On 31 March 2009 the prosecutor decided to drop and modify part of the charges against the applicant in view of the above amendments. In particular, the charge under Article 300 § 1 was dropped since the substance of that provision had been modified and as a result could not be applied retroactively. The charge under Article 225 § 3 was replaced with a charge under Article 225 § 1 in view of the abolition of that provision.

On 1 April 2009 the District Court decided to terminate the proceedings under Article 300 § 1 for lack of corpus delicti .

On the same day the District Court decided to detach the applicant ’ s case in separate proceedings and to transfer it to the Kotayk Regional Court for further trial.

On 7 April 2009 the Regional Court took over the case and scheduled the first hearing on 22 April 2009. By the same decision the Regional Court left the applicant ’ s detention unchanged.

About sixteen witnesses were on the list of prosecution witnesses to be called. During their questioning before the Regional Court witnesses E.K., Y.M., A.M., R.B., Geg.A . and N.G retracted the statements they had given to the investigating authority claiming that these had been either guided or dictated by the investigator or extracted by torture or intimidation.

It appears that during the trial the applicant and his lawyer started the examination of witness G. A. After responding to several questions the witness asked for questioning to be suspended as he felt unwell. As there were no objections by the parties, the judge rescheduled the hearing for 28 April 2009. At the hearing of 28 April 2009 the applicant ’ s lawyer applied for witness G.A. to be present, relying on the fact that he had had no opportunity to question him. It appears that the witness submitted written statements to the court claiming that he had been intimidated by the applicant ’ s relatives and forced to retract his pre-trial statements.

It appears that the police were unable to secure the presence of G.A. and finally the judge decided to exempt him from the obligation to testify.

It appears that on 6 May 2009 the Regional Court judge decided to compel witnesses T.K. and V.S. to appear, given that they had failed to appear before the court without any valid reason. According to the applicant, at the hearing of 12 May 2009 the applicant ’ s lawyer asked to examine T.K, who attempted to gain access to the court premises, but was refused entry by the security officers. The applicant ’ s lawyer demanded the presence of T.K. and refused to continue the trial in his absence. According to the applicant, this incident was not recorded by the Regional Court. Subsequently, neither T.K. nor V.S. appeared before the court and the judge read out their pre-trial statements.

It appears that during the trial the applicant and his lawyer lodged several requests to summon and question the Head of the Special Investigatory Service, A.M., whom, according to the applicant, he had voluntarily informed about the place and the quantity of the hidden ammunition and firearms. According to the applicant, all these requests were dismissed by the trial court.

On 22 June 2009 the Regional Court acquitted the applicant under Article 235 § 1 of the CC and found him guilty under Articles 225 § 1 and 235 § 2 of the CC, imposing an eight-year sentence. In doing so the Regional Court relied on the statements given to the investigating authorities by witnesses Y.M., A.M., R.B., Geg.A . and E.K. as being more reliable.

On 22 July 2009 the applicant lodged an appeal against the judgment of the Regional Court claiming, inter alia, that his right under Article 6 § 3 (d) had been violated since he had been deprived of his right to question witnesses against him.

On 31 July 2009 the Criminal Court of Appeal dismissed the applicant ’ s appeal and upheld the judgment of 22 June 2009.

On 30 August 2008 the applicant lodged an appeal on points of law against the judgment of the Court of Appeal.

On 10 September 2009 the Court of Cassation declared the applicant ’ s appeal inadmissible for lack of merit.

B. Relevant domestic law

For the relevant domestic provisions and international documents see the Statement of Facts in the case of Saghatelyan v. Armenia, no. 23086/08, communicated on 30 November 2010.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the domestic courts did not evaluate the evidence properly. In particular, in finding him guilty they relied as evidence on the witness statements made during the investigation, despite the fact that during the trial those witnesses, namely witnesses E.K., Y.M., A.M., R.B., Geg.A . and N.G. had retracted their witness statements as false and made under intimidation.

2. The applicant complains under Article 6 § 3(d) of the Convention that:

(a) he was unable to summon and question the witnesses against him, namely T.K. and V.S. The trial court relied in its judgment on their statements given during the investigation.

(b) he was unable to question properly witness G.A. since he failed to appear before the court and the trial court failed to take any steps to secure his attendance.

(c) he was not allowed to summon to the trial a witness on his behalf, namely the Head of the Special Investigatory Service, A.M.

3. The applicant complains under Articles 10 and 11 of the Convention that his prosecution and conviction were in breach of his right to freedom of expression and freedom of peaceful assembly as he was punished by the authorities for his opposition activism and parti cipation in opposition rallies.

4. The applicant complains under Article 14, in conjunction with Articles 6, 10 and 11 of the Convention, that he was discriminated against on the basis of his political views because the true reason behind his prosecution and conviction was his adherence to the political opposition .

QUESTIONS TO THE PARTIES

1. Did the use by the Kotayk Regional Court of the pre-trial witness statements of witnesses E.K., Y.M., A.M., R.B., G.A. and N.G. as incriminatory evidence against the applicant violate the applicant ’ s right to a fair trial, as guaranteed by Article 6 § 1 of the Convention?

2. Did the applicant have a fair hearing in the determination of the criminal charge against him within the meaning of Article 6 §§ 1 and 3 (d) of the Convention? In particular:

a) was he given an opportunity to examine the witnesses against him, namely G.A., T.K. and V.S?

b) did the refusal of the domestic courts to grant his motions to call A.M. as defence witness violate his right to obtain the attendance and examination of witnesses on his behalf?

3. Did the applicant ’ s prosecution and subsequent conviction amount to an interference with his rights to freedom of expression and freedom of peaceful assembly as protected by Articles 10 and 11 of the Convention? If so, did such interference comply with the requirements of Articles 10 § 2 and 11 § 2 of the Convention?

4. Did the applicant, by being prosecuted and convicted, fall victim to discrimination on the basis of his political opinion, in violation of the guarantees of Article 14 of the Convention ?