THIRD SECTION

Application no . 51543/09 Karen TARKHANYAN against Armenia lodged on 17 September 2009

STATEMENT OF FACTS

The applicant , Mr Karen Tarkhanyan , is an Armenian national , who was born in 1981 and lives in Yerevan . He is represented before the Court by Ms Z. Budaghyan , 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

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.

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 one ’ s life, against police officers who were carrying out their official duties.

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

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 (herein after the main criminal case).

2 . The criminal proceedings against the applicant

According to the applicant , on 1 March 2008 at 12 noon, while driving in a car together with his mother near the French Embassy in Yerevan , he saw a crowd gathered in front of the embassy. Out of curiosity he pulled over and approached the crowd. He could not leave the scene , as his car was encircled by the crowd. For a while he lost his mother in the crowd and started looking for her. The applicant climbed up onto the roof of a truck parked in front of the embassy to get a better view.

According to the applicant , they left the area at 3 p.m. when it became possible to drive away from the crowd.

On 4 March 2008 , at 12.30 a.m. , the applicant ’ s car was stopped by the police. After an identity check he was forced into his car and driven to the police station.

The next day the applicant was confronted with two police officers who recognised the applicant as one of the active participants in the mass disorder.

On 5 March 2008 a record of the applicant ’ s arrest was drawn up. On 7 March 2008 , within the scope of the main criminal case , the applicant was formally charged under Article 225 § 2 of the Criminal Code. This decision stated that together with others , the applicant had been involved in the mass disturbances which took place on 1 to 2 March 2008 in Yerevan and included murders , large-scale violence , pogroms , arson, destruction of property and armed resistance to public officials , effected with the use of firearms , explosives and other adapted objects.

On the same day the applicant was brought before the Kentron and Nork ‑ Marash District Court of Yerevan which examined the investigator ’ s motion seeking to have the applicant detained for a period of two months.

On the same day the District Court decided to grant the motion ordering the applicant ’ s detention for a period of two months, that is until 5 May 2008. In doing so, it took into account the nature and the gravity of the imputed offence, the severity of the punishment envisaged for it and the fact that, if the applicant remained at large, he could abscond and obstruct the pre-trial and trial proceedings.

On 11 March 2008 the applicant lodged an appeal seeking to cancel the detention order.

On 21 March 2008 the Criminal Court of Appeal decided to dismiss the applicant ’ s appeal.

On 14 April 2008 the investigator decided to modify the charges against the applicant and brought a new, more serious charge against him under Article 225 § 1 of the Criminal Code .

On 18 April 2008 the indictment was concluded and the applicant ’ s criminal case was sent to the court for trial. Only the applicant and two police officers, E. G. and S. K., were summoned to give their statements before the Criminal Court of Yerevan.

In the proceedings before the Yerevan Criminal Court , police officers E. G. and S. K. submitted that , when performing their duty on Lusavorich street , in front of the French Embassy, they noticed the applicant , who was one of the active participants in the demonstration. They stated that the applicant was calling the demonstrators to public disobedience from the roof of a truck and was handing over metal sticks to them.

It appears that, in the proceedings before the Criminal Court, the applicant filed a motion requesting that several members of parliament, namely Z.P., A.M. and A. B., who allegedly were at the scene of the events, be called and examined as witnesses. He argued that the testimony of these witnesses, who were next to him in front of the French Embassy, would support his allegation that he had done nothing illegal.

It appears that the Yerevan Criminal Court dismissed the applicant ’ s motions.

On 10 June 2008 the Yerevan Criminal Court found the applicant guilty under Article 225 § 1 and sentenced him to four years ’ imprisonment.

The applicant ’ s guilt was established based on the statements of two police officers , E. G. and S. K. , a letter from the Deputy Chief of Police , according to which on 1 March 2008 the police officers , E. G. and S. K. , were on duty at the area surrounding the French Embassy, several expert opinions and inspection records.

On 2 July 2008 the applicant lodged an appeal. In his appeal he raised several arguments, including that the only witnesses in the case were police officers and that the principle of equality of arms had been violated since his request to call and examine witnesses on his behalf had been groundlessly dismissed.

It appears that during the appeal examination the applicant lodged a motion similar to the one lodged before the trial court seeking to summon Z.P., A.M. and A. B. as witnesses on his behalf.

On 24 July 2008 the Criminal Court of Appeal decided to dismiss the appeal, relying on the same evidence.

In December 2008 the applicant submitted a request for presidential pardon. By decision of 29 December 2008 the President of Armenia granted the applicant ’ s request and he was exempted from serving the sentence.

On 23 January 2009 the applicant lodged an appeal on points of law raising similar arguments to his appeal of 2 July 2008. On 25 February 2009 the Court of Cassation declared the applicant ’ s appeal inadmissible. Turning to the applicant ’ s complaint about the refusal of the lower courts to summon and examine Z.P. , A.M. and A.B. as witnesses , the Court of Cassation stated that the domestic courts were best placed to assess the relevance of evidence to the issues of the case. The Court of Cassation also mentioned that the applicant had failed to substantiate that his motions had been dismissed groundlessly.

The decision of the Court of Cassation was sent to the applicant on 18 March 2009.

B. Relevant domestic law

1. The Criminal Code (in force from 1 August 2003)

Article 225 § 1 of the Criminal Code, as in force at the material time, prescribed that organising mass riots which involved violence , pogroms , arson , destruction or damage of property , use of firearms , explosives or explosive devices, or armed resistance to a public official were punishable by imprisonment for a period from four to ten years.

2. For other 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 § 3 (d) of the Convention that his conviction was based solely on the witness statements of two police officers who allegedly had seen him at the scene of the events and he was not allowed to summon witnesses to the trial on his behalf.

2 . 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 partic ipation in an opposition rally.

QUESTION to the parties

Did the applicant have a fair hearing in the determination of the charge against him , as required by Article 6 § 3 (d) of the Convention? In particular , did the refusal of the domestic courts to grant the applicant ’ s motions to call Z.P. , A.M. and A.B. as witnesses on his behalf violate his right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him?