THIRD SECTION

Application no . 28739/09 Grigor VOSKERCHYAN against Armenia lodged on 17 September 2009

STATEMENT OF FACTS

The applicant, Mr Grigor Voskerchyan , is an Armenian national, who was born in 1956 and lives in Yerevan . He is represented before the Court by Mr S. Voskanyan , 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 . According to the applicant, during the elections he was the head of the main opposition candidate ’ s ele ction headquarters in Abovyan .

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

The applicant alleges that on 1 March 2008 he was in the area where the clashes took place but left at about 9.30 p.m. and went home with his wife and some of his friends.

On 8 March 2008, at 3 p.m., the Head of Abovyan Police Department telephoned the applicant suggesting that he visit the police station as he wanted to have a talk with him. Later the same day the applicant visited the police station. After having a short conversation with the Head of the Police Department the applicant was taken to the office of another police officer where an explanatory statement was taken from him. In particular, the applicant was asked about the leaflets he had prepared and distributed among the participants in the mass events. According to the applicant he was kept at the police station without any explanation until 8 p.m. At approximately 8 p.m., the applicant was taken to the General Prosecutor ’ s Office.

On 8 March 2008, at 11.50 p.m., a record of the applicant ’ s arrest was drawn up. According to the applicant, the record was drawn up much later, at 1.30 a.m. on 9 March 2008. The applicant signed the record without any further remarks related to the drafting time.

On 8 March 2008 several witnesses were questioned by the police about the applicant ’ s role in preparing the leaflets that had been distributed among the participants in the mass events.

On 11 March 2008, within the scope of the main criminal case, the applicant was formally charged under Article 225 § 1 of the Criminal Code (hereafter – “the CC”). This decision stated that the applicant had incited and organised, together with others, mass disturbances which took place from 1 to 2 March 2008 in Yerevan and were accompanied by 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 11 March 2008 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 ground that, if he remained at large, he could abscond, obstruct the pre-trial or trial proceedings, commit another offence, evade responsibility and punishment and continue to breach public order.

The applicant submitted before the court that the motion had to be dismissed since the investigating authority had not mentioned any proper grounds for considering that he might abscond or commit other unlawful acts. What had to be taken into account was that he had a good reputation, was a former member of parliament and mayor of the city of Abovyan , had a permanent residence and was in poor health. He filed a motion requesting to be released on bail.

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 8 May 2008. In doing so, it took into account the nature and gravity of the imputed offence and the severity of the punishment envisaged for it. By the same decision the District Court refused the applicant ’ s request for bail.

On 14 March 2008 the applicant lodged an appeal seeking to cancel the detention order and claiming that the investigating authority had not obtained any materials or evidence to substantiate the reasons for which it had sought to detain him. In fact, he had never given a speech at demonstrations or incited any public disorder.

On 21 March 2008 the Criminal Court of Appeal decided to dismiss the applicant ’ s appeal. In particular, the court found that the fact that the applicant had been accused of a grave offence punishable by up to ten years ’ imprisonment increased the probability of his evading criminal liability and punishment. Furthermore, it was unacceptable to release the applicant on bail in view of the fact that if he remained at large, the applicant could abscond, obstruct the pre-trial or trial proceedings, commit another offence, evade responsibility and punishment and continue to breach public order.

As to the applicant ’ s good character, mentioned by him in his appeal, this was not sufficient to justify lifting the detention order.

On 28 April 2008 the investigator sought to have the applicant ’ s detention extended by a further two months. The application stated that a number of investigative actions had been carried out during the investigation, including examinations, searches and seizures. The examinations included chemical and biological examinations and an examination of the traces left by the crime. However, additional confrontations and other necessary investigative actions had to be carried out. The investigator argued that the applicant, if released, would abscond since he had committed a serious crime, obstruct the pre-trial or trial proceedings, commit another offence and evade responsibility and punishment.

On 4 May 2008 the District Court granted the investigator ’ s application.

On 8 May 2008 the applicant lodged an appeal against the decision of the District Court. He objected to the investigator ’ s application and asked the court to release him since there was no reasonable suspicion that he had committed an offence. According to the applicant, despite dozens of investigative actions being carried out and more than seventeen people being questioned, the investigative authorities had failed to obtain sufficient evidence of his guilt. Moreover, the District Court did not take into account his good character.

On 19 May 2008 the Criminal Court of Appeal upheld the decision of the District Court. It stated that the investigating authority had submitted certain evidence substantiating the applicant ’ s guilt which confirmed his involvement in the event. Thus, there was a reasonable suspicion that the applicant had committed an offence. The Court of Appeal motivated the need to extend the applicant ’ s detention by the dangerous nature and gravity of the alleged offence, the fact that the applicant might evade responsibility and punishment and the need to carry out additional investigative actions.

On 12 June 2008 the applicant ’ s lawyer filed a motion with the investigating authorities seeking to have the applicant ’ s detention lifted, taking into account the personal guarantees given by six members of parliament for the applicant ’ s proper conduct. This motion was dismissed by the investigating authorities on 25 June 2008.

On 18 June 2008 an additional examination of the applicant was carried out.

On 28 June 2008 the investigator lodged an application seeking to have the applicant ’ s detention extended by two months on the same grounds as before.

It appears that six members of parliament filed a statement with the District Court, giving their personal guarantees for the applicant ’ s proper conduct and requesting that no detention be imposed.

On 2 July 2008 the District Court examined the investigator ’ s application and granted it on the same grounds as before.

On 7 July 2008 the applicant lodged an appeal.

On 18 July 2008 the Court of Appeal dismissed the applicant ’ s appeal. In dismissing the applicant ’ s argument about the lack of a reasonable suspicion, the Court of Appeal found that his involvement in the imputed acts was substantiated by evidence, such as various testimony, identifications, confrontations, records and expert opinions. As to the reasons given by the District Court, the Court of Appeal found these to be justified.

On 7 August 2008 the applicant lodged an appeal on points of law.

On 5 September 2008 the Court of Cassation left the applicant ’ s appeal unexamined for lack of merit.

On 28 August 2008 the investigator lodged an application seeking to have the applicant ’ s detention extended by two more months. In addition to the grounds submitted in his previous applications, he substantiated the new one by the need to modify the applicant ’ s charges.

On 29 August 2008 the investigator modified the charges against the applicant and brought new charges against him under Articles 225 § 3 and 300 § 1 of the CC.

On 3 September 2008 the District Court decided to grant the motion ordering the applicant ’ s detention for a period of two months, until 8 November 2008.

The applicant alleges that he lodged an appeal against this decision which was dismissed by the Court of Appeal on 19 September 2008.

On 28 October 2008 the investigator sought to have the applicant ’ s detention extended for a further two months. In addition to the grounds submitted in his previous applications, the investigator justified the new one by the need to provide the applicant and his lawyers with additional time for consulting the materials of the case.

On 30 October 2008 the District Court decided to grant the investigator ’ s motion. The applicant lodged an appeal against this decision which was dismissed by the Court of Appeal on 16 November 2008.

On 1 December 2008 the indictment was concluded and the applicant ’ s criminal case was sent to the court for trial. On the same day the Criminal Court of Yerevan admitted the case to its proceedings and on 10 December 2008 decided to set the case down for trial. By the same decision the Criminal Court also decided to keep the applicant ’ s measure of restraint, namely 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 and to proceed with the examination of charges under Article 225 § 1 of the CC .

On an unspecified date the prosecutor decided to drop the charge under Article 316 § 2 of the CC.

On 22 June 2009 the District Court found the applicant guilty as charged, imposing a two-year sentence. It further decided to absolve the applicant from serving his sentence under a general amnesty declared by the Armenian parliament on 19 June 2009. The applicant was immediately released from detention.

B. Relevant domestic law

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

The relevant provisions of the Code, as in force at the material time, prescribed as follows.

Article 225 § 1 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. Article 225 § 3 prescribed that the acts envisaged by the first paragraph, if involving murder, were punishable by imprisonment for a period from six to twelve years.

Article 300 § 1 prescribed that usurpation of State power, namely activities aimed at violently seizing or holding on to State power in violation of the Armenian Constitution, violently overthrowing the constitutional order of Armenia or violently violating the territorial integrity of Armenia was punishable by imprisonment for a period from ten to fifteen years.

The relevant provisions of the Code, following the amendments introduced on 18 March 2009, prescribe as follows.

Article 225 § 1 prescribes that organising mass riots shall be punishable by imprisonment for a period from four to ten years. According to Article 225 § 5, for the purposes of this Code mass riots shall include actions by more than one person involving violence, pogroms, arson, destruction or damage of property, use of firearms, explosives or explosive devices, or armed resistance to a public official and posing a danger to public safety.

Article 300 prescribes that seizure of power by force or by threat of use of force, as well as seizure of powers of the President, the National Assembly, the Government and the Constitutional Court through other unconstitutional means, shall be punishable by imprisonment for a period from ten to fifteen years.

2. For other relevant domestic provisions 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 5 §§ 1 (c) and 3 of the Convention that

(a ) he was unlawfully deprived of his liberty from 3 a.m. to 1.30 p.m. on 8 March 2008;

(b) his arrest and detention were not based on a reasonable suspicion;

(c) the courts, when ordering and extending his detention, failed to adopt reasoned decisions, which resulted in his unjustified and lengthy detention.

2. The applicant complains under Article 3 that from 3 a.m. to 1.30 p.m. on 8 March 2008 he was detained without any food and water and that he was un lawfully charged and detained.

3 . The applicant complains under Article 6 that the domestic courts acted in an arbitrary manner since they granted all the applications lodged by the investigator seeking to have the applicant detained or the length of the detention extended.

4 . The applicant complains under Articles 10 and 11 of the Convention that his prosecution and continued detention were a form of concealed persecution for his political views and for having expressed his opinion .

QUESTION

Was the length of the applicant ’ s detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? In particular did the domestic courts provide “relevant” and “sufficient” reasons for the applicant ’ s detention, as required by Article 5 § 3 of the Convention?