THIRD SECTION

Application no. 46245/08 Masis AYVAZYAN against Armenia lodged on 12 September 2008

STATEMENT OF FACTS

The applicant, Mr Masis Ayvazyan , is an Armenian national, who was born in 1956 and lives in Jrvezh . 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, an opposition party member, held various senior posts within the Ministry of Internal Affairs in the mid-1990s.

On 19 February 2008 a presidential election was held in Armenia . The main contenders were the then Prime Minister, Serzh Sargsyan , and the main opposition candidate, Levon Ter-Petrosyan . According to the applicant, during the election he was a head of Levon Ter-Petrosyan ’ s regional election headquarters.

It appears that immediately after the election, Levon Ter-Petrosyan announced that the election had not been free and fair. From 20 February 2008 onwards protest rallies were held by thousands of Levon Ter ‑ Petrosyan ’ s 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 on-going demonstrations and sit-ins.

On 24 February 2008 the Central Election Commission announced that Prime Minister Sargsyan had won the election.

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

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 numerous injured and a state of emergency being declared.

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 (hereafter the main criminal case).

3. The criminal proceedings against the applicant

In the early morning of 1 March 2008 the applicant was at Freedom Square when the clashes between the police and the demonstrators began. He was then taken to a police station, where he arrived at 7.30 a.m.

On 2 March 2008, at 12.10 a.m., a record of the applicant ’ s arrest was drawn up.

On 3 March 2008, within the scope of the main criminal case, the applicant was formally charged under Article 225.1 § 2 and Article 316 § 2 of the Criminal Code (the CC). This decision stated that the applicant had organised and conducted from 20 February 2008 onwards, together with Levon Ter-Petrosyan and others, unlawful public events, mass demonstrations, 24-hour long rallies, pickets and sit-ins which disturbed the normal functioning of the capital, the traffic, public and private institutions as well as the peace and quiet of the population. Thereafter, on 1 March 2008 at around 6 a.m., when police officers demanded the demonstrators gathered at Freedom Square to allow them to check the veracity of the information that the demonstrators had arms and ammunition and once again warned them to end the unlawful event, he and other demonstrators, disobeying their lawful orders, used violence dangerous to one ’ s life and health on police officers who were carrying out their official duties.

On 4 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 continue his criminal activities, abscond, obstruct the pre-trial or trial proceedings, commit another offence, evade responsibility and punishment. In this respect, the investigator indicated that the applicant was accused of a grave offence posing a great threat to the general public and that he was not employed.

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 was a former lieutenant colonel, had a permanent place of residence, had three minor children and was known to be of good character.

On the same day, the District Court decided to grant the motion ordering the applicant ’ s detention for a period of two months, i.e. until 1 May 2008. In doing so, it found that the applicant, if he remained at large, might abscond and obstruct the investigation of the case by exerting unlawful pressure on the persons involved in the criminal proceedings.

On 10 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. To the contrary, he was a former high-ranking police officer, a law-abiding person who enjoyed trust and respect in society.

On 21 March 2008 the Criminal Court of Appeal decided to dismiss the app licant ’ s appeal. In particular, the Court of Appeal found that the fact that the applicant had been accused of a grave offence punishable by up to ten y ear ’ s imprisonment increased the probability of his evading criminal liability and punishment and was sufficient to conclude that the applicant, if he remained at large, might commit a new offence, that is, there was a necessity to prevent the commission of a new offence and to maintain public order. As to the applicant ’ s good character, mentioned by him in his appeal, this was not sufficient for lifting the detention order.

On 23 April 2008 the charges against the applicant were modified and a new charge against him was brought under Article 375 § 1 of the CC. In particular, the investigative authority found that the violence used by the applicant against the police officers had to be classified as not dangerous to one ’ s life or health. On the same day the applicant ’ s case was disjoined from the main criminal case.

On 29 April 2008 the indictment was concluded and the applicant ’ s criminal case was sent to the court for trial. On the same day the Kentron and Nork-Marash District Court of Yerevan admitted the case to its proceedings.

On 13 May 2008, the District Court decided to set the case down for trial in which it also ruled to leave the applicant ’ s measure of restraint, i.e. detention, unchanged.

On 11 June 2008 the Kentron and Nork-Marash District Court found the applicant guilty under Article 316 § 1 of the CC for using violence against police officers and sentenced him to a suspended term of one and a half years ’ imprisonment. According to the applicant, he was then released from the court room.

B. Relevant domestic law

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

Article 316 § 1 prescribes that inflicting violence or threatening to inflict violence, not dangerous for life or health, on a public official or his next-of-kin, connected with the performance of his official duties, shall be punishable by a fine of between 300 and 500 times the minimum wage or detention of up to one month or imprisonment for a period not exceeding five 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 5 §§ 1 (c) and 2 of the Convention that his arrest and detention were not based on a reasonable suspicion; his arrest was unlawful; he was not promptly informed of the reasons for his arrest; and his pre-trial detention from 1 May until 13 May 2008 was unlawful as not based on a court decision.

2 . The applicant further complains under Article 5 § 3 of the Convention that the authorities failed to provide relevant and sufficient reasons justifying his detention.

3. The applicant also complains under Articles 10 and 11 of the Convention that on 20 March 2009 the authorities dispersed peaceful and lawful demonstrations and that his detention was imposed as a punishment for expressing his political ideas and participating in opposition demonstrations.

QUESTION TO THE PARTIES

Was the applicant ’ s deprivation of liberty from 1 May until 13 May 2008 lawful within the meaning of Article 5 § 1 of the Convention (see Piruzyan v. Armenia , no. 33376/07 , §§ 52-64, ECHR 2012 (extracts) )?