I correctly predicted that there was a violation of human rights in AYVAZYAN v. ARMENIA.

Information

  • Judgment date: 2018-10-18
  • Communication date: 2012-11-27
  • Application number(s): 46245/08
  • Country:   ARM
  • Relevant ECHR article(s): 5
  • Conclusion:
    Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
    Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)
  • Result: Violation
    • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.689361
  • Prediction: Violation

  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

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 applicant’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 year’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.

Judgment

FIRST SECTION

CASE OF AYVAZYAN v. ARMENIA

(Application no. 46245/08)

JUDGMENT

STRASBOURG

18 October 2018

This judgment is final but it may be subject to editorial revision. In the case of Ayvazyan v. Armenia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Kristina Pardalos, President,Ksenija Turković,Tim Eicke, judges,and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 25 September 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 46245/08) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Masis Ayvazyan (“the applicant”), on 12 September 2008. 2. The applicant was represented by Mr M. Shushanyan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia to the European Court of Human Rights. 3. On 27 November 2012 the complaint concerning the alleged unlawfulness of the applicant’s detention between 1 and 13 May 2008, and on 21 February 2017 the complaint concerning the alleged lack of relevant and sufficient reasons for the applicant’s detention, were communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1956 and lives in Jrvezh. 5. On 19 February 2008 a presidential election was held in Armenia, which was followed by daily protest rallies held at Yerevan’s Freedom Square from 20 February onwards by the supporters of the main opposition candidate. On 1 March 2008 the assembly at Freedom Square was dispersed by the police. The applicant, who was present at Freedom Square at that time, was arrested and later charged under Article 316 § 1 of the Criminal Code (CC) with assaulting police officers. 6. On 4 March 2008 the Kentron and Nork-Marash District Court of Yerevan ordered the applicant’s pre-trial detention for a period of two months, namely until 1 May 2008, on the ground that the applicant, if at large, might abscond and obstruct the investigation by exerting unlawful influence on the persons involved in the criminal proceedings. 7. On 10 March 2008 the applicant lodged an appeal, arguing that there was no evidence to substantiate the need for his detention. He was a former high-ranking police officer and a law-abiding citizen who enjoyed trust and respect in society. 8. On 21 March 2008 the Criminal Court of Appeal dismissed the appeal, finding that the fact that the applicant was accused of a grave offence punishable by up to ten years’ imprisonment increased the probability of his evading criminal liability and punishment and was sufficient to conclude that the applicant, if at large, might commit a new offence. As to the applicant’s good character, mentioned by him in his appeal, this was not sufficient for lifting the detention order. 9. On 29 April 2008 the indictment was finalised and the applicant’s case was sent to court for trial. The applicant remained in detention by virtue of Article 138 § 3 of the Code of Criminal Procedure (CCP). 10. On 13 May 2008 the District Court decided to set the case down for trial, ruling in the same decision that the applicant’s detention was to remain unchanged. That decision was not subject to appeal. 11. On 11 June 2008 the District Court found the applicant guilty under Article 316 § 1 of the CC of assaulting police officers and sentenced him to a suspended term of one and a half years’ imprisonment. II. RELEVANT DOMESTIC LAW
12. For a summary of the relevant domestic provisions see the judgments in the cases of Poghosyan v. Armenia (no. 44068/07, §§ 26-41, 20 December 2011) and Ara Harutyunyan v. Armenia (no. 629/11, §§ 30‐32, 20 October 2016). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
13. The applicant complained that his detention between 1 and 13 May 2008 had not been authorised by a court and had therefore been unlawful. He relied on Article 5 § 1 of the Convention which, in so far as relevant, reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...”
A. Admissibility
14. The Government submitted that the applicant had failed to exhaust the domestic remedies. In particular, he had not applied to either the administration of the detention facility or the trial court with a request to be released on the ground that his detention was unlawful. He had also failed to raise that issue in his appeals lodged with the Criminal Court of Appeal and the Court of Cassation against his conviction of 11 June 2008 by the District Court. 15. The Government further submitted that this complaint should be declared inadmissible because the applicant had not suffered a significant disadvantage. They argued, in particular, that the issue in question was of no subjective significance for the applicant, taking into account his inactive conduct at the domestic level in respect of the detention in question. 16. The applicant did not comment on the Government’s claims. 1. As regards non-exhaustion of domestic remedies
17. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 et al., ECHR 2010). The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 (extracts)). It is incumbent on the Government claiming non‐exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Kennedy v. the United Kingdom, no. 26839/05, § 109, 18 May 2010). Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999‐V). 18. The Court notes that in all the cases referred to by the Government, in which the applicants had lodged requests for release with the administration of the detention facility or the trial court on the ground that their detention, as authorised by a court, had expired and was no longer lawful, the requests in question produced no results and were systematically refused by the said authorities with a mere reference to Article 138 § 3 of the CCP (see Poghosyan, cited above, §§ 15, 17, 18 and 21; Piruzyan v. Armenia, no. 33376/07, §§ 27-29, 26 June 2012; and Malkhasyan v. Armenia, no. 6729/07, §§ 38-39, 26 June 2012). It therefore cannot be said that the remedies in question offered reasonable prospects of success and were effective. As regards the argument that the applicant had failed to raise the question of alleged unlawfulness of his detention in his appeals against his conviction, the Court notes that the appeals in question are of no relevance for the applicant’s complaint under Article 5 § 1 of the Convention since they did not concern his detention but rather his conviction at first instance. In sum, there are no grounds to allow the Government’s non-exhaustion objection. 2. As regards the absence of a “significant disadvantage”
19. As regards the Government’s claim that the applicant had not suffered a significant disadvantage, the Court reiterates that this admissibility criterion hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed, taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case (see Bannikov v. Latvia, no. 19279/03, § 57, 11 June 2013). 20. The Court notes that the present complaint concerns the applicant’s detention between 1 and 13 May 2008 which, as he alleged, was unlawful. It therefore concerns a matter of principle for the applicant, namely his right under Article 5 § 1 of the Convention not to be deprived of his liberty (see, mutatis mutandis, Čamans and Timofejeva v. Latvia, no. 42906/12, § 80, 28 April 2016). The Court has reiterated on many occasions the importance of personal liberty in a democratic society (see Storck v. Germany, no. 61603/00, § 102, ECHR 2005‐V, and Stanev v. Bulgaria [GC], no. 36760/06, § 120, ECHR 2012). The fact that the applicant did not pursue remedies which, as already noted above, had no prospects of success does not suggest that the matter was of no significance to the applicant. The Court therefore considers that it has not been established that the applicant has not suffered a significant disadvantage and dismisses the Government’s objection. 21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
22. The applicant submitted that his detention between 1 and 13 May 2008 had not been authorised by a court as required by law and had therefore been unlawful. During that period he had been kept in detention by virtue of Article 138 § 3 of the CCP, which could not be considered as a valid and lawful ground. 23. The Government did not submit any observations on the merits. 24. The Court notes that it has already examined an identical complaint in another case against Armenia, in which it concluded that there had been a violation of Article 5 § 1 of the Convention in that the applicant’s detention had not been based on a court decision and had therefore been unlawful within the meaning of that provision (see Poghosyan, cited above, §§ 56‐64). It sees no reason to reach a different conclusion in the present case and concludes that the applicant’s detention between 1 and 13 May 2008 was unlawful within the meaning of Article 5 § 1. 25. There has accordingly been a violation of Article 5 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
26. The applicant complained that the domestic courts had failed to provide relevant and sufficient reasons for his detention. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows:
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
A. Admissibility
27. The Government submitted that the applicant had failed to exhaust the domestic remedies. Firstly, he had not lodged an appeal on points of law against the decision of the Criminal Court of Appeal of 21 March 2008, a right which he enjoyed under Article 403 of the CCP. Secondly, after the trial court decided on 13 May 2008 to set the case down for trial and to keep the applicant in detention, he had the right under Article 136 of the CCP to lodge a request for release on bail which he had failed to do (see Martirosyan v. Armenia, no. 23341/06, § 44, 5 February 2013). 28. The applicant, referring to the case of Grigoryan v. Armenia (no. 3627/06, §§ 71-73 and 113-114, 10 July 2012), submitted that an appeal on points of law was not an available and effective remedy. 29. The Court notes, as far as the Government’s first argument is concerned, that it has already examined and dismissed a similar objection in another case against Armenia (see Arzumanyan v. Armenia, no. 25935/08, §§ 28-32, 11 January 2018). It sees no reason in the present case to depart from its earlier findings. As regards the Government’s second argument, the Court notes that, as opposed to the case of Martirosyan in which the applicant had spent nearly two years in detention during trial without ever requesting the trial court to release him on bail (see Martirosyan, cited above, § 45), in the present case the applicant’s detention during trial lasted less than a month, namely between 13 May and 11 June 2008. He had previously, on 10 March 2008, appealed against the trial court’s decision to detain him, while the decision of 13 May 2008 was not subject to appeal. The fact that the applicant did not lodge a request for release on bail during that short period is not sufficient for the Court to conclude that he failed to exhaust the domestic remedies in respect of his complaint under Article 5 § 3 of the Convention. It therefore dismisses the Government’s objection of non-exhaustion. 30. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
31. The applicant submitted that the courts had failed to provide relevant and sufficient reasons for his detention. 32. The Government argued that the courts had provided relevant and sufficient reasons for the applicant’s detention, such as the risk of absconding, obstructing the investigation and committing a new offence. 33. The Court refers to its general principles under Article 5 § 3 of the Convention relating to the right to be released pending trial (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 92-102, ECHR 2016 (extracts), and Ara Harutyunyan, cited above, §§ 48-53) and notes that it has already found the use of stereotyped formulae when imposing and extending detention to be a recurring problem in Armenia (see, among other authorities, Piruzyan v. Armenia, no. 33376/07, §§ 97‐100, 26 June 2012; Malkhasyan v. Armenia, no. 6729/07, §§ 74-77, 26 June 2012; Sefilyan v. Armenia, no. 22491/08, §§ 88-93, 2 October 2012; and Ara Harutyunyan, cited above, §§54-59). In the present case, the domestic courts similarly justified the applicant’s continued detention with a mere citation of the relevant domestic legal principles and a reference to the gravity of the offence without addressing the specific facts of his case or providing any details as to why the risks of absconding, obstructing justice or reoffending were justified. The Court therefore concludes that the domestic courts failed to provide relevant and sufficient reasons for the applicant’s detention. 34. There has accordingly been a violation of Article 5 § 3 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
35. Lastly, the applicant raised a number of other complaints under Article 5 §§ 1 (c) and 2, Article 10 and Article 11 of the Convention. 36. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
37. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
38. The applicant claimed 10,000 euros (EUR) in respect of non‐pecuniary damage. 39. The Government submitted that the applicant had failed to provide any evidence that he had suffered non-pecuniary damage and requested the Court to reject his claim. 40. The Court considers that the applicant has undoubtedly sustained non-pecuniary damage on account of the breaches of the Convention found and awards the applicant EUR 4,500 in respect of non-pecuniary damage. B. Costs and expenses
41. The applicant did not claim any costs and expenses. C. Default interest
42. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint under Article 5 § 1 of the Convention concerning the alleged unlawfulness of the applicant’s detention between 1 and 13 May 2008 and the complaint under Article 5 § 3 of the Convention concerning the alleged failure of the domestic courts to provide relevant and sufficient reasons for his detention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 5 § 1 of the Convention;

3. Holds that there has been a violation of Article 5 § 3 of the Convention;

4. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non‐pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 18 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata DegenerKristina PardalosDeputy RegistrarPresident