Last Updated on August 31, 2021 by LawEuro
The case concerns the applicant’s conviction for his involvement in the protest movement that followed the disputed presidential election of 19 February 2008 and raises issues under Articles 10, 11 and 14 of the Convention. Document in format: PDF, WORD.
FOURTH SECTION
CASE OF ARZUMANYAN v. ARMENIA
(Application no. 63845/09)
JUDGMENT
STRASBOURG
31 August 2021
This judgment is final but it may be subject to editorial revision.
In the case of Arzumanyan v. Armenia,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Tim Eicke, President,
Faris Vehabović,
Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 63845/09) 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, Aleksandr Arzumanyan (“the applicant”), on 2 November 2009;
the decision to give notice to the Armenian Government (“the Government”) of the complaints concerning the alleged interference with the applicant’s right to freedom of expression and freedom of peaceful assembly and his alleged discrimination on the basis of his political opinion, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 29 June 2021,
Delivers the following judgment, which was adopted on that date:
1. The case concerns the applicant’s conviction for his involvement in the protest movement that followed the disputed presidential election of 19 February 2008 and raises issues under Articles 10, 11 and 14 of the Convention.
THE FACTS
2. The applicant was born in 1959 and lives in Yerevan. He was represented by Mr V. Grigoryan, Mr P. Leach, Ms J. Gavron and Ms J. Evans of the European Human Rights Advocacy Centre (EHRAC) based in London, and Mr L. Simonyan, a lawyer practising in Yerevan.
3. The Government were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, Representative of the Republic of Armenia to the European Court of Human Rights.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. The 19 February 2008 presidential election and the post-election events
A. The presidential election and the demonstrations held between 20 February and 1 March 2008
5. On 19 February 2008 a presidential election was held in Armenia. The main contenders were the then Prime Minister, Mr Serzh Sargsyan, representing the ruling party, and the main opposition candidate, Mr Levon Ter-Petrosyan.
6. Immediately after the announcement of the preliminary results of the election, Mr Ter-Petrosyan called on his supporters to gather at Freedom Square in central Yerevan in order to protest against the irregularities which had allegedly occurred in the election process, announcing that the election had not been free and fair. From 20 February 2008 onwards, nationwide daily protest rallies were held by Mr Ter-Petrosyan’s supporters, their main meeting place being Freedom Square and the surrounding park. It appears that the rallies at Freedom Square attracted at times tens of thousands of people, while several hundred demonstrators stayed in that area around the clock, having set up a camp.
7. The applicant, who was a known political figure and a former minister of foreign affairs, acted as the head of Mr Ter-Petrosyan’s pre-election campaign and was actively involved in the post-election protests, regularly attending the demonstrations held at Freedom Square and giving speeches.
8. The Government alleged that the applicant and the group of opposition supporters whom he had joined had conspired to usurp State power and the assembly at Freedom Square had pursued that aim by discrediting the presidential election, creating illusions of public discontent and revolt and destabilising the internal political situation.
9. On 24 February 2008 the Central Election Commission announced that Mr Sargsyan had won the election with around 52% of all votes cast, while Mr Ter-Petrosyan received around 21% of votes.
10. On 29 February 2008 the rallies were still in full swing.
B. The events of 1-2 March 2008 and institution of criminal cases
11. On 1 March 2008, apparently at some point around 6-7 a.m., a police operation was conducted at Freedom Square where several hundred demonstrators were camping.
12. The applicant alleged that the aim of the police operation had been forcibly to terminate the assembly. For that purpose, a large police force had violently attacked the demonstrators with rubber batons and electric shock devices, without any prior warning, forcing them to flee the square.
13. The Government contested the applicant’s allegations and claimed that the reason for the police operation at Freedom Square had been to verify the information obtained on the previous day by the Armenian Police and National Security Service, according to which a large number of weapons were to be distributed to the protesters to incite provocative actions and riots in Yerevan on 1 March 2008. When the police officers tried to carry out that task, about 800 to 900 armed demonstrators attacked them, as a result of which numerous police officers had been injured.
14. On the same date a criminal case was instituted under several Articles of the Criminal Code (“CC”), in connection with the events at Freedom Square, on account of organising and holding an unlawful assembly, incitement to disobedience of police orders to terminate the unlawful assembly, illegal possession of arms and ammunition, and life‑threatening assaults on police officers. The decision to institute proceedings stated:
“After the announcement of the preliminary results of the presidential election of 19 February 2008, the presidential candidate, Mr Levon Ter-Petrosyan, members of parliament, [K.S. and S.M.], the chief editor of Haykakan Zhamanak daily newspaper, [N.P.], and others organised and held mass public events at Yerevan’s Freedom Square in violation of the procedure prescribed by law and made calls inciting to disobey the decisions ordering an end to the events held in violation of the procedure prescribed by law, while a number of participants in the mass events illegally possessed and carried illegally obtained arms and ammunition.
On 1 March 2008 at around 6 a.m., when the police took measures aimed at forcibly ending the public events held in violation of the procedure prescribed by law, in compliance with the requirements of section 14 of the Assemblies, Rallies, Marches and Demonstrations Act, the organisers and participants in the events, disobeying the lawful orders of the [police officers], who were performing their official duties, committed a life- and health-threatening assault on them with clubs, metal rods and other adapted objects, which had been in their possession for that purpose, causing the police officers injuries of varied severity.”
15. It appears that, after Freedom Square was cleared of demonstrators, some of them relocated to the area near the French Embassy, the Yerevan Mayor’s Office and the Myasnikyan monument, situated about 1.7-2 km from Freedom Square, where they were joined by thousands of others who apparently poured into the streets of Yerevan in response to the events of the early morning in order to voice their discontent. It further appears that the applicant was also present in that area. The rallies continued there, as well as a number of adjacent streets, including Grigor Lusavorich, Mashtots, Leo and Paronyan streets, until the early morning of 2 March 2008, with tensions gradually escalating and resulting in clashes between some protesters and the law enforcement officers. As a result, ten persons, including eight civilians, died, numerous persons were injured, public and private property was damaged, and a state of emergency was declared by the outgoing President of Armenia.
16. The Government alleged, which the applicant contested, that the disorder which had taken place in Yerevan on 1 and 2 March had been incited and organised by the applicant in conspiracy with several other active opposition supporters.
17. On 2 March 2008 another criminal case was instituted under, inter alia, Article 225 § 3 of the CC (organising mass disorder involving murder) in connection with the events of 1 and 2 March 2008. The decision stated:
“[Mr Ter-Petrosyan], the candidate running for president at the presidential election of 19 February 2008, and his followers and supporters, members of parliament [K.S. and S.M.], the chief editor of Haykakan Zhamanak daily newspaper, [N.P.], and others, not willing to concede defeat at the election, with the aim of casting doubt on the election, instilling distrust towards the results among large segments of the population, creating illusions of public discontent and revolt and discrediting the election and the authorities, from 1 March 2008 in the area of the Yerevan Mayor’s Office and central streets organised mass disorder involving murders, violence, massacre, arson, destruction of property and armed resistance to public officials, with the use of firearms, explosives and other adapted objects.”
18. On the same date the two criminal cases were joined and examined under no. 62202608.
II. the criminal proceedings against the applicant
19. On 10 March 2008 the applicant was arrested by officers of the National Security Service on suspicion of usurpation of State power.
20. On the same day the applicant was questioned as a suspect. He refused to testify and stated that his prosecution was politically motivated.
21. On 12 March 2008 the applicant was charged under Articles 225 § 3 and 300 § 1 (usurpation of State power) of the CC within the scope of criminal case no. 62202608. This decision stated that, after the presidential election of 19 February 2008, the applicant joined the group of supporters of Levon Ter-Petrosyan and, having conspired with them to usurp State power in violation of the constitutional order, actively participated in carrying out activities for that purpose, including discrediting the pre-election process and the conduct of the election, instilling distrust towards the results among large segments of the population, creating illusions of public discontent and revolt, thereby organising and holding unlawful demonstrations aimed at destabilising the internal political situation. During those events the applicant, three other members of parliament and a number of other opposition supporters incited and organised mass disorder which took place in Yerevan on 1 and 2 March 2008 and involved mass violence, massacre, arson, destruction and damage of public and private property, armed resistance to public officials and murder.
22. On the same date a court ordered the applicant’s pre-trial detention.
23. On 1 December 2008 the prosecutor approved the bill of indictment against the applicant and six other opposition leaders (commonly known as the “Case of Seven”) and their criminal case, which had been disjoined from criminal case no. 62202608, was transferred for trial.
24. On 31 March 2009 the prosecutor replaced the charge under Article 225 § 3 of the CC with a charge under Article 225 § 1 of the CC and dropped the charge under Article 300 § 1 of the CC on the ground that, on 24 March 2009, Article 225 § 3 had been repealed, while Article 300 § 1 had been amended and could not be applied retroactively.
25. On 1 April 2009 the cases against the applicant and one of the co-accused, S.S., were disjoined into separate proceedings.
26. On 22 June 2009 the Kentron and Nork-Marash District Court of Yerevan found the applicant guilty under Article 225 § 1 of the CC of organising mass disorder, sentencing him to five years in prison, at the same time applying an amnesty and freeing the applicant. The court found it to be established as follows:
“Serzh Sargsyan won the presidential election held on 19 February 2008. After the preliminary results of the election were made public, [the applicant and S.S.], together with a group of people, starting from 20 February 2008 carried out organisational activities for the purpose of creating discontent in the society towards the conduct and the results of the election and preparing the crowd gathered at the assembly held at Yerevan’s Freedom Square for use of violence and disobedience; in particular, they spread false information about the assembly being authorised by the municipal authorities, about around 500,000 people attending it, about the election result being rigged and about presidential candidate Levon Ter‑Petrosyan winning 60% of the votes cast, and, in order to ensure the constant presence of people at the assembly, have provided them with household items and money. Rods, clubs, armature, petrol bombs, metal constructions used as missile weapons, firearms and ammunition were distributed to a group of participants of the assembly at Freedom Square.
On 29 February 2008 intelligence information was received by the Armenian Police and the National Security Service that a group of persons intended to instigate mass disorder in Yerevan on 1 March through provocations and that for that purpose a large quantity of clubs, metal rods, explosive substances, firearms and grenades were to be distributed among the participants of the assembly at Freedom Square. In the early morning of 1 March 2008 the police, for the purpose of verifying the intelligence information regarding the illegal turnover of firearms, ammunition, explosive substances, explosive devices and various objects adapted to cause physical injuries for the purpose of instigating mass disorder in Yerevan, tried to discover those items at Freedom Square and to prevent their use. [The applicant] and his co-thinkers were informed about this in advance. As a result of the police operation some of the objects brought for the purpose of mass disorder, including firearms and ammunition, were discovered at Freedom Square. Thereafter, participants of the assembly, led by [the applicant, S.S.] and others, moved and gathered in the area adjacent to the Myasnikyan monument, which is an important intersection of several streets in Yerevan situated in the vicinity of specially guarded buildings such as the French, Italian and Russian embassies. At around 11 a.m. the participants of the mass disorder blocked Grigor Lusavorich street by placing trolleybuses along the carriageway, after which they attacked the police officers upholding public order. Thereafter, the participants of the mass disorder beat a number of police officers on several occasions… The participants of the mass disorder armed themselves with objects which were more suitable for causing physical injury and were found in their surroundings, including stones, rods and sticks, as well as explosive substances, explosive devices, firearms and Molotov cocktails which had been prepared beforehand and brought to the area of the mass disorder. The Molotov cocktails were filled with flammable liquid immediately behind the platform at Myasnikyan monument and in the nearby park. [The applicant and S.S.], together with a group of others, arranged and managed the activities of other organisers and participants of the mass disorder. [S.S.], together with a group of others, regularly circulated among the participants of the mass disorder and organised their activities aimed at building barricades and showing armed resistance to the police. Being in the epicentre of the mass disorder, he regularly updated [the applicant] regarding the ongoing massacre, arson and the deliberate destruction, damage and looting of property, carrying out new orders received from [the applicant].”
The court proceeded to describe the damage caused by the unrest.
27. On 21 July 2009 the applicant lodged an appeal, raising numerous arguments, including that the charge against him was trumped up and politically motivated.
28. On 31 July 2009 the Criminal Court of Appeal dismissed the appeal.
29. On 28 August 2009 the applicant lodged an appeal on points of law, which was declared inadmissible for lack of merit by the Court of Cassation on 10 September 2009.
RELEVANT LEGAL FRAMEWORK
I. relevant domestic law AND OTHER MATERIALS
A. Criminal Code (2003)
30. For the relevant provisions of the CC, see Myasnik Malkhasyan v. Armenia (no. 49020/08, §§ 44-46, 15 October 2020).
B. Ad Hoc Public Report of Armenia’s Human Rights Defender (Ombudsman): On the 2008 February 19 Presidential Election and the Post-Electoral Developments
31. For the relevant extracts of the Armenian Ombudsman’s report regarding the presidential election and the post-election events, see Mushegh Saghatelyan v. Armenia (no. 23086/08, § 124, 20 September 2018) and Myasnik Malkhasyan (cited above, § 49).
II. relevant international materials
32. In its Resolutions regarding the 19 February 2008 presidential election and the events that followed, the Parliamentary Assembly of the Council of Europe (PACE) condemned the arrest and continuing detention of scores of persons, including more than 100 opposition supporters and three members of parliament, some of them on seemingly artificial and politically motivated charges, especially those under Articles 225 and 300 of the CC (for the relevant extracts, as well as a number of other relevant international materials, see Mushegh Saghatelyan, cited above, §§ 125-34, and Myasnik Malkhasyan, cited above, §§ 51-57).
THE LAW
I. ALLEGED VIOLATION OF ARTICLEs 10 AND 11 OF THE CONVENTION
33. The applicant complained that his prosecution and conviction had violated the guarantees of Articles 10 and 11 of the Convention which, in so far as relevant, provide:
Article 10
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 11
“1. Everyone has the right to freedom of peaceful assembly…
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others…”
A. Admissibility
34. The Government submitted that the applicant lacked victim status since he had failed to present any facts or evidence in support of his allegation that his prosecution or conviction had been directly or indirectly connected to his right of freedom of expression or freedom of peaceful assembly.
35. The applicant contested the Government’s submissions as regards the alleged lack of victim status and argued that there had been an interference with his Article 10 and 11 rights.
36. The Court notes that by contesting the applicant’s victim status the Government in essence disputed the existence of an interference with the applicant’s rights guaranteed under Articles 10 and 11 of the Convention. This question, however, is closely linked to the substance of the applicant’s complaints and must be joined to the merits.
37. The Court notes that these complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
38. The applicant submitted that there had been an interference with his Article 10 and 11 rights, since he had been prosecuted and convicted for his role and participation in the mass protests which had been triggered by widescale election fraud in the 2008 presidential election. The election had produced a major outcry in society and spontaneously developed into a non-stop assembly. The rallies held at Yerevan’s Freedom Square between 20 February and 1 March 2008 had been entirely peaceful and the participants had not had any violent intentions. The Government had failed to support their assertion to the contrary with any evidence. The applicant denied the charges against him and insisted that he had not organised any mass disorder, contesting the findings of the domestic courts in that respect. His prosecution and conviction had been motivated by his support for the opposition, which included being the head of the pre-election campaign of the opposition candidate, taking an active part in the rallies and giving speeches. The real intentions pursued by his prosecution had been to punish and to neutralise him as a prominent opposition member. His prosecution had provoked an outcry in Armenia and wide press coverage both locally and internationally and had been in the focus of international institutions.
39. The interference had not been prescribed by law since both Articles 225 and 300 of the CC had lacked clarity and foreseeability. Furthermore, it had not been necessary in a democratic society. The rallies in question had been part of a wider post-election protest movement caused by largescale electoral fraud during the presidential election of 19 February 2008. Those rallies had therefore enjoyed strong protection under Articles 10 and 11 and he, being the head of Mr Ter-Petrosyan’s pre-election campaign and a prominent politician, had availed himself of his right to freedom of expression by taking part in them. Even if some people had committed acts of violence on 1 March 2008, those whose intentions had been entirely lawful and within the scope of protection of Articles 10 and 11 could not be held responsible for such acts. Thus, imprisonment of a politician within the context of the post-election protests for the violent actions causing disorder that had neither been committed by him nor had any established link to him had been entirely disproportionate to any legitimate aim, including the prevention of disorder and crime or the protection of the health, morals or the rights of others. The Government’s assertion that the rallies had threatened national security were similarly groundless since none of the participants in the events of 1 March 2008 had been found guilty of an attempted usurpation of power. The applicant also referred to the continuous calls of the international community and the Armenian Ombudsman to drop the charges against the leaders of the opposition under Articles 225 and 300 of the CC since such charges had been considered politically motivated and those facing such charges had been identified as “political prisoners”.
(b) The Government
40. The Government submitted that there had been no interference with the applicant’s rights guaranteed by Articles 10 and 11 of the Convention. The assembly held at Freedom Square from 20 to 29 February 2008 had not been peaceful and had had violent intentions, while the applicant himself had been found guilty of organising mass disorder.
41. Assuming that there had been an interference, such interference had been prescribed by law, namely Article 225 § 1 of the CC, and had pursued the legitimate aims of protecting national security, health, morals and the rights of others, and of preventing disorder and crime. Lastly, the interference had been necessary in a democratic society in view of the applicant’s actions, namely his role in the destabilisation of the internal political situation and the organisation and incitement of mass disorder. This had started with the demonstrations held from 20 February, culminating in the events of 1 March 2008, and included the involvement – through various means – of masses of people in those demonstrations and enflaming populistic passions in order to prepare them for disobedience and mass violence. Furthermore, according to the findings of the domestic courts, the opposition leaders who had conspired to carry out such a criminal plan had – personally and through the assistance of their supporters – formed groups of people ready to commit violence and distributed weapons among them. Thus, the applicant’s prosecution and conviction had corresponded to a pressing social need, had been proportionate and had been based on relevant and sufficient reasons.
2. The Court’s assessment
(a) The scope of the applicant’s complaints
42. The Court notes that, in the circumstances of the case, Article 10 is to be regarded as a lex generalis in relation to Article 11, which is a lex specialis. The thrust of the applicant’s complaint is that he was convicted for holding peaceful assemblies. The Court therefore finds that the applicant’s complaints should be examined under Article 11 alone (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202, and Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 85, ECHR 2015).
43. On the other hand, notwithstanding its autonomous role and the particular sphere of application, Article 11 must, in the present case, also be considered in the light of Article 10. The protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 (see Ezelin, cited above, § 37; Kudrevičius and Others, cited above, § 86; and Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 102, 15 November 2018).
(b) Whether there has been an interference with the exercise of the right to freedom of peaceful assembly
44. The Court reiterates that an interference does not need to amount to an outright ban, legal or de facto, but can consist of various other measures taken by the authorities. The term “restrictions” in Article 11 § 2 must be interpreted as including both measures taken before or during an assembly, such as a prior ban, dispersal of the rally or the arrest of participants, and those, such as punitive measures, taken afterwards, including penalties imposed for having taken part in a rally (see Navalnyy and Yashin v. Russia, no. 76204/11, § 51, 4 December 2014, and Kudrevičius and Others, cited above, § 100).
45. The Court notes that the Government disputed the existence of an interference, arguing that the assembly at Freedom Square and the applicant’s actions had not been peaceful. In this connection, the Court is mindful that it has already scrutinised the circumstances of the assembly at Freedom Square and found that it had been peaceful, without any incitement to violence or acts of violence (see Mushegh Saghatelyan, cited above, § 245, and Myasnik Malkhasyan, cited above, § 72). The Court further notes that the applicant’s conviction for “organising mass disorder” concerned his involvement in the post-election protest movement, including his participation and speeches made at the assembly at Freedom Square, and therefore amounted to an interference with his right to freedom of peaceful assembly. For the same reason, the Court rejects the Government’s objection as regards the lack of victim status.
(c) Whether the interference was justified
46. An interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2 and is “necessary in a democratic society” for the achievement of those aims (see Galstyan v. Armenia, no. 26986/03, § 103, 15 November 2007).
47. In the present case, the Court does not consider it necessary to decide whether the interference was prescribed by law and pursued a legitimate aim having regard to its conclusions set out below, regarding the necessity of the interference (see, mutatis mutandis, Christian Democratic People’s Party v. Moldova, no. 28793/02, §§ 49-54, ECHR 2006‑II, and Mushegh Saghatelyan, cited above, § 237).
48. The Court reiterates at the outset that the right to freedom of assembly, one of the foundations of a democratic society, is subject to a number of exceptions which must be narrowly interpreted and the necessity for any restrictions must be convincingly established. When examining whether restrictions on the rights and freedoms guaranteed by the Convention can be considered “necessary in a democratic society” the Contracting States enjoy a certain but not unlimited margin of appreciation. It is, in any event, for the Court to give a final ruling on the restriction’s compatibility with the Convention and this is to be done by assessing the circumstances of a particular case (see Kudrevičius and Others, cited above, § 142, and Mushegh Saghatelyan, cited above, § 238).
49. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they took. This does not mean that it has to confine itself to ascertaining whether the State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine, after having established that it pursued a “legitimate aim”, whether it answered a “pressing social need” and, in particular, whether it was proportionate to that aim and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see Kudrevičius and Others, cited above, § 143, and Mushegh Saghatelyan, cited above, § 239).
50. The Court also reiterates that a criminal conviction for actions inciting to violence at a demonstration can be deemed to be an acceptable measure in certain circumstances (see Osmani and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 50841/99, ECHR 2001‑X). However, peaceful participants may not be held responsible for reprehensible acts committed by others. The freedom to take part in a peaceful assembly is of such importance that a person cannot be subject to a sanction – even one at the lower end of the scale of disciplinary penalties – for participation in a demonstration which has not been prohibited, so long as that person does not himself commit any reprehensible act (see Ezelin, cited above, § 53, and Galstyan, cited above, § 115). Similarly, the organisers of the event should not be held responsible for the conduct of its participants as long as they themselves do not commit, incite or condone any reprehensible acts (see Mesut Yıldız and Others v. Turkey, no. 8157/10, § 34, 18 July 2017). This is true even when the demonstration results in damage or other disorder (see Taranenko v. Russia, no. 19554/05, § 88, 15 May 2014).
51. In the present case, the Court notes at the outset that the applicant contested the factual basis for his conviction, alleging that the criminal case against him and other leaders and supporters of the opposition had been politically motivated. The Court, however, has emphasised on many occasions that it is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. As a general rule, where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them, although there may be circumstances in which the Court will depart from the findings of fact reached by the domestic courts, including in cases concerning Article 10 and 11 rights (see Jhangiryan v. Armenia, nos. 44841/08 and 63701/09, §§ 114 and 123, 8 October 2020, and Smbat Ayvazyan v. Armenia, no. 49021/08, §§ 119 and 129, 8 October 2020, both of which concerned the same protest movement as in the present case).
52. The Court considers it necessary first to have regard to the general context of this particular case. It notes that the applicant was an opposition politician and a high profile member of Mr Ter-Petrosyan’s pre-election campaign who took part in the rallies in the Armenian capital following the allegedly unfair presidential election of 19 February 2008 and culminated in the events of 1 and 2 March 2008 (see Mushegh Saghatelyan, cited above, §§ 226-55; Ter-Petrosyan v. Armenia, no. 36469/08, §§ 61-65, 25 April 2019; Myasnik Malkhasyan, cited above, §§ 70-82; Jhangiryan, cited above, §§ 112-28; and Smbat Ayvazyan, cited above, §§ 117-134). The response of the authorities that followed, including the arrests and detention of scores of opposition leaders and supporters, was condemned by the PACE as a “de facto crackdown on the opposition”, while the charges brought against many of them, especially those under Articles 225 and 300 of the CC, were suspected to have been “artificial and politically motivated”. Repeated concerns were expressed by both the PACE and the Council of Europe Commissioner for Human Rights about the nature of the charges under those Articles, mentioning the applicant’s specific case on several occasions (see paragraph 32 above and, more specifically, Myasnik Malkhasyan, cited above, §§ 55 and 56). While the Court is not called upon to give a judicial assessment of the general context, it nevertheless considers that this background information is extremely relevant to the present case and calls for particularly close scrutiny of the facts giving rise to the applicant’s conviction (see, mutatis mutandis, ibid., § 70, in which the applicant was one of the seven prominent opposition figures who stood trial in the so‑called “Case of Seven” together with the applicant in the present case before their cases were disjoined (see paragraphs 23 and 25 above)). Furthermore, as noted above, the Court has already examined a number of applications alleging violations of Articles 10 and 11 of the Convention and politically motivated prosecutions in connection with the post-election protests in Armenia in February-March 2008. The applicant’s case appears to follow a pattern of criminal prosecutions of opposition supporters, which the Court finds alarming. Nevertheless, as stated in the case of Mushegh Saghatelyan, the Court is not in a position, nor is it its duty, to determine whether the charges against the applicant were substantiated and it was the duty of the domestic courts to check the veracity of the underlying facts (see Mushegh Saghatelyan, cited above, § 252). The Court reiterates in this connection the obligation of the domestic courts to provide reasons for their decisions which, in the context of the present case, translates into specific obligations under Articles 10 and 11 by requiring the courts to provide “relevant” and “sufficient” reasons for an interference.
53. The Court notes in this connection that the applicant was found guilty under Article 225 § 1 of the CC, as one of the leaders of the opposition, of organising mass disorder in connection with the post-election protests which had taken place in Yerevan from 20 February 2008 onwards, including the assembly at Freedom Square. However, as already noted above, the demonstrations held at Freedom Square were found by the Court to constitute a peaceful assembly and in fact a platform for expression on a matter of major political importance directly related to the functioning of a democracy and of serious concern to large segments of the Armenian society (see Mushegh Saghatelyan, cited above, §§ 230-33 and 246, and Myasnik Malkhasyan, cited above, § 72). While stating that the applicant had prepared the crowd gathered at Freedom Square for use of violence and disobedience, the domestic courts failed to provide concrete examples of such behaviour which, in the Court’s opinion, could be characterised as incitement to violence (see paragraph 26 above). In fact, the only acts which the applicant was found to have committed in pursuit of that plan are not sufficient for the Court to conclude that they were anything but examples of legitimate exercise by the applicant of his right to freedom of peaceful assembly and expression of opinions in the context of the public debate surrounding the conduct of the presidential election, including the criticism voiced in that respect (compare Myasnik Malkhasyan, cited above, § 73).
54. As regards the alleged build-up of arms at Freedom Square for the purpose of instigating mass disorder, there was no concrete indication in the domestic judgments of the applicant’s involvement in these alleged acts. More importantly, the Court has already established that there was no convincing evidence to suggest that there had been a build-up of arms at Freedom Square and has rejected the allegations that the police were deployed at the square in order to carry out an inspection for weapons, finding that the main, if not only, purpose of the police operation in the early morning of 1 March 2008 was to disperse the assembly (see Mushegh Saghatelyan, cited above, §§ 230 and 245, and Myasnik Malkhasyan, cited above, § 80).
55. It is undisputed that, after nine days of peaceful protests, violence erupted in Yerevan on 1 and 2 March 2008 after the demonstrators had been ejected from Freedom Square and large crowds had gathered in the area of the Myasnikyan monument and a number of adjacent streets where it appears that clashes between some protesters and law-enforcement officers took place and public and private property was damaged (see paragraph 15 above). However, the findings of the domestic courts regarding the applicant’s alleged responsibility for the violence in question were drafted in very general and abstract terms, without any specific factual details which would convincingly point to any wrongdoing by the applicant. While stating that the applicant had “arranged and managed the activities of … organisers and participants of the mass disorder”, no specifics of such acts were provided in the domestic judgments. Nor were any details provided regarding the “orders” allegedly given by the applicant, including whether such alleged orders contained any incitement to violence (see paragraph 26 above).
56. In sum, the domestic courts failed to provide specific examples of any reprehensible acts attributable to the applicant, including incitement or instigation of violence, in the course of his involvement in the protest movement and the rallies which gripped Armenia in the aftermath of the presidential election (compare Mushegh Saghatelyan, cited above, §§ 249‑53, and Myasnik Malkhasyan, cited above, §§ 71-79). As such, the applicant appears to have been sanctioned for being an active member of the opposition and for having availed himself of his right to freedom of peaceful assembly rather than committing any reprehensible acts (compare Mushegh Saghatelyan, cited above, § 250).
57. Lastly, the Court is mindful that, as noted in the case of Myasnik Malkhasyan, serious doubts have been voiced by the PACE Monitoring Committee regarding the version, according to which the events of 1 and 2 March 2008 had been part of a planned and organised attempt by the leaders of the opposition to seize State power violently or, in other words, to carry out a coup, and in fact such prosecutions were deemed highly likely to be politically motivated. Moreover, a number of credible reports suggested that the gathering of people in the area of the Myasnikyan monument, including their later being armed, had been spontaneous and unorganised developments and that the escalation of violence later that day might have been a response to the earlier dispersal of demonstrators from Freedom Square, including its heavy‑handed nature, as well as a number of other similar or uncontrollable events which had happened later that day (ibid., § 80). The Court notes that the Government have not produced any evidence in the present case which would prompt it to doubt the above reports or the findings reached in that case.
58. In the light of the above, the Court concludes that the domestic courts failed in their duty to provide reasons for their decisions and that the reasons adduced to justify the interference with the applicant’s right to freedom of peaceful assembly were not “relevant and sufficient”.
59. There has accordingly been a violation of Article 11 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
60. The applicant further complained that his prosecution and conviction had been motivated by his political opinion and had amounted to discrimination in breach of Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
61. The Government contested that complaint.
62. Having regard to its findings under Article 11 of the Convention (see paragraphs 51-59 above), the Court declares this complaint admissible but considers that there is no need to examine whether, in this case, there has been a violation of Article 14 of the Convention in conjunction with Article 11 (see, mutatis mutandis, Ter-Petrosyan, cited above, § 69; Jhangiryan, cited above, § 131; and Smbat Ayvazyan, cited above, § 137).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
63. 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
64. The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage.
65. The Government objected to the applicant’s claim, arguing that it was unsubstantiated.
66. The Court considers that the applicant has undoubtedly suffered non-pecuniary damage as a result of the violations found. It therefore awards the applicant EUR 9,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
67. The applicant also claimed EUR 2,130 and 2,800 pounds sterling (GBP) for the legal costs incurred before the Court, and a further GBP 3,269.05 for translation and other administrative expenses.
68. The Government argued that the claim was not duly substantiated and was exorbitant. Furthermore, part of the applicant’s initial complaints had been declared inadmissible and he had employed an excessive number of lawyers.
69. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court considers that the applicant failed to show that all the costs claimed had been necessarily and reasonably incurred. Regard being had to the documents in its possession and the above criteria, the Court awards the sum of EUR 2,600 for costs and expenses in the proceedings before the Court, plus any tax that may be chargeable to the applicant, to be paid in GBP into his representatives’ bank account in the United Kingdom.
C. Default interest
70. 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. Decides to join to the merits the preliminary objection concerning lack of victim status and dismisses it;
2. Declares the complaints concerning the interference with the applicant’s right to freedom of expression and freedom of peaceful assembly, as well as the applicant’s alleged discrimination on the basis of his political opinion admissible;
3. Holds that there has been a violation of Article 11 of the Convention;
4. Holds that there is no need to examine the complaint under Article 14 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts:
(i) EUR 9,000 (nine thousand 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;
(ii) EUR 2,600 (two thousand six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into GBP at the rate applicable on the date of settlement and to be paid into the applicant’s representatives’ bank account in the United Kingdom;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 31 August 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Ilse Freiwirth Tim Eicke
Deputy Registrar President
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