Communicated on 5 April 2019
Application no. 51386/14
Tigran ARAKELYAN and others
lodged on 8 July 2014
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants were, at the material time, members of the youth wing of the Armenian National Congress (ANC), an opposition political party led by the former President of Armenia, Mr LevonTer-Petrosyan.
On 9 August 2011 an incident took place between the applicants and a number of police officers in central Yerevan. According to the applicants, Mr Arakelyan and Mr Karapetyan (hereafter, the first and second applicants) noticed two police officers harassing a third person in the street and intervened. When the officers recognised them as ANC activists, they became aggressive and attacked the applicants verbally and physically. The applicants Mr Gevorgyan and Mr Kiramijyan (hereafter, the third and fourth applicants), who were nearby, also became involved in the altercation, while the two officers called for reinforcements and were joined by at least ten other officers. The applicants allege that the police officers beat and ill‑treated them in the street, after which they were taken to a police station where the ill-treatment continued.
According to the materials of the case, it was the applicants who had insulted, beaten and resisted the police officers. It appears that both the applicants and several police officers sustained various injuries as a result of the incident. It also appears that one of the police officers, S.H., filmed the incident on his mobile phone.
On 10 August 2011 a criminal case was instituted by the Principal Investigative Department of the Armenian Police in respect of the applicants on account of hooliganism and assaulting a public official.
On the same date the Chief of the Armenian Police gave a press conference, during which he described the first applicant as a well-known hero of street vendetta against police officers and a bad example to other young people because of the regular provocation he had staged against police officers, which in this case had resulted in the beating-up of four officers. He then went on to describe the circumstances of the case, according to which one of the two police officers had told off a third person for walking his dog in a public place without a muzzle. Two of the applicants, who had been nearby, had intervened and started insulting and swearing at the officers and then pulling and pushing them. One of the applicants had hit an officer in the face. By the time four other officers had arrived, another eight to ten people had already joined in the scuffle and attacked the officers, who had then called for additional backup. Two of the officers had been injured on the spot, while a third had been assaulted in the police car by the first applicant who had broken the police officer’s nose when being taken to the police station. The Chief of Police stated that none of the police officers had “raised a hand” to the applicants and added that he would protect each and every police officer.
On 12 August 2011 the applicants were formally charged under Articles 258 (hooliganism) and 316 (assaulting a public official) of the Criminal Code.
It appears that police officer S.H. submitted during the investigation that, when filming the incident, he had dropped and lost his mobile phone after one of the applicants had assaulted him from behind. The applicants allege that S.H. lied to the investigation about losing his phone, since it was the only objective and neutral piece of evidence, while the investigators were complicit in his attempt to conceal that evidence by deliberately making no effort to obtain it nor any further inquiries into that matter.
In November 2011 the applicants’ case was brought to trial.
On 20 July 2012 the Kentron and Nork-Marash District Court of Yerevan found the applicants guilty as charged and sentenced the first applicant to six years’, the second applicant to three years’ and the third and fourth applicants to two years’ imprisonment. The District Court found it established that it was the applicants who had started the altercation by insulting, swearing, pushing and pulling the two police officers who had been performing their duties. The police officers, including those who had come to the aid of the two officers, had tried to calm the applicants but the latter had punched and kicked them and, as a result, had been taken into custody, during which the officers had had to use force.
In reaching the above findings, the District Court relied on the statements of fourteen police officers, all employees of the Yerevan Department of the Armenian Police, who had been involved in the incident, half of whom as victims and half as witnesses, as well as seven other persons who had witnessed the incident, including two persons who had watched from a nearby building, the owner of a nearby kiosk, two passers-by and two taxi drivers who had been driving past. It appears that all the victims and witnesses appeared and testified in court, including police officer S.H. who submitted that he had filmed the incident but had lost his mobile phone after he had been assaulted by the first applicant. The applicants allege that the District Court did not allow them to put questions to police officer S.H. regarding the identification number of his mobile phone or the telephone number used at the time of the incident, citing respect for S.H.’s private life.
On 20 August 2012 the applicants lodged an appeal, in which they claimed that they had acted in necessary self-defence, whereas the District Court had accepted only the police version of events. They argued, inter alia, that their conviction had been based exclusively on the statements of the police officers involved; that the District Court, for made-up reasons, had not allowed them to put questions to police officer S.H. regarding his mobile phone which could have resulted in disclosure of exculpatory evidence; and that the District Court had ignored the fact of how the Chief of Police, through his public statements, had directed the police officers in how to testify in the case and had incited a vengeful attitude towards the first applicant, which might have served as an instruction to the police system to start his persecution.
It appears that, in the proceedings before the Criminal Court of Appeal, the applicants requested that police officer S.H. be summoned and examined again.
On 13 November 2012 the Criminal Court of Appeal dismissed the applicants’ appeal and upheld their conviction. As regards their request to call and examine police officer S.H., the Court of Appeal rejected it on the ground that S.H. had already testified before the District Court.
On 12 December 2012 and 13 February 2013 the applicants lodged appeals on points of law, raising similar arguments.
On 8 May 2013 the Court of Cassation quashed the judgment of the Court of Appeal and remitted the case for a fresh examination on the ground that the trial had been unfair because, inter alia, the Court of Appeal had failed to take a well-founded decision regarding the applicants’ request to summon and examine police officer S.H. The fact that S.H. had appeared and testified before the District Court was not a sufficient reason to reject their request, taking into account that his questioning in the Court of Appeal would have made it possible to clarify whether he had made any video recording on his mobile phone, and the content of any such recording, and whether the applicants had been subjected to ill-treatment by the police officers.
It appears that during the fresh examination of the case, the Criminal Court of Appeal summoned police officer S.H. for questioning. The applicants allege that S.H. in fact refused to answer their questions by repeatedly claiming either not to remember what had happened or not to know the answer.
It further appears that the Court of Appeal also requested information from the relevant mobile phone operator, which revealed that police officer S.H.’s mobile phone had continued to be used after the incident.
On 14 October 2013 the Criminal Court of Appeal upheld the applicants’ conviction but decided to reduce the first applicant’s sentence to three years and at the same time to release all four applicants from prison, due to a general amnesty. As regards police officer S.H.’s mobile phone, the Court of Appeal stated:
“During additional questioning in the Court of Appeal [police officer S.H.] maintained his earlier statements, adding that he had tried to film with his phone but had been assaulted, as a result of which he had lost the phone. After a few days he had recovered the number. However, it is evident from the reply received from Vivacell [mobile phone operator] that [police officer S.H.’s] phone had continued to be used after the incident.
The Criminal Court of Appeal considers that the fact that [police officer S.H.’s] phone continued to be used after the incident has no significance for establishing any circumstance that needs to be proved for the purpose of the criminal case.”
On 24 November 2013 the applicants lodged an appeal on points of law.
On 24 December 2013 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit. A copy of that decision was served on the applicants on 10 January 2014.
The applicants complain under Article 6 § 1 of the Convention that the trial was unfair. Firstly, both the investigating authority and the courts failed to make the necessary effort to obtain the only objective and neutral piece of evidence, namely the video recording made by police officer S.H. Secondly, the statements of the Chief of the Armenian Police made at a press conference influenced the testimony of the police officers concerned and served as an instruction to them on how to testify in the case against the applicants. Thirdly, their conviction was based exclusively on the statements of the police officers, while the other witnesses made their statements under intimidation or had their statements distorted.
QUESTION TO THE PARTIES
Did the applicants have a fair hearing in the determination of a criminal charge against them, in accordance with Article 6 § 1 of the Convention? In particular, was the applicants’ trial as a whole unfair on the grounds alleged by them?
|No.||Firstname LASTNAME||Birth year||Nationality||Place of residence||Representative|
|1.||Tigran ARAKELYAN||1981||Armenian||Yerevan||V. Grigoryan|
|3.||Sargis GEVORGYAN||1992||Armenian||Yerevan||V. Grigoryan|
|4.||Davit KIRAMIJYAN||1991||Armenian||Yerevan||V. Grigoryan|