Last Updated on May 8, 2019 by LawEuro
Communicated on 21 November 2018
FIRST SECTION
Application no. 5195/17
Andrias GHUKASYAN
against Armenia
lodged on 23 February 2017
STATEMENT OF FACTS
The applicant, Mr AndriasGhukasyan, is an Armenian national who was born in 1970 and lives in Yerevan. He is represented before the Court by Ms A. Maralyan, lawyer practising in Strasbourg, and Ms I. Petrosyan and Mr. K. Mezhlumyan, lawyers practising in Yerevan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was a presidential candidate during the presidential elections of 2013. Since then, he has been an active political opposition figure.
In July 2016, an armed group took over a police station in Yerevan, making various political demands to the Government. Soon after, many people gathered near the police station to demonstrate their support for the group and its demands. The applicant was one of several speakers during those demonstrations. At the end of July 2016, clashes between the demonstrators and the police took place, resulting in bodily injuries and numerous arrests.
1. The applicant’s pre-trial detention
On 30 July 2016 the applicant was arrested on suspicion of organising mass disorder (Article 225 § 1 of the Criminal Code). Later he was charged under that Article in connection with the above-mentioned events.
On 1 August 2016 the Kanaker-Zeytun District Court of Yerevan (“the District Court”) granted the investigator’s application seeking to detain the applicant for two months and rejected his application for release on bail. The District Court reasoned that the circumstances and materials of the criminal case, the seriousness and the dangerous nature of the imputed conduct increased the risk of the applicant’s improper influence on the investigation.
On 24 September and 25 November 2016, 26 January, 24 March and 26 May 2017 the District Court extended the applicant’s detention on the basis of the investigators’ applications and refused to release the applicant on bail, adducing identical reasoning as on 1 August 2016.
When extending the applicant’s detention and refusing to release him on bail on 26 January and 24 March 2017, the District Court also referred to the risk of absconding.
On 2 August 2016, 26 September 2016, 28 November 2016, 31 January 2017, 3 April 2017 and 7 June 2017 the applicant appealed against the above-mentioned decisions.
On 24 August 2016, 25 October 2016, 22 December 2016, 17 February 2017, 27 April 2017 and 21 June 2017 the Criminal Court of Appeal rejected the applicant’s appeals on the same grounds as before.
On 14 September 2016, 22 November 2016, 31 January 2017, 13 March 2017, 21 May 2017 and 17 July 2017 the applicant lodged appeals on points of law against the decisions of the Criminal Court of Appeal.
On, 22 February 2017, 27 March 2017, 12 April 2017, 29 May 2017, 14 July 2017 and 27 September 2017 the Court of Cassation rejected or declared inadmissible the applicant’s appeals on points of law.
2. The applicant’s application for release
On 29 August 2016 the applicant lodged an application for release on bail, which was rejected on 8 September 2016.
On 9 September 2016 the applicant lodged an appeal, which was rejected on 5 October 2016.
On 7 November 2016 the applicant filed an appeal on points of law, which was declared inadmissible by the Court of Cassation on 15 February 2017 for lack of merit.
3. The applicant’s detention and release pending trial
On 25 July 2017 the Erebuni and Nubarashen District Court of Yerevan (“the Erebuni District Court”) decided to set the case down for trial and to leave the applicant’s detention unchanged.
On 10 October 2017 the applicant lodged an application with the Erebuni District Court, seeking release on bail.
On the same day the Erebuni District Court rejected the application for release. It reasoned that, considering the nature of the imputed offences and how dangerous they were, as well as the fact that 36 victims and 51 witnesses had not yet been examined, bail would not suffice to ensure the applicant’s lawful conduct upon release.
On 20 October 2017 the applicant lodged an appeal against that decision.
On 17 November 2017 the Criminal Court of Appeal dismissed his appeal and upheld the decision of the District Court.
On 18 December 2017 the applicant lodged an appeal on points of law against that decision.
On 12 February 2018 the Court of Cassation dismissed his appeal on points of law and upheld the decision of the Court of Appeal.
On 7 May 2018, following the applicant’s application, the Erebuni District Court decided to change the preventive measure and release him upon a written undertaking not to leave the country.
4. Specific hearings and decisions on the applicant’s detention
On 24 August 2016, during the hearing of the applicant’s appeal against the decision of 1 August 2016 at the Criminal Court of Appeal, the presiding judge posed the following questions to the applicant:
“…now, your lawyers and, in essence, you too, seek release from detention or change of the preventive measure. In that case, will you again continue your opposition activity or will you change it or, I do not know for what sake, what action are you going to take, you are saying that you will not abscond or do, so what can you do”?
The applicant responded that violence did not have any place in his activity, in particular, and in politics, in general, and stressed his determination to be consistent in his political activity.
On the same day the Criminal Court of Appeal rejected the appeal against the decision of 1 August 2016. While endorsing the reasoning contained in the contested decision, the Criminal Court of Appeal noted that refusal to apply bail was lawful, as bail could not serve to decrease the risk of the applicant’s unlawful influence on the investigation, especially considering “his position expressed during the appellate proceedings on continuing his struggle.”
On 12 April 2017 the Court of Cassation rejected the applicant’s appeal against the decision of 24 August 2016. It found the reliance of the Criminal Court of Appeal on the applicant’s determination to continue his political struggle as a ground to refuse bail to be in breach of the applicant’s right to freedom from discrimination. It observed that that ground was not in any way related to lawful grounds for deprivation of liberty. The Court of Cassation stressed, however, that breach of his right to freedom from discrimination did not automatically breach his right to liberty, as the lower courts had relied on other grounds justifying the applicant’s detention, such as the nature of the imputed offence and how dangerous it was, the stage of the investigation and the necessity to carry out investigatory measures. It concluded that the refusal of bail had also been lawful, as bail would not serve to decrease the risk of the applicant’s interference with the investigation, for the same reasons adduced to justify his detention.
B. Relevant domestic law
1. Criminal Code (in force from 1 August 2003)
Article 225 § 1 prescribes a penalty for organising mass disorder. The same Article defines “mass disorder” as actions by more than one person endangering public safety, which is manifested through violence, massacre, arson, destruction or damage to property, use of firearms, explosive materials or devices, or armed resistance to public officials.
2. Code of Criminal Procedure(in force from 12 January 1999)
Article 293 § 2 provides that the decision setting the case down for trial must contain, inter alia, a ruling imposing, lifting or changing a preventive measure.
Article 300 provides that, when adopting decisions, the court is obliged to examine the issue of whether or not to impose a preventive measure or, if such a measure has already been imposed, whether or not it is justified.
COMPLAINTS
1. The applicant complains under Article 5 § 1 (c) of the Convention that, during the trial proceedings, he was kept in detention on the basis of the trial court’s decision of 25 July 2017, which did not contain any time-limits or reasons whatsoever.
2. The applicant complains under Article 5 § 3 of the Convention that the courts failed to provide “relevant and sufficient” reasons for his detention and the refusal to grant bail.
3. The applicant complains under Article 5 § 4 of the Convention that the Criminal Court of Appeal and the Court of Cassation failed to meet the requirement of “speed” when reviewing the lawfulness of his detention.
4. The applicant complains under Article 18 of the Convention that his detention was motivated by his political activity, which is not included in the exhaustive list of grounds for deprivation of liberty under Article 5 § 1 (c) of the Convention.
QUESTIONS TO THE PARTIES
1. Was the applicant’s detention, authorised by the decision of 25 July 2017, compatible with the requirements of Article 5 § 1 of the Convention? In particular, did that decision afford adequate protection from arbitrariness and meet the requirement of lawfulness within the meaning of that Article? The Government are requested to specify until when the applicant was kept in detention on the basis of that decision and to submit copies of relevant documents.
2. Did the domestic courts provide “relevant and sufficient” reasons for the applicant’s detention, as required by Article 5 § 3 of the Convention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 84 et seq., 5 July 2016, and Ara Harutyunyan v. Armenia, no. 629/11, §§ 48 et seq., 20 October 2016)?
3. Did the length of the proceedings before the Criminal Court of Appeal, instituted on 2 August 2016, 26 September and 28 November 2016, 3 April and 20 October 2017, by which the applicant sought to challenge the lawfulness of his detention orders, comply with the “speed” requirement of Article 5 § 4 of the Convention?
Did the length of the proceedings before the Court of Cassation instituted on 14 September, 7 November and 22 November 2016, 31 January, 13 March, 21 May, 17 July, and 18 December 2017, by which the applicant sought to challenge the lawfulness of the decisions of the Criminal Court of Appeal affirming the lawfulness of his detention orders, comply with the “speed” requirement of Article 5 § 4 of the Convention?
4. Was the applicant’s detention motivated by his political views and activity, contrary to the requirements of Article 18 of the Convention, in conjunction with Article 5 § 1 (see Merabishvili v. Georgia [GC], no. 72508/13, §§ 287-317, ECHR 2017 (extracts))?
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