CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 novembre 2007

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margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify }     THIRD SECTION     CASE OF GALSTYAN v. ARMENIA     (Application no. 26986/03)       JUDGMENT     STRASBOURG   15 November 2007       FINAL     15/02/2008     This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Galstyan v. Armenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Mr   B.M. Zupančič , President ,   Mr   C. Bîrsan ,   Mrs   E. Fura-Sandström ,   Mrs   A. Gyulumyan ,   Mr   E. Myjer ,   Mr   David Thór Björgvinsson ,   Mrs   I. Berro-Lefèvre, judges , and Mr S. Quesada , Section Registrar , Having deliberated in private on 18 October 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 26986/03) 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 Arsham Galstyan (“the applicant”), on 1 August 2003. 2.     The applicant was represented by Mr N. Yeghiazaryan. The Armenian Government (“the Government”) were represented by their Agent, Mr   G.   Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 3.     On 5 April 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1958 and lives in Yerevan. 5.     In 2003 a presidential election was held in Armenia with its first round taking place on 19 February. The applicant acted as an authorised election assistant ( վստահված անձ ) for the main opposition candidate in the election. At the second round of the election, which took place on 5   March, the applicant was a member of one of the district election commissions. Following the election, the applicant participated in a series of rallies of protest organised in Yerevan by the opposition parties. 6.     The applicant alleged, and the Government did not dispute, that at the beginning of April police officers of the Central District Police Station of Yerevan ( ՀՀ ոստիկանության Երևան քաղաքի կենտրոնական բաժին ) came to the applicant's home while he was absent. Having found out about this, the applicant went to the police station to inquire about the reasons for their visit. At the Police Station, the Deputy Head ordered the applicant to stop participating in the demonstrations. 7.     On 7 April 2003 at 17h00 a demonstration was held in the centre of Yerevan on the occasion of Mother's Day. The demonstration took place on the Mashtots Avenue next to the Research Institute of Ancient Manuscripts ( Մատենադարան ). It appears that the demonstration was of a political nature and criticism of the Government and of the conduct of the presidential election was voiced. 8.     The applicant alleged, and the Government did not dispute, that the demonstration was organised by women and was attended by about 30,000 people, the majority of whom were female. Traffic was suspended by the traffic police on the relevant stretch of the Avenue prior to the commencement of the demonstration. The applicant did not as such participate in the demonstration since most men, including himself, were observing it from a distance, standing on both sides of the Avenue. Their task was to encourage the women and to prevent possible provocations. 9.     According to the applicant, at around 17h30 he went home. On his way home, about 100-150 metres away from the site of the demonstration, he was approached by two persons in civilian clothes, who showed police identity papers and took him to the Central District Police Station. 10.     At the Police Station, the arresting police officers drew up a record of the applicant's arrest ( արձանագրությաւն բերման ենթարկելու մասին ) in which it was stated that the applicant had been “arrested at around 17h30 on the Mashtots Avenue for obstructing traffic and behaving in an anti-social way at a demonstration”. 11.     One of the arresting police officers reported to the Head of the Police Station ( ՀՀ ոստիկանության Երևան քաղաքի կենտրոնական բաժնի պետ ) that: “... on 7 April 2003 we were on duty at the Mashtots Avenue, where a demonstration was being held and a great number of people were gathered. While on duty, we noticed one person who was obstructing traffic, behaving in an anti-social way and inciting others to follow his example. This person was brought to the Police Station...” 12.     The applicant was subjected to a search during which no illegal items were found. A relevant record was drawn up. 13.     The police officers questioned the applicant. The applicant made a written statement ( արձանագրություն բացատրություն վերցնելու մասին ) in which he submitted that he had participated in a demonstration three days before. Having found out about the demonstration of 7 April 2003, he had also gone there. He further submitted that he was aware of a demonstration to be held in two days and that he would participate in it. The applicant added that he had not violated, and would not violate, any laws during these demonstrations. This statement was torn up by the police officers, who said that there was a pencil mark and asked the applicant to write a new one. When he wrote the new statement with a similar content, the police officers stopped him at the point when he was about to write about not having committed any offences during the demonstrations and said that what he had written was enough. 14.     The police officers drew up a record of an administrative offence ( վարչական իրավախախտման արձանագրություն ) in which it was stated that the applicant had “participated in a demonstration, during which he violated public order”. The applicant's actions were qualified under Article 172 of the Code of Administrative Offences (CAO) ( Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք ) as minor hooliganism. This record was signed by the applicant. He also put his signature in the section certifying that he was made aware of his rights under Article 267 of the CAO and in the section marked as “other information relevant for the determination of the case”, where he also added “I do not wish to have a lawyer”. 15.     The applicant alleged that he had initially refused to sign this record and requested a lawyer. This became the reason why he was kept in the Police Station for the following five and a half hours. During this period, the police officers were persistently trying to convince him to sign the record and to refuse a lawyer. They told him that it was unnecessary to have a lawyer and spend money for such a minor case. They further said that the case had been already pre-decided by their superiors, so a lawyer would only harm rather than help, as he may end up spending quite some time in the Police Station because of that. On the other hand, if he signed the record and refused a lawyer, he would be immediately taken to a court, where at worst a small fine would be imposed and he would be released. The applicant finally succumbed and agreed to sign the record and to refuse a lawyer. The same day at 23h00 he was taken to judge M. of the Kentron and Nork-Marash District Court of Yerevan ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան ), who examined the case. 16.     The Government contested this allegation. According to them, the applicant was kept at the Police Station for two hours and taken to judge   M. at 19h30. During this period, the police officers explained to the applicant his right to have a lawyer and advised him to avail himself of this right, which he did not wish to do. The record of an administrative offence was signed by the applicant voluntarily and without any objections. Furthermore, the applicant failed to initiate any actions aimed at the defence of his rights, such as lodging motions or availing himself of other procedural rights guaranteed by Article 267 of the CAO, despite having been made aware of them. 17.     The materials of the applicant's administrative case, which were transmitted by the police to judge M. for examination, contained the following documents: (1) the record of an administrative offence; (2) the police report; (3) the record of the applicant's arrest; (4) the record of the applicant's search; and (5) the applicant's written statement. All these documents were signed by the applicant except the police report. 18.     Judge M., after a brief hearing, sentenced the applicant under Article 172 of the CAO to three days of administrative detention. The judge's entire finding amounted to the following sentence: “On 7 April 2003 at around 17h00 ... on the Mashtots Avenue [the applicant], together with a group of people, obstructed street traffic, violated public order by making a loud noise, and incited other participants of the demonstration to do the same...” 19.     The decision stated that it was subject to review by the Chairman of the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարանի նախագահ ). 20.     According to the record of the court hearing – drawn up in a calligraphic handwriting – the hearing was held in public with the participation of the judge, a clerk and the applicant. The judge explained the applicant's rights to him and informed him of the possibility to challenge the judge and the clerk. The applicant did not wish to lodge any challenges. He stated that he was aware of his rights and did not wish to have a lawyer. The judge read out the motion submitted by the police, seeking to impose administrative liability on the applicant. The applicant stated that he, together with a group of unknown people, had blocked the traffic on the Mashtots Avenue. He said that he did this because it was a demonstration and everybody else was doing the same. He made noise since everybody else was making noise, but he did not push anybody. No questions were put to the applicant. Thereafter, the judge read out and examined the materials prepared by the police. Having familiarised himself with these materials, the applicant accepted that he had signed the record of an administrative offence but objected to being subjected to administrative liability since the incriminated acts had been committed also by others. The judge departed to the deliberation room, after which he returned and announced the decision. The time of the hearing was not recorded. 21.     The applicant alleged, and the Government did not explicitly dispute, that the above record was a fake and was drafted at some point after the hearing in order to create an appearance of lawfulness. In reality there was no clerk and the hearing was not being recorded. The hearing lasted only about five minutes and was conducted in judge M.'s office. The applicant further alleged that, contrary to what the record stated, only the judge, the applicant and the accompanying police officer were present at the hearing. The latter did not as such participate in the hearing and his functions were limited only to bringing the applicant before the judge. The judge listed the materials prepared by the police and asked the applicant “what do you want?”. “Justice and lawfulness” replied the applicant. The judge continued reading through the materials and said “since you have three children and have not been guilt-stained in the past, I will impose a mild sentence of three days of detention”. The applicant in reply tried to present the circumstances of the case, petitioned the judge to summon some witnesses and requested a lawyer. The judge listened silently to the applicant, signed some papers and let the applicant go, after which he was taken to a detention centre where he served his sentence. 22.     On 14 April 2003 the applicant applied to a local human rights NGO, “February 22nd” ( «Փետրվարի 22» իրավապաշտպան կազմակերպություն ), complaining in detail about the above-mentioned events and seeking its assistance. He submitted, inter alia , that the police officers had prompted him to sign a document refusing a lawyer, persuading him that a lawyer was not necessary in his case. 23.     On 28 April 2003 the NGO complained to the General Prosecutor ( ՀՀ գլխավոր դատախազ ) on behalf of the applicant, seeking to institute criminal proceedings against the police officers and judge M. 24.     By a letter of 27 May 2003 the Kentron and Nork-Marash District Prosecutor ( Կենտրոն և Նորք-Մարաշ համայնքների դատախազ ) informed the NGO that the decision of 7 April 2003 had been well-founded and there were no grounds for lodging a protest. II.     RELEVANT DOMESTIC LAW A.     The Constitution of Armenia of 1995 (prior to the amendments introduced in 2005) 25.     The relevant provisions of the Constitution read as follows: Article 24 “Everyone has the right to express his opinion. It is prohibited to force anyone to give up or change his opinion. Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and ideas through any information medium regardless of frontiers.” Article 26 “Citizens have the right to hold peaceful assemblies, rallies, processions and demonstrations without carrying arms.” Article 39 “Everyone has the right to have his violated rights restored, as well as, in the determination of a charge against him, the right to a fair and public hearing by an independent and impartial tribunal with a respect for equality of arms.” Article 40 “Everyone has the right to legal assistance. In cases prescribed by law legal assistance is provided free of charge. Everyone has the right to have a defence counsel from the moment of his arrest, detention or accusation.” Article 44 “No restrictions may be placed on the exercise of the rights and freedoms guaranteed under Articles 23-27 of the Constitution other than such as are prescribed by law and are necessary in the interests of national security or public safety, for the protection of public order, health or morals, or for the protection of the rights, freedoms, honour and reputation of others.” Article 94 “The guarantor of independence of the judicial authorities is the President of [Armenia]. He presides over the Council of Justice.” [ Article 94 and 94.1 following the amendments of 2005 “The independence of the courts is guaranteed by the Constitution and by law... The Council of Justice is composed of nine judges, elected in accordance with a procedure prescribed by law for a period of five years by secret ballot at the general meeting of judges of Armenia, and of four legal scholars, two of which are appointed by the President of [Armenia] and the other two by the National Assembly. The meetings of the Council of Justice are presided over by the President of the Court of Cassation who does not have the right to vote.”] Article 95 “The Council of Justice ..., upon the proposal of the Minister of Justice, shall prepare and submit for the President's approval the annual lists of professional fitness and career development of judges on the basis of which appointments are made...” Article 96 “A judge [is] irremovable. He shall stay in his post until the age of 65.” Article 97 “In administering justice, a judge ... [is] independent and obey[s] only the law.” B.     The Code of Administrative Offences of 1985 26.     The relevant provisions of the Code, as in force at the material time, read as follows: Article 9: The notion of an administrative offence “A person shall be liable to an administrative penalty for offences envisaged by this Code, if these offences by their nature do not attract a criminal penalty in accordance with the law.” Article 22: The aims of an administrative penalty “An administrative penalty is a form of liability which is imposed in order to educate the person, who has committed an administrative offence, to uphold the Soviet laws and to respect the rules of socialist way of life, as well as to deter the offender and others from committing new offences.” Article 23: The types of administrative penalties [the provisions concerning “correctional labour” and “administrative detention” are no longer in force as of 16   December 2005] “The following administrative penalties may be [ inter alia ] imposed for committing an administrative offence: ... (2) a fine; ... (6) correctional labour; (7) administrative detention.” Article 31: Administrative detention [no longer in force as of 16 December 2005] “Administrative detention is prescribed and imposed only in exceptional cases for certain types of administrative offences for a period not exceeding fifteen days. Administrative detention is imposed by a court (a judge).” Article 172: Minor hooliganism [no longer in force as of 16 December 2005] “Minor hooliganism, i.e. obscene swearing at a person or an offensive annoyance of a person in a public place and other similar actions which disturb public order and peace of citizens, leads to an imposition of a fine in the amount between 150% and triple of the fixed minimum wage, or of correctional labour between one and two months with deduction of 20% of the earnings, or, in cases where, in the circumstances of the case, taking into account the offenders personality, the application of these measures would be deemed insufficient, of administrative detention not exceeding 15 days.” Article 223: Judges of first instance courts “Judges of first instance courts examine cases concerning administrative offences envisaged by ... [ inter alia ] Article 172 ... of this Code.” Article 249: Public examination of the case on an administrative offence “Cases on administrative offences are examined in public.” Article 250: Monitoring by the prosecutor of the enforcement of laws in the context of proceedings on administrative cases “The public prosecutor, who ... monitors the enforcement of laws in the context of proceedings on administrative cases, is entitled to institute the administrative proceedings; to familiarise himself with the materials of the case; to scrutinise the lawfulness of actions of the authorities (public officials) in the course of the administrative proceedings; to participate in the examination of the case; to lodge motions and make conclusions in respect of questions arising during the examination of the case...” Article 251: Evidence “Any facts, on the basis of which the authorities (public officials) establish the existence or absence of an administrative offence and the guilt of a particular person, as well as other circumstances decisive for the proper outcome of the case, constitute evidence in an administrative case. Such facts are established by the record of an administrative offence, the statement of the person against whom administrative proceedings are brought, testimonies of the victim and witnesses, expert opinions, exhibits, the record of seizure of objects and documents, as well as by other documents.” Article 254: The record of an administrative offence “The record of an administrative offence shall be drawn up by an authorised official...” Article 255: The content of the record of an administrative offence “The record of an administrative offence shall contain: the date and the location when and where it was drafted; the post and name of the person drafting it; information concerning the offender; the location, time and essence of the administrative offence; the legal act prescribing a penalty for the offence committed; names and addresses of witnesses and victims, if any; the explanation of the offender; other information necessary for the determination of the case. The record shall be signed by the person drafting it and the offender... If the offender refuses to sign the record, a relevant entry is made in the record. The offender is entitled to make explanations and comments concerning the content of the record, which are to be attached to it, and also to indicate the reasons for refusing to sign it. When drafting the record, the offender must be made aware of his rights and obligations under Article 267 of this Code and a relevant entry must be made in the record.” Article 256: Transmittal of the record “The record [of an administrative offence] shall be transmitted to the authority (public official) authorised to examine the administrative case.” Article 259: Measures aimed at ensuring the proper conduct of the proceedings in cases concerning administrative offences “... in order to prevent administrative offences, if other measures of compulsion have been exhausted, and to ensure the timely and accurate examination of cases and the enforcement of decisions in cases on administrative offences, a person may be subjected to an administrative arrest, search, inspection of belongings and confiscation of belongings and documents, for the purpose of verifying his identity and drawing up a record of an administrative offence, if this record cannot be drawn up on the spot and if such a record is required to be drawn up.” Article 260: Administrative arrest “An administrative arrest must be recorded[. The record] must indicate the date and place, the post and the name of the person drawing up the record; information about the arrestee; the time, place and grounds of the arrest.” Article 261: Authorities (officials) authorised to impose an administrative arrest “Only authorities (officials) authorised by the laws of the USSR and Armenia can impose an administrative arrest on a person who has committed an administrative offence[. These include, inter alia ,] the internal affairs authorities in cases of minor hooliganism...” Article 267: The rights and obligations of the person against whom administrative proceedings are brought “The person against whom administrative proceedings are brought has the right to familiarise himself with the materials of the case, to make statements, to submit evidence, to lodge motions, and to have legal assistance during the examination of the case.” Article 271: The witness “Any person, who may be aware of any circumstance connected to the case which needs to be clarified, may be called as a witness in an administrative case.” Article 277: Time-limits for the examination of an administrative case “Cases concerning administrative offences envisaged under ... [ inter alia ] Article 172 ... of this Code shall be examined within one day...” Article 278: The procedure for the examination of an administrative case “At the hearing, [the examining authority] announces the case that is to be examined and the person against whom administrative proceedings are brought, explains to the persons participating in the case their rights and obligations, and reads out the record of an administrative offence. [The examining authority] hears the persons participating in the case, examines the evidence and rules on motions. If a public prosecutor participates in the case, [the examining authority] hears his opinion.” Article 279: Circumstances to be clarified during the examination of an administrative case “In examining the administrative case, the authority (public official) must clarify whether an administrative offence has been committed; whether the person in question is guilty of committing it; whether an administrative penalty should be imposed; whether there are mitigating and aggravating circumstances; whether pecuniary damage has been caused...” Article 286: The right to lodge an appeal [( գանգատ )] against the decision taken on an administrative case “The court's (the judge's) decision to impose an administrative penalty is final and not subject to appeal in administrative proceedings, except for the cases prescribed by law.” Article 289: Lodging a protest [( բողոք )] against the decision taken on an administrative case “The prosecutor can lodge a protest against the decision taken on an administrative case.” Article 294: The powers of a judge ... [and] of the chairman of the superior court ... in reviewing the case “The judge's decision to impose an administrative penalty for an offence envisaged under ... [ inter alia ] Article 172 ... can be quashed or modified by the judge himself upon a protest of the prosecutor and, whether or not such a protest is lodged, by the chairman of the superior court.” C.     The Law on the Status of a Judge ( Դատավորի կարգավիճակի մասին ՀՀ օրենք ) Article 5: Independence of a judge “In administering justice, a judge is independent and obeys only the law. In administering justice, a judge is not accountable to any public authority or a public official.” Article 6: Impermissible nature of interference with a judge's performance of his functions “Any interference by public authorities, bodies of local self-government and their officials, political parties, non-governmental associations and media with a judge's performance of his functions of administering justice is impermissible and leads to accountability prescribed by law. A judge is not obliged to give explanations concerning a case or the substance of materials under his consideration or to grant access to them other than in cases and according to a procedure prescribed by law.” D.     The Ministry of Justice Regulations ( ՀՀ արդարադատության նախարարության կանոնակարգ ) adopted on 28 November 2002 27.     Chapter 9 of these Regulations prescribes the rules for organising and holding the proficiency test on the basis of which the annual lists of professional fitness and career development of judges are prepared by the Ministry of Justice. III.     RELEVANT DOMESTIC DECISIONS 28.     On 16 April 2003 the Constitutional Court adopted a decision on the basis of an application lodged by the main opposition candidate in the presidential election challenging the conduct and results of the election ( ՀՀ սահմանադրական դատարանի որոշումը ՀՀ նախագահի 2003 թ. մարտի 5-ի ընտրության արդյունքները վիճարկելու վերաբերյալ գործով ). The Constitutional Court noted, inter alia , that a number of authorised election assistants had been subjected to administrative detention in the second round of the election and had thus been deprived of the possibility of actively pursuing their duties any further. The Court further stated that subjecting to administrative detention for having participated in unauthorised demonstrations and marches constituted an interference with the right to freedom of peaceful assembly guaranteed by Article 11 of the Convention. First of all, such application of this procedure was in contradiction with European “rule of law” standards, and secondly, all such decisions made by the courts were to be a topic for discussion in the Council of Court Chairmen and the Council of Justice in terms of both their form and substance. IV.     RELEVANT RESOLUTIONS AND REPORTS ON THE APPLICATION OF THE PROCEDURE OF ADMINISTRATIVE DETENTION BEFORE, DURING AND IMMEDIATELY AFTER THE PRESIDENTIAL ELECTION OF FEBRUARY-MARCH 2003 A.     Resolution 1304 (2002) of the Parliamentary Assembly of the Council of Europe (PACE): Honouring of obligations and commitments by Armenia 29.     The relevant extract from the Resolution provides: “9.     The Assembly further invites the authorities to revise the Administrative Code without delay. It urges them to abolish the provisions concerning the administrative detention and to refrain from applying them in the interim. It warns the authorities of the abuses their application leads to, which are seriously at variance with the principles of the Organisation.” B.     Report by the PACE Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe, Doc. 10027, 12 January 2004 30.     The relevant extracts from the Report provide: “32.     The day after the first round of the presidential election held on 9 February 2003, several demonstrations and protest meetings took place in Yerevan and several towns at the prompting of opposition political parties. 33.     Between the two rounds of the elections, and as from 22 February, more than 200 people were arrested by the police at the behest of the authorities – among them some members of the political parties in opposition or of their campaign staff, and agents of these parties. Despite the Parliamentary Assembly's stipulation that the authorities must no longer avail themselves of the arbitrary procedure of administrative detention prescribed by the Administrative Code, these persons were arrested, taken into custody without notification of their families then brought before the courts and sentenced to a fortnight's administrative internment in over 80 cases, or to fines in 65 other cases. The persons concerned were tried in camera and with few exceptions did not receive the assistance of a lawyer. Many were unable to participate in the second round of the election. 34.     Further arrests were made after the second round of the election. The Ministry of Justice has acknowledged that 132 people were arrested between 17 and 25 March, 69 of them being sentenced to an “administrative” custodial penalty and 63 to a fine. According to the OSCE, 77 is the number sentenced to a term of imprisonment over that period. 35.     In our previous report we commented on the outrageousness and arbitrariness of this summary procedure prescribed by the Administrative Code. An authentic remnant of the Communist style of justice inherited from the Soviet era, this procedure denies the person charged the right to inform his/her family or to request the immediate assistance of a lawyer, and enables a judge, under an arrangement for immediate trial in camera, to have him/her held for a fortnight maximum. This procedure is simply disgraceful... 37.     During our August 2003 visit, the authorities justified their decision to arrest and convict these demonstrators by invoking the need to shield law and order from their misdeeds. They claim that the demonstrators were just thugs, “antisocial elements”, alcoholics or drug addicts. This sort of talk has a ring to it that is like a revival of the evidently not so distant Soviet past. 38.     We expect the authorities to do their utmost in the future to reconcile the freedom to demonstrate and the freedom to come and go with respect for law and order. This right must be secured to all and sundry, especially at election time. Preservation of law and order must not serve to condone wrongful deprivation or restriction of freedom to form assemblies and to demonstrate.” C.     Resolution 1361 (2004) of the PACE: Honouring of obligations and commitments by Armenia 31.     The relevant extracts from the Resolution provide: “14.     The Assembly is shocked by the scandalous use that continues to be made of the arbitrary procedures concerning administrative detention provided for in the Administrative Code, which is totally incompatible with its strongly-worded statement in Resolution 1304 of September 2002 that the Armenian authorities should no longer make use of these procedures. It firmly condemns the arrest and conviction of over 270 people – members of the opposition parties, sympathisers and office-holders – between the two rounds of the presidential election and at the end of the second round.   It expects the Armenian authorities to discuss by February 2004 the issue of administrative detention provided for in the Administrative Code in co-operation with Council of Europe experts and to send the draft amendments for the Council of Europe's expertise by April 2004. 15.     The Assembly asks the Armenian authorities to immediately begin examining, in co-operation with the Council of Europe, the question of the balance to be struck between freedom of assembly and demonstration and respect for public order, and to adopt a law on demonstrations and public meetings in full compliance with Council of Europe principles and standards.” D.     Human Rights Watch Briefing Paper, 23 May 2003, An Imitation of Law: the Use of Administrative Detention in the 2003 Armenian Presidential Election 32.     The relevant extracts of the Briefing Paper provide: “ The opposition demonstrations of February to April 2003 In the period between the [19 February 2003] round and [5 March 2003] runoff of the presidential election, the [main opposition candidate] campaign staged several rallies in the center of Yerevan, each of which attracted tens of thousands of supporters... After the [5 March 2003] runoff the [main opposition candidate] campaign continued to stage rallies in the center of Yerevan at intervals of several days or a week, to protest alleged election fraud... Rendering opposition rallies illegal Although ... rallies and protest demonstrations [in support of the main opposition candidate] were largely peaceful, the governing authorities portrayed them as a threat to public order and political stability, and used this as grounds for arrests... The campaign of arrests [21-27 February 2003]: the first wave of arrests In a first wave of arrests, roughly 160 chiefs and staff of regional and district [main opposition candidate] campaign headquarters, [authorised election assistants], and even drivers were taken to their local police stations... Dozens of activists were arrested at their homes in different regions of the country the morning after police supposedly picked them out, among several tens of thousands, at an 'unauthorised' rally in Yerevan in the late afternoon of [21 February 2003]. When police officers took opposition activists from their homes it was invariably on the pretext that the local police chief wanted to talk to them. Some activists accompanied the officers willingly, and some initially refused, but met threats in response... In some cases where the police did not initially find the activist at home, they resorted to violent or extra-legal tactics. There were instances of the police taking family members as hostages, to compel activists to give themselves up... [1-17 March 2003]: conditional releases, continuing pressure Following international pressure ... about seventy-five of the eighty-six men serving election rally-related administrative detention sentences were released during the weekend of [1-2 March]... [18-22 March 2003]: the second wave of arrests During this five-day period, as post-election protest rallies continued, the police arrested approximately ninety ... activists [supporting the main opposition candidate] in Yerevan, Abovian, Artashat district, Talin, and other areas. Most were taken from their homes – some for the second time. Dozens received administrative detention sentences. [7-9 April 2003]: around the presidential inauguration Several men and women were arrested after [a 7 April 2003] demonstration in central Yerevan, and given administrative fines or terms of detention... Due process violations in administrative offences proceedings Incommunicado preliminary detention On bringing opposition activists to the police station, officers kept them in incommunicado detention, depriving them of counsel. This allowed police wide scope to pressure the activists to admit guilt. In many cases, the police refused to inform or acknowledge to relatives and lawyers of people who had gone missing that they were in police custody. A lawyer who took on the cases of more than thirty activists taken in the first wave of arrests said that simply finding the people he had been tasked to represent was his primary task, and providing legal assistance came a distant second. The wife of an activist arrested in Armavir said: 'For five days they gave no information. We did not know whether he was alive or dead.' When lawyers, relatives, or human rights groups tried to find detainees in custody, police did not cooperate. Lawyer [T. T.-Y.] said: 'When we go to police departments, we are told the detainee is in court. When we go to the court, they say he or she is in one of the police departments. Before the confusion is resolved, a court verdict for fifteen days of administrative detention has already been issued.' In Armenia, there is no system of obligatory, transparent registration of all detainees at police stations. [T.-Y.] noted: 'Wherever we went, they said, 'No, he's not here.' The lack of any documentation of detentions makes it difficult for us to dispute. They can claim afterward that the detainee was not there at the exact time we came and asked.' In two cases Human Rights Watch documented, police pretended detainees were not at a particular police station when they patently were. The police kept detainees for as long as they considered necessary, with little apparent reference to procedural rights guarantees... Since most were brought in on the pretext of 'a chat' with the police chief, the legal basis of their detention was not immediately clear – whether or not they were arrested, and if so, whether under the administrative or criminal code. With some detained activists the police were initially at a loss as to what to charge them with. With others, the police manipulated the ambiguity, threatening both criminal and administrative charges. At Echmiadzin police station, officers threatened to press criminal charges against [one defendant] if he refused to confess that he resisted and swore at the policemen who had just taken him from his home. He recalled: 'I signed on the strength of their promise that I would only get two days of administrative detention.' From mid-March onward, the police extracted either written confessions or undertakings to take no further part in rallies from a number of activists by threatening to beat them. [One defendant], detained at the Yerevan City Police Department, stated that her three interrogators pointed out the lockup in the courtyard, said it was full of women, and that they would all be truncheoned that night: 'Then they showed me black spots on the carpet and said it was blood. Through this kind of pressure they forced me to write that I took part in a rally and obstructed traffic.' In several cases, police did use violence: [one defendant] alleged she was hit on the head with a plastic bottle of water; [another defendant] recounted being hit with a pistol butt, then punched and kicked. Flawed court hearings In almost all cases, administrative court hearings against opposition activists were closed and cursory. Courts considered only police evidence, and did not give the defendant the opportunity to summon defence counsel or defence witnesses. Several factors indicate that the judges acted under the influence of political authorities. In many cases, judges issued the harshest administrative sentence possible – fifteen days detention – to opposition activists. Some judges at [the Kentron and Nork-Marash District of Yerevan] were frank with defendants about their one-sentence-fits-all-policy. A judge told [one defendant]: 'Those who took part in the rally – we are giving them all fifteen days.' When [another defendant] asked a judge to consider handing him a shorter sentence, the latter replied that: 'his instructions were to put us all away for fifteen days – no less.' Judges' questioning of several defendants was blatantly political, such as: 'Why do you play at opposition?' and, 'Why do you bad-mouth the government?' They warned some not to participate in opposition rallies again. The police appeared to exercise control over the courts when they were in administrative session. During the week of [22-28 February 2003], when [the Kentron and Nork-Marash District Court of Yerevan] tried nearly one hundred [main opposition candidate] supporters, 'Red Berets' – police commandos – sealed off the building to the public. The chairman of the court acknowledged that their deployment was an initiative of the police leadership on which the court was not consulted... Some defendants demanded lawyers, but court officials and police told them that they were either 'not necessary' or 'not allowed' in administrative cases. Although he had a contract with [a defendant], lawyer [N.B.] was barred from entering [on 22 February 2003 the Kentron and Nork-Marash District Court of Yerevan] to defend him. In the absence of public scrutiny or defence counsel, judges applied sloppy or arbitrary reasoning in their examination of cases, or none whatsoever. In most cases, hearings lasted from a few seconds to a few minutes, and the written judgments were pre-prepared. The judge started [one defendant's] hearing by reading out his sentence – fifteen days detention for having participated in an unauthorised march. When [the defendant] objected that he had not participated in the march, he related, 'The judge just said, 'It is proven' and called a policeman to take me away.