CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 octobre 2020

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margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s867F9C1B { width:175.28pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }     FIRST SECTION CASE OF SMBAT AYVAZYAN v. ARMENIA (Application no. 49021/08)     JUDGMENT Art 11 • Freedom of peaceful assembly • Arbitrary prosecution and conviction of opposition supporter, linked to his participation in a protest movement • Repetitive pattern of artificial and politically motivated arrests and prosecution of opposition activists Art 5 § 1 • Lawful arrest or detention • No court decision for continued detention Art 5 § 3 • Reasonableness of pre-trial detention • Failure of domestic courts to provide relevant and sufficient reasons for applicant’s continued detention Art 5 § 4 • Review of lawfulness of detention • Unjustified refusal to examine applicant’s appeal against extended detention on sole ground that the criminal case was no longer considered to be in its pre-trial stage Art 6 § 1 (criminal) • Fair hearing • Criminal conviction for assaulting a police officer secured to decisive extent on testimony of police officers actively involved in contested events • Failure of domestic court to verify the incriminating statements   STRASBOURG 8 October 2020   FINAL   08/01/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Smbat Ayvazyan v. Armenia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Krzysztof Wojtyczek, President,   Linos-Alexandre Sicilianos,   Aleš Pejchal,   Pere Pastor Vilanova,   Pauliine Koskelo,   Jovan Ilievski, judges,   Armen Mazmanyan, ad hoc judge, and Renata Degener, Deputy Section Registrar, Having regard to: the application 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   Smbat Ayvazyan (“the applicant”), on 24 September 2008; the decision to give notice of the complaints concerning the applicant’s detention, the fairness of his trial, and an alleged violation of his right to freedom of expression and freedom of peaceful assembly to the Armenian Government (“the Government”) and to declare inadmissible the remainder of the application; the parties’ observations; the decision by the President of the Chamber to appoint Mr Armen Mazmanyan to sit as an ad hoc judge (Rule 29 of the Rules of Court), Mr   Armen Harutyunyan, the judge elected in respect of Armenia, being unable to sit in the case (Rule 28); the letter by the applicant’s widow informing the Court of the applicant’s death and of her wish to pursue the application lodged by him; Having deliberated in private on 15 September 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the alleged failure of a short period of the applicant’s detention to comply with the lawfulness requirement of Article   5 §   1   of the Convention, the failure of the domestic courts to provide relevant and sufficient reasons for his detention as required by Article 5 §   3 of the Convention, the refusal to examine his appeal against detention in violation of the guarantees of Article 5 § 4 of the Convention, the alleged unfairness of the applicant’s trial and a breach of his right to call witnesses as guaranteed by Article 6 §§   1 and 3 (d) of the Convention, and the allegation that the applicant’s prosecution and conviction were in breach of the requirements of Articles 10, 11 and 14 of the Convention. THE FACTS 2.     The applicant was born in 1959 and at the time of his death in 2014 he was living in Paris. The applicant was represented by Ms L. Sahakyan, 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. The 19 February 2008 presidential election and the post-election events 5.     On 19 February 2008 a presidential election was held in Armenia. The main contenders were the then Prime Minister, Mr Sargsyan, representing the ruling party, and the main opposition candidate, Mr 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, a former member of the Armenian Parliament who had in the past also occupied different posts in the Government, including a ministerial one, was a member of the political council of an opposition party and a supporter of Mr   Ter ‑ Petrosyan’s candidacy at the presidential election. He was an active participant in the rallies, regularly attending the ongoing demonstrations and sit-ins. It appears that the applicant spent the night of 23 to 24 February 2008 at Freedom Square. The criminal proceedings against the applicant The applicant’s arrest and institution of a criminal case 8.     According to the applicant, on 24 February 2008 at around 10 a.m. he and two of his friends, A.Sis. and V.K., were driving home from the rally at Freedom Square when their car was blocked on Teryan Street by another car, from which masked gunmen emerged and demanded that he and his friends get out of their car. He was thrown to the ground and searched but nothing was found. He and the others were then forced into the car and taken to the Principal Department for the Fight against Organised Crime of the Armenian Police (hereafter, the PDFOC). 9 .     According to the “record of bringing a person in”, the applicant was “brought in” to the PDFOC on 24 February 2008 at around 11.30 a.m. by operative police officers of the PDFOC “on suspicion of carrying illegal arms and ammunition”. 10.     At 11.45 a.m. the applicant was subjected to a search at the PDFOC by police officers in the presence of two attesting witnesses. It was indicated in the relevant record that a spring baton had been found in the applicant’s coat pocket. It was further indicated that the applicant had stated that the baton belonged to him and that he carried it for self-defence. 11 .     The applicant, in his application to the Court, contested the circumstances of his being searched and alleged that no arms or other prohibited items had been found as a result of this search. He had then been taken to another room where a police officer had produced a baton, saying that it had been found in his car. He had denied that the baton belonged to him or that it had ever been in his car, but the police officers had started persuading him to admit that the baton had been found during his personal search, saying that he, as a member of the Hunters’ Union, was allowed to own it. Then they had threatened that if he refused to confess, they would record that the baton had been found during the personal search of A.Sis. and V.K. for which they, not being members of the Hunters’ Union, would be prosecuted. Under such circumstances, he had been compelled to confess that the baton belonged to him. Only after that had the two attesting witnesses been called in and a record of his personal search had been drawn up. 12.     At an unspecified hour the applicant’s car was searched at the PDFOC and a Makarov-type pistol was found. 13 .     On the same day one of the PDFOC officers addressed a report to the Head of the PDFOC, according to which on 24 February 2008 at 11 a.m. an anonymous call had been made to the PDFOC stating that a Lexus-model black car was parked at the crossroads of Teryan and Koryun Streets in Yerevan and that its passengers were armed. An operative group of police officers of the PDFOC had immediately set off to the scene and taken into custody the above-mentioned car and its passengers: the applicant, A.Sis. and V.K. A spring baton had been found when the applicant was searched and a Makarov-type pistol was found on searching his car. 14.     A statement was taken from the applicant, who submitted that he had spent the previous night at Freedom Square at a rally in support of Mr   Ter ‑ Petrosyan and that in the morning on his way home his car had been stopped on Teryan Street by police officers who had taken him and the other passengers to the PDFOC. The applicant further submitted that the Makarov pistol belonged to him, was a registered weapon granted to him in 1994 by the Minister of Defence and that he had the necessary documents showing that he carried it legally. As regards the baton found during his search, it also belonged to him and he carried it for self-defence. 15 .     On the same day the applicant and the materials concerning his case were transferred for further inquiry from the PDFOC to Kentron Police Station of Yerevan, where an investigator decided to order that the applicant undergo a forensic toxicological-chemical examination to detect use of drugs, reasoning the need for such examination by the fact that a baton had been found in the applicant’s possession. The investigator also ordered a forensic examination of the Makarov pistol, which was later found by the forensic expert to lack a hammer, rendering it ineffective and therefore not to be considered a firearm. 16.     At 11 p.m. the applicant was taken by police officers K.H., E.P. and A.S. of Kentron Police Station to the National Bureau of Examinations where he underwent the assigned forensic toxicological-chemical examination, which revealed no traces of drugs in his body. 17.     Upon return, the three police officers reported to the Chief of Kentron Police Station that on the way back from the Bureau the applicant had started complaining of being treated unlawfully and threatened them with violence. According to the police officers, upon reaching the police station the applicant had disobeyed their order to step out of the car, then pushed police officer K.H. when leaving the car and started a scuffle with him, refusing to enter the police building and punching K.H. several times in the chest. The applicant had then been forcibly pushed into the police station by the three officers, where he continued threatening them with violence. 18 .     The applicant alleged that no such incident had ever happened. According to him, as the car had pulled up at Kentron Police Station, he had got out of the car upon an order from one of the police officers and they had accompanied him into the building. The only thing that he had said at the time when he got out of the car had been to tell the police officers that his arrest was unlawful. The applicant further alleged that a number of his relatives and friends, one of his future defence lawyers and a journalist had been standing at that time near the police station, since they had been informed about his transfer to Kentron Police Station and had gathered there expecting his release. 19.     On 25 February 2008 the investigator took statements from the three police officers, who confirmed their earlier reports. 20 .     On the same date the investigator decided to institute a criminal case under Article 316 § 1 (non-life or health-threatening assault on a public official) of the Criminal Code (CC). The relevant decision stated: “On 24 February 2008 around 11 p.m. [the applicant], who had been brought in from the crossroads of Koryun and Teryan Streets of Yerevan on suspicion of using drugs and illegal possession of arms, was transported to [the National Bureau of Examination] to give samples. On the way back, the applicant, first in the car and then in the front yard of Kentron Police Station, disobeying the lawful orders of the police officers, insulted them and assaulted them in a non-life-threatening way by punching [one of the] police officers.” 21 .     On the same day at 1.35 a.m. a record of the applicant’s arrest was drawn up which stated that the applicant was arrested on suspicion of having committed an offence under Article 316 § 1 of the CC. 22.     On the same day police officers K.H., E.P. and A.S. were questioned as witnesses and confirmed their earlier statements. 23.     The applicant was questioned as a suspect but refused to testify or answer any questions, declaring that he was a victim of political persecution and that the charge against him was trumped up. 24.     On the same day police officer K.H. underwent a forensic medical examination which did not reveal any injuries on his body. The charge against the applicant and his placement in detention 25 .     On 27 February 2008 the applicant was formally charged under Article 316 § 1 of the CC. The decision stated that on 24 February 2008 at around 11.30   p.m. in front of Kentron Police Station the applicant had threatened the police officers and, in defiance of their lawful orders, inflicted non-life-threatening violence on police officer K.H by punching him in the chest. 26.     On the same date the applicant was brought before the Kentron and Nork-Marash District Court of Yerevan (hereafter, the District Court) which examined the investigator’s application seeking to have him detained for a period of two months on the ground that, if he remained at large, he could commit a new offence, abscond or obstruct the investigation. 27.     The applicant submitted before the District Court that the application was unsubstantiated. He had not resisted or punched the police officers and would not have been able to do so since he had been handcuffed. He was a war veteran and had many military awards, no criminal record and a permanent place of residence. The applicant declared that the case against him was politically motivated. 28 .     The District Court decided to allow the investigator’s application, finding that, if the applicant remained at large, he could commit a new offence, abscond or obstruct the investigation. 29.     On 29 February 2008 the investigator decided to order a forensic examination of the spring baton. The forensic expert concluded that, based on the overall appearance, measurements and structure of the baton, as well as on the relevant literature, it could be concluded that the baton was a factory ‑ produced mace which could be characterised as a striking-crushing cold weapon ( սառը զենք ). 30.     On the same date the results of the toxicological-chemical examination were produced and no traces of drugs were found in the applicant’s body. The events of 1-2 March 2008, institution of criminal proceedings and joinder of the applicant’s case to those proceedings 31.     On 1 March 2008 in the early morning a police operation was conducted on Freedom Square where several hundred demonstrators were camping, as a result of which Freedom Square was cleared of all the demonstrators, resulting in clashes between the demonstrators and the police. 32 .     On the same date criminal proceedings were instituted regarding the events at Freedom Square on the grounds that the leaders of the opposition and their supporters had organised unlawful demonstrations, incited disobedience and committed violence against the police (for further details see Mushegh Saghatelyan v. Armenia , no. 23086/08, § 15, 20 September 2018). 33.     It appears that, later that day, the situation in Yerevan deteriorated and the rallies continued in a number of streets until early in the morning of 2 March, involving clashes between protesters and law enforcement officers and resulting in ten deaths, including eight civilians, numerous injured and a state of emergency being declared by the President of Armenia. 34 .     On 2 March 2008 another set of criminal proceedings was instituted on the grounds that the leaders of the opposition and their supporters had organised mass disorder in the streets of Yerevan, including murders, violence and other reprehensible acts (ibid., § 17). 35.     On the same date both sets of proceedings were joined and examined under no. 62202608. 36 .     On 11 March 2008 the investigator decided to join the applicant’s criminal case to case no. 62202608, stating that the applicant had also taken part in organising and conducting the unlawful demonstrations. 37 .     On 12 March 2008 the investigator, referring to case no. 62202608, prohibited the applicant’s contact with the outside world, including close relatives, the media and any other person on the ground that such contact might obstruct the investigation. 38.     On 2 April 2008 the applicant went on a hunger strike, demanding that the authorities stop his political persecution and release him from detention. Extension of the applicant’s detention and a new charge against him 39 .     On 15 April 2008 the investigator applied to the court to have the applicant’s detention extended. Referring to the materials of the criminal case no. 62202608 and the progress made in the investigation of that case, the investigator stated, inter alia , that sufficient information had been obtained suggesting that the applicant, after the defeat of Mr Ter-Petrosyan in the presidential election, having joined a group of Mr Ter-Petrosyan’s like-minded followers and conspired with them to usurp State power in violation of Armenia’s Constitution, had actively participated in the implementation of the mentioned criminal plan. It was necessary to carry out further investigative measures to clarify the circumstances of his involvement in the criminal act in question. 40 .     On 21 April 2008 the District Court allowed the investigator’s application and extended the applicant’s detention by two months, taking into account the nature and dangerousness of the imputed offence and the fact that the applicant, if he remained at large, could abscond, obstruct the investigation or avoid criminal responsibility and punishment. In doing so, the District Court made a similar reference to the investigation conducted into criminal case no. 62202608. 41 .     On 26 April 2008 the applicant lodged an appeal arguing, inter alia , that the District Court’s decision was unreasoned and the risks of his absconding or obstructing the investigation were unsubstantiated. 42.     On 8 May 2008 the Criminal Court of Appeal dismissed the appeal, finding that the circumstances on which the applicant’s detention was based persisted, since there was still a high risk that the applicant could obstruct the investigation and abscond. 43.     On 23 May and 3 June 2008 the investigator questioned two other police officers, S.H. and A.H., who were said to be on guard duty at Kentron Police Station on the night of 24 February 2008. Police officer S.H. stated that he had heard loud noises from outside the police building, so he had stepped outside and seen police officers K.H., E.P. and A.S. holding the applicant by his arms, trying to push him into the police station. The applicant was disobeying, showing resistance to the officers and trying to free himself, while shouting and making threats. He had eventually been pushed inside the station where he had continued making threats. Police officer A.H. stated that he had been inside the station and seen that a person, whom he later recognised as a former minister, held by his arms by the three officers, had been brought inside the station where he had briefly threatened to have the officers’ heads smashed and then had calmed down and sat down. Both S.H. and A.H. stated that police officer K.H. had sat down when inside the station, holding his hand to his chest and saying that the applicant had punched him. 44 .     On 15 June 2008 the investigator applied to the court to have the applicant’s detention extended once more. He once again made a reference to the materials of criminal case no. 62202608, adding that, following a number of investigative measures, no sufficient evidence had been obtained directly implicating the applicant in the commission of the criminal act investigated in that case. 45.     On 18 June 2008 the applicant’s criminal case was disjoined from case no. 62202608 as it was apparently ready for trial. 46 .     On 19 June 2008 the General Prosecutor’s Office wrote to the investigator dealing with the applicant’s case, drawing his attention to the fact that the applicant had been charged only under Article 316 § 1 of the CC, whereas his actions had also contained elements of an offence envisaged by Article 235 § 4 of the CC (illegal carrying of a cold weapon). The investigator was instructed to bring new charges. 47.     On 20 June 2008 the District Court extended the applicant’s detention by 20 days, namely until 15 July 2008, on the same grounds as previously. 48 .     On 24 June 2008 the applicant lodged an appeal, raising the same arguments as previously. 49 .     On 26 June 2008 the investigator decided to bring a new charge against the applicant under Article 235 § 4 of the CC. The decision stated that a spring baton had been found in the applicant’s coat pocket as a result of the personal search conducted upon “bringing him to the police station” on 24 February 2008. 50.     On 7 July 2008 the investigation into the applicant’s criminal case was completed and the case was referred to the District Court for trial. 51 .     On 9 July 2008 the Criminal Court of Appeal decided to leave the applicant’s appeal of 24 June 2008 without examination on the ground that the investigation had been completed and the case had been referred for trial. The court proceedings 52 .     On 14 July 2008 a judge of the District Court who had taken over the applicant’s criminal case decided to set the case down for trial. 53.     On 22 July 2008, during the first hearing, the applicant requested to be released from detention arguing, inter alia , that his detention authorised by a court had expired on 15 July 2008, while the judge had failed to address the issue of his detention when deciding to set the case down for trial, in violation of Articles 293 and 300 of the Code of Criminal Procedure (CCP). 54.     On the same day the judge took a decision stating that the question of the applicant’s continued detention had been examined on 14 July 2008 when adopting the decision to set the case down for trial and it had been decided to leave the applicant’s detention unchanged. However, as a result of a typographical error, that paragraph had not been reflected in the operative part of the decision which was to be read as containing the phrase “to leave the applicant’s detention unchanged”. At the next hearing on 28   July 2008 the judge presented the parties with that decision and dismissed the applicant’s request for release. 55.     On 17 September 2008 another judge of the District Court who had taken over the applicant’s case decided to set the case down for trial and also ruled to leave the applicant’s detention unchanged. 56.     In the course of the trial the District Court summoned for questioning police officers K.H., E.P., A.S., S.H. and A.H. who maintained their statements against the applicant. 57.     After police officers S.H. and A.H. gave their testimony, the applicant requested additional time to prepare for their questioning. The District Court dismissed the request on the ground that the applicant and his defence lawyers had had enough time to prepare themselves. The District Court stated, however, that it was ready to allow such a request in the future if it were substantiated. At the next court hearing the applicant lodged a similar request, seeking to summon and question the two above-mentioned police officers. The District Court announced that it would examine the request after the applicant’s questioning but it appears that it never revisited that question. 58.     The applicant pleaded not guilty and contested the factual allegations against him, providing his account of events (see paragraphs 11 and 18 above). 59.     The applicant also lodged several requests with the District Court seeking to call witnesses on his behalf. Firstly, the applicant requested that a number of persons be summoned, including S.A., V.A., L.S., P.K., K.G. and A.Y., who were his relatives, political supporters and one journalist, submitting that, having learned about his arrest, they had gathered at Kentron Police Station and had been standing at the entrance when he was brought back by police officers from the forensic examination and that they could confirm that no incident had taken place as he left the car and entered the police building. Secondly, the applicant requested that A.Sis. and V.K., who had been kept at Kentron Police Station on the night from 24 to 25 February 2008, be summoned, submitting that they had witnessed from their cell window how he had been escorted into the police building and later had heard no shouts or sounds of protest when he had been escorted through the lobby inside the building. In support of those requests, the applicant’s lawyer submitted records of statements which the lawyer had taken from those persons containing their relevant submissions. 60 .     The District Court dismissed the first request on the ground that the case file contained no information about the persons in question, while the second request was dismissed on the ground that it was not necessary to call those persons since the materials of the case contained sufficient information to draw appropriate conclusions. 61.     The applicant’s lawyer then requested the District Court to admit as evidence the records of the statements taken from those persons. The District Court granted that request and the statements were included in the case file. 62.     On 19 November 2008 the District Court found the applicant guilty as charged and sentenced him under Article 316 § 1 of the CC to two years’ imprisonment and under Article 235 § 4 of the CC to a fine in the amount of 300,000 Armenian drams (AMD). The District Court found it to be established as follows: “[The applicant] illegally carried a spring baton (mace) characterised as a striking-crushing cold weapon which was found in his coat pocket and seized during his personal search on 24 February 2008. ... Having found out about the need to take samples from him, [the applicant] became agitated, started complaining and, on the way back [to the police station], made threats of retribution against the accompanying police officers who were performing their official duties. After urine and blood samples were taken from [the applicant], [the police officers accompanying him, namely K.H., E.P. and A.S.] were obliged, in accordance with the prescribed procedure and as part of their official duties, to bring [the applicant] before the authority which had ordered the forensic examination. Near the entrance to Kentron Police Station ... the victim, [K.H.], and witnesses, [E.P. and A.S.], for the purpose of performing their official duties, ordered [the applicant] to step out of the car and to enter the police building. [The applicant] disobeyed their lawful order and refused to step out of the car and to enter the building. After the victim [K.H.] repeated the order, [the applicant] first pushed and then, using non-life and health ‑ threatening violence, pulled and punched several times in the chest the victim [K.H.] who was performing his official duties, causing him physical pain. Thereafter [the applicant] was forcibly taken inside the lobby of Kentron Police Station, while he continued his threats addressed at the police officers.” 63 .     In reaching the above findings, the District Court relied on the statements of the police officers, the record of the applicant’s “bringing-in”, the record of the applicant’s search, the conclusions of the forensic expert characterising the baton as a striking-crushing cold weapon and the applicant’s statement of 24 February 2008 in which he had admitted that the baton belonged to him. As regards the applicant’s arguments and the materials submitted by him, the District Court found them to be unreliable, in conflict with the circumstances of the case and provided by persons who had close relations with the applicant, were not impartial and aimed to protect him. 64.     On 9 December 2008 the applicant lodged an appeal arguing, inter alia , that the District Court had failed to assess properly the evidence, ignored his submissions in support of his innocence, based its findings solely on the statements of police officers, refused to hear the persons whom he had sought to call as witnesses on his behalf and deprived him of the opportunity to question witnesses against him, namely police officers S.H. and A.H. He also alleged that the true reason for his prosecution and conviction was his being an opposition activist and to prevent his participation in the opposition demonstrations, arguing that he had been discriminated against on the basis of his political views. 65.     On 27 January 2009 the Criminal Court of Appeal upheld the judgment of the District Court and dismissed the applicant’s appeal, finding that the arguments relied on therein, including the impossibility to question in court police officers S.H. and A.H., could not serve as a valid ground for quashing the judgment as they were not indicative of a substantial violation of the criminal process and because the indictment and the conviction were based on sufficient evidence proving the applicant’s guilt. Besides, the applicant’s allegations that the true reason for his prosecution was his political activism and participation in the opposition demonstrations were unsubstantiated as the District Court had been guided by the law, legal awareness, inner conviction and the evidence obtained and examined in court. 66.     On 27 April 2009 the applicant lodged an appeal on points of law, raising similar arguments as in his appeal of 9 December 2008. 67.     On 15 June 2009 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. 68.     It appears that later that month the applicant was granted amnesty and released from prison after having served more than half of his sentence. RELEVANT LEGAL FRAMEWORK 69.     For a summary of the relevant domestic law, as well as of the relevant international materials, see Mushegh Saghatelyan (cited above, §§   91-134), Ara Harutyunyan v. Armenia (no. 629/11, §§ 30-37, 20 October 2016) and Poghosyan v. Armenia (no. 44068/07, §§ 26-41, 20 December 2011). A number of relevant international materials which were not quoted in those judgments provide as follows. Parliamentary Assembly of the Council of Europe (PACE) 70 .     On 15 April 2008 the PACE Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe produced the Report on the Functioning of Democratic Institutions in Armenia (Doc. 11579). The relevant extracts from the Explanatory Memorandum to the Report provide: “10.     The opposition received a boost in support when a number of high-level state officials publicly denounced the election as fraudulent and announced their support for Mr Levon Ter-Petrosyan. These officials were subsequently dismissed from their positions and a number of them, as well as several opposition activists, were arrested on seemingly artificial charges, which left the impression that their prosecution was politically motivated. According to the Helsinki Association of Armenia, a total of 14   persons were arrested and placed under investigation in the period from 20 to 29   February 2008.” Organisation for Security and Cooperation in Europe/Office for Democratic Institutions and Human Rights (OSCE/ODIHR) 71 .     Between April 2008 and June 2009 the OSCE/ODIHR conducted a monitoring project of about a hundred trials of opposition leaders and supporters related to the events of 1-2 March 2008, which included the applicant’s case under number 88. THE LAW PRELIMINARY REMARKS 72.     The Court notes at the outset that the applicant died on 8 June 2014, while the case was pending before the Court. The applicant’s widow, Mrs   Ruzanna Sargsyan, who is his heir, informed the Court that she wished to pursue the application lodged by him. The Court points out that it has accepted on numerous occasions that close relatives of a deceased applicant are entitled to take his or her place in the proceedings, if they express their wish to do so (see, among other authorities, Dalban v. Romania [GC], no.   28114/95, §§ 38-39, ECHR; Ashot Harutyunyan v. Armenia , no.   34334/04, §§ 86-87, 15 June 2010; Arras and Others v. Italy , no.   17972/07, §§   32 ‑ 33, 14 February 2012; and Ergezen v. Turkey , no.   73359/10, §§ 29-30, 8 April 2014). 73.     The Court does not see any special circumstances in the present case to depart from its established case-law and is prepared to accept that the applicant’s heir can pursue the application initially brought by Mr   Smbat   Ayvazyan. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 74.     The applicant complained under Article 5 § 1 of the Convention that his detention between 15 and 22 July 2008 had been unlawful since there had been no court decision authorising that period of detention as required by domestic law, under Article 5 § 3 of the Convention that the courts had failed to provide relevant and sufficient reasons for his continued detention, and under Article 5 § 4 of the Convention that the Criminal Court of Appeal had refused to examine his appeal of 24 June 2008. Article 5 §§ 1, 3 and 4 of the Convention, in so far as relevant, reads as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3.     Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4.     Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” Admissibility 75.     The Government submitted that the applicant had failed to exhaust the domestic remedies in respect of his complaints under Article 5 §§ 3 and   4 of the Convention, as required by Article 35 § 1 of the Convention. Firstly, he had not appealed against the decision of the District Court of 27   February 2008 to the Criminal Court of Appeal despite the fact that such a possibility was clearly provided for by the CCP. Secondly, the decisions of the Criminal Court of Appeal of 8 May and 9 July 2008 had not been appealed against to the Court of Cassation. 76.     The applicant argued that he had not appealed against the District Court’s initial decision on his detention of 27 February 2008 to the Criminal Court of Appeal because, under the given circumstances, that remedy would have been ineffective. In this connection he referred to the relevant findings of the OSCE/ODIHR’s Final Report on the Trial Monitoring Project in Armenia (see paragraph 71 above). As regards an appeal to the Court of Cassation, referring to the Court’s judgments in the cases of Muradkhanyan v.   Armenia (no. 12895/06, § 92, 5 June 2012) and Grigoryan v. Armenia (no. 3627/06, § 113, 10 July 2012), he submitted that he had not enjoyed in law a right to appeal to the Court of Cassation against decisions on pre-trial detention and therefore that remedy was ineffective. 77.     The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and   29   others, § 70, 25 March 2014). 78.     The Court notes, as regards the Government’s first argument, that this question is closely linked to the substance of the applicant’s complaint under Article 5 § 3 of the Convention and must be joined to the merits. As regards the Government’s second argument regarding the applicant’s failure to lodge an appeal on points of law with the Court of Cassation, which concerns both Article 5 § 3 and Article 5 § 4 of the Convention, the Court notes that it has already examined and dismissed a similar objection of non ‑ exhaustion in another case against Armenia (see Arzumanyan v.   Armenia , no. 25935/08, §§ 28-32, 11 January 2018). Given that the Government did not advance any new arguments, it sees no reasons in the present case to depart from its earlier findings. It therefore dismisses the part of the Government’s objection of non-exhaustion based on that argument. 79.     The Court notes that these complaints are not manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. Merits Article 5 § 1 of the Convention 80.     The applicant submitted that there had been no court decision authorising his detention between 15 and 22 July 2008 in violation of domestic law and the principle of lawfulness of Article 5 § 1 of the Convention. The failure to address the question of his continued detention in the decision of 14 July 2008 could not be justified by a simple typographical error. If the judge had indeed intended to decide on his continued detention but simply forgot to add a sentence in the operative part of the decision, as alleged by the Government, he would have at least included some remarks in the reasoning part of that decision. As regards the decision of 22 July 2008, this had been prompted by the applicant’s own request for release and had been simply an attempt to find a way out of the situation in which the judge had found himself. The fact that the judge’s omission had been justified by a simple typographical error showed what a minor formality was the issue of deciding on a preventive measure. In any event, regardless of the reasons for the judge’s failure to rule on the applicant’s continued detention, the very fact that there had been no court decision authorising his detention for that period was a violation of the principle of lawfulness. 81.     The Government submitted that the examining judge had addressed and resolved the question of the applicant’s continued detention on 14 July 2008 but had not noted it in his decision taken on that day because of a typographical error. It had therefore been merely a technical mistake which had been corrected by the decision of 22 July 2008. Thus, there was no violation of Article 5 § 1 of the Convention since the applicant’s detention from 15 July 2008 had been based on the decision taken by the examining judge on 14 July 2008. 82.     The Court reiterates that Article 5 of the Convention enshrines a fundamental right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. The words “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof (see Creangă v. Romania [GC], no.   29226/03, §§ 84 and 101, 23 February 2012). 83.     The Court notes that under Armenian law, namely Article 136 § 2 of the CCP, a person could be detained in criminal proceedings only upon a court decision. Furthermore, Article 293 § 2 of the CCP required that the decision setting the case down for trial contain, inter alia , a ruling cancelling, modifying or imposing a preventive measure, while Article 300 of the CCP obliged the domestic courts, when adopting decisions, including decisions setting the case down for trial, to examine the question of whether the preventive measure imposed was justified. 84.     In the present case, the domestic court adopted a decision to set the case down for trial on 14 July 2008 but failed to rule on the applicant’s continued detention (see paragraph 52 above), which then expired on 15   July 2008. Thus, there was no court decision authorising the applicant’s detention until 22 July 2008 when the domestic court finally addressed that question. Both the domestic court and the Government justified the failure to rule on the applicant’s continued detention with a typographical error and alleged that that question had in fact been addressed and ruled upon on 14   July 2008. The Court notes, however, that the Government have failed to provide any evidence in support of their allegation. Nor is there any material in the case file to suggest that the question of the applicant’s continued detention had indeed been addressed by the examining judge when adopting the decision of 14 July 2008. In any event, even assuming that this had been so, it would still not affect the fact that the relevant decision contained no ruling regarding the applicant’s detention. It follows that there was no court decision authorising the applicant’s detention between 15 and 22 July 2008, in violation of domestic law. The Court underlines in this connection that a mere retroactive reference to a typographical error cannot be regarded as remedying that situation. 85.     There has accordingly been a violation of Article 5 § 1 of the Convention. Article 5 § 3 of the Convention 86.     The applicant submitted that the domestic courts had failed to provide relevant and sufficient reasons for his continued detention. 87.     The Government argued that the courts had provided relevant and sufficient reasons for the applicant’s detention, such as the nature and the dangerousness of the imputed offence and the risk of absconding, obstructing the investigation and committing a new offence. 88.     The Court refers to its general principles under Article 5 § 3 of the Convention relating to the right to be released pending trial (see Buzadji v.   the Republic of Moldova [GC], no. 23755/07, §§ 92-102, ECHR 2016 (extracts), and Ara Harutyunyan , cited above, §§ 48-53) and notes that it has already found the use of stereotyped formulae when imposing and extending detention to be a recurring problem in Armenia (see, among other authorities, Piruzyan v. Armenia , no. 33376/07, §§ 97 ‑ 100, 26 June 2012; Malkhasyan v. Armeni