CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 octobre 2020

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text-align:right } .s1721E4C5 { margin-top:14pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7ED160F0 { text-decoration:none } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .s57D0C7EE { width:31.98pt; text-indent:0pt; display:inline-block } .s8EBB4501 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s5B9812EB { width:22.1pt; display:inline-block }     FIRST SECTION CASE OF MYASNIK MALKHASYAN v. ARMENIA (Application no. 49020/08)     JUDGMENT   Art 5 § 1 (c) • Reasonable suspicion • Arrest and pre-trial detention following post-presidential election demonstrations • Allegations against applicant vague and unsubstantiated by evidence • Minimum standard for the reasonableness of a suspicion required for an individual’s arrest and continued detention not met   STRASBOURG 15 October 2020   FINAL   15/01/2021     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Myasnik Malkhasyan 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,   Tim Eicke,   Jovan Ilievski, judges,   Anna Margaryan, 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   Myasnik Malkhasyan (“the applicant”), on 20 September 2008; the decision to give notice to the Armenian Government (“the Government”) of the complaints concerning the applicant’s arrest and pre ‑ trial detention, namely that his arrest and detention had not been based on a reasonable suspicion, the courts had failed to provide relevant and sufficient reasons for his pre-trial detention, he had been precluded by law from being released on bail and the proceedings before the Criminal Court of Appeal had not been adversarial.; the parties’ observations; the decision by the President of the Chamber to appoint Mrs Anna Margaryan 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); Having deliberated in private on 15 September 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicant’s arrest and pre-trial detention, including whether his deprivation of liberty was based on a reasonable suspicion that he had committed an offence as required by Article   5   §   1   (c) of the Convention, and whether his continued detention and the proceedings authorising his detention complied with the requirements of Article 5 §§   3 and 4 of the Convention. THE FACTS 2.     The applicant was born in 1961 and lives in Yerevan. The applicant was represented by Ms Arustamyan, 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 The presidential election and the demonstrations held between 20   February and 1 March 2008 5.     On 19 February 2008 a presidential election was held in Armenia. The main contenders were the then Prime Minister, Mr 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, who at the material time was an opposition member of parliament and a supporter of Mr Ter-Petrosyan, attended the ongoing demonstrations on three occasions and gave speeches. The events of 1-2 March 2008 and institution of criminal cases 8.     On 1 March 2008, apparently at some point around 6-7 a.m., a police operation was conducted at Freedom Square where several hundred demonstrators were camping. 9.     The applicant, who had not been present at Freedom Square at that time, alleged that the aim of the police operation had been to clear the square of demonstrators and to prevent further assembly. About 3,000 police officers had first encircled and then attacked the demonstrators with batons and electric shock devices, without any prior warning, using excessive force and removing those present from the square. Within minutes no demonstrators remained at the square which was then sealed off by the police. The police chased many protesters through the streets, beating and arresting some of them. 10.     The Government contested the applicant’s allegations and claimed that the assembly at Freedom Square, since its inception, had been a premeditated attempt by the leaders of the opposition, including the applicant, to inflame passions and to push the crowd to disobedience and mass violence, for which they had even recruited people, formed gangs and distributed among them various kinds of weapons and weapon-like objects in order to instigate mass disorder. The purpose of the police operation in the morning of 1 March 2008 had been to verify the information obtained on the previous day by the Armenian Police and National Security Service, according to which a large number of weapons, including metal rods, wooden clubs, firearms, grenades and explosives, were to be distributed to the demonstrators at Freedom Square in order to incite provocative actions and mass disorder in Yerevan on 1 March 2008. The demonstrators, as incited and directed by the applicant and the other opposition leaders, had reacted aggressively to police attempts to conduct an inspection and had attacked the police officers. When the relevant police units had later carried out an inspection at the scene, various types of weapons had been found. 11.     On the same date a criminal case was instituted under several Articles of the Criminal Code (“CC”), in connection with the events at Freedom Square, on account of organising and holding an unlawful assembly, incitement to disobedience of police orders to terminate the unlawful assembly, illegal possession of arms and ammunition, and life ‑ threatening assaults on police officers. The decision stated: “After the announcement of the preliminary results of the presidential election of 19   February 2008, the presidential candidate, Mr Levon Ter-Petrosyan, members of parliament, [K.S. and S.M.], the chief editor of Haykakan Zhamanak daily newspaper, [N.P.], and others organised and held mass public events at Yerevan’s Freedom Square in violation of the procedure prescribed by law and made calls inciting to disobey the decisions ordering an end to the events held in violation of the procedure prescribed by law, while a number of participants in the mass events illegally possessed and carried illegally obtained arms and ammunition. On 1 March 2008 at around 6 a.m., when the police took measures aimed at forcibly ending the public events held in violation of the procedure prescribed by law, in compliance with the requirements of section 14 of the Assemblies, Rallies, Marches and Demonstrations Act, the organisers and participants in the events, disobeying the lawful orders of the [police officers], who were performing their official duties, committed a life- and health-threatening assault on them with clubs, metal rods and other adapted objects, which had been in their possession for that purpose, causing the police officers injuries of varied severity.” 12.     The applicant alleged that, since Freedom Square had been cordoned off by the police, the protesters had relocated to the area of the French Embassy, the Yerevan Mayor’s Office and the Myasnikyan monument, situated at Grigor Lusavorich Street, about 1.7-2 km from Freedom Square, where there was a large opening, and where they were later joined by thousands of others who poured onto the streets of Yerevan in response to the events of the early morning. The applicant alleged that he had arrived in that area at around 12 noon when a major concentration of people was already present, including police forces. He, like many other MPs, had gone there in order to be by his electorate’s side and had addressed the crowd through a loudspeaker, calling for calm and restraint, as well as vigilance in order to avoid provoking the police troops which had by then encircled the demonstrators. Tensions had continued to rise and a number of incidents had added fuel to an already tense situation which, later that day, involved clashes between the protesters and the law enforcement officers on a number of central Yerevan streets, including Leo and Paronyan Streets and Mashtots Avenue, with police forces regularly launching attacks on the positions of the protesters who had built barricades and had used stones, Molotov cocktails and other improvised objects to defend themselves. The main demonstration at the Myasnikyan monument, however, was about a kilometre away from that area and had remained peaceful throughout the night, with about five thousand people present. The clashes had continued until the early morning of 2 March 2008, resulting in ten casualties, including eight civilians, numerous injured and a declaration of a state of emergency by the outgoing President   Kocharyan. 13.     The Government contested the above allegations and submitted that the demonstrators’ relocation to the area near the Myasnikyan monument had not been spontaneous but had been directed by the opposition leaders, including the applicant, who, in order to bring their conspiracy to its completion, had incited the crowd to stay put, arm themselves and assault the police. As a result, the crowd had armed themselves with improvised weapons, as well as explosives, firearms and Molotov cocktails which had been brought to that area in advance. New protesters had been recruited and weapons had been distributed among the most aggressive protesters. Thus, in the period from 1 to 2 March 2008 mass disorder had taken place in the area near the Myasnikyan monument and the Yerevan Mayor’s Office, as well as Grigor Lusavorich, Mashtots, Leo and Paronyan Streets, involving firearms and explosives, as well as armed resistance to police officers, and resulting in almost 200 police officers and around 30 civilians being injured, private businesses, public property and numerous vehicles being damaged and ten persons being killed. It had been possible to quell the mass disorder only through declaring a state of emergency and the preventive actions of the law enforcement bodies. 14.     On 2 March 2008 another criminal case was instituted under, inter alia , Article 225 § 3 of the CC (organising mass disorder involving murders) in connection with the events of 1 and 2 March 2008. The decision stated: “[Mr Ter-Petrosyan], the candidate running for president at the presidential election of 19 February 2008, and his followers and supporters, members of parliament [K.S. and S.M.], the chief editor of Haykakan Zhamanak daily newspaper, [N.P.], and others, not willing to concede defeat at the election, with the aim of casting doubt on the election, instilling distrust towards the results among large segments of the population, creating illusions of public discontent and revolt and discrediting the election and the authorities, from 1 March 2008 in the area of the Yerevan Mayor’s Office and central streets organised mass disorder involving murders, violence, massacre, arson, destruction of property and armed resistance to public officials, with the use of firearms, explosives and other adapted objects.” 15.     Later that day the two criminal cases were joined and examined under no. 62202608. The criminal proceedings against the applicant The applicant’s arrest 16.     On 2 March 2008 at around 6 a.m. the taxi carrying the applicant and a few others was stopped by the police at Shahumyan Square, situated about 400 metres from the Myasnikyan monument, and he was taken into custody. 17 .     According to the “record of a person’s bringing-in”, the applicant was “brought in” to Kentron Police Station on 2 March 2008 at around 6   a.m. by three police officers, A.H., M.A.. and K.K., from Shahumyan Square situated at Khorenatsi Street on a suspicion of “illegal possession of arms and ammunition and organising mass disorder”. It was stated in the record that the applicant “had been carrying a metal rod at the time of his ‘bringing-in’”. 18 .     At 5.10 p.m. the investigator drew up a record of the applicant’s arrest, stating that the applicant was suspected of having committed an offence under Article 300 of the CC, in particular, of having “organised and carried out actions aimed at usurping State power and violently overthrowing the constitutional order during a public event organised on 1   March 2008 near the Yerevan Mayor’s Office in violation of the procedure prescribed by law”. The applicant denied having committed the offence in question. The charges against the applicant and his pre-trial detention 19 .     On 4 March 2008 the General Prosecutor applied to the Armenian parliament with a request to have the applicant’s parliamentary immunity lifted and for an authorisation to bring charges against him and to have him and three other members of parliament detained. The request described at the outset the events which had taken place in Yerevan between 20 February and the early morning of 2 March 2008 and stated that the evidence obtained in the case provided sufficient grounds to believe that the applicant and three other members of parliament had taken an active part in inciting the violence with the public calls they had made and organising the mass disorder through direct participation, instigation and various types of support, including the recruitment and arming of attackers. This was sufficient to bring charges against them under Articles 225   § 3 and 300 § 1 of the CC for organising the mass disorder which had taken place in Yerevan between 20 February and 2 March 2008 with the aim of a violent usurpation of State power in breach of the Constitution. The request further stated that there was sufficient evidence justifying their detention, including the risk of absconding and obstructing justice. 20.     On the same date the Armenian parliament adopted a resolution granting the General Prosecutor’s request. 21 .     On 5 March 2008 the applicant was formally charged under Articles   225   § 3 and 300 § 1 of the CC within the scope of criminal case no.   62202608, as follows: “[A]fter the presidential candidate Levon Ter-Petrosyan had lost at the presidential election of 19 February 2008, [the applicant] joined his group of supporters and, having conspired with them to usurp State power in violation of the constitutional order, actively participated in carrying out together with them actions aimed at the achievement of that criminal plan, including discrediting the pre-election process and the conduct of the election, casting doubt on the lawfulness of the election in the eyes of the international community, instilling distrust towards the results among large segments of the population, creating illusions of public discontent and revolt, thereby organising and holding mass public events in violation of the procedure prescribed by law aimed at destabilising the internal political situation, during which [the applicant, together with three other members of parliament] and a number of other persons assisting Levon   Ter ‑ Petrosyan in the above-mentioned plan incited and organised the mass disorder which took place in Yerevan from 1   to   2   March 2008 and involved mass violence, massacre, arson, destruction of and damage to public and private property, armed resistance to public officials, effected with the use of firearms, explosives and other adapted objects, as well as murders.” 22.     The applicant was questioned and submitted that he had not organised or incited any mass disorder. He had been present at the demonstrations as a participant and in his speeches he had always called for calm and restraint. He had not been at Freedom Square in the morning of 1   March 2008 and the crowd had already been uncontrollable when he arrived in the area near the Myasnikyan monument. He had left that area at around 11 p.m. It appears that the applicant also requested that the rod allegedly found in his possession be examined for fingerprints, which was refused by the investigator on the ground that the rod in question had passed from hand to hand. 23 .     On the same date the investigator applied to a court citing verbatim the charge against the applicant (see paragraph 21 above) and seeking to have him detained for a period of two months on the ground that he might abscond and obstruct the investigation. 24.     The applicant objected to the application, arguing that he was known to be of good character, had a permanent place of residence, two minor children dependent on him and past military achievements. He stated that he was not able to obstruct the investigation and would not abscond. Furthermore, he was a member of parliament and a number of members of parliament had requested his release under their personal guarantee. 25 .     On the same date the Kentron and Nork-Marash District Court of Yerevan (“the District Court”) allowed the investigator’s application, taking into account the fact that the Armenian parliament had granted the General Prosecutor’s request, the requirements of Article 135 §§ 1 and 3 of the Code of Criminal Procedure (CCP) and the fact that the acts imputed to the applicant fell within the category of particularly serious offences within the meaning of Article 19 of the CC. 26.     On an unspecified date the applicant lodged an appeal arguing, inter alia , that the charge against him was not based on a reasonable suspicion but on assumptions, in violation of Article 5 § 1 (c) of the Convention. The District Court’s decision was unreasoned and the risks of his absconding or obstructing the investigation were unsubstantiated. He had been thrice elected as a member of parliament and had two minor children dependent on him, no previous convictions and a permanent place of residence. The gravity of the charge alone could not justify his detention. 27 .     On 21 March 2008 the Criminal Court of Appeal dismissed the appeal, holding that “in the appeal proceedings the investigator has referred to certain evidence substantiating [the applicant’s] guilt, which confirm his involvement in the imputed act”, and that “the presented materials contain a reasonable suspicion that [the applicant] has committed offences proscribed by Articles 225 § 3 and 300 § 1 of the CC”. 28.     On 19 April 2008 eight members of parliament lodged a request with the General Prosecutor, seeking to have the applicant’s detention replaced with their personal guarantee. They claimed at the outset that the detention of several hundred persons, including the applicant, following the presidential election was a disproportionate measure and was not based on reasonable suspicions. They further submitted that they personally knew the applicant and guaranteed that, if he remained at large, he would not abscond, obstruct the proceedings, commit another offence or evade his penalty, if any. It appears that this request was refused. 29 .     On 28 April, 27 June and 28 August 2008 the District Court extended the applicant’s detention, on each occasion by two months, taking into account the nature and dangerousness of the imputed offences and the fact that he was accused of particularly serious offences punishable by imprisonment, which increased the probability of his absconding. The District Court also held that it was unacceptable to release the applicant on bail because he was accused of particularly serious offences. 30.     On various dates the applicant lodged appeals, raising similar arguments to those in his previous appeal. He reiterated that there was no reasonable suspicion that he had committed an offence since the charge against him failed to mention what concrete acts prohibited by Articles   225   § 3 and 300 § 1 of the CC he had committed. Furthermore, the District Court had violated the Convention by refusing bail. 31.     On 12 May, 14 July and 11 September 2008 respectively the Criminal Court of Appeal upheld those decisions, holding on each occasion that “the presented materials [confirmed the applicant’s] involvement in the event and the suspicion that [the applicant] had committed an offence [was] substantiated”. 32 .     On 29 August 2008 an additional charge was brought against the applicant of complicity in committing an offence prescribed by Article 316 §   2 of the CC (life or health-threatening assault on a public official). It was stated that the applicant and several other opposition leaders, having realised that they were not able come to power through lawful means, had conspired to usurp State power and, according to the roles assigned among themselves, each had organised and taken premeditated actions aimed destabilising the internal political situation in the country and violently overthrowing the constitutional order. The applicant and the others, through pressure, promises and, in some cases, remuneration, had recruited a crowd of people and from 20 February 2008 onwards had organised in Yerevan unlawful demonstrations, during which they had made provocative speeches and, by inflaming passions, had pushed the crowd towards violent seizure of State power. With the aim of carrying out mass disorder in Yerevan, they had organised groups of people ready to commit mass violence and had distributed among them firearms, ammunition, explosive substances and devices, and other dangerous objects. The applicant, according to the role assigned to him, had recruited and personally led groups of people from the town of Aparan and nearby villages, organising their transfer to Yerevan and their participation in the unlawful demonstrations. Being a veteran of the Nagorno Karabakh war and using his standing among other veterans, he had incited them to seize violently power and to struggle against the authorities, including, if necessary, by fighting them. For the purpose of instigating mass disorder, on either 26 or 27 February 2008 the applicant, in his car, had transported to Freedom Square metal rods and wooden clubs together with his driver, A.S., who upon the applicant’s orders had hidden them in the tent called “Aparan”. When in the morning of 1 March 2008 the police had attempted to carry out at Freedom Square an inspection for weapons, the applicant and the other organisers of mass disorder had ordered a big group of those present at the square to resist the police officers and to assault them. Moreover, the applicant had personally directed the actions of the crowd by inciting them not to retreat and to prevent the police from entering the square. Thereafter, the applicant and his accomplices had directed the demonstrators towards the area of the Myasnikyan monument where they had incited, organised and led the mass disorder by calling on the demonstrators to arm themselves and to disobey and assault the police, recruiting new people and distributing arms, metal rods, wooden clubs, spiky, hedgehog-like objects and Molotov cocktails among the particularly aggressive group of people. The applicant had regularly addressed the crowd, inciting them to topple the government, to arm themselves and to struggle whichever way possible, including by burning public buildings. As a result, mass disorder had taken place in the area of the Myasnikyan monument, the Yerevan Mayor’s Office and a number of adjacent streets, during which numerous police officers had been injured, ten persons had been killed and pecuniary damage of various scale had been caused to the police, the city of Yerevan and private businesses, and which had stopped only after the declaration of a state of emergency and its prevention by the actions of the police. 33 .     On 29 October 2008 the District Court extended the applicant’s detention by two more months on the same grounds as previously, which was upheld by the Criminal Court of Appeal on 14 November 2008. The applicant’s trial and his conviction at first instance 34.     On 1 December 2008 the prosecutor approved the bill of indictment against the applicant and six other opposition leaders (commonly known as the “Case of Seven”), and the criminal case was transferred for trial. The bill of indictment contained a verbatim reproduction of the factual allegations contained in the charge of 29 August 2008 (see paragraph 32 above). 35.     On 9 December 2008 the lawyer for the applicant and two other defendants requested the Yerevan Criminal Court to terminate the prosecution and to release the applicant and others from detention. He argued that the charges were based on assumptions and there were no facts or evidence suggesting that the applicant and the others had conspired to usurp violently State power, including organising the clashes which had taken place in Yerevan on 1 and 2 March 2008 and assigning roles among themselves for the achievement of that purpose. There was no evidence that they had ordered the demonstrators to disobey or attack the police or had distributed arms among the demonstrators and it was evident from the materials of the case that the demonstrators had relocated and gathered near Myasnikyan monument spontaneously, as a result of being ejected from Freedom Square. None of them had incited the crowd to commit illegal acts but, to the contrary, they had called for calm. 36.     On 10 December 2008 the Yerevan Criminal Court decided to set the case down for trial and to keep the applicant in detention, taking into account that he was accused of serious and particularly serious offences punishable by a hefty prison term which gave reasons to believe that, if released, he would abscond and obstruct the proceedings by failing to appear upon a summons. 37.     On 31 March 2009 the prosecutor dropped the charge under Article 300 § 1 in view of the fact that, on 24 March 2009, that provision had been amended and, as a result, could not be applied retroactively. The prosecutor further replaced the charge under Article 225 § 3 with a new charge under Article 225 § 1, since, on the same date, Article 225 § 3 had been repealed and the offence of organising mass disorder under Article 225 no longer involved an aggravated circumstance of murder. 38.     On 1 April 2009 the District Court, to which the case was transferred for examination, decided to terminate the proceedings under Article 300 § 1 for lack of corpus delicti , to proceed with the examination of charges under Articles 225 § 1 and 316 § 2 of the CC and to keep the applicant in detention on the same grounds as previously. The District Court also decided to sever the applicant’s individual case into separate proceedings. 39.     On 5 June 2009 the prosecutor dropped the charge under Article 316 § 2 of the CC for lack of evidence. 40.     On 22 June 2009 the District Court found the applicant guilty under Article 225 § 1 of the CC, sentencing him to five years in prison, at the same time applying an amnesty and releasing the applicant from detention. The District Court found it to be established as follows: “[The applicant], together with a group of his co-thinkers, organised mass disorder in the area adjacent to the Myasnikyan monument and the Yerevan Mayor’s Office, as well as on Grigor Lusavorich, Leo and Paronyan Streets and Mashtots Avenue, during which a number of persons carried out arson and destruction of and damage to property, used explosive devices and showed armed resistance to public officials within the period of 1-2 March 2008, which endangered public safety. Thus, after the victory of [Mr Serzh Sargsyan] in the presidential election of 19   February 2008, [the applicant], starting from the next day, together with a group of others, carried out organisational activities with the aim of creating discontent in society towards the conduct and the results of the election and preparing the crowd gathered at the assembly held at Yerevan’s Freedom Square for use of violence and disobedience, in particular they spread false information about the assembly being authorised, about around 500,000 people attending it and about [Mr   Levon   Ter ‑ Petrosyan] winning 60% of the votes cast. In order to boost the number of participants and to ensure attendance, they provided (financial and other) means. [The applicant] and his driver brought metal rods and wooden clubs to the location of the assembly and kept them in a tent. On 29 February 2008 intelligence information was received by the Armenian Police and the National Security Service that a group of persons intended to instigate mass disorder in Yerevan on 1 March through provocations, to form groups of people ready to commit mass violence and to distribute among them unlawfully obtained firearms, ammunition, explosive substances, explosive devices and various objects adapted to cause physical injuries. Thanks to the measures taken by the law enforcement authorities metal rods, wooden clubs, firearms, ammunition and other items and objects were found at Freedom Square and the adjacent area, while the square was freed from demonstrators. Thereafter some of the demonstrators relocated and continued the demonstration with a number of other people in the area adjacent to the French, Italian and Russian embassies, the Alexander Myasnikyan monument and the Yerevan Mayor’s Office where around 11 a.m. mass disorder erupted, as organised by [the applicant] and a group of his co-thinkers, during which numerous cars parked in the streets were turned over, broken, damaged and burnt, shops were broken into and looted, violence was inflicted and resistance shown, with the use of weapons and various objects used as weapons, against the police officers and the police troops. Stones, metal rods, wooden clubs, Molotov cocktails and explosive devices were thrown at the police officers and the police troops, as well as shots fired. The orders voiced from the podium of the Alexander Myasnikyan monument played a special role in providing guidance and command to the participants in the mass disorder. In order to plan further organisational work during the mass disorder and to decide on its course a meeting was held right on the podium with [the applicant’s] participation. In his speeches made through the loudspeaker from the podium of the Myasnikyan monument [the applicant] called on the crowd to arm themselves with sticks, rods and any other objects and to attack the police officers, as well as to obey only orders given from the podium, which included such orders as to block streets with means of transport, to build barricades, arm themselves whichever way possible, burn and damage property, show armed resistance to public officials and other types of calls.” 41.     The District Court proceeded to list the names of all the police officers injured and specify the number of vehicles damaged and persons killed and the pecuniary damage caused to the police, the city of Yerevan and private businesses. The District Court concluded that the mass disorder had stopped only after the declaration of a state of emergency and its prevention by the actions of the police. 42.     In reaching the above findings, the District Court relied on the following evidence: the statement of one demonstrator, G.Y., who had testified that he had seen metal rods 80-90 cm length and wooden clubs in the applicant’s car parked near Freedom Square, which G.Y. had then carried and stored in one of the tents installed at Freedom Square together with the applicant’s driver; the statements of three other protesters who had been present near the Myasnikyan monument and had testified that the applicant had incited the crowd to arm themselves with various weapons and to attack the police, as a result of which the crowd had become agitated and started destroying the nearby fences and a construction site in order to arm themselves with rods; various evidence suggesting that mass disorder had taken place in Yerevan on 1 and 2 March 2008. The District Court also excluded from evidence the witness statements of three other demonstrators, since the witnesses alleged that they had been coerced and ill-treated to make those statements and there was a need to investigate those allegations. 43.     It appears that the applicant lodged appeals against his conviction. RELEVANT LEGAL FRAMEWORK Relevant domestic law and other materials Criminal Code (2003) 44.     Article 225 § 1 provided, prior to the amendments of 24 March 2009, that organising mass disorder involving violence, massacre, arson, destruction of or damage to property, use of firearms, explosive substances or devices, or armed resistance to public officials was punishable by imprisonment for a period from four to ten years. Article 225 § 3 provided that the same act, if involving murder, was punishable by imprisonment for a period from six to twelve years. 45.     Article 225 § 1 provides, following the above-mentioned amendments, that organising mass disorder is punishable by imprisonment for a period from four to ten years. Article 225 § 5 defines “mass disorder” as actions of more than one person involving violence, massacre, arson, destruction of or damage to property, use of firearms, explosive substances or devices, or armed resistance to public officials, and endangering public safety. 46.     Article 300 § 1 provided, prior to the above-mentioned amendments, that usurpation of State power, namely actions aimed at violent seizure of State power or its violent retention in violation of the Armenian Constitution, as well as violent overthrow of the constitutional order of Armenia or violent violation of the territorial integrity of Armenia, was punishable by imprisonment for a period from ten to fifteen years. 47.     Article 316 § 2 provides that a life-threatening or a health ‑ threatening assault on a public official or his or her next-of-kin, connected with the performance of his or her official duties, is punishable by imprisonment for a period from five to ten years. Code of Criminal Procedure (1999) 48.     For the relevant provisions of the CCP see Ara Harutyunyan v.   Armenia (no. 629/11, § 31, 20 October 2016) and Piruzyan v. Armenia (no.   33376/07, §§ 42 and 51, 26 June 2012). Ad Hoc Public Report of Armenia’s Human Rights Defender (Ombudsman): On the 2008 February 19 Presidential Election and the Post-Electoral Developments 49 .     The Armenian Ombudsman carried out a comprehensive and in ‑ depth analysis of the post-election events in Armenia, some relevant parts of which were cited in the case of Mushegh Saghatelyan v. Armenia (no.   23086/08, § 124, 20 September 2018). A number of relevant extracts from the Report not cited in that judgment provide as follows: “ 3.2.2. The French Embassy (starting from 11.30 a.m. on 1 March) At around 11 a.m. on 1 March, people started gathering on the square adjacent to the French Embassy. People had gathered to express their protest and indignation about the events that had taken place earlier that morning. There is a clear correlation between the events of the morning of 1 March and what happened during the second half of the day. The events that took place during the second half of 1 March cannot be investigated without a focus on their causal link with the violence done to the demonstration participants earlier in the morning; hence, these two events should be investigated in a common framework. At 11.15 a.m. on 1 March, the Police and Police Troops detachments that were near the Opera started moving towards the French Embassy. Servicemen of the Police Troops and other special detachments were standing in several directions and lines. The faces of some “police officers” were covered with masks. Employees of [the Principal Department for the Fight against Organised Crime of the Armenian Police] were taking part in the attempt to disperse the demonstrators. Numerous provocateurs, planted among the demonstrators, were doing their best to incite clashes with the Police. All of these allegations, including eyewitness accounts, must be thoroughly investigated. Unlike the Freedom Square operation earlier that morning, which was subject to the criminal procedure legislation (given the “build-up of arms” hypothesis), the use of force near the French Embassy is subject exclusively to the [Armenian Assemblies, Rallies, Marches and Demonstrations Act], especially its provisions regarding the termination of demonstrations and the use of special means. The Police have the right to compulsorily terminate a gathering, if the gathering poses a real threat to the lives of people, health, state and public security, the public order, or may inflict considerable property damage on the state, the community, or on natural and legal persons. Therefore, the physical force applied by the Police at around noon on 1   March should be considered unlawful, because there was no official presentation and explanation that the citizens’ gathering in the vicinity of the French Embassy posed a real threat to any of the aforementioned. Moreover, up to 2 p.m., the demonstration was peaceful... The engagement of the Police Troops of the Republic of Armenia in the attempt to disperse the citizens in the vicinity of the French Embassy at noon on 1 March should be considered unlawful, as well, because [Section 20 of the Police Troops Act] directly provides that ‘it shall be prohibited to engage Police Troops in the prevention of peaceful and unarmed meetings, assemblies, rallies and demonstrations’. ... The situation was different in the second half of the day, when the demonstrators became, in a sense, uncontrollable, which was accompanied with disorder. The events near the French Embassy in the second half of 1 March took place in two places: (i) in the vicinity of the Myasnikyan monument, where demonstrators had assembled and were waiting for their leader, and (ii) in the area between Mashtots Avenue and Paronyan and Leo streets, where discrete clashes took place between police officers and groups of persons. Moreover, during the night of 1 March, the looting of shops on Mashtots Avenue and the burning of vehicles took place under questionable and controversial circumstances. It is worth noting that the participants in the demonstration in the vicinity of the French Embassy did not attack any of the nearby shops... The investigation needs to reveal whether the peaceful demonstrators gathered in the vicinity of the French Embassy are actually related with those perpetrating disorder in the nearby streets. This question is of particular legal importance from the standpoint of charging the de facto leaders of the demonstration with the organisation of disorder in the nearby streets.” Relevant international materials Council of Europe bodies Parliamentary Assembly of the Council of Europe (PACE) (a)    Resolution 1609 (2008): The functioning of democratic institutions in Armenia, 17 April 2008; Resolution 1620 (2008): Implementation by Armenia of Assembly Resolution 1609 (2008), 25 June 2008; and Resolution 1643 (2009): The implementation by Armenia of Assembly Resolutions 1609 (2008) and 1620 (2008), 27 January 2009 50 .     In its Resolutions regarding the 19 February 2008 presidential election and the events that followed, the PACE condemned the arrest and continuing detention of scores of persons, including more than 100 opposition supporters and three members of parliament, some of them on seemingly artificial and politically motivated charges, especially those under Articles 225 and 300 of the CC (for the relevant extracts, see Mushegh Saghatelyan , cited above, §§ 125-127). (b)    Report on the Functioning of Democratic Institutions in Armenia (Doc. 11579, 15 April 2008) 51.     The relevant parts of the Explanatory Memorandum to this Report, produced by the co-rapporteurs of the PACE Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (“the Monitoring Committee”), provide as follows: “58.     Following the declaration of the state of emergency, scores of people were arrested for their participation in the protest on and prior to 1 March 2008. ... The prosecutor general announced that as of the end of March, 106 persons had been arrested in connection with the events of 1 March 2008, including three of the four MPs whose immunity was lifted by parliament after they were charged with incitement or attempt to usurp public power or coup d’état under Article 300 of the Criminal Code... ... 60.     Most persons arrested are charged with inciting mass disorder (Article 225 § 3 of the Criminal Code), violence against a representative of the authorities (Article 316 of the Criminal Code) and usurpation of power (Article 300 of the Criminal Code). As also noted in the report of the Commissioner [for Human Rights of the Council of Europe], the wording of these provisions leaves a great deal of discretion to the prosecutor and especially the definition of usurpation of power ‘allows for a very broad interpretation and fails to give clear guidance on the dividing line between legitimate expressions of opinion and incitement to violence’. 61.     The courts generally grant the prosecutors’ requests for a two-month detention on remand without properly weighting whether such detention is justified... This fact raises questions about the independence of the judiciary and the effectiveness of the courts’ role as a ‘check and balance’ vis-à-vis the powers of the prosecutors. 62.     The arrest of persons solely for their participation in the protest after the presidential election – without proof that they committed violent crimes themselves – or on seemingly artificial charges after voicing their opinion that the presidential election was fraudulent, can only be construed as a crackdown by the authorities on the opposition. This crackdown is undermining the possibilities for a constructive dialogue between all political forces in Armenia. In addition, the co-rapporteurs are seriously concerned about the existence in Armenia of what are alleged political prisoners as a result of the continued recourse to politically motivated detentions.” (c)    Report on the Implementation by Armenia of Assembly Resolution 1609 (2008) (Doc. 11656, 24 June 2008) 52.     The relevant parts of the Explanatory Memorandum to this Report, produced by the co-rapporteurs of the Monitoring Committ