CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 octobre 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 12 October 2018   FIRST SECTION Application no. 6822/10 Vartgez GASPARI against Armenia lodged on 30 December 2009 STATEMENT OF FACTS The applicant, Mr   Vartgez Gaspari, is an Armenian national who was born in 1957 and lives in Yerevan. He is represented before the Court by Mr   M. Shushanyan and Mr   A. Zakaryan, lawyers practising in Yerevan. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background to the case On 19   February 2008 a presidential election was held in Armenia. The applicant was an active supporter of the main opposition candidate, Mr   Ter ‑ Petrosyan, and acted as his official election assistant at one of the polling stations. 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 (also known as Opera Square) 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 where they had also set up a camp. The applicant was an active participant in the rallies. The applicant alleged that on 1   March 2008, at around 6   a.m., the police arrived at Freedom Square and attacked the several hundred demonstrators who were camping there, violently beating them with rubber batons and destroying the camp. Within a few minutes no demonstrator remained at the square. According to the official version, the aim of the police operation in the morning of 1   March 2008 had been to verify intelligence information concerning the presence of weapons among the demonstrators camping at Freedom Square. The demonstrators reacted aggressively by attacking the police and were then dispersed. After the square was cleared of demonstrators, the relevant police units carried out an inspection at the scene and allegedly found various types of weapons, which later underwent forensic examination. 2.     The criminal proceedings against the applicant According to a document entitled “the record of bringing-in”, the applicant was “brought in” to Arabkir Police Station on 1   March 2008 at 8.30   a.m. by two police officers, E.P. and G.H., from Mashtots Avenue, adjacent to Freedom Square “for showing resistance to police officers in the area of the Opera House”. The applicant was subjected to a body search and a relevant record was drawn up. It also appears that a report was addressed in this connection to the chief of police by police officer E.P. According to the testimony of police officer E.P., dated 1   March 2008, he had participated that morning in the police operation at Freedom Square. E.P. described the standoff between the police and the demonstrators and how he had taken one of the violent demonstrators, who later was identified as H.G., to Kentron Police Station, whence he had transferred H.G. to Arabkir Police Station. Thereafter he had returned to Freedom Square where he had met police officer G.H. He and G.H. had noticed a group of five or six people walking towards the square, which had been sealed off by then, and tried to stop them. One of those persons had reacted aggressively, disobeyed their orders to leave and started pushing and hitting them. After a short scuffle he and G.H. had grabbed that person and taken him to Kentron Police Station, whence they had transferred him in their car to Arabkir Police Station, where he was identified as the applicant. Police officer G.H. made similar statements in his testimony dated 2   March 2008. On 5   March 2008 the applicant was formally charged under Article   316 §   1 of the Criminal Code (CC) as follows: “... having participated in the unlawful public events, including mass demonstrations, 24-hour-long rallies, assemblies, pickets and sit-ins, organised and conducted by the presidential candidate Levon Ter-Petrosyan and his supporters disrupting the normal life, traffic, functioning of public and private institutions and peace and quiet of the population in Yerevan, on 1   March 2008 at around 8.30   a.m. in the vicinity of Freedom Square [the applicant] committed non-life- and health ‑ threatening assault and also threatened to commit such assault on [police officers E.P. and G.H. of Arabkir Police Station], having disobeyed their lawful orders, after they once again warned him and demanded that he stop his participation in the unlawful event.” On 3   April 2008 the General Prosecutor approved the bill of indictment under Article 316   §   1 of the CC. It was stated that, after Freedom Square had been cleared of demonstrators in the morning of 1   March 2008, that area had been sealed off and inspections had been carried out there. At around 8.30   a.m. police officers E.P. and G.H., who were on duty at Freedom Square, had noticed on Mashtots Avenue the applicant, who was shouting and walking towards Freedom Square. They had approached and informed him that investigative measures were being carried out at Freedom Square, ordering him to leave and not to go there. The applicant had refused to comply with their lawful orders and had become agitated and started behaving aggressively, stating that no one could stop him from participating in the rallies. Thereafter he had assaulted the two officers in a non-life- and health-threatening way by hitting, pulling and pushing them, and also threatened to square accounts with them. The indictment relied on the following evidence: (a)     the testimony of police officers E.P. and G.H.; (b)     the records of inspection of the scene and the results of the forensic examination of the weapons allegedly found at Freedom Square; and (c)     “the record of the applicant’s bringing-in”. On the same date the applicant’s case was sent to the Kentron and Nork ‑ Marash District Court of Yerevan for trial. It appears that the applicant submitted during the trial that he was being prosecuted for his political opinions and that police officers E.P. and G.H. were unreliable witnesses who had made false statements. He had had no encounter with them in the morning of 1   March 2008 and he had in fact been taken to Kentron Police Station by other police officers. At the hearing of 21   August 2008 the applicant requested the court to admit as evidence and examine a video recording made by a news agency in front of Kentron Police Station in the morning of 1   March 2008, in which he and fellow demonstrator H.G. could be seen being taken out of the police station, put in the same car and taken to Arabkir Police Station. Neither police officer E.P. nor police officer G.H. were among the police officers transporting them. The applicant submitted that the recording proved that both officers had made false statements and could not be considered reliable witnesses. The applicant also requested the court to call four persons as witnesses, including H.G., who could confirm the fact that, contrary to the statements of the police officers, they had been transported to Arabkir Police Station together and that neither of the two officers had been among those transporting them. The other witnesses, including two MPs, Z.P. and A.M., and the head of an NGO, “Lawyers for Human Rights”, S.M., could also confirm that version of events because they had all been present in front of Kentron Police Station at the material time and witnessed how he and H.G. had been taken out and transported to Arabkir Police Station. Moreover, S.M. had also witnessed how he was brought in to Kentron Police Station and could confirm that neither of the two officers were among those who had brought him in. The District Court refused to examine the requests, reasoning that they had not been made in due time, namely during the preparatory stage of the trial, and examining them would disturb the order of examination of evidence which had already been determined. The applicant submitted that he had not had the video recording in question at his disposal before the start of the trial, but the District Court refused to change its decision. On 10   November 2008 the Kentron and Nork-Marash District Court of Yerevan, recapitulating the facts as presented in the bill of indictment, found the applicant guilty as charged and sentenced him to one year’s imprisonment. In doing so, the District Court relied on the testimony of police officers E.P. and G.H., the records of the applicant’s “bringing-in” and personal inspection and the police report, while finding the records of inspection of the scene not to be relevant evidence. On 9   December 2008 the applicant lodged an appeal complaining, inter alia , about the refusal of the District Court to examine the video recording and to call witnesses. During the examination of the applicant’s case on appeal, the Criminal Court of Appeal decided to grant the applicant’s request to admit and examine the video recording in question. As regards the applicant’s request to call witnesses, the Court of Appeal found that there was no need for that since the circumstances of the applicant’s “bringing-in” and transfer to Arabkir Police Station had been established on the basis of numerous materials, including the above-mentioned video recording and the applicant’s own submissions. On 30   March 2009 the Criminal Court of Appeal upheld the applicant’s conviction. The Court of Appeal stated that the District Court, while reaching the correct conclusions on the merits of the case, had nevertheless committed certain procedural breaches, including not giving proper consideration to the applicant’s requests and not taking any final decisions to grant or refuse them. To correct those shortcomings, the Court of Appeal had decided to examine and rule on the requests in question. The Court of Appeal further stated that it could be seen from the video recording in question that police officer E.P. had not been among those who had transported the applicant from Kentron to Arabkir Police Station. On the other hand, it was not possible to see who had brought the applicant in to Kentron Police Station. The Court of Appeal considered the contradictions in the police officers’ statements regarding the applicant’s “bringing-in” and transfer from Kentron to Arabkir Police Station not to be essential and not to cast doubt on their testimony, while dismissing the applicant’s submissions as untrustworthy. On 30   April 2009 the applicant lodged an appeal on points of law. On 5   June 2009 the Court of Cassation declared his appeal on points of law inadmissible for lack of merit. That decision was served on the applicant on 9   July 2009. B.     Relevant domestic law Article 316   §   1 of the Criminal Code (2003) provides that non ‑ life ‑ threatening or non-health-threatening assault or threat of such 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 a fine of between 300 and 500 times the minimum wage or detention of up to one month or imprisonment for a period not exceeding five years. Article 102   §   2 of the Code of Criminal Procedure (1999) provides that requests and demands must be examined and decided upon immediately after being made, unless the provisions of the Code envisage a different procedure. Taking a decision on a request may be adjourned by the authority dealing with the case until circumstances essential for taking such a decision are clarified. A request not made in due time is left unexamined in cases prescribed by the Code. COMPLAINT The applicant complains under Article 6   §§   1 and 3 (d) of the Convention that the trial was not fair and the principle of equality of arms was not respected because his conviction was based entirely on the testimony of two police officers, who were unreliable witnesses and made false statements, while he was not allowed to contest effectively the charge against him by submitting evidence and calling witnesses. QUESTION TO THE PARTIES Did the applicant have a fair hearing in the determination of the charge against him, in accordance with Article 6   §   1 of the Convention? In particular, was the trial fair and was the principle of equality of arms respected, taking into account that the applicant’s conviction was based exclusively on police testimony? Was the applicant able to obtain the attendance of witnesses on his behalf, as required by Article 6   §   3 (d) of the Convention?