CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 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 16 October 2018   FIRST SECTION Application no. 18945/10 Grigor VOSKERCHYAN against Armenia lodged on 18 March 2010 STATEMENT OF FACTS The applicant, Mr Grigor Voskerchyan, is an Armenian national who was born in 1956 and lives in Yerevan. He is represented before the Court by Mr M. Shushanyan, a lawyer 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.     The 19 February 2008 presidential election and post-election demonstrations 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. The applicant was an active supporter of Mr Ter-Petrosyan and acted as the head of his pre-election headquarters in the town of Abovyan, Kotayk Region. 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 regularly participated in those rallies and apparently occasionally gave speeches. On 24 February 2008 the Central Election Commission announced that Mr Sargsyan had won the election with around 52% of all votes cast, while Mr Ter-Petrosyan had received around 21% of votes. On the same date a criminal case was instituted under Article 300 § 1 of the Criminal Code (CC) on a suspicion that Levon Ter-Petrosyan and his supporters intended violently to seize State power by instilling distrust among the population towards the lawful authorities and making calls to form armed gangs and to use them during subsequent developments. On 29 February 2008 the rallies were still in full swing but the assembly was eventually terminated by an early morning police intervention on 1   March 2008 during which, as alleged by the applicant, the police attacked the several hundred demonstrators who were camping at Freedom Square, 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 had reacted aggressively by attacking the police and had then been dispersed. After the square was cleared of demonstrators, the relevant police units had carried out an inspection at the scene and allegedly found various types of weapons. On the same date another criminal case was instituted on account of the alleged armed assault on police officers at Freedom Square. It appears that, after Freedom Square was cleared of demonstrators, some of them relocated to another area and were later joined by thousands of others who apparently poured onto the streets of Yerevan in response to the events of the early morning in order to voice their discontent. It further appears that the rallies continued throughout the city until late at night, 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. On 2 March 2008 another criminal case was instituted under, inter alia , Article 225 § 3 of the CC on a suspicion that Levon Ter-Petrosyan and his supporters, not willing to concede their defeat in the election, organised mass disorder in the streets of Yerevan involving murders, violence, pogroms, arson, destruction of property and armed resistance to public officials, with the use of firearms, explosives and other adapted objects. 2.     The criminal proceedings against the applicant On 8 March 2008 the applicant was arrested and on 11 March 2008 he was charged under Article 225 § 1 of the CC with organising mass disorder. On the same date a court ordered his pre-trial detention. On 29 August 2008 the charge against the applicant was modified and new charges were brought under Articles 225 § 3 and 300 § 1 of the CC for organising mass disorder involving murders and an attempt violently to seize State power. The applicant was later indicted under those Articles and in December 2008 his case went to court. However, on 31 March 2009 the prosecution dropped those charges on the ground that, in the meantime, Article 225 § 3 had been repealed, while Article 300 § 1 had been amended, and indicted the applicant under Article 225 § 1 of the CC. The bill of indictment included a list of 15 witnesses to be called and examined in court, including H.A. and S.M. The applicant denied the charges against him, including inciting any violent actions and organising mass disorder. On 22 June 2009 the District Court rendered its judgment, finding it to be established as follows: “... after the preliminary results of the presidential election held in Armenia on 19   February 2008 were made public, and it became clear that an absolute majority of voters voted in favour of the presidential candidate Serzh Sargsyan, [the applicant], being unhappy with the election results and believing that they had been rigged and that in reality it was the presidential candidate Levon Ter-Petrosyan who had been elected as President of Armenia, organised buses, minivans and taxis from the town of Abovyan for the residents of Kotayk Region, giving them various sums of money to pay for fares, as well as for cigarettes and food, in order for them to participate in the mass public events held at Yerevan’s Freedom Square, namely the demonstrations which had been ongoing since 20 February 2008, with the aim of shaping public opinion to believe that the election had not been conducted in compliance with the law and that the results had been rigged. However, before setting off for Yerevan, where during the mass public events the crowd was being geared up and prepared for disobedience by inflaming populistic passions, [the applicant] gave speeches on each occasion in front of about 20 persons and, declaring that the authorities had rigged the election results, that in reality it was Levon Ter-Petrosyan who had won, that the authorities were trampling the will of the people, that it was necessary to get rid of the current authorities by any means, that people had to unite, struggle against the current authorities, participate in the demonstrations until victory, which had to be achieved by any means, and be ready for any steps and actions in order to topple the authorities, if necessary by force and promised financial rewards and public posts to the most active, in case of victory. The last occasion on which [the applicant] gave a speech to a group of residents of the Kotayk Region was in the evening of 29 February 2008 at Freedom Square, during which he declared that that night was important for everyone, many people would be needed, and urged those present not to go home but to sleep over in that area, promising to provide them with food and money.” The District Court went on to conclude that there was no material in the case substantiating the fact that the applicant had organised mass disorder as charged under Article 225 § 1 of the CC. Meanwhile, the evidence obtained in the case showed that the applicant had made public calls inciting a violent overthrow of the government and a violent change of the constitutional order which fell within the scope of Article 301 of the CC. The investigating authority had failed to assess correctly his actions, which therefore had to be recharacterised from Article 225 § 1 to Article 301 of the CC. The District Court found the applicant guilty under that Article, imposing a two-year sentence. In doing so, the District Court relied on the statements made by ten witnesses in court, as well as the statements made by witnesses H.A. and S.M. during the investigation and read out in court. The District Court further decided to absolve the applicant from serving his sentence under a general amnesty declared by the Armenian parliament on 19 June 2009. The applicant was immediately released from detention. On 10 August 2009 the applicant lodged an appeal complaining, inter alia , that he had not had the possibility to question witnesses H.A. and S.M. either during the investigation or trial, that the trial court had recharacterised the charge against him without having the authority to do so and thereby depriving him of a possibility to defend himself against that charge, that the interference with his freedom of expression had been unlawful, unnecessary in a democratic society and disproportionate, and that he had been prosecuted in reality because of his political opinions and because he was an opposition supporter. On 22 September 2009 the Criminal Court of Appeal dismissed the appeal and upheld the judgment of the District Court. It held, inter alia , that the law allowed the reading out of pre-trial statements of witnesses who were absent for valid reasons. Witness S.M. had been suffering from a disease which had prevented his appearance in court, while witness H.A. had been out of the country. The applicant’s rights had not been violated, since his conviction had not been based solely on the statements of those witnesses. The Court of Appeal further stated that the law allowed a court to reclassify an offence if this did not worsen the accused’s situation and did not violate his right to defence. In the present case, the applicant’s situation had not been worsened by the reclassification of the offence since Article   301 prescribed a lighter penalty than Article 225 § 1 of the CC. The applicant’s right to defence had not been breached because his conviction had been based on evidence examined in court. Lastly, the Court of Appeal rejected the applicant’s allegation that his criminal prosecution was the result of his political opinions, stating that he had been prosecuted for specific criminal acts On 22 October 2009 the applicant lodged an appeal on points of law, which was declared inadmissible for lack of merit by the Court of Cassation on 25 November 2009. B.     Relevant domestic law Criminal Code (2003) Article 225 § 1 provides that organising mass disorder involving violence, massacre, arson, destruction of or damage to property, or armed resistance to public officials is punishable by imprisonment for a period from four to ten years. Article 225 § 3 provides that the same act, if involving murder, is punishable by imprisonment for a period from six to twelve years. Article 300 § 1 provides that usurpation of State power, that is activities aimed at violently seizing or retaining State power in violation of the Armenian Constitution, violently overthrowing Armenia’s constitutional order or violently violating Armenia’s territorial integrity, is punishable by imprisonment for a period from ten to fifteen years. Article 301 provides that making public calls for a violent overthrow of the government and a violent change of the constitutional order of Armenia is punishable by a fine of between 300 and 500 times the minimum wage or by detention of between two and three months or by imprisonment for a period not exceeding three years. COMPLAINTS 1.     The applicant complains under Article 6 §§ 1 and 3 (a-c) of the Convention that the trial court recharacterised the charge under Article   225 § 1 and convicted him under another Article, namely Article   301 of the CC. He was not informed about the nature and grounds of the new charge and had no time and facilities to prepare his defence against it nor a possibility to defend himself. 2.     The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that he was not able to question witnesses H.A. and S.M., either in court or during the investigation. 3.     The applicant complains that his prosecution and conviction interfered with his freedom of expression in breach of the guarantees of Article 10 of the Convention. 4.     The applicant complains under Article 18 of the Convention that he was a victim of political persecution and was convicted on trumped-up charges because he was a supporter of Levon Ter-Petrosyan and the head of his pre-election campaign office in the town of Abovyan. QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular: (a)     Was the applicant informed of the nature and cause of the accusation against him and afforded adequate time and facilities to prepare his defence, as required by Article   6 §   3   (a) and (b) of the Convention, in view of the fact that the trial court recharacterised the charge against him and convicted him under a different Article of the Criminal Code than the one under which he had been charged? (b)     Was the applicant able to question witnesses H.A. and S.M., as required by Article   6 § 3   (d) of the Convention? 2.     Has there been a violation of the applicant’s right to freedom of expression, contrary to Article   10 of the Convention? 3.     Were the restrictions imposed by the State in the present case, purportedly pursuant to Article 10 of the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article   18 of the Convention?