VII. Official Investigation and Prosecution

The authorities' response to the March 1 events has focused on establishing responsibility for organizing the demonstration and prosecuting people for participating in violent disorder. Dozens of opposition members have been tried and sentenced, some to lengthy prison sentences, in sometimes flawed and apparently politically motivated proceedings. At the same time, the authorities have failed to establish the exact circumstances surrounding the 10 deaths. Even though investigative authorities insist that the investigation into the legality of the police actions  continues, it seems unlikely that the Office of the Public Prosecutor on its own will prosecute any representative of the authorities for excessive use of force. A parliamentary commission tasked with investigating the events might shed light on that day's events, but the commission's inquiry cannot be a substitute for a thorough official investigation and subsequent prosecution.

Special Investigative Group and Parliamentary Commission

The prosecutor general tasked the Special Investigation Service with investigating the post-election violence in Armenia.[221] The Special Investigation Service was created in November 2007 as part of justice system reforms in Armenia.[222] The group is under the supervision of the Office of the Public Prosecutor and it takes the lead in investigating the conduct of public officials; it was tasked with the investigation of post-election events in general.[223] It is not subordinated to any other state agencies, but the prosecutor general has an oversight function on cases investigated by the Special Investigation Service.[224]

On June 16, 2008, the National Assembly established an ad hoc parliamentary commission tasked with investigating the events of March 1 and 2 and their reasons.[225] The commission was controversial, however, because the majority of the membership was reserved for pro-government parties, and the opposition boycotted the commission as a result. A separate fact-finding group consisting of two members from the opposition, two members from pro-government parties and one representative from the Armenian Public Defender's office has been tasked to establish the facts of the March 1 events and will submit these to the commission, which will take these findings into account. The findings of the fact-finding group are, however, non-binding on the commission.

Although the fact-finding group and the ad hoc commission might shed light on the factual events of March 1, they do not have prosecutorial power leading to accountability for rights violations.

Investigation and Prosecution of Demonstrators

Vahagn Harutyunyan, a senior investigator of the Special Investigation Service and the head of the Special Investigative Group responsible for investigating the March 1 events, told Human Rights Watch that considering the complexity of the cases and the fact that MPs and other public officials could have been involved in the events of March 1, the prosecutor general created a large team of the most experienced investigators within the Special Investigative Service to lead the investigation.[226]

A criminal investigation was opened into "organization and holding of mass events with violation of stipulated order, illegal procurement and keeping of weapons, ammunition, resistance to police officers, who are representatives of authorities, accompanied with violence, as well as organization of mass disorders at Yerevan city mayor's office's adjacent territory and central streets, accompanied with violence, pogroms, arson, destruction or damage to property, using fire-arms, explosives or explosive devices and by armed resistance to the representative of the authorities, by the candidate for President Levon Ter-Petrosian and his adherents on March 1, 2008 on the Freedom square."[227]

As of December 17, 2008, the Office of the Public Prosecutor had submitted 90 cases concerning 111 people to court for prosecution. Courts had handed down judgments in 87 cases concerning 101 people, sentencing 52 people to imprisonment and 38 people to suspended imprisonment. Only five people were acquitted.[228] The majority of the convicted were found to have violated the following articles of the Criminal Code: organization of mass disorder (article 225), usurping state power (article 300), violence against a representative of the authorities (article 316), robbery and theft (articles 176 and 177).[229]As of January 24, 2009, President Sargsyan had pardoned 28 individuals convicted in connection with the March 1 events. Despite Western and domestic pressure, the president has not granted a general amnesty, but has granted pardons to those individuals who have admitted their guilt and expressed remorse.[230]

Controversial ongoing prosecution including three members of parliament

A key ongoing case concerns seven people, including three members of parliament, who are accused of organizing mass disorder aggravated with murder (article 225-3) and usurpation of power (article 300). The case has been the subject of severe international criticism, and the nature of the criminal charges against defendants suggest that the case is politically motivated.

Three of the defendants are members of the National Assembly and thus enjoyed immunity from prosecution. They officially belonged to the ruling Republican Party, but had openly supported Ter-Petrossian's candidacy for the presidency. At the request of the Office of the Public Prosecutor, the National Assembly lifted their immunity on March 4 on the basis of evidence presented by the prosecutor general.[231] Even so, it took the prosecution another seven months to gather evidence and finalize the indictment, suggesting, in the words of two rapporteurs from the Parliamentary Assembly of the Council of Europe, that the "National Assembly had taken its decision to lift the parliamentary immunity of 3 of its members on very summary evidence at best, which could indicate that political motivations played a role in this decision."[232]

At this writing, in mid-January 2009, the trial was ongoing, but the judge had postponed court sessions several times because the defendants refused to stand up in the presence of the judge.

Complaints about the fairness of trial proceedings

Lawyers and trial monitors interviewed by Human Rights Watch described procedural violations, unresolved contradictions, the use of template decisions, and numerous other violations that raise serious questions as to whether the defendants accused of organizing and participating in the demonstrations received a fair trial.

Criminal lawyer Seda Safaryan told Human Rights Watch that even though her client David Arakelyan was sentenced to two years of suspended imprisonment for violence against a representative of the authorities (see Chapter V for a description of Arakelyan's detention), the prosecution never established the identity of the person against whom Arakelyan allegedly used violence. According to Safaryan, the conviction was based solely on the testimony of three police officers whose testimonies also figure as crucial evidence in several other cases.[233]

In the case against another of Sefaryan's clients, Musheg M., who was sentenced to five years in prison for violence against a representative of the authorities and illegal possession of weapons (a knife), the prosecution alleged that Musheg M. had beaten a police officer on Freedom Square at 7:15 a.m. on March 1. Afterwards, Musheg M. allegedly fled the scene, but was apprehended several kilometers away by the same police officers who testified against Arakelyan. The detention protocol,[234] however, indicates that Musheg M. was detained at 6:30 a.m. on March 1, 45 minutes before he allegedly fled from the Freedom Square. The judge in the case against Musheg M. never resolved this contradiction.[235]

Lawyer Amalia Avakyan's client Hrach H. was questioned as a suspect on March 2 and later charged under articles 225 and 316. He was remanded in two months' pretrial custody. Avakyan told Human Rights Watch that when she challenged the investigator in the preliminary hearing as to the necessity of two months' pretrial custody, and whether there was any evidence or victims in the case, the investigator replied that the investigation did not have any, but that was why they needed two months to come up with the evidence. Hrach H. was sentenced to one and a half years of suspended imprisonment for violence against a representative of the authorities.[236]

An analysis of court decisions and judgments reveals that in many cases investigative and judicial authorities have used the exact same language in different cases, raising serious questions as to whether the cases were treated in an individual manner. In several court decisions on pretrial custody ordered by the Court of General Jurisdiction on file with Human Rights Watch, the explanatory parts of the decision are almost identical from one defendant to the next. A trial monitor interviewed by Human Rights Watch confirmed that the same pattern could be observed in judgments.[237]

Arsen A., age 28, was detained after the March 1 morning dispersal of the Freedom Square demonstration. Together with several other protestors he was transferred to Kanaker-Zeytun district police station in north Yerevan. He described to Human Rights Watch a dispute between police officers over how to draw up his detention protocol:

One police officer wrote a detention protocol describing where and in what circumstances I was apprehended and brought to the police station. Another officer who came into the room demanded that he change the protocol to say that I resisted the police during detention. The officer writing my protocol refused to do so and the other one shouted at him, "Just do it! I have done four already!"[238]

Some of the articles that have been frequently invoked against opposition members, such as the organization of mass disorder (article 225) and usurping state power (article 300), are problematic as (to quote the Parliamentary Assembly of the Council of Europe) they "allow for broad interpretation, leave excessive discretion to the prosecutor and 'fail to give clear guidance on the dividing line between legitimate expressions of opinion and incitement to violence.'"[239] The conviction of several opposition members for violating article 225-3, organization of mass disorder aggravated by murder, and the ongoing prosecution of seven persons on the same charge, described above, seem particularly problematic given that the Armenian authorities have not established the circumstance of a single of the 10 deaths that occurred on March 1.

In a report on Armenia's implementation of Council of Europe resolutions 1609 and 1620, the authors write:

On the basis of our observations regarding articles 225-3 and 300, we can only conclude that the charges brought under these articles were politically motivated and, unless the Armenian authorities can provide us with detailed and conclusive evidence to the contrary for each individual case, that persons convicted on these charges should be considered political prisoners.[240]

On January 27, 2009, the PACE adopted resolution 1643 (2009) and decided not to suspend the voting rights of the Armenian Parliamentary delegation to the assembly. It did, however, decide to "remain seized of the matter" and tasked its Monitoring Committee to examine the progress by its next session in April 2009.[241]

Investigation of Excessive Use of Force

Armenia's international obligations in respect of use of force by police officers are set out above in Chapter IV. Those obligations extend to investigation and accountability where use of excessive force has occurred: Article 3 of the European Convention on Human Rights, to which Armenia has been a party since 2002, prohibits torture or inhuman or degrading treatment or punishment. The European Court of Human Rights has found on several occasions that where individuals have sustained injuries as a result of the use of force by law enforcement officers to disperse demonstrators, the burden rests on the government to demonstrate with convincing arguments that the use of force was not excessive.[242] Article 3 also places a positive obligation on governments to effectively investigate all allegations of ill-treatment by law enforcement personnel and hold those responsible accountable.

Regarding the many episodes of apparent excessive force, the fact that violence against demonstrators was widespread and the methods used strongly suggest that the force was condoned or at least tolerated by senior officers responsible for commanding the operations. These individuals, in addition to individual officers engaged in assault and other crimes, should be investigated and held accountable. In accordance with the Basic Principles on the Use of Force and Firearms, "governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use."[243]

The official investigation into the March 1 events has so far failed to identify the people responsible for the 10 deaths, and whether any of the deaths were caused by excessive use of force. Even with regards to the three deaths caused by direct impact of teargas canisters, weapons only used by the police, the investigation has failed to establish the exact circumstances in which these deaths occurred even though only four police officers were in possession of teargas launchers.[244]

Human Rights Watch does not underestimate the challenge the authorities face in getting to the truth of what happened to the persons who were killed or injured, and establishing who bears individual responsibility for that. We have spoken to family members of five protestors who were killed, as well as to the police and prosecutor's offices, but in most cases it is impossible for Human Rights Watch to establish the circumstances in which the deceased died. We have not been able to identify witnesses to most of the killings, and in the two incidents where witnesses described to us seeing someone killed, the victim was not known to them. Those witnesses were fearful of having their identities disclosed to the authorities. The violent events of March 1 were principally in the hours of darkness.[245]

Nevertheless, the authorities have a positive obligation in international law to embark on a meaningful investigation into police actions on March 1, and to seek to establish accountability and redress for deaths and injuries that arose from unlawful law enforcement actions.

Investigation of Torture and Ill-Treatment

The authorities also have an obligation to investigate the allegations that people were ill-treated during arrest and in custody, and subject to violations of the safeguards for detainees in international law.

According to Vahagn Harutyunyan, the Office of the Public Prosecutor had received several complaints concerning the use of excessive force, ill-treatment, and torture during detention. Harutyunyan told Human Rights Watch that the Office of the Public Prosecutor had examined all allegations, including ordering forensic medical examination when this was necessary, but that none of the allegations had been confirmed. In most cases, according to Harutyunyan, the allegations were presented during the trial, usually during the last stages, an indication that the allegations were made in order to avoid criminal responsibility for the crimes that had been committed.[246]

In at least two cases, however, the Office of the Public Prosecutor did not respond to written complaints about torture that lawyers submitted on behalf of their clients, even though the Office of the Public Prosecutor is obligated to respond to such complaints within one month.[247] In one case, when the lawyer told the judge during the trial that her client had been tortured, the judge postponed the discussion of the issue until the defendant, who suffered from health problems, gave up on raising the torture and accepted a suspended sentence.[248] In the second case, the prosecution argued that a separate investigation into the torture allegations was being conducted and that the trial against the defendant should continue. The judge dismissed the lawyer's argument that the question of whether his client had been tortured during detention was relevant to the case against him.[249]