issued by the Registrar of the Court

ECHR 291 (2020)

15.10.2020

Judgments and decisions of 15 October 2020

The European Court of Human Rights has today notified in writing six judgments¹and 21 decisions²:

four Chamber judgments are summarised below;

two Committee judgments, concerning issues which have already been submitted to the Court, and

the 21 decisions, can be consulted on Hudoc and do not appear in this press release.

The judgments below are only available in English.

Myasnik Malkhasyan v. Armenia (application no. 49020/08)

The applicant, Myasnik Malkhasyan, is an Armenian national who was born in 1961 and lives in

Yerevan.

The case concerned his arrest and pre-trial detention, amid the wide-scale protest against the 2008

presidential elections and an alleged politically motivated crackdown.

Nationwide rallies, alleging election irregularities, broke out after the February 2008 election. Daily

demonstrations were held in the centre of Yerevan, in particular at Freedom Square, where the

protestors also set up a camp. On 1 March in the early hours, the police broke up the camp, after

which several thousand protesters gathered in the area of the Myasnikyan monument and adjacent

streets. Later that day clashes took place between protesters and the police in this area which

continued until early morning the next day, and resulted in ten people being killed, numerous

injured and damage to property.

The applicant, an opposition member of parliament, had been attending the protests and had given

speeches. He submits that he was not at Freedom Square camp during the police operation, arriving

around 12 noon at an area around Myasnikyan monument where most of the protestors had been

forced to relocate. He says that he addressed the crowd through a loudspeaker, calling for calm and

restraint.

The following day at 6 a.m., when leaving the area in a taxi, he was taken into custody on suspicion

of organising mass disorder and was later charged with that offence, as well as with an attempt to

usurp State power in connection with the protest movement and the events which unfolded in

Yerevan on 1 March 2008.

All his appeals against his pre-trial detention were dismissed on grounds of the gravity of the

offences, and the risk of his absconding. He unsuccessfully complained that there was no evidence

giving rise to a reasonable suspicion that he had committed any of the criminal offences with which

he had been charged and that he was a member of parliament with no previous convictions and a

permanent place of residence.

Under Articles 43 and 44 of the Convention, Chamber judgments are not final. During the three-month period following a judgment’s

delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five

judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day. Under Article 28 of the Convention,

judgments delivered by a Committee are final.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

Inadmissibility and strike-out decisions are final.

The only charge which was ultimately retained against him was for organising mass disorder. He was

convicted of this charge in June 2009, the courts ruling that the protest movement, including the

violence which had broken out, had been part of a plan to overthrow the government masterminded

by the applicant, along with other opposition leaders. The courts essentially relied on one witness

statement alleging that the applicant had transported and stored metal rods and wooden clubs in a

tent on Freedom Square, and three other witness statements saying that he had incited protestors

at the Myasnikyan monument to arm themselves and attack the police.

He was sentenced to five years in prison, but was immediately released under an amnesty.

Relying in particular on Article 5 §§ 1 (right to liberty and security) of the European Convention on

Human Rights, the applicant complained that his arrest and detention had not been based on a

reasonable suspicion and that the courts had failed to properly justify his continued detention.

Violation of Article 5 § 1 (c)

Just satisfaction: 5,085 euros (EUR) (pecuniary damage), EUR 7,500 (non-pecuniary damage) and

EUR 2,000 (costs and expenses)

Karapetyan v. Georgia (no. 61233/12)

The applicant, Hasmik Karapetyan, is an Armenian national who was born in 1953 and lives in the

Lori Region of Armenia.

The case concerned the applicant’s complaint about the confiscation of money she had been

transporting through Georgia for failure to declare it to the customs authorities.

When crossing the Sarpi Border Checkpoint from Turkey into Georgia in May 2010, Ms Karapetyan

was approached by customs officers and asked whether she had anything to declare. The applicant

responded in the negative. She was nevertheless searched by customs officers. They found 40,000

United States dollars (USD) hidden in a stocking tied around her waist. The officers confiscated all

the money, drawing up an official report, which the applicant signed, on a violation of customs rules.

The applicant applied to the finance authorities and instituted judicial proceedings to complain

about the confiscation, without success. She submitted in particular that she had only owned

USD 9,000 of the confiscated sum, the remainder had belonged to two friends who had been

travelling with her and who had entrusted her with their money for safekeeping. USD 9,000

(approximately 16,000 Georgian laris (GEL)) did not exceed the limit set by law, namely GEL 30,000,

to be declared at a customs inspection.

The courts concluded in 2011 that she must have put forward the argument of shared ownership to

evade the sanction against her as she had not raised it when the money had been discovered on her

person. The courts further noted that, in any case, it had been up to the applicant, as the person

carrying the money, to have it declared in accordance with the relevant regulations.

Relying on Article 1 of Protocol No. 1 (protection of property) to the European Convention and

stating that she had only owned USD 9,000 of the confiscated sum, Ms Karapetyan alleged that it

had been disproportionate to confiscate all of the money she had been transporting through

Georgia.

No violation of Article 1 of Protocol No. 1

Akbay and Others v. Germany (nos. 40495/15, 40913/15, and 37273/15)

The applicants are three Turkish nationals, Yıldız Akbay, Hakki Soytürk and Dervıs Usul, who were

born in 1977, 1965 and 1969, respectively. Mr Soytürk was detained in Großbeeren (Germany) at the

time of lodging his application, while the other two applicants live in Berlin.

The case concerned the conviction of the first applicant’s husband (N.A.), now deceased, and of the

second and third applicants for drug smuggling and their allegation of police entrapment.

N.A. and the second and third applicants were arrested in August 2011 for smuggling 100 kg of

cocaine. N.A. and the second applicant, who were friends, had organised the importation via

acquaintances of the latter when a dock worker at the port of Bremerhaven (Germany), who was in

fact an undercover policeman, had offered a safe channel for the drugs. The third applicant had

been recruited by N.A. to pick up the drugs from a previously rented flat in Bremerhaven and

transport them to Berlin.

In November 2012 the Berlin Regional Court convicted N.A. of illicit importation of and trafficking in

drugs, while the second and third applicants were convicted of aiding and abetting N.A. Their

convictions were essentially based on their confessions, testimony of the undercover agent and

supervising police officers of a police informant. The court ruled, however, that N.A. and the second

applicant had been incited by the police to commit the offences and therefore considerably reduced

their sentences to four years and five months and three years and seven months, respectively. It

found that the police had not incited the third applicant to commit the offence, but nonetheless

generally mitigated his sentence.

N.A. and the second and third applicants appealed on points of law against this judgment, arguing

that the entrapment should have resulted in the proceedings against them being discontinued. The

Federal Court of Justice dismissed their appeal in December 2013, referring to its well-established

case-law on sentence reduction. Their constitutional complaints were dismissed in December 2014.

N.A. died in June 2015.

Relying on Article 6 § 1 (right to a fair trial), the applicants complained that N.A. and the second and

third applicants had been convicted of drug offences which they had been incited to commit by the

police. The first applicant further argued that she had standing to bring the application in her own

right as she had a moral interest in reestablishing her deceased husband’s reputation after his

unjustified conviction.

Violation of Article 6 § 1 in respect of Yıldız Akbay and Hakki Soytürk

No violation of Article 6 § 1 in respect of Dervıs Usul

Just satisfaction: EUR 18,000 for non-pecuniary damage and EUR 4,190 for costs and expenses to

Hakki Soytürk.

Guz v. Poland (no. 965/12)

The applicant, Remigiusz Guz, is a Polish national who was born in 1973 and lives in Łaziska (Poland).

The case concerned the applicant’s complaint that he had been found guilty in disciplinary

proceedings of undermining the dignity of the office of a judge, following his criticism of a report on

his work by another more senior judge.

At the beginning of 2009 the applicant, a district court judge, applied for the post of a judge at the

Gliwice Regional Court.

As part of the promotion procedure, a judge inspector prepared a report on the applicant’s work

finding, among other things, that he had a difficult relationship with his superiors as he failed to

comply with their instructions.

Writing to the President of the Gliwice Regional Court, he responded to the assessment of his work,

alleging that it was “superficial, unfair and tendentious”. He maintained these remarks during a

meeting of the general assembly of regional court judges, which voted against the applicant’s

promotion.

He criticised the report again when appealing against the National Council of the Judiciary’s

subsequent decision not to forward his candidature to the President of the Republic. The Supreme

Court dismissed his appeal in November 2009.

A disciplinary case was then brought against the applicant, and in March 2011 he was found guilty of

undermining the dignity of the office of a judge and issued with a warning. His appeal against this

decision and subsequent constitutional complaint were all unsuccessful. The courts essentially found

that the applicant’s criticism had violated the standards of judicial decency, undermining not only

the judge inspector’s reputation in particular but also the administration of justice as a whole.

Relying on Article 10 (freedom of expression), the applicant complained that his conviction of a

disciplinary offence had breached his right to express his opinion on a report on his work which he

had considered inaccurate. He submitted in particular that his comments had not been offensive,

had only been raised internally and that it had been in the public interest to defend the rules on the

promotion of judges.

Violation of Article 10

Just satisfaction: EUR 6,000 (non-pecuniary damage) and EUR 853 (costs and expenses)

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.