Resolution of the European Court of Human Rights dated September 20, 2018 in the case of “Mushegh Saghatelyan v. Armenia” (application N 23086/08).
In 2008, the complainant was assisted in preparing a application. Subsequently, the application was communicated to Armenia.
The application against the applicant’s criminal prosecution and conviction of him as a public activist after the dispersal of a peaceful assembly is appealed in the case. In the case of violation of the requirements of Article 3, paragraphs 1, 3 of Article 5, paragraph 1 of Article 6, Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
After the announcement of the preliminary results of the 2008 presidential election, the main opposition candidate called on his supporters to gather in Freedom Square in the center of Yerevan to protest against alleged violations committed during the elections. Since February 20, 2008, rallies have been held daily, sometimes tens of thousands of people attended. Several hundred demonstrators remained in place around the clock, setting up a tent camp on the square. The applicant was an active participant in the rallies. Early in the morning of March 1, 2008, about 800 heavily armed police officers arrived and dispersed the demonstration. The applicant left Freedom Square and was soon arrested. He was later convicted of two episodes of “assault on a police officer” and for unlawful possession of cold weapons.
QUESTIONS OF RIGHT
Regarding compliance with paragraph 1 of Article 5 of the Convention. The unrecognized detention of a person was a complete denial of the fundamental guarantees of Article 5 of the Convention and indicated a particularly serious violation of this conventional provision.
The applicant was brought to the police station on March 1, 2008, at about 6.30. However, according to the records of the arrest, the applicant was arrested on March 1, 2008, at 22.30. The applicant was taken to the police station by force, and nothing suggests that he could leave at any time. Throughout this period or part of it, the applicant was kept in a cell. Consequently, there are no reasons to doubt that on 1 March 2008, from 6.30 to 22.30, the applicant was deprived of his liberty within the meaning of Article 5 § 1 of the Convention. The question was whether this deprivation of liberty complied with the requirement of "legality" provided for in Article 5 § 1 of the Convention.
According to the authorities of Armenia on March 1, 2008, until 10.30 pm the applicant was not formally either “detained” or “suspect” within the meaning of Armenian legislation, but had the status of a “delivered person” and, obviously, underwent a procedure prior to detention called . None of the articles of the Criminal Procedure Code of Armenia contained norms relating to the alleged status of the “delivered person”. The concept of the “delivered person” seems to have been first developed by the Court of Cassation in the 2009 judgment. Until that time, nothing forced us to suppose that the Armenian courts interpreted the relevant provisions of the Criminal Procedure Code in such a way as to substantiate the procedure prior to the detention, called “transfer of a person”. Also, the particular circumstances of the applicant's case did not allow assuming that the applicant’s deprivation of liberty before 10.30 pm was carried out in accordance with the specified procedure. In particular, the only document in which it was mentioned that the applicant was “delivered” to the Department of Internal Affairs was a handwritten report entitled “The Protocol for Delivering a Person”, which was not provided for by any of the provisions of Armenian legislation.
The status of the applicant was legalized only 16 hours after his forced delivery to the department of internal affairs. During this period, the applicant did not have any exact idea of respecting the principle of his personal integrity and security and was deprived of all the rights granted to the detainee by the Criminal Procedure Code, including the right to a lawyer and to notify family members about the detention. The first 16 hours of the applicant’s restriction of his liberty officially remained unrecognized.
In addition, the applicant was kept in the police department for almost 84 hours before being brought before a judge. This period exceeded the maximum permissible period of 72 hours established by law for such detention. Such a long detention without a court decision for a period exceeding the permitted 72 hours by the law did not comply with the requirements of Armenian legislation.
The case was a violation of Article 5 § 1 of the Convention (adopted unanimously).
Regarding compliance with Article 11 of the Convention. (a) Has there been any interference with the exercise of the right to freedom of peaceful assembly. Article 11 of the Convention protected only the right to "peaceful assembly", a concept that did not include a demonstration, the organizers and participants of which had intentions related to the use of violence. There was no evidence that the demonstrations in the Freedom Square, which were held since February 20, 2008, were associated with incitement to violence or that there were acts of violence before the security forces dispersed the demonstrators early in the morning of March 1, 2008. that the demonstrators planned to arm themselves in order to incite other citizens to mass unrest were unfounded. There was no evidence that would suggest that during the actions of the internal affairs officers on the square, demonstrators would use any firearms or knives or explosives.
Consequently, there was an interference with the applicant's right to freedom of peaceful assembly in connection with both the dispersal of the demonstration and the subsequent arrest of the applicant, the accusation and conviction.
(b) Whether the interference was reasonable. The Armenian authorities allowed to hold demonstrations and did not make any attempts to disperse them for nine days. The official explanation of the actions of the internal affairs officers on March 1, 2008, the verification of information on the proliferation of weapons among the protesters, was not convincing enough, and the European Court had no reason to doubt that the aim of the actions of the internal affairs officers was to disperse the tent camp and , who were in the Freedom Square, and prevent further assembly.
The purpose of the demonstration was not to hinder the legitimate activities of other persons, but to discuss and create a platform for expressing opinions on a publicly significant issue of significant political interest, which was directly related to the functioning of democracy in the state and was seriously discussed by a significant part of Armenian society. Accordingly, in the present case, a greater degree of tolerance was to be demonstrated than was manifested by the Armenian authorities.
The actions of internal affairs officers apparently did not become the subject of an independent and impartial investigation. The crackdown on the Freedom Square without sufficient grounds and without warning, with unreasonable and excessive use of force was a disproportionate measure that went beyond what could be expected from the authorities while restricting the freedom of assembly.
The facts on the basis of which the applicant was charged were not supported by any evidence, the charges were formulated in extremely general terms, without providing details of the alleged acts. It appears that the applicant was prosecuted and convicted only for simply actively participating in the meeting in the Freedom Square and, possibly, organizing it.
The applicant was charged and held in custody for at least five months, until the bulk of the charges against him were dropped, mainly due to lack of evidence. Practically at the same time, new evidence and accusations appeared, and the applicant was accused of assaulting officers of the police and of unlawful possession of knives. The applicant claimed that all of these allegations were false and falsified, in order to convict him at any cost for his participation in the activities of the opposition. These statements do not seem to be unfounded. The procedure for conducting the initial criminal proceedings against the applicant and the fact that, as already indicated above, the applicant was charged and detained for almost five months just because he was actively involved in the demonstrations, in itself raised questions about the motives bringing the applicant to responsibility. It was not clear why the applicant had not been charged for so long if the knife had indeed been found on his first day of detention.
The court decisions in the applicant's case were a rewritten indictment, which, in turn, was mainly based on the testimony of the relevant police officers. The courts of Armenia did not conduct a detailed and objective consideration of the facts of the accusation and did not demonstrate diligence and thoroughness, which, taking into account the special circumstances of the case and the general context of the events, were required of the authorities to ensure the effective use of the right to freedom of peaceful assembly, guaranteed by Article 11 of the Convention. Under such circumstances, it cannot be said that the reasons given by the Armenian authorities to justify the interference would have been truly “relevant and sufficient”, which would deprive the applicant of the procedural protection granted to him by his rights under Article 11 of the Convention.
Even assuming that the dispersal of the assembly and the prosecution of the applicant, his detention and conviction conformed to the requirements of Armenian legislation and pursued one of the legitimate goals specified in paragraph 2 of Article 11 of the Convention, presumably preventing unrest and crimes, the measures in question were not necessary in a democratic society . In addition, the crackdown on the demonstration and the conviction of the applicant could not but deprive the applicant of his desire to participate in political actions. Without a doubt, these measures also potentially could restrain other opposition supporters and the public at large from intending to attend demonstrations and, more generally, from participating in open political debates.
The case was a violation of Article 11 of the Convention (adopted unanimously).
The European Court also unanimously found a violation of Article 3 of the Convention in its substantive and procedural aspects, having decided that the Armenian authorities did not fulfill their duty to bear the burden of proof and did not provide satisfactory and convincing explanations for the applicant’s injuries, and admitted that there was no formal investigation into the complaints the applicant for ill-treatment. The European Court also ruled that the courts of Armenia had failed to provide relevant and sufficient grounds for keeping the applicant in custody in violation of Article 5 § 3 of the Convention. Finally, the European Court found a violation of Article 6 § 1 of the Convention, recognizing that the Armenian courts unconditionally supported the version of the events as presented by the police, did not properly evaluate the applicant's arguments and refused to question the witnesses of the defense.
In application of Article 41 of the Convention. The Court awarded the applicant EUR 1,600 in respect of non-pecuniary damage.