GASPARI v. ARMENIA (European Court of Human Rights)

Communicated on 5 April 2019

FIRST SECTION

Application no. 67783/13
Vartgez GASPARI
against Armenia
lodged on 9 October 2013

STATEMENT OF FACTS

The applicant, Mr Vartgez Gaspari, is an Armenian national who was born in 1957 and lives in Yerevan.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a well-known civil activist.

On 20 October 2011 he took part in a small demonstration by a few dozen people in front of the Government building, to protest against non‑combat deaths happening in the Armenian army and the lack of proper investigation into such incidents.

According to the findings of the domestic courts, at one point the Chief of the Armenian Police (hereafter, the Chief of Police) exited the building, approached the gathered crowd and wanted to pass through in order to get to his car. He asked one of the female protesters to let him pass and made his way through, touching the hand of the woman in question in the process. At that moment, the applicant started yelling at the Chief of Police, calling him a “hooligan”, “fool”, “brute” and “scum”. Some of those present, including civilians and police officers, reacted critically to the applicant’s behaviour.

The applicant contested some of the above findings, alleging that while other officials, who had exited the Government building before the Chief of Police, had by-passed the gathered crowd in order not to cause disruption, the Chief of Police had deliberately ploughed through it and, in doing so, had pushed one of the female demonstrators, thereby provoking an angry reaction from the crowd. Some shouted “hooligan” and “criminal” at the Chief of Police, while the applicant yelled: “Don’t push, you brute! Scum!”.

The applicant was arrested and later charged under Article 258 § 1 of the Criminal Code (CC) with hooliganism in connection with the above events.

On 29 October 2012 the Kentron and Nork-Marash District Court of Yerevan found the applicant guilty as charged, considering that his actions amounted to hooliganism within the meaning of Article 258 § 1 of the CC and sentencing him to a fine of 30 times the minimum wage. The District Court held that the applicant had grossly violated public order by yelling the insults in question at the Chief of Police in the presence of numerous people. Moreover, his behaviour provoked indignation among those present, as demonstrated by the fact that they had made critical remarks. The Chief of Police had not done anything immoral or unlawful during the protest. Consequently, the applicant had wished to stand out and to underline, in an unjustified manner, his superiority over public officials, in this case the Chief of Police whom the applicant had singled out by chance.

The applicant appealed against his conviction, arguing, inter alia, that it had violated his right to freedom of expression and freedom of peaceful assembly. He and others had been protesting peacefully until the moment when the Chief of Police had pushed through the demonstrators, thereby disrupting the peaceful protest. The purpose of the assembly had been to present publicly their concerns to public officials and often expressions made in such a context could involve elements of insult, connected with the actions of public officials. Not only had the Chief of Police not shown the necessary tolerance required in such situations from a public official, but he had himself provoked the incident. Lastly, if the Chief of Police had considered the applicant’s remarks to be insulting, he could have pursued a civil action.

On 15 January and 27 March 2013 the Criminal Court of Appeal and the Court of Cassation respectively dismissed the applicant’s appeals and upheld his conviction. A copy of the Court of Cassation’s decision was served on the applicant on 9 April 2013.

B.  Relevant domestic law

Article 258 § 1 of the CC provides that hooliganism, namely a gross and intentional violation of public order manifested through an expressly disrespectful attitude towards society, is punishable by a fine of up to 50 times the minimum wage or detention of up to one month.

COMPLAINT

The applicant complains that his conviction violated his rights guaranteed by Article 10 of the Convention.

QUESTION TO THE PARTIES

Has there been a violation of the applicant’s right to freedom of expression, contrary to Article 10 of the Convention?

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