Last Updated on May 22, 2019 by LawEuro
Information Note on the Court’s case-law 221
August-September 2018
Mushegh Saghatelyan v. Armenia – 23086/08
Judgment 20.9.2018 [Section I]
Article 11
Article 11-1
Freedom of peaceful assembly
Prosecution and conviction of activist following dispersal of peaceful assembly: violation
Article 5
Article 5-1
Deprivation of liberty
Lawful arrest or detention
Unacknowledged deprivation of liberty following “bringing in” of suspect to police station: violation
Facts – Following the announcement of the preliminary results of the 2008 presidential election, the main opposition candidate called on his supporters to gather at Freedom Square in central Yerevan in order to protest over alleged irregularities in the election process. From 20 February 2008 onwards, daily rallies were held and at times attracted tens of thousands of people. Several hundred demonstrators stayed around the clock, having set up camp in the square. The applicant was an active participant in the rallies. In the early morning of 1 March 2008, about 800 heavily armed police officers moved in and dispersed the demonstration. The applicant fled Freedom Square and was arrested soon thereafter. He was later convicted of two counts of “assault on a police officer” and for illegally carrying a bladed weapon.
Law – Article 5 § 1: Unacknowledged detention of an individual was a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and disclosed a most grave violation of that provision.
The applicant had been taken to the police station at around 6.30 a.m. on 1 March 2008. However, according to the record of his arrest, he had only been arrested at 10.30 p.m. on that day. He had been taken to the police station by force and nothing suggested that he had been free to leave. He had been locked up in a cell during all or part of that period. There was no reason to doubt, therefore, that between 6.30 a.m. and 10.30 p.m. on 1 March 2008 the applicant had been deprived of his liberty within the meaning of Article 5 § 1. The question was whether that deprivation of liberty had complied with the requirement of “lawfulness” within the meaning of Article 5 § 1 of the Convention.
According to the Government, up until 10.30 p.m. the applicant had been formally neither “arrested” nor a “suspect” within the meaning of domestic law but had had the status of a “brought-in person”, having been apparently put through a pre-arrest procedure called “bringing-in”. None of the Articles of the Criminal Code of Procedure (“the CCP”) contained any rules concerning the alleged status of a “brought-in person”. The concept of a “brought-in person” appeared to have been developed for the first time by the Court of Cassation in a decision in 2009. Prior to that, nothing suggested that the relevant provisions of the CCP had been interpreted by the domestic courts in such a manner as to provide for a pre-arrest procedure called “bringing-in”. Nor did the particular circumstances of the applicant’s case suggest that his deprivation of liberty before 10.30 p.m. had been pursuant to such a procedure. In particular, the only document which mentioned that the applicant had been “brought in” was a handwritten record entitled “record of bringing-in” which lacked any basis in domestic law.
The applicant’s status had only been formalised 16 hours after his forced appearance at the police station. During that period the applicant had been left without any sense of certainty as to his personal liberty and security and had been deprived of all the rights enjoyed by an arrested suspect under the CCP, including the right to have a lawyer and to inform his family immediately. The initial sixteen hours of the applicant’s deprivation of liberty had been left formally unacknowledged.
Further, the applicant had remained in police custody for at least 84 hours prior to being brought before a judge. That had been in excess of the maximum period of 72 hours permitted by domestic law. Such a continued arrest without a judicial order for the time exceeding the 72-hour period was incompatible with the domestic law.
Conclusion: violation (unanimously).
Article 11
(a) Whether there had been an interference with the exercise of the right to freedom of peaceful assembly – Article 11 only protected the right to “peaceful assembly”, a notion which did not cover a demonstration where the organisers and participants had violent intentions. There was no evidence to suggest that the demonstrations held at Freedom Square from 20 February 2008 had involved incitement to violence or that there had been any acts of violence prior to the police operation conducted in the early morning of 1 March 2008. The Government’s allegation that the demonstrators had been planning to arm themselves to instigate mass disorder was unsubstantiated. There was no evidence to suggest that any firearms, explosives or bladed weapons had been used by the demonstrators during the police operation.
There had therefore been an interference with the applicant’s right to freedom of peaceful assembly on account of both the dispersal of the demonstration and his subsequent prosecution, detention and conviction.
(b) Whether the interference was justified – The authorities had allowed the assembly, and had not made any attempts to break it up for nine days. The official explanation of the purpose of the police operation of 1 March 2008, to verify information obtained that weapons were to be distributed to the protestors, was not sufficiently credible and the Court had no reason to doubt that the objective of the police intervention had been to disperse the camp and those present at Freedom Square and to prevent the further conduct of the assembly.
The purpose of the demonstration had not been to obstruct the lawful exercise of an activity by others but to have a debate and to create a platform for expression on a public matter of major political importance which was directly related to the functioning of a democracy and was of serious concern to large segments of the Armenian society. Therefore, a greater degree of tolerance should have been demonstrated in the present case than that shown by the authorities.
The actions of the police did not appear to have ever been the subject of an independent and impartial investigation. The dispersal of the assembly at Freedom Square without sufficient justification and apparently without warnings to disperse and with unjustified and excessive use of force was a disproportionate measure which went beyond what it was reasonable to expect from the authorities when curtailing freedom of assembly.
The facts on which the charges against the applicant had been based were not backed by any evidence, were drafted in very general and abstract terms, without any specific details of the acts allegedly committed. It appeared that the applicant had been prosecuted and detained for simply having actively participated in, and possibly organised, the assembly at Freedom Square.
The applicant had been prosecuted and detained on such grounds for at least five months until most of the charges against him had been dropped, mostly for lack of evidence. Practically at the same time, new evidence and charges emerged and the applicant was accused of assaults on police officers and illegally carrying a knife. The applicant alleged that those charges had been artificial and fabricated in order to convict him at all cost for being an opposition activist. Those allegations did not appear to be without merit. The manner in which the criminal case against the applicant had initially been conducted and the fact that, as already indicated above, he had been prosecuted and detained for almost five months for basically taking an active part in the demonstrations in itself raised questions regarding the motives of the applicant’s prosecution. It was unclear why no charges had been brought against the applicant for such a long period of time if a knife had indeed been found in his possession on the very first day of his arrest.
The judgments in the applicant’s criminal case were a mere recapitulation of the indictment against him, which in its turn was based entirely on the testimony of the police officers concerned. The domestic courts had failed to carry out a thorough and objective establishment of the facts underlying the charges against the applicant and to demonstrate the rigour and scrutiny which, in the particular circumstances of the case and given the overall context, were required of them in order to ensure an effective implementation of the right to freedom of peaceful assembly guaranteed by Article 11. In such circumstances, it could not be said that the reasons adduced by the domestic courts to justify the interference were genuinely “relevant and sufficient”, which stripped the applicant of the procedural protection that he enjoyed by virtue of his rights under Article 11.
Even assuming that the dispersal of the assembly and the applicant’s prosecution, detention and conviction had complied with domestic law and pursued one of the legitimate aims enumerated in Article 11 § 2 of the Convention – presumably, prevention of disorder and crime –, the measures in question were not necessary in a democratic society. Furthermore, the dispersal of the assembly and the punitive measures taken against the applicant could not but have the effect of discouraging him from participating in political rallies. Undoubtedly, those measures had also had a serious potential to deter other opposition supporters and the public at large from attending demonstrations and, more generally, from participating in open political debate.
Conclusion: violation (unanimously).
The Court also found, unanimously, a violation of both the substantive and procedural limbs of Article 3, having found that the Government had failed to discharge their burden of proof and to provide a satisfactory and convincing application for the applicant’s injuries and that no official investigation had been carried out specifically into his allegations of ill-treatment. The Court also held that the domestic courts had failed to provide relevant and sufficient reasons for the applicant’s detention in breach of Article 5 § 3. Finally, the Court found a violation of Article 6 § 1 finding that the domestic courts had unreservedly endorsed the police version of events, failed to properly address any of the applicant’s submissions and had refused to examine the defence witnesses.
Article 41: EUR 15,600 in respect of non-pecuniary damage.
(See also Hakobyan and Others v. Armenia, 34320/04, 10 April 2012; and Kasparov and Others v. Russia, 21613/07, 3 October 2013, Information Note 167)
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