Published: 20 Sep 2018 | By Roman Kiselyov
Mushegh Saghatelyan v Armenia
Case No.: 23086/08
Judgment date: 20 September 2018
On 19 February 2008 a presidential election was held in Armenia, following which Serzh Sargsyan, the then Prime Minister, was declared the winner. The applicant was an active supporter of the main opposition candidate, Levon Ter-Petrosyan, who had served as President between 1991 and 1998, during which time the applicant was the Head of the Penitentiary Department at the Ministry of the Interior. Immediately after the announcement of the results, Mr. Ter-Petrosyan called on his supporters to gather in central Yerevan to protest against alleged irregularities in the election process. Between 20 February and 1 March 2008, the demonstrators held rallies, in which the applicant actively participated, and some demonstrators, including the applicant, camped overnight in Freedom Square. In the early morning of 1 March, without warning, about 800 armed police officers violently dispersed the encampment. The demonstrators, including the applicant, fled the Square. The applicant was arrested and later convicted for allegedly assaulting a police officer and for carrying a bladed weapon. He alleged that he was beaten repeatedly during his arrest and at the police station, on the instructions of the police chief, to the extent that he lost consciousness.
Reiterating that “unacknowledged detention of an individual was a complete negation of the fundamentally important guarantees” of Art. 5 ECHR, the Court found that the first 16 hours of the applicant’s detention were not recorded as a legal period of detention, and were never acknowledged by the Government; he was, therefore, deprived of his rights, including to have a lawyer and to inform his family immediately, in breach of Article 5(1). Further, the applicant remained in police custody for at least 84 hours prior to being brought before a judge, exceeding the 72-hour limit established by domestic law. Additionally, the national courts did not provide sufficient reasons for the applicant’s detention, in breach of Art. 5(3). With regard to quality of justice, the Court found a violation of Article 6(1), noting that national courts failed to examine any of the applicant’s motions or witnesses and unreservedly endorsed the police’s version of events.
The Court also concluded that there was an interference with the applicant’s right to freedom of assembly (Art. 11) in relation to the dispersal of the demonstration and his prosecution, detention and conviction. 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 claims that protesters were planning to arm themselves were unsubstantiated; no evidence presented by the Government indicated that police were attacked with firearms, explosives or bladed weapons. The Court found that the Government’s explanation for the purpose of the police operation on 1 March 2008 was not sufficiently credible and that the objective of the operation was to disperse the demonstrators on Freedom Square and prevent further assemblies. The length of the protest alone was not sufficient to justify its dispersal without specific evidence that it posed a danger to public order or intentionally disrupted ordinary life. The Court noted the use of unjustified and excessive force to disperse the protest, the fact that no prior warning was given, that no independent and impartial investigation has since been conducted and that the narrative about the purpose of the operation has constantly changed. It therefore found that the dispersal of the Freedom Square protest was “a disproportionate measure which went beyond what it was reasonable to expect from the authorities when curtailing freedom of assembly” (para. 248), was not necessary in a democratic society, and constituted a violation of Art. 11.
As regards the measures taken against the applicant, the Court found that he was prosecuted and detained for at least 5 months for his participation in, and possible organisation of, the Freedom Square demonstration. It held that the dispersal of the peaceful assembly and subsequent rounding-up and detention of its activists or other peaceful participants without any evidence that they had personally committed any reprehensible acts, was not “necessary in a democratic society”. The domestic courts failed to carry out a thorough and objective assessment of the facts underlying the charges against the applicant (such as uncertainty over the time of the claimed knife attacks and the applicant’s time of detention) in view of the overall context of the case and the need to guarantee the right under Art. 11. The reasons relied on by the domestic courts to justify the Art. 11 interference were not genuinely “relevant and sufficient”, thus depriving the applicant of the procedural protection under Art. 11. Additionally the dispersal of the assembly and legal action against the applicant cannot but have had a lasting discouraging effect on citizens’ willingness to participate in political assemblies.
Finally, the Court found both procedural and substantive violations of Art. 3, in light of the Government’s failure to provide a satisfactory and convincing explanation for the applicant’s injuries and that no official investigation had been carried out specifically into his allegations of ill-treatment.
The applicant was awarded €15,600 in respect of non-pecuniary damage.
This is the first judgment, along with Gaspari v Armenia (No. 44769/08) decided the same day, addressing the events of 1 March 2008. The violent dispersal of the Freedom Square demonstrators that morning led to the arrests of many participants in the rallies, including a number of opposition leaders, and further mass protests, which resulted in ten deaths (including eight civilians), numerous injuries, and the declaration of a state of emergency. A number of other cases related to the 1 March events, including brought by the families of the deceased (Farmanyan and others v Armenia, No. 15998/11), are pending judgment before the Court.
The government has been heavily criticised for its failure to effectively investigate the 1 March events and the actions of state agents. Following the ‘Velvet’ Revolution in 2018, and his appointment as Prime Minister, on 1 March 2019 (the eleventh anniversary of the events), Nikol Pashinyan issued a public statement: “As the Head of the Republic of Armenia, I apologise on behalf of the State to all the victims of March 1, 2008, the victims of all political killings that have occurred in Armenia since independence, as well as to all those citizens and political forces subjected to political persecution. I am also apologising for the fraud fostered and coordinated by the ruling elites, for illegalities, corruption and political murders.”
Read the full judgment in Mushegh Saghatelyan v Armenia on HUDOC.