The unwarranted dissolution of a demonstration without warning for the dissolution and the unjustified use of force violated the right to freedom of assembly
JUDGMENT
Ter-Petrosyan v. Armenia 25.04.2019 (no. 36469/08)
SUMMARY
Right to assembly. Dissolving the demonstration led by the former Armenian President and opposition leader. The protest was about election fraud. According to the ECtHR, the right to freedom of assembly was violated, since the dissolution was unjustified, there was no warning for its dissolution and excessive violence was used without justification.
PROVISION
Article 11
Article 5
Article 2 of Protocol n. 4
PRINCIPAL FACTS
The applicant, Levon Ter-Petrosyan, is an Armenian national who was born in 1945 and lives in
Yerevan. He was the President of Armenia between 1991 and 1998.
On 19 February 2008 Mr Ter-Petrosyan ran in a presidential election as the main opposition
candidate. From 20 February 2008 onwards, protests about alleged election irregularities broke out,
led by Mr Ter-Petrosyan, and took place in particular on Freedom Square in central Yerevan. At
times the rallies attracted tens of thousands of people.
The applicant alleged that on 1 March 2008 the police had arrived at Freedom Square, encircled the
demonstrators and, without warning, had begun to attack them and beat them. The protesters had
been quickly pushed out of the square and Mr Ter-Petrosyan had also been ordered to leave but had
refused. He was then forced into a car and taken to his house, which he had not been allowed to
leave. The roads to his house were blocked by the police and all vehicles were checked. No one
could go in or out of his dwelling without the permission of the Special Forces.
The rallies continued throughout the city until late at night, involving clashes between protesters
and law-enforcement officers and resulting in 10 deaths, many injured and a state of emergency
being declared by the President of Armenia.
The Government contested these allegations. In particular, it stated that the police forces had been
attacked by the demonstrators and that Mr Ter-Petrosyan had got into a police car voluntarily. He
had then been taken to his home and had not expressed any wish to go elsewhere.
Police officers had been stationed near his home as part of security measures for all people under
State protection. The police forces had neither prohibited anyone from entering the house nor
prevented Mr Ter-Petrosyan from leaving. He had expressed the wish at one point to leave but had
not gone anywhere when he had been told that the security forces would not accompany him.
On 4 March 2008, Mr Ter-Petrosyan’s legal representative filed a request with the Constitutional
Court, submitting that the applicant was under de facto house arrest. The applicant alleged that he
was allowed to attend a hearing at the court on 5 March 2008 for one hour but that otherwise his
house arrest had lasted without interruption until 20 March 2008. The Government rejected the
applicant’s submissions. In particular, it stated that after the hearing he had asked to be taken home
and had not wanted to leave his house until the state of emergency was lifted on 20 March 2008.
In March 2008 the Constitutional Court dismissed an application by Mr Ter-Petrosyan against the
result of the presidential election.
THE DECISION OF THE COURT
Article 5 § 1 and Article 2 of Protocol No. 4
The Court noted that the parties disagreed on whether Mr Ter-Petrosyan had been deprived of his
liberty or had faced a restriction on his liberty of movement following the events of 1 March 2008.
The Court took into account several reports suggesting that he had been placed under “house
arrest” as a result of his political activity, including a press release by the Secretary General of the
Council of Europe, the Monitoring Committee of the Parliamentary Assembly of the Council of
Europe, the Council of Europe Commissioner for Human Rights and Human Rights Watch.
At the same time, the Court did not have strong and unequivocal evidence to corroborate those
allegations or which had shown beyond reasonable doubt that that the security police had acted in
bad faith and had abused its authority by restricting his liberty or freedom of movement. This issue
had never been examined by any domestic authority, while the above-mentioned reports, while
undoubtedly worrying, were not sufficient fully to accept Mr Ter-Petrosyan’s version of events.
The Court found that there was insufficient substantiation for these complaints and that this part of
the application had to be rejected as manifestly ill-founded.
Articles 11 and 13
Firstly, the Court rejected the Government’s objection that Article 11 was inapplicable: it had already
found that there was insufficient evidence to conclude that the organisers and participants of the
assembly at Freedom Square had had violent intentions and that the rally had not been peaceful
(Mushegh Saghatelyan v. Armenia).
Secondly, the Court examined the Government’s argument that Mr Ter-Petrosyan had not
exhausted domestic remedies, particularly by initiating proceedings under Article 68 of the Code of
Administrative Procedure (CAP).
The Court noted, that, while the Government had produced copies of three judgments in support of
their argument, nothing had suggested that those judgments had been rendered by the
Administrative Court under the procedure prescribed by Article 68 of the CAP.
One of the judgments had clearly stated that the claim had been lodged under Article 65, while the
other two had been silent on that point. More importantly, all three had concerned challenges to
administrative acts, such as decisions by the Mayor’s Office prohibiting the holding of a rally, as
opposed to any interfering actions taken by law-enforcement authorities during a demonstration.
The Government had therefore failed to produce any examples of Article 68 being applied in a
situation similar to the present case.
The applicability of that Article to these types of situations had not been obvious from its wording
either. In particular, it applied only to an administrative action which “no longer has legal force” and
which an applicant had a legitimate interest in having acknowledged as unlawful depending on
certain conditions, none of which had appeared to exist in the present case. It was therefore not
clear whether Article 68 could apply to police actions such as the dispersal of an assembly. In view of
that lack of clarity and the absence of any examples of domestic practice, the Court considered that
the Government had failed to demonstrate the existence of an effective remedy for the interference
with Mr Ter-Petrosyan’s right to freedom of assembly.
Accordingly, the Court found that the applicant had not had an effective domestic remedy for his
grievances under Article 11, in breach of Article 13.
Furthermore, the Court had examined the necessity of the interference with the assembly at
Freedom Square in Mushegh Saghatelyan. It had concluded that its dispersal had not had sufficient
justification and had taken place in dubious circumstances, apparently without warnings to disperse
and with unjustified and excessive use of force. It had been disproportionate and had gone beyond
what was reasonable to expect from the authorities when curtailing freedom of assembly.
There had thus been a violation of Article 11 in Mr Ter-Petrosyan’s case.
Article 14
The Court rejected his complaint of discrimination over his “house arrest” as manifestly ill-founded
and thus inadmissible. It also found that it did not need to examine his allegation of discrimination
linked to his right to freedom of assembly, having regard to its findings under Article 11.
Just satisfaction (Article 41)
The Court observed that the applicant had failed to duly submit a claim for just satisfaction(echrcaselaw.com editing).
