The European Court of Human Rights (Third Section), sitting on 15 May 2012 as a Chamber composed of:
Luis López Guerra,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 30 August 2008,
Having deliberated, decides as follows:
A. The circumstances of the case
1. Background to the case
2. The 19 February 2008 presidential election and the post-election demonstrations
3. The events of 1 March 2008
4. The applicant’s alleged house arrest and other developments
“I am very concerned about reports of injuries during the security forces’ operation to disperse protesters in Yerevan this morning. If these reports are confirmed, all allegations of excessive force should be properly investigated. It is also vital to prevent any further violence.
I am also alarmed by the reports that the runner-up in the recent presidential elections, former President [Levon Ter-Petrosyan], has been put under house arrest. If this is true, he should be immediately released. If he is accused of committing a crime, he should be properly charged and prosecuted in a court of law like anyone else. In a democracy you cannot arbitrarily detain political opponents.”
B. Relevant domestic law and international documents
1. The Assemblies, Rallies, Marches and Demonstrations Act (in force from 22 May 2004)
2. Law on Ensuring the Security of Persons Subject to Special State Protection (in force from 1 July 2004)
3. Resolution 1609 (2008) of the Parliamentary Assembly of the Council of Europe (PACE): Functioning of democratic institutions in Armenia, 17 April 2008
“1. On 19 February 2008, a presidential election took place in Armenia. Although the ad hoc committee which observed this election considered that it was “administered mostly in line with Council of Europe standards”, it found a number of violations and shortcomings, the most important of which were: unequal campaign conditions for the candidates, the lack of transparency of the election administration and a complaints and appeals process that did not give complainants access to an effective legal remedy. In addition, a number of cases of electoral fraud were witnessed.
2. The Parliamentary Assembly regrets that the violations and shortcomings observed did nothing to restore the currently lacking public confidence in the electoral process and raised questions among a part of the Armenian public with regard to the credibility of the outcome of the election. This lack of public confidence was the basis for the peaceful protests – held without prior official notification – that ensued after the announcement of the preliminary results, and which were tolerated by the authorities for ten days.
3. The Assembly deplores the clashes between the police and the protesters and the escalation of violence on 1 March 2008 which resulted in 10 deaths and about 200 people being injured. The exact circumstances that led to the tragic events of 1 March, as well as the manner in which they were handled by the authorities, including the imposition of a state of emergency in Yerevan from 1 to 20 March 2008 and the alleged excessive use of force by the police, are issues of considerable controversy and should be the subject of a credible independent investigation.
4. The Assembly condemns the arrest and continuing detention of scores of persons, including more than 100 opposition supporters and three members of parliament, some of them on seemingly artificial and politically motivated charges. This constitutes a de facto crackdown on the opposition by the authorities. ...
6. While the outbreak of public resentment culminating in the tragic events of 1 March 2008 may have been unexpected, the Assembly believes that the underlying causes of the crisis are deeply rooted in the failure of the key institutions of the state to perform their functions in full compliance with democratic standards and the principles of the rule of law and the protection of human rights. More specifically:
6.1 the National Assembly of Armenia has so far failed to play its role as a forum for political debate and compromise between the different political forces. Based on a “winner takes all” attitude, the current political system excludes the opposition from any effective participation in the decision-making process and governance of the country. This has resulted in, inter alia, a part of the political spectrum in Armenia is not represented in the current National Assembly;
6.2 the lack of public trust in the electoral process also generally undermines the credibility of the outcome of the elections in the eyes of part of the Armenian population. This is further compounded by the lack of impartiality of the election administration, the ineffective handling of election complaints and appeals and the lack of transparency of the vote count and tabulation procedures;
6.3. despite successful legislative reforms, the courts still lack the necessary independence to inspire the public’s trust as impartial arbiters including in the context of the electoral process; this explains the low number of election-related complaints filed with them. The same lack of judicial independence is also reflected in the fact that the courts do not appear to question the necessity of keeping people in detention pending trial and generally respond favourably to requests by the prosecutors without properly weighing up the grounds for this, as required by Article 5, paragraph 3, of the European Convention on Human Rights...;
6.4. in the absence of adequate judicial control, the arrest and continuing detention of persons on seemingly artificial charges, after contesting the fairness of the presidential election or their participation in the protest afterwards can only point to the political motivation of such acts. This is unacceptable in a Council of Europe member state and cannot be tolerated by the Assembly;
6.5 even though there is a pluralistic and independent print media, the current level of control by the authorities of the electronic media and their regulatory bodies, as well as the absence of a truly independent and pluralistic broadcaster, impede the creation of a pluralistic media environment and further exacerbate the lack of public trust in the political system. ...
12. ...the Assembly considers that, for [an open and constructive dialogue between the political forces in Armenian society] to start and be successful, a number of conditions need to be met as a matter of priority, in order to build confidence vis-à-vis the opposition and provide proof that the ruling majority is seriously committed to pursuing further reforms:
12.1. an independent, transparent and credible inquiry into the events of 1 March and the circumstances that led to them, including the alleged excessive use of force by the police and violence by the protesters, should be carried out immediately. The international community should be ready to monitor and assist such an inquiry;
12.2. the persons detained on seemingly artificial and politically motivated charges or who did not personally commit any violent acts or serious offences in connection with them should be released as a matter of urgency...”
4. Human Rights Watch Report: Democracy on Rocky Ground: Armenia’s Disputed 2008 Presidential Election, Post-Election Violence, and the One-Sided Pursuit of Accountability, February 2009
“The [statements] Human Rights Watch took from demonstrators and bystanders suggest that the first police action, in the early morning of March 1 against the Freedom Square tent encampment, entailed excessive use of force, without warning and in the absence, at the start, of resistance. Although later [protesters] began throwing stones at police from side streets near Freedom Square, one participant described being beaten up by police who found him lying on the ground. ...
Early morning removal of [protesters] and protest camp at Freedom Square
On the night of February 29 to March 1, several hundred [protesters] were on Freedom Square, staying in some 25 to 30 tents. Police moved against the [protesters’] camp early on the morning of March 1.
According to first deputy police chief [A.M.], speaking to Human Rights Watch four weeks later, the police had arrived at the square on March 1 to conduct a search, acting on information that demonstrators had been arming themselves with metal rods, and possibly firearms, in preparation for committing acts of violent protest on March 1. [A.M.] said that initially a group of 25-30 police [officers], including experts and investigators, were sent to do the search of the protestors’ camp. When the group tried to conduct the search, the [protesters] turned aggressive and resisted police with wooden sticks and iron bars, resulting in injuries to several policemen. At that stage more police had to be deployed and had to use force to disperse the crowd and support the group conducting the search. According to [A.M.], this operation lasted for about 30 minutes and 10 policemen sustained injuries as a result. Despite Human Rights Watch’s request, [A.M.] did not provide any details about these injured police and the nature of the injuries sustained.
Several witnesses interviewed separately by Human Rights Watch consistently described a different sequence of events in front of the Opera House on the morning of March 1. According to them, some time shortly after 6 a.m., while it was still dark and as demonstrators started waking, news spread that police were arriving at Freedom Square. Hundreds of Special Forces police in riot [armour], with helmets, plastic shields, and rubber truncheons, started approaching the square, in four or five rows, from Tumanyan Street and Mashtots Avenue. Police surrounded the square and stood there for a few minutes.
[Levon Ter-Petrosyan], who had been sleeping in his car parked at the square, was woken up. According to the account he gave Human Rights Watch, he addressed the [protesters], some of whom by this time were out of their tents, asking them to step back from the police line, and then to stay where they were and wait for instructions from the police. He also warned the police that there were women and children among the demonstrators.
Even before [Ter-Petrosyan] finished his address, police advanced towards the demonstrators in several lines, beating their truncheons against their plastic shields. According to multiple witnesses, the police made no audible demand for anyone to disperse nor gave any indication of the purpose of their presence. They started pushing demonstrators from the square with their shields, causing some to panic and scream and others to run. Some demonstrators appeared ready to fight the police, which was why, according to [Ter-Petrosyan], he urged the crowd not to resist the police. Others were still in their tents.
Immediately afterwards, without any warning, riot police attacked the demonstrators, using rubber truncheons, iron sticks, and electric shock batons. According to [Ter-Petrosyan], a group of about 30 policemen under the command of [General G.S.] approached him and forcibly took him aside. When asked if he was arrested, [Ter-Petrosyan] was told that police were there to guarantee his safety and that he was requested to cooperate. [Levon Ter-Petrosyan] was subsequently taken home and effectively put under house arrest.”
5. Report by the Council of Europe Commissioner for Human Rights on His Special Visit to Armenia, 12-15 March 2008, CommDH(2008)11REV
“Former President [Levon Ter-Petrosyan] is currently held in what must be qualified as de facto house arrest. He is provided close protection by the authorities in charge of the State of Emergency, notably the National Security Services. According to the Head of Police, he is free to leave his house, however the close protection service will only accompany him to safe places.”
(a) he was deprived of the possibility to hold a peaceful assembly as a result of the police intervention of 1 March 2008 and that he had no effective remedy against this; and
(b) the amendments introduced on 17 March 2008 by the National Assembly in the Assemblies, Rallies, Marches and Demonstrations Act violated his freedom of peaceful assembly.
A. The applicant’s alleged house arrest
Article 5 § 1 of the Convention
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to”
Article 2 of Protocol No. 4
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
B. Freedom of peaceful assembly and effective remedy
Article 11 of the Convention
“1. Everyone has the right to freedom of peaceful assembly...
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.”
Article 13 of the Convention
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
C. Alleged discrimination on the ground of political opinion
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
D. Other alleged violations of the Convention
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning his alleged house arrest, the dispersal of a rally on 1 March 2008 and lack of effective remedy in that respect, and the alleged discrimination on the ground of political opinion;
Declares the remainder of the application inadmissible.
Marialena Tsirli Josep Casadevall
Deputy Registrar President