Published on 29 March 2021

FOURTH SECTION

Application no. 231/16 Ani GEVORGYAN against Armenia lodged on 3 December 2015 communicated on 9 March 2021

STATEMENT OF FACTS

The applicant, Ms Ani Gevorgyan , is an Armenian national who was born in 1988 and lives in Yerevan. She is represented before the Court by Mr S. Grigoryan , a lawyer practising in Yerevan.

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

At the time of the impugned events, the applicant was a reporter for the Chorrord Ishkhanutyun newspaper.

On 12 February 2014 a group of activists for the Armenian National Congress (ANC), an opposition political party, were handing out leaflets on Mashtots Avenue in Yerevan to inform the public about an upcoming ANC demonstration. The applicant, equipped with a camera, was there to cover the event.

At some point, a group of young persons, allegedly supporters of the then-ruling Republican Party, approached and tried to disrupt the distribution of leaflets by bullying the ANC activists and behaving aggressively, including by verbally assaulting them, pushing them and grabbing the leaflets. Some minutes later several police cars arrived and the police officers started immediately to arrest both parties ’ activists. Each of the ANC activists was pulled away by several police officers and forced into the police cars.

The applicant, together with several other journalists present at the site, was filming the arrests with her camera. She approached one of the police cars and started filming the process from close up , when one of the police officers allegedly shouted: “Grab the cameras”. On a video recording of the incident submitted by the applicant it can be seen that on the carriageway of Mashtots Avenue one of the police officers, and later two others, tried to take hold of the applicant ’ s camera by pulling it out of her hand, while the applicant resisted, shouting: “Let go of my camera, I ’ m a journalist”. Shortly afterwards she was put into the police car and taken to Kentron Police Station. The applicant alleges that the officers continued to attempt to take her camera while in the car.

According to the relevant record, the applicant was arrested on suspicion of hooliganism. At the police station, she was taken to an office where she was subjected to a personal search. According to the search record, the applicant ’ s belongings, including her camera and five memory cards, were seized for inspection.

According to the applicant ’ s submissions, during the search, police officer S.M. had taken her camera out of the examination room and seized the memory card, which was never returned to her.

It appears that the applicant was released about three hours later and her belongings were returned to her, for which she signed a receipt. The applicant alleges that after her release she discovered that three of her five memory cards, containing the footage of the Mashtots incident, had been returned to her damaged.

It appears that on 13 February 2014 criminal case no. 13115414 was instituted on account of hooliganism on the basis of the police report stating that the persons taken to the police station on 12 February 2014, including the applicant, had been involved in an altercation, thereby deliberately and grossly disrupting public order and demonstrating flagrant disrespect towards the public.

On 13 and 17 February 2014 several police officers were interviewed within the scope of the above-mentioned criminal case. They gave similar statements that on 12 February 2014, having noticed an altercation on Mashtots Avenue, they had intervened and had taken the offenders to the police station.

On 15 February 2014 the applicant filed a crime report with the Special Investigative Service (SIS) complaining, inter alia, that on 12 February 2014 police officer V.G. had hindered her journalistic activities on Mashtots Avenue – he had tried to take hold of her camera by pulling at and hitting her hand. Thereafter she had been taken to a police station by force, where police officer S.M. had seized a memory card from her camera.

It appears that on the same day the applicant underwent a forensic medical examination. According to the relevant medical report, an injury in the form of a hematoma was recorded on the back of her right wrist causing no light damage to health. No further injuries were found on her. During testimony, the expert did not rule out the possibility that the injury could have been inflicted on the applicant as a result of grabbing and pulling at her hand.

On 18 February 2014 an investigator dealing with the applicant ’ s case took a statement from her. Reiterating the incident of 12 February 2014, the applicant submitted that first police officer V.G., and later two other police officers, had grabbed and pulled her camera, trying to take hold of it, and then had hit, twisted and pulled at her hands. Shortly after, V.G. had ordered that she and her brother S.G., who had been there filming the incident, be put in a police car and taken to a police station. The applicant submitted that, in the police car, the police officers had attempted to grab their cameras. At the police station, she had been subjected to a personal search and her belongings, including her camera and memory cards, had been taken for inspection. However, the memory card seized from her camera had never been given back, while three other memory cards, previously functional and containing footage of the Mashtots incident, had been returned to her damaged. The applicant also submitted that on Mashtots Avenue her press badge had been attached to her bag and she had later shown it at the police station.

On 24 February 2014, upon the applicant ’ s crime report, criminal case no. 62203514 was instituted on the basis of Article 164 § 2 (hindrance to a journalist ’ s lawful professional activity by a public official) and Article 309 § 2 (exceeding authority accompanied with use of violence) of the Criminal Code.

It appears that the police officers who had arrested the applicant gave similar statements that no one had tried to take hold of her camera and that she had been taken to the police station for violating public order and obstructing the traffic.

In March 2014 three police officers, including S.M., and two attesting witnesses, who had been present during the applicant ’ s personal search, were interviewed about the applicant ’ s custody at the police station. They gave similar statements, that the applicant ’ s camera had not been taken out of the examination room and that no memory card had been found inside the card slot of her camera, which had been opened and examined in front of her. Only five memory cards had been found in the applicant ’ s pockets and her bag, which had neither been put in any device, nor had they been reproduced. After the completion of all formalities, the applicant ’ s belongings, packed and sealed, had been sent to the investigative department.

Confrontations were held between the applicant and two of the above ‑ mentioned police officers, where each of them maintained their statements.

On an unspecified date another police officer, L.K., testified that after her personal search the applicant had been accompanied to her office, where she had refused to make any statement about the incident. L.K. had handed the applicant a package containing her belongings, the contents of which she had checked, and she had signed a receipt for them.

On 17 March 2014 police officer V.G. testified as a witness that on 12 February 2014, seeing a group of persons brawling on Mashtots Avenue, he had intervened with other police officers to restore public order. Some of those persons, including the applicant, had been taken to Kentron Police Station. V.G. emphasised that neither he nor any of the police officers had tried to hinder the applicant ’ s journalistic activities or subjected her to violence. Rather, the applicant had been arrested for disrupting public order since she had been among the group quarrelling and yelling on the carriageway of the street. V.G. noted that, while the applicant had had a camera in her hand, he had not tried to wrest it from her, but had grabbed and pulled at her hands in order to remove her from the carriageway and to put her into the police car.

In March and April four bystanders testified that they had seen a group of men brawling on the pavement of Mashtots Avenue. Shortly afterwards, the police had arrived and tried to calm them down. All witnesses claimed that they had seen a woman on the carriageway, resisting and yelling at the police officers who had been trying to pull her from the carriageway to the pavement. None of the witnesses had seen police officers grabbing that woman ’ s camera or hitting her or any other person.

On 28 March 2014 the applicant was questioned as a witness and reiterated her statements of 18 February 2014. In addition, she noted that she had been pulled to the carriageway by the police officers who had been trying to take hold of her camera.

On 15 April 2014 the investigator decided to order a technical examination of the damaged memory cards.

On 13 May 2014 the examination was completed. According to the relevant expert conclusion, the memory cards in question no longer worked and it was impossible to find the cause of the malfunction. It was also noted that the cause of malfunction of that type of memory card could be mechanical or physical damage, or otherwise memory card failure.

On 3 and 6 June 2014 the journalists reporting on the impugned events, including the applicant ’ s brother S.G., gave similar statements that when the applicant had been filming the arrest of opposition activists near the police car, the police officers had started to pull at her, trying to grab her camera. S.G. also added that the police officers had forced both him and the applicant to a police car, where they had attempted to take away their cameras.

On 17 June 2014 a confrontation was held between the applicant and police officer V.G., where each of them maintained their statements.

On 24 June 2014 the investigator dealing with the criminal case refused to prosecute the police officers and discontinued criminal case no. 62203514 for lack of corpus delicti in their actions. The decision stated , in particular, that on 12 February 2014 the police officers, having noticed an altercation on Mashtots Avenue, had intervened in order to restore public order and take the offenders into custody. As regards the applicant, she had been taken into custody since she had also been violating public order: being on a busy street, she had obstructed the traffic, had yelled, had interfered with the actions of the police and had failed to obey their orders to leave the carriageway. As a result, and in order to ensure her own safety, the police officers had grabbed her hands and, overcoming her resistance, had moved her from the road and had taken her to the police station. In consequence, the applicant had sustained an injury to her wrist. The use of force had taken the form of grabbing and pulling at her hands, which had been substantiated by the video material. The police officers had acted in compliance with the powers of the police as laid down by Section 30 of the Police Act and there had been no hindrance to the applicant ’ s journalistic activities. As stated by the police officers, the applicant had been arrested as an offender of public order and not as a journalist. No one had tried to grab her camera, but they had pulled at her hands in order to remove her from the carriageway. In the police car, police officer K.K. had simply prevented the applicant from distracting the driver with her camera. The applicant ’ s allegations about the seized and damaged memory cards had not been proved either. This decision was upheld by the Prosecutor General.

On 15 August 2014 the applicant appealed against the decisions of the investigator and the Prosecutor General before a district court. She submitted, inter alia , that the investigating authority had failed to undertake proper assessment of facts and evidence. The applicant pointed out that, notwithstanding her request, the investigator had failed to grant her the status of an injured party, thereby shifting the burden of proof onto her and depriving her of any procedural status and the possibility to challenge the actions of the investigating authority. The applicant further argued that the violence inflicted on her by V.G. had been apparent from the video material submitted, whereas the investigator had only relied on V.G. ’ s statements and found no criminal conduct in his actions. While she had been exercising her professional duties, the actions of the police , in particular, those of V.G., had been unlawful, resulting in excess of authority and hindrance to her professional journalistic activities. As a result of those actions, she had been taken to the police station where her memory cards had been damaged and her video material had been lost.

On 26 August 2014 criminal case no. 13115414 instituted on account of hooliganism (see above) was discontinued for lack of corpus delicti. In particular, the decision stated that the persons involved in the altercation, including the applicant, had not had any intention of grossly disrupting public order since the incident had been of an interpersonal nature and had lasted for a short period.

On 30 September 2014 the Kentron and Nork- Marash District Court of Yerevan rejected the applicant ’ s appeal of 15 August 2014. The court, in particular, found that the applicant ’ s complaint that she had been taken to the police station in order to hinder her professional journalistic activities had been examined and disproved by the investigating authority, relying not only on the witness statements of the police officers, but also on that of relatively neutral bystanders. The court underlined that other journalists, reporting on the same event, had been able to exercise their duties without any hindrance from the police, and the applicant had submitted their video recordings to the investigating authority. Having examined the said video material, the court found that there had been no hindrance to the applicant ’ s professional activity – no factual information supported her allegations that the police officers had tried to take hold of her camera. Rather, the video material had confirmed the statements of the police officers that the applicant had been forcibly taken from the carriageway to the police car and afterwards to the police station, which, in the context of the reasons provided by the police officers, did not amount to hindrance of journalistic activities. As regards the applicant ’ s allegations that one of her memory cards had been seized and not returned while the others had been damaged, the court held that these had been disproved not only by the statements of the police officers, but also by those of the disinterested attesting witnesses. The court emphasised that the applicant, who had refused persistently to sign any of the documents drawn up at the police station, had signed a receipt accepting her belongings, where she had listed everything seized from her, without mentioning anything about the allegedly damaged memory cards, whereas she had had a genuine opportunity to check the content of those cards on the spot. While acknowledging that the investigating authority should have granted the applicant the status of an injured party and interviewed the police officers involved as suspects, the court found that both the applicant and the police officers had been on an equal footing – the applicant had enjoyed the possibility to participate in confrontations, submit evidence and, as per her reference, the investigator had interviewed other journalists who had witnessed the incident. Besides, the impugned decision had been served on the applicant, thereby allowing her to challenge it.

On 10 October 2014 the applicant appealed against that decision, inter alia , reiterating her complaints raised before the District Court.

On 20 November 2014 the Criminal Court of Appeal rejected the applicant ’ s appeal and upheld the decision of the District Court.

On 10 December 2014 the applicant lodged an appeal on points of law, which was rejected by the Court of Cassation on 25 May 2015. A copy of that decision was sent to the applicant on 3 June 2015.

Article 164 § 2 of the Criminal Code provides that hindering a journalist ’ s professional and lawful activities or compelling a journalist to disseminate or to refrain from disseminating information, if committed by a public official in his official capacity, is punishable by a fine of 400 to 700 times the minimum wage or by imprisonment for a period of up to three years with or without a forfeiture of the right to hold certain posts or to carry out certain activities for a period not exceeding three years.

Article 309 § 2 of the Criminal Code provides that deliberate actions committed by an official, which obviously fell outside the scope of his authority and caused considerable damage to the rights and lawful interests of individuals or legal entities, or the lawful interests of society or the State, if they were accompanied with the use of violence, firearm or special means, are punishable by imprisonment from two to six years and by a forfeiture of the right to hold certain posts or to carry out certain activities for a period not exceeding three years.

Section 30 of the Police Act provides that a police officer, for the purpose of preventing or thwarting offences, catching and taking offenders into custody, as well as in the case of failure to comply with a lawful order of a police officer or showing resistance to a police officer, or for the purpose of self-defence, is entitled to use force (including hand-to-hand combat techniques), as well as any objects at hand, with respect to the offenders, if recourse to non-violent measures does not ensure the fulfilment of police duties.

Human Rights Watch: World Report 2015: Armenia, Events of 2014

(a) Freedom of Expression

“... [d] uring the detentions of opposition activists on February 12, police seized video cameras from, and briefly detained, [the applicant and S.G.], siblings and journalists with the Chorrord Ishkhanutyun newspaper and iLur.am news site, respectively. While in custody, police erased their cameras ... Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media Dunja Mijatović expressed concern about the incident.”

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that she was subjected to violence when the police officers tried to take her camera by force during the incident on Mashtots Avenue and no effective investigation was carried out in that regard.

2. The applicant complains under Article 10 of the Convention of a violation of her right to freedom of expression in that the police officers tried to take her camera by force while she was filming the incident on Mashtots Avenue, as well as later in the police car and during her search at the police station. She further complains that, at the police station, the officers seized and did not return one of her memory cards and damaged three others in order to prevent her from making the video recordings public.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman or degrading treatment during the events at Mashtots Avenue, when she was taken from the carriageway to the pavement by force, in breach of Article 3 of the Convention? In particular, was the force used in respect of the applicant proportionate and strictly necessary in the circumstances of the case (see Bouyid v. Belgium [GC], no. 23380/09, §§ 100-101, ECHR 2015)?

2. Having regard to the procedural protection from inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

3. Has the applicant exhausted all effective domestic remedies in respect of her complaint under Article 10 of the Convention and applied to the Court within six months from the date of the final decision, as required by Article 35 § 1 of the Convention? In particular, were the criminal proceedings (no. 62203514) instituted upon the applicant ’ s crime report of 15 February 2014 an effective remedy in respect of her complaint under Article 10 of the Convention? The Government are requested to provide a copy of this report.

4. Has there been an interference with the applicant ’ s freedom of expression within the meaning of Article 10 § 1 of the Convention? In particular, did the alleged interference by the police with the applicant ’ s journalistic activity, including the alleged attempts of the police officers to take the applicant ’ s camera by force, the alleged seizure of the memory card from her camera and the alleged damaging of three of her other memory cards while at the police station, constitute an interference within the meaning of this provision? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?