THIRD SECTION

Application no. 17804/09 Levon BARSEGHYAN against Armenia lodged on 1 April 2009

STATEMENT OF FACTS

The applicant, Mr Levon Barseghyan , is an Armenian national, who was born in 1967 and lives in Gyumri . He is represented before the Court by Mr K. Tumanyan and Mr E. Marukyan , lawyers practising in Vanadzor .

A. The circumstances of the case

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

1. The events following the 2009 presidential election in Armenia and the declaration of the state of emergency in Yerevan

The applicant is a journalist and chairman of the “ Asparez ” Journalists ’ Club based in Gyumri .

On 19 February 2008 a presidential election was held in Armenia . After the election, the main opposition candidate, Levon Ter-Petrosyan , announced that the election had been rigged. From 20 February 2008 onwards protest rallies were held by thousands of Levon Ter-Petrosyan ’ s supporters, the main meeting place for them being the central Freedom Square in Yerevan, where a few hundred demonstrator remained around the clock, having set up tents there.

In the early morning of 1 March 2008 clashes took place between the demonstrators and the police, which forcedly cleared Freedom Square from the opposition supporters. Later that day more clashes took place in Yerevan between the law enforcement authorities and the opposition supporters, which continued until late at night resulting in ten deaths and numerous injured.

In the night from 1 to 2 March 2008, by a decree of the incumbent President, a state of emergency was declared in Yerevan for a period of twenty days. As one of conditions of the state of emergency, the decree provided for the prohibition of meetings, rallies, demonstrations, marches and other mass events in Yerevan .

2. The prohibition for the applicant to hold and participate in a rally

On 2 March 2008 the applicant was taken to the Gyumri Police Station for making repeated calls to begin a rally on Theatre Square in Gyumri . The record of bringing the applicant to the police station , as drawn up by the arresting police officers K. P. and H. K. , stated that on 2 March 2008 , at 12 p.m. , the police officers were on duty on Theatre Square for the purpose of prohibiting the conduct of a rally. At 12.20 p.m. the applicant had approached Theatre Square in Gyumri and started to make public calls to gather , in order to begin a rally. The police officers warned the applicant twice not to make attempts to organise a rally but he disobeyed , after which he was taken to the police station.

On the same day the above two police officers filed written reports to the Chief of Gyumri Police in which they indicated the same circumstances of bringing the applicant to the police station as indicated in the record.

While in the police station, explanatory statements were taken from the applicant. In particular, the applicant stated that at 12 p.m. on 2 March 2008 he went out for a walk in the vicinity of the Gyumri National Theatre. As he left the car in front of the theatre and stepped onto the pavement, he noticed about 20 police officers standing there. One of them, in plain clothes, rushed towards him and started to shout at him, ordering him to leave and threatening to take him to a police station, and pushed him off towards the roadside. He recognised that person as police officer V. H. Shortly thereafter, he heard from the crowd gathered in the vicinity of the Square that the police officers had broken a video camera in front of the theatre. Assuming that it could be a camera of one of the local TV stations, he attempted to enter the Square, but was again attacked by police officer V.H. who shouted at him and pushed him away. He was then taken to the police station.

The applicant also mentioned that he had made no public calls to gather at the stage in front of the theatre.

According to the applicant, after he had been taken to the police station he was not allowed access to an advocate for three hours, and five hours after making the explanatory statement, he had been released.

As it appears from a letter sent on 2 March 2008 by Gyumri Deputy Mayor to Gyumri Police Chief, no notification to conduct a rally or procession in Gyumri had been lodged with the Gyumri Municipality after the 19 February 2008 presidential election.

3. Administrative proceedings against the applicant

On 2 March 2008 police officer G.B. of the Gyumri Police Station drew up a record of an administrative offence against the applicant under Article 182 of the Code of Administrative Offences (hereafter the CAO) for disobeying lawful requests of police officers, and on 5 March 2008 he lodged a claim with the Administrative Court seeking to bring the applicant to administrative liability under the same Article.

On 24 March 2008 the applicant lodged a counterclaim against the Gyumri Police Station seeking to annul the record of an administrative offence and alleging that the police had failed to substantiate the circumstances of the claim. In particular, there was no evidence to suggest that he had been making public calls to conduct a rally. In any event, the act of “making calls” was not prohibited under Armenian law and therefore was not punishable. Besides, there were no more than 100 people gathered in the vicinity of Theatre Square and therefore the rally did not require prior notification as it did not qualify as a mass event under Armenian law. Hence, the police request to leave could not be considered as lawful.

On an unspecified date, police officer G.B. lodged a written response to the applicant ’ s counterclaim seeking to dismiss it as unsubstantiated and claiming that well-known facts were not liable to be proved. Among such well-known facts, the police officer mentioned that a tense situation had been created in Armenia after the tragic events of 1 March 2008 which threatened public and state safety. The day before the incident, an unauthorised rally had been held on Theatre Square at which the time and place of the next rally had been announced as well as the fact that the applicant, who was known to be an active rally participant, would make a speech there. Hence, it was not by chance that the applicant had appeared on that day at Theatre Square as he was not just an accidental passer-by. In sum, the circumstances of the administrative claim against the applicant were substantiated.

On 31 March 2008 the applicant lodged his objections to the written response claiming, inter alia , that the circumstances mentioned by the police officer in the response to his counterclaim could not be considered as well-known facts.

On 10 June 2008 the Administrative Court granted the claim of the police by subjecting the applicant to an administrative fine in the amount of 50.000 Armenian Drams (approximately EUR 110 at the material time) for disobeying the lawful requests of the police officers to leave Theatre Square and not to make public calls to convene and hold a rally. The applicant ’ s counterclaim was accordingly dismissed. In finding that the police claim had to be granted the Administrative Court found, inter alia , as follows:

“In accordance with the provisions of the Assemblies , Rallies , Marches and Demonstrations Act , mass public events may be held only after notifying in writing the Head of the Gyumri Community , an authorised body. No notification had been submitted to the corresponding authorised body to hold a mass public event on 2 March 2008 , while , in connection with the events which took place on 1 March 2008 in the capital of the republic , the President of Armenia , by Decree of 1 March 2008 , declared a state of emergency in Yerevan starting from 1 March 2008 for a period of twenty days , for the purpose of preventing a threatening danger to the constitutional order of the Republic of Armenia and protecting the rights and statutory interests of the population. Based on the above , the [Administrative] Court finds that the conduct of a mass public event in Gyumri , the second largest town of the republic , could endanger the maintenance of public order and health , the more so when no notification to hold such event had been submitted in accordance with the prescribed procedure. This was the reason why the police applied certain restrictions on gathering and holding events on Gyumri Theatre Square , a right which [the police] enjoyed in accordance with the Constitution and the Police Act.”

On 8 September 2008 the applicant lodged an appeal on points of law against the judgment of 10 June 2008 claiming, inter alia , that the Administrative Court, by subjecting him to a fine, had violated his right under Article 11 of the Convention, and that its judgment contained nothing whatsoever to substantiate why his right to hold a rally and to participate in it was subject to a restriction.

On 2 October 2008 the Court of Cassation declared the applicant ’ s appeal on points of law inadmissible for lack of merit.

B. Relevant domestic law

1. The Code of Administrative Offences of 1985

Article 182 of the Code, as in force at the material time, provided that disobeying a lawful request of a police officer made in the performance of his duties of preserving public order and security shall result in the imposition of a fine in the amount of 50 times the fixed minimum wage.

2. The Assemblies, Rallies, Marches and Demonstrations Act (in force from 22 May 2004)

According to Section 2, public events include peaceful assemblies, rallies, marches (parades) or demonstrations (including sit-ins). Mass public events are those public events which have a hundred or more participants. Non-mass public events are those public events which have less than a hundred participants.

According to Section 10 §§ 1, 2 and 4, except cases when a non-mass public event spontaneously turns into a mass public event, mass public events may be held only after notifying the competent authority in writing. Everyone has the right to hold non-mass public events without notifying the competent authority and without violating public order.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that the Court of Cassation did not conduct an examination of the lawfulness of the lower court ’ s judgment, provided no reasons for its decision and restricted the possibility to redress at the national level the errors committed by the Administrative Court.

2. The applicant complains that the Administrative Court , by subjecting him to an administrative penalty for disobeying the lawful requests of police officers, violated his rights under Article 11 of the Convention.

3. He further complains under Article 2 of Protocol No. 4 and Article 18 of the Convention that his right to liberty of movement was violated since he was prohibited from entering Theatre Square , which was a public area.

4. The applicant also invokes Article 13 of the Convention, in conjunction with Article 6, for he was deprived of the right to an effecti ve judicial remedy.

QUESTION

Did the Armenian authorities, by prohibiting the applicant from holding and participating in a rally and subjecting him to an administrative penalty for disobeying the lawful orders of police officers, violate his right to freedom of peaceful assembly, as protected by Article 11 of the Convention?