Published on 21 March 2022

FOURTH SECTION

Application no. 5297/16 Hovhannes ISHKHANYAN against Armenia lodged on 23 December 2015 communicated on 1 March 2022

STATEMENT OF FACTS

The applicant, Mr Hovhannes Ishkhanyan, is an Armenian national who was born in 1988 and lives in Yerevan. He is represented before the Court by Mr R. Revazyan and Mr A. Zeynalyan, lawyers practising in Yerevan.

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

On 17 June 2015 the Public Services’ Regulatory Commission (“PSRC”) decided to raise the price of electricity. P rotest rallies flared up in response to this decision and apparently hundreds of people took to the streets in central Yerevan

From 19 June 2015 onwards demonstrations were held at Freedom Square in central Yerevan on a daily basis, where the participants called on the authorities to reconsider the above decision.

On 22 June 2015 at around 6.30 p.m. the protesters, who numbered around one thousand, marched towards the President’s office situated at 26 Baghramyan Avenue to voice their protest there and hand in a petition to the President, but were stopped by a police cordon. The police requested them to return to Freedom Square. However the protesters decided to hold an all ‑ night sit-in on the carriageway of Baghramyan Avenue until the decision of the PSRC was revoked. It appears that the protest was held in a leaderless, non ‑ hierarchical fashion and that the applicant took part in it.

At around the same time on 22 June 2015 the police instituted criminal case no. 14203515 on account of hooliganism, based on the fact that the protesters had obstructed the traffic, caused noise nuisance and had thereby grossly disrupted public order. It appears, however, that this information was made public only on the following day.

In the early morning of 23 June 2015, at around 5 a.m., the deputy chief of the Yerevan police, V.O., addressed the protesters, who numbered around five hundred, over a loudspeaker. He ordered them to cease immediately their unlawful actions and to move the protest to Freedom Square, otherwise the police would resort to physical force and special means. V.O. repeated his request, giving the protesters ten minutes to clear the road. At around 5.30 a.m. the police fired a water cannon with two water jets into the centre of the rally. The protesters linked arms and remained seated on the carriageway, their backs to the police cordon. The water jets hosed down the protesters, flinging some of them aside. Shortly after, with the water cannon still firing, plain-clothes officers and officers in police uniform stepped in and started forcibly separating and arresting the demonstrators, some of whom tried to resist, and tension escalated. Eventually, the police broke up the protest and cleared the carriageway.

More than two hundred people were taken to different police stations on suspicion of hooliganism. The arrestees were then questioned by the investigators of the Investigative Committee as witnesses in the framework of criminal case no. 14203515. It appears that none of them was charged with any criminal offence and all were released by the evening of the same day. According to the applicant’s submissions, the said criminal case was discontinued on 26 October 2015 for lack of corpus delicti .

The applicant submits that on 23 June 2015, between around 5 and 5.30 a.m., he was apprehended near the site of the sit-in and was taken to Shengavit Police Station on suspicion of hooliganism. At the police station, he was questioned as a witness. The applicant claims that he was released only at around 1.30 p.m. During that entire period he stayed in wet clothes. Furthermore, he was left without any food or time to rest. He also submits that his police custody was undocumented.

According to the investigation material, the applicant was taken to the police station at around 6.10 a.m. on suspicion of “hooliganism”.

On 1 October 2015 the applicant lodged a criminal complaint with the Special Investigative Service (“SIS”) complaining, inter alia , about the above-described circumstances of his arrest and police custody. He also asked the SIS to investigate the lawfulness and proportionality of the police actions when dispersing the rally.

Thereafter the applicant and several police officers were questioned in connection with his criminal complaint, which, however, focused exclusively on the length of his police custody. Eventually, the investigator dealing with the criminal case refused to prosecute the police officers for the applicant’s allegedly lengthy police custody.

The applicant appealed against the above decision before the General Prosecutor. The outcome of this appeal is unknown.

On 23 June 2015 an internal investigation was instituted by the police to examine the lawfulness of police actions during the dispersal of the sit-in protest. It appears that twelve police officers were subjected to various disciplinary penalties.

On 2 July 2015 criminal case no. 62217915 was instituted at the SIS, inter alia , under Article 309 § 2 of the Criminal Code on account of use of force during the dispersal of the rally. In the course of the investigation it was revealed that as a result of the use of water cannon, some protesters had suffered injuries, while others had been subjected to violence, including by plain-clothes officers.

Furthermore, in response to an enquiry sent by the SIS, the following clarifications were provided by the police. Taking into account that the protesters had breached section 29 of the Freedom of Assembly Act the police, governed by section 33 § 1 of that Act, had given them time to terminate the protest voluntarily, otherwise they would disperse it, including by the use of special means. The protest had been dispersed in the manner prescribed by section 34 of the Act. The protesters had thoroughly exercised their right to voice their demands and “further exercise of that right was disproportionately limiting public interest, that is, the need to protect public order”. The police had broken up the sit-in at dawn, at 5.30 a.m., so that the number of participants would be relatively small. Special means, namely a water cannon, had been employed to disperse the protest after the participants failed to comply with the orders of the police to disperse; some of them had been taken into police custody.

On 4 March 2018 the investigator dealing with criminal case no. 62217915 decided to stay the investigation since the perpetrators of the offence remained unknown. As regards specifically the dispersal of the rally by the use of water cannon, a breach of rules for handling the use of a water cannon would entail criminal liability only if light or medium-gravity damage were negligently caused to a person’s health, whereas there was nothing to confirm that anyone had suffered such damage.

On 15 April 2019 the prosecutor in charge of the criminal case decided to quash the above decision and to send the case for further investigation. The prosecutor noted that entrusting the fact-finding to the police could not ensure the independence of the investigating body, given that the police officers would have to collect information implicating their fellow officers.

On 26 July 2019 the investigator dealing with the case decided again to stay the proceedings on similar grounds as before.

On 12 August 2019 this decision was upheld by the prosecutor upon the applicant’s appeal of 2 August 2019.

According to the information available, on 1 October 2019 the applicant appealed against the above-mentioned decisions before the Court of General Jurisdiction of Yerevan. The outcome of these proceedings is unknown.

Article 258 of the Criminal Code defines “Hooliganism” as intentional actions gravely breaching public order and expressed in a manifestly disrespectful attitude towards society.

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

Article 131.1 of the Code of Criminal Procedure provided that a record of a suspect’s arrest must be drawn up within three hours of bringing him before the body of inquiry, the investigator or the prosecutor and a copy must be given to the arrested person upon signature.

Section 29 of the Freedom of Assembly Act provides that at certain hours of the day (from 10 p.m. to 8 a.m.) assemblies held in areas adjacent to residential buildings, hospitals, boarding schools, or other buildings intended for overnight stay may not be accompanied by noise or light signals.

Section 33 § 1, as in force at the material time, provided that the police might terminate an assembly only if there was no other way of preventing the disproportionate restriction on constitutional rights of others or public interests.

Section 33 § 3 provides that if the assembly does not have a leader, or if the leader does not comply with a police order, a member of the police shall order the participants at least twice over a loudspeaker to terminate the assembly, fixing a reasonable time-limit for its termination. At the same time, a member of the police shall warn the participants that, if they fail to terminate the assembly voluntarily within the fixed time-limit, the assembly will be dispersed, and alert them to police powers to apply special means envisaged by the Police Act.

Section 34 provides that, in the event of failure to terminate the assembly voluntarily within the time-limit specified in Section 33 § 3, the police shall disperse the assembly.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that he was subjected to inhuman and degrading treatment as a result of being kept in police custody in wet clothes and without food and the possibility to rest for prolonged hours. Also, relying on Article 13, the applicant essentially complains that he had no real possibility to have his rights remedied at the domestic level.

2. The applicant complains under Article 5 § 1 of the Convention that his deprivation of liberty was effected in the absence of any grounds and was unrecorded. He considers to have been the victim of mass arrest, without reasonable suspicion or individualised determination of criminality in his acts. He alleges that the suspicion of hooliganism was made up later in order to justify his arrest retroactively.

3. The applicant also complains under Article 11 that the dispersal of the sit-in protest infringed his right to freedom of assembly.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted domestic remedies in respect of his complaint under Article 3 of the Convention, as required by Article 35 § 1? In this context, the Government are requested to clarify whether the purpose of criminal case no. 62217915 instituted at the SIS included, among other things, the investigation of the specific episode of ill ‑ treatment alleged by the applicant (see below) and, if so, whether the applicant’s complaints under Article 3 of the Convention are premature.

2. Was the applicant subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, as a result of his stay in police custody in wet clothes, as well as without any food or time to rest?

3. Having regard to the procedural protection from inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV), did the domestic authorities comply with their procedural obligations under Article 3 of the Convention by carrying out an effective investigation into the specific episode of ill-treatment alleged by the applicant?

4. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was the applicant’s deprivation of liberty based on a reasonable suspicion of having committed an offence? Was his deprivation of liberty lawful within the meaning of Article 5 § 1?

The Government are specifically invited to indicate the duration of the applicant’s police custody and to submit all the relevant records drawn up in that respect, if any.

5. Has the applicant exhausted domestic remedies with regard to his complaint under Article 11 of the Convention, as required by Article 35 § 1? The Government are requested to explain whether there were any effective remedies in the domestic legal system in respect of his complaint under Article 11 of the Convention, as well as to submit examples of the relevant domestic case-law and practice.

6. Has there been a violation of the applicant’s right to freedom of peaceful assembly, contrary to Article 11 of the Convention?

The Government are requested to submit the results of the internal investigation, instituted on 23 June 2015, into the lawfulness of the police actions during the dispersal of the protest.