Published on 13 December 2021

FOURTH SECTION

Application no. 53846/16 Gohar SARGSYAN and Irina GHAZARYAN against Armenia lodged on 25 August 2016 communicated on 24 November 2021

STATEMENT OF FACTS

The applicant, Ms Gohar Sargsyan, is an Armenian national who was born in 1960 and lives in Yerevan. She is represented before the Court by Ms H. Harutyunyan, Ms A. Melkonyan and Ms H. Harutyunyan, lawyers practising in Yerevan.

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

The applicant is the mother of a conscript who died while performing his regular military service.

On 11 February 2015 she and five other parents in a similar situation held a small-scale demonstration near the main entrance gates of the President’s office, demanding a response to their letters addressed to the President concerning the investigation into their sons’ deaths. On-duty police officers patrolling the area ordered the protesters to relocate to the opposite pavement, or else approach the postal section about their letters. It can be seen from the video material submitted by the applicant that the police repeated their request several times, after which they cordoned off the area, trying to push the protesters to the opposite pavement. The applicant resisted, shouting: “Don’t push, I won’t leave”. She freed herself from the police cordon, stepped onto the carriageway, and then returned to the pavement, trying to sit on the ground. Thereafter two police officers grabbed her by the arms, still resisting, and forcibly dragged her across the carriageway to the opposite pavement. In consequence, she fainted and an ambulance was called to give her medical assistance; she recovered shortly after. According to the applicant’s submissions, the actions of the police effectively resulted in the dispersal of the assembly.

On 12 February 2015, based on the video footage of the incident, an internal investigation was instituted by the Police of Yerevan. Accordingly, on 16 February 2015 two police officers, V.V. and A.H., who had dragged the applicant to the opposite pavement, were subjected to a disciplinary penalty, namely a reprimand, for violating the police officers’ code of ethics, failing to exercise self-restraint and displaying impolite and disrespectful behaviour towards a protester.

On 3 March 2015 a human rights NGO called “Protection of Rights without Borders” (“the NGO”) filed a criminal complaint requesting the authorities to investigate the use of force by the police during the dispersal of the demonstration. Referring to the video footage of the incident, the NGO submitted that, as a result of the use of force by the police, the applicant had fainted and had been dragged by two police officers to the opposite pavement.

On 27 March 2015 the investigator dealing with the case, relying on the findings of the above-mentioned internal investigation and having examined the video footage of the incident, refused to institute criminal proceedings. It was held that the police officers had repeatedly asked the protesters to relocate and continue their protest on the opposite pavement in order not to disturb public order, traffic and the normal functioning of the President’s office, but in vain. Eventually, they had sealed off the area and tried to push the protesters forcibly to the opposite pavement. The applicant, followed by two other protesters, had sat on the ground and had refused to comply. The police officers had approached and tried to lift them, to no avail. Then, having assessed the situation and relying, inter alia , on section 30 of the Police Act and sections 19 § 1(3) and 32 § 1(4) of the Freedom of Assembly Act, officers V.V. and A.H. had grabbed the applicant’s arms and carried her to the opposite pavement by force. In these circumstances, there had been nothing criminal in the actions of the police and the use of force had been lawful. This decision was upheld by the deputy prosecutor who, in addition, noted that there had been no need to examine the applicant’s ambulance report, since the actions of the police had been deemed lawful.

On 29 May 2015 the NGO lodged an appeal with the District Court and, relying on Article 3 of the Convention argued, inter alia , that the protesters had suffered ill-treatment for which no effective investigation had been carried out. In particular, when refusing to institute criminal proceedings, the investigator had only examined the above-mentioned video footage without ensuring the involvement of the victims, questioning the emergency medical personnel, or examining the applicant’s ambulance report – the latter solely on the grounds that the actions of the police had been considered lawful. It was further argued that the protesters had done nothing to warrant the use of force. The conclusion that the demonstration was obstructing the normal functioning of the President’s office was not justified given that the protesters were peaceful and that, moreover, the distance between them and the President’s office was such that its normal functioning would not have been imperilled.

On 12 August 2015 the Kentron and Nork-Marash District Court of Yerevan rejected the appeal on the grounds that the NGO had failed to substantiate which procedural violations had resulted in the infringement of the rights of the NGO or the persons represented by it, and what actions the prosecutor should have taken to establish the facts. As regards allegations of ill-treatment of the protesters, the court held, inter alia , that the police officers had resorted to the use of force after the protesters had failed to comply with repeated requests of the officers to move their protest to the opposite pavement. The use of force had been exceptional but lawful in the circumstances of the case.

On 31 August 2015 the NGO lodged an appeal against this decision and, relying on Articles 3 and 11 of the Convention, argued in essence that the use of force and the dispersal of the demonstration had been neither necessary nor proportionate. The NGO also submitted similar arguments concerning the alleged lack of an effective investigation as in its appeal of 29 May 2015.

On 20 October 2015 the Criminal Court of Appeal dismissed the appeal and upheld the decision of the District Court.

On 13 November 2015 the NGO lodged an appeal on points of law, raising arguments similar to those previously made.

On 22 February 2016 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit. This decision was served on the NGO on 25 February 2016.

In the meantime, on 1 February 2016 the applicant applied to the Administrative Court challenging the lawfulness of the police actions. She complained in particular of her removal from the site of the assembly and the dispersal of the demonstration. At the time of introduction of the application with the Court (25 August 2016), the proceedings were still pending before the Administrative Court.

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

Section 19 § 1(3) of the Freedom of Assembly Act provides that an assembly is prohibited, if it is to be held at such a distance from, inter alia , the President’s office, as to threaten its normal functioning.

Section 32 § 1(4) provides that the police must ensure free access to and exit from the buildings, constructions or other premises situated at or adjacent to the site of the assembly.

COMPLAINTS

1. The applicant complains under Article 3 that she was subjected to ill ‑ treatment as a result of excessive use of force by the police and that no effective investigation was carried out in that respect.

2. She also complains under Article 11 that the interference with her right to freedom of peaceful assembly was neither lawful nor necessary in a democratic society. In particular, the domestic law left it to the absolute discretion of the police to decide when a protest hinders the normal functioning of the President’s office. Moreover, the orders of the police to relocate the assembly and its eventual dispersal were not necessary as it was only a small-scale demonstration which was entirely peaceful and did not in any way hinder the functioning of the President’s office. The domestic courts, for their part, failed to examine adequately the lawfulness, necessity and proportionality of those measures.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment, 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 ill-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 the domestic remedies in respect of her complaint under Article 11 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, was the criminal complaint lodged on 3 March 2015 an effective remedy for that purpose? If not, did the applicant have at her disposal any other effective remedies for her complaint under Article 11? In particular, could the administrative proceedings instituted by the applicant on 1 February 2016 be considered as such a remedy? The Government are requested to inform the Court about the outcome of those administrative proceedings and to provide all the relevant documents, including copies of the judicial decisions and the applicant’s appeals. They are also requested to specifically explain what kind of redress the applicant could have obtained in respect of her complaint under Article 11 by pursuing the above-mentioned remedies, as well as to submit examples of relevant domestic case-law and practice, if any.

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