Published on 13 December 2021

FOURTH SECTION

Application no. 21778/18 Mikayel KIRAKOSYAN against Armenia lodged on 27 April 2018 communicated on 24 November 2021

STATEMENT OF FACTS

The applicant, Mr Mikayel Kirakosyan, is an Armenian national who was born in 1959 and lives in Yerevan. He is represented before the Court by Mr A. Zalyan and Ms T. Siradeghyan, lawyers practising in Vanadzor and Yerevan respectively.

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 electricity prices. Protest 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 on a daily basis, where the participants called on the authorities to reconsider the above-mentioned decision of the PSRC.

On 22 June 2015 the protesters, whose number was around one thousand, marched towards the President’s office, situated at 26 Baghramyan Avenue, but were stopped by a police cordon. The police asked them to return to Freedom Square: however, the protesters decided to hold an all-night sit-in on the carriageway of Baghramyan Avenue – one of the main thoroughfares of Yerevan – until the decision of the PSRC was repealed.

On 23 June 2015, early in the morning, the police dispersed the sit-in. However, in the evening of the same day the protest rallies resumed and continued uninterrupted until 6 July 2015, leading to a thirteen-day traffic disruption on that part of Baghramyan Avenue. The demonstrators used bins belonging to a waste management company called Sanitek to build a barricade between them and the police.

On 6 July 2015, from around 12 noon the police repeatedly requested the demonstrators through a loudspeaker to remove the bins and clear the road. The police then seized the bins and, at around 12.50 p.m., demanded again that the road be cleared. The demonstrators failed to comply and, as a sign of protest, sat on the carriageway holding a rope along the road, apparently to prevent the police from breaking them up.

The applicant alleged that, at around 1 p.m., he had been passing the site of the protest when he had noticed police officers pulling a rope held by the protesters who had blocked the road. He had then decided to stay to prevent clashes between the protesters and the police. The police had managed to grab the rope, whereafter several protesters had sat on the carriageway and had linked arms; he had joined them. At that point, police started separating and arresting the protesters. Four police officers had lifted the applicant up by grabbing his arms and feet and, in a horizontal position, had taken him to a police van, where they had handed him over to other officers in the vehicle, who had put him down on the floor. No police officer had hit him. In the car the applicant had noticed that during his arrest he had suffered bruises and a scratch on his arms. He had subsequently been taken to Arabkir Police Station where police officers had twice called an ambulance for him. On this second occasion the applicant, upon his request, had been transferred to a hospital where his injuries had been recorded and he had been quickly discharged.

On 15 July 2015 the applicant lodged a criminal complaint with the Special Investigative Service (“SIS”) describing, inter alia, the aforementioned circumstances of his arrest and requesting that the actions of the police be investigated since they had allegedly contained elements of a crime.

According to the applicant’s emergency checklist and a medical certificate issued by the hospital, he had suffered a contusion of the soft tissues of the left arm and a scratch on the left forearm.

On 16 July 2015 an investigator of the SIS decided to institute criminal case no. 62219415 under Article 309 § 2 of the Criminal Code (exceeding authority accompanied with use of violence). According to the relevant decision, information had been obtained that, during the use of special means for the purpose of terminating the protest of 6 July 2015, the law ‑ enforcement officers had, inter alia , exerted violence on demonstrators and had inflicted bodily injuries on them by deliberately and flagrantly exceeding their authority.

On the same date the applicant was examined by a forensic expert who concluded that his injury, originally a scratch on his left forearm, had been inflicted by a blunt, hard object. It could not be ruled out that the injuries had been sustained in circumstances such as those alleged by the applicant, with no light damage to health.

On 25 July 2015, following his interview, the applicant was accorded the status of victim in the aforementioned criminal case.

It appears that in November 2015 the SIS started questioning the police officers involved in the dispersal of the protest.

On an unspecified date the then-deputy police chief of Yerevan, who was in charge of the relevant police operation, testified that since 23 June 2015 the protesters had blocked the relevant part of Baghramyan Avenue leading to traffic disruption. The police had informed them on numerous occasions that the protest held on the carriageway had been unlawful and had suggested that they change the location, but in vain. On 6 July 2015 from 12 noon he had repeatedly requested the protesters, over a loudspeaker, to clear the street voluntarily otherwise the police would do so in a manner prescribed by law. Nevertheless, the protesters had remained seated on the carriageway and linked arms, holding a rope. At around 1.10 p.m. the police officers, by use of proportionate physical force, had started to separate the protesters by pulling them one from another and had taken them to police vans. It may be that the protesters suffered some minor injuries as a result of the use of force or in a chaotic situation during their arrest; but no police officer had hit or assaulted anyone. All protesters arrested on that day had been offenders – they had violated public order by blocking the street and had failed to comply with the orders of the police, thereby committing administrative offences. The police, however, had decided not to press charges against them since traffic and public order had already been restored.

Several police officers gave similar statements that the injuries suffered by the protesters could have been inflicted as a result of proportionate use of force or in a chaotic situation during their arrest, but in no way by any deliberate police violence.

On 26 December 2016 the investigator in charge of the criminal case decided not to prosecute the police officers and to discontinue the criminal proceedings for lack of corpus delicti in their actions. Relying on the investigation material, including video footage of the events, he concluded that the police had not carried out any actions to terminate the rally. Rather, governed by the Police Act and Freedom of Assembly Act, and by the use of proportionate physical force, they had arrested those who had failed to obey the lawful orders of the police to leave the carriageway, thereby being suspected of an administrative offence. The use of force by the police, including the restrictions upon the protesters’ right to liberty and right to freedom of assembly, had thus been lawful, aimed at restoring the traffic and public order. As regards the alleged abuses against, among others, the applicant, no sufficient body of evidence had been obtained to prove those circumstances and the police officers were not responsible for the applicant’s injury. This decision was upheld by the deputy prosecutor.

On 28 February 2017 the applicant lodged an appeal with the District Court alleging, inter alia , that the dispersal of the protest had not been prescribed by law nor had it been necessary. In particular, it had not been demonstrated that the protection of public order or the rights and freedoms of others should prevail over the right to freedom of assembly. Moreover, the use of force against him had been excessive; he pointed out that more than four hundred police officers had been engaged in the relevant police operation, whereas the number of the protesters had allegedly been around one hundred. The applicant also complained that the authorities had failed to investigate this incident objectively since, although the criminal case had been instituted in July 2015, the interviews of the implicated officers had started only in November 2015, so the latter could have coordinated their statements. The applicant relied, inter alia , on Article 11 of the Convention, as well as the Court’s case-law concerning the requirement to carry out an effective investigation.

On 11 May 2017 the Arabkir and Kanaker-Zeytun District Court of Yerevan, relying on the Court’s case-law under Article 11 of the Convention, rejected the applicant’s appeal and upheld the investigator’s decision, taking into account that the protest rallies had led to a thirteen-day traffic disruption on one of the main roads of Yerevan, that the police had demonstrated tolerance and that the rally had violated the rights of others, including those of Sanitek. It noted that the decision to discontinue the proceedings in the criminal case had been lawful since the possibility to carry out further investigatory and procedural measures had been exhausted. The court further held that the investigator’s conclusions about the lawfulness of the police actions meant that the use of force by them had been proportionate. As regards the effectiveness of the investigation, although interviews with the police officers had started in November 2015, this fact alone did not call into question the objectivity of the investigation since other investigatory measures had been carried out in the intervening period, such as questioning of witnesses and victims, assigning various tasks and obtaining forensic expert reports.

On 5 June 2017 the applicant lodged an appeal against this decision, raising similar arguments to those in his appeal of 28 February 2017. In addition he argued that, given the importance of the issue – the hike in electricity prices –, the dispersal of the rally had not been necessary since nothing suggested that the rally had disrupted traffic, no complaints had been filed by others about the restrictions on their rights or freedoms and the rights of Sanitek could no longer be violated in view of the fact that the police had already seized the bins belonging to the company prior to the dispersal of the rally .

On 20 July 2017 the Criminal Court of Appeal rejected the applicant’s appeal and upheld the decision of the District Court.

On 8 August 2017 the applicant lodged an appeal on points of law, which was declared inadmissible for lack of merit by the Court of Cassation on 30 October 2017.

Article 309 § 2 of the Criminal Code provides that intentional actions committed by a public official which obviously fell outside the scope of his or her authority and caused significant damage to the rights and lawful interests of individuals or legal entities, or 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.

Section 29 of the Police Act provides that a police officer shall use physical force, special means ( հատուկ միջոցներ ) and firearms as an exceptional measure in cases and according to a procedure prescribed by the Act, insofar as it is necessary for the fulfilment of his duties, if the discharge of those duties is impossible by other means.

Section 30 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 38 provides that compliance with lawful orders of the police is mandatory for all citizens and public officials.

Section 33 § 1 of the Freedom of Assembly Act, 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 excessive force was used during his arrest and that the authorities failed to carry out an effective investigation into his allegations in this respect.

2. He also complains under Article 11 of the Convention that the dispersal of the sit ‑ in protest and his arrest violated his right to freedom of assembly.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman or degrading treatment during his arrest, 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 paragraph 131 of Labita v. Italy [GC], no. 26772/95, 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 domestic remedies in respect of his 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, were the criminal proceedings (no. 62219415) instituted upon the applicant’s criminal complaint of 15 July 2015 an effective remedy for that purpose? The Government are specifically requested to explain what kind of redress the applicant could have obtained in respect of his complaint under Article 11 of the Convention by pursuing this remedy, as well as to submit examples of relevant domestic case-law and practice, if any. If the criminal proceedings pursued by the applicant were not an effective remedy, did the applicant have at his disposal any other effective remedies for his complaint under Article 11?

4. Has there been an interference with the applicant’s freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention? If so, was there a violation of the applicant’s right to freedom of peaceful assembly, contrary to Article 11 of the Convention?