FOURTH SECTION
CASE OF BARSEGHYAN v. ARMENIA
(Application no. 17804/09)
 
 
JUDGMENT
 
Art 15 • State of emergency and derogation in State capital inapplicable ratione loci to events taking place in another city  
Art 11 • Freedom of peaceful assembly • Failure to provide relevant and sufficient reasons for ban on and arrest after entering a public space and inciting others to join a rally • Reliance by domestic court on situation in capital to justify a blanket ban on assembly in another city

 
STRASBOURG
21 September 2021
 
 
FINAL
 
21/12/2021
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Barseghyan v. Armenia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Yonko Grozev, President,
 Tim Eicke,
 Faris Vehabović,
 Iulia Antoanella Motoc,
 Pere Pastor Vilanova,
 Jolien Schukking, judges,
 Anna Margaryan, ad hoc judge,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 17804/09) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Levon Barseghyan (“the applicant”), on 1 April 2009;
the decision to give notice to the Armenian Government (“the Government”) of the complaint concerning an alleged violation of the applicant’s right to freedom of peaceful assembly;
the parties’ observations;
the decision by the President of the Chamber to appoint Mrs Anna Margaryan to sit as an ad hoc judge (Rule 29 of the Rules of Court), Mr Armen Harutyunyan, the judge elected in respect of Armenia, being unable to sit in the case (Rule 28);
Having deliberated in private on 31 August 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the applicant’s prohibition from holding and participating in a rally and his being subjected to an administrative penalty for disobeying the orders of police officers. It raises issues under Article 11 of the Convention. THE FACTS
2. The applicant was born in 1967 and lives in Gyumri. The applicant was represented by Mr K. Tumanyan and Mr E. Marukyan, lawyers practising in Vanadzor. 3. The Government were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, Representative of the Republic of Armenia before the European Court of Human Rights. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The events following the 19 February 2008 presidential election and the declaration of a state of emergency in Yerevan
5. The applicant is a journalist, a political activist and the chairman of a journalists’ club based in Gyumri, which is the second largest city in Armenia. 6. On 19 February 2008 a presidential election was held in Armenia. After the announcement of the preliminary results, the main opposition candidate, Mr Ter-Petrosyan, called on his supporters to gather at Freedom Square in central Yerevan in order to protest against the irregularities which had allegedly occurred in the election process, announcing that the election had not been free and fair. From 20 February 2008 onwards, nationwide daily protest rallies were held by thousands of Mr Ter-Petrosyan’s supporters, their main meeting place being Freedom Square and the surrounding park, where several hundred demonstrators stayed around the clock, having set up a camp. 7. On 1 March 2008 in the early morning a police operation was conducted on Freedom Square where several hundred demonstrators were camping, as a result of which Freedom Square was cleared of all the demonstrators. It appears that later that day the situation in Yerevan escalated and the rallies continued throughout the city until the early morning of 2 March, involving clashes between some protesters and law enforcement officers and resulting in ten deaths, including eight civilians, numerous injured and destruction of private and public property. 8. On the same date the incumbent President of Armenia issued a decree declaring a state of emergency in Yerevan for a period of twenty days, which included a prohibition on holding meetings, rallies, demonstrations, marches and other mass events in Yerevan. The administrative proceedings against the applicant
9. On 2 March 2008 at around 12.30 p.m. the applicant arrived at Theatre Square in central Gyumri and tried to enter the Square in order to hold a protest, but was refused entry by police officers who were stationed there for the purpose of preventing any demonstrations from taking place. It is alleged that the applicant started calling on people who were present at the site to gather and to hold a demonstration, but was ordered by the police officers to leave and to stop inciting others to assemble. The applicant did not obey their orders and was taken to a police station. 10. At the police station an administrative case was initiated against the applicant under Article 182 of the Code of Administrative Offences (“the CAO” – see paragraph 19 below) for disobeying the lawful orders of the police officers. A record of an administrative offence was drawn up and a statement was taken from the applicant, after which he was released. 11. On 5 March 2008 the police lodged a claim with the Administrative Court seeking to subject the applicant to a penalty under Article 182 of the CAO. It was stated that the applicant had called on others to hold a demonstration at Theatre Square and refused to obey the lawful orders of the police officers, who had been stationed there for the purpose of preventing the conduct of unauthorised demonstrations, to stop his actions and to leave. The police noted that the Gyumri Mayor’s Office had not been duly notified of the demonstration and consequently no authorisation had been obtained to hold it. 12. On 24 March 2008 the applicant lodged a counter-claim against the police. He firstly argued that the police had failed to substantiate the factual basis of their claim, namely the fact that he had called on others to hold a rally, insisting that he had not intended to organise a rally and that there had not been any rally at the given time and place. In any event, the act of “calling on people” was not an act prohibited and therefore punishable by law. Furthermore, no evidence had been produced to show that more than 100 people had gathered at or in the vicinity of Theatre Square at the material time and therefore the allegation that he had called on others to hold a rally without prior notification was unsubstantiated, since the law did not require prior notification if fewer than 100 people took part in a rally. Hence, the police orders addressed to him could not be considered lawful. 13. On an unspecified date the police lodged a written response to the applicant’s counter-claim, seeking to dismiss it as unsubstantiated and claiming that well-known facts were not liable to be proved. The police asserted that such well-known facts included the fact that a tense situation had been created in Armenia after the tragic events of 1 March 2008 (see paragraph 7 above), which threatened national security and public 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 at Theatre Square on 2 March 2008 as he was not just an accidental passer-by. The administrative case against the applicant was therefore justified. 14. On 31 March 2008 the applicant lodged his objections to the written response, contesting the factual allegations made by the police. 15. On 10 June 2008 the Administrative Court granted the police claim and dismissed the applicant’s counter-claim, subjecting the applicant to an administrative fine under Article 182 of the CAO in the amount of 50,000 Armenian Drams (AMD – approximately 110 euros at the material time) for disobeying the lawful orders of the police officers. The Administrative Court held at the outset as follows:
“On 2 March 2008 at around 12 noon police officers of the Gyumri Police Station were performing their duties at Gyumri’s Theatre Square and its surroundings for the purpose of prohibiting the conduct of a demonstration in respect of which no notification had been made in accordance with the procedure prescribed by law.”
Referring to the requirements of Section 10 of the Assemblies, Rallies, Marches and Demonstrations Act (see paragraph 21 below), the Administrative Court found it to be established that there had been no legal basis for holding a demonstration on that day and continued as follows:
“On 2 March 2008 at around 12.30 p.m. [the applicant] arrived at the above‑mentioned square and wanted to enter the square, but was prevented and ordered to leave that area and not to call on people to gather and hold an event ... [which he disobeyed].”
The Administrative Court made reference to Sections 2, 12, 22 and 38 of the Police Act (see paragraphs 22-25 below) and held as follows:
“In accordance with the requirements of the Assemblies, Rallies, Marches and Demonstrations Act, mass public events may be held only after notification in writing to the competent authority, in this case the Head of the Gyumri Community. No notification of a mass public event on 2 March 2008 had been submitted to the relevant competent authority, whereas in connection with the events which had taken place in the capital of the country on 1 March 2008, the President of Armenia, by Decree no. NH-35-N of 1 March 2008 on Declaration of a State of Emergency, declared a state of emergency in Yerevan starting from 1 March 2008 for a period of twenty days for the purpose of preventing the threat to the constitutional order of the [country] and protecting the rights and lawful 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 city of the country, could have endangered the protection of public order and public health, the more so when no notification to hold such an 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’s Theatre Square, a right which [the police] enjoyed in accordance with [Article 43 of] the Constitution and the Police Act.”
The Administrative Court concluded that the orders given to the applicant, which he had disobeyed, had been lawful. 16. On 8 September 2008 the applicant lodged an appeal on points of law against the judgment arguing, inter alia, that the Administrative Court, by subjecting him to a fine, had violated his rights under Article 11 of the Convention, and that its judgment did not explain why his right to hold a rally and to participate in it was subject to a restriction. 17. On 2 October 2008 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. RELEVANT LEGAL FRAMEWORK
Relevant domestic law and other materialsThe Constitution (2005-2015)

18. Article 43 of the Constitution, as in force at the material time, permitted restrictions on a number of rights guaranteed by the Constitution, including the right to freedom of peaceful assembly, under the conditions of being prescribed by law and necessary in a democratic society for the protection of national security and public order, the prevention of crimes, the protection of public health and morals, or the protection of constitutional rights and freedoms, honour and good reputation of others. The Code of Administrative Offences (1986)
19. Article 182 of the CAO, as in force at the material time, provided that disobeying a lawful order of a military serviceman or a police officer issued in the performance of his duties of preserving public order and of ensuring public safety would result in a fine in the amount of 50 times the fixed minimum wage. The Assemblies, Rallies, Marches and Demonstrations Act (2004‑2011)
20. According to Section 2 of this Act, the concept of a public event includes peaceful assemblies, rallies, marches (parades) and demonstrations (including sit-ins). “Mass public events” are defined as public events which have 100 or more participants. “Non-mass public events” are defined as public events which have fewer than 100 participants. 21. Section 10 §§ 1, 2 and 4 provides that, except for 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. The Police Act (2001)
22. Section 2 of the Police Act provides that the objectives of the police include the prevention of crimes and the protection of public order and public safety. 23. Section 12 provides that the police are obliged to ensure the protection of public order in the streets, squares, parks, railway stations, airports, polling stations and other public spaces, as well as during court hearings upon a court’s request. 24. According to Section 22, when protecting public order, the police are entitled, inter alia, to restrict or ban temporarily the traffic and the pedestrian flow, as well as to oblige people to remain in specific spaces, facilities, streets or roads for the protection of their life, health or property or for the conduct of investigative or operative-search measures, and must immediately inform their superiors about this. 25. Section 38 provides that every citizen and public official is obliged to obey lawful orders of a police officer. Failure to obey such orders or actions obstructing the performance of a police officer’s duties result in liability in accordance with the procedure prescribed by law. Ad-Hoc Public Report of Armenia’s Human Rights Defender (Ombudsman): On the 2008 February 19 Presidential Election and the Post-Electoral Developments
26. The Armenian Ombudsman carried out a comprehensive and in‑depth analysis of the post-election events in Armenia (for the relevant extracts, see Mushegh Saghatelyan v. Armenia, no. 23086/08, § 124, 20 September 2018, and Myasnik Malkhasyan v. Armenia, no. 49020/08, § 49, 15 October 2020). A relevant part of the Report, which was not quoted in those judgments, provides as follows:
“2. The practical enforcement of the Decree [declaring a state of emergency] was accompanied with a number of violations:
Though the state of emergency was declared only in the City of Yerevan, some restrictions specified in the Decree were effectively applied in other towns of Armenia as well (such as the restriction of the freedom of assembly); ...”relevant international materials

27. For the relevant Council of Europe and other international materials concerning the presidential election of 19 February 2008 and the events of 1 March 2008 see Mushegh Saghatelyan (cited above, §§ 125-134) and Myasnik Malkhasyan (cited above, §§ 50-57). Those materials, which were not quoted in those judgments, include the following. Parliamentary Assembly of the Council of Europe (PACE): Report on the Functioning of Democratic Institutions in Armenia (Doc. 11579, 15 April 2008)
28. The relevant part of the Explanatory Memorandum to this Report, produced by the co-rapporteurs of the PACE Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (“the Monitoring Committee”), provides as follows:
“5.3  Although the state of emergency was formally only declared in Yerevan, a large number of provisions, especially those related to the media and the activities of political parties and NGOs, had a nationwide application. A number of broadcasters stopped operating, either by their own decision, or forced by the national security service. In addition, a number of news websites were taken offline after intervention by the national security service. Restrictions on rallies and demonstrations were not limited to Yerevan alone, but also applied to other major cities in Armenia.”
Report by the Council of Europe Commissioner for Human Rights on his Special Mission to Armenia on 12-15 March 2008 (CommDH(2008)11REV, 20 March 2008)
29. The relevant extract from the Report provides:
“The actual scope and implementation of the State of Emergency
The Commissioner found in his discussions with different interlocutors that a number of restrictions enacted by the State of emergency affected the whole country and they were not limited to the boundaries of the capital. The restrictions on rallies and demonstrations have been applied also outside of the capital, in other major cities of Armenia. ...”
NOTICE OF DEROGATION OF 2 MARCH 2008 MADE BY ARMENIA TO THE COUNCIL OF EUROPE
30. The text of the derogation contained in a Note verbale from the Ministry of Foreign Affairs of Armenia, dated 2 March 2008, transmitted by the Permanent Representation of Armenia and registered by the Secretariat General of the Council of Europe on 4 March 2008, in so far as relevant, reads as follows:
“The ministry of Foreign Affairs of the Republic of Armenia presents its compliments to H.E. Mr. Terry Davis, Secretary General of the Council of Europe, and, pursuant to Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe (ETS No. 5), has the honor to forward, herewith, the Decree of the President of the Republic of Armenia on Declaration of State of Emergency in Yerevan, Armenia. Decree of the President of the Republic of Armenia on Declaration of a State of Emergency (No. NH-35-N)
1 March 2008
In order to prevent the threat of danger to the constitutional order in the Republic of Armenia and to protect the rights and lawful interests of the population, guided by point 14 of Article 55 and point 6 of Article 117 of the Constitution of the Republic of Armenia, I decree:
1. To declare a state of emergency in Yerevan from 1 March 2008 for 20 days;
... 4. To establish the following temporary limitations in the area under state of emergency:
1)  Banning meetings, rallies, demonstrations, marches and other mass events;
... The decree comes into force from the moment of its announcement.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
31. The applicant complained that his right to freedom of peaceful assembly had been violated. He relied on Article 11 of the Convention, which, in so far as relevant, reads as follows:
“1. Everyone has the right to freedom of peaceful assembly... 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others...”
AdmissibilityThe parties’ submissions

(a)   The Government’s objections
32. The Government raised two objections regarding the admissibility of the applicant’s complaint under Article 11. 33. Firstly, the Government argued that at the material time Armenia had derogated under Article 15 of the Convention from its obligations under Article 11 (see paragraph 30 above), therefore the applicant’s complaint was incompatible with the provisions of the Convention and manifestly ill‑founded. They claimed that, while it was true that the derogation referred specifically to the capital city of Yerevan, a state of emergency had also existed in the country’s second city of Gyumri and therefore a limited derogation had been necessary in that location at the material time, since there was a close link between the events in Yerevan and the ongoing potential risk of a repeat of those events in Gyumri. 34. Secondly, referring to the applicant’s counter-claim of 24 March 2008, in which the applicant had alleged that he had not intended to organise or participate in any public assembly (see paragraph 12 above), the Government argued that, if the Court were to accept the applicant’s version of the facts as true, then it would mean that the applicant could not claim to be a victim of a violation of Article 11 and that he had not suffered a significant disadvantage. Having said this, the Government insisted, nevertheless, that the applicant’s allegations had been untrue, that he had in reality attempted to organise an unlawful assembly on 2 March 2008 and that the police had lawfully restricted that right. (b)   The applicant’s reply
35. The applicant argued that the Government’s first objection was groundless because the state of emergency and the derogation had applied only to the city of Yerevan, whereas the actions against the applicant had taken place in Gyumri where there had been no violence or uncontrollable or emergency situation. If there had been such a situation, then the presidential decree would have applied also to Gyumri. As regards their second objection, the applicant submitted that the Government had accepted in their submissions that he had wanted to join the people gathered and participate in the assembly initiated by them.

Article of the Convention at issue: Article 11
Outcome: violation