CASE OF ASHUGHYAN v. ARMENIA
Violation of Art. 6-1 and 6-3-b;Violation of Art. 11;Violation of P7-2;Remainder inadmissible
Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
4. The applicant was born in 1965 and lives in Yerevan. She works as a cook. 5. In February-March 2003 a presidential election took place in Armenia. Following the election, the applicant participated in a series of rallies of protest organised in Yerevan by the opposition parties. 6. On 7 April 2003 at 5 p.m. a demonstration was held in the centre of Yerevan on the occasion of Mother’s Day. The demonstration took place on the Mashtots Avenue next to the Research Institute of Ancient Manuscripts (Մատենադարան). It appears that the demonstration was of a political nature and criticism of the Government and of the conduct of the presidential election was voiced. 7. The applicant alleged, and the Government did not dispute, that traffic was suspended by the traffic police on the relevant stretch of the Avenue prior to the commencement of the demonstration in order to facilitate its conduct. The applicant took part in the demonstration and the following march. 8. According to the applicant, at around 6 p.m. she went to work. After work at around 9 p.m. the applicant went home. On her way home, she was approached by three men in civilian clothes who, without presenting themselves, started dragging her to a nearby car. The applicant screamed and tried to resist. The men twisted her arms, punched her and pushed her into the car. The applicant was taken to the Central District Police Station of Yerevan (ՀՀ ոստիկանության Երևան քաղաքի կենտրոնական բաժին), where she found out that she had been arrested for having participated in the demonstration. 9. At the Police Station, the arresting police officers drew up a record of the applicant’s arrest (արձանագրություն բերման ենթարկելու մասին) in which it was stated that the applicant had been “arrested at 7.30 p.m. at 12 Khorhurdneri Street for violating public order”. The applicant alleged that the time of her apprehension was not correctly recorded. In reality she was arrested at 9 p.m. 10. One of the arresting police officers reported to the Head of the Police Station (ՀՀ ոստիկանության Երևան քաղաքի կենտրոնական բաժնի պետ) that: “... [the applicant] was brought to the Central Police Station for having participated on 7 April 2003 in an unauthorised march headed from the [Research Institute] to the Constitutional Court and violated public order...” 11. The applicant was subjected to a search during which no illegal items were found. A relevant record was drawn up. 12. The police officers questioned the applicant. She made a written statement (արձանագրություն բացատրություն վերցնելու մասին) in which she gave details of her participation in the demonstration and the following march. She stated, inter alia, that the street traffic was obstructed when the march headed towards the building of the Constitutional Court. She was in the front line holding the Armenian flag and screaming “justice”. The applicant alleged that this statement was made under pressure and was dictated to her by the police officers. While most of this statement was true, its part concerning the obstruction of traffic did not correspond to the reality since the traffic had been beforehand suspended by the traffic police. 13. The police officers drew up a record of an administrative offence (վարչական իրավախախտման արձանագրություն) in which it was stated that the applicant had “participated in a march and violated public order”. The applicant’s actions were qualified under Article 172 of the Code of Administrative Offences (Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք – “the CAO”) as minor hooliganism. This record was signed by the applicant. She also put her signature in the section certifying that she had been made aware of her rights under Article 267 of the CAO. In the section marked as “other information relevant for the determination of the case”, the applicant also added “I do not wish to have a lawyer”. 14. The applicant alleged that she was forced to sign this and other documents prepared by the police officers under threat of violence. Furthermore, they persuaded her to refuse a lawyer by insisting that a lawyer’s involvement would not help and would only be detrimental to her case. The same day at around 12 midnight she was taken to Judge M. of the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան), who examined the case. 15. The Government contested this allegation. According to them, the applicant was kept at the Police Station for two hours and taken to Judge M. at 9.30 p.m. During this period, the police officers explained to the applicant her right to have a lawyer and advised her to avail herself of this right, which she did not wish to do. The record of an administrative offence was signed by the applicant voluntarily and without any objections. Furthermore, the applicant failed to initiate any actions aimed at the defence of her rights, such as lodging motions or availing herself of other procedural rights guaranteed by Article 267 of the CAO, despite having been made aware of them. 16. The materials of the applicant’s administrative case, which were transmitted by the police to Judge M. for examination, contained the following documents: (1) the record of an administrative offence; (2) the police report; (3) the record of the applicant’s arrest; (4) the record of the search of the applicant; and (5) the applicant’s written statement. All these documents were signed by the applicant except the police report. 17. Judge M., after a brief hearing, sentenced the applicant under Article 172 of the CAO to an administrative fine of 1500 Armenian drams (approximately EUR 2.4 at the material time). The judge’s entire finding amounted to the following sentence: “On 7 April 2003 between 4 p.m. and 6 p.m. ... on the Mashtots Avenue [the applicant], together with a group of people, obstructed street traffic, violated public order by making a loud noise, and incited other participants of the demonstration to do the same...” 18. According to the record of the court hearing – drawn up in a calligraphic handwriting – the hearing was held in public with the participation of the judge, a clerk and the applicant. The judge explained the applicant’s rights to her and informed her of the possibility to challenge the judge and the clerk. The applicant did not wish to lodge any challenges. She stated that she was aware of her rights and did not wish to have a lawyer. The judge read out the motion submitted by the police, seeking to impose administrative liability on the applicant. The applicant submitted that at 4.30 p.m. she had participated in a march which had taken place in the Central District of Yerevan, during which they had obstructed the traffic and invited other people to join them. No questions were put to the applicant. Thereafter, the judge read out and examined the materials prepared by the police. Having familiarised herself with these materials, the applicant accepted that she had signed the record of an administrative offence. The judge departed to the deliberation room, after which he returned and announced the decision. 19. The applicant alleged, and the Government did not explicitly dispute, that the above record was a fake and was drafted at some point after the hearing in order to create an appearance of lawfulness. In reality there was no clerk and the hearing was not being recorded. The hearing lasted not more than five minutes and was conducted in Judge M.’s office. The applicant further alleged that, contrary to what the record stated, only the judge, the applicant and the accompanying police officer were present at the hearing. The latter did not as such participate in the hearing and his functions were limited only to bringing the applicant before the judge. The judge neither explained her rights, nor asked whether she wanted to have a lawyer. The materials of the case file were not read out and she was not allowed to make any oral submissions. No evidence was taken or examined. The judge simply prepared the above decision, solely on the basis of the materials prepared by the police, and only in the end broke the silence to threaten the applicant with imminent detention if she did not refrain from further participation in demonstrations. 20. On 8 April 2003 the applicant complained to the Kentron and Nork-Marash District Prosecutor (Կենտրոն և Նորք-Մարաշ համայնքների դատախազ) about the above-mentioned events. In particular, she submitted that she had been arrested on false accusations. The police officers had drafted a document and forced her to sign it without reading it. At about 12.30 a.m. she had been brought before a judge who had sentenced her to a fine without any examination of the case. She further submitted that she had sustained an injury to her wrist in the course of the arrest. She sought to undergo an official medical examination and to have criminal proceedings instituted against the police officers. 21. The applicant alleged that in reply she was asked to appear in two days. It appears that she did not pursue her application any further. 22. On 9 April 2003 at 12 noon another demonstration was organised in the same area by the opposition parties. The demonstration was followed by a march towards the Government building where the inauguration ceremony of the elected President was taking place. The applicant was in the front line of the march, holding the Armenian flag. 23. According to the applicant, the march was blocked at the very beginning of the Mashtots Avenue by special forces. Since the demonstrators insisted on continuing their march, the special forces started to disperse the demonstration with rubber clubs. She submits that she was ordered by a police officer to hand over the flag. She refused to do so, after which she was beaten and taken to a police car. 24. At around 2.30 p.m. the applicant was brought to the Central Police Station. The arresting police officers drew up a record of her arrest in which it was stated that she had been “arrested for having violated public order during the march of 9 April 2003”. 25. One of the arresting police officers reported to the Head of the Police Station that: “... during the march which took place on 9 April 2003 after the demonstration next to the [Research Institute] I noticed one citizen who was violating public order: waving a flag while walking on the driveway, obstructing the regular traffic of public transport, creating an emergency situation, randomly hitting passers-by who were not taking part in the demonstration with the long flagpole, and inciting others to follow her example...” 26. The applicant was subjected to a search during which no illegal items were found. A relevant record was drawn up. 27. The police officers questioned the applicant. A statement was taken from her, although this time it was not written by the applicant herself. According to the statement, when the special forces blocked the march, the applicant who was in the frontline started to demand to pass through. They ignored her demands and ordered her to leave. The applicant started to shout and hit the people standing behind her with the flagpole so that they would pay attention and also start to demand to pass through, after which she got arrested. She also admitted in the statement that the Mashtots Avenue was blocked because of the march. 28. The police officers drew up a record of an administrative offence in which it was stated that the applicant had “made a loud noise with a group of people, and randomly insulted and hit passers-by in the Central District”. Her actions were qualified under Article 172 of the CAO as minor hooliganism. 29. All the above documents, including the record of an administrative offence, were signed by the applicant with the exception of the police report. She also put her signature in the section of the record certifying that she had been made aware of her rights under Article 267 of the CAO. In the section marked as “other information relevant for the determination of the case”, the applicant also added “I do not wish to have a lawyer in administrative proceedings”. 30. The applicant initially submitted that she had refused to sign any documents during her arrest of 9 April 2003. In a later submission, she claimed that due to the injuries and stress suffered during the apprehension she could hardly stand and was in a difficult physical and psychological condition. As a result, she signed the record of an administrative offence unconsciously and without first familiarising herself with it. Later she did not even remember that she had signed any documents. She refused a lawyer for the same reasons as on 7 April 2003. At 11 p.m. she was taken to the same Judge M. of the Kentron and Nork-Marash District Court of Yerevan, who examined the case. 31. The Government contested this allegation. According to them, the applicant was kept at the Police Station for two hours and taken to Judge M. at around 5 p.m. The circumstances of her stay at the police station were similar to the ones of 7 April 2003 (see paragraph 15 above). 32. The materials of the applicant’s administrative case, which were transmitted by the police to Judge M. for examination, contained the following documents: (1) the record of an administrative offence; (2) the police report; (3) the record of the applicant’s arrest; (4) the record of the search of the applicant; and (5) the applicant’s written statement. All these documents were signed by the applicant except the police report. 33. Judge M. sentenced the applicant under Article 172 of the CAO to five days of administrative detention. The judge’s entire finding amounted to the following: “On 9 April 2003 between 11 a.m. and 1 p.m. in the Central District of Yerevan [the applicant], swearing loudly and hitting passers-by, obstructed street traffic and violated public order. In deciding on the administrative penalty, [the court] takes into account as an aggravating circumstance the repetition of the anti-social behaviour of 7 April 2003, i.e. re-commission of a similar offence within one year, and the offence being committed by a group of people.” 34. This decision also indicated that the applicant had no dependants. 35. The record of this hearing is almost identical in wording to the record of the hearing of 7 April 2003 (see paragraph 18 above), with the exception that the applicant added in her submissions that she and other demonstrators had incited passers-by to participate in the demonstration. They had arguments with a few of them and there were also some swear words used, since some of the passers-by tried to mock her. She touched the passers-by with the flagpole accidentally. 36. The applicant alleged, and the Government did not explicitly dispute, that this hearing was in reality conducted in the same manner as the one of 7 April 2003. In addition, the judge asked the applicant “if you promise in writing that from now on you will not participate in demonstrations and marches any more, I will fine you and let you go home, otherwise I will detain you”. The applicant replied that she had participated and would continue to participate, because she had not violated any laws and nobody had the right to prohibit her from enjoying her constitutional rights. The judge pronounced the sentence, after which she was taken to a detention centre where she served her sentence. 37. On 15 April 2003 the applicant applied to a local human rights NGO February 22nd («Փետրվարի 22» իրավապաշտպան կազմակերպություն), complaining about the events of 7 and 9 April 2003 and seeking its assistance. She submitted, inter alia, that on 7 April 2003 the police officers had prepared some documents and forced her to sign them without even familiarising herself with them first. 38. On 18 April 2003 the NGO complained to the Kentron and Nork-Marash District Prosecutor (Կենտրոն և Նորք-Մարաշ համայնքների դատախազ) on behalf of the applicant. 39. By a letter of 12 May 2003 the Kentron and Nork-Marash District Prosecutor (Կենտրոն և Նորք-Մարաշ համայնքների դատախազ) informed the NGO that the decisions of 7 and 9 April 2003 had been well-founded and there were no grounds for appeal. 40. For a summary of the relevant domestic provisions and international documents and reports see the judgment in the case of Galstyan v. Armenia (no. 26986/03, §§ 25-32, 15 November 2007).