FIRST SECTION CASE OF MUSHEGH SAGHATELYAN v. ARMENIA (Application no. 23086/08) JUDGMENT STRASBOURG 20 September 2018 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. MUSHEGH SAGHATELYAN v. ARMENIA JUDGMENT 1 In the case of Mushegh Saghatelyan v. Armenia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President, Kristina Pardalos, Aleš Pejchal, Ksenija Turković, Pauliine Koskelo, Tim Eicke, judges, Siranush Sahakyan, ad hoc judge, and Abel Campos, Section Registrar, Having deliberated in private on 28 August 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 23086/08) 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 Mushegh Saghatelyan (“the applicant”), on 22 April 2008. 2. The applicant was represented by Mr V. Grigoryan and Mrs S. Safaryan, lawyers practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia to the European Court of Human Rights. 3. The applicant alleged, in particular, that he had been ill-treated at the time of his apprehension and after his arrival at the police station, that the authorities had failed to carry out an effective investigation into his allegations of ill-treatment, that his arrest had been unlawful and arbitrary on various grounds, that he had not been informed promptly of the reasons for his arrest, that his arrest and continued detention had not been based on a reasonable suspicion or relevant and sufficient reasons, that the trial had been unfair since the entire criminal case against him had been based solely on police testimony and the principle of equality of arms and his right to call witnesses had been breached, and that the dispersal of the demonstrators and his subsequent prosecution and conviction had violated his right to freedom of expression and peaceful assembly. 4. On 30 November 2010 the application was communicated to the Government. 5. Mr Armen Harutyunyan, the judge elected in respect of Armenia, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the 2 MUSHEGH SAGHATELYAN v. ARMENIA JUDGMENT President of the Chamber decided to appoint Mrs Siranush Sahakyan to sit as an ad hoc judge (Rule 29 § 1(a)). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1950 and lives in Yerevan. A. The 19 February 2008 presidential election and the post-election events 1. The presidential election and the demonstrations held between 20 February and 1 March 2008 7. On 19 February 2008 a presidential election was held in Armenia. The main contenders were the then Prime Minister, Mr Sargsyan, representing the ruling party, and the main opposition candidate, Mr Ter-Petrosyan, who had also served as President of Armenia between 1991 and 1998. 8. The applicant, who had occupied the post of Head of the Penitentiary Department at the Ministry of the Interior during Mr Ter-Petrosyan’s presidency, was an active supporter of his candidacy. 9. Immediately after the announcement of the preliminary results of the election, Mr Ter-Petrosyan called on his supporters to gather at Freedom Square in central Yerevan (also known as Opera Square) 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 Mr Ter-Petrosyan’s supporters, their main meeting place being Freedom Square and the surrounding park. It appears that the rallies at Freedom Square, held during the daytime and late into the night, attracted at times tens of thousands of people, while several hundred demonstrators stayed in that area around the clock, having set up a camp. It further appears that the applicant was an active participant in the rallies and was often on the podium, and had made a speech on the first day of the rallies. 10. On 24 February 2008 the Central Election Commission announced that Mr Sargsyan had won the election with around 52% of all votes cast, while Mr Ter-Petrosyan received around 21% of votes. 11. On 29 February 2008 the rallies were still in full swing. That night the applicant camped at Freedom Square. MUSHEGH SAGHATELYAN v. ARMENIA JUDGMENT 3 2. The early morning police operation on 1 March 2008 and institution of criminal case no. 62202508 12. The applicant alleged that on 1 March 2008 at around 6 a.m. the police had arrived at Freedom Square. The several hundred demonstrators who were camping there were mostly still asleep, although some of them were awake, having been informed in advance about the arrival of a large number of police officers. In total about 800 heavily armed police officers appeared. The police cordon started approaching the tents and panic broke out among the demonstrators who started waking the others up. Some of the demonstrators managed to switch on the microphones and the lights on the square. Mr Ter-Petrosyan, who was also at the square, addressed the demonstrators: “We see that police forces have arrived at the square. Please, do not have any contact with them and do not touch them in any way. Please keep your distance from them. Let us wait and see what they want from us. If they have something to tell us, we are ready to listen. Please, be patient and peaceful”. Then there was silence for about a minute. By then the police forces had already encircled the square with a triple cordon. Suddenly, without any prior warning or orders to disperse, the police forces, shouting loudly, attacked the demonstrators, most of whom were still asleep in their tents, violently beating them with rubber batons and destroying the camp. Mr Ter-Petrosyan was immediately arrested and taken away. Within a few minutes no demonstrator remained at the square, since everybody, including the applicant, had tried to save themselves by fleeing. He and other activists were then pursued by the police through the streets and arrested (see paragraph 25 below). 13. The Government contested the applicant’s allegations and claimed that the reason for the police operation of 1 March 2008 at Freedom Square had been information obtained on 29 February 2008 by the Armenian Police and National Security Service, according to which a large number of weapons, including metal rods, wooden clubs, firearms, grenades and explosives, were to be distributed to the protesters to incite provocative actions and mass disorder in Yerevan on 1 March 2008. The police operation had aimed to verify that information. For that purpose, members of the relevant police force, without being equipped with any protective gear, had arrived at Freedom Square where about 800 to 900 demonstrators armed with metal rods and wooden clubs had gathered waiting for the police. The demonstrators had attacked the police officers, hitting them and throwing stones, pointed metal objects and Molotov cocktails at them, as a result of which numerous police officers had been injured. 14. The Government, in support of their allegations, submitted a number of official documents, including six records of inspection of the scene drawn up by investigators of the Principal Department for Investigations of the Armenian Police. According to those records, the inspections were carried out on 1 March 2008 at several locations in Freedom Square and the 4 MUSHEGH SAGHATELYAN v. ARMENIA JUDGMENT surrounding park at various times between 8.30 a.m. and 11.45 a.m. and a number of different objects were found including pistols, cartridges, grenades and other explosives, wooden and rubber clubs, metal rods and other metal objects having a spiky, hedgehog-like shape. The Government also submitted a number of expert conclusions produced following the forensic examination of the objects in question. 15. On the same date the Special Investigative Service instituted criminal case no. 62202508 under Article 225.1 §§ 1 and 2, Article 235 §§ 1 and 2 and Article 316 § 2 of the Criminal Code (CC) (see paragraphs 97, 91, 98 and 94 below) in connection with the events at Freedom Square. This decision stated: “After the announcement of the preliminary results of the presidential election of 19 February 2008, the presidential candidate, Mr Levon Ter-Petrosyan, members of parliament, [K.S. and S.M.], the chief editor of Haykakan Zhamanak daily newspaper, [N.P.], and others organised and held mass public events at Yerevan’s Freedom Square in violation of the procedure prescribed by law and incited disobedience to the decisions ordering an end to the events held in violation of the procedure prescribed by law, while a number of participants in the mass events illegally possessed and carried illegally obtained arms and ammunition. On 1 March 2008 at around 6 a.m., when the police took measures aimed at forcibly ending the public events held in violation of the procedure prescribed by law, in compliance with the requirements of section 14 of the Assemblies, Rallies, Marches and Demonstrations Act, the organisers and participants of the events, disobeying the lawful orders of the [police officers], who were performing their official duties, committed a life- and health-threatening assault on them with clubs, metal rods and other adapted objects, which had been in their possession for that purpose, causing the police officers injuries of varied severity.” 3. The subsequent developments and institution of criminal case no.