Case of Ishkhanyan v. Armenia (Application no. 5297/16)

A selection of key paragraphs can be found below the judgment.

142. In order to determine whether a person has been deprived of his or her liberty, the starting point must be his or her specific situation, and account must be taken of a whole range of criteria, such as the type, duration and effects of the measure in question and the manner in which it was implemented (see Khlaifia, cited above, § 64). The Court attaches importance to factors such as whether there is a possibility to leave the restricted area, the degree of supervision and control over the movements of the person concerned, the extent of that person’s isolation and the possibility of contact with the outside world (see Guzzardi, cited above § 95; Friedrich and Others; cited above, § 151; and H.M. v. Switzerland, no. 39187/98, § 45, ECHR 2002‑II).

150. In any event, nothing indicates that the applicant was held at the police under the “bringing-in” procedure. It can be seen from the Government’s submissions and the investigation material that, after the expiry of the above-mentioned three-hour time-limit, as a “brought-in person” the applicant should have been released, because there was no longer any reasonable suspicion of the applicant’s having committed an offence that would justify keeping him at the police station. However, there is nothing to suggest that the applicant was free to leave the police station. In fact, the investigation established that the applicant’s police custody had lasted for more than three hours (although it did not determine the actual length of the time that he had been deprived of his liberty) (see paragraph 31 above). At about 8.50 a.m. – slightly before the expiry of three hours following the moment of his “bringing-in” – the applicant was taken to the investigation committee located in the same police station for questioning, where he refused to submit a statement at about 9 a.m. (see paragraphs 21 and 25 above). According to the applicant’s submissions (uncontested by the Government or the findings of the investigation), at about 10 a.m. he had been escorted out of the police station to undergo a drug test (ibid.). In this connection, the Court observes that, under the relevant domestic law, the submission of an individual for impairment tests was a measure applicable to persons suspected of having committed a criminal offence (see paragraph 72 above; see also Article 63 § 5 (3) of the CCP in paragraph 50 above regarding the obligation of a suspect of a crime to submit, inter alia, bodily fluids). It follows that, up until that moment (that is, about four hours after he had been brought to the police station), the applicant was still under the exclusive control of the police and had the de factostatus of a suspect (see the definition of “a suspect” in paragraph 49 above) – even though no arrest record had been drawn up, despite the explicit requirement provided by Article 1311 of the CCP (see paragraph 52 above).

152. The Court considers that an element of coercion was without a doubt present in the measures which were applied to the applicant and which prevented him from leaving. Regard being had to the aforementioned considerations, the Court considers that, even though the applicant had not been placed under lock and key (compare Valerian Dragomir, cited above, §§ 68 and 70) but was simply taken from one office to another (and at a certain point was even discharged by an oral instruction given by a senior officer), he was actually de facto released only after submitting hair and urine samples for the purpose of a drug test. It is true that in the present case the applicant was able to telephone his brother and during his interview stated that the police officers had not prohibited him from leaving (see paragraph 25 above). However, he also submitted that he had not specifically been told that he could leave either, and his impression was that he had not actually been told that he was at liberty to leave (ibid.). In this connection, as mentioned above, a deprivation of liberty is not confined to the classic case of detention following arrest or conviction, but may take numerous other forms (see the above-cited cases of Guzzardi, § 95; Bryan and Others, § 63; and Friedrich and Others, § 150). In the Court’s view, the confusion was due to the chaotic situation at the police station, where the applicant was arrested on alleged suspicion of having engaged in hooliganism, then questioned as a witness, and finally submitted to a drug test – even though he had earlier been released by an oral instruction given by a senior officer. Therefore, apart from a short period (lasting for a couple of minutes) when the applicant and his lawyer were about to leave the police station, during the whole time (that is, from the moment of his deprivation of liberty until his discharge from the NATC at about 1.30 p.m.) the applicant was under the exclusive control of the police, and the Government failed to demonstrate that he could have left of his own free will after the expiry of three hours following his deprivation of liberty (compare I.I. v. Bulgaria, no. 44082/98, § 87, 9 June 2005; Osypenko v. Ukraine, no. 4634/04, § 49, 9 November 2010; and Valerian Dragomir, cited, § 70). It therefore follows that the applicant was deprived of liberty from about 6 a.m. until 1.30 p.m. and the Government’s objection – that the applicant was no longer deprived of liberty following three hours from the moment of his police custody (see paragraph 131 above) – should be dismissed.

157. In the present case, while the applicant failed to comply with the orders of the police to desist from blocking the road (see his submissions in this respect in paragraph 25 above), he was arrested after the dispersal of the sit-in, when he was leaving the area; thus there was no longer any obligation that the applicant could be said to have disobeyed. It follows that taking the applicant to the police station was not justified under the second limb of Article 5 § 1 (b).

160. The Court further observes that, about four hours after his arrest, the applicant was questioned again, this time as a witness (see paragraphs 24 and 25 above), within the scope of the same criminal case which had served as the basis for his arrest. In this context, all two hundred protesters “brought in” on suspicion of having engaged in hooliganism on that date (see paragraph 12 above) were subsequently questioned as witnesses and then released – without any one of them being charged with the offence of hooliganism. This sequence of events – coupled with an almost complete absence of factual information or evidence in respect of the offence allegedly committed by the applicant (compare Myasnik Malkhasyan v. Armenia, no. 49020/08, § 71, 15 October 2020) – casts doubt on whether there was ever a reasonable suspicion that the applicant had committed a criminal offence. The Government, for their part, did not indicate any factual circumstance that could have prompted the investigating authority to question all two hundred protesters as “witnesses” shortly after their arrest en masse.

161. In view of the above-mentioned considerations, the Court concludes that the applicant was a victim of an arrest conducted en masse– without any individualised assessment of any criminality in his actions. The only available official documents drawn up in respect of his deprivation of liberty indicate different legal grounds and contain no details whatsoever concerning the actual acts attributed to the applicant. Therefore, it cannot be said that the applicant’s arrest was based on a reasonable suspicion of his having committed an offence. Moreover, his placement in police custody did not follow a procedure prescribed by law because, while he was a de facto suspect in respect of a crime (and thus an arrested person under the domestic law), no arrest record was drawn up in respect of his deprivation of liberty (as required under Article 1311 of the CCP).

162. There has accordingly been a violation of Article 5 § 1 of the Convention.