Case of Kiviryan v. Armenia
A selection of key paragraphs can be found below the judgment.
2. On 4 April 2014 the applicant participated in a small protest on the pavement opposite the General Prosecutor’s Office. Following the arrest of a protestor who had attempted to demonstrate on the pavement adjacent to the office, the applicant crossed the street to that pavement and asked the officers to explain the legal basis for prohibiting the protest at that location. One of the police officers stated that it contravened the Freedom of Assembly Act and the Constitution, which allowed restrictions to be imposed for the protection of the rights of others. The police then ordered the applicant to move across the street. The applicant refused to comply and was arrested for disobeying lawful police orders – an administrative offence under Article 182 of the Code of Administrative Offences (“the Code”). The entire incident lasted approximately three minutes.
22. As for the arrest of 1 August 2013, even assuming that the police order which the applicant disobeyed had been lawful, the Court is not convinced that his detention in police custody was necessary in the circumstances. Specifically, given the ample police presence at the demonstration, as captured in video footage available to the Court, it is doubtful that they were prevented from drawing up an offence record on the spot or, at least, after they had placed the applicant in a police car. The authorities did not cite any other grounds under Articles 258 or 259 to justify the applicant’s detention in police custody. Accordingly, they failed to demonstrate that the measure had been necessary in the circumstances.
23. As for the arrest of 4 April 2014, the police justified the lawfulness of their order – namely, not to protest on the pavement adjacent to the General Prosecutor’s Office – by vaguely referring to the Freedom of Assembly Act and the Constitution without specifying any actual prohibition on protesting at the location in question. As for the courts, while noting that the police had been under a duty to ensure the protection of the building, they failed to identify any specific or even general ban on protesting there under domestic law. Given the applicant’s non-violent conduct, he did not threaten the normal functioning of the building. Hence, it is doubtful that, at the time of his arrest, the police had any reasonable suspicion that he had committed the imputed offence (namely, failure to comply with a lawful police order) since the order had lacked any legal basis. In any event, it had not been necessary to arrest the applicant. While the courts justified his arrest after the fact by holding that the chaotic situation at the scene had made it impossible to draw up an offence record on the spot, the video footage shows no indication of disorder. The applicant, being the sole demonstrator on the pavement adjacent to the General Prosecutor’s Office, could not reasonably be considered a source of chaos. No additional justification was advanced by the authorities.
24. The foregoing is sufficient to conclude that there has been a violation of Article 5 § 1 of the Convention in respect of both occasions.
31. Firstly, the applicant’s arrest prevented him from participating in the demonstration. For the reasons already given (see paragraph 23 above), such interference was also unlawful in terms of Article 11 (compare Berkman, cited above, § 60). Furthermore, given that the applicant’s conduct was clearly of a non-violent nature, the reasons invoked by the domestic authorities for the arrest were insufficient to justify his exclusion from the demonstration.
32. Regarding the fine, as mentioned above, the courts did not specify any domestic provision prohibiting a demonstration on the pavement adjacent to the General Prosecutor’s Office. The fact that the police ensured State protection of the building did not imply a prohibition on protesting near it. The applicant’s presence there did not threaten the functioning of the building, including staff access, given that he was the only demonstrator on that pavement and was not involved in any obstructive or violent conduct. By fining the applicant, the authorities essentially punished him for his attempt to protest at a location where such an action was not prohibited by law. In such circumstances, it cannot be said that the fine imposed on him was prescribed by law given that the applicant’s non-violent conduct at the demonstration had not been prohibited and the order of the police which he had disobeyed had had no legal basis under domestic law.
33. Accordingly, there has been a violation of Article 11 of the Convention.