CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 septembre 2021

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display:inline-block }   FOURTH SECTION CASE OF DARESKIZB LTD v. ARMENIA (Application no. 61737/08)     JUDGMENT     Art 15 • Derogation in time of emergency • Government’s failure to demonstrate convincingly that opposition demonstrations after 2008 presidential election constituted public emergency “threatening the life of the nation” • Conditions for derogation not satisfied Art 10 • Freedom of expression • Freedom to impart information • Unjustified ban on publication of opposition newspaper as result of state of emergency declared in context of massive post-election protests • Restriction resulting in stifling political debate and silencing dissenting opinions • Existence of “public emergency threatening the life of the nation” could not serve as pretext for limiting freedom of political debate Art 6 (administrative) • Access to court • Administrative court’s refusal to examine application against presidential decree on jurisdictional grounds impaired very essence of right of access to court   STRASBOURG 21 September 2021 FINAL   08/10/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dareskizb Ltd v. Armenia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Yonko Grozev, President ,   Tim Eicke,   Faris Vehabović,   Gabriele Kucsko-Stadlmayer,   Pere Pastor Vilanova,   Jolien Schukking, judges ,   Anna Margaryan, ad hoc judge , and Ilse Freiwirth, Deputy Section Registrar , Having regard to: the application 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 company, Dareskizb Ltd (“the applicant company”), on 16 December 2008; the decision to give notice to the Armenian Government (“the Government”) of the complaints concerning the denial of access to court, the tribunal examining the applicant company’s appeal allegedly not being established by law and an alleged violation of the applicant company’s right to receive and impart information; the observations submitted by the Government and the observations in reply submitted by the applicant company; the comments submitted by a London-based non-governmental organisation, Media Legal Defence Initiative, which was granted leave to intervene by the President of the Section; the decision by the President of the Chamber to appoint Ms 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 present case concerns a ban on publication of a newspaper published by the applicant company as a result of a state of emergency declared in Yerevan on 1 March 2008 for a period of twenty days, including the derogation made by Armenia in that regard (Articles 10 and 15 of the Convention). It further concerns denial to the applicant company of access to a court in order to contest the presidential decree declaring the state of emergency and the allegedly unlawful composition of the tribunal which examined the applicant company’s appeal against the decision denying access to court (Article 6 § 1 of the Convention). THE FACTS 2.     The applicant company is a private company, which at the material time published Haykakan Zhamanak (“Armenian Times”), a daily opposition newspaper, and had its registered office in Yerevan. The applicant company was represented by Mr T. Atanesyan, a lawyer practising in Yerevan. 3.     The Government were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, Representative of the Republic of Armenia to the European Court of Human Rights. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. Events preceding the declaration of a state of emergency in Yerevan 5.     On 19 February 2008 a presidential election was held in Armenia. The main contenders were the then Prime Minister, Mr Serzh Sargsyan, representing the ruling party, and the main opposition candidate, Mr Levon Ter-Petrosyan. 6.     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 in order to protest against the irregularities which had allegedly occurred in the election process, asserting 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 attracted at times tens of thousands of people, while several hundred demonstrators set up a camp in the area and stayed there around the clock. 7 .     On 1 March 2008 in the early morning, after nine days of protest, a police operation was conducted at Freedom Square as a result of which the square was cleared of all the demonstrators and sealed off. In Mushegh Saghatelyan v. Armenia (no. 23086/08, §   248, 20 September 2018), the Court concluded that this was done apparently without any prior warnings to disperse and with unjustified and excessive use of force. 8 .     It appears that after Freedom Square was cleared of demonstrators some of them relocated to the area near the French embassy, the Yerevan mayor’s office and the Myasnikyan monument, situated at Grigor Lusavorich Street, no more than 2 km from Freedom Square, where there was a large opening. They were later joined by thousands of others who poured into the streets of Yerevan apparently in response to the events of the early morning. At around 12 noon there was already a major concentration of people in that area, including police officers. Many leaders of the opposition were also present and occasionally addressed the crowd using a loudspeaker. Tensions had continued to rise and an already tense situation gradually deteriorated into more frequent and violent clashes between some of the demonstrators and the law-enforcement officers, mostly taking place on a number of streets close to the above-mentioned area, including Leo Street, Paronyan Street and Mashtots Avenue, all situated within approximately 1 km of the Myasnikyan monument. It appears that various crowd-control measures were used by the police, including stun grenades, tear gas and rubber bullets, while some demonstrators built barricades, burned public and private vehicles, and used stones, iron rods, wooden clubs, Molotov cocktails and similar other objects as weapons. As a result, ten individuals, including eight civilians, lost their lives, dozens of demonstrators and police officers were injured, and significant damage to property was done, including the looting of a number of nearby shops. 9.     The applicant company alleged that the authorities, by brutally dispersing the assembly at Freedom Square and later brutalising its own citizens in the area of the Myasnikyan monument and adjacent streets, had aimed to crush the popular protest movement, realising that it could bring about democratic change and cause them to lose their grip on power. 10.     The Government referred mostly to the description of the relevant events as presented in a number of official documents (see paragraphs 43 and 46 below), alleging that the demonstrators had been illegally armed and had been the first to attack the police. They argued that the situation in Yerevan had descended into mass disorder which it had been possible to quell only through the declaration of a state of emergency (see paragraph 11 below). Declaration of a state of emergency and a ban on publication of the applicant company’s newspaper 11 .     At around 10.30 p.m., on 1 March 2008, the incumbent President of Armenia, Robert Kocharyan, adopted a decree declaring a state of emergency in Yerevan. The decree stated as follows, inter alia : “In order to prevent the threat of danger to the constitutional order in the Republic of Armenia and to protect the rights and legal interests of the population, guided by [paragraph] 14 of Article 55 and [paragraph] 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 [the] state of emergency: ... (4)   Mass media outlets can provide information on State and internal affairs exclusively within the perimeters of official information provided by State bodies; ... 5.   The Decree comes into force from the moment of its announcement.” 12.     It appears that the disorder in the streets of Yerevan ended in the early hours of 2 March 2008. 13 .     In the night of 3 to 4 March 2008 the applicant company submitted a mock-up of the next edition of its newspaper to the printers. The national ‑ security officers who were at the printers read the mock-up of the newspaper and, without giving any reason, prohibited it from being printed. 14 .     No further attempts to publish the newspaper were made by the applicant company until, on 13   March 2008, the President of Armenia adopted another decree by which he made amendments to the decree of 1   March 2008. The relevant parts of that decree stated as follows: “Guided by paragraph 14 of Article 55 and paragraph 6 of Article 117 of the Constitution of the Republic of Armenia, I decree: ... (1)     To revise subparagraph 4 of paragraph 4 to read as follows: ‘(4)     Ban on publication or dissemination by mass media outlets of obviously false or destabilising information on State and internal issues, or of calls to participate in unsanctioned (illegal) activities, as well as publication and dissemination of such information and calls by any other means and forms.’ ... The Decree comes into force from 14 March 2008.” 15 .     In the night of 13 to 14 March 2008 the applicant company, having found out about the amendments made to the decree of 1 March 2008, resubmitted the mock-up of the next edition of its newspaper to the printers. However, the national security officers, as in the previous case, read the entire mock-up of the newspaper and, without giving any reason, prohibited it from being printed. 16.     On 20 March 2008 at midnight the presidential decree ceased to have legal force and the state of emergency was lifted. 17.     On 21 March 2008 the applicant company restarted publishing its newspaper. 18 .     On 17 April 2008 the applicant company lodged an application with the Administrative Court, complaining of the national security officers preventing it from printing issues of its newspaper. It further sought to have subparagraph 4 of paragraph 4 of the presidential decree of 1 March 2008 – which had served as a ground for publication being prevented, in the version both before and after the amendment (see paragraphs 11 and 14 above) – found to have been in breach of a number of pieces of higher law and to have it declared invalid. The applicant company argued, in particular, that the limitations imposed on it had violated the requirements of Article   10 of the Convention, sections 13 and 68 of the Legal Instruments Act and sections 2 and 4 of the Mass Media Act (see paragraphs 39-42 below). It contended, inter alia , that there had been no domestic legal provision authorising the President to declare a state of emergency. The applicant company lastly argued that, as a consequence of it being prevented from publishing, it had sustained pecuniary damage from loss of sales of the newspaper. 19 .     On 6 May 2008 the Administrative Court refused to entertain the applicant company’s application for lack of jurisdiction. The Administrative Court held, with reference to Articles 43, 44, 55 §   14, 100 §   1 and 117 §   6 of the Constitution (see paragraphs 29-31, 34 and 33 below), that since no statute regulating the legal framework of a state of emergency had yet been adopted in Armenia the President of Armenia had declared a state of emergency based on the power conferred on him directly by the Constitution. Thus, the lawfulness of the presidential decree of 1 March 2008 could be tested only at the level of the Constitution, since no statute had been passed with which the decree had had to comply. Hence, in its application the applicant company was in essence challenging the constitutionality of the presidential decree, which, in accordance with Article 135 § 2 of the Code of Administrative Procedure (see paragraph 36 below), fell outside the jurisdiction of the Administrative Court and within the exclusive jurisdiction of the Constitutional Court. 20 .     On 12 May 2008 the applicant company lodged an appeal, arguing, inter alia , that the decision of 6 May 2008 had violated its right of access to court as guaranteed by Article 6 of the Convention. In cases where presidential decrees were incompatible with higher law apart from the Constitution, the obligation to protect the rights breached by those decrees rested with the Administrative Court. A decree was required to comply with any higher law and not only the specific law regulating the legal framework of a state of emergency, which, moreover, did not exist. Thus, the decree was subject to judicial examination even in the absence of such a law. The attempt to divert the applicant company’s case towards the Constitutional Court completely ignored the fact that, in the circumstances of the case, it lacked standing before that court under Article 101 § 6 of the Constitution (see paragraph 35 in fine below). 21 .     On 19 May 2008 the Administrative Court, sitting as a panel of five judges, dismissed the applicant company’s appeal and endorsed the reasoning provided in the decision of 6 May 2008. 22.     The applicant company lodged an appeal on points of law, raising similar arguments. It also complained that the Administrative Court’s composition had been unlawful as it had examined its appeal sitting as a panel of five judges, not three judges, as required by law. 23 .     On 20 June 2008 the Court of Cassation declared the applicant company’s appeal inadmissible for lack of merit. 24.     On 6 October 2008 the applicant company lodged an application with the Constitutional Court seeking to have subparagraph 4 of paragraph 4 of the presidential decree of 1 March 2008 struck down as incompatible with Articles 27, 44, 55 §   14 and 117 §   6 of the Constitution (see paragraphs   28, 30, 31 and 33 below). The applicant company acknowledged that, from the formal point of view, its application did not comply with the admissibility criteria applicable to individual applications lodged with the Constitutional Court, which was why it had first been submitted to the Administrative Court. However, that court had reasoned that the contested issue was subject to examination only by the Constitutional Court. 25.     On 8 October 2008 the Registry of the Constitutional Court returned the applicant company’s application without examination on the grounds that the applicant company lacked standing before the Constitutional Court in accordance with, inter alia , Article 101 §   6 of the Constitution (see paragraph 35 in fine below). 26.     The applicant company lodged a complaint in this regard with the President of the Constitutional Court, seeking to have its application examined. 27 .     On 30 October 2008 the Constitutional Court examined the complaint and refused to entertain the applicant company’s application, reasoning that, in accordance with Article 101 of the Constitution, applications concerning the compatibility of decrees of the President of Armenia with the Constitution could only be lodged by the President of Armenia, at least one-fifth of the deputies of the National Assembly, the government, the courts, the Prosecutor General and the Ombudsman. Individual applications could be lodged under Article 101 § 6 only when the constitutionality of a statute was being contested. The applicant company therefore lacked standing to contest the constitutionality of the disputed presidential decree. RELEVANT LEGAL FRAMEWORK Relevant domestic law and other materials The Constitution of 1995 (following the amendments introduced on 27 November 2005) Freedom of expression 28 .     Article 27 of the Constitution provides that everyone has the right to freedom of speech, including freedom to seek, receive and impart information and ideas by any means of communication and regardless of State frontiers. 29 .     Article 43 provides that the fundamental rights and freedoms of a person and a citizen provided by, inter alia , Article 27 of the Constitution may be restricted only by law if necessary in a democratic society in the interests of national security and public order, for the prevention of crime, or for the protection of public health, morals or constitutional rights and freedoms, honour and reputation of others. State of emergency 30 .     Article 44 provides that certain fundamental rights and freedoms of a person and a citizen, with the exception of those provided by Articles 15, 17-22 and 42 of the Constitution, may be temporarily restricted in accordance with the procedure prescribed by law in the event of martial law or a state of emergency, within the limits of international commitments undertaken by Armenia concerning derogation from commitments in emergency situations. 31 .     Article 55 §   14 provides that, if there is an imminent danger threatening the constitutional order, the President of Armenia, after having consulted the President of the National Assembly and the Prime Minister, declares a state of emergency and takes measures as required by the exigencies of the situation. The legal framework of a state of emergency must be set out in law. 32.     Article 56 provides that the President of Armenia adopts decrees which must not contradict the Constitution and the Laws. 33 .     Article 117 § 6 provides that, until the enactment of a bill regulating the legal framework of a state of emergency, if there is an imminent danger threatening the constitutional order, the President of Armenia, after having consulted the President of the National Assembly and the Prime Minister, takes measures as required by the exigencies of the situation. Jurisdiction of the Constitutional Court 34 .     Article 100 § 1 provides that the Constitutional Court, in accordance with the procedure prescribed by law, decides on the compatibility of, inter alia , decrees of the President of Armenia with the Constitution. 35 .     Article 101 lists persons who may apply to the Constitutional Court. Under paragraphs 1, 3, 4, 7 and 8, applications concerning the compatibility of decrees of the President of Armenia with the Constitution may be lodged with the Constitutional Court by the President of Armenia, at least one-fifth of the deputies of the National Assembly, the Government, the courts, the Prosecutor General and the Ombudsman. Otherwise, under Article 101 § 6, anyone can lodge an application with the Constitutional Court in connection with a specific case, if there has been a final judicial decision, all the judicial remedies have been exhausted and if that person contests the constitutionality of a provision of a statute applied to him or her in that judicial decision. The Code of Administrative Procedure (2008-14) Jurisdiction of the Administrative Court 36 .     Article 135 §   2 of the Code of Administrative Procedure provides that the Administrative Court has jurisdiction over cases contesting, inter alia , the compatibility of acts of a normative nature adopted by the President of Armenia with normative higher law (with the exception of the Constitution). Composition of the Administrative Court in appellate proceedings 37 .     Article 9 §   2 provides that appeals against decisions of the Administrative Court not determining a case on the merits ( գործն ըստ էության չլուծող (միջանկյալ) դատական ակտեր ) are examined by the Administrative Court sitting as a panel of three judges. 38 .     Article 125 §   1   (1) provides that an appeal against a refusal by the Administrative Court to entertain a claim is examined by the Administrative Court sitting as a panel of three judges. The Legal Instruments Act (2002-18) 39 .     Section 13(1) of the Legal Instruments Act provides that the President of Armenia can issue decrees and orders within the scope of the authority conferred on him by the Constitution and Laws of Armenia. 40 .     Section 68(1) and (2) provides that everyone is free to do anything not prohibited by law, if it does not violate the rights, freedoms, honour and good reputation of others. No one may bear obligations not prescribed by law. The procedure, conditions and scope of fulfilling one’s obligations are defined in law. The Mass Media Act (2004) 41 .     Section 2 of the Mass Media Act provides that relations arising in the sphere of mass media are regulated by the Constitution, international treaties, the Civil Code, the Mass Media Act, other laws and other legal instruments regulating such relations. 42 .     Section 4(3)(1) and (2) prohibits censorship and coercion of media organisations and journalists aimed at or resulting in imparting or refraining from imparting any information. Conclusions of the Ad Hoc Committee of the National Assembly of the Republic of Armenia on Investigation of the Events Which Took Place in the City of Yerevan on 1-2 March 2008 and the Reasons Thereof 43 .     On 16 June 2008 the National Assembly of Armenia set up an Ad Hoc Committee to investigate the events which had taken place in Yerevan on 1-2   March 2008 and the circumstances which had led to them. On 17   September 2009 the Ad Hoc Committee adopted its Conclusions, a document running to 128 pages, which also contained a brief chapter concerning the declaration of a state of emergency, the relevant extracts of which read as follows: “ 6.1     Examination of the Circumstances of Adopting the Decree on Declaring a State of Emergency ... In accordance with Article 55 § 17 of the Constitution ... following the declaration of a state of emergency a special sitting of the National Assembly was immediately convened in accordance with the law. ... During the sitting there were numerous speeches expressing serious concern in connection with the situation that had arisen. The members of the National Assembly assessed the decree of the President ... as a forced but at the same time a necessary step and the only way out of the situation that had arisen. According to them, the stability and the international reputation of Armenia are endangered, and everyone should do their best to resolve the unprecedented situation that has arisen. ... 6.2     Findings of the Committee The Committee finds that each country in the course of its history experiences moments which impede the development of the country; we, unfortunately, have experienced such moments. Regardless of what resolution we arrive at, it is a fact that mutual hatred and enmity has already arisen within a part of the society. That is why the Decree of the President of Armenia on Declaring a State of Emergency was not the solution of the situation but a forced and also a necessary step, as well as the only way to overcome the situation that has arisen. Delay in taking this measure would mean allowing a part of our people to continue illegal action – provoked by a group of people – in our country, particularly in the city of Yerevan. Considering that especially from the afternoon of [1 March] the mob around the [Yerevan mayor’s office] was gradually becoming uncontrollable, and in the evening their actions ultimately changed to carnage and looting; they burned and smashed about 100 private and police vehicles, as well as ambulance vehicles, buses and trolleybuses; smashed and looted the ‘Moscow House’, and nearby shops and offices; smashed the windows of the administrative buildings of the [mayor’s office] and the VivaCell offices; the demonstrators attacked police officers and servicemen of the Police Troops. Imposing a state of emergency was a necessity. Meanwhile, the Committee finds that if the Decree of the President of the Republic of Armenia on Declaring a State of Emergency had been announced earlier, when the first explosions shots and cases of death had occurred, it might have been possible to avoid such grave consequences.” Ad Hoc Public Report of Armenia’s Human Rights Defender (Ombudsman): On the 19 February 2008 Presidential Election and the Post-Electoral Developments 44 .     The Armenian Ombudsman carried out a comprehensive and in-depth analysis of the post-election events in Armenia, some relevant parts of which were quoted in Mushegh Saghatelyan (cited above, §   124) and Myasnik Malkhasyan v. Armenia (no. 49020/08, § 49, 15   October 2020). Other relevant extracts from the Report that were not cited in those judgments read as follows: “ 3.2.3     The State of Emergency In a press conference related to his enactment of a Decree to impose a state of emergency on [1 March], President Robert Kocharyan mentioned that the measure was aimed at maintaining the constitutional order in Armenia and ensuring the security of the population of Armenia. The Decree was signed when they reported to the President that eight officers had been wounded. Under such circumstances, it was necessary to introduce a state of emergency. Under [Article 55 of the Constitution], the President of the Republic has the power to declare a state of emergency. The state of emergency legal regime is defined by law. The Republic of Armenia still does not have a Law on the legal regime of a state of emergency, which would define all the rights that may be restricted, the scope of restrictions, the mechanisms for supervising them and other related matters. In this situation, the introduction of a state of emergency gave rise to the following practical issues: 1.     Under Article 44 of the ... Constitution, ‘certain fundamental human and civil rights ... may be temporarily restricted in accordance with the procedure prescribed by law in the event of martial law or a state of emergency’. Although Article 117 § 6 of the ... Constitution permits the President, in the event of imminent danger to the constitutional order prior to the definition of the legal regime of a state of emergency by law, to carry out measures appropriate in the given circumstances, the absence of a law defining the legal regime of a state of emergency created further controversy over the restriction of rights. 2.     The practical enforcement of the Decree was accompanied by a number of violations: ... –       Under paragraph 4(4) of the decree, reporting on State and domestic political matters by the mass media was to be limited exclusively to official information provided by the state bodies. As mentioned in the information disseminated by the [Human Rights] Defender, the news websites of A1+ and Lragir were shut down; and –       Though the restrictions imposed under the Decree did not allow for censorship (censorship is also prohibited under Article 4 of the ... [Mass Media Act]), there was de facto censorship during the period in question. As a consequence, the printing of some nationwide newspapers was prohibited on account of their content. A number of newspapers, citing the regime imposed under the Decree, refused to operate, because they were unable to present critical opinions or the opposition viewpoint, whereas certain other newspaper and television stations faced no restrictions in publishing information that dishonoured and insulted the opposition, and was frequently aggressive. ...” Notice of derogation of 2 March 2008 and subsequent declarations made by Armenia to the Council of Europe 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 45 .     The text of the derogation of 2 March 2008 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 the 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 legal interests of the population, guided by [paragraph] 14 of Article 55 and [paragraph] 6 of Article 117 of the Constitution of the Republic of Armenia, I decree: 1.     To declare the state of emergency in Yerevan from 1 March 2008 for 20 days; 2.     To entrust the President of Armenia with the supervision of the regulation and implementation of the [measures aimed at] elimination of circumstances that served as grounds for declaring the state of emergency, and of other urgent issues; 3.     To entrust the Police of the Republic of Armenia and the Defense Ministry of the Republic of Armenia with ensuring the legal regime of the state of emergency; 4.     To establish the following temporary limitations in the area under [the] state of emergency: (1)     Banning meetings, rallies, demonstrations, marches and other mass events; (2)     Banning strikes and other actions that could stop or suspend the activities of organizations; (3)     Limiting the movement of individuals and the means for transportation and carrying out inspections by the law-enforcement bodies, as necessary; (4)     Mass media outlets can provide information on State and internal affairs exclusively within the perimeters of official information provided by State bodies; (5)     Banning political propaganda through leaflets or other means without due permission from relevant State bodies; (6)     Temporary suspension of the activity of political parties and other public organizations that impede the elimination of the circumstances that served as the grounds for declaring a state of emergency; (7)     Removing from a given area those who violate the legal state of emergency regime and do not reside there, doing so at their own expense, or, in case of absence of these means, using the State budget resources to be refunded afterwards. The Government of the Republic of Armenia must undertake necessary measures for ensuring the implementation of this decree. The decree comes into force from the moment of its announcement.” Declaration contained in a note verbale from the Ministry of Foreign Affairs of Armenia, dated 6 March 2008, transmitted by the Permanent Representative of Armenia and registered by the Secretariat General of the Council of Europe on 6 March 2008 46 .     The text of the declaration of 6 March 2008 reads as follows: “The Ministry of Foreign Affairs of the Republic of Armenia [(RA)] presents its compliments to [the] Secretary General of the Council of Europe, and, in addition to the No. 14/02627 of 2 March 2008 has the honour to inform him that the Republic of Armenia, a Party to the Convention for the Protection of Human Rights and Fundamental Freedoms, in connection with the Decree of the President of the Republic of Armenia on the Declaration of State of Emergency in conformity with Article 55, paragraph 14, and Article 117, paragraph 6, of the Constitution of the Republic of Armenia, dated 1 March 2008, and pursuant to Article 15, paragraph 3, of the Convention, avails itself of the right of derogation from or limitation of application of the following provisions: Article 8, paragraph 1, Article 10, paragraph   1, Article 11, paragraph 1, of the Convention and Article 2, paragraph 1, of Protocol No. 4 of the Convention. The above decree extends the state of emergency to the city of Yerevan for a period of 20 days in order to prevent the threat of danger to the constitutional order in the Republic of Armenia, and protect the rights and legal interests of the population, following the mass disorders, personal injury and considerable material damage, which took place in Yerevan on 1 March 2008 (see below). The Ministry of Foreign Affairs of the Republic of Armenia requests the Secretary General of the Council of Europe to inform the State Parties about this derogation. The March 1-2 Events: a Description After the presidential elections, on February 20, [L. Ter-Petrosyan] and his team started a sit-in on the Opera square and embarked on (illegal) daily rallies and marches without advising the authorized body aimed at the destabilization of the situation in the capital. At the same time, the political leadership stated time and again that it would not object to the rallies, and if notified by [L. Ter-Petrosyan] and his cohorts, and would allocate reasonable time and venue. [L. Ter-Petrosyan] evaded such notification so that he would not be held liable for the actions of the mob. Inciting statements and appeals were made at the rally. Despite numerous warnings of the police as to the illegal nature of these actions, the latter continued to grossly violate public order and endanger public security. Tents were installed at the Opera square, loud music was played all night long, the demonstrators used to sing through loud speakers, and danced, violating calm in the areas adjacent to the square. In addition, the demonstrators reduced the vicinity to anti-sanitary condition. In late February, numerous weapons and ammunition were discovered as a result of searches of some of [L. Ter-Petrosyan’s] active supporters; this was covered by the mass media, arrests followed and confiscation minutes were compiled. As far back as February 26, the Prime Minister and President-elect [Serge Sargsyan] offered co-operation to all the political forces including the establishment of a coalition government. On February 29, [S. Sargsyan] and former presidential candidate [Arthur Bagdasaryan] signed a coalition co-operation agreement, as a result of which [L. Ter-Petrosyan] and his team realized that there were no other political forces supporting them, and devised the destabilization of the situation in the country. In late February, various police units obtained intelligence about the distribution of firearms, explosives, iron rods and clubs to the demonstrators for the organization of some events. There was intelligence about provocations and mass disorders to be organized on March 1 in the capital. Similar intelligence was obtained by the National Security Service. In the context of the previously discovered weapons and ammunition, this information was particularly alarming. This intelligence was reported to the RA President. After having analyzed the situation, the RA President instructed to take measures adequate to the intelligence as prescribed by law, to verify the intelligence, to seize the material and to defuse the situation. About 7.00 a.m. on the 1st of March 2008, unarmed police forces without shields and helmets approached the demonstrations in order to verify the intelligence and neutralize the danger by means of a search and appealed to them to enable the police to conduct the search. At that moment the police noticed that the demonstrators had built barricades out of local benches and other items. At that time there was no rally at the Opera square; there were about 900 people there. The police at that moment did not intend to remove the participants of the action from the square. The demand to conduct a search was suddenly followed by the assault of the sit-in participants and the police. The demonstrators started to throw stones, pieces of wood, iron rods, Molotov cocktails, etc. Appeals were made to overthrow the authorities, and the self-esteem of the police was insulted. ‘Hedgehogs’ made out of iron rods were used, etc. Owing to the unpredictability and the nature of offences, the Chief of RA Police decided to support the unprotected policemen, as prescribed by law, and to deploy police forces armed with rubber batons, shields and helmets in the vicinity of the Opera in order to contain the riotous offences. Owing to the unpredictability and the nature of offences, a decision was made to take adequate measures as prescribed by law. The offenders started to offer resistance with clubs, sharp cutting and puncturing instruments and metal rods. As a result of the clashes, police officers were wounded and taken to hospital. Police performed its duties, only using rubber batons. No other special means were used during the action. As a result, the participants of the action were forced out of the square, a search was made, which confirmed the intelligence about weapons and ammunition. Also, explosives, Molotov cocktails, iron rods and wooden clubs and iron ‘hedgehogs’ were found. Some organizers and participants of the turmoil were taken to police stations, others fled and gathered at the Yerevan City Hall and the French Embassy. National Assembly members, the Ombudsman, and the representatives of city authorities met organizers of the demonstrators, particularly with [D. Shahnazaryan]. They suggested to the organizers and demonstrators to hold the rally at the ‘Dinamo’ stadium, then at the Rail Station square. Some other venues were also offered. However, after a consent given for a while, when the police retreated, the organizers, particularly [D.   Shanhnazaryan] and [N. Pashinyan], having contacted [L. Ter-Petrosyan], received instructions from the latter not to go anywhere, but continue the prohibited gathering at the same place in violation of the law. To stabilize the situation and establish accord, the Catholicos of All Armenians and neutral politician [P. Hairikyan] decided to meet [L. Ter-Petrosyan], but all attempts to meet were rejected by [L.   Ter ‑ Petrosyan]. Moreover, the organizers of the demonstrators, particularly, [N. Pashinyan], [H.   Hakobyan], [K. Sukiasyan], [M. Malkhasyan], and [S. Mikaelyan] were instructed by [L.   Ter-Petrosyan] to build barricades at the Yerevan City Hall, the French and Russian Federation Embassies out of buses, trolleybuses and cars, to get armed with stones, iron rods, wooden clubs and Molotov Cocktails. The organizers also recruited their cohorts who possessed firearms and ammunition in order to attack the police forces and to spread the turmoil over the other sections of the capital. The crowd around the Yerevan City Hall in the afternoon of March 1 was gradually getting uncontrollable and in the evening their actions were finally reduced to looting and pogroms. The mob attacked the police forces equipped exclusively with rubber batons, shields and helmets with gun fire series, Molotov cocktails, iron rods, iron ‘hedgehogs’, improvised fragmentation explosive devices and hand grenades. All this is documented by video footage. It is important to point out that the clashes with the police took place 400-1000 meters from the venue of the rally at the Yerevan City Hall and the French Embassy. The police did not intend to use force or disperse the rally, but rather was at the site in order to maintain public order and to prevent the spreading of the turmoil by the rioters over other parts of the capital. For hours, small gangs of thugs separated from the 7000-strong crowd and burnt over two dozen private and police vehicles, and even ambulances in the nearby streets during mass turmoil. They destroyed buses and trolleybuses, devastated and looted the Moscow House [cultural centre], and nearby shops and offices. The windows of the City Hall and VivaCell offices were smashed. Gangs of intoxicated thugs assaulted the police forces and police officers. Sabotage continued, and at 21.00 RA President was advised about the wounded among the police forces. To prevent further uncontrollable developments and unpredictable consequences, RA President, based on the right reserved to him under Article 55, paragraph 14, of the Constitution, after consulting the Prime Minister and the Speaker of the National Assembly, on March 1, at 22:30 local time, announced emergency situation in Yerevan for the duration of 20 days. The National Assembly, on March 2, at 1.30 a.m., immediately convened as special session and approved the RA President’s Decree. According to the decree, the emergency situation is confined to Yerevan; the restrictions are minimal to not hamper the regular life in the city.” Declaration contained in a note verbale from the Ministry of Foreign Affairs of Armenia, dated 13 March 2008, transmitted by the Permanent Representation of Armenia and registered by the Secretariat General of the Council of Europe on 14 March 2008 47.     The text of the declaration of 13 March 2008 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 Amendments in NH-35 Decree of 1 March 2008. Decree of the President of the Republic of Armenia On Amendments to the Decree No. NH-35-N of 1 March 2008 Guided by paragraph 14 of Article 55 and paragraph 6 of Article 117 of the Constitution of the Republic