CEDH · CASELAW;CLIN;ENG — 21 septembre 2021

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Armenia - 61737/08 Judgment 21.9.2021 [Section IV] Article 15 Declaration of national emergency in the context of 2008 massive post-election protests: conditions for derogation not satisfied Article 10 Article 10-1 Freedom of expression Freedom to impart information Unjustified ban on publication of opposition newspaper as a result of state of emergency declared in the context of massive post-election protests: violation Facts – On 1 March 2008, after the dispersal of opposition demonstrations that had followed the announcement of the preliminary results of the presidential election, the incumbent President of Armenia adopted a decree declaring a state of emergency in Yerevan and imposing, inter alia , restrictions on publication by mass media. An amending decree was adopted on 13 March 2008. The necessity of the introduced measures was confirmed by a parliamentary inquiry. In the meantime, on 6 March 2008, pursuant to Article 15 of the Convention, the Armenian authorities gave notice to the Secretary General of the Council of Europe of a derogation from a number of rights, including those protected by Article 10 § 1. The applicant company, which published a daily opposition newspaper, was prevented from publishing it during the state of emergency, with the national security officers prohibiting the printing of the newspaper’s edition on two occasions. The applicant company unsuccessfully challenged the decree before the domestic courts. Law – Article 15: In the present case, while accepting that weight must be attached to   the judgment of Armenia’s executive and Parliament, the Court noted that the necessity of declaring a state of emergency and the particular measures involved had apparently never been subjected to any judicial scrutiny at the domestic level. Further, the Court had already examined in a number of cases what had happened in Yerevan following the 2008 presidential election, the circumstances and nature of the demonstrations and the police intervention. The Government had not put forward any evidence which prompted the Court to doubt its relevant findings in its previous case-law. After the dispersal of the peaceful assembly at Freedom Square a large crowd gathered in a different location. While tensions had been running high between the demonstrators and the law enforcement authorities at that point, the Court did not have at its disposal sufficient material to establish how the situation had evolved and eventually got out of hand so as to lead to an armed confrontation, damage of property and deaths. It was, however, mindful of its previous findings that the dispersal of the assembly at Freedom Square, as well as a number of other similar or uncontrollable events which had happened later that day, might have played a role in the eventual escalation of violence, as opposed to it being a planned and organised disorder or an attempt of coup (see Myasnik Malkhasyan v. Armenia ). Furthermore, the large crowd of several thousand people had remained peaceful throughout that period, while the violence had been committed by small groups of protesters in a number of adjacent streets. No evidence had been submitted to demonstrate that the protesters who had committed violence were armed with anything but improvised objects as opposed to firearms or similar weapons as alleged by the Government. Nor was there any evidence to suggest that any of the deaths had occurred as a result of deliberate or even unintentional actions of the protesters. Consequently, although the situation in Yerevan on 1 March 2008 had been undoubtedly very tense and could have been considered a serious public order situation, the Government had failed to demonstrate convincingly and to support with evidence their assertion that the opposition demonstrations, which, moreover, had been apparently confronted with a heavy-handed police intervention, could be characterised as a public emergency “threatening the life of the nation” within the meaning of Article 15. There was therefore insufficient evidence to conclude that the opposition protests, protected under Article 11, even if massive and at times accompanied by violence had represented a situation justifying a derogation. Conclusion: derogation did not satisfy the requirements of Article 15 § 1. Article 10: The restrictions that had been imposed on the applicant company’s publication of its newspaper had amounted to an interference with its freedom of expression, including its right to impart information. Although, an issue arose as to whether the declaration of a state of emergency had been lawful, the Court left that question open. The contested measures sought to pursue the legitimate aims of preventing disorder and crime. With regard to the necessity of the restrictions imposed the Court first stressed that the “duties and responsibilities” which accompanied the exercise of the right to freedom of expression by media professionals assumed special significance in situations of conflict and tension. Where the views expressed did not constitute hate speech or incitement to violence, the Contracting States could not restrict the right of the public to be informed of them, even with reference to the aims set out in Article 10 § 2, namely the protection of territorial integrity or national security or the prevention of disorder or crime. Neither could the existence of a “public emergency threatening the life of the nation” serve as a pretext for limiting freedom of political debate, which was at the very core of the concept of a democratic society. Even in a state of emergency any measures taken should seek to protect the democratic order from the threats to it. In the present case, the national security officers had prohibited the printing of the applicant company’s newspaper’s edition without providing reasons. There had been no suggestion nor had the Government argued that the material which the applicant company had intended to print contained any hate speech or incitement to violence or unrest. In fact, from the entirety of the materials before the Court it appeared that the only reason for the prohibition had been the fact that the applicant company was an opposition newspaper known to publish material critical of the authorities. Consequently, such restrictions, which had the effect of stifling political debate and silencing dissenting opinions, went against the very purpose of Article 10, and were not necessary in a democratic society. Conclusion : violation (unanimously). The Court also found, unanimously, a violation of Article 6 § 1 of the Convention in that the Administrative Court’s refusal to examine the application against the presidential decree and the interference with the applicant company’s Article 10 rights had impaired the very essence of its right of access to court. Article 41: EUR 9,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed. (See also Melikyan v. Armenia , 9737/06, 19 February 2013; Saghatelyan v. Armenia , 7984/06, 20 October 2015; Mehmet Hasan Altan v. Turkey , 13237/17, 20 March 2018, Legal Summary ; Şahin Alpay v. Turkey , 16538/17, 20 March 2018, Legal Summary ; Mushegh Saghatelyan v. Armenia , 23086/08, 20 September 2018, Legal Summary ; Myasnik Malkhasyan v. Armenia , 49020/08, 15 October 2020)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes