Human Rights Committee

Decision adopted by the Committee under the Optional Protocol, concerning communication No. 3075/2017 * , **

Communication submitted by:G.G. (represented by counsels, Ara Ghazaryan and Araks Melkonyan)

Alleged victim:The author

State party:Armenia

Date of communication:28 December 2016 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 6 December 2017 (not issued in document form)

Date of adoption of decision :2 November 2018

Subject matter:Media coverage of peaceful rally

Procedural issue: Failure to exhaust domestic remedies

Substantive issues: Freedom of expression; arbitrary detention; right to an effective remedy

Articles of the Covenant: 2 (3), 9 (1)–(2) and 19 (2)

Articles of the Optional Protocol:2 and 5 (2) (b)

1.The author of the communication is G.G., a national of Armenia born in 1989. He claims that the State party has violated his rights under articles 2 (3), 9 (1)–(2) and 19 (2) of the Covenant. The Optional Protocol entered into force for the State party on 23 June 1993. The author is represented by counsel.

The facts as submitted by the author

2.1The author is a freelance journalist whose work appears on Armenian public television. In the summer of 2015, a number of peaceful demonstrations took place in Armenia against the Government’s decision to raise the electricity rates.

2.2On 18 June 2015, a peaceful sit-in action commenced in Liberty Square in Yerevan organized by the “No Robbery” civic initiative. In the evening of 22 June, a spontaneous large-scale rally began to march peacefully from Liberty Square along Baghramyan Avenue in the direction of the Presidential Palace, where the protesters wanted to hand over a petition. However, the police blocked Baghramyan Avenue, preventing them from reaching the Presidential Palace. The protesters then decided to carry out a sit-in action on Baghramyan Avenue, which continued throughout the night, bringing together around 500 protesters.

2.3The author heard about the heavy police presence on Baghramyan Avenue, where officers were equipped with armoured vehicles, water cannons and barbed wire. He submits that, as a journalist, he was wearing his press badge and went to Baghramyan Avenue to cover the sit-in action on 23 June.

2.4On 23 June 2015, at around 5 a.m., the police began to disperse the protesters violently, using excessive force and water cannons. The author submits that about 240 protesters were arrested that morning.

2.5The author claims that he tried to leave the scene but was stopped by several police officers, who physically attacked him and tried to take away his camera. In order not to damage the camera, he handed it over to the officers. He submits that police officers handcuffed him, hit him on the head and broke his glasses. The author was taken to a police car parked on Mashtots Avenue, without receiving any clarification as to the reasons for his apprehension.

2.6At around 7 a.m. on 23 June, the author was transferred to the Malatia district police station in Yerevan, where he spent about an hour before being released. On the same day, the author collected his camera from the police station, where he was asked to delete several photos of the demonstrations.

2.7The author reports that on 22 and 23 June, the police physically ill-treated 13 journalists and hindered the professional work of 11 others. Technical equipment and the memory cards of about 10 journalists were damaged or stolen. In this context, the author refers to numerous reports by international organizations, non-governmental organizations and others.

2.8On 2 July 2015, the Special Investigation Service initiated a criminal investigation into the allegations that police officers had exceeded their powers during the special operation aimed at dispersing the rally and the sit-in action on Baghramyan Avenue on 23 June 2015 and following days. The author notes that the criminal case focused on the violence committed by the police against protesters and journalists at the venue and in the police stations. He also notes that when investigating this case, the Service would also have to examine the illegal actions committed by the police who prevented journalists from discharging their professional duties, paying specific attention to the reports of destruction of media equipment, cameras, memory cards and recording devices.

2.9The author submits that he was questioned by the Special Investigation Service as a witness on two occasions: once on 26 August and once on 1 October 2015, when he was assigned victim status. Since then, he has received no information from the Service concerning any other procedural or investigative actions carried out in the case. The author notes that no administrative remedies are foreseen by the domestic law in the framework of criminal proceedings.

2.10The author notes that in response to the queries on the status of the investigation by the Committee to Protect Freedom of Expression, the Service stated on 5 April 2017 that 22 media representatives had been recognized as victims in the investigation and that, with respect to four of them, the criminal investigation had been concluded and forwarded to the court. The Service stated that the investigation with regard to the author was still ongoing.

2.11The author challenges the provisions of the Criminal Procedure Code and claims that they do not provide for challenging inaction by the investigative bodies. Article 290 (1) defines only “actions” and “decisions” that can be referred to a supervising prosecutor, therefore the “failure” to conduct an investigation is not expressly stipulated among the grounds on the basis of which it can be challenged.

2.12He notes that although the Constitutional Court of Armenia, by its decision 844, interpreted the scope of article 290 (1) of the Criminal Procedure Code in relation to the right to challenge inaction on the part of the investigating authorities, it failed to specify the meaning of the term “inaction”.

2.13Furthermore, the author submits that the pretrial investigation was non-public, with defendants and victims having very limited due process rights. He notes that the Criminal Procedure Code is vague regarding the time limits of investigations: while article 197 of the Code limits the pretrial period to two months, with possible extension, it does not specify how many times an investigation can be extended. According to the author, the current pretrial investigation period has been extended at least 10 times. The author claims, in this regard, that he has never been informed as to the grounds for any extension.

The complaint

3.1The author claims that his rights under article 9 (1)–(2) of the Covenant were violated because on 23 June 2015, he was unlawfully and arbitrarily arrested and detained by the police without any justification and without being informed of the reasons for his arrest and detention. While in police custody, he was hit on the head and his camera was taken. The author refers to the Committee’s jurisprudence and notes that the State party has an obligation to respond appropriately to violent acts committed against journalists and to prevent and redress unjustifiable use of force by law enforcement bodies.

3.2The author claims that he was targeted by the police because he was a journalist covering demonstrations. The police prevented him from performing his professional journalistic duties, and therefore the State party has violated his right to freedom of expression as protected by article 19 (2) of the Covenant.

3.3The author notes that it is essential that the media and press are able to report on public issues without censorship or restraint and to inform the public. He stresses that the State party should put in place effective measures to protect those exercising their right to freedom of expression. The author maintains that while journalists are more likely to be subjected to threats, including intimidation and attacks, because of their activities, these attacks should be vigorously investigated in a timely fashion and the perpetrators prosecuted, with victims receiving appropriate forms of redress.

3.4The author claims that the failure of the State party to investigate allegations of such violations could give rise to a separate breach of the Covenant. In this context, his allegations concerning the actions of the police were not subject to effective investigation. He notes that, although he was formally accorded victim status in the ongoing criminal investigation, the investigation has been delayed and no perpetrators have been identified or prosecuted.

3.5The author claims that there has been a violation of article 2 (3) of the Covenant, in conjunction with articles 9 (1)–(2) and 19 (2).

State party’s observations on admissibility

4.1In its note verbale of 7 February 2018, the State party challenged the admissibility of the communication for non-exhaustion of domestic remedies.

4.2The State party observes that following the 23 June 2015 dispersal of demonstrators by the police, the Special Investigation Service initiated criminal proceedings under articles 309 (2), 164 (1) and 185 (1) of the Criminal Code of Armenia. In these criminal proceedings, 59 people, including 22 journalists, were recognized as victims. Following a comprehensive investigation, four police officers were charged with violating the law. The investigation established all the episodes of their illegal activities and the case was sent to the Kentron and Nork Marash district courts for examination. The investigation is still ongoing.

4.3The State party notes that a large number of police officers were interrogated, and forensic, medical, trace and commodity examinations were carried out. Following the examination of video materials disseminated on the Internet, the Special Investigation Service interrogated additional police officers and conducted other intelligence and investigative measures with the aim of establishing the exact circumstances of the events.

4.4The State party submits that on 1 October 2015, the author was recognized as a victim in the proceedings. He was presented with all the results of the forensic examinations and with subsequent experts’ conclusions. The State party underlines that the author brought no motion to the investigative body regarding the offences committed against him by police officers.

4.5In order to verify the statements of the author, a number of police officers and journalists were questioned, including high-ranking officers, such as the officer in charge of the Malatia district police station. They stated that as soon as it was understood that the author was a journalist, he was released.

4.6The State party notes that despite the fact that the author was informed of his right to file motions, he never applied to the investigative body with any motion regarding the investigation or actions of the police officers. Regarding the author’s claim that the decision of the Constitutional Court with regard to the scope of article 290 of the Criminal Procedure Code is an impediment to challenging inactivity by an investigative body, the State party indicates that there are many examples of article 290 also covering the right of victims to challenge inactivty of investigators.

4.7As to the availability of administrative remedies, the State party notes that these are foreseen by article 69 of the Code of Administrative Procedure. However, since the criminal proceedings remain ongoing, the author cannot yet lodge a claim and seek administrative redress.

4.8The State party notes that taking into account the confidentiality of the investigation, as well as the fact that the current submission focuses mainly on admissibility, more comprehensive and detailed information about the investigation can be provided at a later stage if the Committee should decide that the case is admissible.

4.9The State party concludes that the author’s failure to challenge the alleged inactivity of the investigative body through domestic proceedings deprived the State party’s competent authorities of the ability to address the alleged violations within the framework of the domestic legal system. As the investigation is still ongoing, the author has an effective remedy against the alleged inactivity of the investigative body through a clear-cut mechanism envisaged by the Criminal Procedure Code.

Authors’ comments on the State party’s observations on admissibility

5.1By letter of 4 May 2018, the author challenged the process of the ongoing criminal procedure, stating that the State party had failed to specify the investigative and operational measures that had been conducted and the names of the police officers and journalists who had been interrogated. He also challenged the confidentiality of the proceedings and claimed that the investigation had been unreasonably prolonged.

5.2The author denies that he has failed to exhaust domestic remedies, noting that, in any event, it is a right and not an obligation to challenge the acts and omissions of an investigative body. The author concludes that it is the State party’s obligation to conduct a fair, thorough and prompt investigation, and that the effectiveness of the domestic remedies is not dependent upon the victims taking the initiative to file motions.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether it is admissible under the Optional Protocol.

6.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

6.3With regard to the requirement laid down in article 5 (2) (b) of the Optional Protocol, the Committee first notes that the State party has challenged the communication for non-exhaustion of domestic remedies, as the author did not address any claim to the Armenian authorities regarding the course of the investigation of his case before submitting the communication to the Committee. Thus, according to the State party, its competent authorities have been prevented from properly addressing the alleged violations within the framework of the domestic legal system. The Committee also notes the author’s argument that the investigation conducted by the Special Investigation Service has been unreasonably prolonged; that, as a victim, he has not been kept sufficiently informed on the status of the investigation; and that, in any event, complaining about the course of the investigation is a victim’s right and not an obligation, and that the effectiveness of domestic remedies cannot be dependent upon the initiative of the victims to file appeal motions. The Committee notes the fact that the author has been assigned victim status and that four police officers have been charged.

6.4The Committee recalls that, pursuant to article 5 (2) (b) of the Optional Protocol, it is precluded from considering any communication unless it has been ascertained that all available domestic remedies have been exhausted; this rule does not apply, however, if it is established that the application of domestic remedies has been or would be unreasonably prolonged or would be unlikely to bring effective relief to the presumed victim. In the present case, the delay of the investigation does not seem to be such as to discharge the author from the requirement to exhaust the available domestic remedies prior to submitting the case to the Committee. In addition, nothing on file indicates that the remedies in question could not eventually bring effective relief to the author. The Committee therefore concludes that, in the circumstances of the present case, the requirements of article 5 (2) (b) of the Optional Protocol have not been met.

7.The Committee therefore decides:

(a)That the communication is inadmissible under article 5 (2) (b) of the Optional Protocol;

(b)That the present decision shall be transmitted to the State party and to the author.