October 29, 2021
By Tobias Mortier
A little political tension in an electoral context is not uncommon. However, the Armenian presidential elections in 2008 were nothing short of riotous. The Court has already dealt with numerous cases in which the events surrounding these elections were contested. For instance, in the case of Mushegh Saghatelyan v. Armenia, the Court found violations of Arts. 5 §1, 10 and 11 of the European Convention on Human Rights (hereinafter: the Convention) when assessing police operations in the dispersal of demonstrations and subsequent arrests of protesters. Similarly, in the case of Myasnik Malkhasyan v. Armenia, the Court found another violation of Art. 5 §1, even briefly entertaining the argument of political motivation behind the applicant’s arrest. The case of Dareskizb Ltd v. Armenia – not to be confused with the Dareskizb Ltd case adjudicated in May 2021 – fits in with this line of cases too. This post constitutes a critique of the Court’s consideration of the requirements of the legal basis and the legitimate aim under the second paragraph of Art. 10 in this case. Afterwards, we will briefly discuss a potential role for Art. 18 as well.
In 2008, presidential elections were held in Armenia. When the preliminary results pointed towards a victory for the then Prime Minister, Serzh Sargsyan, his political opponent, Levon Ter-Petrosyan, called for protest actions against alleged irregularities in the election process. Daily protest rallies took place from February 20th until March 1st 2008. On March 1st, however, police officers cleared the streets of all demonstrators and used excessive force, which the Court previously condemned in the Mushegh Saghatelyan case. That same day, the incumbent President, Robert Kocharyan, adopted a decree establishing a state of emergency in Armenia. The fourth paragraph of Art. 4 of this decree imposed restrictions on mass media outlets, limiting their activity to merely reporting news that fell within the perimeters of ‘official information provided by State bodies’. The following day, the Armenian Ministry of Foreign Affairs notified the Council of Europe of their decision to invoke Art. 15 of the Convention.
The applicant company at the material time published a daily opposition newspaper. However, during the night of March 3rd to March 4th 2008, national security officers prohibited the mock-up of next day’s edition of their newspaper from being printed, without giving any reason. Ten days later, the President adopted another decree, amending the previous decree by prohibiting media from spreading information that was ‘obviously false or destabilizing’ or ‘called to participate in unsanctioned (illegal) activities’. That same night, national security officers once again prohibited the newspaper of the applicant company from being printed, once again without providing any reason for this. One week later, the state of emergency was lifted and the applicant could proceed to republish.
The applicant lodged an application before the Administrative Court in Armenia, in which it complained of the police officers who prohibited their newspaper from being published and sought to have the paragraph of the presidential decree which contained the restriction on mass media outlets declared invalid. However, the Administrative Court rejected the application due to lack of jurisdiction; since, at the material time, there was no legal framework for a state of emergency in Armenia, the President had had to declare said state based on powers he derived directly from the Constitution. The lawfulness of the state of emergency and the measures imposed within its context therefore concerned a matter of constitutionality and fell under the exclusive jurisdiction of the Constitutional Court. Further appeals brought before the Administrative Court and Court of Cassation were subsequently dismissed.
The applicant then proceeded to lodge an application before the Constitutional Court, as instructed by the Administrative Court. However, the Court declared the application inadmissible, since individuals were only allowed to lodge applications before the Constitutional Court concerning the constitutionality of statutes; presidential decrees could only be examined at the request of an exhaustive list of persons as enumerated in the Armenian Constitution. The applicant company thus found itself in a legal vacuum, unable to have its Convention rights protected by any judicial body. It consequently filed an application with the European Court of Human Rights (hereinafter: ‘the Court’).
The Court began its review by examining the derogation under Art. 15. Even though this was in no way the first case brought before the Court relating to the events which led to the state of emergency in Armenia, this was in fact the first case where the Court reviewed whether the derogation was in compliance with the conditions set out in Art. 15. The answer was no. In fact, Art. 15 could only be invoked in ‘an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organized life of the community’. Normal measures ought to be plainly inadequate if a Member State wants to derogate from their obligations under the Convention. As established in previous cases, the Court noted that the police had used unjustified and excessive force against the demonstrators assembled in Yerevan. The Government therefore played an active role in the escalation of violence as had occurred at the material time; the demonstrators had originally remained peaceful in their protests against the election results. In the eyes of the Court, the Government had hence been unable to demonstrate that the demonstrations constituted a threat to the life of the nation. The derogation therefore failed to meet the standards under Art. 15 §1 of the Convention, allowing the Court to review the permissibility of the imposed restrictions in the context of the state of emergency with the Convention guarantees.
The Court continued its judgment by reviewing the compatibility of the restrictions on the mass media outlets with Art. 10 §2 of the Convention. It first examined whether the interference had been prescribed by law. While the Armenian Constitution in principle authorized the President to declare a state of emergency, the concrete framework regulating the state of emergency had not yet been adopted in a separate statute as required by the Constitution. According to the Constitution, this meant that the President was so far only authorized to adopt measures of a general nature. However, the Court avoided answering that question, choosing instead to only review the necessity of the measure. It applied a similar approach to the question of whether the prevention of disorder and crime constituted a legitimate aim, despite concerns being raised in this regard by both the applicant and the third-party intervener, Media Legal Defense Initiative.
Instead, the Court devoted its attention under Art. 10 §2 to the question of whether the restriction was necessary in a democratic society. The Court noted that providing information to the public, albeit not in line with the incumbent rulers’ views, constitutes a core aspect of the concept of a democratic society which cannot be restricted even for the purposes of territorial integrity or the prevention of disorder or crime. Even in the context of a state of emergency, the respondent State must seek to safeguard such core values of democracy. In the case of the applicant, the police officers had not stated any reason for the prohibition on the publication of the newspaper editions. In fact, the Court noted that there had been no examination of whether the editions contained anything which might have exacerbated the already tense situation. What is more, the Government did not argue that the mock-up editions contained anything that could potentially incite to violence or unrest either. The Court thus noted that ostensibly, the only reason for the prohibition was the fact that the application company published an opposition newspaper. Such an approach could stifle the free political debate and went against the very purpose of Art. 10 §2.
Thirdly, the Court examined the Administrative Court’s reasoning behind its refusal to entertain the applicant’s application under the right of access to a court under Art. 6 §1 of the Convention. The Court has already reviewed the right of access to a court in a number of cases against Armenia, referring to the Melikyan and Saghatelyan cases. In fact, the Court established a judicial pattern in which national courts systematically dismiss applications lodged against acts adopted by certain bodies, including presidential decrees, regardless of whether their lawfulness or constitutionality was contested. The case of the applicant was no different; the Administrative Court had disregarded the applicant’s submissions operating on the assumption that it concerned the constitutionality of the decree, resulting in a lack of jurisdiction on their part, even though this was in fact not the core of the applicant’s argument. Such an approach went against the very core of the applicant’s right of access to a court constituting a violation of Art. 6 §1.
While the Court was undoubtedly correct in finding a violation of Art. 10 §2, there are some peculiarities in the Court’s reasoning in this regard that require special attention. For the purpose of this post, we will consequently focus on the Court’s reasoning under Art. 10 §2 – and more specifically its unwillingness to thoroughly consider the legal basis and the legitimate aim of the measure.
Firstly, the question on whether a measure was ‘prescribed by law’ goes beyond the mere establishment of a legal basis. Ever since its judgment in the case of Müller and Others v. Switzerland, the Court applies substantive conditions in this regard too, requiring the legal basis to meet the criteria of foreseeability and compatibility with the rule of law.
In the current case, the measure found its legal basis in the presidential decree, adopted by the President on the grounds of the Armenian Constitution. However, a closer inspection of the articles on which the President had based himself reveals that these in fact did not authorize the President to adopt the restrictions at all. While the President is authorized to declare a state of emergency within the State of Armenia, he is not authorized to adopt any specific restrictive measures until after a legal framework for this purpose has been adopted. This was not yet the case. This essentially means that the President was attributing powers to himself when he was not authorized to do so. Not only does this violate the requirement of foreseeability, it also goes against the very essence of the rule of law principle, according to which the Government is bound by the very limits imposed on it by the law. The lawfulness of the measures adopted in the context of the state of emergency was therefore highly doubtful.
Secondly, the Court only very briefly mentioned the legitimate aim of the measure, despite both the applicant and the third-party intervener having raised concerns in this regard. In the eyes of the applicant, the true aim of the Government was not the prevention of disorder and crime, but the authorities’ desire to hold on to their political power. Similarly, the third-party intervener raised the argument that the ban on publication of false or destabilizing information had not pursued any legitimate aim. Taking into account the manner in which the measure was applied, one might understandably question the true aim behind the restrictions imposed on the media. If the Government wished to prevent the incitement to more violence, would this generally not require an investigation into the actual content of the prohibited publications? The Court has previously found issues in the cases of Mammadli and Rasul Jafarov v. Azerbaijan relating to aims of a broader framework behind an individual measure because of the seemingly ‘intransigent and arbitrary’ manner in which it was applied. In the present case, the police authorities did not conduct any investigation into the content either and did not state any reason for the prohibition of the publication – resulting in a seemingly arbitrary restriction. This raises questions concerning the actual aim of the measure against the applicant, but it also raises concerns about the true aim behind the restrictions imposed on mass media outlets in general.
The question regarding the true aim is all the more relevant in light of the Court’s findings in Mushegh Saghatelyan v. Armenia, where the Court had established a political vendetta against the opposition in the context of the same demonstrations and the restrictions in reaction thereof. In fact, in the annotated case the Court noted that ‘the only reason for the prohibition was the fact that the applicant company was an opposition newspaper’ – implicitly referencing this political vendetta again. In reviewing the aims submitted by the Government, the Court should not limit itself to theoretically reviewing their substantiation, but also have regard for the actual application of the measures adopted in pursuance thereof.
It is regrettable that the Court did not take any firm stance in these debates. Instead, the Court decided to leave the questions concerning the legal basis and the legitimate aim open in favor of its review under the necessity test. However, the proportionality test is a sequential test – requiring that all tests are examined in a successive fashion. Theoretically speaking, the necessity of a measure in a democratic society is not reviewed until after the lawful basis and legitimate aim of it have been defined and reviewed. Dismissing subtests – or merely reviewing them in a manner characterized by substantial deference – for the sake of a more thorough review of a later stage can lead to the trivialization of the former. With the lack of a foreseeable legal basis in line with the rule of law and the lack of a legitimate aim, the Court had two opportunities to take a firm stance against the actions committed by Armenia, but took neither of them.
The Court could also have followed a different direction in assessing the case by reviewing the matter under Art. 18, in combination with Art. 10. Admittedly, none of the parties had invoked Art. 18, but the Court has shown itself to be willing to examine a complaint under Art. 18 regardless, provided that the content of the claim comes down to an allegation of a hidden aim. In fact, in Mammadli v. Azerbaijan, the Court even rejected the Government’s objection that the applicant had not expressly invoked Art. 18 by stating that the applicant had in fact invoked this argument in substance. One might argue that in this case, too, the applicant had in substance argued that the ban was imposed in order to ensure the preferred political succession of the President. Moreover, the Court itself pointed out that the restrictions had had the effect of stifling political debate and thereby silencing opposition. Were these merely the effects, or actually the ulterior motives behind the restrictions?
Based on the material brought before the Court, it is not unlikely that a violation might have been found. Several elements in the case seem to point towards the presence of ulterior motives on the authorities’ part. Without rewriting the case, it is interesting to note the similarities between the evidence relied upon by the applicant in this case and the evidence relied upon by the Court in finding violations of Art. 18 in previous cases. For instance, the Court took the one-sided application of regulation to the detriment of political opponents into consideration in Selahattin Demirtas v. Turkey (no. 2). Moreover, concerns raised and observations submitted by third parties are means of evidence frequently entertained by the Court, particularly since its explicit confirmation that these do constitute relevant contextual evidence for the sake of Art. 18 in Merabishvili v. Georgia. In its reasoning under Art. 10 in the annotated case, the Court pointed out the potentially chilling effect of the measure on political opponents, which also previously partially led the Court to find a violation of Art. 18 in the case of Aliyev v. Azerbaijan. Perhaps – and this might be a bit of a stretch, but interesting nonetheless – the Court might even be able to discern a pattern of targeting political opponents in light of its earlier judgments on the measures in the context of the Armenian state of emergency, as it also established and considered in the cases of Rasul Jafarov and Aliyev v. Azerbaijan. In short, the Court had ample indication that the Armenian authorities might have pursued a different aim than the prevention of disorder or crime by establishing the restrictions on mass media and by prohibiting the publication of the applicant’s newspaper. Not considering Art. 18 is therefore a mistake on the Court’s part.
Although disappointing from a fundamental rights perspective, it is not entirely unexpected that the Court did not thoroughly examine the legal basis and the legitimate aim behind the measure. The Court traditionally has a deferential attitude here, particularly as regards the legitimacy of governmental aims. In the Mushegh Saghatelyan case concerning the events surrounding the Armenian elections in 2008, the Court also left the question concerning the legitimate aim open in favor of the subsequent stages under its proportionality test. This is regrettable, especially considering the fact that the necessity test builds on the aim pursued; was the restriction necessary in order to achieve that aim? Striking down governmental action because of impermissible aims understandably constitutes a shameful blow to the Member State, but the alternative – not even reviewing it – is not satisfactory either. Particularly in cases where the rule of law principle appears to be (or have been) in danger, the Court should be able to take a firm stance, be it by being less deferential in its review of the legitimacy of aims under the proportionality test or by reviewing the matter under Art. 18. The case of Dareskizb Ltd v. Armenia would have been the perfect occasion to do so.