Last Updated on August 23, 2021 by LawEuro
Published on 23 August 2021
FOURTH SECTION
Applications nos. 42793/15 and 1593/16
Karen HARUTYUNYAN against Armenia
and Argishti KIVIRYAN against Armenia
lodged on 17 August 2015 and 20 December 2015 respectively
communicated on 5 August 2021
Statement of Facts
The applicant in application no. 42793/15, Mr Karen Harutyunyan (“the first applicant”), and the applicant in application no. 1593/16, Mr Argishti Kiviryan (“the second applicant”), are Armenian nationals who were born in 1979 and 1977 respectively and live in Yerevan. They are represented before the Court by Mr T. Safaryan and Ms L. Sahakyan, lawyers practising in Yerevan.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 4 September 2013, at around 12 noon, the applicants took part in a protest rally against a decision of the President of Armenia to join the Eurasian Customs Union. Initially, the protest was held on the pavement opposite the President’s office, situated at 26 Baghramyan Avenue. However, the applicants and other participants in the protest later crossed the street and relocated in front of the entrance gates of the President’s office. Police officers ordered them to leave that area and to return to the opposite pavement but the applicants and other protesters refused to comply. The applicants allege that the police officers started pushing the protesters away from the gates and onto the carriageway in order to return them to the opposite pavement. According to the findings of the domestic courts, the police halted the traffic on Baghramyan Avenue for that purpose, in order to ensure a safe passage. It appears that some of the protesters, including the second applicant, sat on the carriageway and disobeyed the orders of the police to leave. It further appears that the police eventually dispersed the rally by arresting most of the participants, including the first applicant, who was taken to Arabkir police station where an administrative case was initiated against him under Article 182 of the Code of Administrative Offences (CAO) for disobeying the lawful orders of a police officer.
Later the same day, after the dispersal of the rally, the second applicant went to Arabkir police station, where a number of participants in the protest had gathered in support of the arrested demonstrators. There, at 5.15 p.m. the second applicant was arrested and taken to the police station. According to the record of the second applicant’s administrative arrest (արձանագրություն վարչական ձերբակալման վերաբերյալ), “during the protest held [in front of the President’s office] at 26 Baghramyan Avenue, [the applicant] had sat on the carriageway adjacent to [the President’s office] and disobeyed the lawful order of a police officer to desist from blocking the road, thereby committing an act specified under Article 182 of the CAO”.
The applicants were released after all administrative formalities were completed.
On 30 September and 4 October 2013 two police officers were questioned as witnesses and testified that the protest had been organised on the pavement opposite the President’s office and had initially been peaceful. However, shortly after some of the participants had approached the entrance gates of the President’s office and tried to lie on the ground. The police officers had ordered them to move the protest to an appropriate distance from the President’s office since their actions could have threatened the normal functioning of the building, but they had disobeyed and had been taken to a police station.
On 8 and 10 October 2013 the police lodged two separate claims with the Administrative Court seeking to impose an administrative penalty on each of the applicants under Article 182 of the CAO for disobeying the lawful orders of police officers. In the first applicant’s case, it was mentioned that he had refused to obey the lawful order of the police to move the protest to an appropriate distance from the President’s office. In the second applicant’s case, it was mentioned that he had tried to hinder the actions of the police by sitting on the carriageway in front of the President’s office and had refused to desist from blocking the road.
On 10 February 2014 the second applicant lodged a counter-claim against the police claiming that the forced dispersal of the rally had interfered with his rights to freedom of expression and freedom of assembly. He argued in particular that, notwithstanding the legal ban on holding a gathering near the President’s office, the State authorities should have tolerated the protest since the venue had been crucial to the participants. He further argued that in no manner had the peaceful demonstration obstructed the activity of the President’s office and that he had not committed any reprehensible act. As regards violation of the traffic rules, the applicant claimed that “every demonstration, to some extent, disrupts the ordinary life of others”. Therefore, the interference with his rights had not been prescribed by law, nor had it been proportionate. Moreover, the police had failed to prove the impossibility of drawing up the record of an administrative offence on the spot; thus, his arrest had been unlawful.
On 25 July and 30 September 2014 the Administrative Court adopted in each case its judgment, finding the applicants guilty under Article 182 of the CAO and fining each of them in the amount of 50,000 Armenian Drams.
As regards the first applicant, the Administrative Court, relying on the materials of the administrative case, including the witness statements and the relevant video record, established that on the day of the rally the applicant had approached the entrance gates of the President’s office, whereas the police had requested him to leave the area. The Administrative Court, relying on Section 19 of the Freedom of Assembly Act, held that the applicant had failed to comply with the lawful orders of the police officers “to cease the unlawful actions and to move the protest to an appropriate distance from the President’s office”.
With regard to the second applicant, the Administrative Court, relying on a video record examined at the court, established that on the day of the protest the applicant had crossed the street and approached the gates of the President’s office. The police had repeatedly asked the demonstrators to return to the opposite pavement. For that purpose, they had halted the traffic on the relevant part of Baghramyan Avenue, in order to move the protesters safely back to the opposite side. The applicant, however, had obstructed the traffic by sitting on the carriageway and had disobeyed the lawful order of the police officers to desist from blocking the road, thereby violating public order. Furthermore, the order of the police to leave the gates of the President’s office and move to the opposite pavement had been lawful in the light of the requirements of Section 19 § 1(3) of the Freedom of Assembly Act. In particular, the protest would have interfered with the unhindered access of persons entering the building, including the employees of the President’s office, since the main security entrance was right next to the gates. The police had not intended to ban the rally but rather to ensure that it was held at such proximity that would not hinder the normal functioning of the President’s office. The second applicant’s counter-claim was rejected since the latter had “failed to maintain a fair balance between respecting public order and exercising his freedom of assembly”. As regards his arrest, the Administrative Court, referring to Articles 258 and 259 of the CAO, indicated that, given the chaotic situation and insufficient police presence at the rally, it had been impossible to arrest the applicant at the site of the rally, which was why he had been arrested later in front of the police station. Due to the same chaotic situation, the police officers had acted lawfully by not drawing up the record of an administrative offence on the spot.
On 2 September 2014 the first applicant appealed against his conviction, arguing that in no manner could he have threatened the normal functioning of the President’s office by his protest and that, as a matter of fact, the said area was intended for public use. The applicant argued that he had been punished and subjected to a fine simply because of his participation in the protest, which would have a chilling effect on future protest rallies.
On 30 October 2014 the second applicant filed an appeal against the decision of the Administrative Court where he maintained all of the complaints raised in his counter-claim. In addition, he argued that the purpose of imposing a fine had been to punish him for his participation in the protest.
On 18 December 2014 the Administrative Court of Appeal upheld the judgment of the Administrative Court in the first applicant’s case. A copy of this decision was served on the first applicant on 20 December 2014.
On 20 January 2015 the first applicant lodged an appeal on points of law. In his appeal, the applicant specified that the contested decision of the Administrative Court of Appeal had been served on him on 20 December 2014 and attached a copy of the receipt.
On 11 February 2015 the Court of Cassation left the first applicant’s appeal on points of law without examination, concluding that he had failed to lodge the appeal within the statutory time-limit and to submit a request to restore the missed time-limit (բաց թողած ժամկետը վերականգնելու մասին միջնորդություն). In particular, the Court of Cassation found that the one-month time-limit prescribed by Article 156 § 1 of the Code of Administrative Procedure started running from the moment the Administrative Court of Appeal had pronounced its decision, whereas the applicant had lodged his appeal out of time and had not submitted a request to restore the time-limit.
On 25 February 2015 the Administrative Court of Appeal upheld the judgment of the Administrative Court in the second applicant’s case.
On an unspecified date the second applicant lodged an appeal on points of law which was declared inadmissible for lack of merit by the Court of Cassation on 20 May 2015.
B. Relevant domestic law and practice
1. Code of Administrative Offences (1986)
Article 182 provides that disobeying a lawful order of a police officer or a conscript of the police troops made in the performance of his or her duties of preserving public order, ensuring public safety and preserving facilities results in a fine in the amount of 50 times the fixed minimum wage.
Article 258, entitled the “Bringing-in” of an Offender, provides that an offender may be “brought in” to the police by a police officer for the purpose of drawing up a record of an administrative offence in cases where it is mandatory to draw up such a record and it is impossible to do so on the spot. In the case of violation of the rules for vehicle use, traffic order and road safety, an offender may be “brought in” to the police by a person vested with such power, if he does not have identity documents and there are no witnesses who can give the necessary information about the offender.
Article 259 provides that a person may be subjected to an administrative arrest, search, inspection of belongings and seizure of belongings and documents for the purpose of preventing administrative offences in cases where other measures of compulsion have been exhausted, [for the purpose] of verifying the identity and drawing up a record of an administrative offence in cases where it is impossible to draw up such a record on the spot and where it is mandatory to draw up such a record, and of ensuring the timely and accurate examination of cases and the enforcement of decisions in cases concerning administrative offences.
2. Code of Administrative Procedure (as in force at the relevant time)
Article 69 (acknowledgement claim) provides that an applicant, by lodging an acknowledgement claim, may demand (1) an acknowledgement of existence or absence of any legal relationship, if he cannot lodge a claim under Articles 66-68 of the Code; (2) an acknowledgement of invalidity of an administrative act; and (3) an acknowledgement of unlawfulness of an interfering administrative act, which no longer has legal force, or performed or otherwise exhausted action or inaction, if the applicant has a legitimate interest in having the act, action or inaction in question acknowledged as unlawful, that is if (a) there is a risk of once again enacting a similar interfering administrative act or performing a similar action in a similar situation; (b) the applicant intends to claim pecuniary damages; or (c) the applicant pursues the aim of rehabilitating his honour, dignity or business reputation.
Article 114 § 7 provides that, immediately after the pronouncement by the Administrative Court of a judicial act on the merits, it is served on the parties to the proceedings. In case of absence of any of the parties, a copy of the judicial act on the merits is sent to the party on the day of the pronouncement or the next day.
Article 148 § 1 provides that decisions of the Court of Appeal on the merits of the case enter into legal force one month after the date of their pronouncement.
Article 149 § 1 provides that judicial acts of the Court of Appeal are adopted or pronounced and sent to the parties in the manner prescribed by the Code for the judicial acts of the Administrative Court.
Article 156 § 1 provides that an appeal on points of law against a judicial act on the merits may be lodged until the expiry of the time-limit prescribed for the entry into legal force of that act. Article 156 § 5 provides that the Court of Cassation may accept an appeal lodged after the expiry of the time‑limit, if a request was submitted to restore the time-limit and the court allowed it.
Article 160 § 1 (1) provides that an appeal on points of law shall be left without examination if it is submitted after the expiry of the prescribed time-limit and no request seeking restoration of the time-limit has been submitted or it has been rejected.
3. Freedom of Assembly Act (2011)
Section 19 § 1(3) provides that an assembly is prohibited, if it is to be held at such proximity to the President’s office, the Parliament or the Government, or to the courts or the penitentiary institutions, as to threaten their normal functioning.
4. Decisions of the Constitutional Court of 16 October 2012 (ՍԴՈ‑1052), of 18 December 2012 (ՍԴՈ-1062), of 9 February 2016 (ՍԴՈ-1254) and of 28 June 2016 (ՍԴՈ-1290) concerning certain provisions of the Code of Criminal Procedure, the Code of Administrative Procedure and the Code of Civil Procedure
According to the decisions of the Constitutional Court of 16 October 2012 (ՍԴՈ-1052) and of 18 December 2012 (ՍԴՈ-1062) concerning the relevant provisions of the Code of Criminal Procedure, it was considered unconstitutional and in breach of constitutional rights to an effective remedy and to a fair trial, to deny admission of appeals against judgments on the grounds that the appellants had missed the time-limits for appeal for reasons beyond their control. When individuals miss time-limits for appeal for reasons beyond their control, for example when service of the contested judgment is late, the relevant time-limit shall be restored ex jure and shall commence from the date of service, not from the date of pronouncement of the relevant judicial act. It was unconstitutional to leave restoration of judicial time-limits to the discretion of the courts. The Constitutional Court endorsed these findings in its later decisions by applying them to similar provisions of the Code of Administrative Procedure (9 February 2016 (ՍԴՈ-1254)) and the Code of Civil Procedure (28 June 2016 (ՍԴՈ‑1290)). In particular, when examining the constitutionality of Article 156 §§ 1 and 5 and Article 160 § 1(1) of the Code of Administrative Procedure, the Constitutional Court restated that the relevant judicial acts should be served on the appellants in the manner and time-limits prescribed by law. Furthermore, in the case of failure to comply with the time-limits by the appellants for reasons beyond their control, the time-limits should be restored ex jure provided that the appellants submitted an application to restore the time-limit and proof of receipt of the contested judicial act to the relevant judicial body.
COMPLAINTS
1. The second applicant complains under Article 5 § 1 of the Convention that his deprivation of liberty was unlawful and unjustified. He submits that it was an unnecessary measure which failed to meet the requirements of, inter alia, Articles 258 and 259 of the CAO.
2. The first applicant complains under Article 6 § 1 of the Convention that the refusal of the Court of Cassation to examine his appeal on points of law of 20 January 2015 violated his right of access to a court. Its decision to calculate the time-limit for appeal from the date of pronouncement as opposed to the date of service of the Court of Appeal’s decision was in conflict with the established judicial practice and the relevant decisions of the Constitutional Court.
3. The applicants complain under Article 11 of the Convention that they took part in a peaceful protest and that its termination, their arrest and their subsequent punishment were unlawful and not necessary in a democratic society.
COMMON QUESTION
Has there been a violation of the applicants’ right to freedom of peaceful assembly, contrary to Article 11 of the Convention?
CASE-SPECIFIC QUESTIONS
Application no. 42793/15 (Harutyunyan v. Armenia)
Was the refusal of the Court of Cassation to examine the applicant’s appeal on points of law in breach of his right of access to court guaranteed by Article 6 § 1 of the Convention? The Government are requested to explain, in particular, what is the starting point for the calculation of the one-month time-limit for lodging an appeal on points of law under domestic law: the date of the pronouncement or the date of service of the contested judicial act? In any event, where an appeal was lodged within a period of one month from the date of service of the contested judicial act, was the applicant required to submit a request seeking to restore the time-limit for lodging an appeal on points of law? If so, which provisions of domestic law provided for such a requirement?
Application no. 1593/16 (Kiviryan v. Armenia)
1. Were the proceedings instituted by the applicant on 10 February 2014 an effective remedy within the meaning of Article 35 § 1 of the Convention in respect of his complaint under Article 5 § 1 of the Convention? In this context, the Government are specifically requested to explain what kind of redress the applicant might obtain as a result of those proceedings in respect of his complaint under that Article (see, among other authorities, Gavril Yosifov v. Bulgaria, no. 74012/01, § 41, 6 November 2008), as well as to submit examples of relevant domestic practice.
2. Assuming that the proceedings in question were an effective remedy, was the applicant’s deprivation of liberty on 4 September 2013 compatible with the requirements of Article 5 § 1 of the Convention? In particular, was it in conformity with domestic law, namely Articles 258 and 259 of the Code of Administrative Offences, and was it necessary in the circumstances (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, §§ 71-72, 15 November 2018)?
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