FIRST SECTION
\nCASE OF AYVAZYAN v. ARMENIA
\n(Application no. 46245\/08)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n18 October 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Ayvazyan v. Armenia,<\/strong><\/p>\n The European Court of Human Rights (First Section), sitting as a Committee composed of:<\/p>\n Kristina Pardalos, President, Having deliberated in private on 25 September 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 46245\/08) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by an Armenian national, Mr MasisAyvazyan (\u201cthe applicant\u201d), on 12 September 2008.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr M.Shushanyan,a lawyer practising in Yerevan. The Armenian Government (\u201cthe Government\u201d) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia to the European Court of Human Rights.<\/p>\n 3.\u00a0\u00a0On 27 November 2012 the complaint concerning the alleged unlawfulness of the applicant\u2019s detention between 1 and 13 May 2008, and on 21 February 2017 the complaint concerning the alleged lack of relevant and sufficient reasons for the applicant\u2019s detention,were communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1956 and lives in Jrvezh.<\/p>\n 5.\u00a0\u00a0On 19 February 2008 a presidential election was held in Armenia, which was followed by daily protest rallies held at Yerevan\u2019s Freedom Square from 20 February onwards by the supporters of the main opposition candidate. On 1 March 2008 the assembly at Freedom Square was dispersed by the police. The applicant, who was present at Freedom Square at that time, was arrested and later charged under Article 316 \u00a7 1 of the Criminal Code (CC) with assaulting police officers.<\/p>\n 6.\u00a0\u00a0On 4 March 2008 the Kentron and Nork-Marash District Court of Yerevan ordered the applicant\u2019s pre-trial detention for a period of two months, namely until 1 May 2008, on the ground that the applicant, if at large, might abscond and obstruct the investigation by exerting unlawful influence on the persons involved in the criminal proceedings.<\/p>\n 7.\u00a0\u00a0On 10 March 2008 the applicant lodged an appeal, arguing that there was no evidence to substantiate the need for his detention. He was a former high-ranking police officer and a law-abiding citizen who enjoyed trust and respect in society.<\/p>\n 8.\u00a0\u00a0On 21 March 2008 the Criminal Court of Appeal dismissed the appeal, finding that the fact that the applicant was accused of a grave offence punishable by up to ten years\u2019 imprisonment increased the probability of his evading criminal liability and punishment and was sufficient to conclude that the applicant, if at large, might commit a new offence. As to the applicant\u2019s good character, mentioned by him in his appeal, this was not sufficient for lifting the detention order.<\/p>\n 9.\u00a0\u00a0On 29 April 2008 the indictment was finalised and the applicant\u2019s case was sent to court for trial. The applicant remained in detention by virtue of Article 138 \u00a7 3 of the Code of Criminal Procedure (CCP).<\/p>\n 10.\u00a0\u00a0On 13 May 2008 the District Court decided to set the case down for trial, ruling in the same decision that the applicant\u2019s detentionwas to remain unchanged. That decision was not subject to appeal.<\/p>\n 11.\u00a0\u00a0On 11 June 2008 the District Court found the applicant guilty under Article 316 \u00a7 1 of the CC of assaulting police officers and sentenced him to a suspended term of one and a half years\u2019 imprisonment.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 12.\u00a0\u00a0For a summary of the relevant domestic provisions see the judgments in the cases of Poghosyan v. Armenia (no. 44068\/07, \u00a7\u00a7 26-41, 20 December 2011) and Ara Harutyunyan v. Armenia (no. 629\/11, \u00a7\u00a7\u00a030\u201132, 20 October 2016).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 \u00a7 1 OF THE CONVENTION<\/p>\n 13.\u00a0\u00a0The applicant complained that his detention between 1 and 13 May 2008 had not been authorised by a court and had therefore been unlawful. He relied onArticle 5\u00a7 1 of the Convention which, in so far as relevant, reads as follows:<\/p>\n \u201c1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 14.\u00a0\u00a0The Government submitted that the applicant had failed to exhaust the domestic remedies. In particular, he had not applied to either the administration of the detention facility or the trial court with a request to be released on the ground that his detention was unlawful. He had also failed to raise that issue in his appeals lodged with the Criminal Court of Appeal and the Court of Cassation against his conviction of 11 June 2008 by the District Court.<\/p>\n 15.\u00a0\u00a0The Government further submitted that this complaint should be declared inadmissible because the applicant had not suffered a significant disadvantage. They argued, in particular, that the issue in question was of no subjective significance for the applicant, taking into account his inactive conduct at the domestic level in respect of the detention in question.<\/p>\n 16.\u00a0\u00a0The applicant did not comment on the Government\u2019s claims.<\/p>\n 1.\u00a0\u00a0As regards non-exhaustion of domestic remedies<\/em><\/p>\n 17.\u00a0\u00a0The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 \u00a7 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113\/99 et al., ECHR\u00a02010). The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Paksas v. Lithuania [GC], no.\u00a034932\/04, \u00a7 75, ECHR 2011 (extracts)). It is incumbent on the Government claiming non\u2011exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant\u2019s complaints and offered reasonable prospects of success (see Kennedy v. the United Kingdom, no.\u00a026839\/05, \u00a7 109, 18 May 2010). Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case (see Selmouni v.\u00a0France [GC], no. \u00a025803\/94, \u00a7 76, ECHR 1999\u2011V).<\/p>\n 18.\u00a0\u00a0The Court notes that in all the cases referred to by the Government, in which the applicants had lodged requests for release with the administration of the detention facility or the trial court on the ground that their detention, as authorised by a court, had expired and was no longer lawful, the requests in question produced no results and were systematically refused by the said authorities with a mere reference to Article 138 \u00a7 3 of the CCP (see Poghosyan, cited above, \u00a7\u00a7 15, 17, 18 and 21; Piruzyan v.\u00a0Armenia, no. 33376\/07, \u00a7\u00a7 27-29, 26 June 2012; and Malkhasyan v.\u00a0Armenia, no. 6729\/07, \u00a7\u00a7 38-39, 26 June 2012). It therefore cannot be said that the remedies in question offered reasonable prospects of success and were effective. As regards the argument that the applicant had failed to raise the question of alleged unlawfulness of his detention in his appeals against his conviction, the Court notes that the appeals in question are of no relevance for the applicant\u2019s complaint under Article 5 \u00a7 1 of the Convention since they did not concern his detention but rather his conviction at first instance. In sum, there are no grounds to allow the Government\u2019s non-exhaustion objection.<\/p>\n 2.\u00a0\u00a0As regards the absence of a \u201csignificant disadvantage\u201d<\/em><\/p>\n 19.\u00a0\u00a0As regards the Government\u2019s claim that the applicant had not suffered a significant disadvantage, the Court reiterates that this admissibility criterion hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed, taking account of both the applicant\u2019s subjective perceptions and what is objectively at stake in a particular case (see Bannikov v. Latvia, no.\u00a019279\/03, \u00a7 57, 11 June 2013).<\/p>\n 20.\u00a0\u00a0The Court notes that the present complaint concerns the applicant\u2019s detention between 1 and 13 May 2008 which, as he alleged, was unlawful. It therefore concerns a matter of principle for the applicant, namely his right under Article 5 \u00a7 1 of the Convention not to be deprived of his liberty (see, mutatis mutandis, \u010camans and Timofejevav. Latvia, no. 42906\/12, \u00a7 80, 28\u00a0April 2016). The Court hasreiterated on many occasions the importance of personal liberty in a democratic society (see Storck v. Germany, no.\u00a061603\/00, \u00a7 102, ECHR 2005\u2011V, and Stanev v. Bulgaria [GC], no.\u00a036760\/06, \u00a7 120, ECHR 2012). The fact that the applicant did not pursue remedies which, as already noted above, had no prospects of success does not suggest that the matter was of no significance to the applicant. The Court therefore considers that it has not been established that the applicant has not suffered a significant disadvantage and dismisses the Government\u2019s objection.<\/p>\n 21.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 22.\u00a0\u00a0The applicant submitted that his detention between 1 and 13 May 2008 had not been authorised by a court as required by law and had therefore been unlawful. During that period he had been kept in detention by virtue of Article 138 \u00a7 3 of the CCP, which could not be considered as a valid and lawful ground.<\/p>\n 23.\u00a0\u00a0The Government did not submit any observations on the merits.<\/p>\n 24.\u00a0\u00a0The Court notes that it has already examined an identical complaint in another case against Armenia, in which it concluded that there had been a violation of Article 5 \u00a7 1 of the Convention in that the applicant\u2019s detention had not been based on a court decision and had therefore been unlawful within the meaning of that provision (see Poghosyan, cited above, \u00a7\u00a7\u00a056\u201164). It sees no reason to reach a different conclusion in the present case and concludes that the applicant\u2019s detention between 1 and 13 May 2008 was unlawful within the meaning of Article 5 \u00a7 1.<\/p>\n 25.\u00a0\u00a0There has accordingly been a violation of Article 5 \u00a7 1 of the Convention.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 \u00a7 3 OF THE CONVENTION<\/p>\n 26.\u00a0\u00a0The applicant complained that the domestic courts had failed to provide relevant and sufficient reasons for his detention. He relied on Article 5\u00a0\u00a7 3 of the Convention, which, in so far as relevant, reads as follows:<\/p>\n \u201c3. Everyone arrested or detained in accordance with the provisions of paragraph\u00a01\u00a0(c) of this Article shall be … entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 27.\u00a0\u00a0The Government submitted that the applicant had failed to exhaust the domestic remedies. Firstly, he had not lodged an appeal on points of law against the decision of the Criminal Court of Appeal of 21 March 2008, a right which he enjoyed under Article 403 of the CCP. Secondly, after the trial court decided on 13 May 2008 to set the case down for trial and to keep the applicant in detention, he had the right under Article 136 of the CCP to lodge a request for release on bail which he had failed to do (see Martirosyan v. Armenia, no. 23341\/06, \u00a7 44, 5 February 2013).<\/p>\n 28.\u00a0\u00a0The applicant, referring to the case of Grigoryan v. Armenia (no.\u00a03627\/06, \u00a7\u00a771-73 and 113-114, 10 July 2012), submitted that an appeal on points of law was not an available and effective remedy.<\/p>\n
\nKsenija Turkovi\u0107,
\nTim Eicke, judges,
\nand Renata Degener, Deputy Section Registrar,<\/p>\n