Communicated on 29 September 2020 Published on 19 October 2020

F IRST SECTION

Application no. 19579/16 Vartgez GASPARI against Armenia lodged on 1 April 2016

STATEMENT OF FACTS

The applicant, Mr Vartgez Gaspari , is an Armenian national who was born in 1957 and lives in Yerevan. He is represented before the Court by Mr T. Yegoryan , Ms L. Hakobyan and Ms G. Petrosyan , lawyers practising in Yerevan.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 2 December 2013 a state visit of the Russian President to Yerevan triggered a protest rally against the accession of Armenia to the Eurasian Customs Union. The applicant participated in this protest, which was followed by a march of protesters to the President ’ s Office, where the Russian President was received. It appears that at around 2.20 p.m. the applicant, together with other protesters, continued to march on the carriageway of Amiryan Street. According to the findings of the domestic courts , which are contested by the applicant, the protesters disrupted the traffic on Amiryan Street for a considerable time by walking on the carriageway. Even though the police officers repeatedly requested them to desist from blocking the road, the protesters, including the applicant, failed to comply with their lawful orders and the applicant was therefore taken to a police station.

At the police station, the officer effecting the applicant ’ s “bringing-in” reported to the Chief of the Kentron Police Station of Yerevan that:

“... on 2 December 2013 at around 2.20 p.m. we were on duty on Amiryan Street. We noticed a group of people who were making a noise and had blocked the carriageway. We approached them and asked them to keep quiet and leave the carriageway in order not to obstruct the traffic. They disobeyed our lawful orders and continued with the same behaviour. Therefore, one person, [the applicant], was “brought in” to the police station...”

At 4.45 p.m. another police officer drew up a record of the applicant ’ s “bringing-in” and arrest ( արձանագրություն իրավախախտում կատարած անձի բերումը և վարչական ձերբակալումը իրականացնելու մասին ), in which it was stated that on 2 December 2013, at 2.30 p.m., the applicant had been arrested for committing an administrative offence under Article 180.1 § 15 of the Code of Administrative Offences (“CAO”). The applicant undersigned the relevant document, noting that he had not checked the accuracy of the content.

The applicant was presented with a notification regarding his rights, according to which he had been deprived of his liberty at 2.20 p.m.

At 5 p.m. the same police officer drew up a record of an administrative offence, in which it was restated that on the same day at 2.20 p.m. the applicant had failed to comply with the lawful order of the police for ensuring the peaceful and normal course of the protest. His actions were classified under Article 180.1 § 15 of the CAO. The applicant wrote under the record that he did not accept the charges.

It appears that at 5.20 p.m. the police officer prepared a record on taking a written statement from the applicant ( արձանագրություն բացատրություն վերցնելու մասին ) , where the latter refused to respond to questions concerning the contested events and requested a copy of all the documents drawn up that day. It appears that the applicant was released at 5.50 p.m.

On 1 February 2014 the police lodged an application with the Administrative Court seeking to impose an administrative penalty on the applicant under Article 180.1 § 15 of the CAO. They submitted, in particular, that during the protest march the applicant, together with other protesters, had disrupted the traffic on Amiryan Street – causing traffic to be brought to a halt for quite some time – by stepping onto the carriageway, and had failed to comply with repeated orders from the police to stop the unlawful actions, that is to leave the carriageway and not to disrupt public order. Since it had been necessary to ascertain the identity of that more active and aggressive person and to draw up a record of an administrative offence, which could not be done on the spot, the applicant had been taken to Kentron Police Station where a relevant record had been drawn up. They reasoned that the applicant had committed an offence prescribed under Article 180.1 § 15 of the CAO by failing to comply with the lawful orders of the police for ensuring the peaceful and normal course of the protest.

On 17 July 2014 the applicant lodged a counter-claim against the police under Article 69 of the Code of Administrative Procedure ( “ CAP ” ), which he later supplemented on 26 September 2014, complaining, inter alia , of the circumstances of his deprivation of liberty and the alleged violation of his right to freedom of assembly. The applicant submitted that he had been kept at the police station for around 4 hours, which was neither a criminal nor an administrative type of procedure. Preparing the record of an administrative offence required only about 30 minutes, therefore it had not been necessary to keep him in police custody any longer. Besides, the police officers had not made any attempt to establish his identity and to draw up the record of an administrative offence on the spot. If the purpose of taking him to a police station had been to draw up the record, there had been nothing to prevent them from doing so on the spot. Thus, their aim had been simply to prevent his participation in the rally. The applicant further argued that the police officers had had neither legal nor factual grounds to restrict his right to freedom of assembly. He stressed that even if he had to be arrested for marching on the street, such behaviour had been lawful and had been a form of expression of the right to freedom of assembly.

On 26 December 2014 the Administrative Court adopted its judgment on the merits, granting the claims of the police and rejecting those of the applicant. The Administrative Court noted that a balance should be maintained in the exercise of the rights of an individual and the rights of others. The obligation to maintain this balance was vested, on the one hand, with the State, which, through the relevant bodies (for example, the Police), ensures the preservation of public order, and, on the other hand, with an individual exercising his right to freedom of assembly, whereas other members of society, being in a passive state, could not bear such obligation. Relying on a video recording of the contested events and the materials of the administrative case, the Administrative Court found it established that the participants of the protest march, including the applicant, had stepped onto the carriageway and had thereby obstructed the traffic on Amiryan Street for a considerable time and had disobeyed the lawful orders of police officers to leave the carriageway. The applicant had “failed to maintain a fair balance between respecting public order and exercising his freedom of assembly”. The Administrative Court found that the applicant had therefore committed an offence under Article 180.1 § 15 of the CAO and fined him 50,000 Armenian drams. As regards the applicant ’ s counter ‑ claim, the court held that, owing to its conclusions about the unlawfulness of the applicant ’ s conduct, his deprivation of liberty had been lawful and had been dictated by the necessity to protect and restore public order.

On 16 February 2015 the applicant appealed against that judgment, inter alia, reiterating his submissions about the alleged violations of his right to liberty and right to freedom of assembly. The applicant also argued that the Administrative Court had placed the burden to observe the balance between the right to freedom of assembly and “the rights of others” exclusively on the protester and had failed to explain why “the rights of others” should prevail over his right to freedom of assembly.

On 8 July 2015 the Administrative Court of Appeal upheld the judgment of the Administrative Court and rejected the applicant ’ s appeal. In particular, the Court of Appeal noted that the applicant had been taken to the police station by virtue of Articles 258 and 259 of the CAO. Since under domestic law there was no specific criterion for determining the impossibility to draw up a record of an administrative offence on the spot, such determination was left to the discretion of a police officer. Relying on the video recording of the events, the Court of Appeal held that the impossibility of drawing up the relevant record on the spot had been justified by the chaotic situation. As regards the length of the applicant ’ s stay at the police station, according to the police logbook as well as a relevant extract provided by the police, “the applicant was placed under administrative arrest at 2.50 p.m. and was released at 5.50 p.m.” As to the alleged violation of his right to freedom of assembly, the Court of Appeal held that the very fact of holding a protest which the applicant had attended meant that his right to freedom of assembly had been ensured, which, however was limited by Section 5 § 1 of the Freedom of Assembly Act. Therefore, the commission of an administrative offence could not be justified by the guarantees of the right to freedom of assembly.

On 14 August 2015 the applicant lodged an appeal on points of law, which was declared inadmissible for lack of merit by the Court of Cassation ’ s decision on 2 September 2015.

Article 180.1 § 15 provides that disobeying the lawful orders of the police for ensuring the peaceful and normal course of a protest results in the imposition of a fine in the amount of 50 to 100 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 violating 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 necessary information about the offender. The “bringing-in” must be as brief as possible and may not last more than one hour.

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, of verifying 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.

Article 262 provides that an administrative arrest of a person who has committed an administrative offence may last no more than three hours. In exceptional circumstances, in case of special need, the USSR and Armenian legal acts may provide other time-limits for an administrative arrest.

The period of administrative arrest shall be calculated from the moment the offender was “brought in” for the purpose of drawing up a record of an administrative offence.

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 a 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.

Section 5 § 1 provides that the freedom of assembly could be restricted only when, in a democratic society, the preservation of national security and public order, the prevention of crime, or the protection of public health and morals (hereafter “public interests”), constitutional rights and freedoms of others (hereafter “constitutional rights of others”) prevail over the freedom of assembly.

COMPLAINTS

QUESTIONS TO THE PARTIES

1. Were the proceedings instituted by the applicant on 17 July 2014 an effective remedy within the meaning of Article 35 § 1 of the Convention in respect of his complaints under Article 5 § 1 of the Convention? In this context, the Government are specifically requested to explain what kind of redress the applicant could obtain as a result of those proceedings in respect of his complaints 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:

(a) Was the applicant ’ s deprivation of liberty on 2 December 2013 compatible with the requirements of Article 5 § 1 of the Convention? In particular, was the applicant ’ s deprivation of liberty necessary and lawful within the meaning of that Article (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 71-72, 15 November 2018)?

(b) Was the length of the applicant ’ s police custody compatible with the requirements of domestic law and therefore lawful within the meaning of Article 5 § 1 of the Convention ?

3. Has there been a violation of the applicant ’ s right to freedom of assembly, contrary to Article 11 of the Convention (see Galstyan v. Armenia , no. 26986/03, §§ 115-117, 15 November 2007; Ashughyan v. Armenia , no. 33268/03, § 93, 17 July 2008; and Navalnyy v. Russia , cited above, §§ 145-146 ) ?