Communicated on 21 April 2020 Published on 15 June 2020

FIRST SECTION

Application s no s . 4892/16 and 24052/16 Kim MINASYAN against Armenia and Vardan GERAVETYAN against Armenia

Statement of Facts

The applicant in the first case, Mr Kim Minasyan (the first applicant), and the applicant in the second case, Mr Vardan Geravetyan (the second applicant), are Armenian nationals who were born in 1991 and 1962 respectively and live in Yerevan. They are represented before the Court by Mr T. Yegoryan , Mrs L. Hakobyan and Mrs G. Petrosyan , lawyers practising in Yerevan.

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

On 24 August 2013 the applicants took part in a protest against a construction project in one of the districts of Yerevan. It appears that at first the protest was held on the pavement in front of the construction site, but later a group of participants, including the applicants, went out and either sat or stood on the road, blocking the traffic on Komitas Avenue for about 50 minutes. According to the findings of the domestic courts, which are contested by the applicants, they were ordered by the police officers present at the scene to leave the road, but failed to comply with the order and were taken to the police station.

According to a police report, on 24 August 2013 at around 5 p.m. the first applicant was “brought in” to Arabkir Police Station for “disobeying a lawful order of the police”. It appears that at 5.45 p.m. he was transferred to Nor Nork Police Station, where a record of an administrative arrest ( արձանագրություն վարչական ձերբակալման մասին ) was drawn up stating that he was subjected to administrative arrest for “disobeying the lawful orders of police officers”.

According to another police report, on the same day at 4.05 p.m. the second applicant was “brought in” to Arabkir Police Station for “disobeying a lawful order of the police”. Shortly afterwards a record of “bringing a person in to a police station” ( արձանագրություն բաժին բերելու մասին ) was drawn up. Notably, the record specified that the applicant had been “brought in” to the police station for the purpose of drawing up a record of an administrative offence under Article 182 of the Code of Administrative Offences (CAO).

A record of an administrative offence was drawn up with respect to each applicant. In both cases it was specified that “[the applicants] disobeyed the lawful order of the police officers as provided by Article 182 of the CAO”. The second applicant noted in the record that he had been sitting on the pedestrian crossing on the street when a police officer, K.M., had approached him and, without giving him any orders, said “Take this one away”. He had then voluntarily gone to sit in the police car without offering any resistance.

It appears from the materials of the case that both applicants were presented with a notification regarding their rights. It further appears that the first and the second applicants were released at 7.20 p.m. and 7.05 p.m. respectively.

On 26 August and 6 September 2013 written statements were taken from two police officers, who testified that on 24 August 2013 the protesters had sat on the pedestrian crossing and had blocked the traffic at the Komitas ‑ Gyulbenkyan intersection, notwithstanding the order of the police to leave the road. The traffic disruption had lasted around 50 minutes and the offenders were ultimately “brought in” to different police stations. During the testimony, police officer K.M. was shown a video recording of the protest and identified the second applicant as one of the protesters who had failed to obey the order of the police to stop blocking the traffic.

On 9 and 10 September 2013 the police lodged two separate claims with the Administrative Court seeking to impose an administrative penalty on each of the applicants. They submitted that the applicants, together with other protesters, had sat on the pedestrian crossing at the intersection of Komitas and Gyulbenkyan streets, thereby blocking the traffic on Komitas street, and refused to comply with the police officers ’ lawful orders to leave the pedestrian crossing and stop blocking the traffic, which lasted about 50 minutes.

On 13 November 2013 and 8 January 2014 the second and the first applicants respectively lodged counter-claims against the police under Article 69 of the Code of Administrative Procedure (CAP), which they later supplemented on 22 and 29 May 2014 respectively, complaining, inter alia , about the circumstances of their deprivation of liberty. Both applicants claimed that they had been given no reasons for their deprivation of liberty. The first applicant also complained that he had been kept at police stations for about 3-4 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 for longer in police custody. The second applicant also complained that 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. The record did not mention what measures had been taken to establish his identity on the spot or the reasons why it had not been possible to do so. If the aim of taking him to a police station had been to draw up the record, nothing had prevented them from doing so on the spot. Thus, their aim had been simply to prevent his participation in the rally.

On 22 July 2014 and 19 February 2015 the Administrative Court adopted in each case its judgment, granting the claims of the police and rejecting those of the applicants. Relying on a video recording of the contested events, the Administrative Court held that the participants in the protest, including the applicants, had obstructed traffic on Komitas Avenue by standing and sitting on the road and had disobeyed the lawful orders of the police officers to stop blocking the street and not to obstruct traffic, finding that they had thereby committed an offence under Article 182 of the CAO, and imposing a fine of 50,000 Armenian drams on each applicant. As regards the first applicant ’ s deprivation of liberty, the Administrative Court noted that he had been “brought in” to Arabkir Police Station at 5 p.m. and afterwards, at around 5.45 p.m., had been transferred to Nor Nork Police Station and had been released at 7.20 p.m. The applicant had thus been kept in custody for a total of two hours and twenty minutes and his transfer from one police station to another had been justified. As regards the second applicant ’ s deprivation of liberty, the Administrative Court concluded that the police actions had been in compliance with the requirements of Article 258 of the CAO since there had been no possibility to draw up the record of an administrative offence on the spot in the circumstances of a large and chaotic protest rally.

On various dates the applicants lodged appeals. The first applicant submitted, inter alia , that his transfer from one police station to another on the ground of an administrative arrest had not been justified, considering that he had been taken to the police station under the “bringing-in” procedure, which allowed a maximum one-hour stay in custody. This had been done in order to extend unlawfully his stay in custody and consequently the maximum allowed one-hour time-limit had been breached. The second applicant reiterated his submissions regarding the failure to draw up the record of an administrative offence on the spot. Both applicants complained that they had been given no reasons for their arrest.

On 11 February and 23 June 2015 the Administrative Court of Appeal upheld the judgments of the Administrative Court in the first and the second applicant ’ s cases respectively and rejected their appeals. As regards the first applicant, the Administrative Court held that the applicant had been kept in custody for a total of two hours and twenty minutes and his deprivation of liberty had therefore complied with Article 262 of the CAO. As regards the second applicant, the Administrative Court held that domestic law allowed the taking into custody of a person where it was impossible to draw up the record of an administrative offence on the spot and therefore his deprivation of liberty had been lawful.

On 21 May 2015 the first applicant lodged an appeal on points of law which was declared inadmissible for lack of merit by the Court of Cassation on 1 July 2015.

On 29 July 2015 the second applicant lodged an appeal on points of law. In his appeal he requested, inter alia , that the reason for missing the one ‑ month time-limit for appeal be considered valid since a copy of the decision of the Administrative Court of Appeal of 23 June 2015 had been served on him only on 29 June 2015; he argued that the one-month time ‑ limit was to be calculated from that date. Attached to the second applicant ’ s appeal was proof that he had provided a copy to the opposing party and the lower court, namely the police and the Administrative Court of Appeal respectively, as required by Article 158 § 5 of the CAP.

On 2 September 2015 the Court of Cassation returned the second applicant ’ s appeal on points of law for failure to pay the court fee and set a three-day time-limit to fix that shortcoming and re-submit the appeal.

On 28 September 2015 the applicant re-submitted the appeal on points of law, after having paid the court fee as instructed by the Court of Cassation.

On 14 October 2015 the Court of Cassation left the second applicant ’ s appeal on points of law without examination, concluding that he had failed to lodge the appeal within the statutory time-limit. In particular, the Court of Cassation held that the one-month time-limit for lodging an appeal on points of law prescribed by Article 148 of the CAP started to run from the moment the Court of Appeal had pronounced its decision and the fact that a copy had been served on the applicant on 29 June 2015 was not a valid reason to miss the one-month time-limit. The Court of Cassation further noted that the applicant had also made a new error, namely he had failed to attach proof that he had provided a copy of his re-submitted appeal to the police and the lower court (attached to his appeal was proof of providing copies only of his initial appeal to the police and the lower court).

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 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 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 short 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 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.

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 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 the 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 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 prescribed time-limit, if a request was submitted to restore the time-limit and the court allowed it.

Article 158 § 5 provides that a document certifying the payment of State duty in the manner and amount prescribed by law, evidence showing that copies of the appeal have been sent to the court which has heard the case and to the parties to the proceedings, and an electronic version (electronic data storage device) of the appeal shall be enclosed with the appeal.

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.

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 ground 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 the 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 3 and Article 160 § 1 of the CAP, 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 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 the receipt of the contested judicial act to the relevant judicial body.

COMPLAINTS

The first applicant complains under Article 5 § 1 of the Convention that his deprivation of liberty at various police stations was arbitrary. In particular, he was first “brought in” and kept at one police station, but then transferred to another station under the administrative arrest procedure in order to justify his deprivation of liberty in excess of one hour.

The second applicant complains under Article 5 § 1 of the Convention that the police officers did not try to establish his identity and to prepare the record of an administrative offence on the spot since their aim was to prevent his participation in the rally.

Both applicants complain under Article 5 § 2 of the Convention that they were not informed about the reasons for their arrest.

The second 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 was unjustified. In particular, the refusal to allow the reasons for missing the one-month time-limit for appeal was in breach of the Constitutional Court ’ s decisions and the requirement to provide copies of the same appeal was unreasonable.

QUESTIONS TO THE PARTIES

1. Were the proceedings instituted by the applicants on 13 November 2013 and 8 January 2014 an effective remedy within the meaning of Article 35 § 1 of the Convention in respect of their complaints under Article 5 §§ 1 and 2 of the Convention? In this context, the Government are specifically requested to explain what kind of redress the applicants could obtain as a result of those proceedings in respect of their 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 applicants ’ deprivation of liberty on 24 August 2013 compatible with the requirements of Article 5 § 1 of the Convention ? As regards the first applicant, was his “bringing-in” to one police station and then his transfer to another police station under the administrative arrest procedure lawful within the meaning of that Article? As regards the second applicant, was his 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) Were the applicants informed promptly of the reasons for their arrest, as required by Article 5 § 2 of the Convention?

3. Was the refusal of the Court of Cassation to examine the second applicant ’ s appeal on points of law on the grounds indicated in its decision of 14 October 2015 in breach of the second applicant ’ s right of access to court guaranteed by Article 6 § 1 of the Convention?