Communicated on 18 June 2018

FIRST SECTION

Application no. 2439/18 Shoukat Gholamnabi AMINZE and Sediqullah Sangin Mohammad ALIZADA against Armenia lodged on 30 December 2017

SUBJECT MATTER OF THE CASE

Only the complaints of the applicant Alizada must be communicated, since the applicant Aminze did not lodge an appeal on points of law against his conviction and thereby failed to exhaust the domestic remedies.

As regards the applicant Alizada , he is an Afghan asylum seeker who was convicted under Article 329 § 2 of the Criminal Code for illegal border crossing , despite an exception contained in paragraph 3 of that Article, according to which that Article should not apply in case of asylum seekers. A question of foreseeability of the applicant ’ s conviction therefore arises under Article 7 of the Convention.

The applicant Alizada also complains of the lack of access to a court, as the appeal on points of law against his conviction was declared inadmissible by the Court of Cassation for formal grounds. In particular, while the decision of the Criminal Court of Appeal was served on the applicant belatedly, the Court of Cassation calculated the time-limit for lodging an appeal on points of law from the date of the pronouncement of that decision, contrary to the case-law of the Constitutional Court. [1] In addition, the Court of Cassation reasoned that the applicant had failed to file a formal request for restoration of the time-limit for lodging an appeal, even though the domestic law did not prescribe any particular form for such a request and the applicant had already indicated in his appeal on points of law about the late service of the contested decision.

QUESTIONS tO THE PARTIES

1. Was the refusal of the Court of Cassation to admit the appeal on points of law of the applicant Alizada compatible with the requirements of Article 6 § 1 of the Convention, in view of the fact that a copy of the decision of the Criminal Court of Appeal of 9 June 2017 was served on the applicant only on 30 June 2017 and given the relevant case-law of the Constitutional Court?

2. Was the conviction of the applicant Alizada under Article 329 § 2 of the Criminal Code compatible with the requirements of Article 7 of the Convention ( see, for example, Vasiliauskas v. Lithuania [GC], no. 35343/05, §§ 153-155, 20 October 2015 )? In particular, was his conviction under that Article compatible with the requirement of “foreseeability” given the limitation on the scope of application of Article 329 contained in paragraph 3 of that Article?

[1] The essence of the case-law of the Constitutional Court on the subject is that the right of appeal becomes meaningless, if the appellant does not have access to the full text of the contested judicial act. It further states that the appellants are entitled to at least 27 days for lodging an appeal on points of law, starting from the date of receipt of the contested decision.