Published on 26 September 2022

FOURTH SECTION

Application no. 73070/16 Argishti KIVIRYAN against Armenia lodged on 3 November 2016 communicated on 6 September 2022

STATEMENT OF FACTS

The applicant, Mr Argishti Kiviryan, is an Armenian national who was born in 1977 and lives in Yerevan. He is represented before the Court by Ms L. Sahakyan and Mr Y. Varosyan, lawyers practising in Yerevan.

From 26 July 2013 onwards sit-in protests were organised in front of the Yerevan Mayor’s Office against the increase in public transport fees and the cost of paid parking spaces.

On 1 August 2013 the applicant took part in such a sit-in protest. At around 12.30 p.m., together with several other protesters, he attempted to set up a tent on a lawn next to the steps leading to the main entrance to the Mayor’s Office, allegedly to take shelter in very hot and sunny weather conditions. In video footage submitted by the applicant it can be observed that a police officer explained to the applicant that, in order to erect a tent, he needed permission from the Mayor’s office since such action was in violation of Article 172.2 (violation of rules for use of public spaces) of the Code of Administrative Offences (“CAO”). Shortly afterwards, when the applicant apparently continued with his attempts to put up the tent, he was arrested and taken to a police station.

At the police station, a record of an administrative offence was drawn up in which it was stated that the applicant had attempted to erect a tent in front of the Mayor’s Office and had failed to comply with the lawful orders of a police officer regarding the rules for use of public spaces. The applicant’s actions were qualified under Article 182 of the CAO (failure to comply with a lawful order of a police officer). The applicant’s arrest in the police station lasted three hours.

On 26 September 2013 the police lodged an application with the Administrative Court seeking to impose an administrative fine on the applicant under Article 182 of the CAO. They submitted in particular that, during the protest, the police officers had made a lawful order, that is, they had ordered the applicant not to erect a tent, since the latter did not have permission to do so. However, the applicant had failed to comply with their lawful order and had thus committed an administrative offence under Article 182 of the CAO.

On an unspecified date the applicant lodged a counter-claim against the police submitting, inter alia , that by putting up a tent he had aimed to ensure his participation in the protest, bearing in mind the boiling hot weather. He pointed out that under domestic law there was no requirement to obtain permission for erecting a tent. Hence, the order of the police had not been lawful as required under Article 182 of the CAO. He also alleged a violation of his right to liberty since it had not been shown that his arrest and police custody – which had moreover exceeded the statutory time-limit of three hours – had been justified. In particular, the police had failed to show that it was impossible to draw up an administrative offence record on the spot, as required under both Article 258 and Article 259 of the CAO. The applicant submitted that the actions of the police, including his arrest, had breached his right to freedom of expression and freedom of assembly.

On 30 April 2015 the Administrative Court found the applicant guilty under Article 182 of the CAO and fined him 50,000 Armenian Drams. In reaching that conclusion the Administrative Court found that, despite police orders, the applicant had attempted to put up a tent on the green space adjacent to the Mayor’s Office, thereby violating public order and committing actions which, pursuant to, inter alia , section 18 of decree no. 623-N of the Yerevan City Council had amounted to unlawful use of green spaces. The police order had been lawful and in discharge of its duty to protect the Mayor’s office and its adjacent area. As regards the applicant’s counter-claim, the court noted that, owing to its conclusions about the police actions, the interference with the applicant’s right to liberty and right to freedom of assembly had been justified.

On 15 May 2015 the applicant appealed against this judgment complaining, inter alia , of the unlawfulness of the police order and alleging violations of his right to liberty and right to freedom of assembly.

On 30 March 2016 the Administrative Court of Appeal partly allowed his appeal. It found that even though the applicant’s arrest in the police station had not exceeded the three-hour time ‑ limit permitted by law, it had taken time for the police to bring him to the police station from the site of the rally; hence, the total duration of his police custody had been more than three hours. Besides, once the administrative arrest record had been drawn up his further police custody, even prior to the expiry of the said time-limit, had been unlawful since the purpose of his arrest had already been met. As regards his remaining claims, it upheld the judgment of the Administrative Court. Notably, relying on video footage of the incident, it found that the police had explained to the applicant that erecting a tent was not allowed, and that the police order had been lawful, as established by the Administrative Court. Moreover, the need to protect oneself from the sun could not justify setting up a tent on a green space. As regards the applicant’s arrest at the site of the rally, Article 258 § 1 of the CAO left it to the discretion of the police to assess whether an administrative offence record could be drawn up on the spot, and in any event conditions had not been appropriate for drawing up such a record at the site of the rally.

On 6 April 2016 the applicant lodged an appeal on points of law in which he reiterated his earlier submissions. The applicant also pointed out that, even assuming that the police order could have been justified by reference to decree no. 623-N of the Yerevan City Council, this legal ground had never been invoked by the police and hence could not be relied on retroactively by the courts to justify the lawfulness of that order.

On 4 May 2016 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit.

Article 172.2 of the Code of Administrative Offences provides that non ‑ compliance with restrictions on the use of streets, pavements, squares, public gardens, parks, stadia and other public spaces, envisaged by law or administrative decisions issued pursuant to law, results in a fine in the amount of 20 to 60 times the fixed minimum wage.

For other relevant provisions of the CAO and CAP see the Statement of Facts in the cases of Harutyunyan v. Armenia (no. 42793/15) and Kiviryan v. Armenia (no. 1593/16), communicated on 5 August 2021.

Section 18 lists a number of actions which are prohibited on green spaces, including damaging or destroying verdure or areas of vegetation, burning leaves, hay, or other actions posing a fire hazard, traffic or parking on green spaces, polluting the environment, and so on.

COMPLAINTS

1. The applicant complains under Article 5 § 1 of the Convention that his arrest amounted to an unlawful interference with his right to freedom of assembly. He had not committed any offence and the police order addressed to him was unlawful. Furthermore, his arrest was not effected in compliance with domestic law and was unlawful and unjustified in terms of Articles 258 and 259 of the CAO since the police did not try to establish his identity and to prepare the record of an administrative offence on the spot, and their only aim was to prevent his participation in the rally. Even if it were accepted that his arrest was justified to ensure his participation in the said administrative proceedings, most of his stay in police custody had nothing to do with those proceedings.

2. The applicant complains under Articles 10 and 11 of the Convention that he participated in a peaceful protest and his arrest and subsequent punishment were unlawful and not necessary in a democratic society.

QUESTIONS TO THE PARTIES

1. Was the counter-claim lodged by the applicant 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 ( Gavril Yosifov v. Bulgaria , no. 74012/01, § 41, 6 November 2008)? In this context, the Government are specifically requested to explain what kind of redress the applicant might obtain by making such a claim in respect of his complaints under that Article, as well as to submit examples of relevant domestic case ‑ law and practice.

2. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was the applicant’s deprivation of liberty based on a reasonable suspicion of his having committed an offence? Was it in conformity with domestic law, namely Articles 258 and 259 of the CAO, and was it necessary in the circumstances (see Navalnyy v. Russia [GC] , nos. 29580/12 and 4 others, §§ 71-72, and Berkman v. Russia , no. 46712/15, §§ 34-38, 1 December 2020)?

3. Has there been a violation of the applicant’s right to freedom of expression and freedom of peaceful assembly, contrary to Articles 10 and 11 of the Convention ( see, mutatis mutandis, Nemtsov v. Russia , no. 1774/11, § 76, 31 July 2014, and Navalnyy , cited above, § 145)?