Published on 21 March 2022

FOURTH SECTION

Applications no. 65716/16 Avag SARGSYAN against Armenia lodged on 9 October 2016 communicated on 1 March 2022

STATEMENT OF FACTS

The applicant, Mr Avag Sargsyan, is an Armenian national, who was born in 1987 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 23 June 2014 the applicant participated in a protest rally against a rise in electricity prices, which had originally been planned to be held in front of the building of the Public Services’ Regulatory Commission (“PSRC”). It appears that the police closed the road leading to the PSRC building and several demonstrators walked onto the carriageway of the street in front and, as a sign of protest, blocked the road. It further appears that the police eventually dispersed the rally by arresting some of the participants, including the applicant.

At 2.10 p.m. the applicant was taken to a police station where a record of an administrative offence was drawn up, according to which he had blocked the carriageway of the street and had failed to comply with a lawful order of a police officer to open it, thereby committing an offence under Article 182 of the Code of Administrative Offences (“CAO”).

On 21 August 2014 the police applied to the Administrative Court seeking to impose a penalty on the applicant for failure to comply with a lawful order of a police officer under Article 182 of the CAO.

On 20 January 2015 the applicant lodged a counter-claim against the police, relying on Article 69 of the Code of Administrative Procedure (“CAP”), in which he complained, inter alia , about the circumstances of his arrest from the site of the rally, invoking Articles 5 and 11 of the Convention. The applicant submitted that his deprivation of liberty had been aimed at preventing his participation in the rally. The police officers had made no attempts to establish his identity and to draw up the administrative offence record on the spot. The applicant also argued that, even if he had been arrested for blocking the road, such behaviour had been lawful and a manifestation of the right to freedom of assembly.

On an unspecified date the police officer who had arrested the applicant testified in court that, although he did not remember giving orders to the applicant, the police had repeatedly requested the protesters over a loudspeaker to open the road. Since they had failed to comply, the police officers had arrested them.

On 19 June 2015 the Administrative Court allowed the application of the police, imposing a fine on the applicant for the sum of 50,000 Armenian drams, and rejected the applicant’s counter-claim. The court found it established that the applicant had blocked the street and had failed to comply with the lawful order of the police to clear the road thereby committing an administrative offence specified under Article 182 of the COA. As regards his counter-claim, the court noted that the police had had sufficient factual and legal grounds to arrest the applicant and to institute administrative proceedings against him. The actions of the police had been justified and dictated by the need to protect public order and restore the rule of law and could not be considered as infringing the applicant’s right to liberty and to freedom of assembly. As regards the legal basis for the applicant’s arrest, under the Constitution deprivation of liberty was allowed, inter alia , to secure the fulfilment of any obligation prescribed by law, in this case drawing up an administrative offence record under Article 259 of the CAO. Moreover, given the chaotic situation during the protest, the police could not have reasonably drawn up an administrative offence record on the spot – the applicant’s arrest, which did not exceed the three-hour time-limit, had thus been lawful.

On 20 July 2015 the applicant appealed against this decision raising similar arguments as before. At the same time, he submitted a request seeking exemption from payment of court fees, known as State fees, on the basis of section 22(i) of the State Fees Act (“the Act”). Alternatively, relying on section 21 of the same Act, he asked the court to defer the payment of the fees since appellants’ right of access to a court, as enshrined under Article 6 of the Convention, could not be restricted on formalistic grounds.

On 7 August 2015 the Administrative Court of Appeal decided to grant the applicant’s request regarding court fees. It noted, in particular that, under section 22 of the Act, the applicant was exempt from the payment of court fees in as much as his counter-claim was concerned and the deferral should therefore be allowed in respect of the proceedings against him.

On 23 December 2015 the Administrative Court of Appeal rejected the applicant’s appeal and upheld the judgment of the Administrative Court.

On 29 January 2016 the applicant lodged an appeal on points of law. At the same time, he submitted the same request as he did before the Court of Appeal seeking either exemption from or deferral of payment of court fees.

On 24 February 2016 the Court of Cassation returned the applicant’s appeal without examining it since he had failed to submit any information about his financial situation while requesting deferral of payment of the court fees. The Court of Cassation set a time-limit for the applicant to rectify this error and to submit his appeal anew.

On 16 March 2016 the applicant reintroduced his appeal. At the same time, he submitted the same request in respect of court fees as before.

On 30 March 2016 the Court of Cassation left the applicant’s appeal without examination, relying on Article 160 § 1(5) of the CAP. It noted, in particular, that the applicant had submitted the same deferral request and had once again failed to provide any evidence about his financial situation. He had therefore submitted an appeal on points of law on the same grounds upon which the Court of Cassation had already taken a decision. This decision was served on the applicant on 9 April 2016.

Article 16 of the Constitution provided, at the material time, that everyone enjoyed the right to personal liberty and security. A person could be deprived of his or her liberty in cases and in accordance with a procedure prescribed by law. The law could provide for deprivation of liberty only in the following cases:

(1) conviction of a person of a crime by a competent court;

(2) failure of a person to comply with a final court order;

(3) in order to secure the fulfilment of certain obligations prescribed by law;

(4) when there is a reasonable suspicion that a person has committed a crime, or when it is necessary to prevent a person from committing a crime or fleeing after having done so;

(5) for the purpose of placing a minor under educational supervision or bringing him or her before another competent authority;

(6) for the purpose of preventing the spread of infectious diseases, or the social danger emanating from persons of unsound mind, alcoholics, drug addicts, or vagrants;

(7) for the purpose of preventing a person’s unauthorised entry into the Republic of Armenia, or his or her deportation or extradition.

For the 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.

Article 160 § 1(5) of the CAP provides that an appeal on points of law shall be left without examination if the Court of Cassation has already taken a decision in the same case within the grounds indicated in the appeal.

Section 21 of the State Fees Act lists concessions that may be granted in respect of State fees, including an exemption from payment of a State fee and a deferral of payment of a State fee.

Section 22(i) provides that non-commercial organisations and physical persons shall be exempt from payment of State fees, inter alia , in respect of appeals against decisions on administrative offences taken by relevant authorised bodies. They shall also be exempt from payment of State fees in respect of appeals and appeals on points of law against judgments and decisions of the courts.

COMPLAINTS

1. The applicant complains under Article 5 § 1 of the Convention that his administrative arrest was unlawful and unjustified in terms of Article 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 as their aim was to prevent his participation in the rally. He also submits that his arrest did not fall under any of the exceptions to the right to liberty permitted by Article 16 of the Constitution.

2. The applicant also complains under Article 6 § 1 of the Convention that the refusal of the Court of Cassation to examine his appeal on points of law of 16 March 2016 violated his right of access to a court. In particular, despite his being exempt by law from the payment of court fees and his deferral request, the Court of Cassation left his appeal on points of law without examination.

3. Lastly, the applicant complains under Articles 10 and 11 of the Convention that he took part in a peaceful protest and that his arrest and subsequent punishment were unlawful and not necessary since he did not commit any reprehensible act.

QUESTIONS TO THE PARTIES

1. Were the proceedings instituted by the applicant on 20 January 2015 an effective remedy within the meaning of Article 35 § 1 of the Convention in respect of his complaint under Article 5 § 1 of the Convention? In this context, the Government are specifically requested to explain what kind of redress the applicant might obtain as a result of those proceedings in respect of his complaint 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 the relevant domestic case-law and practice.

2. Assuming that the proceedings in question were an effective remedy, was the applicant’s deprivation of liberty on 23 June 2014 compatible with the requirements of Article 5 § 1 of the Convention? In particular, was it in conformity with the Constitution and the CAO, and was it necessary in the circumstances?

3. Was the refusal of the Court of Cassation to examine the applicant’s appeal on points of law in breach of his right of access to court guaranteed by Article 6 § 1 of the Convention?

4. Has there been a violation of the applicant’s right to freedom of peaceful assembly, contrary to Article 11 of the Convention, taken alone and read in the light of Article 10 of the Convention?