Published on 13 December 2021

FOURTH SECTION

Application no. 26897/18 Armen ABROYAN against Armenia lodged on 28 May 2018 communicated on 24 November 2021

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s arrest on 23 June 2014 at the site of a protest rally for his failure to comply with a police order not to block a public road, and the refusal of the domestic courts to examine his application contesting the circumstances of his arrest. The police justified the applicant’s arrest – which allegedly exceeded the statutory time-limit of three hours – with reference to Articles 258 and 259 of the Code of Administrative Offences (“CAO”). Thereafter the police applied to the Administrative Court seeking to impose an administrative penalty on the applicant under Article 182 (failure to comply with a lawful order of a police officer) of the CAO.

Then, on 18 February 2015 the applicant lodged a counter-claim against the police under Article 69 of the Code of Administrative Procedure (“CAP”), seeking to have the police actions declared unlawful. In particular, it appears that he contested both the lawfulness of the police order not to block a public road and the lawfulness of his arrest for failing to comply with this order. As regards his legal standing required under Article 69 of the CAP, the applicant submitted that, given his active engagement in public matters, there was a risk that the police would resort to similar measures during future demonstrations. Moreover, he intended to claim damage as a result of the alleged unlawful actions of the police.

On 16 June 2016 the Administrative Court dismissed the application of the police as unfounded for lack of evidence. It also refused to examine the merits of the applicant’s counter-claim for lack of legal standing. The court reasoned that the applicant had failed to demonstrate a risk of similar actions by the police in future demonstrations and to indicate the damage suffered, as required by that Article. This decision was upheld by the higher judicial instances and the final court decision was served on the applicant on 28 November 2017.

QUESTIONS TO THE PARTIES

1. Were the proceedings instituted by the applicant on 18 February 2015 an effective remedy within the meaning of Article 35 § 1 of the Convention in respect of his complaints under Articles 5 § 1 and 11 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 complaints under those Articles, as well as to submit examples of relevant domestic case-law and practice.

2. Assuming that the proceedings in question were an effective remedy:

(a) 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 having committed an administrative 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, 15 November 2018; Makhmudov v. Russia , no. 35082/04, §§ 80-86, 26 July 2007; and Berkman v. Russia , no. 46712/15, §§ 34-38, 1 December 2020)?

The Government are requested to indicate the time of the applicant’s release from the police custody.

(b) Did the applicant’s arrest violate his right to freedom of assembly, contrary to Article 11 of the Convention (see Navalnyy , §§ 103 and 128, and Berkman , §§ 48 and 59-62, both cited above)?

3. Was the refusal of the domestic courts to examine the applicant’s counter-claim of 18 February 2015 in breach of his right of access to court for the determination of his civil rights and obligations, guaranteed by Article 6 § 1 of the Convention (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, §§ 84-89, 29 November 2016)?