Published on 6 December 2021

FOURTH SECTION

Application no. 1606/16 Vartgez GASPARI against Armenia lodged on 18 December 2015 communicated on 17 November 2021

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s arrest on 20 December 2013 at the site of a protest rally for his offensive remarks towards a police officer, and the subsequent administrative proceedings instituted against him. It appears that during the protest the police cordoned the demonstrators on a pavement. The applicant remonstrated with the police, calling them “bastards”, “scoundrels”, “dregs”, “hooligans”, “oligarchs’ shoe shine cloths” and “wimps”, and was arrested shortly after the police allowed the demonstrators to exit the cordon. The applicant’s deprivation of liberty was justified by reference to Articles 258 and 259 of the Code of Administrative Offences (“CAO”), which allowed one and three-hour-long police custody, respectively, for the purpose of, inter alia , drawing up an administrative offence record.

On 2 October 2014, upon an application by the police, the Administrative Court imposed a fine on the applicant under Article 172.3 (offending a police officer) of the CAO. It also dismissed the applicant’s counter-claim, lodged on 9 April 2014 , in which the applicant, in accordance with Article 69 of the Code of Administrative Procedure, had asked the court to declare the actions of the police unlawful. In particular, the applicant contested the lawfulness of his arrest, alleging that it had the purpose of preventing his participation in the rally. He also submitted that he had uttered the above remarks not at a particular police officer but the police at large .

The Court of Cassation, by its decision of 3 June 2015 (served on the applicant on 20 June 2015), left the applicant’s appeal on points of law against that judgment without examination as out-of-time. However, later the Constitutional Court, upon the applicant’s application, declared the calculation method of time-limits applied by the Court of Cassation incompatible with the constitutional provisions guaranteeing the right to a fair trial and the right to an effective remedy. Following this ruling, on 23 December 2016 the Court of Cassation reopened the applicant’s case, restored the missed time-limit and examined his appeal on points of law, declaring it inadmissible for lack of merit.

QUESTIONS TO THE PARTIES

1. Were the proceedings instituted by the applicant on 9 April 2014 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 (see, among other authorities, 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 as a result of those proceedings in respect of his complaint under that Article, as well as to submit examples of relevant domestic case-law and practice.

2. Assuming that the proceedings in question were an effective remedy, 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 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, 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, contrary to Article 10 of the Convention (see Janowski v. Poland [GC], no. 25716/94, §§ 30-33, ECHR 1999 ‑ I, and, mutatis mutandis , Savva Terentyev v. Russia , no. 10692/09, §§ 75 and 77, 28 August 2018)?

4. Did the applicant’s arrest and the administrative fine imposed on him violate his right to freedom of assembly, contrary to Article 11 of the Convention (see Navalnyy , §§ 103, 128 and 145, and Berkman , §§ 48 and 59-62, both cited above)?