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GALSTYAN v. ARMENIA - 26986/03 [2007] ECHR 936 (15 November 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/936.html
Cite as:
(2010) 50 EHRR 25,
[2007] ECHR 936
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THIRD
SECTION
CASE OF GALSTYAN v. ARMENIA
(Application
no. 26986/03)
JUDGMENT
STRASBOURG
15 November 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Galstyan v. Armenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David
Thór Björgvinsson,
Mrs I. Berro-Lefèvre,
judges,
and Mr S. Quesada, Section Registrar,
Having
deliberated in private on 18 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 26986/03) against the Republic
of Armenia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Armenian national, Mr Arsham Galstyan (“the
applicant”), on 1 August 2003.
The
applicant was represented by Mr N. Yeghiazaryan. The Armenian
Government (“the Government”) were represented by their
Agent, Mr G. Kostanyan, Representative of the Republic of
Armenia at the European Court of Human Rights.
On
5 April 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1958 and lives in Yerevan.
In
2003 a presidential election was held in Armenia with its first round
taking place on 19 February. The applicant acted as an authorised
election assistant (վստահված
անձ) for the main opposition candidate
in the election. At the second round of the election, which took
place on 5 March, the applicant was a member of one of the
district election commissions. Following the election, the applicant
participated in a series of rallies of protest organised in Yerevan
by the opposition parties.
The
applicant alleged, and the Government did not dispute, that at the
beginning of April police officers of the Central District Police
Station of Yerevan (ՀՀ
ոստիկանության
Երևան քաղաքի
կենտրոնական
բաժին) came to the
applicant's home while he was absent. Having found out about this,
the applicant went to the police station to inquire about the reasons
for their visit. At the Police Station, the Deputy Head ordered the
applicant to stop participating in the demonstrations.
On
7 April 2003 at 17h00 a demonstration was held in the centre of
Yerevan on the occasion of Mother's Day. The demonstration took place
on the Mashtots Avenue next to the Research Institute of Ancient
Manuscripts (Մատենադարան).
It appears that the demonstration was of a political nature and
criticism of the Government and of the conduct of the presidential
election was voiced.
The
applicant alleged, and the Government did not dispute, that the
demonstration was organised by women and was attended by about 30,000
people, the majority of whom were female. Traffic was suspended by
the traffic police on the relevant stretch of the Avenue prior to the
commencement of the demonstration. The applicant did not as such
participate in the demonstration since most men, including himself,
were observing it from a distance, standing on both sides of the
Avenue. Their task was to encourage the women and to prevent possible
provocations.
According
to the applicant, at around 17h30 he went home. On his way home,
about 100-150 metres away from the site of the demonstration, he was
approached by two persons in civilian clothes, who showed police
identity papers and took him to the Central District Police Station.
At
the Police Station, the arresting police officers drew up a record of
the applicant's arrest (արձանագրությաւն
բերման ենթարկելու
մասին) in which it was
stated that the applicant had been “arrested at around 17h30 on
the Mashtots Avenue for obstructing traffic and behaving in an
anti-social way at a demonstration”.
One
of the arresting police officers reported to the Head of the Police
Station (ՀՀ ոստիկանության
Երևան քաղաքի
կենտրոնական
բաժնի պետ)
that:
“... on 7 April 2003 we were on duty at the
Mashtots Avenue, where a demonstration was being held and a great
number of people were gathered. While on duty, we noticed one person
who was obstructing traffic, behaving in an anti-social way and
inciting others to follow his example. This person was brought to the
Police Station...”
The
applicant was subjected to a search during which no illegal items
were found. A relevant record was drawn up.
The
police officers questioned the applicant. The applicant made a
written statement (արձանագրություն
բացատրություն
վերցնելու
մասին) in which he submitted
that he had participated in a demonstration three days before. Having
found out about the demonstration of 7 April 2003, he had also gone
there. He further submitted that he was aware of a demonstration to
be held in two days and that he would participate in it. The
applicant added that he had not violated, and would not violate, any
laws during these demonstrations. This statement was torn up by the
police officers, who said that there was a pencil mark and asked the
applicant to write a new one. When he wrote the new statement with a
similar content, the police officers stopped him at the point when he
was about to write about not having committed any offences during the
demonstrations and said that what he had written was enough.
The
police officers drew up a record of an administrative offence
(վարչական
իրավախախտման
արձանագրություն)
in which it was stated that the applicant had “participated in
a demonstration, during which he violated public order”. The
applicant's actions were qualified under Article 172 of the Code of
Administrative Offences (CAO) (Վարչական
իրավախախտումների
վերաբերյալ
ՀՀ օրենսգիրք)
as minor hooliganism. This record was signed by the applicant. He
also put his signature in the section certifying that he was made
aware of his rights under Article 267 of the CAO and in the section
marked as “other information relevant for the determination of
the case”, where he also added “I do not wish to have a
lawyer”.
The
applicant alleged that he had initially refused to sign this record
and requested a lawyer. This became the reason why he was kept in the
Police Station for the following five and a half hours. During this
period, the police officers were persistently trying to convince him
to sign the record and to refuse a lawyer. They told him that it was
unnecessary to have a lawyer and spend money for such a minor case.
They further said that the case had been already pre-decided by their
superiors, so a lawyer would only harm rather than help, as he may
end up spending quite some time in the Police Station because of
that. On the other hand, if he signed the record and refused a
lawyer, he would be immediately taken to a court, where at worst a
small fine would be imposed and he would be released. The applicant
finally succumbed and agreed to sign the record and to refuse a
lawyer. The same day at 23h00 he was taken to judge M. of the Kentron
and Nork-Marash District Court of Yerevan (Երևան
քաղաքի Կենտրոն
և Նորք-Մարաշ
համայնքների
առաջին ատյանի
դատարան), who
examined the case.
The
Government contested this allegation. According to them, the
applicant was kept at the Police Station for two hours and taken to
judge M. at 19h30. During this period, the police officers
explained to the applicant his right to have a lawyer and advised him
to avail himself of this right, which he did not wish to do. The
record of an administrative offence was signed by the applicant
voluntarily and without any objections. Furthermore, the applicant
failed to initiate any actions aimed at the defence of his rights,
such as lodging motions or availing himself of other procedural
rights guaranteed by Article 267 of the CAO, despite having been made
aware of them.
The
materials of the applicant's administrative case, which were
transmitted by the police to judge M. for examination, contained the
following documents: (1) the record of an administrative offence; (2)
the police report; (3) the record of the applicant's arrest; (4) the
record of the applicant's search; and (5) the applicant's written
statement. All these documents were signed by the applicant except
the police report.
Judge
M., after a brief hearing, sentenced the applicant under Article 172
of the CAO to three days of administrative detention. The judge's
entire finding amounted to the following sentence:
“On 7 April 2003 at around 17h00 ... on the
Mashtots Avenue [the applicant], together with a group of people,
obstructed street traffic, violated public order by making a loud
noise, and incited other participants of the demonstration to do the
same...”
The
decision stated that it was subject to review by the Chairman of the
Criminal and Military Court of Appeal (ՀՀ
քրեական և զինվորական
գործերով վերաքննիչ
դատարանի նախագահ).
According
to the record of the court hearing – drawn up in a calligraphic
handwriting – the hearing was held in public with the
participation of the judge, a clerk and the applicant. The judge
explained the applicant's rights to him and informed him of the
possibility to challenge the judge and the clerk. The applicant did
not wish to lodge any challenges. He stated that he was aware of his
rights and did not wish to have a lawyer. The judge read out the
motion submitted by the police, seeking to impose administrative
liability on the applicant. The applicant stated that he, together
with a group of unknown people, had blocked the traffic on the
Mashtots Avenue. He said that he did this because it was a
demonstration and everybody else was doing the same. He made noise
since everybody else was making noise, but he did not push anybody.
No questions were put to the applicant. Thereafter, the judge read
out and examined the materials prepared by the police. Having
familiarised himself with these materials, the applicant accepted
that he had signed the record of an administrative offence but
objected to being subjected to administrative liability since the
incriminated acts had been committed also by others. The judge
departed to the deliberation room, after which he returned and
announced the decision. The time of the hearing was not recorded.
The applicant alleged, and the Government did not
explicitly dispute, that the above record was a fake and was drafted
at some point after the hearing in order to create an appearance of
lawfulness. In reality there was no clerk and the hearing was not
being recorded. The hearing lasted only about five minutes and was
conducted in judge M.'s office. The applicant further alleged that,
contrary to what the record stated, only the judge, the applicant and
the accompanying police officer were present at the hearing. The
latter did not as such participate in the hearing and his functions
were limited only to bringing the applicant before the judge. The
judge listed the materials prepared by the police and asked the
applicant “what do you want?”. “Justice and
lawfulness” replied the applicant. The judge continued reading
through the materials and said “since you have three children
and have not been guilt-stained in the past, I will impose a mild
sentence of three days of detention”. The applicant in reply
tried to present the circumstances of the case, petitioned the judge
to summon some witnesses and requested a lawyer. The judge listened
silently to the applicant, signed some papers and let the applicant
go, after which he was taken to a detention centre where he served
his sentence.
On
14 April 2003 the applicant applied to a local human rights NGO,
“February 22nd” («Փետրվարի
22» իրավապաշտպան
կազմակերպություն),
complaining in detail about the above-mentioned events and seeking
its assistance. He submitted, inter alia, that the police
officers had prompted him to sign a document refusing a lawyer,
persuading him that a lawyer was not necessary in his case.
On
28 April 2003 the NGO complained to the General Prosecutor (ՀՀ
գլխավոր դատախազ)
on behalf of the applicant, seeking to institute criminal proceedings
against the police officers and judge M.
By
a letter of 27 May 2003 the Kentron and Nork-Marash District
Prosecutor (Կենտրոն
և Նորք-Մարաշ
համայնքների
դատախազ)
informed the NGO that the decision of 7 April 2003 had been
well-founded and there were no grounds for lodging a protest.
II. RELEVANT DOMESTIC LAW
A. The Constitution of Armenia of 1995 (prior to the
amendments introduced in 2005)
The
relevant provisions of the Constitution read as follows:
Article 24
“Everyone has the right to express his opinion. It
is prohibited to force anyone to give up or change his opinion.
Everyone has the right to freedom of expression, including the
freedom to seek, receive and impart information and ideas through any
information medium regardless of frontiers.”
Article 26
“Citizens have the right to hold peaceful
assemblies, rallies, processions and demonstrations without carrying
arms.”
Article 39
“Everyone has the right to have his violated
rights restored, as well as, in the determination of a charge against
him, the right to a fair and public hearing by an independent and
impartial tribunal with a respect for equality of arms.”
Article 40
“Everyone has the right to legal assistance. In
cases prescribed by law legal assistance is provided free of charge.
Everyone has the right to have a defence counsel from
the moment of his arrest, detention or accusation.”
Article 44
“No restrictions may be placed on the exercise of
the rights and freedoms guaranteed under Articles 23-27 of the
Constitution other than such as are prescribed by law and are
necessary in the interests of national security or public safety, for
the protection of public order, health or morals, or for the
protection of the rights, freedoms, honour and reputation of others.”
Article 94
“The guarantor of independence of the judicial
authorities is the President of [Armenia]. He presides over the
Council of Justice.”
[Article 94
and 94.1 following the amendments of 2005
“The independence of the courts is guaranteed by
the Constitution and by law...
The Council of Justice is composed of nine judges,
elected in accordance with a procedure prescribed by law for a period
of five years by secret ballot at the general meeting of judges of
Armenia, and of four legal scholars, two of which are appointed by
the President of [Armenia] and the other two by the National
Assembly. The meetings of the Council of Justice are presided over by
the President of the Court of Cassation who does not have the right
to vote.”]
Article 95
“The Council of Justice ..., upon the proposal of
the Minister of Justice, shall prepare and submit for the President's
approval the annual lists of professional fitness and career
development of judges on the basis of which appointments are made...”
Article 96
“A judge [is] irremovable. He shall stay in his
post until the age of 65.”
Article 97
“In administering justice, a judge ... [is]
independent and obey[s] only the law.”
B. The Code of Administrative Offences of 1985
The
relevant provisions of the Code, as in force at the material time,
read as follows:
Article 9: The notion of an administrative offence
“A person shall be liable to an administrative
penalty for offences envisaged by this Code, if these offences by
their nature do not attract a criminal penalty in accordance with the
law.”
Article 22: The aims of an administrative penalty
“An administrative penalty is a form of liability
which is imposed in order to educate the person, who has committed an
administrative offence, to uphold the Soviet laws and to respect the
rules of socialist way of life, as well as to deter the offender and
others from committing new offences.”
Article 23: The types of administrative penalties
[the provisions concerning “correctional labour” and
“administrative detention” are no longer in force as of
16 December 2005]
“The following administrative penalties may be
[inter alia] imposed for committing an administrative offence:
... (2) a fine; ... (6) correctional labour; (7) administrative
detention.”
Article 31: Administrative detention [no longer in
force as of 16 December 2005]
“Administrative detention is prescribed and
imposed only in exceptional cases for certain types of administrative
offences for a period not exceeding fifteen days. Administrative
detention is imposed by a court (a judge).”
Article 172: Minor hooliganism [no longer in force as
of 16 December 2005]
“Minor hooliganism, i.e. obscene swearing at a
person or an offensive annoyance of a person in a public place and
other similar actions which disturb public order and peace of
citizens, leads to an imposition of a fine in the amount between 150%
and triple of the fixed minimum wage, or of correctional labour
between one and two months with deduction of 20% of the earnings, or,
in cases where, in the circumstances of the case, taking into account
the offenders personality, the application of these measures would be
deemed insufficient, of administrative detention not exceeding 15
days.”
Article 223: Judges of first instance courts
“Judges of first instance courts examine cases
concerning administrative offences envisaged by ... [inter alia]
Article 172 ... of this Code.”
Article 249: Public examination of the case on an
administrative offence
“Cases on administrative offences are examined in
public.”
Article 250: Monitoring by the prosecutor of the
enforcement of laws in the context of proceedings on administrative
cases
“The public prosecutor, who ... monitors the
enforcement of laws in the context of proceedings on administrative
cases, is entitled to institute the administrative proceedings; to
familiarise himself with the materials of the case; to scrutinise the
lawfulness of actions of the authorities (public officials) in the
course of the administrative proceedings; to participate in the
examination of the case; to lodge motions and make conclusions in
respect of questions arising during the examination of the case...”
Article 251: Evidence
“Any facts, on the basis of which the authorities
(public officials) establish the existence or absence of an
administrative offence and the guilt of a particular person, as well
as other circumstances decisive for the proper outcome of the case,
constitute evidence in an administrative case.
Such facts are established by the record of an
administrative offence, the statement of the person against whom
administrative proceedings are brought, testimonies of the victim and
witnesses, expert opinions, exhibits, the record of seizure of
objects and documents, as well as by other documents.”
Article 254: The record of an administrative offence
“The record of an administrative offence shall be
drawn up by an authorised official...”
Article 255: The content of the record of an
administrative offence
“The record of an administrative offence shall
contain: the date and the location when and where it was drafted; the
post and name of the person drafting it; information concerning the
offender; the location, time and essence of the administrative
offence; the legal act prescribing a penalty for the offence
committed; names and addresses of witnesses and victims, if any; the
explanation of the offender; other information necessary for the
determination of the case.
The record shall be signed by the person drafting it and
the offender...
If the offender refuses to sign the record, a relevant
entry is made in the record. The offender is entitled to make
explanations and comments concerning the content of the record, which
are to be attached to it, and also to indicate the reasons for
refusing to sign it.
When drafting the record, the offender must be made
aware of his rights and obligations under Article 267 of this Code
and a relevant entry must be made in the record.”
Article 256: Transmittal of the record
“The record [of an administrative offence] shall
be transmitted to the authority (public official) authorised to
examine the administrative case.”
Article 259: Measures aimed at ensuring the proper
conduct of the proceedings in cases concerning administrative
offences
“... in order to prevent administrative offences,
if other measures of compulsion have been exhausted, and to ensure
the timely and accurate examination of cases and the enforcement of
decisions in cases on administrative offences, a person may be
subjected to an administrative arrest, search, inspection of
belongings and confiscation of belongings and documents, for the
purpose of verifying his identity and drawing up a record of an
administrative offence, if this record cannot be drawn up on the spot
and if such a record is required to be drawn up.”
Article 260: Administrative arrest
“An administrative arrest must be recorded[. The
record] must indicate the date and place, the post and the name of
the person drawing up the record; information about the arrestee; the
time, place and grounds of the arrest.”
Article 261: Authorities (officials) authorised to
impose an administrative arrest
“Only authorities (officials) authorised by the
laws of the USSR and Armenia can impose an administrative arrest on a
person who has committed an administrative offence[. These include,
inter alia,] the internal affairs authorities in cases of
minor hooliganism...”
Article 267: The rights and obligations of the person
against whom administrative proceedings are brought
“The person against whom administrative
proceedings are brought has the right to familiarise himself with the
materials of the case, to make statements, to submit evidence, to
lodge motions, and to have legal assistance during the examination of
the case.”
Article 271: The witness
“Any person, who may be aware of any circumstance
connected to the case which needs to be clarified, may be called as a
witness in an administrative case.”
Article 277: Time-limits for the examination of an
administrative case
“Cases concerning administrative offences
envisaged under ... [inter alia] Article 172 ... of this Code
shall be examined within one day...”
Article 278: The procedure for the examination of an
administrative case
“At the hearing, [the examining authority]
announces the case that is to be examined and the person against whom
administrative proceedings are brought, explains to the persons
participating in the case their rights and obligations, and reads out
the record of an administrative offence. [The examining authority]
hears the persons participating in the case, examines the evidence
and rules on motions. If a public prosecutor participates in the
case, [the examining authority] hears his opinion.”
Article 279: Circumstances to be clarified during the
examination of an administrative case
“In examining the administrative case, the
authority (public official) must clarify whether an administrative
offence has been committed; whether the person in question is guilty
of committing it; whether an administrative penalty should be
imposed; whether there are mitigating and aggravating circumstances;
whether pecuniary damage has been caused...”
Article 286: The right to lodge an appeal [(գանգատ)]
against the decision taken on an administrative case
“The court's (the judge's) decision to impose an
administrative penalty is final and not subject to appeal in
administrative proceedings, except for the cases prescribed by law.”
Article 289: Lodging a protest [(բողոք)]
against the decision taken on an administrative case
“The prosecutor can lodge a protest against the
decision taken on an administrative case.”
Article 294: The powers of a judge ... [and] of the
chairman of the superior court ... in reviewing the case
“The judge's decision to impose an administrative
penalty for an offence envisaged under ... [inter alia]
Article 172 ... can be quashed or modified by the judge himself upon
a protest of the prosecutor and, whether or not such a protest is
lodged, by the chairman of the superior court.”
C. The Law on the Status of a Judge (Դատավորի
կարգավիճակի
մասին ՀՀ օրենք)
Article 5: Independence of a judge
“In administering justice, a judge is independent
and obeys only the law. In administering justice, a judge is not
accountable to any public authority or a public official.”
Article 6: Impermissible nature of interference with
a judge's performance of his functions
“Any interference by public authorities, bodies of
local self-government and their officials, political parties,
non-governmental associations and media with a judge's performance of
his functions of administering justice is impermissible and leads to
accountability prescribed by law.
A judge is not obliged to give explanations concerning a
case or the substance of materials under his consideration or to
grant access to them other than in cases and according to a procedure
prescribed by law.”
D. The Ministry of Justice Regulations (ՀՀ
արդարադատության
նախարարության
կանոնակարգ)
adopted on 28 November 2002
Chapter
9 of these Regulations prescribes the rules for organising and
holding the proficiency test on the basis of which the annual lists
of professional fitness and career development of judges are prepared
by the Ministry of Justice.
III. RELEVANT DOMESTIC DECISIONS
On
16 April 2003 the Constitutional Court adopted a decision on the
basis of an application lodged by the main opposition candidate in
the presidential election challenging the conduct and results of the
election (ՀՀ սահմանադրական
դատարանի որոշումը
ՀՀ նախագահի
2003 թ. մարտի 5-ի
ընտրության
արդյունքները
վիճարկելու
վերաբերյալ
գործով). The
Constitutional Court noted, inter alia, that a number of
authorised election assistants had been subjected to administrative
detention in the second round of the election and had thus been
deprived of the possibility of actively pursuing their duties any
further. The Court further stated that subjecting to administrative
detention for having participated in unauthorised demonstrations and
marches constituted an interference with the right to freedom of
peaceful assembly guaranteed by Article 11 of the Convention. First
of all, such application of this procedure was in contradiction with
European “rule of law” standards, and secondly, all such
decisions made by the courts were to be a topic for discussion in the
Council of Court Chairmen and the Council of Justice in terms of both
their form and substance.
IV. RELEVANT RESOLUTIONS AND REPORTS ON THE APPLICATION OF
THE PROCEDURE OF ADMINISTRATIVE DETENTION BEFORE, DURING AND
IMMEDIATELY AFTER THE PRESIDENTIAL ELECTION OF FEBRUARY-MARCH 2003
A. Resolution 1304 (2002) of the Parliamentary Assembly
of the Council of Europe (PACE): Honouring of obligations and
commitments by Armenia
The
relevant extract from the Resolution provides:
“9. The Assembly further invites the
authorities to revise the Administrative Code without delay. It urges
them to abolish the provisions concerning the administrative
detention and to refrain from applying them in the interim. It warns
the authorities of the abuses their application leads to, which are
seriously at variance with the principles of the Organisation.”
B. Report by the PACE Committee on the Honouring of
Obligations and Commitments by Member States of the Council of
Europe, Doc. 10027, 12 January 2004
The
relevant extracts from the Report provide:
“32. The day after the first round of
the presidential election held on 9 February 2003, several
demonstrations and protest meetings took place in Yerevan and several
towns at the prompting of opposition political parties.
33. Between the two rounds of the elections,
and as from 22 February, more than 200 people were arrested by the
police at the behest of the authorities – among them some
members of the political parties in opposition or of their campaign
staff, and agents of these parties. Despite the Parliamentary
Assembly's stipulation that the authorities must no longer avail
themselves of the arbitrary procedure of administrative detention
prescribed by the Administrative Code, these persons were arrested,
taken into custody without notification of their families then
brought before the courts and sentenced to a fortnight's
administrative internment in over 80 cases, or to fines in 65 other
cases. The persons concerned were tried in camera and with few
exceptions did not receive the assistance of a lawyer. Many were
unable to participate in the second round of the election.
34. Further arrests were made after the
second round of the election. The Ministry of Justice has
acknowledged that 132 people were arrested between 17 and 25 March,
69 of them being sentenced to an “administrative”
custodial penalty and 63 to a fine. According to the OSCE, 77 is the
number sentenced to a term of imprisonment over that period.
35. In our previous report we commented on
the outrageousness and arbitrariness of this summary procedure
prescribed by the Administrative Code. An authentic remnant of the
Communist style of justice inherited from the Soviet era, this
procedure denies the person charged the right to inform his/her
family or to request the immediate assistance of a lawyer, and
enables a judge, under an arrangement for immediate trial in camera,
to have him/her held for a fortnight maximum. This procedure is
simply disgraceful...
37. During our August 2003 visit, the
authorities justified their decision to arrest and convict these
demonstrators by invoking the need to shield law and order from their
misdeeds. They claim that the demonstrators were just thugs,
“antisocial elements”, alcoholics or drug addicts. This
sort of talk has a ring to it that is like a revival of the evidently
not so distant Soviet past.
38. We expect the authorities to do their
utmost in the future to reconcile the freedom to demonstrate and the
freedom to come and go with respect for law and order. This right
must be secured to all and sundry, especially at election time.
Preservation of law and order must not serve to condone wrongful
deprivation or restriction of freedom to form assemblies and to
demonstrate.”
C. Resolution 1361 (2004) of the PACE: Honouring of
obligations and commitments by Armenia
The
relevant extracts from the Resolution provide:
“14. The Assembly is shocked by the
scandalous use that continues to be made of the arbitrary procedures
concerning administrative detention provided for in the
Administrative Code, which is totally incompatible with its
strongly-worded statement in Resolution 1304 of September 2002 that
the Armenian authorities should no longer make use of these
procedures. It firmly condemns the arrest and conviction of over 270
people – members of the opposition parties, sympathisers and
office-holders – between the two rounds of the presidential
election and at the end of the second round. It expects the
Armenian authorities to discuss by February 2004 the issue of
administrative detention provided for in the Administrative Code in
co-operation with Council of Europe experts and to send the draft
amendments for the Council of Europe's expertise by April 2004.
15. The Assembly asks the Armenian
authorities to immediately begin examining, in co-operation with the
Council of Europe, the question of the balance to be struck between
freedom of assembly and demonstration and respect for public order,
and to adopt a law on demonstrations and public meetings in full
compliance with Council of Europe principles and standards.”
D. Human Rights Watch Briefing Paper, 23 May 2003, An
Imitation of Law: the Use of Administrative Detention in the 2003
Armenian Presidential Election
The
relevant extracts of the Briefing Paper provide:
“The opposition demonstrations of February to
April 2003
In the period between the [19 February 2003] round and
[5 March 2003] runoff of the presidential election, the [main
opposition candidate] campaign staged several rallies in the center
of Yerevan, each of which attracted tens of thousands of
supporters...
After the [5 March 2003] runoff the [main opposition
candidate] campaign continued to stage rallies in the center of
Yerevan at intervals of several days or a week, to protest alleged
election fraud...
Rendering opposition rallies illegal
Although ... rallies and protest demonstrations [in
support of the main opposition candidate] were largely peaceful, the
governing authorities portrayed them as a threat to public order and
political stability, and used this as grounds for arrests...
The campaign of arrests
[21-27 February 2003]: the first wave of arrests
In a first wave of arrests, roughly 160 chiefs and staff
of regional and district [main opposition candidate] campaign
headquarters, [authorised election assistants], and even drivers were
taken to their local police stations...
Dozens of activists were arrested at their homes in
different regions of the country the morning after police supposedly
picked them out, among several tens of thousands, at an
'unauthorised' rally in Yerevan in the late afternoon of [21 February
2003].
When police officers took opposition activists from
their homes it was invariably on the pretext that the local police
chief wanted to talk to them. Some activists accompanied the officers
willingly, and some initially refused, but met threats in response...
In some cases where the police did not initially find
the activist at home, they resorted to violent or extra-legal
tactics. There were instances of the police taking family members as
hostages, to compel activists to give themselves up...
[1-17 March 2003]: conditional releases, continuing
pressure
Following international pressure ... about seventy-five
of the eighty-six men serving election rally-related administrative
detention sentences were released during the weekend of [1-2
March]...
[18-22 March 2003]: the second wave of arrests
During this five-day period, as post-election protest
rallies continued, the police arrested approximately ninety ...
activists [supporting the main opposition candidate] in Yerevan,
Abovian, Artashat district, Talin, and other areas. Most were taken
from their homes – some for the second time. Dozens received
administrative detention sentences.
[7-9 April 2003]: around the presidential
inauguration
Several men and women were arrested after [a 7 April
2003] demonstration in central Yerevan, and given administrative
fines or terms of detention...
Due process violations in administrative offences
proceedings
Incommunicado preliminary detention
On bringing opposition activists to the police station,
officers kept them in incommunicado detention, depriving them of
counsel. This allowed police wide scope to pressure the activists to
admit guilt.
In many cases, the police refused to inform or
acknowledge to relatives and lawyers of people who had gone missing
that they were in police custody. A lawyer who took on the cases of
more than thirty activists taken in the first wave of arrests said
that simply finding the people he had been tasked to represent was
his primary task, and providing legal assistance came a distant
second. The wife of an activist arrested in Armavir said: 'For five
days they gave no information. We did not know whether he was alive
or dead.'
When lawyers, relatives, or human rights groups tried to
find detainees in custody, police did not cooperate. Lawyer [T.
T.-Y.] said: 'When we go to police departments, we are told the
detainee is in court. When we go to the court, they say he or she is
in one of the police departments. Before the confusion is resolved, a
court verdict for fifteen days of administrative detention has
already been issued.'
In Armenia, there is no system of obligatory,
transparent registration of all detainees at police stations. [T.-Y.]
noted: 'Wherever we went, they said, 'No, he's not here.' The lack of
any documentation of detentions makes it difficult for us to dispute.
They can claim afterward that the detainee was not there at the exact
time we came and asked.' In two cases Human Rights Watch documented,
police pretended detainees were not at a particular police station
when they patently were.
The police kept detainees for as long as they considered
necessary, with little apparent reference to procedural rights
guarantees...
Since most were brought in on the pretext of 'a chat'
with the police chief, the legal basis of their detention was not
immediately clear – whether or not they were arrested, and if
so, whether under the administrative or criminal code. With some
detained activists the police were initially at a loss as to what to
charge them with. With others, the police manipulated the ambiguity,
threatening both criminal and administrative charges. At Echmiadzin
police station, officers threatened to press criminal charges against
[one defendant] if he refused to confess that he resisted and swore
at the policemen who had just taken him from his home. He recalled:
'I signed on the strength of their promise that I would only get two
days of administrative detention.'
From mid-March onward, the police extracted either
written confessions or undertakings to take no further part in
rallies from a number of activists by threatening to beat them. [One
defendant], detained at the Yerevan City Police Department, stated
that her three interrogators pointed out the lockup in the courtyard,
said it was full of women, and that they would all be truncheoned
that night: 'Then they showed me black spots on the carpet and said
it was blood. Through this kind of pressure they forced me to write
that I took part in a rally and obstructed traffic.' In several
cases, police did use violence: [one defendant] alleged she was hit
on the head with a plastic bottle of water; [another defendant]
recounted being hit with a pistol butt, then punched and kicked.
Flawed court hearings
In almost all cases, administrative court hearings
against opposition activists were closed and cursory. Courts
considered only police evidence, and did not give the defendant the
opportunity to summon defence counsel or defence witnesses.
Several factors indicate that the judges acted under the
influence of political authorities. In many cases, judges issued the
harshest administrative sentence possible – fifteen days
detention – to opposition activists. Some judges at [the
Kentron and Nork-Marash District of Yerevan] were frank with
defendants about their one-sentence-fits-all-policy. A judge told
[one defendant]: 'Those who took part in the rally – we are
giving them all fifteen days.' When [another defendant] asked a judge
to consider handing him a shorter sentence, the latter replied that:
'his instructions were to put us all away for fifteen days – no
less.' Judges' questioning of several defendants was blatantly
political, such as: 'Why do you play at opposition?' and, 'Why do you
bad-mouth the government?' They warned some not to participate in
opposition rallies again.
The police appeared to exercise control over the courts
when they were in administrative session. During the week of [22-28
February 2003], when [the Kentron and Nork-Marash District Court of
Yerevan] tried nearly one hundred [main opposition candidate]
supporters, 'Red Berets' – police commandos – sealed off
the building to the public. The chairman of the court acknowledged
that their deployment was an initiative of the police leadership on
which the court was not consulted...
Some defendants demanded lawyers, but court officials
and police told them that they were either 'not necessary' or 'not
allowed' in administrative cases. Although he had a contract with [a
defendant], lawyer [N.B.] was barred from entering [on 22 February
2003 the Kentron and Nork-Marash District Court of Yerevan] to defend
him.
In the absence of public scrutiny or defence counsel,
judges applied sloppy or arbitrary reasoning in their examination of
cases, or none whatsoever.
In most cases, hearings lasted from a few seconds to a
few minutes, and the written judgments were pre-prepared. The judge
started [one defendant's] hearing by reading out his sentence –
fifteen days detention for having participated in an unauthorised
march. When [the defendant] objected that he had not participated in
the march, he related, 'The judge just said, 'It is proven' and
called a policeman to take me away.'
While some judges alluded to the existence of proof
without feeling it necessary to present it, others floated
hypotheses, such as: 'You took part in an unauthorised rally, and you
committed acts of hooliganism on Mashtots Avenue. You shouted or
broke something, is that right?' In other hearings, judges did not
advance any arguments. Two [opposition] party activists from the
Shengavit district of Yerevan were each given three days' detention
without learning what they were charged with, while a judge quelled
[another defendant's] objection to the absence of stated information
or grounds for his fifteen-day sentence with the comment: 'Just say
thank you that we didn't press a criminal charge.'
The lack of outside scrutiny also enabled several cases
of demonstrably gross arbitrariness by the courts. On [22 February]
2003 the Kentron and Nork-Marash District Court of Yerevan] handed
out some administrative detention sentences without conducting
hearings in the presence of defendants. At least one police van with
several detained activists inside was seen to drive up to the court,
where a court official emerged and reportedly handed prepared
judgments to the escorting police officers. The van then drove away
without the defendants having set foot in court...”
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
1. The parties' submissions
(a) The Government
The
Government claimed that the applicant had failed to exhaust the
domestic remedies in respect of the decision of 7 April 2003, as
required by Article 35 § 1 of the Convention. According to
Article 286 of the CAO, the court's decision to impose an
administrative penalty was final and not subject to appeal except
for the cases prescribed by law. Such an exception in respect of
cases concerning offences under Article 172 of the CAO was provided
by Article 294 of the CAO. This Article prescribed two possibilities
to have the court's decision quashed, either by requesting the
prosecutor to lodge a protest or by lodging an appeal directly with
the chairman of a superior court. Thus, if a party had applied to a
prosecutor but the latter refused to lodge a protest, then this party
was entitled to appeal to the chairman of a superior court. Moreover,
a party was entitled to appeal immediately to the chairman of a
superior court without having first applied to a prosecutor. The
applicant was informed about this possibility, since the decision of
7 April 2003 stated that “it was subject to review by the
Chairman of the Criminal and Military Court of Appeal”.
However, he used only the first of these two possibilities and did
not apply to the Chairman.
(b) The applicant
The
applicant did not accept the Government's objection. First, he argued
that it was not clear from the wording of Article 294 of the CAO to
the chairman of which “superior” court he should,
according to the Government, have applied, since the division of
courts into superior and inferior was an inherent element of the
Soviet court system and no longer existed in Armenia. Even assuming
that the phrase “superior court” implied the Criminal and
Military Court of Appeal, neither Article 294 nor any other article
of the CAO prescribed a right of the convicted person to lodge
an appeal against the court's decision imposing administrative
detention. From the wording of Article 294 it might as well be
inferred that the chairman of the superior court could review such
decisions of his own motion, a procedure which was not uncommon to
the Soviet court system. Had this Article afforded a right to appeal
as opposed to a power of review, then such an appeal would have lain
with the panel of three judges of a court of appeal rather than its
chairman, if this procedure was to comply with the general procedural
rules applied in Armenia in the context of both criminal and civil
proceedings.
Second,
the applicant contended that Article 294 prescribed a review of a
final decision either by the judge himself upon the prosecutor's
protest or, whether or not such a protest was lodged, by the chairman
of the superior court. These were two equal avenues of judicial
protection and the aggrieved individual had the right to choose one
of them and was not obliged to pursue both of them simultaneously or
one after another. In any event, he was not obliged to exhaust
remedies which were not effective and adequate according to the
generally recognised rules of international law. An application to
the chairman of the superior court under Article 294 would have not
been such a remedy, since many similar applications lodged by other
individuals who had been subjected to administrative penalties for
participation in the rallies of protest in the period following the
presidential election proved to be unsuccessful.
The
applicant provided copies of similar court decisions imposing
administrative penalties on other individuals, dating from April-May
2002, which stated that they were final, were not subject to appeal
and could be protested against by the prosecutor.
2. The Court's assessment
The
Court recalls that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges those
seeking to bring a case against the State before an international
judicial body to use first the remedies provided by the national
legal system, thus dispensing States from answering before an
international body for their acts before they have had an opportunity
to put matters right through their own legal systems. In order to
comply with the rule, normal recourse should be had by an applicant
to remedies which are available and sufficient to afford redress in
respect of the breaches alleged (see Assenov and Others v.
Bulgaria no. 24760/94, § 85, ECHR 1999-VIII).
Furthermore,
under Article 35 the existence of remedies which are available and
sufficient must be sufficiently certain not only in theory but also
in practice, failing which they will lack the requisite accessibility
and effectiveness (see, e.g., De Jong, Baljet and
Van den Brink v. the Netherlands, judgment of 22 May 1984, Series
A no. 77, p. 19, § 39; and Vernillo v. France, judgment
of 20 February 1991, Series A no. 198, pp. 11-12, § 27). It is
incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one, available in theory and
in practice at the relevant time, that is to say, that it was
accessible, was one which was capable of providing redress in respect
of the applicant's complaints and offered reasonable prospects of
success (see Akdivar and Others v. Turkey, judgment of 16
September 1996, Reports of Judgments and Decisions 1996 IV,
p. 1211, § 68).
The Court further recalls its extensive case-law to
the effect that an application for retrial or similar extraordinary
remedies cannot, as a general rule, be taken into account for the
purposes of applying Article 35 § 1 of the Convention (see,
e.g., R. v. Denmark, no. 10326/83, Commission decision of 6
September 1983, Decisions and Reports (DR) 35, p. 218; Prystavska
v. Ukraine (dec.), no. 21287/02, 17 December 2002; and
Denisov v. Russia (dec.), no. 33408/03, 6 May 2004).
Furthermore, remedies the use of which depend on the discretionary
powers of public officials cannot be considered as effective remedies
within the meaning of Article 35 § 1 of the Convention (see
Tumilovich v. Russia (dec.), no. 47033/99, 2 June 1999;
Gurepka v. Ukraine, no. 61406/00, § 60, 6 September
2005). Nor can remedies which have no precise time-limits, thus
creating uncertainty and rendering nugatory the six-month rule
contained in Article 35 § 1 of the Convention which is closely
interrelated with the requirement to exhaust domestic remedies (see
Berdzenishvili v. Russia (dec.), no. 31697/03, 29 January
2004; Denisov, cited above).
Turning
to the circumstances of the present case, the Court notes that
Article 286 of the CAO explicitly states that the court's (judge's)
decision to impose an administrative penalty is “final and not
subject to appeal”. Article 294 of the CAO further provides
that it “can be quashed or modified by the judge himself upon a
protest of the prosecutor and, whether or not such a protest is
lodged, by the chairman of the superior court”. The Court
considers first of all that, as regards the possibility of applying
to a prosecutor with a request to lodge a protest, this is clearly
not an effective remedy for the purposes of Article 35 § 1 of
the Convention since it is not directly accessible to a party and
depends on the discretionary powers of a prosecutor.
As
regards the review carried out by the chairman of the superior court,
the parties disagreed as to whether this review was carried out upon
an appeal of an interested party or of the chairman's own motion. The
Court notes from the outset that no further details of this procedure
are provided by the CAO. It is true that Article 286 allows for
exceptions. However, contrary to what the Government claim, nothing
suggests that Article 294 can be considered as such exception.
Indeed, the wording used in this Article, namely “can be
quashed or modified by the chairman”, as opposed to “an
appeal can be lodged against”, which is the wording used in
Armenia in the context of both criminal and civil procedure, suggests
that this Article provides for a power of review rather than a right
to appeal. The Court further notes that the application of this
procedure in practice also appears to be inconsistent: while the
decision of 7 April 2003 states that “it is subject to review
by the Chairman”, many other similar court decisions –
copies of which were submitted by the applicant – state that
they “are final and not subject to appeal” or “can
be protested against by the prosecutor”. The Government, in
their turn, failed to submit any evidence in support of their
interpretation of Article 294. In such circumstances, the Court does
not find the Government's interpretation to be convincing and
considers that Article 294 of the CAO provided for a power of review
by the chairman rather than a right of a party to appeal. Even
assuming that a party – just as in the case of applying to a
prosecutor – could solicit such a review, nothing suggests that
the chairman was obliged to act upon the party's relevant request.
Moreover, neither the CAO nor the decision of 7 April 2003 itself
prescribed any time-limits for this review.
In
the light of the above, the Court concludes that the review
possibility provided by Article 294 of the CAO resembles more an
extraordinary remedy than a regular appeal procedure and cannot be
taken into account for the purposes of Article 35 § 1 of the
Convention. Therefore, the Government's preliminary objection must be
rejected.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicant complained that Article 5 § 1 of the Convention did
not envisage, as one of the grounds for deprivation of liberty, the
detention of a person as an administrative sanction. He further
complained under Article 5 § 4 of the Convention that he was not
entitled to contest the lawfulness of the detention imposed on him by
the decision of 7 April 2003.
The
relevant part of Article 5 provides:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a
person for non-compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order
for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.
...
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
Admissibility
1. The parties' submissions
The Government submitted that the applicant's
“administrative detention” was permissible under Article
5 § 1 (a) of the Convention, since he was convicted by a court
of committing an administrative offence. Article 5 § 1 (a)
permits the detention of a person, if he or she is found guilty of
committing an offence, whether criminal, disciplinary or, as in the
present case, administrative. As to Article 5 § 4 of the
Convention, the Government claimed that the applicant was entitled to
contest the lawfulness of his detention under Article 294 of the CAO.
The
applicant submitted that administrative detention, as a form of
penalty, cannot be included among the grounds for detention
permissible under Article 5 § 1 of the Convention, because the
application of this procedure was condemned by Resolution 1304 (2002)
of the Parliamentary Assembly of the Council of Europe. Furthermore,
even though the lawfulness of detention within the meaning of Article
5 of the Convention did not depend on the lawfulness of the
conviction, nevertheless, had his case been examined in compliance
with the guarantees of Article 6 of the Convention, he would not have
been deprived of his liberty. As to Article 5 § 4
of the Convention, the applicant claimed, in addition to the reasons
contained in his arguments concerning the issue of alleged
non-exhaustion (see paragraphs 34-36 above), that he was not able to
contest the decision of 7 April 2003 because a copy of this
decision was given to him only at a later date, following his release
from detention.
2. The Court's assessment
(a) Article 5 § 1 of the Convention
The
Court recalls that Article 5 § 1 (a) permits the “lawful
detention of a person after conviction by a competent court”.
This provision makes no distinction based on the legal character of
the offence of which a person has been found guilty. It applies to
any “conviction” occasioning deprivation of liberty
pronounced by a “court” irrespective of its
classification by the internal law of the State in question (see
Engel and Others v. the Netherlands, judgment of 8 June 1976,
Series A no. 22, pp. 27-28, § 68; Gurepka, cited
above, § 39).
In
the present case, the applicant was subjected to administrative
detention following his conviction under Article 172 of the CAO for
minor hooliganism by the Kentron and Nork-Marash District Court of
Yerevan. Even though called “administrative detention”,
this term in fact was used to denominate a short-term sentence
imposed by a court for committing an offence classified in the
domestic law as administrative and being usually of a minor
character. The Court therefore concludes that the applicant was
deprived of his liberty after a “conviction” within the
meaning of Article 5 § 1 (a) of the Convention.
It
remains to ascertain whether this conviction was imposed by a
“competent court”. According to Article 223 of the CAO,
administrative cases concerning offences envisaged by Article 172 are
examined by judges of first instance courts. In the present case, the
applicant's administrative case was examined by judge M. of the
Kentron and Nork-Marash District Court of Yerevan, which was the
court with territorial jurisdiction to examine the offence in
question. It follows that the applicant's conviction was imposed by a
“competent court” as required by Article 5 § 1 (a)
of the Convention.
Finally,
as regards the lawfulness of the decision taken by the court, the
Court recalls that Article 5 § 1 (a) is an autonomous provision
whose requirements are not always co-extensive with those of Article
6 of the Convention (see Engel and Others, cited above, pp.
27-28, § 68). Having regard to the particular circumstances of
the case, the Court, without prejudging the merits of the complaints
under Article 6, considers that the deprivation of liberty applied to
the applicant for minor hooliganism was provided by the Armenian law
and was imposed in accordance with a procedure prescribed by law
(see, mutatis mutandis, ibid.; and Gurepka,
cited above, § 39).
In
the light of the above, the Court concludes that this part of the
application is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
(b) Article 5 § 4 of the Convention
The
Court recalls that, while Article 5 § 4 obliges the Contracting
States to make available a right of recourse to a court when the
decision depriving a person of his liberty is one taken by an
administrative body, there is nothing to indicate that the same
applies when the decision is made by a court at the close of judicial
proceedings. Where a sentence of imprisonment is pronounced after a
“conviction by a competent court”, the supervision
required by Article 5 § 4 is incorporated in the decision (see
De Wilde, Ooms and Versyp v. Belgium, judgment
of 18 June 1971, Series A no. 12, pp. 40-41, § 76; Engel and
Others, cited above, p. 32, § 77; and Menesheva v.
Russia, no. 59261/00, § 103, ECHR 2006 ...).
In view of the above, the fact that in the present
case no ordinary appeal procedure was available against the decision
of the Kentron and Nork-Marash District Court of Yerevan (see
paragraphs 40-42 above) does not raise a problem under Article 5 §
4.
It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The applicant made several complaints under Article 6
§§ 1 and 3 (b) and (c) of the Convention. In particular, he
submitted that (1) the tribunal examining his case was not
independent, since there were no independent courts in Armenia
because judges were appointed by the Council of Justice presided over
by the President of Armenia and the Minister of Justice; (2) the
trial was not fair and the tribunal was not impartial: there was
basically no examination of the case and the entire trial lasted
about five minutes, and the judge ignored all his arguments without
even trying to rebut them and based his decision solely on the record
of an administrative offence, a document fabricated by the police;
(3) the trial was not public in view of the fact that it was held in
camera in the judge's office at 23h00; (4) he was not given
sufficient time and facilities to prepare his defence; and (5) he was
tricked into refusing a lawyer.
The
relevant part of Article 6 of the Convention provides:
“1. In the determination ... of any
criminal charge against him, everyone is entitled to a fair and
public hearing ... by an independent and impartial tribunal...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing...;”
A. Admissibility
1. Applicability of Article 6
Although
the applicability of Article 6 to the administrative proceedings in
question is not in dispute, the Court considers it necessary to
address this issue of its own motion. For the reasons set out below
it considers that these proceedings involved the determination of a
criminal charge against the applicant.
The Court observes that in order to determine whether
an offence qualifies as “criminal” for the purposes of
the Convention, it is first necessary to ascertain whether or not the
provision defining the offence belongs, in the legal system of the
respondent State, to criminal law; next the “very nature of the
offence” and the degree of severity of the penalty risked must
be considered (see, among many other authorities, Engel and
Others, cited above, pp. 34-35, § 82; Öztürk
v.Germany, judgment of 21 February 1984, Series A no. 73, p.
18, § 50; Demicoli v. Malta, judgment of 27 August 1991,
Series A no. 210, pp. 15-17, §§ 31-34).
As to the domestic classification, the Court has
previously examined the sphere defined in certain legal systems as
“administrative” and found that it embraces some offences
that are criminal in nature but too trivial to be governed by
criminal law and procedure (see Palaoro v. Austria, judgment
of 23 October 1995, Series A no. 329 B, p. 38, §§
33-35). In the Armenian system that also appears to be the case.
In
any event, the indication afforded by national law is not decisive
for the purpose of Article 6 and the very nature of the offence in
question is a factor of a greater importance (see Campbell and
Fell v. the United Kingdom, judgment of 28 June 1984, Series A
no. 80, p. 36, § 71; Weber v. Switzerland, judgment
of 22 May 1990, Series A no. 177, p. 18, § 32). The Court notes
that Article 172 of the CAO applies to the entire population.
Furthermore, the purpose of the sanction imposed on the applicant was
purely punitive and deterrent.
Finally, as regards the severity of the penalty, the
Court observes that loss of liberty imposed as punishment for an
offence belongs in general to the criminal sphere, unless by its
nature, duration or manner of execution it is not appreciably
detrimental (see Engel and Others, cited above, pp. 34 35,
§§ 82; Ezeh and Connors v. the United Kingdom [GC],
nos. 39665/98 and 40086/98, §§ 69-130, ECHR 2003 X).
In the present case, the applicant was deprived of his liberty for
three days and was locked up in the detention centre during the term
of his sentence. Moreover, the maximum sentence which could be
imposed was 15 days of detention.
These considerations are sufficient to establish that
the offence of which the applicant was accused can be classified as
“criminal” for the purposes of the Convention (see,
mutatis mutandis, Menesheva, cited above, §§
94-98). It follows that Article 6 applies.
2. Independence of the tribunal
The
Court recalls that, in determining whether a body can be considered
to be “independent” – notably of the executive and
of the parties to the case – it is necessary to have regard to
the manner of appointment of its members and the duration of their
terms of office, the existence of guarantees against outside pressure
and the question whether the body presents an appearance of
independence (see Campbell and Fell, cited above, pp. 39-40, §
78).
The
Court notes from the outset that the applicant failed to substantiate
any further, except by expressing general dissatisfaction with the
system of appointment of judges, how this system jeopardized the
independence of the tribunal examining his particular case. As far as
this system is concerned, the Court notes that, according to the
Constitution at the material time, the authority responsible for the
appointment of judges, namely the Council of Justice, was presided
over by the President of Armenia. However, the fact that members of a
tribunal are appointed by the executive does not in itself call into
question its independence (ibid., p. 40, § 79).
The Court notes that judges were appointed to their posts on the
basis of a special proficiency test. Furthermore, safeguards of the
independence of judges, such as security of judge's tenure, their
irremovability and freedom from outside instructions or pressure,
were guaranteed by the Constitution and the implementing legislation.
In the Court's opinion, these safeguards were sufficient to exclude
the applicant's misgivings about the independence of the tribunal in
his case.
The
Court concludes that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
3. Other fair trial guarantees
The Government, referring to the admissibility
decision in the case of Murphy v. the United Kingdom (no.
4681/70, Commission decision of 3 October 1972, Collection 43,
p. 1), submitted that, in respect of his complaint about the lack of
sufficient time and facilities to prepare his defence, the applicant
had failed to exhaust the domestic remedies since he had not lodged a
motion with the court seeking to adjourn the hearing. If the
applicant considered that he did not have sufficient time to prepare
his defence, it was open to him to request such an adjournment or to
express disagreement with the actions of the authorities.
The
applicant did not comment on this point.
The
Court considers that the Government's objection is closely linked to
the substance of the applicant's complaints under Article 6, and
should be joined to the merits.
As
to the remainder of the complaints under this Article, the Court
notes that these complaints are not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
1. The parties' submissions
(a) The Government
The
Government argued that the applicant had sufficient time to prepare
his defence. Referring to the case of Albert and Le Compte v.
Belgium (judgment of 10 February 1983, Series A no. 58, pp.
20-21, § 41), they argued that “sufficient time” was
to be assessed in view of the circumstances of the case, including
the complexity of the case and the stage of the trial. The applicant
was brought to the police station at 17h30, while the court hearing
took place at 19h30. During this time he failed to avail himself of
his procedural rights, despite all the efforts of the police
officers. The applicant was familiarised with the materials of the
case against him and informed about his right to lodge motions and
challenges, which he failed to do. The applicant signed the record of
an administrative offence voluntarily and, by doing so, he agreed
with its content and in essence admitted his guilt. Taking into
account that the applicant signed the record, refused to have a
lawyer, did not lodge any motions and did not avail himself of other
procedural rights, the police officers considered two hours to be
sufficient for the preparation of the applicant's defence.
Furthermore, the applicant had the right to request an adjournment of
the examination of his case, which he also failed to do. By failing
to request such an adjournment, the applicant admitted that he had
had ample time to prepare his defence. Finally, by immediately
presenting the case to the court, the police officers ensured that
the trial took place within a reasonable time.
The
Government further argued that the applicant's case was examined
publicly. According to Article 8 of the Code of Civil Procedure, for
a case to be examined in camera the court has to take a
specific decision on that. No such decision was taken in the
applicant's case, which indicates that the hearing was public.
The
Government finally submitted that the applicant himself did not wish
to have a lawyer, despite the fact that the police officers explained
to him his right to have a lawyer and advised him to avail himself of
this right. Moreover, the applicant did not wish to have a lawyer
during the entire procedure, including the court hearing, which he
indicated in the record of an administrative offence. In sum, the
applicant's trial as a whole complied with the guarantees of Article
6 of the Convention.
(b) The applicant
The
applicant submitted that the trial was not fair. A fair trial
presupposes an impartial, objective and thorough examination of the
circumstances of a case, whereas all the materials indicate that
there was no such examination in his case. He further submitted that,
in the period following the 2003 presidential election, both the
police and the courts were doing all that was possible to punish the
opposition activists in conditions lacking transparency. The police
as a rule were looking for their “victims” not at the
demonstration but at a later hour and at a different location. Often
the public and close relatives became aware of the conviction only
after the court decision had been taken and the convicted person had
already been placed in the detention facility. In order to conceal
the fact that these cases were fabricated, the authorities were not
allowing lawyers to participate and were holding hearings at late
hours, thus effectively excluding the possibility for them to be
public.
The
applicant further referred to his previous submissions, according to
which, the court hearing, contrary to what the Government claim, took
place at 23h00 and no one else was present besides the judge and the
accompanying police officer who did not, in any event, participate in
the hearing. The judge based his decision solely on the record of an
administrative offence and ignored all the applicant's arguments
without even asking questions. The whole trial lasted about five
minutes and there was no examination as such. The applicant never
refused to have a lawyer either before or during the court hearing.
The
applicant further submitted that the Government's assertions as to
the circumstances of the case were nothing but assumptions which were
based on the mere fact that he had signed the record of an
administrative offence. This record, however, was a fake and so was
the resulting court decision which contained nothing but a standard
text. Even assuming that this record could be regarded as a
confession, in the absence of any other evidence it could not have
served as a sufficient basis to convict him.
As
regards the publicity of the hearing, the applicant argued that it
was the de facto, rather than the de jure, aspect of
this phenomenon which should be taken into account. A hearing held at
23h00 in a judge's office could not be considered as “public”.
2. The Court's assessment
In
order to ascertain whether the proceedings against the applicant
complied with the requirements of Article 6, the Court will address
the complaints raised in that respect individually (see Borisova
v. Bulgaria, no. 56891/00, § 40, 21 December 2006).
(a) Article 6 § 1: Fair and public
hearing by an impartial tribunal
The
Court notes at the outset that the applicant contested the
circumstances of his trial, as presented in the record of the court
hearing, claiming that there was basically no examination of the
case, that there was no clerk and the hearing was not being recorded,
and that the above record was a fake. Despite the fact that the
Government did not explicitly dispute this submission, the Court
considers that compelling evidence would be required to convince it
that a certain official document is a fake. It is true that the
record was drawn up in a calligraphic handwriting, which prompts the
Court to believe that it was possibly drafted – or at least
re-drafted – at some point after the hearing. While this may
raise some doubts as to the accuracy of the record, it is
nevertheless not sufficient for the Court to conclude that the record
is a fake. The Court will therefore proceed on the assumption that
the trial was conducted in the manner described in this record, from
which it appears that there was a court examination, even if a very
brief one.
The
applicant claimed that the court had based its decision on the
materials prepared by the police, namely the record of an
administrative offence, and ignored all his arguments. The Court
recalls, however, that it is not within its province to substitute
its own assessment of the facts and the evidence for that of the
domestic courts and, as a general rule, it is for these courts to
assess the evidence before them (see, among many other authorities,
Edwards v. the United Kingdom, judgment of 16 December 1992,
Series A no. 247 B, pp. 34-35, § 34; Bernard v. France,
judgment of 23 April 1998, Reports of Judgments and Decisions
1998 II, p. 879, § 37). Furthermore, while Article 6
guarantees the right to a fair hearing, it does not lay down any
rules on the admissibility of evidence as such, which is primarily a
matter for regulation under national law. It is therefore not the
role of the Court to determine, as a matter of principle, whether
particular types of evidence may be admissible or, indeed, whether
the applicant was guilty or not. The question which must be answered
is whether the proceedings as a whole, including the way in which the
evidence was obtained, were fair. In determining whether the
proceedings as a whole were fair, regard must also be had to whether
the rights of the defence have been respected. It must be
examined in particular whether the applicant was given the
opportunity of challenging the authenticity of the evidence and of
opposing its use. In addition, the quality of the evidence must be
taken into consideration, including whether the circumstances in
which it was obtained cast doubts on its reliability or accuracy.
While no problem of fairness necessarily arises where the evidence
obtained was unsupported by other material, it may be noted that
where the evidence is very strong and there is no risk of its being
unreliable, the need for supporting evidence is correspondingly
weaker (see Jalloh v. Germany [GC], no. 54810/00, §§
94-96, ECHR 2006 ...).
The
Court notes that the charge against the applicant and the ensuing
conviction were based on evidence given by the arresting police
officers as reflected in the record of an administrative offence and
other materials prepared by the police. In the Court's opinion, the
fact that the only evidence in criminal proceedings is the witness
testimony of an arresting police officer is not in itself contrary to
Article 6 of the Convention, as long as the accused has the
opportunity to test this evidence in adversarial proceedings. In the
present case, the applicant – even if at a very brief hearing –
was able to make submissions in defence of his position. On the other
hand, none of the arresting police officers was called and examined
in court. In this connection, the Court recalls, however, that the
right to examine a witness can only be exercised if the accused has
expressed his wish to do so (see Cardot v. France, judgment of
19 March 1991, Series A no. 200, pp. 18-19, §§ 35-36),
something which the applicant failed to do.
The
applicant further claimed that the tribunal was not impartial. The
Court recalls that the requirement of “impartiality”
enshrined in Article 6 § 1 of the Convention has two
aspects. Firstly, the tribunal must be subjectively free of personal
prejudice or bias. Secondly, it must also be impartial from an
objective viewpoint, that is, it must offer sufficient guarantees to
exclude any legitimate doubt in this respect (see Gautrin
and Others v. France, judgment of 20 May 1998, Reports of
Judgments and Decisions 1998-III, pp. 1030-31, § 58; Morris
v. the United Kingdom, no. 38784/97, § 58, ECHR 2002 I).
As to the subjective test, the personal impartiality of a judge must
be presumed until there is proof to the contrary (see Hauschildt
v. Denmark, judgment of 24 May 1989, Series A no. 154, p. 21,
§ 47; Daktaras v. Lithuania, no. 42095/98, § 30,
ECHR 2000 X). In the present case, the applicant alleged that
the judge was biased for political reasons. In this respect, the
Court considers that – while some of the materials in the case,
such as the PACE documents and the Human Rights Watch Briefing Paper,
suggest that the period surrounding the presidential election of 2003
was a period of increased political sensitivity – it is,
nevertheless, not sufficient to conclude that the judge examining the
applicant's particular case was personally biased for political
grounds. The Court further notes that the applicant did not raise any
other argument capable of casting doubt on the subjective or
objective impartiality of judge M. who had examined his case.
The applicant finally claimed that the hearing was not
public since it was allegedly held in a judge's office at 23h00. The
Court reiterates that the public character of court hearings
constitutes a fundamental principle enshrined in Article 6 § 1
(see, among other authorities, Schuler-Zgraggen v. Switzerland,
judgment of 24 June 1993, Series A no. 263, pp. 19-20, § 58).
The accused's right to a public hearing is not only an additional
guarantee that an endeavour will be made to establish the truth but
also helps to ensure that he is satisfied that his case is being
determined by a tribunal whose independence and impartiality he may
verify. The public character of proceedings before judicial bodies
protects litigants against the administration of justice in secret
without public scrutiny; it is also one of the means whereby
confidence in the courts, superior and inferior, can be maintained.
By rendering the administration of justice visible, publicity
contributes to the achievement of the aim of Article 6 § 1,
namely a fair trial, the guarantee of which is one of the fundamental
principles of any democratic society, within the meaning of the
Convention (see Fejde v. Sweden, judgment of 29 October
1991, Series A no. 212 C, pp. 67-68, § 28; Tierce
and Others v. San Marino, nos. 24954/94, 24971/94 and 24972/94, §
92, ECHR 2000 IX).
In
the present case, the Court notes at the outset that the hearing in
question was formally public. Nevertheless, it must be borne in mind
that the Convention is intended to guarantee not rights that are
theoretical or illusory but rights that are practical and effective
(see, among many other authorities, Sukhorubchenko v. Russia,
no. 69315/01, § 43, 10 February 2005). The Court considers that
the right to a public hearing would be illusory if a Contracting
State's domestic legal system allowed courts to hold hearings which
were public in form but would not be in reality accessible to the
public, including because of the time and location of the hearing
(see, mutatis mutandis, Riepan v. Austria, no.
35115/97, § 29-31, ECHR 2000 XII). The Court notes,
however, that it is not evident from the record of the court hearing
at what time the applicant's trial was conducted. Nor did the
applicant produce any other evidence which could support his
allegation that this hearing took place at 23h00. It is therefore
objectively impossible to establish the time of the court hearing and
whether this precluded the hearing from being public. As regards the
place of the hearing, it is true that the Government did not
explicitly contest the applicant's allegation that the hearing in
question took place in judge M.'s office as opposed to a courtroom
(see paragraph 21 above). However, it follows from the record of the
court hearing that the judge at a certain moment departed to a
deliberation room, which suggests that the hearing was most likely
held in a courtroom rather than an office. Furthermore, the fact that
no members of the public were present at the hearing does not
automatically render it not public. The Court finally notes that the
applicant did not submit any arguments other than solely relying on
the alleged time and location of the hearing in support of his
allegation that it was not public. In such circumstances, the Court
considers that there is no sufficient evidence to conclude that the
hearing in question was not public.
In
the light of all the above factors, the Court concludes that there
has been no violation of Article 6 § 1 of the Convention as far
as the applicant's right to a fair and public hearing by an impartial
tribunal is concerned.
(b) Article 6 § 3 taken together with
Article 6 § 1
The
Court reiterates that the requirements of Article 6 § 3 are to
be seen as particular aspects of the right to a fair trial guaranteed
by Article 6 § 1. The Court will therefore examine the
relevant complaints under both provisions taken together (see, among
many other authorities, F.C.B. v. Italy, judgment of 28
August 1991, Series A no. 208 B, p. 20, § 29; Poitrimol
v. France, judgment of 23 November 1993, Series A no. 277 A,
p. 13, § 29).
(i) The right to have adequate time and
facilities for the preparation of his defence
The
Court recalls that Article 6 § 3 (b) guarantees the accused
“adequate time and facilities for the preparation of his
defence” and therefore implies that the substantive defence
activity on his behalf may comprise everything which is “necessary”
to prepare the main trial. The accused must have the opportunity to
organise his defence in an appropriate way and without restriction as
to the possibility to put all relevant defence arguments before the
trial court and thus to influence the outcome of the proceedings (see
Can v. Austria, no. 9300/81, Commission's report of 12 July
1984, Series A no. 96, § 53; Connolly v. the United Kingdom
(dec.), no. 27245/95, 26 June 1996; Mayzit v. Russia, no.
63378/00, § 78, 20 January 2005). Furthermore, the
facilities which everyone charged with a criminal offence should
enjoy include the opportunity to acquaint himself for the purposes of
preparing his defence with the results of investigations carried out
throughout the proceedings (see C.G.P. v. the Netherlands,
(dec.), no. 29835/96, 15 January 1997; Foucher v. France,
judgment of 18 March 1997, Reports 1997-II, §§
26-38). The issue of adequacy of time and facilities afforded to an
accused must be assessed in the light of the circumstances of each
particular case.
In
the present case, the Court notes that the applicant's case was
examined in an expedited procedure under the CAO: according to
Article 277 of the CAO, cases concerning offences of minor
hooliganism were to be examined within one day. The Court recalls,
however, that the existence and utilisation of expeditious
proceedings in criminal matters is not in itself contrary to Article
6 of the Convention as long as they provide the necessary safeguards
and guarantees contained therein (see Borisova, cited above).
The Government claimed that it was open to the applicant to seek an
adjournment of his case, if he considered the time afforded to him
for the preparation of his defence to be insufficient, which he
failed to do. The Court notes, however, that the CAO does not
prescribe any exceptions to the rule contained in the above Article
277. Nor is the right to seek adjournment explicitly listed among the
rights enjoyed by an accused in administrative proceedings (Article
267 of the CAO). The Government also failed to invoke any legal basis
for such a right. Furthermore, neither the materials of the
applicant's administrative case, nor the Government themselves,
suggest that the applicant was made aware of the existence of such a
possibility by the police officers or the court. In such
circumstances, the Court considers that the Government have failed to
demonstrate convincingly that the applicant unequivocally enjoyed,
both in law and in practice, the right to have the examination of his
case adjourned in order to prepare his defence and that such an
adjournment would have possibly been granted, had the applicant made
a relevant request (see, a contrario, Murphy, cited
above).
The
Court notes that, according to the Government, the entire pre-trial
procedure lasted two hours from 17h30 to 19h30. The Government
claimed that, since the applicant's case was not a complex one, two
hours had been sufficient, taking into account that he had refused to
have a lawyer, had not availed himself of his right to lodge motions
and challenges, and had voluntarily signed the record of an
administrative offence. The Court considers, however, that the mere
fact that the applicant signed a paper in which he stated that he did
not wish to have a lawyer and chose to defend himself in person does
not mean that he did not need to be afforded adequate time and
facilities to prepare himself effectively for trial. Nor does the
fact that the applicant did not lodge any specific motions during the
short pre-trial period necessarily imply that no further time was
needed for him to be able – in adequate conditions – to
properly assess the charge against him and to consider various
avenues to defend himself effectively. Finally, the Court agrees that
the applicant had the choice of refusing to sign the record of an
administrative offence. However, contrary to what the Government
claim, nothing in law or in the materials of the applicant's
administrative case suggests that the applicant's signing of the
record pursued any other purpose than confirming the fact of him
having been familiarised with it and made aware of his rights and the
charge against him.
The
Court notes that the record of an administrative offence, which
contained the charge and was the main evidence against the applicant,
does not indicate precisely at what time he was presented with this
document and how much time he was given to review it. Nor can this be
established in respect of the police report and other materials
prepared by the police. The parties disagreed as regards the exact
length of the pre-trial period but, in any event, it is evident that
this period was not longer than a few hours. The Court further notes
that during this time the applicant was either in transit to the
court or was being kept in the police station without any contact
with the outside world. Furthermore, during this short stay at the
police station, the applicant was subjected to a number of
investigative activities, including questioning and a search. Even if
it is accepted that the applicant's case was not a complex one, the
Court doubts that the circumstances in which the applicant's trial
was conducted – from the moment of his arrest up until his
conviction – were such as to enable him to familiarise himself
properly with and to assess adequately the charge and evidence
against him, and to develop a viable legal strategy for his defence.
The
Court concludes that the applicant was not afforded adequate time and
facilities for the preparation of his defence. There has accordingly
been a violation of Article 6 § 3 taken together with Article 6
§ 1 of the Convention.
(ii) The right to defend himself in person
or through legal assistance of his own choosing
The
Court reiterates that, although not absolute, the right of everyone
charged with a criminal offence to be effectively defended by a
lawyer, assigned officially if need be, is one of the fundamental
features of a fair trial (see Krombach v. France, no.
29731/96, § 89, ECHR 2001-II). Furthermore, Article 6 may also
be relevant before a case is sent for trial and in so far as the
fairness of the trial is likely to be seriously prejudiced by an
initial failure to comply with it (see Imbrioscia v. Switzerland,
judgment of 24 November 1993, Series A no. 275, p. 13, § 36;
Öcalan v. Turkey [GC], no. 46221/99, § 131, ECHR
2005 ...). The manner in which Article 6 §§ 1 and 3
(c) are applied during the investigation depends on the special
features of the proceedings and the facts of the case. Article 6 will
normally require that the accused be allowed to benefit from the
assistance of a lawyer already at the initial stages of police
interrogation (see John Murray v. the United Kingdom, judgment
of 8 February 1996, Reports of Judgments and Decisions 1996 I,
pp. 54-55, § 63; Öcalan, cited above, § 131).
The Court further recalls that the right of an accused to participate
effectively in a criminal trial includes, in general, not only the
right to be present, but also the right to receive legal assistance,
if necessary (see Lagerblom v. Sweden, no. 26891/95, 14
January 2003, § 49).
In
the present case, the Court notes, however, that the applicant
himself did not wish to have a lawyer both during the pre-trial stage
and the court proceedings. In this connection, the Court recalls that
the waiver of a right guaranteed by the Convention – insofar as
it is permissible – must be established in an unequivocal
manner and must be attended by minimum safeguards commensurate with
its importance (see Colozza v. Italy, judgment of 12 February
1985, Series A no. 89, p. 14, § 28; Oberschlick v. Austria
(no. 1), judgment of 23 May 1991, Series A no. 204, p. 23, §
51; and Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR
2006 ...). The Court considers that the requirements established
by these principles were fulfilled in the present case in view of the
following.
The
Court notes that all the materials before it indicate that the
applicant expressly waived his right to be represented by a lawyer
both before and during the court hearing (see paragraphs 14 and 20
above). While the nature of some of the rights safeguarded by the
Convention is such as to exclude a waiver of the entitlement to
exercise them (see De Wilde, Ooms and Versyp,
cited above, p. 36, § 65), the same cannot be said of certain
other rights (see Albert and Le Compte, cited above, p. 19, §
35). It is clear from the text of Article 6 § 3 (c) that an
accused has the choice of defending himself either “in person
or through legal assistance”. Thus, it will normally not be
contrary to the requirements of this Article if an accused is
self-represented in accordance with his own will, unless the
interests of justice require otherwise. In the present case, there is
no evidence that the applicant's choice to be self-represented was
the result of any threats or physical violence. Furthermore, there is
no evidence to support the applicant's allegation that he was
“tricked” into refusing a lawyer. Even though the PACE
and Human Rights Watch reports referred to in paragraph 79 above
contain relevant information, these materials are, nevertheless, not
sufficient for the Court to conclude that actions, similar to the
ones described in these reports, happened in the applicant's
particular case. Finally, noting that
the applicant was accused of a minor offence and the maximum possible
sentence could not exceed 15 days of detention, the Court does not
discern in the present case any interests of justice which would have
required a mandatory legal representation.
Having
concluded that it was the applicant's own choice not to have a
lawyer, the Court considers that the authorities cannot be held
responsible for the fact that he was not legally represented in the
course of the administrative proceedings against him. There has
accordingly been no violation of Article 6 §§ 1 and 3 (c)
of the Convention taken together.
IV. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE
CONVENTION
The
applicant complained that the sanction imposed on him by the decision
of 7 April 2003 unlawfully interfered with his rights to freedom of
expression and freedom of peaceful assembly guaranteed by Articles 10
and 11 of the Convention respectively, which read as follows:
Article 10
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
Article 11
“1. Everyone has the right to freedom
of peaceful assembly...
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others...”
A. Admissibility
The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. The scope of the applicant's complaints
The
Court notes that, in the circumstances of the case, Article 10 is to
be regarded as a lex generalis in relation to Article 11, a
lex specialis. It is therefore unnecessary to take the
complaint under Article 10 into consideration separately (see Ezelin
v. France, judgment of 26 April 1991, Series A no. 202, p. 20, §
35).
On
the other hand, notwithstanding its autonomous role and particular
sphere of application, Article 11 must, in the present case, also be
considered in the light of Article 10. The protection of personal
opinions, secured by Article 10, is one of the objectives of freedom
of peaceful assembly as enshrined in Article 11 (ibid., §
37).
2. Whether there was an interference with the exercise
of the freedom of peaceful assembly
The
Government submitted that there was no interference with the
applicant's right to freedom of peaceful assembly guaranteed by
Article 11 since he, as he claimed himself, did not participate in
the demonstration in question. According to the Government, the
applicant was far away from the demonstration and, simply for
hooligan reasons, blocked a street that had nothing to do with it.
Such actions, however, cannot be considered as necessary for the
exercise of one's right to freedom of peaceful assembly.
The
Government further submitted that, being far away from the
demonstration and not participating in it, the applicant could only
exercise the right to freedom of expression and, more specifically,
the right to receive information guaranteed by Article 10. However,
there was no interference with this Article either, since the
applicant exercised his right to receive information without any
obstacles. In any event, the penalty imposed on the applicant was not
connected with the exercise of his rights under Article 10, since he
was convicted of minor hooliganism under Article 172 of the CAO.
The
applicant submitted that the Government's assertion that he did not
participate in the demonstration, so that there was no interference
with his right to freedom of peaceful assembly, contradicted the
findings of the domestic court, according to which he had allegedly
behaved in an anti-social way during the demonstration of 7 April
2003. If he had blocked a street which had nothing to do with the
demonstration, as the Government claimed, this fact would have been
disclosed by the investigating authority and without any doubt would
have been used in the administrative case against him.
The
Court notes that it is apparent from the police materials and the
court decision that the applicant was arrested and convicted for
violating public order during a demonstration and, more specifically,
the demonstration of 7 April 2003 held on the Mashtots Avenue.
The actions which led to a penalty being imposed on the applicant,
according to the judge's findings, were the “obstruction of
street traffic” and the “loud noise” he made during
this demonstration which, in the Court's opinion, were the direct
result of his participation in it. Thus, the Government's assertion
that the applicant did not participate in the demonstration and
blocked a street which had nothing to do with it has no basis in the
findings of the domestic authorities. It follows that the applicant
was convicted for his behaviour at the demonstration.
The
Court further notes that nothing suggests that this demonstration was
not intended to be peaceful. Furthermore, none of the materials in
the case suggest that it was prohibited or not authorised (see, a
contrario, Ziliberberg v. Moldova (dec.), no. 61821/00, 4
May 2004), or that the authorities attempted to disperse it or to
order its participants, including the applicant, to leave on account
of it being illegal or unauthorised or obstructing traffic (see, a
contrario, G. v. Germany, no. 13079/87, Commission
decision of 6 March 1989, DR 60, p. 256; Steel and Others v. the
United Kingdom, judgment of 23 September 1998, Reports of
Judgments and Decisions 1998 VII, p. 2725, § 7; Lucas
v. the United Kingdom (dec.), no. 39013/02, 18 March 2003).
The Government did not make such suggestions either. The Court
therefore concludes that the demonstration was not prohibited. By
joining it, the applicant availed himself of his right to freedom of
peaceful assembly and the conviction that followed amounted to an
interference with that right.
The
Court accordingly concludes that the applicant's conviction for his
participation at a lawful demonstration amounted to an interference
with his right to freedom of peaceful assembly.
3. Whether the interference was justified
An
interference will constitute a breach of Article 11 unless it is
“prescribed by law”, pursues one or more legitimate aims
under paragraph 2 and is “necessary in a democratic society”
for the achievement of those aims.
(a) “Prescribed by law”
The
Government submitted that, if the Court were to conclude that there
had been an interference with the applicant's right to freedom of
peaceful assembly, this interference was prescribed by law. The
applicant blocked Mashtots Avenue with a group of people and, by
doing so, violated public order, which was qualified as minor
hooliganism and fell within the ambit of Article 172 of the CAO.
The
applicant submitted that these actions could not be considered as
falling within the ambit of Article 172 of the CAO. According to this
Article, minor hooliganism meant obscene swearing or an offensive
annoyance of a person in public, as well as other similar actions
disturbing public order. However, obstruction of a street could not
be considered as an action similar to the ones mentioned above.
The
Court recalls that a norm cannot be regarded as a “law”
unless it is formulated with sufficient precision to enable the
citizen – if need be, with appropriate advice – to
foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail. Those consequences need
not be foreseeable with absolute certainty: experience shows this to
be unattainable. Again, whilst certainty is highly desirable, it may
bring in its train excessive rigidity and the law must be able to
keep pace with changing circumstances. Accordingly, many laws are
inevitably couched in terms which, to a greater or lesser extent, are
vague and whose interpretation and application are questions of
practice (see, among other authorities, Rekvényi v. Hungary
[GC], no. 25390/94, § 34, ECHR 1999 III).
In
the present case, the applicant was convicted under Article 172 of
the CAO which prescribes a penalty for, inter alia, actions
which disturb public order and peace of citizens. Taking into account
the diversity inherent in public order offences, the Court considers
that this norm is formulated with sufficient precision to satisfy the
requirements of Article 11. It follows that the interference was
prescribed by law.
(b) Legitimate aim
The
Government submitted that the interference was necessary for the
prevention of disorder and for the protection of the rights of
others, since the applicant was personally involved in committing
unlawful actions during the demonstration.
The
applicant denied having blocked a street during the demonstration. He
further submitted that, even assuming that he had done so, this
action, by its essence, degree of danger to society and possible
consequences, could not be considered as posing a threat to the
values protected by Article 11 of the Convention and thus requiring a
sanction.
The
Court notes that it is apparent that the applicant incurred the
sanction for actions which were qualified by the authorities as
violating public order. The interference was therefore in pursuit of
a legitimate aim, i.e. the “prevention of disorder”.
(c) “Necessary in a democratic
society”
The
Government submitted that the interference was proportionate since it
was aimed at preventing the applicant's unlawful actions and avoiding
social disorder. The Contracting Parties enjoyed a margin of
appreciation as far as the necessity of an interference was concerned
and the reasons given by the domestic authorities were sufficient.
The
applicant submitted that he had not committed any unlawful actions
during the demonstration of 7 April 2003, and his arrest and
conviction were mainly aimed at preventing his participation in
future demonstrations, since he was an opposition activist. This is
supported by the fact that several days before the demonstration the
Deputy Head of the Police Station demanded that he give up
participating in demonstrations.
The
applicant further referred to his previous submissions, according to
which he could not have obstructed street traffic because the
relevant stretch of the Mashtots Avenue was packed with about 30,000
people and the traffic had been already suspended by the traffic
police prior to the commencement of the demonstration. Furthermore,
the demonstration continued until 19h00 and was followed by a street
procession, in which he did not take part. Otherwise, the authorities
failed to specify what anti-social acts had been committed by him.
Being loud at the demonstration by shouting slogans, in a situation
where thousands of people were doing the same and no obscenity was
involved, could not be regarded as anti-social.
The
Court observes at the outset that the right to freedom of assembly is
a fundamental right in a democratic society and is one of the
foundations of such a society (see G. v. the Federal Republic of
Germany, cited above; Rai, Allmond and “Negotiate Now”
v. the United Kingdom, no. 25522/94, Commission
decision of 6 April 1995, DR 81-A, p. 146). This right, of which the
protection of personal opinion is one of the objectives, is subject
to a number of exceptions which must be narrowly interpreted and the
necessity for any restrictions must be convincingly established. When
examining whether restrictions on the rights and freedoms guaranteed
by the Convention can be considered “necessary in a democratic
society” the Contracting States enjoy a certain but not
unlimited margin of appreciation. It is, in any event, for the
European Court to give a final ruling on the restriction's
compatibility with the Convention and this is to be done by assessing
the circumstances of a particular case (see Osmani and Others v.
the former Yugoslav Republic of Macedonia (dec.), no. 50841/99,
11 October 2001).
The
Court recalls that a conviction for actions inciting to violence at a
demonstration can be deemed as an acceptable measure in certain
circumstances (ibid.). Furthermore, the imposition of a
sanction for participation in an unauthorised demonstration is
similarly considered to be compatible with the guarantees of Article
11 (see Ziliberberg, cited above). On the other hand, the
freedom to take part in a peaceful assembly is of such importance
that a person cannot be subjected to a sanction – even one at
the lower end of the scale of disciplinary penalties – for
participation in a demonstration which has not been prohibited, so
long as this person does not himself commit any reprehensible act on
such an occasion (see Ezelin, cited above, p. 23, § 53).
The
Court notes that, unlike in the Ezelin case, the applicant in
the present case was subjected to a much more severe penalty, i.e.
three days of deprivation of liberty, for committing the following
actions at the demonstration in question, “obstruction of
street traffic” and “making a loud noise”, as
indicated in the decision of the Kentron and Nork-Marash District
Court of Yerevan of 7 April 2003. Neither this decision, nor the
materials prepared by the police, provide any further details as to
the circumstances under which these actions were committed. On the
other hand, it is apparent from the police report that the street
where the demonstration took place, namely the Mashtots Avenue, was
packed with a great number of people (see paragraph 11 above), and
the Government did not dispute that the street traffic had been
suspended by the traffic police prior to the commencement of the
demonstration (see paragraph 8 above). Furthermore, as already
indicated above, the authorities did not make any attempts to
disperse the participants in the demonstration on account of unlawful
obstruction of traffic (see paragraph 101 above). It follows that the
“obstruction of street traffic”, which the applicant was
found guilty of, amounted to his physical presence at a demonstration
held on a street where traffic had already been suspended beforehand
by the authorities with the apparent intention of facilitating the
conduct of a lawful demonstration. As to the loud noise made by the
applicant, there is no suggestion that this noise involved any
obscenity or incitement to violence. The Court, however, finds it
hard to imagine a huge political demonstration, at which people
express their opinion, not generating a certain amount of noise.
In
the light of the above, the Court concludes that the applicant was
sanctioned for the mere fact of being present and proactive at the
demonstration in question, rather than for committing anything
illegal, violent or obscene in the course of it. In this respect, the
Court considers that the very essence of the right to freedom of
peaceful assembly would be impaired, if the State was not to prohibit
a demonstration but was then to impose sanctions, especially such
severe ones, on its participants for the mere fact of attending it,
without committing anything reprehensible, as happened in the
applicant's case. The Court therefore concludes that the interference
with the applicant's right to freedom of peaceful assembly was not
“necessary in a democratic society”.
Accordingly,
there has been a violation of Article 11 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 7
Lastly,
the applicant complained that he had no right to contest the decision
of 7 April 2003. The Court decides to examine this complaint under
Article 2 of Protocol No. 7 which reads as follows:
“1. Everyone convicted of a criminal
offence by a tribunal shall have the right to have his conviction or
sentence reviewed by a higher tribunal. The exercise of this right,
including the grounds on which it may be exercised, shall be governed
by law.
2. This right may be subject to exceptions in
regard to offences of a minor character, as prescribed by law...”
A. Admissibility
The
Court recalls that, where an offence is found to be of a criminal
character attracting the full guarantees of Article 6 of the
Convention, it consequently attracts also those of Article 2 of
Protocol No. 7 (see Gurepka, cited above, § 55). In the
present case, Article 6 of the Convention was found to be applicable
to the proceedings in question (see paragraph 60 above).
Consequently, Article 2 of Protocol No. 7 is similarly applicable in
this case.
The
Court therefore declares this complaint admissible.
B. Merits
The
Government repeated their arguments raised in their preliminary
objection and submitted that the applicant had the right to have his
conviction reviewed under Article 294 of the CAO.
The
applicant similarly repeated his arguments made in reply to the
Government's preliminary objection and submitted that the decision of
7 April 2003 could be contested only by the prosecutor.
The
Court first notes that the applicant was convicted under the CAO,
which prescribes penalties for offences that do not fall within the
criminal sphere in the domestic law. This may raise a question as to
whether or not the offence of which the applicant was convicted was
of a minor character within the meaning of Article 2 § 2 of
Protocol No. 7 and the exception contained in that provision should
apply. The Court recalls that the Commission has previously found an
offence, such as an “offence against the order in court”,
for which a maximum penalty of 10,000 Austrian shillings or, if
indispensable for maintaining the order, imprisonment for a period
not exceeding eight days was prescribed by the Austrian Code of
Criminal Procedure, to be of a “minor character” (see
Putz v. Austria, no. 18892/91, Commission decision of 3
December 1993, DR 76-A, p. 51). In the present case, the applicant
was sentenced to three days of detention. However, Article 172 of the
CAO, under which this sentence was imposed, prescribed up to 15 days
of detention as a maximum penalty. The Court considers that a penalty
of 15 days of imprisonment is sufficiently severe not to be regarded
as being of a “minor character” within the meaning of
Article 2 § 2 of Protocol No. 7.
The
Court recalls that Contracting States enjoy in principle a wide
margin of appreciation in determining how the right secured by
Article 2 of Protocol No. 7 to the Convention is to be
exercised. In certain countries, a defendant wishing to appeal may
sometimes be required to seek permission to do so. However, any
restrictions contained in domestic legislation on that right of
review must, by analogy with the right of access to a court embodied
in Article 6 § 1 of the Convention, pursue a legitimate aim and
not infringe the very essence of that right (see Krombach,
cited above, § 96; Gurepka, cited above, § 59).
The
Court is mindful of its finding above that the review procedure
prescribed by Article 294 of the CAO does not provide an individual
with a clear and accessible right to appeal (see paragraphs 40-42
above). This Article prescribes a power of review by the chairman of
a superior court – whether or not upon the individual's request
– which, moreover, lacks any clearly defined procedure or
time-limits and consistent application in practice. In the Court's
opinion, such a review possibility cannot be compatible with Article
2 of Protocol No. 7. It follows that the applicant did not have at
his disposal an appeal procedure which would satisfy the requirements
of this Article.
Accordingly,
there has been a violation of this provision.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed a total of 2,250,000 Armenian drams (AMD) (approx.
EUR 3,570 at the material time) in respect of pecuniary damage. In
particular, he submitted that he had signed a contract with a
construction company to work as an electrician from 12 February to 12
May 2003 with the daily remuneration of AMD 5,000 (approx. EUR 8).
Due to the police harassment which started in the beginning of April,
his detention and the resulting depression, he was unable to attend
and lost his job, incurring losses in the amount of AMD 250,000
(approx. EUR 396). Furthermore, during the last two and a half years
he had been unable to find a job due to being an opposition activist,
incurring losses in the amount of AMD 2,000,000 (approx. EUR
3,174). The applicant also claimed compensation for non-pecuniary
damage, leaving the determination of the amount to the Court.
The
Government contested his claims. As to the pecuniary damage, they
submitted that there was no causal link between the violation alleged
and the amounts claimed. The applicant has been unemployed since
24 January 2003, the date when he registered himself with the
employment service, and his detention had no impact whatsoever on his
unemployment. As to the alleged contractual obligations with the
construction company, the applicant failed to submit any documents
substantiating the existence of such obligations and of the alleged
remuneration. As to the non-pecuniary damage, the Government
submitted that a finding of a violation must be sufficient,
considering that the applicant had failed to specify what moral
damage he had suffered and to calculate a corresponding compensation.
The Court notes that the applicant has failed to
provide any documentary proof demonstrating that he was unable to
perform any contractual obligations and incurred losses due to his
conviction, such as a copy of the alleged work contract. As to the
remainder of the pecuniary damage claimed, the Court agrees with the
Government that there is no causal link between the violation found
and the amount claimed; it therefore rejects this claim. On the other
hand, the Court considers that the applicant has undoubtedly suffered
non-pecuniary damage as a result of being sanctioned for his
participation in a demonstration through unfair proceedings and
having no appeal possibility against this sanction, which resulted in
his detention for a period of three days. The Court, therefore,
ruling on an equitable basis, awards the applicant EUR 3,000 in
respect of non-pecuniary damage.
B. Costs and expenses
The
applicant made no claim under this head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Declares unanimously admissible the complaints
concerning the lack of a fair and public hearing by an impartial
tribunal, the violation of the rights of the defence, the
interference with the right to freedom of expression and freedom of
peaceful assembly, and the lack of possibility to appeal against the
decision imposing administrative detention, under Article 6 §§
1 and 3 (b) and (c) and Articles 10 and 11 of the Convention, and
Article 2 of Protocol No. 7, and inadmissible the remainder of the
application;
Holds unanimously that there has been no
violation of Article 6 § 1 of the Convention as far as the
applicant's right to a fair and public hearing by an impartial
tribunal is concerned;
Holds unanimously that there has been a
violation of Article 6 § 1, taken together with Article 6 §
3 (b) of the Convention;
Holds by five votes to two that there has been
no violation of Article 6 § 1, taken together with
Article 6 § 3 (c) of the Convention;
Holds unanimously that there is no need to
examine the complaint under Article 10 of the Convention;
Holds unanimously that there has been a
violation of Article 11 of the Convention;
Holds unanimously that there has been a
violation of Article 2 of Protocol No. 7;
Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000 (three thousand
euros) in respect of non-pecuniary damage,
to be converted into the national currency of the respondent
State at the rate applicable at
the date of settlement, plus any tax that may be chargeable on
this amount;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 15
November 2007, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Mrs E.
Fura-Sandström, joined by Mr B.M. Zupančič is annexed
to this judgment.
B.M.Z.
S.Q.
PARTLY DISSENTING OPINION OF JUDGE FURA SANDSTRÖM
JOINED BY JUDGE ZUPANČIČ
Disagreeing
with the majority, I consider that there has been a violation of
Article 6 § 1, taken together with Article 6 § 3 (c) of the
Convention, since the applicant had to defend himself without the
assistance of a lawyer after having participated in a demonstration
in Yerevan on the occasion of Mother's Day.
It
is not in dispute that the applicant waived his right to have a
lawyer by signing the record of an administrative offence, a fact
which he later confirmed before the court. The applicant put his
signature in the section certifying that he had been made aware of
his rights under Article 267 of the Code of Administrative Offences
and added “I do not wish to have a lawyer”. Also,
according to the record of the court hearing, the judge explained the
applicant's rights to him. The applicant stated that he was aware of
his rights and did not wish to have a lawyer (see paragraphs 14 and
20 of the judgment).
I
note, together with the majority in paragraph 90 of the judgment,
that such a waiver must be established in an unequivocal manner and
must be attended by minimum safeguards commensurate with its
importance. But I would also point out that in examining the validity
of a waiver, the Court has previously attached weight to such factors
as, inter alia, the choice made by an applicant being free,
unambiguous and not affected by any external circumstances (see
Thompson v. the United Kingdom, no. 36256/97, §
44, 15 June 2004) and the awareness of an applicant of the
consequences of his actions (see Bonev v. Bulgaria, no.
60018/00, § 41, 8 June 2006).
I
further note that, despite the fact that the applicant expressly
waived his right to have a lawyer, the circumstances which led to
this waiver remain unclear and are at the core of the dispute between
the parties. The fact that the applicant refused to have a lawyer –
even if the refusal was given expressly in writing – does not
necessarily imply that his refusal was not given as a result of some
sort of pressure or deception on the part of the police officers.
While there is no objective evidence to support the Government's
position, I would point to the existence of such objective data as
the Human Rights Watch Briefing Paper, which contains a detailed
description of the wide-scale abuse of the administrative procedure
by the authorities – and notably the police – during the
period surrounding the presidential election (see paragraph 32 of the
judgment).
The
right to be assisted by a lawyer is part of the privilege against
self-incrimination referred to in American doctrine as the “Miranda
law”. It has been described as the “bright line”
rule (beyond which nobody should cross) intended to forever
extinguish the use of coercion but allowing pressure. The purpose of
the rule is to neutralise the distinct psychological
disadvantage that suspects are under while dealing with the police.
The case before us illustrates why it is so important to uphold.
I
would like to draw attention to the relevant chapters of the Briefing
Paper describing the methods used and the obstacles created by the
police in order to deprive opposition activists of legal assistance,
which support the applicant's account of events. Similar information
is contained in the relevant report of the Council of Europe's
Parliamentary Assembly (see paragraphs 29-31 of the judgment).
Furthermore
it is to be noted that the applicant has been consistent in his
account of events, making similar submissions in his complaint lodged
with a local human rights NGO several days after his conviction (see
paragraph 22 of the judgment).
Finally
I am mindful of the finding of the Court that the applicant was not
afforded sufficient time to adequately assess the charge against him,
which, in my opinion, also includes the assessment of the need to
have legal assistance.
All
the above factors, while not sufficient for the Court to conclude
that the applicant, as he claims, was “tricked” into
refusing a lawyer, nevertheless prompt me to seriously doubt whether
the applicant's waiver was truly voluntary and whether he was fully
aware of the legal consequences of such a waiver.
I
cannot therefore consider this waiver to be valid from the point of
view of the Convention. Having come to this conclusion, and on the
basis of the same factors, I consider that the applicant was not
given a real opportunity – prior to the start of the hearing,
which itself lasted about five minutes – to decide whether it
was necessary to engage a lawyer and, if so, to choose and appoint
one.
Considering
the above and the fact that the applicant's complaint under Article 6
§ 3 (c) of the Convention is closely connected to and partly
results from his complaint under Article 6 § 3 (b) (see
paragraphs 84-88 of the judgment), I consider that his right to be
defended through legal assistance was infringed.