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HAKOBYAN AND OTHERS v. ARMENIA - 34320/04 [2012] ECHR 616 (10 April 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/616.html
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[2012] ECHR 616
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THIRD
SECTION
CASE OF
HAKOBYAN AND OTHERS v. ARMENIA
(Application
no. 34320/04)
JUDGMENT
STRASBOURG
10 April
2012
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 Hakobyan and Others v. Armenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis
López Guerra,
Kristina Pardalos, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 20 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 34320/04) 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 three Armenian nationals, Mr Hakob Hakobyan
(“the first applicant”), Mr Gor Martirosyan (“the
second applicant”) and Mr Hamlet Petrosyan (“the
third applicant), on 25 August 2004.
The applicants were represented by Mr M. Muller, Mr T.
Otty, Mr K. Yildiz, Ms L. Claridge and Ms A. Stock, lawyers
of the Kurdish Human Rights Project (KHRP) based in London, and Mr T.
Ter-Yesayan and Ms N. Gasparyan, lawyers practising in Yerevan. 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.
The
applicants alleged, in particular, that their arrest and detention
violated their rights guaranteed by Articles 5, 10, 11 and 14 of the
Convention, while the administrative proceedings against them had
been conducted in violation of the guarantees of Article 6 of the
Convention and Article 2 of Protocol No. 7.
On
6 December 2005 the President of the Third Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1). On 14 April 2009 the Chamber
decided to re-communicate the application and to request the parties
to submit further observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1967, 1969 and 1956 respectively, and live in
the town of Armavir, the village of Nairi and the village of
Nalbandyan respectively, Armavir Region of Armenia.
A. Background to the case
The
applicants were members of the main opposition parties at the
material time in Armenia. The first applicant was the Chairman of the
Armavir Town Office of the National Unity Party. The second applicant
was a member of the Republic Party. The third applicant was a member
of the Armavir Regional Branch of the National Unity Party.
In
February and March 2003 a presidential election was held in Armenia
which was won by the incumbent President. The international election
observation mission concluded that the overall election process fell
short of international standards. It appears that mass protests
followed. The main opposition candidate
challenged the election results in the Constitutional Court, which on
16 April 2003 recommended that a referendum of confidence in the
re-elected President be held in Armenia within a year.
As
the April 2004 one-year deadline approached, the united opposition
stepped up its campaign to challenge the legitimacy of the re elected
President. A series of protest rallies were organised in Yerevan in
March and April 2004, calling for the referendum of confidence.
According to the applicants, several demonstrations were scheduled
for 5, 9 and 12 April 2004 which they intended to attend.
B. The first and the third applicants
1. The first administrative detention of the first
applicant
The
first applicant alleged that on 30 March 2004 at around 8 a.m. he was
visited at his home by a plain clothes police officer who informed
him that the Chief of the Armavir Town Police Department wished to
speak with him. He complied with the order and was taken to the
police station. According to the first applicant, he did not question
the police officer’s demands since three weeks earlier he had
already been invited by the Chief of the Police Department who wanted
to become familiar with the leaders of the opposition parties.
According
to the first applicant’s arrest record and other police
materials, the first applicant was taken to the police station by
several police officers on 30 March 2004 at around 2 p.m. The arrest
record stated that the first applicant had been brought to the police
station for inspection purposes in order to confiscate illegal
ammunition in his possession.
At
the police station an administrative case was initiated against the
first applicant under Article 182 of the Code of Administrative
Offences (“the CAO”) for disobeying the lawful orders of
police officers.
One
of the arresting police officers reported to the Chief of the Police
Department that:
“... on 30 March 2004 ... [the first applicant]
who, according to information obtained, kept at his house illegal
ammunition, was brought to [the police station]. While being brought
to [the police station, the first applicant] disobeyed our lawful
order, flatly refused to come to the station and used foul language
addressed both at us and the regime. The row lasted about five
minutes, after which [the first applicant] was brought to [the police
station]. [The first applicant] was brought to [the police station]
for preventive purposes and for surrendering the ammunition in his
possession.”
The
first applicant was subjected to a personal search but nothing of an
illegal nature was found in his possession. He alleged that a written
statement was then presented to him, in which it was stated that he
had refused to obey the orders of the police officers when asked to
accompany them to the police station, had become annoyed at them, had
used offensive language and had prevented their work for about three
to five minutes. He refused to sign that statement.
Shortly
thereafter the first applicant was brought before Judge A. of the
Armavir Regional Court who, after a brief hearing, sentenced him
under Article 182 of the CAO to seven days of administrative
detention. The judge’s entire finding amounted to the
following:
“On 30 March 2004 at around 2 p.m. [the first
applicant] disobeyed the lawful orders of the police officers when
asked to go with them to the Armavir Town Police Department on
suspicion of illegal possession of ammunition, for which on the same
day at 2 p.m. he was taken to the Armavir Town Police Department. The
commission of the offence by [the first applicant] is corroborated by
the [police] report, [the arrest record], the record of an
administrative offence and other relevant information.”
According
to this decision, the first applicant’s detention period was to
be calculated from 2 p.m. on 30 March 2004.
According
to the record of the court hearing, the judge informed the first
applicant of his right to challenge the judge and the clerk and his
right to have a lawyer. The first applicant did not wish to lodge any
challenges or to have a lawyer. The judge then proceeded with
examination of the materials of the case. The judge heard the police
officer presenting the case and the first applicant who claimed that
he had not committed any administrative offence and refused to make
further submissions. The judge continued the examination of evidence
and decided to impose an administrative penalty.
According
to the first applicant, the hearing lasted about one minute, without
examination of witnesses and without him being able to make any
submissions or being represented by counsel, his request to see a
lawyer having been refused.
The
first applicant was taken to the detention facility of the Armavir
Town Police Department to serve his sentence. According to the
register of administrative detention, the first applicant was
admitted to the detention facility at 4 p.m.
2. The first administrative detention of the third
applicant
The
third applicant alleged that on 2 April 2004 at 6.30 a.m. he was
visited at his home by four police officers who told him to accompany
them to the Armavir Town Police Department. The third applicant asked
for reasons, to which the police officers replied that they were not
authorised to explain and that he would be informed of the reasons at
the police station. The third applicant then accompanied the officers
to the police station.
According
to the third applicant’s arrest record and other materials of
the case, the third applicant was taken to the police station at an
unspecified hour on 2 April 2004 on suspicion of having been involved
in a traffic accident. The arrest record added that, when being
brought to the police station, the third applicant obstructed the
lawful work of the police officers for about five to seven minutes.
The
third applicant alleged that at the police station he asked to see
the Chief of the Police Department. Three hours later he met with the
Chief who told him that he was to be detained and that nothing could
be done about this as it had been ordered from above. He was then
taken to the investigation department where an administrative case
against him was initiated under Article 182 of the CAO for disobeying
the lawful orders of police officers for about five to seven minutes.
Only then did he find out the reason for his arrest.
The
Government contested the above allegations. They claimed that the
third applicant had been informed orally of the reason for his
arrest, namely his use of foul language and disobeying the lawful
orders of the police officers, at the time of his arrest.
One
of the arresting police officers reported to the Chief of the Police
Department that:
“...on 29 June 2003 at around 11 p.m. in the area
of the 17th km of the Margara Ejmiatsin highway the driver of a
car, whose model and licence number are unknown, ran over [a third
person, A.A.], causing grave physical injuries.
For the purpose of a check, based on operative
information obtained, we visited the village of Nalbandyan in Amavir
Region in order to take the resident of the same village, [the third
applicant], together with his [car], to the police station.
It turned out that the car was not at home, while [the
third applicant] showed a disrespectful attitude, started to argue
and use foul language, calling the Armenian state oppressive. We
finally managed to calm [him] down and to bring him to the police
station.”
The
third applicant noted in his arrest record and his written statement
that he had “not committed any offence”. He refused to
sign any of the other materials. None of the materials in the third
applicant’s administrative case indicated the time of his
arrest.
Shortly
thereafter the third applicant was brought before Judge H. of the
Armavir Regional Court who, after a brief hearing, sentenced him
under Article 182 of the CAO to four days of administrative
detention. The judge’s entire finding amounted to the
following:
“For the purposes of verifying the information
obtained, according to which [a person had been hit in a traffic
accident] sustaining serious physical injuries, [the police officers]
visited the village of Nalbandyan ... in order to take [the third
applicant and his car] to the police station ... [D]uring the visit
[the third applicant] behaved disrespectfully and started to argue,
use foul language and behave disrespectfully towards the Armenian
public authorities, hindering the work of the police for about three
to five minutes. The police officers managed to calm [the third
applicant] down and to bring him to the Armavir Town Police
Department. [The third applicant] denied committing the offence. The
commission of the offence by [the third applicant] is corroborated by
the record of an administrative offence, the [police] report and [the
arrest record].”
According
to this decision, the third applicant’s detention period was to
be calculated from 5 p.m. on 2 April 2004.
According
to the record of the court hearing, the judge informed the third
applicant of his right to challenge the judge and to have a lawyer.
The third applicant did not wish to lodge any challenges or to have a
lawyer. The judge then proceeded with the examination of the
materials of the case. The judge heard the third applicant who
claimed that he had not committed any administrative offence and
pleaded not guilty. He denied having used foul language or behaved
disrespectfully towards the State. Thereafter, the judge examined the
materials prepared by the police. No further evidence was produced or
motions filed by the third applicant. The judge departed to the
deliberation room, after which he returned and announced the
decision.
According
to the third applicant, the hearing lasted about two minutes and the
judge refused to listen to any of his arguments.
The
third applicant was taken to the detention facility of the Armavir
Town Police Department to serve his sentence, sharing a cell with the
first and the second applicants. According to the register of
administrative detention, the third applicant was admitted to the
detention facility at 5 p.m.
3. The second administrative detention of the first and
the third applicants
The
first and the third applicants alleged that on 6 April 2004, the
final day of their detention, at around 2 p.m. they were taken
together to the Armavir Regional Court. After waiting in the corridor
of the courthouse for about 10 to 20 minutes, they were both taken
back to the temporary detention facility at the Police Department.
Two hours later they were again taken to the Armavir Regional Court
where they were brought before Judges H. and A. respectively. At the
conclusion of brief hearings conducted in the same manner as those on
30 March and 2 April 2004, they were sentenced under Article 182 of
the CAO to seven days of administrative detention for disobeying the
lawful orders of police officers.
The
Government contested this allegation, relying on the following
materials of the case.
According
to the register of administrative detentions, the first and the third
applicants were released from detention on 6 April 2004 at 2 p.m. and
5 p.m. respectively upon expiry of their sentences.
According
to their respective arrest records and other police materials, the
first and the third applicants were re-arrested at 4.30 p.m. and 5.30
p.m. respectively in front of the police station for using foul
language and disobeying the lawful orders of the police officers who
tried to calm them down. At the police station administrative cases
were initiated against them under Article 182 of the CAO.
A
police officer’s report made in the first applicant’s
case stated that:
“... on 6 April 2004 at 4.30 p.m. I was
approaching the building of the Armavir Police Department[. A person
was standing in the yard of the Department] and using swearwords. I
approached him in order to call him to order, however, [he]
maliciously disobeyed my lawful orders[. I] tried for about two to
three minutes to call him to order. The mentioned [person] was
brought to the police station where it was established that he was
... [the first applicant] who had just been released from
administrative detention...”
A
police officer’s report made in the third applicant’s
case stated that:
“... on 6 April 2004 at 5.30 p.m. I was
approaching the building of the Armavir Police Department[. A person
was standing in the yard of the Department] and using random
swearwords. I approached him in order to call him to order, however,
[he] maliciously disobeyed my lawful orders, using foul language for
two to three minutes. The mentioned [person] was brought to the
police station where it was established that he was ... [the third
applicant] who had just been released from administrative
detention...”
According
to the Government, at 5.30 p.m. the first applicant was taken to the
Armavir Regional Court where a new sentence was imposed on him. The
third applicant was also taken to the Regional Court shortly after
his arrest and subjected to a new administrative penalty.
The
judges’ findings in respect of both applicants were virtually
the same and stated that on 6 April 2004 the first and the third
applicants, at 4.30 p.m. and 5.30 p.m. respectively, had
randomly used swearwords in front of the Armavir Town Police
Department. The police officers had tried to call them to order but
the first and the third applicants had maliciously disobeyed their
lawful orders and used foul language for about three minutes. The
first and the third applicants denied their guilt which was, however,
corroborated by the records of an administrative offence, the police
reports and the arrest records.
According
to the respective court decisions, the first applicant’s
detention period was to be calculated from 7 p.m. on 6 April 2004,
while the third applicant’s detention period was to be
calculated from 5.30 p.m. on the same day.
According
to the records of the court hearings, the trials were conducted in a
manner similar to that reflected in the records of the hearings of 30
March and 2 April 2004 (see paragraphs 16 and 27 above).
The
first and the third applicants were then taken to the detention
facility of the Armavir Town Police Department where they fully
served their sentences, sharing a cell with the second applicant.
According to the register of administrative detention, the first
applicant was admitted to the detention facility at 7 p.m. on 6 April
2004, while the third applicant at 5.30 p.m. on the same date.
The time of their release was indicated as 7 p.m. and 5.30 p.m.
respectively on 13 April 2004.
C. The second applicant
1. The first administrative detention
On
2 April 2004 between 7.30 and 8 a.m. the second applicant was visited
at his home by several police officers. The police officers informed
the second applicant that he was suspected of hiding a wanted person
in his home. The officers proceeded to conduct a search of the house.
The person for whom they were searching was not found.
The
second applicant alleged that, following the search, the police
captain invited him to accompany them to the Village Council. He
replied that the Village Council opened at 9 a.m. and that he would
go there on foot. The police officers then tried to force him into
their car and take him to the Armavir Town Police Department.
At
the police station an administrative case was initiated against the
second applicant under Article 182 of the CAO. The police officers
drew up a record of the second applicant’s arrest, in which it
was stated that he had been “brought to the police station on 2
April 2004 at 8 a.m. for disobeying the lawful orders of the police
officers, using foul language and obstructing the work of the police
for about five minutes”.
One
of the arresting police officers reported to the Chief of the Police
Department that:
“... on 2 April 2004 ... I and [two other police
officers] visited the village of Nairi ... where, according to
information obtained, [a wanted person] was hiding in [the second
applicant’s] home. During our visit to [the second applicant’s]
home, [the second applicant] disobeyed our lawful orders, used foul
language, answered our questions with a question and obstructed our
work for about five minutes.”
The
second applicant made a written statement in which he submitted that:
“... during the search a disagreement arose in the
discussion between me and a police officer: the police officers were
inviting me to the Village Council to which I replied that I wanted
to go there on foot, which they did not accept. Thereafter, I
followed them to [the police station]. The disagreement between me
and the police officers lasted about two to three minutes.”
The
same day at 5 p.m. the second applicant was brought before Judge H.
of the Armavir Regional Court who, after a brief hearing, sentenced
the second applicant under Article 182 of the CAO to seven days of
administrative detention. The judge’s entire finding amounted
to the following:
“On 2 April 2004 [the police officers] visited
[the second applicant’s] flat where, according to information
obtained, [a wanted person] was hiding. During the visit [the second
applicant] obstructed the police officers for about three to five
minutes, did not follow their lawful orders and used foul language,
for which he was taken to Armavir Town Police Department. [The second
applicant] admitted and regretted having committed the offence. The
commission of the offence by [the second applicant] is also
corroborated by the record of an administrative offence, the [police]
report, and [the arrest record].”
According
to this decision, the second applicant’s detention period was
to be calculated from 5 p.m. on 2 April 2004.
According
to the record of the court hearing, the trial was conducted in a
manner similar to other hearings (see paragraphs 16, 27 and 39
above). The second applicant admitted to having committed an
administrative offence and pleaded guilty.
The
second applicant contested the version of the trial presented in the
above record and alleged that no witnesses were examined during the
hearing and his request to be represented by a lawyer was refused. At
no time did he admit to having committed an offence.
The
second applicant was taken to the detention facility of the Armavir
Town Police Department to serve his sentence, sharing a cell with the
first and the third applicants. According to the register of
administrative detention, the first applicant was admitted to the
detention facility at 5 p.m.
2. The second administrative detention
The
second applicant alleged that on 9 April 2004 at around 4 p.m., one
hour before the expiry of his sentence, he was taken to the
investigator’s office. There he was presented with a second
charge. At 5.05 p.m. he was taken from the detention cell and brought
before Judge S. of the Armavir Regional Court. A brief hearing took
place, conducted in the same manner as that on 2 April 2004.
The
Government contested this allegation. They submitted that the second
applicant was released from detention on 9 April 2004 at 5 p.m.
following the expiry of his sentence. At 5.10 p.m. he was re-arrested
at the crossroads of Hanrapetutyun and Shahumyan Street which was
about 50 to 100 metres away from the Police Department where he had
been serving his first sentence. At 6 p.m. he was brought before
Judge S.
According
to the register of administrative detention, the second applicant was
released from detention at 5 p.m. on 9 April 2004 upon expiry of his
sentence. According to the record of the second applicant’s
arrest, he was “brought to the police station on 9 April 2004
at 5.10 p.m. for using foul language at the police officers and
maliciously disobeying their lawful orders for five to seven
minutes”. The applicant refused to sign this record and to make
a written statement.
A
police officer’s report stated that:
“... on 9 April 2004 at around 5.10 p.m. at the
crossroads of Hanrapetutyun and Shahumyan Street ... I noticed a
citizen who was swearing loudly. I approached him to call him to
order but he started to swear at me and the police. For three to five
minutes I tried to call him to order but he disobeyed my lawful
orders, for which I brought him to the police station where it turned
out that he was [the second applicant] who had just been released
from administrative detention.”
Judge
S. sentenced the applicant under Article 182 of the CAO to four days
of administrative detention. The judge’s entire finding
amounted to the following:
“On 9 April 2004 at around 5.10 p.m. on
Hanrapetutyun Street ... [the second applicant] for about three to
five minutes maliciously disobeyed the lawful order of [the police
officer] ... [The second applicant] did not accept the charges
brought against him. He stated that he had not used foul language and
swearwords. The charges brought against [the second applicant] are
corroborated by [the police report, the arrest record and the record
of an administrative offence].”
According
to this decision, the second applicant’s detention period was
to be calculated from 5.10 p.m. on 9 April 2004.
The
second applicant was taken to the detention facility of the Armavir
Town Police Department where he served his sentence in full.
According to the register of administrative detention, the second
applicant was admitted to the detention facility at 6.30 p.m. on 9
April 2004 and he was released upon expiry of his sentence in April
2004 (exact date illegible) at 5.10 p.m.
D. Subsequent developments
While
serving their second administrative sentences the applicants
complained to the Armenian Ombudsman that within the period from
30 March to 3 April 2004 they had been unlawfully taken to the
Armavir Town Police Department in the early morning, from where,
after having been presented with trumped-up charges, they were
transported to the Armavir Regional Court. Judges A. and H., without
trying to clarify any circumstance or to examine any witnesses in
connection with the “charges” against them, adopted
pre-ordered decisions subjecting them to four and seven days of
administrative detention. Upon expiry of their respective
administrative sentences, they had not been released from detention
but instead new trumped-up “charges” were brought against
them, following which Judges A., H. and S. subjected them to another
four and seven days of administrative detention. The applicants
claimed that such actions by the authorities were directly linked
with the demonstrations held in Yerevan and that they were being
detained for their political views.
According
to the applicants, following their release from detention, they
continued to be visited frequently by police officers. Several days
after their release they were each visited by the Head of the Armavir
Town Police Department who attempted to persuade them not to become
involved actively in opposition politics. The applicants were invited
to appear at the police office on this occasion and periodically
thereafter whenever a political demonstration was due to take place.
They did not take up these invitations due to the fear that they
would be detained once again on allegedly falsified charges.
The
applicants allege that, as a result of the frequent police visits,
the first applicant had to move away from his home. The second
applicant was subjected to almost daily visits, causing great stress
to his family. On the afternoon of 22 May 2004 his home was
surrounded by police with dogs. He left his home unnoticed, following
which the police entered his home and carried out a search. As a
result of these visits, the second applicant was unable to undertake
farming work on his land, attend to daily chores or partake in social
life, spending most of his time hiding from the police.
On
20 April 2004 the first and the third applicants complained to the
Ombudsman about the continuing observation by the police. On 27 April
and 24 May 2004 the second applicant also complained to the Ombudsman
about the same and about the events of 22 May 2004.
On
25 April 2004 the Ombudsman decided to admit the applicants’
case for examination.
II. RELEVANT DOMESTIC LAW
For
a summary of the relevant provisions of the CAO see the judgment in
the case of Galstyan v. Armenia (no. 26986/03, § 26,
15 November 2007). The provisions of the CAO which were not
cited in the above judgment, as in force at the material time,
provide:
Article 182: Maliciously disobeying a lawful order or
demand of a police officer or a member of the voluntary police
“Maliciously disobeying a lawful order or demand
of a police officer or a member of the voluntary police made in the
performance of his duties of preserving public order shall result in
the imposition of a fine of between 50% of and double the fixed
minimum wage, or of correctional labour for between one and two
months with the deduction of 20% of earnings or, in cases where, in
the circumstances of the case, taking into account the offender’s
personality, the application of these measures would be deemed
insufficient, of administrative detention not exceeding 15 days.”
III. RELEVANT INTERNATIONAL AND DOMESTIC DOCUMENTS AND
PRESS RELEASES
A. Resolution 1374 (2004) of the Parliamentary Assembly
of the Council of Europe (PACE): Honouring of obligations and
commitments by Armenia, 28 April 2004
The
relevant extracts from the Resolution provide:
“1. Since the end of March 2004, a
series of protests have been organised by the opposition forces in
Armenia, calling for a ‘referendum of confidence’ in
President Kocharian. The possibility of such a referendum was first
mentioned by the Armenian Constitutional Court following the
presidential elections in February and March 2003. The Constitutional
Court later clarified its proposal and the authorities are calling
the opposition demands and protests an attempt to seize power by
force.
2. The demonstrations, although announced,
were not authorised by the authorities, who have threatened the
organisers with criminal prosecution. Following the demonstrations on
5 April, the General Prosecutor opened criminal investigations
against several members of the opposition and arrested many more, in
connection with the opposition parties’ rally. On the same
occasion, several journalists and politicians were beaten up by
unknown persons while the police stood by and took no action.
3. New demonstrations took place on 9, 10 and
12 April in Yerevan. In the early morning of 13 April, the security
forces violently dispersed some 2,000 to 3,000 protesters who were
attempting to march towards the presidential palace, calling for
President Kocharian’s resignation. The police reportedly used
truncheons, water cannons and tear gas, causing dozens of injuries. A
number of protesters were arrested, including members of parliament,
some of whom are members of the Assembly, and some were allegedly
mistreated by the police while in custody. The security forces also
assaulted and arrested several journalists who were covering the
opposition rally.
4. Tensions in Armenia continue to run high;
new protests are planned for the week of 26 April. For the time-being
there seems to be little room for dialogue between the authorities
and the opposition, even if some offers have been made and some
members of the ruling majority – for example, the Speaker of
the Armenian Parliament – have begun criticising the
heavy-handed crackdown on demonstrations.
5. With regard to the conduct of the
authorities, the Parliamentary Assembly ... is particularly concerned
with the fact that:
i. arrests, including those carried out on
the basis of the Administrative Code, ignored the demand to
immediately end the practice of administrative detention and to
change the Administrative Code used as a legal basis for this
practice; ...
9. The Assembly calls upon the Armenian
authorities to: ...
iii. immediately release the persons detained
for their participation in the demonstrations and immediately end the
practice of administrative detention and amend the Administrative
Code to this effect...”
B. Report by the PACE Committee on the Honouring of
Obligations and Commitments by Member States of the Council of
Europe, Doc. 10163, 27 April 2004
The
Report contains an explanatory memorandum to the draft of the PACE
Resolution 1374. The relevant extracts from the explanatory
memorandum provide:
“Since the end of March, opposition forces in
Armenia decided to jointly organise mass protests to force a
‘referendum of confidence’ in President Kocharian. The
possibility of such a referendum was first mentioned by the Armenian
Constitutional Court following the presidential elections in February
and March last year, which were strongly criticised by the
international community. ...
The Armenian authorities reacted to the opposition call
for protests with a campaign of political intimidation and
administrative and judicial harassment. Once the protests started,
the reaction was even more ruthless. Demonstrations were violently
dispersed, journalists were beaten up, a large number of opposition
supporters were arrested and premises of the opposition parties were
raided by the police.
...
In January 2004 the Assembly adopted its second
monitoring report since the accession of Armenia to the Council of
Europe in January 2001. Resolution 1361, adopted on this occasion,
takes note of some encouraging developments that took place in the
last two years...
However, the Resolution ... sharply criticised the
[presidential and parliamentary] elections carried out in 2003.
Moreover, it listed a number of serious concerns with regard to the
democratic and human rights conduct of the Armenian authorities and
expressed its expectations that these issues will be speedily dealt
with in accordance with Council of Europe standards and principles.
Regrettably, the reaction of the Armenian authorities in
the events of March and April [2004] demonstrate that the Assembly’s
request for further progress was ignored and that, with regard to
some of the Assembly’s key concerns, the situation has even
worsened.
Administrative detention
With regard to the scandalous and continued use of
administrative detention, Resolution 1361 urged the authorities to
amend the Administrative Code to put an end to this practice which is
incompatible with the organisation’s standards. The Assembly
also asked the authorities to submit this new draft to Council of
Europe expertise by April 2004.
Instead of immediately ending this practice and
preparing the necessary legislative drafts to this effect, the
Armenian authorities resorted to a wide use of administrative
detentions during the recent events. While it is difficult to verify
the exact number of persons who were arrested and the legal basis
used for their detention, most reports indicate that their number was
between two and three hundred.
The Assembly repeats its demand for an immediate end to
the practice of administrative detention. The Administrative Code
must be revised without any further delay. ...”
C. Human Rights Watch Briefing Paper, 4 May 2004, Cycle
of Repression: Human Rights Violations in Armenia
The
relevant extracts of the Briefing Paper provide:
“At the end of March 2004, Armenia’s
political opposition united in mass peaceful protests to force a
“referendum of confidence” in President Robert Kocharian
and to call for his resignation. In response, the Armenian government
embarked on a campaign to break the popular support for the political
opposition with mass arrests, violent dispersal of demonstrations,
raids on political party headquarters, repression of journalists, and
restrictions on travel to prevent people from participating in
demonstrations. Hundreds of people were detained, many for up to
fifteen days; some were tortured or ill-treated in custody...
The origin of the opposition’s demands was the
government’s failure to date to redress the deeply flawed 2003
presidential election, which Kocharian, the incumbent, won.
Disturbingly, the government is now repeating, with increasing
violence, a pattern of repression that surrounded last year’s
election. At that time, the international community warned the
Armenian government that its intimidation of the opposition through
the use of arrests and administrative detentions must stop. However,
in March and April 2004, the Armenian government not only began a
fresh campaign of detentions, but added to the intimidation with
security force violence. ...
At the end of March 2004, two of the main opposition
groups, the Artarutiun (Justice) Alliance, which consists of nine
parties – including the Republic Party, the People’s
Party, and the National Unity Party – joined forces and
announced its campaign of action. Following this move, the opposition
intensified its efforts, making further announcements and mobilising
in Armenia’s provinces. The authorities responded by
restricting freedom of movement, carrying out detentions, and
threatening criminal charges against opposition campaign organisers.
...
From [5 April] the number of rallies in Yerevan steadily
increased, as did the number of opposition supporters detained or
otherwise intimidated. The Republic Party estimated that from the end
of March until [12 April], police had detained, searched, or harassed
more than 300 of its supporters. ...
From the end of March until mid-April 2004, police
restricted the movement of opposition supporters trying to travel to
Yerevan to attend rallies by setting up road blocks, stopping cars,
questioning the passengers, and denying permission to travel further
to those they believed were opposition supporters. ...
On the morning of [5 April], between [10.30 a.m. and
12.00 noon], police stopped nine members of the National Unity Party
in three cars at a check point as they were leaving Vanadzor,
Armenia’s third largest city, on the main road to Yerevan. They
were intending to participate in a rally at [3.00 p.m.] in Yerevan.
Police held the nine men at the Vanadzor police station, reportedly
telling them, ‘we have saved you from being beaten in Yerevan’.
Police took three of the men to the local courts, which sentenced
them to five days of administrative detention for not following
police orders. ...
It is difficult to estimate the total number of
opposition supporters detained since the beginning of April 2004. By
April 17, the Justice Alliance had documented the detentions of 327
opposition supporters, and the Republic Party estimated that about
300 of its members had been either detained, harassed, or searched...
[Some opposition supporters] were detained and held for
from several hours to fifteen days. Many were held and then released
with no documentation or registration of the arrest ever having
occurred. Others were taken to court, and given penalties of up to
fifteen days in custody for petty offences under the Administrative
Code.
The trials were cursory, flouting all international
protections for a fair trial, and repeating a pattern of abuses with
administrative detentions documented during the 2003 presidential
elections. Defendants in administrative cases were denied access to
lawyers, not able to present evidence, and routinely convicted on the
basis of several minutes of police evidence. Practical barriers to
appeal make it virtually impossible to take the cases to higher
courts. ...”
D. Europe and Central Asia: Summary
of Amnesty International’s Concerns
in the Region, January-June 2004
The
Report contains a chapter devoted to Armenia whose relevant extracts
provide:
“Opposition demonstrations in
April [2004] were part of a two-month campaign of mass public
protests launched by opposition political parties demanding the
resignation of President Robert Kocharian. ... During their campaign
hundreds of opposition supporters, including prominent opposition
party members, were reportedly arbitrarily detained throughout the
country and dozens were sentenced to 15 days’ administrative
detention after trials that were said to have fallen far short of
international fair trial standards...”
E. Annual Report: Activities
of the Republic of Armenia’s Human Rights Defender (Ombudsman),
and on Violations of Human Rights and Fundamental Freedoms in Armenia
During 2004
The
relevant extracts of the Report provide:
“3.4 Right to Freedom of Movement
The early stages of the Defender’s
activities coincided with the demonstrations that were held in the
country during March and April of 2004.
The opposition began to hold
demonstrations and meetings with constituents in several regions
starting in early February. The authorities did not interfere with
these meetings.
The first time the authorities
interfered with the demonstrations was at the end of March in Gyumri,
which involved the arrest of demonstration participants and the
commencement of criminal cases against them. ...
The Defender found a number of human rights violations
in police actions regarding demonstrations held in the capital city
in April.
On the days of the demonstrations,
the police reportedly limited the movement of public transport into
the capital city, which violated citizens’ right to freedom of
movement within the country. ...
During this period, individuals were frequently
apprehended for administrative infractions and taken to police
stations where administrative detention was ordered against them by
the court.
A review of these cases shows that
the legislation on administrative infractions was abused: “foul
language” was cited as a basis for sentencing a person to
administrative detention. ...
3.5 Right to Conduct Meetings, Gatherings,
Rallies and Protests
The Defender took from the courts a
number of cases related to administrative infractions and conducted a
thorough study. The findings were sent to the Prosecutor General of
Armenia and, in light of the apparent abuses of power in such cases,
it was recommended that the guilty parties be punished. Some of the
Defender’s findings were isolated and
sent to the Armavir Region Prosecutor for corroboration and
processing. The regional prosecutor later announced that no crime was
identified. The police officers in question were given warnings for
some of the less significant violations.”
F. Article published in Ayb-Fe
newspaper, 14-20 May 2004
The
local weekly, Ayb-Fe,
published an interview with the Chairman of the International
Association of Armenian Advocates (IAAA), Mr T. Ter Yesayan,
which included a list of opposition political activists, compiled
jointly by the opposition forces and the IAAA, who had been allegedly
detained by the authorities in April and May 2004. The list contained
a total of 476 names and featured the first, second and third
applicants at spots 98, 190 and 100 respectively.
THE LAW
I. THE GOVERNMENT’S OBJECTION AS TO NON-EXHAUSTION
IN CONNECTION WITH THE APPLICANTS’ CONVICTIONS
The
Government claimed that the applicants had failed to exhaust domestic
remedies in respect of all the complaints raised in their application
by not lodging appeals against their convictions with the President
of the Criminal and Military Court of Appeal under Article 294 of the
CAO.
The
applicants contested the Government’s objection.
The
Court notes that it has already examined this issue and found that
the review possibility provided by Article 294 of the CAO was not an
effective remedy for the purposes of Article 35 § 1 of the
Convention (see Galstyan, cited above, § 42). The
Government’s objection must therefore be rejected.
II. ORDER OF EXAMINATION OF THE COMPLAINTS
The
Court considers it appropriate to examine first the applicants’
complaints concerning an alleged violation of their right to freedom
of expression and freedom of peaceful assembly, in view of the
entirety of the applicants’ complaints.
The
Court further considers it possible to examine the complaints under
Article 5 §§ 1 and 4, Article 6, Articles 10, 11 and 14 of
the Convention and Article 2 of Protocol No. 7 of all three
applicants jointly in view of their factual similarity and the
practically identical nature of their allegations.
III. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE
CONVENTION
The
applicants complain that their arrests and detention were measures
used by the authorities to punish them for their political allegiance
and to prevent them from attending the demonstrations organised in
Yerevan by the opposition in early April 2004. They invoke Articles
10 and 11 of the Convention which, in so far as relevant,
provide:
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
Government claimed that the applicants had failed to exhaust the
domestic remedies. In particular, if the applicants considered that
their rights guaranteed by Articles 10 and 11 of the Convention had
been violated, they were entitled to request institution of criminal
proceedings against those responsible.
The
applicants did not comment on this point.
The
Court considers it necessary to join this objection to the merits of
this complaint.
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 applicants
The
applicants submitted that their arrests and detention were aimed at
silencing their political opposition which they expressed by, inter
alia, attending political demonstrations. They were known to be
members of political parties and the timing of their detention for
alleged administrative offences in late March and early April 2004
was intended to prevent them, and indeed did prevent them, from
attending and encouraging others to attend public demonstrations
organised during that time by their respective parties, calling for a
referendum and challenging the incumbent President. This constituted
an interference with their right to freedom of expression and to
freedom of peaceful assembly.
The
applicants further submitted that the interference with their rights
was not prescribed by law. In particular, arresting and detaining
persons active in opposition politics ostensibly for the
administrative offence of failing to obey police orders but in
reality in order to prevent their attendance of opposition rallies
could not be considered as a measure prescribed by law. Furthermore,
the interference did not pursue a legitimate aim, since the aim of
such administrative detention was not to prevent disorder but to
hinder opposition calls challenging the incumbent President. There
was no history of public disorder at previous opposition
demonstrations, nor was there any ban on demonstrations in April 2004
which were essentially peaceful rallies. Thus, their detention was
merely a pretext to interfere unlawfully with the opposition campaign
of peaceful protests.
The
applicants lastly submitted that mass arrests of opposition activists
and supporters to prevent them from attending peaceful political
demonstrations could not be “necessary in a democratic
society”. Freedom of political debate and of peaceful assembly
were at the core of a democratic society. In light of the peaceful
nature of previous demonstrations and of those held in April 2004,
the authorities could not convincingly establish that there existed a
“pressing social need” to arrest and subsequently
sentence them to administrative detention. Furthermore, the
interference was disproportionate as they had been twice sentenced to
the highest penalty available, that is to a period of administrative
detention. Moreover, their detention operated as prior restraint in
that it was imposed in order to prevent them from attending political
demonstrations. Thus, the detention could be said to have had a
chilling effect since they had the serious potential to deter other
opposition supporters from attending those demonstrations or indeed
in engaging actively in opposition politics.
In
support of their allegations the applicants relied on the Human
Rights Watch report. They also submitted letters from the Deputy
Chairman of the National Unity Party and the Chairman of the Republic
Party addressed to the Court stating that the applicants were members
of their parties and took active part in the demonstrations organised
by the opposition. The letters further alleged that the applicants
had been subjected to administrative detention in March and April
2004 because of their political opinion and that they had never been
released from detention following the expiry of their first
sentences.
(b) The Government
The
Government submitted that the sole reasons for the applicants’
arrest and subsequent detention were those indicated in the materials
of the administrative cases against them. All three applicants were
subjected to administrative detention for using foul language and
disobeying the lawful orders of police officers. These reasons were
stated in the relevant court decisions which were based on the
evidence provided by the police. The applicants had failed to prove
their allegations under Articles 10 and 11 “beyond reasonable
doubt”. The fact that the applicants were members of political
parties was not sufficient to argue that the alleged interferences
with the applicants’ rights were politically motivated. The
applicants had been treated as any other person in a similar
situation regardless of political or other views.
2. The Court’s assessment
(a) The scope of the applicants’
complaints
The
Court notes that the applicants’ complaints under Article 10
and 11 are mainly based on the allegation that their
administrative detention was a measure to prevent them from
participating in demonstrations. In such circumstances, 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, 26 April 1991, § 35, Series A no. 202).
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).
(b) Whether there was an interference with
the exercise by the applicants of their freedom of peaceful assembly
The
Court notes that it is in dispute between the parties whether there
was an interference with the applicants’ right to freedom of
assembly. The applicants alleged that the true reason behind their
convictions was to prevent them from participating in opposition
demonstrations. The Government contested this allegation and claimed
that the sole ground for the applicants’ convictions was that
indicated in the relevant court decisions, namely their failure to
obey the lawful orders of police officers in circumstances unrelated
to demonstrations.
The Court notes that in essence the parties are
disputing the factual basis for the applicants’ convictions. In
this respect, the Court has emphasised on many occasions that it is
sensitive to the subsidiary nature of its role and recognises that it
must be cautious in taking on the role of a first-instance tribunal
of fact, where this is not rendered unavoidable by the circumstances
of a particular case (see McKerr v. the United Kingdom (dec.),
no. 28883/95, 4 April 2000, and Khashiyev and Akayeva v. Russia,
nos. 57942/00 and 57945/00, § 135, 24 February 2005). Where
domestic proceedings have taken place, it is not the Court’s
task to substitute its own assessment of the facts for that of the
domestic courts and, as a general rule, it is for those courts to
assess the evidence before them. The Court, however, is not bound by
the findings of domestic courts, although in normal circumstances it
requires cogent elements to lead it to depart from the findings of
fact reached by those courts (see Klaas v. Germany, judgment
of 22 September 1993, Series A no. 269, pp. 17-18, §§
29-30, and Avşar v. Turkey, no. 25657/94, § 283,
ECHR 2001 VII (extracts)). The Court considers that this
reasoning applies also in the context of Articles 10 and 11 of the
Convention (see, mutatis mutandis, Europapress
Holding d.o.o. v. Croatia, no.
25333/06, § 62, 22 October 2009).
The
Court further reiterates that, in assessing evidence, it has adopted
the standard of proof “beyond reasonable doubt”. However,
it has never been its purpose to borrow the approach of the national
legal systems that use that standard. Its role is not to rule on
criminal guilt or civil liability but on Contracting States’
responsibility under the Convention. The specificity of its task
under Article 19 of the Convention – to ensure the observance
by the Contracting States of their engagement to secure the
fundamental rights enshrined in the Convention – conditions its
approach to the issues of evidence and proof. In the proceedings
before the Court, there are no procedural barriers to the
admissibility of evidence or pre-determined formulae for its
assessment. It adopts the conclusions that are, in its view,
supported by the free evaluation of all evidence, including such
inferences as may flow from the facts and the parties’
submissions. According to its established case-law, proof may follow
from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact (see Nachova
and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §
147, ECHR 2005 VII).
The
Court notes that the period surrounding March and April 2004 was one
of increased political sensitivity in Armenia. The political
opposition intensified its rallies in protest against the results of
the presidential election which had been held the previous year and
which they claimed had been flawed and unfair. In this respect, the
Court notes that a number of international and domestic reports
alleged that, during the same period, the authorities resorted to
various seemingly arbitrary measures to quell the support for the
opposition (see paragraphs 64-68 above). The PACE Committee on the
Honouring of Obligations and Commitments by Members States of the
Council of Europe stated, in particular, in its Report no. 10163 of
27 April 2004 that “the Armenian authorities reacted to the
opposition call for protests with a campaign of political
intimidation and administrative and judicial harassment” (see
paragraph 65 above). It further follows from these materials that the
CAO and its provisions prescribing short-term administrative
detention for petty offences were widely used by the authorities for
that purpose. Other means, such as restricting freedom of movement,
were also employed to prevent people from participating in
demonstrations. Moreover, a number of sources suggest that the legal
grounds used for detention of opposition activists were quite diverse
and also included such grounds as use of foul language and not
following police orders (see, in particular, the Human Rights Watch
and the Armenian Ombudsman’s reports in paragraphs 66 and 68
above).
The
Court further observes that there have already been a number of cases
before it in which applicants made almost identical allegations (see
Kirakosyan v. Armenia,
no. 31237/03, § 87, 2 December 2008; Mkhitaryan
v. Armenia, no. 22390/05, §
87, 2 December 2008; Tadevosyan v. Armenia,
no. 41698/04, § 81, 2 December 2008; Gasparyan
v. Armenia (no. 2), no. 22571/05,
§ 38, 16 June 2009; Karapetyan v.
Armenia, no. 22387/05, §§ 75-76,
27 October 2009; and Stepanyan v.
Armenia, no. 45081/04, § 22,
27 October 2009). In all of those cases the applicants were
either approached or visited at home by police officers for reasons
or suspicions unrelated to the charges brought against them later,
that is the failure to obey police orders and use of foul language
which eventually served as a basis for their short term convictions.
It
can be inferred from the existence of such numerous and consistent
allegations coming from various sources that at the material time
there was an administrative practice of deterring or preventing
opposition activists from participating in demonstrations, or
punishing them for having done so, by resorting to the procedure of
administrative detention under various substantive provisions of the
CAO. While no sufficient elements existed in the above-mentioned
cases against Armenia to reach a conclusion that the applicants fell
victim to such administrative practice, there are a number of
elements in the present case which may allow the Court to reach a
different finding.
The
Court observes at the outset that all three applicants were members
of opposition political parties. All three of them, residents of
Armavir Region situated close to Yerevan, were individually taken to
the same police department, around the same period, that is the
period when the protest rallies were being held in Armenia, and were
subjected to two practically consecutive terms of administrative
detention by the same court in strikingly similar circumstances.
First,
in all three cases the applicants were initially visited by the
police on suspicions unrelated to the charges of public order offence
brought against them later. In particular, the first applicant was
asked to come to the police station “for inspection purposes in
order to confiscate illegal ammunition in his possession”, the
second applicant was visited at home by police officers because he
was suspected of hiding a wanted person and the third applicant was
invited to the police station on suspicion of having been involved in
a traffic accident (see paragraphs 10, 20 and 41 above). None of
these suspicions received any follow up whatsoever and they were
quickly forgotten once the applicants were charged with using foul
language and disobeying police orders. No specific sources or reasons
were ever indicated for these initial suspicions, which were
constantly justified in very general terms with reference to
“information obtained”. Furthermore, no alleged illegal
ammunition was found in the first applicant’s possession upon
his arrival at the police station nor a wanted person at the second
applicant’s home, while the third applicant’s link to a
traffic accident which had apparently taken place almost an entire
year before the police visit remained unclear and unexplained.
Second,
in all three cases the applicants were charged and later convicted of
having committed practically identical acts, that is disobeying
lawful orders of police officers and using foul language for several
minutes. It is remarkable that none of the charges and convictions
provide sufficient details of these acts and are couched in
standardised and vague terms.
Third,
in all three cases the applicants, after allegedly having been
released following their first terms of detention, almost immediately
committed new offences in practically identical circumstances: in
each of the three cases the applicant was standing in the street and
for no apparent reason using unaddressed and random swear words,
which prompted a police officer to call him to order but the
applicant disobeyed. What the Court finds particularly worrying is
that even the texts of the relevant police reports, especially those
concerning the first and third applicants, were almost word for word
duplicates (see paragraphs 34, 35 and 54 above).
All
the above similarities and coincidences, which can hardly be
considered to have been of a purely accidental nature, point to the
existence of a repetitive pattern of subjecting persons to
administrative detention which fits into the description of the
administrative practice mentioned above (see paragraph 92 above).
Furthermore, the lack of any real and substantiated reasons for the
initial police visits prompts the Court seriously to doubt whether
the true reasons for such visits were those indicated in the relevant
documents. This, in turn, casts serious doubt on the veracity of the
entirety of the police materials, including the factual basis for the
charges against the applicants, and only reinforces the Court’s
opinion about the applicants’ cases fitting into the
above-mentioned description.
Lastly,
the Court would point out that the findings of fact made by the
domestic court in the applicants’ cases were reached following
trials conducted in a matter of minutes. The facts established in
such manner were based solely on the materials provided by the police
and similarly to those materials lacked any details and were
strikingly succinct. The resulting court decisions appear to have
been a mere and unquestioned recapitulation of the circumstances and
the charges as presented in the relevant police reports and do not
appear to have been reached as a result of an objective and thorough
judicial examination.
In
view of all the above factors, the Court considers that there are
cogent elements in the present case prompting it to doubt the
credibility of the administrative proceedings against the applicants.
It further notes that the entirety of the materials before the Court
allow it to draw strong, clear and concordant inferences to the
effect that the administrative proceedings against the applicants and
their ensuing detention was a measure aimed at preventing or
discouraging them from participating in the opposition rallies, which
it is undisputed were peaceful, held in Yerevan at the material time.
The Court considers that this measure undoubtedly amounted to an
interference with the applicants’ right to freedom of peaceful
assembly.
Having
reached this conclusion, the Court considers it necessary to address
the Government’s allegation as to non-exhaustion. The Court
reiterates 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, among
other authorities, De Jong, Baljet and Van den Brink
v. the Netherlands, 22 May 1984, § 39, Series A no. 77, and
Vernillo v. France, 20 February 1991, § 27, Series A no.
198). 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,
16 September 1996, § 68, Reports of Judgments and
Decisions 1996 IV).
The
Court observes that the Government did not provide any details
whatsoever concerning the proposed remedy, limiting their argument to
the statement that the applicants could have requested institution of
criminal proceedings against those responsible. They did not specify
the Article of the Criminal Code to which the applicants should have
supposedly resorted, nor provide any details as to the kind of
redress this could have offered in the particular circumstances of
the case. The Government also failed to clarify whether the
applicants should have attempted to institute criminal proceedings
against the police officers or the judges or both. In this respect,
the Court notes that, while the administrative proceedings against
the applicants were initiated by police officers, the administrative
detention as such was imposed by judges’ decisions. As far as
those decisions are concerned, the applicants had no effective
remedies to exhaust (see paragraph 72 above).
Furthermore,
the Court is mindful of its finding above that the applicants fell
victim to an administrative practice (see paragraph 97 above). In
such circumstances, it is doubtful whether a separate complaint,
whether criminal or other, lodged with the authorities would have had
any reasonable prospects of success. The Government also failed to
produce any examples which would point to the contrary and dispel
these doubts. Moreover, as it follows from the Armenian Ombudsman’s
report, an attempt to have criminal proceedings instituted in a
number of cases in which an abuse of the CAO procedures in the
context of demonstrations was believed to have been apparent produced
no results (see paragraph 68 above).
In
light of the above, the Court does not find the Government’s
objection as to non-exhaustion to be convincing and decides to reject
it.
(c) Whether the interference was justified
The
essential object of Article 11 is to protect the individual against
arbitrary interference by public authorities with the exercise of the
rights protected (see Associated Society of Locomotive Engineers
and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, §
37, 27 February 2007). Accordingly, where the State does intervene,
such 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.
(i) Prescribed by law
The
first step in the Court’s examination is to determine whether
the measure imposed on the applicants was “prescribed by law”,
within the meaning of Article 11. This expression requires, first and
foremost, that the interference in question have some basis in
domestic law (see Silver and Others v. the United Kingdom, 25
March 1983, § 86, Series A no. 61).
The
Court notes that the interference in the present case amounted to the
applicants’ being sentenced to short-term detention in order to
prevent or discourage their participation in demonstrations. The
legal basis for that measure was Article 182 of the CAO which
prescribed an administrative penalty for disobeying lawful orders of
a police officer. Thus, the measure in question was imposed relying
on a legal provision which had no connection with the intended
purpose of that measure. The Court cannot but agree with the
applicants that an interference with their freedom of peaceful
assembly on such legal basis could only be characterised as arbitrary
and unlawful.
The
Court therefore concludes that the interference in question did not
meet the Convention requirement of lawfulness. That being so, it is
not required to determine whether the interference pursued a
legitimate aim and, if so, whether it was proportionate to the aim
pursued.
There
has accordingly been a violation of Article 11 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicants raised several complaints under Article 5 § 1, 2
and 4 of the Convention. The relevant provisions of Article 5,
in so far as relevant, read as follows:
“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;
...
(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;
...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
...
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.”
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. Article 5 § 1 of the Convention
(a) The parties’ submissions
(i) The applicants
The
applicants submitted that their administrative detention was unlawful
and did not meet any of the purposes set out in Article 5 § 1.
The alleged offences giving rise to their detention were fabricated.
They were brought to the police on completely different grounds to
those on which they were eventually charged. None of the initial
suspicions received any follow up and none of them was questioned in
connection with those suspicions. The second charges against them
were fabricated because they were never even released from detention
and were subjected to a consecutive penalty simply to prevent their
further participation in demonstrations.
Furthermore,
their detention was arbitrary in its motivation and effect and was
imposed in bad faith. While ostensibly imposed in order to punish
them for maliciously disobeying lawful orders of police officers
under Article 182 of the CAO, their detention was in reality designed
to punish them for their political allegiances and to prevent them
from attending opposition demonstrations in Yerevan at the material
time. The numbers and manner in which waves of detention were being
used by the authorities in March and April 2004 indicates that a
policy of blanket arrests of opposition supporters was sanctioned
under cover of the administrative detention provisions with the
intention of preventing people from attending, or making them afraid
to attend, political demonstrations and thereby hindering the
opposition parties’ calls for a referendum and their challenge
to the incumbent President. The number of arrests and detentions
carried out pursuant to the CAO during that period, viewed in the
context of the history of the CAO’s use in detaining hundreds
of opposition supporters and activists during the 2003 presidential
election, provided evidence of the illegal purpose for which these
domestic provisions were being used.
In
addition, their detention was disproportionate since the CAO required
imposition of administrative detention only in exceptional cases.
They did not commit the offences for which they were convicted but,
even if they had, their cases were not so exceptional as to justify
the imposition of the highest penalty.
The
applicants lastly submitted that, in any event, the provisions of the
CAO contravened internationally recognised standards and were
therefore not in compliance with the requirements of Article 5.
(ii) The Government
The
Government submitted that the applicants’ administrative
detention was imposed under Article 5 § 1 (a) and was compatible
with the requirements of that provision. Their cases were examined by
a court of first instance, which was the sole competent authority to
do so. The sentences were imposed in a procedure prescribed by law
and in compliance with the relevant procedural rules.
The
Government further submitted that the police had reasonable grounds
to arrest the applicants on a suspicion of having committed an
offence under Article 182 of the CAO since they were eyewitnesses to
those offences. Furthermore, the offences were directed against
police officers who were acting within the scope of their authority
to protect public order and prevent offences. Thus, the police had
first hand information that the applicants had committed an offence
and the applicants had been deprived of their liberty in order to be
brought before a competent legal authority. The applicants’
allegations that their detention pursued any aim other than punishing
them for an offence prescribed by Article 182 of the CAO were not
true. If the real purpose was to prevent the applicants from
participating in demonstrations, the courts could have immediately
imposed the highest penalty, that is fifteen days of detention,
instead of allegedly abusing the procedure and again detaining the
applicants.
(b) The Court’s assessment
The
Court reiterates that Article 5 of the Convention guarantees the
fundamental right to liberty and security. That right is of primary
importance in a “democratic society” within the meaning
of the Convention (see De Wilde, Ooms and Versyp v. Belgium,
18 June 1971, § 65, Series A no. 12, and Winterwerp v.
the Netherlands, 24 October 1979, § 37, Series A no. 33).
All
persons are entitled to the protection of this right, that is to say,
not to be deprived, or continue to be deprived, of their liberty,
save in accordance with the conditions specified in paragraph 1 of
Article 5 (see Medvedyev and Others, v. France [GC], no.
3394/03, § 77, ECHR 2010-...). The list of exceptions to the
right to liberty secured in Article 5 § 1 is an exhaustive one
(see Quinn v. France, judgment of 22 March 1995, § 42,
Series A no. 311, and Labita v. Italy [GC], no. 26772/95, §
170, ECHR 2000-IV), and only a narrow interpretation of those
exceptions is consistent with the aim of that provision (see Engel
and Others v. the Netherlands, 8 June 1976, § 58,
Series A no. 22, and A. and Others v. the United Kingdom [GC],
no. 3455/05, § 171, ECHR 2009 ...)
Any deprivation of liberty must, in addition to
falling within one of the exceptions set out in sub-paragraphs
(a)-(f), be “lawful”. Where the “lawfulness”
of detention is in issue, including the question whether “a
procedure prescribed by law” has been followed, the Convention
refers essentially to national law and lays down the obligation to
conform to the substantive and procedural rules of national law (see
Saadi v. the United Kingdom [GC], no. 13229/03, § 67, 29
January 2008). Compliance with national law is not, however,
sufficient: Article 5 § 1 requires in addition that any
deprivation of liberty should be in keeping with the purpose of
protecting the individual from arbitrariness (see Bozano v.
France, 18 December 1986, § 54, Series A no. 111, and
Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR
2008-...).
It
is a fundamental principle that no detention which is arbitrary can
be compatible with Article 5 § 1 and the notion of
“arbitrariness” in Article 5 § 1 extends beyond
lack of conformity with national law, so that a deprivation of
liberty may be lawful in terms of domestic law but still arbitrary
and thus contrary to the Convention (see Saadi, cited above, §
67). While the Court has not previously formulated a global
definition as to what types of conduct on the part of the authorities
might constitute “arbitrariness” for the purposes of
Article 5 § 1, key principles have been developed on a
case-by-case basis. Moreover, the notion of arbitrariness in the
context of Article 5 varies to a certain extent depending on the type
of detention involved (see Mooren v. Germany [GC], no.
11364/03, § 77, ECHR 2009-...).
Furthermore, detention will be “arbitrary”
where, despite complying with the letter of national law, there has
been an element of bad faith or deception on the part of the
authorities (see, for example, Bozano, cited above, § 59,
and Saadi, cited above, § 69) or where the domestic
authorities neglected to attempt to apply the relevant legislation
correctly (see Benham v. the United Kingdom, 10 June 1996, §
47, Reports of Judgments and Decisions 1996-III, and Liu
v. Russia, no. 42086/05, § 82, 6 December 2007). The
condition that there be no arbitrariness further demands that both
the order to detain and the execution of the detention must genuinely
conform with the purpose of the restrictions permitted by the
relevant sub-paragraph of Article 5 § 1 (see Winterwerp,
cited above, § 39; Bouamar v. Belgium,
judgment of 29 February 1988, Series A no. 129, § 50; and
O’Hara v. the United Kingdom, no. 37555/97, § 34,
ECHR 2001-X).
In
the present case, the Court is mindful of its finding above that the
applicants fell victim to an administrative practice by having been
twice consecutively subjected to a measure, namely an arrest followed
by a short term conviction, which was arbitrary (see paragraphs
97 and 107 above). It pursued aims unrelated to the formal grounds
relied on to justify the deprivation of liberty and clearly involved
an element of bad faith on the part of the police officers.
Furthermore, while there are not sufficient elements to conclude that
the domestic court which imposed the detention also acted in bad
faith, it undoubtedly showed negligence in reviewing both the factual
and the legal basis for the applicants’ detention (see
paragraph 98 above). In such circumstances, the Court cannot but
conclude that the applicants’ deprivation of liberty as a whole
was arbitrary and therefore unlawful within the meaning of Article 5
§ 1. Having reached this conclusion, the Court does not find it
necessary to resolve the question of whether the applicants were
released from detention following the expiry of their first sentences
and, if not, whether this amounted to a violation of their right to
liberty.
Accordingly,
there has been a violation of Article 5 § 1 of the Convention.
2. Article 5 §§ 2 and 4 of the Convention
The
applicants submitted that they were unaware of the alleged reasons
for their second arrest, in breach of Article 5 § 2, because in
reality they were never released from detention following the expiry
of their first sentences. They further submitted that the failure of
the authorities to provide them with access to a lawyer was in breach
of the guarantees of Article 5 § 4. The third applicant lastly
submitted that, in breach of Article 5 § 2, no reasons
were given to him by the police officers at the time of his first
arrest and he was not informed about its legal and factual grounds
until three hours after he had been taken to the police station.
The
Government contested the applicants’ allegations. They claimed
that the applicants had been immediately released from detention
following the expiry of their first sentences but some time after
their release they had committed new offences and were re-arrested.
The Government further submitted that, since the applicants’
administrative detention sentences were imposed under Article 5 §
1 (a), the judicial supervision required by Article 5 § 4 was
incorporated in the decisions of the first instance court. The
Government lastly submitted that the third applicant was informed
orally by the police officers of the reasons for his arrest and, in
any event, a delay of three hours could not be considered
incompatible with the requirements of Article 5 § 2.
The
Court does not find it necessary to rule on these issues separately
in view of its finding above that the applicants’ deprivation
of liberty as a whole was arbitrary and unlawful (see paragraph 123
above).
V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicants made several complaints about both sets of administrative
proceedings against them under Article 6 §§ 1 and 3 (a)-(d)
of the Convention, which, in so far as relevant, provide:
“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:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(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...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him...”
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
The
Government submitted that the applicants had had a fair and public
hearing. They had failed to submit any proof in support of their
allegations that the judges examining their cases were not impartial.
The courts had not based their findings solely on the materials
prepared by the police but also on the applicants’ own
submissions made in court. The applicants had been provided with an
opportunity to call and examine witnesses, submit evidence and file
motions and challenges, which they had failed to do. Furthermore,
they had been informed of their right to have a lawyer both by the
police officers and during the court proceedings, but they had not
wish to do so. The applicants had had sufficient time and facilities
for the preparation of their defence.
The
applicants contested the Government’s submissions, claiming
that the Government were simply citing domestic law and making bare
statements that this law had been adhered to. The records of the
court hearings were practically identical templates and did not
provide a true version of events. In reality they had been denied
access to a lawyer on each occasion, both before and during the
trials. The judges had failed to examine the evidence and the merits
of their cases. The judgments adopted as a result of this procedure
were arbitrary and unreasoned.
The
Court notes from the outset that similar facts and complaints have
already been examined in a number of cases against Armenia, in
which the Court found a violation of Article 6 § 3 (b) taken
together with Article 6 § 1 (see Galstyan,
cited above, §§ 86-88; Ashughyan v. Armenia, no.
33268/03, §§ 66-67, 17 July 2008; Kirakosyan,
cited above, §§ 78-79; Mkhitaryan, cited above, §§
78-79; Tadevosyan, cited above, §§ 72-73; Gasparyan
(no. 2), cited above, §§ 29-30; and Karapetyan,
cited above, §§ 66-67). The circumstances of the
present case are practically identical. It is true that the
applicants in the present case were subjected to two almost
consecutive terms of administrative detention instead of just one and
were allegedly never released from detention following the expiry of
their first terms. The Court, however, does not find it necessary to
establish whether the applicants were indeed not released from
detention since, regardless of that fact, both sets of proceedings
against them were conducted in a very similar manner and fell short
of the fair trial requirements of Article 6.
In
particular, both administrative cases against the applicants were
examined in an expedited procedure under Article 277 of the CAO.
Similar to other administrative detention cases, the applicants were
presented with a charge – while being in police custody without
any contact with the outside world – from one to several hours
before being taken to a court and being convicted. The Court
therefore does not see any reason to reach a different finding in the
present case and concludes that in both sets of administrative
proceedings each applicant did not have a fair hearing, in particular
on account of not being 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 in respect of both sets of
administrative proceedings conducted against each of the applicants.
In
view of the finding made in the preceding paragraph, the Court does
not consider it necessary to examine also the other alleged
violations of Article 6 (see Ashughyan, cited above, §
68, and other cases cited in paragraph 91 above).
VI. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 7
The
applicants complained under Article 13 of the Convention that they
had no right to appeal against their convictions. The Court considers
it necessary to examine this issue under Article 2 of Protocol No. 7
which, in so far as relevant, 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.”
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
The
Government submitted that the applicants had the right to have their
convictions reviewed, this right being prescribed by Article 294 of
the CAO.
The
applicants submitted that all the legal provisions regarding the
right to appeal were inadequate and confused.
The
Court notes that the applicants in the present case on both occasions
were convicted under the same procedure as in the above mentioned
case of Galstyan, in which the Court concluded that the
applicant did not have at his disposal an appeal procedure which
would satisfy the requirements of Article 2 of Protocol No. 7 (see
Galstyan, cited above, §§ 124-27, and other cases
cited in paragraph 91 above). The Court does not see any reason to
depart from that finding in the present case.
Accordingly,
there has been a violation of Article 2 of Protocol No. 7
in respect of each conviction imposed on each of the applicants.
VII. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ALL THE ABOVE ARTICLES
The
applicants alleged that they fell victim to discrimination on the
basis of political opinion since all the breaches of the Convention
which had taken place in their case were due to the fact that they
were members of the political opposition. They invoked Article 14 of
the Convention which reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The
Government contested this allegation.
The
Court does not find it necessary to examine separately the question
of the alleged political discrimination, in view of its findings
under other Articles of the Convention.
VIII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicants complained that they were not allowed any contact with
their families or lawyers while in detention, in violation of the
guarantees of Article 8 of the Convention.
Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention. It follows that this part of the
application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
IX. 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
applicants claimed totals of 4,400 US dollars (USD), USD 9,570
and USD 9,120 respectively in respect of pecuniary damage. In
particular, the applicants submitted that because of their sentences,
they were allegedly not able to tend to their farming, which resulted
in loss of income. The second and the third applicants also submitted
that their families had provided food and cigarettes for them whilst
in detention. The applicants also claimed compensation for
non-pecuniary damage in the amount of EUR 20,000 each.
The
Government submitted that the applicants had failed to provide
relevant documentary proof of their pecuniary claims. Furthermore,
there was no causal link between these claims and the violations
alleged. As to the claims for non-pecuniary damage, the Government
submitted that, if the Court were to find a violation, that would be
sufficient just satisfaction. In any event, the amounts claimed were
excessive.
The Court notes that the applicants have failed to
substantiate their claims for pecuniary damage with any documentary
proof; it therefore rejects these claims. On the other hand, the
Court considers that the applicants have undoubtedly suffered
non-pecuniary damage. Ruling on an equitable basis, it awards each
applicant EUR 7,000 in respect of such damage.
B. Costs and expenses
The
applicants also claimed USD 21,650 and 3,319.99 pounds sterling (GBP)
for the costs and expenses incurred before the Court. The applicants
submitted detailed time sheets stating hourly rates in support of
their claims.
The
Government submitted that the claims in respect of the domestic and
foreign lawyers were not duly substantiated by documentary proof,
since the applicants had failed to produce any contracts certifying
that there was an agreement with those lawyers to provide legal
services at the alleged hourly rate. No documentary proof of the
administrative costs had been provided either. Furthermore, the
applicants had used the services of an excessive number of lawyers,
despite the fact that the case was not so complex as to justify such
a need. Moreover, the hourly rates allegedly charged by the domestic
lawyers were excessive. As to the cost of translating the application
form and the enclosed documents, these expenses were not necessary
since it was open to the applicants to submit such documents in
Armenian.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the Court notes at the
outset that no invoice has been submitted to substantiate the
translation costs. As regards the lawyers’ fees, it considers
that not all the legal costs claimed were necessarily and reasonably
incurred, including some duplication in the work carried out by the
foreign and the domestic lawyers, as set out in the relevant time
sheets. Making its own estimate based on the information available,
the Court awards the applicants jointly EUR 7,000 in respect of costs
and expenses, to be paid in pounds sterling into their
representatives’ bank account in the United Kingdom.
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 UNANIMOUSLY
Declares the complaints under Article 10,
Article 11, Article 5 §§ 1, 2 and 4, Article 6 §§
1 and 3 (a)-(d) and Article 14 of the Convention and Article 2 of
Protocol No. 7 admissible, and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
11 of the Convention on account of the applicants’
administrative detention;
Holds that there is no need to examine
separately the complaint under Article 10 of the Convention;
Holds that there has been a violation of Article
5 § 1 of the Convention in that the applicants’
deprivation of liberty was arbitrary and unlawful;
Holds that there is no need to examine
separately the complaints under Article 5 §§ 2 and 4 of the
Convention;
Holds that there has been a violation of Article
6 § 1 taken together with Article 6 § 3 (b) of the
Convention in that the applicants did not have a fair hearing, in
particular on account of the fact that they were not afforded
adequate time and facilities for the preparation of their defence in
both sets of administrative proceedings against them;
Holds that there is no need to examine the other
complaints under Article 6 of the Convention;
Holds that there has been a violation of Article
2 of Protocol No. 7 in respect of each of the applicants’
convictions;
Holds that there is no need to examine
separately the complaint under Article 14 of the Convention;
Holds
(a) that the respondent State is to pay, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
7,000 (seven thousand euros) to each applicant, plus any tax that may
be chargeable, in respect of non-pecuniary damage, to be converted
into Armenian drams at the rate applicable at the date of settlement;
(ii) EUR
7,000 (seven thousand euros) jointly to the applicants, plus any tax
that may be chargeable to them, in respect of costs and expenses, to
be converted into pounds sterling at the rate applicable at the date
of settlement and to be paid into their representatives’ bank
account in the United Kingdom;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants’
claims for just satisfaction.
Done in English, and notified in writing on 10 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
