CASE OF AMIRYAN v. ARMENIA

THIRD SECTION

CASE OF AMIRYAN v. ARMENIA

(Application no. 31553/03)

JUDGMENT

STRASBOURG 

13 January 2009

FINAL

13/04/2009

This judgment may be subject to editorial revision.

In the case of Amiryan v. Armenia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele, judges,
and Stanley Naismith, Deputy Section Registrar,

Having deliberated in private on 9 December 2008,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 31553/03) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Sargis Amiryan (“the applicant”), on 28 August 2003.

2. The applicant was represented by Mr M. Muller, Mr T. Otty, Mr K. Yildiz, Ms A. Stock and Ms L. Claridge, lawyers of the Kurdish Human Rights Project based in London, Mr T. Ter-Yesayan and Mr A. Zohrabyan, lawyers practising in Yerevan, and Mr A. Ghazaryan. 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.

3. On 23 June 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1948 and lives in Ashtarak, Armenia.

5. In 2003 a presidential election was held in Armenia with its first and second rounds taking place on 19 February and 5 March respectively. The applicant acted as an authorised election assistant (վստահված անձ) for the main opposition candidate in this election. Following the first and second rounds of the election, a series of protest rallies were organised in Yerevan by the opposition parties.

6. On 21 February 2003 the applicant participated in a demonstration held in Yerevan.

7. On 22 February 2003 two police officers went to the applicant’s flat and took him to the Central District Police Department of Yerevan where an administrative case was initiated against him on account of his participation in the demonstration of 21 February 2003.

8. On the same date, several hours later, the applicant was taken to the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան). There he was brought before Judge H. who, after a brief hearing, sentenced the applicant under Article 180.1 of the Code of Administrative Offences (Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք – “the CAO”) to 15 days of administrative detention, finding that:

“On 21 February 2003 [the applicant] participated together with a group of people in an unauthorised demonstration in Yerevan.”

9. The applicant was taken to a detention facility.

10. The applicant alleged that he had been visited in the detention facility several days later by a Red Cross representative who had brought him a letter from his wife, to which he was not allowed to reply.

11. The applicant further alleged that, on an unspecified date, his wife had verbally requested the District Court to review its decision. She had been notified by a letter of 25 February 2003 that the District Court had no such competence.

12. On 27 February 2003 the applicant’s lawyer lodged an application with the General Prosecutor (ՀՀ գլխավոր դատախազ) requesting him to initiate an appeal against the decision of the District Court. The lawyer, apparently having received by mistake a copy of a decision taken in respect of a person convicted in a different administrative case, H.A., argued that the applicant had been unlawfully found guilty under Article 180.1 of the CAO and deprived of his liberty by a decision taken in respect of another person.

13. On 1 March 2003 the President of the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարանի նախագահ) reviewed the applicant’s conviction, finding that:

“[The applicant, according to the decision of the District Court, was subjected to administrative detention] ... for the violation of the prescribed rules for organising and holding assemblies, demonstrations, street marches and rallies, namely on 21 February 2003 he participated in an unauthorised demonstration and street march, during which he violated public order.

Having familiarised myself with [the applicant’s] appeal and the materials concerning the administrative offence, I find that the penalty imposed on [the applicant] must be changed.”

14. The President changed the penalty to an administrative fine of 1,000 Armenian drams (AMD) (approximately 1.5 euros (EUR) at the material time) and ordered the applicant’s release. On the same date the applicant was released from detention after he had served about seven days of his sentence.

15. By a letter of 4 March 2003 the applicant’s lawyer was informed by the General Prosecutor’s Office (ՀՀ գլխավոր դատախազություն) that, on the basis of the applicant’s appeal, the penalty had been changed and the applicant had been released by decision of the Court of Appeal.

II. RELEVANT DOMESTIC LAW

16. For a summary of the relevant provisions concerning administrative proceedings, see the judgment in the case of Galstyan v. Armenia (no. 26986/03, § 26, 15 November 2007).

17. For a summary of the relevant legislation invoked by the parties in connection with Article 180.1 of the CAO (see paragraphs 30 and 31 below), see the judgment in the case of Mkrtchyan v. Armenia (no. 6562/03, §§ 20-28, 11 January 2007).

THE LAW

I. COMPLIANCE WITH THE SIX-MONTH RULE AS REGARDS THE DECISION OF 22 FEBRUARY 2003

18. The applicant raised a number of complaints under Article 5 §§ 1, 2, 3 and 4, Article 6 §§ 1 and 3 (a-d), Article 10, Article 11, Article 13 and Article 14 of the Convention and Article 3 of Protocol No. 1 thereto in connection with his conviction of 22 February 2003.

19. The Court reiterates that, pursuant to Article 35 § 1 of the Convention, it may only deal with a matter where it has been introduced within six months from the date of the final decision in the process of exhaustion of domestic remedies (see, among other authorities, Danov v. Bulgaria, no. 56796/00, § 56, 26 October 2006). However, the obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 45, ECHR 2006‑II). Where no effective remedy is available to the applicant, the time-limit expires six months after the date of the acts or measures complained of, or after the date of knowledge of that act or its effect or prejudice on the applicant (see Younger v. the United Kingdom (dec.), no. 57420/00, ECHR 2003-I). Thus, the pursuit of remedies which fall short of the above requirements will have consequences for the identification of the “final decision” and, correspondingly, for the calculation of the starting point for the running of the six-month rule (see Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002).

20. Turning to the circumstances of the present case, the Court notes that the applicant raised a number of complaints in his application in connection with the decision of the Kentron and Nork-Marash District Court of Yerevan of 22 February 2003. This decision, however, was final and there were no further sufficiently accessible and effective remedies to exhaust, including the extraordinary remedies which could be initiated under Article 294 of the CAO with a prosecutor or the president of a higher court (see Galstyan, cited above, §§ 40-42). The applicant nevertheless tried one of these avenues for review by submitting a request for appeal to the General Prosecutor (see paragraph 12 above). On 1 March 2003 the President of the Criminal and Military Court of Appeal decided to review the final decision of the District Court of 22 February 2003, on the basis of the applicant’s extraordinary appeal. The applicant lodged his application with the Court on 28 August 2003, which is more than six months from the date of the District Court’s decision but less than six months from the date of the decision of the Court of Appeal. It is therefore necessary to determine whether the decision of the Court of Appeal taken on the basis of the applicant’s extraordinary appeal restarted the running of the six-month period as far as the final decision of the District Court is concerned.

21. The Court observes that it has consistently rejected applications in which the applicants have submitted their complaints within six months from the decisions rejecting their requests for reopening of the proceedings on the ground that such decisions could not be considered “final decisions” for the purpose of Article 35 § 1 of the Convention (see, among other authorities, Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004-II; Riedl-Riedenstein and Others v. Germany (dec.), no. 48662/99, 22 January 2002; and Babinsky v. Slovakia (dec.), no. 35833/97, 11 January 2000). However, the Court has also accepted that situations in which a request to reopen the proceedings is successful and actually results in a reopening may be an exception to this rule (see Pufler v. France, no. 23949/94, Commission decision of 18 May 1994, Decisions and Reports 77-B, p. 140; Korkmaz v. Turkey (dec.), no. 42576/98, 17 January 2006; and Atkın v. Turkey, no. 39977/98, § 33, 21 February 2006).

22. It appears that the situation in the present case may be regarded as falling into the category of exceptional cases, given that the applicant’s extraordinary remedy actually led to a review of the final decision on his administrative case. The Court, however, does not consider that the mere fact of reopening proceedings will restart the running of the six month period. It cannot be excluded that a case may be reopened on grounds unrelated to the Convention complaints which an applicant may later lodge with the Court and the Court doubts that such a reopening will affect the calculation of the six month period. Since Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seize the Court before his position in connection with his complaint has been finally settled at the domestic level (see Petrie and Others v. the United Kingdom (dec.), no. 29703/05, 6 February 2007), it means that an applicant is required under that Article to seize the Court once his position in connection with his complaint has finally been settled and the reopening of a case on unrelated grounds will not affect the finality of the settlement in respect of that particular issue. The Court therefore considers that, in cases where proceedings are reopened or a final decision is reviewed, the running of the six month period in respect of the initial set of proceedings or the final decision will be interrupted only in relation to those Convention issues which served as a ground for such a review or reopening and were the object of examination before the extraordinary appeal body. A different approach would also be contrary to the principle of subsidiarity, on which the Convention machinery is founded and which requires that the complaints intended to be made at the international level should first be aired in substance before the domestic courts (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004‑III).

23. In the present case, the Court notes that the applicant did not raise in his extraordinary appeal to the Court of Appeal, either explicitly or in substance, any of the complaints which he is currently raising before the Court (see paragraph 18 above). It further notes that the Court of Appeal did not address of its own motion any of those issues either, apart from upholding the applicant’s conviction under Article 180.1 of the CAO and modifying the penalty imposed by the District Court. Thus, the complaints raised by the applicant before the Court in connection with the decision of the District Court were not the object of examination before the Court of Appeal and the grounds on which the Court of Appeal decided to review the final decision of the District Court cannot be seen as being in any way related to those complaints. The Court therefore concludes that the review of the final decision of the District Court by the Court of Appeal upon the applicant’s extraordinary appeal did not re-start the running of the six-month period in respect of those complaints.

24. It follows that the applicant’s complaints concerning the decision of 22 February 2003 were lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION AS REGARDS THE DECISION OF 1 MARCH 2003

25. The applicant complained that his conviction had unlawfully interfered with his rights guaranteed by Article 11 of the Convention which, in so far as relevant, provides:

“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

26. The Court notes that on 1 March 2003 the President of the Criminal and Military Court of Appeal decided to review the final decision of 22 February 2003 on the applicant’s extraordinary appeal and to uphold his conviction on the same ground as the District Court, albeit modifying the penalty imposed. This decision, unlike the decision of 22 February 2003, was taken less than six months before the introduction of the present application. The Court is therefore competent to examine the applicant’s complaints as far as the decision of 1 March 2003 is concerned.

27. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

28. It was not in dispute between the parties whether there had been an interference with the applicant’s right to freedom of peaceful assembly. The Court considers that the fine imposed on the applicant by the decision of the President of the Criminal and Military Court of Appeal of 1 March 2003 undoubtedly interfered with his right to freedom of peaceful assembly.

29. The Court reiterates that an interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2 of this Article and is “necessary in a democratic society” for the achievement of those aims (see Galstyan, cited above, § 103).

30. The Government submitted that the interference was prescribed by law. In particular, the applicant was convicted under Article 180.1 of the CAO for “violation of the prescribed rules for organising or holding assemblies, rallies, street marches and demonstrations”. These rules were prescribed by the USSR Law on Approving Decrees of the Chairmanship of the Supreme Soviet of the USSR on Making Amendments and Supplements to Certain USSR Legal Acts of 28 October 1988 and were accessible and formulated with sufficient precision.

31. The applicant submitted that the USSR Law of 28 October 1988 was not applicable in Armenia at the material time and therefore the interference was not prescribed by law.

32. The Court recalls that an identical complaint was examined in the case of Mkrtchyan v. Armenia where the Court found that Article 180.1 of the CAO was not formulated with such precision as to enable the applicant to foresee, to a degree that was reasonable in the circumstances, the consequences of his actions, since there was no legal act applicable in Armenia which contained the “prescribed rules” referred to in that provision. The USSR Law of 28 October 1988 was no longer applicable and a new law on assemblies and rallies was adopted only on 28 April 2004. The Court concluded that the interference was not prescribed by law (see Mkrtchyan, cited above, § 43).

33. The Court notes that the interference in the present case similarly took place before the enactment of a new law on assemblies and rallies. It therefore does not see any reasons to depart from its finding reached in the case of Mkrtchyan. It follows that the interference with the applicant’s right to freedom of peaceful assembly was not prescribed by law.

34. Having reached this conclusion, the Court does not need to verify whether the other two requirements (legitimate aim and necessity of the interference) set forth in paragraph 2 of Article 11 have been complied with.

35. Accordingly, there has been a violation of Article 11 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE DECISION OF 1 MARCH 2003

36. The applicant complained that the Criminal and Military Court of Appeal failed to adopt a reasoned decision. He invoked Article 6 § 1 of the Convention which, in so far as relevant, provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Admissibility

37. The Court points out at the outset that Article 6 of the Convention applies to proceedings where a person is charged with a criminal offence until that charge is finally determined. It further reiterates that Article 6 does not apply to proceedings concerning a failed request to reopen a case. Only the new proceedings, after the reopening has been granted, can be regarded as concerning the determination of a criminal charge (see Vanyan v. Russia, no. 53203/99, § 56, 15 December 2005). The Court does not, however, consider it necessary to determine this issue in the present case, since the applicant’s complaint under Article 6 about the proceedings before the Criminal and Military Court of Appeal is, in any event, inadmissible for the following reasons.

38. The Court reiterates that Article 6 § 1 obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the decision. It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the court and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question of whether a court has failed to fulfil the obligation to state reasons can only be determined in the light of the circumstances of the case (see, among other authorities, Hiro Balani v. Spain, 9 December 1994, § 27, Series A no. 303-B).

39. In the present case, the applicant was convicted under Article 180.1 of the CAO for his participation in an unauthorised demonstration. This reason was stated in the Court of Appeal’s decision. In such circumstances, even if this decision was not detailed, it cannot nevertheless be said that the Court of Appeal failed to indicate the reasons for the applicant’s conviction.

40. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

41. The applicant complained that he was not allowed to reply to a letter from his wife while in detention. He invoked Article 8 of the Convention which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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.”

Admissibility

42. The Court notes that there is no evidence in the case file that the applicant was not allowed to have correspondence with his wife while in detention. No formal decisions were ever taken restricting the applicant’s right to correspondence. Furthermore, neither the applicant nor his wife ever complained about this to any authority.

43. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION AS REGARDS THE DECISION OF 1 MARCH 2003

44. The applicant alleged discrimination on political grounds also in connection with the decision of the Court of Appeal of 1 March 2003. He invoked Article 14 of the Convention which provides:

“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.”

Admissibility

45. The Court notes that all the materials in its possession indicate that the applicant was penalised for his participation in an unauthorised demonstration. There is nothing in the case file to suggest that he was subjected to a penalty because of his political opinion.

46. The Court concludes that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

47. 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

48. The applicant claimed EUR 20,000 in respect of non-pecuniary damage.

49. The Government claimed that a finding of a violation of the Convention should be sufficient compensation for any non-pecuniary damage allegedly suffered by the applicant. In any event, the amount claimed was excessive.

50. The Court considers that the applicant has undoubtedly suffered non-pecuniary damage as a result of being unlawfully sanctioned for his participation in a demonstration. Ruling on an equitable basis, it awards him EUR 1,000 in respect of non-pecuniary damage.

B. Costs and expenses

51. The applicant also claimed 6,750 United States dollars (USD) (approximately EUR 5,625) and 6,227.50 pounds sterling (GBP) (approximately EUR 9,155) for the costs and expenses incurred before the Court. These claims comprised:

(a) USD 6,750 for the fees of his two domestic representatives (totals of 28 and 25 hours at USD 150 and 100 per hour respectively);

(b) GBP 6,112.50 for the fees of his three United Kingdom-based lawyers, including two KHRP lawyers and one barrister (totals of about 14 and 40 hours at GBP 150 and 100 per hour respectively); and

(c) GBP 115 for administrative costs incurred by the KHRP.

52. The Government submitted that these claims were not duly substantiated with documentary proof, since the applicant had failed to produce any contract certifying that there was an agreement with the lawyers to provide legal services at the alleged rate. Furthermore, the applicant 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. Finally, the rates allegedly charged by the domestic representatives were excessive.

53. 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 were reasonable as to quantum. In the present case, the Court 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 representatives, as set out in the relevant time sheets. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy [GC], no. 33202/96, § 27, ECHR 2000‑I). The Court notes that only a violation of Article 11 was found in the present case while the entirety of the written pleadings, including the initial application and the subsequent observations, concerned numerous Articles of the Convention and Protocol No. 1. Therefore the claim cannot be allowed in full and a considerable reduction must be applied. Making its assessment on an equitable basis, the Court awards the applicant a total sum of EUR 2,000 for costs and expenses, to be paid in pounds sterling into his representatives’ bank account in the United Kingdom.

C. Default interest

54. 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

1. Declares the complaint under Article 11 of the Convention concerning the decision of 1 March 2003 admissible, and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 11 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;

(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, 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 his 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley NaismithJosep Casadevall
Deputy RegistrarPresident

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