Published on 26 February 2024
FOURTH SECTION
Application no. 57499/18
Zaruhi HOVHANNISYAN and Olya AZATYAN
against Armenia
lodged on 7 November 2018
communicated on 6 February 2024
STATEMENT OF FACTS
The applicants, Ms Zaruhi Hovhannisyan and Ms Olya Azatyan, are Armenian nationals who were born in 1974 and 1981 respectively and live in Yerevan. They are represented before the Court by Mr T. Yegoryan and Ms L. Hakobyan, lawyers practising in Yerevan.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 2 December 2013 the Russian President paid a state visit to Armenia.
On the same day the applicants, as an expression of their protest against the foreign policy of the Armenian President, Mr Serzh Sargsyan, attached a poster saying “Serzh’s father has arrived” to the railing of an overpass on one of the main streets of Yerevan. Their actions were stopped by police officers on duty to ensure public order and security throughout the state visit of the Russian President. The applicants were arrested and taken to a police station where records of “bringing-in and administrative arrest of a person who has committed an administrative offence” (արձանագրություն իրավախախտում կատարած անձի բերումը և վարչական ձերբակալումը իրականացնելու մասին) were drawn up in respect of each applicant. Subsequently, records of an administrative offence were drawn up setting out that the applicants, having hung the poster, had disobeyed a lawful order of the police to “stop their actions” in breach of Article 182 of the Code of Administrative Offences. It appears that the police did not institute administrative proceedings to have the applicants fined.
On 23 June 2014 the applicants lodged a claim with the Administrative Court under Article 69 of the Code of Administrative Procedure contesting the actions of the police interfering with their right to freedom of expression and assembly and their right to liberty. They argued, inter alia, that the police had never ordered them to stop any action or presented any legal grounds for prohibiting their protest. The applicants also complained that the police had attempted neither to check their identity, nor to draw up a record of an administrative offence on the spot before arresting them.
On 18 June 2015 the Administrative Court rejected the applicants’ claim, finding, in particular, that “by hanging a poster with a certain content” the applicants had violated public order and that “from the perspective of expressing an opinion” it was “an unlawful exercise of that right”. The court held that the police order and the applicants’ subsequent arrest had been lawful and the applicants’ argument regarding the unlawfulness of the actions of the police leading to an unjustified interference with their right to freedom of expression was groundless. In doing so, the Administrative Court examined footage submitted by the applicants, finding that it did not prove their argument that the police had not given any orders before their arrest. The court also found, based on a police record, that their arrest had not exceeded the maximum three-hour time-limit provided by law.
On 27 May 2016 the applicants lodged an appeal, raising arguments similar to those in their claim.
On 17 January 2018 the Administrative Court of Appeal dismissed the applicants’ appeal and upheld the judgment of the Administrative Court.
On 21 February 2018 the applicants lodged an appeal on points of law which was declared inadmissible for lack of merit by the Court of Cassation on 27 April 2018. This decision was delivered on the applicants on 7 May 2018.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
Code of Administrative Procedure (as in force from 7 january 2014 and before the constitutional court’s judgment of 17 December 2019)Article 69 § 3 of the Code of Administrative Procedure, entitled “Acknowledgement claim” (ճանաչման հայց), provides that by lodging an acknowledgement claim a claimant may request an acknowledgement of unlawfulness of an interfering administrative act, which no longer has legal force, or of performed or otherwise terminated action or inaction, if the claimant has a legitimate interest in having the act, action or inaction in question acknowledged as unlawful, that is if (a) there is a risk that a similar interfering administrative act will be enacted or a similar action will be performed in a similar situation once again; or (b) the claimant intends to seek pecuniary damages; or (c) the claimant pursues the aim of rehabilitating his honour, dignity or business reputation.
Code of administrative offences (IN FORCE FROM 1 june 1986)Article 182 of the Code of Administrative Offences provides that disobeying a lawful order of a military serviceman or a police officer issued in the performance of his duties of preserving public order and of ensuring public safety would result in a fine in the amount of 50 times the fixed minimum wage.
COMPLAINTS
1. The applicants complain under Article 5 § 1 of the Convention that their deprivation of liberty was arbitrary and unjustified.
2. The applicants complain under Articles 10 and 11 of the Convention that their arrest infringed their rights to freedom of expression and freedom of assembly.
QUESTIONS TO THE PARTIES
1. Did the applicants lodge their complaints under Articles 5 § 1, 10 and 11 of the Convention within six months from the date of the final decision, as required under Article 35 § 1 of the Convention? In particular, were the proceedings instituted by the applicants under Article 69 § 3 of the Code of Administrative Procedure an effective remedy within the meaning of Article 35 § 1 of the Convention in respect of their complaints under Articles 5 § 1, 10 and 11 of the Convention? In this context, the Government are specifically requested to explain (a) whether the administrative courts had jurisdiction to examine the applicants’ complaints, given the conditions specified in sub-paragraphs (a-c) of Article 69 § 3; and (b) what kind of redress the applicants could have obtained as a result of those proceedings (see, among other authorities, Gavril Yosifov v. Bulgaria, no. 74012/01, § 41, 6 November 2008).
The Government are also requested to provide examples of relevant domestic practice.
2. Assuming that the proceedings in question were an effective remedy:
(a) Was the applicants’ deprivation of liberty on 2 December 2014 compatible with the requirements of Article 5 § 1 of the Convention? In particular, was their deprivation of liberty lawful and necessary within the meaning of that Article (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 71, 15 November 2018, and Berkman v. Russia, no. 46712/15, §§ 34-38, 1 December 2020)?
(b) Has there been a violation of the applicants’ right to freedom of expression and freedom of assembly contrary to Articles 10 and 11 of the Convention?