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THIRD
SECTION
CASE OF GASPARYAN v. ARMENIA (NO. 2)
(Application
no. 22571/05)
JUDGMENT
STRASBOURG
16 June
2009
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 Gasparyan v.
Armenia (no. 2),
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,
Luis López
Guerra, judges,
and Stanley Naismith, Deputy
Section Registrar,
Having
deliberated in private on 26 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22571/05) 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 Maksim Gasparyan (“the
applicant”), on 18 August 2004.
- The applicant was represented by Mr M. Muller, Mr T.
Otty, Mr K. Yildiz and Ms A. Stock, lawyers of the Kurdish
Human Rights Project (KHRP) based in London, and Mr T. Ter-Yesayan, a
lawyer 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.
- On
5 September 2007 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 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1948 and lives in Yerevan.
- The
applicant alleged that on 5 and 9 April 2004 at 9 a.m. he was taken
by police officers to Shengavit District Police Station of Yerevan
where he was kept in a locked room until 7 p.m. and 6 p.m.
respectively. He was neither questioned nor offered any explanation
as to why he was being detained by the police. No records of his
arrests were drawn up. The applicant claimed that these arrests were
intended to prevent his participation in major demonstrations which
were organised on those dates in Yerevan by the political opposition.
- On
20 May 2004 the applicant was taken to the Shengavit District Police
Station of Yerevan.
- According
to the record of the applicant's arrest (արձանագրություն
բերման ենթարկելու
մասին), the applicant was
“arrested at 7.45 p.m. on the Nzhdeh street ... for disturbing
public order”.
- According
to the applicant, he was in reality arrested at home at 5 p.m.
after a police officer visited him and asked him to accompany him to
the police station.
- The
arresting police officers reported to the chief of police that:
“... on 20 May 2004 at ... [we] were patrolling on
Nzhdeh Square and noticed a man who was swearing out loud. We
approached him and tried to call him to order, however, he did not
follow our instructions and continued his unpleasant behaviour. The
said citizen was brought to the police where it was established that
he was [Mr Gasparyan].”
- The
police officers drew up a record of an administrative offence
(վարչական
իրավախախտման
արձանագրություն)
in which it was stated that the applicant was accused of committing
an offence envisaged under Article 182 of the Code of Administrative
Offences (CAO). The applicant refused to sign any of the above
documents or to make a written statement.
- The
applicant alleged that at the police station he was first taken to
the chief of the police station. Thereafter he was questioned about
his participation in demonstrations and about his support for the
opposition. He told the police officers that he had not committed any
public order offence, to which they replied that in any event the
case had already been decided. The applicant asked them to allow him
to appoint a lawyer, which they refused.
- The Government contested this allegation and claimed
that the police officers had informed the applicant of his procedural
rights and had advised him to avail himself of his right to have a
lawyer but he did not wish to do so.
- According
to the applicant, at 10 p.m. he was taken to Judge G. of the
Shengavit District Court of Yerevan (Երևան
քաղաքի Շենգավիթ
համայնքի առաջին
ատյանի դատարան)
who, after a brief hearing, sentenced him under Article 182 of the
CAO to eight days of administrative detention. The judge's entire
finding amounted to the following sentence:
“On 20 May 2004 at around 7 p.m. [the applicant]
was using unaddressed swear words on Nzhdeh Square, and when the
police officers warned him and called him to order, [the applicant]
became upset, continued to behave in an unpleasant manner, and
disobeyed the lawful orders of the police officers, for which he was
brought to the Shengavit District Police Station...”
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.”
THE LAW
I. THE GOVERNMENT'S OBJECTION AS TO NON-EXHAUSTION
- The
Government claimed that the applicant had failed to exhaust domestic
remedies in respect of the decision of 22 March 2003 by not lodging
an appeal with the President of the Criminal and Military Court of
Appeal under Article 294 of the CAO.
- The
applicant 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 preliminary objection must therefore be rejected.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant raised several complaints under Article 5 of the
Convention, which, in so far as relevant, reads 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.”
Admissibility
1. The applicant's alleged arrests on 5 and 9 April
2004
- The
applicant complained under Article 5 §§ 1 and 2 of the
Convention that he was twice subjected to unlawful arrest, on 5 and 9
April 2004 respectively. The Court notes at the outset that the
applicant never complained about these alleged arrests to any
domestic authority, which may raise questions as to whether he has
exhausted the domestic remedies. In any event, even assuming that
there were no effective remedies to exhaust, there is no evidence in
the case file to support the applicant's allegation that he was
arrested on the above dates.
- This
part of the application is therefore manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
2. The applicant's conviction of 20 May 2004
- The
Government submitted that the applicant's administrative detention
had been compatible with the requirements of Article 5 § 1 (a).
His case had been examined by the court of first instance, which was
the sole competent authority to do so. As to the judicial supervision
required by Article 5 § 4, this had been incorporated in the
first instance court's decision.
- The
applicant submitted that his administrative detention was arbitrary
and unlawful in violation of Article 5 § 1. He further submitted
that the manner in which the trial was conducted fell short of the
requirements of Article 5 § 4.
- The
Court observes that it has already examined similar complaints under
Article 5 § 1 and found that the administrative detention had
been imposed on the applicant after a “conviction by a
competent court” within the meaning of Article 5 § 1 (a)
and in accordance with a procedure prescribed by law (see Galstyan,
cited above, §§ 47-49). It sees no reason to depart from
that finding in the present case. Furthermore, the Court reiterates
that where a sentence of imprisonment is pronounced after a
“conviction by a competent court” within the meaning of
Article 5 § 1 (a), the supervision required by Article 5 §
4 is incorporated in that decision (see Galstyan, cited above,
§ 51). However, as already indicated above, no issue arises in
the present case under Article 5 § 1 (a).
- This
part of the application is therefore manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant made several complaints about the administrative
proceedings against him 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 applicant had a fair and public
hearing. He had failed to submit any proof in support of his
allegation that the judge was not impartial. The applicant had been
promptly provided with detailed information concerning the charge
against him. Furthermore, he had been afforded adequate time and
facilities for the preparation of his defence. In particular, the
applicant had been familiarised with the materials of the case
against him and informed about his procedural rights, including his
right to file motions, to call witnesses and to have a lawyer, which
he did not wish to do.
- The
applicant submitted that the trial had not been fair and the tribunal
had not been independent and impartial. Furthermore, the trial had
not been public since it had been held at a late hour in a judge's
office. The speed with which the proceedings had been conducted, the
failure to provide him with adequate time and facilities to prepare
his defence and the fact that he was denied the right to call or
examine witnesses or give evidence in his defence put him at a
significant disadvantage vis-à-vis his opponent. The materials
of the case, including the accusation against him, had not been
revealed to him prior to the hearing and the court had failed to
provide a reasoned decision. He had not been informed of his
procedural rights and had been denied access to a lawyer both prior
to and during the hearing which, moreover, had lasted only a few
minutes.
- 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, and Ashughyan v. Armenia,
no. 33268/03, §§ 66-67, 17 July 2008). The
circumstances of the present case are practically identical. The
administrative case against the applicant was examined in an
expedited procedure under Article 277 of the CAO. The applicant was
similarly taken to and kept in a police station – without any
contact with the outside world – where he was presented with a
charge and in a matter of hours taken to a court and convicted. The
Court therefore does not see any reason to reach a different finding
in the present case and concludes that the 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
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.
IV. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 7
- The
applicant complained under Article 13 of the Convention that he had
no right to contest the decision of 20 May 2004. 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 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
- The
Government submitted that the applicant had the right to have his
conviction reviewed, this right being prescribed by Article 294 of
the CAO.
- The
applicant submitted that the review procedure prescribed by Article
294 of the CAO did not afford him a clear and accessible right to
appeal.
- The
Court notes that the applicant in the present case was 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). 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.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained that his conviction violated his rights
guaranteed by Articles 11 and 14 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 or its Protocols. 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.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 15,000 euros (EUR) in respect of 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 amount
claimed was excessive.
- The
Court considers that the applicant has undoubtedly suffered
non-pecuniary damage as a result of being sanctioned through unfair
proceedings and having no possibility to appeal against this
sanction. Ruling on an equitable basis, it awards the applicant
EUR 2,000 in respect of non-pecuniary damage.
B. Costs and expenses
- In
respect of the costs and expenses incurred before the Court the
applicant claimed USD 3,150 for the fees of his domestic lawyer (21
hours at USD 150 per hour), 5,955 pounds sterling (GBP) for the fees
of his three United Kingdom-based lawyers, including two KHRP lawyers
and one barrister (totals of about 7, 4 and 22 hours
respectively at GBP 150 per hour), and GBP 385 for
administrative costs incurred by the KHRP. The applicant submitted
detailed time sheets stating hourly rates in support of his claims.
- The
Government submitted that the claims in respect of the domestic and
foreign lawyers were not duly substantiated with documentary proof,
since the applicant had failed to produce any contracts certifying
that there was an agreement with those lawyers to provide legal
services at the alleged hourly rate, while the submitted time sheets
and invoice lacked any signatures or seals. 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, there was no documentary proof submitted of the
administrative costs allegedly incurred by the KHRP.
- 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 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. Furthermore, a reduction must also be applied in view of the
fact that a substantial part of the initial application and
communicated complaints was declared inadmissible. Making its own
estimate based on the information available and deciding on an
equitable basis, the Court awards the applicant EUR 3,000 in respect
of costs and expenses, to be paid in pounds sterling into his
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 6 §§
1 and 3 (a)-(d) 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
6 § 1 taken together with Article 6 § 3 (b) of the
Convention in that the applicant did not have a fair hearing, in
particular on account of the fact that he was not afforded adequate
time and facilities for the preparation of his defence in the
administrative proceedings against him;
- 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;
- 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
2,000 (two 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
3,000 (three 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 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 16 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President
