BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF SAPEYAN v. ARMENIA
(Application
no. 35738/03)
JUDGMENT
STRASBOURG
13
January 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 Sapeyan 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
- The
case originated in an application (no. 35738/03) 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, Zhora Sapeyan (“the
applicant”), on 28 August 2003.
- 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 (KHRP) 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.
- 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
- The
applicant was born in 1954 and lives in Ashtarak, Armenia. He is the
chairman of a regional branch of the Republic Party
(«Հանրապետություն»
կուսակցություն).
A. The demonstration of 20 February 2003
- In
2003 a presidential election was held in Armenia with its first and
second rounds taking place on 19 February and 5 March respectively.
Following the first and second rounds, a series of protest rallies
were organised in Yerevan by the opposition parties.
- On
20 February 2003 the applicant participated in a demonstration held
in Yerevan which was apparently followed by a march.
- On
26 February 2003, when another demonstration was apparently supposed
to take place in Yerevan, the applicant and two other members of his
party set off by car from Ashnak village to Yerevan.
- The
applicant alleged that on the road to Yerevan their car was stopped
by several individuals in civilian clothes who introduced themselves
as officers of the Aragatsotn Regional Police Department. The
applicant and his colleagues were taken to the Regional Police
Department. From there the applicant was transferred 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 20 February 2003.
- 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
համայնքներկ
առաջին ատյանի
դատարան). There
he was brought before Judge A. who, having heard the applicant and
his lawyer, 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 ten days of administrative
detention, finding that:
“On 20 February 2003 [the applicant] participated
in an unauthorised march, thus violating the prescribed rules for
organising and holding street marches and demonstrations.
For this act [the applicant] was brought to the Central
District Police Department on 26 February 2003.
The fact of [the applicant's] participation in an
unauthorised march was confirmed by the explanation given by [the
applicant] in court and the examination of the materials of the
administrative case file.”
- The
decision stated that it was not subject to appeal and could be
protested against only by the prosecutor.
- On
27 February 2003 the applicant's lawyer lodged both an appeal with
the Criminal and Military Court of Appeal (ՀՀ
քրեական և զինվորական
գործերով վերաքննիչ
դատարան) and an
application with the General Prosecutor (ՀՀ
գլխավոր դատախազ)
requesting him to initiate an appeal against the decision of the
District Court. The lawyer argued at the outset, relying on various
domestic provisions, that he was entitled to lodge an appeal against
the decision of the District Court. As to the merits, he submitted
that the interference with the applicant's right to freedom of
peaceful assembly was in violation of the Constitution and was not
prescribed by law, and the penalty imposed was excessive. The lawyer
attached a copy of the contested decision to the appeal.
- On
2 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
violating the prescribed rules for organising and holding assemblies,
demonstrations, street marches and rallies, by participating in an
unauthorised demonstration and street march on 20 February 2003.
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.”
- 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 four
days of his sentence.
- 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.
B. The demonstration of 14 May 2003
- On
3 December 2003 the applicant supplemented his initial application,
complaining about the following events.
- On
14 May 2003 he participated in a demonstration held in Yerevan.
- On
21 May 2003 he was taken to a police station and then transported to
the Kentron and Nork-Marash District Court of Yerevan where an
administrative fine of AMD 1,000 was imposed on him for having
organised the participation of a group of people from his region in
an unauthorised demonstration on 14 May 2003.
II. RELEVANT DOMESTIC LAW
- 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).
- For
a summary of the relevant legislation invoked by the parties in
connection with Article 180.1 of the CAO (see paragraphs 33 and 34
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 26 FEBRUARY 2003
- 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 26
February 2003.
- 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 III). 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).
- 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 26 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 this avenue for review by
submitting both an appeal to the Criminal and Military Court of
Appeal and a request for appeal to the General Prosecutor (see
paragraph 11 above). On 2 March 2003 the President of the Criminal
and Military Court of Appeal decided to review the final decision of
the District Court of 26 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.
- 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).
- 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 been finally 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).
- 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, almost all of the complaints which he is currently
raising before the Court (see paragraph 20 above). The only issue
raised in that appeal concerned the alleged unlawfulness of the
interference with his right to freedom of assembly. The Court 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, apart from the one concerning the alleged
unlawfulness of the interference with his right to freedom of
peaceful assembly, 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.
- It
follows that the applicant's complaints concerning the decision of 26
February 2003, other than the one under Article 11, were lodged out
of time and must be rejected in accordance with Article 35 §§
1 and 4 of the Convention.
- The
Court considers, however, that different considerations apply to the
applicant's complaint under Article 11. It reiterates that the
six-month rule is autonomous and must be construed and applied
according to the facts of each individual case, so as to ensure the
effective exercise of the right to individual application (see
Fernandez-Molina Gonzalez and Others v. Spain (dec.),
no. 64359/01, ECHR 2002 IX (extracts)). The Court notes
that, even if the applicant pursued his complaint under Article 11
through an extraordinary remedy which has been already found by the
Court to be ineffective (see Galstyan, cited above), this
actually led to the re-examination of his case on that particular
ground and a new decision on the merits. In such circumstances, and
bearing in mind that Article 35 must be interpreted with some
flexibility (see Ahtinen v. Finland (dec.), no. 48907/99,
31 May 2005), the Court does not consider that this
complaint was introduced out of time.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- 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
- The
Court notes that, as already indicated above, this complaint was
lodged within six months from the date of the final decision (see
paragraph 27 above).
- It
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
- 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 applicant's conviction for
participation in an unauthorised march undoubtedly interfered with
his right to freedom of peaceful assembly.
- 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.
- 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.
- 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.
- 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).
- 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.
- 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.
- 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 2 MARCH 2003
- 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
- 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.
- 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).
- In
the present case, the applicant was convicted under Article 180.1 of
the CAO for his participation in an unauthorised demonstration and
street march. This reason was stated in the Court of Appeal's
decision. In such circumstances, even if this decision was not
detailed, it cannot be said that the Court of Appeal failed to
indicate the reasons for the applicant's conviction.
- 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 14 OF THE CONVENTION AS
REGARDS THE DECISION OF 2 MARCH 2003
- The
applicant alleged discrimination on political grounds also in
connection with the decision of the Court of Appeal of 2 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
- 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.
- 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.
V. ALLEGED VIOLATION OF THE CONVENTION AND PROTOCOL NO. 1
TO THE CONVENTION AS REGARDS THE DECISION OF 21 MAY 2003
- Lastly,
the applicant also raised all the above complaints in connection with
the decision of 21 May 2003. The Court notes, however, that the
applicant lodged this part of the application only on 3 December 2003
(see paragraph 15 above).
- It
follows that this part of the application was similarly lodged out of
time and must be rejected in accordance with Article 35 §§
1 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 EUR 20,000 in respect of non-pecuniary damage.
- 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.
- 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 and a march.
Ruling on an equitable basis, it awards him EUR 1,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 5,850 United States dollars (USD)
(approximately EUR 4,916) and 6,332.50 pounds sterling (GBP)
(approximately EUR 9,312) for the costs and expenses incurred
before the Court. These claims comprised:
(a) USD
5,850 for the fees of his two domestic representatives (totals of 25
and 21 hours at USD 150 and 100 per hour respectively);
(b) GBP
6,237.50 for the fees of his three United Kingdom-based lawyers,
including two KHRP lawyers and one barrister (totals of about 15 and
40 hours at GBP 150 and 100 per hour respectively); and
(c) GBP
95 for administrative costs incurred by the KHRP.
- 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.
- 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
- 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 complaint under Article 11 of the
Convention in respect of the proceedings which terminated with the
decision of the Criminal and Military Court of Appeal of 2 March 2003
admissible, and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
11 of the Convention;
- 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;
- 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 Naismith Josep Casadevall
Deputy Registrar President
