Helsinki Committee of Armenia v Armenia: when the subsidiarity-requirement and the exhaustion of domestic remedies do not go hand in hand

By Helena De Vylder

The ECtHR’s recent Helsinki Committee of Armenia v Armenia judgment deals with the refusal of local authorities to grant permission for the holding of a mourning march. However, the letter refusing the march was only received by the applicant organisation after the proposed date for the event. Since no domestic remedies could give the applicant the opportunity to overturn the decision prior to the proposed date, the ECtHR held that domestic remedies could not effectively remedy the situation and did not need to be exhausted. This blog post explores what form of redress would be considered effective, under the circumstances, and exposes the tension with the subsidiarity principle.

The facts

The case of Helsinki Committee of Armenia v Armenia concerns the refusal of local authorities to grant permission to the holding of a mourning march. The applicant organization wanted to organize the march to commemorate the first anniversary of the death of a man who died after jumping out of a police station window. The applicant organization applied on 6 May, to hold the march on 12 May. On 8 May, the mayor decided to ban the event, because it happened during rough post-election times in which rallies had resulted in clashes and human casualties, regarding which investigations were still ongoing and not all the offenders had been identified. However, the letter containing the mayor’s decision was only posted on 12 May: on the very same day as the proposed day of the event, which was then prevented from taking place by the police. Only on 13 May, the organizers received the letter.

Failure to exhaust domestic remedies

The government submitted that the applicant had failed to exhaust domestic remedies considering that the Administrative Code foresees an appeal to the Administrative Court against actions or inactions of the Mayor’s Office. The applicant argued that since the decision was only received after the planned event, a post-hoc application could not have provided an effective remedy.

The Court followed the viewpoint of the applicant. It held that:

‘Such a belated service of the Mayor’s decision, […], effectively deprived the applicant organization of the opportunity of overturning the ban prior to the date of the planned event, which would have allowed it to proceed with the march (para. 33).

As regards the possibility of overturning the ban post factum, even assuming that the domestic law provided for such a possibility, the Court reiterates that in certain circumstances when the timing of rallies is crucial for their organizers and participants and when the organizers had given timely notice to the competent authorities, the notion of an effective remedy implies the possibility to obtain a ruling before the time of the planned events.’ (para. 34)

Since the event indeed had a special temporal significance, the applicant organization should have been able to obtain a ruling before the time of the planned event. For this reason the Court rejected the objection of non-exhaustion.

No redress available?

The Court refers to the ultimate objective of the rule of exhaustion of domestic remedies: the principle of subsidiarity. This requires that national courts have the possibility to consider and redress alleged violations of the Convention.

However, finally the Court considers that there was no need to exhaust domestic remedies. This is because the remedy available is not considered effective, since it did not create the possibility for the applicant to obtain a ruling before the time of the planned events.

At first sight it seems logical that the Court considers a remedy in such instances ineffective. If not, the state could simply ‘buy off’ public meetings held in order to voice certain issues. This would do no justice to the rights of freedom of assembly, and freedom of speech.

However, this means that the Court takes away the possibility of redress for the state, which contravenes the principle of subsidiarity. Given that the Court has explicitly stated that this principle underpins the need to exhaust domestic remedies, this is an odd decision. Moreover, it is at odds with the Court’s attempts to revalue the subsidiarity-principle under the influence of the Interlaken, Izmir and Brighton Declarations.

Furthermore, this ruling stands in stark contrast with the idea of what ‘redress’ is supposed to be. Proceedings to obtain redress for the damages caused by a violation of a human right, should be capable to ‘remedy’ that violation, even when this means compensation and not restitutio in integrum.

The Court admits that the Administrative appeal can lead to overturning the Mayor’s decision if lodged 24 hours prior to the planned event, but does not state what happens if this appeal is lodged later on, or even after the proposed date and time of the planned event. To the extent that it could be held that in the particular circumstances of the case, no effective appeal was available at all, or the appeal did not lead to redress at all, the Court’s ruling is understandable. If not, however, the Court’s ruling contradicts the idea of ‘redress’, which is not necessarily always restitio in integrum but can also be compensation. Or does the Court overturns its previous case law, implying that restitio in integrum is the only available remedy in these circumstances?

What about the merits?

The applicant organization invoked both article 11 and Article 13.

Since Article 11, Freedom of Assembly, is subject to limitations expressed in paragraph 2 of the Article, the Court tests whether the interference is justified in light of this clause. The Court accepts that the interference is prescribed by law and pursues one or more – unspecified – legitimate aims under Article 11. However, the ‘necessity in a democratic society’ is problematic. To examine this, the Court looks at the interference as a whole and determines whether it is ‘proportionate to the legitimate aim pursued’ and whether the reasons to justify it are ‘relevant and sufficient’. In casu, the reasons were not considered relevant or sufficient for three reasons. Firstly, the march was supposed to take place more than two months after the post-election clashes. Secondly, no evidence suggested that the organizers or participants were involved in these clashes. Thirdly, nothing suggests that they had violent intentions, and the purpose of the march was not linked to politics. Since the Mayor’s reasons were not supported by any concrete, clear and convincing evidence, the Court considers that the ban of the march was not necessary in a democratic society. For that reason, Article 11 is violated.

Article 13 is more interesting in the context of this blog post, since this considers the right to an effective remedy, exactly the issue at stake in the exhaustion-requirement. The Court reiterates that Article 13 requires the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the Convention complaint and to grant appropriate relief. According to the Court, states are afforded some discretion as to the manner in which they comply with their obligations under this provision. Moreover, the aggregate of remedies might satisfy the requirement, according to the Court.

Referring to the paragraphs concerning the exhaustion of local remedies, the Court establishes that no effective remedies are shown to exist. This finding would be understandable if the only remedy was overturning the mayor’s decision before the planned date of the event, since a remedy would then be missing completely after that date. However, this finding is contrary to the aforementioned ruling that states are afforded discretion regarding the way of remedying. It would be advisable for the Court to use more clear language. The judgment leaves us in doubt regarding the remedies necessary to satisfy the requirement to be effective. When clarifying this issue, the Court will need to keep in mind the subsidiarity principle.

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