GERAGUYN KHORHURD PATGAMAVORAKAN AKUMB v. ARMENIA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
1. The applicant, Geraguyn Khorhurd Patgamavorakan Akumb, is a non-governmental organisation (“the applicant organisation”) which was established in 1997 and has its registered office in Yerevan. It was represented before the Court by its head, Mr R. Torosyan. 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. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 25 May 2003 a parliamentary election was held in Armenia. The applicant organisation acted as an election observer during the election. According to the applicant organisation, in the pre-election stage it had disclosed numerous violations connected with the use of pre-election funds of certain parties which allegedly led to the free broadcast of the election campaign by certain TV companies being carried out mainly in favour of a number of parties. 4. The applicant organisation alleged that on 26 May 2003 its head had applied to the Central Election Committee (ՀՀ կենտրոնական ընտրական հանձնաժողով – “the CEC”) with letter no. 191, sent by registered mail, having the following content: “To receive copies of documents To Central Election Committee Application Based on the requirements of Article 30 § 1 (2) of the Electoral Code of Armenia and Paragraph 9 of the Rules of Implementation of an Observer Mission, I request that an observer of our organisation [M.S.] be allowed, according to the established procedure, to receive copies of a number of documents related to the parliamentary election of 2003, in particular: 1. all decisions taken by the CEC after 12 March [2003]; 2. all records of the meetings held by the CEC after 12 March [2003]; [and] 3. registers of voluntary payments to pre-election funds and expenses of the parties (unions of parties) participating in the parliamentary election through the proportionate ballot.” 5. The applicant organisation further alleged that on 29 May 2003 the lawyer of the CEC verbally informed its head that the CEC still had time to reply to its request. It also alleged that on the same date its head addressed to the Chairman of the CEC letter no. 205, similarly by registered mail, which stated as follows: “...on 26 May [2003] we applied to the CEC requesting to be allowed to receive copies of a number of documents related to the parliamentary election of 2003. However, so far you have not satisfied our lawful request[. I]n this connection we once again request [that you] provide us with copies of the documents in question.” 6. The Government contested these allegations and argued that the letters in question were never submitted to the CEC. 7. On 3 June 2003 the applicant organisation contested the CEC’s alleged inaction before the courts, seeking to oblige it to provide copies of the requested documents. 8. On 13 June 2003 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) held a hearing on the case. 9. On 19 June 2003 the Kentron and Nork-Marash District Court of Yerevan held another hearing and decided to dismiss the applicant organisation’s application. The District Court found that the applicant organisation had failed to submit any evidence that it had applied to the CEC with a request for copies of documents and had been refused. 10. The applicant organisation alleged that it had not been notified about these hearings and its representative was therefore unable to attend. 11. On 1 July 2003 a copy of this judgment was served on the applicant organisation. On the same date, the head of the applicant organisation requested access to the materials of the case file. The applicant organisation alleged that no reply was received to this request, while the Government alleged that this request was never actually filed with the District Court. 12. On 2 July 2003 the head of the applicant organisation, in reply to another request, was granted access to the case file materials. 13. On 3 July 2003 the applicant organisation lodged an appeal. Attached to its appeal the applicant organisation submitted copies of its letters of 26 and 29 May 2003 and of front pages of two post office receipts. 14. On 19 August 2003 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան), with reference to Articles 48 and 49 of the Code of Civil Procedure, decided to dismiss the applicant organisation’s appeal on the ground that it had failed to submit evidence that it had sent its letter of 26 May 2003 to the CEC. The Court of Appeal found that the copy of the post office receipt attached to the appeal could not serve as such proof because there was no postmark on it certifying that the letter had been handed in at the relevant post office. 15. The applicant organisation submitted that its representative refused to participate in this hearing because of allegedly having previously been denied access to the case file materials. 16. On 1 September 2003 the applicant organisation lodged an appeal on points of law. Attached to its appeal the applicant organisation submitted copies of the same post office receipts with postmarks dated 26 and 29 May 2003 photocopied on their reverse. 17. On 12 December 2003 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the applicant organisation’s appeal. The Court of Cassation, having recapitulated the findings of the Court of Appeal, stated, inter alia: “As regards the argument raised in the appeal that letters nos. 191 and 205 have been sent, the [post office] receipts submitted as proof are not proper evidence since they bear no postmarks.” 18. The relevant provisions of the Electoral Code, as in force at the material time, read as follows: “1. Elections are prepared and conducted publicly. ...” “1. [The following physical and legal persons] have the right to an observer mission during an election: (1) international organisations; (2) representatives of foreign states; [and] (3) those [domestic] and foreign non-governmental organisations whose statutory aims include questions of democracy and human rights protection and which do not support [any of] the candidates or the parties. 2. The procedure for carrying out an observer mission shall be established by the Central Election Committee.” “1. Organisations and persons mentioned in Article 28 of this Code may carry out an observer mission after having been accredited by the Central Election Committee. ... 6. The powers of persons carrying out an observer mission shall terminate ten days after the end of an election.” “1. An authorised election assistant, an observer and a representative of mass media have the right: ... (2) to have unimpeded access to the election documents, samples of ballot papers, decisions of an election committee and records of its meetings, as well as to receive their copies and to take extracts. ... 5. No limitations can be placed on the rights of an authorised election assistant, an observer and a mass media representative. ...” 19. The relevant provisions of the Code of Civil Procedure, as in force at the material time, read as follows: “Any party to the proceedings must prove the circumstances on which his [or her] claims and objections are based.” “1. Evidence shall be produced by the parties to the proceedings. ...” “Unlawful acts of public authorities, local self-government bodies and their officials can be annulled or their actions (inaction) can be contested (hereafter, annulling the unlawful act) if the act in question contradicts the law and if there is evidence that the applicant’s rights and (or) freedoms guaranteed by the Armenian Constitution and laws have been violated.” “1. An application seeking to annul unlawful acts of public authorities, local self-government bodies and their officials shall be submitted to a court dealing with civil cases or the Commercial Court, pursuant to their jurisdiction over cases. ...” “Cases on appeals lodged against judgments of the first instance courts, which have not entered into force, are examined by the Civil Court of Appeal (hereafter, Court of Appeal).” “1. The Court of Appeal is not bound by the appeal and shall examine the case anew on the basis of the existing and newly produced evidence. ...” “Appeals on points of law lodged against judgments of the first instance courts, the Commercial Court and the Court of Appeal, which have entered into force, and judgments of the Commercial Court and the Court of Appeal, which have not entered into force, are examined by the Civil Chamber of the Court of Cassation (hereafter, Court of Cassation).” “An appeal on points of law can be lodged on the ground of ... a substantive or a procedural violation of the parties’ rights...” “3. The Court of Cassation is not entitled to establish or consider as proven facts which have not been established by the contested judgment or have been rejected by it, to determine whether or not this or that piece of evidence is reliable, to resolve the issue as to which piece of evidence has more weight or the issue as to which norm of substantive law must be applied and what kind of judgment must be adopted upon the new examination of the case.” 20. The relevant provisions of the Rules, in force at the material time, read as follows: “9. An observer has the right: ... to have unimpeded access to the election documents, samples of ballot papers, decisions of an election committee and records of its meetings, as well as to receive their copies and to take extracts; ...to give press conferences and to address mass media in accordance with the legislation of Armenia. ... 12. An observer shall submit copies of the reports on the summarising of the election results and on the conduct of the election to the Central Election Committee...” “14. The material and financial costs of an observer’s activities shall be borne by the party commissioning the observer or by [the observer’s] own financial means. 15. The relevant election committees shall provide the necessary assistance to an observer in the implementation of the rights envisaged by Paragraph 9 of these Rules.”