CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ THE RIGHT OF APPEAL IN CRIMINAL MATTERS ȃ CASEǧLAW OF ECtHR … suspensive effect in relation to her immediately enforceable prison sentence, but it was never even reviewed on the merits. Despite national legislative changes, i.e., 5 years after the events in Shvydka in Ukraine, the ECtHR found that these changes were irrelevant to the applicant and thus there was again a violation of Article 2 of Protocol No. 7 to the ECHR. The significance of this case therefore lies in the establishment of judicial interpretation and the principles arising from Article 2 of Protocol No.7 to the ECHR in relation to situations where suspension of a prison sentence is not permitted and at the same time review is either completely absent or occurs after the sentence has been fully served. Logically, therefore, any review proceedings after the sentence have been served are no longer of any legal significance. 4.2 Case-law ECtHR against Armenia Politically motivated administrative punishment was the subject of a complaint in Kirakosyan v. Armenia . 23 Here the applicant was a member of an opposition political party. In 2003 presidential elections were held and opposition parties organised protests in which the applicant participated. Police officers visited the applicant at his home, and he was asked to report to the police station on the grounds of an unauthorised demonstration and on suspicion of taking part in a demonstration. The applicant resisted but was nevertheless taken to the police station. The arrest report stated that he was guilty of participating in an unauthorized demonstration and for behaving in a vulgar manner while being subjected to the acts of law enforcement. Further, the administrative offense record stated that the applicant disobeyed the officers’ order and verbally assaulted them. The applicant was subsequently brought before a judge and after a brief hearing was convicted and sentenced to 10 days of administrative detention. The applicant argued Article 13 ECHR, which the ECtHR assessed and considered necessary to review under Article 2 of Protocol No. 7 to the ECHR as well. The Government submitted that the applicant was entitled to a review of his conviction, although the applicant countered that all the legal provisions relating to the right of appeal were inadequate and confused. 24 The ECtHR notes that the applicant was sentenced in this case following the same procedure as in the Galstyan case, 25 in which the ECtHR concluded that the applicant did not have an appeal procedure that would satisfy the requirements of Article 2 of Protocol No. 7 to the ECHR available to him. Accordingly, the ECtHR saw no reason to depart from that finding in the present case and held that there had also been a violation of Article 2 of Protocol No. 7 to the ECHR in Kirakosyan v. Armenia . Another in a series of complaints against Armenia is the ECtHR’s decision in Gasparyan v. Armenia . 26 In this case, the applicant was taken to a police station and held in a locked room without being questioned. No explanation was given to applicant him as to why he was detained. However, the applicant inferred that this action by the state was intended to prevent him from participating in the demonstrations. The record of his arrest gave ‘disturbance of public order’ as the reason. In the administrative offence record, the applicant was charged with a misdemeanour but refused to sign the record. The applicant sought legal assistance through an attorney, but the officers refused to comply, stating that his case was already resolved. The government disputed the facts in Gasparyan’s complaint and claimed 23 ECtHR decision in Kirakosyan v. Armenia , of 2 December 2008, application no. 31237/03. 24 ECtHR decision in Kirakosyan v. Armenia , of 2 December 2008, application no. 31237/03, §§ 83–86. 25 ECtHR decision in Galstyan v. Armenia , of 15 November 2007, application no. 26986/03, §§ 118–127. 26 ECtHR decision in Gasparyan v. Armenia (no. 2) , of 16 June 2009, application no. 22571/05.

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