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On 2 April 2020, when Vanadzor resident Anahit Ohanyan decided to get her pension from an automated teller machine, she could not even imagine what consequences would arise from going to an ATM which was only 30 meters from the building. Policemen approached her and demanded a movement sheet. Mrs. Anahit says that at that moment she had her passport, mask and gloves, as well as a movement sheet.
“Me and my husband went out to get my pension. We got the pension and were heading home, when 2 policemen in civilian clothes stopped us. It was dusk. They did not particularly check my husband’s documents, and I just didn’t mention on my movement sheet the time when I left the house. I left the house at around 18:00-19:00, and 14։00-16։00 was mentioned on my movement sheet. They told me that I had violated movement rules, that we did not have the right to go out”.
The policemen in civilian clothes assured that as it was the first time, they were giving a warning and filled in an explanatory note. Taking advantage of the condition that the elderly woman did not have glasses and it was almost dark, the policemen gave her papers to sign, which she signed without reading.
After receiving the notification paper, Mrs. Anahit found out that she had signed under a decision of administrative act of a fine in the amount of AMD 100,000.. “I believed the policemen and signed, thinking that it was a warning. Whereas, it was an administrative act on a fine in the amount of AMD 100,000, about which I received a notification on 25 April”, Anahit Ohanyan told HCA Vanadzor.
Finding that the administrative act of Vanadzor Taron division of 16 April 2020 is completely illegal and ungrounded, Mrs. Anahit applied HCA Vanadzor to get legal aid, “I knew that the Helsinki office functioned in Vanadzor. I went to the Office, there were telephone numbers on the door. Despite the state of emergency, they helped even on the phone. I called Ani, she helped me a lot. I managed to achieve favourable results due to her”.
With the support of HCA Vanadzor legal consultant Nushik Ter-Movsisyan, an administrative appeal was prepared in order to appeal the above-mentioned act to a superior body.
According to the reasoning in the administrative appeal addressed to the former Head of RA Police Arman Sargsyan, the administrative act does not stem from the imperative requirements of RA Constitution and laws, moreover, it contradicts the whole essence of RA legislation on restrictions of human rights. Therefore, it is subject to elimination.
In the administrative appeal, Mrs. Anahit’s family situation was also presented. The pensioners, the husband and the wife, take care of two underage children, their mother died months ago, their father is in a socially difficult situation, has health problems and is currently in the Russian Federation. Their main source of income is their pensions, there is no other way to pay the fine, which, despite being incommensurate with their social situation, is also a result of an ungrounded decision.
Invoking the relevant provisions of RA Constitution and RA Laws on “Administration and administrative proceedings” and “Legal regime of the state of emergency”, HCA Vanadzor lawyers presented reasonings on the following matters in the administrative appeal made on behalf of Anahit Ohanyan: can the norms (regarding the restriction of persons in the state of emergency) published by the Commandant be compulsory for persons or not and did the police have the right to bring Mrs. Anahit to administrative liability for not observing the rules established by the Commandant?
The norms presented in the administrative appeal justify that the Commandant’s office only has the power to guide and conduct control over the measures taken by the structures ensuring the legal regime of the state of emergency. Reasonings were also presented through a number of constitutional norms, according to which only the legislative body, i.e. the National Assembly has the exclusive right to restrict the right to move freely, and the restriction of the right must be enshrined exclusively by law.
The RA legislation does not have any legal regulation establishing a power for the Commandant’s Office to adopt legal acts in the state of emergency and let alone, any power which gives the Commandant’s Office the authorization to restrict persons’ free movement. Therefore, the Commandant,violating imperative requirements of RA Constitution norms, without any legal regulation, reserved himself a power to make decisions containing compulsory rules of conduct, without taking into account that such powers are given only to the National Assembly and such provisions must be established only by law.
As far as the NA has not adopted a law on free movement of persons, the right to movement cannot be restricted, moreover, persons cannot be subjected to administrative liability for the implementation of their constitutional right to move freely.
In regard to the second question, reasonings were presented in the administrative appeal, according to which, Vanadzor policemen had no power to subject the citizen to administrative liability according to Article 57 part 1 of the RA Law on “Fundamentals of administration and administrative proceeding”, “Written administrative acts or administrative acts approved in writing shall contain reasoning where all substantial factual and legal grounds for adopting the respective decision shall be specified”.
According to Article 9 of RA Code of Administrative Offences, administrative offence, i.e. misdemeanor is considered illegal, guiltyintentional or neglident action or inaction against state or public order, (...), citizens’ rights and freedoms, established order of government, for which administrative liability is envisaged by legislation.
While the administrative act of 16 April 2020 makes it clear that the fact that Anahit Galstyan did not observe the rules established by the Commandant during the state of emergency was recognized as a misdemeanor and offence.
Therefore, according to the RA Law on “Fundamentals of administration and administrative proceeding, “Invalid shall be the unlawful non‐void administrative act, which was adopted: (a) in violation of the law, including as a result of incorrect application or incorrect interpretation of the law”.
The analysis of all of this and the essential conditions of the case shows that there are all the legal and factual grounds to recognize the administrative act invalid.
Taking into examination the appeal to a superior body, RA Police Legal Department, guided by the provisions of the RA Law on “Fundamentals of administration and administrative proceedings”, made a decision on 29 June 2020 to fully uphold the appeal and recognize invalid the administrative act made by Vanadzor policemen on 16 April 2020.
“People don’t know the order, their rights, but by calling the Helsinki office I was exempted from the duty to pay the fine. We are pensioners, my and my husband, and here, 100000 drams fine. Could I pay? Of course, I couldn’t. I am very thankful to the organization. Even when the fines were reduced and 100,000 became 10,000, I decided to pay, Ani told me, why do you pay? We’’ll go till the end.And that’s what happened, I was exempted from the fine. I myself could not reach success, I didn’t know how to, and the paid advocate would be the same amount of money for me, 100,000 drams, but I couldn’t afford to pay”, says Anahit Ohanyan.