BABAYEV AND HASANOV v. AZERBAIJAN - 60262/11 (Judgment : Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) Violation of Arti...) [2017] ECHR 706 (20 July 2017)

In the case of Babayev and Hasanov v. Azerbaijan,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          André Potocki, President,
          Mārtiņš Mits,
          Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having deliberated in private on 4 July 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in three applications (nos. 60262/11, 69437/11 and 53662/13) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Azerbaijani nationals, Mr Dayanat Sakhavat oglu Babayev (“the first applicant”) and Mr Ulvi Fakhraddin oglu Hasanov (“the second applicant”), on 10 September 2011, 17 October 2011 and 18 February 2013 respectively.

2. The applicants, who had been granted legal aid, were represented by Mr R. Mustafazade and Mr A. Mustafayev, lawyers practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. On 3 July 2014 (applications nos. 69437/11 and 53662/13) and 21 April 2015 (application no. 60262/11) the complaints concerning Articles 5, 6 and 11 of the Convention, raised in all three applications, and Articles 10 and 7 of the Convention, raised only in applications nos. 69437/11 and 53662/13, were communicated to the Government. On the same dates the remainder of applications nos. 60262/11 and 69437/11 were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4. The Government objected to the examination of the applications by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants’ dates of birth and places of residence are given in the Appendix.

A. Background information

6. At the material time the first applicant was a member of the youth committee of an opposition party, the Popular Front Party of Azerbaijan (Azərbaycan Xalq Cəbhəsi Partiyası - “the PFPA”), and the second applicant was a chairman of a youth organisation called Azad Genclik.

7. Both applicants participated in a number of unauthorised peaceful demonstrations organised by the opposition. In the course of many of those demonstrations, they were arrested and convicted. In particular, the first applicant was arrested during the demonstrations on 15 May, 19 June and 31 July 2010.

8. The number of opposition demonstrations increased in 2011. That tendency continued into the following years. Demonstrations were held, inter alia, on 11 March 2011 and 20 October and 17 November 2012.

9. The second applicant attended the demonstrations of 11 March 2011 and 20 October 2012. The first applicant attended the demonstrations of 20 October and 17 November 2012.

10. According to the first applicant, he also intended to participate in the demonstration of 11 March 2011. Moreover, he was actively promoting public participation in that assembly on online social networks.

11. It appears that the organisers of the demonstration of 11 March 2011 gave no proper prior notice to the relevant authority, the Baku City Executive Authority (“the BCEA”). Information about the assembly was disseminated through Facebook or the press.

12. Prior to the demonstrations of 20 October and 17 November 2012, on 15 October and 12 November 2012 respectively the organisers had given notice to the BCEA.

13. The BCEA refused to authorise the demonstration of 20 October 2012 at the site indicated by the organisers and proposed another location on the outskirts of Baku - the grounds of a driving school situated in the 20th habitable area of the Sabail District.

14. The BCEA also refused to authorise the demonstration of 17 November 2012. It noted in general terms that that assembly would not be in accordance with the Law on Freedom of Assembly. The BCEA further noted that the square where the organisers proposed to hold the assembly was a designated public leisure area and that the assembly itself would be impractical.

15. The organisers nevertheless decided to hold the demonstrations as planned. According to the applicants, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants were demanding democratic reforms in the country and free and fair elections, and protesting against impediments on freedom of assembly.

B. Events of 4 March 2011 and subsequent administrative proceedings against the first applicant

1. Administrative arrest of the first applicant

16. On 4 March 2011 the first applicant was arrested and brought to police station no. 22 of the Nasimi district police office.

17. According to the official records, he was arrested because at around 11.20 a.m., in front of the National Bank in Baku, he had disobeyed a lawful order of the police to stop speaking loudly on a mobile phone and to stop using foul language. He also swore at the police officers and tried to run away when being arrested.

18. The applicant contested the official version of his arrest. He stated that he had been arrested in an Internet café by three persons in plain clothes who had failed to present themselves or give reasons for the arrest. They had taken his belongings from the Internet café, including his mobile phone. He had been pushed into an unmarked car. There one of the persons who had arrested him had presented himself as a police officer and shown a police badge. The other two had presented themselves as agents of the Ministry of National Security, without showing any supporting document. He had been told that the arrest had been in connection with the demonstration of 11 March and another protest planned to be held on 12 March 2011.

19. At the police station an administrative-offence report (inzibati xəta haqqında protokol) was issued in respect of the applicant, setting out the charges against him. The report stated that the applicant had committed an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”) (failure to comply with a lawful order of a police officer).

20. According to the applicant, he was never served with a copy of the administrative-offence report or with other documents from his case file. He was also not given access to a lawyer after his arrest or while he was in police custody.

2. Court proceedings

21. On the day of his arrest the applicant was brought before the Nasimi District Court, which on the same day adopted a decision on the merits.

22. According to the applicant, he was not given an opportunity to appoint a lawyer of his own choosing. A State-funded lawyer (Mr O.A.) was appointed to assist him.

23. According to the transcript of the first-instance court’s hearing, Mr O.A. did not make any oral or written submissions.

24. In his statement before the court the applicant contested the police officers’ version of events and argued that he had been arrested unlawfully. The court disregarded that statement as non-reliable.

25. Only the police officers who, according to the official records, had arrested the applicant and the police officer who issued the administrative-offence report in respect of him were questioned as witnesses. In their statements those police officers reiterated the official version of the reasons for the applicant’s arrest (see paragraph 17 above).

26. The court found that the applicant had committed the administrative offence attributed to him (see paragraph 17 above). It convicted the applicant under Article 310.1 of the CAO and sentenced him to ten days’ administrative detention.

27. According to the applicant, until 6 March 2011 his whereabouts were unknown to his family and friends.

28. Only on 7 March 2011 was a lawyer hired by his family able to meet the applicant and to learn the details of his arrest, detention and the court proceedings against him.

29. On an unspecified date the applicant lodged an appeal with the Baku Court of Appeal, presenting his version of the events surrounding his arrest, and arguing that he had been arrested in connection with the demonstration scheduled for 11 March 2011. The applicant also complained that the hearing before the first-instance court had not been fair.

30. In addition, he applied to the appellate court to have examined his mobile-phone call records in respect of the date and time of the alleged administrative offence.

31. The applicant was represented before the Baku Court of Appeal by a lawyer of his own choosing.

32. On 19 March 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that the conclusions reached by that court had been correct.

33. The appellate court did not address the applicant’s above-mentioned request to have his mobile-phone call records examined.

C. Dispersal of the demonstrations of 11 March 2011, 20 October and 17 November 2012 and subsequent administrative proceedings against the applicants

1. Administrative arrests

34. As mentioned above, the demonstration of 11 March 2011 was attended by the second applicant, the demonstration of 20 October 2012 by both applicants, and the demonstration of 17 November 2012 by the first applicant.

35. All three demonstrations were dispersed as soon as the protesters began to gather. Both applicants were arrested during the dispersal operations and after each arrest were taken to police station no. 9 of the Sabail district police office.

36. According to the applicants, during the dispersal of the demonstrations of 20 October and 17 November 2012 they were arrested by individuals in plain clothes.

37. On the day of each of the applicants’ respective arrests, administrative-offence reports were issued in respect of them. In each case the applicants were charged with an administrative offence under Article 310.1 of the CAO. Following their arrest on 20 October 2012 the applicants were additionally charged under Article 298 (violation of rules on holding public assemblies) of the CAO.

38. According to the applicants, they were never served with a copy of the administrative-offence reports or with other documents from their case files. They were also not given access to a lawyer after their arrests or while they were in police custody.

2. Court proceedings

39. The applicants were brought before the Sabail District Court on the day of each arrest (specifically, the first applicant on 20 October and 17 November 2012, and the second applicant on 11 March 2011 and 20 October 2012).

40. According to the applicants, the respective hearings before the first-instance court were very brief. Members of the public were not allowed inside the courtroom, even though the court had not taken a formal decision to close the hearings to the public.

41. According to the applicants, they were not given an opportunity to appoint lawyers of their own choosing.

42. A State-funded lawyer was appointed to defend the applicants at each hearing.

43. According to the transcript of the hearing of 11 March 2011, in his oral submissions the State-funded lawyer for the second applicant (Mr V.M.) briefly asked the court to consider the young age of the applicant and his sincere regret for having committed the administrative offence.

44. None of the material submitted to the Court contains any record showing that at the hearings of 20 October and 17 November 2012 respectively the State-funded lawyer for the second applicant (Mr K.B.) or the State-funded lawyer for the first applicant (Mr Z.A.) made any oral or written submissions on behalf of the applicants.

45. According to a statement (“ərizə”) signed by the first applicant, he refused the assistance of the State-funded lawyer at the hearing of 20 October 2012 and decided to defend himself in person.

46. The only witnesses questioned during the hearing of 11 March 2011 concerning the second applicant were police officers who, according to official records, had arrested him. They testified that together with some other people the applicant had attempted to hold an unlawful demonstration and continued to protest despite the order to disperse. During the hearings of 20 October 2012 and 17 November 2012 the court did not question any witnesses.

47. In each case the Sabail District Court found that the applicants had failed to stop participating in an unauthorised demonstration. The court convicted the applicants under Article 310.1 of the CAO. In the proceedings related to his participation in the demonstration of 20 October 2012 the second applicant was also convicted under Article 298 of the CAO. The applicants were sentenced to various periods of administrative detention (see Appendix).

48. On unspecified dates the applicants lodged appeals with the Baku Court of Appeal, arguing that their convictions had been in violation of their rights, because the protest in which they had participated had been peaceful. The applicants also complained that their arrests had been unlawful, and that the hearings before the first-instance court had not been fair. They asked the Baku Court of Appeal to quash the first-instance court’s decisions in their respective cases.

49. The first applicant was assisted by a lawyer of his own choosing in each case before the Baku Court of Appeal. The second applicant was assisted by a lawyer of his own choosing during the appellate-court proceedings related to his participation in the demonstration of 20 October 2012, but he was not represented by a lawyer during the appellate-court proceedings related to his participation in the demonstration of 11 March 2011.

50. On various dates the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the first-instance court (see Appendix).

II. RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS

51. After the amendments introduced by Law no. 135-IVQD of 31 May 2011, which entered into force on 1 July 2011, Article 410 of the Code of Administrative Offences 2000 provided as follows:

Article 410
Administrative-offence report

“... 410.3. A copy of the administrative offence report shall be given to an individual who is subject to the administrative offence proceedings or to a representative of a legal entity.

410.4. ... An aggrieved person in administrative offence proceedings has the right to a copy of the administrative offence report.”

52. For a summary of the relevant provisions concerning administrative proceedings, the relevant provisions concerning freedom of assembly, the organisation and holding of public assemblies, and the relevant extracts from international documents and press releases, see the judgment in the case of Huseynli and Others v. Azerbaijan (nos. 67360/11, 67964/11 and 69379/11, §§ 67-77, 11 February 2016) and the judgment in the case of Ibrahimov and Others v. Azerbaijan (nos. 69234/11, 69252/11 and 69335/11, §§ 44-59, 11 February 2016).

THE LAW

I. JOINDER OF THE APPLICATIONS

53. Given the similarity of the facts and complaints raised in all three applications, the Court has decided to join the applications in accordance with Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION

54. The first applicant in his application no. 60262/11 (“first application”) complained that his arrest and conviction prior to the demonstration of 11 March 2011 had been measures used by the authorities to punish him for his political activity and to prevent him from participating in opposition protests. He invoked Article 11 of the Convention, which reads as follows:

Article 11

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

55. The second applicant and the first applicant in his application no. 53662/13 (“second application”) complained that the dispersal of the demonstrations in which they had participated (the second applicant - the demonstrations of 11 March 2011 and 20 October 2012; the first applicant - the demonstrations of 20 October and 17 November 2012) by the police and their arrests and convictions for administrative offences had been in breach of their right to freedom of assembly, as provided for in Article 11 of the Convention.

56. In addition, the applicants complained that the dispersal of the said demonstrations by the police and their arrests and convictions for administrative offences had been in breach of their right to freedom of expression, as provided for in Article 10 of the Convention, which reads as follows:

Article 10

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A. Admissibility

57. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Scope of the complaints raised by the second applicant and the first applicant in his second application

58. In the circumstances of the present cases, Article 10 is to be regarded as a lex generalis in relation to Article 11, a lex specialis. It is therefore unnecessary to take the complaints under Article 10 into consideration separately (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202; Kasparov and Others v. Russia, no. 21613/07, §§ 82-83, 3 October 2013; and Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 85, 15 October 2015).

59. On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present cases, also be considered in the light of Article 10. The protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly enshrined in Article 11 (see Ezelin, cited above, § 37, and Kudrevičius and Others, cited above, § 86).

2. The parties’ submissions

60. The first applicant in his first application submitted that he had been known to be a member of the opposition, an active participant in opposition protests, and a person who had publicly promoted the demonstration of 11 March 2011. His arrest and conviction had been unlawful and had aimed to punish him for his political activity. Furthermore, the arrest and conviction served the purpose of discouraging or preventing him from participating in or promoting opposition protests, including the demonstration at issue.

61. The second applicant and the first applicant in his second application argued that the domestic legislation regulating freedom of assembly did not comply with the principles of foreseeability and precision. While the Constitution required only prior notification of a planned public assembly, the system of prior authorisation - which was applied in practice and stemmed from certain provisions of the Law on Freedom of Assembly of 13 November 1998 - allowed for arbitrary interference with freedom of assembly and permitted arbitrary banning or dispersal of public gatherings. The applicants also argued that their arrest and conviction under Article 310.1 of the CAO had been arbitrary. They further submitted that the authorities had not taken into consideration the fact that all three demonstrations had been intended to be peaceful and had been held in a peaceful manner, and the fact that the organisers had given prior notice of the demonstrations of 20 October and 17 November 2012 to the relevant authority.

62. With respect to the first applicant’s complaint in his first application the Government submitted that there had been no interference with the applicant’s rights under Article 11 of the Convention since he had been arrested and convicted for an administrative offence in circumstances unrelated to any public assembly.

63. With respect to the second applicant’s complaint and the first applicant’s complaint in his second application the Government submitted that all three demonstrations at issue had been organised in breach of the provisions of national law. They argued that the dispersal of the demonstrations had pursued the aim of protecting the rights of others as the square in the centre of Baku where the demonstrations had been held had been one of the main leisure spaces for citizens. The Government also noted that the applicants had been punished not for their participation in the demonstrations as such, but for their specific behaviour in the course of the assemblies, specifically deliberately failing to comply with lawful police orders.

3. The Court’s assessment

(a) Assessment in respect of the complaint under Article 11 of the Convention raised by the first applicant in his first application

64. The Court firstly makes its assessment in respect of the complaint under Article 11 raised by the first applicant in his first application. Having regard to the material in the case file and the parties’ submissions, the Court notes that the issues raised by the present complaint are similar to those examined in the Huseynli and Others judgment (cited above). Based on the analysis of international and domestic reports, the Court concluded in that case that at the material time, opposition activists had been routinely deterred or prevented from participating in demonstrations; punished for having done so; and punished for advocating or showing support for those demonstrations (ibid., §§ 85-91). Furthermore, having examined the circumstances in which the applicants had been arrested and convicted, the Court concluded that the administrative proceedings against them had equally sought to deter them from protesting and to punish them for doing so (ibid., §§ 92-97). Consequently, the Court concluded that the applicants’ arrests and administrative detention had amounted to arbitrary and unlawful interference with their right to freedom of assembly (ibid., §§ 98-101).

65. The facts of the Huseynli and Others case and the present case are similar in essence. In particular, the Court notes that as in the Huseynli and Others case the facts of the present case occurred in 2011, a year of increased political sensitivity. Furthermore, the circumstances of the applicants’ arrests and convictions in the Huseynli and Others case and the present case are similar. Firstly, in the present case it appears that the applicant’s affiliation with the opposition was likewise generally known, as he was a member of the PFPA, he had participated in various protests held by the opposition, and he had promoted public participation in the demonstration of 11 March 2011 on online social networks (see paragraphs 6-7 and 9-10 above). Secondly, the applicant was arrested on dubious grounds shortly before the demonstration of 11 March 2011 (see paragraphs 16-17 above). Thirdly, the domestic courts failed to establish facts that were disputed between the parties - the police and the applicant - by carrying out an objective and thorough examination. They ignored the applicant’s submissions that the arrest had been politically motivated, and merely recapitulated the circumstances and the charges as presented by the police (see paragraphs 24, 26, 29-30 and 32-33 above).

66. Having regard to the facts of the present case and their similarity to those of the Huseynli and Others case on all the relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in that judgment (see Huseynli and Others, cited above, §§ 97-98). It finds that the proceedings against the applicant in the present case and the ensuing administrative detention were arbitrary and unlawful measures aimed at punishing the applicant for his political activity, including his previous participation in opposition protests, and preventing him from participating in or promoting such protests.

67. The applicant’s arrest and administrative detention could not but have had the effect of discouraging him from participating in political rallies. Those measures undoubtedly have a chilling effect, which deters other opposition supporters and the public at large from attending demonstrations, and, more generally, from participating in open political debate (see Huseynli and Others, cited above, § 99).

68. There has accordingly been a violation of Article 11 of the Convention.

(b) Assessment in respect of the complaints under Article 11 of the Convention raised by the second applicant and by the first applicant in his second application

69. The Court secondly makes its assessment in respect of the complaints under Article 11 raised by the second applicant and by the first applicant in his second application. Having regard to the material in the case files and the parties’ submissions, the Court notes that the issues raised by the present complaints are essentially the same as those examined in the Gafgaz Mammadov case (see Gafgaz Mammadov v. Azerbaijan, no. 60259/11, 15 October 2015).

70. The facts of that case closely resemble those of the present cases. The Court considers that the analysis and conclusions made in the Gafgaz Mammadov judgment also apply to the present cases. In that judgment, the Court noted in particular that (i) there were serious concerns about the foreseeability and precision of the legislation governing public assemblies, and about the possibility of public assemblies being arbitrarily banned or dispersed (ibid., § 55); (ii) there were doubts about the credibility of the formal grounds, namely Article 310.1 of the CAO, relied on by the authorities to arrest and convict the participant in an unauthorised demonstration (ibid., §§ 56 and 62); (iii) the authorities had failed to take into consideration the fact that notification had been given about the demonstration (ibid., § 60); (iv) there had been a lack of relevant and sufficient reasons justifying the dispersal of the demonstration, which the organisers had intended to be peaceful and which had been conducted in a peaceful manner (ibid., § 61); and (v) there had been no acknowledgment that the act of participating in an unauthorised peaceful demonstration had itself been protected by Article 11 of the Convention (ibid., § 63). Having regard to the above, in the Gafgaz Mammadov case the Court found that the applicant’s right to freedom of assembly had been violated on account of the dispersal of the demonstration and his arrest and conviction.

71. Having regard to the facts of the present cases and their clear similarity to those of the Gafgaz Mammadov case on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in that judgment, and finds that in the present cases both applicants’ right to freedom of assembly was breached for the same reasons as those outlined above.

72. There has accordingly been a violation of Article 11 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

73. The applicants complained under Article 6 of the Convention that in all the sets of proceedings concerning the alleged administrative offences, they had not had a fair hearing. The relevant parts of Article 6 of the Convention read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”

A. Admissibility

74. The Government submitted that the applicants had failed to complain before the domestic courts of lack of adequate time and facilities to prepare their defence. The applicants had also failed to raise before the domestic courts their complaints regarding witnesses.

75. The Court notes that the material before it does not support the Government’s objections as to exhaustion of domestic remedies. The documents included in the case files indicate that the applicants complained in their written appeals of inadequate time and facilities to prepare their defence. In each case they also complained of the fact that either no witnesses or only police officers had been questioned at the respective first-instance hearings.

76. The Court further notes that the complaints under Article 6 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

77. The applicants submitted, in particular, that they had not been served, either prior to the hearing before the respective first-instance courts or subsequently, with a copy of the administrative-offence reports issued in respect of them or with other material from their respective case files. Furthermore, they had not been represented by a lawyer at the pre-trial stage or given an opportunity to appoint a lawyer of their own choosing to represent them before the respective first-instance courts. At the trial stage they had either been only formalistically represented by State-funded lawyers, or had not been represented by a lawyer at all. The courts had based their findings merely on the administrative-offence reports prepared by the police, and in some cases also on the statements of police officers who had been the sole witnesses questioned at the respective first-instance hearings. The first applicant in his first application also submitted that the appellate court had ignored his request to examine his mobile-phone call records in respect of the date and time of the alleged administrative offence. Lastly, the second applicant and the first applicant in his second application argued that the public had not been allowed into the courtroom for the hearings before the respective first-instance courts, even though no official decision had been taken to examine their cases in closed hearings.

78. The Government submitted that both applicants had been offered legal assistance during the trial before the respective first-instance courts. With respect to the second applicant’s complaint and the first applicant’s complaint in his second application the Government further submitted that the applicants had been present at the court proceedings and therefore had been able to defend themselves. Before the appellate courts, in some cases, the applicants had been represented by lawyers of their own choosing. In addition, the cases had not been complex and the time-limit for lodging an appeal with the Court of Appeal against the decisions of the first-instance court had been ten days, so the applicants had had adequate time and facilities to prepare their defence. With respect to the first applicant’s complaint in his first application the Government emphasised that the applicant had not requested that any particular witnesses on his behalf be called to appear, either before the first-instance court or before the Court of Appeal.

2. The Court’s assessment

79. Similar facts and complaints have already been examined in the Huseynli and Others judgment and the Gafgaz Mammadov judgment (both cited above) in which the Court found a violation of Article 6 § 3 taken together with Article 6 § 1 of the Convention. As in those cases, the applicants in the present cases were arrested and convicted following an accelerated procedure under the CAO. They were held in police custody without any contact with the outside world, presented with charges without receiving a copy of the administrative-offence reports, and shortly afterwards (in a matter of hours) taken to a court and convicted. The applicants were not given an opportunity to appoint a lawyer of their own choosing at the pre-trial stage or for the proceedings before the respective first-instance courts. In the cases where the applicants had not refused State-funded legal assistance, representation by the appointed lawyers was purely formalistic: they did not put forward any arguments, either making no submissions on the applicants’ behalf or just simply orally asking the court “to consider the young age of the applicant”. Neither the first-instance courts nor the Court of Appeal took note of the applicants’ arguments, in particular the argument that there had been a political motive behind the arrest (an argument pertinent to the first applicant’s first application), or the argument that the demonstrations had been peaceful in nature (an argument pertinent to the second applicant’s application and the first applicant’s first application). The courts failed to clarify the facts that were disputed between the parties: they merely accepted the police’s versions of events and the charges as presented in the relevant police reports. In view of the similarities between the present cases and Huseynli and Others and Gafgaz Mammadov, the Court sees no particular circumstances that could compel it to deviate from its findings in those judgments, and finds that the administrative proceedings in the present cases, considered as a whole, were not in conformity with the guarantees of a fair hearing (compare Huseynli and Others, cited above, §§ 110-35, and Gafgaz Mammadov, cited above, §§ 74-96; compare also Ibrahimov and Others, cited above, §§ 93-115).

80. There has accordingly been a violation of Article 6 §§ 1 and 3 of the Convention.

81. Having already established that the administrative proceedings, considered as a whole, were not in conformity with the guarantees of a fair hearing, the Court finds it unnecessary to rule on the issue of whether refusal of State-funded legal assistance by the first applicant at his trial on 20 October 2012 constituted an unequivocal waiver of the right to a lawyer.

IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

82. The applicants further complained that their arrests, custody and administrative detention had been in breach of Article 5 of the Convention, the relevant parts of which read as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court; ...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A. Admissibility

83. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

84. The first applicant in his first application argued that his arrest prior to the demonstration of 11 March 2011 and subsequent administrative detention had been unlawful since the alleged offence giving rise to the deprivation of his liberty had been fabricated. The institution of administrative proceedings on various pretexts against opposition activists had been an arbitrary practice aimed at preventing or discouraging them from participating in political rallies being held in the country at the material time, or punishing them for having done so. The applicant alleged that he had been a victim of such practice.

85. The second applicant and the first applicant in his second application argued that their arrests (specifically the arrests of the first applicant during the dispersal of the demonstrations of 20 October and 17 November 2012, and the arrests of the second applicant during the dispersal of the demonstrations of 11 March 2011 and 20 October 2012) and subsequent periods of administrative detention under Article 310.1 of the CAO had been arbitrary since they had simply participated in those peaceful demonstrations and had not disobeyed any police orders.

86. The applicants further complained that they had not been promptly informed of the reasons for their arrests, and that each arrest and period in custody had not complied with domestic procedural rules, in particular because they had not been given an opportunity to contact their relatives; their rights, including the right to a lawyer, had not been properly explained to them; and they had not been served with a copy of the administrative-offence reports drawn up in respect of them. In addition, the first applicant submitted that he had been arrested by people in plain clothes on every occasion, while the second applicant submitted that he had been arrested by such individuals on 20 October 2012.

87. The Government asserted that the applicants’ arrests had been in conformity with the CAO. Their administrative detention had resulted from lawful court decisions by which they had been found guilty of certain administrative offences.

88. The Government also submitted that the applicants had been duly informed of the reasons for their arrests and their rights had been explained to them. With respect to the first applicant’s complaint in his first application, the Government further argued that the applicant had not duly complained about the failure to serve the administrative-offence report on him.

2. The Court’s assessment

89. Facts and complaints similar to those of the first applicant’s first application have already been examined in the Huseynli and Others judgment (cited above). Facts and complaints closely resembling those of the second applicant’s application and the first applicant’s second application have already been examined in the Gafgaz Mammadov judgment (cited above). The Court considers that the analysis and conclusions made in those judgments also apply to the applicants’ present cases. In those judgments the Court noted that the measures applied by the authorities, namely arrest and custody followed by several days of imprisonment, had pursued aims unrelated to the formal grounds relied on to justify the deprivation of liberty, and implied an element of bad faith and arbitrariness (see Huseynli and Others, cited above, § 147, and Gafgaz Mammadov, cited above, § 108). Having regard to the above, the Court found that the deprivation of liberty of the applicants in Huseynli and Others and the applicant in Gafgaz Mammadov had been arbitrary. In view of the similarities between the present cases and Huseynli and Others and Gafgaz Mammadov, the Court sees no particular circumstances that could compel it to deviate from its findings in those judgments, and finds that in the present cases both applicants’ right to liberty was breached for the same reasons as those outlined above.

90. Accordingly, there has been a violation of Article 5 § 1 of the Convention.

91. In view of the nature and the scope of its finding above, the Court does not consider it necessary to examine the applicants’ other complaints under Article 5 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

92. Lastly, the second applicant and the first applicant in his second application complained under Article 7 of the Convention that their arrest and administrative detention following their participation in the demonstrations at issue had been in breach of the right not to be punished without law. The relevant parts of Article 7 read as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. ...”

93. The applicants submitted that the domestic legislation serving as a basis for their criminal conviction had not complied with the principle of foreseeability. They argued in particular that each time they had been convicted for failing to stop participating in an unauthorised demonstration, despite the fact that the procedure for holding an assembly had not been clearly defined in domestic law.

94. The applicants claimed that, since the organisers had given advance notice to the BCEA of the demonstrations of 20 October and 17 November 2012 and since they had been peaceful, participation in those assemblies had been their constitutional right and not a criminal offence.

95. The Government submitted that the domestic legislation on freedom of assembly complied with the principle of foreseeability. It clearly stipulated the procedure for the organisation and holding of assemblies and vested the police with the power to disperse unauthorised demonstrations. Failure to comply with a lawful order of the police and breach of the procedure for the organisation and holding of assemblies clearly constituted an offence under domestic law.

96. The Court notes that the complaints of a violation of the right not to be punished without law are linked to the complaints examined above and must therefore likewise be declared admissible.

97. However, having regard to its above findings in relation to Articles 5, 6 and 11 of the Convention, the Court considers that it is not necessary to examine whether in these cases there has been a violation of Article 7.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

98. 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

99. In respect of non-pecuniary damage, the first applicant claimed 21,000 euros (EUR) in his first application and EUR 33,000 in his second application; the second applicant claimed EUR 31,000.

100. The Government submitted that the applicants’ claims were unsubstantiated and unreasonable. With respect to the first applicant’s claim related to his first application, the Government considered that, in any event, an award of 3,000 Azerbaijani manats (AZN) would constitute sufficient just satisfaction.

101. The Court considers that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation, and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant the sum of EUR 10,000 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

102. The first applicant in his first application claimed EUR 3,300 and in his second application he claimed EUR 6,600 for legal fees incurred before the domestic courts and the Court; the second applicant claimed EUR 6,600. In support of their claims, they submitted contracts for legal and translation services.

103. The Government considered that the applicants’ claims were excessive and could not be regarded as reasonable as to quantum. In particular, they argued that the applicants had failed to produce any evidence concerning translation services. In addition, Mr R. Mustafazade had never represented the applicants before the domestic courts, whereas Mr A. Mustafayev had represented the first applicant only before the appellate court.

104. The Government submitted that, taking into account the above considerations, the first applicant could claim AZN 300 with respect to his first application. The amount of legal aid already granted to the second applicant and to the first applicant with respect to his second application should be deemed as sufficient reimbursement of costs and expenses.

105. 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 are reasonable as to quantum. The Court notes that in the proceedings before it both applicants were represented by the same lawyers, Mr Mustafazade and Mr Mustafayev, whose submissions in all cases were similar.

106. Taking the above considerations into account, the Court awards a total amount of EUR 3,000 to both applicants jointly in respect of the legal services rendered by Mr Mustafazade and Mr Mustafayev, less EUR 1,700 already paid in legal aid by the Council of Europe, to be paid directly into their representatives’ bank account.

C. Default interest

107. The Court considers it appropriate that the default interest rate 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,

1. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that there has been a violation of Article 11 of the Convention on account of the first applicant’s arrest and conviction on 4 March 2011;

4. Holds that there has been a violation of Article 11 of the Convention on account of the dispersal of the demonstrations of 11 March 2011, 20 October and 17 November 2012 and the applicants’ arrests and convictions;

5. Holds that there has been a violation of Article 6 §§ 1 and 3 of the Convention in respect of both applicants;

6. Holds that there has been a violation of Article 5 of the Convention in respect of both applicants;

7. Holds that there is no need to examine the complaints under Article 7 of the Convention raised by the second applicant and the first applicant in his application no. 53662/13;

8. Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 10,000 (ten thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,300 (one thousand three hundred euros) jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into their representatives’ bank account;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

9. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 20 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Anne-Marie Dougin André Potocki
Acting Deputy Registrar President

No.	Application no.	Lodged on	Applicant name date of birth place of residence	Notes	First-instance judgment	Appellate judgment
1.	60262/11	10/09/2011	Dayanat BABAYEV 1989 Neftchala	Arrest on 4 March 2011 and 10 days’ administrative detention	Decision of the Nasimi District Court of 4 March 2011	Decision of the Baku Court of Appeal of 19 March 2011
2.	53662/13	18/02/2013		10 days’ administrative detention for participation in the demonstration of 20 October 2012	Decision of the Sabail District Court of 20 October 2012	Decision of the Baku Court of Appeal of 29 October 2012
2.	53662/13	18/02/2013		7 days’ administrative detention for participation in the demonstration of 17 November 2012	Decision of the Sabail District Court of 17 November 2012	Decision of the Baku Court of Appeal of 23 November 2012
3.	69437/11	17/10/2011	Ulvi HASANOV 1987 Baku	7 days’ administrative detention for participation in the demonstration of 11 March 2011	Decision of the Sabail District Court of 11 March 2011	Decision of the Baku Court of Appeal of 1 April 2011 (received by the applicant on 18 April 2011)
3.	69437/11	17/10/2011	Ulvi HASANOV 1987 Baku	7 days’ administrative detention for participation in the demonstration of 20 October 2012	Decision of the Sabail District Court of 20 October 2012	Decision of the Baku Court of Appeal of 29 October 2012

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You are here: BAILII >> Databases >> European Court of Human Rights >> BABAYEV AND HASANOV v. AZERBAIJAN - 60262/11 (Judgment : Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) Violation of Arti...) [2017] ECHR 706 (20 July 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/706.html Cite as: [2017] ECHR 706