European Court of Human Rights

Communicated on 29 August 2014

FIRST SECTION

Application no. 20589/13
Sakhavat MEHTIYEV against Azerbaijan
and 9 other applications
(see list appended)

STATEMENT OF FACTS

The applicants are Azerbaijani nationals (see a list of the applicants in Appendix). They are represented before the Court by various lawyers practising in Azerbaijan (see Appendix).

The circumstances of the cases

The facts, as submitted by the applicants, are similar in all cases, unless indicated otherwise, and may be summarised as follows.

Most of the applicants are opposition-oriented activists. The applicant in application no. 52270/13 is a journalist.

In the period from 2010 to 2013 a number of opposition parties or groups organised several peaceful demonstrations in Baku. The demonstrations had not been authorised and many participants were arrested.

Three of the demonstrations took place on 12 January 2013, 26 January 2013 and 10 March 2013. Each of the applicants participated in one of the demonstrations.

According to the majority of the applicants, the organisers of the 12 January 2013, 26 January 2013 and 10 March 2013 demonstrations had not given a formal notice to the relevant authorities about the planned demonstrations. Information about the demonstrations had been disseminated through Facebook or through press. However, the applicant in application no. 65308/13 submitted that on 1 March 2013 the organisers of the demonstration of 10 March 2013 had actually given prior notice to the relevant authorities about the planned demonstration; and the authorities had not responded to that notice.

The demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants of the demonstration of 26 January 2013 were condemning use of force by police against participants of previous demonstrations; and participants of the demonstrations of 12 January 2013 and of 10 March 2013 were drawing public’s attention to deaths of soldiers in the army.

All of the demonstrations were dispersed by the police.

The applicants were arrested by the police either at or near the places where the demonstrations were held. They were taken to various police stations.

According to many of the applicants, they were not given an opportunity to contact their relatives and were not promptly informed about the reasons for their arrest. The applicants’ rights, including the right to have a lawyer, were not properly explained to them and they were not given access to a lawyer (applications nos. 20589/13, 33164/13, 33593/13, 43027/13, 43061/13, 44699/13, 52270/13 and 65283/13).

On the day of each applicant’s arrest, an “administrative offence report” (inzibati xəta haqqında protokol) was drawn up in respect of each applicant. Each report (except for the reports in application no. 43061/13) stated that the applicant had committed an administrative offence under Article 298.2 (participation in a public assembly which was not organised in accordance with law) of the Code of Administrative Offences (“the CAO”). The applicant in application no. 43061/13 was charged under Article 298.1 (violation of rules on organising and holding public assemblies by organisers) of the CAO.

According to most of the applicants, they were never served with a copy of the administrative offence reports issued against them or with other materials in their case-files (applications nos. 20589/13, 33164/13, 33593/13, 43027/13, 44699/13 and 43061/13). It appears that the applicant in application no. 47040/13 obtained a copy of the administrative report after the administrative proceedings had ended.

The applicants in applications nos. 43027/13, 43061/13 and 52270/13 were brought before a first-instance court on the day of his or her arrest. The applicants in applications nos. 33164/13, 33593/13, 65283/13 and 65308/13 were brought before a first-instance court the day following their arrest. Some of the applicants, after being kept in a police station for several hours, were released upon recognizance to appear at the police station (applications nos. 20589/13 and 44699/13) or before the first-instance court (application no. 47040/13) on various dates.

In each case (except for application no. 43061/13) the respective first‑instance court found that the applicant had participated in a demonstration which was not organised in accordance with law (an offence under Article 298.2 of the CAO). In application no. 43061/13 the first‑instance court found that the applicant had incited people to participate in an unlawful public assembly and, by doing so, had violated rules on organising and holding public assemblies (an offence under Article 298.1 of the CAO). Each applicant was sentenced to a monetary fine in sums varying from 400 Azerbaijani New Manats (AZN) (equivalent of approximately 400 euros (EUR)) to AZN 2,000 (equivalent of approximately EUR 2,000).

According to some applicants, they were not given opportunity to be represented by lawyers of their own choice (applications nos. 20589/13, 33164/13, 33593/13, 43027/13, 43061/13 and 52270/13); and representation by State-funded lawyers was ineffective and of a formalistic nature (applications nos. 44699/13, 47040/13 and 52270/13).

The first-instance courts relied heavily on the administrative offence reports issued in respect of the applicants.

The only witnesses questioned during the court hearings were the police officers, who had not been involved in the applicants’ arrest (applications nos. 20589/13, 33164/13 and 33593/13).

In applications nos. 44699/13, 47040/13 and 65283/13 the domestic courts refused to grant the applicants’ requests to hear certain witnesses in their favour and the police officers who had arrested them, without giving any reasons for such refusal. Also, in application no. 47040/13 the domestic court refused to examine video recordings of the demonstration in which she had participated (according to the applicant, she had been giving an interview to media during the demonstration and the moment of her arrest had been recorded), without giving any reasons for such refusal.

Members of the public were not allowed to attend the court hearings, even though the courts had not taken any formal decisions to close the hearings to the public (applications nos. 20589/13, 33164/13, 33593/13, 43027/13, 43061/13 and 52270/13).

The applicants lodged appeals before the Baku Court of Appeal, arguing that their convictions were in violation of their rights because the demonstrations in which they had participated or attempted to participate had been peaceful. The applicants also complained that their arrest had been unlawful and that the hearings before the respective first-instance courts had not been fair.

The applicants asked the Baku Court of Appeal to quash the first‑instance courts’ decisions in their respective cases. On various dates, the Baku Court of Appeal rejected the applicants’ appeals and upheld the decisions of the first-instance courts.

COMPLAINTS

1.  The applicants (except for the applicant in application no. 65308/13) complain under Article 5 of the Convention that they were not promptly informed about the reasons for their arrest; that they were not given an opportunity to contact their relatives; that their rights, including the right to have a lawyer, were not properly explained to them; that they were never served with a copy of the administrative offence report issued against each of them and with other materials in their case-files.

2.  The applicants (except for the applicant in application no. 65308/13) complain, under Article 6 of the Convention, that they did not have a fair hearing in the administrative offence proceedings because they were not given sufficient time and facilities to prepare their defence; that they were deprived of access to effective legal assistance, both after the arrest and during the judicial proceedings; and that the only witnesses to be questioned were police officers.

Also, the applicants (applications nos. 20589/13, 33164/13, 33593/13, 43027/13, 43061/13 and 52270/13) complain under Article 6 of the Convention that their right to a public hearing was violated.

3.  The applicants complain that they were arrested and prosecuted for participating (or attempting to participate) in peaceful demonstrations, in breach of Article 11 of the Convention. The applicants (except for the applicants in applications nos. 44699/13 and 47040/13) also rely on Article 10 in this respect.

COMMON QUESTIONS

1. Has there been an interference with the applicants’ freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention? If so, was the interference prescribed by law, as required by Article 11 § 2? In particular, did the domestic legislation in question meet the “quality of law” requirement? Furthermore, was the interference necessary, in terms of Article 11 § 2?

2. The parties are requested to submit copies of all documents relating to the administrative proceedings, including the administrative offence reports, any statements made by the applicants before being brought to court, the transcripts of the hearings and the applicants’ appeals.

3. The parties are also requested to submit copies of all documents relating to the organisation and holding of the demonstrations in which they participated, in particular, the notices (if any) submitted by the organisers of the demonstrations to the relevant local executive authorities, and the official responses the organisers received from the relevant local executive authorities refusing to authorise the demonstrations.

CASE SPECIFIC QUESTIONS

1.  Applications nos. 20589/13, 33164/13, 33593/13, 43027/13, 43061/13, 44699/13, 47040/13, 52270/13 and 65283/13: Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, was the applicants’ “administrative” arrest in compliance with domestic procedural rules?

2.  Applications nos. 20589/13, 33164/13, 33593/13, 43027/13, 43061/13, 44699/13, 47040/13, 52270/13 and 65283/13: Was Article 6 §§ 1 and 3 of the Convention under its criminal head applicable to the proceedings in the present cases? If so, did the applicants have a fair and public hearing in determining the charge against them, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards the provision of sufficient time and facilities to prepare their defence, the opportunity to defend themselves through effective legal assistance, and the questioning of witnesses?

APPENDIX