European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF BAYRAM BAYRAMOV AND OTHERS v. AZERBAIJAN

 

(Applications nos. 74609/10 and 5 others - see appended list)

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

16 February 2017

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Bayram Bayramov and Others v. Azerbaijan,

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

          Faris Vehabović, President,
          Khanlar Hajiyev,
          Carlo Ranzoni, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 30 June 2016,

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

PROCEDURE

1.  The case originated in six applications (nos. 74609/10, 57737/11, 67351/11, 67977/11, 69411/11 and 69421/11) 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 six Azerbaijani nationals, Mr Bayram Telman oglu Bayramov, Mr Majid Ali oglu Majidli, Mr Vidadi Isgandar oglu Isgandarov, Mr Ikram Israyil oglu Israfilov, Mr Hikmat Kheyrulla oglu Agayev and Mr Rovshan Boyukaga oglu Guliyev (“the applicants”), on various dates in 2010 and 2011 (see appendix).

2.  Mr Isgandarov (application no. 67351/11) was represented by Mr A. Alizade and all the other applicants were represented by Mr R. Mustafazade, lawyers practising in Azerbaijan. Mr Majidli (application no. 57737/11), Mr Agayev (application no. 69411/11) and Mr Guliyev (application no. 69421/11) had been granted legal aid. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3.  On 28 August 2013 (application no. 57737/11) and 17 February 2014 (applications nos. 74609/10, 67351/11, 67977/11, 69411/11 and 69421/11) the complaints concerning Article 5, raised in applications nos. 67351/11, 67977/11, 69411/11 and 69421/11 only, Article 6, raised in all the applications, Article 10, raised in applications nos. 67977/11, 69411/11 and 69421/11 only, and Article 11, raised in all the applications, were communicated to the Government. On the same dates the remainder of all the applications was declared inadmissible.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicants’ dates of birth and places of residence are given in the appendix. At the material time some of them held positions in opposition political parties or groups.

A.  “Administrative” arrests

5.  Demonstrations were planned to be held on 31 July 2010, 2 April 2011 and 17 April 2011 in Baku. Prior to those assemblies, on 23 July 2010, 18 March 2011 and 11 April 2011 respectively, the organisers, consisting of several members of the opposition, gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”).

6.  The BCEA refused to authorise the holding of the demonstration of 31 July 2010 at the places indicated by the organisers and proposed three other locations on the outskirts of Baku, namely, a stadium in the Binagadi District, a square in the proximity of Zigh road in the Khatai District, and a yard of a driving school situated in the 20^th residential area of the Sabail District. The BCEA noted that the squares in one of which the organisers proposed to hold the assembly were designated for public leisure and the other places proposed by the organisers were areas with heavy traffic.

7.  Similarly, the BCEA refused to authorise the holding of the demonstrations of 2 and 17 April 2011 at the places indicated by the organisers and in both cases proposed a different location on the outskirts of Baku, namely, the driving school yard mentioned above. The BCEA again noted that the places proposed by the organisers were areas with heavy traffic.

8.  Nevertheless, the organisers decided to hold the demonstrations in the centre of Baku.

9.  According to the applicants, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants were demanding free and fair elections and democratic reforms in the country. Participants in the demonstration of 17 April 2011 were also protesting against impediments to freedom of assembly.

10.  Each applicant attended one of the demonstrations (see appendix), but shortly after they had begun, the police started to disperse them.

11.  According to the official records, all the applicants were arrested during the dispersal operations and were taken to various police stations.

12.  According to the applicant in application no. 67351/11, he was arrested by people in plain clothes.

13.  The applicants were questioned at the respective police stations.

14.  On the day of the applicants’ arrests, “administrative offence reports” (inzibati xəta haqqında protokol) were issued in respect of them. The reports stated that by deliberately failing to comply with lawful police orders, the applicants had committed an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”).

15.  Some of the applicants refused to sign the respective administrative offence reports.

16.  According to most of the applicants, they were never served with copies of the administrative offence reports or with other documents in their case files (applications nos. 57737/11, 67351/11, 67977/11, 69411/11 and 69421/11). According to the applicant in application no. 57737/11, he obtained a copy of the administrative offence report several months after the administrative proceedings against him had ended.

17.  None of the applicants was given access to a lawyer after the arrest or while in police custody.

B.  Court proceedings against the applicants

18.  Each applicant was brought before a first-instance court on the day of the arrest or the following day.

19.  According to most of the applicants, the hearing before the court in each case was very brief. In some of the cases members of the public were not allowed to attend, even though the court had not taken a formal decision to close the hearing to the public.

20.  According to all the applicants, they were not given an opportunity to hire lawyers of their own choice. State-funded lawyers were appointed to represent most of the applicants.

21.  The applicants in applications nos. 74609/10 and 57737/11 were not assisted by lawyers. The records of the respective court hearings show that those applicants refused the assistance of a State-funded lawyer and decided to defend themselves in person.

22.  The record of the hearing in the case of the applicant in application no. 69411/11 shows that in his oral submissions, the State-funded lawyer briefly asked the court to be merciful and adopt a lenient decision. In the cases of the applicants in applications nos. 67351/11 and 67977/11, the State-funded lawyers did not make any oral or written submissions. Similarly, none of the material submitted to the Court in application no. 69421/11 contains any record showing that the State-funded lawyer, Ms R.N., made any oral or written submissions before the first-instance court.

23.  The only witnesses questioned during the respective court hearings were the police officers who, according to the official records, had arrested the applicants. In the case of the applicant in application no. 67977/11, a police officer who had issued the administrative offence report was also questioned as a witness. All those police officers testified that the applicants had staged unauthorised demonstrations.

24.  In application no. 67351/11 the court did not question any witnesses.

25.  The respective first-instance courts found that the applicants had failed to stop participating in unauthorised demonstrations. The courts convicted the applicants under Article 310.1 of the CAO and sentenced them to periods of “administrative” detention ranging from seven to fifteen days (see Appendix).

26.  On various dates 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 arrests had been unlawful and that the hearings before the respective first-instance courts had not been fair. They asked the Baku Court of Appeal to quash the first-instance courts’ decisions in their respective cases.

27.  Most of the applicants were assisted before the Baku Court of Appeal by lawyers of their own choice. The applicant in application no. 57737/11 was not represented by a lawyer.

28.  On various dates the Baku Court of Appeal dismissed the applicants’ appeal and upheld the decisions of the respective first-instance courts (see appendix).

29.  According to the applicant in application no. 57737/11, on 28 February 2011, following his complaints about the authorities’ failure to serve him with the relevant documents, the Sabail District Court sent him a copy of the administrative offence report issued in respect of him, the first-instance court’s decision of 31 July 2010 and the Baku Court of Appeal’s decision of 20 August 2010.

30.  According to the applicant in application no. 69411/11, he received the decision of the Court of Appeal of 13 April 2011 on 15 October 2011, after having complained about the court’s failure to serve him with that decision.

II.  RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS

31.  At the time of the applicants’ arrests, Articles 410 and 437 of the Code of Administrative Offences of 2000 provided as follows:

Article 410
Administrative offence report

“... 410.3.  An individual who is subject to the administrative offence proceedings ... shall be given an opportunity to familiarise with the administrative offence report.

410.4.  An individual who is subject to the administrative offence proceedings ... has the right to a copy of the administrative offence report.”

Article 437
Announcement of a decision delivered on the basis of an appeal or a protest against a decision in an administrative offence case

“... 437.2.  A copy of a decision delivered on the basis of an appeal or a protest against a decision in an administrative offence case shall be given to an individual, with respect to whom the decision in an administrative offence case was adopted ... within three days of its adoption.

437.3.  A copy of a decision delivered on the basis of an appeal or a protest against a decision [sentencing an individual to] administrative detention shall be given to [that] individual ... on the day of its adoption.”

32.  For a summary of other relevant provisions concerning administrative proceedings, the relevant provisions concerning the organisation and holding of public assemblies, and the relevant extracts of international documents, see the judgment in the case of Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 27-42, 15 October 2015).

THE LAW

I.  THE GOVERNMENT’S OBJECTION OF NON-COMPLIANCE WITH THE SIX-MONTH RULE IN APPLICATIONS Nos. 57737/11 AND 69411/11

33.  With regard to applications nos. 57737/11 and 69411/11, the Government submitted that the final decisions in those cases had been adopted on 20 August 2010 and 13 April 2011 respectively, whereas the applicants had applied to the Court on 26 August 2011 and 18 October 2011 respectively. The applications had therefore been lodged out of time.

34.  The Government argued in particular that the applicants had been present at the respective hearings on which the decisions of 20 August 2010 and 13 April 2011 had been adopted. Therefore the applicants had been aware of their substance. Furthermore, on the same dates copies of those decisions had been sent to the applicants. Even if the applicants had not received the respective decisions shortly thereafter, they could have applied to the Registry of the Baku Court of Appeal and obtained their copy.

35.  The applicants argued that they could not have prepared quality applications before the Court without reading the texts of the decisions of 20 August 2010 and 13 April 2011 respectively, the final decisions in their cases containing factual and legal reasoning. They had complained about the failure of the appellate court to serve them with those decisions. Following their complaints, they had been served with the final decisions on 28 February and 15 October 2011 respectively, and had applied to the Court within six months of those dates. To support his allegation, the applicant in application no. 57737/11 submitted to the Court a copy of a cover letter from the Baku Court of Appeal dated 28 February 2011. The applicant in application no. 69411/11 submitted a copy of a cover letter from the Baku Court of Appeal dated 11 October 2011 and its envelope bearing a postmark dated 15 October 2011.

36.  The Court reiterates that where an applicant is entitled to be served automatically with a copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the copy of the written decision, irrespective of whether that decision was previously delivered orally (see Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997-V; Venkadajalasarma v. the Netherlands (dec.), no. 58510/11, 9 July 2002; Groshev v. Russia, no. 69889/01, § 22, 20 October 2005; and Vasilyev v. Ukraine, no. 11370/02, §§ 48-49, 21 June 2007).

37.  The Court further reiterates that it is incumbent on an interested party to display special diligence in the defence of his interests and to take the necessary steps to apprise himself of developments in the proceedings (see, among other authorities, Uruci v. Albania (dec.), no. 6491/06, 24 January 2012). It has also ruled that an applicant must show a certain degree of diligence and obtain a copy of the decision deposited with the court registry (see, for example, Çolakoğlu v. Turkey, no. 29503/03, § 28, 20 October 2009).

38.  Turning to the circumstances of the present cases, the Court observes that under the domestic legislation and practice, the applicants in applications nos. 57737/11 and 69411/11 were entitled to be served ex officio with a written copy of the Baku Court of Appeal’s decisions of 20 August 2010 and 13 April 2011 respectively (see paragraph 31 above, Article 437 of the CAO).

39.  The Court notes that the Government did not produce any evidence showing that a copy of the decisions of 20 August 2010 and 13 April 2011 had been made available to the applicants before 28 February and 15 October 2011 respectively. The Court does not find it unreasonable that the applicants waited several months for the official service of the final decisions before lodging complaints (enquiries) about the court’s failure to serve them with a copy of those decisions (contrast with Dragun v. Ukraine (dec.), no. 35093/05, 8 October 2013).

40.  The applicants lodged their applications with the Court on 26 August and 18 October 2011 respectively, that is to say, within less than six months of the dates of service of the final decisions. They therefore complied with the six-month rule. The Court accordingly dismisses the Government’s objection.

II.  JOINDER OF THE APPLICATIONS

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

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

42.  The applicants complained that the dispersal of the demonstrations by the police and their arrest and conviction for an administrative offence had been in breach of their right to freedom of assembly, as provided for in 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.”

43.  The applicants in applications nos. 67977/11, 69411/11 and 69421/11 also complained that the dispersal of the demonstration of 2 April 2011 by the police and their arrest and conviction for an administrative offence 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

44.  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 scope of the applicants’ complaints in applications nos. 67977/11, 69411/11 and 69421/11

45.  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).

46.  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

47.  The applicants 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 about 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 abusive 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 the organisers had given prior notice of the demonstrations to the relevant authorities, and that the demonstrations had been intended to be peaceful and had been held in a peaceful manner.

48.  The Government submitted no observations on the merits regarding the Article 11 complaint lodged by the applicant in application no. 57737/11.

49.  In the cases of the other applicants the Government submitted that the demonstrations had been organised in breach of the provisions of national law, without specifying which provisions. They argued that the dispersal of the demonstrations had pursued the aim of protecting public safety and preventing disorder or crime, and had been proportionate to the aim pursued.

50.  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, namely deliberately failing to comply with lawful police orders. Commenting on the proportionality of the measures, the Government emphasised in particular that the sanction applied to the applicants had been administrative detention.

3.  The Court’s assessment

51.  The Court notes from the outset that none of the official records or the domestic court decisions submitted by the parties suggests that the demonstration of 2 April 2011 was violent. Therefore the Court accepts the assertion of the applicants in applications nos. 67977/11, 69411/11 and 69421/11 that that demonstration had been intended to be peaceful and was conducted in a peaceful manner up to the point of their arrest.

52.  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 (cited above). 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 abusively 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 the demonstration had been notified (ibid., § 60); (iv) there was a lack of relevant and sufficient reasons justifying the dispersal of the demonstration, which had been intended to be peaceful and 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 was by itself protected by Article 11 of the Convention (ibid., §§ 63-64). 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.

53.  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 each applicant’s right to freedom of assembly was breached for the same reasons as those outlined above.

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

IV.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

55.  The applicants complained under Article 6 of the Convention that they had not had a fair and public hearing in the proceedings concerning the alleged administrative offence. 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

56.  The Government submitted that the applicant in application no. 57737/11 had failed to complain before the domestic courts of a violation of his procedural rights during the hearings of the first-instance and appellate courts.

57.  The material before the Court does not support the Government’s objection as to exhaustion of domestic remedies in application no. 57737/11. The applicant complained in his written appeal of a violation of his procedural rights.

58.  The Court notes that the complaints under Article 6, raised by all six applicants, 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

59.  The applicants submitted, in particular, that they had not been assisted by a lawyer at the pre-trial stage. They also argued that the courts had based their findings only on the administrative offence reports, 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 applicants further submitted that they had not been given an opportunity to appoint a lawyer of their own choosing to assist them before the respective first-instance courts. They had either been only formalistically represented by State-funded lawyers, or had not been represented by a lawyer at all. Most of the applicants (applications nos. 57737/11, 67351/11, 67977/11, 69411/11 and 69421/11) also submitted 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 about them or with other material from their respective case files.

60.  Lastly, the applicants in applications nos. 67977/11, 69411/11 and 69421/11 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.

61.  The Government emphasised that the applicant in application no. 57737/11 had refused the assistance of a State-funded lawyer and decided to defend himself in person before the first-instance court.

62.  In the cases of the other applicants the Government submitted that the administrative proceedings with respect to them had been in line with national law. In particular, the time-limit for lodging an appeal with the Court of Appeal against the respective decisions of the first-instance courts was ten days, so the applicants had had adequate time and facilities to prepare their defence. The Government also submitted in general terms that during the court proceedings the principle of equality of arms had been respected.

2.  The Court’s assessment

63.  Having regard to the material in the case files and the parties’ submissions, the Court notes that the facts of the present cases and the issues under Article 6 of the Convention raised by them closely resemble those examined in the Gafgaz Mammadov case (cited above). The Court considers that the analysis and conclusions made in that judgment also apply to the present cases. In that judgment, the Court noted in particular that the administrative offence proceedings had lacked the necessary safeguards and guarantees. There had been a lack of time and facilities to prepare the defence (ibid., §§ 78-81); a strong reliance by the domestic courts on the administrative offence report prepared by the police and the statement given by a police officer (ibid., § 85); the utter disregard by the domestic courts of the important factual circumstances and legal issues of the case, inter alia, the peaceful nature of the unauthorised demonstration (ibid., § 86); an absence of any legal assistance at the pre-trial stage of the proceedings (ibid., §§ 90-91); a failure to provide the applicant with an opportunity to appoint a lawyer of his own choosing (ibid., § 92); and formalistic representation by the State-funded lawyer (ibid., § 93). Having regard to the above, the Court found that the administrative offence proceedings against the applicant in the Gafgaz Mammadov case, considered as a whole, had not been in conformity with the guarantees of a fair hearing.

64.  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 each applicant’s right to fair trial was breached for the same reasons as those outlined above.

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

66.  Having already established that the applicants were not afforded legal assistance at the pre-trial stage or provided with an opportunity to appoint a lawyer of their own choosing at the trial, the Court finds it unnecessary to rule on the issue whether refusal by the applicants in applications nos. 74609/10 and 57737/11 of State-funded legal assistance at the trial constituted an unequivocal waiver of the right to a lawyer.

67.  Furthermore, having regard to the above finding of a violation of Article 6 §§ 1 and 3 of the Convention - that the administrative offence proceedings against the applicants, considered as a whole, were not in conformity with the guarantees of a fair hearing - the Court considers that there is no need to examine the arguments raised in applications nos. 67977/11, 69411/11 and 69421/11 concerning the lack of a public hearing.

V.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

68.  Lastly, the applicants in applications nos. 67351/11, 67977/11, 69411/11 and 69421/11 complained that their arrest, remand in police custody and administrative detention following their participation in the demonstrations 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

69.  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

70.  The applicants argued that their arrest and administrative detention under Article 310.1 (failure to comply with a lawful order of the police) of the CAO had been arbitrary since they had not disobeyed any police orders.

71.  The applicants further complained that they had not been promptly informed of the reasons for their arrest, and that their arrest and 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 have a lawyer, had not been properly explained to them; and in most of the cases they had not been served with a copy of the administrative offence reports drawn up about them. The applicant in application no. 67351/11 also submitted that he had been arrested by people in plain clothes.

72.  The Government submitted that the applicants’ arrest had been in conformity with Article 399.3 of the CAO. Under this Article, a person in respect of whom proceedings were carried out for an administrative offence punishable by administrative detention could be taken into custody for up to twenty-four hours. They further submitted that after the administrative offence reports stating that the applicants had violated Article 310 of the CAO had been drawn up, the applicants had been brought before a court. Their administrative detention had resulted from lawful court decisions by which they had been found guilty of an administrative offence under Article 310.1 of the CAO.

73.  The Government also submitted that the applicants had been duly informed of the reasons for their arrest as well as their rights under the relevant provisions of the CAO; however, some of them had refused to sign the administrative offence reports and a relevant note had accordingly been included in the reports.

2.  The Court’s assessment

74.  Having regard to the material in the case files and the parties’ submissions, the Court notes that the facts of the present cases and the issues under Article 5 of the Convention raised by them closely resemble those examined in the Gafgaz Mammadov case (cited above). It considers that the analysis and conclusions made in the Gafgaz Mammadov judgment also apply to the present cases. In that case, the Court noted that the measures applied by the authorities, namely arrest and remand in police custody followed by several days’ 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 (ibid., § 108). Having regard to the above, the Court found that the deprivation of liberty of the applicant in the Gafgaz Mammadov case had been arbitrary.

75.  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 each applicant’s right to liberty was breached for the same reasons as those outlined above.

76.  Accordingly, the Court finds a violation of Article 5 § 1 of the Convention in applications nos. 67351/11, 67977/11, 69411/11 and 69421/11.

77.  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.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

78.  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

79.  In respect of non-pecuniary damage the applicant in application no. 74609/10 claimed 16,000 euros (EUR), the applicant in application no. 57737/11 claimed EUR 9,000, the applicant in application no. 67351/11 claimed EUR 30,000, the applicants in applications nos. 67977/11 and 69411/11 claimed EUR 20,000 each, and the applicant in application no. 69421/11 claimed EUR 21,000.

80.  The Government submitted no observations regarding the claim for just satisfaction made by the applicant in application no. 57737/11.

81.  The Government submitted that the other applicants’ claims were unsubstantiated and unreasonable. They considered that, in any event, an award of EUR 5,000 for each applicant would constitute sufficient just satisfaction.

82.  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 makes the following awards in respect of non-pecuniary damage: it awards the applicant in application no. 74609/10 the sum of EUR 10,000, plus any tax that may be chargeable on that amount; it awards the applicant in application no. 57737/11 the sum of EUR 9,000, plus any tax that may be chargeable on that amount; and it awards the applicants in applications nos. 67351/11, 67977/11, 69411/11 and 69421/11 the sum of EUR 12,000 each, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

83.  The applicants (except for those in applications nos. 57737/11 and 67351/11 who claimed EUR 2,500 and EUR 1,800 respectively under this head) claimed EUR 3,300 each for the legal fees incurred before the domestic courts and/or before the Court. In support of their claims, they submitted contracts for legal and translation services.

84.  The Government submitted no observations regarding the claim for costs and expenses submitted by the applicant in application no. 57737/11.

85.  The Government considered that the other applicants’ claims were excessive and could not be regarded as reasonable as to quantum. In particular, they argued that the applicants in applications nos. 74609/10, 67977/11, 69411/11 and 69421/11 were represented by the same lawyer who had represented a number of other applicants in similar cases and that substantial parts of the submissions in all those cases were identical or very similar. The Government also pointed out that the applicant in application no. 67351/11 had failed to produce any evidence concerning translation services.

86.  The Government submitted that EUR 1,500 should be deemed as sufficient reimbursement of costs and expenses in application no. 67351/11. They also submitted that the amount of legal aid already granted to the applicants in applications nos. 69411/11 and 69421/11 should be deemed as sufficient reimbursement of costs and expenses.

87.  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 the applicants in applications nos. 74609/10, 57737/11, 67977/11, 69411/11 and 69421/11 were represented by the same lawyer, Mr R. Mustafazade, and that that lawyer’s submissions in those five cases were very similar.

88.  Taking into account the above considerations, the Court awards a total amount of EUR 5,000 to the applicants in applications nos. 74609/10, 57737/11, 67977/11, 69411/11 and 69421/11 jointly in respect of the legal services rendered by Mr R. Mustafazade, minus EUR 1,900 which has already been paid in legal aid by the Council of Europe. The Court awards the applicant in application no. 67351/11 the sum of EUR 1,800 in respect of the legal services rendered by Mr A. Alizade.

C.  Default interest

89.  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 dispersal of the demonstrations and the applicants’ arrest and conviction;

 

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

 

5.  Holds that there has been a violation of Article 5 of the Convention in respect of the applicants in applications nos. 67351/11, 67977/11, 69411/11 and 69421/11;

 

6.  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), plus any tax that may be chargeable, to the applicant in application no. 74609/10, in respect of non-pecuniary damage;

(ii)  EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, to the applicant in application no. 57737/11, in respect of non-pecuniary damage;

(iii)  EUR 12,000 (twelve thousand euros) each, plus any tax that may be chargeable, to the applicants in applications nos. 67351/11, 67977/11, 69411/11 and 69421/11, in respect of non-pecuniary damage;

(iv)  EUR 3,100 (three thousand one hundred euros), plus any tax that may be chargeable to the applicants, to the applicants in applications nos. 74609/10, 57737/11, 67977/11, 69411/11 and 69421/11 jointly, in respect of costs and expenses, to be paid directly into their representative’s bank account;

(v)  EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable to the applicant, to the applicant in application no. 67351/11, in respect of costs and expenses;

(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;

 

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

Done in English, and notified in writing on 16 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Milan Blaško                                                                     Faris Vehabović
Deputy Registrar                                                                       President




 

APPENDIX

No.	Application no.	Lodged on	Applicant’s name date of birth place of residence	Represented by	Notes	First-instance judgment	Appellate judgment
1.	74609/10	10/11/2010	Bayram BAYRAMOV 1962 Sumgait	Ruslan MUSTAFAZADE	10 days’ administrative detention for participation in the demonstration of 31 July 2010	Decision of the Sabail District Court of 31 July 2010	Decision of the Baku Court of Appeal of 16 August 2010
2.	57737/11	26/08/2011	Majid MAJIDLI 1990 Baku	Ruslan MUSTAFAZADE	10 days’ administrative detention for participation in the demonstration of 31 July 2010	Decision of the Sabail District Court of 31 July 2010	Decision of the Baku Court of Appeal of 20 August 2010
3.	67351/11	23/09/2011	Vidadi ISGANDAROV 1962 Baku	Akif ALIZADE	15 days’ administrative detention for participation in the demonstration of 17 April 2011	Decision of the Nasimi District Court of 18 April 2011	Decision of the Baku Court of Appeal of 27 April 2011
4.	67977/11	14/10/2011	Ikram ISRAFILOV 1964 Sumgait	Ruslan MUSTAFAZADE	7 days’ administrative detention for participation in the demonstration of 2 April 2011	Decision of the Nasimi District Court of 2 April 2011	Decision of the Baku Court of Appeal of 11 April 2011
5.	69411/11	18/10/2011	Hikmat AGAYEV 1985 Baku	Ruslan MUSTAFAZADE	7 days’ administrative detention for participation in the demonstration of 2 April 2011	Decision of the Sabail District Court of 2 April 2011	Decision of the Baku Court of Appeal of 13 April 2011
6.	69421/11	19/10/2011	Rovshan GULIYEV 1969 Baku	Ruslan MUSTAFAZADE	8 days’ administrative detention for participation in the demonstration of 2 April 2011	Decision of the Sabail District Court of 2 April 2011	Decision of the Baku Court of Appeal of 13 April 2011