European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF MAHAMMAD MAJIDLI v. AZERBAIJAN

 

(Applications nos. 24508/11 and 44581/13)

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

16 February 2017

 

 

 

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




In the case of Mahammad Majidli 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 two applications (nos. 24508/11 and 44581/13) 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 an Azerbaijani national, Mahammad Charkaz oglu Majidli (“the applicant”), on 2 April 2011 and 15 May 2013 respectively.

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

3.  On 17 February and 19 May 2014 respectively the complaints concerning Articles 6 and 11 of the Convention, raised in both applications, and Articles 5 and 10 of the Convention, raised in application no. 44581/13 only, were communicated to the Government, and the remainder of both applications were declared inadmissible.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1973 and lives in Baku.

A.  Administrative arrests

5.  Demonstrations were planned to be held on 31 July 2010 and 10 March 2013 in Baku.

6.  On 23 July 2010 the organisers, consisting of several members of opposition parties, gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”), of the demonstration of 31 July 2010. It appears that no prior notice was given to the BCEA by the organisers of the demonstration of 10 March 2013. Information about that demonstration was disseminated via Facebook or the press.

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

8.  The organisers nevertheless decided to hold the demonstrations in the centre of Baku.

9.  According to the applicant, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants of the demonstration of 31 July 2010 were demanding free and fair elections and democratic reforms in the country. The participants of the demonstration of 10 March 2013 were protesting over the deaths of numerous soldiers in the army.

10.  The applicant attended both demonstrations, but shortly after they had begun the police started to disperse those who had gathered. In both cases the applicant was arrested during the dispersal operation and was taken to a police station, where he was questioned.

11.  In both cases on the day of the applicant’s arrest, an administrative offence report (inzibati xəta haqqında protokol) was issued on him. In the first case the report stated that by deliberately failing to comply with a lawful order of the police, the applicant had committed an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”). In the second case he was charged with an administrative offence under Article 298.2 of the CAO (participation in a public assembly organised not in accordance with the law).

12.  According to the applicant, he was never served with copies of the administrative offence reports or with other material from his case files. In both cases he was not given access to a lawyer after the arrest or while he was in police custody.

B.  Court proceedings against the applicant

13.  In the first case the applicant was brought before the Sabail District Court on 31 July 2010, the day of his arrest. In the second case he was held in police custody overnight and brought before the Sabail District Court on 11 March 2013, the day after his arrest.

14.  According to the applicant, the hearing before the court in both cases was very brief. In the second case members of the public were not allowed inside the courtroom, even though the court had not taken a formal decision to close the hearing to the public.

15.  According to the applicant, in both cases he was not given an opportunity to appoint a lawyer of his own choosing.

16.  At the court hearing in the first case the applicant was not represented by a lawyer. According to the material submitted to the Court by the parties, he refused legal assistance.

17.  It appears that at the court hearing in the second case a State-funded lawyer was invited to represent the applicant. None of the material submitted to the Court contain any records showing that the State-funded lawyer, Ms E.Z., made any oral or written submissions to the first-instance court.

18.  At the hearings in both cases the court did not question any witnesses.

19.  By a decision of 31 July 2010 the first-instance court convicted the applicant under Article 310.1 of the CAO and sentenced him to seven days’ administrative detention. By a decision of 11 March 2013 the same court convicted the applicant under Article 298.2 of the CAO and sentenced him to seven days’ administrative detention.

20.  On unspecified dates the applicant lodged appeals with the Baku Court of Appeal, arguing that his convictions were in violation of his rights because the demonstrations in which he had participated had been peaceful. The applicant also complained that his arrests had been unlawful and that the hearings before the first-instance court had not been fair.

21.  In the first case the applicant was not represented by a lawyer. In the second case the applicant prepared his appeal with the assistance of a lawyer of his own choosing, but that lawyer did not attend the hearing.

22.  On 16 August 2010 and 27 March 2013 respectively the Baku Court of Appeal dismissed the applicant’s appeals and upheld the decision of the first-instance court.

23.  According to the applicant, the decision of the Court of Appeal of 16 August 2010 was sent to him on 23 December 2010, after he complained that the court had failed to serve him with that decision.

II.  RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS

24.  At the time of the applicant’s both arrests, under Article 5 § IV of the Law on Freedom of Assembly of 13 November 1998 no prior written notification was required for spontaneous assemblies.

25.  At the time of the applicant’s arrest on 31 July 2010, Articles 298, 310, 410 and 437 of the Code of Administrative Offences 2000 (“the CAO”) provided as follows:

Article 298
Breach of the rules on the organisation and holding of assemblies, demonstrations, protests, marches and pickets

“Any breach of the rules, set forth under the legislation, on the organisation and holding of assemblies, demonstrations, protests, marches and pickets shall be punishable by a reprimand or a fine of seven to thirteen manats [AZN].”

Article 310
Deliberate failure to comply with a lawful order of a police officer
or military serviceman

“310.1.  Deliberate failure [by an individual] to comply with a lawful order of a police officer or military serviceman carrying out their duties to protect public order shall be punishable by a fine of twenty to twenty-five manats [AZN] or, if that sanction is inadequate in the circumstances of the case and taking into account the character of the offender, by up to fifteen days’ administrative detention.”

Article 410
Administrative offence report

“... 410.3.  An individual who is subject to administrative offence proceedings or a representative of a legal entity shall be given an opportunity to familiarise himself with the administrative offence report.

410.4. ... An individual who is subject to administrative offence proceedings or a representative of a legal entity ... 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 the 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.”

26.  Law no. 462-IVQD of 2 November 2012, which entered into force on 1 January 2013, introduced new wording to Article 298 of the CAO (breach of the rules on the organisation and holding of assemblies). According to that amendment, participation in an assembly organised in breach of the rules on the organisation and holding of assemblies became explicitly punishable under Article 298.2 of the CAO. Further, a punishment in the form of administrative detention of up to 15 days was introduced for the first time. Another new form of punishment introduced by the amendment was community service. In addition, a fine for breaching the rules on the organisation and holding of assemblies was increased and the amounts fixed as follows: between 300 and 600 manats (AZN) for participants of an assembly; between AZN 1,500 and 3,000 for individuals who organise an assembly; between AZN 3,000 and 6,000 for persons in charge (vəzifəli şəxslər) who organise an assembly; and between AZN 15,000 and 30,000 for legal entities involved in the organisation of an assembly.

27.  By Law no. 457-IVQD of 2 November 2012, which entered into force on 29 November 2012, the fine set out in Article 310.1 of the CAO was increased to AZN 200.

28.  The relevant extracts of Resolution 1917 (2013) of the Parliamentary Assembly of the Council of Europe, “The honouring of obligations and commitments by Azerbaijan”, read as follows:

“... 10. Regrettably, there is no political dialogue with the opposition parties outside parliament. The Assembly is concerned by the restrictive climate for the activities of the extra-parliamentary opposition, which complains about limitations imposed on freedom of expression and freedom of assembly and the lack of access to the public media.

11. The establishment of an inclusive political system and a truly competitive and unrestrictive political environment requires full implementation of basic freedoms, including freedom of expression, freedom of assembly and freedom of association. The situation in Azerbaijan is preoccupying and the Assembly expresses its deep concern in this regard.

12. Recently adopted amendments to the Criminal Code and the Administrative Code, which have increased penalties for the organisers of, and participants in, “unauthorised” gatherings, raise concern. Considering the authorities’ ongoing blanket ban on protests in the Baku city centre, these amendments are likely to have a further negative impact on freedom of assembly and freedom of expression. The restrictive use of certain articles of the Criminal Code, in particular Articles 221 and 233, against participants in peaceful, albeit unauthorised, demonstrations, is another matter of concern. ...”

29.  The relevant extracts of the Report (CommDH(2013)14) of 6 August 2013 by Nils Muižnieks, the Commissioner for Human Rights of the Council of Europe, following his visit to Azerbaijan from 22 to 24 May 2013, read as follows:

“... 76. The Commissioner is deeply concerned by the recent amendments to the Law on Freedom of Assembly, the Criminal Code and the Code of Administrative Offences, which further erode the right to freedom of assembly. The sanctions which can now be imposed, coupled with the fact that local authorities have not authorised a single rally in Baku city centre in recent years, clearly have a chilling effect on the organisation of or participation in demonstrations.

77. The Commissioner is of the view that participants in peaceful assemblies should not be sanctioned for the mere fact of being present at and actively participating in the demonstration in question, provided they do not do anything illegal, violent or obscene in the course of it. The Commissioner therefore urges the authorities to ensure that no disproportionate sanction, which would undermine the fundamental right to peaceful assembly, is imposed. ...”

30.  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 APPLICATION No. 24508/11

31.  The Government submitted that the final decision in the first case had been adopted on 16 August 2010, whereas the applicant had applied to the Court on 2 April 2011. The application had therefore been lodged out of time.

32.  They argued in particular that the applicant had been present at the hearing in which the decision of 16 August 2010 had been adopted. He had therefore been aware of its substance. Furthermore, a copy of that decision had been sent to him on the day of its delivery. Even if he had not received the decision shortly after that, he could have applied to the registry of the Baku Court of Appeal for a copy.

33.  The applicant argued that he could not have prepared a quality application before the Court without reading the decision of 16 August 2010, the final decision in his case containing factual and legal reasoning. He had complained about the appellate court’s failure to serve him with that decision. Following his complaint he had been served with the final decision on 23 December 2010, and had applied to the Court within six months of that date. To support this allegation the applicant submitted to the Court a copy of a covering letter from the Baku Court of Appeal dated 23 December 2010.

34.  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).

35.  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).

36.  Turning to the circumstances of the applicant’s first case, the Court observes that under domestic law and practice, the applicant was entitled to be served ex officio with a written copy of the Baku Court of Appeal’s decision of 16 August 2010 (see paragraph 25 above, Article 437 of the CAO).

37.  The Court notes that the Government did not produce any evidence showing that a copy of the decision of 16 August 2010 had been made available to the applicant before 23 December 2010. It does not find it unreasonable that the applicant waited a few months for the official service of the final decision before lodging a complaint (enquiry) about the court’s failure to serve him with a copy of that decision (contrast with Dragun v. Ukraine (dec.), no. 35093/05, 8 October 2013).

38.  The applicant lodged his application with the Court on 2 April 2011, within less than six months of the date of service of the final decision. He therefore complied with the six-month rule. The Court accordingly dismisses the Government’s objection.

II.  JOINDER OF THE APPLICATIONS

39.  Given the similarity of the facts and complaints raised by the applicant, the Court has decided to join the two applications in accordance with Rule 42 § 1 of the Rules of Court.

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

40.  The applicant complained that the dispersal of the demonstrations by the police and his arrest and conviction for an administrative offence had been in breach of his 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.”

41.  In the second case the applicant also complained that the dispersal of the demonstrations by the police and his arrest and conviction for an administrative offence had been in breach of his 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

42.  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 applicant’s complaints in application no. 44581/13

43.  The Court notes that, in the circumstances of the present case, 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 complaint 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).

44.  On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present case, 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

45.  The applicant 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.

46.  He further submitted that the authorities had not taken into consideration the fact that the organisers had given prior notice of the demonstration of 31 July 2010 to the BCEA, and that the demonstration of 10 March 2013 had been a spontaneous assembly with no prior notification required by law. The authorities also had not taken into consideration the fact that both demonstrations had been intended to be peaceful and had been held in a peaceful manner.

47.  In addition, in the first case the applicant argued that his arrest and conviction under Article 310.1 of the CAO had been arbitrary.

48.  The Government submitted that the domestic legislation regulating freedom of assembly was precise and foreseeable, and was in line with European standards.

49.  The Government also submitted that both demonstrations had been organised in breach of the provisions of national law.  They further argued in general terms that the dispersal of both demonstrations had been necessary for the protection of public safety and the prevention of disorder or crime, and had been proportionate to the aims pursued.

50.  In both cases the Government noted that the applicant had not been punished for his participation in the demonstration as such, but for his specific behaviour in the course of it, namely his deliberate failure to comply with a lawful order of the police. Commenting on the proportionality of the measures, the Government emphasised in particular that the sanction applied to the applicant had been administrative detention.

3.  The Court’s assessment

51.  The Court will first examine, the material and the parties’ submissions in the applicant’s first case, namely that concerning his arrest and conviction following his participation in the demonstration of 31 July 2010. The Court notes that the issues raised by the applicant are essentially the same as those examined in the Gafgaz Mammadov case (cited above). The facts of both that case and the present case are similar to a significant degree. The Court considers that the analysis and conclusions made in the Gafgaz Mammadov case also apply to the applicant’s first case. In particular, the Court noted the existence of 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); the doubts about the credibility of the formal ground, namely Article 310.1 of the CAO, relied on by the authorities to arrest and convict the participant of an unauthorised demonstration (ibid., §§ 56 and 62); a failure by the authorities to take into consideration the fact that the demonstration had been notified (ibid., § 60); 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 a lack of any 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.

52.  Having regard to the facts of the applicant’s first case 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 case the applicant’s right to freedom of assembly was breached for the same reasons as those outlined above.

53.  The Court will next examine the material and the parties’ submissions in the applicant’s second case, namely that concerning his arrest and conviction following his participation in the demonstration of 10 March 2013. The Court observes that the organisers did not submit proper prior notice to the BCEA of the demonstration of 10 March 2013. Examining the applicant’s argument that no such notice was required by law, the Court notes that, indeed, in accordance with Article 5 § IV of the Law on Freedom of Assembly no prior written notification was required for “spontaneous assemblies”. Nevertheless, the applicant failed to sufficiently substantiate his allegation that the demonstration in which he had participated had been spontaneous. In such circumstances, the Court is ready to accept that the dispersal of the demonstration of 10 March 2013 was lawful (compare Ibrahimov and Others v. Azerbaijan, nos. 69234/11, 69252/11 and 69335/11, §§ 74-75, 11 February 2016).

54.  Turning to the question of whether the dispersal of the demonstration of 10 March 2013 and the applicant’s conviction were necessary in a democratic society, the Court notes that the issues raised by the applicant and the facts of the present case bear significant similarity to those of the Gafgaz Mammadov case. It follows that for the same reasons as those outlined in the Gafgaz Mammadov judgment, the Court concludes that the authorities in the present case did not adduce relevant and sufficient reasons justifying the dispersal of the demonstration (see Gafgaz Mammadov, cited above, § 61). The authorities also failed to acknowledge that the act of participating in an unauthorised peaceful demonstration was by itself protected by Article 11 of the Convention (ibid., §§ 63-64).

55.  The dispersal of the demonstrations and the applicant’s arrests and convictions could not but have the effect of discouraging him from participating in political rallies. The measures applied in the present cases and the fear of the sanctions that could potentially be applied against participants and organisers of unauthorised peaceful assemblies undoubtedly had a chilling effect on the exercise of freedom of assembly. The chilling effect deters other opposition supporters and the public at large from attending demonstrations, and, more generally, from participating in open political debate.

56.  In these circumstances the Court finds a violation of Article 11 of the Convention in respect of the dispersal of both demonstrations and the applicant’s arrests and convictions.

IV.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

57.  The applicant complained under Article 6 of the Convention that in both cases in the proceedings concerning the alleged administrative offence, he had not had a fair and public 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

58.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds and must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

59.  The applicant submitted, in particular, that in both cases he had not been served, either prior to the hearing before the first-instance court or subsequently, with a copy of the administrative offence report issued on him or with other material from his case file. He also argued that the courts had merely based their findings on the administrative offence reports. The applicant further submitted that in both cases he had not been represented by a lawyer at the pre-trial stage. In both cases he had not been given an opportunity to appoint a lawyer of his own choosing to represent him before the first-instance court. Lastly, the applicant argued that in the second case the public had not been allowed inside the courtroom, even though the court had not issued an official decision to examine his case in a closed hearing.

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

2.  The Court’s assessment

61.  Having regard to the material in the case files and the parties’ submissions, the Court notes that there is a significant degree of similarity between the facts of the present cases and the issues under Article 6 of the Convention and 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 particular, the Court noted that the administrative proceedings had lacked the necessary safeguards and guarantees, as there had been a lack of adequate time and facilities to prepare the defence (ibid., §§ 78-81); strong reliance by the domestic courts on the administrative offence report prepared by the police (ibid., § 85); utter disregard by the domestic courts of important factual circumstances and legal issues of the case, inter alia, the peaceful nature of the unauthorised demonstration (ibid., § 86); an absence of legal assistance at the pre-trial stage of the proceedings (ibid., §§ 90-91); failure to provide an opportunity to appoint a lawyer of one’s own choosing (ibid., § 92); and formalistic representation by a State-funded lawyer (ibid., § 93). Having regard to the above, the Court found that 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.

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

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

64.  Having already established that in both cases the applicant was not afforded legal assistance at the pre-trial stage or provided an opportunity to appoint a lawyer of his own choosing at the trial, the Court finds it unnecessary to rule on the issue whether refusal by the applicant of State-funded legal assistance at the trial in the first case constituted an unequivocal waiver of his right to a lawyer.

65.  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 applicant, 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 applicant’s arguments concerning the lack of a public hearing in the second case.

V.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

66.  Lastly, the applicant complained that his arrest, custody and administrative detention in the second case had been in breach of Article 5 of the Convention. He had not been promptly informed of the reasons for his arrest, and the arrest and custody had not been in conformity with domestic procedural rules. The relevant parts of Article 5 of the Convention 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.”

67.  The Government argued that the applicant’s arrest had been in conformity with the CAO. The arrest had been made pursuant to Article 399.3 of the CAO. Under that Article, a person in respect of whom proceedings are carried out for an administrative offence punishable by administrative detention may be taken into custody for up to twenty-four hours. They also submitted that the applicant had been duly informed of the reasons for his arrest as well as his rights under the relevant provisions of the CAO, and that the relevant notes had been made in the administrative offence reports.

68.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds and must therefore be declared admissible.

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

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

70.  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

71.  In respect of non-pecuniary damage, the applicant claimed 15,000 euros (EUR) in the first case and EUR 19,000 in the second case.

72.  The Government submitted that the applicant’s claim in respect of non-pecuniary damage was unsubstantiated and unreasonable in both cases. They considered that, in any event, an award of EUR 5,000 in the first case and EUR 4,000 in the second case would constitute sufficient just satisfaction.

73.  The Court considers that the applicant has 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 the applicant the sum of EUR 10,000 under this head (as the total amount for both cases), plus any tax that may be chargeable on this amount.

B.  Costs and expenses

74.  The applicant claimed EUR 2,500 in the first case and EUR 3,300 in the second case, for legal fees incurred before the domestic courts and the Court. In support of his claim, he submitted contracts for legal and translation services.

75.  In both cases the Government considered that the claim was excessive and could not be regarded as reasonable as to quantum. In particular, they argued that the applicant was represented by the same lawyers who were representing a number of other applicants in similar cases and that substantial parts of the submissions in all those cases were identical or very similar.

76.  In the second case the Government further noted that according to the contract for legal and translation services mentioned above, the applicant would have to pay the lawyers 20% of the damages awarded by the Court.

77.  The Government lastly submitted that, taking into account the above considerations, in the first case the amount of legal aid already granted to the applicant should provide sufficient reimbursement of costs and expenses.

78.  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 in both cases the applicant was represented by the same lawyers, Mr R. Mustafazade and Mr A. Mustafayev, whose submissions in both cases were very similar.

79.  The Court also notes that the clause according to which the applicant must pay the lawyers 20% of the damages is irrelevant for the assessment of costs and expenses incurred by the applicant.

80.  In view of the above considerations, the Court awards the total amount of EUR 2,000 in respect of the services rendered by Mr R. Mustafazade and Mr A. Mustafayev, less EUR 1,700 already paid in legal aid by the Council of Europe.

C.  Default interest

81.  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 applicant’s arrests and convictions;

 

4.  Holds that there has been a violation of Article 6 §§ 1 and 3 of the Convention;

 

5.  Holds that there is no need to examine the complaint under Article 5 of the Convention;

 

6.  Holds

(a)  that the respondent State is to pay the applicant, 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, in respect of non-pecuniary damage;

(ii)  EUR 300 (three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the applicant’s 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;

 

7.  Dismisses the remainder of the applicant’s 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