European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF ABBASLI v. AZERBAIJAN

 

(Applications nos. 5417/13 and 73309/14)

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

16 February 2017

 

 

 

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




In the case of Abbasli 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. 5417/13 and 73309/14) 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, Mr Tural Feyruz oglu Abbasli (“the applicant”), on 4 January 2013 and 5 November 2014 respectively.

2.  The applicant was represented by Mr R. Mustafazade and Mr A. Mustafayev, lawyers practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3.  On 19 May 2014 and 22 June 2015 respectively the complaints concerning Articles 5, 6, 10 and 11, raised in both applications, and Articles 13, 14 and 18, raised in application no. 73309/14 only, were communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1982 and lives in Baku. At the material time he was a member of an opposition party, Musavat.

A.  Administrative arrests

5.  The applicant attempted to participate in a demonstration organised by the opposition on 20 October 2012. Prior to that assembly, on 15 October 2012, the organisers gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”). The BCEA refused to authorise the holding of the demonstration at the place indicated by the organisers and proposed a different location on the outskirts of Baku. Nevertheless, the organisers decided to hold the demonstration as planned.

6.  According to the applicant, the demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants were demanding democratic reforms in the country.

7.  The applicant had intended to attend the demonstration. He and a few others attempted to march from the headquarters of the Musavat party to the place where the assembly was being held. However, shortly after that attempt he was arrested and taken to a police station. According to the applicant, he was arrested by people in plain clothes.

8.  On 6 May 2014 the applicant also participated in another assembly, which took place near the Baku Court of Serious Crimes in support of members of an opposition group, Nida, who were being tried on that day. The courtroom was full, so some people were waiting outside the court for the outcome of the proceedings. When the court announced its judgment, those who had gathered outside began to protest against the judgment, which they considered unfair. The protest was brief, spontaneous and peaceful. As soon as the protesters started chanting slogans, police officers and people in plain clothes began to forcibly disperse the assembly. The applicant was arrested during the dispersal operation and taken to a police station, where he was kept overnight.

9.  In both cases on the day of the applicant’s arrest, an “administrative-offence report” (inzibati xəta haqqında protokol) was issued in respect of 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 the applicant was charged with an administrative offence under Article 298.2 (participation in a public assembly that had not been organised in accordance with the law) of the CAO.

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

11.  In the second case, according to a document drawn up by a police officer and an order dated 6 May 2014, a State-funded lawyer (Mr S.A.) was instructed to assist the applicant.

B.  Court proceedings against the applicant

12.  In the first case the applicant was brought before the Binagadi District Court on 20 October 2012, the day of his arrest. In the second case he was brought before the Nasimi District Court on 7 May 2014, the day following his arrest.

13.  According to the applicant, the hearing before the court in both cases was very brief. Members of the public, including human rights defenders and journalists, were not allowed to attend, even though the court had not taken a formal decision to close the hearing to the public.

14.  According to the applicant, in neither case was he given an opportunity to hire a lawyer of his own choice.

15.  In both cases State-funded lawyers were appointed to assist the applicant. In the second case it was the same lawyer, Mr S.A., who had been instructed to assist the applicant in accordance with the above-mentioned document of 6 May 2014 drawn up by a police officer.

16.  According to the records of the court hearings in both cases, in their oral submissions the State-funded lawyers briefly stated that the applicant was not guilty and asked the respective court to discontinue the case.

17.  In both cases the only witnesses questioned during the court hearing were police officers who, according to the official records, had arrested the applicant or prepared an administrative-offence report on him. They testified that the applicant had staged an unauthorised protest.

18.  In both cases the first-instance court found that the applicant had failed to stop participating in an unauthorised protest.

19.  By a decision of 20 October 2012 the first-instance court in the first case convicted the applicant under Article 310.1 of the CAO and sentenced him to ten days’ “administrative” detention.  By a decision of 7 May 2014 the court in the second case convicted the applicant under Article 298.2 of the CAO and sentenced him to fifteen days’ administrative detention.

20.  On unspecified dates the applicant lodged appeals before the Baku Court of Appeal, arguing that his convictions were in violation of his rights because the assemblies in which he had participated or attempted to participate had been peaceful (in addition, in the second case the applicant argued that the assembly had been spontaneous). The applicant also complained that his arrests had been unlawful and that the hearings before the respective first-instance courts had not been fair.

21.  In both cases the applicant was assisted before the Baku Court of Appeal by a lawyer of his own choice.

22.  In both cases, on 29 October 2012 and 16 May 2014 respectively, the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court.

II.  RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS

23.  At the time of both of the applicant’s 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.

24.  At the time of the applicant’s arrest on 20 October 2012, Articles 298 and 310 of the Code of Administrative Offences of 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 administrative detention for a term of up to fifteen days.”

25.  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). Under 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. Furthermore, a punishment in the form of administrative detention of up to fifteen days was introduced for the first time. Another new form of punishment introduced by the amendment was community service. In addition, the 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.

26.  The punishments for breach of the rules on the organisation and holding of assemblies were made harsher still in May 2013. Law no. 651-IVQD of 14 May 2013, which entered into force on 5 June 2013, increased the administrative-detention sentence set out in Article 298 of the CAO to “up to two months”.

27.  Law no. 457-IVQD of 2 November 2012, which entered into force on 29 November 2012, increased the fine in Article 310.1 of the CAO to AZN 200. The above-mentioned Law no. 651-IVQD of 14 May 2013 increased the administrative-detention sentence in Article 310.1 of the CAO to “up to one month”.

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.  JOINDER OF THE APPLICATIONS

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

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

32.  The applicant complained that the dispersal of the protests by the police and his arrest and conviction for an administrative offence had been in breach of his freedom of assembly and freedom of expression, as provided for in Articles 10 and 11 of the Convention, which read as follows:

Article 10 (freedom of expression)

“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.”

Article 11 (freedom of assembly and association)

 “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.”

A.  Admissibility

33.  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

34.  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 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).

35.  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 as enshrined in Article 11 (see Ezelin, cited above, § 37, and Kudrevičius and Others, cited above, § 86).

2.  The parties’ submissions

36.  The applicant argued that the domestic legislation regulating freedom of assembly did not comply with 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.

37.  The applicant further submitted that the authorities had not taken into consideration the fact that the organisers had given the BCEA prior notice of the demonstration of 20 October 2012, and that since the protest of 6 May 2014 had been a spontaneous one, no prior notification was required by law. The authorities had not taken into consideration the fact that both protests had been intended to be peaceful and had been held in a peaceful manner.

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

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

40.  The Government also submitted that both assemblies had been organised in breach of national legislation.

41.  The Government further argued in general terms that the dispersal of both assemblies had been necessary in the interests of national security, for protection of the rights and freedoms of others, for protection of public safety and the prevention of disorder or crime, and had been proportionate to the aims pursued.

42.  In the first case the Government also argued that the applicant had not been punished for his participation in the demonstration as such, but for particular behaviour in the course of that assembly, namely for deliberately disobeying the lawful order of police officers. Commenting on the proportionality of the measures, the Government emphasised in particular that the sanction applied to the applicant had been administrative detention.

43.  In the second case the Government pointed out that the police authorities had not intervened in the assembly until the participants had started to disturb public order.

3.  The Court’s assessment

44.  The Court will examine, firstly, the material and the parties’ submissions in the applicant’s first case, namely, his arrest and conviction following his participation in the demonstration of 20 October 2012. The Court notes that the issues raised by the applicant are essentially the same as those examined in the Gafgaz Mammadov judgment (cited above). The facts of the Gafgaz Mammadov case closely resemble those of the present case. The Court considers that the analysis and conclusions made in the Gafgaz Mammadov judgment also apply to the applicant’s first case. In that judgment, the Court noted in particular 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); doubts about the credibility of the formal ground, namely, Article 310.1 of the CAO, invoked by the authorities for arresting and convicting the participant in an unauthorised demonstration (ibid., §§ 56 and 62); the failure by the authorities to take into consideration the fact that the demonstration had been notified (ibid., § 60); the 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 the 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.

45.  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.

46.  The Court will examine, secondly, the material and the parties’ submissions in the applicant’s second case, namely, his arrest and conviction following his participation in the assembly of 6 May 2014. The Court observes that the organisers did not give the BCEA prior notice about the protest of 6 May 2014. However, it is ready to accept that that protest was an immediate response by people who had gathered near the Baku Court of Serious Crimes to the judgment of that court against certain members of the opposition group, Nida. The spontaneous nature of the protest was warranted by those circumstances and thus the obligation to submit prior notice was overridden (see, mutatis mutandis, Bukta and Others v. Hungary, no. 25691/04, §§ 35-36, ECHR 2007-III). The Court also observes that, indeed, under Article 5 § IV of the Law on Freedom of Assembly, no prior written notification was required for “spontaneous assemblies”. In such circumstances the Court has doubts as to whether the dispersal of the assembly of 6 May 2014 was prescribed by law (contrast with Ibrahimov and Others v. Azerbaijan, nos. 69234/11, 69252/11 and 69335/11, §§ 74-75, 11 February 2016). However, given that a more conspicuous problem arises with respect to the necessity of the interference, the Court considers that it is not appropriate to limit its examination under Article 11 of the Convention to the lawfulness of the interference only (see Gafgaz Mammadov, cited above, § 57).

47.  Turning to the question whether the dispersal of the assembly of 6 May 2014 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 closely resemble those of the Gafgaz Mammadov case. Therefore, for the same reasons as those outlined in the Gafgaz Mammadov judgment, the Court concludes that the authorities in the present case have not adduced relevant and sufficient reasons justifying the dispersal of the protest (see Gafgaz Mammadov, cited above, § 61). The authorities also failed to acknowledge that the act of participating in an unauthorised peaceful assembly was by itself protected by Article 11 of the Convention (ibid., §§ 63-64).

48.  The dispersal of the assemblies 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 sanctions that could potentially be applied against participants and organisers of unauthorised peaceful assemblies undoubtedly have a chilling effect on the exercise of freedom of assembly. This deters other opposition supporters and the public at large from attending demonstrations, and, more generally, from participating in open political debate.

49.  In these circumstances, the Court finds a violation of Article 11 of the Convention as regards both the demonstration of 20 October 2012 and the assembly of 6 May 2014.

III.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

50.  The applicant complained under Article 6 of the Convention that in both cases he 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

51.  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

52.  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 reports issued in respect of him or with other material in his case files. He also argued that the courts had based their findings merely on the administrative-offence reports and on the statements of the police officers. The applicant further submitted that in neither case had he been assisted by a lawyer at the pre-trial stage. Nor had he been given an opportunity to hire a lawyer of his own choice to assist him before the first-instance court. He had been only formalistically represented by a State-funded lawyer. Lastly, the applicant argued that in neither case had the public been allowed to attend the hearing before the first-instance court, even though the court had not issued an official decision to examine his case in a closed hearing.

53.  The Government submitted that the administrative proceedings with respect to the applicant in both cases had been in line with national legislation. In the first case the Government noted in particular that the time-limit for lodging an appeal with the Court of Appeal against the decision of the first-instance court 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. In the second case the Government argued in particular that the administrative-offence case had not been complex and the applicant had therefore been able to prepare his defence. In addition, the applicant had been present personally at the hearing of the first-instance court and had not objected to being represented by a State-funded lawyer. Lastly, he had been represented by a lawyer of his own choice before the Court of Appeal.

2.  The Court’s assessment

54.  The Court notes from the outset that, according to a document drawn up by a police officer and an order dated 6 May 2014, a State-funded lawyer (Mr S.A.) was instructed to represent the applicant in the second case. However, there is nothing in the material before the Court to suggest that any legal assistance was provided by Mr S.A. at the pre-trial stage. It appears that that lawyer only made brief oral submissions at the trial. Therefore the Court accepts the applicant’s assertion that at the pre-trial stage he was not assisted by a lawyer.

55.  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 judgment (cited above). 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 the lack of necessary safeguards and guarantees in the administrative-offence proceedings, namely, the lack of adequate time and facilities to prepare the defence (ibid., §§ 78-81); the 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); the absence of legal assistance at the pre-trial stage of the proceedings (ibid., §§ 90-91); the failure to provide the applicant with an opportunity to appoint a lawyer of his own choice (ibid., § 92); and the formalistic nature of the representation by a 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 judgment, considered as a whole, were not in conformity with the guarantees of a fair hearing.

56.  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.

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

58.  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 alleged lack of a public hearing.

IV.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

59.  The applicant complained that his arrest, custody and administrative detention following his participation in both assemblies had been in breach of Article 5 of the Convention. Article 5 of the Convention, in so far as relevant, reads 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

60.  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.

B.  Merits

1.  The parties’ submissions

61.  The applicant argued that in the first case his arrest and administrative detention under Article 310.1 (failure to comply with a lawful order of a police officer) of the CAO had been arbitrary, since he had not disobeyed any order from a police officer.

62.  The applicant further complained that in neither case had he been promptly informed about the reasons for his arrest, and that the arrest and custody had not conformed to domestic procedural rules. In particular, he had not been given an opportunity to contact his relatives; his rights had not been properly explained to him; he had not been served with a copy of the administrative-offence report; and in the first case he had been arrested by people in plain clothes.

63.  The Government argued that in both cases the applicant’s arrest had been in conformity with the CAO. In the first case he had been arrested under Article 399.3 of the CAO, which provided that a person in respect of whom proceedings were carried out for an administrative offence punishable by administrative detention may be taken into custody for up to twenty-four hours. In the second case he had been arrested under Article 398 of the CAO, which provided that administrative arrest may be applied when deemed necessary for ensuring the correct and timely examination of an administrative-offence case.

64.  The Government also submitted that the applicant’s administrative detention in the first case had resulted from a lawful court decision by which he had been found guilty of an administrative offence under Article 310.1 of the CAO.

65.  The Government lastly submitted that in both cases the applicant had been duly informed about the reasons for his arrest as well as his rights under the relevant provisions of the CAO.

2.  The Court’s assessment

66.  Having regard to the material and the parties’ submissions in the applicant’s first case, namely, his arrest and conviction following his participation in the demonstration of 20 October 2012, the Court notes that the facts of this case and the issues under Article 5 of the Convention raised by it closely resemble those examined in the Gafgaz Mammadov judgment (cited above). The Court considers that the analysis and conclusions made in the Gafgaz Mammadov judgment also apply to the applicant’s first case. In that judgment, the Court noted in particular that the measures applied by the authorities, namely, arrest and custody followed by a sentence of several days’ imprisonment, had pursued aims unrelated to the formal ground 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 judgment had been arbitrary.

67.  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 liberty was breached for the same reasons as those outlined above.

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

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

V.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

70.  The applicant also complained that in the second case he had not had an effective remedy to protect his right to freedom of assembly, in violation of Article 13 of the Convention. Lastly, referring to Articles 14 and 18 of the Convention the applicant complained that the real reason or motive for his arrest and conviction was his political activism.

71.  The Government submitted that the applicant had been able to complain of violations of his rights before the domestic courts, in particular, before the Court of Appeal. Therefore he had had effective domestic remedies at his disposal, as required under Article 13.

72.  The Government also argued that the applicant had failed to adduce any evidence showing any direct link between his political activities and the authorities’ actions against him. The criminal proceedings against him had been based on suspicion that he had committed an offence. The accusation against him had not concerned his political activities stricto sensu, even remotely.

73.  The Court notes that the applicant’s complaints of violation of the right to an effective remedy, discrimination on political grounds and restriction of his rights for purposes other than those prescribed in the Convention are linked to the complaints examined above and must therefore likewise be declared admissible.

74.  However, having regard to its above findings in relation to Articles 5, 6 and 11 of the Convention, the Court considers that it is not necessary to examine whether in the applicant’s second case there has been a violation of Article 13, taken in conjunction with Article 11, and a violation of Articles 14 and 18, taken in conjunction with Article 5.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

75.  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

76.  In respect of non-pecuniary damage the applicant claimed 21,000 euros (EUR) in the first case and EUR 24,000 in the second case.

77.  The Government submitted that the applicant’s claims in respect of non-pecuniary damage were unsubstantiated and unreasonable.

78.  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 12,000 under this head (as the total amount for both cases), plus any tax that may be chargeable on this amount.

B.  Costs and expenses

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

80.  The Government considered that the claims were 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 had been 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. The Government further noted that according to the contracts for legal and translation services mentioned above, the applicant would have to pay the lawyers 20% of the damages awarded by the Court.

81.  In the second case the Government also noted that the contract for legal and translation services mentioned above had been signed between the applicant and Mr R. Mustafazade. That contract contained a clause about payment to Mr R. Mustafazade of the legal fees incurred before the domestic courts. However, in fact the applicant had not been represented before the domestic courts by Mr R. Mustafazade. The Government further argued that the applicant had failed to produce any evidence concerning translation services.

82.  The Government lastly submitted that, taking into account the above considerations, the amount to be paid to the applicant as reimbursement of costs and expenses should be reduced.

83.  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 applicant was represented by the same lawyers, Mr R. Mustafazade and Mr A. Mustafayev, in both cases and that those lawyers’ submissions in both cases were very similar.

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

85.  In view of the above considerations, the Court awards a total amount of EUR 2,000 in respect of the services rendered by Mr R. Mustafazade and Mr A. Mustafayev.

C.  Default interest

86.  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 assemblies 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 has been a violation of Article 5 of the Convention on account of the applicant’s arrest and conviction following his participation in the demonstration of 20 October 2012;

 

6.  Holds that there is no need to examine the complaints under Articles 13, 14 and 18 of the Convention raised in application no. 73309/14;

 

7.  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 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,000 (two thousand 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;

 

8.  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