European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF KHALILOVA AND AYYUBZADE v. AZERBAIJAN

 

(Applications nos. 65910/14 and 73587/14)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

 

 

6 April 2017

 

 

 

This judgment is final. It may be subject to editorial revision.




In the case of Khalilova and Ayyubzade v. Azerbaijan,

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

          Faris Vehabović, President,
          Carlo Ranzoni,
          Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having deliberated in private on 14 March 2017,

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

PROCEDURE

1.  The case originated in two applications (nos. 65910/14 and 73587/14) 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 two Azerbaijani nationals, Ms Kamala Kamal gizi Khalilova (“the first applicant”) and Mr Orkhan Ibrahimajdar oglu Ayyubzade (“the second applicant”), on 20 September 2014 and 8 November 2014 respectively.

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

3.  On 22 June 2015 the complaints concerning Articles 5, 6, 10, 11, 13, 14 and 18 of the Convention, raised in both applications, were communicated to the Government and the remainder of application no. 65910/14 was declared inadmissible.

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

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicants were born in 1974 and 1994 respectively and live in Baku. At the material time the first applicant was a member of one of the main opposition parties in the country, the Popular Front Party of Azerbaijan, and the second applicant was a member of an opposition group, Nida.

A.  Administrative arrests

6.  The applicants participated in an assembly on 6 May 2014. According to the applicants, they were among people who gathered near the Baku Assize Court to support members of Nida (an opposition group), who were being tried on that day. The courtroom was full, and therefore some people gathered outside the court to wait for the outcome of the proceedings. When the court announced its judgment, those who had gathered outside began to protest against the judgment, since they considered it unfair. The protest was brief, spontaneous and peaceful. Immediately after the protesters started chanting slogans, police officers and people in plain clothes began to forcibly disperse the demonstration.

7.  The applicants were arrested during the dispersal operation and were taken to a police station, where they were kept overnight.

8.  The applicants were questioned at the police station.

9.  On the day of the applicants’ arrest, administrative-offence reports on them (inzibati xəta haqqında protokol) were issued, which stated that they had committed an administrative offence under Article 298.2 of the Code of Administrative Offences (“the CAO”): participation in a public assembly organised not in accordance with the law.

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

11.  According to a police officer’s decision and an order dated 6 May 2014, a State-funded lawyer (Mr O.A.) was invited to defend the first applicant. Similarly, according to a police officer’s decision and an order dated 6 May 2014, a State-funded lawyer (Mr A.B.) was invited to defend the second applicant.

B.  Court proceedings against the applicants

12.  The applicants were brought before the Nasimi District Court on the day following their arrest.

13.  According to the applicants, the hearing before the first-instance court was very brief in both cases. 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.

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

15.  A State-funded lawyer was invited to defend the first applicant. It was the same lawyer, Mr O.A., who had been invited to defend her in accordance with the above-mentioned police officer’s decision of 6 May 2014.

16.  The second applicant was not represented by a lawyer. According to the transcript of the hearing in his case, he refused the assistance of the State-funded lawyer and decided to defend himself in person.

17.  According to the transcript of the hearing concerning the first applicant, the State-funded lawyer did not make any oral or written submissions.

18.  The only witnesses questioned during the hearing concerning the first applicant were police officers who, according to official records, had arrested her or issued the administrative-offence report on her. They testified that the applicant had staged an unauthorised protest. With respect to the second applicant, the court did not question any witness.

19.  According to the transcript of the hearing concerning the first applicant, she stated that she had participated in the protest of 6 May 2014 and had rightfully used “improper language” in the course of the protest.

20.  According to the transcript of the hearing concerning the second applicant, he stated that he had simply protested against an unfair judgment against the Nida members, and had not committed any unlawful action.

21.  In both cases the Nasimi District Court found that the applicants had participated in an unauthorised demonstration. The court convicted the applicants under Article 298.2 of the CAO, and sentenced them to a period of administrative detention of thirty and twenty days respectively.

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

23.  The first applicant was assisted by a lawyer of her own choosing before the Baku Court of Appeal. The second applicant was not represented by a lawyer.

24.  On 16 and 22 May 2014 respectively the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the first-instance court.

II.  RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS

25.  At the time of the applicants’ arrest, under Article 5 § IV of the Law on Freedom of Assembly of 13 November 1998, no prior written notification was required for spontaneous assemblies.

26.  Before amendments introduced by Law no. 462-IVQD of 2 November 2012, a breach of the rules on the organisation and holding of assemblies was punishable under Article 298 of the Code of Administrative Offences of 2000 (“the CAO”) by a reprimand or a fine of seven to thirteen manats (AZN).

27.  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 on breaching the rules on the organisation and holding of assemblies. According to that amendment, participation in an assembly organised in breach of such rules became explicitly punishable under Article 298.2 of the CAO and punishments in the form of administrative detention of up to 15 days or community service were introduced for the first time. In addition, the fine for a breach of the rules on the organisation and holding of assemblies was increased and the amounts fixed as follows: between AZN 300 and 600 for participants of an assembly; AZN 1,500 to AZN 3,000 for individuals who organise an assembly; AZN 3,000 to AZN 6,000 for persons in charge (vəzifəli şəxslər) who organise an assembly; and between AZN 15,000 and AZN 30,000 for legal entities involved in the organisation of an assembly.

28.  A further increase in the penalties for breaching the rules on the organisation and holding of assemblies occured in May 2013. By Law no. 651-IVQD of 14 May 2013, which entered into force on 5 June 2013, the administrative detention sentence foreseen in Article 298.1 and Article 298.2 of the CAO was increased to “up to two months”.

29.  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:

“... 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. ...”

30.  The relevant extracts of 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:

“... 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. ...”

31.  For a summary of other relevant provisions concerning administrative proceedings and the organisation and holding of public assemblies, and relevant extracts from 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

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

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

33.  The applicants complained that the dispersal of the protest by the police and their arrest and conviction for an administrative offence had been in breach of their freedom of assembly and freedom of expression, as provided for in Articles 10 and 11 of the Convention, which read:

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.”

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.”

A.  Admissibility

34.  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

35.  The Court notes that, 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 consider separately the complaint under Article 10 (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).

36.  On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10 in the present cases. The protection of personal opinions, as 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

37.  The applicants argued that the authorities had not taken into consideration the fact that the protest of 6 May 2014 had been spontaneous, and therefore no prior notification had been required by law. The authorities had also not taken into consideration the fact that the protest had been held in a peaceful manner.

38.  The Government submitted that the assembly had been organised in breach of the provisions of national legislation, since the organisers had failed to notify the relevant authority about it.

39.  The Government further argued that the dispersal of the assembly had been necessary in the interests of national security, for the protection of the rights and freedoms of others and the prevention of disorder or crime, and had been proportionate to the aims pursued. They submitted in particular that the police had not intervened in the assembly until the moment when participants had started to disturb public order. Besides, the first applicant herself had admitted in the court proceedings that she had insulted public authorities during the protest.

3.  The Court’s assessment

40.  The Court notes at the outset that none of the documents before it suggest that the first applicant insulted any particular people during the protest of 6 May 2014. The transcript of the first-instance court hearing merely mentions that she stated that she had participated in the protest and “had rightfully used improper language” in the course of it. Neither the transcript of the hearing nor any other document in the applicant’s case file give any further details as to the words used by applicant or to whom she addressed those words. In such circumstances, the Court dismisses the Government’s argument that the arrest of the first applicant was necessitated by the fact that she had insulted public authorities during the protest.

41.  The Court further observes that the organisers had not submitted a prior notice about the protest of 6 May 2014 to the relevant authority, the Baku City Executive Authority. However, it is ready to accept that that protest was an immediate response of the people who had gathered near the Baku Court of Serious Crimes to the judgment of that court against certain Nida members. Those circumstances warranted a spontaneous protest on that particular date, and overrode the obligation to submit a prior notice about an assembly (see, mutatis mutandis, Bukta and Others v. Hungary, no. 25691/04, §§ 35-36, ECHR 2007-III). The Court also observes that, indeed, according to Article 5 § IV of the Law on Freedom of Assembly, no prior written notification was required for “spontaneous assemblies” (see paragraph 25 above). 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 only the lawfulness of the interference (see Gafgaz Mammadov, cited above, § 57).

42.  Turning to the question of whether the dispersal of the assembly of 6 May 2014 and the applicants’ conviction were necessary in a democratic society, the Court notes that the issues raised by the applicants and the facts of the present cases bear great resemblance to those of the Gafgaz Mammadov judgment (cited above). Therefore, for the same reasons as those outlined in that judgment, the Court concludes that the authorities in the present cases 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).

43.  The dispersal of the assembly and the applicants’ arrest and conviction could not but have the effect of discouraging them from participating in political rallies. The Court notes in particular that the sanctions applied to the applicants under Article 298.2 of the CAO were harsh. They were sentenced to thirty and twenty days of administrative detention respectively. 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 had a chilling effect on the exercise of freedom of assembly. The chilling effect deters opposition supporters and the public at large from attending demonstrations, and, more generally, from participating in open political debate (see Gafgaz Mammadov, cited above, § 67).

44.  In these circumstances, the Court finds a violation of Article 11 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

45.  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:

“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

46.  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 and must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

47.  The applicants submitted, in particular, that they had not been served, either prior to the hearing before the first-instance court or subsequently, with copies of the administrative-offence reports issued on them or other material from their case files. They also argued that the court had merely based its findings on the administrative-offence reports and, in the case of the first applicant, also on the statements of the police officers. The applicants further submitted that they had not been assisted by a lawyer at the pre-trial stage. They had not been given an opportunity to hire a lawyer of their own choosing to defend them before the first-instance court. The first applicant had only been represented by a State-funded lawyer in a purely formalistic sense, whereas the second applicant had refused the assistance of a State-funded lawyer, believing that representation by that lawyer would be ineffective.

48.  Lastly, the applicants argued that the public had not been allowed to attend the hearings before the first-instance court, even though the court had not issued an official decision to examine their cases in a closed hearing.

49.  The Government submitted that the administrative proceedings concerning the applicants had been in line with the national legislation. They argued in particular that the administrative-offence cases had not been complex, and therefore the applicants had been able to prepare their defence. In addition, the applicants had been present at the hearings before the respective first-instance court. The second applicant had refused legal assistance of his own free will and decided to defend himself in person. Before the Court of Appeal, the first applicant had been represented by a lawyer of her own choosing. Finally, the proceedings in both cases had been held publicly.

2.  The Court’s assessment

50.  The Court notes at the outset that, according to the decisions of police officers and the orders dated 6 May 2014, State-funded lawyers (Mr O.A. and Mr A.B. respectively) were invited to defend the applicants. However, there is nothing in the material before the Court to suggest that any legal assistance was provided by those lawyers at the pre-trial stage. In addition, it appears that the same State-funded lawyer, Mr O.A., was present at the trial concerning the first applicant, but did not make any oral or written submissions. In such circumstances, the Court accepts the applicants’ assertion that they were not assisted by a lawyer at the pre-trial stage.

51.  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 which they raise are significantly similar to those examined in the Gafgaz Mammadov judgment (cited above). The Court considers that the analysis and conclusions in that judgment also apply to the present cases. In that case, the Court noted in particular that the administrative offence proceedings in question had lacked the necessary safeguards and guarantees. The time and facilities to prepare the defence had been inadequate (ibid., §§ 78-81). In addition, there had been: a strong reliance by the domestic courts on the administrative-offence report prepared by the police and the statements given by a police officer (ibid., § 85); utter disregard by the domestic courts of important factual circumstances and legal issues in 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); a failure to provide an opportunity to appoint a lawyer of one’s own choosing (ibid., § 92); and purely 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, when considered as a whole, had not been in conformity with the guarantees of a fair hearing.

52.  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 which could compel it to deviate from its findings in that judgment, and finds that, in the present cases, the applicants’ right to a fair trial was breached for the same reasons as those outlined above.

53.  Accordingly, there has been a violation of Article 6 §§ 1 and 3 of the Convention.

54.  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 trial, the Court finds it unnecessary to rule on the issue of whether the refusal by the second applicant of State-funded legal assistance at trial constituted an unequivocal waiver of his right to a lawyer.

55.  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, when 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 applicants’ arguments concerning the lack of a public hearing.

IV.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

56.  The applicants complained that their arrest, custody and administrative detention had been in breach of Article 5 of the Convention. They had not been promptly informed of the reasons for their arrest, and the arrest and custody had not conformed to domestic procedural rules. Article 5 of the Convention, in so far as relevant, reads:

“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: ...

(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.”

57.  The Government argued that the applicants’ arrest had been in conformity with the CAO. The arrest had been pursuant to Article 398 of the CAO. According to that Article, administrative arrest could be applied when deemed necessary for ensuring the correct and timely examination of an administrative-offence case. They 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, and the relevant notes had been made in the administrative-offence reports.

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

59.  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.

V.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

60.  The applicants also complained that, in violation of Article 13 of the Convention, they did not have an effective remedy to protect their right to freedom of assembly. Lastly, referring to Articles 14 and 18 of the Convention, the applicants complained that the real reason or motive for their arrest and conviction had been their political activism.

61.  The Government submitted that the applicants had been able to complain about alleged violations of their rights before the domestic courts, in particular, before the Court of Appeal. They therefore had effective domestic remedies at their disposal, as required under Article 13.

62.  The Government also argued that the applicants had failed to adduce any evidence showing any direct link between their political activities and the authorities’ actions against them. The criminal proceedings against the applicants had been based on a suspicion that they had committed an offence. The accusation against them had not remotely concerned their political activities stricto sensu.

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

64.  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 13, taken in conjunction with Article 11, or a violation of Articles 14 and 18, taken in conjunction with Article 5.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

65.  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

66.  In respect of non-pecuniary damage, the first applicant claimed 32,000 euros (EUR) and the second applicant claimed EUR 26,000.

67.  The Government submitted that the applicants’ claims were unsubstantiated and unreasonable.

68.  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 therefore be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant the sum of EUR 6,000 under this head, plus any tax that may be chargeable on this amount.

B.  Costs and expenses

69.  In respect of legal fees incurred before the domestic courts and the Court, the first applicant claimed EUR 4,500 and the second applicant claimed EUR 3,000. In support of their claims, they submitted contracts for legal and translation services.

70.  The Government submitted that the applicants’ claims were excessive and could not be regarded as reasonable as to quantum. In particular, they argued that both applicants were 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.

71.  They also submitted that the contracts for legal and translation services mentioned above had been signed by the applicants and Mr R. Mustafazade. Those contracts contained a provision about payment to Mr R. Mustafazade of the legal fees incurred before the domestic courts. However, the applicants had in fact not been represented before the domestic courts by Mr R. Mustafazade. Furthermore, they had failed to produce any evidence concerning translation services.

72.  The Government further asserted that, in accordance with the contracts for legal and translation services mentioned above, the applicants would have to pay their lawyers 20% of the damages awarded by the Court.

73.  The Government submitted lastly that, taking into account the above considerations, an award of EUR 500 to each applicant should provide sufficient reimbursement of costs and expenses.

74.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that in the proceedings before it both applicants were represented by the same lawyers, Mr R. Mustafazade and Mr A. Mustafayev, whose submissions in both cases were very similar.

75.  The Court also notes that the clause which stipulates that the applicants must pay their lawyers 20% of the damages is irrelevant for the purposes of assessing the costs and expenses which they have incurred.

76.  Taking into account the above considerations, the Court awards the total amount of EUR 2,000 to both applicants jointly in respect of the legal services rendered by Mr R. Mustafazade and Mr A. Mustafayev.

C.  Default interest

77.  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 assembly and the applicants’ arrest and conviction;

 

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 complaints under Articles 5, 13, 14 and 18 of the Convention;

 

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 6,000 (six thousand euros), plus any tax that may be chargeable, to each applicant, in respect of non-pecuniary damage;

(ii)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, to the applicants jointly, in respect of costs and expenses, to be paid directly into the applicants’ 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 applicants’ claim for just satisfaction.

Done in English, and notified in writing on 6 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Anne-Marie Dougin                                                           Faris Vehabović
Acting Deputy Registrar                                                            President