European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF TURAL HAJIBEYLI v. AZERBAIJAN

 

(Application no. 69180/11)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

 

STRASBOURG

 

28 September 2017

 

 

 

 

 

 

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




In the case of Tural Hajibeyli v. Azerbaijan,

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

          André Potocki, President,
          Mārtiņš Mits,
          Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having deliberated in private on 5 September 2017,

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

PROCEDURE

1.  The case originated in an application (no. 69180/11) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Tural Vagif oglu Hajibeyli (“the applicant”), on 5 November 2011.

2.  The applicant was represented by Mr I. Aliyev and Mr K. Bagirov, 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, 11 and 13 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

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

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1992 and lives in Baku.

A.  Administrative arrest

6.  A demonstration was planned to be held on 12 March 2011 in Baku. Prior to the assembly, on 7 March 2011, the organisers, members of the opposition, gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”).

7.  The BCEA refused to authorise the demonstration at the place indicated by the organisers and proposed a different location on the outskirts of Baku - the grounds of a driving school situated in the 20th habitable area of the Sabail District.

8.  The organisers nevertheless decided to hold the demonstration in the centre of Baku. According to the applicant, the demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants were protesting against, inter alia, corruption and demanding the resignation of the President of the State.

9.  The applicant attended the demonstration, but shortly after it had begun the police started to disperse those who had gathered. The applicant was arrested during the dispersal operation and was taken to three different police stations consecutively.

10.  According to the applicant, he was arrested at around 2 p.m. His arrest and custody in the police stations were video recorded on a mobile phone by one of the protesters, Mr A.H.

11.  On the day of the applicant’s arrest, an administrative-offence report (inzibati xəta haqqında protokol) was drawn up in respect of him by police officer E.G. The report stated that at around 2.55 p.m., at Fountains Square in Baku, the applicant had attempted to hold an unlawful demonstration and had disobeyed a lawful order of a police officer. He had been charged with administrative offences under Article 298 (violation of the rules on holding public assemblies) and Article 310.1 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences (“the CAO”).

12.  On the same day two police officers, M.A. and H.A., prepared a report (raport) for a superior, stating that at around 4 p.m. during the demonstration they had arrested ten individuals. The report contained a list of the arrested protesters. According to the applicant, his name - the eleventh on the list - was added to the report later in different handwriting.

13.  According to the official records, the administrative-offence report in the applicant’s respect was prepared on the basis of the abovementioned report drawn up by police officers M.A. and H.A.

14.  According to the applicant, he has never been served with a copy of the administrative-offence report or with other documents from his case file. He was also not given access to a lawyer after the arrest or while he was in police custody.

B.  Court proceedings against the applicant

1.  First set of proceedings

15.  On the day of his arrest the applicant was brought before a first-instance court, the Sabail District Court.

16.  A State-funded lawyer was appointed to assist the applicant. None of the material submitted to the Court contains any record showing that the State-funded lawyer, Mr E.N., made any oral or written submissions on behalf of the applicant.

17.  No witnesses were questioned during the court hearing.

18.  By a decision of 12 March 2011, the court convicted the applicant under Article 310.1 of the CAO and sentenced him to eight days’ administrative detention.

19.  On an unspecified date the applicant lodged an appeal with the Baku Court of Appeal, arguing that his arrest and conviction were in violation of his right to freedom of assembly and that the hearing before the first-instance court had not been fair. He argued that he had participated in the demonstration because he had had a constitutional right to do so, but that he had not disobeyed any order of a police officer.

20.  The applicant also asked the appellate court to summon and examine witnesses on his behalf (namely, Mr A.H., Mr A.M. and Mr R.M.) who, according to the applicant, had witnessed his arrest and time in custody, and to examine the video recordings made by Mr A.H., which, according to the applicant, showed his arrest and custody in the police stations. He further asked the court to order a handwriting examination of the report prepared by police officers M.A. and H.A., in order to establish whether his name had been added to it by one of those two police officers. The applicant alleged that his name had been added to the mentioned report as the eleventh person in the list later and in different handwriting.

21.  The applicant was represented before the Baku Court of Appeal by a lawyer of his own choosing.

22.  On 18 March 2011 the Baku Court of Appeal partially granted the applicant’s appeal and remitted the case to the first-instance court for re-examination. The Court of Appeal found that the first-instance court had failed to examine the report prepared by police officers M.A. and H.A. The court also held that the case-file contained only a photocopy and not the original of that report and, therefore, it had not been possible to order its expert examination. The court did not address the applicant’s above-mentioned requests to summon and examine the witnesses on his behalf and to examine the video recordings.

2.  Second set of proceedings

23.  On 12 April 2011 the Sabail District Court re-examined the case.

24.  According to the applicant, he was not given an opportunity to appoint a lawyer of his own choosing.

25.  A State-funded lawyer was appointed to assist him.

26.  The only witnesses questioned during the court hearing were police officers M.A. and E.G. The former testified that the applicant had been detained for having participated in an unlawful assembly, making noise and disobeying the lawful orders of the police. The latter testified that he had prepared the administrative-offence report.

27.  By a decision of 12 April 2011, the court convicted the applicant under Article 310.1 of the CAO and sentenced him to seven days’ administrative detention.

28.  On an unspecified date the applicant appealed. He argued before the Baku Court of Appeal that his arrest and conviction had been in violation of his right to freedom of assembly. He also complained that his arrest had been unlawful, and that the rehearing before the first-instance court had not been fair.

29.  The applicant again requested that witnesses on his behalf (namely, Mr A.H., Mr A.M., Mr R.M. and Mr R.B.) be summoned and heard. In addition, he challenged the reliability of the official records related to his arrest and police custody. He pointed out in particular the discrepancy between the time of arrest indicated in the administrative-offence report and the report prepared by police officers M.A. and H.A. The applicant repeated his allegation that his name had been added as the eleventh person on the list in the mentioned report later. The applicant asked the appellate court to hear at least three individuals listed along with him in the report prepared by police officers M.A. and H.A. He further asked the court to examine certain photographs and the video recordings made during his arrest and time in police custody.

30.  The applicant was not represented before the Baku Court of Appeal by a lawyer.

31.  On 28 April 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the first-instance court’s decision.

32.  The appellate court did not address the applicant’s above-mentioned requests to summon and hear the witnesses and to examine the photographs and video recordings.

C.  Seizure of the applicant’s case file

33.  On 8 August 2014 Mr I. Aliyev, who represented the applicant before the Court, was arrested on charges of large-scale tax evasion, abuse of power and illegal entrepreneurship. On the same day he was detained pending trial. The circumstances relating to Mr Aliyev’s arrest and detention are the subject of a separate application brought by him before the Court (application no. 68762/14).

34.  On 8 and 9 August 2014 the prosecuting authorities conducted a search of Mr Aliyev’s home and office. During the search the domestic authorities seized a large number of documents, including all the case files relating to the pending applications before the Court, which were in Mr Aliyev’s possession as a representative. The file relating to the present case, which, it appears, included copies of all the documents and correspondence between the Court and the parties, was also seized in its entirety. No adequate inventory of the seized files relating to the Court proceedings was made in the search and seizure records of 8 and 9 August 2014.

35.  On an unspecified date Mr Aliyev lodged a complaint with the Nasimi District Court, claiming that the search had been unlawful. He further complained about the seizure of the documents and files relating to the pending court proceedings before the Court and the domestic courts.

36.  On 12 September 2014 the Nasimi District Court dismissed Mr Aliyev’s claim. It held that the searches had been conducted in accordance with the relevant law. As to the seizure of the documents relating to the cases pending before the Court and the domestic courts, it found that they could not be returned to the applicants at that stage of the proceedings. Following an appeal, on 23 September 2014 the Baku Court of Appeal upheld the first-instance court’s decision of 12 September 2014.

37.  On 25 October 2014 the investigating authorities returned a number of the case files concerning the applications lodged with the Court, including the file relating to the present case, to Mr Aliyev’s lawyer. The investigator’s relevant decision specified that “since it has been established that among documents seized on 8 and 9 August 2014 there were files concerning applications by a number of individuals and organisations lodged with the European Court of Human Rights, which have no relation to the substance of the criminal proceedings [against Mr Intigam Aliyev], [those files] have been delivered to [Mr Aliyev’s lawyer] Mr Javad Javadov”.

II.  RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS

38.  At the material time Articles 410 and 437 of the Code of Administrative Offences 2000 provided as follows:

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.”

39.  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

40.  The Government submitted that the final decision in the present case had been adopted on 28 April 2011, whereas the applicant had applied to the Court on 5 November 2011. The application had therefore been lodged out of time.

41.  They argued in particular that the applicant had been present at the hearing in which the decision of 28 April 2011 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 following 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.

42.  The applicant argued that he had received the final decision on 27 June 2011, 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 cover letter from the Baku Court of Appeal dated 29 April 2011 and its envelope bearing a postmark dated 27 June 2011.

43.  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. 58510/00, 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).

44.  Turning to the circumstances of the applicant’s 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 28 April 2011 (see paragraph 38 above, Article 437 of the CAO).

45.  The Court notes that the Government did not produce any evidence showing that a copy of the decision of 28 April 2011 had been made available to the applicant before 27 June 2011. It does not find it unreasonable that the applicant waited for approximately two months for the official service of the final decision without enquiring 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).

46.  The applicant lodged his application with the Court on 5 November 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.  ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

47.  The applicant complained that the dispersal of the demonstration 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.”

A.  Admissibility

48.  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. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

49.  The applicant argued that at the material time there was a de facto blanket ban on public assemblies in Baku. He also argued that his arrest and conviction under Article 310.1 of the CAO had been arbitrary. He further submitted that the authorities had not taken into consideration the fact that the organisers had given prior notice of the demonstration to the relevant authority, and that the demonstration had been intended to be peaceful and had been held in a peaceful manner.

50.  The Government submitted that the domestic legislation regulating freedom of assembly had been precise and foreseeable. They also submitted that the demonstration had been organised in breach of the provisions of national law. The Government argued that the dispersal of the demonstration had pursued the aim of protecting the rights and freedoms of others and preventing disorder, and had been in the interests of national security.

2.  The Court’s assessment

51.  Having regard to the material in the case file and the parties’ submissions, the Court notes that the issues raised by the present complaint are essentially the same as those examined in the Gafgaz Mammadov case (cited above). The facts of 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 judgment also apply to the present 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 arbitrarily banned or dispersed (ibid., § 55); doubts about the credibility of the formal grounds, namely Article 310.1 of the CAO, relied on by the authorities to arrest and convict the applicant, who was a participant in an unauthorised demonstration (ibid., §§ 56 and 62); a failure by the authorities to take into consideration the fact that notice of the demonstration had been given (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). Having regard to the above, in the Gafgaz Mammadov judgment 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 present 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.  There has accordingly been a violation of Article 11 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

54.  The applicant complained under Article 6 of the Convention that he had not had a fair 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

55.  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

56.  The applicant submitted, in particular, that he had not been served, either prior to the hearing before the first-instance court in the first set of proceedings or subsequently, with a copy of the administrative-offence report issued on him or with other material from his case file. He further submitted that he had not been represented by a lawyer at the pre-trial stage, nor had he effective legal assistance during the trial. The courts had merely based their findings on the administrative-offence report and on the statements of police officers who had been the sole witnesses questioned during the trial. Lastly, the appellate court had ignored his requests to hear evidence from particular witnesses in his favour and to examine photographs and video recordings made during his arrest and time in police custody.

57.  The Government submitted that the administrative proceedings concerning the applicant had been in line with national legislation. They argued in particular that the administrative-offence case had not been complex, and therefore the applicant had been able to prepare his own defence. In addition, the applicant had been present at the hearings before the first-instance court and had been represented by State-funded lawyers. Lastly, before the Court of Appeal, in the first set of proceedings, he had been represented by a lawyer of his own choice.

2.  The Court’s assessment

58.  Similar facts and complaints have already been examined in the Gafgaz Mammadov judgment (cited above) in which the Court found a violation of Article 6 § 3 taken together with Article 6 § 1 of the Convention. As in Gafgaz Mammadov, the applicant in the present case was arrested and convicted following an accelerated procedure under the CAO. He was held in police custody without any contact with the outside world, presented with charges, without receiving a copy of the administrative-offence report, and shortly afterwards (in a matter of hours) taken to a court and convicted. The applicant was not given an opportunity to appoint a lawyer of his own choosing at the pre-trial stage or for the hearing before the first-instance court in the first set of proceedings. Representation by the State-funded lawyer during that hearing was purely formalistic: during the hearing that lawyer did not submit any written objections, complaints or motions on the applicant’s behalf. The domestic courts relied strongly on the statements given by the police officers and the administrative-offence report prepared by the police. The domestic courts also completely disregarded important factual circumstances and legal issues of the case, inter alia, the peaceful nature of the unauthorised demonstration (compare Gafgaz Mammadov, cited above, §§ 74-96; compare also Ibrahimov and Others v. Azerbaijan, nos. 69234/11, 69252/11 and 69335/11, §§ 93-115, 11 February 2016, and Huseynli and Others v. Azerbaijan, nos. 67360/11, 67964/11 and 69379/11, §§ 110-35, 11 February 2016).

59.  In addition, in both sets of proceedings the appellate court ignored the applicant’s requests to hear evidence from particular witnesses in his favour and to examine photographs and video recordings.

60.  In contrast with Gafgaz Mammadov in the present case the domestic courts examined the case in two sets of proceedings and in the second set of proceedings the applicant had sufficient time and facilities to prepare his defence, and had an opportunity to hire a lawyer of his own choosing. Nevertheless, the first-instance court during the second set of proceedings and the appellate court in both sets of proceedings did not acknowledge or remedy the above-mentioned shortcomings of the earlier stages of the proceedings.

The Court therefore considers that the said difference between Gafgaz Mammadov and the present case cannot compel it to deviate from its findings in that judgment, and finds that the administrative proceedings in the present case, considered as a whole, were not in conformity with the guarantees of a fair hearing under Article 6 §§ 1 and 3 of the Convention.

IV.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

61.  The applicant complained that his arrest, custody and administrative detention following his participation in the demonstration had been in breach of Article 5 of the Convention. The relevant parts of that Article read as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)  the lawful detention of a person after conviction by a competent court; ...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...

2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A.  Admissibility

62.  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

63.  The applicant argued that his arrest and administrative detention under Article 310.1 of the CAO (failure to comply with a lawful order of a police officer) had been arbitrary, since he had been simply participating in a peaceful demonstration and had not disobeyed any police orders. He also argued that his pre-trial detention had been unlawful because no administrative-arrest report (inzibati qaydada tutma haqqında protokol) had been prepared in order to record it. The applicant further complained that his arrest and custody had not been in conformity with domestic procedural rules, in particular because he had not been given an opportunity to contact his relatives; his rights, including the right to have a lawyer, had not been properly explained to him; and he had not been served with a copy of the administrative-offence report drawn up on him.

64.  The Government argued that the applicant’s arrest had been in conformity with the CAO. 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. The Government 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 the relevant note had been made in the administrative-offence report.

2.  The Court’s assessment

65.  Having regard to the material and the parties’ submissions in the applicant’s case, the Court notes that the facts of this case and the issues under Article 5 of the Convention raised by it 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 case. In that judgment, the Court noted in particular that the measures applied by the authorities, namely arrest and remand in custody followed by a prison sentence of several days had pursued aims unrelated to the formal grounds relied on to justify the deprivation of liberty, and implied an element of bad faith and arbitrariness (ibid., § 108). Having regard to the above, the Court found that the deprivation of liberty of the applicant in the Gafgaz Mammadov judgment had been arbitrary.

66.  Having regard to the facts of the applicant’s 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.

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

68.  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.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

69.  The applicant also complained that, in violation of Article 13 of the Convention, he did not have an effective remedy to protect his right to freedom of assembly.

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

71.  The Court notes that the applicant’s complaint concerning an alleged violation of the right to an effective remedy is linked to the complaints examined above, and must therefore likewise be declared admissible.

72.  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.

VI.  ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

73.  By a fax of 9 September 2014 the applicant’s representative Mr Aliyev introduced a new complaint on behalf of the applicant, arguing that the seizure from his office of the entire case file relating to the applicant’s pending case before the Court, together with all the other case files, had amounted to a hindrance to the exercise of the applicant’s right of individual petition under Article 34 of the Convention, the relevant parts of which read as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

A.  The parties’ submissions

74.  The submissions made by the applicant and the Government were identical to those made by the parties in respect of the same complaint raised in the case of Annagi Hajibeyli v. Azerbaijan where the applicant was also represented by Mr I. Aliyev (see Annagi Hajibeyli v. Azerbaijan, no. 2204/11, §§ 57-60, 22 October 2015).

B.  The Court’s assessment

75.  In Annagi Hajibeyli, having examined an identical complaint based on the same facts, the Court found that the respondent State had failed to comply with its obligations under Article 34 of the Convention (ibid., §§ 64-79). The Court considers that the analysis and finding it made in the Annagi Hajibeyli judgment also apply to the present case and sees no reason to deviate from that finding.

76.  The Court therefore finds that the respondent State has failed to comply with its obligations under Article 34 of the Convention.

VII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

77.  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

78.  In respect of non-pecuniary damage the applicant claimed 10,000 euros (EUR).

79.  The applicant also claimed EUR 240 in respect of pecuniary damage sustained by his family during the administrative-offence proceedings against him, inter alia, expenses related to purchase of food for the applicant, notary and postal fees.

80.  The Government submitted that the applicant’s claim in respect of non-pecuniary damage was unsubstantiated and excessive. They considered that, in any event, an award of 3,000 Azerbaijani manats (AZN) would constitute sufficient just satisfaction.

81.  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 EUR 8,000 under this head, plus any tax that may be chargeable on this amount.

82.  As to the claim in respect of pecuniary damage, the Court does not find any causal link between the damage claimed and the violations found (see Fatullayev v. Azerbaijan, no. 40984/07, § 186, 22 April 2010). The Court therefore dismisses the applicant’s claim in respect of pecuniary damage.

B.  Costs and expenses

83.  The applicant claimed EUR 4,150 for legal fees and EUR 1,178 for translation expenses incurred before the domestic courts and the Court. In support of his claim, he submitted contracts for legal services of Mr I. Aliyev and Mr K. Bagirov and translation services of Mr R. Aliyev.

84.  The applicant explained that Mr Bagirov had begun to represent him before the Court when the communication stage of the proceedings had been in progress. The involvement of a second lawyer had been indispensable because at the material time Mr. I. Aliyev had been in detention.

85.  The Government considered that the claim was excessive and could not be regarded as reasonable as to quantum. In particular, they noted that the contract for legal services signed between the applicant and Mr I. Aliyev contained a provision about payment to Mr Aliyev of the legal fees incurred before the domestic courts. However, the applicant had not in fact been represented before the domestic courts by Mr Aliyev. In addition, the applicant had failed to appropriately substantiate that it had been necessary to engage another lawyer, Mr K. Bagirov, to represent him before the Court. Lastly, the applicant had failed to prove that the expenses for translation services had been necessarily incurred.

86.  The Government submitted that, taking into account the above considerations, the amount of AZN 1,500 should provide sufficient reimbursement of costs and expenses.

87.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that in the proceedings before it the applicant was initially represented only by Mr I. Aliyev, whereas Mr. K. Bagirov joined the proceedings as a representative during the communication stage. It accepts that in the circumstances of the case the involvement of the latter was necessary.

88.  Taking into account the above considerations and the documents in its possession indicating the role of each lawyer in the proceedings, the Court awards EUR 1,000 in respect of the services rendered by Mr I. Aliyev and EUR 1,000 in respect of the services rendered by Mr K. Bagirov.

89.  The Court further observes that the applicant failed to submit any evidence to support his claim for legal fees allegedly incurred before the domestic courts. It follows that no costs or expenses can be awarded in this connection.

90.  As to the claim in respect of translation expenses, the Court notes that the number of pages to be translated was lower than indicated in the contract the applicant signed with Mr R. Aliyev, because, inter alia, some of the pages to be translated in English contained extracts from international reports which had already been drafted in English. Regard being had to the said circumstance, the Court awards EUR 500 in respect of the services rendered by Mr R. Aliyev.

C.  Default interest

91.  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.  Declares the application admissible;

 

2.  Holds that there has been a violation of Article 11 of the Convention on account of the dispersal of the demonstration and the applicant’s arrest and conviction;

 

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

 

4.  Holds that there has been a violation of Article 5 of the Convention;

 

5.  Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention;

 

6.  Holds that there is no need to examine the complaint under Article 13 of the Convention;

 

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 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

8.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 September 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Anne-Marie Dougin                                                              André Potocki
Acting Deputy Registrar                                                            President