European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

 

CASE OF YAGUBLU AND AHADOV v. AZERBAIJAN

 

(Applications nos. 67374/11 and 612/12)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

30 January 2020

 

 

 

 

 

 

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

 

In the case of Yagublu and Ahadov 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 Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 7 January 2020,

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

PROCEDURE

1.  The case originated in two applications (applications nos. 67374/11 and 612/12) 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 Azerbaijani nationals, Mr Tofig Rashid oglu Yagublu (Tofiq Rəşid oğlu Yaqublu - “the first applicant”) and Mr Ramiz Ahad oglu Ahadov (Ramiz Əhəd oğlu Əhədov ‑“the second applicant”), on 12 September and 14 December 2011 respectively.

2.  The applicants were represented by Mr A. Alizade and Mr I. Aliyev respectively, lawyers based in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov.

3.  The first applicant alleged that he had been ill-treated while in police custody, and the second applicant alleged that he had been ill-treated while being arrested. Both applicants alleged that the domestic authorities had failed to investigate their complaints in this regard. The first applicant also complained of the unlawfulness of his administrative arrest during the dispersal of an assembly and his conviction. The second applicant further complained that he had been hindered in the exercise of his right of individual petition.

4.  On 18 May and 11 December 2017 the Government were given notice of the complaints under Article 3 of the Convention (applications nos. 67374/11 and 612/12), Article 5, Article 6 §§ 1 and 3 (b), (c) and (d) and Article 11 of the Convention (application no. 67374/11); and Article 34 of the Convention (application no. 612/12), and the remainder of both applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicants were born in 1961 and 1954 respectively and live in Baku.

A.  Background information

6.  On 2 April 2011 the applicants attended an unauthorised opposition demonstration held at Fountains Square in Baku. The demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants were demanding free and fair elections, democratic reforms, freedom of assembly, and the release of people arrested during some previous demonstrations.

B.  The applicants’ alleged ill-treatment and subsequent proceedings

1.  The first applicant

(a)  The first applicant’s alleged ill-treatment

7.  The first applicant was the Deputy Chairman of the Musavat Party. He also worked as a columnist for the Yeni Musavat newspaper.

8.  Upon arriving at Fountains Square at around 3 p.m. on 2 April 2011, the first applicant was arrested by police officers and taken to the Nasimi district police office, together with other participants in the demonstration, including M.H. and N.S.

9.  After his arrival at the police office, the first applicant was placed in the exercise yard of the temporary detention centre of the Nasimi district police office with other people who had been arrested, including M.H. and N.S. The applicant was allegedly beaten by S.N., who was the Deputy Head of the Nasimi district police office, another police officer called J.A., and a person wearing plain clothes whom the applicant did not know. According to the applicant, S.N. swore at him, kicked him in his abdominal area, and punched him. The applicant further submitted that after S.N. had kicked him in his testicles, he lost consciousness owing to the severe pain and, despite his requests, was not provided with the requisite medical assistance.

10.  The Government maintained that the first applicant had not been subjected to torture or inhuman or degrading treatment in police custody.

(b)  Administrative court proceedings against the first applicant

11.  According to the first applicant, at around midnight on the day of his arrest he was taken to the Nasimi District Court. According to the Government, he was taken to the Nasimi District Court at around 5 p.m. on 2 April 2011. The first applicant stated before the court that he was not guilty of disobeying the lawful order of a police officer. He did not have any lawyer at the court hearing, and insisted on being allowed to have a lawyer of his own choice and inviting witnesses to testify on his behalf. However, the judge disregarded his requests. The hearing was brief.

12.  The court found that the first applicant had failed to stop participating in an unauthorised demonstration. The court convicted him under Article 310.1 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences (“the CAO”) and sentenced him to eight days’ administrative detention. It relied on the testimonies of two police officers, A.E. and E.S., who testified that the applicant had been attempting to hold an unauthorised demonstration and had continued his actions, disobeying a request they had made for him to stop participating in the unlawful demonstration.

13.  During the court hearing on 2 April 2011 the first applicant also complained that on that day he had been beaten at the police station, and he asked the court to facilitate the provision of the requisite medical assistance, but his request was ignored.

14.  On 4 April 2011 the first applicant lodged an appeal with the Baku Court of Appeal, arguing that his arrest and conviction had been unlawful and the hearing before the first-instance court had not been fair - in particular, he had not been allowed to have a lawyer of his own choice, and his procedural application to call witnesses to testify on his behalf had been dismissed. He also complained of ill-treatment, and stated that he still felt unwell and had not received the requisite medical assistance.

15.  On 8 April 2011 the Baku Court of Appeal dismissed the first applicant’s appeal. It also held that he had had a State-appointed lawyer at the first-instance court, and that his ill-treatment claims had not been proved.

(c)  Remedies used by the first applicant in relation to the alleged ill-treatment

16.  On 6 April 2011 the first applicant lodged a complaint with the Nasimi District Court under the procedure for judicial review of prosecuting authorities’ actions or decisions. Relying on Articles 3, 5, 6, 11, 13 and 14 of the Convention, he complained regarding his ill-treatment on 2 April 2011, the unfairness of his conviction, the violation of his freedom of assembly, and the discrimination against him on the basis of his political views.

17.  By a decision of 12 April 2011, the Nasimi District Court refused to admit the case, and sent the complaint to the Nasimi district prosecutor’s office, claiming that the latter had the authority to consider it.

18.  On an unspecified date in April 2011 the first applicant applied to the Baku prosecutor’s office, requesting that a criminal investigation into the matter be instituted.

19.  According to a forensic report dated 15 April 2011, there was an abrasion (sıyrıq) on the first applicant’s left calf caused by a blunt object, which could have been inflicted on 2 April 2011.

20.  By a decision of 28 April 2011, the Nasimi district prosecutor’s office refused to open a criminal case, on the grounds that the first applicant’s beating by S.N. had not been proved. It mainly relied on the findings of an inquiry conducted by the Nasimi district prosecutor’s office into a similar complaint of ill-treatment from M.H., who had been detained with the first applicant on 2 April 2011. Within the framework of that investigation, the first applicant, when questioned as a witness, and M.H. and N.S., who had been detained with him, had given similar testimonies about being ill-treated by S.N. and other officers while in police custody.

21.  The Deputy Head of the Nasimi district police office, S.N., denied any involvement in the first applicant’s case, stating that he had not been at the police office at the material time. Police officers V.M., M.R., E.S. and A.E. stated that the first applicant had not been detained in the temporary detention facility and had not been beaten. Police officer E.S. added that the injury on the first applicant’s leg might have been caused during his arrest, when he had resisted being put in the police car.

22.  In an appeal of 31 May 2011, filed with the Nasimi District Court against the decision to refuse to open a criminal case, the first applicant reiterated his previous complaints, pointing out that: his forensic examination had taken place so long after the event that most of the injuries on his body had disappeared; the prosecutor’s office had not identified the precise circumstances leading to his injury, in particular, the place and time that his injuries had been inflicted; he had not been called to testify, but his witness statement in M.H.’s case had been used instead, and no separate investigation into his complaint had been conducted.

23.  On 21 June 2011 the Nasimi District Court held that the Nasimi district prosecutor office’s decision had been lawful. It stated that the first applicant’s complaint had been added to the investigation into M.H.’s similar complaint stemming from the same facts, and that the relevant investigative actions had also been carried out in respect of the first applicant.

24.  By a judgment of 14 July 2011, the Baku Court of Appeal dismissed the first applicant’s appeal of 30 June 2011, and upheld the first-instance court’s decision.

2.  The second applicant

(a)  The second applicant’s alleged ill-treatment

25.  The second applicant was a member of the Popular Front Party of Azerbaijan.

26.  At around 2 p.m., while the second applicant was chanting during the demonstration on 2 April 2011, four police officers approached him and twisted his arms behind his back in order to put him in a police car. At this point the Deputy Head of the Nasimi district police office, S.N., who allegedly knew the second applicant from previous demonstrations, insulted him and twisted his arm even more, saying to the police officers, “You should not twist [his arms], but break them, like this”, in response to which the second applicant shouted out because of the pain. Shortly thereafter, under S.N.’s orders, the police officers beat him with truncheons. The second applicant lost consciousness and lay on the ground for several minutes. After he regained consciousness, the officers dragged him to a police car and took him to the Sabail district police office. While in police custody the second applicant requested a medical examination and assistance, but his request was refused.

27.  The second applicant was reprimanded for participating in a public assembly, under Article 298 (violation of the rules on holding public assemblies) of the CAO, and released at around 5 p.m. that day.

(b)  Remedies used by the second applicant in relation to the alleged ill‑treatment

28.  On 2 April 2011 the second applicant complained to the Sabail district prosecutor’s office that he had been beaten and insulted during his arrest as a result of being an opposition member. He requested that criminal proceedings be instituted.

29.  A forensic report dated 4 April 2011 stated that the second applicant had a bruise (qançır) on his left arm which could have been caused on 2 April 2011.

30.  The second applicant sought medical assistance at a medical centre, which provided him with outpatient treatment. According to his medical records of 5 April 2011, issued by the medical centre, the applicant had contusion of the soft tissues of his left upper arm and thorax, thoracic bruising, and haemarthrosis of his right elbow joint. He was prescribed outpatient treatment, including a sling for his left upper arm and medicine. The medical records also stated that the second applicant was experiencing chest pain while breathing and had a haematoma and bruising on his upper arm, and that his upper arm’s functions were limited.

31.  The second applicant submitted the medical records to the Sabail district prosecutor’s office, as well as photos of him taken during the demonstration which had been published in the 24-25 April 2011 issue of the Azadlig newspaper, and in which S.N. and other police officers could be seen twisting his arm.

32.  The Sabail district prosecutor’s office questioned four police officers who had taken part in the second applicant’s arrest. S.N. denied the ill‑treatment allegations, stating that he had not twisted the applicant’s arms. Police officers A.R., V.S. and A.A. claimed that they had not used physical force against the second applicant during his arrest, and that S.N. had not twisted his arms. A.A. also mentioned that the injury could have been inflicted when the second applicant had resisted the police by pushing them and hitting a police car with his hands.

33.  By a decision of 5 May 2011, the Sabail district prosecutor’s office refused to open a criminal case, finding that there was no evidence that the second applicant had been beaten by police during his arrest. It relied mainly on the statements of the police officers, and held that the bruise on the second applicant’s arm mentioned in the forensic report had been caused when he had demonstrated resistance to the police.

34.  On 3 June 2016 the second applicant lodged a criminal complaint with the Sabail District Court against the refusal to open a criminal case. He complained that the district prosecutor’s office had failed to conduct an effective investigation into his ill-treatment complaints. He also pointed out that the prosecutor’s office had relied on the testimonies of witnesses who had denied that S.N. had twisted his arms, while the photos he had submitted proved the contrary, and that the decision to refuse to open a criminal case was silent as to his other injuries confirmed by the medical records of 5 April 2011.

35.  On 13 June 2011 the Nasimi District Court dismissed the second applicant’s complaint, finding the investigator’s decision lawful. The court’s decision was silent as to the second applicant’s specific complaints.

36.  In an appeal of 16 June 2011, the second applicant reiterated his previous complaints.

37.  On 24 June 2011 the Baku Court of Appeal upheld the first-instance court’s decision as lawful.

C.  Seizure of the second applicant’s case file

38.  On 8 August 2014 criminal proceedings were instituted against Mr I. Aliyev, who represented the second applicant before the Court. On 8 and 9 August 2014 the investigating authorities seized a large number of documents from Mr I. Aliyev’s office, including all the case files relating to the ongoing proceedings before the Court (see Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, 20 September 2018). The file relating to the present application was also seized in its entirety.

39.  On 25 October 2014 the investigating authorities returned to Mr Aliyev’s lawyer a number of the case files concerning the applications lodged before the Court, including the file relating to the present application.

II.  RELEVANT DOMESTIC LAW

40.  The relevant domestic law concerning the prohibition of ill-treatment is summarised in the case of Mustafa Hajili v. Azerbaijan (no. 42119/12, §§ 26-28, 24 November 2016).

41.  The relevant domestic law concerning administrative proceedings and freedom of assembly is summarised in the cases of Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 27-39, 15 October 2015), and Huseynli and Others v. Azerbaijan (nos. 67360/11 and 2 others, §§ 56-66, 11 February 2016).

THE LAW

I.  JOINDER OF THE APPLICATIONS

42.  Having regard to the similar subject matter of the applications, the Court has decided to join the applications in accordance with Rule 42 § 1 of the Rules of Court.

II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

43.  The first applicant complained that he had been ill-treated while in police custody on 2 April 2011, and the second applicant complained that he had been ill-treated while being arrested on the same day. Both applicants complained that the domestic authorities had failed to conduct an effective investigation into their ill-treatment. The applicants relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  Admissibility

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

B.  Merits

1.  Alleged ill-treatment of the applicants by the police

(a)  The parties’ submissions

(i)  The first applicant

45.  The first applicant maintained his complaints.

46.  The Government submitted that the first applicant had not been subjected to inhuman or degrading treatment in police custody.

47.  The Government argued that the first applicant had given conflicting description of the alleged ill-treatment. They further submitted that the forensic report did not establish that the first applicant had been subjected to ill-treatment in police custody, since the injury noticed by the forensic expert could not have been sustained during the events described by the applicant. Moreover, the Government pointed out that the first applicant himself had failed to obtain any medical evidence to prove his allegations of ill-treatment and challenge the forensic report, which showed that no injuries had been found on his person.

(ii)  The second applicant

48.  The second applicant maintained his complaints.

49.  The Government maintained that the second applicant had not complained to the prosecuting authorities that he had been beaten by the police officers, and that he failed to submit any piece of evidence indicating that the police officers had subjected him to the excessive use of force. The Government further submitted that the domestic authorities had concluded that the injury on the second applicant’s person had been caused as a result of his resistance during his arrest, when he had kicked the police officers and hit the police car with his hands while being transferred to the police station in connection with an administrative offence.

(b)  The Court’s assessment

50.  The Court refers to the principles established in its case‑law regarding the substantive limb of Article 3 set out in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-87, ECHR 2015), which are equally pertinent to the present case.

51.  The Court notes that the existence of an abrasion on the first applicant’s left calf was established by the forensic report dated 15 April 2011, and the Government did not dispute that fact in the domestic proceedings or before the Court. The forensic report concluded that the injury had been caused by a blunt object and could have been inflicted on 2 April 2011 (see paragraph 19 above). It is undisputed that the police arrested the first applicant and took him to the Nasimi district police office on that date.

52.  The first applicant was detained together with M.H., who later testified as a witness in the domestic proceedings, stating that the first applicant had been beaten by the police while in police custody on 2 April 2011. The Court has already found a violation of Article 3 of the Convention under its substantive limb in respect of M.H., in that he was beaten by the police in the exercise yard of the temporary detention centre of the Nasimi district police office on 2 April 2011 (see Mustafa Hajili v. Azerbaijan, no. 42119/12, §§ 29-44, 24 November 2016).

53.  In this connection, the Government submitted that the injury found on the first applicant’s person had not been sustained while he had been in police custody. However, the Government did not submit any evidence in support of this argument, nor is there any information indicating that there was any injury on the first applicant’s body before his arrest by the police. The Court also cannot overlook the fact that, in their decisions, neither the investigating authorities nor the domestic courts gave any explanation of how that injury had been caused.

54.  As regards the second applicant, the existence of a bruise on his left arm was confirmed by the forensic report of 4 April 2011, which concluded that the injury could have been inflicted on 2 April 2011 (see paragraph 29 above). In that connection, the Court notes that the parties did not provide it with a copy of the forensic report. It is also undisputed that on 2 April 2011 the police arrested the second applicant and took him to the Sabail district police office.

55.  Moreover, the medical report of 5 April 2011, issued following the second applicant having undergone a medical examination at a medical facility on his own initiative, established that he had sustained further injuries not mentioned in the forensic report of 4 April 2011 (see paragraph 30 above). The Government did not dispute that fact in the domestic proceedings or before the Court. The Court also notes that the second applicant submitted photos of him in which S.N. and other police officers could be seen twisting his arm during the dispersal of the demonstration. Although the Government did not comment on his photos in particular, they did not dispute the authenticity of the photos in either the domestic proceedings or the proceedings before the Court.

56.  The Government submitted that the second applicant’s injury on his left arm had been sustained when he had pushed the police officers who had tried to arrest him during the dispersal of the assembly, and when his hand had come into contact with the police vehicle during his arrest. However, such an account of events was not supported by the material in the case file. In particular, it has not been shown that the applicant had used violence against the police or posed a threat to them. Furthermore, according to the medical report of 5 April 2011, the second applicant sustained injuries on various parts of his body. The Court notes that the very fact that those injuries were inflicted in the course of the second applicant’s arrest by the police raises a serious issue under Article 3 of the Convention, and it is incumbent on the State to provide a plausible explanation for such a situation. Neither the investigating authorities nor the domestic courts gave such an explanation in their decisions.

57.  In these circumstances, the Court considers that the respondent Government have failed to discharge their burden of proof and submit any evidence or plausible explanation refuting the applicants’ allegations of ill‑treatment. Therefore, the Court finds beyond reasonable doubt that the injuries found on the applicants’ bodies were sustained as a result of the ill‑treatment against them on 2 April 2011 during the first applicant’s detention in police custody and the second applicant’s arrest.

58.  As to the seriousness of the acts of ill-treatment, the Court considers that the applicants’ ill‑treatment must have caused them physical pain and suffering. Moreover, the ill-treatment in question and its consequences must also have caused them considerable mental suffering, diminishing their human dignity. In these circumstances, the Court considers that the ill‑treatment complained of was sufficiently serious to attain the minimum level of severity to fall within the scope of Article 3 and to be considered inhuman and degrading treatment.

59.  Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb in respect of the applicants.

2.  Alleged failure to carry out an effective investigation

(a)  The parties’ submissions

60.  The applicants maintained their complaints.

61.  The Government submitted that the domestic authorities had conducted an effective investigation into the applicants’ allegations of ill‑treatment. The investigating authorities had ordered forensic examinations in respect of both of them and had questioned the relevant witnesses. In respect of the second applicant, the Government noted that the authorities had questioned only police officers as witnesses, because they had not had any list or knowledge of other participants who had attended the assembly. They also noted that the applicant had failed to lodge a procedural application to examine other witnesses in the domestic proceedings. Following a thorough and comprehensive inquiry, the investigating authorities had decided not to institute criminal proceedings. The Government further submitted that the domestic courts had also duly examined the applicants’ allegations of ill-treatment.

(b)  The Court’s assessment

62.  The Court refers to the principles established in its case‑law regarding the procedural limb of Article 3 set out in El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, §§ 182‑85, ECHR 2012), which are equally pertinent to the present case.

63.  The Court has already found that the applicants had been subjected to ill-treatment on 2 April 2011 (see paragraph 61 above). However, following a criminal inquiry, the investigating authorities refused to institute criminal proceedings in connection with the applicants’ allegations of ill‑treatment, and those decisions were upheld by the domestic courts. It remains to be assessed whether the criminal inquiries were effective, as required by Article 3 of the Convention.

64.  In this connection, the Court observes that there were numerous shortcomings in the criminal inquiries carried out by the domestic authorities.

65.  Firstly, the Court notes that the domestic authorities failed to make a serious attempt to find out what had happened, instead of relying on hasty or ill‑founded conclusions to close their investigation, and failed to take all the measures reasonably available to them to secure evidence concerning the applicants’ allegations of ill-treatment.

66.  In particular, as regards the first applicant, having claimed that the facts of the cases were similar, the prosecuting authorities mainly relied on the findings of the criminal inquiry in the case of M.H., who had been detained and subjected to ill-treatment along with the first applicant, and in whose case the applicant had testified as a witness in the domestic proceedings. The Court has already found that the criminal inquiry in the case of M.H. was flawed and in breach of Article 3 of the Convention (see Mustafa Hajili, cited above, §§ 45-53).

67.  Furthermore, the prosecuting authorities questioned two witnesses who testified in support of the first applicant’s claim, and five police officers who testified against his claim. However, the reasoning provided for the prosecutor’s decision not to institute criminal proceedings did not contain any assessment of the witness testimonies in favour of the first applicant. Nor did the prosecuting authorities or the domestic courts provide any explanation as to why those testimonies were considered less credible than the police officers’ statements (ibid., § 52).

68.  The Court notes that, in the second applicant’s case, the investigating authorities limited themselves to studying the forensic report of 4 April 2011 and questioning the second applicant and four police officers who had taken part in his arrest. However, the reasoning provided for the prosecutor’s decision not to institute criminal proceedings did not contain any mention of the medical report of 5 April 2011 that the second applicant had submitted in support of his claim that he had sustained injuries on various parts of his body as a result of being beaten by the police officers during his arrest, or the photos of him taken during the demonstration in which S.N. and other police officers could be seen twisting his arm. Accordingly, the domestic authorities did not provide any explanation as to why the pieces of evidence submitted by the second applicant were considered less credible than the police officers’ statements (see Rizvanov v. Azerbaijan, no. 31805/06, § 60, 17 April 2012).

69.  The foregoing considerations are sufficient to enable the Court to conclude that the investigations into the applicants’ claims of ill-treatment were ineffective. There has accordingly been a violation of Article 3 of the Convention under its procedural limb in respect of the applicants.

III.  ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

70.  The first applicant complained that the dispersal of the demonstration of 2 April 2011 by the police and his arrest and conviction for an administrative offence had been in breach of his right to freedom of assembly, as provided for in Article 11 of the Convention, which reads as follows:

“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

71.  The Government submitted that the first applicant had never raised this complaint before the domestic authorities. In particular, the Government pointed out that the first applicant had stated in the course of the administrative-offence proceedings that he had been walking with his friends in the centre of the city when he had been stopped by the police, and he had not submitted that he had intended to take part in the assembly. They further invited the Court to declare the first applicant’s complaints under Article 11 of the Convention inadmissible on the grounds that he had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

72.  The first applicant maintained his complaints.

73.  The Court considers that the Government’s objection as to the non‑exhaustion of domestic remedies is closely linked to the substance of the first applicant’s complaint under Article 11 of the Convention, and it must therefore be joined to the merits.

74.  The Court further 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. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

75.  The first applicant maintained his complaints.

76.  The Government submitted that there had been no interference with the first applicant’s freedom of assembly, on account of the fact that he had denied intending to take part in the assembly.

77.  The submissions made by the first applicant and the Government with respect to the dispersal of the demonstration on 2 April 2011, the first applicant’s arrest on that day and his subsequent conviction were similar to those made by the relevant parties in respect of a similar complaint raised in the case of Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 45-49, 15 October 2015).

2.  The Court’s assessment

78.  The Court notes that the case file indicates that the first applicant formally invoked Article 11 of the Convention before the domestic courts. The Court also notes that although the first applicant denied intending to take part in the public assembly only in the appeal proceedings, he challenged his arrest and conviction, which comprised an alleged interference under Article 11, complaining that he had not committed the action for which he had been convicted (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, §§ 64-65, 15 November 2018).

79.  Furthermore, the first applicant’s administrative arrest and conviction for failing to stop participating in an unauthorised demonstration, under Article 310.1 (failure to comply with a lawful order of a police officer) of the CAO, was directed at activities falling within the scope of freedom of assembly, and he was sanctioned for engaging in such activities, despite denying that he had intended to take part in the assembly in his appeal. The Court considers that, in such circumstances, the first applicant’s conviction must be regarded as constituting an interference with the exercise of his right to freedom of assembly. To hold otherwise would be tantamount to requiring him to acknowledge the acts of which he stood accused. In this respect, it should be borne in mind that the right not to incriminate oneself, although not specifically mentioned in Article 6 of the Convention, is a generally recognised international standard which lies at the heart of the notion of a fair procedure under that provision. Moreover, not accepting that a criminal conviction constituted an interference, on the grounds that an applicant denied any involvement in the acts at issue, would lock him in a vicious circle that would deprive him of the protection of the Convention (see Müdür Duman v. Turkey, no. 15450/03, § 30, 6 October 2015).

80.  The Court notes that the case file, including the domestic court decisions submitted by the parties, does not suggest that the demonstration of 2 April 2011 was violent. The Court therefore accepts the first applicant’s assertion that the demonstration had been intended to be peaceful and had been conducted in a peaceful manner up until his arrest (see Huseynli and Others v. Azerbaijan (nos. 67360/11 and 2 others, §§ 70-74 and §§ 79‑101), 11 February 2016).

81.  Having regard to the facts of the present case and the clear similarity between these facts and those in the case of Gafgaz Mammadov 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 first applicant’s right to freedom of assembly was breached for the same reasons as those outlined in that judgment (see Gafgaz Mammadov, cited above, §§ 50-68).

82.  The first applicant’s arrest and the administrative proceedings against him could not but have had the effect of discouraging him from participating in political rallies. Those measures undoubtedly have a chilling effect, which deters other opposition supporters and the public at large from attending demonstrations, and, more generally, from participating in open political debate (ibid., § 67).

83.  The Court finds that there has accordingly been a violation of Article 11 of the Convention and dismisses the Government’s objection as to the exhaustion of domestic remedies in respect of the first applicant.

IV.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

84.  The first applicant complained under Article 6 §§ 1 and 3 (c) and (d) of the Convention that he had not had a fair hearing in the proceedings concerning the alleged administrative offence since he was not given an opportunity to hire a lawyer of his own choice and to call witnesses to testify on his behalf. 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:

...

(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;

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

A.  Admissibility

85.  The Government submitted that the first applicant had failed to raise the relevant complaints before the domestic courts.

86.  The Court notes that the material before it does not support the Government’s objection in that regard. The documents included in the case file indicate that the first applicant raised these complaints in his written appeal (see paragraph 14).

87.  The Court considers that the complaints under Article 6 of the Convention raised by the first applicant are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

88.  The submissions made by the first applicant and the Government with respect to the fairness of the administrative proceedings were similar to those made by the relevant parties in respect of similar complaints raised in the cases of Gafgaz Mammadov (cited above, §§ 72-73), and Huseynli and Others (cited above, §§ 105-08).

2.  The Court’s assessment

89.  Having regard to the facts of the present case and the clear similarity between these facts and those of the Gafgaz Mammadov case and the Huseynli and Others case on the most relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in those judgments. Accordingly, the administrative proceedings in the present case, considered as a whole, were not in conformity with the guarantees of a fair hearing (see Gafgaz Mammadov, cited above, §§ 74-94 and § 96, and Huseynli and Others, cited above, §§ 110-35).

90.  There has accordingly been a violation of Article 6 §§ 1 and 3 of the Convention in respect of the first applicant.

V.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

91.  The first applicant further complained that his arrest and administrative detention had been in breach of Article 5 of the Convention, the relevant parts of which read as follows:

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

...

(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;

...

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

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

B.  Merits

1.  The parties’ submissions

93.  The submissions made by the first applicant and the Government with respect to the first applicant’s arrest on 2 April 2011 and subsequent conviction were similar to those made by the relevant parties in the case of Gafgaz Mammadov (cited above, §§ 99-102).

2.  The Court’s assessment

94.  Having regard to the facts of the present case and the clear similarity between these facts and those of the Gafgaz Mammadov case on relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in that judgment. Hence in the present case, the applicant’s right to liberty was breached, for the same reasons as those outlined in that judgment (ibid., §§ 103-109).

95.  Accordingly, there has been a violation of Article 5 § 1 of the Convention with respect to the first applicant.

VI.  ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

96.  By a fax of 9 September 2014, Mr Aliyev, who was the representative of the second applicant before the Court, lodged a new complaint on behalf of the second applicant, arguing that the seizure from his office of the entire case file relating to the applicant’s ongoing case before the Court had amounted to a hindrance of the exercise of the second applicant’s right of individual petition under Article 34 of the Convention, which reads 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

97.  The submissions made by the second applicant were similar to those made by the applicant in respect of the same complaint in the case of Annagi Hajibeyli v. Azerbaijan (no. 2204/11, §§ 57-60, 22 October 2015).

98.  The Government did not make any observations in this regard.

B.  The Court’s assessment

99.  In the case of 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 the finding that it made in the judgment of Annagi Hajibeyli also apply to the present case, and it sees no reason to deviate from the finding that depriving the applicant and his lawyer of access to the case file constituted in itself an undue interference and a serious hindrance of the effective exercise of the second applicant’s right of individual application.

100.  The Court therefore finds that the respondent State has failed to comply with its obligations under Article 34 of the Convention in respect of the second applicant.

VII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

101.  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

102.  The first applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage. The second applicant claimed EUR 15,000 in respect of non-pecuniary damage.

103.  The Government submitted that the amounts claimed by the applicants were unsubstantiated.

104.  The Court considers that the applicants have suffered non‑pecuniary damage which cannot be compensated for solely by the finding of a violation, and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the first applicant the sum of EUR 15,600 and the second applicant EUR 12,000 under this head, plus any tax that may be chargeable on these amounts.

B.  Costs and expenses

105.  The applicants claimed EUR 2,000 each for legal costs incurred in the proceedings before the Court. They submitted the relevant contracts concluded with their representatives.

106.  The Government submitted that the amounts claimed by the applicants were unsubstantiated and excessive. In that connection, the Government asked the Court to apply a strict approach in respect of the applicants’ claims. They further submitted that EUR 600 would constitute reasonable compensation for the legal costs allegedly incurred by the first applicant, and 1,000 Azerbaijani manats (AZN - EUR 500) for those incurred by the second applicant.

107.  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 the applicants were represented by lawyers. Having regard to this fact, as well as to the documents in its possession and its case-law, the Court considers it reasonable to award EUR 1,300 to each applicant, to be paid directly into their representatives’ bank accounts, covering costs under all heads, plus any tax that may be chargeable to the applicants.

C.  Default interest

108.  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.  Joins to the merits the Government’s objection of non-exhaustion of domestic remedies in respect of the first applicant’s complaint under Article 11 of the Convention and dismisses it;

 

3.  Declares the complaints under Articles 3, 5, 6 §§ 1 and 3 and Article 11 of the Convention admissible;

 

4.  Holds that there has been a violation of Article 3 of the Convention both under its substantive and procedural limbs;

 

5.  Holds that there has been a violation of Article 11 of the Convention in respect of the first applicant;

 

6.  Holds that there has been a violation of Article 5 of the Convention in respect of the first applicant;

 

7.  Holds that there has been a violation of Article 6 §§ 1 and 3 of the Convention in respect of the first applicant;

 

8.  Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention in respect of the second applicant;

 

9.  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 15,600 (fifteen thousand six hundred euros) to the first applicant, plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(ii)  EUR 12,000 (twelve thousand euros) to the second applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)  EUR 1,300 (one thousand three hundred euros) to each applicant, plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into their representatives’ bank accounts;

(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;

 

10.  Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 30 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Milan Blaško                                                                      André Potocki
Deputy Registrar                                                                       President