European Court of Human Rights

 

 

FIFTH SECTION

CASE OF DAMIROV AND OTHERS v. AZERBAIJAN

(Applications nos. 38158/12 and 5 others– see appended list)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

3 December 2020

 

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

In the case of Damirov and Others v. Azerbaijan,

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

          Mārtiņš Mits, President,
          Latif Hüseynov,
          Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications (nos. 38158/12 and 5 others, see appended table) 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 Elchin Musa oglu Damirov and others (see appended table) (“the applicants”), on the various dates indicated in the appended table;

the decision to give notice to the Azerbaijani Government (“the Government”) of the complaints under Articles 5, 6, 10 and 11 of the Convention and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 5 November 2020,

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

INTRODUCTION

1.  The present applications concern the applicants’ arrests and the administrative proceedings against them in relation to their intention to participate in peaceful demonstrations. The applicants alleged, in particular, that their arrest and conviction had been an unlawful interference with their right to freedom of assembly under Article 11 of the Convention and contrary to the guarantees of Articles 5 and 6 of the Convention. In addition, some applicants raised complaints under Article 10 of the Convention.

THE FACTS

2.  The applicants were represented by Mr R. Mustafazade and Mr A. Mustafayev, lawyers based in Azerbaijan.

3.  The Government were represented by their Agent, Mr Ç. Əsgərov.

4.  The circumstances relating to the applicants’ arrest and custody, and the subsequent administrative proceedings against them are similar to those in Huseynli and Others v. Azerbaijan (nos. 67360/11 and 2 others, §§ 5-55, 11 February 2016) and Huseynov and Others v. Azerbaijan (nos. 34262/14 and 5 others, §§ 4-30, 24 November 2016).

5.  Notably, the applicants, who were opposition-oriented activists, intended to participate in the peaceful demonstrations planned for 8 and 22 April 2012. They were arrested on various dates while distributing leaflets inviting to participate in the authorised demonstration of 8 and 22 April 2012 and subsequently convicted under the Code of Administrative Offences (“the CAO”) to various administrative detention terms. Further information concerning the applications is set out in the appended table.

THE LAW

I. JOINDER OF THE APPLICATIONS

6.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. THE GOVERNMENT’S OBJECTION OF NON-COMPLIANCE WITH THE SIX-MONTH rule

7.  The Government submitted that the applicant in application no. 69126/12 had failed to comply with the six-month rule as the final decision in this case had been adopted on 13 April 2012 by the Baku Court of Appeal. They argued that even assuming that the copy of this decision had been served to the applicant on 10 May 2012 as argued by the latter, this date could not be taken as a starting point for the six-month rule since the applicant and his lawyer were present during the appeal hearing and were aware of the court’s decision.

8.  The applicant disagreed with the Government and claimed that he had received the final decision on 10 May 2012. In support of his allegation, he submitted a copy of the envelope from the Baku Court of Appeal with a post stamp dated 10 May 2012. He argued that he could not have prepared a quality application before the Court without reading the text of the decision of 13 April 2012, containing factual and legal reasoning.

9.  The Court notes that the Government did not provide any evidence demonstrating that the final decision had been served on the applicant in good time. In this context, the Court notes that it had already examined a similar situation and concluded that the applicant had complied with the six‑month rule by lodging his application before the Court within six months of the date of service of the final decision (see Mahammad Majidli v. Azerbaijan nos. 24508/11 and 44581/13, §§ 31-38, 16 February 2017).

10.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. The Court therefore concludes that the applicant complied with the six-month rule. The Court accordingly dismisses the Government’s objection.

III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

11.  The applicants complained that their arrest and conviction had been measures used by the authorities to prevent them from participating in peaceful demonstrations. They invoked 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.”

12.  The applicants in applications nos. 38158/12 and 38170/12 also complained that their arrests and convictions had been in breach of his freedom of expression, as provided for in Article 10 of the Convention, which reads as follows:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A.    Admissibility

13.  The Court notes that the applicants’ complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

1.    The scope of the applicant’s complaints in applications nos. 38158/12 and 38170/12

14.  The Court notes that the protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly enshrined in Article 11. Accordingly, the issue of freedom of expression cannot be separated from that of freedom of assembly and it is not necessary to consider each provision separately. In the circumstances of the present case, the Court considers that Article 11 takes precedence as the lex specialis for assemblies and will deal with the case principally under this provision, whilst interpreting it in the light of Article 10 (see Ezelin v. France, §§ 35 and 37, Series A no. 202, 26 April 1991, Kudrevičius and Others v. Lithuania [GC], no. 37553/05, §§ 85-86, 15 October 2015, and Huseynov and Others, nos. 34262/14 and 5 others, § 42, 24 November 2016).

2.    Submissions by the parties

15.  The submissions made by the applicants and the Government were similar to those made by the relevant parties in respect of the similar complaints raised in the cases of Huseynli and Others nos. 67360/11 and 2 others, §§ 81‑83, 11 February 2016 and Huseynov and Others (cited above, §§ 43‑44).

3.    The Court’s assessment

16.  Having regard to the facts of the present cases and their clear similarity to those of Huseynli and Others (cited above, §§ 97-101) and Huseynov and Others (cited above, §§ 45-51) on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in those judgments, and finds that in the present cases the applicants’ right to freedom of assembly was breached for the same reasons as those outlined in the above-mentioned judgments.

17.  There has accordingly been a violation of Article 11 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

18.  The applicants complained under Article 6 of the Convention that in the proceedings concerning the alleged administrative offences, they had not had a public and fair hearing. The relevant parts of Article 6 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;

(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

19.  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

20.  The submissions made by the applicants and the Government were similar to those made by the relevant parties in respect of the similar complaints raised in the cases of Gafgaz Mammadov (no. 60259/11, §§ 72‑73, 15 October 2015), Huseynli and Others (cited above, §§ 105‑109), Huseynov and Others (cited above, §§ 54-56) and Bayramov nos. 19150/13 and 52022/13, §§ 52-53, 6 April 2017).

2.    The Court’s assessment

21.  Having regard to the facts of the present cases and their clear similarity to those of Gafgaz Mammadov (cited above, §§ 76-96), Huseynli and Others (cited above, §§ 112-135), Huseynov and Others (cited above, §§ 57-58) and Bayramov (cited above, §§ 54-55 and 57-58) on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in those judgments, and finds that the administrative proceedings in the present cases, considered as a whole, were not in conformity with the guarantees of a fair hearing.

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

23.  Having regard to the above finding, there is no need to examine the arguments of some of the applicants concerning the alleged lack of a public hearing (see, mutatis mutandis, Mirzayev and Others v. Azerbaijan nos. 12854/13 and 2 others, § 30, 20 July 2017).

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

24.  The applicants complained that their arrest, custody 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:

(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

25.  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 is not inadmissible on any other grounds and must therefore be declared admissible.

B.     Merits

1.    The parties’ submissions

26.  The submissions made by the applicants and the Government were similar to those made by the relevant parties in respect of the similar complaints raised in the cases of Gafgaz Mammadov (cited above, §§ 99‑102), Huseynli and Others (cited above, §§ 138-141) and Huseynov and Others (cited above, §§ 62-65).

2.    The Court’s assessment

27.  Having regard to the facts of the present cases and their clear similarity to those in the cases of Gafgaz Mammadov (cited above, §§ 107‑109), Huseynli and Others (cited above, §§ 146-148) and Huseynov and Others (cited above, §§ 66‑68) on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in those judgments, and finds that in the present cases the applicants’ right to liberty was breached for the same reasons as those outlined in the above‑mentioned judgments.

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

29.  In view of the nature and the scope of its finding above, the Court does not consider it necessary to examine the applicants’ other complaints under Article 5 of the Convention (see Gafgaz Mammadov, cited above, § 110).

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  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.”

31.  In respect of non-pecuniary damage, the applicants in applications nos. 38158/12, 69642/12 and 69648/12 claimed each 21,000 euros (EUR), the applicants in applications nos. 38170/12 and 69126/12 claimed each EUR 23,500; and the applicant in application no. 69131/12 claimed EUR 21,500. In respect of costs and expenses, namely, for legal fees incurred in the domestic proceedings and the proceedings before the Court the applicants in applications no. 38158/12, 69648/12, 38170/12, 69126/12 and 69131/12 claimed EUR 2,800 each; the applicant in application no. 69642/12 claimed EUR 2,500. In support of their claims, the applicants submitted contracts for legal services.

32.  The Government considered that the applicants’ claims were unsubstantiated and excessive.

33.  Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant EUR 8,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on the applicants. As regards the applicants’ claims for costs and expenses, the Court notes that in the proceedings before it the applicants were represented by the same lawyers, Mr Mustafazade and Mr Mustafayev, whose submissions in all six cases were similar. Taking this consideration into account, the Court awards a total amount of EUR 3,000 to the applicants jointly in respect of the legal services rendered by Mr Mustafazade and Mr Mustafayev, to be paid directly into the representatives’ bank account.

34.  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.      Holds that there has been a violation of Article 11 of the Convention on account of the applicants’ arrest and conviction;

3.      Holds that there has been a violation of Article 6 §§ 1 and 3 of the Convention in respect of all six applicants;

4.      Holds that there has been a violation of Article 5 of the Convention in respect of all six applicants;

5.      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 8,000 (eight thousand euros), plus any tax that may be chargeable, to each applicant, in respect of non-pecuniary damage;

(ii) EUR 3,000 (three 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 their 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;

6.      Dismisses the remainder of the applicants’ claim for just satisfaction.

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

   Martina Keller                                                                       Mārtiņš Mits
Deputy Registrar                                                                       President

APPENDIX

 

No.	Application no. and date of introduction	Applicant name year of birth place of residence	Arrest and conviction
	38158/12 02/06/2012	Elchin Musa oglu DAMIROV 1966 Baku	Arrested on 7 April 2012. Decision of the Narimanov District Court of 7 April 2012 convicting the applicant under Article 310.1 of the CAO to ten days’ administrative detention. The decision was upheld on appeal on 27 April 2012.
	38170/12 04/06/2012	Jalal Muzaffar oglu GARAYEV 1964 Baku	Arrested on 7 April 2012. Decision of the Khatai District Court of 7 April 2012 convicting the applicant under Article 310.1 of the CAO to fifteen days’ administrative detention. The decision was upheld on appeal on 24 April 2012.
	69126/12 16/10/2012	Nihad Gazanfar oglu HUSEYNOV 1991 Baku	Arrested on 6 April 2012. Decision of the Sabail District Court of 7 April 2012 convicting the applicant under Article 310.1 of the CAO to fifteen days’ administrative detention. The decision was upheld on appeal on 13 April 2012 (the final decision was received by the applicant on 10 May 2012).
	69131/12 16/10/2012	Elnur Sabir oglu ASGAROV 1988 Baku	Arrested on 7 April 2012. Decision of the Binagadi District Court of 7 April 2012 convicting the applicant under Article 310.1 of the CAO to eleven days’ administrative detention. The decision was upheld on appeal on 18 April 2012 (the final decision was received by the applicant on 10 May 2012).
	69642/12 16/10/2012	Rasul Maarif oglu MURSALOV 1985 Zagatala	Arrested on 21 April 2012. Decision of the Nasimi District Court of 21 April 2012 convicting the applicant under Article 310.1 of the CAO to three days’ administrative detention. The decision was upheld on appeal on 4 May 2012.
	69648/12 16/10/2012	Zulfugar Rustam oglu GUBADOV 1981 Baku	Arrested on 7 April 2012. Decision of the Binagadi District Court of 7 April 2012 convicting the applicant under Article 310.1 of the CAO to ten days’ administrative detention. The decision was upheld on appeal on 16 April 2012.