European Court of Human Rights

 

 

FIFTH SECTION

CASE OF ALAKBAROV AND OTHERS v. AZERBAIJAN

(Applications nos. 55503/15 and 6 others - see appended list)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

10 June 2021

 

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

In the case of Alakbarov and Others v. Azerbaijan,

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

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

Having regard to:

the applications (nos. 55503/15, 55507/15, 55510/15, 55512/15, 55520/15, 55524/15 and 55531/15) 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 seven Azerbaijani nationals, Mr Emin Aydin oglu Alakbarov (Emin Aydın oğlu Ələkbərov – “the first applicant”), Javanshir Tofig oglu Ismayilov (Cavanşir Tofiq oğlu İsmayılov – “the second applicant”), Elmir Rahman oglu Jabrayilov (Elmir Rəhman oğlu Cəbrayılov – “the third applicant”), Sabuhi Sabahaddin oglu Mammadov (Səbuhi Səbahəddin oğlu Məmmədov – “the fourth applicant”), Samir Zahir oglu Huseynov (Samir Zahid oğlu Hüseynov – “the fifth applicant”), Rovshan Aladdin oglu Gasımov (Rövşən Ələddin oğlu Qasımov-– “the sixth applicant”) and Parvin Arif oglu Yunusov (Pərvin Arif oğlu Yunusov - “the seventh applicant”) (“the applicants”), on 19 October 2015;

the decision to give notice to the Azerbaijani Government (“the Government”) of the complaints concerning Articles 5 § 1, 6 § 3 (b) and (c) and 9 of the Convention and to declare the remainder of the applications inadmissible;

the parties’ observations;

Having deliberated in private on 20 May 2021,

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

INTRODUCTION

1.  The present case concerns in particular the allegedly unlawful detention, under Article 5 § 1 of the Convention, of the applicants, who were followers of the Nursist teachings of Islam. They were detained by the police for holding an unauthorised religious meeting at the private home of the fourth applicant. The applicants also refer to Article 6 § 3 (b) and (c) and to Article 9 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 facts of the case, as submitted by the parties, may be summarised as follows.

5.  The applicants were followers of the Nursist teachings of Islam, which originated in the writings of Said Nursi, a Sunni Muslim theologian.

6.  On 2 June 2015 the applicants were visiting the fourth applicant at his private home when several police officers raided the premises. The applicants were then taken to the Gadabay District Police Office (“the Police Office”) at approximately 10 p.m.

7.  According to the applicants, they were released in the early hours of the next day and ordered to return to the police station at 9 a.m. As ordered, they arrived at the Police Office at 9 a.m. on 3 June 2015. They waited until 5 p.m., when they were taken to the Gadabay District Court. They allege that they were held in detention for a total of fourteen hours.

8.  According to the Government, the applicants were taken to the Police Office so that the records of administrative offences could be compiled, and they were released after slightly more than two hours.

9.  On 3 June 2015, by separate decisions, the Gadabay District Court found the applicants guilty of violating public order under Article 296 of the Code of Administrative Offences (hereinafter “the CAO”) and fined them 50 Azerbaijani manats (AZN - approximately 40 euros (EUR) at the material time). The fourth applicant was found guilty of violating the legislative rules on organising and holding religious meetings under Article 299.0.2 of the CAO and fined AZN 1,500 (approximately EUR 1,300). The court based its decision mainly on the statement of the police officer who had compiled the respective records of administrative offences. He told the court that he had visited the fourth applicant’s home in response to written and oral complaints from neighbours that, over the previous two days, a group of unidentified persons had been causing a public disturbance. Upon arrival he had asked the applicants, who were all dressed in long, white clothing, for their identity documents and, as some of them had tried to escape, he had invited them to proceed to the Police Office. However, as the first applicant and some others were continuing to speak loudly and to cause trouble to the neighbours, they had all been taken to the Police Office, where the police officer compiled the reports of administrative offences under Article 296 of the CAO in respect of them. Moreover, books, compact disks and other evidence promoting Nursist teachings had been found at the fourth applicant’s home and had been seized in the presence of attesting witnesses. Accordingly, a record of an administrative offence under Article 299.0.2 of the CAO had been compiled in respect of the fourth applicant. This statement was supported by the statements of two other witnessing police officers.

10.  On an unspecified date the applicants lodged appeals against the decisions of the first-instance court. They all argued that they had not been engaged in any unlawful activities, and that they had had a peaceful gathering, which had not disturbed any neighbours. The fourth applicant additionally argued that Article 299.0.2 of the CAO could only apply to religious organisations and events organised by them, whereas he had simply hosted guests, and had never had any intention of establishing an organisation or holding a meeting. The applicants requested that the appellate court summon the fourth applicant’s neighbours as witnesses for the defence.

11.  On various dates in June and July 2015, by separate decisions, the Ganja Court of Appeal dismissed the appeals and summarily upheld the decisions of the first-instance court.

12.  In the case of the fourth applicant the appellate court additionally found that, by gathering such a large number of persons at his home and unlawfully disseminating religious literature, he had violated the rules regarding the holding of religious meetings.

RELEVANT LEGAL FRAMEWORK

13.  The relevant provisions of the Code of Administrative Offences concerning proceedings in respect of administrative offences can be found in Nasirov and Others v. Azerbaijan (no. 58717/10, §§ 28-30, 20 February 2020).

14.  At the material time Articles 296 and 299.0.2 of the CAO provided as follows:

Article 296. Petty hooliganism

“Petty hooliganism, namely actions that violate public order [but are] not accompanied by the use of or threats to use force against individuals, or by the destruction or damage of property belonging to other persons

- shall be punishable by a fine in the amount of fifty to one hundred manats; depending on the circumstances of the case and taking into account the personality of the individual who committed the offence, and if the application of these measures is not sufficient, administrative arrest for up to fifteen days shall be applied.”

Article 299. Violation of the rules concerning the establishment and
activities of religious organisations

“299.0. Violations of the rules concerning the establishment and activities of religious organisations, namely:

...

299.0.2. violations of the rules provided for by the legislation in respect of the organisation and holding of religious meetings, marches and other religious ceremonies;

...

- shall be punishable by a fine in the amount of one thousand five hundred to two thousand manats for individuals, and in the amount of seven thousand to eight thousand manats for officials.”

THE LAW

I.         JOINDER OF THE APPLICATIONS

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

II.      ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

16.  The applicants complained that their arrest and detention had been unlawful. They relied on Article 5 § 1 of the Convention, which reads as follows:

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

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

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

A.    Admissibility

17.  The Government contested the admissibility of the present complaint, arguing that the applicants had not been arrested, but that they had been taken to the Police Office so that records of administrative offences could be compiled. Moreover, their stay at the Police Office had not exceeded three hours, thus remaining within the period permitted by the domestic legislation.

18.  The applicants disagreed, arguing, in particular, that their detention at the Police Office had lasted around fourteen hours in total and greatly exceeded the period permitted for legitimate arrest under the relevant legal provisions.

19.  The Court has previously dismissed a similar argument by the Government (see Nasirov and Others v. Azerbaijan, no. 58717/10, §§ 34‑36, 20 February 2020). It finds no reason to reach a different conclusion in the present case.

20.  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

21.  The applicants disagreed with the Government’s account of events. They argued that, given the number of persons arrested, the period of approximately two hours submitted by the Government as the actual period of their detention at the Police Office would have been insufficient for documenting administrative offences in respect of them. Furthermore, the Government had failed to take into account the time during which they had been under the control of the police the following day pending the examination of their cases. Moreover, the Government had not provided justification for the necessity of applying the measure of administrative arrest for the purposes of compiling the relevant records.

22.  The Government submitted that the applicants’ deprivation of liberty had not been arbitrary as they had been taken to the Police Office so that the relevant records of administrative offences could be compiled and they had been released shortly afterwards within the time-limit provided by the domestic legislation.

2.    The Court’s assessment

23.  The applicable general principles under Article 5 of the Convention have recently been stated in the case of Nasirov and Others v. Azerbaijan (no. 58717/10, §§ 46-47, 20 February 2020).

24.  The Court notes that the parties are in disagreement as regards the length of time that elapsed before the applicants were released from the Police Office following their arrest, as well as the total time during which they were deprived of their liberty. The Court, however, considers that there is no need to examine this issue as their deprivation of liberty was in any event arbitrary for the following reasons.

25.  The Court notes that the legal issues raised by the applicants under Article 5 of the Convention in the present case are similar to the ones examined in Nasirov and Others (ibid., §§ 28-31) and the same laws are applicable to them.

26.  In particular, as in the latter case, the applicants were escorted to the Police Office for the compiling of administrative offence reports; however, no reference has been made to any obstacles to drawing up the respective reports at the place where the offence had been discovered. Similarly, no records of administrative arrest were drawn up in respect of any of the applicants once they had been taken to the Police Office. Finally, neither the domestic authorities nor the Government provided any specific reasons to the Court justifying the applicants’ arrest, nor did they objectively indicate that without such a measure it would have been “impossible” to achieve the goals laid down in the relevant legislation, such as, for example, ensuring the expedient and correct examination of their case (ibid., §§ 48-50).

27.  The Court concluded in Nasirov and Others (ibid., §§ 51-52) that the applicants’ deprivation of liberty was unjustified, arbitrary and unnecessary irrespective of its duration, and it finds no reason to depart from the conclusion it reached in that case.

28.  It follows that there has been a violation of Article 5 § 1 of the Convention.

III.   ALLEGED VIOLATION OF ARTICLES 6 and 9 OF THE CONVENTION

29.  The applicants complained under Article 6 § 3 (b) and (c) of the Convention that they had not been provided with adequate time for the preparation of their defence or with sufficient legal assistance.

30.  Under Article 9 of the Convention, the applicants complained that their administrative conviction had amounted to an unlawful interference by the domestic authorities with their right to freedom of religion.

31.  The Government submitted that these complaints were inadmissible on account of non-exhaustion of domestic remedies as the applicants had failed to bring their grievances before the domestic courts in order to obtain redress for the alleged violation of their rights.

32.  The applicants confined themselves to disputing the Government’s objection as regards the exhaustion of domestic remedies, submitting that they had made sufficient efforts to exhaust domestic remedies by applying to various local authorities.

33.  The Court observes that the applicants did not raise these complaints at any stage of the domestic proceedings. Moreover, the applicants did not state whether there were special circumstances in the present case which would exempt them from the obligation to do so (see Religious Community of Jehovah’s Witnesses and Hansen v. Azerbaijan [Committee], no. 52682/07, § 37, 30 January 2020, and Bibin and Others v. Azerbaijan [Committee], nos. 81518/12 and 2 others, § 65, 30 January 2020).

34.  It therefore follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

IV.   APPLICATION OF ARTICLE 41 OF THE CONVENTION

35.  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

36.  The first, second, third, fifth, sixth and seventh applicants each claimed 40 euros (EUR) and the fourth applicant claimed EUR 1,200 in respect of pecuniary damage on account of the fine they had incurred in the administrative proceedings. They also claimed 8,000 euros (EUR) each in respect of non-pecuniary damage.

37.  The Government contested this claim.

38.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicants must have sustained some non‑pecuniary damage. Ruling on an equitable basis, it awards each applicant EUR 3,000.

B.    Costs and expenses

39.  The applicants each claimed EUR 1,200 for legal services incurred in the proceedings before the Court. In support of their claim, they submitted similar contracts agreed with one of their representatives before the Court, Mr R. Mustafazade. The applicants also requested that any compensation awarded under that head be paid directly into their representative’s bank account.

40.  The Government asked the Court to reject the claims.

41.  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 were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the amount of legal work necessary in the present case, the Court considers it reasonable to award the total sum of EUR 1,000 to cover costs under all heads, to be paid directly into the bank account of the applicants’ representative, Mr R. Mustafazade.

C.    Default interest

42.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Declares the complaint under Article 5 § 1 of the Convention admissible and the remainder of the applications inadmissible;

3.      Holds that there has been a violation of Article 5 § 1 of the Convention in respect of all the applicants;

4.      Holds

(a)  that the respondent State is to pay, 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 3,000 (three thousand euros), plus any tax that may be chargeable, to each applicant, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into the bank account of their representative, Mr. R. Mustafazade;

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

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

Done in English, and notified in writing on 10 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Martina Keller                                                                      Mārtiņš Mits
Deputy Registrar                                                                       President

 

Appendix

List of cases:

No.	Application no.	Applicant’s name Year of Birth Place of Residence	Represented by
1.	55503/15	Emin Aydin oglu ALAKBAROV 1981 Gadabay	Ruslan MUSTAFAZADE
2.	55507/15	Javanshir Tofig oglu ISMAYILOV 1991 Sumgayit	Ruslan MUSTAFAZADE
3.	55510/15	Elmir Rahman oglu JABRAYILOV 1992 Sumgayit	Ruslan MUSTAFAZADE
4.	55512/15	Sabuhi Sabahaddin oglu MAMMADOV 1978 Gadabay	Ruslan MUSTAFAZADE
5.	55520/15	Samir Zahir oglu HUSEYNOV 1988 Agstafa	Ruslan MUSTAFAZADE
6.	55524/15	Rovshan Aladdin oglu GASIMOV 1982 Gadabay	Ruslan MUSTAFAZADE
7.	55531/15	Parvin Arif oglu YUNUSOV 1995 Yevlakh	Ruslan MUSTAFAZADE