European Court of Human Rights

 

FIFTH SECTION

CASE OF BABAYEV AND OTHERS v. AZERBAIJAN

(Application no. 71750/13)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

2 June 2022

 

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

In the case of Babayev and Others v. Azerbaijan,

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

          Stéphanie Mourou-Vikström, President,
          Lado Chanturia,
          Arnfinn Bårdsen, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 71750/13) 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”) on 4 September 2013 by three Azerbaijani nationals, Dayanat Sakhavat oglu Babayev (Dəyanət Səxavət oğlu Babayev - “the first applicant”), Arzuman Farhad oglu Majidov (Arzuman Fərhad oğlu Məcidov - “the second applicant”) and Abulfaz Adam oglu Gurbanli (Əbülfəz Adəm oğlu Qurbanlı – “the third applicant”), represented before the Court by Mr R. Mustafazade and Mr A. Mustafayev, lawyers based in Azerbaijan (the appended table contains further information);

the decision to give notice of the complaints concerning the alleged unfairness of the domestic proceedings (Article 6) and the alleged breach of the applicants’ right to freedom of peaceful assembly (Article 11) to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 5 May 2022,

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

SUBJECT MATTER OF THE CASE

1.  The present case concerns the allegedly unjustified interference with the applicants’ right to freedom of assembly on account of the dispersal of an unauthorised peaceful protest. Relying on Articles 6, 10 and 11 of the Convention, the applicants alleged that their rights were breached by the domestic authorities.

2.  According to the applicants, on 4 and 5 March 2012 the mass media broadcast information to the effect that two persons, arrested on allegedly political grounds, had been subjected to ill-treatment while in custody. The applicants, together with a number of other persons, gathered at around 3 p.m. on 6 March 2012 near the metro station Elmlar Akademiyasi in Baku to protest against that alleged ill-treatment, then attempted to march towards the Ministry of Internal Affairs. The protest was spontaneous and peaceful. However, the attempt to stage a march was stopped by police officers, who began to disperse the protesters.

3.  The police arrested seventeen protesters, including the applicants, and took them to the Yasamal District Police Office, where administrative‑offence reports (inzibati xəta haqqında protokol) were drawn up.

4.  On the same day the first applicant was brought before the Yasamal District Court. The court convicted him under Article 296 (minor hooliganism) of the Code of Administrative Offences and sentenced him to a fine in the amount of 50 Azerbaijani manats (AZN, approximately 40 euros (EUR) at the material time).

5.  The administrative-offence reports in respect of the second and third applicants stated that they had committed an administrative offence under Article 298 (violation of the rules on holding public gatherings) of the same Code. The police ordered each applicant to pay a fine in the amount of AZN 10 (approximately EUR 8 at the material time). They were released after payment of the fine.

6.  On 19 March 2012 the applicants lodged a complaint with the Baku Administrative Economic Court against the Yasamal District Police Office, arguing that the protest in which they had participated had been peaceful, and that the police officers’ interference with the protest had been unlawful and inadequate.

7.  On 27 July 2012 the Baku Administrative Economic Court dismissed the applicants’ complaints as unsubstantiated.

8.  On 28 September 2012 the applicants lodged an appeal with the Baku Court of Appeal, reiterating their previous complaints.

9.  On 13 November 2012 the Baku Court of Appeal dismissed the applicants’ appeal and upheld the first-instance court’s judgment, finding it justified.

10.  On 24 December 2012 the third applicant lodged a cassation appeal, complaining that the dispersal of the protest had violated his rights to freedom of assembly and to freedom of expression and that the hearing before the appellate court had not been fair.

11.  By a decision of 13 March 2013, the Supreme Court dismissed the third applicant’s cassation appeal and upheld the appellate court’s judgment, finding it justified.

12.  Relying on Articles 6, 10 and 11 of the Convention, the applicants complained that the dispersal of the protest by the police had been in breach of their rights to freedom of assembly and to freedom of expression and that the domestic proceedings had not been fair.

THE COURT’S ASSESSMENT

I.        The Government’s objection of non-exhaustion of domestic remedies by the first and second applicants

13.  The Government submitted that the first and the second applicants had not complied with the rule of exhaustion of domestic remedies, in that they had failed to lodge a cassation appeal against the Baku Court of Appeal’s judgment of 13 November 2012. In reply, the applicants submitted that, as they were unable to afford legal costs for all three of them, only the third applicant had lodged the cassation appeal. The applicants further argued that the available domestic remedies had not been effective and that it had not therefore been necessary to exhaust them.

14.  The Court reiterates that in order to comply with the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).

15.  The Court observes that in the present case the first and the second applicants did not lodge a cassation appeal against the Baku Court of Appeal’s judgment of 13 November 2012. As regards their alleged lack of financial means, the Court notes at the outset that the applicants could have applied for legal aid to lodge a cassation appeal in accordance with the domestic legislation, which they failed to do. Furthermore, they did not demonstrate that this domestic remedy at their disposal was inadequate and/or ineffective in the particular circumstances of their case, or that there existed special circumstances exempting them from the requirement to pursue that remedy. In that connection, the Court reiterates that mere doubts as to the prospect of success and the effectiveness of the available domestic remedies are not sufficient to dispense with the requirement to make normal use of the available remedies (see Kunqurova v. Azerbaijan (dec.), no. 5117/03, 23 June 2005, and Guliyev and Ramazanov v. Azerbaijan (dec.), no. 34553/02, 14 February 2006).

16.  It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies in respect of the first and the second applicants.

II.     ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION in respect of the third applicant

17.  Relying on Articles 6, 10 and 11 of the Convention, the third applicant complained that the dispersal of the protest by the police had been in breach of his rights to freedom of assembly and to freedom of expression, and that the domestic proceedings had not been fair. However, the Court considers that these complaints fall to be examined solely under Article 11 of the Convention.

18.  The Court considers that the third applicant’s complaints under Article 11 are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

19.  The general principles concerning the right to peaceful assembly under Article 11 of the Convention have been summarised in Navalnyy v. Russia ([GC], nos. 29580/12 and 4 others, §§ 98-103, 15 November 2018).

20.  Given that the third applicant participated in the protest in question, the Court accepts that there was an interference with his right to freedom of assembly. In view of the submissions of the parties and the information available in the case file, having regard to the similar case-law in respect of Azerbaijan which is of particular pertinence to the present case (see, among other authorities, Gafgaz Mammadov v. Azerbaijan, no. 60259/11, §§ 54-57, 15 October 2015; Ibrahimov and Others v. Azerbaijan, nos. 69234/11, 69252/11 and 69335/11, §§ 74-77, 11 February 2016; and Bayramov v. Azerbaijan [Committee], nos. 19150/13 and 52022/13, § 44, 6 April 2017), and even assuming that the interference was “prescribed by law” and pursued “legitimate aims”, it remains to be determined whether it was “necessary in a democratic society”.

21.  Having regard to all the information in its possession, the Court considers that in the instant case the interference was not necessary for the prevention of disorder or the protection of the rights of others. In particular, in the absence of any evidence to suggest that the third applicant or other protesters presented a danger to public order, and in view of the vital issues to which the protesters sought to draw attention, the authorities ought to have shown a certain degree of tolerance towards peaceful gatherings in order not to deprive of all substance the right to freedom of assembly guaranteed by Article 11 of the Convention (see Gafgaz Mammadov, §§ 58-59, and Navalnyy, both cited above, § 128).

22.  Moreover, the domestic courts’ decisions do not contain any findings that the third applicant’s specific actions during the demonstration necessitated his conviction. Nothing in the materials before the Court suggests that the third applicant committed any reprehensible offence during the demonstration. In such circumstances, it follows that the authorities did not adduce sufficient and relevant reasons justifying the interference with the third applicant’s right to freedom of assembly guaranteed by Article 11 of the Convention (compare Gafgaz Mammadov, §§ 64‑65, and Ibrahimov and Others, § 83, both cited above).

23.  There has accordingly been a violation of Article 11 of the Convention in respect of the third applicant.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  The third applicant claimed 8,000 euros (EUR) in respect of non‑pecuniary damage and EUR 5,300 in respect of the costs and expenses incurred before the domestic courts and before the Court.

25.  The Government submitted that those amounts were excessive and unsubstantiated.

26.  The Court awards the third applicant EUR 2,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable on that amount.

27.  Having regard to the documents in its possession and the amount of work done by the third applicant’s representatives, the Court considers it reasonable to award EUR 500 covering costs under all heads, to be paid directly into the bank account of his representative, Mr R. Mustafazade.

28.  The Court further 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 in respect of the third applicant and the remainder of the application inadmissible;

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

3.      Holds

(a)  that the respondent State is to pay the third 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 2,000 (two thousand euros), plus any tax that may be chargeable to the third applicant, in respect of non-pecuniary damage;

(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the third applicant, in respect of costs and expenses, to be paid directly into the bank account of his 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 2 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

            Martina Keller                                         Stéphanie Mourou-Vikström
          Deputy Registrar                                                      President

 

 

APPENDIX

 

No.	Applicant’s name	Year of birth	Place of residence
1.	Dayanat Sakhavat oglu BABAYEV	1989	Neftchala
2.	Arzuman Farhad oglu MAJIDOV	1958	Baku
3.	Abulfaz Adam oglu GURBANLI	1982	Baku