A AND OTHERS v. AZERBAIJAN

FIRST SECTION

DECISION

Application no. 17184/18
A against Azerbaijan
and 23 other applications
(see list appended)

The European Court of Human Rights (First Section), sitting on 19 March 2024 as a Chamber composed of:

 Marko Bošnjak, President,
 Alena Poláčková,
 Lətif Hüseynov,
 Péter Paczolay,
 Ivana Jelić,
 Erik Wennerström,
 Raffaele Sabato, judges,

and Ilse Freiwirth, Section Registrar,

Having regard to the applications listed in the appended table and lodged on the various dates indicated therein,

Having regard to the declaration submitted by the respondent Government on 7 August 2019 requesting the Court to strike the applications out of the list of cases and the applicants’ reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1.  A list of the applicants and their representatives is set out in the appended table.

2.  The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov.

3.  Between 14 and 16 September 2017, the applicants, who are members of the LGBT community, were arrested by the police in the streets or in their flats, citing various reasons (such as disturbing the public order, failure to produce an identity document, swearing without addressing any particular person). They were subsequently found guilty of committing an administrative offence under Article 535.1 of the Code of Administrative Offences (deliberately disobeying the lawful order of a police officer) and sentenced to administrative detention varying in length between ten days and one month.

4.  Relying on Articles 3, 5, 6, 8 and 14 of the Convention, the applicants complained of the alleged:

(i) ill-treatment by the police officers and prison guards during their arrest and detention, and the domestic authorities’ failure to conduct an investigation in that respect;

(ii) poor conditions of their detention;

(iii) unlawful and arbitrary detention;

(iv) breach of procedural fair-trial guarantees;

(v) forced medical examinations during their detention without any court order;

(vi) lack of effective domestic remedies in respect of their ill-treatment complaints; and

(vii) discrimination on the ground of their actual and/or perceived sexual orientation and gender identity.

5.  The Government were given notice of the applications.

6.  The non‑governmental organisations Civil Rights Defenders, European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) and Redress Trust (REDRESS) were granted leave to intervene as third parties in the proceedings (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules).

THE LAW

7.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision (Rule 42 § 1 of the Rules of Court).

8.  After failed attempts to reach a friendly settlement, by a letter of 7 August 2019 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention. The unilateral declaration states as follows:

“1. The Government of the Republic of Azerbaijan hereby wishes to express – by way of unilateral declaration – their acknowledgement of the fact there was a violation of the applicants’ rights guaranteed in the Convention.

2. The Government are prepared to pay to the above applicants the sum of 125,000 euros (EUR) jointly for any damages and EUR 3,000 jointly for costs and expenses incurred before the Court. This sum shall be free of any tax that may be applicable and shall be payable within three months from the date of the notification of the striking‑out judgment of the Court pursuant to Article 37 of the European Convention on Human Rights. From the expiry of the above-mentioned period, 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.

3. In the light of above, the Government would suggest that the circumstances of the present case allow the Court to reach the conclusion that there exists “any other reason”, as referred to in Article 37 § 1 (c) of the Convention, justifying to discontinue the examination of the application, and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the further examination of the case by virtue of that provision. Accordingly, the Government invite the Court to strike the applications out of its list of cases.”

9.  By a letter of 14 October 2019, the applicants indicated that they were not satisfied with the terms of the unilateral declaration. In particular, they submitted that in a case raising issues under Articles 3, 5, 6, 8 and 14 of the Convention the Government had acknowledged a single unspecified violation and failed to explain why the remaining violations were not acknowledged. They further submitted that the only remedy offered for their complaint under Article 3, which was “central to th[e]s[e] case[s]”, was compensation and that the Government gave no undertakings to investigate the alleged violations. They also argued that the compensation offered was inadequate. The applicants submitted that these were the first cases concerning the LGBT community against Azerbaijan and there was no comparable judgment by the Court related to violations of the rights of the LGBT community by law enforcement agencies on a similar scale. They further submitted that striking the cases out of the list on the basis of the Government’s unilateral declaration would exclude the supervisory power of the Committee of Ministers. They therefore asked the Court to reject the unilateral declaration.

(a)   Application no. 17201/18

10.  On 14 May 2021 the principal representative informed the Court, without submitting a copy of the death certificate, that the applicant in application no. 17201/18 had died on 2 October 2020. He submitted that G.K., the deceased applicant’s sister, wished to pursue the application in his stead.

11.  The Government contested G.K.’s standing arguing that no document proving the kinship between the deceased applicant and G.K. had been presented to the Court and invited it to strike the application out of its list of cases.

12.  In reply, the principal representative submitted a copy of G.K.’s birth certificate. He also submitted, without providing any specific details, that G.K. encountered some difficulties in obtaining the death certificate and promised to submit a copy of it as soon as she could.

13.  In its letter of 22 September 2021, the Court requested the principal representative to submit a copy of the official death certificate as soon as G.K. received it. He was also invited to submit a copy of the deceased applicant’s birth certificate or any other document proving G.K.’s relation to him. However, no information or documents have been presented to the Court to date.

14.  Where the applicant has died after the application was lodged, the Court has accepted that the next-of-kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, with further references). The Court has also established that it is for the heir who wishes to pursue the proceedings before the Court to substantiate his or her standing to do so (see Belskiy v. Russia (dec.), no. 23593/03, 26 November 2009).

15.  The Court has adopted a flexible approach as regards the latter requirement to substantiate the heir’s standing, and it has accepted various evidence submitted by an applicant’s relatives wishing to maintain the late relative’s claims. However, in the present case G.K. failed to submit any relevant document proving her relationship with the deceased applicant. Neither did she provide any specific reasons for that failure (compare Burlya and Others v. Ukraine, no. 3289/10, § 70, 6 November 2018).

16.  In such circumstances, the Court cannot conclude that G.K. has met the requirement to substantiate her standing as next-of-kin or heir in the proceedings before the Court. It therefore rejects her request to pursue the application and finds that it must be struck out of the Court’s list of cases since the applicant has died.

(b)   Applications nos. 17841/18, 17889/18, 17999/18 and 18017/18

17.  On 14 May 2021 the principal representative also informed the Court that the applicants in applications nos. 17841/18 and 18017/18 were “held in custody on criminal charges” and that he and another lawyer, Mr S. Rahimli, had sent a letter to the Penitentiary Service of the Ministry of Justice requesting to visit these two applicants. He therefore asked the Court for “additional time” in order to meet with these applicants and to inform the Court accordingly. He further submitted that he had not been able to locate the applicants in applications nos. 17889/18 and 17999/18 but asked the Court to take into account their initial will to pursue their applications.

18.  The Government submitted that the applicants’ representative admitted that he had failed to establish contact with the applicants and, therefore, it should be assumed that they did not wish to pursue their applications.

19.  The Court reiterates that an applicant’s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court) but that it is also important that contact between the applicant and his or her representative be maintained throughout the proceedings. Such contact is essential both in order to learn more about the applicant’s particular situation and to confirm the applicant’s continuing interest in pursuing the examination of his or her application (see Sharifi and Others v. Italy and Greece, no. 16643/09, § 124, 21 October 2014; V.M. and Others v. Belgium, (striking out) [GC], no. 60125/11, § 35, 17 November 2016; and Alhowais v. Hungary, no. 59435/17, § 58, 2 February 2023). The Court also reiterates that  situations where applicants have been prevented from meeting with their lawyers and communicating with them by telephone and correspondence with a view to pursuing their case before the Court have previously led it to find a violation of Article 34 of the Convention (see M.H. and Others v. Croatia, nos. 15670/18 and 43115/18, § 321, 18 November 2021).

20.  The Court notes that, as it appears from the principal representative’s submissions, the contact with the four applicants in applications nos. 17841/18, 17889/18, 17999/18 and 18017/18 has been lost. While the representative alleged that two applicants were held in custody and that he and another lawyer were making efforts to contact them (see paragraph 17 above), he has failed to inform the Court of the result of their efforts to date. Neither has he provided any information or documents showing that he was able to re-establish contact with the other two applicants. It therefore appears that the applicants have not maintained contact with their lawyers. Consequently, the Court considers that these applicants have lost interest in the proceedings and no longer intend to pursue their applications, within the meaning of Article 37 § 1 (a) of the Convention (compare V.M. and Others, cited above, § 36, and Mahamud Ahmed v. Malta (dec.), no. 68883/13, § 22, 3 October 2017).

21.  The Court also considers that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications (Article 37 § 1 in fine).

22.  It follows that applications nos. 17841/18, 17889/18, 17999/18 and 18017/18 should be struck out of the Court’s list of cases.

23.  The Court will examine the Government’s unilateral declaration in respect of the remaining 19 applications.

24.  The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the applications”.

25.  It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued.

26.  To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; see also WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).

27.  The Court has established in a number of cases its practice concerning the complaints raised in the present applications (see, for example, Gafgaz Mammadov v. Azerbaijan, no. 60259/11, §§ 97-110, 15 October 2015, concerning Article 5; Ibrahimov and Others v. Azerbaijan, nos. 69234/11 and 2 others, §§ 88-129, 11 February 2016, concerning Articles 5 and 6; Mustafa Hajili v. Azerbaijan, no. 42119/12, §§ 29-53, 24 November 2016, concerning Article 3; Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, § 114-40, 20 September 2018, concerning Article 3 (conditions of detention); Mammadov and Others v. Azerbaijan, no. 35432/07, §§ 102‑29, 21 February 2019, concerning Article 3; Aghdgomelashvili and Japaridze v. Georgia, no. 7224/11, §§ 30-50, 8 October 2020, concerning Articles 3 and 14; Dzerkorashvili and Others v. Georgia, no. 70572/16, §§ 56-105 and 125-26, 2 March 2023, concerning Articles 3, 5, 8, 13 and 14; and Lapunov v. Russia, no. 28834/19, §§ 77-121, 12 September 2023, concerning Articles 3 and 14).

28.  Having regard to the nature of the admission contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1 (c)). As regards the applicants’ submissions concerning the wording of the declaration (see paragraph 9 above), the Court notes that while it would have been preferrable for the declaration to be more specific as regards the acknowledgment of a violation of the Convention, it accepts that the declaration acknowledges violations of the Convention Articles as raised by the applicants in their complaints. The Court further notes that the proposed amounts were indicated as being awarded “jointly” to the applicants in the declaration. It interprets this proposal as meaning that the amounts are to be divided equally between the applicants.

29.  Moreover, in light of the above considerations, and in particular given the relevant case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications (Article 37 § 1 in fine).

30.  Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the applications could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

31.  In view of the above, it is appropriate to strike the cases out of the list.

For these reasons, the Court, unanimously,

Decides to join the applications;

Holds that G.K. does not have standing to pursue application no. 17201/18 in the late applicant’s stead and decides to strike it out of its list of cases under Article 37 § 1 (c) of the Convention;

Decides to strike applications nos. 17841/18, 17889/18, 17999/18 and 18017/18 out of its list of cases in accordance with Article 37 § 1 (a) of the Convention;

Takes note of the terms of the respondent Government’s declaration and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the remaining 19 applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 11 April 2024.

 Ilse Freiwirth Marko Bošnjak
 Registrar President

Appendix

List of cases:

No.

Application no.

Lodged on

Case name

Applicant

Year of birth

Represented by

1

17184/18

28/03/2018

A v. Azerbaijan

A

1990

Khalid BAGIROV

Jessica GAVRON

Philip LEACH

Kate LEVINE

Ramute REMEZAITE

Joanne SAWYER

Ulkar ALIYEVA

Bakhtiyar HAJIYEV

Shahla HUMBATOVA

Yalchin IMANOV

Javad JAVADOV

Agil LAYIJ

Asima NASIRLI

Fariz NAMAZLI

Samad RAHIMLI

Ruslan VALIYEV

2

17195/18

28/03/2018

B v. Azerbaijan

B

1996

3

17201/18

30/03/2018

C v. Azerbaijan

C

1999

Deceased: 2020

4

17206/18

30/03/2018

D v. Azerbaijan

D

1993

5

17234/18

28/03/2018

E v. Azerbaijan

E

1993

6

17263/18

26/03/2018

F v. Azerbaijan

F

1990

7

17374/18

29/03/2018

G v. Azerbaijan

G

1985

8

17698/18

30/03/2018

H v. Azerbaijan

H

1995

9

17712/18

30/03/2018

I v. Azerbaijan

I

1998

10

17740/18

30/03/2018

J v. Azerbaijan

J

1993

11

17755/18

30/03/2018

K v. Azerbaijan

K

1980

12

17757/18

28/03/2018

L v. Azerbaijan

L

1994

13

17833/18

28/03/2018

M v. Azerbaijan

M

1998

14

17841/18

02/04/2018

N v. Azerbaijan

N

1993

15

17848/18

28/03/2018

O v. Azerbaijan

O

1988

16

17852/18

28/03/2018

P v. Azerbaijan

P

1989

17

17889/18

28/03/2018

Q v. Azerbaijan

Q

1983

18

17901/18

28/03/2018

R v. Azerbaijan

R

1993

19

17951/18

28/03/2018

S v. Azerbaijan

S

1979

20

17963/18

30/03/2018

T v. Azerbaijan

T

1978

21

17999/18

30/03/2018

U v. Azerbaijan

U

1989

22

18009/18

28/03/2018

V v. Azerbaijan

V

1994

23

18017/18

30/03/2018

W v. Azerbaijan

W

1991

24

19503/18

14/04/2018

X v. Azerbaijan

X

1988