Communicated on 7 July 2014
FIRST SECTION
Applications nos. 69456/11 and 48271/13
Ahad MAMMADLI against Azerbaijan
and Ahad MAMMADLI against Azerbaijan
lodged on 17 October 2011 and 4 January 2013 respectively
The applicant is Azerbaijani national who was born in 1982 and lives in Baku. He submitted both applications in the present communication report. The applicant is represented before the Court by Mr R. Mustafazade and Mr A. Mustafayev, lawyers practising in Azerbaijan.
The circumstances of the cases
The applicant is an opposition-oriented activist. Also, at the material time the applicant held a position in a political party (see application no. 69456/11).
In the period from 2010 to 2013 a number of opposition parties or groups organised several peaceful demonstrations in Baku. These demonstrations had not been authorised and many participants were arrested.
The applicant participated (or attempted to participate) in two of these demonstrations which took place on 2 April 2011 and 20 October 2012, in respect of which he lodged two separate applications.
According to the applicant, the organisers had given prior notice to the relevant authorities about the planned demonstrations; however, the authorities had not authorised holding of the demonstrations.
The demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants demanded that the Government, inter alia, hold free and fair elections and conduct democratic reforms in the country.
Both demonstrations were dispersed by the police.
1. Application no. 69456/11 lodged on 17 October 2011
This application concerns participation (or attempt to participate) of the applicant in the demonstration of 2 April 2011.
According to the applicant, he intended to participate in the demonstration of 2 April 2011 but had been arrested before he reached the place where the demonstration was held. The applicant was taken to a police station.
According to the applicant, he was arrested by plain-clothed persons. The applicant was not given an opportunity to contact his relatives. He also was not promptly informed about the reasons for his arrest. The applicant’s rights, including the right to have a lawyer, were not properly explained to him and he was not given access to a lawyer.
On the day his arrest, an “administrative offence report” (inzibati xəta haqqında protokol) was drawn up in respect of the applicant. The report stated that the applicant had committed an administrative offence under Article 310.1 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences (“the CAO”).
The applicant was never served with a copy of the administrative offence report issued against him.
The applicant was brought before the Nasimi District Court on the day of the arrest. By its decision of 2 April 2011 the court found that the applicant had deliberately failed to comply with the lawful order of police officers to refrain from participating in an unauthorised demonstration, convicted the applicant under Article 310.1 of the CAO, and sentenced him to seven days’ “administrative detention”.
According to the applicant, the hearing before the first-instance court lasted only a few minutes. The applicant had insisted on employing a lawyer of his own choice, but the judge of the first-instance court had disregarded his request. According to the applicant, he was not represented by a lawyer at all.
The first-instance courts relied heavily on the administrative offence reports issued in respect of the applicant. According to the applicant, the only witnesses questioned during the court hearings were the police officers, who had not been involved in the applicant’s arrest.
Members of the public (including human rights defenders and journalists) were not allowed to attend the court hearings, even though the court had not taken any formal decision to close the hearings to the public.
The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction was in violation of his rights because the demonstration in which he had participated or attempted to participate had been peaceful. The applicant also complained that his arrest had been unlawful and that the hearings before the first-instance court had not been fair.
The applicant asked the Baku Court of Appeal to quash the first-instance court’s decision in his case. By its decisions of 11 April 2011 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
2. Application no. 48271/13 lodged on 4 January 2013
This application concerns participation (or attempt to participate) of the applicant in the demonstration of 20 October 2012.
According to the applicant, he was arrested in proximity to the headquarters of the opposition party Musavat. He had planned to proceed with other people in a rally from the mentioned headquarters to the place where the demonstration of 20 October 2012 had been held. The applicant was taken to a police station.
According to the applicant, he was arrested by plain-clothed persons. The applicant was not given an opportunity to contact his relatives. He also was not promptly informed about the reasons for his arrest. The applicant’s rights, including the right to have a lawyer, were not properly explained to him and he was not given access to a lawyer.
On the day his arrest, an “administrative offence report” was drawn up in respect of the applicant. The report stated that the applicant had committed an administrative offence under Article 310.1 (failure to comply with a lawful order of a police officer) of the CAO.
The applicant was never served with a copy of the administrative offence report issued against him.
The applicant was brought before the Binagadi District Court on the day of the arrest. By its decision of 20 October 2012 the court found that the applicant had deliberately failed to comply with the lawful order of police officers to refrain from participating in an unauthorised demonstration, convicted the applicant under Article 310.1 of the CAO, and sentenced him to ten days’ “administrative detention”.
The applicant had insisted on employing a lawyer of his own choice, but the judge of the first-instance court had disregarded this request. According to the applicant, representation by a State-funded lawyer was ineffective and of a formalistic nature.
The first-instance courts relied heavily on the administrative offence reports issued in respect of the applicant. According to the applicant, the only witnesses questioned during the court hearings were the police officers, who had not been involved in the applicant’s arrest.
Members of the public were not allowed to attend the court hearings, even though the court had not taken any formal decision to close the hearings to the public.
The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction was in violation of his rights because the demonstration in which he had participated or attempted to participate had been peaceful. The applicant also complained that his arrest had been unlawful and that the hearings before the first-instance court had not been fair.
The applicant asked the Baku Court of Appeal to quash the first-instance court’s decision in his case. By its decisions of 29 October 2012 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
COMPLAINTS
1. The applicant complains under Article 5 of the Convention that he was not promptly informed about the reasons for his arrest; that he was not given an opportunity to contact his relatives; that his rights, including the right to have a lawyer, were not properly explained to him; that he was never served with a copy of the administrative offence reports issued against him and with other materials in his case-files; and that he was arrested by plain-clothed persons.
2. The applicant complains under Article 6 of the Convention that he did not have a fair hearing in the administrative offence proceedings because he was not given sufficient time and facilities to prepare his defence; that he was deprived of access to effective legal assistance, both after the arrest and during the judicial proceedings; and that the only witnesses to be questioned were police officers.
Also, the applicant complains under Article 6 of the Convention that his right to a public hearing was violated.
3. The applicant complains that he was arrested and prosecuted for participating (or attempting to participate) in peaceful demonstrations, in breach of Article 11 of the Convention. The applicant also relies on Article 10 in this respect.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was the applicant’s “administrative” arrest in compliance with domestic procedural rules?
2. Was Article 6 §§ 1 and 3 of the Convention under its criminal head applicable to the proceedings in the present cases? If so, did the applicant have a fair and public hearing in determining the charge against him, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards the provision of sufficient time and facilities to prepare his defence, the opportunity to defend oneself through effective legal assistance, and the questioning of witnesses?
3. Has there been an interference with the applicant’s freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention? If so, was the interference prescribed by law, as required by Article 11 § 2? In particular, did the domestic legislation in question meet the “quality of law” requirement? Furthermore, was the interference necessary, in terms of Article 11 § 2?
4. The parties are requested to submit copies of all documents relating to the administrative proceedings, including the administrative offence reports, any statements made by the applicant before being brought to court, the transcripts of the hearings and the applicant’s appeals.
5. The parties are also requested to submit copies of all documents relating to the organisation and holding of the demonstrations in which the applicant participated, in particular, the notices submitted by the organisers of the demonstrations to the relevant local executive authorities, and the official responses the organisers received from the relevant local executive authorities refusing to authorise the demonstrations.
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