FIRST SECTION
DECISION
Application no. 14690/08
Haji ALASGAROV
against Azerbaijan
The European Court of Human Rights (First Section), sitting on 30 September 2014 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 18 February 2008,
Having regard to the declaration submitted by the respondent Government on 28 April 2014, as amended on 30 June 2014, requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Haji Alasgarov, is an Azerbaijani national, who was born in 1985 and lives in Baku. He was represented before the Court by Mr I. Aliyev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant was involved in three related sets of proceedings.
A. The applicant’s arrest and the first set of proceedings concerning his administrative conviction
4. On 26 January 2007 the applicant participated in a demonstration organised by the political bloc Azadliq in Baku against a decision of the Tariff Council to raise the prices of some goods.
5. According to the applicant, at approximately 3.20 p.m. the police had begun to disperse demonstrators without any warning, and whilst doing this they had started hitting a demonstrator who was standing next to him. The applicant had protested verbally about the police’s actions and one of the policemen then instructed his colleagues to arrest the applicant too. According to the applicant, six policemen had punched, kicked and hit him with truncheons. He was arrested.
6. At 4 p.m. the applicant was taken to Khatai District Police Station no. 37. According to the applicant, after his arrival at the police station he had not been allowed to use a telephone and had been kept in a metal cage from 4 p.m. to 9 p.m.
7. At 9 p.m. on the same day the applicant was taken to the Khatai District Court and appeared before a judge. The judge found the applicant guilty under Article 310 (obstructing the police) of the Code of Administrative Offences and sentenced him to a fine of 22 New Azerbaijani manats (AZN). The applicant was released from the courtroom.
8. On 6 February 2007 the applicant appealed against the Khatai District Court’s decision. He complained, inter alia, that he had been unlawfully arrested and held in police custody, that he had been ill-treated during and after his arrest, and that he had in any case not obstructed the police.
9. On 6 April 2007 the Court of Appeal upheld the first-instance court’s decision and dismissed the applicant’s appeal. This decision excluded any possibility of appeal.
B. The second set of proceedings concerning the applicant’s request for information
10. On 6 February 2007 the applicant submitted a request to Khatai District Police Station no. 37 asking for documents concerning his arrest and detention on 26 January 2007.
11. As the applicant did not receive any reply, on 16 March 2007 he brought an action asking the court to compel the domestic authorities to provide him with the documents concerning his arrest and detention on 26 January 2007.
12. On 16 April 2007 the Khatai District Court granted the applicant’s request and ordered Khatai District Police Station no. 37 to reply to the applicant’s request for information.
13. No appeals were lodged against this judgment and, pursuant to the domestic law, it became enforceable within one month of its delivery.
C. The third set of proceedings concerning the applicant’s civil claim
14. On an unspecified date the applicant brought a civil action against Khatai District Police Station no. 37, asking the court to declare his arrest unlawful and to find a violation of his rights protected under Articles 3, 5, 10 and 11 of the Convention. In this regard, he alleged, inter alia, that he had been unlawfully arrested and detained, that he had been ill-treated by the police during and after his arrest and that his rights to freedom of expression and to freedom of assembly had been violated.
15. On 8 May 2007 the Khatai District Court dismissed the applicant’s claim. The court stated that the applicant had been arrested on 26 January 2007 and taken to the police station. The court held that he had been found guilty under Article 310 (obstructing the police) of the Code of Administrative Offences because he had not complied with lawful requests of the police. The court also held that the applicant had failed to substantiate his allegations.
16. On 18 June 2007 the applicant appealed against this judgment, reiterating his previous complaints.
17. On 16 August 2007 the Baku Court of Appeal upheld the judgment of 8 May 2007.
18. On 23 November 2009 the Supreme Court upheld the Baku Court of Appeal’s judgment of 16 August 2007.
COMPLAINTS
19. As to the first set of proceedings concerning the applicant’s administrative conviction, in the submissions he lodged with the Court on 25 June 2008, the applicant complained of violations of his rights under Articles 3, 5, 6, 10 and 11 of the Convention.
20. As to the second set of proceedings concerning the applicant’s request for information, the applicant complained under Articles 6 and 10 of the Convention about the non-enforcement of the Khatai District Court’s judgment of 16 April 2007.
21. As to the third set of proceedings concerning the applicant’s civil claim, the applicant complained under Article 3 of the Convention that the police had used excessive force on him during the demonstration of 26 January 2007 and that it had amounted to ill-treatment under Article 3 of the Convention. Relying on Article 5 of the Convention, the applicant complained that he had been unlawfully arrested by the police and that his detention in the police station from 4 p.m. to 9 p.m. on 26 January 2007 had not been in accordance with domestic law. The applicant also complained under Articles 10 and 11 of the Convention that the use of excessive force by the authorities during the dispersal of the demonstration of 26 January 2007 had amounted to an infringement of his right to freedom of expression and of peaceful assembly. Relying on Article 6 of the Convention, the applicant further complained that his right to a fair trial had been violated because the length of the civil proceedings before the domestic courts had been excessive, the domestic courts’ decisions had not been reasoned, and the proceedings had not been adversarial.
THE LAW
I. COMPLAINTS UNDER ARTICLES 3, 5 AND 11 OF THE CONVENTION
22. After the failure of attempts to reach a friendly settlement, by a letter of 28 April 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the complaints concerning Articles 3, 5 and 11 of the Convention (the Article 10 issue being covered by Article 11). They also asked the Court to strike out the application in accordance with Article 37 of the Convention.
23. The text of the declaration, as amended on 30 June 2014, provided as follows:
“1. The Government of the Republic of Azerbaijan hereby wish to express – by way of unilateral declaration – their acknowledgement of the fact that there have been violations of the applicants’ rights guaranteed under Articles 3, 5 and 11 of the Convention.
2. The Government are prepared to pay each applicant, Mr Haji Alasgarov and Mr Khalid Garayev, the sum of EUR 11,000 (eleven thousands euros) in compensation for non-pecuniary damage. Considering the similarity of the complaints and legal arguments submitted in these cases and observing that substantial parts of the lawyer’s submissions in these cases were either identical or very similar, the Government are prepared to pay the total amount of EUR 2,000 (two thousands euros) to the applicants jointly in respect of the legal services rendered by Mr Intigam Aliyev.
3. These sums 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.
4. The Government considers that this amount will be an adequate redress and sufficient compensation for the impugned violations and thus, will constitute the final settlement of the present case. If, the Court however considers that the above amount does not constitute adequate redress and sufficient compensation, the Government are ready to pay the applicants by way of just satisfaction such other amount suggested by the Court.
5. 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 applications, 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.”
24. By a letter of 6 August 2014, the applicant indicated that the amount of the compensation for legal services was too low, but he accepted the terms of the unilateral declaration.
25. 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 application”.
26. It also points out 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 applicant wishes the examination of the case to be continued.
27. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the judgment in Tahsin Acar v. Turkey ([GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
28. The Court observes that the unilateral declaration contains a clear acknowledgment by the Government of a violation of the applicant’s rights protected under Articles 3, 5 and 11 of the Convention. It also contains an undertaking to pay him a total of EUR 11,000 in compensation for non‑pecuniary damage.
29. Having regard to the nature of the admissions and assurances contained in the Government’s declaration and the amount of compensation proposed – which the Court finds to be reasonable given the circumstances of this case – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)). Moreover, 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 case (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 application 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 this part of the application out of the list.
II. REMAINDER OF THE APPLICATION
32. The applicant complained of violations of his rights under Articles 3, 5, 6, 10 and 11 of the Convention in the proceedings concerning his administrative conviction. He further complained under Articles 6 and 10 of the Convention about the non-enforcement of the Khatai District Court’s judgment of 16 April 2007. The applicant also complained under Article 6 of the Convention that his right to a fair trial had been violated in the third set of proceedings concerning his civil claim because the length of the civil proceedings before the domestic courts had been excessive, the domestic courts’ decisions had not been reasoned, and the proceedings had not been adversarial.
33. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Articles 3, 5 and 11 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaints in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident
Full & Egal Universal Law Academy