Communicated on 3 July 2014
FIRST SECTION
Applications nos. 43137/13 and 43153/13
Babak HASANOV against Azerbaijan
and Babak HASANOV against Azerbaijan
lodged on 22 January 2013 and 13 May 2013 respectively
STATEMENT OF FACTS
The applicant is Azerbaijani national who was born in 1973 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.
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 in two of these demonstrations which took place on 17 November 2012 and 10 March 2013, in respect of which he lodged two separate applications.
1. Application no. 43137/13 lodged on 22 January 2013
This application concerns participation of the applicant in the demonstration of 17 November 2012.
According to the applicant, the organisers had given prior notice to the relevant authorities about the demonstration of 17 November 2012; however, the authorities had not authorised holding of the demonstration.
The demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants demanded that the Government, inter alia, conduct democratic reforms in the country.
The demonstration was dispersed by the police.
The applicant was arrested by the police at the place where the demonstration was held and 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 of 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 Sabail District Court on the day of the arrest. By its decision of 17 November 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 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, representation by a State-funded lawyer was ineffective and of a formalistic nature.
The first-instance court relied heavily on the administrative offence report issued in respect of the applicant. According to the applicant, no witnesses were questioned except for the applicant himself.
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 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.
In his appeal the applicant also complained that, when sentencing him to administrative detention, the first-instance court had failed to take into consideration the fact that he had a second-degree disability, in breach of the requirements of the law. The applicant observed that, according to the domestic legislation, a person with a second-degree disability could not be sentenced to “administrative detention”.
The applicant asked the Baku Court of Appeal to quash the first-instance court’s decision in his case. By its decisions of 26 November 2012 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
2. Application no. 43153/13 lodged on 15 May 2013
This application concerns participation of the applicant in the demonstration of 10 March 2013.
It appears that the organisers of the demonstration of 10 March 2013 had not given a formal notice to the relevant authorities about the planned demonstration. Information about this demonstration had been disseminated through Facebook or through press.
The demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants protested over deaths of numerous soldiers in the army.
The demonstration was dispersed by the police.
The applicant was arrested by the police at the place where the demonstration was held and was taken to a police station.
According to the applicant, he 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 of 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 298.2 (participation in a public assembly which was not organised in accordance with law) 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 Sabail District Court the following day. By its decision of 11 March 2013 the court found that the applicant had participated in a demonstration which was not organised in accordance with law (an offence under Article 298.2 of the CAO), convicted the applicant under Article 298.2 of the CAO, and sentenced him to six days’ “administrative detention”.
According to the applicant, he had insisted on employing a lawyer of his own choice, but the judge of the first-instance court had disregarded this request.
The first-instance court relied heavily on the administrative offence report issued in respect of the applicant. According to the applicant, the only witnesses questioned during the court hearings were the police officers.
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 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.
In his appeal the applicant also complained that, when sentencing him to administrative detention, the first-instance court had failed to take into consideration the fact that he had a second-degree disability, in breach of the requirements of the law.
The applicant asked the Baku Court of Appeal to quash the first-instance court’s decision. By its decision of 27 March 2013 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first‑instance court.
COMPLAINTS
Complaints raised in both applications (nos. 43137/13 and 43153/13):
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 during the demonstration of 17 November 2012 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 in peaceful demonstrations, in breach of Article 11 of the Convention. The applicant also relies on Article 10 in this respect.
4. The applicant complains, relying on Article 7 of the Convention, that a heavier penalty was imposed on him than the one which was applicable at the time of the commission of the offence: according to domestic legislation, the applicant could not be sentenced to administrative detention because he had a second-degree disability. The applicant also relies on Article 3 in this respect.
Complaint raised in application no. 43137/13 only:
5. The applicant complains, invoking Article 7 of the Convention, that the domestic law serving as a basis for his conviction did not comply with the principle of foreseeability. The applicant argues that participation in a peaceful demonstration (advance notice about which had been given to the relevant authorities) was his constitutional right and not a criminal offence.
COMMON QUESTIONS
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. Was a heavier penalty imposed on the applicant than the one which was applicable at the time of the commission of the offence in the present cases, as proscribed by Article 7 of the Convention? Specifically, did the domestic courts take into consideration the applicant’s second-degree disability, when sentencing him to administrative detention?
4. 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?
5. 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.
6. 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.
7. The applicant is also requested to submit copies of documents proving his second-degree disability.
CASE SPECIFIC QUESTIONS
Application no. 43137/13:
Did the act of which the applicant was found guilty constitute an offence, as required by Article 7 of the Convention? In particular, did the domestic law clearly provide for (a) the offence of deliberately failing to comply with the lawful order of police officers to refrain from participating in an unauthorised demonstration, and (b) the procedure for the organisation and holding of assemblies itself (see Vyerentsov v. Ukraine, no. 20372/11, 11 April 2013)?
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