Communicated on 26 August 2015
FIRST SECTION
Application no 6814/13
Babak HASANOV against Azerbaijan
and 4 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Azerbaijani nationals. They are represented before the Court by various lawyers practising in Azerbaijan (see Appendix).
The circumstances of the cases
The facts, as submitted by the applicants may be summarised as follows.
1. Background information
The applicants are opposition-oriented activists, members of opposition parties. At the material time Mr Zulfugar Eyvazov (application no. 6903/13) was the chairman of a district branch of the Popular Front Party and Mr Sahib Karimov (application no. 12717/13) was the advisor of the chairman of the same party.
Starting from 2010 a number of opposition parties or groups organised several peaceful demonstrations in Baku. These demonstrations had not been authorised and many participants were arrested.
One of these demonstrations took place on 2 April 2011. According to the applicants, the organisers had given prior notice (on 18 March 2011) to the relevant authorities about the planned demonstration. However, by a letter of 31 March 2011 the authorities refused to authorise the demonstration at the place indicated by the organisers, and proposed another location on the outskirts of Baku.
Nevertheless, the organisers decided to hold the demonstration in a central square. Information about the demonstration was disseminated through the press.
On 24 March 2011 the organisers of the demonstration of 2 April 2011 (a group of several opposition parties, the so-called İctimai Palata) adopted the Manifest of the Demonstration, in which they declared that their intent was to hold a peaceful assembly and urged persons who were going to participate in the demonstration to refrain from any violence, even in response to possible provocation. According to the applicants, this manifest was published in newspapers and on Internet.
The applicants participated in the demonstration of 2 April 2011.
According to the applicants, the demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants were demanding free and fair elections and democratic reforms in the country, and were protesting against politically motivated arrests.
However, it appears that during the demonstration several unidentified persons inflicted physical injuries to around twenty-five police officers, and damaged some private property located near the place where the demonstration was held. Also, the demonstration allegedly caused traffic jams.
The demonstration was dispersed by the police.
2. The applicants’ arrest and charges against them
On various dates the applicants were arrested.
On 9 April 2011 the prosecution formally charged Mr Babak Hasanov (application no. 6814/13), Mr Elshan Hasanov (application no. 7990/13) and Mr Sahib Karimov (application no. 12717/13) with a criminal offence under Article 233 of the Criminal Code (active participation in actions causing a breach of public order). Mr Zulfugar Eyvazov (application no. 6903/13) and Mr Arif Alishli (application no. 28563/13) were formally charged with the same criminal offence under Article 233 of the Criminal Code on 15 April 2011 and 16 April 2011 respectively.
On the dates when the applicants were formally charged the Sabail District Court ordered their pre-trial detention, upon the prosecution’s requests. Later the pre-trial detention in respect of each applicant was extended.
On 25 May 2011 Mr Arif Alishli (application no. 28563/13) was additionally charged under Article 186.1 of the Criminal Code (intentional destruction or damaging of property).
3. The applicants’ trial
(a) Examination of the criminal case on the merits
On 28 June 2011 a bill of indictment (ittiham aktı) was drawn up in respect of the applicants. On an unspecified date the criminal case against the applicants was sent to the Sabail District Court for examination on the merits.
At the court hearing the applicants stated that they were not guilty and that they had participated in the demonstration because it was their constitutional right. Mr Zulfugar Eyvazov (application no. 6903/13), Mr Sahib Karimov (application no. 12717/13) and Mr Arif Alishli (application no. 28563/13) also stated that that the case against them was politically motivated and fabricated.
The trial court heard a number of prosecution witnesses. The prosecution witnesses gave a general description of the events of 2 April 2011. Two police officers stated that unidentified alleged participants of the demonstration had inflicted on them physical damage. The owner of a bus used by the police for transportation of arrested protesters, S.M., testified that some protesters had hit his bus and damaged it, and that as a result of the attack back doors of the bus had opened and two or three arrested protesters had managed to escape. Some prosecution witnesses stated that they suffered material damage because of the traffic jams allegedly caused by the demonstration. Some police officers testified that they had seen some protesters attacking the bus of S.M., and that the protesters participating in the attack had run away and it had not been possible to detain them.
The police officers who participated in the arrest of Mr Babak Hasanov (application no. 6814/13) testified that he had actively participated in the demonstration of 2 April 2011 and had refused to obey orders of the police to stop protesting.
The court also examined video recordings by two television channels which, according to the court, showed that during the demonstration Mr Arif Alishli (application no. 28563/13) had struck S.M.’s bus.
It is not clear from the materials submitted to the Court whether the trial court heard any witnesses on the applicants’ side.
(b) The first-instance judgment
The trial against the applicants ended in August 2011. The Sabail District Court found that the applicants had actively participated in actions causing a breach of public order. The court also found that the actions of Mr Arif Alishli (application no. 28563/13) “lead to a damage to other persons’ property”. By a judgment of 25 August 2011, the court convicted the applicants under Article 233 of the Criminal Code. The court convicted Mr Arif Alishli also under Article 186.1 of the Criminal Code. The applicants were sentenced to various terms of imprisonment ranging from one year and six months to three years (see Annex).
The trial court based its judgment exclusively on testimonies of a number of prosecution witnesses.
The Sabail District Court also examined civil claims against the applicants. The court granted claims lodged by legal and physical persons who had allegedly suffered financial loss because of traffic jams, in total sum of 5,265 Azerbaijani manats (AZN) to be paid jointly by the applicants and another defendant E.I.
In addition, the court granted S.M.’s civil claim in the amount of AZN 1,325 against Mr Arif Alishli (application no. 28563/13) and another defendant E.I.
(c) Appeals
The applicants lodged appeals before the Baku Court of Appeal. They complained that there had been various defects in the trial and that the hearings before the first-instance court had not been fair. They also complained that their arrest and conviction had been in violation of their right to freedom of assembly. The applicants asked the Baku Court of Appeal to quash the first-instance court’s judgment of 25 August 2011.
On an unspecified date the Baku Court of Appeal decided to examine the applicants’ appeals “without a judicial investigation”, that is without a new hearing on points of both fact and law entailing a fresh judicial examination of the evidence and the parties’ legal and factual arguments.
On 18 October 2011 the Baku Court of Appeal dismissed the applicants’ appeals. The Court of Appeal also reduced the sentence of Mr Elshan Hasanov (application no. 7990/13) from two years’ to one year’s imprisonment.
On 5 June 2012 and 17 October 2012 the Supreme Court dismissed the applicants’ cassation appeals and upheld the Baku Court of Appeal’s judgment of 18 October 2011 (see Appendix).
On 22 June 2012 Mr Babak Hasanov (application no. 6814/13), Mr Zulfugar Eyvazov (application no. 6903/13) and Mr Sahib Karimov (application no. 12717/13) were pardoned and released from serving the remainder of their sentences.
COMPLAINTS
1. The applicants complain under Article 6 of the Convention that the criminal proceedings against them, taken as a whole, were unfair.
2. The applicants complain under Article 11 of the Convention that their right to freedom of assembly was violated. The applicants in applications nos. 6814/13, 6903/13 and 28563/13 also rely on Article 10 in this respect.
QUESTIONS
1. Did the applicants have a fair hearing in determining the charge against them, in accordance with Article 6 § 1 of the Convention? Were the criminal proceedings, taken as a whole, fair? Was the applicants’ right to a reasoned judgment respected?
2. Has there been an interference with the applicants’ freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention? If so, was that interference prescribed by law and necessary, in terms of Article 11 § 2? Was the interference proportionate?
3. The parties are requested to submit copies of the following:
(a) all documents relating to the criminal proceedings, including the applicants’ complaints, appeals and requests; any statements made by the applicants during the initial stages of the pre-trial investigation, and the transcripts of the hearings;
(b) all documents relating to the organisation and holding of the demonstration of 2 April 2011, in particular the notifications 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.
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Notes
First-instance decisions
Final decisions
6814/13*
13/12/2012
Babak HASANOV
1973
Baku
Ruslan MUSTAFAZADE
Asabali MUSTAFAYEV
1 year and 6 months’ imprisonment for participation in the demonstration 2 April 2011
Judgment of the Sabail District Court of 25 August 2011
Decision of the Supreme Court of 5 June 2012 (sent to the applicant on 28 June 2012)
6903/13*
12/12/2012
Zulfugar EYVAZOV
1959
Baku
Ruslan MUSTAFAZADE
Asabali MUSTAFAYEV
1 year and 6 months’ imprisonment for participation in the demonstration 2 April 2011
Judgment of the Sabail District Court of 25 August 2011
Decision of the Supreme Court of 17 October 2012
7990/13
04/01/2013
Elshan HASANOV
1959
Baku
Intigam ALIYEV
2 years’ imprisonment for participation in the demonstration 2 April 2011 (changed by the Court of Appeal to one year’s imprisonment)
Judgment of the Sabail District Court of 25 August 2011
Decision of the Supreme Court of 5 June 2012 (sent to the applicant on 7 July 2012)
12717/13*
05/12/2012
Sahib KARIMOV
1974
Baku
Intigam ALIYEV
2 years’ imprisonment for participation in the demonstration 2 April 2011
Judgment of the Sabail District Court of 25 August 2011
Decision of the Supreme Court of 5 June 2012 (sent to the applicant on 28 June 2012)
28563/13*
27/03/2013
Arif ALISHLI
1962
Baku
Ruslan MUSTAFAZADE
Asabali MUSTAFAYEV
3 years’ imprisonment for participation in the demonstration 2 April 2011
Judgment of the Sabail District Court of 25 August 2011
Decision of the Supreme Court of 17 October 2012
Full & Egal Universal Law Academy