Communicated on 21 April 2015
FIRST SECTION
Application no. 60262/11
Dayanat BABAYEV against Azerbaijan
and 6 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Azerbaijani nationals (see a list of the applicants in Appendix). They are represented before the Court by Mr R. Mustafazade and Mr A. Mustafayev, lawyers practising in Azerbaijan.
The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Background information
The applicants are opposition-oriented activists; all, except for the applicant in application no. 63655/14, are members of an opposition party.
In the period from 2010 to 2014 a number of opposition parties or groups organised several peaceful demonstrations, mainly in Baku.
Three of these demonstrations were planned to take place on 11 March 2011, 23 February 2014 and 9 March 2014. Information about the upcoming demonstrations was disseminated through the press and (or) on Internet through social networks, including Facebook. It appears that none of these demonstrations were authorised by the relevant authorities.
2. Case-specific facts
(a) Application no. 60262/11 lodged on 10 September 2011 by Dayanat Babayev
According to the applicant, he was actively propagating on social networks the upcoming demonstration of 11 March 2011. Also, the applicant intended to participate in this public assembly.
At around 11.20 a.m. on 4 March 2011, in an Internet club, the applicant was arrested by three plain-clothed persons who failed to present themselves or explain reasons for the arrest. One of these persons fetched from the Internet club the applicant’s belongings, including his mobile phone. The applicant was pushed into an ordinary car where one of the persons who arrested him presented himself as a police officer and showed a police badge, and the other two presented themselves as agents of the Ministry of National Security, without showing any document. The applicant was informed that he was arrested in connection with a demonstration planned to be held on 11 or 12 March 2011. He was brought to Police Station no. 22.
The applicant was not given an opportunity to contact his relatives. His rights, including the right to have a lawyer, were not properly explained to him and he was not given access to a lawyer.
At the police station an “administrative offence report” (inzibati xəta haqqında protokol) was drawn up in his respect. 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 this report or with other materials in his case-file.
The applicant was brought before the Nasimi District Court on 4 March 2011, on the day of his arrest. The first-instance court found that at around 11 a.m., in front of the National Bank in Baku, the applicant had deliberately failed to comply with the lawful order of police officers to stop speaking loudly on a mobile phone and to stop swearing. The court convicted the applicant under Article 310.1 of the CAO and sentenced him to ten days’ “administrative” detention.
During the hearing before the first-instance court the applicant had refused the assistance of a State-funded lawyer and insisted on hiring a lawyer of his own choice, but the judge had disregarded his request. Representation by the State-funded lawyer was ineffective and of a formalistic nature.
Before the court the applicant argued that at the alleged date and time – 4 March 2011 at around 11 a.m. – he did not speak on mobile phone or swear. He stated that he did not commit any offence and was arrested unlawfully. The court disregarded the applicant’s arguments and statements as non-reliable. Only police officers were questioned as witnesses. According to the applicant, those police officers had not been involved in his arrest and he had seen them for the first time only when he had been brought to Police Station no. 22. The court’s decision was based on the police officers’ statements and on the administrative offence report drawn up in the applicant’s respect.
On 4, 5 and 6 March 2011 several web-sites and newspapers published information that several plain-clothed persons detained the applicant and took him to an unknown location. According to the applicant, in response to his relatives’ inquiries about his whereabouts the law enforcement authorities replied that the applicant was not in their custody.
On 6 March 2011 the applicant’s relatives obtained information from unofficial sources that he was kept in a detention facility of the Baku Chief Police Office. The same day a lawyer hired by the applicant’s relatives attempted to meet the applicant. However, a warden informed the lawyer that, since the chief of the detention facility was not there and since it was a non-working day, meeting with the applicant was not allowed. The warden gave the lawyer a copy of the court decision of 4 March 2011.
On 7 March 2011 the lawyer was able to meet the applicant and to learn about details of his arrest, detention and court proceedings against him.
The applicant lodged an appeal before the Baku Court of Appeal, arguing that his arrest had been unlawful and that the hearing before the first‑instance court had not been fair. Also, the applicant specifically complained about inability to meet his lawyer on 6 March 2011. He requested the court to examine the mobile phone call records corresponding to the date and time of the alleged administrative offence. The applicant asked the Baku Court of Appeal to quash the first-instance court’s decision in his case.
On 19 March 2011 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
(b) Application no. 34262/14 lodged on 23 April 2014 by Ilham Huseynov
According to the applicant, he intended to participate in the upcoming demonstration of 9 March 2014.
At around 8 p.m. or 9 p.m. on 27 February 2014, when he was returning home, a police officer approached the applicant on a street. The police officer requested the applicant to go with him to a police office in connection with a credit he obtained from a bank. The applicant informed his father about this. Then the police officer accompanied the applicant and his father to Police Station no. 2 of the Khazar District Police Office. One or two hours later, the applicant’s father was requested to leave the police station.
Following this the applicant was questioned and was informed that he was arrested in connection with his political activity.
The applicant was not given an opportunity to contact his relatives. His 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 the applicant’s arrest, an administrative offence report was issued against him. The report stated that the applicant had committed an administrative offence under Articles 296 (minor hooliganism) and 310.1 of the CAO.
The applicant was kept in the police station overnight and was brought before the Khazar District Court the day following his arrest. The court found that at around 8 p.m. on 27 February 2014, in the Khazar sanatorium, the applicant had breached public order by shouting insults, without addressing a particular person, and deliberately failed to comply with the lawful order of police officers to stop swearing. The court convicted the applicant under Articles 296 and 310.1 of the CAO and sentenced him to twenty days’ “administrative” detention.
The applicant refused the assistance of a State-funded lawyer and insisted on hiring a lawyer of his own choice, but the judge disregarded his request. Representation by the State-funded lawyer was ineffective and of a formalistic nature.
Only police officers were questioned as witnesses. According to the applicant, those police officers were the ones who questioned him at the police station.
The hearing before the first-instance court was very short.
During the hearing the applicant contested the police officers’ version of events. The court disregarded the applicant’s statements.
The court’s decision was based on the police officers’ statements and on the administrative offence report drawn up in the applicant’s respect.
The applicant lodged an appeal before the Baku Court of Appeal, arguing that his arrest had been unlawful and politically motivated, and that the hearing 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.
On 14 March 2014 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
(c) Application no. 35948/14 lodged on 26 April 2014 by Tazakhan Miralamli
According to the applicant, he intended to participate in the upcoming demonstration of 9 March 2014.
At around 3 p.m. on 27 February 2014, plain-clothed police officer approached the applicant when he was walking towards a park near his home. They presented themselves and requested the applicant to go with them as the chief of police wanted to see him. The applicant obeyed the police officers and got into their car. In the car the police officers seized his mobile phone. The applicant was taken to the Narimanov District Police Office.
At the police office the applicant was questioned. He learned that his arrest was connected to his political activities.
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 the applicant’s arrest, an administrative offence report was issued against him. The report stated that the applicant had committed an administrative offence under Article 310.1 of the CAO. The applicant refused to sign the report.
The applicant was brought before the Narimanov District Court on the day of the arrest. The court found that at around 3.30 p.m. on 27 February 2014 at Juma street, Baku, the applicant had deliberately failed to comply with the lawful order of police officers by refusing to produce an identity document and being rude. The court convicted the applicant under Article 310.1 of the CAO and sentenced him to fifteen days’ “administrative” detention.
The applicant refused the assistance of a State-funded lawyer and insisted on hiring a lawyer of his own choice, but the judge disregarded his request. Representation by the State-funded lawyer was ineffective and of a formalistic nature.
Only police officers were questioned as witnesses. According to the applicant, those police officers were the ones who questioned him at the police office.
The hearing before the first-instance court was very brief. During the hearing the applicant contested the police officers’ version of events. The court disregarded the applicant’s statements.
The court’s decision was based on the police officers’ statements and on the administrative offence report drawn up in the applicant’s respect.
The applicant lodged an appeal before the Baku Court of Appeal, arguing that his arrest had been unlawful and politically motivated, and that the hearing 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.
On 17 March 2014 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
(d) Application no. 38276/14 lodged on 7 May 2014 by Bahruz Hasanov
According to the applicant, he intended to participate in the upcoming demonstration of 9 March 2014.
On 27 February 2014 the applicant and his relative visited an office of the applicant’s acquaintance. At around 4 p.m., when they exited that office, the applicant noticed fifteen police officers, five of which were plain‑clothed, gathered around his car. The police officers told the applicant that they received information that he had hit someone with a car, and that they were conducting an investigation with regard to that matter. They first requested the applicant’s identity card and then asked him to get into a police car. The applicant obeyed. In the car the police officers seized his mobile phone.
According to the applicant, his relative witnessed his arrest.
The applicant was taken to the Surakhani District Police Office.
At the police office the applicant learned that his arrest was connected to his political activities.
The applicant was not given an opportunity to contact his relatives. His 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 the applicant’s arrest, an administrative offence report was issued in his respect. The report stated that the applicant had committed an administrative offence under Article 310.1 of the CAO.
The applicant was brought before the Surakhani District Court on the day of the arrest. The court found that at around 4.30 p.m. on 27 February 2014 in Garachukhur settlement, Baku, the applicant had deliberately failed to comply with the lawful order of police officers by arguing with them, insulting them, and showing resistance. The court convicted the applicant under Article 310.1 of the CAO and sentenced him to twenty days’ “administrative” detention.
The hearing before the first-instance court was very brief. During the hearing the applicant contested the police officers’ version of events. Also, he maintained that alleged investigation by the police into his reported car accident was a lie. The court disregarded the applicant’s statements. Only prosecution witnesses were questioned.
The applicant refused the assistance of a State-funded lawyer and insisted on hiring a lawyer of his own choice, but the judge disregarded his request. Representation by the State-funded lawyer was ineffective and of a formalistic nature.
The applicant lodged an appeal before the Baku Court of Appeal, arguing that his arrest had been unlawful and politically motivated, and that the hearing 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.
On 13 March 2014 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
(e) Application no. 56232/14 lodged on 19 May 2014 by Tofig Dadashov
According to the applicant, on an unspecified date he created a Facebook group calling for resignation of the Baku city mayor. The group invited the public to participate in a demonstration against the mayor, planned to be held on 23 February 2014. The applicant himself intended to participate in it.
On 22 February 2014 a number of plain-clothed persons came to the applicant’s flat, entered it and arrested him. They also seized the applicant’s computer.
The applicant was taken to the Binagadi District Police Office. Next day he was transferred to Police Station no. 40 of the Binagadi District Police Office.
The applicant was not informed about the reasons for his arrest. His rights, including the right to have a lawyer, were not properly explained to him and he was not given access to a lawyer.
At Police Station no. 40 an administrative offence report was issued in the applicant’s regard. The report stated that the applicant had committed an administrative offence under Article 310.1 of the CAO.
The applicant was kept at the police station overnight.
According to the applicant, on an unspecified date and time police officers entered the applicant’s Facebook account and put a notice on cancellation of the planned demonstration of 23 February 2014.
On 24 February 2014 the applicant was brought before the Binagadi District Court. The court convicted him under Article 310.1 of the CAO and sentenced him to ten days’ “administrative” detention.
During the court proceedings, the applicant insisted on hiring a lawyer of his own choice, but the judge disregarded his request. Representation by the State-funded lawyer was ineffective and of a formalistic nature.
In its decision the court did not either analyse facts of the case or substantiate the decision reached with reference to any evidence. It appears that the court relied only on the administrative offence report drawn up in the applicant’s respect.
The applicant lodged an appeal before the Baku Court of Appeal, arguing that his arrest had been unlawful and politically motivated, that the hearing before the first-instance court had not been fair, and that his freedom of expression was violated. The applicant asked the Baku Court of Appeal to quash the first-instance court’s decision in his case.
On 3 March 2014 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
(f) Application no. 62138/14 lodged on 29 August 2014 by Turkel Alisoy
According to the applicant, he intended to participate in the upcoming demonstration of 9 March 2014.
At around 6 p.m. on 5 March 2014, when the applicant was at the Fountains Square in Baku, several plain-clothed persons approached the applicant and without explaining anything forced him into a car. In the car the applicant’s mobile phone was seized.
The applicant was taken to the Khatai District Police Office. The police officers told the applicant that an owner of a flat where he used to live had complained to the police of the applicant’s failure to pay his rent.
Later the applicant was transferred to Police Station no. 35 of the Khatai District Police Office.
The applicant was not given an opportunity to contact his relatives. His rights, including the right to have a lawyer, were not properly explained to him and he was not given access to a lawyer.
At the police station an administrative offence report was issued in his regard. The report stated that the applicant had committed an administrative offence under Article 310.1 of the CAO. It appears that the report indicated around 7 a.m. on 6 March 2014 as the date and time of the alleged administrative offence. According to the applicant, he was forced to sign the report because the police officers threatened to charge him with a criminal offence of illegal possession of drugs if he refused to do so. He was never served with a copy of this report or with other materials in his case-file.
The applicant was kept at the police station overnight.
On 6 March 2014 the applicant was brought before the Khatai District Court. The court found that at around 7 a.m. on 6 March 2014 near a shopping centre in the Khatai District of Baku, the police officers had approached the applicant – because they had received a complaint against him – and had asked his identity document; that the applicant had refused to produce this document and had therefore had been requested to go to a police station for establishment of his identity; and that the applicant had deliberately failed to comply with the lawful order of police officers by refusing to go with them to a police station. The court convicted the applicant under Article 310.1 of the CAO and sentenced him to twenty days’ “administrative” detention.
The hearing before the first-instance court was very short. During the hearing only police officers were questioned as witnesses. The applicant in his self-incriminatory statement confirmed the police officers’ account of events. According to the applicant, he did so because the day before he was threatened with graver charges and still felt under control of the police.
The applicant insisted on hiring a lawyer of his own choice, but the judge disregarded his request. Since he doubted effectiveness of representation by the State-funded lawyer the applicant refused the assistance of this lawyer.
The court’s decision was heavily based on the police officers’ statements and on the administrative offence report drawn up in the applicant’s respect.
The applicant lodged an appeal before the Baku Court of Appeal, arguing that his arrest had been unlawful and politically motivated, that the hearing before the first-instance court had not been fair, and that he gave self-incriminatory statements under fear of being framed with offence of illegal possession of drugs. Also, he particularly complained that he was kept in the police station overnight from 5 March to 6 March 2014 without any official decision or record of his detention. The applicant asked the Baku Court of Appeal to quash the first-instance court’s decision in his case.
On 19 March 2014 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
(g) Application no. 63655/14 lodged on 9 September 2014 by Agaverdi Rushanov
According to the applicant, he intended to participate in the upcoming demonstration of 9 March 2014.
At around 11 a.m. on 5 March 2014, three plain-clothed persons approached the applicant inside a pharmacy and requested him to go with them in a car. In the car the applicant’s mobile phone was seized. The plain-clothed persons were police officers.
The applicant was taken to Police Station no. 15 of the Sabunchu District Police Office.
The applicant was not informed about the reasons for his arrest and was not given an opportunity to contact his relatives. His 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 the applicant’s arrest, an administrative offence report was issued in his regard. The report stated that the applicant had committed an administrative offence under Article 310.1 of the CAO. The applicant refused to sign the report. He was never served with a copy of this report or with other materials in his case-file.
The applicant was brought before the Sabunchu District Court on the day of the arrest. The court found that at around 11 a.m. on 5 March 2014 in the Bakikhanov settlement of Baku, the applicant had deliberately failed to comply with the lawful order of officers of the Criminal Investigation Department of the Sabunchu District Police Office. The court convicted the applicant under Article 310.1 of the CAO and sentenced him to twenty days’ “administrative” detention.
The hearing before the first-instance court was very short. During the hearing the applicant contested the police officers’ version of events. Also, he stated that he did not know that the plain-clothed persons who approached him were police officers. The court regarded the applicant’s statements as self-incriminating statements. The court questioned no one except for the applicant himself.
The applicant insisted on hiring a lawyer of his own choice, but the judge disregarded his request. Since he doubted effectiveness of representation by the State-funded lawyer the applicant refused the assistance of this lawyer.
The court’s decision was heavily based on the administrative offence report drawn up in the applicant’s respect.
The applicant lodged an appeal before the Baku Court of Appeal, arguing that his arrest had been unlawful and politically motivated, and that the hearing 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.
On 19 March 2014 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
COMPLAINTS
1. The applicants complain under Article 5 of the Convention that their arrest and administrative detention were unlawful and that during their arrest a number of domestic procedural rules were violated.
2. The applicants complain under Article 6 of the Convention that they did not have a fair hearing in the administrative offence proceedings, that they were not given sufficient time and facilities to prepare their defence, that they were deprived of access to effective legal assistance, both after the arrest and during the judicial proceedings, and that the only witnesses questioned were police officers or no witnesses were questioned at all.
3. The applicants complain that their arrest and conviction prior to peaceful public gatherings in which they intended to participate, was an unlawful interference with their right to freedom of assembly under Article 11 of the Convention. The applicant in application no. 56232/14 also relies on Article 10 in this respect.
4. The applicants in applications nos. 62138/14 and 63655/14 complain that in violation of Article 13 of the Convention they did not have an effective remedy to protect their right to freedom of assembly.
Also, the applicants complain under Article 18 of the Convention that the real reason for their arrest and conviction was their political activity, more specifically their intent to participate in the upcoming demonstration and generally their active participation in public assemblies organised by the opposition.
5. The applicants in applications nos. 34262/14, 35948/14, 38276/14, 56232/14, 62138/14 and 63655/14 complain under Article 14 of the Convention that their arrest and conviction was politically motivated.
COMMON QUESTIONS
1. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, were the applicants’ “administrative” arrests 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 applicants have a fair and public hearing in determining the charge against them, 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 their defence, the opportunity to defend themselves through effective legal assistance, and the questioning of witnesses?
3. 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?
4. Had the applicants participated in demonstrations or other public gatherings organised by oppositional parties or groups before their arrest in present cases? Had the applicants been convicted for participation in unauthorised demonstrations or other public gatherings before their arrest in present cases? The parties are requested to submit details of such convictions (if any).
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 applicants before being brought to court, the transcripts of the hearings and the applicants’ appeals.
6. Did the organisers give prior notice to the relevant authorities about the planned demonstrations of 11 March 2011, 23 February 2014, and 9 March 2014?
CASE SPECIFIC QUESTIONS
Applications nos. 62138/14 and 63655/14:
Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 5 and 11, as required by Article 13 of the Convention?
Were the restrictions imposed by the State in the present cases, purportedly pursuant to Articles 5 and 11 of the Convention, applied for a purpose other than those envisaged by those provisions, contrary to Article 18 of the Convention?
Applications nos. 34262/14, 35948/14, 38276/14, 56232/14, 62138/14 and 63655/14:
Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their political activity, contrary to Article 14 of the Convention read in conjunction with Articles 5 and 11?
Applications nos. 34262/14, 35948/14, 38276/14:
Were the applicants served with a copy of the administrative offence report issued against each of them and with other materials in their case‑files?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Sanction
First-instance judgment
Appellate judgment
60262/11
10/09/2011
Dayanat BABAYEV
1989
Neftchala
10 days’ administrative detention (prior to the demonstration of 11 March 2011)
Decision of the Nasimi District Court of 4 March 2011
Decision of the Baku Court of Appeal of 19 March 2011
34262/14
23/04/2014
Ilham HUSEYNOV
1983
Baku
20 days’ administrative detention (prior to the demonstration of 9 March 2014)
Decision of the Khazar District Court of 27 February 2014
Decision of the Baku Court of Appeal of 14 March 2014
35948/14
26/04/2014
Tazakhan MIRALAMLI
1970
Baku
15 days’ administrative detention (prior to the demonstration of 9 March 2014)
Decision of the Narimanov District Court of 27 February 2014
Decision of the Baku Court of Appeal of 17 March 2014
38276/14
07/05/2014
Bahruz HASANOV
1981
Baku
20 days’ administrative detention (prior to the demonstration of 9 March 2014)
Decision of the Surakhani District Court of 27 February 2014
Decision of the Baku Court of Appeal of 13 March 2014
56232/14
19/05/2014
Tofig DADASHOV
1990
Kurdamir
10 days’ administrative detention (prior to the planned demonstration of 23 February 2014)
Decision of the Binagadi District Court of 24 February 2014
Decision of the Baku Court of Appeal of 3 March 2014
62138/14
29/08/2014
Turkel ALISOY
1991
Baku
20 days’ administrative detention (prior to the demonstration of 9 March 2014)
Decision of the Khatai District Court of 6 March 2014
Decision of the Baku Court of Appeal of 19 March 2014
63655/14
09/09/2014
Agaverdi RUSHANOV
1963
Baku
20 days’ administrative detention (prior to the demonstration of 9 March 2014)
Decision of the Sabunchu District Court of 5 March 2014
Decision of the Baku Court of Appeal of 19 March 2014
Full & Egal Universal Law Academy