CASE OF AGAYEV v. AZERBAIJAN

FIFTH SECTION

CASE OF AGAYEV v. AZERBAIJAN

(Application no. 66917/11)

JUDGMENT
 

STRASBOURG

14 May 2020

This judgment is final but it may be subject to editorial revision.

In the case of Agayev v. Azerbaijan,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

André Potocki, President,
Lәtif Hüseynov,
Anja Seibert-Fohr, judges,
and Victor Soloveytchik, Deputy Section Registrar,

Having regard to:

the application against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Kheyrulla Ibrahim oglu Agayev (Xeyrulla İbrahim oğlu Ağayev ‑ “the applicant”), on 4 October 2011;

the decision to give notice of the complaints under Article 6 §§ 1 and 3 (c) of the Convention to the Azerbaijani Government (“the Government”) and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 15 April 2020,

Delivers the following judgment, which was adopted on that date:

introduction

The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that the domestic proceedings concerning his administrative arrest had been unfair.

THE FACTS

1.  The applicant was born in 1954 and lives in Baku. He was represented by Mr R. Mustafazade and Mr A. Mustafayev, lawyers based in Azerbaijan. Mr R. Mustafazade was given leave by the President of the Section to represent the applicant in the proceedings before the Court (Rule 36 § 4 (a) in fine of the Rules of Court).

2.  The Government were represented by their Agent, Mr. Ç. Əsgərov.

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

4.  At approximately 4 p.m. on 12 March 2011 the applicant was arrested by four police officers and taken to Sabail district police station no. 9 in Baku.

5.  The police officers stated the following in a report (raport) submitted to their superior officer:

“... at around 4 p.m. we arrested the four persons listed below for deliberately disobeying lawful orders of the police during an unlawful demonstration and brought [them] to police station no. 9: ... Agayev Kheyrulla Ibrahim oglu ...”

6.  An administrative-offence report (inzibati xəta haqqında protokol) was drawn up by police officer E.Q., which stated that by deliberately failing to comply with lawful orders of the police during the unauthorised demonstration, the applicant had committed administrative offences under Articles 298 (breach of the rules on the organisation and holding of assemblies, demonstrations, protests, marches and pickets) and 310.1 (deliberate failure to comply with lawful orders of the police) of the Code of Administrative Offences (“the CAO”). The applicant stated that he had been arrested while passing a street on the way to meet an old friend and that he had repeatedly informed the police officers of this.

7.  According to the applicant, he was not given access to a lawyer either after his arrest or while he was in police custody.

8.  At 7.30 p.m. that evening he was brought before the Sabail District Court.

9.  According to the applicant, he refused State-funded legal assistance and insisted on choosing his own lawyer, but his request was disregarded. The hearing was closed to the public and was very brief.

10.  The Government provided a copy of a pre-printed form addressed to the judge (ərizə) stating that the applicant refused the legal assistance of a State-funded lawyer and chose to represent himself. The form was signed by the applicant and the State-funded lawyer.

11.  The applicant told the court that he was not guilty of the offences in question and that he had not participated in the demonstration, as he had been merely passing the street on the way to meeting a friend.

12.  The only witness questioned during the court hearing was the police officer who had drawn up the initial report at the police station.

13.  At 7.30 p.m. that evening the Sabail District Court found that the applicant had failed to obey police orders to stop participating in the unauthorised demonstration. The court convicted him under Article 310.1 of the CAO and sentenced him to seven days’ administrative detention.

14.  On 15 March 2011 the applicant lodged an appeal with the Baku Court of Appeal, arguing that his conviction was unlawful as he had not participated in the demonstration. He requested that the police officers who had arrested him be called to give evidence. He also complained that he had been deprived of access to a defence lawyer and that the hearing before the first-instance court had not been fair. He urged the appellate court to quash the first-instance court’s decision.

15.  The applicant was represented before the Baku Court of Appeal by a lawyer of his own choosing.

16.  On 17 March 2011 it dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct.

RELEVANT LEGAL FRAMEWORK

17.  The relevant provisions of the CAO are described in detail in the Court’s judgment in Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 32‑38, 15 October 2015).

THE LAWALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

18.  The applicant complained under Article 6 of the Convention that he had not had a fair hearing in the administrative proceedings. In particular, he complained that the hearing before the first-instance court had not been public, that the domestic courts’ decisions had not been reasoned, that he had not been provided with a lawyer following his arrest on 12 March 2011 or represented by a lawyer of his own choosing in the administrative proceedings before the first-instance court, and that he had been deprived of his right to examine the witnesses against him before the Baku Court of Appeal. The relevant parts of Article 6 of the Convention read as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”Admissibility

19.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsThe parties’ submissions

20.  The applicant submitted, in particular, that the hearing before the first-instance court had been very brief. He also argued that the courts’ findings had been based solely on the administrative-offence report and the testimony of one police officer, the only witness questioned at the first‑instance hearing. The applicant further submitted that he had not been represented by a lawyer before appearing in court and that the public had not been allowed to attend the hearing, even though the court had not issued an official decision to examine his case in a closed hearing. He also argued that he had insisted on choosing his own lawyer, but that his request had been disregarded. As he had been unsure of the service he would receive from a legal-aid lawyer, he had chosen to represent himself.

21.  The Government submitted that the applicant’s rights under Article 6 of the Convention had been duly respected. The hearing before the first‑instance court had been open to the public and no complaints or objections alleging the opposite had been voiced. Moreover, the applicant had failed to submit any evidence to substantiate his allegation that the hearing had been held in camera. Furthermore, his arguments had been carefully examined by the courts and weighed against the testimony of police officers and other evidence in the case file. They also submitted that in the proceedings before the first-instance court a State-funded lawyer had been appointed, but that the applicant had refused that person’s assistance and decided to defend himself.The Court’s assessment

22.  The Court notes at the outset that there is a significant degree of similarity between the legal issues raised by the applicant under Article 6 of the Convention in the present case and previous cases against Azerbaijan concerning the administrative conviction of applicants under the CAO (see, among many other authorities, Gafgaz Mammadov v. Azerbaijan, no. 60259/11, §§ 74-96, 15 October 2015; Ibrahimov and Others v. Azerbaijan, nos. 69234/11 and 2 others, §§ 93-115, 11 February 2016; and Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, §§ 110‑35, 11 February 2016).

23.  In particular, as in the latter cases, the applicant in the present case was held in police custody without any contact with the outside world, was not provided with legal assistance immediately after his arrest and shortly afterwards (within three and half hours of his arrest) was taken before a court and convicted. The first-instance court referred only to the administrative-offence report and the testimony of the police officer who had drawn it up, without giving any further reasons for its decision. The appellate court disregarded the applicant’s request for the police officers who had arrested him to be called to give evidence and endorsed the findings of the first-instance court without considering any other explanations.

24.  The Court therefore considers that the administrative proceedings in the present case, considered as a whole, were not in conformity with the guarantees of a fair trial under Article 6 §§ 1 and 3 of the Convention (see Gafgaz Mammadov, § 96; Ibrahimov and Others, § 115; and Huseynli and Others, § 135, all cited above).

25.  Furthermore, having regard to the above finding of a violation of Article 6 §§ 1 and 3 of the Convention, the Court finds it unnecessary to rule on the issue of whether refusal by the applicant of State-funded legal assistance in the proceedings before the first-instance court constituted an unequivocal waiver of the right to a lawyer (see Hajili and others v. Azerbaijan [Committee], nos. 44699/13 and 2 others, § 61, 29 June 2017, and Mirzayev and others v. Azerbaijan [Committee], nos. 12854/13 and 2 others, § 30, 20 July 2017).APPLICATION OF ARTICLE 41 OF THE CONVENTION

26.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Damage

27.  The applicant claimed 21,000 euros (EUR) in respect of non‑pecuniary damage.

28.  The Government submitted that his claim was unsubstantiated.

29.  The Court considers that the applicant has suffered non‑pecuniary damage which cannot be compensated for solely by the finding of a violation and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards him the sum of EUR 3,600 under this head, plus any tax that may be chargeable on this amount.Costs and expenses

30.  The applicant also claimed EUR 3,000 for the legal fees incurred before the domestic courts and before the Court. In support of his claim, he submitted a payment receipt to his lawyer in the domestic proceedings in amount of 70 Azerbaijani manats (AZN) (approximately EUR 60 at the relevant time) and a contract dated 2 October 2011 for legal and translation services in the proceedings before the Court. The applicant also requested that any compensation awarded under that head be paid directly into his representative’s bank account.

31.  The Government contested this claim.

32.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the amount of legal work necessary in the present case, the Court considers it reasonable to award the total sum of EUR 500 to cover costs under all heads, to be paid directly into his representatives’ bank account.Default interest

33.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the application admissible;Holds that there has been a violation of Article 6 §§ 1 and 3 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)        EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)      EUR 500 (five hundred euros), plus any tax that may be chargeable to him, in respect of costs and expenses, to be paid directly into his representatives’ bank account;

(b)  that from the expiry of the above-mentioned three months until settlement 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;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 May 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Victor Soloveytchik André Potocki
Deputy RegistrarPresident

 

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