CASE OF IBRAHIMOV AND OTHERS v. AZERBAIJAN

FIFTH SECTION

CASE OF IBRAHIMOV AND OTHERS v. AZERBAIJAN

(Applications nos. 69234/11, 69252/11 and 69335/11)

JUDGMENT

STRASBOURG

11 February 2016

FINAL

11/05/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ibrahimov and Others v. Azerbaijan,

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

Angelika Nußberger, President,
Khanlar Hajiyev,
Erik Møse,
André Potocki,
Yonko Grozev,
Síofra O’Leary,
Carlo Ranzoni, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 19 January 2016,

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

PROCEDURE

1. The case originated in three applications (nos. 69234/11, 69252/11 and 69335/11) 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 Azerbaijani nationals, Mr Agasif Shakir oglu Ibrahimov (Ağasif Şakir oğlu İbrahimov – “the first applicant”), Mr Emin Mehdi oglu Farhadi (Emin Mehdi oğlu Fərhadi – “the second applicant”) and Mr Jamil Malik oglu Hajiyev (Cəmil Malik oğlu Hacıyev – “the third applicant”), on 19 October 2011.

2. The applicants, who had been granted legal aid, were represented by Mr R. Mustafazade and Mr A. Mustafayev, lawyers practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. The applicants alleged in particular, that the dispersal of the demonstration in which they had participated and their arrest and conviction had violated their right to freedom of peaceful assembly and freedom of expression. They further complained that the administrative proceedings against them had fallen short of guarantees of a fair hearing, and that their arrest and conviction had been contrary to guarantees of the right to liberty.

4. On 17 February 2014 the complaints concerning Articles 5, 6, 10 and 11 were communicated to the Government and the remainder of the applications was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1988, 1989 and 1977 respectively. The first and third applicants live in Baku, and the second applicant lives in Khirdalan.

A. Demonstration of 22 May 2011 and the applicants’ “administrative” arrest

6. The youth group Committee for Protection of Rights of Young Political Prisoners (“Gənc Siyasi Məhbusların Hüquqlarını Müdafiə Komitəsi”) decided to hold a demonstration at around 5.30 p.m. on 22 May 2011 at the Seaside Boulevard in Baku. They did not notify their plan to the relevant authority, the Baku City Executive Authority (the BCEA).

7. According to the applicants, the demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants, a group of ten to twelve persons, were demanding the release of young persons arrested during some previous demonstrations.

8. The applicants attended the demonstration, but shortly after it had begun the police started to disperse it. According to the applicants, as soon as they noticed the police approaching they attempted to run away and leave the place of the demonstration but police officers followed and caught them. All three applicants were arrested by police officers V.I. and R.G. at around 5.30 p.m. and were taken to police station No. 39 of the Sabail District Police Office.

9. Police officers V.I. and R.G. stated the following in a report (raport) submitted to a superior police officer:

“... at around 5.30 p.m. at the Seaside Boulevard ... a group of young persons attempted to hold an unauthorised [demonstration] by shouting out loud, and disturbed people. When we wanted to calm down those persons they ignored us. ... We ... brought them to police station no. 39. ...”

10. According to the applicants, they were questioned at the police station.

11. Between 6.15 p.m. and 6.30 p.m. on the day of the arrest, “administrative-offence reports” (inzibati xəta haqqında protokol) were issued by police officer T.R. in respect of all three applicants. The reports stated that at 5.30 p.m. on 22 May 2011, by deliberately failing to comply with the lawful order of the police, the applicants had committed an administrative offence under Article 310 of the Code of Administrative Offences (“the CAO”).

12. All three applicants refused to sign the respective administrative-offence reports, which contained pre-printed texts declaring that “[the arrested person] was familiarised with the report” and “the rights and obligations under Articles 371, 372, 374, 377, 379 and 410.4 of the CAO of the Republic of Azerbaijan were explained”.

13. Subsequently, police officer T.R. prepared “administrative-arrest reports” (inzibati qaydada tutma haqqında protokol) with respect to the first and second applicants.

14. According to those administrative-arrest reports, copies of which were submitted to the Court by the Government, the first and second applicants had been subjected to administrative arrest at 7 p.m. on 22 May 2011. The reports also stated that the applicants had been released on the same date, without specifying the time of the alleged releases, and contained signatures of the first and second applicants. However, all three applicants maintained that they had been kept in police custody overnight.

15. According to the applicants, they were never served with copies of the administrative-offence reports or with other documents in their case files. They were not given access to a lawyer after the arrest or while they were kept in police custody.

B. Court proceedings against the applicants

1. The first applicant, Mr Agasif Ibrahimov

16. On 23 May 2011, the day after his arrest, the first applicant, Mr Agasif Ibrahimov, was brought before the Sabail District Court.

17. According to the applicant, the hearing, which began at 12.40 p.m., was very brief and members of the public, including human rights defenders and journalists, were not allowed to attend, even though the court had not taken a formal decision to close the hearing to the public.

18. The applicant was not represented by any lawyer. According to the applicant, he was not given an opportunity to hire a lawyer of his own choice.

19. The applicant stated before the court that he was not guilty of disobeying a lawful order of a police officer.

20. The only witness questioned during the court hearing was police officer R.G., who testified as follows:

“At around 5.30 p.m. on 22 May 2011 ... a group of persons attempted to hold an unauthorised [demonstration] by shouting out loud, and disturbed people. When we wanted to calm down those persons, among them [the applicant], they disobeyed a lawful police order. Then we ... brought them to police station no. 39 where administrative-offence reports were issued in their respect. One of them was [the applicant].”.

21. The court found that the applicant had failed 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.

22. 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. He also complained that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. He requested the Baku Court of Appeal to quash the first-instance court’s decision.

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

24. On 31 May 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct.

25. The Court of Appeal also noted that at the first-instance court hearing the applicant had refused the assistance of a State-funded lawyer and had decided to defend himself in person.

2. The second applicant, Mr Emin Farhadi

26. On 23 May 2011, the day after his arrest, the second applicant, Mr Emin Farhadi, was brought before the Sabail District Court.

27. According to the applicant, the hearing, which began at 12.30 p.m., was very brief and members of the public were not allowed to attend, even though the court had not taken a formal decision to close the hearing to the public.

28. The applicant was not represented by any lawyer. According to the applicant, he was not given an opportunity to hire a lawyer of his own choice. According to the transcript of the court hearing, he refused the assistance of a State-funded lawyer and decided to defend himself in person.

29. The applicant stated before the court that he was not guilty of disobeying a lawful order of a police officer and that he had participated in the demonstration as an observer.

30. The only witness questioned during the court hearing was police officer R.G. The statement that he gave against the second applicant, Mr Emin Farhadi, was similar to his statement against the first applicant, Mr Agasif Ibrahimov (see paragraph 20 above).

31. The court found that the applicant had failed to stop participating in the unauthorised demonstration. The court convicted him under Article 310.1 of the CAO and sentenced him to eight days’ “administrative” detention.

32. 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. He also complained that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. He requested the Baku Court of Appeal to quash the first-instance court’s decision.

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

34. On 31 May 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct.

3. The third applicant, Mr Jamil Hajiyev

35. On 23 May 2011, the day after his arrest, the third applicant, Mr Jamil Hajiyev, was brought before the Sabail District Court.

36. According to the applicant, the hearing, which began at 12.30 p.m., was very brief and members of the public were not allowed to attend, even though the court had not taken a formal decision to close the hearing to the public.

37. The applicant was not represented by any lawyer. According to the applicant, he was not given an opportunity to hire a lawyer of his own choice and he refused the assistance of a State-funded lawyer because he believed that such assistance would be of a formalistic nature.

38. The applicant stated before the court that he was not guilty of disobeying a lawful order of a police officer. He further emphasised that he and other participants of the demonstration had protested peacefully, and that they had been holding photos of arrested young persons, without uttering any slogans. The applicant also stated that he had run away as soon as he saw the police approaching and had boarded a taxi, and that police officers had stopped that taxi and had forced him out.

39. The only witness questioned during the court hearing was police officer R.G. The statement that he gave against the third applicant, Mr Jamil Hajiyev, was similar to his statement against the first applicant, Mr Agasif Ibrahimov (see paragraph 20 above). R.G. also confirmed that Mr Jamil Hajiyev had tried to escape by taxi, and that the police officers had stopped that taxi.

40. The court found that the applicant had failed 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.

41. 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. He also complained that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. He requested the Baku Court of Appeal to quash the first-instance court’s decision.

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

43. On 31 May 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct.

II. RELEVANT DOMESTIC LAW

A. 1995 Constitution

44. The relevant part of Article 49 of the Constitution reads as follows:

Article 49
Freedom of assembly

“... II. Everyone has the right, having notified respective governmental bodies in advance, to assemble with other people peacefully and without arms, to organise meetings, demonstrations, protests and marches, and to stage pickets.”

B. Law on Freedom of Assembly of 13 November 1998

45. Under Article 5 of the Law, advance written notification is required in order to agree upon the place and time of an assembly and upon the route of a march, with the purpose of enabling the relevant local executive authority to take necessary measures. The notification has to be done in writing five days before the demonstration. Under Article 5 § IV of the Law, no prior written notification was required for spontaneous assemblies.

46. Other provisions of the Law provide the relevant local executive authority with broad powers to issue relevant orders so as to prohibit (Article 8 §§ IV and V) or stop (Article 8 § VI) a public assembly; to restrict or change the place, route and/or time of a public assembly (Article 9 §§ II and VII); and to designate specific areas for public assemblies (Article 9 § VI).

47. At the material time Article 14 of the Law provided as follows:

Article 14
Powers of the police authorities with regard to the holding of an assembly

“I. ... the police authorities have the following powers with regard to the holding of an assembly: ...

2) When necessary, to stop an assembly which has not been notified [to the authorities] beforehand, save for [spontaneous] assemblies ...;

...

4) To apprehend and remove from the place where an event is being held persons who came carrying ... weapons, as well as rocks, pieces of wood and glass, or clubs that may pose a threat to people’s life and safety or damage property, [as well as] ... explosives, ... flammables, ... radioactive materials;

...

II. The police authorities have the following powers with regard to the execution of orders specified under Article 8 paragraphs V and VI of this Law:

...

2) To order the organisers and participants of an assembly to use all available opportunities to stop the assembly and to disperse;

3) To warn organisers and participants that physical force or exceptional measures will be used against them if the order to stop the assembly and to disperse is not complied with;

4) To use physical force or exceptional measures in order to stop an assembly and disperse participants, in accordance with the legislation of the Republic of Azerbaijan;

5) To apprehend persons not complying with the order to stop an assembly and disperse. ...

VI. The use of physical force or exceptional measures by police officers in all circumstances must be proportionate to an existing threat.”

C. Code of Administrative Offences of 2000 (“the CAO”)

48. Article 298 of the CAO provided, at the material time, as follows:

Article 298
Breach of the rules on the organisation and holding of assemblies, demonstrations, protests, marches and pickets

“Any breach of the rules, set forth under the legislation, on the organisation and holding of assemblies, demonstrations, protests, marches and pickets shall be punishable by a reprimand or a fine of seven to thirteen manats [AZN].”

49. Article 310 provided, at the material time, as follows:

Article 310
Deliberate failure to comply with the lawful order of a police officer
or military serviceman

“310.1. Deliberate failure [by an individual] to comply with the lawful order of a police officer or military serviceman carrying out their duties to protect public order shall be punishable by a fine of twenty to twenty-five manats [AZN] or, if that sanction is inadequate in the circumstances of the case and taking into account the character of the offender, by administrative detention for a term of up to fifteen days.”

50. Article 376 provided, at the material time, as follows:

Article 376
Compulsory participation of a lawyer

“... 376.2. If it is impossible for the lawyer chosen by the person against whom administrative-offence proceedings are being carried out to attend, a judge ... shall appoint a lawyer for that person, in accordance with the legislation of the Republic of Azerbaijan.

376.3. If a person subjected to an administrative arrest has no possibility to hire a lawyer due to [his or her] financial situation, [his or her] legal assistance shall be funded by the State. In this case a lawyer may not refuse to carry out his or her duties.”

51. Article 396 provided, at the material time, as follows:

Article 396
Measures to secure administrative-offence proceedings

“396.1. An authorised official may use the following measures in order to prevent administrative offences, to establish the identity of a person, to draw up an administrative-offence report if this cannot be done at the place [of the administrative offence] and if the drawing up of a report is important, to ensure the correct and timely examination of [administrative-offence] cases, and to ensure the implementation of decisions in administrative-offence cases: ...

396.1.2. administrative arrest; ...”

52. Article 398 provided, at the material time, as follows:

Article 398.1
Administrative arrest

“398.1. Administrative arrest, that is the short-term restriction of an individual’s liberty, may be applied in exceptional circumstances when deemed necessary for ensuring the correct and timely examination of an administrative-offence case or for the implementation of a decision in an administrative-offence case, except for instances set out in legislation. ...”

53. Article 410 provided, at the material time, as follows:

Article 410
Administrative-offence report

“... 410.3. An individual who is subject to the administrative-offence proceedings or a representative of a legal entity shall be given an opportunity to familiarise with the administrative-offence report.

410.4. ... An individual who is subject to the administrative-offence proceedings or a representative of a legal entity ... has the right to a copy of the administrative-offence report.”

54. Article 414 provided, at the material time, as follows:

Article 414
Communication of an [administrative-offence] report (a prosecutor’s decision)
for examination

“... 414.2. A report ... concerning an administrative offence punishable by administrative detention shall be sent to a judge for examination immediately after it has been drawn up.”

55. Article 422 provided, at the material time, as follows:

Article 422
Time-limits for examination of administrative-offence cases

“422.3. Cases [concerning an administrative offence] punishable by administrative detention shall be examined on the day of receipt [by the court] of an administrative-offence report; cases against persons subjected to administrative arrest shall be examined at the latest within 48 hours of their arrest.”

56. Under Article 368 a public prosecutor has a right to participate in the administrative proceedings. Chapter 28 of the CAO enumerates the participants of administrative proceedings and their rights and obligations. This Chapter does not mention “the prosecution” – a police officer, public prosecutor or any other public official representing the prosecution – as a participant of the proceedings.

III. RELEVANT INTERNATIONAL DOCUMENTS

A. “Observations on the human rights situation in Azerbaijan: Freedom of expression, freedom of association, freedom of peaceful assembly”, by the Commissioner for Human Rights of the Council of Europe, CommDH(2011)33, 29 September 2011

57. The relevant extracts of this document read as follows:

“... [T]he Commissioner’s attention was drawn to the wave of arrests of activists and political opponents in connection with protests held in Baku in March and April 2011. According to the information received, these protests were sometimes dispersed with excessive force, and the work of journalists was hindered. The organisers were denied permission to demonstrate in a central square and other places in the city centre in Baku, and were instead authorised to hold a demonstration in the outskirts of the city. Several persons were detained on grounds of violating public order. Six opposition activists were sentenced on 25 August 2011 for participating in ‘actions causing disturbance of public order’, following trials whose conformity with human rights standards has been called into question.

The Commissioner has on various occasions criticised the method of curbing the impact of a demonstration by allowing it to take place only at another time and at a less central location, thereby diminishing significantly the visibility of the rally and its message to the general public. ... The Commissioner ... urges the Azerbaijani authorities to ensure that the right to freedom of peaceful assembly is fully guaranteed in Azerbaijan, in accordance with the Court’s case-law.”

B. Report by Nils Muižnieks, the Commissioner for Human Rights of the Council of Europe, following his visit to Azerbaijan from 22 to 24 May 2013, CommDH(2013)14, 6 August 2013

58. The relevant extracts of the Report read as follows:

“... 53. The issue of limitations imposed on freedom of assembly has regularly been raised by local and international observers in recent years. The most frequent problems encountered include the banning of demonstrations in central and easily accessible locations and the use of force to disperse the demonstrations which still go ahead, leading to arrests and, in some cases, harsh sentences. ...

61. The Commissioner calls on the authorities to adopt effective measures to prevent the use of force against peaceful protestors by law enforcement officials. In particular, he reiterates the recommendation of the 2010 Report, inviting the authorities to reform the existing system of internal disciplinary investigations of police ill-treatment and to introduce an independent police complaints body. ...

63. Azerbaijan amended its Law on Freedom of Assembly in 2008, following two opinions adopted by the Council of Europe Venice Commission. While the law is thus in line with international standards, undue restrictions of the right to freedom of peaceful assembly are widely reported in practice. The problems mainly stem from the interpretation of Article 5 of the law. This Article provides for a “notification” procedure before convening an assembly. In 2006, the Venice Commission welcomed the confirmation by representatives of the Government that the requirement in the law was for notification and not for a prior permission to hold the assembly, noting that “other provisions of the Law could, as they currently stand, encourage the competent authorities to issue a blanket prohibition as soon as the notification process proves incomplete.” In 2007, the Venice Commission added that a system of notification is in itself admissible so long as it is only meant to help the authorities cope more easily with the practical problems involved with the holding of an assembly; it also stressed that it is indeed important that assemblies can be held with a presumption of legality so as to avoid any chilling effect on organisers and participants.

64. The Commissioner notes that the authorities have also confirmed that the legislation does not require permission for rallies. However, the authorities appear to have interpreted it as requiring such permission, and a system of authorisation has in practice replaced the system of notification. Peaceful protesters have for instance been effectively banned from demonstrating in central Baku since 2006, despite advanced notification of the assemblies. Several requests by the political opposition or civil society to hold demonstrations were allegedly denied or, when allowed, organisers were obliged to have them in areas very remote from the city centre. ...

68. The Commissioner remains concerned by the way the Law on Freedom of Assembly is currently being implemented in Azerbaijan. He therefore calls on the authorities to assess the functioning of that law. In particular, the authorities should ensure that no authorisation is required for the holding of public demonstrations and that the system of notification is applied in accordance with European standards.

69. The Commissioner welcomes the announced publication by the authorities of a list of locations where demonstrations will be made possible, and calls for these to include adequate locations in the centre of Baku and other cities, as a first step towards a better enjoyment of the right to freedom of assembly by the population of Azerbaijan. Given the need for tolerance in a democratic society, the authorities should nevertheless seek to facilitate and protect public assemblies at the organisers’ preferred location. ...

75. Another concern relates to the reported non-implementation of due process standards in proceedings brought against participants in “unauthorised” demonstrations. ...

77. The Commissioner is of the view that participants in peaceful assemblies should not be sanctioned for the mere fact of being present at and actively participating in the demonstration in question, provided they do not do anything illegal, violent or obscene in the course of it. The Commissioner therefore urges the authorities to ensure that no disproportionate sanction, which would undermine the fundamental right to peaceful assembly, is imposed.

78. Finally, the Commissioner calls on the Azerbaijani authorities to ensure the full respect of fair trial guarantees for protesters. ...”

C. Report by Human Rights Watch, “Tightening the Screws: Azerbaijan’s Crackdown on Civil Society and Dissent”, 2013

59. The relevant extracts of the Report read as follows:

“Another manifestation of the government’s crackdown has been severe limitations on freedom of assembly. The Baku municipal authorities have implemented a blanket ban on all opposition demonstrations in the city center since early 2006. The authorities have broken up unsanctioned ones – often with violence – and have arrested and imprisoned peaceful protestors, organizers, and participants. Our research shows that the misdemeanor trials of those charged for involvement in unsanctioned protests are perfunctory. ...

While the constitution of Azerbaijan stipulates that groups may peacefully assemble after simply notifying the relevant government body in advance, in practice authorities require that gatherings obtain a permit issued by local municipalities. ...

Municipal authorities have effectively banned all forms of peaceful protest from the center of Baku and instead force all demonstrations into designated zones on the outskirts of the city. Such a blanket ban on freedom of assembly in the central areas of Baku violates Azerbaijan’s international obligations to respect freedom of assembly and expression. ...

[F]or several years police have dispersed, at times violently, peaceful protests in Baku’s center. In the days before and during the Eurovision Song Contest held in Baku in May 2012, police broke up several protests in the city’s center and briefly detained dozens of peaceful demonstrators. In 2011 when activists, inspired by the uprisings in the Middle East and North Africa, launched protests in Azerbaijan, the government responded by arresting hundreds of protesters, activists, and journalists. Several were convicted of public order offences and imprisoned for up to three years. ...

The Azerbaijani authorities regularly use administrative, or misdemeanor, charges to lock up people for organizing or participating in unsanctioned rallies, then prosecuting and convicting them in perfunctory trials. ...”

THE LAW

I. JOINDER OF THE APPLICATIONS

60. Given similarity of the facts and complaints raised in all three applications, the Court has decided to join the applications in accordance with Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION

61. The applicants complained that the dispersal of the demonstration by the police and their arrest and conviction for an administrative offence had been in breach of their freedom of assembly and freedom of expression, as provided for in Articles 10 and 11 of the Convention, which read as follows:

Article 10 (freedom of expression)

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Article 11 (freedom of assembly and association)

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

A. Admissibility

62. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The scope of the applicants’ complaints

63. The Court notes that, in the circumstances of the cases, Article 10 is to be regarded as a lex generalis in relation to Article 11, a lex specialis. It is therefore unnecessary to take the complaints under Article 10 into consideration separately (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202; Kasparov and Others v. Russia, no. 21613/07, §§ 82-83, 3 October 2013; and Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 85, 15 October 2015).

64. On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present cases, also be considered in the light of Article 10. The protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 (see Ezelin, cited above, § 37, and Kudrevičius and Others, cited above, § 86).

2. The parties’ submissions

65. The applicants argued that the protest they held was a spontaneous assembly with a limited number of participants, and therefore no prior notification of the BCEA was required by law. They complained that the domestic legislation regulating freedom of assembly did not comply with principles of foreseeability and precision: the requirement of prior authorisation, which was applied in practice and stemmed from certain provisions of the Law on Freedom of Assembly of 13 November 1998, allowed for arbitrary interference with freedom of assembly and permitted abusive banning or dispersal of public gatherings.

66. The applicants also argued that their arrest and conviction under Article 310.1 of the CAO had been arbitrary since they had not disobeyed any order of a police officer.

67. The applicants further submitted that the authorities had not taken into consideration the fact that the demonstration had been intended to be peaceful and had been held in a peaceful manner.

68. The Government submitted that the demonstration had been organised in breach of provisions of national legislation, without specifying which provisions. They argued that the dispersal of the demonstration had pursued the aim of protecting public safety and preventing disorder or crime, and had been proportionate to the aim pursued.

69. The Government also noted that the applicants had not been punished for their participation in the demonstration as such, but for particular behaviour in the course of it, namely for deliberately disobeying the lawful order of police officers. Commenting on the proportionality of the measures, the Government emphasised in particular that the sanction applied to the applicants had been administrative detention.

3. The Court’s assessment

(a) Whether there was interference

70. The Court reiterates that interference with the exercise of freedom of peaceful assembly does not need to amount to an outright ban, legal or de facto, but can consist in various other measures taken by the authorities. The term “restrictions” in Article 11 § 2 must be interpreted as including both measures taken before or during an assembly and those, such as punitive measures, taken afterwards (see Ezelin, cited above, § 39, and Kudrevičius and Others, cited above, § 100). For instance, a prior ban can have a chilling effect on the persons who intend to participate in a rally and thus amount to interference, even if the rally subsequently proceeds without hindrance on the part of the authorities (see Bączkowski and Others v. Poland, no. 1543/06, §§ 66-68, 3 May 2007). A refusal to allow an individual to travel for the purpose of attending a meeting amounts to interference as well (see Djavit An v. Turkey, no. 20652/92, §§ 59‑62, ECHR 2003‑III). So too do measures taken by the authorities during a rally, such as dispersal of the rally or the arrest of participants (see Oya Ataman v. Turkey, no. 74552/01, §§ 7 and 30, ECHR 2006‑XIII, and Hyde Park and Others v. Moldova, no. 33482/06, §§ 9, 13, 16, 41, 44 and 48, 31 March 2009), and penalties imposed for having taken part in a rally (see Ezelin, cited above, § 41; Osmani and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 50841/99, ECHR 2001‑X; Mkrtchyan v. Armenia, no. 6562/03, § 37, 11 January 2007; Galstyan v. Armenia, no. 26986/03, §§ 100‑102, 15 November 2007; and Sergey Kuznetsov v. Russia, no. 10877/04, § 36, 23 October 2008).

71. In the present cases it has not been disputed between the parties that the demonstration in issue was dispersed by the police, and that the applicants who participated in the demonstration were arrested and convicted.

72. The Court takes note of the Government’s submission that the applicants were not punished for their participation in the demonstration as such, but for particular behaviour in the course of it, namely, for deliberately disobeying the lawful order of police officers. However, the Court notes that in describing the circumstances of the administrative offence, the police who arrested the applicants and the domestic courts both stated that the applicants had failed to stop participating in the unauthorised demonstration. Accordingly, the impugned “behaviour” of the applicants actually consisted of their participation in the demonstration. In such circumstances, the Court considers that the facts of the cases disclose interference directly related to the applicants’ exercise of their right to freedom of peaceful assembly under Article 11 of the Convention.

73. The Court concludes that there has been interference with the applicants’ right to freedom of peaceful assembly on account of both the dispersal of the demonstration and the applicants’ arrest and conviction.

(b) Whether the interference was lawful and pursued a legitimate aim

74. As regards the requirement of lawfulness, the Court notes, firstly, the fact that the demonstration of 22 May 2011 was dispersed because it had not been authorised by the BCEA.

75. The Court observes that the organisers had not submitted to the BCEA a prior notice about the demonstration of 22 May 2011. Examining the applicants’ argument that no such notice was required by law, the Court notes that, indeed, according to Article 5 § IV of the Law on Freedom of Assembly, no prior written notification was required for “spontaneous assemblies”. Nevertheless, on one hand, the Law does not provide for clear definition of a “spontaneous assembly”. On the other hand, the applicants failed to sufficiently substantiate their allegations that the protest, which they held, had been a spontaneous one. In such circumstances the Court is ready to accept that the dispersal of the demonstration was lawful.

76. The Court notes, secondly, that the authorities invoked Article 310.1 (failure to comply with a lawful order of a police officer) of the CAO as the legal basis for the applicants’ arrest and conviction, whereas, as already mentioned, the action (or “behaviour”) held against the applicants actually consisted of their participation in the demonstration. In effect, the key circumstance constituting the basis for the administrative proceedings against the applicants was the fact that the demonstration in which they participated was unauthorised (contrast with Malofeyeva v. Russia, no. 36673/04, 30 May 2013). In such circumstances the Court has doubts about the credibility of the formal ground invoked by the authorities for the applicants’ arrest and conviction.

77. However, given that a more conspicuous problem arises with respect to the necessity of the interference, the Court considers that it is not appropriate to limit its examination under Article 11 of the Convention to the lawfulness of the interference only (compare Kakabadze and Others v. Georgia, no. 1484/07, § 86, 2 October 2012, and Hyde Park and Others v. Moldova (nos. 5 and 6), nos. 6991/08 and 15084/08, § 48, 14 September 2010). Therefore, the Court will examine whether the dispersal of the demonstration and the applicants’ arrest and conviction were necessary in a democratic society, which in the specific circumstances will also take into consideration the issue of whether the interference pursued a legitimate aim.

(c) Whether the interference was necessary in a democratic society

78. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, among other authorities, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 47, Reports of Judgments and Decisions 1998‑I; Christian Democratic People’s Party v. Moldova, no. 28793/02, § 70, ECHR 2006‑II; and Kudrevičius and Others, cited above, §§ 142-146).

79. The Court reiterates that it is not a priori contrary to the spirit of Article 11 if a High Contracting Party requires that the holding of meetings be subject to notification or even authorisation, as long as the purpose of the procedure is to allow the authorities to take reasonable and appropriate measures in order to guarantee the smooth conduct of any assembly, meeting or other gathering (see Kudrevičius and Others, cited above, § 147). Nevertheless, an unlawful situation, such as the staging of a demonstration without prior notification or authorisation, does not justify per se an infringement of freedom of assembly (see Oya Ataman, cited above, §§ 37-39). While rules governing public assemblies, such as the system of prior notification, are essential for the smooth conduct of public events since they allow the authorities to minimise the disruption to traffic and take other safety measures, their enforcement cannot become an end in itself. In particular, where irregular demonstrators do not engage in acts of violence, the Court has required that the public authorities show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (see Bukta and Others v. Hungary, no. 25691/04, § 34, ECHR 2007‑III; Fáber v. Hungary, no. 40721/08, § 49, 24 July 2012; Malofeyeva, cited above, §§ 136-37; Kasparov and Others, cited above, § 91; and Kudrevičius and Others, cited above, §§ 147-154).

80. In the present cases the Court observes that the authorities dispersed the demonstration shortly after it began, despite the fact that it had limited number of participants, had been intended to be peaceful and had been conducted in a peaceful manner up to that point. This already calls into question the Government’s assertion about the necessity of the dispersal. It has not been argued or demonstrated that it would have been difficult for the police to contain or redirect protestors, or control the situation otherwise, protect public safety and prevent any possible disorder or crime. Nor has it been shown, either at the domestic level or before the Court, that the demonstration posed a high level of disruption of public order. It follows that the authorities have not adduced relevant and sufficient reasons justifying the dispersal of the demonstration.

81. As for the applicants’ arrest and conviction, the Court emphasises that none of the documents drawn up by the police indicated whether any order had been specifically addressed to each applicant (apart from a demand addressed to the protesters at large to stop the demonstration). Nor did they specify who had given such an order and when, or indicate its exact wording. Furthermore, the fact that the protesters, including the applicants, began to run away and leave the place as soon as they noticed the police approaching showed their willingness to end the demonstration in order to avoid confronting the police. In such circumstances, reference by the authorities to Article 310.1 of the CAO as a ground for the applicants’ arrest and conviction appears to be unsubstantiated. Despite being formally charged with failure to comply with a lawful order of a police officer, the applicants in fact were arrested and convicted for their participation in an unauthorised peaceful demonstration. The Court notes that at the material time, no penalty in the form of deprivation of liberty was provided for under the CAO for participating in an unauthorised public assembly or generally for violation of rules on holding public assemblies. Nevertheless, the first and third applicants each were sentenced to seven days’ and the second applicant to eight days’ “administrative” detention on charges that they had failed to stop participating in the unauthorised demonstration. It follows that the arbitrary reference to Article 310.1 of the CAO as a ground for the applicants’ arrest and conviction also made it possible to apply a penalty which was otherwise not applicable to the action held against them.

82. The Court further notes the lack of any acknowledgment that the action imputed to the applicants by the authorities, namely participation in an unauthorised peaceful demonstration, was by itself protected by Article 11 of the Convention. The authorities made no effort to balance the applicants’ right to participate in the demonstration against any damage this could cause to other public or private interests.

83. Lastly, the domestic courts’ decisions do not contain any findings that the applicants’ specific actions during the demonstration necessitated their arrest and conviction. Nothing in the materials before the Court suggests that the applicants committed any reprehensible offence during the demonstration.

84. In such circumstances, it follows that the authorities did not adduce sufficient and relevant reasons justifying the applicants’ arrest and conviction. Moreover, the sanction imposed on them was unwarranted by the circumstances of the case and disproportionate within the meaning of Article 11 of the Convention.

(d) Conclusion

85. Having regard to the above considerations, the Court concludes that the authorities failed to act with due tolerance and good faith as regards the applicants’ right to freedom of assembly, did not adduce sufficient and relevant reasons justifying the interference, and imposed a sanction which was disproportionate in the circumstances.

86. The dispersal of the demonstration and the applicants’ arrest and conviction could not but have the effect of discouraging them from participating in political rallies. Those measures had a serious potential also to deter other opposition supporters and the public at large from attending demonstrations and, more generally, from participating in open political debate.

87. There has accordingly been a violation of Article 11 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

88. The applicants complained under Article 6 of the Convention that in the proceedings concerning the alleged administrative offence, they had not had a fair and public hearing. 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:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(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; ...”

A. Admissibility

89. Although the applicability of Article 6 to the administrative proceedings in question is not in dispute, the Court considers it necessary to address this issue of its own motion. The Court notes that the first and third applicants each were sentenced to seven days’ and the second applicant to eight days’ administrative detention, the purpose of the sanction being purely punitive. Therefore, referring to its findings in its well-established case-law, the Court considers that the proceedings in the present cases should be classified as determining a criminal charge against the applicants, even though they are characterised as “administrative” under Azerbaijani legislation (see Ziliberberg v. Moldova, no. 61821/00, §§ 30‑35, 1 February 2005; Menesheva v. Russia, no. 59261/00, §§ 95-98, ECHR 2006‑III; and Galstyan, §§ 56-60, cited above; see also Asadbeyli and Others v. Azerbaijan, nos. 3653/05, 14729/05, 20908/05, 26242/05, 36083/05 and 16519/06, §§ 152-55, 11 December 2012).

90. The Court further notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

91. The applicants submitted, in particular, that they had not been served, either prior to the hearing before the respective first-instance courts or subsequently, with a copy of the administrative-offence reports issued in their respect or with other materials in their respective case files, and that the hearing before the first-instance courts had been very brief. They also argued that the courts had based their findings merely on the administrative-offence reports and on the statements of a police officer who had been the sole witness questioned at the respective first-instance hearings. The applicants further submitted that they had not been represented by a lawyer at the pre-trial stage or before the first-instance courts. Lastly, the applicants argued that the public had not been allowed to attend the hearing before the respective first-instance courts, even though the courts had not issued an official decision to examine their cases in a closed hearing.

92. The Government submitted that the administrative proceedings with respect to the applicants had been in line with the national legislation. In particular, the time-limit for lodging an appeal with the Court of Appeal against the respective decisions of the first-instance courts was ten days, so the applicants had had adequate time and facilities to prepare their defence. The Government also submitted in general terms that during the court proceedings the principle of equality of arms had been respected.

2. The Court’s assessment

93. The Court reiterates that Article 6 of the Convention guarantees the right to a fair hearing, and the Court’s task is to ascertain whether the proceedings as a whole, including the way in which evidence was obtained and heard, were fair, in particular, whether the applicant was given the opportunity of challenging the evidence and of opposing its use; and whether the principles of adversarial proceedings and equality of arms between the prosecution and the defence were respected (see Bykov v. Russia [GC], no. 4378/02, §§ 88, 90, 10 March 2009, and Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 60, ECHR 2000‑II).

94. The requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 94, 2 November 2010). The Court will therefore examine the complaints under both provisions taken together (see, among many other authorities, F.C.B. v. Italy, 28 August 1991, § 29, Series A no. 208‑B, and Poitrimol v. France, 23 November 1993, § 29, Series A no. 277‑A). In so doing, it will examine in turn each of the various grounds giving rise to the present complaints in order to determine whether the proceedings, considered as a whole, were fair (see, for a similar approach, Asadbeyli and Others, cited above, § 130).

(a) Right to adequate time and facilities to prepare one’s defence

95. Article 6 § 3 (b) guarantees the accused “adequate time and facilities for the preparation of his defence”. The accused must have the opportunity to organise his defence in an appropriate way and without restriction of the possibility to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings. Furthermore, the facilities which everyone charged with a criminal offence should enjoy include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings (see Moiseyev v. Russia, no. 62936/00, § 220, 9 October 2008). The issue of adequacy of time and facilities afforded to an accused must be assessed in the light of the circumstances of each particular case (see Malofeyeva, cited above, § 112).

96. The present cases were examined in an expedited procedure under the CAO: in cases concerning an administrative charge for an offence punishable by administrative detention, the police were to transmit the administrative-offence file to a court immediately after having compiled it, and the court was to examine the case on the same day, or, in the case of persons being held in police custody, no later than forty-eight hours after the arrest (see paragraphs 54 and 55 above). The Court reiterates that recourse to that procedure when a “criminal charge” must be determined is not in itself contrary to Article 6 of the Convention as long as the procedure provides the necessary safeguards and guarantees (see Borisova v. Bulgaria, no. 56891/00, § 40, 21 December 2006).

97. Turning to the question of procedural safeguards and guarantees, the Court notes that the pre-trial procedure in the applicants’ cases was very brief. The applicants were arrested at approximately 5.30 p.m. on 22 May 2011 and between 6.15 p.m. and 6.30 p.m. administrative-offence reports were drawn up. All three applicants maintained that they had been kept in police custody overnight. Although the administrative-arrest reports with regard to the first and second applicants stated that they had been released on 22 May 2011, the reports did not specify the time of the alleged releases. In such circumstances and in the absence of any specific observations of the Government on the issue, the Court has no reason to doubt the applicants’ submissions that they had spent the night in police custody and had been brought before the Sabail District Court for the trial hearings, which began between 12.30 p.m. and 12.40 p.m. on 23 May 2011. Evidently, during their stay at the police station the applicants were secluded from the outside world. Their situation was aggravated by the fact that they were not represented by a lawyer during the pre-trial procedure.

98. The Court further notes that by virtue of Article 410.4 of the CAO the applicants were entitled to receive a copy of the administrative-offence reports drawn up in respect of them. However, no copy of the reports was made available to the applicants. Furthermore, the respective Courts of Appel failed to reply to the applicants’ requests for a copy of the administrative-offence reports and of certain other materials in their case files.

99. Even assuming that the applicants’ cases were not complex, the Court doubts that the circumstances in which the respective trials were conducted were such as to enable them to familiarise themselves properly with and to assess adequately the charges and evidence against them and to develop a viable legal strategy for their defence (compare Vyerentsov v. Ukraine, no. 20372/11, § 76, 11 April 2013).

100. Furthermore, the CAO did not require the mandatory participation of a public prosecutor or other public officer representing the prosecution, who would present the case against the defendant before a judge (see paragraph 56 above). It appears that the accusation against the second and third applicants was both presented and examined by the judges of the respective first-instance courts. The Court is not satisfied that such a state of affairs afforded the applicants an opportunity to put forward an adequate defence in adversarial proceedings.

101. In these circumstances the Court concludes that the applicants were not afforded adequate time and facilities to prepare their defence.

(b) Right to a reasoned decision

102. The Court’s duty, under Article 19 of the Convention, is to ensure observance of the commitments undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Schenk v. Switzerland, 12 July 1988, §§ 45‑46, Series A no. 140, and Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998‑IV). In that context, regard must also be had, in particular, to whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. The quality of the evidence is also taken into account, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (see Jalloh v. Germany [GC], no. 54810/00, § 96, ECHR 2006‑IX).

103. According to the Court’s established case-law reflecting a principle related to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I, with further references).

104. In the present cases, the respective first-instance courts examined the applicants’ cases in oral hearings where the applicants were given an opportunity to make their submissions. However, the courts relied heavily on the administrative-offence reports prepared by the police and on the statements of police officer R.G., the sole witness questioned in respective hearings in all three cases. The Court notes that that witness was one of the police officers who had arrested the applicants, and was supposed “victim” of the alleged administrative offence under Article 310.1 of the CAO. Moreover the administrative-offence reports in respect of the applicants were based on R.G.’s report to a superior police officer. The domestic courts failed to provide adequate reasons why they considered the witness statements of the police officer more objective and reliable than those of the applicants. It is also regrettable that the domestic courts did not attempt to summon witnesses who were not connected with the police.

105. Furthermore, the applicants’ arguments before the domestic courts concerned both the factual circumstances and the legal issues of their cases. The applicants consistently argued that they had not disobeyed an order of a police officer, and that they had been arrested for participation in a peaceful demonstration. They also challenged the legality of the police’s interference with the demonstration. In particular, in their appeals they argued that the legal basis invoked by the police for their arrest had been arbitrary; and that there were no circumstances justifying dispersal of the demonstration since it had been peaceful. In the Court’s opinion, those arguments were both important and pertinent. Nevertheless, the domestic courts, in particular the Court of Appeal, which examined the applicants’ written arguments on the issue, ignored them altogether.

106. The Court has previously held, in examining the fairness of criminal proceedings, that by ignoring a specific, pertinent and important point made by the accused, the domestic courts had fallen short of their obligations under Article 6 § 1 of the Convention (see Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 280, 21 April 2011). Considering that in the present cases the domestic courts similarly did not meet that requirement, the Court concludes that the domestic courts’ decisions lacked adequate reasoning.

(c) Right to legal assistance

107. The Court reiterates that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Krombach v. France, no. 29731/96, § 89, ECHR 2001‑II).

108. The Court emphasises that Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police questioning (see John Murray v. the United Kingdom, 8 February 1996, § 63, Reports 1996‑I). Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 (see Salduz v. Turkey [GC], no. 36391/02, § 55, ECHR 2008, and Dvorski v. Croatia [GC], no. 25703/11, §§ 77-80, 20 October 2015).

109. The Court also notes that the right of an accused to participate effectively in a criminal trial includes, in general, not only the right to be present, but also the right to receive legal assistance, if necessary (see Lagerblom v. Sweden, no. 26891/95, § 49, 14 January 2003). The waiver of a right guaranteed by the Convention – insofar as it is permissible – must be established in an unequivocal manner and must be attended by minimum safeguards commensurate with its importance (see Colozza v. Italy, 12 February 1985, § 28, Series A no. 89).

110. In the present cases, the right to legal representation was guaranteed to the applicants by the CAO. However, at the pre-trial stage of the proceedings the applicants were not represented by a lawyer. From the materials before the Court it does not appear that they had expressly waived their right to a lawyer.

111. According to the applicants, after their arrest they were questioned at the police station. However, no records of such questioning were submitted to the Court. Nor is there any evidence that the statements made by the applicants (if any) during the questioning were used during the trial. The Court cannot speculate on the exact impact which the applicants’ access to a lawyer during the pre-trial stage of the proceedings would have had on the ensuing proceedings and whether the absence of a lawyer during that period irretrievably affected their defence rights (compare Huseyn and Others v. Azerbaijan, nos. 35485/05, 45553/05, 35680/05 and 36085/05, § 172, 26 July 2011). Nevertheless, the Court reiterates that the very fact of restricting a detained suspect’s access to a lawyer may prejudice the rights of the defence, even where an accused person remained silent, or was not questioned, or no incriminating statements were obtained (see, for example, Dayanan v. Turkey, no. 7377/03, §§ 32-33, 13 October 2009).

112. Turning to the applicants’ arguments that at the respective first-instance courts their right to legal assistance of their own choosing was breached and that they were not represented by any lawyer, the Court notes, firstly, that, under Article 376.2 of the CAO a judge must provide a person against whom an administrative case is being examined with a lawyer only if the attendance of a lawyer of his or her own choice is impossible. Nothing in the materials before the Court suggests that before proposing for them State-funded legal assistance the judges gave the applicants an opportunity to appoint a lawyer of their own choice, as required under Article 376.2 of the CAO (see Dvorski, cited above, §§ 77-80). Secondly, even if the applicants refused State-funded legal assistance, it must be ascertained that such refusal amounted to an unequivocal waiver of the right to a lawyer. However, having already established that the applicants were not afforded legal assistance at the pre-trial stage, the Court finds it unnecessary to rule on the issue whether their refusal of State-funded legal assistance at the trial constituted an unequivocal waiver of the right to a lawyer.

113. The Court concludes that the applicants’ right to legal assistance was not respected.

(d) Conclusion

114. Having regard to the above findings, the Court considers that there is no need to examine the applicants’ arguments concerning the alleged lack of a public hearing.

115. Furthermore, in view of the entirety of the above conclusions, the Court finds that the proceedings against all three applicants, considered as a whole, were not in conformity with the guarantees of a fair hearing under Article 6 §§ 1 and 3 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

116. The applicants complained that their arrest and administrative detention following their participation in the demonstration had been in breach of Article 5 of the Convention. Article 5 of the Convention, in so far as relevant, reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court; ...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A. Admissibility

117. The Court considers, in the light of the parties’ submissions, that these complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

118. The applicants argued that their arrest and administrative detention under Article 310.1 (failure to comply with a lawful order of a police officer) of the CAO had been arbitrary since they had not disobeyed any order of a police officer. The opening of administrative proceedings against participants of unauthorised demonstrations under Article 310.1 rather than Article 298 (violation of rules on holding public assemblies) of the CAO was an arbitrary administrative practice aimed at imposing a harsher form of punishment, such as administrative detention for up to fifteen days, which was not available under the latter Article.

119. The applicants further complained that they had not been promptly informed about the reasons for their arrest, and that the arrest had not conformed to domestic procedural rules, in particular because they had not been given an opportunity to contact their relatives; their rights, including the right to have a lawyer, had not been properly explained to them; and they had not been served with a copy of the administrative-offence reports drawn up in their respect.

120. The Government submitted that the applicants’ arrest had been in conformity with Article 399.3 of the CAO. According to this Article, a person in respect of whom proceedings are carried out for an administrative offence punishable by administrative detention may be taken into custody for up to twenty-four hours. The Government further submitted that after the administrative-offence reports stating that the applicants had violated Article 310 of the CAO had been drawn up, the applicants had been brought before a court. Their administrative detention had resulted from lawful court decisions by which they had been found guilty of an administrative offence under Article 310.1 of the CAO.

121. The Government also submitted that the applicants had been duly informed about the reasons for their arrest as well as their rights under the relevant provisions of the CAO; however, they had refused to sign the administrative-offence reports and a relevant note had accordingly been included in the reports.

2. The Court’s assessment

122. The Court reiterates that Article 5 of the Convention guarantees the fundamental right to liberty and security. That right is of primary importance in a “democratic society” within the meaning of the Convention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12, and Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33).

123. Any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law (see Saadi v. the United Kingdom [GC], no. 13229/03, § 67, 29 January 2008). Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see Bozano v. France, 18 December 1986, § 54, Series A no. 111, and Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008).

124. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi, cited above, § 67). While the Court has not previously formulated a global definition as to what types of conduct on the part of the authorities might constitute “arbitrariness” for the purposes of Article 5 § 1, key principles have been developed on a case-by-case basis (see Mooren v. Germany [GC], no. 11364/03, § 77, 9 July 2009).

125. Furthermore, detention will be considered “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities (see, for example, Bozano, cited above, § 59, and Saadi, cited above, § 69) or where the domestic authorities neglected to attempt to apply the relevant legislation correctly (see Benham v. the United Kingdom, 10 June 1996, § 47, Reports 1996-III, and Liu v. Russia, no. 42086/05, § 82, 6 December 2007).

126. Turning to the present cases, the Court observes that the applicants were arrested in the course of the dispersal of an unauthorised demonstration on 22 May 2011. They were taken to a police station where they were kept in police custody overnight, and were brought before respective first-instance courts. The first and third applicants each were sentenced to seven days’ and the second applicant to eight days’ “administrative” detention.

127. The Court reiterates its finding above that the measure to which the applicants were subjected (namely arrest and custody followed by several days’ imprisonment) pursued aims unrelated to the formal ground relied on to justify the deprivation of liberty, and implied an element of bad faith on the part of the police officers. While they were formally charged with failure to comply with a lawful order of a police officer, the applicants were in fact detained for their participation in an unauthorised peaceful demonstration (see paragraphs 76 and 81 above). Furthermore, there are sufficient elements to conclude that the domestic courts that imposed the administrative detention also acted arbitrarily in reviewing both the factual and the legal grounds for the applicants’ detention (see paragraph 105 above). In such circumstances, the Court cannot but conclude that the applicants’ deprivation of liberty as a whole was arbitrary and therefore contrary to the requirements of Article 5 § 1 of the Convention.

128. Accordingly, there has been a violation of Article 5 § 1 of the Convention.

129. In view of the nature and the scope of its finding above, the Court does not consider it necessary to examine the applicants’ other complaints under Article 5 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

130. 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.”

A. Damage

131. In respect of non-pecuniary damage the first and third applicants claimed 20,000 euros (EUR) each and the second applicant claimed EUR 21,000.

132. The Government submitted that the applicants’ claims were unsubstantiated and unreasonable. They considered that, in any event, an award of EUR 5,000 for each applicant would constitute sufficient just satisfaction.

133. The Court considers that the applicants have 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 each applicant the sum of EUR 12,000 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

134. The applicants also claimed EUR 3,300 each for the legal fees incurred before the domestic courts and before the Court. In support of their claims, they submitted contracts, dated 25 May 2011, 24 May 2011 and 24 May 2011 respectively, for legal and translation services.

135. The Government considered that the claims were excessive and could not be regarded as reasonable as to quantum. In particular, they argued that the applicants were represented by the same lawyers who were representing a number of other applicants in similar cases and that substantial parts of the submissions in all those cases were identical or very similar.

136. The Government submitted that, taking into account the above considerations, the amount of legal aid already granted to the applicants should be deemed as sufficient reimbursement of costs and expenses.

137. 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 have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that in the Strasbourg proceedings all three applicants were represented by the same lawyers, Mr R. Mustafazade and Mr A. Mustafayev, and that those lawyers’ submissions in all three cases were very similar. The Court therefore awards the total amount of EUR 7,500 to all three applicants jointly in respect of the legal services rendered by Mr R. Mustafazade and Mr A. Mustafayev, less EUR 1,900 already paid in legal aid by the Council of Europe.

C. Default interest

138. 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,

1. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that there has been a violation of Article 11 of the Convention on account of the dispersal of the demonstration and the applicants’ arrest and conviction;

4. Holds that there has been a violation of Article 6 §§ 1 and 3 of the Convention in respect of all three applicants;

5. Holds that there has been a violation of Article 5 of the Convention in respect of all three applicants;

6. Holds

(a) that the respondent State is to pay the applicants, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, to the first applicant, in respect of non-pecuniary damage;

(ii) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, to the second applicant, in respect of non-pecuniary damage;

(iii) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, to the third applicant, in respect of non-pecuniary damage;

(iv) EUR 5,600 (five thousand six hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into their 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;

7. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 11 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekAngelika Nußberger
RegistrarPresident

 

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