CASE OF HAJIBEYLI AND OTHERS v. AZERBAIJAN

FIFTH SECTION

CASE OF HAJIBEYLI AND OTHERS v. AZERBAIJAN

(Applications nos. 5231/13, 8193/13, 8204/13, 8468/13, 14226/13, 14249/13, 17447/13, 17569/13, 17575/13, 17626/13, 31201/13, 45211/13 and 51930/13)

JUDGMENT

STRASBOURG

30 June 2016

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

In the case of Hajibeyli and Others v. Azerbaijan,

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

Faris Vehabović, President,
Khanlar Hajiyev,
Carlo Ranzoni, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 7 June 2016,

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

PROCEDURE

1. The case originated in thirteen applications (nos. 5231/13, 8193/13, 8204/13, 8468/13, 14226/13, 14249/13, 17447/13, 17569/13, 17575/13, 17626/13, 31201/13, 45211/13 and 51930/13) 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 thirteen Azerbaijani nationals, Mr Rufat Ibrahim oglu Hajibeyli, Mr Elshad Baba oglu Budagov, Mr Vagif Sarkhosh oglu Khaligov, Mr Abulfaz Adam oglu Gurbanli, Mr Orkhan Nariman oglu Jarchiyev, Hafiz Adigozal oglu Farhadli, Mr Elchin Fizuli oglu Jarullayev, Mr Mammad Aziz oglu Ibrahim, Mr Ingilab Gudrat oglu Karimov, Mr Shakir Gurshad oglu Abbasov, Mr Tazakhan Maharram oglu Miralamli, Mr Zulfugar Kheyrulla oglu Eyvazov and Mr Bahruz Gazanfar oglu Hasanov (“the applicants”), on various dates in 2013 (see Appendix).

2. All applicants were represented by Mr R. Mustafazade and Mr A. Mustafayev, lawyers practising in Azerbaijan. Mr Budagov (application no. 8193/13), Mr Farhadli (application no. 14249/13), Mr Jarullayev (application no. 17447/13), Mr Karimov (application no. 17575/13) and Mr Abbasov (application no. 17626/13) had been granted legal aid. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. On 19 May 2014 (application nos. 5231/13, 8193/13, 8204/13, 8468/13, 14226/13, 14249/13, 17447/13, 17569/13, 17575/13, 17626/13, 31201/13 and 45211/13) and 2 October 2014 (application no. 51930/13) the complaints concerning Articles 5, 6, 10 and 11, raised in all applications, and Article 7, raised in only some applications, were communicated to the Government. On the same dates the remainder of application nos. 8204/13, 8468/13, 14226/13, 14249/13, 17626/13, 31201/13 and 51930/13 were declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants’ dates of birth and places of residence are given in the Appendix. At the material time many of them were members of opposition political parties or groups.

A. Administrative arrests

5. Demonstrations were planned to be held on 20 October and 17 November 2012 in Baku. Prior to the assemblies, on 15 October and 12 November 2012 respectively the organisers, members of the opposition, gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”).

6. The BCEA refused to authorise the demonstration of 20 October 2012 at the place indicated by the organisers and proposed another location on the outskirts of Baku  the yard of a driving school situated in the 20th habitable area of the Sabail District.

7. The BCEA also refused to authorise the demonstration of 17 November 2012. It noted in general terms that that assembly would not be in accordance with the Law on Freedom of Assembly. The BCEA further noted that the square where the organisers proposed to hold the assembly was a designated public leisure area and that the assembly itself would be impractical.

8. The organisers nevertheless decided to hold the demonstrations as planned.

9. According to the applicants, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants were demanding democratic reforms in the country and protesting against impediments on freedom of assembly.

10. Each applicant attended one of the two demonstrations (see Appendix), but shortly after they had begun the police started to disperse those who had gathered. All applicants were arrested during the dispersal operations and were taken to various police stations. According to most of the applicants, they were arrested by people in plain clothes.

11. The applicants were questioned at the respective police stations.

12. On the day of each applicant’s arrest administrative offence reports (inzibati xəta haqqında protokol) were issued on them, which stated that by deliberately failing to comply with a lawful order of the police, the applicants had committed an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”). The applicants in application nos. 8204/13, 8468/13, 31201/13 and 51930/13 were also charged under Article 298 of the CAO (violation of the rules on holding public assemblies).

13. Some of the applicants refused to sign the administrative offence reports.

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

B. Court proceedings against the applicants

15. Each applicant was brought before a first-instance court on the day of their arrest.

16. According to most of them, the hearing before the court in each case was very brief. Members of the public were not allowed inside the courtroom, even though the court had not taken a formal decision to close the hearing to the public.

17. According to all applicants, they were not given an opportunity to appoint lawyers of their own choosing. State-funded lawyers were invited to represent most of them. The applicants in application nos. 8204/13, 31201/13 and 51930/13 were not represented by a lawyer. According to the transcripts of the respective court hearings, the applicants in application nos. 8204/13 and 51930/13 refused the assistance of a State-funded lawyer and decided to defend themselves in person.

18. The applicants stated in the respective courts that they had participated or attempted to participate in the demonstrations of 20 October 2012 or 17 October 2012, exercising their right to freedom of assembly and/or that they were not guilty of failing to comply with a lawful order of the police.

19. According to the transcripts of the hearings, in their oral submissions the State-funded lawyers stated in general terms that the applicants were not guilty or briefly asked the respective courts to adopt a fair decision. With respect to the applicants in application nos. 8468/13, 17569/13 and 45211/13 the State-funded lawyers did not make any oral or written submissions.

20. The only witnesses questioned during the respective court hearings were police officers who, according to official records, had arrested the applicants or issued administrative offence reports on them. They testified that the applicants had staged unauthorised demonstrations and/or had been shouting loudly on the street.

21. In application nos. 8204/13, 8468/13, 14226/13, 17569/13, 31201/13, 45211/13 and 51930/13 the respective courts did not question any witnesses.

22. In most of the cases the respective first-instance courts found that the applicants had failed to stop participating in an unauthorised demonstration. With respect to the applicant in application no. 5231/13, the first-instance court found that he had attempted “to make noise by shouting” on a street. With respect to the applicant in application no. 17575/13, the first-instance court stated in general terms that he had deliberately failed to comply with a lawful order of the police.

23. The courts convicted the applicants under Article 310.1 of the CAO and sentenced them to a period of administrative detention, varying from five to thirteen days (see Appendix). The applicant in application no. 8468/13 was additionally convicted under Article 298 of the CAO.

24. On various dates the applicants lodged appeals with the Baku Court of Appeal, arguing that their convictions were in violation of their rights because the demonstrations in which they had participated or attempted to participate had been peaceful. The applicants also complained that their arrests had been unlawful and that the hearings before the respective first‑instance courts had not been fair. They asked the Baku Court of Appeal to quash the first-instance courts’ decisions in their respective cases.

25. The applicants were represented before the Baku Court of Appeal by lawyers of their own choosing.

26. On various dates the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the respective first-instance courts (see Appendix).

II. RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS

27. For a summary of the relevant provisions concerning administrative proceedings, the relevant provisions concerning the organisation and holding of public assemblies, and the relevant extracts of international documents, see the judgment in the case of Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 27-42, 15 October 2015).

THE LAW

I. JOINDER OF THE APPLICATIONS

28. Given the similarity of the facts and complaints raised in all thirteen 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

29. The applicants complained that the dispersal of the demonstrations 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

“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

“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

30. 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

31. The Court notes that, in the circumstances of the present 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).

32. 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 enshrined in Article 11 (see Ezelin, cited above, § 37, and Kudrevičius and Others, cited above, § 86).

2. The parties’ submissions

33. The applicants argued that the domestic legislation regulating freedom of assembly did not comply with the principles of foreseeability and precision. While the Constitution required only prior notification about a planned public assembly, the system 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. The applicants also argued that their arrest and conviction under Article 310.1 of the CAO had been arbitrary. They further submitted that the authorities had not taken into consideration the fact that the organisers had given prior notice of the demonstrations to the relevant authorities, and that the demonstrations had been intended to be peaceful and had been held in a peaceful manner.

34. The Government submitted that the domestic legislation regulating freedom of assembly was precise and foreseeable, and was in line with European standards.

35. They submitted that the demonstrations had been organised in breach of the provisions of national law, without specifying which provisions. They argued that the dispersal of the demonstrations had pursued the aim of protecting public safety and preventing disorder or crime, and had been proportionate to the aim pursued.

36. The Government also noted that the applicants had not been punished for their participation in the demonstrations as such, but for their specific behaviour in the course of the assemblies, namely their deliberate failure to comply with a lawful order of the police. 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

37. Having regard to the material in the case files and the parties’ submissions, the Court notes that the issues raised by the present complaints are essentially the same as those examined in the Gafgaz Mammadov case (cited above). The facts of that case and the present cases are similar to a significant degree. The Court considers that the analysis and conclusions made in the Gafgaz Mammadov case also apply to the present cases. In particular, the Court noted the existence of serious concerns about the foreseeability and precision of the legislation governing public assemblies, and about the possibility of public assemblies being abusively banned or dispersed (ibid., § 55); doubts about the credibility of the formal ground, namely Article 310.1 of the CAO, relied on by the authorities to arrest and convict the participant of an unauthorised demonstration (ibid., §§ 56 and 62); a failure by the authorities to take into consideration the fact that the demonstration had been notified (ibid., § 60); a lack of relevant and sufficient reasons justifying the dispersal of the demonstration which had been intended to be peaceful and had been conducted in a peaceful manner (ibid., § 61); and a lack of any acknowledgment that the act of participating in an unauthorised peaceful demonstration was by itself protected by Article 11 of the Convention (ibid., §§ 63-64). Having regard to the above, in the Gafgaz Mammadov case the Court found that the applicant’s right to freedom of assembly had been violated on account of the dispersal of the demonstration and his arrest and conviction.

38. Having regard to the facts of the present cases and their clear similarity to those of the Gafgaz Mammadov case on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in that judgment, and finds that in the present cases each applicant’s right to freedom of assembly was breached for the same reasons as those outlined above.

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

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

40. 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

41. 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 applicants were sentenced to a period of administrative detention varying from five to thirteen days, the purpose of the sanction being purely punitive. Referring to its findings in its well-established case-law, the Court therefore 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 law (see Ziliberberg v. Moldova, no. 61821/00, §§ 30‑35, 1 February 2005; Menesheva v. Russia, no. 59261/00, §§ 95-98, ECHR 2006‑III; Galstyan v. Armenia, no. 26986/03, §§ 56-60, 15 November 2007; Asadbeyli and Others v. Azerbaijan, nos. 3653/05, 14729/05, 20908/05, 26242/05, 36083/05 and 16519/06, §§ 152-55, 11 December 2012; and Gafgaz Mammadov, cited above, § 70).

42. 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

43. 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 on them or with other material from their respective case files. They also argued that the courts had merely based their findings on the administrative offence reports and in some cases also on the statements of police officers who had been the sole witnesses 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. They had not been given an opportunity to appoint a lawyer of their own choosing to represent them before the respective first-instance courts. They had either been only formalistically represented by State-funded lawyers, or had not been represented by a lawyer at all. Lastly, the applicants argued that the public had not been allowed into the courtroom of 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.

44. The Government submitted that the administrative proceedings with respect to the applicants had been in line with national law. 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

45. Having regard to the material in the case files and the parties’ submissions, the Court notes that there is a significant degree of similarity between the facts of the present cases and the issues under Article 6 of the Convention raised by them and those examined in the Gafgaz Mammadov case (cited above). The Court considers that the analysis and conclusions made in that judgment also apply to the present cases. In particular, the Court noted that the administrative offence proceedings had lacked the necessary safeguards and guarantees. The time and facilities to prepare the defence had been inadequate (ibid., §§ 78-81). In addition, there had been a strong reliance by the domestic courts on the administrative offence report prepared by and statements given by the police (ibid., § 85), utter disregard by the domestic courts of important factual circumstances and legal issues of the case, inter alia, the peaceful nature of the unauthorised demonstration (ibid., § 86), an absence of legal assistance at the pre-trial stage of the proceedings (ibid., §§ 90-91), a failure to provide an opportunity to appoint a lawyer of one’s own choosing (ibid., § 92), and formalistic representation by the State-funded lawyer (ibid., § 93). Having regard to the above, the Court found that the administrative offence proceedings against the applicant in the Gafgaz Mammadov case, considered as a whole, had not been in conformity with the guarantees of a fair hearing.

46. Having regard to the facts of the present cases and their clear similarity to those of the Gafgaz Mammadov case on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in that judgment, and finds that in the present cases each applicant’s right to fair trial was breached for the same reasons as those outlined above.

47. There has accordingly been a violation of Article 6 §§ 1 and 3 of the Convention.

48. Having already established that the applicants were not afforded legal assistance at the pre-trial stage or provided an opportunity to appoint a lawyer of their own choosing at the trial, the Court finds it unnecessary to rule on the issue whether refusal by the applicants in application nos. 8204/13 and 51930/13 of State-funded legal assistance at the trial constituted an unequivocal waiver of their right to a lawyer.

49. Furthermore, having regard to the above finding of a violation of Article 6 §§ 1 and 3 of the Convention – that the administrative offence proceedings against the applicants, considered as a whole, were not in conformity with the guarantees of a fair hearing  the Court considers that there is no need to examine the applicants’ arguments concerning the lack of a public hearing.

IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

50. The applicants further complained that their arrest, custody and administrative detention following their participation in the demonstrations had been in breach of Article 5 of the Convention, the relevant parts of which read 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

51. 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 parties’ submissions

52. The applicants argued that their arrest and administrative detention under Article 310.1 of the CAO (failure to comply with a lawful order of a police officer) had been arbitrary.

53. The applicants further complained that they had not been promptly informed of the reasons for their arrest, and that their arrest and custody had not been in conformity with 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; they had not been served with a copy of the administrative offence reports drawn up on them; and in most of the cases they had been arrested by people in plain-clothes.

54. The Government submitted that the applicants’ arrest had been in conformity with Article 399.3 of the CAO. Under 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. They 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.

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

2. The Court’s assessment

56. Having regard to the material in the case files and the parties’ submissions, the Court notes that there is a significant degree of similarity between the facts of the present cases and the issues under Article 5 of the Convention raised by them and those examined in the Gafgaz Mammadov case (cited above). It considers that the analysis and conclusions made in the Gafgaz Mammadov judgment also apply to the present cases. In that case, the Court noted that the measures applied by the authorities, namely arrest and custody followed by several days of imprisonment, had pursued aims unrelated to the formal ground relied on to justify the deprivation of liberty, and implied an element of bad faith and arbitrariness (ibid., § 108). Having regard to the above, the Court found that the deprivation of liberty of the applicant in the Gafgaz Mammadov case had been arbitrary.

57. Having regard to the facts of the present cases and their clear similarity to those of the Gafgaz Mammadov case on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in that judgment, and finds that in the present cases each applicant’s right to liberty was breached for the same reasons as those outlined above.

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

59. 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. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

60. Lastly, the applicants in application nos. 14226/13, 14249/13, 17447/13, 17569/13, 17575/13, 17626/13, 45211/13 and 51930/13 complained under Article 7 of the Convention that their arrest and administrative detention following their participation in the demonstrations had been in breach of the right not to be punished without law. The relevant parts of Article 7 read as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. ...”

61. The applicants submitted that the domestic legislation serving as a basis for their criminal conviction had not complied with the principle of foreseeability. They argued in particular that each of them had been convicted for failing to stop participating in an unauthorised demonstration, despite the fact that the procedure for holding an assembly had not been clearly defined in domestic law. While the Constitution required only prior notification of a planned assembly, application by the authorities of certain provisions of the Law on Freedom of Assembly of 13 November 1998 had resulted in a de facto system of prior authorisation.

62. The applicants claimed that, since the organisers had given advance notice to the BCEA of the demonstrations of 20 October and 17 November 2012 and since they had been peaceful, participation in those assemblies had been their constitutional right and not a criminal offence.

63. The Government submitted that the domestic legislation on freedom of assembly complied with the principle of foreseeability. It clearly stipulated the procedure for the organisation and holding of assemblies and vested the police with the power to disperse unauthorised demonstrations. Failure to comply with a lawful order of the police and breach of the procedure for the organisation and holding of assemblies clearly constituted an offence under domestic law.

64. The Court notes that the complaints of a violation of the right not to be punished without law are linked to the complaints examined above and must therefore likewise be declared admissible.

65. However, having regard to its above findings in relation to Articles 5, 6 and 11 of the Convention, the Court considers that it is not necessary to examine whether in these cases there has been a violation of Article 7.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

66. 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

67. In respect of non-pecuniary damage, the applicants in application nos. 5231/13, 8204/13, 14226/13, 14249/13, 17569/13, 17575/13, 17626/13, 45211/13 and 51930/13 claimed 21,000 euros (EUR) each, the applicants in application nos. 8193/13, 8468/13 and 31201/13 claimed EUR 20,000 each, and the applicant in application no. 17447/13 claimed EUR 19,000.

68. With respect to the applicant in application no. 51930/13, the Government submitted no observations regarding his claim for just satisfaction.

69. With respect to the other applicants, the Government submitted that their claims were unsubstantiated and unreasonable. They considered that, in any event, an award of EUR 4,000 each would constitute sufficient just satisfaction.

70. 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

71. The applicants (except the applicant in application no. 51930/13, who claimed EUR 2,800 under this head) claimed EUR 3,300 each for legal fees incurred before the domestic courts and the Court. In support of their claims, they submitted contracts for legal and translation services.

72. With respect to the applicant in application no. 51930/13, the Government submitted no observations regarding his claim for costs and expenses.

73. With respect to the other applicants, 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. The Government also noted that according to the contracts for legal and translation services mentioned above, the applicants would have to pay the lawyers 20% of the damages awarded by the Court. They submitted that, taking into account the above considerations, the amounts covering costs and expenses should be awarded to the applicants jointly.

74. 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 proceedings before it all applicants were represented by the same lawyers, Mr R. Mustafazade and Mr A. Mustafayev, whose submissions in all thirteen cases were very similar.

75. The Court also notes that the clause according to which the applicants must pay the lawyers 20% of the damages is irrelevant for the assessment of costs and expenses incurred by the applicants.

76. Taking into account the above considerations, the Court awards the total amount of EUR 13,000 to all applicants jointly in respect of the legal services rendered by Mr R. Mustafazade and Mr A. Mustafayev, less EUR 3,600 already paid in legal aid by the Council of Europe.

C. Default interest

77. 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 demonstrations 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 thirteen applicants;

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

6. Holds that there is no need to examine the complaints under Article 7 of the Convention raised by the applicants in application nos. 14226/13, 14249/13, 17447/13, 17569/13, 17575/13, 17626/13, 45211/13 and 51930/13;

7. Holds

(a) that the respondent State is to pay the applicants, 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 12,000 (twelve thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 9,400 (nine thousand four hundred euros) jointly, 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;

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

Done in English, and notified in writing on 30 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoFaris Vehabović
Deputy RegistrarPresident

APPENDIX

No.

Application

no.

Lodged on

Applicant name

date of birth

place of residence

Notes

First-instance judgment

Appellate judgment 

5231/13

04/01/2013

Rufat HAJIBEYLI

1985

Aghjabedi

9 days’ administrative detention for participation in the demonstration of 20 October 2012

Decision of the Binagadi District Court of 20 October 2012

Decision of the Baku Court of Appeal of 29 October 2012 

8193/13

19/01/2013

Elshad BUDAGOV

1965

Baku

7 days’ administrative detention for participation in the demonstration of 20 October 2012

Decision of the Binagadi District Court of 20 October 2012

Decision of the Baku Court of Appeal of 29 October 2012 

8204/13

19/01/2013

Vagif KHALIGOV

1967

Baku

10 days’ administrative detention for participation in the demonstration of 20 October 2012

Decision of the Sabail District Court of 20 October 2012

Decision of the Baku Court of Appeal of 29 October 2012 

8468/13

19/01/2013

Abulfaz GURBANLI

1982

Baku

8 days’ administrative detention for participation in the demonstration of 20 October 2012

Decision of the Sabail District Court of 20 October 2012

Decision of the Baku Court of Appeal of 29 October 2012 

14226/13

05/02/2013

Orkhan JARCHIYEV

1985

Gazakh

7 days’ administrative detention for participation in the demonstration of 17 November 2012

Decision of the Sabail District Court of 17 November 2012

Decision of the Baku Court of Appeal of 23 November 2012 

14249/13

05/02/2013

Hafiz FARHADLI

1983

Baku

7 days’ administrative detention for participation in the demonstration of 17 November 2012

Decision of the Sabail District Court of 17 November 2012

Decision of the Baku Court of Appeal of 23 November 2012 

17447/13

08/02/2013

Elchin JARULLAYEV

1988

Baku

5 days’ administrative detention for participation in the demonstration of 17 November 2012

Decision of the Sabail District Court of 17 November 2012

Decision of the Baku Court of Appeal of 23 November 2012 

17569/13

08/02/2013

Mammad IBRAHIM

1966

Yevlakh

7 days’ administrative detention for participation in the demonstration of 17 November 2012

Decision of the Sabail District Court of 17 November 2012

Decision of the Baku Court of Appeal of 23 November 2012 

17575/13

08/02/2013

Ingilab KARIMOV

1964

Baku

7 days’ administrative detention for participation in the demonstration of 17 November 2012

Decision of the Nasimi District Court of 17 November 2012

Decision of the Baku Court of Appeal of 23 November 2012 

17626/13

12/02/2013

Shakir ABBASOV

1954

Baku

7 days’ administrative detention for participation in the demonstration of 20 October 2012

Decision of the Nasimi District Court of 20 October 2012

Decision of the Baku Court of Appeal of 29 October 2012 

31201/13

11/04/2013

Tazakhan MIRALAMLI

1970

Jalilabad

8 days’ administrative detention for participation in the demonstration of 20 October 2012

Decision of the Sabail District Court of 20 October 2012

Decision of the Baku Court of Appeal of 29 October 2012 

45211/13

18/02/2013

Zulfugar EYVAZOV

1959

Baku

7 days’ administrative detention for participation in the demonstration of 17 November 2012

Decision of the Sabail District Court of 17 November 2012

Decision of the Baku Court of Appeal of 23 November 2012 

51930/13

06/02/2013

Bahruz HASANOV

1981

Baku

7 days’ administrative detention for participation in the demonstration of 20 October 2012

Decision of the Sabail District Court of 20 October 2012

Decision of the Baku Court of Appeal of 29 October 2012

 

Full & Egal Universal Law Academy