FIFTH SECTION
CASE OF MEHTIYEV AND OTHERS v. AZERBAIJAN
(Applications nos. 20589/13 and 7 others – see appended list)
JUDGMENT
STRASBOURG
6 April 2017
This judgment is final. It may be subject to editorial revision.
In the case of Mehtiyev v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Faris Vehabović, President,
Carlo Ranzoni,
Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having deliberated in private on 14 March 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in eight applications (nos. 20589/13, 21219/13, 33164/13, 33593/13, 52270/13, 65308/13, 26424/14 and 26994/14) 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 eight Azerbaijani nationals, Mr Sakhavat Sarhad oglu Mehtiyev, Mr Tunjay Asaf oglu Guliyev, Mr Azer Nadir oglu Sadikhov, Mr Osman Hidayat oglu Ahmadov, Ms Khadija Rovshan gizi Ismayilova, Mr Javid Nizami oglu Garayev, Mr Javid Ibrahim oglu Hajibeyli and Mr Tural Alovsat oglu Sadigli (“the applicants”), on various dates in 2013 and 2014 (see Appendix).
2. The applicants were represented by various lawyers practising in Azerbaijan (see Appendix). Mr Sadikhov (application no. 33164/13), Mr Ahmadov (application no. 33593/13) and Mr Sadigli (application no. 26994/14) were granted legal aid. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
3. On 19 May 2014 (application no. 21219/13), 29 August 2014 (applications nos. 20589/13, 33164/13, 33593/13, 52270/13 and 65308/13) and 2 October 2014 (applications nos. 26424/14 and 26994/14) the complaints concerning Article 5, raised in all the applications except for application no. 65308/13, Article 6, raised in all the applications except for application no. 65308/13, Article 10, raised in all the applications except for applications nos. 26424/14 and 26994/14, and Article 11, raised in all the applications, were communicated to the Government. On the same dates the remainder of applications nos. 20589/13, 21219/13, 33164/13, 33593/13 and 52270/13 were declared inadmissible.
4. The Government objected to the examination of the applications by a Committee. After having considered the Government’s objection, the Court rejected it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants’ dates of birth and places of residence are given in the Appendix.
A. Administrative arrests
6. On 12 January, 26 January, 10 March and 29 December 2013 demonstrations were planned to be held in Baku. It appears that the organisers of the demonstrations gave no proper prior notice to the relevant authority, the Baku City Executive Authority (“the BCEA”). Information about the demonstrations was disseminated through Facebook or the press.
7. According to the applicants, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The demonstrations of 12 January and 10 March 2013 were aimed at protesting about the deaths of soldiers in the army. The demonstration of 26 January 2013 condemned the use of force by the police against the participants of previous demonstrations, while those taking part in the demonstration of 29 December 2013 were protesting against bureaucratic injustices which had allegedly caused a disabled war veteran to set himself on fire on 25 December 2013.
8. Each applicant attended one of the demonstrations (see Appendix), but shortly after they had begun the police started to disperse those who had gathered. All the applicants were arrested during the dispersal operations and were taken to various police stations.
9. The applicants were questioned at the police stations they were taken to.
10. On the day of each applicant’s arrest administrative offence reports (inzibati xəta haqqında protokol) were issued, which stated that the applicants had committed an administrative offence under Article 298.2 of the Code of Administrative Offences (“the CAO”) (participation in a public assembly that had not been organised in accordance with the law).
11. Some of the applicants refused to sign the administrative offence reports (applications nos. 52270/13, 26424/14 and 26994/14).
12. According to most of 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.
13. According to statements (ərizə) written by the applicants in applications nos. 20589/13 and 33164/13 at the police stations on the day of their arrest (12 January and 10 March 2013 respectively), they refused the services of a lawyer.
14. The applicants in applications nos. 20589/13 and 26424/14 were released after being kept in police custody for a few hours, subject to an undertaking to reappear at the police station on various dates.
B. Court proceedings against the applicants
15. Most of the applicants were taken to trial courts directly from the police stations, either on the day of their arrest or the following day. The applicants in applications nos. 20589/13 and 26424/14 were brought before first-instance courts on the day they returned to the police station.
16. According to most of the applicants, the court hearing in each case was very brief. Members of the public were not allowed in the courtroom, even though the court had not taken a formal decision to close the hearing to the public.
17. According to most of the applicants, they were not given an opportunity to appoint lawyers of their own choosing. State-funded lawyers were asked to assist some of them. The applicants in applications nos. 21219/13, 33164/13, 33593/13 and 26994/14 were not represented by a lawyer. According to documents from the case files, the applicants in applications nos. 21219/13, 33164/13 and 26994/14 refused the assistance of a State-funded lawyer and decided to defend themselves in person.
18. According to the transcript of the hearing concerning the applicant in application no. 20589/13, the State-funded lawyer stated briefly in his oral submissions that the applicant was guilty and asked the court for lenience. Similarly, the State-funded lawyer for the applicant in application no. 26424/14 stated in general terms that the applicant was not guilty and asked the court to discontinue the case. In addition, none of the material submitted to the Court contains any record of showing that the State-funded lawyer, Mr V.M., made any oral or written submissions on behalf of the applicant in application no. 52270/13.
19. The only witnesses questioned during the court hearings with respect to the applicants in applications nos. 20589/13 and 26424/14 were the police officers who, according to the official records, had arrested them. The police officers testified that the applicants had staged unauthorised demonstrations. No witnesses were questioned by the courts in the other applicants’ cases.
20. The first-instance courts found that the applicants had participated in unauthorised demonstrations. The applicants were convicted under Article 298.2 of the CAO and sentenced to a period of administrative detention, varying from thirteen to seventeen days, or to a fine of 400 or 500 Azerbaijani manats (AZN) (see Appendix).
21. On various dates the applicants lodged appeals with the Baku Court of Appeal, arguing that their convictions had been 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 first-instance courts had not been fair. They asked the Baku Court of Appeal to quash the first-instance courts’ decisions in their cases.
22. The applicants in applications nos. 21219/13, 52270/13 and 26424/14 were assisted before the Baku Court of Appeal by lawyers of their own choosing. The other applicants were not represented by a lawyer.
23. On various dates the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the first-instance courts (see Appendix).
24. In its decision with regard to the applicant in application no. 33593/13 the Court of Appeal noted, inter alia, that he had voluntarily refused legal assistance at the pre-trial stage.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS
25. At the time of the applicants’ arrest, Article 5 § IV of the Law on Freedom of Assembly of 13 November 1998 provided that no prior written notification was required for spontaneous assemblies.
26. Before amendments introduced by Law no. 462-IVQD of 2 November 2012, a breach of the rules on the organisation and holding of assemblies was punishable under Article 298 of the Code of Administrative Offences of 2000 (“the CAO”) by a reprimand or a fine of seven to thirteen manats (AZN).
27. Law no. 462-IVQD of 2 November 2012, which entered into force on 1 January 2013, introduced new wording to Article 298 of the CAO on breaching the rules on the organisation and holding of assemblies. According to that amendment, participation in an assembly organised in breach of such rules became explicitly punishable under Article 298.2 of the CAO and punishments in the form of administrative detention of up to 15 days or community service were introduced for the first time. In addition, the fine for a breach of the rules on the organisation and holding of assemblies was increased and the amounts fixed as follows: between AZN 300 and 600 for participants of an assembly; AZN 1,500 to AZN 3,000 for individuals who organise an assembly; AZN 3,000 to AZN 6,000 for persons in charge (vəzifəli şəxslər) who organise an assembly; and between AZN 15,000 and AZN 30,000 for legal entities involved in the organisation of an assembly.
28. A further increase in the penalties for breaching the rules on the organisation and holding of assemblies occured in May 2013. By Law no. 651-IVQD of 14 May 2013, which entered into force on 5 June 2013, the administrative detention sentence foreseen in Article 298.1 and Article 298.2 of the CAO was increased to “up to two months”.
29. According to Presidential Order (sərəncam) no. 1866 of 1 December 2011, which was in force until 1 September 2013, the minimum wage in Azerbaijan was AZN 93.5.
30. The relevant extracts of Resolution 1917 (2013) of the Parliamentary Assembly of the Council of Europe, “The honouring of obligations and commitments by Azerbaijan”, read as follows:
“... 10. Regrettably, there is no political dialogue with the opposition parties outside parliament. The Assembly is concerned by the restrictive climate for the activities of the extra-parliamentary opposition, which complains about limitations imposed on freedom of expression and freedom of assembly and the lack of access to the public media.
11. The establishment of an inclusive political system and a truly competitive and unrestrictive political environment requires full implementation of basic freedoms, including freedom of expression, freedom of assembly and freedom of association. The situation in Azerbaijan is preoccupying and the Assembly expresses its deep concern in this regard.
12. Recently adopted amendments to the Criminal Code and the Administrative Code, which have increased penalties for the organisers of, and participants in, “unauthorised” gatherings, raise concern. Considering the authorities’ ongoing blanket ban on protests in the Baku city centre, these amendments are likely to have a further negative impact on freedom of assembly and freedom of expression. The restrictive use of certain articles of the Criminal Code, in particular Articles 221 and 233, against participants in peaceful, albeit unauthorised, demonstrations, is another matter of concern. ...”
31. The relevant extracts of Report (CommDH(2013)14) of 6 August 2013 by Nils Muižnieks, the Commissioner for Human Rights of the Council of Europe, following his visit to Azerbaijan from 22 to 24 May 2013, read as follows:
“... 76. The Commissioner is deeply concerned by the recent amendments to the Law on Freedom of Assembly, the Criminal Code and the Code of Administrative Offences, which further erode the right to freedom of assembly. The sanctions which can now be imposed, coupled with the fact that local authorities have not authorised a single rally in Baku city centre in recent years, clearly have a chilling effect on the organisation of or participation in 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. ...”
32. For a summary of other 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
33. Given the similarity of the facts and complaints raised in all eight 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
34. 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, as provided for in Article 11 of the Convention, which reads as follows:
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.”
35. The applicants in applications nos. 20589/13, 21219/13, 33164/13, 33593/13, 52270/13 and 65308/13 also complained that the dispersal of the demonstrations and their arrest and conviction for an administrative offence had been in breach of their freedom of expression, as provided for in Article 10 of the Convention, which reads 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.”
A. Admissibility
36. 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 complaints in applications nos. 20589/13, 21219/13, 33164/13, 33593/13, 52270/13 and 65308/13
37. 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).
38. 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
39. The applicants argued that the authorities had not taken into consideration the fact that the demonstrations in question had been spontaneous assemblies and that therefore no prior notification had been required by law.
40. In particular, in respect of the demonstration of 12 January 2013, the applicant in application no. 20589/13 submitted that the assembly had been held spontaneously in response to information in the press two or three days earlier about the suspicious death of a soldier (J.G.) on 7 January 2013. Deaths in the army had already been a widespread problem in Azerbaijan. The applicants in applications nos. 26424/14 and 26994/14 submitted that the demonstration of 29 December 2013 had been about the death of a disabled war veteran who had set himself on fire. That person had attempted to commit suicide on 25 December 2013 in protest at the arbitrariness of the authorities in demolishing his property. He had died on 28 January in hospital and the next day, on 29 December 2013, people had gathered for his funeral and had later protested, as an immediate response, against the bureaucratic injustices which had led to the tragedy.
41. Lastly, the applicants submitted that the authorities had also not taken into consideration the fact that the demonstrations had been intended to be peaceful and had been held in a peaceful manner.
42. The Government submitted that the demonstrations had been organised in breach of provisions of national legislation. They argued in particular that if steps had been taken to organise an assembly, even if those steps had taken place as little as one to two days before its intended date, the assembly could not be regarded as spontaneous.
43. They further argued that the dispersal of the demonstrations had been necessary in the interests of national security, for the protection of public safety and the prevention of disorder or crime, and had been proportionate to the aims pursued.
44. With respect to the demonstrations of 12 January, 26 January and 10 March 2013 the Government submitted in particular that the police authorities had warned the organisers and the participants beforehand that those unauthorised assemblies would be dispersed. The applicants had also been aware of the authorities’ position on unauthorised assemblies and of the administrative penalties on participants of such gatherings.
45. 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
46. The Court observes that the organisers did not submit a prior notice about the demonstration of 29 December 2013 to the BCEA. However, it is ready to accept that that demonstration was an immediate response to the death of a disabled war veteran who had set himself on fire as a protest against the bureaucratic injustices that he had allegedly faced. The fact that the funeral was held on 29 December constituted a special circumstance warranting a spontaneous demonstration on that particular date, overriding the obligation to submit a prior notice of an assembly (see, mutatis mutandis, Bukta and Others v. Hungary, no. 25691/04, §§ 35-36, ECHR 2007‑III). The Court also observes that according to Article 5 § IV of the Law on Freedom of Assembly, prior written notification was indeed not required for “spontaneous assemblies” (see paragraph 25 above). In those circumstances the Court has doubts whether the dispersal of the assembly of 29 December 2013 was prescribed by law. 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 only to the lawfulness of the interference (see Gafgaz Mammadov, cited above, § 57).
47. As to the demonstrations of 12 January, 26 January and 10 March 2013, the Court considers that the applicants failed to sufficiently substantiate their argument that those demonstrations were spontaneous. In particular, considering that the death of soldiers in the army had already been a widespread problem, as submitted by the applicant in application no. 20589/13, it is not clear why there was an urgent need to hold a demonstration on a specific date, 12 January 2013, without submitting five days’ written notice to the BCEA. In those circumstances, the Court is ready to accept that the dispersal of the demonstrations on 12 January, 26 January and 10 March 2013 was lawful (compare Ibrahimov and Others v. Azerbaijan, nos. 69234/11, 69252/11 and 69335/11, §§ 74-75, 11 February 2016).
48. Turning to the question of whether the dispersal of the demonstrations of 12 January, 26 January, 10 March and 29 December 2013, and the applicants’ convictions were necessary in a democratic society, the Court notes that the issues raised by the present complaints are essentially the same as those examined in Gafgaz Mammadov (cited above). The facts of that case and the present cases are similar to a significant degree. Consequently, for the same reasons as those outlined in the Gafgaz Mammadov judgment, the Court concludes that the authorities in the present cases have not adduced relevant and sufficient reasons justifying the dispersal of the demonstrations (see Gafgaz Mammadov, cited above, § 61). The authorities also failed to acknowledge that the act of participating in an unauthorised peaceful demonstration was by itself protected by Article 11 of the Convention (ibid., § 63).
49. The dispersal of the demonstrations and the applicants’ arrests and convictions could not but have the effect of discouraging them from participating in political rallies. The measures applied in the present cases and the fear of the sanctions that could potentially be applied against the participants and organisers of unauthorised peaceful assemblies undoubtedly had a chilling effect on the exercise of freedom of assembly. Such a chilling effect deters other opposition supporters and the public at large from attending demonstrations, and, more generally, from participating in open political debate (see Gafgaz Mammadov, cited above, § 67).
50. In those circumstances the Court finds a violation of Article 11 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
51. Most of the applicants (applications nos. 20589/13, 21219/13, 33164/13, 33593/13, 52270/13, 26424/14 and 26994/14) complained under Article 6 that they had not had a fair and public hearing in the proceedings concerning their alleged administrative offences. 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
52. The Court notes that the complaints under Article 6 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
53. The applicants submitted, in particular, that they had not been served with a copy of the administrative offence reports issued on them or with other material from their case files prior to the hearing before the first-instance courts or later. They also argued that the courts had based their findings merely on the administrative offence reports or also, in some cases, on statements by police officers, who had been the sole witnesses questioned at the first-instance hearings. The applicants further submitted that they had not been assisted 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 first-instance courts. They had either been represented in purely only formalistic terms by State-funded lawyers, or had not been represented at all. Lastly, the applicants argued that the public had not been allowed into the courtroom for the first-instance hearings, even though the courts had not issued an official decision to exclude the public.
54. The Government submitted that the administrative proceedings with respect to the applicants had been in line with national law. In particular, the cases had not been complex and the time-limit for lodging an appeal with the Court of Appeal against the decisions of the first-instance courts had been ten days so the applicants had had adequate time and facilities to prepare their defence. The Government emphasised that some of the applicants had refused the assistance of State-funded lawyers and had decided to defend themselves in person. They also submitted in general terms that the principle of equality of arms had been respected during the court proceedings.
2. The Court’s assessment
55. In the first place, the Court will examine the material and submissions in applications nos. 21219/13, 33164/13, 33593/13, 52270/13, 65308/13 and 26994/14. 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 in that case, 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 great reliance by the domestic courts on the administrative offence report prepared by the police and statements given by the police (ibid., § 85), a complete disregard by the domestic courts of important factual circumstances and legal issues, 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 purely formalistic representation by the State-funded lawyer (ibid., § 93). Having regard to those factors, the Court found that the administrative offence proceedings against the applicant in Gafgaz Mammadov (cited above), considered as a whole, had not been in conformity with the guarantees of a fair hearing.
56. Having regard to the facts of the present cases and their clear similarity to those of Gafgaz Mammadov (cited above) on all the 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 (applications nos. 21219/13, 33164/13, 33593/13, 52270/13, 65308/13 and 26994/14) each applicant’s right to fair trial was breached for the same reasons as those outlined above.
57. The Court will now examine the material and submissions in applications nos. 20589/13 and 26424/14. It observes that even though the applicants were kept in police custody for a few hours and were questioned there without the participation of a lawyer, they were released pending the trial. In application no. 20589/13 the trial took place two days later and in application no. 26424/14 it was the next day. However, the applicants failed to explain to the Court whether there were any circumstances in the period preceding the trial which rendered the time or facilities available to them inadequate, or whether there were any factors, such as a shortage of time or financial means, which prevented them from hiring lawyers of their own choosing to represent them at the trial. The Court therefore considers that the applicants’ complaints of inadequacy of time and facilities and of a lack of effective legal assistance at the trial are unsubstantiated.
58. However, turning to the question of whether the applicants’ right to a reasoned decision was respected, the Court notes that there is a significant degree of similarity between the facts of their cases and the issues under Article 6 of the Convention raised by them and those examined in the Gafgaz Mammadov judgment (cited above). The Court therefore concludes that, as in Gafgaz Mammadov (ibid.), the domestic courts in the proceedings against the applicants in applications nos. 20589/13 and 26424/14 relied greatly on the administrative offence reports prepared by the police and on police statements (ibid., § 85). The domestic courts also completely disregarded important factual circumstances and legal issues, inter alia, the peaceful nature of the unauthorised demonstrations (ibid., § 86).
59. In those circumstances the Court finds a violation of Article 6 §§ 1 and 3 of the Convention.
60. 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 finds it unnecessary to rule on the issue of whether the refusal by some applicants of State-funded legal assistance at the pre-trial stage of the proceedings (applications nos. 20589/13 and 33593/13), at the trial (applications nos. 21219/13 and 26994/14) or at both the pre-trial stage and the trial (application no. 33164/13) constituted an unequivocal waiver of their right to a lawyer. There is also no need to examine the applicants’ arguments concerning the alleged lack of a public hearing.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
61. Most of the applicants (applications nos. 20589/13, 21219/13, 33164/13, 33593/13, 52270/13, 26424/14 and 26994/14) complained that their arrest and custody, and in some cases also their administrative detention, had been in breach of Article 5 of the Convention. They had not been promptly informed of the reasons for their arrest, and the arrest and custody had not conformed to domestic procedural rules. 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: ...
(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.”
62. The Government submitted that the applicants had been escorted to police stations for the preparation of administrative offence reports on them. After the administrative offence reports had been drawn up, some of them had been released pending trial, while the others had been kept in custody and later brought before a court. The applicants’ arrest and placement in custody had been in conformity with Article 399.3 of the CAO. Under that Article, a person facing proceedings for an administrative offence punishable by administrative detention may be taken into custody for up to twenty-four hours. The administrative detention of the applicants in applications nos. 21219/13, 26424/14 and 26994/14 had resulted from lawful court decisions which had found them guilty of an administrative offence under Article 298 of the CAO.
63. The Government also submitted that the applicants had been duly informed of the reasons for their arrest and of 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 been included in the file.
64. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that they are not inadmissible on any other grounds and must therefore be declared admissible.
65. However, having regard to its findings in relation to Articles 6 and 11 of the Convention above, the Court considers that it is not necessary to examine whether there has been a violation of Article 5.
V. 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 applications nos. 20589/13, 33164/13 and 33593/13 claimed 13,000 euros (EUR) each; the applicants in applications nos. 52270/13 and 65308/13 claimed EUR 20,000 each; the applicant in application no. 21219/13 claimed EUR 21,000; the applicant in application no. 26424/14 claimed EUR 24,500; and the applicant in application no. 26994/14 claimed EUR 25,000.
68. The applicants in applications nos. 20589/13, 33164/13 and 33593/13 also made claims in respect of pecuniary damage. They claimed EUR 500 each. In support of their claims they submitted that they had paid fines ordered by the domestic courts (see Appendix).
69. The Government submitted no observations regarding the claims for just satisfaction of the applicants in applications nos. 26424/14 and 26994/14.
70. The Government submitted that the claims of the other applicants were unsubstantiated and unreasonable. They considered that, in any event, an award of EUR 3,000 each to the applicants in applications nos. 20589/13, 33164/13, 33593/13, 52270/13 and 65308/13, and EUR 4,000 to the applicant in application no. 21219/13 would constitute sufficient just satisfaction.
71. The Government also submitted that they did not object to awarding just satisfaction in respect of pecuniary damage. However, they argued that given the exchange rate of the Azerbaijani manat (AZN), the applicant in application no. 20589/13 should be awarded EUR 445 and the applicants in applications nos. 33164/13 and 33593/13 EUR 424 each.
72. 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 EUR 6,000 each to the applicants in application nos. 20589/13, 21219/13, 33164/13, 33593/13, 52270/13, 26424/14 and 26994/14, and EUR 4,000 to the applicant in application no. 65308/13 under this head, plus any tax that may be chargeable on those amounts.
73. In addition, the Court accepts that the applicants in applications nos. 20589/13, 33164/13 and 33593/13 suffered pecuniary damage as a result of the breach of Article 11 found above. The Court considers that the applicants are entitled to recover the amounts paid as a fine and therefore awards them EUR 480 each, plus any tax that may be chargeable on that amount.
B. Costs and expenses
74. For legal fees incurred before the domestic courts and/or the Court the applicants in applications nos. 20589/13, 33164/13 and 33593/13 claimed EUR 2,500 each; the applicant in application no. 21219/13 claimed EUR 3,300; and the applicants in applications nos. 52270/13, 65308/13, 26424/14 and 26994/14 claimed EUR 2,000 each. In support of their claims, they submitted contracts for legal and translation services.
75. The Government submitted no observations regarding the claims for costs and expenses of the applicants in applications nos. 26424/14 and 26994/14.
76. With respect to the other applicants, the Government considered that the claims were excessive and could not be regarded as reasonable as to quantum.
77. In particular, with respect to applications nos. 20589/13, 33164/13 and 33593/13 they submitted that the contracts for legal and translation services mentioned above had been signed by the applicants and Mr R. Mustafazade. Those contracts contained a provision about payment to Mr Mustafazade of the legal fees incurred before the domestic courts. However, the applicants had not in fact been represented before the domestic courts by Mr Mustafazade. The Government further observed that according to the contracts for legal and translation services, the applicants were to pay the lawyers 20% of the damages awarded by the Court. They submitted similar observations with respect to application no. 21219/13.
78. 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.
79. The Court notes that in the proceedings before it the applicants in applications nos. 20589/13, 21219/13, 33164/13, 33593/13, 26424/14 and 26994/14 were represented by the same lawyers, Mr A. Mustafayev and/or Mr Mustafazade, whose submissions in all six cases were very similar. It also notes that the clause on the applicants paying the lawyers 20% of the damages is irrelevant for the assessment of costs and expenses incurred by the applicants.
80. Taking those considerations into account, the Court awards a total amount of EUR 6,000 to the applicants jointly in applications nos. 20589/13, 21219/13, 33164/13, 33593/13, 26424/14 and 26994/14 in respect of the legal services provided by Mr Mustafayev and/or Mr Mustafazade, less EUR 600 already paid in legal aid by the Council of Europe. The Court awards EUR 2,000 each to the applicants in applications nos. 52270/13 and 65308/13.
C. Default interest
81. 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 assemblies 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 the applicants in applications nos. 20589/13, 21219/13, 33164/13, 33593/13, 52270/13, 26424/14 and 26994/14;
5. Holds that there is no need to examine the complaints under Article 5, raised by the applicants in applications nos. 20589/13, 21219/13, 33164/13, 33593/13, 52270/13, 26424/14 and 26994/14;
6. 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 6,000 (six thousand euros) each, plus any tax that may be chargeable, to the applicants in applications nos. 20589/13, 21219/13, 33164/13, 33593/13, 52270/13, 26424/14 and 26994/14, in respect of non-pecuniary damage;
(ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, to the applicant in application no. 65308/13, in respect of non-pecuniary damage;
(iii) EUR 480 (four hundred and eighty euros) each, plus any tax that may be chargeable, to the applicants in applications nos. 20589/13, 33164/13 and 33593/13, in respect of pecuniary damage;
(iv) EUR 5,400 (five thousand four hundred euros), plus any tax that may be chargeable to the applicants, to the applicants in applications nos. 20589/13, 21219/13, 33164/13, 33593/13, 26424/14 and 26994/14 jointly, in respect of costs and expenses, to be paid directly into the applicants’ representatives’ bank account;
(v) EUR 2,000 (two thousand euros) each, plus any tax that may be chargeable to the applicants, to the applicants in applications nos. 52270/13 and 65308/13, in respect of costs and expenses;
(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 6 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Anne-Marie DouginFaris Vehabović
Acting Deputy RegistrarPresident
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Notes
First-instance judgment
Appellate judgment
20589/13
25/02/2013
Sakhavat MEHTIYEV
1986
Sumgait
Ruslan MUSTAFAZADE
fine of AZN 500 for participation in the demonstration of 12 January 2013
Decision of the Nasimi District Court of 14 January 2013
Decision of the Baku Court of Appeal of 29 January 2013
21219/13
04/03/2013
Tunjay GULIYEV
1989
Baku
Ruslan MUSTAFAZADE
Asabali MUSTAFAYEV
13 days’ administrative detention for participation in the demonstration of 26 January 2013
Decision of the Nasimi District Court of 26 January 2013
Decision of the Baku Court of Appeal of 4 February 2013
33164/13
07/05/2013
Azer SADIKHOV
1980
Astara
Ruslan MUSTAFAZADE
Asabali MUSTAFAYEV
fine of AZN 500 for participation in the demonstration of 10 March 2013
Decision of the Sabail District Court of 11 March 2013
Decision of the Baku Court of Appeal of 27 March 2013
33593/13
07/05/2013
Osman AHMADOV
1991
Baku
Ruslan MUSTAFAZADE
Asabali MUSTAFAYEV
fine of AZN 500 for participation in the demonstration of 10 March 2013
Decision of the Sabail District Court of 11 March 2013
Decision of the Baku Court of Appeal of 27 March 2013
52270/13
24/07/2013
Khadija ISMAYILOVA
1976
Baku
Fariz NAMAZLI
fine of AZN 400 for participation in the demonstration of 26 January 2013
Decision of the Sabail District Court of 26 January 2013
Decision of the Baku Court of Appeal of 11 February 2013
65308/13
28/09/2013
Javid GARAYEV
1991
Baku
Khalid BAGIROV
fine of AZN 500 for participation in the demonstration of 10 March 2013
Decision of the Sabail District Court of 11 March 2013
Decision of the Baku Court of Appeal of 28 March 2013
26424/14
18/03/2014
Javid HAJIBEYLI
1985
Aghjabedi
Ruslan MUSTAFAZADE
Asabali MUSTAFAYEV
16 days’ administrative detention for participation in the demonstration of 29 December 2013
Decision of the Sabail District Court of 30 December 2013
Decision of the Baku Court of Appeal of 10 January 2014
26994/14
18/03/2014
Tural SADIGLI
1984
Baku
Ruslan MUSTAFAZADE
Asabali MUSTAFAYEV
17 days’ administrative detention for participation in the demonstration of 29 December 2013
Decision of the Sabail District Court of 30 December 2013
Decision of the Baku Court of Appeal of 9 January 2014
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