FIRST SECTION
Applications nos. 39919/07 and 56947/10
Elchin HASANOV
against Azerbaijan
lodged on 21 August 2007 and
22 September 2010 respectively
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Elchin Hasanov, is an Azerbaijani national who was born in 1977 and lives in Sumgayit. His applications, nos. 39919/07 and 56947/10, were lodged with the Court on 21 August 2007 and 22 September 2010 respectively. He was represented before the Court by Mr I. Aliyev and Mrs N. Aliyeva, lawyers practising in Azerbaijan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s arrest and “administrative detention”
The applicant worked as a reporter for two newspapers.
On 23 November 2006 a number of members of the Popular Front Party of Azerbaijan held a picket in front of the building housing the former editorial office of the opposition-orientated Azadliq newspaper in Baku in order to protest against the recent eviction of that newspaper’s office from that building. The applicant, who was not a member of the Popular Front Party, participated in the picket as a journalist.
The picket was considered an unauthorised public assembly by the authorities and was dispersed by the police, who allegedly used force against the participants. At around 2.30 p.m. several dozen persons were arrested, including the applicant. No reasons were given for their arrest. The applicant attempted to explain to the police officers arresting him that he was a journalist by pointing to the journalist’s badge he was wearing round his neck. However the policemen tore the badge off and threw it away. According to the applicant, during the arrest he was struck several times with a truncheon.
The applicant and other arrested persons were taken by bus to Police Station no. 8 of the Sabayil District Police Office. After spending some time there, the applicant and several other arrested persons were taken to Police Station no. 9 of the Sabayil District Police Office. They arrived at Police Station no. 9 at around 4 p.m.
The applicant was held in the internal yard of the police station for several hours, despite the cold weather. He was then taken into the office of a police investigator and was asked to write a note of apology for participating in an unauthorised public assembly. The applicant refused and attempted to state in writing his own version of the events, but was precluded from doing so and was taken back to the yard.
At around 7.30 p.m. the Head of the Police Station informed the applicant orally that he was being taken to prison. Then the applicant and about twenty other arrested persons were put into a minibus and taken to the Sabayil District Court.
After arriving at the court building they were kept inside the bus for two hours. Thereafter the applicant and several other arrested persons were taken inside the court building into a judge’s office. According to the applicant, the judge asked them for their names. The applicant gave the judge his version of the events, to which the judge did not respond. The applicant was then taken back to the bus.
Following this hearing, the judge sentenced the applicant to ten days’ “administrative detention”. The decision, in its entirety, read as follows:
“I, judge [I.A.] of the Sabayil District Court, having examined the administrative report drawn up in accordance with Article 310.1 of the Code of Administrative Offences concerning ... [the applicant]
HAVE DETERMINED:
At around 2.45 p.m. on 23 November 2006 [the applicant] held an unauthorised picket in front of the Baki Soveti metro station and refused to comply with lawful orders from the police.
In doing so, the applicant committed an administrative offence under Article 310.1 of the CAO [Code of Administrative Offences].
Having regard to the above, in accordance with Articles 357, 360, 362-365, 425, and 430-432 of the CAO, [I]
HAVE DECIDED:
[that the applicant] is to be found guilty under Article 310.1 of the CAO and sentenced to ten days’ detention under the administrative procedure.
The term of detention is to be calculated from 23 November 2006.
This decision can be appealed against within ten days.”
The applicant was not informed of the decision and was not able to obtain a copy of it until months later (see below).
It appears that similar decisions were given in respect of a number of other arrested persons.
After about half an hour, a police officer holding a list approached the bus and announced the names of those who should remain in the bus. Except for two persons, everyone’s name was on the list; the two who were not in the list were released.
At around 10 p.m. the bus took the applicant, together with the other detained persons, to a temporary detention facility.
On the same evening the detainees were visited by Mr E. Behbudov, head of the Azerbaijani Committee against Torture. During their meeting, the applicant was informed, for the first time, that he had been sentenced to ten days’ “administrative detention” by the Sabayil District Court.
2. Appeals against the decision on “administrative detention”
While the applicant was in detention, on 24 November 2006 E.Q., an advocate, lodged an appeal against the Sabayil District Court’s decisions of 23 November 2006 on behalf of several of the members of the Popular Front Party who had been detained, including the applicant. However, according to the applicant, the appeal had been lodged on his behalf unbeknownst to him and without his authorisation.
On 27 November 2006 the Court of Appeal rejected the appeal.
Following his release from detention, the applicant requested the Sabayil District Court to provide him with a copy of its decision of 23 November 2006, but to no avail. On 8 January 2007 the applicant sent a formal written request to the Sabayil District Court asking for a copy of the decision. Having received no reply to this request for twenty-two days, on 7 February 2007 the applicant was finally able to obtain a copy of the decision after personally visiting the court.
On 12 February 2007 the applicant lodged an appeal against the Sabayil District Court’s decision of 23 November 2006. At the same time, he lodged a request for restoration of the missed appeal time-limit, which was granted on 14 February 2007. In his appeal, he complained, inter alia, that the hearing of 23 November 2006 by the Sabayil District Court had not complied with several guarantees of a fair trial.
On 2 March 2007 the Court of Appeal refused to admit the applicant’s appeal on the ground that on 24 November 2006 he had already lodged an appeal against the Sabayil District Court’s decision of 23 November 2006 (the appeal lodged by E.Q. on the applicant’s behalf) and that that appeal had been examined on 27 November 2006. Accordingly, the Court of Appeal found that the applicant had already exercised his right of appeal and that it was not possible to lodge more than one appeal against the same decision.
The applicant lodged an appeal with the Supreme Court against the Court of Appeal’s inadmissibility decision of 2 March 2007. By a letter of 1 May 2007, the registry of the Supreme Court notified the applicant that his appeal could not be admitted because, in accordance with the CAO, no appeal lay against the Court of Appeal’s inadmissibility decisions.
The applicant attempted to lodge further appeals with the Plenum of the Supreme Court and the Constitutional Court, but these appeals were not admitted for the same or similar reasons.
3. Civil action for compensation
On 5 February 2007 the applicant lodged a civil action with the Sabayil District Court against the Sabayil District Police Office, seeking compensation for non-pecuniary damage caused by the applicant’s allegedly unlawful arrest and deprivation of liberty on 23 November 2006.
By a decision of 27 February 2007 the Sabayil District Court refused to admit the action as it did not comply with the requirements concerning the form and content of a civil claim.
The applicant appealed against that inadmissibility decision. On 29 March 2007 the Court of Appeal quashed the decision and remitted the case for examination on the merits.
Subsequently, despite numerous enquiries by the applicant, he was given no information by the Sabayil District Court concerning the state of proceedings.
After the applicant had written numerous complaint letters to various authorities, by a letter of 11 April 2008 a judge of the Sabayil District Court sent him a copy of the Sabayil District Court’s decision of 5 June 2007. According to that decision, the case had been “left without examination” owing to the parties’ failure to appear at hearings scheduled for 31 May and 5 June 2007.
On 22 April 2008 the applicant sent a letter to the Sabayil District Court, claiming that he had not been informed about, and had not been summoned to, the hearings of 31 May and 5 June 2007. He requested the court to provide him with copies of documents proving that the summons had been sent to him. According to the applicant, he was provided with documents constituting insufficient proof that he had been summoned to those hearings.
On 24 April 2008 the applicant lodged an application for “renewal” of the civil proceedings.
On 12 June 2008 the Sabayil District Court examined the applicant’s civil claim of 5 February 2007 and dismissed it (the applicant has not made a copy of this judgment available to the Court).
The applicant appealed. On 21 October 2008 the Baku Court of Appeal rejected his appeal, finding, inter alia, that the police had arrested the applicant lawfully and that his detention for several hours prior to the court decision on “administrative detention” had been lawful because the CAO authorised detention of persons pending an administrative sanction for a period of up to twenty-four hours.
The applicant intended to lodge a cassation appeal against that judgment. The domestic law required a plaintiff lodging a cassation appeal with the Supreme Court to be represented by an advocate who was a member of the Bar Association.
On 23 December 2008 the applicant lodged applications with the Bar Association, the Baku Court of Appeal and the Supreme Court, claiming that he had no financial means to pay an advocate and requesting to be provided with an advocate at the State’s expense. The Bar Association responded that the applicant should apply with the relevant request, supported by documents certifying his personal financial situation, to the relevant court.
It appears that, at the same time as lodging the above-mentioned applications for free legal aid, the applicant lodged a cassation appeal with the Supreme Court, via the Court of Appeal (under the domestic law, an appeal to be lodged with a higher court had first to be submitted to the lower court in order for that court to verify the appeal’s compliance with the formal requirements prior to transmitting the appeal to the higher court).
On 19 January 2009 the Baku Court of Appeal rejected the applicant’s request for a State-appointed advocate and refused to transmit his cassation appeal to the Supreme Court since it did not comply with the formal requirements for lodging a cassation appeal (the applicant has not made a full copy of this decision available to the Court).
The applicant attempted to appeal against the decision of 19 January 2009. On 24 February 2009 the Baku Court of Appeal refused admit the cassation appeal against its decision of 19 January 2009 on the ground that the applicant had missed the time-limit for appeal, and on 27 February 2009 it refused to admit a new cassation appeal against its judgment of 21 October 2008 on the ground that the applicant was not represented by an advocate.
The applicant appealed again, this time against the decision of 24 February 2009. On 19 June 2009 the Supreme Court granted his appeal and ordered the Baku Court of Appeal to re-examine the issue of the missed appeal time-limit.
On 14 September 2009 the Baku Court of Appeal restored the time-limit for appeal against its decision of 19 January 2009 and transmitted the applicant’s cassation appeal against that decision to the Supreme Court.
On 24 December 2009 the Supreme Court quashed the Baku Court of Appeal’s decision of 19 January 2009 and ordered that court to re-examine the applicant’s request to be provided with a State-appointed advocate in order to lodge a cassation appeal against the Baku Court of Appeal’s judgment of 21 October 2008.
On 18 February 2010 the Baku Court of Appeal, having re-examined the applicant’s request, rejected it again, finding that the applicant had failed to provide any supporting documents showing that he lacked the financial means to appoint a lawyer.
The applicant appealed against that decision. On 31 May 2010 the Supreme Court upheld the decision and agreed with the Baku Court of Appeal’s finding that the applicant’s application for free legal aid had not been supported by any relevant documents.
B. Relevant domestic law
Article 310.1 of the CAO provides that failure to follow lawful orders given by the police or military personnel carrying out their duty to protect public order constitutes an administrative offence punishable by a fine or by “administrative detention” for a period of up to fifteen days.
According to Article 67.1 of the Code of Civil Procedure (“the CCP”), a cassation appeal can be admitted for examination only of it has been drafted by an advocate. Parties to the case can participate in cassation hearings only if they are represented by an advocate. According to Article 67.2 of the CCP, in cases where legal representation is compulsory, parties who have insufficient means to retain an advocate may lodge an application for free legal aid with the court, whose decision will be subject to a cassation appeal. In such cases, the advocate’s legal fees are paid from the State budget; if the opposing party loses the civil case, it may be ordered to reimburse these costs to the State budget in full or in part (Article 121.2 of the CCP).
According to Article 406 of the CCP, a cassation appeal to the Supreme Court against an appellate court’s judgment or decision must be lodged via the relevant appellate court.
According to Article 407.3 of the CCP, a cassation appeal must be signed by the advocate who drafted it. According to Article 407.4, the cassation appeal must be accompanied by a document certifying the retention of the advocate. According to Article 408.1 of the CCP, a cassation appeal shall not be admitted if, inter alia, it has not been signed by an advocate or is not accompanied by a document certifying the retention of the advocate.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention that he was ill-treated during the arrest and that his conditions of detention amounted to ill-treatment.
2. The applicant complains under Article 5 § 1 of the Convention that his detention prior to the court decision on “administrative detention” was unlawful, because the authorities did not comply with the formal legal requirements and because the period of his administrative detention without a court decision exceeded the time-limit of three hours set by the CAO. He further complains under Article 5 § 2 of the Convention that he was not promptly informed of the reasons for his arrest.
3. In respect of the proceedings on the administrative offence, relying on Article 5 §§ 3 and 4 and Article 6 of the Convention, the applicant complains that he was convicted and sentenced to ten days’ imprisonment without a proper judicial hearing and that throughout the first-instance and appeal proceedings he was deprived of the basic guarantees of a fair trial, such as the right to a public hearing and to adversarial proceedings, and other criminal defence rights.
4. In respect of the civil proceedings concerning his compensation claim against the police, relying on Articles 6 and 14 of the Convention, the applicant complains that the proceedings in the first-instance and appeal courts were unfair and did not comply with the “reasonable time” requirement. He further complains that the denial of free legal aid and the refusal to admit his cassation appeal to the Supreme Court for examination on the merits violated his right to be represented by a lawyer and his right of access to court, and constituted discriminatory treatment.
5. The applicant complains under Articles 10 and 11 of the Convention that his arrest and detention constituted an unjustified interference with his journalistic activity and right to freedom of peaceful assembly with others.
QUESTIONS TO THE PARTIES
1. Did the applicant participate in the picket of 23 November 2006 or was he present there exclusively with the purpose of carrying out his professional duties as a journalist? The parties are requested to provide detailed information concerning the events of 23 November 2006, including information as to the circumstances in which the picket was organised, the number of participants, what happened during the picket, the number of persons arrested and convicted, etc.
2. The parties are also requested to submit copies of all documents which have not been previously submitted to the Court, including the appeal against the Sabayil District Court’s decision of 23 November 2006 lodged by advocate E.Q. on 24 November 2006, the Court of Appeal’s decision of 27 November 2006, the Sabayil District Court’s decision of 12 June 2008, the Court of Appeal’s decision of 19 January 2009, and any other relevant decisions.
3. Has the applicant exhausted all effective domestic remedies in connection with his complaints under Article 5 of the Convention, as required by Article 35 § 1 of the Convention?
4. Was the deprivation of the applicant’s liberty during the period between his arrest and the Sabayil District Court’s hearing of 23 November 2006 in breach of Article 5 § 1 of the Convention? Was the applicant informed promptly of the reasons for his arrest and of any charge against him, as required by Article 5 § 2 of the Convention?
5. Was Article 6 § 1 of the Convention under its criminal head applicable to the “administrative proceedings” in the present case (see, for example, Galstyan v. Armenia, no. 26986/03, §§ 55 et seq., 15 November 2007)? If so, did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? Has there been a public hearing in the present case, as required by Article 6 § 1 of the Convention? Was the applicant afforded an opportunity to be represented by a lawyer and did he have adequate time and facilities for the preparation of his defence? Was the principle of equality of arms respected as regards the opportunity for the applicant to adequately comment on the prosecution’s submissions?
6. In the proceedings concerning the applicant’s compensation claim against the police, did the applicant have a fair hearing in the determination of his civil rights and obligations, as required by Article 6 § 1 of the Convention? In particular, was the State required to ensure that the applicant was able to benefit from effective legal representation before the Supreme Court? Did the refusal to admit the applicant’s cassation appeal owing to lack of representation by an advocate constitute a breach of the applicant’s right of access to court?
7. Has there been an interference with the applicant’s freedom of expression, in particular in the context of freedom of the press, within the meaning of Article 10 § 1 of the Convention, or an interference with his freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention? If so, was that interference necessary in terms of Article 10 § 2 or Article 11 § 2?
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