FIRST SECTION
DECISION
Application no. 24685/08
Khalid GARAYEV
against Azerbaijan
The European Court of Human Rights (First Section), sitting on 30 September 2014 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 3 May 2008,
Having regard to the declaration submitted by the respondent Government on 28 April 2014, as amended on 30 June 2014, requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Khalid Garayev, is an Azerbaijani national, who was born in 1981 and lives in Imishli. He was represented before the Court by Mr I. Aliyev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 26 January 2007 the applicant participated in a demonstration organised by the political bloc Azadliq in Baku against a decision of the Tariff Council to raise the prices of some goods.
4. According to the applicant, at approximately 3.20 p.m. the police began to disperse demonstrators without any warning and he was arrested. He protested, claiming that his arrest was unlawful. In response, the police officers verbally insulted him and began to hit him with truncheons, as a result of which he lost consciousness.
5. At 3.30 p.m. the applicant was taken to Khatai District Police Station no. 37. According to him, on his arrival at the police station his mobile phone was taken away and he was forcibly kept inside a metal cage from 3.30 p.m. to 8 p.m. At 8 p.m. he was released. He was not provided with any documents concerning his arrest and detention.
6. On 16 February 2007 the applicant submitted a request to the police station, asking for documents concerning his arrest and detention on 26 January 2007. He did not receive a reply.
7. On 19 February 2007 the applicant brought an action, with the Khatai District Court, asking the court to declare his arrest unlawful and find a violation of his rights protected under Articles 3, 5, 10 and 11 of the Convention. In this regard, he alleged, inter alia, that he had been unlawfully arrested and detained at the police station and ill-treated by the police during and after his arrest, and that his rights to freedom of expression and assembly had been violated.
8. The Khatai District Court examined the applicant’s case in accordance with the procedure established by Articles 449-451 of the Code of Criminal Procedure concerning appeals against actions and decisions taken by the prosecution authorities. On 19 March 2007 it dismissed the case, stating that the applicant had been arrested on 26 January 2007 by the police and found guilty under Article 298 (violation of rules of organisation and holding of demonstrations) of the Code of Administrative Offences because of his participation in the unauthorised demonstration that day, and had been given a warning as a sanction for his breach of that provision. He had been released after this warning. It further noted that he had failed to challenge his administrative conviction under Article 298, as required by domestic law. It also held that it was not established that the applicant had been ill-treated by the police and that his right to freedom of assembly had not been violated because the demonstration of 26 January 2007 had been unauthorised.
9. On 29 March 2007 the applicant appealed, reiterating his previous complaints.
10. On 1 June 2007 the Court of Appeal upheld the decision of 19 March 2007. Its decision was not open to further appeal.
11. The applicant received the appellate court’s decision on 26 November 2007.
COMPLAINTS
12. The applicant complained under Article 3 of the Convention that the police had used excessive force on him during the demonstration of 26 January 2007, which amounted to ill-treatment within the meaning of that provision.
13. Relying on Article 5, he complained that he had been unlawfully arrested by the police and that his detention at the police station from 3.30 p.m. to 8 p.m. on 26 January 2007 had been arbitrary and not in accordance with domestic law. He also complained that he had not been informed of the reasons for his arrest, allowed to contact a lawyer of his own choosing or provided with free legal assistance, as required by domestic law.
14. He complained under Articles 10 and 11 that the use of excessive force by the authorities during the dispersal of the demonstration of 26 January 2007 amounted to an infringement of his rights to freedom of expression and peaceful assembly.
15. Relying on Article 6, he complained that his right to a fair trial had been violated because the length of the proceedings before the domestic courts had been excessive, their decisions had not been reasoned, and he had not been promptly provided with a copy of the Court of Appeal’s decision.
THE LAW
I. COMPLAINTS UNDER ARTICLES 3, 5 AND 11 OF THE CONVENTION
16. After the failure of attempts to reach a friendly settlement, by a letter of 28 April 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the complaints under Articles 3, 5 and 11 of the Convention (the Article 10 issue being covered by Article 11). They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
17. The text of the declaration, as amended on 30 June 2014, provided as follows:
“1. The Government of the Republic of Azerbaijan hereby wish to express – by way of unilateral declaration – their acknowledgement of the fact that there have been violations of the applicants’ rights guaranteed under Articles 3, 5 and 11 of the Convention.
2. The Government are prepared to pay each applicant, Mr Haji Alasgarov and Mr Khalid Garayev, the sum of EUR 11,000 (eleven thousands euros) in compensation for non-pecuniary damage. Considering the similarity of the complaints and legal arguments submitted in these cases and observing that substantial parts of the lawyer’s submissions in these cases were either identical or very similar, the Government are prepared to pay the total amount of EUR 2,000 (two thousands euros) to the applicants jointly in respect of the legal services rendered by Mr Intigam Aliyev.
3. These sums shall be free of any tax that may be applicable and shall be payable within three months from the date of the notification of the striking-out judgment of the Court pursuant to Article 37 of the European Convention on Human Rights. From the expiry of the above-mentioned period, 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.
4. The Government considers that this amount will be an adequate redress and sufficient compensation for the impugned violations and thus, will constitute the final settlement of the present case. If, the Court however considers that the above amount does not constitute adequate redress and sufficient compensation, the Government are ready to pay the applicants by way of just satisfaction such other amount suggested by the Court.
5. In the light of above, the Government would suggest that the circumstances of the present case allow the Court to reach the conclusion that there exists “any other reason”, as referred to in Article 37 § 1 (c) of the Convention, justifying to discontinue the examination of the applications, and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the further examination of the case by virtue of that provision. Accordingly, the Government invite the Court to strike the applications out of its list of cases.”
18. By a letter of 6 August 2014, the applicant indicated that the amount of the compensation for legal services was too low, but he accepted the terms of the unilateral declaration.
19. The Court reiterates that Article 37 of the Convention provides that it may, at any stage of the proceedings, decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
20. It also points out that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government, even if the applicant wishes the examination of the case to be continued.
21. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the judgment in Tahsin Acar v. Turkey ([GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
22. The Court observes that the unilateral declaration contains a clear acknowledgment by the Government of a violation of the applicant’s rights protected under Articles 3, 5 and 11 of the Convention. It also contains an undertaking to pay him a total amount of EUR 11,000 in compensation for non-pecuniary damage.
23. Having regard to the nature of the admissions and assurances contained in the Government’s declaration and the amount of compensation proposed – which the Court finds to be reasonable in the circumstances of this case – the Court considers that it is no longer justified to continue its examination of this part of the application (Article 37 § 1 (c)). Moreover, it is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue examining the case (Article 37 § 1 in fine).
24. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
25. In view of the above, it is appropriate to strike this part of the application out of the list.
II. REMAINDER OF THE APPLICATION
26. The applicant further complained under Article 6 that his right to a fair trial had been violated because the length of the proceedings before the domestic courts had been excessive, their decisions had not been reasoned, and he had not been promptly provided with a copy of the Court of Appeal’s decision. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill‑founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Articles 3, 5 and 11 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaints in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident
Full & Egal Universal Law Academy