Communicated on 22 June 2015
FIRST SECTION
Application no 69180/11
Tural HAJIBEYLI against Azerbaijan
and 3 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Azerbaijani nationals. They are represented before the Court by various lawyers practising in Azerbaijan (see Appendix).
The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Background information
The applicants are opposition-oriented activists. The applicant in application no. 73309/14 is a member of the Musavat Party and the applicant in application no. 65910/14 is a member of the Popular Front Party.
The applicant in application no. 69180/11 participated in an unauthorised peaceful demonstration of 12 March 2011, organised in Baku by the opposition. He was arrested during the dispersal of this public assembly.
The applicants in applications nos. 65910/14, 73309/14 and 73587/14 were arrested during the dispersal of another demonstration, held on 6 May 2014. According to the applicants they were among people who gathered near the Baku Assize Court to support the members of an opposition group Nida who were being tried on that day. The courtroom was full, and therefore some people gathered outside the court and waited for the outcome of the proceedings. When the court announced its judgment, those who gathered outside began to protest against the judgment since they considered it unfair. The protest was brief, spontaneous and peaceful. Immediately after the protesters started chanting slogans, police officers and plain-clothed persons began to forcibly disperse the demonstration.
2. Case-specific facts
(a) Application no. 69180/11 lodged on 5 November 2011 by Tural Hajibeyli
According to the applicant, he was arrested at around 2 p.m. on 12 March 2011 and was taken first to Police Station no. 37 of the Khatai District Police Office together with some other persons. After being kept there for one hour, the applicant was moved to Police Station no. 34 of the same Police Office. Next, after being kept in Police Station no. 34 for three hours, at around 7 p.m. he was transferred to Police Station no. 9 of the Sabail District Police Office.
According to the applicant, the police officers who arrested him failed to present themselves and he was not given an opportunity to contact his relatives. The applicant’s rights were not properly explained to him and he was not given access to a lawyer.
On the day of the applicant’s arrest, an “administrative offence report” (inzibati xəta haqqında protokol) was drawn up in his respect at Police Station no. 9 by police officer E.G. The report stated that at around 2.55 p.m., at the Fountains Square in Baku, the applicant attempted to hold an unlawful demonstration and disobeyed a lawful order of a police officer and, by doing so, he had committed an administrative offence under Article 298 (violation of rules on holding public gatherings) and Article 310.1 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences (“the CAO”). The report contained a statement, allegedly written by the applicant, that he was sorry for having committed that offence. According to the applicant, he did not make that statement.
Moreover, on the day of the applicant’s arrest two police officers, M.A. and H.A., prepared a report to a superior police officer (raport) stating that they had arrested ten persons who at around 4 p.m. had disobeyed the lawful order of the police during the unlawful demonstration. The report contained the list of arrested persons. According to the applicant, his name as an eleventh person in the list was added to the report later and in a different handwriting.
According to the documents in the case-file, the administrative offence report in the applicant’s respect was prepared on the basis of the abovementioned report drawn up by police officers M.A. and H.A.
According to the applicant, he was not given an opportunity to familiarise himself with the administrative offence report.
The applicant was brought before the Sabail District Court at around 10 p.m. on the day of his arrest. By a decision of 12 March 2011 the first‑instance court convicted the applicant under Article 310.1 of the CAO and sentenced him to eight days’ “administrative detention”.
At the court hearing the applicant made an oral statement that he had participated in a demonstration and that he had not written any statement in the administrative offence report prepared by the police. The court considered that oral statement as self-incriminating and based its decision on it. The court did not question any witnesses.
The applicant lodged an appeal asking the Baku Court of Appeal to quash the first-instance court’s decision. The applicant argued that he had participated in the demonstration because he had a constitutional right to do so, but that he had not disobeyed any order of a police officer. He also argued that the hearing before the first-instance court had not been fair. The applicant also requested to summon police officers M.A. and H.A., as well as certain persons who had witnessed his arrest and detention (A.H., A.M. and R.M.). The applicant further requested to order an expert examination of the report prepared by police officers M.A. and H.A., in order to establish whether his name had been written in it by the same police officers who had drawn up the report. Finally, the applicant asked the court to examine video recordings of his arrest and detention and some other evidence.
On 18 March 2011 the Baku Court of Appeal partially granted the applicant’s appeal and remitted the case to the first-instance court for re‑examination. The Court of Appeal found that the first-instance court had failed to examine the report prepared by police officers M.A. and H.A., and that the case-file contained only a photocopy and not an original of that report and, therefore, it was not possible to order its expert examination.
On 12 April 2011 the Sabail District Court, having re-examined the case, convicted the applicant under Article 310.1 of the CAO and sentenced him to seven days’ administrative detention.
The applicant made a statement before the court that he had participated in the demonstration but had not disobeyed any order of a police officer. The court questioned as witnesses two police officers: police officer E.G. who had prepared the administrative offence report in respect of the applicant and police officer M.A. who was one of the police officers who had drawn up the report to a superior police officer. Police officer M.A. testified that the applicant had made noise and had disobeyed a lawful order of the police when he was being placed in a bus used for transportation of arrested protesters.
The applicant lodged an appeal before the Baku Court of Appeal, arguing that that his arrest had been unlawful, that the hearing before the first‑instance court had not been fair, and that his arrest and conviction had been in violation of his right to freedom of assembly. The applicant asked the Baku Court of Appeal to quash the first-instance court’s decision. The applicant also requested, inter alia, summoning of particular persons (A.H., A.M., R.M. and R.B.) who had witnessed his arrest and detention, and summoning of at least three persons listed along with him in the report prepared by police officers M.A. and H.A.. The applicant further requested the court to examine photographs and video recordings made during his arrest, which, according to the applicant, would prove that he had not committed any offence.
It appears that the court disregarded the applicant’s abovementioned requests. On 28 April 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the first-instance court’s decision.
(b) Application no. 65910/14 lodged on 20 September 2014 by Kamala Khalilova
According to the applicant, after her arrest on 6 May 2014, first she was taken to Nasimi District Police Station no. 22 and then brought to the Nasimi District Police Office. The police officers who arrested the applicant failed to present themselves, her mobile phone was seized by the police and she was not given an opportunity to contact her relatives. The applicant’s rights were not properly explained to her and she was not given access to a lawyer.
On the day of the applicant’s arrest, an administrative offence report was drawn up in her respect. According to the report, at around 2.20 p.m. on 6 May 2014 the applicant participated in an unlawful demonstration, and, by doing so, she committed an administrative offence under Article 298.2 (violation of rules on holding public gatherings) of the CAO. The applicant was never served with a copy of this report or with other materials in her case-file.
According to the applicant, she was kept overnight at a temporary detention facility (müvəqqəti saxlanılma yeri) of the Nasimi District Police Office.
On 7 May 2014, the next day after the applicant’s arrest, she was brought before the Nasimi District Court. The court convicted the applicant under Article 298.2 of the CAO, and sentenced her to thirty days’ administrative detention.
According to the applicant, the court hearing was very brief. Thinking that representation by a State-funded lawyer would be ineffective, the applicant refused this lawyer’s assistance but the judge disregarded her refusal. The applicant was not given an opportunity to hire a lawyer of her own choice. In the absence of an official decision of the court to examine the case in a closed hearing, the public was not allowed to attend the hearing.
Only two police officers were questioned as witnesses. The court’s decision was heavily based on the police officers’ statements and on the administrative offence report drawn up in the applicant’s respect.
The applicant lodged an appeal before the Baku Court of Appeal, arguing that she had participated in the spontaneous peaceful public assembly and had not violated any laws, that the hearing before the first-instance court had not been fair, and that her arrest and conviction had been unlawful.
On 16 May 2014 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the first-instance court’s decision.
(c) Application no. 73309/14 lodged on 5 November 2014 by Tural Abbasli
According to the applicant, after his arrest on 6 May 2014 he was taken first to the Sabail District Police Office. After being kept there for four hours, the applicant was moved to Nasimi District Police Station no. 22, where he was kept overnight.
According to the applicant, the police officers arresting him failed to present themselves, his mobile phone was seized by the police and he was not given an opportunity to contact his relatives. The applicant’s rights were not properly explained to him and he was not given access to a lawyer.
On the day of the applicant’s arrest, an administrative offence report was drawn up in his respect at Police Station no. 22. According to the report, at around 2.20 p.m. on 6 May 2014 the applicant participated in an unlawful demonstration and refused to stop his illegal actions, and, by doing so, he committed an administrative offence under Article 298.2 (violation of rules on holding public gatherings) of the CAO. The applicant was never served with a copy of this report or with other materials in his case-file.
The applicant was kept in the police station overnight.
On 7 May 2014, the next day after the applicant’s arrest, he was brought before the Nasimi District Court. The court convicted the applicant under Article 298.2 of the CAO, and sentenced him to fifteen days’ administrative detention.
According to the applicant, the court hearing was very brief. The applicant was not given an opportunity to hire a lawyer of his own choice. He was represented by a State-funded lawyer whose representation was ineffective. In the absence of an official decision of the court to examine the case in a closed hearing, the public (including the applicant’s relatives and journalists) was not allowed to attend the hearing.
Only two police officers were questioned as witnesses. The court’s decision was heavily based on the police officers’ statements and on the administrative offence report drawn up in the applicant’s respect.
The applicant lodged an appeal with the Baku Court of Appeal, arguing that he had participated in the spontaneous peaceful public assembly and had not violated any laws, that the hearing before the first-instance court had not been fair, and that his arrest and conviction had been unlawful.
On 16 May 2014 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the first-instance court’ decision.
(d) Application no. 73587/14 lodged on 8 November 2014 by Orkhan Ayyubzade
According to the applicant, after his arrest on 6 May 2014 he was taken first to the Sabail District Police Office. After being kept there for four hours, the applicant was moved to Nasimi District Police Station no. 22, where he was kept overnight.
According to the applicant, the police officers arresting him failed to present themselves, his mobile phone was seized by the police and he was not given an opportunity to contact his relatives. The applicant’s rights were not properly explained to him and he was not given access to a lawyer.
On the day of the applicant’s arrest, an administrative offence report was drawn up in his respect at Police Station no. 22. According to the report, at around 2.20 p.m. on 6 May 2014 the applicant participated in an unlawful demonstration and refused to stop his illegal actions, and, by doing so, he had committed an administrative offence under Article 298.2 (violation of rules on holding public gatherings) of the CAO.
The applicant was kept in the police station overnight.
On 7 May 2014, the next day after the applicant’s arrest, he was brought before the Nasimi District Court. The court convicted the applicant under Article 298.2 of the CAO, and sentenced him to twenty days’ administrative detention.
According to the applicant, the court hearing was very brief. Thinking that representation by a State-funded lawyer would be ineffective, the applicant refused this lawyer’s assistance and insisted on hiring a lawyer of his own choice but the judge disregarded that request. It appears that eventually the applicant was not represented by a lawyer. In the absence of an official decision of the court to examine the case in a closed hearing, the public (including the applicant’s relatives and journalists) was not allowed to attend the hearing.
The court based its decision on the administrative offence report drawn up in the applicant’s respect.
The applicant argued before the Baku Court of Appeal that he had participated in the spontaneous public assembly because he had a constitutional right to do so, but that he had not violated any laws; that the hearing before the first-instance court had not been fair; and that his arrest and conviction had been unlawful.
On 22 May 2014 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court.
COMPLAINTS
1. The applicants complain under Article 5 of the Convention that their arrest and administrative detention were unlawful and that during their arrest a number of domestic procedural rules were violated.
2. The applicants complain under Article 6 of the Convention that they did not have a fair hearing in the administrative offence proceedings.
Also, the applicants in applications nos. 65910/14, 73309/14 and 73587/14 complain under Article 6 of the Convention that their right to a public hearing was violated.
3. The applicants complain that they were arrested and prosecuted for participating in the peaceful demonstrations, in breach of Article 11 of the Convention. The applicants in applications nos. 65910/14, 73309/14 and 73587/14 also rely on Article 10 in this respect.
4. The applicants complain that in violation of Article 13 of the Convention they did not have an effective remedy to protect their right to freedom of assembly.
Also, the applicants in applications nos. 65910/14, 73309/14 and 73587/14 complain under Article 18 of the Convention that the real reason for their arrest and conviction was their political activity.
5. The applicants in applications nos. 65910/14, 73309/14 and 73587/14 complain under Article 14 of the Convention that their arrest and conviction was politically motivated.
COMMON QUESTIONS
1. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, were the applicants’ “administrative” arrests in compliance with domestic procedural rules?
2. Was Article 6 §§ 1 and 3 of the Convention under its criminal head applicable to the proceedings in the present cases? If so, did the applicants have a fair and public hearing in determining the charge against them, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards the provision of sufficient time and facilities to prepare their defence, the opportunity to defend themselves through effective legal assistance, and the questioning of witnesses?
3. Has there been an interference with the applicants’ freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention? If so, was that interference prescribed by law and necessary, in terms of Article 11 § 2?
4. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 5 and 11, as required by Article 13 of the Convention?
5. The parties are requested to submit copies of all documents relating to the administrative proceedings, including the administrative offence reports, any statements made by the applicants before being brought to court, the transcripts of the hearings and the applicants’ appeals.
CASE SPECIFIC QUESTIONS
Application no. 69180/11:
Did the organisers give prior notice to the relevant authorities about the planned demonstration of 12 March 2011?
The parties are requested to submit copies of all documents relating to the organisation and holding of the demonstration of 12 March 2011, in particular, the notices (if any) submitted by the organisers of the demonstration to the relevant local executive authorities, and the official responses the organisers received from the relevant local executive authorities refusing to authorise the demonstration.
Applications nos. 65910/14, 73309/14 and 73587/14:
Were the restrictions imposed by the State in the present cases, purportedly pursuant to Articles 5 and 11 of the Convention, applied for a purpose other than those envisaged by those provisions, contrary to Article 18 of the Convention?
Applications nos. 65910/14, 73309/14 and 73587/14:
Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their political activity, contrary to Article 14 of the Convention read in conjunction with Articles 5 and 11?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Notes
First-instance judgment
Appellate judgment
69180/11*
05/11/2011
Tural HAJIBEYLI
1992
Baku
Intigam ALIYEV
7 days’ administrative detention for participation in the demonstration of 12 March 2011
Decision of the Sabail District Court of 12 March 2011
Decision of the Sabail District Court of 12 April 2011
Decision of the Baku Court of Appeal of 18 March 2011
Decision of the Baku Court of Appeal of 28 April 2011 (received by the applicant on 27 June 2011)
65910/14*
20/09/2014
Kamala KHALILOVA
1974
Baku
Ruslan MUSTAFAZADE
Asabali MUSTAFAYEV
30 days’ administrative detention for participation in the demonstration of 6 May 2014
Decision of the Nasimi District Court of 7 May 2014
Decision of the Baku Court of Appeal of 16 May 2014
73309/14
05/11/2014
Tural ABBASLI
1982
Baku
Ruslan MUSTAFAZADE
Asabali MUSTAFAYEV
15 days’ administrative detention for participation in the demonstration of 6 May 2014
Decision of the Nasimi District Court of 7 May 2014
Decision of the Baku Court of Appeal of 16 May 2014
73587/14
08/11/2014
Orkhan AYYUBZADE
1994
Baku
Ruslan MUSTAFAZADE
Asabali MUSTAFAYEV
20 days’ administrative detention for participation in the demonstration of 6 May 2014
Decision of the Nasimi District Court of 7 May 2014
Decision of the Baku Court of Appeal of 22 May 2014
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