Communicated on 6 May 2014
FIRST SECTION
Application no. 67360/11
Ilham HUSEYNLI against Azerbaijan
and 3 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Azerbaijani nationals (see a list of the applicants in Appendix). They are represented before the Court by various lawyers practising in Azerbaijan (see Appendix).
A. 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, members of opposition parties or groups. At the material time they held positions in those parties or groups (the applicants in applications nos. 67360/11 and 935/12), and (or) actively participated in the demonstrations held by the opposition (the applicants in applications nos. 67360/11, 67964/11 and 69379/11). The applicants in applications nos. 67360/11 and 69379/11 had participated as candidates in the parliamentary elections.
In the period from 2010 to 2012 a number of opposition parties or groups organised several peaceful demonstrations, mainly in Baku. According to the applicants, the organisers had given prior notice to the relevant authorities about the planned demonstrations; however, the authorities had not authorised those gatherings.
2. Case-specific facts
(a) Application no. 67360/11 lodged on 5 October 2011 by Ilham Huseynli
According to the applicant, he intended to participate in the upcoming peaceful demonstration of 2 April 2011 organised by the opposition. On 31 March 2011 at around 10 a.m. to 11 a.m., after he took his child to a kindergarten, police officers approached the applicant on a street. The police officers, who failed to present themselves and explain reasons for the arrest, took the applicant to a police station.
The applicant’s rights, including the right to have a lawyer, were not properly explained to him and he was not given access to a lawyer. The applicant was kept in a police station for several hours without being told the reasons for his arrest. At an unspecified time the applicant was informed that he was detained in connection with the upcoming demonstration of 2 April 2011 planned by the opposition. At around 2 p.m. the applicant learned that he was not to be released from detention. Then he was questioned by the police officers.
On the day of the applicant’s arrest, an “administrative offence report” (inzibati xəta haqqında protokol) was drawn up in his respect. The report stated that on 31 March 2011 at around 10.30 a.m. on 3rd Alatava street, Baku, the applicant had deliberately failed to comply with the lawful order of police officers to produce an identity document and that, by doing so, he had committed an administrative offence under Article 310.1 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences (“the CAO”). It appears that the applicant made a statement that he had not committed any offence and had been arrested unlawfully.
The applicant was never served with a copy of the administrative offence report issued against him or with other materials in his case-file.
The applicant was brought before the Nasimi District Court on the day of the arrest. The first-instance court convicted the applicant under Article 310.1 of the CAO and sentenced him to seven days’ “administrative” detention.
The hearing before the first-instance court was short. Only the police officers, who had arrested the applicant, were questioned as witnesses.
The applicant had refused the assistance of a State-funded lawyer and insisted on employing a lawyer of his own choice, but the judge had disregarded his request. Representation by the State-funded lawyer was ineffective and of a formalistic nature.
The applicant lodged an appeal before the Baku Court of Appeal, arguing that his arrest had been unlawful and that the hearing before the first‑instance court had not been fair. He asked the Baku Court of Appeal to quash the first-instance court’s decision in his case. On 5 April 2011 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
(b) Application no. 67964/11 lodged on 14 October 2011 by Elchin Salimov
According to the applicant, he intended to participate in the upcoming peaceful demonstration of 2 April 2011. On 31 March 2011 at around 10.30 a.m., when he was still in bed, three police officers entered the applicant’s apartment without an arrest warrant. It appears that one of the applicant’s family members let the police officers in. The police officers did not present themselves or explain reasons for the arrest. They took the applicant to a police station.
The applicant’s rights, including the right to have a lawyer, were not properly explained to him and he was not given access to a lawyer. The applicant was kept in a police station for several hours without being informed of the reasons for his arrest. At an unspecified time the applicant was questioned about his political activities.
On the day of the applicant’s arrest, an administrative offence report was issued against him. The report stated that on 31 March 2011 at around 12 p.m. on the territory of 9th micro-district, Sumgait, the applicant had breached public order by shouting insults (curses), without addressing a particular person, and deliberately failed to comply with the lawful order of police officers to stop and that, by doing so, he had committed an administrative offence under Articles 296 (minor hooliganism) and 310.1 of the CAO.
The applicant was never served with a copy of the administrative offence report issued against him or with other materials in his case-file.
The applicant was brought to the Sumgait City Court on the day of the arrest. The first-instance court convicted the applicant under Articles 310.1 and 296 of the CAO and sentenced him to seven days’ “administrative” detention.
The hearing before the first-instance court lasted only a few minutes. The applicant was not represented by a lawyer. Only the police officers were questioned as witnesses.
The applicant lodged an appeal before the Sumgait Court of Appeal, arguing that his arrest had been unlawful and that the hearing before the first-instance court had not been fair, and that his right to respect for home had been violated by the police. He asked the Sumgait Court of Appeal to quash the first-instance court’s decision in his case. On 19 April 2011 the Sumgait Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
(c) Application no. 69379/11 lodged on 17 October 2011 by Ibrahim Ahmadzade
According to the applicant, he intended to participate in the upcoming peaceful demonstration of 2 April 2011. Sometime before the intended demonstration the applicant heard that the police was arresting potential participants of the upcoming demonstration and was searching for him. On 31 March 2011 at around 11 a.m., the applicant and his lawyer voluntarily went to the Sumgait City Police Department. After a conversation with the chief of the department, the applicant and his lawyer left. However, when the applicant was outside and no longer accompanied by his lawyer, police officers arrested him, without explaining reasons for the arrest, and took him to a police station.
The applicant was not given an opportunity to contact his relatives or his lawyer. After his arrest the applicant was kept in a police station for several hours without being informed of the reasons for his arrest. His rights were not properly explained to him and he was not given access to a lawyer after the arrest.
On the day of the arrest, an administrative offence report was drawn up in respect of the applicant. The report stated that on 31 March 2011 at around 12 p.m. on Akhundov street, Sumgait, the applicant had breached public order by shouting insults (curses), without addressing a particular person, and that, by doing so, he had committed an administrative offence under Article 296 (minor hooliganism) of the CAO.
The applicant was never served with a copy of the administrative offence report issued against him or with other materials in his case-file.
The applicant was brought to the Sumgait City Court on the day of the arrest. The first-instance court convicted the applicant under Article 296 of the CAO and sentenced him to seven days’ “administrative” detention.
The applicant was not represented by a lawyer. The applicant had asked the judge to postpone the examination of the case for one hour so that his lawyer could arrive at the court, but the judge had disregarded this request. Only the police officers were questioned as witnesses.
The applicant lodged an appeal before the Sumgait Court of Appeal, arguing that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. He asked the Sumgait Court of Appeal to quash the first-instance court’s decision in his case. On 15 April 2011 the Sumgait Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
(d) Application no. 935/12 lodged on 6 December 2011 by Niman Asgarov
On 8 October 2011, to mark the twentieth anniversary of the Independence Day, ten opposition political parties decided to hold a march on 18 October 2011, honouring the memory of martyrs, in the town of Goychay. According to the applicant, the organisers had given prior notice to the relevant authorities about the intended march. The notice about the march had been sent to the local executive authority by post and the applicant’s home address had been indicated for reference (since the applicant was one of the organisers of the march). The march was intended to be peaceful. It appears that the public gathering was not authorised.
On 13 October 2011 the applicant and another person, a journalist, were called to a police office where the chief of the police office questioned them about the planned march.
At around 11.40 a.m. on 15 October 2011 the applicant was arrested on a street and taken to a police station.
The applicant was not given an opportunity to contact his relatives. The applicant’s rights, including the right to have a lawyer, were not properly explained to him and he was not given access to a lawyer after the arrest. The applicant was kept in a police station for several hours without knowing the reasons for his arrest.
On the day of the arrest, an administrative offence report was drawn up in respect of the applicant. The report stated that on 15 October 2011 at around 11 a.m. in the town of Goychay, the applicant had deliberately failed to comply with the lawful order of police officers to stop “insincere” (qeyri səmimi) behaviour and to stop shouting insults (curses) before the municipality and that, by doing so, he had committed an administrative offence under Article 310 of the CAO.
The applicant spent a night at the police station and was brought before the Goychay District Court on the day following the arrest, on 16 October 2011. The first-instance court convicted the applicant under Article 310.1 of the CAO and sentenced him to five days’ “administrative” detention.
The applicant was not represented by a lawyer. Only the police officers who had arrested him were questioned as witnesses.
According to the applicant, although there was no official decision to examine the case in a closed hearing, the public was not allowed to attend the hearing.
The applicant lodged an appeal before the Sheki Court of Appeal, arguing that his arrest had been unlawful and that the hearing before the first-instance court had not been public and fair. He asked the Sheki Court of Appeal to quash the first-instance court’s decision in his case. On 31 October 2011 the Sheki Court of Appeal rejected 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 they were not promptly informed about the reasons for their arrest; they were not given an opportunity to contact their relatives (applications nos. 69379/11 and 935/12); their rights, including a right to have a lawyer, were not properly explained to them; they were never served with a copy of the administrative offence report issued against each of them and with other materials in their case-files (applications nos. 67360/11, 67964/11 and 69379/11); and police officers arresting them failed to present themselves (applications nos. 67360/11 and 67964/11) and to explain reasons for the arrest.
2. The applicants complain, under Article 6 of the Convention, that they did not have a fair hearing in the administrative offence proceedings because they were not given sufficient time and facilities to prepare their defence (applications nos. 67360/11, 67964/11 and 69379/11); they were deprived of access to effective legal assistance, both after the arrest and during the judicial proceedings; and the only witnesses to be questioned were police officers.
Also, in application no. 935/12, the applicant complains under Article 6 of the Convention that his right to a public hearing was violated.
3. The applicants complain that their arrest and conviction prior to peaceful public gatherings, in which they intended to participate, was an unlawful interference with their right to freedom of assembly under Article 11 of the Convention. The applicant in application no. 935/12 also relies on Article 10 in this respect.
COMMON QUESTIONS
1. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, was the applicants’ “administrative” arrest 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. Had the applicants participated in demonstrations or other public gatherings organized by oppositional parties or groups before their arrest in present cases? Had the applicants been convicted for participation in unauthorised demonstrations or other public gatherings before their arrest in present cases?
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 QUESTION
Application no. 935/12:
Has there been an interference with the applicant’s freedom of expression within the meaning of Article 10 § 1 of the Convention?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Sanction
First-instance judgment
Appellate judgment
67360/11
05/10/2011
Ilham HUSEYNLI
15/06/1965
Baku
Intigam ALIYEV
7 days’ administrative detention
Decision of the Nasimi District Court of 31 March 2011
Decision of the Baku Court of Appeal of 5 April 2011
67964/11
14/10/2011
Elchin SALIMOV
07/02/1984
Sumgait
Ruslan MUSTAFAZADE
7 days’ administrative detention
Decision of the Sumgait City Court of 31 March 2011
Decision of the Sumgait Court of Appeal of 19 April 2011
69379/11
17/10/2011
Ibrahim AHMADZADE
05/07/1975
Sumgait
Ruslan MUSTAFAZADE
7 days’ administrative detention
Decision of the Sumgait City Court of 31 March 2011
Decision of the Sumgait Court of Appeal of 15 April 2011 (received by the applicant on 25 April 2011).
935/12
06/12/2011
Niman ASGAROV
07/01/1956
Goychay
Khalid BAGIROV
5 days’ administrative detention
Decision of the Goychay District Court of 16 October 2011
Decision of the Sheki Court of Appeal of 31 October 2011
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