Communicated on 21 September 2015
FIRST SECTION
Application no 7218/13
Elnur MAJIDLI against Azerbaijan
and 2 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, as submitted by the applicants may be summarised as follows.
1. Background information
The applicants are opposition-oriented activists. At the material time Mr Elnur Majidli (application no. 7218/13) was a member of an opposition party, the Popular Front Party.
Starting from 2010 a number of opposition parties or groups organised several peaceful demonstrations in Baku. These demonstrations had not been authorised and many participants were arrested.
One of these demonstrations took place on 2 April 2011. According to the applicants, the organisers had given prior notice to the relevant authorities about the planned demonstration. However, the authorities refused to authorise the demonstration at the place indicated by the organisers.
Nevertheless, the organisers decided to hold the demonstration in a central square.
The applicants participated in the demonstration of 2 April 2011.
According to the applicants, the demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants were demanding free and fair elections and reforms in the country.
The demonstration was dispersed by the police.
2. The applicants’ arrest and charges against them
On 2 April 2011 a criminal case was initiated in order to investigate offences allegedly committed during the demonstration of 2 April 2011.
(a) Mr Elnur Majidli (application no 7218/13)
On 4 April 2011 two police officers S.D. and N.A. were questioned as witnesses. They testified that they had seen a person brake a glass window of a pharmacy during the demonstration. S.D. described that person as “a dark man of around 20 to 25 years’ old, wearing a black jacket and jean trousers, 5-6 sm. taller than [S.D. himself]”. N.A. described him as “a slightly full-bodied man of average height”.
On 4 and 5 April 2011 video recordings of the demonstration were shown to police officers S.D. and N.A. After having watched the recordings S.D. and N.A. testified that the applicant, Mr Elnur Majidli, was the person who had broken the pharmacy window.
On 11 May 2011 the applicant was arrested. According to the applicant, on that date he was first summoned and questioned as a witness. Then he was presented (apparently at an identification parade) to police officers S.D. and N.A. who declared that they recognised him. On the same date the applicant was confronted with police officers S.D. and N.A. All those procedures were conducted without participation of a defence lawyer.
According to the applicant, during the identification parade he was the only “full-bodied” person presented to N.A.
Later on the same date a State-funded lawyer was appointed for the applicant. The applicant was not given an opportunity to have a lawyer of his own choosing. A decision on arrest as a suspect was drawn up in his respect.
On 13 May 2011 the applicant was formally charged with the criminal offence under Article 233 of the Criminal Code (active participation in actions causing a breach of public order).
On the same date the Sabail District Court ordered his pre-trial detention, upon the prosecution’s request. Subsequently, on 29 June 2011 the pre-trial detention in respect of the applicant was extended until 2 September 2011.
(b) Mr Ulvu Guliyev (application no. 23365/14) and Mr Rufat Hajibeyli (application no. 25680/14)
According to Mr Ulvu Guliyev, he was arrested during the dispersal of the demonstration. From the applicant’s submissions it is not clear if he was released after that arrest. According to the official records, Mr Ulvu Guliyev was arrested on 8 April 2011. Mr Rufat Hajibeyli was arrested on 22 April 2011.
On 9 April 2011 the prosecution formally charged Mr Ulvu Guliyev with criminal offences under Article 233 of the Criminal Code and Article 315.1 of the Criminal Code (resistance to or violence against a representative of authority). On 23 April 2011 Mr Rufat Hajibeyli was formally charged with the criminal offence under Article 233 of the Criminal Code.
On the dates when the applicants were formally charged the Sabail District Court ordered their pre-trial detention, upon the prosecution’s requests. Subsequently, on 1 June 2011 and 14 June 2011 respectively, the pre-trial detention in respect of Mr Ulvu Guliyev and Mr Rufat Hajibeyli was extended, until 8 August 2011 and 22 August 2011 respectively.
3. The applicants’ trial
(a) Examination of the criminal case on the merits
On 13 July 2011 a bill of indictment (ittiham aktı) was drawn up in respect of the applicants. On an unspecified date the criminal case against the applicants was sent to the Nasimi District Court for examination on the merits.
The trial court heard a number of prosecution witnesses. Most of them gave a general description of the events of 2 April 2011. One police officer stated that unidentified alleged protesters had assaulted him inflicting injuries. Some prosecution witnesses stated that they had suffered material damage because of the traffic jams allegedly caused by the demonstration.
The court also examined video recordings of the demonstration by four television channels. From the materials submitted by the applicants it appears that those video recordings did not contain any information about particular behaviour by the applicants during the demonstration.
(i) Testimonies concerning Mr Elnur Majidli (application no 7218/13)
Police officer N.A. testified that during the demonstration he had been on duty with police officer S.D when one of the protesters – a 22-26 years’ old man whose height and stature he had allegedly remembered – had thrown something towards a pharmacy and had run away; and that they had not been able to catch that protester. N.A. further testified that that protester was Mr Elnur Majidli, who was sitting in the courtroom, and that that he had recognised Mr Elnur Majidli during the identification parade.
According to Mr Elnur Majidli, he was not given an opportunity to question police officer N.A.
According to Mr Elnur Majidli, police officer S.D. also testified against him at the trial. S.D. stated that during the investigation he had watched video recordings of the demonstration and had recognised Mr Elnur Majidli as a person who had broken the pharmacy window. S.D. also testified that a photograph of Mr Elnur Majidli had been shown to him before Mr Elnur Majidli had been presented for identification.
Upon Mr Elnur Majidli’s objection the court declared identification of Mr Elnur Majidli by S.D. as unacceptable evidence, since S.D. had been shown Mr Elnur Majidli’s photograph prior to the identification procedure. The court removed the record of identification parade from the case file.
Also, several other witnesses testified that during the demonstration someone had broken the pharmacy window.
A.G., a witness on the applicants’ side, testified that during the demonstration he had been together with Mr Elnur Majidli and that the latter had not broken the pharmacy window. Another witness on the applicants’ side, J.N., testified that he had been near the place at the time when the pharmacy window had been broken and that he had not seen Mr Elnur Majidli committing any illegal action.
The court dismissed testimonies given by these witnesses as biased, without explaining the reasons.
Mr Elnur Majidli stated that he was not guilty and that he had participated in the demonstration because it was his right, and that the case against him was politically motivated. He further argued that the police had been violent towards protesters.
(ii) Testimonies concerning Mr Ulvu Guliyev (application no. 23365/14)
Four police officers (E.T., N.S., M.M. and R.H.) who participated in the arrest of Mr Ulvu Guliyev testified that he had violently resisted the arrest by hitting one of them, police officer N.S., with an elbow, as a result of which that police officer’s cap had fallen off, and by hitting and damaging a police car.
Mr Ulvu Guliyev stated that he was not guilty and that he had participated in the demonstration because it was his constitutional right and that he had protested peacefully. He further stated that the case against him was fabricated.
(iii) Testimonies concerning Mr Rufat Hajibeyli (application no 25680/14)
Police officer I.T. testified that during the demonstration, at the Mardanov Gardashlari Street, some protesters had hit and damaged his police car, and that during the investigation he had been shown a video recording of the demonstration in which he had recognised one of those protesters – a short man wearing a black jacket. I.T. further testified that during the investigation that person had presented himself as Rufat, and that he had recognised Rufat among five or six persons during the identification parade.
The representative of the Vehicle Fleet of the Ministry of Internal Affairs, I.M., testified that a police car Fiat-Doblo 593 (right side of the car, window glass of its rear door, bumper, rear wings and badging) had been damaged; and that Mr Rufat Hajibeyli had been identified as a suspect for that damage.
Another prosecution witness, Y.S., testified that at the Mardanov Gardashlari Street, participants of the demonstration had been hitting a police car. Also, police officer A.H. testified that during the demonstration some people had been hitting police officer I.T.’s car, and that those persons had run away.
Mr Rufat Hajibeyli stated that he was not guilty and that he had participated in a notified demonstration. He further stated that the police dispersing the demonstration had been armored, that there had been 20‑25 meters between him and other protesters and the police, and that therefore it would have been impossible for him to damage a police car. He further argued that the police had been violent towards protesters.
(b) The first-instance judgment
By a judgment of 10 October 2011, the Nasimi District Court found that the applicants had actively participated in actions causing a breach of public order. The court also found that Mr Ulvu Guliyev (application no. 23365/14) had violently resisted police officers.
The court convicted the applicants under Article 233 of the Criminal Code. Mr Ulvu Guliyev was additionally convicted under Article 315.1 of the Criminal Code. The applicants were sentenced to various terms of imprisonment ranging from one year and six months to three years (see Annex).
The trial court based its judgment exclusively on testimonies of a number of prosecution witnesses.
By its judgment the Nasimi District Court also left undecided (without examination on merits) civil claims against the applicants, because those claims had been signed by persons not entitled to do so. Such claims had been lodged by the owner of the pharmacy, F.A., by the Vehicle Fleet of the Ministry of Internal Affairs, by other legal and physical persons who had allegedly suffered financial loss because of traffic jams, and by an owner of a bus of which a window had been allegedly broken during the demonstration.
The court further decided that Mr Elnur Majidli was to pay the cost of the expert evaluation of the damage to the pharmacy, in sum of 50 AZN.
(c) Appeals
The applicants lodged appeals before the Baku Court of Appeal. They complained that there had been various defects in the trial and that the hearings before the first-instance court had not been fair. They also complained that their arrest and conviction had been in violation of their right to freedom of assembly. The applicants asked the Baku Court of Appeal to quash the first-instance court’s judgment of 10 October 2011.
On 17 November 2011 the Baku Court of Appeal decided to examine the applicants’ appeals “without a judicial investigation”, that is without a new hearing on points of both fact and law entailing a fresh judicial examination of the evidence and the parties’ legal and factual arguments.
On 1 December 2011 the Baku Court of Appeal dismissed the applicants’ appeals.
On 3 July 2012 and 17 September 2013 the Supreme Court dismissed the applicants’ cassation appeals and upheld the Baku Court of Appeal’s judgment of 1 December 2011 (see Appendix).
On 22 June 2012 Mr Ulvu Guliyev (application no. 23365/14) and Mr Rufat Hajibeyli (application no 25680/14) were pardoned and released from serving the remainder of their sentences.
COMPLAINTS
1. The applicant in application no. 7218/13 complains under Article 6 of the Convention that during the initial stage of the pre-trial questioning he was deprived of effective legal assistance, and that the criminal proceedings against him, taken as a whole, were unfair.
Also, the applicants in applications nos. 23365/14 and 25680/14 complain, without relying on a particular Convention provision, that they did not have a fair hearing in the criminal proceedings against them.
2. The applicants in applications nos. 23365/14 and 25680/14 complain under Article 11 of the Convention that their right to freedom of assembly was violated. The applicants also rely on Article 10 in this respect.
COMMON QUESTIONS
1. Did the applicants have a fair hearing in determining the charge against them, in accordance with Article 6 § 1 of the Convention? Were the proceedings, taken as a whole, fair? Was the applicants’ right to a reasoned judgment respected?
2. The parties are requested to submit copies of the following:
(a) all documents relating to the criminal proceedings, including the applicants’ complaints, appeals and requests; records of questioning of witnesses; any statements made by the applicants during the initial stages of the pre-trial investigation; any photographs and video recordings examined at the pre-trial investigation and at the court hearings; and the transcripts of the hearings;
(b) all documents relating to the organisation and holding of the demonstration of 2 April 2011, in particular the notifications submitted by the organisers of the demonstration to the relevant local executive authority, and the official responses the organisers received from the relevant local executive authority.
CASE SPECIFIC QUESTIONS
1. Applications nos. 7218/13:
During the initial stage of the pre-trial interrogation was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 §§ 1 and 3 (c) of the Convention? Did representation by a State-funded lawyer constitute an effective legal assistance? When did the applicant get access to a lawyer of his own choice for the first time during the proceedings?
2. Applications nos. 7218/13 and 25680/14:
Were identification of Mr Elnur Majidli (application no. 7218/13) by police officers S.D. and N.A., and identification of Mr Rufat Hajibeyli (application no. 25680/14) by police officer I.T. in compliance with safeguards provided by domestic procedural law?
In particular, was a lawyer of Mr Rufat Hajibeyli (application no. 25680/14) present when a video recording of the demonstration was shown to police officer I.T. during the investigation?
3. Applications nos. 23365/14 and 25680/14:
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? Was the interference proportionate?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Notes
First-instance decisions
Final decisions
7218/13
30/12/2012
Elnur MAJIDLI
1989
Baku
Intigam ALIYEV
2 years’ imprisonment for participation in the demonstration 2 April 2011
Judgment of the Nasimi District Court of 10 October 2011
Decision of the Supreme Court of 3 July 2012
23365/14
15/03/2014
Ulvu GULIYEV
1985
Baku
Samira AGHAYEVA
3 years’ imprisonment for participation in the demonstration 2 April 2011 (2 years’ imprisonment under Article 233 and 2 years’ imprisonment under 315.1 of the Criminal Code; the imprisonment terms being partially added to constitute 3 years’ imprisonment)
Judgment of the Nasimi District Court of 10 October 2011
Decision of the Supreme Court of 17 September 2013
25680/14
15/03/2014
Rufat HAJIBEYLI
1985
Agjabadi
Samira AGHAYEVA
1 year and 6 months’ imprisonment for participation in the demonstration 2 April 2011
Judgment of the Nasimi District Court of 10 October 2011
Decision of the Supreme Court of 17 September 2013
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