Communicated on 3 February 2017
FIFTH SECTION
Application no 981/15
Ruslan NASIROV against Azerbaijan
and 4 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).
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
Background information
At the material time the first (Mr Ruslan Nasirov), third (Mr Turkel Alisoy) and fourth (Mr Sagif Gurbanov) applicants were members of one of the main opposition parties in the country, the Popular Front Party of Azerbaijan (“the PFPA”). The fourth applicant was chairman of the Sabail district branch of the PFPA.
The third applicant is one of the applicants in the Huseynov and Others case, in which the Court already adopted its judgment (see Huseynov and Others v. Azerbaijan, applications nos. 34262/14, 35948/14, 38276/14, 56232/14, 62138/14 and 63655/14, 24 November 2016). That case concerns politically motivated arrests and convictions.
The second applicant (Mr Rafig Jalilov) is an ethnic Talish, a minority in Azerbaijan. He is the founder of “Tolishon sedo”, a newspaper apparently focused on matters related to Talish minority. At the material time he was chief editor of that newspaper and chairman of the Committee for protecting rights of a reported prisoner of conscience, Hilal Mammadov (for the details of latter’s case see Hilal Mammadov v. Azerbaijan, no. 81553/12, 4 February 2016).
According to the first applicant, in protest to numerous deaths of soldiers in the army he created an “event” on Facebook, inviting people to hold a demonstration at 13.00 p.m. on 3 August 2014 at the Fountains Square in Baku. He also intended to participate in that protest.
According to the second applicant, in programs broadcasted on 9 January and 16 January 2015 on ANS television channel comments allegedly debasing Talish minority were made by a quest speaker. In protest to those comments the second applicant and a group of other Talish people decided to gather at 12 p.m. on 22 January 2015 in front of a building where ANS was located and to demand an apology from that television channel. It was decided that the participants of the assembly would first visit the grave of the Second World War veteran, Hazi Aslanov, who was of Talish origin, because 22 January 2015 was his 105th anniversary, and the graves of the martyrs buried in Shahidlar Khiyabani cemetery. Information about the planned assembly was disseminated on internet, inter alia, on Facebook. The second applicant also intended to participate in that assembly.
According to the first, third and fourth applicants, they participated in several authorised demonstrations organised in March and April 2015 by a group consisting of opposition political parties and activists, Milli Shura. One of those demonstrations was held on 5 April 2015 and involved more participants than previous protests.
B. Facts pertinent to application no. 981/15 submitted by the first applicant
On 1 August 2014 the first applicant was arrested and brought to a police station.
According to the official records, he was arrested for insulting and trying to hit a drunken person who had approached him, and for disobeying a lawful order of the police.
The applicant contested the official version of his arrest and claimed that he had not insulted or tried to hit anyone, and had not disobeyed any order of the police. He had been arrested by police officers in plain clothes in presence of his friends. One of those friends, Mr A.Y., had tried to accompany him, but had been prevented from doing so. Despite the efforts by his family and friends to obtain information, for several days the authorities concealed his whereabouts. Furthermore, his father had been apprehended by the police before his arrest and had been released only afterwards.
On 4 August 2014 an administrative offence report (inzibati xəta haqqında protokol) was issued in respect of the applicant, setting out the charges against him. The report stated that the applicant had committed administrative offences under Article 310.1 (failure to comply with a lawful order of a police officer) and Article 296 (minor hooliganism) of the Code of Administrative Offences (“the CAO”).
It appears that before initiating administrative proceedings against the applicant, an initial criminal inquiry was carried out. However, on 2 August 2014 it was decided to reject opening of a criminal case and to begin administrative proceedings instead.
According to the applicant, he was not given access to a lawyer after his arrest or while in police custody.
On 4 August 2014 the applicant was brought before the Yasamal District Court, which on the same day adopted a decision on the merits.
A State-funded lawyer (Mr M.J.) was appointed to assist the applicant.
According to the applicant, he was not given an opportunity to appoint a lawyer of his own choosing. Only on 7 August 2014 a lawyer hired by his family was allowed to meet him and only then that lawyer learned about details of his arrest, detention and court proceedings against him. The hearing of 4 August 2014 was very brief. Members of the public were not allowed in the courtroom, even though the court had not taken a formal decision to close the hearing to the public.
In his statement before the court the applicant contested the police officers’ version of the event and argued that he had been arrested unlawfully. The court dismissed that statement as biased.
The only witnesses questioned during the court hearing were the police officers E.M. and I.A. who, according to the official records, had arrested him. Police officer E.M. testified that he had been near the underground station Nariman Narimanov together with police officer I.A., that police officer I.A. had told him that they had had to apprehend the applicant, and that the applicant had disobeyed them during the apprehension. Police officer I.A. gave an identical testimony.
The court found that the applicant had committed the administrative offences imputed to him. It convicted the applicant under Articles 310.1 and 296 of the CAO and sentenced him to one month’s administrative detention.
On an unspecified date the applicant lodged an appeal with the Baku Court of Appeal. He presented his version of the facts surrounding his arrest and argued that he had been arrested because he had been organising the demonstration of 3 August 2014. The applicant also complained that his arrest had been unlawful and that the hearing before the first-instance court had not been fair.
The applicant was assisted before the Baku Court of Appeal by a lawyer of his own choosing.
On 15 August 2014 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that the conclusions reached by that court were correct.
According to the first applicant, the hearing of the appellate court also was de facto closed to the public.
C. Facts pertinent to application no. 14983/15 submitted by the second applicant
At 12.15 p.m. on 22 January 2015 the second applicant was arrested near the Shahidlar Khiyabani cemetery and brought to a police station.
According to the official records, he was arrested for disobeying a lawful order of the police.
The applicant contested the official version of his arrest and submitted that he had been dropping some of the protesters to the place of the planned demonstration when police officers had told him that it was forbidden to stop a car there and asked his name and surname. They arrested him as soon as he presented himself. The applicant claimed that he had not disobeyed any order by the police. In addition, those police officers were officers of the Patrol police (“Post Patrul Xidməti”), which was in charge of public security and was commonly employed to disperse demonstrations, and not of the Traffic police (“Yol Patrul Xidməti”).
At the police station an administrative offence report was issued in respect of the applicant, setting out the charges against him. The report stated that the applicant had committed an administrative offence under Article 310.1 of the CAO.
According to the applicant, he was not given access to a lawyer after his arrest or while he was in police custody. He was given a copy of the administrative offence report only on 27 January 2015, after he had lodged a written request with the first-instance court.
On the day of his arrest the applicant was brought before the Sabail District Court, which on the same day adopted a decision on the merits.
According to the applicant, he was not given an opportunity to appoint a lawyer of his own choosing.
According to the applicant, in his statement before the court he contested the police officers’ version of the event and argued that he had been arrested unlawfully. However, the court mispresented that statement in its decision and considered it as self-incriminatory.
No witnesses were examined at the first-instance court hearing.
The court found that the applicant had committed the administrative offence attributed to him. It convicted the applicant under Article 310.1 of the CAO and sentenced him to a fine of 200 Azerbaijani manats (AZN).
The applicant was free to leave at around 4.30 p.m.
On an unspecified date the applicant lodged an appeal with the Baku Court of Appeal. He presented his version of the facts surrounding his arrest and argued that he had been arrested because had been organising the demonstration of 22 January 2015. The applicant also complained that his arrest had been unlawful and that the hearing before the first-instance court had not been fair.
In addition, he requested the appellate court to question particular witnesses (the police officers who had arrested him, as well as Ms I.M., Mr V.M. and Mr H.H.), and examine photographs made during his arrest.
The applicant was not represented before the Baku Court of Appeal by a lawyer.
On 9 February 2015 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that the conclusions reached by that court were correct.
The appellate court also noted that during the first-instance court hearing a State-funded lawyer had been invited to represent the applicant, but the latter had refused legal aid offered to him.
The appellate court did not address the second applicant’s above mentioned requests to question particular witnesses and examine photographs made during his arrest.
D. Facts pertinent to applications nos. 32162/15, 30502/15 and 30506/15 submitted by the first, third and fourth applicants, respectively
On 6 April 2015 the third and fourth applicants, and on 7 April 2015 the first applicant, were arrested. They were brought to various police stations.
According to the official records:
(a) the first and fourth applicants were arrested for disobeying a lawful order of a police officer to stop swearing loudly without addressing anyone in particular;
(b) the police approached the third applicant because he was speaking loudly. He was arrested because when police officers had approached him, he had deliberately failed to comply with the order to produce an identity document and had disobeyed the order to follow the officers to a police station.
All three applicants contested the official version of their arrest. They submitted that they had been arrested by police officers and/or people in plain clothes, without any explanations. The first applicant claimed that he had been arrested at the university building where he studied; the third and fourth applicants claimed that they had been arrested on a street. Only at the respective police stations they were told that they were arrested in connection with the latest demonstrations organised by the opposition.
At the respective police stations, administrative offence reports were issued in respect of the applicants, setting out the charges against them. All three applicants were charged with an administrative offence under Article 310.1 of the CAO.
According to the applicants, they were never served with copies of the administrative offence reports or with other documents from their case files. They were also not given access to a lawyer after their arrest or while they were in police custody.
On the dates of their arrest the applicants were brought before the Yasamal District Court, Khatai District Court and Sabail District Court, respectively, which adopted their decisions on the merits on the same dates (see Appendix).
According to all three applicants, they were not given an opportunity to appoint lawyers of their own choosing.
State-funded lawyers were appointed to assist the first and fourth applicants. The third applicant was not represented by any lawyer.
According to the documents in the respective case files, in their oral submissions the State-funded lawyers for the first and fourth applicants (Mr M.J. and Mr V.I., respectively) briefly asked the court to consider the applicants’ being sorry for their actions and in case of the first applicant also his young age.
During the hearings with regard to the first and third applicants only the police officers who, according to the official records, had arrested the applicants or issued administrative offence reports on them were questioned as witnesses. In their statements those police officers reiterated the official version of the reasons for the applicants’ arrests. In the case of the fourth applicant the court did not question any witnesses.
The applicants gave self-incriminatory statements confirming the police officers’ account of the events.
The courts found that the applicants had committed the administrative offences attributed to them. They convicted the applicants under Article 310.1 of the CAO and sentenced them to periods of administrative detention varying from twenty to thirty days (see Appendix).
On various dates the applicants lodged appeals with the Baku Court of Appeal, presenting their version of the facts surrounding their arrests, and arguing that they had been unlawfully arrested for their active participation in the opposition demonstrations. They also complained that the hearings before the respective first-instance courts had not been fair.
The applicants further submitted that previously they had given self-incriminatory statements for fear of the police officers who had subjected them to physical and psychological pressure.
They also asked the appellate court to examine video recordings made by security cameras at the place where the alleged administrative offences had been committed.
The applicants were represented before the Baku Court of Appeal by lawyers of their own choosing.
On 20 April 2015 the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the respective first-instance courts, stating that the conclusions reached by those courts were correct.
The appellate court did not address the applicants’ above mentioned requests to examine video recordings made by security cameras.
COMPLAINTS
1. All 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.
In addition, the first applicant in his application no. 981/15 complains that his arrest and custody from 1 August to 3 August 2015 was unrecorded. The second applicant complains that his arrest and custody were not recorded by any administrative arrest record (“inzibati tutma haqqında protokol”).
2. All the applicants complain under Article 6 of the Convention that they did not have a fair hearing in the administrative offence proceedings.
In addition, the first applicant in his application no. 981/15 complains under Article 6 of the Convention that his right to a public hearing was violated.
3. All the applicants complain that their arrest and conviction prior to or following peaceful public gatherings in which they intended to participate or had participated, was an unlawful interference with their right to freedom of assembly under Article 11 of the Convention. The first, third and fourth applicants also rely on Article 10 in this respect (applications nos. 981/15, 32162/15, 30502/15 and 30506/15).
4. The first, third and fourth 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 (applications nos. 981/15, 32162/15, 30502/15 and 30506/15).
5. The first, third and fourth applicants complain under Article 18 of the Convention that the real reason for their arrest and conviction was their political activity, more specifically their intent to participate or participation in the demonstrations and/or generally their active participation in public assemblies organised by the opposition (applications nos. 981/15, 32162/15, 30502/15 and 30506/15).
6. Lastly, the first, third and fourth applicants complain under Article 14 of the Convention that their arrest and conviction was politically motivated (applications nos. 981/15, 32162/15, 30502/15 and 30506/15).
COMMON QUESTIONS
1. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? Were the applicants’ “administrative” arrests in compliance with domestic procedural rules?
2. Did the applicants have a fair hearing in the determination of the charge against them, in accordance with Article 6 §§ 1 and 3 of the Convention? In particular, (i) was the principle of equality of arms respected, (ii) were the applicants afforded adequate and sufficient time and facilities to prepare their defence, (iii) were they able to defend themselves through legal assistance of their own choosing or were they afforded effective legal assistance, and (iv) was their right to a reasoned judgment respected?
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 been convicted for participation in unauthorised demonstrations or other public gatherings before their arrest in present cases? The parties are requested to submit details of such convictions (if any).
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
Applications nos. 981/15, 30502/15, 30506/15, 32162/15:
Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 11, as required by Article 13 of the Convention?
Were the restrictions imposed by the State in the present cases, purportedly pursuant to Article 5 of the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention?
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 Article 5?
Application no. 981/15:
Did the applicant have a public hearing in the determination of the charge against him, in accordance with Article 6 § 1 of the Convention?
Was the applicant served with a copy of the administrative offence report issued in his respect and with other materials in his case-file?
Did the organisers give prior notice to the relevant authorities about the planned demonstration of 3 August 2014?
Application no. 14983/15:
Did the organisers give prior notice to the relevant authorities about the planned demonstration of 22 January 2015?
APPENDIX
No.
Application
no.
Lodged on
Applicant’s name,
date of birth and
place of residence
Represented by
Sanction
First-instance judgment
Appellate judgment
981/15
07/01/2015
Ruslan NASIROV
1994
Saatli
Ruslan MUSTAFAZADE
Asabali MUSTAFAYEV
1 month’s administrative detention
Decision of the Yasamal District Court of 4 August 2014
Decision of the Baku Court of Appeal of 15 August 2014
32162/15
18/06/2015
20 days’ administrative detention
Decision of the Yasamal District Court of 7 April 2015
Decision of the Baku Court of Appeal of 20 April 2015
14983/15
10/03/2015
Rafig JALILOV
1969
Simgayit
Khalid BAGIROV
fine of AZN 200
Decision of the Sabail District Court of 22 January 2015
Decision of the Baku Court of Appeal of 9 February 2015
30502/15
11/06/2015
Turkel ALISOY
1991
Baku
Ruslan MUSTAFAZADE
Asabali MUSTAFAYEV
30 days’ administrative detention
Decision of the Khatai District Court of 6 April 2015
Decision of the Baku Court of Appeal of 20 April 2015
30506/15
12/06/2015
Sagif GURBANOV
1974
Baku
Ruslan MUSTAFAZADE
Asabali MUSTAFAYEV
25 days’ administrative detention
Decision of the Sabail District Court of 6 April 2015
Decision of the Baku Court of Appeal of 20 April 2015
Full & Egal Universal Law Academy