Communicated on 23 January 2015
FIRST SECTION
Application no. 28570/13
Turgut GAMBAR against Azerbaijan
lodged on 27 March 2013
STATEMENT OF FACTS
The applicant, Mr Turgut Gambar, is an Azerbaijani national, who was born in 1989 and lives in Baku. He is represented before the Court by Mr R. Mustafazade and Mr A. Mustafayev, lawyers practising in Azerbaijan.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is an opposition-oriented activist.
In the period from 2010 to 2013 a number of opposition parties or groups organised several peaceful demonstrations in Baku. These demonstrations had not been authorised and many participants were arrested.
The applicant participated in three of these demonstrations which took place on 20 October 2012, 12 January 2013 and 26 January 2013.
1. The demonstration of 20 October 2012
According to the applicant, the organisers had given prior notice to the relevant authorities about the planned demonstration; however, the authorities had not authorised it.
The demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants demanded, among other things, democratic reforms in the country.
The demonstration was dispersed by the police. The applicant was arrested by a plain-clothed person at the place where the demonstration was held. He was taken to a police station.
According to the applicant, he was not given an opportunity to contact his relatives and was not promptly informed about the reasons for his arrest. The applicant’s rights were not properly explained to him and he was not given access to a lawyer.
On the day of his arrest, an “administrative offence report” (inzibati xəta haqqında protokol) was drawn up in respect of the applicant. The report stated that the applicant had committed an administrative offence under Article 298 (violation of rules on holding public assemblies) and Article 310.1 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences (“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 before the Sabail District Court on the day of his arrest. By its decision of 20 October 2012 the court found that the applicant had deliberately failed to comply with the lawful order of police officers to refrain from participating in an unauthorised demonstration. The court convicted the applicant under Article 310.1 of the CAO, and sentenced him to seven days’ “administrative detention”.
According to the applicant, the hearing before the first-instance court lasted only ten minutes. The applicant had insisted on hiring a lawyer of his own choice, but the judge of the first-instance court had disregarded his request. The first-instance court relied heavily on the administrative offence report issued in respect of the applicant. No witnesses were questioned, except for the applicant himself.
Members of the public were not allowed to attend the court hearings, even though the court had not taken any formal decision to close the hearings to the public.
The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction had violated his rights because the demonstration in which he had participated had been peaceful. The applicant also complained that his arrest had been unlawful and that the hearings before the first‑instance court had not been fair.
The applicant asked the Baku Court of Appeal to quash the first-instance court’s decision in his case. By its decision of 29 October 2012 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
2. The demonstration of 12 January 2013
According to the applicant, the organisers of the 12 January 2013 demonstration had not given a formal notice to the relevant authorities about the planned demonstration. Information about the demonstration had been disseminated through Facebook or through the press.
The demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants were drawing public’s attention to deaths of soldiers in the army.
The demonstration was dispersed by the police. The applicant was arrested during the dispersal and was taken to a police station.
According to the applicant, he was not given an opportunity to contact his relatives. He was not promptly informed about the reasons for his arrest. 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.
On the day of his arrest, an administrative offence report was drawn up in respect of the applicant. The report stated that the applicant had committed an administrative offence under Article 298.2 (participation in a public assembly which was not organised in accordance with law) of the CAO.
The applicant was never served with a copy of the administrative offence report issued against him.
The applicant was released after several hours in police custody upon recognizance to appear at the police station on 14 January 2013.
The applicant was brought before the Sabail District Court on the abovementioned date. By its decision of 14 January 2013 the court found that the applicant had participated in a demonstration which was not organised in accordance with law, convicted the applicant under Article 298.2 of the CAO, and sentenced him to a monetary fine in the sum of 500 Azerbaijani New Manats (AZN) (corresponding to approximately 477 euros (EUR)).
According to the applicant, the hearing before the first-instance court was very brief. The first-instance court relied heavily on the administrative offence report issued in respect of the applicant. No witnesses were questioned, except for the applicant himself.
The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction had violated his rights because the demonstration in which he had participated had been peaceful. The applicant also complained that his arrest had been unlawful and that the hearings before the first‑instance court had not been fair.
The applicant asked the Baku Court of Appeal to quash the first-instance court’s decision in his case. By its decision of 25 January 2013 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
3. The demonstration of 26 January 2013
According to the applicant, the organisers of the 26 January 2013 demonstration had not given a formal notice to the relevant authorities about the planned demonstration. Information about the demonstration had been disseminated through Facebook or through press.
The demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants were protesting the use of force by police against participants of previous demonstrations.
The demonstration was dispersed by the police. The applicant was arrested during the dispersal and was taken to a police station.
According to the applicant, he was not given an opportunity to contact his relatives. He was not promptly informed about the reasons for his arrest. The applicant’s rights were not properly explained to him and he was not given access to a lawyer.
On the day of his arrest, an administrative offence report was drawn up in respect of the applicant. The report stated that the applicant had committed an administrative offence under Article 298.1 (violation of rules on organising and holding public assemblies by organisers) of the CAO.
The applicant was never served with a copy of the administrative offence report issued against him.
The applicant was brought before the Nasimi District Court on the day of his arrest. By its decision of 26 January 2013 the court found that the applicant had incited people to participate in an unlawful public assembly and, by doing so, had violated rules on organising and holding public assemblies. The court convicted the applicant under Article 298.1 of the CAO) and sentenced him to a monetary fine of AZN 2,500 (corresponding to approximately EUR 2,380).
According to the applicant, the hearing before the first-instance court was very brief. He had insisted on hiring a lawyer of his own choice, but the judge of the first-instance court had disregarded his request. The first‑instance court relied heavily on the administrative offence report issued in respect of the applicant.
Members of the public were not allowed to attend the court hearings, even though the court had not taken any formal decision to close the hearings to the public.
The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction had violated his rights because the demonstration in which he had participated had been peaceful. The applicant also complained that his arrest had been unlawful and that the hearings before the first‑instance court had not been fair.
The applicant asked the Baku Court of Appeal to quash the first-instance court’s decision in his case. By its decision of 8 February 2013 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court.
COMPLAINTS
1. In connection with all three demonstrations, the applicant complains under Article 5 of the Convention that he was not promptly informed about the reasons for his arrest; that he was not given an opportunity to contact his relatives; that his rights, including the right to have a lawyer, were not properly explained to him; and that he was never served with a copy of the administrative offence reports issued against him. In connection with the demonstration of 20 October 2012, the applicant complains that he also was never served with copies of other materials in his case-file.
2. In connection with all three demonstrations, the applicant complains under Article 6 of the Convention that he did not have a fair hearing in the administrative offence proceedings because he was not given sufficient time and facilities to prepare his defence; and that he was deprived of access to effective legal assistance, both after the arrest and during the judicial proceedings. In connection with the demonstrations of 20 October 2012 and of 12 January 2013, the applicant also complains that no witnesses were questioned, except for the applicant himself.
In connection with the demonstrations of 20 October 2012 and of 26 January 2013, the applicant also complains under Article 6 of the Convention that his right to a public hearing was violated.
3. In connection with the demonstrations of 20 October 2012, the applicant, invoking Article 7 of the Convention, complains that the domestic law serving as a basis for his conviction did not comply with the principle of foreseeability. The applicant argues that participation in the peaceful demonstration (advance notice about which had been given to the relevant authorities) was his constitutional right and not a criminal offence.
4. In connection with all three demonstrations, the applicant complains that he was arrested and prosecuted for participating in peaceful demonstrations, in breach of Article 11 of the Convention. The applicant also relies on Article 10 in this respect.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, were the applicant’s “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 case? If so, did the applicant have a fair and public hearing in determining the charge against him, 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 his defence, the opportunity to defend oneself through effective legal assistance, and the questioning of witnesses?
3. In the proceedings related to the applicant’s participation in the demonstration of 20 October 2012, did the acts of which the applicant was found guilty constitute an offence, as required by Article 7 of the Convention? In particular, did the domestic law clearly provide for (a) the offence of deliberately failing to comply with the lawful order of police officers to refrain from participating in an unauthorised demonstration, and (b) the procedure for the organisation and holding of assemblies itself (see Vyerentsov v. Ukraine, no. 20372/11, 11 April 2013)?
4. Has there been an interference with the applicant’s freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention? If so, was the interference prescribed by law, as required by Article 11 § 2? In particular, did the domestic legislation in question meet the “quality of law” requirement? Furthermore, was the interference necessary, in terms of Article 11 § 2?
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 applicant before being brought to court, the transcripts of the hearings and the applicant’s appeals.
6. The parties are also requested to submit copies of all documents relating to the organisation and holding of the demonstrations in which the applicant participated, in particular, the notices (if any) submitted by the organisers of the demonstrations to the relevant local executive authorities, and the official responses the organisers received from the relevant local executive authorities.
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