Communicated on 3 July 2014
FIRST SECTION
Applications nos. 69437/11 and 53662/13
Ulvi HASANOV against Azerbaijan
and Dayanat BABAYEV against Azerbaijan
lodged on 17 October 2011 and 18 February 2013 respectively
STATEMENT OF FACTS
The applicants are Azerbaijani nationals (see Appendix). They are represented before the Court by Mr R. Mustafazade and Mr A. Mustafayev, lawyers practising in Azerbaijan.
The circumstances of the cases
The facts, as submitted by the applicants, are similar in both cases, unless indicated otherwise, and may be summarised as follows.
The applicants are opposition-oriented activists.
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.
Three of these demonstrations took place on 11 March 2011, 20 October 2012 and 17 November 2012. Each of the applicants participated in two of these demonstrations (see Appendix).
According to the applicants, the organisers had given prior notice to the relevant authorities about the planned demonstrations; however, the authorities had not authorised holding of the demonstrations.
It appears that the organisers of the demonstration of 11 March 2011 had not given a formal notice to the relevant authorities about the planned demonstration. Information about this demonstration had been disseminated through Facebook or through press.
The demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants demanded that the Government, inter alia, hold free and fair elections and conduct democratic reforms in the country.
All of the demonstrations were dispersed by the police.
The applicants were arrested by the police at the places where the demonstrations were held. They were taken to various police stations.
According to the applicants, they were arrested by plain-clothed persons (the applicant in application no. 69437/11 raises this issue only with regard to the demonstration of 20 October 2012). The applicants were not given an opportunity to contact their relatives (the applicant in application no. 53662/13 raises this issue only with regard to the demonstration of 20 October 2012). They also were not promptly informed about the reasons for their arrest. The applicants’ rights, including the right to have a lawyer, were not properly explained to them and they were not given access to a lawyer.
On the day of the applicants’ each arrest, an “administrative offence report” (inzibati xəta haqqında protokol) was drawn up in regard of them. The report stated that the applicant 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”).
In their respective cases concerning the demonstration of 20 October 2012 the applicants were additionally charged under Article 298 (violation of rules on holding public assemblies) of the CAO.
The applicants were never served with a copy of the administrative offence reports issued against them.
The applicants were brought before a first-instance court on the day of the arrest. In each case the respective first-instance 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.
In each case the first-instance court convicted the applicant under Article 310.1 of the CAO. In application no. 69437/11 (the demonstration of 20 October 2012) the applicant was also convicted under Article 298 of the CAO. The applicants were sentenced to various periods of “administrative detention” (see Appendix).
According to the applicants, the hearing before the first-instance court in each case lasted only a few minutes (the applicant in application no. 53662/13 raises this issue with regard to the demonstration of 20 October 2012).
The applicants had insisted on employing lawyers of their own choice, but the judges of the respective first-instance courts had disregarded their requests. According to the applicants, representation by State-funded lawyers was ineffective and of a formalistic nature (the applicant in application no. 53662/13 raises this issue with regard to the demonstration of 20 October 2012).
The first-instance courts relied heavily on the administrative offence reports issued in respect of the applicants. According to the applicants, the only witnesses questioned during the court hearings were the police officers, who had not been involved in the applicants’ arrest or no witnesses were questioned, except for the applicants themselves.
Members of the public (including human rights defenders and journalists) were not allowed to attend the court hearings, even though the courts had not taken any formal decisions to close the hearings to the public.
The applicants lodged appeals before the Baku Court of Appeal, arguing that their convictions were in violation of their rights because the demonstrations in which they had participated had been peaceful. The applicants also complained that their arrest had been unlawful and that the hearings before the respective first-instance courts had not been fair.
The applicants asked the Baku Court of Appeal to quash the first‑instance courts’ decisions in their respective cases. On various dates, the Baku Court of Appeal rejected the applicants’ appeals and upheld the decisions of the first-instance courts.
COMPLAINTS
1. The applicants complain under Article 5 of the Convention that they were not promptly informed about the reasons for their arrest; that they were not given an opportunity to contact their relatives; that their rights, including the right to have a lawyer, were not properly explained to them; that they were never served with a copy of the administrative offence report issued against them and with other materials in their case-files; and that they were arrested by plain-clothed persons.
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; that they were deprived of access to effective legal assistance, both after the arrest and during the judicial proceedings; and that the only witnesses to be questioned were police officers.
Also, the applicants 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 peaceful demonstrations, in breach of Article 11 of the Convention. The applicants also rely on Article 10 in this respect.
4. The applicants complain, invoking Article 7 of the Convention, that the domestic law serving as a basis for their conviction did not comply with the principle of foreseeability (the applicant in application no. 69437/11 raises this issue with regard to the demonstration of 20 October 2012). The applicants argue that participation in a peaceful demonstration (advance notice about which had been given to the relevant authorities) was their constitutional right and not a criminal offence.
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 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?
4. 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.
5. The parties are also requested to submit copies of all documents relating to the organisation and holding of the demonstrations in which the applicants participated, in particular, the notices 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 refusing to authorise the demonstrations.
CASE SPECIFIC QUESTIONS
Applications nos. 69437/11 (the demonstration of 20 October 2012) and 53662/13:
Did the acts of which the applicants were 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, or the offence of violating rules on holding public assemblies, and (b) the procedure for the organisation and holding of assemblies itself (see Vyerentsov v. Ukraine, no. 20372/11, 11 April 2013)?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Notes
First-instance judgment
Appellate judgment
69437/11*
17/10/2011
Ulvi HASANOV
1987
Baku
7 days’ administrative detention for participation in the demonstration of 11 March 2011
Decision of the Sabail District Court of 11 March 2011
Decision of the Baku Court of Appeal of 1 April 2011 (received by the applicant on 18 April 2011)
7 days’ administrative detention for participation in the demonstration of 20 October 2012
Decision of the Sabail District Court of 20 October 2012
Decision of the Baku Court of Appeal of 29 October 2012
53662/13
18/02/2013
Dayanat BABAYEV
1989
Neftchala
10 days’ administrative detention for participation in the demonstration of 20 October 2012
Decision of the Sabail District Court of 20 October 2012
Decision of the Baku Court of Appeal of 29 October 2012
7 days’ administrative detention for participation in the demonstration of 17 November 2012
Decision of the Sabail District Court of 17 November 2012
Decision of the Baku Court of Appeal of 23 November 2012
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