JAMIL HAJIYEV v. AZERBAIJAN - 42989/13 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2017] ECHR 190 (16 February 2017)

In the case of Jamil Hajiyev v. Azerbaijan,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Faris Vehabović, President,
          Khanlar Hajiyev,
          Carlo Ranzoni, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 30 June 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 42989/13 and 43027/13) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Jamil Malik oglu Hajiyev (“the applicant”), on 12 February and 22 May 2013 respectively.

2. The applicant, who had been granted legal aid, was represented by Mr R. Mustafazade and Mr A. Mustafayev, lawyers practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. On 19 May and 29 August 2014 respectively the complaints concerning Articles 5, 6, 10 and 11, raised in both applications, and Article 7, raised only in application no. 42989/13, were communicated to the Government and the remainder of both applications was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1977 and lives in Baku.

A. Administrative arrests

5. The opposition planned to hold demonstrations on 17 November 2012 and 26 January 2013 in Baku.

6. On 12 November 2012, the organisers gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”), about the demonstration of 17 November 2012. It appears that no prior notice was given to the BCEA by the organisers of the demonstration of 26 January 2013. Information about that assembly was disseminated through Facebook or the press.

7. The BCEA refused to authorise the holding of the demonstration of 17 November 2012, stating in general terms that that assembly was not in accordance with the Law on Freedom of Assembly. The BCEA further stated that the square where the organisers proposed to hold the assembly was a designated public leisure area and that the assembly itself was impractical.

8. Nevertheless, the organisers decided to hold the demonstrations in the centre of Baku.

9. According to the applicant, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants in the demonstration of 17 November 2012 were demanding democratic reforms in the country and protesting against impediments to freedom of assembly. The participants of the demonstration of 26 January 2013 were condemning the use of force by the police against participants of previous demonstrations.

10. The applicant attended both demonstrations, but shortly after they had begun the police started to disperse them. In both cases the applicant was arrested during the dispersal operation and was taken to a police station, where he was questioned. According to the applicant, in the first case he was arrested by people in plain clothes.

11. In both cases on the day of the applicant’s arrest, an “administrative-offence report” (inzibati xəta haqqında protokol) was issued in respect of him. In the first case the report stated that by deliberately failing to comply with a lawful order from the police, the applicant had committed an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”). In the second case the applicant was charged with an administrative offence under Article 298.2 of the CAO (participation in a public assembly that had not been organised in accordance with the law).

12. According to the applicant, he was never served with copies of the administrative-offence reports or with other documents from his case files. In neither case was he given access to a lawyer after the arrest or while in police custody.

B. Court proceedings against the applicant

13. In both cases the applicant was brought before the Sabail District Court on the day of his arrest, 17 November 2012 and 26 January 2013 respectively.

14. According to the applicant, the hearing before the court in both cases was very brief. Members of the public were not allowed to attend, even though the court had not taken a formal decision to close the hearing to the public.

15. According to the applicant, in neither case was he given an opportunity to hire a lawyer of his own choice.

16. The record of the court hearing in the first case shows that the applicant declared that he did not need legal assistance and would defend himself in person.

17. At the court hearing in the second case a State-funded lawyer was appointed to assist the applicant. According to documents submitted by the Government, the applicant refused the assistance of that lawyer and decided to defend himself in person.

18. At the hearing in the first case the court did not question any witnesses. In the second case the court questioned two police officers. The police officers testified that they had arrested the applicant because he had staged an unauthorised demonstration.

19. In both cases the first-instance court found that the applicant had participated in an unauthorised demonstration.

20. In the first case, by a decision of 17 November 2012 the first-instance court convicted the applicant under Article 310.1 of the CAO and sentenced him to five days’ “administrative” detention. In the second case, by a decision of 26 January 2013 the court convicted the applicant under Article 298.2 of the CAO and sentenced him to a fine of 500 manats (AZN).

21. On unspecified dates the applicant lodged appeals before the Baku Court of Appeal, arguing that his convictions were in violation of his rights because the demonstrations in which he had participated had been peaceful. He also complained that his arrests had been unlawful and that the hearings before the respective first-instance courts had not been fair.

22. In the first case the applicant was assisted before the Baku Court of Appeal by a lawyer of his own choice. In the second case he was not represented by a lawyer.

23. In both cases, on 23 November 2012 and 5 February 2013 respectively, the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court.

II. RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS

24. At the time of both of the applicant’s arrests, under Article 5 § IV of the Law on Freedom of Assembly of 13 November 1998 no prior written notification was required for spontaneous assemblies.

25. At the time of the applicant’s arrest on 17 November 2012, Articles 298 and 310 of the Code of Administrative Offences of 2000 (“the CAO”) provided as follows:

Article 298
Breach of the rules on the organisation and holding of assemblies, demonstrations, protests, marches and pickets

“Any breach of the rules, set forth under the legislation, on the organisation and holding of assemblies, demonstrations, protests, marches and pickets shall be punishable by a reprimand or a fine of seven to thirteen manats [AZN].”

Article 310
Deliberate failure to comply with a lawful order of a police officer
or military serviceman

“310.1. Deliberate failure [by an individual] to comply with a lawful order of a police officer or military serviceman carrying out their duties to protect public order shall be punishable by a fine of twenty to twenty-five manats [AZN] or, if that sanction is inadequate in the circumstances of the case and taking into account the character of the offender, by administrative detention for a term of up to fifteen days.”

26. Law no. 462-IVQD of 2 November 2012, which entered into force on 1 January 2013, introduced new wording to Article 298 of the CAO (breach of the rules on the organisation and holding of assemblies). Under that amendment, participation in an assembly organised in breach of the rules on the organisation and holding of assemblies became explicitly punishable under Article 298.2 of the CAO. Furthermore, a punishment in the form of administrative detention of up to fifteen days was introduced for the first time. Another new form of punishment introduced by the amendment was community service. In addition, the fine for breaching the rules on the organisation and holding of assemblies was increased and the amounts fixed as follows: between AZN 300 and 600 for participants of an assembly; between AZN 1,500 and 3,000 for individuals who organise an assembly; between AZN 3,000 and 6,000 for persons in charge (vəzifəli şəxslər) who organise an assembly; and between AZN 15,000 and 30,000 for legal entities involved in the organisation of an assembly.

27. Law no. 457-IVQD of 2 November 2012, which entered into force on 29 November 2012, increased the fine set out in Article 310.1 of the CAO to AZN 200.

28. According to presidential Order (sərəncam) no. 1866 of 1 December 2011, which was in force until 1 September 2013, the minimum wage in Azerbaijan was AZN 93.5.

29. The relevant extracts of Resolution 1917 (2013) of the Parliamentary Assembly of the Council of Europe: “The honouring of obligations and commitments by Azerbaijan” read as follows:

“... 10. Regrettably, there is no political dialogue with the opposition parties outside parliament. The Assembly is concerned by the restrictive climate for the activities of the extra-parliamentary opposition, which complains about limitations imposed on freedom of expression and freedom of assembly and the lack of access to the public media.

11. The establishment of an inclusive political system and a truly competitive and unrestrictive political environment requires full implementation of basic freedoms, including freedom of expression, freedom of assembly and freedom of association. The situation in Azerbaijan is preoccupying and the Assembly expresses its deep concern in this regard.

12. Recently adopted amendments to the Criminal Code and the Administrative Code, which have increased penalties for the organisers of, and participants in, “unauthorised” gatherings, raise concern. Considering the authorities’ ongoing blanket ban on protests in the Baku city centre, these amendments are likely to have a further negative impact on freedom of assembly and freedom of expression. The restrictive use of certain articles of the Criminal Code, in particular Articles 221 and 233, against participants in peaceful, albeit unauthorised, demonstrations, is another matter of concern. ...”

30. The relevant extracts of the Report (CommDH(2013)14) of 6 August 2013 by Nils Muižnieks, the Commissioner for Human Rights of the Council of Europe, following his visit to Azerbaijan from 22 to 24 May 2013, read as follows:

“... 76. The Commissioner is deeply concerned by the recent amendments to the Law on Freedom of Assembly, the Criminal Code and the Code of Administrative Offences, which further erode the right to freedom of assembly. The sanctions which can now be imposed, coupled with the fact that local authorities have not authorised a single rally in Baku city centre in recent years, clearly have a chilling effect on the organisation of or participation in demonstrations.

77. The Commissioner is of the view that participants in peaceful assemblies should not be sanctioned for the mere fact of being present at and actively participating in the demonstration in question, provided they do not do anything illegal, violent or obscene in the course of it. The Commissioner therefore urges the authorities to ensure that no disproportionate sanction, which would undermine the fundamental right to peaceful assembly, is imposed. ...”

31. For a summary of other relevant provisions concerning administrative proceedings, the relevant provisions concerning organisation and holding of public assemblies, and the relevant extracts of international documents, see the judgment in the case of Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 27-42, 15 October 2015).

THE LAW

I. JOINDER OF THE APPLICATIONS

32. Given the similarity of the facts and complaints raised by the applicant in his two applications, the Court has decided to join the applications in accordance with Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION

33. The applicant complained that the dispersal of the demonstrations by the police and his arrest and conviction for an administrative offence had been in breach of his freedom of assembly and freedom of expression, as provided for in Articles 10 and 11 of the Convention, which read as follows:

Article 10 (freedom of expression)

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Article 11 (freedom of assembly and association)

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

A. Admissibility

34. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The scope of the applicant’s complaints

35. In the circumstances of the present cases, Article 10 is to be regarded as a lex generalis in relation to Article 11, a lex specialis. It is therefore unnecessary to take the complaint under Article 10 into consideration separately (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202; Kasparov and Others v. Russia, no. 21613/07, §§ 82-83, 3 October 2013; and Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 85, 15 October 2015).

36. On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present cases, also be considered in the light of Article 10. The protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 (see Ezelin, cited above, § 37, and Kudrevičius and Others, cited above, § 86).

2. The parties’ submissions

37. The applicant argued that the domestic legislation regulating freedom of assembly did not comply with principles of foreseeability and precision: while the Constitution required only prior notification about a planned public assembly, the system of prior authorisation, which was applied in practice and stemmed from certain provisions of the Law on Freedom of Assembly of 13 November 1998, allowed for arbitrary interference with freedom of assembly and permitted abusive banning or dispersal of public gatherings.

38. The applicant further submitted that the authorities had not taken into consideration the fact that the organisers had given the BCEA prior notice of the demonstration of 17 November 2012 and that the demonstration of 26 January 2013 had been a spontaneous assembly for which no prior notification had been required by law. Nor had the authorities taken into consideration the fact that both demonstrations had been intended to be peaceful and had been held in a peaceful manner.

39. In addition, in the first case the applicant argued that his arrest and conviction under Article 310.1 of the CAO had been arbitrary.

40. The Government argued that the domestic legislation regulating freedom of assembly was precise and foreseeable, and was in line with European standards.

41. The Government also submitted that both demonstrations had been organised in breach of national legislation. In the second case they argued in particular that an assembly which was organised even one or two days prior to its intended date could not be regarded as spontaneous.

42. The Government further argued in general terms that the dispersal of both demonstrations had been necessary in the interests of national security, for the protection of public safety and the prevention of disorder or crime, and had been proportionate to the aims pursued.

43. The Government pointed out that in the first case, the applicant had not been punished for his participation in the demonstration as such, but for particular behaviour in the course of that assembly, namely for deliberately disobeying lawful orders from police officers. Commenting on the proportionality of the measures, the Government emphasised in particular that the sanction applied to the applicant had been administrative detention.

44. The Government also pointed out that in the second case the police authorities had given the organisers and the participants of the demonstration of 26 January 2013 prior warning that that unauthorised assembly would be dispersed. The applicant had also been aware of the authorities’ position on unauthorised assemblies and the administrative penalties which could be imposed on participants in such assemblies.

3. The Court’s assessment

45. The Court will examine, firstly, the material and the parties’ submissions in the applicant’s first case, namely, his arrest and conviction following his participation in the demonstration of 17 November 2012. The Court notes that the issues raised by the applicant are essentially the same as those examined in the Gafgaz Mammadov judgment (cited above). The facts of the present case closely resemble those of the Gafgaz Mammadov case. The Court considers that the analysis and conclusions made in the Gafgaz Mammadov judgment also apply to the applicant’s first case. In particular, the Court noted the existence of serious concerns about the foreseeability and precision of the legislation governing public assemblies, and about the possibility of public assemblies being abusively banned or dispersed (ibid., § 55); doubts about the credibility of the formal ground, namely, Article 310.1 of the CAO, invoked by the authorities for arresting and convicting the participant in an unauthorised demonstration (ibid., §§ 56 and 62); the authorities’ failure to take into consideration the fact that the demonstration had been notified (ibid., § 60); the lack of relevant and sufficient reasons justifying the dispersal of the demonstration, which had been intended to be peaceful and had been conducted in a peaceful manner (ibid., § 61); and the lack of any acknowledgment that the act of participating in an unauthorised peaceful demonstration was by itself protected by Article 11 of the Convention (ibid., §§ 63-64). Having regard to the above, in the Gafgaz Mammadov case the Court found that the applicant’s right to freedom of assembly had been violated on account of the dispersal of the demonstration and his arrest and conviction.

46. Having regard to the facts of the applicant’s first case and their clear similarity to those of the Gafgaz Mammadov case on all the relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in that judgment, and finds that in the present case the applicant’s right to freedom of assembly was breached for the same reasons as those outlined above.

47. The Court will examine, secondly, the material and the parties’ submissions in the applicant’s second case, namely, his arrest and conviction following his participation in the demonstration of 26 January 2013. The Court observes that the organisers did not give the BCEA prior notice of the demonstration of 26 January 2013. Examining the applicant’s argument that no such notice was required by law, the Court notes that, indeed, under Article 5 § IV of the Law on Freedom of Assembly, no prior written notification was required for “spontaneous assemblies”. Nevertheless, the applicant has failed to sufficiently substantiate his allegation that the demonstration in which he participated was a spontaneous one. In such circumstances the Court is ready to accept that the dispersal of the demonstration of 26 January 2013 was lawful (compare Ibrahimov and Others v. Azerbaijan, nos. 69234/11, 69252/11 and 69335/11, §§ 74-75, 11 February 2016).

48. Turning to the question whether the dispersal of the demonstration of 26 January 2013 and the applicant’s conviction were necessary in a democratic society, the Court notes that the issues raised by the applicant and the facts of the present case closely resemble those of the Gafgaz Mammadov case. Therefore, for the same reasons as those outlined in the Gafgaz Mammadov judgment, the Court concludes that the authorities in the present case have not adduced relevant and sufficient reasons justifying the dispersal of the demonstration (see Gafgaz Mammadov, cited above, § 61). The authorities also failed to acknowledge that the act of participating in an unauthorised peaceful demonstration was by itself protected by Article 11 of the Convention (ibid., §§ 63-64).

49. The dispersal of the demonstrations and the applicant’s arrests and convictions could not but have the effect of discouraging him from participating in political rallies. The Court notes in particular that in the second case the sanction applied to the applicant under Article 298 of the CAO was very harsh. He was ordered to pay AZN 500, whereas at the material time the minimum wage in the country was AZN 93.5. The measures applied in the present cases and the fear of sanctions that could potentially be applied against participants and organisers of unauthorised peaceful assemblies undoubtedly have a chilling effect on the exercise of freedom of assembly. This deters other opposition supporters and the public at large from attending demonstrations, and, more generally, from participating in open political debate.

50. In these circumstances, the Court finds a violation of Article 11 of the Convention in respect of both cases complained of.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

51. The applicant complained under Article 6 of the Convention that in both cases, he had not had a fair and public hearing in the proceedings concerning the alleged administrative offence. The relevant parts of Article 6 of the Convention read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”

A. Admissibility

52. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds and must therefore be declared admissible.

B. Merits

1. The parties’ submissions

53. The applicant submitted, in particular, that in both cases he had not been served, either prior to the hearing before the first-instance court or subsequently, with a copy of the administrative-offence reports issued in respect of him or with other materials in his case files. He also argued that the courts had based their findings merely on the administrative-offence reports and in the second case also on the statements of the police officers who had arrested him. The applicant further submitted that in neither case had he been assisted by a lawyer at the pre-trial stage. Nor had he been given an opportunity to hire a lawyer of his own choice to represent him before the first-instance court. Lastly, in neither case had the public been allowed to attend the hearing before the first-instance court, even though the court had not issued an official decision to examine his case in a closed hearing.

54. The Government submitted that the administrative proceedings in both cases had been in line with national legislation. In the first case they pointed out in particular that the time-limit for lodging an appeal with the Court of Appeal against the decision of the first-instance court was ten days, so the applicant had had adequate time and facilities to prepare his defence. They also submitted in general terms that during the court proceedings the principle of equality of arms had been respected. The Government emphasised that in the second case the applicant had refused the assistance of a State-funded lawyer and had decided to defend himself in person.

2. The Court’s assessment

55. Having regard to the material in the case files and the parties’ submissions, the Court notes that the facts of the present cases and the issues under Article 6 of the Convention raised by them closely resemble those examined in the Gafgaz Mammadov judgment (cited above). The Court considers that the analysis and conclusions made in the Gafgaz Mammadov judgment also apply to the present cases. In that judgment, the Court noted in particular a lack of necessary safeguards and guarantees in the administrative-offence proceedings, namely, a lack of adequate time and facilities to prepare the defence (ibid., §§ 78-81); the strong reliance by the domestic courts on the administrative-offence report prepared by the police and the statement given by a police officer (ibid., § 85); the utter disregard by the domestic courts of important factual circumstances and legal issues of the case, inter alia, the peaceful nature of the unauthorised demonstration (ibid., § 86); the absence of legal assistance at the pre-trial stage of the proceedings (ibid., §§ 90-91); and the failure to provide the applicant with an opportunity to appoint a lawyer of his own choice (ibid., § 92). Having regard to the above, the Court found that the administrative-offence proceedings against the applicant in the Gafgaz Mammadov judgment, considered as a whole, were not in conformity with the guarantees of a fair hearing.

56. Having regard to the facts of the present cases and their clear similarity to those of the Gafgaz Mammadov case on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in that judgment, and finds that in the present cases the applicant’s right to fair trial was breached for the same reasons as those outlined above.

57. There has accordingly been a violation of Article 6 §§ 1 and 3 of the Convention.

58. Having already established that in both cases the applicant was not afforded legal assistance at the pre-trial stage, nor given an opportunity to appoint a lawyer of his own choice at the trial, the Court finds it unnecessary to rule on the issue whether his refusal of State-funded legal assistance at the trial constituted an unequivocal waiver of the right to a lawyer.

59. Furthermore, having regard to the above finding of a violation of Article 6 §§ 1 and 3 of the Convention (that the administrative-offence proceedings against the applicant, considered as a whole, were not in conformity with the guarantees of a fair hearing), the Court considers that there is no need to examine the applicant’s arguments concerning the alleged lack of a public hearing.

IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

60. The applicant complained that his arrest, custody and in the first case also administrative detention following his participation in the demonstrations had been in breach of Article 5 of the Convention. Article 5 of the Convention, in so far as relevant, reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court; ...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A. Admissibility

61. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds and must therefore be declared admissible.

B. Merits

1. The parties’ submissions

62. The applicant argued that in the first case his arrest and administrative detention under Article 310.1 of the CAO (failure to comply with a lawful order of a police officer) had been arbitrary since he had not disobeyed any order from a police officer. The opening of administrative proceedings against participants in unauthorised demonstrations under Article 310.1 rather than Article 298 of the CAO (violation of rules on holding public assemblies) was an arbitrary administrative practice aimed at imposing a harsher form of punishment, such as administrative detention for up to fifteen days, which was not available under the latter Article.

63. The applicant further complained that in both cases he had not been promptly informed about the reasons for his arrest, and that his arrest and custody had not conformed to domestic procedural rules, in particular because he had not been given an opportunity to contact his relatives; his rights, including the right to have a lawyer, had not been properly explained to him; he had not been served with a copy of the administrative-offence report drawn up on him; and in the first case he had been arrested by people in plain clothes.

64. The Government argued that in both cases the applicant’s arrest had been in conformity with the CAO. In the first case, he had been arrested under Article 399.3 of the CAO, which provided that a person in respect of whom proceedings are carried out for an administrative offence punishable by administrative detention may be held in custody for up to twenty-four hours. In the second case the applicant had been escorted to a police station for the preparation of an administrative-offence report and had been released against a written undertaking to appear before the first-instance court two days later.

65. The Government also submitted that the applicant’s administrative detention in the first case had resulted from a lawful court decision by which he had been found guilty of an administrative offence under Article 310.1 of the CAO.

66. The Government lastly submitted that in both cases the applicant had been duly informed about the reasons for his arrest as well as his rights under the relevant provisions of the CAO.

2. The Court’s assessment

67. The Court notes from the outset that in the second case there is nothing in the material before it to suggest that on 26 January 2013 the applicant was released from police custody against a written undertaking to appear before the first-instance court two days later. Therefore the Court accepts the applicant’s assertion that after being arrested he was held in a police station and brought before a first-instance court on the same day.

68. Having regard to the material and the parties’ submissions in the applicant’s first case, namely, his arrest and conviction following his participation in the demonstration of 17 November 2012, the Court notes that the facts of this case and the issues under Article 5 of the Convention raised by it closely resemble those examined in the Gafgaz Mammadov judgment (cited above). The Court considers that the analysis and conclusions made in the Gafgaz Mammadov judgment also apply to the applicant’s first case. In that judgment, the Court noted in particular that the measures applied by the authorities, namely, the arrest and custody followed by a prison sentence of several days had pursued aims unrelated to the formal ground relied on to justify the deprivation of liberty, and implied an element of bad faith and arbitrariness (ibid., § 108). Having regard to the above, the Court found that the deprivation of liberty of the applicant in the Gafgaz Mammadov judgment had been arbitrary.

69. Having regard to the facts of the applicant’s first case and their clear similarity to those of the Gafgaz Mammadov case on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in that judgment, and finds that in the present case the applicant’s right to liberty was breached for the same reasons as those outlined above.

70. Accordingly, there has been a violation of Article 5 § 1 of the Convention.

71. In view of the nature and the scope of its finding above, the Court does not consider it necessary to examine the applicant’s other complaints under Article 5 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

72. Lastly, the applicant complained under Article 7 of the Convention that his arrest and administrative detention following his participation in the demonstration of 17 November 2012 had been in breach of the right not to be punished without law. Article 7 of the Convention, in so far as relevant, reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. ...”

73. The applicant submitted that the domestic law serving as a basis for his conviction had not complied with the principle of foreseeability. In particular, he had been convicted for failing to stop participating in an unauthorised demonstration, despite the fact that the procedure for holding an assembly had not been clearly defined in domestic law. While the Constitution required only prior notification about a planned assembly, application by the authorities of certain provisions of the Law on Freedom of Assembly of 13 November 1998 resulted in a de facto system of prior authorisation.

74. The applicant claimed that, since the organisers had given advance notice to the BCEA about the demonstration of 17 November 2012, and since that demonstration had been peaceful, participation in that assembly had been his constitutional right and not a criminal offence.

75. The Government submitted that the domestic law on freedom of assembly complied with the principle of foreseeability. The law clearly set out the procedure for organising and holding assemblies. They also submitted that failure to comply with a lawful order of a police officer clearly constituted an offence under domestic legislation.

76. The Court notes that the complaint of a violation of the right not to be punished without law is linked to the complaints examined above and must therefore likewise be declared admissible.

77. However, having regard to its above findings in relation to Articles 5, 6 and 11 of the Convention, the Court considers that it is not necessary to examine whether in the applicant’s first case there has been a violation of Article 7.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

78. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

79. In respect of non-pecuniary damage the applicant claimed 19,000 euros (EUR) in the first case and EUR 13,000 in the second case.

80. In the second case the applicant also claimed EUR 500 in respect of pecuniary damage. In support of his claim he submitted that he had paid a fine of 500 manats (AZN), as ordered by the Sabail District Court on 26 January 2013.

81. The Government submitted that the applicant’s claim in respect of non-pecuniary damage was unsubstantiated and unreasonable in both cases. They considered that, in any event, an award of EUR 4,000 in the first case and EUR 3,000 in the second case would constitute sufficient just satisfaction.

82. The Government also submitted that they did not object to awarding just satisfaction in respect of pecuniary damage in the second case. However, they argued that, having regard to the exchange rate for Azerbaijani manats, the amount should be EUR 424.

83. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation, and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 12,000 (as the total amount for both cases) in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.

84. In addition, the Court accepts that in the second case the applicant suffered pecuniary damage as a result of the breach of Article 11 found above. The Court considers that the applicant is entitled to recover the amount paid as a fine and therefore awards him EUR 470, plus any tax that may be chargeable on this amount.

B. Costs and expenses

85. The applicant claimed EUR 3,300 in the first case and EUR 2,500 in the second case, for the legal fees incurred before the domestic courts and before the Court. In support of his claim, he submitted contracts for legal and translation services.

86. The Government considered that the claim in both cases was excessive and could not be regarded as reasonable as to quantum. In particular, they argued that the applicant had been represented by the same lawyers who were representing a number of other applicants in similar cases and that substantial parts of the submissions in all those cases were identical or very similar. The Government also pointed out that the contracts for legal and translation services mentioned above indicated that the applicant would have to pay the lawyers 20% of the damages awarded by the Court.

87. The Government also pointed out that the contract for legal and translation services in the second case had been signed between the applicant and Mr R. Mustafazade. That contract contained a provision about payment to Mr R. Mustafazade of the legal fees incurred before the domestic courts. However, in fact the applicant had not been represented before the domestic courts by Mr R. Mustafazade.

88. The Government lastly submitted that, taking the above considerations into account, the amount to be paid to the applicant as reimbursement of costs and expenses should be reduced.

89. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that in the proceedings before it the applicant was represented by the same lawyers, Mr R. Mustafazade and Mr A. Mustafayev, in both cases and that those lawyers’ submissions in both cases were very similar. In addition, at the domestic level Mr A. Mustafayev represented the applicant before the Court of Appeal only in the first case.

90. The Court also notes that the clause indicating that the applicant must pay the lawyers 20% of the damages is irrelevant for the assessment of costs and expenses incurred by him.

91. In view of the above considerations, the Court awards a total amount of EUR 2,000 in respect of the services rendered by Mr R. Mustafazade and Mr A. Mustafayev, minus EUR 850 which the Council of Europe has already paid in legal aid.

C. Default interest

92. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that there has been a violation of Article 11 of the Convention on account of the dispersal of the demonstrations and the applicant’s arrests and convictions;

4. Holds that there has been a violation of Article 6 §§ 1 and 3 of the Convention;

5. Holds that there has been a violation of Article 5 of the Convention on account of the applicant’s arrest and conviction following his participation in the demonstration of 17 November 2012;

6. Holds that there is no need to examine the complaint under Article 7 of the Convention raised in application no. 42989/13;

7. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 470 (four hundred and seventy euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(iii) EUR 1,150 (one thousand one hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the applicant’s representatives’ bank account;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

8. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Faris Vehabović
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> JAMIL HAJIYEV v. AZERBAIJAN - 42989/13 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2017] ECHR 190 (16 February 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/190.html Cite as: [2017] ECHR 190