European Court of Human Rights

 

FIFTH SECTION

CASE OF GULIYEVA v. AZERBAIJAN

(Application no. 72608/13)

 

 

 

 

 

 

JUDGMENT
 

STRASBOURG

1 September 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Guliyeva v. Azerbaijan,

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

  Stéphanie Mourou-Vikström, President,
  Ivana Jelić,
  Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no.   72608/13) 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") on 10   September 2013 by an Azerbaijani national, Ms Khatira Najaf gizi Guliyeva ( Xatirə Nəcəf qızı Quliyeva - "the applicant"), born in 1962 and living in Baku, who was represented by Mr K. Bagirov, a lawyer based in Azerbaijan;

the decision to give notice of the complaints concerning Articles 5 and 6 of the Convention to the Azerbaijani Government ("the Government"), represented by their Agent, Mr Ç. Əsgərov, and to declare the remainder of the application inadmissible;

the decision of the President of the Section to give Mr K. Bagirov leave to represent the applicant in the proceedings before the Court (Rule 36 § 4 (a) in fine of the Rules of the Court);

the parties' observations;

Having deliberated in private on 7 July 2022,

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

SUBJECT MATTER OF THE CASE

1.     The present case concerns the arrest and detention of the applicant, in respect of whom the domestic courts issued a warning in administrative proceedings concerning charges of minor hooliganism and failure to comply with a lawful order of a police officer. The applicant alleged that her rights protected under Article 5 § 1 and Article 6 of the Convention had been breached by the domestic authorities.

2.     According to the applicant, on 5 February 2013 she went to the Sabunchu District Prosecutor's Office to lodge a complaint, but the prosecutor refused to receive her in person and she was invited to put her complaint in the mailbox. Following her insistence on being received by the prosecutor, the latter called the police to make her leave the building of the Sabunchu District Prosecutor's Office. After the arrival of the police officers, she refused their orders to get into the police car and go to the Sabunchu District Police Station.

3.     On the same day,   the applicant was arrested by the police officers and taken to the Sabunchu District Police Station. The police issued an administrative-offence report stating that at around 1 p.m. the applicant had entered the building of the Sabunchu District Prosecutor's Office, had made a noise, disturbed the work of staff and sworn at them, and had failed to comply with a lawful order of the police officers who had arrived there, in breach of Articles 296 (minor hooliganism) and 310.1 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences ("the CAO"). However, no record of an administrative arrest was drawn up.

4.     On the same day, the applicant was taken to the Sabunchu District Court. According to the transcript of the court hearing, at 5.30 p.m. she appeared before a judge, who found her guilty under Articles 296 and 310.1 of the CAO and imposed an administrative sanction on her in the form of a "warning" ( xəbərdarlıq ). The applicant was released from the courtroom.

5.     The applicant appealed against her administrative conviction, arguing that she had not committed any administrative offence.

6.     By a final decision of 11 March 2013, the Baku Court of Appeal dismissed the applicant's appeal and upheld the first-instance court's judgment, finding it justified.

THE COURT'S ASSESSMENT

1.         ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

7.     The applicant complained under Article 5 § 1 of the Convention that her arrest and detention in police custody, which had lasted for about six hours, had been unlawful, unjustified and in breach of her right to liberty.

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

9.     The applicable general principles under Article 5 of the Convention have been stated in Nasirov and Others v. Azerbaijan (no.   58717/10, §§   46 - 47, 20 February 2020).

10.     The Court notes that the legal issues raised by the applicant under Article 5 of the Convention in the present case are similar to those examined in Nasirov and Others (ibid., §§ 28-31) and the same laws are applicable to her.

11.     In particular, as in the above-mentioned case, the applicant was escorted to the police station for the compiling of an administrative-offence report. However, no reference has been made to any obstacles to drawing up the report at the place where the offence had been discovered. Similarly, no record of an administrative arrest was drawn up in respect of the applicant once she had been taken to the police station (see paragraph 3 above). Lastly, neither the domestic authorities nor the Government provided any specific reasons to the Court justifying the applicant's administrative arrest, nor did they objectively indicate that without such a measure it would have been "impossible" to achieve the goals laid down in the relevant legislation, such as, for example, ensuring the expedient and correct examination of her case (ibid., §§ 48-50).

12.     The Court concluded in Nasirov and Others (ibid., §§ 51-52) that the applicant's deprivation of liberty was unjustified, arbitrary and unnecessary irrespective of its duration, and it finds no reason to depart from the conclusion it reached in that case.

13.     It follows that there has been a violation of Article 5 § 1 of the Convention.

2.      ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

14.     The applicant also complained under Article 6 of the Convention that the domestic courts' decisions had lacked adequate reasoning and that she had not been afforded adequate time and facilities to prepare her defence.

15.     Having regard to its findings above in respect of Article 5 § 1 of the Convention, as well as to the parties' submissions and the particular circumstances of the present case, the Court considers that there is no need to give a separate ruling on the admissibility or the merits of the applicant's complaints under Article 6 of the Convention (see, among many other authorities, Centre for Legal Resources on behalf of Valentin Câmpeanu v.   Romania [GC], no. 47848/08, § 156, ECHR 2014; Azer Ahmadov v.   Azerbaijan , no. 3409/10, §§ 77-79, 22   July 2021; and Mehman Aliyev and   Others v.   Azerbaijan [Committee], no. 46930/10and 11 others, §§   52-54, 20   May 2021).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

16.     The applicant claimed 1,000,000 euros (EUR) in respect of non - pecuniary damage and EUR 2,221 in respect of costs and expenses incurred before the domestic courts and before the Court. The applicant submitted a contract with her representative, Mr   K. Bagirov, in support of her claim and asked that the compensation in that connection be paid directly into her representative's bank account.

17.     The Government submitted that these amounts were unsubstantiated and excessive.

18.     The Court awards the applicant EUR 3,000 in respect of non - pecuniary damage, plus any tax that may be chargeable on that amount.

19.     Having regard to the documents in its possession, the Court considers it reasonable to award her EUR 500 covering costs and expenses under all heads, to be paid directly into the bank account of her representative.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning Article 5 § 1 of the Convention admissible;
2. Holds that there has been a violation of Article 5 § 1 of the Convention;
3. Holds that it is not necessary to examine the admissibility and merits of the complaints under Article 6 of the Convention;
4. 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 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)   EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into her representative's 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;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 1 September 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.

  Martina Keller   Stéphanie Mourou-Vikström
  Deputy Registrar   President