CASE OF TURAL HAJIBEYLI v. AZERBAIJAN
Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)
André Potocki;Mārtiņš Mits
5. The applicant was born in 1992 and lives in Baku. 6. A demonstration was planned to be held on 12 March 2011 in Baku. Prior to the assembly, on 7 March 2011, the organisers, members of the opposition, gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”). 7. The BCEA refused to authorise the demonstration at the place indicated by the organisers and proposed a different location on the outskirts of Baku – the grounds of a driving school situated in the 20th habitable area of the Sabail District. 8. The organisers nevertheless decided to hold the demonstration in the centre of Baku. According to the applicant, the demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants were protesting against, inter alia, corruption and demanding the resignation of the President of the State. 9. The applicant attended the demonstration, but shortly after it had begun the police started to disperse those who had gathered. The applicant was arrested during the dispersal operation and was taken to three different police stations consecutively. 10. According to the applicant, he was arrested at around 2 p.m. His arrest and custody in the police stations were video recorded on a mobile phone by one of the protesters, Mr A.H. 11. On the day of the applicant’s arrest, an administrative-offence report (inzibati xəta haqqında protokol) was drawn up in respect of him by police officer E.G. The report stated that at around 2.55 p.m., at Fountains Square in Baku, the applicant had attempted to hold an unlawful demonstration and had disobeyed a lawful order of a police officer. He had been charged with administrative offences under Article 298 (violation of the 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”). 12. On the same day two police officers, M.A. and H.A., prepared a report (raport) for a superior, stating that at around 4 p.m. during the demonstration they had arrested ten individuals. The report contained a list of the arrested protesters. According to the applicant, his name – the eleventh on the list – was added to the report later in different handwriting. 13. According to the official records, the administrative-offence report in the applicant’s respect was prepared on the basis of the abovementioned report drawn up by police officers M.A. and H.A. 14. According to the applicant, he has never been served with a copy of the administrative-offence report or with other documents from his case file. He was also not given access to a lawyer after the arrest or while he was in police custody. 15. On the day of his arrest the applicant was brought before a firstinstance court, the Sabail District Court. 16. A State-funded lawyer was appointed to assist the applicant. None of the material submitted to the Court contains any record showing that the State-funded lawyer, Mr E.N., made any oral or written submissions on behalf of the applicant. 17. No witnesses were questioned during the court hearing. 18. By a decision of 12 March 2011, the court convicted the applicant under Article 310.1 of the CAO and sentenced him to eight days’ administrative detention. 19. On an unspecified date the applicant lodged an appeal with the Baku Court of Appeal, arguing that his arrest and conviction were in violation of his right to freedom of assembly and that the hearing before the firstinstance court had not been fair. He argued that he had participated in the demonstration because he had had a constitutional right to do so, but that he had not disobeyed any order of a police officer. 20. The applicant also asked the appellate court to summon and examine witnesses on his behalf (namely, Mr A.H., Mr A.M. and Mr R.M.) who, according to the applicant, had witnessed his arrest and time in custody, and to examine the video recordings made by Mr A.H., which, according to the applicant, showed his arrest and custody in the police stations. He further asked the court to order a handwriting examination of the report prepared by police officers M.A. and H.A., in order to establish whether his name had been added to it by one of those two police officers. The applicant alleged that his name had been added to the mentioned report as the eleventh person in the list later and in different handwriting. 21. The applicant was represented before the Baku Court of Appeal by a lawyer of his own choosing. 22. On 18 March 2011 the Baku Court of Appeal partially granted the applicant’s appeal and remitted the case to the first-instance court for reexamination. The Court of Appeal found that the first-instance court had failed to examine the report prepared by police officers M.A. and H.A. The court also held that the case-file contained only a photocopy and not the original of that report and, therefore, it had not been possible to order its expert examination. The court did not address the applicant’s abovementioned requests to summon and examine the witnesses on his behalf and to examine the video recordings. 23. On 12 April 2011 the Sabail District Court re-examined the case. 24. According to the applicant, he was not given an opportunity to appoint a lawyer of his own choosing. 25. A State-funded lawyer was appointed to assist him. 26. The only witnesses questioned during the court hearing were police officers M.A. and E.G. The former testified that the applicant had been detained for having participated in an unlawful assembly, making noise and disobeying the lawful orders of the police. The latter testified that he had prepared the administrative-offence report. 27. By a decision of 12 April 2011, the court convicted the applicant under Article 310.1 of the CAO and sentenced him to seven days’ administrative detention. 28. On an unspecified date the applicant appealed. He argued before the Baku Court of Appeal that his arrest and conviction had been in violation of his right to freedom of assembly. He also complained that his arrest had been unlawful, and that the rehearing before the first-instance court had not been fair. 29. The applicant again requested that witnesses on his behalf (namely, Mr A.H., Mr A.M., Mr R.M. and Mr R.B.) be summoned and heard. In addition, he challenged the reliability of the official records related to his arrest and police custody. He pointed out in particular the discrepancy between the time of arrest indicated in the administrative-offence report and the report prepared by police officers M.A. and H.A. The applicant repeated his allegation that his name had been added as the eleventh person on the list in the mentioned report later. The applicant asked the appellate court to hear at least three individuals listed along with him in the report prepared by police officers M.A. and H.A. He further asked the court to examine certain photographs and the video recordings made during his arrest and time in police custody. 30. The applicant was not represented before the Baku Court of Appeal by a lawyer. 31. On 28 April 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the first-instance court’s decision. 32. The appellate court did not address the applicant’s above-mentioned requests to summon and hear the witnesses and to examine the photographs and video recordings. 33. On 8 August 2014 Mr I. Aliyev, who represented the applicant before the Court, was arrested on charges of large-scale tax evasion, abuse of power and illegal entrepreneurship. On the same day he was detained pending trial. The circumstances relating to Mr Aliyev’s arrest and detention are the subject of a separate application brought by him before the Court (application no. 68762/14). 34. On 8 and 9 August 2014 the prosecuting authorities conducted a search of Mr Aliyev’s home and office. During the search the domestic authorities seized a large number of documents, including all the case files relating to the pending applications before the Court, which were in Mr Aliyev’s possession as a representative. The file relating to the present case, which, it appears, included copies of all the documents and correspondence between the Court and the parties, was also seized in its entirety. No adequate inventory of the seized files relating to the Court proceedings was made in the search and seizure records of 8 and 9 August 2014. 35. On an unspecified date Mr Aliyev lodged a complaint with the Nasimi District Court, claiming that the search had been unlawful. He further complained about the seizure of the documents and files relating to the pending court proceedings before the Court and the domestic courts. 36. On 12 September 2014 the Nasimi District Court dismissed Mr Aliyev’s claim. It held that the searches had been conducted in accordance with the relevant law. As to the seizure of the documents relating to the cases pending before the Court and the domestic courts, it found that they could not be returned to the applicants at that stage of the proceedings. Following an appeal, on 23 September 2014 the Baku Court of Appeal upheld the first-instance court’s decision of 12 September 2014. 37. On 25 October 2014 the investigating authorities returned a number of the case files concerning the applications lodged with the Court, including the file relating to the present case, to Mr Aliyev’s lawyer. The investigator’s relevant decision specified that “since it has been established that among documents seized on 8 and 9 August 2014 there were files concerning applications by a number of individuals and organisations lodged with the European Court of Human Rights, which have no relation to the substance of the criminal proceedings [against Mr Intigam Aliyev], [those files] have been delivered to [Mr Aliyev’s lawyer] Mr Javad Javadov”.