CASE OF HUSEYNLI AND OTHERS 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 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Defence through legal assistance) (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);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev
5. The first applicant was born in 1965 and lives in Baku. The second and third applicants were born in 1984 and 1975 respectively and live in Sumgait. 6. At the material time the applicants were members of the main opposition parties or groups in the country: the Popular Front Party of Azerbaijan (“the PFPA”), the Musavat Party and Ictimai Palata, respectively. The first applicant was a member of the Board of the PFPA. The first and third applicants were candidates in the parliamentary elections of 2010. The first applicant was also a candidate in the parliamentary elections of 2005. 7. The year 2011 was marked by an increased number of opposition demonstrations in Azerbaijan, mainly in Baku. They were held, inter alia, on 11 and 12 March, 2 and 17 April, 22 May and 19 June 2011. According to the applicants, the relevant authorities were notified about the demonstrations but refused to authorise them. Despite their peaceful character, demonstrations held without authorisation were dispersed by the police. 8. All three applicants participated in a number of opposition demonstrations. In the course of many of them they were arrested and convicted. In particular, on 12 and 30 April 2010 and 12 March 2011 the second applicant was arrested and convicted of breaching the rules on the organisation and holding of assemblies and failure to obey a lawful order of a police officer. The third applicant was arrested during the demonstration of 12 March 2011 and reprimanded for breaching the rules on the organisation and holding of public assemblies. 9. According to the applicants, they had intended to attend the demonstration scheduled for 2 April 2011. In addition, the first applicant was involved in the organisation of that demonstration. 10. Prior notice of the demonstration of 2 April 2011 had been given to the relevant authority, the Baku City Executive Authority (“the BCEA”), on 18 March 2011. On 31 March 2011 the BCEA refused to allow the demonstration to be held at the place indicated by the organisers, and proposed that it be held at another place on the outskirts of Baku. Nevertheless, the organisers decided to hold the demonstration in central Baku, and information about it was disseminated via Facebook and the press. 11. The first applicant alleged that between approximately 10 a.m. and 11 a.m. on 31 March 2011, after he had taken his child to kindergarten, police officers had stopped his car and requested that he follow them to a police station. He did not oppose the police officers’ demand and was taken to police station no. 20 of the Nasimi District Police Office. At an unspecified time the applicant was informed that he was being detained in connection with the upcoming demonstration of 2 April 2011. At around 2 p.m. he learned that he would not be released from detention. The applicant was then questioned. He was asked, inter alia, about his intention to participate in the demonstration of 2 April 2011 and generally about the politics in the country. 12. According to the official records, the applicant was arrested for disobeying a lawful order of a police officer. In particular, police officers F.P., S.A. and R.V. stated the following in a report (raport) submitted to a superior police officer: “... at around 10.30 a.m. on 31 March 2011 on 3rd Alatava street [in Baku] we stopped a [person] who was driving by in his car and requested his identity document because he bore a resemblance to a person who was on a wanted list. But he ignored our lawful demand to produce his identity document. We brought [him] to the police station. There we found out that [he] was [the applicant] ...” 13. At around 1.20 p.m. on the day of the arrest, an “administrative-offence report” (inzibati xəta haqqında protokol) was issued by police officer T.A. in respect of the applicant. 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”). 14. The applicant signed the part of the administrative-offence report acknowledging that he had been familiarised with the report, but left without signature the part with a pre-printed text which stated that “the rights and obligations under Articles 371, 372, 374, 377, 379 and 410.4 of the CAO of the Republic of Azerbaijan were explained”. He made a statement that he had not disobeyed any order given by the police. This statement was included in the report. 15. According to the applicant, he was never provided with a copy of the administrative-offence report or with other documents in his case file. He was not given access to a lawyer after his arrest or while in police custody. 16. The applicant was brought before the Nasimi District Court on the day of his arrest. 17. According to the applicant, the hearing, which began at 3 p.m., was very brief. He refused the assistance of a State-funded lawyer and insisted on hiring a lawyer of his own choice, but the judge disregarded his request. His representation by that lawyer was ineffective and of a formalistic nature. 18. The applicant stated before the court that he had been stopped by the police and had been requested to follow them to a police station, that he had complied with that request, and that he was not guilty of disobeying a police officer. 19. The only witnesses questioned during the court hearing were police officers T.A., F.P. and S.A. Police officer T.A. testified that he had prepared the administrative-offence report in respect of the applicant. Police officers F.P. and S.A. gave testimonies virtually identical to the above-mentioned report they had submitted to a superior police officer. 20. According to the record of the hearing, the State-funded lawyer stated that the applicant was not guilty and asked the court to terminate the administrative proceedings against him. 21. The court found that the applicant had committed an administrative offence under Article 310.1 of the CAO and sentenced him to seven days’ “administrative” detention. 22. The applicant lodged an appeal before the Baku Court of Appeal, presenting his version of the facts surrounding the arrest, and arguing that he had been arrested in connection with the demonstration scheduled for 2 April 2011. He also complained that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. He urged the Baku Court of Appeal to quash the first-instance court’s decision. 23. It appears that the applicant was not represented by a lawyer before the Baku Court of Appeal. 24. On 5 April 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct. 25. The second applicant alleged that at around 10.30 a.m. on 31 March 2011, when he was still in bed, three police officers had entered his apartment without an arrest warrant. The applicant’s father had let the police officers in. The police officers took the applicant to police station no. 3 of the Sumgait City Police Office. At an unspecified time the applicant was questioned about his political activities. 26. According to the official records, the applicant was arrested for minor hooliganism and for disobeying a lawful order of a police officer. In particular, police officer T.R. stated the following in a report submitted to a superior police officer: “... at around 12.30 p.m. on 31 March 2011 on the territory of the 9th micro-district of Sumgait, I noticed a person who was making noise ... But although I invited him to respect the discipline, he continued his cursing and improper behaviour ... Therefore I brought him to police station no. 3. There we found out that that [person] was [the applicant] ...” 27. On the day of the arrest, an administrative-offence report was issued by police officer E.S. in respect of the applicant. The report stated that the applicant had committed an administrative offence under Articles 296 (minor hooliganism) and 310.1 of the CAO. 28. The applicant refused to sign the report. 29. According to the applicant, he was never provided with a copy of the administrative-offence report or with other documents in his case file. He was not given access to a lawyer after the arrest or while he was kept in police custody. 30. According to a statement (ərizə) allegedly signed by the applicant and submitted to the Court by the Government, the applicant had refused legal assistance while in police custody. According to the transcript of the hearing before the Sumgait Court of Appeal, the applicant claimed that he had not signed that statement. 31. The applicant was brought before the Sumgait City Court on the day of his arrest. 32. According to the applicant, the hearing, which began at 3.30 p.m., was very brief and he was not given an opportunity to hire a lawyer of his own choice. 33. According to the transcript of the first-instance court hearing, the applicant refused the assistance of a State-funded lawyer and decided to defend himself in person. 34. The applicant stated before the court that he had been taken to a police station from his apartment, that it had been his father who had let the police officers in, that at the police station he had been questioned about his political activity, and that he was not guilty of disobeying a police officer or of swearing at the location indicated by the police. According to the transcript of the Sumgait Court of Appeal hearing, the applicant orally requested that the chief of police station no. 3, M.N., be questioned. However, there is no information whether M.N. was questioned. 35. The only witness questioned during the court hearing was police officer T.R. He testified that the applicant had been swearing without addressing any particular person and had failed to obey his order to stop his illegal behaviour. 36. The court found that the applicant had committed an administrative offence under Articles 296 and 310.1 of the CAO and sentenced him to seven days’ “administrative” detention. 37. The applicant lodged an appeal before the Sumgait Court of Appeal, presenting his version of the facts surrounding the arrest, and arguing that his arrest had been unlawful, that the hearing before the first-instance court had not been fair and that his right to respect for home had been violated by the police. He urged the Sumgait Court of Appeal to quash the first-instance court’s decision. 38. It appears that the applicant refused legal assistance at the hearing before the Sumgait Court of Appeal. 39. On 19 April 2011 the Sumgait Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct. 40. According to the third applicant, at around 11 a.m. on 31 March 2011 he went with his lawyer to the Sumgait City Police Office. After a conversation with the chief of police, they left. The applicant, who did not clearly explain the purpose of that visit, alleged that when he had been outside the police office and no longer accompanied by his lawyer, police officers had arrested him without explaining the reasons for doing so, and had taken him to police station no. 4 of the Sumgait City Police Office. 41. According to the official records, the applicant was arrested for “minor hooliganism”. In a report submitted to a superior police officer, police officer N.M. stated the following: “... at around 12.30 p.m. on 31 March 2011 on Akhundov street [in Sumgait] [we, the police officers,] noticed a person who was swearing loudly without addressing anyone in particular ... We approached him and ... brought him to police station no. 4. There we found out that that [person] was [the applicant] ...” 42. Police officers R.S. and A.M. submitted explanatory reports (izahat) to a superior police officer. Those reports were virtually identical to the report submitted by police officer N.M. 43. On the day of the arrest police officer V.J. issued an administrative-offence report in respect of the applicant. The report stated that the applicant had committed an administrative offence under Article 296 of the CAO. 44. The applicant refused to sign the administrative-offence report. 45. According to the applicant, he was never provided with a copy of the administrative-offence report or with other documents in his case file. He was not given access to a lawyer after his arrest or while he was kept in police custody. 46. According to a decision dated 31 March 2011, police officer V.J. decided to invite a lawyer to represent the applicant, without indicating at what stage the lawyer should join the proceedings. 47. The applicant was brought before the Sumgait City Court on the day of his arrest. 48. According to the applicant, he was not given an opportunity to hire a lawyer of his own choice to represent him at the hearing, which began at 4 p.m. He asked the judge to postpone the examination of the case for one hour so that his lawyer could arrive at the court. However, the judge decided to adjourn the hearing for only thirty minutes and to recommence the hearing at 4.30 p.m., which was not enough time for the applicant’s lawyer to arrive. 49. According to the transcript of the court hearing, the applicant refused the assistance of a State-funded lawyer. 50. The applicant stated before the court that he was not guilty of breaching public order by swearing at the location indicated by the police, and that he believed that the motive for his arrest had been his participation in the demonstration of 12 March 2011. 51. The only witnesses questioned during the court hearing were police officers M.N., R.S. and A.M. They testified that the applicant had been swearing without addressing anyone in particular and that they had therefore taken him to a police station. 52. The court found that the applicant had committed an administrative offence under Article 296 of the CAO and sentenced him to seven days’ “administrative” detention. 53. The applicant lodged an appeal before the Sumgait Court of Appeal, presenting his version of the facts surrounding the arrest, and arguing that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. He urged the Sumgait Court of Appeal to quash the first-instance court’s decision. 54. It appears that the applicant prepared his written appeal with the assistance of a lawyer of his own choice. However, he participated in the hearing before the Sumgait Court of Appeal without his lawyer. 55. On 15 April 2011 the Sumgait Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct.