CASE OF JAMIL HAJIYEV 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 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Legal assistance of own choosing);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
Carlo Ranzoni;Khanlar Hajiyev
4. The applicant was born in 1977 and lives in Baku. 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 “administrativeoffence 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. 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 firstinstance 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.