CASE OF GAFGAZ MAMMADOV 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;Preparation of defence;Article 6-3-c - Defence through legal assistance);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
András Sajó;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1953 and lives in Baku. 6. The opposition group Ictimai Palata was planning a demonstration to be held on 19 June 2011 in Baku. On 9 June 2011 the organisers – consisting of several members of that group – gave prior notice to the relevant authority, the Baku City Executive Authority (“the BCEA”), informing it of the date, time, place and purpose of the demonstration. According to the notice, the assembly was scheduled to take place from 5 p.m. to 7 p.m. on 19 June 2011 at the square in front of the Narimanov Cinema in Baku. 7. The BCEA refused to authorise the holding of the demonstration at the place indicated by the organisers and proposed another location on the outskirts of Baku. 8. Nevertheless, the organisers decided to hold the demonstration in one of the central areas of Baku, namely, near the Puppet Theatre on Seaside Boulevard. 9. According to the applicant, the demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants were demanding free and fair elections, democratic reforms, freedom of assembly, and the release of persons arrested during some previous demonstrations. 10. The applicant attended the demonstration, but shortly after it had started the police started to disperse it. The applicant was arrested at around 6.10 p.m. during the dispersal operation. He claimed that he had been arrested and taken to a police car by plain-clothed persons. According to the official records, he was arrested by police officers Z.H. and J.M. He was taken to police station No. 9 of the Sabail District Police Office. 11. Police officers Z.H. and J.M. stated the following in a report (raport) submitted to a superior police officer: “... at around 6.10 p.m. we were on duty ... when Mammadov Gafgaz Suleyman oglu, whose identity was established later, was attempting to hold an unlawful demonstration. We demanded that he stop his illegal actions, [he] deliberately disobeyed [and] continued his actions, and for that reason we brought him to the [police station] ...” 12. According to the applicant, he was questioned at the police station. 13. At 6.50 p.m. on the day of the arrest, an “administrative-offence report” (inzibati xəta haqqında protokol) was issued by police officer H.H. in respect of the applicant. The report stated that by deliberately failing to comply with the lawful order of the police during the demonstration, the applicant had committed an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”). 14. The applicant refused to sign the report, which contained a preprinted text declaring that “[the arrested person] was familiarised with the report, the reasons for his or her arrest and his or her rights under Articles 371, 400.2, 401.1.6, 401.1.7 of the CAO of the Republic of Azerbaijan were explained”. 15. Subsequently, police officer H.H. prepared an “administrative-arrest report” (inzibati qaydada tutma haqqında protokol), stating that: “... the [applicant] was subjected to administrative arrest at 8 p.m. on 19 June 2011 ... in order to ensure issuance of an administrative-offence report, to ensure a correct and timely examination of the case, [and] to ensure the execution of decisions, in accordance with Articles 396.1.2 and 398 of the CAO.” 16. According to the applicant, he was never served 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. 17. On 20 June 2011, the day after his arrest, the applicant was brought before the Sabail District Court. 18. According to the applicant, he refused the assistance of a Statefunded 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. The hearing was very brief and members of the public, including human rights defenders and journalists, were not allowed to attend, even though the court had not taken a formal decision to close the hearing to the public. 19. The applicant stated before the court that he was not guilty of disobeying a lawful order of a police officer and that he had participated in the demonstration because he had a constitutional right to freedom of assembly. 20. According to the record of the hearing provided by the Government, in response to the judge’s question whether the police officers, before arresting him, had issued a relevant notice about dispersal of the demonstration, the applicant gave the following answer: “There were a lot of police officers and they were demanding that we disperse. But their demand was not lawful because we were exercising our right. Instead of calling on us to disperse, the responsibility of the police should have been to ensure our security.” 21. The only witness questioned during the court hearing was police officer Z.H., who testified as follows: “At around 6.10 p.m. on 19 June 2011 ... we noticed that [the applicant], together with a group of other people, was attempting to hold an unauthorised demonstration by shouting out slogans, and ... asked them to observe silence. However, [the applicant] continued his actions, disobeying our requests ...” 22. According to the record of the hearing, the State-funded lawyer stated that the applicant was not guilty and asked the court to take into consideration the applicant’s age and the fact that he had children. 23. The court found that the applicant had failed to stop participating in the unauthorised demonstration. The court convicted him under Article 310.1 of the CAO and sentenced him to five days’ “administrative” detention. 24. The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction was in violation of his rights because the demonstration in which he had participated had been peaceful. 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. 25. The applicant was represented before the Baku Court of Appeal by a lawyer of his own choice. 26. On 24 June 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.