CASE OF BABAYEV AND HASANOV 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);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
André Potocki;Mārtiņš Mits
5. The applicants’ dates of birth and places of residence are given in the Appendix. 6. At the material time the first applicant was a member of the youth committee of an opposition party, the Popular Front Party of Azerbaijan (Azərbaycan Xalq Cəbhəsi Partiyası – “the PFPA”), and the second applicant was a chairman of a youth organisation called Azad Genclik. 7. Both applicants participated in a number of unauthorised peaceful demonstrations organised by the opposition. In the course of many of those demonstrations, they were arrested and convicted. In particular, the first applicant was arrested during the demonstrations on 15 May, 19 June and 31 July 2010. 8. The number of opposition demonstrations increased in 2011. That tendency continued into the following years. Demonstrations were held, inter alia, on 11 March 2011 and 20 October and 17 November 2012. 9. The second applicant attended the demonstrations of 11 March 2011 and 20 October 2012. The first applicant attended the demonstrations of 20 October and 17 November 2012. 10. According to the first applicant, he also intended to participate in the demonstration of 11 March 2011. Moreover, he was actively promoting public participation in that assembly on online social networks. 11. It appears that the organisers of the demonstration of 11 March 2011 gave no proper prior notice to the relevant authority, the Baku City Executive Authority (“the BCEA”). Information about the assembly was disseminated through Facebook or the press. 12. Prior to the demonstrations of 20 October and 17 November 2012, on 15 October and 12 November 2012 respectively the organisers had given notice to the BCEA. 13. The BCEA refused to authorise the demonstration of 20 October 2012 at the site indicated by the organisers and proposed another location on the outskirts of Baku the grounds of a driving school situated in the 20th habitable area of the Sabail District. 14. The BCEA also refused to authorise the demonstration of 17 November 2012. It noted in general terms that that assembly would not be in accordance with the Law on Freedom of Assembly. The BCEA further noted that the square where the organisers proposed to hold the assembly was a designated public leisure area and that the assembly itself would be impractical. 15. The organisers nevertheless decided to hold the demonstrations as planned. According to the applicants, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants were demanding democratic reforms in the country and free and fair elections, and protesting against impediments on freedom of assembly. 16. On 4 March 2011 the first applicant was arrested and brought to police station no. 22 of the Nasimi district police office. 17. According to the official records, he was arrested because at around 11.20 a.m., in front of the National Bank in Baku, he had disobeyed a lawful order of the police to stop speaking loudly on a mobile phone and to stop using foul language. He also swore at the police officers and tried to run away when being arrested. 18. The applicant contested the official version of his arrest. He stated that he had been arrested in an Internet café by three persons in plain clothes who had failed to present themselves or give reasons for the arrest. They had taken his belongings from the Internet café, including his mobile phone. He had been pushed into an unmarked car. There one of the persons who had arrested him had presented himself as a police officer and shown a police badge. The other two had presented themselves as agents of the Ministry of National Security, without showing any supporting document. He had been told that the arrest had been in connection with the demonstration of 11 March and another protest planned to be held on 12 March 2011. 19. At the police station an administrative-offence report (inzibati xəta haqqında protokol) was issued in respect of the applicant, setting out the charges against him. The report stated that the applicant had committed an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”) (failure to comply with a lawful order of a police officer). 20. According to the applicant, he was never 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 his arrest or while he was in police custody. 21. On the day of his arrest the applicant was brought before the Nasimi District Court, which on the same day adopted a decision on the merits. 22. According to the applicant, he was not given an opportunity to appoint a lawyer of his own choosing. A State-funded lawyer (Mr O.A.) was appointed to assist him. 23. According to the transcript of the first-instance court’s hearing, Mr O.A. did not make any oral or written submissions. 24. In his statement before the court the applicant contested the police officers’ version of events and argued that he had been arrested unlawfully. The court disregarded that statement as non-reliable. 25. Only the police officers who, according to the official records, had arrested the applicant and the police officer who issued the administrativeoffence report in respect of him were questioned as witnesses. In their statements those police officers reiterated the official version of the reasons for the applicant’s arrest (see paragraph 17 above). 26. The court found that the applicant had committed the administrative offence attributed to him (see paragraph 17 above). It convicted the applicant under Article 310.1 of the CAO and sentenced him to ten days’ administrative detention. 27. According to the applicant, until 6 March 2011 his whereabouts were unknown to his family and friends. 28. Only on 7 March 2011 was a lawyer hired by his family able to meet the applicant and to learn the details of his arrest, detention and the court proceedings against him. 29. On an unspecified date the applicant lodged an appeal with the Baku Court of Appeal, presenting his version of the events surrounding his arrest, and arguing that he had been arrested in connection with the demonstration scheduled for 11 March 2011. The applicant also complained that the hearing before the first-instance court had not been fair. 30. In addition, he applied to the appellate court to have examined his mobile-phone call records in respect of the date and time of the alleged administrative offence. 31. The applicant was represented before the Baku Court of Appeal by a lawyer of his own choosing. 32. On 19 March 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that the conclusions reached by that court had been correct. 33. The appellate court did not address the applicant’s above-mentioned request to have his mobile-phone call records examined. 34. As mentioned above, the demonstration of 11 March 2011 was attended by the second applicant, the demonstration of 20 October 2012 by both applicants, and the demonstration of 17 November 2012 by the first applicant. 35. All three demonstrations were dispersed as soon as the protesters began to gather. Both applicants were arrested during the dispersal operations and after each arrest were taken to police station no. 9 of the Sabail district police office. 36. According to the applicants, during the dispersal of the demonstrations of 20 October and 17 November 2012 they were arrested by individuals in plain clothes. 37. On the day of each of the applicants’ respective arrests, administrative-offence reports were issued in respect of them. In each case the applicants were charged with an administrative offence under Article 310.1 of the CAO. Following their arrest on 20 October 2012 the applicants were additionally charged under Article 298 (violation of rules on holding public assemblies) of the CAO. 38. According to the applicants, they were never served with a copy of the administrative-offence reports or with other documents from their case files. They were also not given access to a lawyer after their arrests or while they were in police custody. 39. The applicants were brought before the Sabail District Court on the day of each arrest (specifically, the first applicant on 20 October and 17 November 2012, and the second applicant on 11 March 2011 and 20 October 2012). 40. According to the applicants, the respective hearings before the firstinstance court were very brief. Members of the public were not allowed inside the courtroom, even though the court had not taken a formal decision to close the hearings to the public. 41. According to the applicants, they were not given an opportunity to appoint lawyers of their own choosing. 42. A State-funded lawyer was appointed to defend the applicants at each hearing. 43. According to the transcript of the hearing of 11 March 2011, in his oral submissions the State-funded lawyer for the second applicant (Mr V.M.) briefly asked the court to consider the young age of the applicant and his sincere regret for having committed the administrative offence. 44. None of the material submitted to the Court contains any record showing that at the hearings of 20 October and 17 November 2012 respectively the State-funded lawyer for the second applicant (Mr K.B.) or the State-funded lawyer for the first applicant (Mr Z.A.) made any oral or written submissions on behalf of the applicants. 45. According to a statement (“ərizə”) signed by the first applicant, he refused the assistance of the State-funded lawyer at the hearing of 20 October 2012 and decided to defend himself in person. 46. The only witnesses questioned during the hearing of 11 March 2011 concerning the second applicant were police officers who, according to official records, had arrested him. They testified that together with some other people the applicant had attempted to hold an unlawful demonstration and continued to protest despite the order to disperse. During the hearings of 20 October 2012 and 17 November 2012 the court did not question any witnesses. 47. In each case the Sabail District Court found that the applicants had failed to stop participating in an unauthorised demonstration. The court convicted the applicants under Article 310.1 of the CAO. In the proceedings related to his participation in the demonstration of 20 October 2012 the second applicant was also convicted under Article 298 of the CAO. The applicants were sentenced to various periods of administrative detention (see Appendix). 48. On unspecified dates the applicants lodged appeals with the Baku Court of Appeal, arguing that their convictions had been in violation of their rights, because the protest in which they had participated had been peaceful. The applicants also complained that their arrests had been unlawful, and that the hearings before the first-instance court had not been fair. They asked the Baku Court of Appeal to quash the first-instance court’s decisions in their respective cases. 49. The first applicant was assisted by a lawyer of his own choosing in each case before the Baku Court of Appeal. The second applicant was assisted by a lawyer of his own choosing during the appellate-court proceedings related to his participation in the demonstration of 20 October 2012, but he was not represented by a lawyer during the appellate-court proceedings related to his participation in the demonstration of 11 March 2011. 50. On various dates the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the first-instance court (see Appendix).