CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 décembre 2012

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AZERBAIJAN   (Applications nos. 3653/05, 14729/05, 20908/05, 26242/05, 36083/05 and 16519/06)               JUDGMENT     STRASBOURG   11 December 2012     FINAL   11/03/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Asadbeyli and Others v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Anatoly Kovler,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Linos-Alexandre Sicilianos,   Erik Møse, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 20 November 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in the following six applications against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the following Azerbaijani nationals (hereinafter collectively referred to as “the applicants”): (i)     Application no. 3653/05 lodged on 7 January 2005 by: -     Mr   Bahruz Sabir oglu Asadbeyli ( Bəhruz Sabir oğlu Əsədbəyli ) born in 1952 and living in Sumgayit; -     Mr   Shirali Pasha oglu Hamidov ( Şiralı Paşa oğlu Həmidov ) born in 1963 and living in Sumgayit; -     Mr   Emin Huseynaga oglu Huseynli ( Emin Hüseynağa oğlu Hüseynli ) born in 1976 and living in Sumgayit; -     Mr   Hasan Khansuvar oglu Mammadov ( Həsən Xansuvar oğlu Məmmədov ) born in 1960 and living in Sumgayit; -     Mr   Saleh Ahmadali oglu Aliyev ( Saleh Əhmədəli oğlu Əliyev ) born in 1983 and living in Sumgayit; -     Mr   Elshad Eyvaz oglu Mammadov ( Elşad Eyvaz oğlu Məmmədov ) born in 1983 and living in Sumgayit; (ii) Application no. 14729/05 lodged on 20 March 2005 by Mr   Shahin Mahammad oglu Gojayev ( Şahin Məhəmməd oğlu Qocayev ) born in 1979 and living in Baku; (iii)     Application no. 20908/05 lodged on 21 May 2005 by Mr   Ramiz Mirza oglu Guliyev ( Ramiz Mirzə oğlu Quliyev ) born in 1955 and living in Baku; (iv)     Application no. 26242/05 lodged on 2 July 2005 by Mr Sadiq Sabir oglu Dashdamirli ( Sadiq Sabir oğlu Daşdəmirli ) born in 1958 and living in Gabala; (v)     Application no. 36083/05 lodged on 4 October 2005 by Mr Ilgar Ibrahim oglu Allahverdiyev ( İlqar İbrahim oğlu Allahverdiyev ) born in 1973 and living in Baku; (vi)     Application no. 16519/06 lodged on 13 April 2006 by Mr   Yashar Musa oglu Jafarli ( Yaşar Musa oğlu Cəfərli ) born in 1964 and living in Baku. 2.     Applicant Mr S.   Gojayev (application no. 14729/05) was represented before the Court by Ms N. Huseynova, a lawyer practising in Azerbaijan. Applicant Mr I.   Allahverdiyev (application no. 36083/05) was represented by Mr W.   Bowring, a lawyer practising in London. All the other applicants were represented by Mr A.   Mustafayev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr   Ç.   Asgarov. 3.     The applicants alleged, among other things, that there had been numerous defects in the criminal proceedings against them, resulting in a violation of their right to a fair trial and other rights under the Convention. 4.     On various dates in 2007 the applications were communicated to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants were participants in or were alleged to be organisers of the unauthorised demonstration of 16   October 2003, which escalated into violent clashes between the law-enforcement authorities and the demonstrators, as described below. A.     The events of 16 October 2003 and the criminal proceedings relating to those events 6.     The events of the present case occurred in the aftermath of the presidential elections of 15 October 2003. The main opposition candidate, Mr Isa Gambar, the chairman of the Müsavat Party, lost the elections of 15   October 2003. 7.     On the evening of election day a group of opposition supporters gathered in front of the Müsavat Party’s headquarters in the centre of Baku, claiming victory for their candidate in the election. Violent altercations between opposition supporters and the security forces took place at this time. 8.     At around 2 p.m. on 16 October a number of opposition supporters started gathering near the State Carpet Museum, in the centre of Baku, to protest against the election results. The crowd then started moving towards Azadliq   Square, the main square in the city. It was reported that on the way some people in the crowd began damaging cars, buildings, benches and other urban constructions. It was also claimed that the organisers of this unauthorised demonstration and certain leaders of the opposition parties were inciting their followers to violence. 9.     It has been claimed that some police officers who had been deployed in Azadliq Square were attacked by some of the demonstrators. Shortly thereafter large numbers of riot police and military personnel, fully equipped with helmets, shields and truncheons, arrived in the square with the aim of dispersing the demonstration. The situation quickly escalated into public disorder, and violent clashes occurred between the crowd and the police. It was widely reported that the authorities used excessive force indiscriminately against anyone who happened to be in the area in question. 10.     At around 6 p.m. the demonstration was completely dispersed. Several hundred people were arrested during the events of 16 October and in their aftermath. 11.       On 16 October 2003 the Prosecutor General’s Office instituted criminal proceedings (case no. 80308) concerning the events of 15 and 16   October 2003. More than 100 people, of the several hundred arrested in connection with those events, were eventually prosecuted in connection with those proceedings. The proceedings concerned only the actions of the organisers of the demonstration and those participating in it, and it appears that no criminal or other form of investigation was carried out in connection with the allegations of excessive use of force by the police and military units during the dispersal of the demonstration (see Muradova v.   Azerbaijan , no.   22684/05, §§ 23 and 114, 2 April 2009). 12.     Almost the whole pre-trial investigation, in respect of all the defendants, was conducted in the context of this single set of criminal proceedings. However, as the investigation drew close to completion, criminal case no. 80308 was gradually split into several cases, eventually dividing the accused into fifteen separate groups. It appears that the only reason formally given by the prosecution for splitting up the case was the concern that the sheer number of defendants involved (more than 100) would prolong the proceedings and that it would be impractical to hold a single trial involving so many defendants (see Huseyn and Others v.   Azerbaijan , nos. 35485/05, 45553/05, 35680/05 and 36085/05, § 28, 26   July 2011). Furthermore, it appears that no significant investigative steps were taken after the cases were split (ibid., §§   29 and 166). Each of the fifteen defendant groups thus created was tried separately. Fourteen of those trials concerned the events of 16 October 2003: they were all conducted by the Assize Court and were completed in March and April 2004 (one trial concerned the events of 15 October 2003, and this trial was conducted by the Sabail District Court). All the defendants in those trials, including the applicants in the present case, were found guilty and sentenced to either imprisonment, suspended prison terms or restriction of liberty. 13.     The circumstances relating to each individual applicant in the present case are summarised separately below. B.     Application no. 3653/05, lodged by Mr Bahruz Asadbeyli, Mr   Shirali Hamidov, Mr Emin Huseynli, Mr Hasan Mammadov, Mr   Saleh Aliyev and Mr Elshad Mammadov 14.     Mr B. Asadbeyli was the head of the Sumgayit branch of the Müsavat Party. Mr S.   Hamidov, Mr E.   Huseynli and Mr H.   Mammadov held various positions within the Müsavat Party. Mr S. Aliyev and Mr   E.   Mammadov were students at a public university and had no formal affiliation to any political party. 15.     Applicant H.   Mammadov died on 27 May 2008, after the events described below and after the present application had been lodged with the Court. His brother, Mr Islam Mammadov, expressed a wish to continue pursuing the application on his behalf. 1.     Arrest and detention of Mr E.   Mammadov and Mr S.   Aliyev 16.     Mr S.   Aliyev was arrested on 16 October 2003 during the dispersal of the demonstration by the police. He was charged with “organising or participating in public disorder” and “use of violence against public officials” under Articles 220 and 315.2 of the Criminal Code. On the same day the Nasimi District Court remanded him in custody for a period of three months. 17.     Mr E. Mammadov was also arrested on 16 October 2003. He states that the arresting police officers issued a “report on an administrative offence” ( inzibati xəta barədə protokol ), accusing him of non-compliance with police orders in Azadliq Square, an offence under Article 310.1 of the Code of Administrative Offences (“the CAO”). 18.     It appears from the documents submitted by the Government that on 18 October 2003 Mr E.   Mammadov was brought before the judge of the Narimanov District Court in connection with the charge under the CAO. According to the transcript of the hearing, the applicant admitted that he had not complied with police orders, and expressed remorse for his actions. On 18 October 2003 the Narimanov District Court convicted him under Article   310.1 of the CAO and sentenced him to fifteen days’ “administrative detention”. 19.     On 25 October 2003 Mr E.   Mammadov lodged an appeal seeking a reduction of his sentence on the grounds of family circumstances and the fact that he was a student. On the same day, 25 October 2003, the Court of Appeal reduced the sentence to nine days’ detention and, having regard to the fact that he had already been in detention for nine days, ordered his immediate release. 20.     According to Mr E.   Mammadov, no copies of decisions concerning these administrative proceedings were made available to him. 21.     However, soon after his release from “administrative detention”, Mr   E.   Mammadov was arrested again and charged with “organising or participating in public disorder” and “use of violence against public officials” under Articles 220 and 315.2 of the Criminal Code. In particular, he was accused of joining other participants in the demonstration in destroying public benches and asphalt and concrete revetments of pavements and roads, and of using stones as well as wooden and concrete debris obtained from the properties destroyed to assault police officers in Azadliq Square, in a manner posing a danger to their life and health. 22.     Mr E.   Mammadov was then remanded in custody pending criminal trial. 23.     During their pre-trial detention, both Mr S.   Aliyev and Mr   E.   Mammadov were expelled from the university. 2.     Arrest and detention of Mr B. Asadbeyli, Mr S.   Hamidov, Mr   E.   Huseynli and Mr H.   Mammadov 24.     On 17 October 2003 Mr B. Asadbeyli, Mr S.   Hamidov, Mr   E.   Huseynli and Mr H.   Mammadov were taken from their homes to the Sumgayit City Prosecutor’s Office for questioning. Several hours later they were allowed to go home but were instructed to come back the next morning. On 18 October 2003 they were taken to the Prosecutor General’s Office in Baku. When they arrived in Baku they were held in a police car for around nine to ten hours outside the building of the Prosecutor General’s Office. In the evening they were taken into the building and questioned. On both days they were questioned in the absence of a lawyer. 25.     Following the questioning, the four applicants were charged with “organising or participating in public disorder” and “use of violence against public officials”. On the same day Nasimi District Court, issuing separate detention orders for each of the four applicants, remanded them in custody for three months. Some of the applicants were represented by State ‑ appointed lawyers at the hearings. 26.     On 15 November 2003 the court replaced Mr S. Hamidov’s detention with a written undertaking not to leave his place of residence, and he was released pending trial. 3.     Investigation and trial 27.     According to the applicants, prior to their trial, several high-ranking state officials, including the Prosecutor General and the Minister of Internal Affairs, made public statements on television and in newspapers, referring to the participants in the demonstration of 16 October 2003 as “criminals” and promising that they would be punished. 28.     In the course of the investigation, following a request by the prosecution, the Nasimi District Court authorised the Prosecutor General’s Office to obtain from Azercell Telecom, a cellular network operator, detailed information on all mobile phone connections registered during the period from 11 a.m. to 5 p.m. on 16 October 2003 in the area around Azadliq Square, with the purpose of establishing whether various defendants were present in the square at the relevant time. However, according to Mr B.   Asadbeyli, he subsequently discovered that the case file contained print-outs of a “call details report” concerning all his private phone calls made over a longer time span and a larger geographical area than those authorised by the court. 29.     All the applicants were tried together by the Assize Court (this trial was referred to as “Trial Group 8” in the OSCE report cited below). In total, there were nine defendants in the case, including the applicants. 30.     The court relied on statements from a number of police officers as witnesses, who testified against the demonstrators. During the pre-trial investigation several police officers were shown photographs of the applicants and recognised them as demonstrators who had been throwing stones at police officers during the events of 16 October 2003. According to the applicants, they were not given an opportunity to meet these witnesses during the pre-trial investigation or to cross-examine them during the trial. According to the Government, the applicants were able to question all the witnesses who testified in court. 31.     By a judgment of 24 March 2004, the Assize Court convicted all the applicants as charged under Articles 220.1 and 315.2 of the Criminal Code. Mr B.   Asadbeyli, Mr S.   Hamidov, Mr H.   Mammadov and Mr   E.   Mammadov were given suspended sentences of four years and six months’ imprisonment and released immediately from the courtroom. Mr   E.   Huseynli and Mr S.   Aliyev were sentenced to three and two years’ imprisonment respectively. 4.     Appeals 32.     All the applicants appealed against the Assize Court’s judgment of 24   March 2004. The Court of Appeal examined all six appeals together. According to the applicants, they were not notified in advance of the time of the hearing at the Court of Appeal. Only Mr B.   Asadbeyli, Mr S.   Aliyev and the latter’s lawyer were able to attend the hearing. Mr B. Asadbeyli learned of the examination of the appeal by chance on the day the hearing was held. On 8 June 2004 the Court of Appeal dismissed the applicants’ appeals and upheld the Assize Court’s judgment of 24 March 2004. That court reduced the sentences of Mr E. Huseynli and Mr S.   Aliyev to two years and one year respectively. 33.     On 30 July 2004 Mr E.   Huseynli lodged a cassation appeal against the Court of Appeal’s judgment. According to the Government, on 9 March 2005 the Supreme Court informed the applicant of the date of the hearing; however, the applicant failed to request the court to ensure his presence at the hearing and both the applicant and his lawyer failed to appear at the hearing. However, according to the applicant, he did not receive any response from the Supreme Court to his cassation appeal. 34.     After his release from prison, on 28 March 2005 Mr E. Huseynli sent an inquiry to the Supreme Court concerning his appeal. On 31 March 2005 the Supreme Court sent him a letter informing him that his appeal was still pending and stating, inter alia : “... your cassation appeal will be examined.” 35.     According to Mr E. Huseynli, his appeal was never examined. 36.     On an unspecified date, Mr S.   Aliyev lodged a cassation appeal with the Supreme Court. In reply, on 3 September 2004 the Supreme Court sent him a letter stating the following: “The Supreme Court has received your cassation appeal. We would like to inform you that if you disagree with the judgment of the Court of Appeal, you may lodge a cassation appeal with the Supreme Court in accordance with Articles 407-413 of the Code of Criminal Procedure.” 37.     According to Mr S. Aliyev, his appeal was never examined. 38.     The other four applicants, Mr B.   Asadbeyli, Mr S.   Hamidov, Mr   H.   Mammadov and Mr E.   Mammadov, also lodged cassation appeals against the Court of Appeal’s judgment of 24 March 2004. The Supreme Court examined their appeals together and, on 19 October 2004, dismissed them, upholding the lower courts’ judgments. The full text of the Supreme Court’s decision was sent to the applicants on 2 November 2004. 39.     Mr S.   Aliyev served his full one-year prison sentence and was released on 16   October 2004. 40.     Following a presidential pardon decree, on 21 March 2005 Mr   E.   Huseynov was released from serving the remainder of his sentence of two years’ imprisonment. C.     Application no. 14729/05 lodged by Mr Shahin Gojayev 41.     The applicant was arrested on 16 October 2003 during the dispersal of the demonstration. 42.     After the arrest, he was taken to the Sabail District police station and later to the Baku Central police station. His family was not informed of his arrest. According to the applicant, at both police stations he was questioned in the absence of a lawyer. Interrogations were accompanied by ill ‑ treatment, in order to make him confess that he had actively participated in the disorder and had used violence against police, as well as to disclose the names of the organisers of the disorder. 43.     On 17 October 2003 the applicant was formally charged under Articles 220 and 315.2 of the Criminal Code. He was then taken to the Prosecutor General’s Office, where, he states, he was forced to sign self ‑ incriminatory statements. 44.     On the same day, a district court in Baku remanded the applicant in custody for three months. This decision was taken in the applicant’s absence. He was not informed of the decision and was not given a copy of it. He was still unrepresented by a lawyer at this stage. 45.     On 18 October 2003 the applicant’s parents were informed about the applicant’s arrest. On 23 October 2003 he was allowed to meet his lawyer for the first time. 46.     The trial at the Assize Court began on 30 January 2004 (Trial Group   3). The applicant was tried with six others, including another applicant in this case, Mr Ramiz Guliyev. During the first hearing, the applicant declared that he was not guilty and claimed that he had been forced to give self-incriminatory evidence during his first days in detention. He asked the court not to admit in evidence his statements made during the pre-trial investigation. Some of the other defendants made similar complaints and requests. 47.     Following the applicant’s allegations of ill-treatment in pre-trial detention, the court ordered a medical examination of the applicant. According to the forensic report of 14 February 2004, the forensic expert found no injuries which could have been inflicted at the time and in the circumstances alleged by the applicant. The applicant’s lawyer protested, claiming that he had not been informed about the time and place of the medical examination and was therefore unable to put questions to the medical expert. His request for a new medical examination was refused. The court found the applicant’s and other defendants’ allegations of ill-treatment unsubstantiated and admitted in evidence their statements given during pre ‑ trial investigation. 48.     During the trial, the court heard and relied on statements from over 100 prosecution witnesses (the great majority of whom were police officers and military personnel) who testified against all demonstrators in general, describing the public disorder which had taken place and characterising the demonstrators’ intentions and actions as violent. The court also heard two police officers who testified against the applicant in particular; they stated that they had seen the applicant throwing stones at police officers. The court also watched a video recording which allegedly identified the applicant as one of the demonstrators throwing stones and running around with a club and a shield in his hands. The court refused the applicant’s request for witnesses to be examined who would testify to violence by law-enforcement officers against peaceful demonstrators, and also refused to admit in evidence a video recording and photographs with scenes of police brutality against demonstrators. The court noted that this evidence did not contain any information specifically concerning the applicant, and was therefore irrelevant. 49.     On 4 March 2004 the Assize Court convicted the applicant of organising mass disorder and use of violence against the police, and sentenced him to four years’ imprisonment. 50.     The applicant lodged an appeal, complaining, inter alia, that the Assize Court had conducted the proceedings unfairly and had relied only on the evidence provided by police officers. On 29 April 2004 the Court of Appeal dismissed the appeal and upheld the Assize Court’s judgment. On 21 September 2004 the Supreme Court upheld the lower courts’ judgments. D.     Application no. 20908/05 lodged by Mr Ramiz Guliyev 51.     The applicant was an active member of the Müsavat Party. He was an election observer during the presidential elections of 15 October 2003. 52.     On 17 October 2003 the applicant was taken from his home to a police station and questioned. He told the police that during the events of 16   October 2003 he had not been present in Azadliq Square but had been in another part of the city. He was then allowed to leave the police station. 53.     However, on 21 October 2003 he was arrested and accused of resisting the police when he had been called to the police station to testify about the events of 16 October. The applicant was brought before a judge of the Yasamal District Court who, on the same day, found the applicant guilty of resistance to the police under Article 310.1 of the Code of Administrative Offences, and sentenced him to fifteen days’ “administrative detention”. 54.     On the same day, the applicant was taken to the Organised Crime Department of the Ministry of Internal Affairs (“the OCD”) where he was asked questions about his role in the events of 16 October 2003. According to the applicant, the interrogators beat him and burned him with cigarettes. He was held in the OCD until 31 October. He stated that throughout his detention he was ill-treated by various means, such as beating, crushing his fingers and toes, and burning his skin with cigarettes. 55.     On 28 October 2003 the applicant was taken to the Prosecutor General’s Office for interrogation, but refused to testify because his lawyer was absent. He was taken back to the OCD. 56.     The applicant was charged with “organising or participating in public disorder” and “use of violence against public officials”.   On 31   October 2003 the applicant was taken to an unspecified district court, which remanded him in custody for three months. The applicant was not represented by a lawyer during this hearing. Following this, the applicant was transferred from the OCD’s detention facility to Detention Facility no.   1. 57.     The applicant was tried at the Assize Court with six others (Trial Group 3), one of whom was another applicant in this case, Mr Shahin Gojayev (see section C. above). It appears that during the trial he was represented by a State-appointed lawyer. In his submissions to the court, the applicant maintained that he was not in Azadliq Square on 16 October 2003. 58.     Some of the facts concerning the trial and witnesses heard by the court have been described above (see paragraph 48 above).     As to the applicant’s particular situation, the court heard statements from several police officers and one civilian witness, who had been shown a photograph of the applicant during the pre-trial investigation and had identified him as one of the demonstrators who had been throwing stones at the police officers during the events of 16   October 2003. According to the applicant, those statements were false and hearsay evidence. The witnesses gave the same statements during the trial. According to the applicant, he was not given an opportunity to confront the witnesses during the pre-trial investigation. According to the Government, he was given an opportunity to confront them at the trial hearings. 59.     According to the applicant, during the trial, he requested the court to hear three witnesses who could confirm that he was not in Azadliq Square on 16 October 2003. However, the court heard only one of these witnesses and refused to hear the other two. 60.     The applicant also complained before the Assize Court that he had been ill-treated during his detention in the OCD’s detention facility. The court requested that the applicant be medically examined by a forensic expert. The forensic report of 24 February 2004 found a dark bruise on one of the fingers of the applicant’s left hand and four dark spots on his belly. The expert estimated that the bruise on the finger had most likely been caused by a hard blunt object about one month before, while the dark spots on the belly could be considered marks of burns which had been inflicted about two months before. The court also had regard to a letter from Detention Facility No. 1, dated 24 February 2004, stating that no injuries had been observed on the applicant’s body when he was transferred to Detention Facility No. 1 on 31 October 2003. The court concluded that the applicant’s allegations that he had been ill-treated in the OCD’s detention facility during the period between 21 October and 31 October 2003 were not supported by the available evidence. 61.     On 4 March 2004 the Assize Court found the applicant guilty of both the charges against him and sentenced him to five years’ imprisonment. 62.     Following an appeal by the applicant, on 29 April 2004 the Court of Appeal upheld the Assize Court’s judgment of 4 March 2004. On 23   November 2004 the Supreme Court upheld the lower courts’ judgments. 63.     Following a presidential pardon decree of 21 March 2005, the applicant was released from serving the remainder of his sentence. E.     Application no. 26242/05 lodged by Mr Sadig Dashdamirli 64.     The applicant was a member of the Müsavat Party. During the presidential elections of 15 October 2003 he was the chairman of the Gabala regional headquarters for I.   Gambar’s electoral campaign. 65.     The applicant was in Azadliq Square on 16 October 2003. He went back to Gabala on the same day, after the demonstration. In the morning of 17 October he was taken to a local police station and questioned. In the evening of 17 October he was taken to Baku, where he was detained in a police station until the next day. 66.     On 18 October 2003 the applicant was formally charged with “organising or participating in public disorder” and “use of violence against public officials”. On the same day Nasimi District Court remanded the applicant in custody for three months. During the court hearing, the applicant was represented by a State-appointed lawyer whom he had not met before. The lawyer did not introduce himself to the applicant and did not talk to him. The applicant did not meet this lawyer again after the hearing of 18 October 2003. 67.     The applicant was tried by the Assize Court with six others (Trial Group 5). It appears that he was represented by a lawyer during the trial. In his submissions to the court, the applicant denied that he had personally taken part in any violence during the events of 16 October 2003, and claimed that he had left Azadliq Square as soon as he saw the first signs of confrontation between demonstrators and police. The court relied on statements from more than 200 prosecution witnesses, mostly police officers and internal forces soldiers, who testified against all the demonstrators as a group, describing the public disorder which took place. During the pre-trial investigation, one police officer and one soldier were shown a photograph of the applicant and recognised him as one of the demonstrators who had been throwing stones at the police officers during the events of 16 October 2003. According to the applicant, he was not given the opportunity to meet these witnesses during the pre-trial investigation or to cross-examine them during the trial. According to the Government, the applicant’s lawyer had questioned them at the trial hearings. 68.     On 5 March 2004 the Assize Court found the applicant guilty of both the charges against him and sentenced him to four years and six months’ imprisonment. 69.     On 27 April 2004 the Court of Appeal upheld this judgment. It appears from the case file that the applicant’s lawyer, but not the applicant himself, was present at the appellate hearings. On 21 December 2004 the Supreme Court upheld the lower courts’ judgments. The applicant was sent the full text of the Supreme Court’s decision on 5 January 2005. According to the applicant, neither he nor his lawyer were present at any of the appeal hearings. 70.     In accordance with a presidential pardon decree of 19 March 2005, the applicant was released from serving the remainder of his prison sentence. Despite his early release, in accordance with Article 83 of the Criminal Code, the applicant’s conviction would remain on his criminal record for a period of six years after he was released. 71.     In July 2005 the applicant made an application to the Gabala District Court for early expunging of the conviction from his criminal record, in accordance with Article 83.5 of the Criminal Code, taking into account his good behaviour in prison and after release. On 26 July 2005 the Gabala District Court refused this application. The Court of Appeal and the Supreme Court upheld this decision on 31 August 2005 and 22 March 2006 respectively. 72.     According to the applicant, he had intended to stand as a candidate in the parliamentary elections of 6 November 2005. However, under the electoral law, his recent conviction record precluded him from doing so. F.     Application no. 36083/05 lodged by Mr Ilgar Allahverdiyev 73.     The applicant was the chairman of several non-governmental organisations dealing with issues of civil society and freedom of religion, a chief editor of a magazine and an information portal, and a religious leader of a small congregation of Muslims. During the presidential elections of 15   October 2003, he publicly supported I.   Gambar. 74.     The applicant was in Azadliq Square on 16 October 2003. According to him, he left the square prior to the eruption of violence between the demonstrators and the police, and observed the subsequent events from a distant location. 75.     On 17 October 2003 the applicant was leading public prayers in Juma Mosque. During the prayers, a number of police officers surrounded the mosque with the intention of arresting the applicant. The applicant managed to avoid arrest with the aid of some “members of the international community” in Baku who, according to the applicant, included representatives of the OSCE, the Council of Europe and some foreign embassies. He was taken to the Norwegian embassy, where he remained for three days. 76.     According to the applicant, on the same day, state television reported that all the “organisers” of the public disorder of 16 October 2003 had been arrested, with the exception of the applicant and one other person. 77.     The applicant left the Norwegian embassy after receiving guarantees that “no unlawful actions would be taken against him”. Shortly thereafter, he attended a conference in Georgia. According to the applicant, during his stay in Georgia, it was reported on State television that “having committed a crime, he fled the country”. According to the applicant, a number of government officials, including the Prosecutor General, were featured in those television reports. 78.     On 1 December 2003 the applicant was summoned to the Prosecutor General’s Office. After some questioning, he was arrested in connection with the events of 16 October 2003. 79.     On 3 December 2003 the applicant was charged with “organising or participating in public disorder” and “use of violence against public officials”. On same day, at around 7 p.m., the Nasimi District Court remanded him in custody for three months. 80.     During the first three days of detention the applicant was kept in a cold single cell, where he had to sleep on a metal bed without a mattress. He was then transferred to a cell which had previously been used for convicts awaiting the execution of their death sentence. 81.     On 5 December 2003 the Prosecutor General sent a letter to the Head of the Baku City Executive Authority in connection with the alleged unlawfulness of the use of Juma Mosque by the applicant’s religious congregation, a matter which was not directly related to the criminal proceedings in the present case. However, among other things, the letter also contained the following statements: “The Prosecutor General’s Office is conducting a criminal investigation under Articles 220.1, 233 and 315.2 in connection with the mass disorder in the city of Baku on 15 and 16 October 2003 ... It has been determined that Ilgar Allahverdiyev took part in the mass disorder in Baku.” 82.     The applicant was tried by the Assize Court with eight other defendants (Trial Group 13). The court relied on statements from a large number of police officers, who testified against the defendants and the demonstrators in general. Most of those statements did not relate specifically to the applicant. Two police officers testified that they had seen the applicant at Azadliq Square and that they had heard from someone that the applicant had instructed some of his followers to go to the square. The court also relied on the pre-trial deposition of a witness who failed to appear at the court hearings, despite the applicant’s requests to cross-examine him. According to the applicant, written depositions from some prosecution witnesses were identical, word for word. The court refused to hear the majority of witnesses who had been called by the applicant to testify on his behalf. 83.     On 2 April 2004 the Assize Court convicted the applicant under Articles 220.1 and 315.2 of the Criminal Code. He received a suspended sentence of five years’ imprisonment and was released immediately from the courtroom. 84.     On 25 May 2004 the Court of Appeal upheld this judgment. According to the applicant, the appellate hearing took place in the presiding judge’s office in the applicant’s absence, despite his request for the hearing to be postponed owing to his inability to attend because of illness. The hearing lasted a few minutes. 85.     On 5 April 2005 the Supreme Court dismissed the applicant’s cassation appeal. According to the applicant, the hearing in the Supreme Court lasted six minutes. G.     Application no. 16519/06 lodged by Mr Yashar Jafarli 86.     The applicant was in Azadliq Square on 16 October 2003. In the evening of the same day he was arrested after he had returned home from the demonstration, and was taken to a local police station. He was then questioned, with no lawyer present, and detained at the police station until the next day. 87.     On 17 October 2003 the applicant was formally charged with “organising or participating in public disorder” and “use of violence against public officials”. On the same day the Nasimi District Court remanded the applicant in custody for three months. During the court hearing the applicant was represented by a State-appointed lawyer he had not met before. 88.     The applicant was tried at the Assize Court with seven others (Trial Group 11). It appears that he was represented by another State-appointed lawyer during the trial. In his submissions to the court, the applicant denied taking part personally in any violence that had taken place during the events of 16 October 2003, and claimed that he had left Azadliq Square as soon as he saw the first signs of confrontation between demonstrators and the police. 89.     During the trial, the Assize Court relied on statements from a number of police officers and internal forces soldiers as witnesses who testified against the demonstrators. Several police officers testified that they had seen the applicant in Azadliq Square. During the pre-trial investigation two police officers had been shown a photograph of the applicant and recognised him as one of the demonstrators throwing stones at the police officers during the events of 16 October 2003. These police officers gave the same testimony during the trial. According to the applicant, he was not given the opportunity to meet these witnesses during the pre-trial investigation, or to cross-examine them during the trial. 90.     On 19 March 2004 the Assize Court found the applicant guilty of both the charges against him and sentenced him to five years’ imprisonment, suspended, with a four-year probation period. The court ordered that he be released after the conviction became final following any appeals. 91.     Following an appeal by the applicant, on 24 May 2004 the Court of Appeal upheld the Assize Court’s judgment of 19 March 2004. On 30   August 2005 the Supreme Court upheld the lower courts’ judgments. The applicant was sent the full text of the Supreme Court’s decision on 13   October 2005. 92.     Although the applicant was released because the sentence was suspended, his conviction would remain on his criminal record for a period of six years. According to the applicant, he had intended to stand as a candidate for the parliamentary elections of 6 November 2005. However, under the electoral law, his recent conviction record precluded him from doing so. 93.     In July 2005 the applicant made an application to the Nasimi District Court for early expunging of the conviction from his criminal record. On 15   July 2005 the Nasimi District Court refused this application, noting that in accordance with the Criminal Code it was only possible for such a conviction to be expunged after the expiry of at least half the probation period, which in the applicant’s case had not yet happened. The Court of Appeal and the Supreme Court upheld this decision on 2   September 2005 and 23 March 2006 respectively. The full text of the Supreme Court’s decision of 23 March 2006 was sent to the applicant on 11   April 2006. II.     RELEVANT DOMESTIC LAW A.     Code of Administrative Offences 94.     Article 310 of the CAO provides: Article 310.     Deliberate non-compliance with the lawful order of a police officer or military serviceman “310.1.     Deliberate non-compliance [by individuals] with the lawful orders of a police officer or military serviceman while the latter is carrying out his duties of protection of public order – is punishable by a fine ... or, if that sanction is inadequate in the circumstances of the case and taking into account the character of the offender, by administrative arrest for a term of up to fifteen days.” B.     Criminal Code 95.     Article 220 of the Criminal Code provides: Article 220.     Mass disorder “220.1.     Organising or participating in mass disorder involving acts of violence, plunder, arson, destruction of property, use of firearms or explosives, or armed resistance to public officials – is punishable by imprisonment for a period of four to twelve years. 220.2.     Inciting active resistance to lawful orders of public officials and to mass disorder and violence against citizens – is punishable by imprisonment for a period of up to three years. 96.     Article 315 of the Criminal Code provides: Article 315.     Resistance to or use of violence against public officials “315.1.     Use of vi