CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 2 mars 2023

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AZERBAIJAN (Applications nos. 13509/12 and 64801/12)             JUDGMENT   STRASBOURG 2 March 2023   This judgment is final but it may be subject to editorial revision. In the case of Mukhtarli and Aslanli v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Krzysztof Wojtyczek , President ,   Lətif Hüseynov,   Erik Wennerström , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the applications (nos. 13509/12 and 64801/12) 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 two Azerbaijani nationals (“the applicants”), represented by different lawyers, on various dates, all indicated in the appended table; the decision to give notice of the complaints concerning Articles 5 and   6 of the Convention in respect of both applications and the complaint concerning Article 11 of the Convention in respect of application no.   64801/12 to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, and to declare the remainder of the applications inadmissible; the parties’ observations; Having deliberated in private on 7 February 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The applications concern the administrative arrest, detention, and subsequent conviction of the applicants, prior to a demonstration, on charges of minor hooliganism. Application no. 13509/12 2.     On 17 April 2011 the applicant in application no. 13509/12 (“the first applicant”), who was a reporter at the time, was arrested before a demonstration of opposition to the government. A record of his administrative arrest and an administrative-offence report were drawn up, indicating that he had been arrested on 17 April 2011 for failure to comply with a lawful request of the police to stop swearing in the street. He was charged with the administrative offence of minor hooliganism under Article   296 of the Code of Administrative Offences (“the CAO”) and was kept in police custody overnight. 3.     On 18 April 2011 the first applicant was brought before the Sabail District Court, which found him guilty under Article 296 of the CAO and sentenced him to a fine in the amount of 50 Azerbaijani manats (AZN – approximately 50   euros (EUR) at the material time). The domestic courts based their decision solely on the administrative-offence report and on two witness statements from the police officers who had carried out his arrest. 4.     The first applicant appealed against his administrative conviction, claiming that his arrest and detention had been unlawful and unjustified, that the District Court’s decision had not been sufficiently reasoned and that he had not been provided with the administrative-offence report or any other document so that he could prepare his defence. 5.     By a final decision of 19 May 2011, the Baku Court of Appeal dismissed the appeal as unsubstantiated. Application no. 64801/12 6.     The applicant in application no. 64801/12 (“the second applicant”) was the chairman of the Central Executive Office of the Musavat Party at the time of the events. On 24 May 2012 opposition groups were planning to hold a demonstration and the second applicant was planning to participate in the event. At 9.55 a.m. on 24 May 2012 the second applicant was walking with his grandson when he was stopped by two plainclothes police officers and invited to the police station. 7.     The second applicant went with the police officers to the police station where he was held for around seven hours and was asked various questions. At 5   p.m. he was brought before the Binagadi District Court, which found him guilty of the administrative offence of failure to comply with a lawful request of a police officer under Article 310 of the CAO and sentenced him to a fine of AZN   20 (approximately EUR 20 at the material time). 8.     The second applicant appealed against his administrative conviction, claiming that he had been unlawfully deprived of his liberty, that the District Court had not given reasons for its decision and that he had been arrested to prevent him from participating in the demonstration of 24 May 2012. 9.     By a final decision of 21 June 2012, the Baku Court of Appeal dismissed his appeal as unsubstantiated. Complaints 10.     The applicants complained that their rights protected under Article 5 §   1 and Article 6 §§ 1 and 3 of the Convention had been breached by the domestic authorities. In addition, the second applicant complained under Article 11 of the Convention of a violation of his right to freedom of assembly. THE COURT’S ASSESSMENT JOINDER OF THE APPLICATIONS 11.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. The Government’s objections as regards the admissibility of the applications 12.     The Government objected that the applicants had not exhausted domestic remedies as regards their complaints concerning Articles 5 and 11, since they had raised their complaints only during the administrative proceedings against them. According to the Government, the applicants should have initiated separate proceedings in relation to the alleged unlawful detention and interference with the right to freedom of assembly. However, the Court notes that the Government failed to indicate the specific remedy that the applicants should have exhausted in separate proceedings. In any event, in the present case the applicants raised their complaints before the domestic courts and the domestic courts addressed those complaints in their decisions. The Court therefore dismisses the Government’s objection as to non-exhaustion of domestic remedies. 13.     The Government also submitted that the applicants had not suffered significant disadvantage as a result of the alleged infringement of the Convention, as the amount of the fines was financially insignificant. However, the Court notes that regardless of the amount of the penalty imposed on the applicants, in the light of the prominent place that the right to liberty has in a democratic society it has so far rejected the application of the “no significant disadvantage” admissibility criterion in relation to complaints under Article 5 (see Zelčs v. Latvia , no. 65367/16, § 44, 20 February 2020). It does not see any reason to depart from that finding in the present case. Accordingly, it dismisses the Government’s objection. 14.     The Court further notes that the applications are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 15.     The applicants alleged that the deprivation of their liberty had been unlawful because the authorities had failed to demonstrate the existence of any exceptional circumstances justifying their administrative arrest and detention under domestic legislation. 16.     The Court refers to the general principles established in its case-law and set out in Nasirov and Others v. Azerbaijan (no.   58717/10, §§   46 ‑ 47, 20   February 2020). 17.     It further notes that the legal issues raised by the applicants under Article 5 of the Convention in the present case are similar to those examined in Nasirov and Others (cited above, §§ 28-30) and concern the same domestic legislation. 18.     In particular, as in the above-mentioned case, in the present case neither the domestic authorities nor the Government provided any specific reasons justifying the applicants’ administrative arrest, nor did they objectively indicate that without such a measure it would have been “impossible” to achieve the goals laid down in the relevant legislation such as, for example, ensuring the expeditious and correct examination of their cases, although these were essential elements pertaining to the legality of their deprivation of liberty (ibid., § 50). 19.     The Court concluded in Nasirov and Others (cited above, §§   51 ‑ 52) that the deprivation of the applicants’ liberty had been unjustified, arbitrary, and unnecessary irrespective of its duration, and it finds no reason to depart from that conclusion in the present case. 20.     It follows that there has been a violation of Article 5 § 1 of the Convention. ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION 21.     The applicants alleged that they had not had a fair hearing in the domestic proceedings since they had not been given sufficient time or facilities to prepare their defence and the domestic courts’ decisions had lacked adequate reasoning. Additionally, the second applicant complained that he had not been provided with the opportunity to defend himself through effective legal assistance. 22.     The Court notes at the outset that there is a significant degree of similarity between the legal issues raised by the applicants under Article 6 of the Convention in the present case and previous cases against Azerbaijan concerning the administrative conviction of applicants under the CAO (see Gafgaz Mammadov v. Azerbaijan , no. 60259/11, §§ 74-96, 15   October 2015; Huseynli and Others v. Azerbaijan , nos. 67360/11 and 2 others, §§   110 ‑ 35, 11 February 2016; Savalanli v. Azerbaijan [Committee], no.   30608/14, §§   20 ‑ 24, 14 January 2021; and Ibrahimov v.   Azerbaijan [Committee], no.   39466/16, §§ 18-20, 14 January 2021). 23.     As in those previous cases, the applicants in the present case were held in police custody without any contact with the outside world and shortly afterwards (after spending several hours in police custody) were brought before a court   and convicted. The domestic courts relied solely on written reports and on the statements given by the police officers who drew up those reports, without giving any further reasons for their decisions. 24.     In this connection the Court notes that the witnesses at both hearings were the very same police officers who had arrested the first applicant and that no witness was questioned in the case of the second applicant. It follows that the domestic courts merely accepted the police’s version of events and the charges as presented in the relevant police reports without considering any other explanations, addressing the serious allegations raised by the applicants, or attempting in some other way to clarify the disputed facts. 25.     The Court therefore finds that the administrative proceedings in the present case, considered as a whole, were not in conformity with the guarantees of a fair trial under Article 6 § 1 of the Convention (see Gafgaz   Mammadov, § 96, and Huseynli and Others , § 135, both cited above). 26.     Having regard to the above finding of a violation of Article 6 § 1 of the Convention, the Court finds it unnecessary to examine on the merits the issue of whether the second applicant’s refusal of legal assistance at the pre ‑ trial stage of the proceedings and/or at the trial constituted an unequivocal waiver of the right to a lawyer. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION IN RESPECT OF THE second APPLICANT 27.     The second applicant complained under Article 11 of the Convention that he had been arrested and convicted by the authorities to prevent him from participating in the peaceful demonstration that had been planned for 24   May 2012. 28.     The submissions made by the second applicant and the Government were identical to those made by the relevant parties in respect of similar complaints raised in the cases of Huseynli and Others (cited above, §§ 81-83) and Huseynov and Others v. Azerbaijan (nos. 34262/14 and 5   others, §§   43 ‑ 44, 11 February 2016). 29.     Having regard to the facts of the present case and their clear similarity to those of Huseynli and Others (cited above, §§ 97-101) and Huseynov and   Others (cited above, §§   45 ‑ 51) on all relevant and crucial points, the Court sees no special circumstances that could compel it to deviate from its findings in those judgments, and finds that the second applicant’s right to freedom of assembly was breached for the same reasons as those outlined in the above ‑ mentioned judgments and in Damirov and Others v. Azerbaijan ([Committee], nos. 38158/12 and 5 others, §§   16-17, 3 December 2020). 30.     There has accordingly been a violation of Article 11 of the Convention in respect of the second applicant. APPLICATION OF ARTICLE 41 OF THE CONVENTION 31.     The first applicant claimed 8,000 euros (EUR) and the second applicant claimed EUR   9,000 in respect of non-pecuniary damage; the first applicant claimed EUR   3,300 and the second applicant claimed EUR   3,660 for the costs and expenses incurred in the proceedings before the Court. Both applicants submitted contracts with their respective representatives in support of their claims and asked that any compensation for legal costs be paid directly into the representatives’ bank accounts. 32.     The Government submitted that the applicants’ claims were unsubstantiated and excessive. 33.     The Court awards each applicant EUR   3,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable on those amounts. 34.     Having regard to the documents in its possession, the Court considers it reasonable to award each applicant the amount of EUR 500 covering costs and expenses under all heads, to be paid directly into the bank account of their respective representatives. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the applications admissible; Holds that there has been a violation of Article 5 § 1 of the Convention in respect of both applicants ; Holds that there has been a violation of Article 6 § 1 of the Convention in respect of both applicants ; Holds that there has been a violation of Article 11 of the Convention in respect of the applicant in application no. 64801/12; Holds that there is no need to examine the merits of the applicant’s complaint under Article 6 § 3 of the Convention in application no.   64801/12; Holds (a)   that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)   EUR 3,000 (three thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)   EUR 500 (five hundred euros) to each applicant, plus any tax that may be chargeable to them, in respect of costs and expenses, to be paid directly into their respective representatives’ bank accounts; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 2 March 2023, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Liv Tigerstedt   Krzysztof Wojtyczek   Deputy Registrar   President     APPENDIX No. Application no. Date of introduction Applicant Year of Birth Place of Residence Represented by 1. 13509/12 19/11/2011 Afgan Sabir oglu MUKHTARLI 1974 Zagatala Rashid HAJILI Fariz NAMAZLI 2. 64801/12 09/08/2012 Gulaga Gulam oglu ASLANLI 1952 Baku Asabali MUSTAFAYEV Ruslan MUSTAFAZADE