CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 24 octobre 2024

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AZERBAIJAN (Application no. 43164/10)             JUDGMENT           STRASBOURG 24 October 2024       This judgment is final but it may be subject to editorial revision. In the case of Babali and Others v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Raffaele Sabato , President ,   Lətif Hüseynov,   Alain Chablais , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   43164/10) 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”) on 14 July 2010 by five Azerbaijani nationals (“the applicants”), whose relevant details are listed in the appended table and who were represented by Mr   I.   Aliyev and Ms   N.   Aliyeva, lawyers practising in Azerbaijan; the decision to give notice of the application to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov; the parties’ observations; Having deliberated in private on 3 October 2024, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case mainly concerns a refusal by a local executive authority to authorise a public assembly which the applicants intended to hold and their alleged lack of access to a court. 2.     The applicants planned to hold an assembly on 28 September 2008 in Baku. On 16 September 2008 the applicants gave prior notice to the Baku City Executive Authority (“the BCEA”) about the assembly. They informed the BCEA of its date, time, place and purpose. According to the notice, the assembly was scheduled to take place from 3 p.m. to 5 p.m. on 28   September 2008 at a stadium in the Bibiheybat settlement of Baku. 3.     The applicants submitted that the assembly was intended to be peaceful, and its purpose was to protest against allegedly unfair court decisions concerning their ownership of shares in a private company. 4 .     By a letter of 25 September 2008 the BCEA refused to authorise the assembly, noting that it was “impractical” ( məqsədəuyğun hesab edilmir ), and advised the applicants “not to hold a protest but to apply to the appropriate authorities about the issues in question”. 5.     It appears that the planned assembly was eventually not held. 6.     On 24 November 2008 the applicants brought an action in the Sabail District Court against the BCEA, complaining that their right to freedom of assembly had been violated. By a judgment of 29 December 2008, the court dismissed the applicants’ complaint, accepting the BCEA’s findings, as indicated in its letter (see paragraph 4 above), as valid reasons for refusing to authorise the assembly. 7.     The applicants appealed. By a judgment of 19 May 2009, the Baku Court of Appeal dismissed the applicants’ appeal and upheld the judgment of the Sabail District Court of 29 December 2008. 8.     In order to lodge a cassation appeal with the Supreme Court the applicants were required by law to be represented by a lawyer (an advocate). On 13 July 2009 the applicants lodged a request with the Baku Court of Appeal, asking for State-funded legal assistance because they did not have sufficient means to hire a lawyer. By a decision of 5 August 2009, the Court of Appeal granted the applicants’ request for a State-funded lawyer. The applicants received that decision on 17 August 2009. 9.     On an unspecified date in September 2009 a State-funded lawyer was appointed for the applicants by the Azerbaijani Bar Association. 10.     On 29 September 2009 the applicants, represented by that lawyer, lodged a cassation appeal against the judgment of 19 May 2009. 11 .     The cassation appeal was lodged after the expiry of the two-month time-limit set forth in Article   405.0.1 of the Code of Civil Procedure. The applicants requested therefore that it be admitted for consideration on the merits, on the grounds that the State-funded lawyer had been appointed belatedly. 12 .     By a decision of 12 October 2009, the Baku Court of Appeal found that the cassation appeal was inadmissible because the above-mentioned procedural time-limit had expired (see paragraph 11 above). The appellate court calculated the time-limit as running from 6 June 2009, the date on which the applicants had received the judgment of 19 May 2009. The court, however, said nothing to the effect that the applicants’ request to be appointed a State-funded lawyer had been lodged belatedly or that the applicants had failed to demonstrate due diligence in lodging their request. 13.     The applicants appealed against the decision of 12 October 2009. On 15   January 2010 the Supreme Court upheld the decision of the Court of Appeal on the same grounds. 14 .     The applicants complained before the Court that by not admitting their cassation appeal for examination on the merits on account of non-compliance with the two-month time-limit, the domestic courts had violated their right of access to a court, in breach of Article 6 of the Convention. 15 .     They also complained that the refusal to authorise the assembly had been unlawful and not necessary in a democratic society, in breach of their right to freedom of assembly under Article 11 of the Convention. 16 .     Lastly, after the communication of the case the applicants’ representative, Mr   Aliyev, introduced a new complaint on behalf of the applicants, arguing that the seizure from his office of the entire case file relating to the applicants’ pending case before the Court, together with all the other case files, had amounted to a hindrance to the exercise of the applicants’ right of individual petition under Article 34 of the Convention. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 17.     The applicants maintained their complaint as summarised in paragraph 14 above. 18.     The Government argued that the applicants had failed to comply with the statutory time-limit when they had lodged their cassation appeal, as had been established by the domestic courts, and that there had been no breach of the applicants’ right of access to a court. 19.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 20.     The general principles concerning the right of access to a court have been summarised in Siałkowska v. Poland (no. 8932/05, §§ 101-07, 22   March 2007), Staroszczyk v. Poland (no. 59519/00, §§ 123-29, 22 March 2007)   and Shamoyan v. Armeni a (no. 18499/08, §§ 28-31, 7 July 2015), among many other authorities. 21.     The Court emphasises, in particular, that it is for the Contracting States to decide how they should comply with the fair hearing obligations arising under the Convention. However, the Court must satisfy itself that the method chosen by the domestic authorities in a particular case is compatible with the Convention. In discharging the obligation to provide parties to civil proceedings with legal aid, when such an obligation is provided for by domestic law, the State must, moreover, display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6. It is also essential for the legal-aid system to offer individuals substantial guarantees to protect those having recourse to it from arbitrariness (see Siałkowska , §§ 106-07; Staroszczyk , §§ 127-29; and Shamoyan , § 30, all   cited above). 22.     The domestic law required the applicants to be represented by a lawyer in order to lodge a cassation appeal with the Supreme Court. It is clear from the case file that the applicants received the decision granting their request for a State-funded lawyer on 17 August 2009, that is, after the expiry of the time-limit for lodging a cassation appeal. 23.     When they asked the domestic courts to admit the cassation appeal for consideration on the merits, the applicants explained that the reason the appeal had been lodged out of time was because the State-funded lawyer had only been appointed after the expiry of the time-limit. However, the domestic courts did not reply to the applicants’ arguments for resetting the time-limit and admitting the cassation appeal for examination on the merits, nor did they address the issue of whether the applicants had lodged their request to be appointed a State-funded lawyer belatedly or whether they had failed to demonstrate due diligence by not having lodged the request within a reasonable time (see paragraph 12 above). In the Court’s view, the domestic courts adopted a very formalistic approach to the admissibility of the applicants’ cassation appeal, and that left the applicants with no realistic opportunity to have their case brought and argued before the Supreme Court (compare, mutatis mutandis , Georgiy Nikolayevich Mikhaylov v. Russia , no.   4543/04, §§ 56-57, 1 April 2010, and contrast, mutatis mutandis , Chorobik v. Poland [Committee], no.   45213/07, §§ 29-34, 3 May 2012). 24.     There has accordingly been a viola tion of Article 6 § 1 of the Convention. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 25.     The applicants also raised other complaints (see paragraphs 15-16 above) which are covered by the well ‑ established case-law of the Court. These complaints are not manifestly ill-founded within the meaning of Article   35 §   3   (a) of the Convention, nor are they inadmissible on any other grounds. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they disclose a violation of Articles 11 and 34 of the Convention in the light of its findings in Mustafa Hajili and Others v.   Azerbaijan , nos.   69483/13 and 2 others, §§ 59-69, 6   October 2022, for the violation of Article 11, and Annagi Hajibeyli v.   Azerbaijan , no. 2204/11, §§ 64-79, 22   October 2015, for the violation of Article 34. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26.     The applicants claimed jointly 35,000 euros (EUR) (EUR   7,000 for each applicant) in respect of non-pecuniary damage and EUR   2,705 in respect of costs and expenses (EUR 2,200 for legal services and EUR 505 for translation services) incurred before the domestic courts and the Court. 27.     The Government submitted that the claims were unsubstantiated and excessive and that the sum of EUR 1,500 would constitute sufficient reparation in respect of the non-pecuniary damage allegedly suffered. The Government asked the Court to adopt a “strict approach” in respect of the claim for costs and expenses, as it was not reasonable as to quantum. 28.     Ruling on an equitable basis, the Court awards the applicants jointly EUR 5,800 in respect of non-pecuniary damage, plus any tax that may be chargeable. 29.     Having regard to the documents in its possession, the Court considers it reasonable to award the applicants jointly EUR 1,500 covering costs under all heads, plus any tax that may be chargeable to the applicants. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds that there has been a violation of Article 11 of the Convention; Holds   that the respondent Government have failed to comply with their obligations under Article 34 of the Convention; Holds (a)   that the respondent State is to pay the applicants jointly, 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 5,800 (five thousand eight hundred euros), plus any tax that may be chargeable, in respect of non ‑ pecuniary damage; (ii)   EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (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 24 October 2024, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Liv Tigerstedt   Raffaele Sabato   Deputy Registrar   President   APPENDIX List of applicants: No. Applicant’s name Year of birth Nationality Place of residence 1. Hafiz Arkoyun oglu BABALI 1971 Azerbaijani Sumgayit 2. Mammad Ahmad oglu AHMADOV 1937 Azerbaijani Baku 3. Fakhraddin Hasan oglu ALLAHVERDIYEV 1955 Azerbaijani Baku 4. Jahangir Gara oglu ISMAYILOV 1960 Azerbaijani Sumgayit 5. Vugar Chayli oglu ISMAYILOV 1971 Azerbaijani Baku