CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 avril 2015

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They are represented before the Court by Mr R. Mustafazade and Mr A. Mustafayev, lawyers practising in Azerbaijan. The circumstances of the cases The facts of the cases, as submitted by the applicants, may be summarised as follows. 1.     Background information The applicant in application no. 78162/13 is a member of an opposition party. The other applicants are opposition-oriented activists. On 12 October 2013 an opposition group comprised of several parties organised a demonstration. The demonstration was authorised by the Baku City Executive Authority. It was intended to be peaceful and was conducted in a peaceful manner. The participants protested against election irregularities and fraud during the presidential elections of 9 October 2013. On 12 October 2013 the Baku City Chief Police Office published its official information that the demonstration of 12 October 2013 was held without serious violations of public order. 2.     Case-specific facts   (a)     Application no. 78162/13 lodged on 26 November 2013 by Turkel Alisoy The applicant participated in the demonstration of 12 October 2013. After the demonstration ended he and several other participants walked towards the Inshaatchilar metro station. According to the applicant, near the entrance to the station he saw police officers who were pressing people to disperse quickly. Seeing this, the applicant warned some woman that she should leave quickly otherwise she risked to be injured by the police. One of the police officers overheard the applicant and became irritated. He twisted the applicant’s arms and kneed him in the face. Then he handed over the applicant to other police officers, who took him to a police car. Afterwards the applicant was moved to a bus used for the transportation of detained persons to a police station. According to the applicant, he was placed in the bus at around 6 or 7   p.m., and he was kept there for half an hour together with other persons. Then the applicant was taken to the Yasamal District Police Office and kept there for approximately four hours. The same day an “administrative offence report” ( inzibati xəta haqqında protokol ) was drawn up in respect of the applicant. The police informed the applicant that after his signing the report and paying an “administrative” fine of 51 Azerbaijani manats (AZN) he would be released. After signing the report, he was released. It is not clear whether the applicant paid the fine. At around 2 or 3 p.m. on 14 October 2013 a police officer, A., called the applicant and told him that the senior officers of the Yasamal District Police Office wanted to meet him. At around 4 p.m. the applicant came to the police office. After approximately two to three hours a police officer, E., informed the applicant that an administrative fine was not considered as sufficient punishment for his offence and therefore he had to appear before a court for consideration of his case. An administrative offence report in respect of the applicant was redrafted. The redrafted report stated that on 12   October 2013, after the authorised demonstration ended, the applicant had breached public order by shouting and using inappropriate expressions at the entrance to the Inshaatchilar metro station. The applicant was never served with a copy of this report or with other materials in his case-file. The applicant was not given an opportunity to contact his relatives; and his rights were not properly explained to him. The applicant insisted on hiring a lawyer of his own choice, but the police officers disregarded his request. Thinking that the representation by a State-funded lawyer would be ineffective, the applicant refused the assistance of a State-funded lawyer. The same day, at around 7 p.m., the applicant was brought before the Yasamal District Court. The court convicted the applicant under Article 296 (minor hooliganism) of the Code of Administrative Offences (“the CAO”) and sentenced him to fifteen days’ “administrative” detention. The hearing before the first-instance court was very brief. The applicant was not given an opportunity to hire a lawyer of his own choice. The court questioned no one except for the applicant himself. The applicant contested the police’s version of events and stated that he had not committed any offence. The court disregarded the applicant’s statements. The court’s decision was based heavily on the administrative offence report drawn up in the applicant’s respect. According to the applicant, without adopting an official decision in accordance with the domestic legislation the first-instance court de facto closed its hearing to members of the public (including the applicant’s relatives and mass media representatives). The applicant lodged an appeal before the Baku Court of Appeal, arguing that his arrest had been unlawful and that the hearing before the first ‑ instance court had not been fair. He also complained that his arrest and conviction was in violation of his right to freedom of assembly and freedom of expression. In order to establish factual circumstances of the case, he requested the Baku Court of Appeal to demand and examine video recordings by security cameras located at the place where administrative offence allegedly happened; and to examine photographs and video recordings picturing post-event police violence against participants of the demonstration and press reports about such violence. Also, the applicant requested the court to summon particular witnesses on his behalf who would confirm that the hearing before the first-instance court had been unlawfully closed to members of the public. On 1 November 2013 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court. The court did not grant any of the applicant’s abovementioned requests. (b)     Application no. 79517/13 lodged on 4 December 2013 by Ali Safarli The applicant participated in the demonstration of 12 October 2013. After the demonstration ended he and several other participants walked towards the Inshaatchilar metro station. According to the applicant, when he was entering the station a police officer hit him from the back and took him to a police car with the assistance of other police officers. Then the applicant was moved to a bus used for the transportation of detained persons to a police station. The applicant was taken to the Yasamal District Police Office where an administrative offence report was drawn up in his respect. The police informed the applicant that he was to pay an “administrative” fine of AZN   51. According to the applicant, he called a friend and borrowed money from him. After paying the fine the applicant was released. The applicant was never served with a copy of this report or with other materials in his case-file. On 14 October 2013 the applicant was called to the Yasamal District Police Office. The applicant’s mobile phone was seized and he was not given an opportunity to contact his relatives. His rights were not properly explained to him. The applicant insisted on hiring a lawyer of his own choice, but the police officers disregarded his request. The applicant refused the assistance of a State-funded lawyer. The same day the applicant was brought before the Yasamal District Court. The court found that on 12 October 2013 after the demonstration ended, the applicant had breached public order by shouting and using inappropriate expressions at the entrance to the Inshaatchilar metro station. The court convicted the applicant under Article 296 of the CAO and sentenced him to fifteen days’ “administrative” detention. The hearing before the first-instance court was very brief. The applicant was not given an opportunity to hire a lawyer of his own choice. Representation by the State-funded lawyer was ineffective and of a formalistic nature. The applicant contested the police’s version of events and stated that he had not committed any offence. The court disregarded the applicant’s statements. The court’s decision was based heavily on the administrative offence report drawn up in the applicant’s respect. According to the applicant, without adopting an official decision in accordance with the domestic legislation the first-instance court de facto closed its hearing to members of the public (including the applicant’s relatives and mass media representatives). The applicant lodged an appeal before the Baku Court of Appeal, arguing that his arrest had been unlawful and that the hearing before the first ‑ instance court had not been fair. He also complained that his arrest and conviction was in violation of his right to freedom of assembly and freedom of expression. In order to establish factual circumstances of the case, he requested the Baku Court of Appeal to demand and examine video recordings by security cameras located at the place where administrative offence allegedly happened; and to examine photographs and video recordings picturing post-event police violence against participants of the demonstration and press reports about such violence. Also, the applicant requested the court to summon particular witnesses on his behalf who would confirm that the first-instance hearing had been unlawfully closed to members of the public. On 25 October 2013 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court. Also, the court did not grant any of the applicant’s abovementioned requests. (c)     Application no. 3245/14 lodged on 25 December 2013 by Sarvar Abdullali The applicant participated in the demonstration of 12 October 2013. After the demonstration ended he and several other participants walked towards the Inshaatchilar metro station. According to the applicant, near the entrance to the station he saw police officers who were pressing people to disperse quickly. The applicant stopped to observe the events. At that moment two police officers approached and hit him in his face. He was then taken to a police car and subsequently placed in a bus used for the transportation of detained persons to a police station. According to the applicant, he was kept in the bus for half an hour together with other persons. Then the applicant was taken to the Yasamal District Police Office and kept there for approximately four hours. At the police office, an administrative offence report was drawn up in respect of the applicant. The police informed the applicant that after his signing the report and paying an “administrative” fine of AZN 51 he would be released. After signing the report he was released. It is not clear whether the applicant paid the fine. The applicant was never served with a copy of the administrative offence report or with other materials in his case-file. On 14 October 2013 a police officer called the applicant and told him that the senior officers of the Yasamal District Police Office wanted to meet him. The applicant went to the police office. After approximately two to three hours a police officer informed the applicant that an administrative fine was not considered as sufficient punishment for his offence and therefore he had to appear before a court for consideration of his case. The applicant’s rights were not properly explained to him. He insisted on hiring a lawyer of his own choice, but his request was disregarded. The same day, at around 7 p.m., the applicant was brought before the Yasamal District Court. The court found that on 12 October 2013 after the demonstration ended, the applicant together with other participants of the demonstration had breached public order by shouting insulting expressions at the entrance to the Inshaatchilar metro station. The court convicted the applicant under Article 296 of the CAO and sentenced him to ten days’ “administrative” detention. The hearing before the first-instance court was very brief. The applicant was not given an opportunity to hire a lawyer of his own choice. Representation by the State-funded lawyer was ineffective and of a formalistic nature. The court questioned as witnesses only two police officers. The court disregarded the applicant’s statements contesting the police’s version of the events. The court’s decision was based heavily on the administrative offence report drawn up in the applicant’s respect. According to the applicant, without adopting an official decision in accordance with the domestic legislation the first-instance court de facto closed its hearing to members of the public (including the applicant’s relatives and mass media representatives). The applicant lodged an appeal before the Baku Court of Appeal, arguing that his arrest had been unlawful and that the hearing before the first ‑ instance court had not been fair. He also complained that his arrest and conviction was in violation of his right to freedom of assembly and freedom of expression. In order to establish factual circumstances of the case, he requested the Baku Court of Appeal to demand and examine video recordings by security cameras located at the place where administrative offence allegedly happened; and to examine photographs and video recordings picturing post-event police violence against participants of the demonstration and press reports about such violence. Also, the applicant requested the court to summon particular witnesses on his behalf who would confirm that the first-instance hearing had been unlawfully closed to members of the public. On 21 November 2013 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court. Also, the court did not grant any of the applicant’s abovementioned requests. COMPLAINTS 1.     The applicants complain under Article 5 of the Convention that their arrest and administrative detention were unlawful and that during their arrest a number of domestic procedural rules were violated. 2.     The applicants complain under Article 6 of the Convention that they did not have a fair hearing in the administrative offence proceedings because they were not given sufficient time and facilities to prepare their defence; they were deprived of access to effective legal assistance, both after the arrest and during the judicial proceedings; and the only witnesses to be questioned were police officers (application no. 3245/14) or no witnesses were questioned at all (application no. 78162/13). Also, the applicants complain under Article 6 of the Convention that their right to a public hearing was violated. 3.     The applicants complain that their arrest and conviction after the authorised peaceful demonstration, in which they participated, were an unlawful interference with their right to freedom of assembly under Article   11 of the Convention, and were aimed at punishing them for participating in a public assembly organised by the opposition. The applicants also rely on Article 10 in this respect.   COMMON QUESTIONS 1.     Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, was the applicants’ “administrative” arrest in compliance with domestic procedural rules?   2.     Was Article 6 §§ 1 and 3 of the Convention under its criminal head applicable to the proceedings in the present cases? If so, did the applicants have a fair and public hearing in determining the charge against them, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards the provision of sufficient time and facilities to prepare their defence, the opportunity to defend themselves through effective legal assistance, and the questioning of witnesses?   3.     Has there been an interference with the applicants’ freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention? If so, was that interference prescribed by law and necessary, in terms of Article 11 § 2?   4.     Had the applicants participated in demonstrations or other public gatherings organised by oppositional parties or groups before their arrest in present cases? Had the applicants been convicted for participation in demonstrations or other public gatherings before their arrest in present cases? The parties are requested to submit details of such convictions (if any).   5.     The parties are requested to submit copies of all documents relating to the administrative proceedings, including the administrative offence reports, any statements made by the applicants before being brought to court, the transcripts of the hearings and the applicants’ appeals.   APPENDIX No.   Application no.   Lodged on Applicant name date of birth place of residence   Sanction   First-instance judgment   Appellate judgment   78162/13 26/11/2013 Turkel ALISOY 1991 Baku 15 days’ administrative detention (after the demonstration of 12 October 2013) Decision of the Yasamal District Court of 14 October 2013 Decision of the Baku Court of Appeal of 1 November 2013   79517/13 04/12/2013 Ali SAFARLI 1994 Baku 15 days’ administrative detention (after the demonstration of 12 October 2013) Decision of the Yasamal District Court of 14 October 2013 Decision of the Baku Court of Appeal of 25 October 2013   3245/14 25/12/2013 Sarvar ABDULLALI 1991 Baku 10 days’ administrative detention (after the demonstration of 12 October 2013) Decision of the Yasamal District Court of 14 October 2013 Decision of the Baku Court of Appeal of 21 November 2013