CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 avril 2018

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The facts of the cases, as submitted by the applicants, may be summarised as follows. All applicants were subjected to administrative arrest and conviction under the Code of Administrative Offences (CAO) as set out in detail in Appendix No. 1. The domestic courts mainly dismissed the applicants’ complaints of violation of their Convention rights. COMPLAINTS 1.     All applicants complain that they were deprived of their liberty in breach of Article 5 § 1 of the Convention. 2.     All applicants complain under Article 6 of the Convention that they did not have a fair hearing in the administrative offence proceedings, in particular, that they were not given sufficient time and facilities to prepare their defence; that they (applications nos. 47915/09, 23689/14, 30813/16, 36665/16, 60146/16, 60955/16 and 77240/16) were not provided with the opportunity to defend themselves through effective legal assistance, both after the arrest and during the judicial proceedings and the questioning of witnesses (applications nos. 47915/09, 23689/14, 36665/16, 60955/16 and   77240/16). The applicants in applications nos. 38080/12, 23689/14, 60146/16, 66391/16 and 77240/16 complain that their right to a public hearing was violated. 3.     The applicant in application no. 38080/12 complains under Article 3 of the Convention of detention conditions in police custody. 4.     The applicant in application no. 36665/16 complains under Article 3 of the Convention of ill-treatment by the officers of the Organised Crime Unit of the Ministry of Internal Affairs and lack of an effective investigation by the domestic authorities. He also complains of detention conditions in the pre-trial detention facility of the Organised Crime Unit of the Ministry of Internal Affairs and that the latter was not designed as a facility to detain him under the domestic law. 5.     The applicant in application no. 30813/16 complains under Article 5 §§ 1 (c) and 3 of the Convention that there was no reasonable suspicion that he had committed a criminal offence and that the domestic courts failed to provide relevant and sufficient reasons for his detention. 6.     The applicant in application no. 60146/16 complains under Article 7 of the Convention that a heavier penalty was imposed on him than the one which was applicable at the time of the commission of the offence. 7.     The applicant in application no. 36665/16 complains under Article 8 of the Convention of unlawfulness of the search of his person and items by the officers of the State Border Service on 15 November 2015 when he was not allowed to leave the country. 8.     The applicants in applications nos. 30813/16, 36665/16, 60146/16 and   60955/16 complain that their right to freedom of expression, within the meaning of Article 10 of the Convention, was violated on account of their administrative arrest and conviction. 9.     The applicant in application no. 36665/16 complains under Article 2 of Protocol No. 4 to the Convention that his right to leave Azerbaijan was violated by a travel ban imposed on him by the domestic authorities. 10.     The applicant in application no. 30813/16 complains under Article   4 of Protocol No.   7 to the Convention that he has been tried twice for the same offence. 11.     The applicants in applications nos. 24061/15, 47633/15, 30813/16, 36665/16, 60146/16 and 60955/16 complain that the restrictions imposed by the State, purportedly pursuant to Articles 5 and 6 of the Convention, were applied for a purpose other than those envisaged by those provisions, contrary to Article 18 of the Convention. 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 of the Convention under its criminal head applicable to the proceedings in all cases? If so, did all the applicants have a fair hearing in the determination of the charges 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? Was the applicants’ right to a reasoned judgment respected?   The Government 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. CASE SPECIFIC QUESTIONS 1.     Was the applicant in application no. 38080/12 subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, in connection with his conditions of detention in police custody?   2.     Has there been a violation in application no. 36665/16 of the applicant’s right to protection from ill-treatment with regard to treatment by the officers of the Organised Crime Unit of the Ministry of Internal Affairs and the alleged lack of an effective investigation by the domestic authorities, in breach of Article 3 of the Convention? How long was the applicant held at the pre-trial detention facility of the Organised Crime Unit of the Ministry of Internal Affairs and was that facility designed to detain the applicant under the national legislation and court order? Was the applicant subjected to inhuman or degrading treatment in connection with his conditions of detention at the abovementioned facility?   3.     Was the applicant in application no. 30813/16 deprived of his liberty in breach of Article 5 § 1 of the Convention in connection with his detention on remand? In particular, was the applicant’s detention compatible with Article 5 § 1 (c) in terms of being justified and based on a reasonable suspicion? Did the domestic courts give sufficient and relevant reasons for the applicant’s detention for the purposes of Article 5 § 3 of the Convention?   4.     Did the applicants in applications nos. 38080/12, 23689/14, 60146/16, 66391/16 and 77240/16 have a public hearing in the determination of the charges against them, in accordance with Article 6 § 1 of the Convention? Were the applicants provided with the opportunity to defend themselves through effective legal assistance in applications nos. 47915/09, 23689/14, 30813/16, 36665/16, 60146/16, 60955/16 and 77240/16, and the questioning of witnesses in applications nos. 47915/09, 23689/14, 36665/16, 60955/16 and 77240/16 as required by Article 6 §§ 1 and 3 of the Convention?   5.     Was a heavier penalty imposed on the applicant in application no.   60146/16 than the one which was applicable at the time of the commission of the offence, in breach of Article 7 of the Convention?   6.     Has there been an interference in application no.   36665/16 with the applicant’s right to respect for his private life, within the meaning of Article   8 § 1 of the Convention, as a result of the search of his person and items carried out by the officers of the State Border Service on 15   November 2015, when he was not allowed to leave the country? If so, was that interference in accordance with the law and necessary in terms of Article   8 § 2 of the Convention?   7.     Has there been an interference with the applicants’ right to freedom of expression, within the meaning of Article 10 § 1 of the Convention, on account of their administrative arrest and conviction in applications nos.   30813/16, 36665/16, 60146/16 and 60955/16? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2 of the Convention?   8.     Was any restriction placed in application no. 36665/16 on the applicant’s freedom to leave the territory of the respondent State, as guaranteed by Article 2 § 2 of Protocol No. 4 to the Convention? If so, was that restriction in accordance with the law and necessary in terms of Article   2 § 3 of Protocol No. 4 to the Convention?   9.     Has the applicant in application no. 30813/16 been tried twice for the same offence, as prohibited by Article   4 §   1 of Protocol No.   7 to the Convention? If so, did the proceedings fall within the exceptions envisaged by Article   4 §   2 of Protocol No.   7?   10. Were the restrictions imposed by the State in applications nos.   24061/15, 47633/15, 30813/16, 36665/16, 60146/16 and 60955/16 purportedly pursuant to Articles 5 and 6 of the Convention, applied for a purpose other than those envisaged by those provisions, contrary to Article   18 of the Convention?   The Government are requested to submit copies of all documents concerning the applicants’ cases. APPENDIX No. 1 No. Applicant’s name; Application No; Date of introduction Applicant’s arrest and police custody Other complaints under well-established case-law   Adil Dadashov No. 47915/09, 26/08/2009 The applicant was arrested at 11 p.m. on 6   February 2009 at the Goychay District Police Office under Article 310 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences (“the CAO”) and brought before the Goychay District Court at around 3   p.m. on 7 February 2009.   Article 6 By the Shaki Court of Appeal’s final decision of 3 March 2009, the applicant was sentenced to three days’ administrative detention under Article 310 (failure to comply with a lawful order of a police officer) of the CAO. He complains, in particular, that he was not allowed to get acquainted with the administrative-offence report; that he was not provided with the defence lawyer; that the domestic courts dismissed his procedural request to call and examine a witness, who was together with him at the time of the incident and that the domestic courts’ decisions were not adequately reasoned.   Rovshan Ahmadli No. 52286/11, 04/07/2011 The applicant complains that he was detained at noon on 9 January 2011 at his home by three police officers and two plain-clothes officers and taken to police office. According to an administrative-offence report he was arrested for failure to comply with a lawful order of a police officer to stop making noise in the street (Article 310 of the CAO).   Article 6 By a final decision of 14 January 2011, the Baku Court of Appeal sentenced the applicant to ten days’ administrative detention under Article 310 (failure to comply with a lawful order of a police officer) of the CAO. The applicant complains, in particular, that he was not afforded adequate time and facilities to prepare his defence and the domestic courts’ decisions lacked adequate reasoning.     Tural Hajibeyli No. 38080/12,   02/06/2012 The applicant was arrested at around 10   p.m. on 31 January 2012 under Article 310 (failure to comply with a lawful order of a police officer) of the CAO and brought before the judge at around 3 p.m. on 1 February 2012.       Article 3 The applicant complains that during his detention in police custody from around 10 p.m. on 31   January to 11 a.m. on 1 February 2012 he was detained in the hall of the police office, was not provided with food and drinking water and bedding. The Baku Court of Appeal dismissed the applicant’s complaint as unsubstantiated.   Article 6 The applicant, who was subjected to three-day’ administrative detention, complains, in particular, that the first-instance court hearing was de facto held closed to the public, that he was not afforded adequate time and facilities to prepare his defence and the court hearing was very brief, lasting for few minutes, his procedural requests for examination of pieces of evidence were dismissed and that the domestic courts’ decisions lacked adequate reasoning.   Khatira Guliyeva No.72608/13, 10/09/2013 The applicant was arrested at noon on 5   February 2013 under Articles 296 (Minor hooliganism) and 310 (Failure to comply with a lawful order of a police officer) of the CAO. She was brought before the first-instance court at around 6.30 p.m. the same day.   Article 6 The applicant was subjected to an administrative reprimand under Articles 296 and 310 of the CAO by the domestic courts. She complains, in particular, that she was not afforded adequate time and facilities to prepare her defence and that the domestic courts’ decisions lacked adequate reasoning.   Zaur Mammadov No. 23689/14, 11/03/2014 On 17 October 2013 the applicant was apprehended at his home by plain-clothes officers and taken to Sabunchu District Police Office and the same day brought before the Sabunchu District Court. According to case file, he was arrested for failure to comply with a lawful order of a police officer (Article 310 of the CAO).   Article 6 By a final decision of 24 October 2013 the Baku Court of Appeal sentenced the applicant to fifteen days’ administrative detention under Article 310 of the CAO. The applicant complains that he was not provided with any lawyer in police custody and later was not allowed to have a lawyer of his own choice at the first-instance court; that he did not have adequate time and facilities to prepare his defence, since it took thirty minutes between his arrest and being taken to court and the court hearing was very brief. He also claims that his procedural requests for calling and examining witnesses, including the officers who had arrested him, being provided with the copies of the administrative-offence report and administrative-arrest report, and the statements of the police officers who detained him, were dismissed. He also complains that the hearing at the first-instance court was in fact held closed to the public; that the judgment lacked adequate reasoning in that it relied only on administrative-offence report and the statement of one police officer and that the heavier penalty was chosen against him.   Khalid Garayev No. 24061/15, 30/04/2015 At 9 p.m. on 29 October 2014 the applicant was arrested by plain-clothes officers near his house. According to the official records, he was arrested because he had disobeyed a lawful order of the police officer to stop swearing loudly, without addressing anyone in particular (Article 310 of the CAO). The same day he was brought before the Binagadi District Court.   Article 6 By a final decision of 6   November 2014 the Baku Court of Appeal convicted the applicant to twenty-five days’ administrative detention under Article 310 of the CAO. The applicant, in particular, complains that the courts dismissed his procedural requests, including the request to examine the security camera recordings installed in the venue where he was apprehended and that the courts relied only on the statements of the police officers, who, according to official records, had arrested him and prepared the administrative-offence report in respect of him. Article 18 The applicant complains that his Convention rights were violated due to his journalistic and political activity as a member of one of the main opposition parties in Azerbaijan, the Popular Front Party of Azerbaijan.   Razim Rzayev No. 47633/15, 31/08/2015 The applicant was arrested at around 2.45   p.m. on 29 July 2015 by the officers of the Shaki Traffic Police Office, who chased his car. According to case file, he was arrested because he had disobeyed a lawful order of the police officer to stop making noise when the officers drafted an administrative-offence report on road traffic rules (Articles 296 and 310 of the CAO). He was detained in police custody overnight and brought before the Sheki District Court on 30 July 2015. He was served with copy of the administrative-offence report at the court.   Article 6 By a final decision of 5 August 2015 the Shaki Court of Appeal sentenced the applicant to six days’ administrative detention. The applicant, in particular, complains that the domestic courts dismissed his procedural requests to examine certain pieces of evidence, such as the video recordings of the cameras on the police officers and the police car that had chased him and the case file of the alleged traffic incident.   Article 18 The applicant complains that his rights were restricted for purposes other than those prescribed in the Convention, and in particular, to punish him for his political activities.   Elchin Gasimov No. 30813/16, 24/05/2016 On 5 November 2015 the applicant was arrested and taken to the Sabunchu District Police Office. According to the official records, he was arrested because he had disobeyed a lawful order of the police officer to stop swearing loudly, without addressing anyone in particular (Article 310 of the CAO). He was brought before the Sabunchu District Court on 6 November 2015.   Article 5 On 27 November 2015 the criminal proceedings were opened against the applicant under Articles 221 and 315 of the Criminal Code and by decision of 5 December 2015 the Baku Court of Appeal upheld the remand in custody chosen in respect of the applicant. Article 6 By the Baku Court of Appeal’s final decision of 27 November 2015 the applicant was convicted to thirty days’ administrative detention under Article 310 of the CAO. The applicant complains that he was not given sufficient time and facilities to prepare his defence; that he was not provided with any lawyer at the police office and the lawyer of his own choice hired on 6 November 2015 was not allowed to meet him until the end of the first-instance court hearing and he was not represented by a lawyer at the first-instance court hearing. The applicant also complains that the court heard only the police officer who had drafted the administrative-arrest report; that the domestic courts’ decisions were not adequately reasoned and in this connection, the administrative-offence report that the courts relied on had deficiencies such as lack of information on venue and time of drafting of report, time of commission of an administrative offence and attesting witnesses. Articles 10 and 18 The applicant complains that he was subjected to administrative offence proceedings to silence him as a journalist and a public and political figure. Article 7 of Protocol No. 4 On 27 November 2015 on the basis of the same set of facts the applicant was charged under Articles 221 and 315 of the Criminal Code and ordered detention on remand. The applicant complains that he has been prosecuted twice for the same offence because initially, he had been convicted of the “administrative” offence of “non compliance with lawful orders of police officer” under the Code of Administrative Offences and had later been charged and prosecuted of the criminal offence of “violence against state officials” under the Criminal Code.   Shirin Abbasov No. 36665/16, 12/04/2016   The applicant was arrested at 4 p.m. on 16 September 2015 by plain-clothes officers of the Organised Crime Unit of the Ministry of Internal Affairs (the OCU) and taken to the temporary pre-trial detention centre of the OCU. According to the case file, he was arrested for failure to obey the police order to stop swearing in the street under Articles 296 (minor hooliganism) and 301 (failure to comply with a lawful order of a police officer) of the CAO. On 17 September 2015 he was taken before the Yasamal District Court.   Article 3 The applicant complains that he was beaten up, insulted and threatened by the officers of the Organised Crime Unit of the Ministry of Internal Affairs (the OCU) the day of his arrest at the OCU and was not provided with drinking water and food the same day. He also complains that he was not provided with medical assistance. The applicant made confession statement and later denied it, claiming that it was extracted under duress. He also complains that in breach of the domestic law he served his administrative conviction at the temporary pre-trial detention centre of the OCU. The applicant complains that he was held in the cell No. 1 of the OCU together with another inmate, where the toilet inside the small cell was not separated from the rest of the room, the small window in the cell was coloured so that the room was not naturally lit and the electricity was never switched off. Article 6 By the Baku Court of Appeal’s final decision of 12 October 2015, the applicant was subjected to thirty days’ administrative detention under Articles 296 and 301 of the CAO. He was not allowed to meet a lawyer of his own choice in police custody and at the first-instance court hearing. Article 8 The applicant complains that on 15 November 2015 he was subjected to an unlawful search of his person and his items by the officers of the State Border Service when he was not allowed to leave the country. Article 10 The applicant complains that he was subjected to administrative offence proceedings to prevent him from his journalistic activity, collaboration with a private media outlet, Meydan TV. Article 18 The applicant complains that his Convention rights were restricted for purposes other than those prescribed in the Convention, in particular, to punish him for his journalistic activity critical of the Government. Article 2 of Protocol No. 4 The applicant complains that his right to leave Azerbaijan was violated by a travel ban imposed on him by the domestic authorities, when on 14 November 2015 he was not allowed by the State Border Service to travel to Georgia. In this connection, the applicant lodged a criminal complaint with the Prosecutor General’s Office, requesting it to open a criminal case and did not receive any reply. In April 2016 he lodged a criminal complaint with the supervising court, claiming unlawfulness of the refusal to leave the country. By a final decision of 19 August 2016, the courts refused to examine his complaint, declaring that they did not have competence to review his complaint.   Ismayil Rasulov No. 60146/16, 06/10/2016   On 24 August 2016 the applicant went to Garadakh Police Office, following a police officer’s phone call to him. He was arrested and kept in police custody until 10 a.m. on 25 August 2016. According to the case file, he was arrested for failure to comply with a lawful order of a police officer to stop swearing in the street (Article 535 of the CAO). On 25 August 2016 he was brought before the Garadakh District Court.   Article 6 By a final decision of 30 August 2016, the Baku Court of Appeal upheld the first-instance court’s decision, replacing the penalty of one month’s administrative detention under the first-instance court’s decision with six days’ administrative detention and released the applicant on account of his second-degree disability. The applicant complains that in police custody he was not provided with access to a lawyer, in particular, was not allowed to have a lawyer of his own choice; that services of the State-appointed lawyer were of low quality and inefficient. He also complains that he was not served with an administrative-offence report and other case file documents prior to being brought before the first-instance court; that during the first-instance court’s hearing of up to ten minutes the court heard the applicant and two police officers and that the domestic courts dismissed his procedural requests, including the ones on examination of pieces of evidence; that the lawyer of his own choice was not provided with the case file. Furthermore, the first-instance court’s hearing was held de facto closed to the public. Article 7 The applicant complains that a heavier penalty had been imposed on him than the one applicable at the time of the commission of the offence and that in accordance with the CAO he should not have been sentenced to administrative detention because he had a second-degree disability. Articles 10 and 18 The applicant complains that he was subjected to administrative arrest and conviction on account of his political activities and his posts critical of the Government on the social media.   Ruslan Garayev No. 60955/16, 08/10/2016 At 4 p.m. on 20 July 2016 plain-clothes officers arrested the applicant in front of his house and forced him into a car. According to official records, he was arrested because he had disobeyed a lawful order of the police officer to stop swearing loudly (Articles 510 (Minor hooliganism) and 535 (Intentional non-compliance with a lawful order of a police officer) of the CAO).   Article 6 By the Baku Court of Appeal’s final decision of 6 August 2016 the applicant was convicted to twenty days’ administrative detention under Articles 510 (Minor hooliganism) and 535 (Intentional non-compliance with a lawful order of a police officer) of the CAO. The applicant complains that he was not given sufficient time and facilities to organise his defence, in particular, because he was brought before the court shortly after his detention; that he has never been served with the case file documents such as the administrative-arrest report; that at the police office he was not served with the administrative-offence report either; that the court hearing was brief, lasting up to ten minutes, in the course of which three police officers and the applicant were heard; that the appeal court heard the case in his absence and dismissed his procedural requests for calling and examining police officers who had detained him. He also complains that he was not represented by any lawyer in police custody and at the first-instance court hearing. In particular, he was not allowed to meet the lawyer of his choice, who was hired on 22 July, until 25 July and later he was restricted to meet his lawyer several times. Finally, the applicant complains that the domestic courts’ decisions lacked adequate reasoning. Articles 10 and 18 The applicant, chairman of the Popular Front Party’s Sumgait Department, complains that his administrative arrest and detention was aimed to punish him for his political activities and his posts on the social media.   Amid Suleymanov No. 66391/16, 31/10/2016 The applicant was arrested by plain-clothes officers at his home on 25 May 2016. According to the official records, he was arrested because he disobeyed lawful order of the police officer to stop making noise in the street (Article 535 of the CAO). He was brought before the Binagadi District Court on the day of his arrest.   Article 6 By the Baku Court of Appeal’s final decision of 7 June 2016 the applicant was convicted to ten days’ administrative detention under Article 535 (intentional non-compliance with a lawful order of a police officer) of the CAO. The applicant, in particular, complains that his right to a public hearing was violated because in absence of an official decision of the court to examine the case in a closed hearing, the public was not allowed to attend the first-instance court’s hearing and that the court decisions lacked reasoning.     Samir Hasanov No. 77240/16, 03/12/2016 The applicant was arrested at around 2   p.m. on 28 May 2016. According to the official records, he was arrested because he had disobeyed a lawful order of the police officer to stop swearing loudly in the street (Articles 510 and 535 of the CAO). He was kept in police custody overnight prior to being brought before the Shaki District Court on 29 May 2016.   Article 6 By the Baku Court of Appeal’s final decision, the applicant was convicted to fifteen days’ administrative detention. The applicant, in particular, complains that his right to a public hearing was violated because the first-instance court hearing was held de facto closed to the public; that the courts dismissed his procedural requests to call and hear witnesses; that he was not represented by any lawyer in police custody, in particular, was not allowed to have a lawyer of his own choice at the court and that the court decisions lacked reasoning.     APPENDIX NO. 2 No. Application no. Lodged on Applicant name date of birth place of residence Represented by 1 47915/09 26/08/2009 Adil DADASHOV 12/08/1986 Goychay   Sara ALIYEVA 2 52286/11 04/07/2011 Rovshan AHMADLI 19/04/1958 Baku   Elman MUSTAFAYEV 4 38080/12 02/06/2012 Tural HAJIBEYLI 13/08/1987 Baku   Ruslan MUSTAFAZADE   72608/13 10/09/2013 Khatira GULIYEVA 30/06/1962 Baku   Khalid BAGIROV   23689/14 11/03/2014 Zaur MAMMADOV 18/01/1994 Baku   Ruslan MUSTAFAZADE   24061/15 30/04/2015 Khalid GARAYEV 25/12/1981 Imishli   Samira AGAYEVA   47633/15 31/08/2015 Razim RZAYEV 16/07/1964 Shaki   Khalid BAGIROV   30813/16   24/05/2016 Elchin GASIMOV 29/11/1985 Baku   Javad CAVADOV   36665/16 18/06/2016 Shirin ABBASOV 01/03/1995 Agjabadi   Elchin SADIQOV   60146/16 06/10/2016   Ismayil RASULOV 04/10/1957 Baku   Ruslan MUSTAFAZADE   60955/16 08/10/2016 Ruslan GARAYEV 31/07/1989 Sumgayit   Ruslan MUSTAFAZADE   66391/16 31/10/2016 Amid SULEYMANOV 13/08/1987 Baku   Nemat KARIMLI   77240/16 03/12/2016 Samir HASANOV 18/02/1984 Shaki   Yalchin IMANOV