CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 février 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, as submitted by the applicants may be summarised as follows. The applicants are opposition-oriented activists and members of opposition parties. At the material time the applicants in applications nos.   69397/11 and 72230/11 held positions in their respective parties, and the applicant in application no. 73706/11 actively participated in the demonstrations held by the opposition. In the period from 2010 to 2012 a number of opposition parties or groups organised several peaceful demonstrations in Baku. These demonstrations had not been authorised and many participants were arrested. Two of these demonstrations took place on 17 April 2011 and 20   October 2012. According to the applicants, the organisers had given prior notice to the relevant authorities about the demonstrations; however, the authorities had not authorised them. Each of the applicants participated in the demonstration of 17 April 2011. The demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants were demanding that the Government, inter alia , hold free and fair elections, provide for freedom of assembly, conduct democratic reforms, and release people who had been arrested during previous demonstrations. The demonstration of 17 April 2011 was dispersed by the police. Also, the applicant in application no. 69397/11 intended to participate in the peaceful demonstration of 20 October 2012. 1.     Application no. 69397/11 lodged on 17 October 2011 by Fakhraddin   Abbas (a)     Demonstration of 17 April 2011 The applicant was arrested during the dispersal of the demonstration of 17 April 2011. He was taken to the Nasimi District Police Office and was questioned. According to the applicant, he was not given an opportunity to contact his relatives and was not promptly informed about the reasons for his arrest. The applicant’s rights were not properly explained to him and he was not given access to a lawyer. According to the applicant he was subjected to ill-treatment by the deputy chief of the police office, S.N., who ordered the applicant to stand facing a wall and started to beat him (punching the applicant’s sides and thighs and hitting his neck). As a result of a hit on his neck, the applicant’s forehead got knocked against a wall and started bleeding. On the day of the applicant’s arrest, an “administrative offence report” ( inzibati xəta haqqında protokol ) was drawn up in his respect. The report stated that the applicant had committed an administrative offence under Article 310.1 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences (“the CAO”). According to the applicant, he was never served with a copy of the administrative offence report issued against him or with other materials in his case-file. The applicant was brought before the Nasimi District Court the day following his arrest. By a decision of 18 April 2011 the first-instance court found that the applicant had deliberately failed to comply with the lawful order of police officers to refrain from participating in an unauthorised demonstration, convicted the applicant under Article 310.1 of the CAO, and sentenced him to seven days’ “administrative detention”. According to the applicant, the hearing before the first-instance court lasted only a few minutes. The applicant insisted on employing a lawyer of his own choice, but the judge of the first-instance court disregarded his request. Representation by a State-funded lawyer was ineffective and of a formalistic nature. The first-instance court relied heavily on the administrative offence report issued in respect of the applicant. The only witnesses questioned during the court hearings were police officers who had not been involved in the applicant’s arrest. Members of the public (including journalists and human rights defenders) were not allowed to attend the court hearing, even though the court had not taken any formal decision to close the hearing to the public. The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction was in violation of his rights because the demonstration in which he had participated had been peaceful. The applicant also complained that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. The applicant asked the Baku Court of Appeal to quash the first-instance court’s decision. The applicant also requested the Baku Court of Appeal to order a forensic examination in order to confirm his allegations of ill-treatment in police custody. The Baku Court of Appeal disregarded this request. It appears that the applicant’s requests to question particular witnesses and to obtain the review of the medical record drawn up at his check-in to the detention facility ( inzibati həbs olunanların saxlanılma məntəqəsi ) were also disregarded by the court. On 21 April 2011 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court. Additionally, the applicant, together with the applicants in applications nos. 72230/11 and 73706/11, collectively lodged a complaint before the General Prosecutor’s Office and asked for an investigation into the alleged ill-treatment by the police. According to the applicant, no action was taken by the authorities to investigate his allegations of ill-treatment. (b)     Demonstration of 20 October 2012 The applicant intended to participate in the upcoming peaceful demonstration of 20 October 2012, which was to start at 3 p.m. in Baku. On 20 October 2012, in the morning, police officers approached the applicant in Sumgait, near the place of his residence, and requested him to follow them to a police station. The applicant was arrested and taken to a police station. According to the applicant, he was not given an opportunity to contact his relatives and he was not given access to a lawyer. On the day of the applicant’s arrest, an administrative offence report was drawn up in his respect. The report stated that on 20 October 2012, on the territory of H. Zeynalabdin settlement, Sumgait, the applicant had breached public order by shouting insults (curses), without addressing a particular person, and deliberately failed to comply with the lawful order of police officers to stop. The applicant was brought before the Sumgait District Court on the day of the arrest. The first-instance court convicted the applicant under Article   310.1 of the CAO and sentenced him to a monetary fine in a sum of AZN 20 (approximately EUR 20). According to the applicant, he had insisted on hiring a lawyer of his own choice, but the judge had disregarded his request. Members of the public were not allowed to attend the court hearing, apparently in the absence of the court’s formal decision to close the hearing to the public. The applicant lodged an appeal before the Baku Court of Appeal, arguing that his arrest and subsequent conviction were unlawful and aimed at preventing him from participating in the peaceful demonstration and that the hearing before the first-instance court had not been fair. The applicant asked the Baku Court of Appeal to quash the first-instance court’s decision. On 19 December 2012 the Baku Court of Appeal changed the sentence to a sanction in the form of a reprimand ( xəbərdarlıq ) substituted for the monetary fine. 2.     Application no. 72230/11 lodged on 12 October 2011 by Gozal   Bayramli The applicant was arrested during the dispersal of the demonstration of 17 April 2011. According to the applicant, a plain-clothed person ordered police officers to arrest her and “take her away dragging”. Several police officers, obeying the order, twisted her arms behind her back and held her head down. Her shoes slipped off her feet and she was dragged in this manner for 20-25 meters in the direction of a police car. According to the applicant, as a result, muscles on her neck, arms, back and other parts of her body got hurt. The applicant was taken to the Nasimi District Police Office. The applicant was not given an opportunity to contact her relatives and was not promptly informed about the reasons for the arrest. The applicant’s rights were not properly explained to her and she was not given access to a lawyer. On the day of the applicant’s arrest, an administrative offence report was drawn up in her respect. The report stated that the applicant had committed an administrative offence under Article 310.1 of the CAO. The applicant was never served with a copy of the administrative offence report issued against her or with other materials in her case-file. The applicant was brought before the Nasimi District Court the day following her arrest. By a decision of 18 April 2011 the first-instance court found that the applicant had deliberately failed to comply with the lawful order of police officers to refrain from participating in an unauthorised demonstration, convicted the applicant under Article 310.1 of the CAO and sentenced her to five days’ “administrative detention”. According to the applicant, the hearing before the first-instance court lasted only few minutes. The applicant insisted on hiring a lawyer of her own choice, but the judge of the first-instance court disregarded her request. Representation by a State-funded lawyer was ineffective and of a formalistic nature. The first-instance court relied heavily on the administrative offence report issued in respect of the applicant. The only witnesses questioned during the court hearings were police officers who had not been involved in the applicant’s arrest. The applicant lodged an appeal before the Baku Court of Appeal, arguing that her conviction had violated her rights because the demonstration in which she had participated had been peaceful. The applicant also complained that her arrest had been unlawful and that the hearing before the first-instance court had not been fair. The applicant asked the Baku Court of Appeal to quash the first-instance court’s decision. The applicant also requested the Court of Appeal to order a forensic examination of her injuries in connection with her allegations of ill ‑ treatment during the arrest. The Court of Appeal disregarded this request. It appears that the applicant’s requests to examine video recordings of the arrest, to question particular witnesses, and to demand the medical record issued in her respect in the detention facility where she had served her administrative detention, were also disregarded by the court. On 22 April 2011 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court. Additionally, the applicant, together with the applicants in applications nos. 69397/11 and 73706/11, collectively lodged a complaint before the General Prosecutor’s Office and asked for an investigation into the alleged ill-treatment by the police. By a letter of 25 May 2011, addressed to the applicant’s lawyer (who was also representing the applicants in applications nos. 69397/11 and   73706/11), the General Prosecutor’s Office informed him that the complaint about ill-treatment had been directed to the Baku City Prosecutor’s Office for examination. The letter also instructed the Baku City Prosecutor’s Office to inform the lawyer about the results of the examination. Approximately one month after the receipt of this letter by the applicant’s lawyer, the applicant was summoned to the Nasimi District Prosecutor’s Office and was questioned in connection with her complaint about ill-treatment. According to the applicant, either no action was taken by the authorities to investigate her allegations of ill-treatment, or she and her lawyer have not been informed about any such actions. 3.     Application no. 73706/11 lodged on 29 October 2011 by Sahib   Rustamli The applicant was arrested during the dispersal of the demonstration of 17 April 2011. The applicant was detained by a plain-clothed person and a police officer, and was forced into a bus along with a number of other participants of the demonstration. The applicant was taken to the Nasimi District Police Office. The applicant was not given an opportunity to contact his relatives and was not promptly informed about the reasons for the arrest. The applicant’s rights were not properly explained to him and he was not given access to a lawyer. The applicant was subjected to ill-treatment by the deputy chief of the police office, S.N., and one plain-clothed person. S.N. asked the applicant why he had come to Baku from Sabirabad, and without waiting for the applicant’s response began punching him in the abdomen. At this time, to assist S.N., the other person was holding the applicant’s arm. The applicant sank down because of the pain, and S.N. continued beating him by kicking. Then S.N. lifted the applicant and slapped his face. A number of other police officers were present. On the day of the applicant’s arrest, an administrative offence report was drawn up in his respect. The report stated that the applicant had committed an administrative offence under Article 310.1 of the CAO. The applicant was never served with a copy of the administrative offence report issued against him or with other materials in his case-file. The applicant was brought before the Nasimi District Court the day following his arrest. By a decision of 18 April 2011 the first-instance court found that the applicant had deliberately failed to comply with the lawful order of police officers to refrain from participating in an unauthorised demonstration, convicted the applicant under Article 310.1 of the CAO and sentenced him to five days’ “administrative detention”. Before being checked in a detention facility where the applicant was to serve his administrative detention, he was taken to a hospital where doctors issued a medical report stating that he had a broken rib. According to the applicant, the hearing before the first-instance court lasted only few minutes. The applicant insisted on hiring a lawyer of his own choice, but the judge of the first-instance court disregarded his request. Representation by a State-funded lawyer was ineffective and of a formalistic nature. The first-instance court relied heavily on the administrative offence report issued in respect of the applicant. The only witnesses questioned during the court hearings were police officers who had not been involved in the applicant’s arrest. Members of the public (including journalists and human rights defenders) were not allowed to attend the court hearing, even though the court had not taken any formal decision to close the hearing to the public. The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction had violated his rights because the demonstration in which he had participated had been peaceful. The applicant also complained that his arrest had been unlawful and that the hearing before the first ‑ instance court had not been fair. The applicant asked the Baku Court of Appeal to quash the first-instance court’s decision. The applicant also requested the Court of Appeal to order a forensic examination of his injuries in connection with his allegations of ill ‑ treatment in the police office. The Court of Appeal disregarded this request. It appears that the applicant’s requests to question particular witnesses, and to obtain the review of the medical record issued in his respect in the detention facility where he had served his administrative detention, were also disregarded by the court. On 4 May 2011 the Baku Court of Appeal rejected the applicant’s appeal and upheld the decision of the first-instance court. Additionally, the applicant, together with the applicants in applications nos. 69397/11 and 72230/11, collectively lodged a complaint before the General Prosecutor’s Office and asked for an investigation into the alleged ill-treatment by the police. According to the applicant, no action was taken by the authorities to investigate his allegations of ill-treatment. COMPLAINTS 1.     The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment during the arrest or in the police custody. The applicant in application no. 69397/11 raises this complaint only in connection with the demonstration of 17 April 2011. 2.     The applicants complain under Article 5 of the Convention that they were not promptly informed about the reasons for their arrests; that they were not given an opportunity to contact their relatives; that their rights were not properly explained to them; that they were never served with a copy of the administrative offence report issued against each of them and with other materials in their case-files. 3.     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; that they were deprived of access to effective legal assistance, both after the arrest and during the judicial proceedings; and that the only witnesses questioned were police officers. Also, the applicants in applications nos. 69397/11 and 73706/11 complain under Article 6 of the Convention that their right to a public hearing was violated. 4.     The applicants complain that they were arrested and prosecuted for participating in the peaceful demonstration of 17 April 2011, in breach of Article 11 of the Convention. The applicants also rely on Article 10 in this respect. The applicant in application no. 69397/11 also complains that his arrest and conviction prior to the peaceful demonstration of 20 October 2012, in which he intended to participate, was an unlawful interference with his right to freedom of assembly under Article 11 of the Convention. The applicant also relies on Article 10 in this respect.     QUESTIONS     1.     In respect of their complaints under Article 3 of the Convention, have the applicants exhausted all effective domestic remedies, as required by Article   35 § 1 of the Convention?   2.     Have the applicants been subjected to torture or inhuman or degrading treatment during the arrest (application no.   72230/11) and in police custody (applications nos. 69397/11 and 73706/11) on 17 April 2011, in breach of Article 3 of the Convention? Having regard to the procedural protection from torture or inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation (if any) in the present cases by the domestic authorities in breach of Article   3 of the Convention?   The parties are requested to submit copies of any and all complaints or appeals by the applicants concerning the alleged ill-treatment lodged with the relevant domestic authorities; decisions or other documents related to the investigation (if any) into the applicants’ alleged ill-treatment; any evidence confirming the applicants’ alleged injuries, such as a forensic medical examination report, a medical statement, witness statements, official records (in particular, the medical record issued in the applicants’ respect in the detention facilities, where they had served their administrative detention), photographs, or video recordings.   3.     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?   4.     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?   5.     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 the interference prescribed by law, as required by Article 11 § 2? In particular, did the domestic legislation in question meet the “quality of law” requirement? Furthermore, was the interference necessary, in terms of Article 11 § 2?      6.     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.   7.     The parties are also requested to submit copies of all documents relating to the organisation and holding of the demonstrations in which they participated or intended to participate, in particular, the notices submitted by the organisers of the demonstrations to the relevant local executive authorities, and the official responses the organisers received from the relevant local executive authorities refusing to authorise the demonstrations. APPENDIX   No. Application no. Lodged on Applicant name date of birth place of residence Notes First-instance judgment Appellate judgment   69397/11 17/10/2011 Fakhraddin ABBAS 1954 Sumgait   7 days’ administrative detention for participation in the demonstration of 17 April 2011 Decision of the Nasimi District Court of 18 April 2011 Decision of the Baku Court of Appeal of 21 April 2011 sanction in a form of a notice Decision of the Sumgait District Court of 20 October 2012 Decision of the Baku Court of Appeal of 19 December 2012   72230/11 12/10/2011 Gozal BAYRAMLI 1962 Baku   5 days’ administrative detention for participation in the demonstration of 17 April 2011 Decision of the Nasimi District Court of 18 April 2011 Decision of the Baku Court of Appeal of 22 April 2011   73706/11 29/10/2011 Sahib RUSTAMLI 1956 Sabirabad 5 days’ administrative detention for participation in the demonstration of 17 April 2011 Decision of the Nasimi District Court of 18 April 2011 Decision of the Baku Court of Appeal of 4 May 2011