Information Note on the Court’s case-law 189

October 2015

Gafgaz Mammadov v. Azerbaijan - 60259/11

Judgment 15.10.2015 [Section I]

Article 11

Article 11-1

Freedom of peaceful assembly

Conviction and sentence to five days’ detention for failing to obey police order to stop participating in unauthorised demonstration: violation

Facts – The applicant was arrested during a police operation to disperse a peaceful demonstration he was attending in support of an opposition group. The demonstration had gone ahead in the city centre despite authorisation being refused to hold it there. The applicant was subsequently prosecuted under the Code of Administrative Offences . However, rather than being charged with a breach of the rules governing the holding of assemblies under Article 298 of the Code (for which the prescribed penalty was a fine or a reprimand), he was charged under Article 310.1 with failing to comply with a lawful order of the police, an offence carrying a custodial sentence. He was convicted and sentenced to five days’ administrative detention.

Law – Article 11: Both the dispersal of the demonstration and the applicant’s arrest and conviction had interfered with the applicant’s right to freedom of peaceful assembly.

As to the lawfulness of that interference, the Court had serious concerns about the foreseeability and precision of the Azerbaijani legislation governing public assemblies and the risk of such as semblies being abusively banned or dispersed. A number of reports by international bodies had stressed that the system of prior notification laid down by the Constitution had been replaced in practice by a system of authorisation pursuant to powers contain ed in the Law on Freedom of Assembly. The Court also had doubts regarding the credibility of the formal ground invoked by the authorities for the applicant’s arrest and conviction: the applicant was arrested and convicted for failing to comply with the law ful order of a police officer, whereas in fact the key basis for the proceedings against him was the lack of authorisation for the demonstration. However, the Court decided not to limit its examination under Article 11 to the lawfulness of the interference since a more conspicuous problem arose with respect to the necessity of the interference.

In that connection, the Court noted that the authorities had not explained why, after receiving notice of the planned demonstration, they decided to refuse “authoris ation” and to disperse it rather than take measures to minimise disruption and ensure safety. The domestic courts had not attempted to examine whether the absence of authorisation justified dispersing the demonstrators. Since the Constitution required only notification, not authorisation, the Court considered that the authorities had thus ignored the circumstances that were particularly relevant when assessing whether dispersal was necessary.

As to the applicant’s arrest and conviction, despite the fact tha t the underlying reason for his conviction was his participation in an unauthorised peaceful demonstration – conduct which at the time did not carry a custodial penalty – the applicant was sentenced to five days’ administrative detention on charges that he “had failed to stop participating in the unauthorised demonstration”. This arbitrary reference to an administrative offence as a ground for his arrest and conviction had thus made it possible to apply a penalty which was otherwise not applicable. In addit ion, the authorities had made no effort to balance the applicant’s right under Article 11 of the Convention to participate in the demonstration against any damage this might cause to other public or private interests.

In sum, the authorities had failed to act with due tolerance and good faith as regards the applicant’s right to freedom of assembly, had not adduced sufficient and relevant reasons justifying the interference, and had imposed a sanction which was dispropor tionate in the circumstances.

Conclusion : violation (unanimously).

The Court also found, unanimously, violations of Article 5 and Article 6 §§ 1 and 3 of the Convention.

Article 41: EUR 15,600 in respect of non-pecuniary damage.

© Council of Europe/Europe an Court of Human Rights This summary by the Registry does not bind the Court.

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