Communicated on 3 February 2015

FIRST SECTION

Application no. 70966/11 Kochar Adil Oglu NAGIYEV against Azerbaijan lodged on 2 November 2011

STATEMENT OF FACTS

The applicant, Mr Kochar Nagiyev , is an Azerbaijani national, who was born in 1966 and lives in Baku. He is represented before the Court by Mr R. Mustafazade and Mr A. Mustafayev , lawyers practising in Azerbaijan.

A. The circumstances of the cases

The facts, as submitted by the applicant may be summarised as follows.

The applicant is an opposition-oriented activist. At the material time he held a position in an opposition group and actively participated in the demonstrations held by the opposition.

In the period from 2010 to 2011 a number of opposition parties or groups organised several peaceful demonstrations in Baku. These demonstrations had not been authorised and many participants were arrested.

The applicant participated in one of these demonstrations which took place on 2 April 2011 and intended to participate in another which was to be held on 17 April 2011.

1. Demonstration of 2 April 2011

The applicant participated in the demonstration of 2 April 2011 held in Baku.

According to the applicant, the organisers had given prior notice to the relevant authorities about the demonstration; however, the authorities had not authorised it.

The demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants were demanding democratic elections and were protesting against politically motivated arrests.

The demonstration of 2 April 2011 was dispersed by the police. The applicant was arrested during the dispersal. He was taken to a police station.

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.

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 of the Code of Administrative Offences (“the CAO”) .

The applicant was brought before the Sabail District Court on the day of his arrest. By the decision of 2 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”.

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 the police officers.

The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction violated his right to peaceful assembly. 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.

In his appeal the applicant also complained that, when sentencing him to administrative detention, the domestic court had failed, in breach of the requirements of the law, to take into consideration the fact that he had a second-degree disability.

On 13 April 2011 the Baku Court of Appeal rejected the applicant ’ s appeal and upheld the decision of the first-instance court. According to the applicant, he received the decision of the Baku Court of Appeal on 18 October 2011.

2. Demonstration of 17 April 2011

The applicant intended to participate in the upcoming peaceful demonstration of 17 April 2011 organised by the opposition in Baku. According to the applicant, the organisers had given prior notice to the relevant authorities about the demonstration; however, the authorities had not authorised it.

On 16 April 2011, in the afternoon, several plain clothed persons approached the applicant in a cafe near the place where he lived, and forced him out. They took the applicant to a police station in a car, without presenting themselves or giving any explanations.

The applicant 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.

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 deliberately failed to comply with the lawful order of police officers.

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 refused to sign the administrative offence report issued against him.

The applicant was brought before the Nasimi District Court on the day of the arrest. By the decision of 16 April 2011 the first-instance court convicted the applicant under Article 310.1 of the CAO and sentenced him to seven days ’ “administrative detention”.

According to the applicant, the hearings before the first-instance court lasted only a few minutes.

The applicant had insisted on hiring a lawyer of his own choice, but the judge had 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 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 h is 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 29 April 2011 the Baku Court of Appeal rejected the applicant ’ s appeal and upheld the decision of the first-instance court. According to the applicant, he received the decision of the Baku Court of Appeal after his complaint of 2 October 2011 about failure to serve on him this decision.

COMPLAINTS

1. In connection with both arrests, the ap plicant complains under Article 5 of the Convention that he was not promptly informed about the reasons for his arrest; that he was not given an opportunity to contact his relatives; and that his rights, including the right to have a lawyer, were not properly explained to him. In connection with the demonstration of 17 April 2011 the applicant also complains that he was arrested by plain-clothed persons; and that he was never served with a copy of the administrative offence report issued against him and with other materials in his case-file.

2. In connection with both sets of proceedings against him, the applicant complains under Article 6 of the Convention that he did not have a fair hearing because he was not given sufficient time and facilities to prepare his defence; that he was 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 .

In connection with the proceedings related to the demonstration of 17 April 2011, the applicant also complains under Article 6 of the Convention that his right to a public hearing was violated.

3. In connection with the first set of proceedings, t he applicant complains, relying on Article 6 of the Convention, that when sentencing him to “administrative detention”, the domestic courts failed to take into consideration the fact that he had a second-degree disability . This complaint is to be examined under Article 7 of the Convention.

4. In connection with the demonstration of 2 April 2011, the applicant complains that he was arrested and prosecuted for participating in peaceful demonstration, in breach of Article 11 of the Convention. The applicant also relies on Article 10 in this respect.

The applicant also complains that his arrest and conviction prior to the peaceful demonstration of 17 April 2011 , in which he intended to participate, was an unlawful interference with his right to freedom of assembly under Article 11 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the applicant comply with the six-month time-limit for lodging the application?

2. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, were the applicant ’ s “administrative” arrests in compliance with domestic procedural rules?

3. Was Article 6 §§ 1 and 3 of the Convention under its criminal head applicable to the proceedings in the present case? If so, did the applicant have a fair and public hearing in determining the charge against him, 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 his defence, the opportunity to defend oneself through effective legal assistance, and the questioning of witnesses?

4. Was a heavier penalty imposed on the applicant than the one which was applicable at the time of the commission of the offence in the present case, as proscribed by Article 7 of the Convention? Specifically, did the domestic courts take into consideration the applicant ’ s second-degree disability, when sentencing him to administrative detention?

The applicant is also requested to submit copies of documents proving his second-degree disability.

5. Has there been an interference with the applicant ’ s 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 applicant before being brought to court, the transcripts of the hearings and the applicant ’ s appeals.

7. The parties are also requested to submit copies of all documents relating to the organisation and holding of the demonstrations in which the applicant 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.