Communicated on 2 October 2014

FIRST SECTION

Application no. 38158/12 Elchin DAMIROV against Azerbaijan and 5 other applications (see list appended)

The applicants are Azerbaijani nationals (see Appendix). 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 applicants are opposition-oriented activists.

In the period from 2010 to 2012 a number of opposition parties or groups organised several peaceful demonstrations, mainly in Baku. According to the applicants, these demonstrations had not been authorised and many participants were arrested.

The opposition planned to hold demonstrations also on 8 and 22 April 2012. According to the applicants, the organisers had given prior notice to the relevant authorities about the planned demonstrations and the authorities had authorised holding of these public assemblies.

The demonstrations were intended to be peaceful. The participants of the demonstrations intended to criticise certain policies of the Government. It is not clear from the submissions of the applicants whether the demonstrations eventually took place as planned on 8 and 22 April 2012.

Each of the applicants distributed flyers (leaflets) about, and intended to participate in, one of the two demonstrations.

2. Case-specific facts

(a) Application no. 38158/12 lodged on 2 June 2012 by Elchin Damirov

According to the applicant, on 7 April 2012, at the metro station Ganjlik in Baku, he was disseminating flyers inviting to participate in the authorised demonstration of 8 April 2012. The flyers contained access directions to the place where the demonstration was planned to be held.

Several plain-clothed persons approached the applicant and inquired about the flyers. The applicant explained the purpose of the flyers and produced a letter by the Baku City Executive Authority giving permission for the intended demonstration. However, these persons took the applicant to a police station. They presented themselves as police officers, but did not show their police badges or any identity documents. The applicant was taken to the police station in an ordinary car without any police identification marks.

In the police station the applicant was questioned and was subjected to a personal search, about which a report was drawn up. Also, police officers prepared a statement ( raport ) about the incident. It appears that the applicant made a statement that he had not committed any offence and had been arrested unlawfully.

According to the applicant, he was not promptly informed about the reasons for his arrest. The applicant ’ s rights, including the right to have a lawyer, were not properly explained to him.

Apparently, 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 not informed of or served with a copy of this report.

The applicant was brought before the Narimanov District Court on the day of his arrest. The court found that the applicant had deliberately failed to comply with the lawful order of police officers to go with them to a police office for inspection of lawfulness of the applicant ’ s activities (distribution of flyers). The first-instance court convicted him under Article 310.1 of the CAO and sentenced him to a ten days ’ “administrative detention”.

According to the applicant, the hearing before the first-instance court lasted for approximately thirty minutes. He insisted on hiring a lawyer of his own choice, but the judge disregarded this request.

It appears that the first-instance court relied heavily on the administrative offence report issued in respect of the applicant and the only witnesses questioned during the court hearing were the police officers who had arrested the applicant .

The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction had violated his rights because he had disseminated flyers inviting to participate in a peaceful and authorised demonstration. 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 case. On 27 April 2012 the Baku Court of Appeal rejected the applicant ’ s appeal and upheld the decision of the first-instance court.

(b) Application no. 38170/12 lodged on 4 June 2012 by Jalal Garayev

According to the applicant, on 7 April 2012, near the metro station Hazi Aslanov in Baku, he was disseminating flyers inviting to participate in the authorised demonstration of 8 April 2012. The flyers contained access directions to the place where the demonstration was planned to be held.

Several police officers approached the applicant and inquired about the flyers. The applicant explained the purpose of the flyers. Despite this, the applicant was taken on foot to a police station.

In the police station the applicant 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, including the right to have a lawyer, 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 committed an administrative offence under Article 310.1 of the CAO. The applicant refused to sign the report.

The applicant was brought before the Khatai District Court on the day of his arrest. The court found that he had deliberately failed to comply with the lawful order of police officers by trying to escape from and making noise at the police station where he had been brought for inspection regarding the lawfulness of his activities (dissemination of flyers). The first-instance court convicted the applicant under Article 310.1 of the CAO and sentenced him to a fifteen days ’ “administrative detention”.

According to the applicant, the hearing before the first-instance court was very brief. The applicant insisted on hiring a lawyer of his own choice, but the judge disregarded this request. Representation by a State-funded lawyer was ineffective.

It appears that the first-instance court relied heavily on the administrative offence report issued in respect of the applicant and the only witnesses questioned during the court hearings were the police officers.

Members of the public 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 he had disseminated flyers inviting to participate in an authorised peaceful demonstration. 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 case. On 24 April 2012 the Baku Court of Appeal rejected the applicant ’ s appeal and upheld the decision of the first-instance court.

(c) Application no. 69126/12 lodged on 16 October 2012 by Nihad Huseynov

According to the applicant, on 6 April 2012, at around 9 p.m. at Nizami street in Baku, he was disseminating flyers inviting to participate in the authorised demonstration of 8 April 2012.

At an unspecified time police officers approached the applicant and told him that disseminating flyers was illegal and requested the applicant to stop it. It appears that the applicant was arrested and taken to a police station after midnight on 7 April 2012.

In the police station the applicant 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, including the right to have a lawyer, 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 committed an administrative offence under Article 310.1 of the CAO. According to the applicant, the police officers made him sign the report , and he was never served with a copy of it or with other materials in his case-file.

The applicant was brought before the Sabail District Court on the day of his arrest. According to the applicant, the police officers questioned as witnesses testified that he had been arrested on account of dissemination of flyers inviting to unlawful demonstration. The court found, without mentioning dissemination of flyers, that he had deliberately failed to comply with the lawful order of the police by making noise in the street . The first ‑ instance court convicted the applicant under Article 310.1 of the CAO and sentenced him to a fifteen days ’ “administrative detention”.

The applicant insisted on hiring a lawyer of his own choice, but the judge disregarded this request.

It appears that the first-instance court relied heavily on the administrative offence report issued in respect of the applicant and the only witnesses questioned during the court hearings were the police officers.

Members of the public were not allowed to attend the court hearings, even though the court had not taken any formal decision to close the hearings to the public.

The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction had violated his rights because he had disseminated flyers inviting to participate in an authorised peaceful demonstration. The applicant also complained that his arrest had been unlawful and that the hearings 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 case. On 13 April 2012 the Baku Court of Appeal rejected the applicant ’ s appeal and upheld the decision of the first-instance court.

(d) Application no. 69131/12 lodged on 16 October 2012 by Elnur Asgarov

According to the applicant, on 7 April 2012, near the metro station Azadlig Prospekti in Baku, he was disseminating flyers inviting to participate in the authorised demonstration of 8 April 2012.

Some plain-clothed persons approached the applicant and forcefully took him to police officers standing nearby. The applicant explained to the police officers the purpose of the flyers and that the intended demonstration had been authorised. Despite this, the applicant was taken to a police station in an ordinary car.

In the police station the applicant 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, including the right to have a lawyer, 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 committed an administrative offence under Article 310.1 of the CAO. According to the applicant, police officers made him sign the report . He was never served with a copy of this report or with other materials in his case-file.

The applicant was brought before the Binagadi District Court on the day of his arrest. The court found that the applicant had told the police officers that he had been disseminating flyers about authorised demonstration, but had refused to answer the police officers ’ further questions, and, by doing so, had deliberately failed to comply with the lawful order of police officers. The first-instance court convicted the applicant under Article 310.1 of the CAO and sentenced him to an eleven days ’ “administrative detention”.

According to the applicant, the hearing before the first-instance court lasted for approximately ten minutes. He insisted on hiring a lawyer of his own choice, but the judge disregarded this request.

It appears that the first-instance court relied heavily on the administrative offence report issued in respect of the applicant and the only witnesses questioned during the court hearings were the police officers.

Members of the public were not allowed to attend the court hearings, even though the court had not taken any formal decision to close the hearings to the public.

The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction had violated his rights because he had disseminated flyers inviting to participate in a peaceful and authorised demonstration. The applicant also complained that his arrest had been unlawful and that the hearings 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 case. On 18 April 2012 the Baku Court of Appeal rejected the applicant ’ s appeal and upheld the decision of the first-instance court.

(e) Application no. 69642/12 lodged on 16 October 2012 by Rasul Mursalov

According to the applicant, on 21 April 2012, in various places in Baku, he was disseminating flyers inviting to participate in the authorised demonstration of 22 April 2012.

At an unspecified time, after having given away all the flyers, the applicant took a bus, which shortly after was stopped by police officers. The police officers forced the applicant off the bus and took him 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, including the right to have a lawyer, 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 committed an administrative offence under Article 310.1 of the CAO. According to the applicant, he was never served with a copy of the report or with other materials in his case-file.

The applicant was brought before the Nasimi District Court on the day of his arrest. The court found that the applicant had deliberately failed to comply with the lawful order of police officers to stop disseminating flyers about an unauthorised demonstration. The first-instance court convicted the applicant under Article 310.1 of the CAO and sentenced him to a three days ’ “administrative detention”.

The applicant insisted on hiring a lawyer of his own choice, but the judge disregarded this request.

It appears that the first-instance court relied heavily on the administrative offence report issued in respect of the applicant and the only witnesses questioned during the court hearings were the police officers.

Members of the public were not allowed to attend the court hearings, even though the court had not taken any formal decision to close the hearings to the public.

The applicant lodged an appeal before the Baku Court of Appeal, arguing that his conviction had violated his rights because he had disseminated flyers inviting to participate in a peaceful and authorised demonstration. The applicant also complained that his arrest had been unlawful and that the hearings 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 case. On 4 May 2012 the Baku Court of Appeal rejected the applicant ’ s appeal and upheld the decision of the first-instance court.

(f) Application no. 69648/12 lodged on 16 October 2012 by Zulfugar Gubadov

According to the applicant, on 7 April 2012, near his workplace in Baku, he was disseminating flyers inviting to participate in the authorised demonstration of 8 April 2012.

At around 11 p.m. several police officers approached the applicant and asked about the flyers. The applicant explained to the police officers the purpose of the flyers and that the intended demonstration had been authorised. Despite this, the applicant was taken to a police station, in an ordinary car.

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, including the right to have a lawyer, 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 committed an administrative offence under Article 310.1 of the CAO. The applicant refused to sign the report. According to the applicant, he was never served with a copy of the report or with other materials in his case-file.

The applicant was brought before the Binagadi District Court on the day of the arrest. The court found that the applicant had told the police officers that he had been disseminating flyers about authorised demonstration, but had refused to go with them to a police station for further inquiry, and, by doing so, had deliberately failed to comply with the lawful order of police officers. The first-instance court convicted the applicant under Article 310.1 of the CAO and sentenced him to a ten days ’ “administrative detention”.

The applicant insisted on hiring a lawyer of his own choice, but the judge disregarded this request.

It appears that the first-instance court relied heavily on the administrative offence report issued in respect of the applicant and the only witnesses questioned during the court hearings were the police officers.

Members of the public 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 he had disseminated flyers inviting to participate in an authorised peaceful demonstration. 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 case. On 16 April 2012 the Baku Court of Appeal rejected the applicant ’ s appeal and upheld the decision of the first-instance court.

COMPLAINTS

1. The applicants complain under Article 5 of the Convention that they were not promptly informed about the reasons for their arrest; they were not given an opportunity to contact their relatives (except for the applicant in application no. 38158/12) ; their rights, including a right to have a lawyer, were not properly explained to them; 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 (except for the applicant in application no. 38170/12 ); and that they were arrested by plain-clothed persons ( applications nos. 38158/12 and 69131/12).

2. The applicants further 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.

Also, the applicants ( except for the applicant in application no. 38158/12) 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 for distribution of flyers prior to peaceful public gatherings, in which they intended to participate, was an unlawful interference with their right to freedom of assembly under Article 11 of the Convention. The applicants in applications nos. 38158/12 and 38170/12 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, were the applicants afforded a fair and public 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, 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 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 a democratic society for the purposes of Article 11 § 2?

4. Has there been a violation of Article 10 of the Convention?

5. Did the demonstrations in question eventually take place as planned on 8 and 22 April 2012?

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, 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.

CASE SPECIFIC QUESTIONS

1. Application no. 38158/12: Was the applicant given access to a lawyer after his arrest? Was the applicant served with a copy of the administrative offence report and with other materials in his case-file?

2. Application no. 38170/12: Was the applicant served with a copy of the administrative offence report and with other materials in his case-file?

3. Application no. 69126/12: The parties are requested to submit a copy of the decision of the Baku Court of Appeal of 13 April 2012.

APPENDIX

No.

Application

no.

Lodged on

Applicant name

date of birth

place of residence

Notes

First-instance judgment

Appellate judgment

38158/12*

02/06/2012

Elchin DAMIROV

1966Baku

10 days ’ administrative detention for dissemination of flyers (leaflets) inviting to participate in the authorised demonstration of 8 April 2012.

Decision of the Narimanov District Court of 7 April 2012

Decision of the Baku Court of Appeal of 27 April 2012

38170/12*

04/06/2012

Jalal GARAYEV

1964Baku

15 days ’ administrative detention for dissemination of flyers (leaflets) inviting to participate in the authorised demonstration of 8 April 2012.

Decision of the Khatai District Court of 7 April 2012

Decision of the Baku Court of Appeal of 24 April 2012

69126/12

16/10/2012

Nihad HUSEYNOV

1991Baku

15 days ’ administrative detention for dissemination of flyers (leaflets) inviting to participate in the authorised demonstration of 8 April 2012.

Decision of the Sabail District Court of 7 April 2012

Decision of the Baku Court of Appeal of 13 April 2012 (received by the applicant on 10 May 2012)

69131/12

16/10/2012

Elnur ASGAROV

1988Baku

11 days ’ administrative detention for dissemination of flyers (leaflets) inviting to participate in the authorised demonstration of 8 April 2012.

Decision of the Binagadi District Court of 7 April 2012

Decision of the Baku Court of Appeal of 18 April 2012

69642/12

16/10/2012

Rasul MURSALOV

1985Zagatala

3 days ’ administrative detention for dissemination of flyers (leaflets) i nviting to participate in the authorised demonstration of 22 April 2012.

Decision of the Nasimi District Court of 21 April 2012

Decision of the Baku Court of Appeal of 4 May 2012

69648/12

16/10/2012

Zulfugar GUBADOV

1981Baku

10 days ’ administrative detention for dissemination of flyers (leaflets) inviting to participate in the authorised demonstration of 8 April 2012.

Decision of the Binagadi District Court of 7 April 2012

Decision of the Baku Court of Appeal of 16 April 2012