Communicated on 19 May 2014

FIRST SECTION

Application no . 5231/13 Rufat HAJIBEYLI against Azerbaijan and 16 other applications (see list appended)

STATEMENT OF FACTS

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, as submitted by the applicants, are similar in all cases, unless indicated otherwise, and may be summarised as follows.

The applicants are opposition-oriented activists.

In the period from 2010 to 2013 a number of opposition parties or groups organised several peaceful demonstrations in Baku. These demonstrations had not been authorised and many participants were arrested.

Four of these demonstrations took place on 20 October 2012, 17 November 2012, 26 January 2013 and 10 March 2013. Each of the applicants participated in one of these demonstrations.

According to the applicants, the organisers had given prior notice to the relevant authorities about the planned demonstrations; however, the authorities had not authorised holding of the demonstrations.

It appears that the organisers of the demonstrations of 26 January 2013 and 10 March 2013 had not given a formal notice to the relevant authorities about the planned demonstrations. Information about these demonstrations had been disseminated through Facebook or through press.

The demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants demanded that the Government, inter alia , conduct democratic reforms in the country. Moreover, the participants of the demonstration of 26 January 2013 condemned use of force by the police against participants of previous demonstrations; and the participants of the demonstration of 10 March 2013 protested over deaths of numerous soldiers in the army.

All of the demonstrations were dispersed by the police.

The applicants (except the applicants in applications nos. 5231/13, 5417/13 and 8193/13) were arrested by the police either at or near the places where the demonstrations were held. They were taken to various police stations.

The applicants in applications nos. 5231/13, 5417/13 and 8193/13 were arrested in proximity to the headquarters of the opposition party Musavat . They had planned to proceed in a rally from the headquarters to the place where the demonstration of 20 October 2012 had been held.

According to some of the applicants, they were arrested by plain-clothed persons (the applicants in applications nos. 5231/13, 5417/13, 8193/13, 8468/13, 12854/13, 14249/13, 17447/13, 17569/13, 17626/13, 42989/13 and 45211/13).

According to the applicants, they were not given an opportunity to contact their relatives and were not promptly informed about the reasons for their arrest. The applicants ’ rights, including the right to have a lawyer, were not properly explained to them and they were not given access to a lawyer.

On the day of each applicant ’ s arrest, an “administrative offence report” ( inzibati xəta haqqında protokol ) was drawn up in respect of each applicant. Each report (except for the reports in applications nos. 21219/13 and 44581/13) 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”). Additionally, the applicants in applications nos. 8204/13, 8468/13, 12854/13 and 31201/13 were charged under Article 298 (violation of rules on holding public assemblies) of the CAO. The applicants in applications nos. 21219/13 and 44581/13 were charged under Article 298.2 (participation in a public assembly which was not organised in accordance with law) of the CAO.

The applicants were never served with a copy of the administrative offence reports issued against them. The applicants in applications nos. 8193/13, 8204/13 and 31201/13 refused to sign the administrative offence report drawn up in their respect .

Each applicant was brought before a first-instance court on the day of the arrest (except for the applicant in application no. 44581/13 who was brought before a first-instance court the following day). In each case the respective 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. In ap plication no. 5231/13 the first ‑ instance court found that the applicant had attempted “to make noise by shouting” on a street , without mentioning the demonstration of 20 October 2012. In application no. 17575/13 the first-instance court stated in general terms that the applicant had deliberately failed to comply with the lawful order of police officers, without mentioning the demonstration of 17 November 2012. In applications nos. 21219/13 and 44581/13 the respective first-instance court found that the applicant had participated in a demonstration which was not organised in accordance with law (an offence under Article 298.2 of the CAO).

In each case the first-instance court convicted the applicant under Article 310.1 of the CAO (except for the applicants in applications nos. 21219/13 and 44581/13 who were convicted under Article 298.2 of the CAO). In applications nos. 8468/13 and 12854/13 the applicants were also convicted under Article 298 of the CAO. Each applicant was sentenced to a period of “administrative detention” varying from five to thirteen days.

According to most of the applicants, the hearing before the first-instance court in each case lasted only a few minutes (applications nos. 5231/13, 8204/13, 8468/13, 12854/13, 17447/13, 17626/13, 21219/13, 31201/13, 42989/13 and 45211/13 ).

The applicants had insisted on employing lawyers of their own choice, but the judges of the respective first-instance courts had disregarded their requests. According to most of the appl icants, representation by State ‑ funded lawyers was ineffective and of a formalistic nature (applications nos. 5417/13, 8193/13, 8204/13, 8468/13, 12854/13, 14249/13, 17447/13, 17569/13, 17575/13, 31201/13 and 45211/13 ) .

The first-instance courts relied heavily on the administrative offence reports issued in respect of the applicants. The only witnesses questioned during the court hearings were the police officers who had arrested the applicants (application no. 5231/13) or those who had not been involved in the applicants ’ arrest at all (applications nos. 5417/13, 8193/13, 14249/13, 17569/13, 17575/13, 17626/13, 21219/13 and 45211/13). According to the applicants in applications nos. 8204/13, 8468/13, 12854/13, 14226/13, 31201/13, 42989/13 and 44581/13, no witnesses were questioned in their respective cases, except for the applicants themselves.

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

The applicants lodged appeals before the Baku Court of Appeal, arguing that their convictions were in violation of their rights because the demonstrations in which they had participated or attempted to participate had been peaceful. The applicants also complained that their arrest had been unlawful and that the hearings before the respective first-instance courts had not been fair.

In his appeal the applicant in application no. 12854/13 also complained that, when sentencing him to administrative detention, the domestic courts had failed to take into consideration the fact that he had a second-degree disability, in breach of the requirements of the law. The applicant observed that, according to the domestic legislation, a person with a second-degree disability could not be sentenced to “administrative detention”.

The applicants asked the Baku Cou rt of Appeal to quash the first ‑ instance courts ’ decisions in their respective cases. On various dates, the Baku Court of Appeal rejected the applicants ’ appeals and upheld the decisions of the first-instance courts.

COMPLAINTS

1. The applicants complain, under Article 5 of the Convention, that they were not promptly informed about the reasons for their arrest; that they were not given an opportunity to contact their relatives; that their rights, including the right to have a lawyer, 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; and, in some cases, that they were arrested by plain-clothed persons.

2. 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 to be questioned were police officers.

Also, the applicants complain under Article 6 of the Convention that their right to a public hearing was violated.

3. The applicants complain that they were arrested and prosecuted for participating (or attempting to participate) in peaceful demonstrations, in breach of Article 11 of the Convention. The applicants also rely on Article 10 in this respect.

4. The applicants in applications nos. 12854/13, 14226/13, 14249/13, 17447/13, 17569/13, 17575/13, 17626/13, 42989/13 and 45211/13 complain, invoking Article 7 of the Convention, that the domestic law serving as a basis for their conviction did not comply with the principle of foreseeability. The applicants argue that participation in a peaceful demonstration (advance notice about which had been given to the relevant authorities) was their constitutional right and not a criminal offence.

5. The applicant in application no. 12854/13 complains, relying on 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: according to the domestic legislation, the applicant could not be sentenced to administrative detention because he had a second-degree disability. The applicant also relies on Article 3 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, 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?

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 terms of Article 11 § 2?

4. 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.

5. 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 refusing to authorise the demonstrations.

CASE SPECIFIC QUESTIONS

1. Applications nos. 12854/13, 14226/13, 14249/13, 17447/13, 17569/13, 17575/13, 17626/13, 42989/13 and 45211/13:

Did the acts of which the applicants were found guilty constitute an offence, as required by Article 7 of the Convention? In particular, did the domestic law clearly provide for (a) the offence of deliberately failing to comply with the lawful order of police officers to refrain from participating in an unauthorised demonstration, or the offence of violating rules on holding public assemblies, and (b) the procedure for the organisation and holding of assemblies itself (see Vyerentsov v. Ukraine, no. 20372/11, 11 April 2013)?

2. Application no. 12854/13:

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?

APPENDIX

No.

Application

no.

Lodged on

Applicant name

date of birth

place of residence

Notes

First-instance judgment

Appellate judgment

5231/13

04/01/2013

Rufat HAJIBEYLI

1985Aghjabedi

9 days’ administrative detention for participation in the demonstration of 20 Oct ober 2012

Decision of the Binagadi District Court of 20 October 2012

Decision of the Baku Court of Appeal of 29 October 2012

5417/13

04/01/2013

Tural ABBASOV

1982Baku

10 days’ administrative detention for participation in the demonstration of 20 October 2012

Decision of the Binagadi District Court of 20 October 2012

Decision of the Baku Court of Appeal of 29 October 2012

8193/13

19/01/2013

Elshad BUDAGOV

1965Baku

7 days’ administrative detention for participation in the demonstration of 20 October 2012

Decision of the Binagadi District Court of 20 October 2012

Decision of the Baku Court of Appeal of 29 October 2012

8204/13 *

19/01/2013

Vagif KHALIGOV

1967Baku

10 days’ administrative detention for participation in the demonstration of 20 October 2012

Decision of the Sabail District Court of 20 October 2012

Decision of the Baku Court of Appeal of 29 October 2012

8468/13 *

19/01/2013

Abulfaz GURBANLI

1982Baku

8 days’ administrative detention for participation in the demonstration of 20 October 2012

Decision of the Sabail District Court of 20 October 2012

Decision of the Baku Court of Appeal of 29 October 2012

12854/13 *

22/01/2013

Shahin MIRZAYEV

1960Baku

7 days’ administrative detention for participation in the demonstration of 20 October 2012

Decision of the Sabail District Court of 20 October 2012

Decision of the Baku Court of Appeal of 1 November 2012

14226/13 *

05/02/2013

Orkhan JARCHIYEV

1985Gazakh

7 days’ administrative detention for participation in the demonstration of 17 November 2012

Decision of the Sabail District Court of 17 November 2012

Decision of the Baku Court of Appeal of 23 November 2012

14249/13 *

05/02/2013

Hafiz FARHADOV

1983Baku

7 days’ administrative detention for participation in the demonstration of 17 November 2012

Decision of the Sabail District Court of 17 November 2012

Decision of the Baku Court of Appeal of 23 November 2012

17447/13

08/02/2013

Elchin JARULLAYEV

1988Baku

5 days’ administrative detention for participation in the demonstration of 17 November 2012

Decision of the Sabail District Court of 17 November 2012

Decision of the Baku Court of Appeal of 23 November 2012

17569/13

08/02/2013

Mammad IBRAHIM

1966Yevlakh

7 days’ administrative detention for participation in the demonstration of 17 November 2012

Decision of the Sabail District Court of 17 November 2012

Decision of the Baku Court of Appeal of 23 November 2012

17575/13

08/02/2013

Ingilab KARIMOV

1964Baku

7 days’ administrative detention for participation in the demonstration of 17 November 2012

Decision of the Nasimi District Court of 17 November 2012

Decision of the Baku Court of Appeal of 23 November 2012

17626/13 *

12/02/2013

Shakir ABBASOV

1954Baku

7 days’ administrative detention for participation in the demonstration of 20 October 2012

Decision of the Nasimi District Court of 20 October 2012

Decision of the Baku Court of Appeal of 29 October 2012

21219/13 *

04/03/2013

Tunjay GULIYEV

1989Baku

13 days’ administrative detention for participation in the demonstration of 26 January 2013

Decision of the Nasimi District Court of 26 January 2013

Decision of the Baku Court of Appeal of 4 February 2013

31201/13 *

11/04/2013

Tazakhan MIRALAMLI

1970Jalilabad

8 days’ administrative detention for participation in the demonstration of 20 October 2012

Decision of the Sabail District Court of 20 October 2012

Decision of the Baku Court of Appeal of 29 October 2012

42989/13 *

12/02/2013

Jamil HAJIYEV

1977Baku

5 days’ administrative detention for participation in the demonstration of 17 November 2012

Decision of the Sabail District Court of 17 November 2012

Decision of the Baku Court of Appeal of 23 November 2012

44581/13 *

15/05/2013

Mahammad MAJIDLI

1973Baku

7 days’ administrative detention for participation in the demonstration of 10 March 2013

Decision of the Sabail District Court of 11 March 2013

Decision of the Baku Court of Appeal of 27 March 2013

45211/13

18/02/2013

Zulfugar EYVAZOV

1959Baku

7 days’ administrative detention for participation in the demonstration of 17 November 2012

Decision of the Sabail District Court of 17 November 2012

Decision of the Baku Court of Appeal of 23 November 2012