FIFTH SECTION

CASE OF HASANOV AND OTHERS v. AZERBAIJAN

(Applications nos. 39919/07 and 14 others – see appended list)

JUDGMENT

STRASBOURG

5 September 2019

This judgment is final but it may be subject to editorial revision.

In the case of Hasanov and Others v. Azerbaijan,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 André Potocki, President,
 Mārtiņš Mits,
 Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 9 July 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in fifteen applications against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). The details concerning each application are set out in the appended table.

2.  On various dates notice of the applications or their parts was given to the Azerbaijani Government, who were represented by their Agent, Mr Ç. Əsgərov.

3.  The Government did not object to the examination of the present applications by a Committee.

THE FACTS

I.  GENERAL INFORMATION PERTAINING TO ALL APPLICATIONS

4.  The circumstances relating to the applicants’ arrest and custody, and the subsequent administrative proceedings against them are similar to those in Bayramov v. Azerbaijan ([Committee] nos. 19150/13 and 52022/13, 6 April 2017); Huseynov and Others v. Azerbaijan ([Committee] nos. 34262/14 and 5 others, 24 November 2016); Huseynli and Others v. Azerbaijan (nos. 67360/11 and 2 others, 11 February 2016); and Gafgaz Mammadov v. Azerbaijan (no. 60259/11, 15 October 2015). That is to say, the applicants, who were members of various opposition parties and movements at the material time, were arrested and convicted under different provisions of the Code of Administrative Offences (“the CAO”) with a view to either punishing them for participating in peaceful demonstrations or preventing them from doing so. Further information concerning the applications, including the applicants’ personal details, is set out in the appended table.

II.  PECULIARITIES OF INDIVIDUAL APPLICATIONS Nos. 39919/07 AND 56947/10

A.  Application no. 39919/07

5.  The applicant, together with a number of other members of the Popular Front Party of Azerbaijan, was arrested during the dispersal of an unauthorised demonstration held on 23 November 2006. On the same date the Sabail District Court, relying on the related administrative offence report, convicted the applicant under Article 310.1 of the CAO and sentenced him to ten days’ administrative detention. It appears that similar decisions were given in respect of a number of others arrested in connection with the demonstration. The applicant was not represented during the pre‑trial or trial stage of the proceedings. According to the applicant, following the trial, he was unaware of the decision taken by the court as it was not announced by the judge during the hearing. He was able to obtain a copy of the decision several months later (see below).

6.  On 24 November 2006, E.Q., a lawyer, lodged an appeal against the Sabail District Court’s decision of 23 November 2006 on behalf of several of the members of the Popular Front Party who had been detained, including the applicant. According to the applicant, there had been no contact between him and E.Q. and he was unaware of the appeal lodged by the latter. On 27 November 2006 the Baku Court of Appeal held a hearing in the applicant’s absence and upheld the decision of 23 November 2006.

7.  Following his release from detention, the applicant requested a copy of the Sabail District Court’s decision of 23 November 2006, but to no avail. On 7 February 2007 he managed to obtain a copy by visiting the court’s registry.

8.  On 12 February 2007 the applicant lodged an appeal against the decision of 23 November 2006, alleging a breach of his rights under Articles 5, 6, 10 and 11 of the Convention. He complained, in particular, that he had been denied legal assistance during the pre-trial and trial stage of the proceedings. On 2 March 2007 the Court of Appeal refused to admit his appeal on the grounds that a similar appeal had already been lodged by E.Q. and examined on 27 November 2006.

B.  Application no. 56947/10

9.  On 5 February 2007 the applicant instituted civil proceedings, seeking compensation for his unlawful arrest on 23 November 2006 (see application no. 39919/07 above). On 12 June 2008 the Sabail District Court dismissed his civil action. The decision was upheld on appeal on 21 October 2008. The applicant lodged a cassation appeal, but it was left unexamined for procedural reasons.

THE LAW

I.  JOINDER OF THE APPLICATIONS

10.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.  THE GOVERNMENT’S OBJECTION OF NON-COMPLIANCE WITH THE SIX-MONTH AND EXHAUSTION RULES

11.  The Government submitted that the applicant in application no. 39919/07 had been represented before the appellate court by a lawyer, E.Q., who had lodged an appeal on his behalf. In support of their submissions, the Government provided a copy of the “order” issued by the Azerbaijani Bar Association on 24 November 2006, which stated that E.Q. was representing the applicant before the appellate court. The Government argued that the applicant had failed to comply with the six-month rule as the final decision in this case had been adopted on 27 November 2006, when the appellate court had dismissed the appeal lodged by E.Q., whereas the applicant had applied to the Court on 21 August 2007. They further submitted that the applicant had also failed to exhaust domestic remedies as E.Q. had not raised the complaints which the applicant had subsequently lodged with the Court at the domestic level.

12.  The applicant disagreed with the Government and claimed that he had not been aware of the appeal lodged by E.Q. on his behalf. He had never had any contact with E.Q. and had never signed any contract or power of attorney which would have authorised the latter to represent him. The applicant had lodged an appeal against the decision of 23 November 2006 after he had received a copy of it.

13.  The Court reiterates that the object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, §§ 156-157, ECHR 2009).

14.  Where no effective remedy is available to an applicant, the time‑limit expires six months after the date of the acts or measures complained about. However, special considerations may apply in exceptional cases where an applicant first avails him or herself of a domestic remedy and only at a later stage becomes aware, or should have become aware, of the circumstances which make that remedy ineffective. In such a situation the six-month period could be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016).

15.  Turning to the present case, the Court observes that the applicant was not represented by a lawyer during the pre-trial or trial stage of the administrative proceedings against him. It appears that E.Q. was hired by one of the other members of the Popular Front Party of Azerbaijan who had been arrested during the dispersal of the demonstration of 23 November 2006 and that he lodged an appeal on behalf of its members, including the applicant. However, it does not transpire from the case file that the lawyer in question ever visited the applicant in detention or provided any other legal assistance to him apart from lodging an appeal. Furthermore, there are no documents showing that the applicant authorised him to represent him before the appellate court. As to the copy of the “order” concerning the applicant’s representation by E.Q., as submitted by the Government, the Court notes that this document was issued by the Azerbaijani Bar Association and did not bear the applicant’s signature.

16.  Against this background, the Court points out that in its previous judgments concerning a similar subject matter it has identified a number of systemic shortcomings with respect to administrative proceedings conducted under the CAO. In many of those cases, the Court found that the applicants’ defence rights had been restricted to an extent incompatible with Article 6 of the Convention since they had not been provided with copies of the relevant administrative offence reports, had not been represented by a lawyer during the pre-trial stage of the proceedings (and in some instances before the trial court), and had been unable to hire a lawyer of their own choice during the trial (see, for example, Gafgaz Mammadov v. Azerbaijan, no. 60259/11, 15 October 2015, §§ 79, 90 and 92, and Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, 11 February 2016, §§ 115, 128 and 131).

17.  Having regard to the fact that the administrative proceedings against the applicant in the present case were tainted by similar defects (see paragraphs 30-31 below), the Court finds that his allegation that he was unaware of the appeal lodged by E.Q. plausible. Accordingly, the Court concludes that in the exceptional circumstances of the present case, the six‑month period should be calculated from the time when the applicant became aware of the circumstances which made the remedy used by him ineffective, that is, when the Court of Appeal refused to admit his appeal on 2 March 2007 on the grounds that a similar appeal had already been examined by the court. The applicant therefore complied with the six‑month rule. The Court accordingly dismisses the Government’s objection.

18.  For the reasons outlined above, the Court also dismisses the Government’s objection as regards the non-exhaustion of domestic remedies on account of E.Q.’s failure to raise the complaints at issue before the appellate court. The applicant raised those complaints in his appeal. It was not admitted by the appellate court for procedural reasons, which cannot be imputed to him.

III.  ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

19.  The applicants complained that their arrest and conviction had been measures used by the authorities to punish them for participating in demonstrations and/or to prevent them from doing so. The applicants invoked Article 11 of the Convention, which reads as follows:

Article 11

“1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

A.  Admissibility

20.  The Government submitted that the applicant in application no. 66881/11 had failed to complain to the domestic courts of a breach of his right under Article 11.

21.  The Court notes that the material before it does not support the Government’s objection as to the exhaustion of domestic remedies. The documents included in the case file indicate that in his written appeal the applicant concerned complained that the real purpose of his arrest and conviction had been to prevent him from participating in the demonstration.

22.  The Court further notes that the applicants’ complaints under Article 11 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds and must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

23.  The submissions made by the applicants and the Government were similar to those made by the relevant parties in respect of the similar complaints raised in the cases of Bayramov v. Azerbaijan ([Committee] nos. 19150/13 and 52022/13, 6 April 2017, §§ 38-43), Huseynov and Others v. Azerbaijan ([Committee] nos. 34262/14 and 5 others, 24 November 2016, §§ 43‑44), Huseynli and Others (cited above, §§ 81‑83) and Gafgaz Mammadov (cited above, §§ 45‑49).

2.  The Court’s assessment

24.  Having regard to the facts of the present cases and their clear similarity to those of Bayramov (cited above, §§ 44-47), Huseynov and Others (cited above, §§ 45-51), Huseynli and Others (cited above, §§ 97‑99) and Gafgaz Mammadov (cited above, §§ 50-68) on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in those judgments, and finds that in the present cases the applicants’ right to freedom of assembly was breached for the same reasons as those outlined in the above-mentioned judgments.

25.  The applicants’ arrest and the administrative proceedings against them could only have had the effect of discouraging them from participating in political rallies. Those measures undoubtedly have a chilling effect, which deters other opposition supporters and the public at large from attending demonstrations, and, more generally, from participating in open political debate.

26.  There has accordingly been a violation of Article 11 of the Convention.

IV.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

27.  The applicants in applications nos. 39919/07, 66881/11, 981/15, 2931/15, 2941/15, 14983/15, 30502/15 and 30506/15 complained under Article 6 of the Convention that in the proceedings concerning the alleged administrative offences, they had not had a public and fair hearing. The relevant parts of Article 6 read as follows:

“1.  In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...

3.  Everyone charged with a criminal offence has the following minimum rights:

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b)  to have adequate time and facilities for the preparation of his defence;

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

A.  Admissibility

28.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds and must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

29.  The submissions made by the applicants and the Government were similar to those made by the relevant parties in respect of the similar complaints raised in the cases of Bayramov (cited above, §§ 52-53), Huseynov and Others (cited above, §§ 54-56), Huseynli and Others (cited above, §§ 105-109) and Gafgaz Mammadov (cited above, §§ 72-73).

2.  The Court’s assessment

30.  Having regard to the facts of the present cases and their clear similarity to those of Bayramov (cited above, §54), Huseynov and Others (cited above, §57), Huseynli and Others (cited above, §§ 112-134) and Gafgaz Mammadov (cited above, §§ 76-94) on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in those judgments, and finds that the administrative proceedings in the present cases, considered as a whole, were not in conformity with the guarantees of a fair hearing.

31.  There has accordingly been a violation of Article 6 §§ 1 and 3 of the Convention.

32.  Having regard to the above finding, there is no need to examine the arguments of some of the applicants concerning the alleged lack of a public hearing (see Mirzayev and Others v. Azerbaijan ([Committee] nos. 12854/13 and 2 others, § 30, 20 July 2017).

V.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

33.  The applicants in applications nos. 39919/07, 66881/11, 981/15, 14983/15, 30502/15 and 30506/15 complained that their arrest, custody and administrative detention had been in breach of Article 5 of the Convention, the relevant parts of which read as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)  the lawful detention of a person after conviction by a competent court; ...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...

2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A.  Admissibility

34.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that is not inadmissible on any other grounds and must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

35.  The submissions made by the applicants and the Government were similar to those made by the relevant parties in respect of the similar complaints raised in the cases of Bayramov (cited above, §§ 60-61), Huseynov and Others (cited above, §§ 62-65), Huseynli and Others (cited above, §§ 138-141) and Gafgaz Mammadov (cited above, §§ 99-102).

2.  The Court’s assessment

36.  Having regard to the facts of the present cases and their clear similarity to those in the cases of Huseynov and Others (cited above, §§ 66‑67), Huseynli and Others (cited above, §§ 146-147) and Gafgaz Mammadov (cited above, §§ 107-108) on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in those judgments, and finds that in the present cases the applicants’ right to liberty was breached for the same reasons as those outlined in the above‑mentioned judgments.

37.  Accordingly, there has been a violation of Article 5 § 1 of the Convention.

38.  In view of the nature and the scope of its finding above, the Court does not consider it necessary to examine the applicants’ other complaints under Article 5 of the Convention (see Gafgaz Mammadov, cited above, § 110).

VI.  ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

39.  By a fax of 9 September 2014, Mr Aliyev, the applicant’s representative in applications nos. 39919/07 and 56947/10 lodged a further complaint on behalf of the applicant, arguing that the seizure from his office of the case files relating to the applicant’s pending cases before the Court, together with all the other case files, had amounted to a hindrance to the exercise of the applicant’s right of individual application under Article 34 of the Convention, the relevant parts of which read as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

A.  The parties’ submissions

40.  The submissions made by the applicant and the Government were identical to those made by the parties in respect of the same complaint raised in the case of Annagi Hajibeyli v. Azerbaijan (no. 2204/11, §§ 57-60, 22 October 2015).

B.  The Court’s assessment

41.  In Annagi Hajibeyli, having examined an identical complaint based on the same facts, the Court found that the respondent State had failed to comply with its obligations under Article 34 of the Convention (ibid., §§ 64‑79). The Court considers that the analysis and finding it made in the Annagi Hajibeyli judgment also apply to the present case and sees no reason to deviate from that finding.

42.  The Court therefore finds that the respondent State has failed to comply with its obligations under Article 34 of the Convention.

VII.  ALLEGED VIOLATIONS OF ARTICLES 10, 13, 14 AND 18 OF THE CONVENTION

43.  The applicants in applications nos. 39919/07, 56947/10, 66881/11, 981/15, 30502/15, 30506/15, 32162/15 raised additional complaints in relation to their arrest and conviction. They invoked Articles 10, 13, 14 and 18 of the Convention (for the complaints raised in each application see the appended table).

44.  Having regard to the facts of the cases, the submissions of the parties and its finding of a violation of Article 11 of the Convention, the Court considers that there is no need to give a separate ruling on the admissibility or the merits of the applicants’ complaints under Articles 10, 13, 14 and 18 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014 and Bakır and Others v. Turkey, no. 46713/10, § 80, 10 July 2018).

VIII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

45.  Lastly, the applicant in applications nos. 39919/07 and 56947/10 complained under Article 3 about his ill-treatment during arrest and conditions of his detention. He also complained that the civil proceedings concerning his compensation claim for unlawful arrest had been in breach of Article 6.

46.  The Court has examined these complaints as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IX.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

47.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage, costs and expenses

48.  All the applicants, except the applicant in application no. 6811/14, claimed various amounts in respect of pecuniary and non-pecuniary damage, and for the costs and expenses incurred in the domestic proceedings and the proceedings before the Court. The sums requested are indicated in column F of the appended table.

49.  The Government considered the applicants’ claims unsubstantiated and excessive.

50.  As regards application no. 6811/14, the Court notes that the applicant did not submit any claim for just satisfaction, as required by Rule 60 of the Rules of Court. The Court therefore makes no award. As regards the remaining applications, the Court considers it reasonable to award the sums indicated in the appended table (column G) and dismisses the remaining claims for just satisfaction.

B.  Default interest

51.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the applications;

2.  Declares the complaints under Articles 3 and 6 of the Convention concerning ill-treatment, access to court and unfair civil proceedings raised in applications nos. 39919/07 and 56947/10 inadmissible and the complaints under Articles 5, 6 and 11 of the Convention, as set out in column D of the appended table, admissible;

3.  Holds that there has been a violation of Article 11 of the Convention on account of the applicants’ arrest and conviction in all the applications;

4.  Holds that there has been a violation of Article 6 §§ 1 and 3 of the Convention in respect of the applicants in applications nos. 39919/07, 66881/11, 981/15, 2931/15, 2941/15, 14983/15, 30502/15 and 30506/15;

5.  Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the applicants in applications nos. 39919/07, 66881/11, 981/15, 14983/15, 30502/15 and 30506/15;

6.  Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention in applications nos. 39919/07 and 56947/10;

7.  Holds that there is no need to examine the admissibility and merits of the complaints under Article 10, 13, 14 and 18 of the Convention in applications nos. 39919/07, 56947/10, 66881/11, 981/15, 30502/15, 30506/15 and 32162/15;

8.  Holds

(a)  that the respondent State is to pay the applicants, except the applicant in application no. 6811/14, within three months, the amounts indicated in column G of the appended table, plus any tax that may be chargeable to the applicants, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

9.  Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 5 September 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Milan Blaško André Potocki
Deputy Registrar President

APPENDIX