FIFTH SECTION
CASE OF MAJIDLI AND OTHERS v. AZERBAIJAN
(Applications nos. 56317/11 and 10 others – see appended list)
JUDGMENT
STRASBOURG
26 September 2019
This judgment is final but it may be subject to editorial revision.
In the case of Majidli 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 3 September 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in eleven 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 Appendix.
2. On various dates the Azerbaijani Government, who were represented by their Agent, Mr Ç. Əsgərov, were given notice of the applications. Third‑party observations were received in applications nos. 56317/11, 67932/11, 27472/12 and 59661/12 from Mr Maina Kiai, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, and the Human Rights Centre of Ghent University, following the granting of leave to intervene as a third party in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court).
3. The Government did not object to the examination of the present applications by a Committee.
THE FACTS
4. The applicants’ personal details are set out in the Appendix.
5. The applicants are opposition-oriented activists and members of opposition parties.
6. Starting from 2010 a number of opposition parties or groups organised several demonstrations in Baku. These demonstrations had not been authorised and many participants were arrested during the dispersal of those demonstrations. Two of these demonstrations took place on 19 June 2010 and 2 April 2011.
7. The applicant in application no. 56317/11 was arrested during the dispersal of the demonstration of 19 June 2010 and taken to a police station where an administrative-offence report (inzibati xəta haqqında protokol) was drawn up. The report stated that by participating in an unauthorised demonstration the applicant had deliberately failed to comply with a lawful order of the police, and, by doing so, 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”).
8. On the same date the Sabail District Court convicted the applicant under Article 310.1 of the CAO, and sentenced him to a fine of 20 Azerbaijani manats (AZN – approximately 20 euros (EUR)). Both after the arrest and during the first-instance-court hearing the applicant was not represented by a lawyer. The first-instance court relied heavily on the administrative-offence report issued in respect of the applicant. The applicant lodged an appeal and complained that his conviction had been in violation of his rights because the demonstration in which he had participated had been peaceful.
9. On 23 July 2010 the Baku Court of Appeal held a hearing in the applicant’s and his lawyer’s absence and upheld the decision of the first‑instance court.
10. On 28 February 2011 the Registry of the Sabail District Court sent the applicant a copy of the decision of 23 July 2010.
11. The year 2011 was marked by an increased number of opposition demonstrations in Azerbaijan, mainly in Baku. They were held, inter alia, on 11 and 12 March, 2 and 17 April, 22 May and 19 June 2011.
12. As regards the demonstration of 2 April 2011, the organisers gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”) on 18 March 2011. The aim of the demonstration was, in particular, to demand the Government “guarantee the right to freedom of assembly”, “carry out democratic reforms” and “release political prisoners”.
13. By the letter of 31 March 2011 the BCEA refused to authorise the holding of the demonstration at the place indicated by the organisers and proposed that it be held at a different location.
14. Nevertheless, the organisers decided to hold the demonstration in the central squares of Baku. Information about the demonstration of 2 April 2011 was disseminated through the press.
15. A day before the demonstration of 2 April 2011, the Baku city prosecutor’s office issued a notice addressed to the applicant in application no. 59661/12 and certain other individuals – presumed organisers of the demonstration of 2 April 2011 – stating that:
“If there is an attempt to hold a public assembly in places not agreed upon with the Baku City Executive Authority, illegal actions consisting of breach of public order and insubordination to lawful demands of public officers, or causing inconvenience to population, or causing disruption of the normal functioning of transport, enterprises, bodies and organisations, will be prevented in accordance with the law, and prescribed relevant measures will be taken against you as one of the organisers of the public assemblies.”
16. The notice also contained a warning that the mentioned actions entailed criminal responsibility under Article 220 (mass disorder) and Article 233 (organisation or active participation in actions causing a breach of public order) of the Criminal Code.
17. The applicants decided to participate in the demonstration of 2 April 2011. The video recordings submitted by some applicants show that on 2 April 2011 as soon as the protesters began gathering in central streets of Baku, marching and chanting slogans calling for the government’s resignation, the police started to disperse the demonstration by arresting demonstrators and forcing them into police vehicles and buses, which resulted in isolated incidents of clashes between police officers and demonstrators. It appears that several demonstrators inflicted physical injuries on around twenty-five police officers, damaged two private vehicles, and broke windows of some shops and offices located near the place where the demonstration was held.
(a) Applications nos. 56317/11, 67932/11, 27472/12 and 59661/12
(i) Criminal proceedings against the applicants
18. The applicants were arrested during the dispersal of the demonstration of 2 April 2011 and brought to various police offices for questioning as witnesses. Later on the same day, the formal decisions were drawn up to detain the applicants as suspects in the criminal cases.
19. On 4 April 2011 the prosecution formally charged the applicants with a criminal offence under Article 233 of the Criminal Code (organisation of or active participation in actions causing a breach of public order).
20. The applicants in applications no. 56317/11, 67932/11 and 27472/12 were detained pending trial. Mr Fuad Gahramanli was placed under police supervision as a preventive pre-trial measure.
21. On 29 July 2011 a bill of indictment was drawn up in respect of the applicants and the case went to trial.
22. During the trial the applicants pleaded not guilty and argued that the case against them was politically motivated. While the trial against the applicants was under way, on 25 August 2011 the Sabail District Court delivered a judgment in another criminal case against six other participants in the demonstration of 2 April 2011. The judgment stated that the mentioned individuals had committed the criminal offences in question under the direction (təşkilatçılıq) of the applicants and several other individuals.
23. By a judgment of 3 October 2011, the Sabail District Court convicted the applicants under Article 233 of the Criminal Code and sentenced them to various terms of imprisonment ranging from two years to two years and six months (see Appendix). The Sabail District Court found that the applicants had disobeyed the orders of the police, organised and actively participated in actions causing a breach of public order, traffic jams, destruction of private and public property and infliction of injuries to twenty-five civilians and police officers. In finding the applicants guilty, the court relied on the following evidence:
‑ Statements of the civil claimants who testified that some unidentified participants in the demonstration had inflicted on them either physical or material damage;
‑ Statements of the police officers who testified that the applicants had actively participated in the demonstration, behaved aggressively, led other participants, chanted slogans and refused to obey orders of the police;
‑ Medical forensic reports concerning injuries sustained by a number of victims;
‑ Forensic reports concerning the damage inflicted to various vehicles and shops;
‑ Video footage which showed Mr Hajili speaking about the necessity to organise a demonstration against the Government’s policies during a meeting of several opposition parties held on 27 February 2011;
‑ Video footage which contained an interview with Mr Gahramanli held on 1 April 2011 and in which he spoke about organisation of the demonstration of 2 April 2011;
‑ Video footage which showed Mr Gahramanli marching together with others and chanting slogans during the demonstration of 2 April 2011;
‑ Video footage which showed Mr Majidli chanting slogans and being arrested during the dispersal of the demonstration;
‑ A video recording which showed other participants in the demonstration kicking and damaging a bus.
24. As regards the civil claims lodged against the applicants by legal and physical persons, the first-instance court rejected them for procedural reasons.
25. The applicants appealed, complaining of the unfairness of the criminal proceedings, the breach of their right to presumption of innocence, and that their arrest and conviction had been in violation of their right to freedom of assembly.
26. On 16 December 2011 the Baku Court of Appeal dismissed the applicants’ appeals against the judgment of 3 October 2011, finding their complaints unfounded.
27. On 24 April 2012 and 21 June 2012 the Supreme Court dismissed appeals on points of law lodged by the applicants and upheld the Baku Court of Appeal’s judgment of 16 December 2011.
(ii) Alleged ill-treatment of Mr. Tural Abbasli (application no. 27472/12)
28. According to the applicant, on 2 April 2011 he was subjected to ill-treatment during his arrest and then in police custody.
29. On 4 April 2011 Mr Tural Abbasli complained of his ill-treatment to a judge deciding on his pre-trial detention. The judge sent the complaint to the Baku city prosecutor’s office for examination.
30. On 25 April 2011 the Baku city prosecutor’s office refused to institute criminal proceedings in connection with the applicant’s allegations of ill-treatment.
31. The applicant lodged a complaint in respect of the decision of 25 April 2011 of the Baku city prosecutor’s office with the Sabail District Court.
32. On 8 September 2011 the court dismissed the applicant’s complaint. The applicant appealed.
33. In a final decision of 23 September 2011 the Baku Court of Appeal upheld the first-instance court’s decision. According to the applicant, he received the decision of the Baku Court of Appeal on 3 October 2011.
(b) Applications nos. 6814/13, 6903/13, 7990/13, 12717/13 and 28563/13
34. Some of the applicants were arrested during the dispersal of the demonstration on 2 April 2011, while others were a few days later.
35. On 9 April 2011 the prosecution formally charged Mr Babak Hasanov, Mr Elshan Hasanov and Mr Sahib Karimov with a criminal offence under Article 233 of the Criminal Code (active participation in actions causing a breach of public order). Mr Zulfugar Eyvazov and Mr Arif Alishli were formally charged with the same criminal offence under Article 233 of the Criminal Code on 15 and 16 April 2011 respectively. Mr Arif Alishli, Mr Sahib Karimov and Mr Zulfugar Eyvazov were additionally charged under Article 186.1 of the Criminal Code (intentional destruction or damaging of property) for damaging a bus owned by S.M., which the police had been using to transport arrested demonstrators. The applicants were detained pending trial.
36. On 28 June 2011 a bill of indictment was drawn up in respect of the applicants and the case went to trial.
37. During the trial the applicants pleaded not guilty, relying on their right to freedom of assembly.
38. By a judgment of 25 August 2011, the Sabail District Court convicted the applicants under Article 233 of the Criminal Code. The court also convicted Mr. Arif Alishli under Article 186.1 of the Criminal Code while acquitting Mr Sahib Karimov (application no. 12717/13) and Mr Zulfugar Eyvazov (application no. 6903/13) under this Article for lack of evidence. The applicants were sentenced to various terms of imprisonment ranging from one year and six months to three years (see Appendix). The Sabail District Court found that the applicants had disobeyed the orders of the police, actively participated in actions causing a breach of public order, traffic jams, destruction of private and public property and infliction of injuries to twenty-five civilians and police officers. The court also found that the actions of Mr Arif Alishli (application no. 28563/13) “had resulted in damage to other individuals’ property”.
39. In finding the applicants guilty, the court relied on the following evidence:
‑ The testimony of S.M., according to whom some protesters had hit his bus and damaged it;
‑ Statements of civil claimants concerning material loss suffered because of the traffic jams caused by the demonstration;
‑ Statements of police officers, who testified that unidentified participants had behaved aggressively, chanted slogans and refused to obey orders of the police to disperse. One of the police officers who had participated in the arrest of demonstrators was able to identify Mr Babak Hasanov;
‑ Testimonies of bystanders, according to whom unidentified demonstrators chanted slogans and disobeyed the police;
‑ Forensic and financial reports concerning the material damage sustained by various vehicles and businesses;
‑ Video recordings which showed Mr Arif Alishli, together with another demonstrator, kicking and punching various parts of a bus (which had been used by the police to transport arrested demonstrators).
40. The Sabail District Court also examined civil claims against the applicants. The court allowed claims lodged by legal and physical persons who had allegedly suffered financial losses because of the traffic jams caused, awarding in total the sum of AZN 5,265 (approximately EUR 4,659) to be paid jointly by the applicants and another defendant, E.I.
41. In addition, the court granted S.M.’s civil claim in the amount of AZN 1,325 (approximately EUR 1,172) against Mr. Arif Alishli (application no. 28563/13) and E.I.
42. The applicants appealed, complaining of the unfairness of the criminal proceedings and the breach of their right to freedom of assembly.
43. On 18 October 2011 the Baku Court of Appeal reduced the sentence of Mr Elshan Hasanov from two years’ to one year’s imprisonment and dismissed the remainder of the applicants’ appeals.
44. On 5 June 2012 and 17 October 2012 the Supreme Court dismissed appeals on points of law by the applicants and upheld the Baku Court of Appeal’s judgment of 18 October 2011.
45. On 22 June 2012 Mr Babak Hasanov, Mr Zulfugar Eyvazov and Mr Sahib Karimov were pardoned and released from serving the remainder of their sentences.
(c) Applications nos. 23365/14 and 25680/14
46. Mr Ulvu Guliyev and Mr Rufat Hajibeyli were arrested on 8 and 22 April 2011 respectively.
47. On 9 April 2011 the prosecution formally charged Mr Ulvu Guliyev with criminal offences under Article 233 of the Criminal Code and Article 315.1 of the Criminal Code (resistance to or violence against a public officer). Mr Rufat Hajibeyli was formally charged on 23 April 2011 with the criminal offence under Article 233 of the Criminal Code. The applicants were detained pending trial.
48. On 13 July 2011 a bill of indictment was drawn up in respect of the applicants and the case went to trial.
49. During the trial the applicants pleaded not guilty relying on their right to freedom of assembly.
50. By a judgment of 10 October 2011, the Nasimi District Court found that the applicants had actively participated in actions causing a breach of public order. The court also found that Mr Ulvu Guliyev had violently resisted police officers. The court convicted the applicants under Article 233 of the Criminal Code. Mr Ulvu Guliyev was additionally convicted under Article 315.1 of the Criminal Code. The applicants were sentenced to terms of imprisonment of one year and six months and three years respectively (see Appendix). In finding the applicants guilty, the court relied on the following evidence:
‑ Testimonies of four police officers, E.T., N.S., M.M. and R.H., who had participated in the arrest of Mr Ulvu Guliyev and who testified that the latter had violently resisted the arrest by elbowing one of them, N.S., as a result of which that police officer’s cap had fallen off. According to N.S., he had not sustained any injuries as a result. He further submitted that Mr Ulvy Guliyev had kicked and damaged a police car;
‑ Testimonies of other police officers, according to which other demonstrators behaved aggressively, chanted slogans and refused to obey orders of the police to disperse;
‑ Statements of civil claimants and financial reports concerning the damage caused to their property and material loss suffered because of the traffic jams caused by the demonstration;
‑ Testimonies of bystanders which witnessed unidentified demonstrators disobeying orders of the police, damaging a police car and breaking a pharmacy window;
‑ Video recordings of the demonstration of 2 April 2011.
51. As regards the civil claims lodged against the applicants by legal and physical persons, the first-instance court dismissed them for procedural reasons.
52. The applicants lodged appeals with the Baku Court of Appeal. They complained that there had been various defects in the trial and that the hearings before the first-instance court had not been fair. They also complained that their arrest and conviction had been in violation of their right to freedom of assembly.
53. On 1 December 2011 the Baku Court of Appeal dismissed the applicants’ appeals.
54. On 3 July 2012 and 17 September 2013 the Supreme Court dismissed appeals on points of law by the applicants and upheld the Baku Court of Appeal’s judgment of 1 December 2011.
55. On 22 June 2012 Mr Ulvu Guliyev and Mr Rufat Hajibeyli were pardoned and released from serving the remainder of their sentences.
56. The relevant provisions of the Criminal Code provide as follows:
Article 186. Deliberate destruction or damage of property
“186.1. Deliberate destruction or damage of another’s property which caused significant harm
is punishable by a fine in the amount of [AZN 500 to 1,000], or deprivation of liberty for a period of up to two years.”
Article 233. Organisation or active participation in actions causing
a breach of public order
“Organisation by a group of individuals of actions which grossly breach public order, or are associated with insubordination in respect of lawful demands of a public officer, or cause disruption of the normal functioning of transport, companies, [public] bodies and organisations, as well as active participation in such actions –
is punishable by a fine in the amount of [AZN 5,000 to 8,000], or correctional labour for a period of up to two years, or deprivation of liberty for a period of up to three years.”
Article 315. Resistance to or violence against a public officer
“315.1. Use of violence against, or violent resistance to, a public officer in connection with the exercise of the latter’s official duties, or use against the close relatives of such a public officer of violence which does not pose a danger to their life or health, or the threat of use of such violence –
is punishable by deprivation of liberty for a period of up to three years.”
57. For a summary of other relevant provisions concerning administrative proceedings, the relevant provisions concerning the organisation and holding of public assemblies, and the relevant extracts of international documents, see the judgment in the case of Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 27-42, 15 October 2015).
THE LAW
58. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
59. The applicants complained that their arrest, prosecution and conviction for participation in the demonstration of 2 April 2011 had been in breach of their right to freedom of assembly, as provided for in Article 11 of the Convention. Some applicants also relied on Article 10 of the Convention (see Appendix). Those provisions read as follows:
Article 10
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
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.”
60. The Government submitted that there had been an interference with the applicants’ right to freedom of assembly due to the dispersal of the demonstration of 2 April 2011. They argued that this inference had been prescribed by law and was necessary in a democratic society to protect the rights and freedoms of others, in the interests of national security and for prevention of disorder or crime. Notably, the organisers had failed to hold the demonstration at the place proposed by the authorities and the demonstration had been dispersed by the police in accordance with Article 14 of the Law on Freedom of Assembly. According to the Government, the police had only intervened when demonstrators had started to behave aggressively causing public disorder.
61. The applicants submitted that the demonstration was peaceful and its dispersal by the authorities was unlawful and unjustified. They further argued that their arrest, prosecution and criminal conviction for participation in the demonstration had been arbitrary and not based on specific facts and evidence. According to the applicants, the real aim of these measures had been to punish them and to discourage others from participating in peaceful assemblies.
62. The third-party interveners in their joint submissions provided an overview of the case-law of the United Nations Human Rights Committee, the Inter-American Commission on Human Rights and the Court concerning various aspects of the right to freedom of assembly. They further expressed their concern about the general situation concerning the right to freedom of assembly in Azerbaijan, in particular, as regards the use of administrative and criminal sanctions for participation in peaceful assemblies.
63. The Court has to examine whether Article 11 of the Convention is applicable to the present cases, and accordingly whether it has jurisdiction ratione materiae to examine the relevant complaints on the merits.
64. The Court reiterates that Article 11 of the Convention only protects the right to “peaceful assembly”, a notion which does not cover a demonstration where the organisers and participants have violent intentions. The guarantees of Article 11 of the Convention therefore apply to all gatherings except to those where the organisers and participants have the intention to incite violence or otherwise reject the foundations of a democratic society (see Yaroslav Belousov v. Russia, nos. 2653/13 and 60980/14, § 168, 4 October 2016, with further references).
65. The Court has previously held that the assembly in Baku on 2 April 2011 had been intended to be peaceful and therefore fell within the scope of Article 11 of the Convention (see Ahad Mammadli [Committee] nos. 69456/11 and 48271/13, § 34, 16 June 2016). As regards the individual cases at hand, it does not transpire from the case files that the applicants had violent intentions and were responsible for the initial acts of aggression which contributed to the deterioration of the assembly’s peaceful character. It follows from the material in the case files that the authorities dispersed the demonstration because it was being held in a place not agreed with them, and not because of the violent acts of some demonstrators (see paragraphs 14 and 16 above). Accordingly, the applicants enjoyed the protection of Article 11 of the Convention. The Court also finds that the applicants’ arrest and ensuing prosecution and criminal conviction for participation in the said demonstration constituted an interference with the exercise of freedom of assembly.
66. The Court further notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible.
(a) The scope of the applicants’ complaints
67. In the circumstances of the present cases, Article 10 is to be regarded as a lex generalis in relation to Article 11, a lex specialis. It is therefore unnecessary to take the complaints under Article 10 into consideration separately (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202; Kasparov and Others v. Russia, no. 21613/07, §§ 82-83, 3 October 2013; and Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 85, 15 October 2015).
68. On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present cases, also be considered in the light of Article 10. The protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly enshrined in Article 11 (see Ezelin, cited above, § 37, and Kudrevičius and Others, cited above, § 86).
(b) Whether the interference complained of was “prescribed by law”, pursued a legitimate aim and was “necessary in a democratic society”
69. The Court considers that in the circumstances of the present cases there is no need to examine whether the interference was “prescribed by law” or pursued one or more of the aims set out in Article 11 § 2, having regard to its conclusions set out below regarding the necessity of the interference (see Mushegh Saghatelyan v. Armenia, no. 23086/08, § 237, 20 September 2018).
(i) In respect of Mr Mahammad Majidli, Mr Arif Hajili, Mr Fuad Gahramanli, Mr Tural Abbasli, Mr Babak Hasanov, Mr Elshan Hasanov, Mr Sahib Karimov, Mr Zulfugar Eyvazov and Mr Rufat Hajibeyli (applications nos. 56317/11, 67932/11, 59661/12, 27472/12, 6814/13, 7990/13, 12717/13, 6903/13 and 25680/14)
70. The Court notes that the issues raised in the present applications are essentially the same as those examined in the case of Gafgaz Mammadov v. Azerbaijan, no. 60259/11, 15 October 2015). Firstly, the Court reiterates that it has already found that the dispersal of the demonstration of 2 April 2011 was not justified under Article 11 of the Convention having regard, in particular, to the fact that the authorities had been notified of the demonstration and it had been intended to be peaceful and had been conducted in a peaceful manner until the moment of its dispersal by the police (see Ahad Mammadli, cited above, § 35, and Bayram Bayramov and Others v. Azerbaijan ([Committee] nos. 74609/10 and 5 others, § 52, 16 February 2017). Secondly, as regards the criminal proceedings against the applicants under Article 233 of the Criminal Code, it is apparent from the domestic decisions that the applicants were arrested, detained and convicted for participation in an unauthorised peaceful demonstration and chanting non-violent slogans. Nothing in the material before the Court suggests that the applicants committed any reprehensible acts during the demonstration. Notably, the accusation that the applicants behaved aggressively during the demonstration and disobeyed the orders of the police was not supported by any specific individual facts. Furthermore, the Court notes that the situation in the present cases is aggravated by the fact that the applicants were subjected to criminal prosecution, pre-trial detention and prison terms.
71. Having regard to the above, the Court concludes that, even assuming that the dispersal of the demonstration as well as the applicants’ arrest, criminal prosecution and conviction complied with domestic law and pursued one of the legitimate aims enumerated in Article 11 § 2 of the Convention – presumably, prevention of disorder and crime and protection of the rights and freedoms of others – the measures in question were disproportionate and could not but have the effect of discouraging them from participating in political rallies. Undoubtedly, those measures had a serious potential also to deter other opposition supporters and the public at large from attending demonstrations and, more generally, from participating in open political debate.
72. There has therefore been a violation of Article 11 of the Convention in respect of Mr Mr Mahammad Majidli, Mr Arif Hajili, Mr Fuad Gahramanli, Mr Tural Abbasli, Mr Babak Hasanov, Mr Elshan Hasanov, Mr Sahib Karimov, Mr Zulfugar Eyvazov and Mr Rufat Hajibeyli (applications nos. 56317/11, 67932/11, 59661/12, 27472/12, 6814/13, 7990/13, 12717/13, 6903/13 and 25680/14).
(ii) In respect of Mr Arif Alishli and Mr Ulvu Guliyev (applications nos. 28563/13 and 23365/14)
73. The Court reiterates that when individuals are involved in acts of violence the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of assembly, and the imposition of a sanction for such reprehensible acts would be considered to be compatible with the guarantees of Article 11 of the Convention (see Gülcü v. Turkey, no. 17526/10, § 116, 19 January 2016). That said, the expression “necessary in a democratic society” implies that the interference corresponds to a “pressing social need” and, in particular, that it is proportionate to the legitimate aim pursued. The nature and severity of the sanction imposed are factors to be taken into account when assessing the proportionality of an interference in relation to the aim pursued (see Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 111, ECHR 2011 (extracts)).
74. In a number of cases the Court has found a breach of Article 11 of the Convention in view of the disproportionate sanctions imposed on the applicants who had engaged in reprehensible acts during demonstrations (see, for example, Yaroslav Belousov, cited above; Taranenko v. Russia, no. 19554/05, § 95, 15 May 2014; Karpyuk and Others v. Ukraine, nos. 30582/04 and 32152/04, § 235, 6 October 2015; and Gülcü, cited above, § 116).
75. Turning to the present cases, the Court observes that both applicants were sentenced to three years’ imprisonment. Mr Arif Alishli was found guilty of damaging property owned by a private individual. His conviction was based on the testimonies of police officers involved in the dispersal of the demonstration and video recordings. As regards Mr Ulvu Guliyev, he was convicted for punching a police officer who had been involved in his arrest but who had not sustained any injuries as a result. His guilty verdict was based exclusively on the submissions of police officers and was not corroborated by any other evidence.
76. In assessing the severity of the sanctions imposed on the applicants, the Court considers it important that the criminal files did not disclose any pre-existing intention by the applicants to participate in violent acts, and no such intention was established by the domestic courts. In this context, the Court reiterates that where demonstrators do not engage in acts of violence, it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (see Uzunget and Others v. Turkey, no. 21831/03, § 53, 13 October 2009). As far as can be discerned from the domestic decisions, the applicants were not responsible for the deterioration of the assembly’s peaceful character, which was rather caused by the forceful intervention of the police to disperse and arrest demonstrators. The applicants’ violent conduct was sporadic in nature and appeared to be a spontaneous reaction to the force used by the police to arrest protestors, the majority of whom had been peaceful. It therefore did not attain the degree of violence which the Court has found in other cases that would call for lengthy prison terms (compare Lutskevich v. Russia, nos. 6312/13 and 60902/14, § 100, 15 May 2018, and Barabanov v. Russia, nos. 4966/13 and 5550/15, § 74, 30 January 2018; and contrast, Primov and Others v. Russia, no. 17391/06, §§ 156‑63, 12 June 2014, and Osmani and Others v. the Former Yugoslav Republic of Macedonia (dec.), no. 50841/99, 11 October 2001).
77. Thus, having regard to the applicants’ overall conduct during the demonstration and the severity of the sanctions imposed, the Court concludes that, even assuming that the applicants’ criminal convictions complied with domestic law and pursued one of the legitimate aims enumerated in Article 11 § 2 of the Convention – presumably, prevention of disorder and crime and protection of the rights and freedoms of others – they cannot be considered as proportionate measures in the circumstances of the cases. Their convictions, and especially the severity of their sentences, could not but have had the effect of discouraging them and other opposition supporters, as well as the public at large, from attending demonstrations and, more generally, from participating in open political debate.
78. There has therefore been a violation of Article 11 of the Convention in respect of Mr Arif Alishli and Mr Ulvu Guliyev (applications nos. 28563/13 and 23365/14).
79. Several applicants (see appendix), also complained that they had suffered a breach of their rights protected by Articles 5 and 6 of the Convention on account of their arrest, pre-trial detention and unfair criminal trial following their participation in the demonstration of 2 April 2011.
80. Having regard to the facts of the cases 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 respective applicants’ complaints under Articles 5 and 6 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and İmret v. Turkey (no. 2), no. 57316/10, § 61, 10 July 2018).
81. Relying on Article 6 and Article 11 of the Convention the applicant in application no. 56317/11 complained of the dispersal of the demonstration of 19 June 2010 and the allegedly unfair administrative proceedings against him. The relevant parts of Article 6 of the Convention 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; ...”
82. The Government submitted that the final decision in the applicant’s case had been adopted on 23 July 2010, whereas the applicant had applied to the Court on 16 August 2011. The application had therefore been lodged out of time. They argued that a copy of the decision of the Baku Court of Appeal had been sent to the applicant on the day of its delivery and provided a copy of the courts’ letter dated 23 July 2010. They further submitted that even if the applicant had not received the decision shortly after that date, he should have applied to the Registry of the Baku Court of Appeal for a copy in good time. However, the applicant had applied to the Baku Court of Appeal more than six months after the delivery of its decision.
83. The applicant submitted that in accordance with relevant domestic law courts’ decisions and summons were to be sent by registered letters, but the Government had failed to submit evidence demonstrating that the court’s letter of 23 July 2010 had been served on him. According to the applicant, the decision of the Baku Court of Appeal had been sent to him only after his complaints to the court.
84. The Court notes that the Government did not provide any evidence demonstrating that the final decision had been served on the applicant in good time. In this context, the Court observes that in the previous case lodged by the same applicant, it examined a similar situation and concluded that the applicant complied with the six-month rule by lodging his application before the Court within six months of the date of service of the final decision (see Mahammad Majidli v. Azerbaijan ([Committee] nos. 24508/11 and 44581/13, §§31-38, 16 February 2017).
85. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. The Court therefore concludes that the applicant complied with the six-month rule.
86. The submissions made by the applicant and the Government with respect to the dispersal of the demonstration of 19 June 2010, his arrest, subsequent conviction and the unfairness of the administrative proceedings were similar to those made by the relevant parties in respect of the similar complaints raised by the same applicant in the case of Mahammad Majidli (cited above).
87. Having regard to the facts of the case and its clear similarity to that of the case of Mahammad Majidli (cited above) on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in that judgment, and finds that in the present case the applicant’s rights to fair trial and freedom of assembly were breached for the same reasons as those outlined in the above case.
88. The applicant’s arrest and administrative proceedings against him could not but have had the effect of discouraging him 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 (see Abbas and Others v. Azerbaijan ([Committee] nos. 69397/11 and 3 others, § 40, 13 July 2017 where the first applicant in that case was also convicted under Article 310.1 of the CAO to a fine of AZN 20).
89. There has accordingly been a violation of Article 6 §§ 1 and 3 and Article 11 of the Convention.
90. By a fax of 9 September 2014, Mr Aliyev, the applicants’ representative in applications nos. 7990/13 and 12717/13 introduced a new complaint on behalf of the applicants, arguing that the seizure from his office of the entire case files relating to the applicants’ pending cases before the Court, together with all the other case files, had amounted to a hindrance to the exercise of the applicants’ right of individual application under Article 34 of the Convention, which reads 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.”
91. The submissions made by the applicants 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).
92. 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 cases and sees no reason to deviate from that finding.
93. The Court therefore finds that the respondent State has failed to comply with its obligations under Article 34 of the Convention as regards applications nos. 7990/13 and 12717/13.
94. The applicant in application no. 27472/12 complained under Article 3 of the Convention that he had been subjected to ill-treatment during his arrest at the demonstration of 2 April 2011 and then in police custody.
95. The Government submitted that the applicant had failed to comply with the six-month rule as the final decision in the applicant’s case had been adopted on 23 September 2011 and had been delivered to him on the same date whereas the applicant had applied to the Court on 2 April 2012. In support of their submissions they provided a copy of the acknowledgments of receipt of the above decision signed by the applicant and his lawyer.
96. The applicant disagreed with the Government and submitted that he had received the decision of 23 September 2011 by post on 3 October 2011.
97. The Court reiterates that where a final decision was automatically served on the applicant, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from “the date of service of the written judgment”, irrespective of whether the judgment concerned had previously been delivered orally (see Worm v. Austria, 29 August 1997, §§ 32-33, Reports of Judgments and Decisions 1997-V).
98. In the present case the Court observes that the Government submitted copies of the receipts showing that the decision of 23 September 2011 had been served on the applicant and his lawyer on the same date. The applicant did not dispute the authenticity of these documents. Accordingly, having regard to the fact that the applicant’s complaint under Article 3 was lodged on 2 April 2012, that is to say more than six months after the delivery of the final domestic decision of 23 September 2011, the Court concludes that the applicant’s complaint should be rejected for non‑compliance with the six-month rule pursuant to Article 35 §§ 1 and 4 of the Convention.
99. 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.”
100. The applicants claimed various amounts in respect of pecuniary and non-pecuniary damage as well as costs and expenses incurred in the domestic proceedings and the proceedings before the Court. The sums requested are indicated in the Appendix (column E) to the judgment.
101. The Government considered that the applicants’ claims were unsubstantiated and excessive.
102. Regard being had to the documents in its possession and to its case law, the Court considers it reasonable to award the sums indicated in the Appendix (column F) and dismisses the remaining claims for just satisfaction as unsubstantiated.
103. 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,
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the Appendix (column F), 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;
Done in English, and notified in writing on 26 September 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško André Potocki
Deputy Registrar President
Appendix