HAJILI AND OTHERS v. AZERBAIJAN - 44699/13 (Judgment : Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) Violation of Arti...) [2017] ECHR 612 (29 June 2017)

In the case of Hajili and Others v. Azerbaijan,

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

          Nona Tsotsoria, President,
          Síofra O’Leary,
          Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having deliberated in private on 6 June 2017,

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

PROCEDURE

1. The case originated in three applications (nos. 44699/13, 47040/13 and 65283/13) 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”) by three Azerbaijani nationals, Mr Ramin Rasim oglu Hajili (“the first applicant”), Ms Nargiz Tofig gizi Yagublu (“the second applicant”) and Mr Agil Arif oglu Aliyev (“the third applicant”), on various dates in 2013 (see Appendix).

2. On 23 April 2015 Ms Yagublu (application no. 47040/13) passed away. Her sister, Nigar Tofig gizi Yagublu, informed the Court of her wish to pursue the application introduced by the late applicant.

3. The applicants were represented by Mr I. Aliyev, a lawyer practicing in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

4. On 29 August 2014 the complaints concerning Articles 5, 6 and 11 of the Convention, raised in all three applications, and Article 10 of the Convention, raised only in application no. 65283/13, were communicated to the Government. On the same date the remainder of all three applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. The Government objected to the examination of the applications by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicants’ dates of birth and places of residence are given in the Appendix.

A. Administrative arrests

7. On 12 January, 26 January and 10 March 2013 demonstrations were planned to be held in Baku. It appears that the organisers of the demonstrations gave no proper prior notice to the relevant authority, the Baku City Executive Authority (“the BCEA”). Information about the demonstrations was disseminated through Facebook or the press.

8. According to the applicants, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The demonstrations of 12 January and 10 March 2013 were aimed at protesting about the deaths of soldiers in the army, while the demonstration of 26 January 2013 condemned the use of force by the police against the participants of previous demonstrations.

9. Each applicant attended one of the demonstrations (see Appendix), but shortly after they had begun the police started to disperse those who had gathered. All three applicants were arrested during the dispersal operations and were taken to police stations.

According to the second applicant, during the demonstration she was giving an interview to the media and the moment of her arrest was recorded.

10. The applicants were questioned at the police stations they had been taken to.

11. On the day of each applicant’s arrest administrative-offence reports (inzibati xəta haqqında protokol) were issued, which stated that the applicants had committed an administrative offence under Article 298.2 of the Code of Administrative Offences (“the CAO”) (participation in a public assembly that was not organised in accordance with the law).

12. According to the first and second applicants, they were never served with copies of the administrative-offence reports or with other documents from their case files.

13. According to the first and third applicants, they were not given access to a lawyer after their arrest or while they were in police custody.

14. According to a statement (ərizə) written by the second applicant at the police station on the day of her arrest, she refused the services of a lawyer.

15. The first applicant was released after being kept in police custody for a few hours, subject to an undertaking to reappear at the police station two days later.

B. Court proceedings against the applicants

16. The third applicant was taken to a trial court directly from the police station on the day following his arrest. The first applicant was brought before a first-instance court on the date he returned to the police station. The second applicant was brought before a court on the day of her arrest; however, the hearing was postponed for two days to allow her to hire a lawyer of her own choosing.

17. A State-funded lawyer was appointed to assist the first applicant. The second and third applicants were not represented by a lawyer. According to documents from the case file of the second applicant, on the day the hearing recommenced, the lawyer she had hired failed to appear and she decided to defend herself in person.

18. None of the material submitted to the Court contains any records showing that the State-funded lawyer, Mr V.M., made any oral or written submissions on behalf of the first applicant.

19. The only witnesses questioned during the court hearing with respect to the second applicant were the police officers who, according to the official records, had arrested her or had drawn up the administrative-offence report. The police officers testified that the applicant had staged an unauthorised demonstration. No witnesses were questioned by the courts in the first and third applicants’ cases.

20. The first-instance courts found that the applicants had participated in unauthorised demonstrations. The applicants were convicted under Article 298.2 of the CAO and sentenced to fines of 450, 500 and 600 Azerbaijani manats (AZN) respectively (see Appendix).

21. On various dates the applicants lodged appeals with the Baku Court of Appeal, arguing that their convictions had been in violation of their rights because the demonstrations in which they had participated had been spontaneous and peaceful. The applicants also complained that their arrests had been unlawful and that the hearings before the first-instance courts had not been fair. They asked the Baku Court of Appeal to quash the first-instance courts’ decisions in their cases.

22. The applicants were not represented before the Baku Court of Appeal by a lawyer.

23. The appellate court refused to grant the applicants’ requests to hear evidence from particular witnesses in their favour, without giving any reasons for the refusal. In the case of the second applicant the court in a similar way additionally refused to examine video recordings made by the media during her arrest.

24. On various dates the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the first-instance courts (see Appendix).

C. Seizure of the applicants’ case files

25. On 8 August 2014 Mr I. Aliyev, who represented all three applicants before the Court, was arrested on charges of large-scale tax evasion, abuse of power and illegal entrepreneurship. On the same day he was detained pending trial. The circumstances relating to Mr Aliyev’s arrest and detention are the subject of a separate application brought by him before the Court (application no. 68762/14).

26. On 8 and 9 August 2014 the prosecuting authorities conducted a search of Mr Aliyev’s home and office. During the search the domestic authorities seized a large number of documents, including all the case files relating to the pending applications before the Court, which were in Mr Aliyev’s possession as a representative. The files relating to the present cases, which, it appears, included copies of all the documents and correspondence between the Court and the parties, were also seized in their entirety. No adequate inventory of the seized document files relating to the Court proceedings was made in the search and seizure records of 8 and 9 August 2014.

27. On an unspecified date Mr Aliyev lodged a complaint with the Nasimi District Court, claiming that the search had been unlawful. He further complained about the seizure of the documents and files relating to the pending court proceedings before the Court and the domestic courts.

28. On 12 September 2014 the Nasimi District Court dismissed Mr Aliyev’s claim. It held that the searches had been conducted in accordance with the relevant law. As to the seizure of the documents relating to the cases pending before the Court and the domestic courts, it found that they could not be returned to the applicants at that stage of the proceedings. Following an appeal, on 23 September 2014 the Baku Court of Appeal upheld the first-instance court’s decision of 12 September 2014.

29. On 25 October 2014 the investigating authorities returned a number of the case files concerning the applications lodged with the Court, including the files relating to the present cases, to Mr Aliyev’s lawyer. The investigator’s relevant decision specified that “since it [had] been established that among the documents seized on 8 and 9 August 2014 there [had been] files concerning applications by a number of individuals and organisations lodged with the European Court of Human Rights, which ha[d] no relation to the substance of the criminal proceedings [against Mr Intigam Aliyev], [those files] ha[d] been delivered to [Mr Aliyev’s lawyer,] Mr Javad Javadov”.

II. RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS

30. At the time of the applicants’ arrest, Article 5 § IV of the Law on Freedom of Assembly of 13 November 1998 provided that no prior written notification was required for spontaneous assemblies.

31. Before amendments were introduced by Law no. 462-IVQD of 2 November 2012, a breach of the rules on the organisation and holding of assemblies had been punishable under Article 298 of the Code of Administrative Offences of 2000 (“the CAO”) by a reprimand or a fine of AZN 7 to AZN 13.

32. Law no. 462-IVQD of 2 November 2012, which entered into force on 1 January 2013, introduced new wording to Article 298 of the CAO on breaching the rules on the organisation and holding of assemblies. Under that amendment, participation in an assembly organised in breach of such rules became explicitly punishable under Article 298.2 of the CAO and punishments in the form of administrative detention of up to fifteen days or community service were introduced for the first time. In addition, the fine for a breach of the rules on the organisation and holding of assemblies was increased and the amounts fixed as follows: between AZN 300 and 600 for participants of an assembly; AZN 1,500 to AZN 3,000 for individuals who organise an assembly; AZN 3,000 to AZN 6,000 for persons in charge (vəzifəli şəxslər) who organise an assembly; and between AZN 15,000 and AZN 30,000 for legal entities involved in the organisation of an assembly.

33. Pursuant to Presidential Order (sərəncam) no. 1866 of 1 December 2011, which was in force until 1 September 2013, the minimum wage in Azerbaijan was AZN 93.5.

34. The relevant extracts of the Resolution 1917 (2013) of the Parliamentary Assembly of the Council of Europe, “The honouring of obligations and commitments by Azerbaijan”, read as follows:

“... 10. Regrettably, there is no political dialogue with the opposition parties outside parliament. The Assembly is concerned by the restrictive climate for the activities of the extra-parliamentary opposition, which complains about limitations imposed on freedom of expression and freedom of assembly and the lack of access to the public media.

11. The establishment of an inclusive political system and a truly competitive and unrestrictive political environment requires full implementation of basic freedoms, including freedom of expression, freedom of assembly and freedom of association. The situation in Azerbaijan is preoccupying and the Assembly expresses its deep concern in this regard.

12. Recently adopted amendments to the Criminal Code and the Administrative Code, which have increased penalties for the organisers of, and participants in, “unauthorised” gatherings, raise concern. Considering the authorities’ ongoing blanket ban on protests in the Baku city centre, these amendments are likely to have a further negative impact on freedom of assembly and freedom of expression. The restrictive use of certain articles of the Criminal Code, in particular Articles 221 and 233, against participants in peaceful, albeit unauthorised, demonstrations, is another matter of concern. ...”

35. The relevant extracts of the Report (CommDH(2013)14) of 6 August 2013 by Nils Muižnieks, the Commissioner for Human Rights of the Council of Europe, following his visit to Azerbaijan from 22 to 24 May 2013, read as follows:

“... 76. The Commissioner is deeply concerned by the recent amendments to the Law on Freedom of Assembly, the Criminal Code and the Code of Administrative Offences, which further erode the right to freedom of assembly. The sanctions which can now be imposed, coupled with the fact that local authorities have not authorised a single rally in Baku city centre in recent years, clearly have a chilling effect on the organisation of or participation in demonstrations.

77. The Commissioner is of the view that participants in peaceful assemblies should not be sanctioned for the mere fact of being present at and actively participating in the demonstration in question, provided they do not do anything illegal, violent or obscene in the course of it. The Commissioner therefore urges the authorities to ensure that no disproportionate sanction, which would undermine the fundamental right to peaceful assembly, is imposed. ...”

36. 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

I. JOINDER OF THE APPLICATIONS

37. Given the similarity of the facts and complaints raised in all three applications, the Court has decided to join the applications in accordance with Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION

38. The applicants complained that the dispersal of the demonstrations by the police and their arrest and conviction for an administrative offence had been in breach of their freedom of assembly, as provided for in 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.”

39. The third applicant also relied on Article 10 of the Convention, which reads 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.”

A. Admissibility

40. The Court notes that these complaints 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. They must therefore be declared admissible.

B. Merits

1. Scope of the third applicant’s complaints

41. The Court notes that in the circumstances of the present case 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 complaint 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).

42. On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present case, 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).

2. The parties’ submissions

43. The applicants argued that the authorities had not taken into consideration the fact that the demonstrations in question had been spontaneous assemblies and therefore no prior notification had been required by law. In particular, in respect of the demonstration of 12 January 2013, the first applicant submitted that the assembly had been held spontaneously in response to information about the suspicious death of a soldier (J.G.) on 7 January 2013. Deaths in the army in non-combat situations had been a serious and widespread problem in Azerbaijan. In respect of the demonstration of 26 January 2013, the second applicant submitted that the assembly had been a spontaneous expression of solidarity with the protests in Ismayilli which had taken place few days earlier and in which the authorities had used force against the protestors. In respect of the demonstration of 10 March 2013, the third applicant submitted that the assembly had been held spontaneously in response to information about another suspicious death of a soldier (S.A.) in a non-combat situation.

44. The applicants also submitted that the authorities had also not taken into consideration the fact that the demonstrations had been intended to be peaceful and had been held in a peaceful manner.

45. The Government submitted that the demonstrations had been organised in breach of provisions of national legislation. They argued in particular that if steps had been taken to organise an assembly, even if those steps had taken place as little as one to two days before its intended date, the assembly could not be regarded as spontaneous.

46. They further argued that the dispersal of the demonstrations had been necessary in the interests of national security, for the protection of public safety and the prevention of disorder or crime, and had been proportionate to the aims pursued.

47. Lastly, the Government submitted that the police authorities had warned the organisers and the participants beforehand that the unauthorised assemblies would be dispersed. The applicants had also been aware of the authorities’ position on unauthorised assemblies and of the administrative penalties for participation in such gatherings.

3. The Court’s assessment

48. The Court notes from the outset that the organisers did not give the BCEA prior notice of the demonstrations at issue. Examining the applicants’ argument that no such notice was required by law, the Court notes that, indeed, under Article 5 § IV of the Law on Freedom of Assembly, no prior written notification was required for “spontaneous assemblies”. Nevertheless, the applicants have failed to sufficiently substantiate their allegations that the demonstrations in which they participated were spontaneous. In particular, given that, as submitted by the first applicant, the death of soldiers in the army had already been a widespread problem in the country, it is not clear why it was urgent to hold demonstrations on specific dates - 12 January and 10 March 2013 - without giving five days’ written notice. Similarly, it is not clear why a demonstration in solidarity with the Ismayilli protests could not have been organised in conformity with the five-day written-notice requirement. In those circumstances, the Court is ready to accept that the dispersal of the demonstrations on 12 January, 26 January and 10 March 2013 was lawful (compare Ibrahimov and Others v. Azerbaijan, nos. 69234/11, 69252/11 and 69335/11, §§ 74-75, 11 February 2016).

49. Turning to the question whether it was necessary in a democratic society to disperse those demonstrations and to convict the applicants, the Court notes that the issues raised by the applicants and the facts of the present cases resemble those of the Gafgaz Mammadov case. Therefore, for the same reasons as those outlined in the Gafgaz Mammadov judgment, the Court concludes that the authorities in the present cases have not adduced relevant and sufficient reasons justifying the dispersal of the demonstrations (see Gafgaz Mammadov, cited above, § 61). The authorities also failed to acknowledge that the act of participating in an unauthorised peaceful demonstration was itself protected by Article 11 of the Convention (ibid., § 63).

50. The dispersal of the demonstrations and the applicants’ arrests and convictions could not but have the effect of discouraging them from participating in political rallies. The measures applied in the present cases and the fear of sanctions that could potentially be applied against participants and organisers of unauthorised peaceful assemblies undoubtedly have a chilling effect on the exercise of freedom of assembly. This deters other opposition supporters and the public at large from attending demonstrations, and, more generally, from participating in open political debate.

51. In these circumstances, the Court finds a violation of Article 11 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

52. The applicants complained under Article 6 that they had not had a fair hearing in the proceedings concerning their alleged administrative offences. 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; ...”

A. Admissibility

53. The Court notes that the complaints under Article 6, raised by all three applicants, 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. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

54. The first and second applicants submitted, in particular, that they had not been served with a copy of the administrative-offence reports issued on them or with other material from their case files prior to the hearing before the first-instance courts, or even later. The first and third applicants further submitted that they had not been assisted by a lawyer at the pre-trial stage. All three applicants argued that during the trial they had also not had effective legal assistance. In addition, the appellate court refused to grant the applicants’ requests to hear evidence from particular witnesses in their favour, without giving any reasons for the refusal. Lastly, the second applicant submitted that the appellate court in a similar manner had refused to examine video recordings made by the media during her arrest.

55. The Government asserted that the applicants had had adequate time and facilities to prepare their defence. They also emphasised that some of the applicants had refused the assistance of State-funded lawyers and had decided to defend themselves in person.

2. The Court’s assessment

56. The Court examines, firstly, the material and the parties’ submissions in the third applicant’s case. The Court notes that there is a significant degree of similarity between the facts of the present case and the issues under Article 6 of the Convention raised by it and those examined in the Gafgaz Mammadov case (cited above). The Court considers that the analysis and conclusions made in that judgment also apply to the present case. In particular, the Court noted that the administrative-offence proceedings had lacked the necessary safeguards and guarantees. The time and facilities to prepare the defence had been inadequate (ibid., §§ 78-81). In addition, there had been a strong reliance by the domestic courts on the administrative-offence report prepared by the police (ibid., § 85), utter disregard by the domestic courts for important factual circumstances and legal issues of the case, inter alia, the peaceful nature of the unauthorised demonstration (ibid., § 86), an absence of legal assistance at the pre-trial stage of the proceedings (ibid., §§ 90-91), and a failure to provide an opportunity to appoint a lawyer of the applicant’s own choosing (ibid., § 92). Having regard to the above, the Court found that the administrative-offence proceedings against the applicant in the Gafgaz Mammadov case, considered as a whole, had not been in conformity with the guarantees of a fair hearing.

57. Having regard to the facts of the present case and their clear similarity to those of the Gafgaz Mammadov case 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 right of the third applicant to a fair trial was breached for the same reasons as those outlined above.

58. The Court examines, secondly, the material and the parties’ submissions in the first and second applicants’ cases. It observes that, after being held in police custody for a few hours and being questioned at the police office without a lawyer present, the first applicant was released pending trial. The trial took place two days later. After being similarly held in police custody and questioned, the second applicant was taken to the court on the day of her arrest. The trial was postponed for two days so that she could hire a lawyer. However, both applicants have failed to explain before the Court whether, during the days preceding the trials, there were any circumstances rendering the time or facilities available to them inadequate; or any factors, such as shortage of time or of financial means, precluding them from contacting and hiring a lawyer of their own choosing to assist them at the trials. The Court therefore considers that the first and second applicants’ complaints of inadequacy of time and facilities and lack of effective legal assistance at the trial are unsubstantiated.

59. However, turning to the question whether the right of the first and second applicants to a reasoned decision was respected, the Court notes that the issues raised by the applicants and the facts of the present cases resemble those of the Gafgaz Mammadov case. The Court therefore concludes that, as in the Gafgaz Mammadov case, in the first and second applicants’ cases the domestic courts relied strongly on the statements given by the police officers and/or the administrative-offence reports prepared by the police (see Gafgaz Mammadov, cited above, § 85). The domestic courts also completely disregarded important factual circumstances and legal issues of the cases, inter alia, the peaceful nature of the unauthorised demonstrations (ibid., § 86). In addition, in both cases the appellate court refused to grant the applicants’ requests to hear evidence from particular witnesses in their favour, without giving any reasons for the refusal. In the second applicant’s case the appellate court in a similar manner also refused to examine the video recordings.

60. In these circumstances the Court finds a violation of Article 6 §§ 1 and 3 of the Convention in respect of all three applicants.

61. Furthermore, having regard to the above finding of a violation of Article 6 §§ 1 and 3 of the Convention (that the administrative-offence proceedings against the applicants, considered as a whole, were not in conformity with the guarantees of a fair hearing), the Court finds it unnecessary to rule on the issue of whether refusal by the second applicant of State-funded legal assistance at the pre-trial stage of the proceedings constituted an unequivocal waiver of the right to a lawyer.

IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

62 All three applicants complained that their arrest and custody had been in breach of Article 5 of the Convention. They had not been promptly informed of the reasons for their arrest, and the arrest and custody had not conformed to domestic procedural rules. Article 5 of the Convention, in so far as relevant, reads 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: ...

(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.”

63. The Government submitted that the applicants had been escorted to police stations for the preparation of administrative-offence reports in respect of them. After the administrative-offence reports had been drawn up, the first and second applicants had been released pending trial, while the third applicant had been kept in custody and later brought before a court. The third applicant’s arrest and placement in custody had been in accordance with Article 399.3 of the CAO. Under that Article, a person facing proceedings for an administrative offence punishable by administrative detention may be taken into custody for up to twenty-four hours.

64. The Government also submitted that the applicants had been duly informed of the reasons for their arrest and of their rights under the relevant provisions of the CAO.

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

66. However, having regard to its findings in relation to Articles 6 and 11 of the Convention above, the Court considers that it is not necessary, in the circumstances of the present case, to examine whether there has been a violation of Article 5.

V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

67. By a fax of 9 September 2014 the applicants’ representative Mr Aliyev 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 petition 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

68. 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).

B. The Court’s assessment

69. 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.

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

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

71. 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

72. In respect of non-pecuniary damage, the applicants claimed 20,000 euros (EUR) each.

73. The applicants also made claims in respect of pecuniary damage. The first applicant claimed EUR 400, the second applicant claimed EUR 500 and the third applicant claimed EUR 600. In support of their claims they submitted that they had paid fines ordered by the domestic courts (see Appendix).

74. The Government submitted that the claims of the applicants in respect of non-pecuniary damage were unsubstantiated and unreasonable. They considered that, in any event, an award of EUR 3,000 each would constitute sufficient just satisfaction.

75. The Government also submitted that they did not object to awarding just satisfaction in respect of pecuniary damage. However, they argued that given the exchange rate of the Azerbaijani manat (AZN), the first applicant should be awarded EUR 355, the second applicant, EUR 445, and the third applicant EUR 535.

76. The Court considers that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation, and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards EUR 6,000 each under this head, plus any tax that may be chargeable on that amount.

77. In addition, the Court accepts that the applicants suffered pecuniary damage as a result of the breach of Article 11 found above. The Court considers that the applicants are entitled to recover the amounts paid as fines and therefore awards the first applicant EUR 400, the second applicant, EUR 473, and the third applicant, EUR 588, plus any tax that may be chargeable on those amounts.

B. Costs and expenses

78. For legal fees incurred before the domestic courts and the Court the applicants claimed EUR 2,500 each and GBP 2,382.15 each. In support of their claims, they submitted contracts for legal services, signed with their representative, Mr I. Aliyev; a receipt, demonstrating that Mr I. Aliyev had paid AZN 500 for the legal services of Mr K. Bagirov; and invoices, to be paid by European Human Rights Advocacy Centre in London, the United Kingdom, for the legal services of Mr W. Bowring and Ms R. Remezaite and for the translation services of Mr K. Shahkarimov.

79. The Government considered that the claims were excessive and could not be regarded as reasonable as to quantum. In particular, they submitted that all three applicants had failed to provide copies of any contracts authorising Mr Bagirov, Mr Bowring or Ms Remezaite to provide legal services or to act on their behalf in the proceedings before the Court. In addition, translation fees for the services provided by Mr Shahkarimov had not been justified or necessarily incurred, as they were related to legal services by Mr Bowring and Ms Remezaite.

80. The Government further argued that all three applicants had been represented by the same lawyer, Mr I. Aliyev, and substantial parts of the submissions in all three cases were identical or very similar. They also submitted that the contracts signed by the applicants with Mr Aliyev contained a provision about payment to that lawyer of the legal fees incurred before the domestic courts. However, the applicants had not in fact been represented before the domestic courts by Mr Aliyev.

81. The Government submitted that, taking into account the above considerations, an award of EUR 333 to each applicant should provide sufficient reimbursement of costs and expenses.

82. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

83. The Court notes that in the proceedings before it the applicants were represented by the same lawyer, Mr I. Aliyev, whose submissions in all three cases were very similar. Furthermore, Mr Aliyev did not represent the applicants before the domestic courts. Lastly, the applicants failed to submit any documents proving that Mr Bagirov, Mr Bowring, Ms Remezaite and Mr Shahkarimov had been authorised to represent them in the proceedings before the Court.

84. Taking those considerations into account, the Court awards a total amount of EUR 3,000 to the applicants jointly in respect of the legal services provided by Mr I. Aliyev.

C. Default interest

85. 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 applications admissible;

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

4. Holds that there has been a violation of Article 6 §§ 1 and 3 of the Convention;

5. Holds that there is no need to examine the complaints under Article 5 of the Convention;

6. Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention;

7. Holds:

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 6,000 (six thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 400 (four hundred euros), plus any tax that may be chargeable, to the applicant in application no. 44699/13, in respect of pecuniary damage;

(iii) EUR 473 (four hundred and seventy three euros), plus any tax that may be chargeable, to the applicant in application no. 47040/13, in respect of pecuniary damage;

(iv) EUR 588 (five hundred and eighty eight euros), plus any tax that may be chargeable, to the applicant in application no. 65283/13, in respect of pecuniary damage;

(v) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicants, to the applicants jointly, in respect of costs and expenses;

(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;

8. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 29 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Anne-Marie Dougin Nona Tsotsoria
Acting Deputy Registrar President

APPENDIX

No.	Application no.	Lodged on	Applicant name date of birth place of residence	Represented by	Notes	First-instance judgment	Appellate judgment
1.	44699/13	28/06/2013	Ramin HAJILI 1983 Fizuli	Intigam ALIYEV	fine of AZN 450 for participation in the demonstration of 12 January 2013	Decision of the Sabail District Court of 14 January 2013	Decision of the Baku Court of Appeal of 25 January 2013
2.	47040/13	25/06/2013	Nargiz YAGUBLU 1989 Baku	Intigam ALIYEV	fine of AZN 500 for participation in the demonstration of 26 January 2013	Decision of the Nasimi District Court of 28 January 2013	Decision of the Baku Court of Appeal of 7 February 2013
3.	65283/13	30/08/2013	Agil ALIYEV 1990 Jalilabad	Intigam ALIYEV	fine of AZN 600 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 2 April 2013

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You are here: BAILII >> Databases >> European Court of Human Rights >> HAJILI AND OTHERS v. AZERBAIJAN - 44699/13 (Judgment : Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) Violation of Arti...) [2017] ECHR 612 (29 June 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/612.html Cite as: CE:ECHR:2017:0629JUD004469913, [2017] ECHR 612, ECLI:CE:ECHR:2017:0629JUD004469913