Last Updated on November 19, 2020 by LawEuro
FIFTH SECTION
CASE OF MAHADDINOVA AND OTHERS v. AZERBAIJAN
(Application no. 34528/13)
JUDGMENT
STRASBOURG
19 November 2020
This judgment is final but it may be subject to editorial revision.
In the case of Mahaddinova and Others v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Lado Chanturia, President,
Latif Hüseynov,
Mattias Guyomar, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having deliberated in private on 20 October 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 34528/13) 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 four Azerbaijani nationals, Ms Zarifa Seyfi gizi Mahaddinova (Zərifə Seyfi qızı Məhəddinova – “the first applicant”), Ms Natavan Movsum gizi Salimzade (Natavan Mövsüm qızı Səlimzadə – “the second applicant”), Ms Kamala Kamal gizi Khalilova (Kəmalə Kamal qızı Xəlilova – “the third applicant”) and Ms Mardana Abbasgulu gizi Huseynova (Mərdanə Abbasqulu qızı Hüseynova – “the fourth applicant”) (“the applicants”) on 13 May 2013.
2. The applicants were represented by Mr I. Aliyev, a lawyer based in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov.
3. The first and second applicants complained that they had been ill‑treated during the dispersal of assemblies, and that the domestic authorities had failed to investigate their complaints in this respect. The applicants also complained that their right to freedom of assembly had been violated and that they had been hindered in the exercise of their right of individual application.
4. On 18 May and 11 December 2017 the Government were given notice of the first and second applicants’ complaints under Article 3 of the Convention, the applicants’ complaints under Articles 11 and 34 of the Convention, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants’ particulars are given in the Appendix.
A. Background
6. All applicants were members and activists of the Popular Front Party of Azerbaijan.
7. They attended unauthorised opposition demonstrations organised by the Ictimai Palata group, held in Baku on 14 and 21 May 2012. According to the applicants, the participants in the demonstration of 14 May 2012 were demanding action against corruption and violation of human rights, and reportedly on 21 May 2012 they were demanding the release of political prisoners detained in Azerbaijan. The applicants submitted that the demonstrations had been intended to be peaceful and had been conducted in a peaceful manner.
8. Shortly after the applicants joined the demonstrations, the police started to disperse the protesters.
B. The alleged ill-treatment of the first and second applicants
1. The first applicant, Ms Mahaddinova
9. According to the first applicant, shortly after the police operation to disperse the demonstration of 14 May 2012 had started, around six or seven police officers pushed her so that she almost fell off a ladder, save that the fourth applicant held onto her. She also claimed that a police officer, whom she did not know, had slapped her neck and she had suddenly become unable to control her physical movements and her vision had temporarily darkened. According to the applicant, she felt pain in her right shoulder, right ear and eyes for a long time afterwards. Subsequently, she was forcibly put on a bus by the police, together with six or seven other female participants in the demonstration, and was released after being driven around in the city for some time.
10. According to the first applicant, during the 21 May 2012 demonstration, several police officers swore at her and applied physical force to her, as a result of which she had bruises for several months. Police officers dragged her by both hands to a car. She was in pain and shouted and was released by the police with the second applicant’s help.
2. The second applicant, Ms Salimzade
11. According to the second applicant, on 14 May 2012 the police pushed her and she fell to the ground, sustaining injuries and pain. She also claimed that the police officers swore at her and intentionally touched some parts of her body to humiliate her as a woman (such as pressing her breasts).
12. She further submitted that on 21 May 2012 the police officers had pushed her towards a ladder and she had fallen to the ground, sustaining a contusion. The officers dragged her through the street by her hands. She lost consciousness. The applicant submitted that she had to spend two hours in hospital that day.
C. The dispersal of the assemblies
1. The third applicant, Ms Khalilova
13. According to the third applicant, during the dispersal of the demonstration of 14 May 2012 a police officer hit her in the knee hard and swore at her. Later, the police forcibly put her on a bus which was being used to remove people from the demonstration venue.
14. According to the third applicant, at the demonstration of 21 May 2012 the same officer insulted her again, and at the Sabail District Police Office, where she was taken by the police, the police officer swore at her.
2. The fourth applicant, Ms Huseynova
15. According to the fourth applicant, during the 14 May 2012 demonstration a police officer hit her from behind and pushed her aside. As she tried to help the second applicant, police officers grabbed her and pushed her towards a car. When she tried to escape from him, a police officer stepped on her foot to stop her.
16. According to the fourth applicant, during the 21 May 2012 demonstration she was taken to the Sabail District Police Office in order to stop her participation in the demonstration.
D. Remedies used by the applicants in respect of the alleged ill‑treatment and the dispersal of the assemblies
17. On various dates the applicants complained to the Sabail district prosecutor’s office, requesting that a criminal investigation be instituted into their ill-treatment during the dispersal of the assemblies.
18. The Sabail district prosecutor’s office questioned police officers from the Sabail District Police Office, namely police officers A.R., M.B., and A.J., in respect of the complaints of all of the applicants. Police officers S.G. and E.M. were also questioned in respect of the fourth applicant’s complaint. All officers stated that they had not applied physical force to any of the participants at the demonstration, including the applicants, but had warned the participants to disperse.
19. The applicants were questioned, and they reiterated their complaints regarding ill-treatment by the police. Apart from the third applicant, they all submitted video footage and photographs taken during the demonstrations.
20. A forensic expert, who was appointed following criminal complaints lodged by the first and second applicants on 21 May 2012, examined the first and second applicants on 25 and 31 May 2012 and then issued forensic reports on 29 and 31 May 2012 respectively, according to which there were no traces of any injuries on them. The third and fourth applicants refused to be examined by the forensic expert, claiming that the signs of ill-treatment had disappeared with the passage of time.
21. By decisions of 1 June 2012 in respect of the first and second applicants, a decision of 6 July 2012 in respect of the third applicant, and a decision of 30 June 2012 in respect of the fourth applicant, the Sabail district prosecutor’s office refused to open criminal cases. The Sabail district prosecutor office addressed the applicants’ complaints with regard to the demonstration of 14 May 2012, and relied on the police officers’ statements, as well as the lack of proof that the applicants had in fact been injured.
22. On an unspecified date the applicants lodged a criminal complaint with the Sabail District Court against the refusals to open a criminal case. They complained that the investigation into their complaints had not been effective: the security camera recordings relating to the demonstrations in question had not been reviewed; the witnesses who had observed the police using force against them had not been called or examined; the investigation had not had regard to the video footage and photographs of the demonstrations they had submitted; the police officers questioned by the district prosecutor’s office had been selected randomly, without regard to the officers’ personal involvement in the applicants’ cases; and the district prosecutor’s office had not conducted any investigation into the demonstration of 21 May 2012 despite the applicants’ specific complaints in this connection.
23. On 23 October 2012 the Sabail District Court, examining the case in the framework of the judicial supervision procedure, dismissed the applicants’ complaints and found the prosecuting authorities’ refusals to open criminal proceedings lawful. According to that court decision, the applicants participated in unauthorised assemblies on 14 and 21 May 2012 and “were removed from the venue of the unlawful assembly, by being put on buses, for having violated public order and not obeying the police officers”. Furthermore, the court held that the applicants’ claims of having been subjected to attacks and ill-treatment by the police officers concerned had not been proved and the court found no criminal offence in the police officers’ actions. The analysis section of the court’s decision addressed the parties’ submissions concerning the assembly on 14 May 2012.
24. In an appeal of 5 November 2012 the applicants reiterated their previous complaints.
25. On 16 November 2012 the Baku Court of Appeal upheld the first‑instance court’s decision, dismissing the applicants’ appeal.
II. RELEVANT DOMESTIC LAW
26. The relevant domestic law concerning the prohibition of ill-treatment is summarised in Mustafa Hajili v. Azerbaijan (no. 42119/12, §§ 26-28, 24 November 2016).
27. The relevant domestic law concerning freedom of assembly and the organisation and holding of public assemblies is summarised in Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 27-30, 15 October 2015).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
28. Relying on Article 3 of the Convention, the first and second applicants complained that they had been ill-treated during the dispersal of the assemblies of 14 and 21 May 2012 and that the domestic authorities had failed to conduct an effective investigation into their ill-treatment. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
29. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. Alleged failure to carry out an effective investigation
(a) The parties’ submissions
30. The first and second applicants maintained their complaints. They also added in their observations before the Court that the authorities had failed to secure the forensic evidence in a timely manner and that the security camera recordings of the demonstrations in question had not been examined.
31. The Government submitted that the domestic authorities had conducted an effective investigation into the first and second applicants’ allegations of ill‑treatment. In particular, the investigating authorities had ordered their forensic examination and had questioned the applicants, as well as all the relevant witnesses. In that connection, the Government pointed out that the investigating authorities had questioned only police officers as witnesses since they did not have a list of participants in the assembly in order to enable them to interview additional witnesses. Moreover, the applicants themselves had not submitted to the domestic authorities any statements given by other witnesses. The Government further submitted that the domestic courts had duly examined the applicants’ allegations of ill-treatment.
(b) The Court’s assessment
32. The Court refers to the principles established in its case‑law as to the procedural limb of Article 3 as set out in El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, §§ 182‑85, ECHR 2012), which are equally pertinent to the present case.
33. The Court notes that although the applicants raised an arguable claim – supported by some photographs, video footage and witness testimony – that they had been attacked by the police during the dispersal of the assemblies, the Sabail district prosecutor’s office following a criminal inquiry refused to institute criminal proceedings in connection with those allegations of ill-treatment and those decisions were upheld by the domestic courts. It remains to be assessed whether the criminal inquiry in the present case was effective, as required by Article 3.
34. In this connection, the Court observes numerous shortcomings in the criminal inquiry carried out by the domestic authorities.
35. Firstly, the authorities failed to take all the measures reasonably available to them to secure evidence concerning the applicants’ allegations of ill-treatment. In particular, the investigating authorities limited themselves to studying the forensic reports and questioning the applicants and three police officers from the Sabail District Police Office. All the police officers stated that they had not applied any physical force to any of the participants of the demonstration, including the first and second applicants, but had just warned the participants to disperse. The first and second applicants’ requests for witnesses who had allegedly observed the police using physical force against them, to be called and examined were also dismissed.
36. Moreover, the first and second applicants complained that the forensic examination in their cases had been undertaken belatedly. It can be seen from the case file that although the first applicant lodged her criminal complaint on 21 May 2012, the forensic examination was not undertaken until 31 May 2012. As regards the second applicant, while she lodged her criminal complaint with the Sabail district prosecutor’s office on 21 May 2012, the forensic examination was not undertaken until 25 May 2012. In this connection, the Court notes that prompt forensic examination is crucial as signs of injury may often disappear rather quickly and certain injuries may heal within weeks or even a few days (see Rizvanov v. Azerbaijan, no. 31805/06, § 59, 17 April 2012).
37. Furthermore, the Court considers that the reasoning provided in the prosecutor’s decision not to open a criminal case made no mention of the video footage or the photographs submitted by the first and second applicants in support of their claims of ill-treatment during the dispersal of the assemblies and in which the police officers could be seen dispersing the assemblies. The case file indicates that the prosecuting authorities limited themselves to holding that the police officers had not applied physical force against anyone, let alone women, during the dispersal of the protesters. Moreover, although the domestic courts reviewing the decisions to refuse to open a criminal case held, in a general manner, that the first and second applicants had violated public order and resisted orders from the police officers during the dispersal of the assembly on 14 May 2012, they did not rely on, nor did the Government submit, any evidence that the applicants had been convicted for causing public disorder. The domestic authorities did not provide any explanation as to why pieces of evidence such as the statements of the applicants or the relevant video footage and photographs of the scenes were considered less credible than the police officers’ statements (see Rizvanov, cited above, § 60). Nor did the Government provide any plausible explanation for the failure to do so.
38. Despite the first and second applicants’ specific allegations of ill‑treatment during the dispersal of the assembly of 21 May 2012, the domestic authorities, including the domestic courts, did not address those allegations, contenting themselves with the examination of the claims concerning the assembly of 14 May 2012. The Government did not provide any explanation for the failure to do so.
39. In these circumstances, having regard to the parties’ submissions and all the material in its possession, the Court considers that the foregoing considerations are sufficient to enable it to conclude that the investigation of the first and second applicants’ claims of ill-treatment was ineffective. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.
2. Alleged ill-treatment of the first and second applicants
(a) The parties’ submissions
40. The first and second applicants maintained their complaints.
41. The Government submitted that the first and second applicants had not provided any evidence to substantiate their complaints of ill-treatment.
(b) The Court’s assessment
42. The Court refers to the principles established in its case‑law regarding the substantive limb of Article 3 set out in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-87 and 101, ECHR 2015), which are equally pertinent to the present case.
43. In the present case the first and second applicants presented a detailed description of their alleged ill-treatment during the dispersal of the assemblies. They claimed that they had sustained injuries. However, the forensic examination did not find any injuries on their persons. Nor have the applicants submitted to the Court any other medical evidence confirming the presence of any such injuries (see Jannatov v. Azerbaijan, no. 32132/07, § 59, 31 July 2014).
44. In support of their claims, the first and second applicants rather submitted to the Court some video footage and photographs taken during the dispersal of the assemblies of 14 and 21 May 2012, the authenticity of which were not disputed by the Government. The Court will proceed to examine the available evidence with respect to each applicant in turn.
(i) The first applicant
45. In particular, the first applicant claimed, inter alia, that on 14 May 2012 a police officer unknown to her had slapped her neck hard, as a result of which she had suffered from severe pain. She also claimed, inter alia, that during the 21 May 2012 demonstration several police officers had dragged her by her hands to a car and applied physical force, as a result of which she had had bruises for several months.
46. In this connection, one of the video-recordings of the assembly of 14 May 2012 submitted by the first applicant shows that the police officers pushed her several times and later dragged her to a bus when she resisted the dispersal of the assembly. However, there is no other evidence, including medical reports (see paragraph 43 above), to conclude that the treatment to which the first applicant was subjected attained the minimum level of severity to fall within the scope of Article 3 and to be considered as inhuman and degrading treatment.
47. In these circumstances, having regard to the parties’ submissions and all the material in its possession, the Court considers that the evidence before it does not enable it to find beyond reasonable doubt that the first applicant was subjected to treatment contrary to Article 3, as alleged.
48. The Court would, however, underline that its inability to reach any conclusions as to whether there has been, in substance, treatment prohibited by Article 3 of the Convention derives, at least in part, from the failure of the domestic authorities to react effectively to the first applicant’s complaints at the relevant time (see Gharibashvili v. Georgia, no. 11830/03, § 57, 29 July 2008, and Lopata v. Russia, no. 72250/01, § 125, 13 July 2010).
49. Consequently, the Court cannot establish a substantive violation of Article 3 of the Convention in respect of the first applicant’s allegations of ill-treatment.
(ii) The second applicant
50. The second applicant complained that as a result of the physical force used by the police during the dispersal of the assembly of 21 May 2012 she suffered severe pain and injuries. As can be seen from the video footage submitted by the second applicant, the police officers dragged her through the street by her hands during the assembly in question and she lost consciousness at the place of the incident.
51. Furthermore, the Court observes that it has not been shown that the second applicant used violence against the police or posed a threat to them, nor that there were any other reasons justifying the use of force against the second applicant. The Court therefore concludes that the use of force was unnecessary and excessive (see Najafli v. Azerbaijan, no. 2594/07, § 39, 2 October 2012; Rizvanov, § 50; and Bouyid, § 88, both cited above,). There has accordingly been a substantive violation of Article 3 of the Convention in respect of the ill-treatment of the second applicant on 21 May 2012.
52. As regards the second applicant’s claim that she suffered severe pain and injuries as a result of the physical force by the police during the dispersal of the assembly of 14 May 2012, the Court notes that the video‑recording submitted by the second applicant indicates that on that date the police officers did push her while taking steps to disperse the assembly. However, the forensic expert report did not find that there were any injuries on the second applicant’s person. Furthermore, the second applicant also failed to submit any evidence of having sustained injuries.
53. The second applicant submitted a photograph to the Court in support of her allegations that, during the dispersal of the assembly of 14 May 2012, up to seven police officers surrounded her and one of them grabbed her breast in order to humiliate her as a woman. However, it is not possible to confirm from the material in the case file, and in particular, from the photograph in question, let alone from the video-recordings showing the chaotic dispersal as it affected a number of the assembly’s participants, that the impugned action was a deliberate step taken by the police officers involved in the dispersal, an alleged sexual assault (see, among other authorities, Petrakidou v. Turkey, no. 16081/90, § 59, 27 May 2010).
54. In such circumstances, having regard to the parties’ submissions and all the material in its possession, the Court considers that the evidence before it does not enable it to find beyond reasonable doubt that the second applicant was subjected to treatment contrary to Article 3 during the dispersal of the assembly of 14 May 2012, as alleged. However, this inability to reach any conclusions as to whether there has been, in substance, treatment prohibited by Article 3 of the Convention derives, at least in part, from the failure of the domestic authorities to react effectively to the second applicant’s complaints at the relevant time (see Gharibashvili, cited above, § 57, and Lopata, cited above, § 125). There has accordingly been no substantive violation of Article 3 of the Convention on account of the second applicant’s alleged ill‑treatment on 14 May 2012.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
55. The applicants complained that the police intervention in the demonstrations of 14 and 21 May 2012 had amounted to a violation of their right to freedom of peaceful assembly, as provided for in Article 11 of the Convention, which reads as follows:
“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
56. The Government submitted that the applicants had failed to exhaust domestic remedies in respect of their complaints, without specifying which particular remedies they had failed to exhaust. The Government pointed out in particular that, in their complaints before the domestic authorities, the applicants had provided information about the dispersal of the assembly as the factual background to their ill-treatment complaints, and not as a complaint against the interference with their right to freedom of assembly.
57. The applicants submitted that they had exhausted the domestic remedies with regard to their complaints under Article 11 of the Convention, by having referred to the intervention of the police and the specific actions of the police officers against them during the dispersal of the assemblies in their criminal complaints to the domestic authorities. The applicants also submitted that their complaints concerning the violation of their right to freedom of assembly had had to be examined in accordance with the Code of Criminal Procedure, without specifying which provisions they relied on in that regard.
58. In this connection, the Court firstly notes that the applicants lodged criminal complaints with the prosecuting authorities, complaining of the forceful dispersal and the intervention in the assemblies vis-à-vis them and the ill-treatment suffered during the demonstrations of 14 and 21 May 2012. They further lodged complaints against the prosecuting authorities’ decisions to refuse to open a criminal case with the domestic courts in connection with their alleged ill-treatment during the dispersal of the assemblies. The domestic courts upheld the decisions of the prosecuting authorities. Accordingly, all applicants used the criminal-complaint procedure in this regard.
59. The Government argued that the applicants had not raised a specific complaint of a violation of their right to freedom of assembly in their complaints before the domestic authorities. However, the Government did not claim that the criminal-complaint procedure as a whole should be disregarded in respect of the issues relating to freedom of assembly as, for instance, being manifestly devoid of purpose in the context of the specific issues relating to Article 11 of the Convention. Furthermore, the Government did not specify for which other remedies the applicants should have applied. The Court observes that the thrust of the applicants’ related complaints concern the use of force during public events by public officials (see, among other authorities, Annenkov and Others v. Russia, no. 31475/10, § 106, 25 July 2017). The applicants claimed that the force allegedly inflicted on them by the police had prevented them from taking part in the peaceful demonstrations.
60. In view of the available materials and the parties’ submissions, the Court concludes that in the particular circumstances of the present case the applicants’ complaints cannot be rejected for non-exhaustion of domestic remedies.
61. The Court also considers that the 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. The parties’ submissions
62. The applicants claimed that the demonstrations of 14 and 21 May 2012 were peaceful and their dispersal was not justified.
63. The Government submitted that there had been no interference with the applicants’ right to freedom of peaceful assembly on account of the applicants’ failure to submit any evidence that they had participated in an assembly and that it had been dispersed by the police. The Government further submitted that there had been no violation of Article 11 of the Convention in respect of the applicants.
2. The Court’s assessment
(a) Whether there was an interference
64. The Court notes that there is a dispute between the parties as to whether there was an interference with the applicants’ right to freedom of assembly. Contrary to the Government’s assertion, the case file indicates that the applicants did participate in the demonstrations in question and that those demonstrations were dispersed by the police. Accordingly there was an interference with the applicants’ right to freedom of assembly on account of the police intervention in and the dispersal of the assemblies.
(b) Whether the interference was justified
65. The Court reiterates that an interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2, and is “necessary in a democratic society” for the achievement of those aims (see Djavit An v. Turkey, no. 20652/92, § 63, ECHR 2003-III; Balçık and Others v. Turkey, no. 25/02, § 44, 29 November 2007; and Sergey Kuznetsov v. Russia, no. 10877/04, § 37, 23 October 2008).
66. Turning to the circumstances of the present case, the Court at the outset notes that the applicants complained of a violation of their right to freedom of assembly on account of the dispersal of the assemblies of 14 and 21 May 2012. However, the Government submitted that there had been no interference with the applicants’ freedom of assembly on account of the dispersal of the assembly of 14 May 2012 and did not make any further submissions in this connection.
67. It can be seen from the case file, and in particular, the domestic courts’ decisions that the demonstrations in question were dispersed because they were unauthorised, although no explicit reference was made to the provisions of the domestic law in that connection. The applicants did not provide the Court with any further information as to the circumstances of the organisation of the assemblies in question. In view of the limited submissions of the parties and the information available in the case file, and having regard to similar case-law in respect of Azerbaijan which is of particular pertinence to the present case (see, among other authorities, Gafgaz Mammadov v. Azerbaijan, no. 60259/11, §§ 54-57, 15 October 2015), the Court holds that even assuming that the interference was “prescribed by law” and pursued “legitimate aims” within the meaning of paragraph 2 of Article 11 – namely the aims of preventing disorder and protecting the rights of others – it remains to be determined whether it was “necessary in a democratic society”.
68. In this connection, the Court reiterates at the outset that the right to freedom of assembly enshrined in Article 11 is a fundamental right in a democratic society and is one of the foundations of such a society. Thus, it should not be interpreted restrictively (see Djavit An, cited above, § 56). Accordingly, States must not only safeguard the right to assemble peacefully, but must also refrain from applying unreasonable indirect restrictions upon that right. In view of the essential nature of freedom of assembly and its close relationship with democracy there must be convincing and compelling reasons to justify an interference with this right (see Ouranio Toxo v. Greece, no. 74989/01, § 36, ECHR 2005‑X (extracts), and Adalı v. Turkey, no. 38187/97, § 267, 31 March 2005, with further references).
69. The applicants claimed that the demonstrations of 14 and 21 May 2012 were peaceful. The Court also notes that the main reason advanced in the domestic authorities’ decisions for police intervention in relation to the assemblies in question was that they had not been authorised and that the demonstrators, including the applicants, had not dispersed. The domestic authorities also held that the police had not applied any force against any of the participants in the assemblies, let alone the women. Furthermore, they concluded that the applicants had been removed by the police from the venue of the demonstrations in question for violating public order and not complying with the police order to disperse. In this connection, the Court reiterates that demonstrators, as actors in the democratic process, should respect the rules governing that process by complying with the regulations in force (see Oya Ataman v. Turkey, no. 74552/01, § 38, ECHR 2006‑XIV). However, the Court observes that the case file does not contain any information to indicate that the applicants acted in a violent manner, contrary to the allegations made by the Government. The Court therefore accepts the applicants’ assertion that the demonstration had been intended to be peaceful and had been conducted in a peaceful manner up until its dispersal (see Gafgaz Mammadov, cited above, § 61).
70. The Court notes that any demonstration in a public place may cause a certain level of disruption to ordinary life and may encounter hostility. However, there is no evidence to suggest that in the instant case the applicants or other demonstrators presented a danger to public order.
71. Moreover, the Court points out that the demonstrators, including the applicants, wished to draw attention to vital issues in a democratic society (see paragraph 7 above). The Court observes the authorities’ impatience in seeking to end the demonstration by forcible dispersal (see Balçık and Others, cited above, § 51).
72. In the Court’s view, 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 right to freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 128, 15 November 2018, and Oya Ataman, cited above, § 42). However, the Court sees no sign of tolerance in the present case.
73. Having regard to the above, the Court considers that in the instant case the forceful intervention of the police vis-à-vis the applicants was disproportionate and was not necessary for the prevention of disorder or the protection of the rights of others within the meaning of the second paragraph of Article 11 of the Convention.
74. There has accordingly been a violation of Article 11 of the Convention in respect of the applicants.
III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
75. By a fax of 9 September 2014, Mr Aliyev, who was the applicants’ representative before the Court, lodged a new complaint on behalf of the applicants, arguing that the seizure of the entire case file relating to the applicants’ pending case before the Court from his office had amounted to a hindrance of 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.”
A. The parties’ submissions
76. The submissions made by the applicants and the Government were identical to those made by the parties in respect of the same complaint in Annagi Hajibeyli v. Azerbaijan (no. 2204/11, §§ 57-60, 22 October 2015).
B. The Court’s assessment
77. In the case of 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 the finding that it made in the Annagi Hajibeyli judgment also apply to the present case and it sees no reason to deviate from the finding that depriving an applicant and his or her lawyer of access to the case file constitutes in itself an undue interference and a serious hindrance of the effective exercise of an applicant’s right of individual application.
78. The Court therefore finds that the respondent State has failed to comply with its obligations under Article 34 of the Convention in respect of the applicants.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
79. 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
80. The applicants each claimed 15,000 euros (EUR) in respect of non‑pecuniary damage.
81. The Government submitted that the amounts claimed by the applicants were unsubstantiated.
82. The Court considers that the first and second 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 the first applicant EUR 7,500 and the second applicant EUR 12,000 under this head, plus any tax that may be chargeable on these amounts. The Court also considers that the finding of violations of Articles 11 and 34 of the Convention constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants.
B. Costs and expenses
83. The applicants each claimed EUR 1,000 for the legal costs and expenses incurred before the domestic courts and the Court. The applicants submitted contracts concluded in 2017 with their representative, Mr Aliyev, in support of their claims, claiming that the contracts previously concluded with their representative in respect of the present case had been seized during the search of Mr Aliyev’s home and office in 2014.
84. The Government considered that the amounts claimed by the applicants were unsubstantiated and excessive. In that connection, the Government noted that the applicants’ contracts signed in 2017 could not be considered as a basis for claiming legal costs and asked the Court to apply a strict approach in respect of the applicants’ claims. They further asked the Court to take into consideration that the applicants were all represented before the Court by the same lawyer, who had made identical submissions.
85. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award all the applicants jointly the sum of EUR 2,000 to cover legal costs, to be paid directly into their legal representative’s bank account.
C. Default interest
86. 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. Declares the complaints concerning Article 3 of the Convention in respect of the first and second applicants and those concerning Article 11 of the Convention in respect of all applicants admissible;
2. Holds that there has been a violation of Article 3 of the Convention under its procedural limb in respect of the first and second applicants;
3. Holds that there has been no violation of Article 3 of the Convention under its substantive limb in respect of the first applicant;
4. Holds that there has been no violation of Article 3 of the Convention under its substantive limb on account of the alleged ill-treatment of the second applicant on 14 May 2012;
5. Holds that there has been a violation of Article 3 of the Convention under its substantive limb on account of the ill-treatment of the second applicant on 21 May 2012;
6. Holds that there has been a violation of Article 11 of the Convention in respect of all the applicants;
7. Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention in respect of all the applicants;
8. Holds
(a) that the respondent State is to pay, 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 7,500 (seven thousand five hundred euros) to the first applicant, plus any tax that may be chargeable, in respect of non‑pecuniary damage;
(ii) EUR 12,000 (twelve thousand euros) to the second applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to all the applicants, in respect of costs and expenses, to be paid directly into their legal representative’s bank account;
(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 19 November 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Anne-Marie Dougin Lado Chanturia
Acting Deputy Registrar President
APPENDIX
| No. | Applicants’ names, year of birth, place of residence |
Represented by |
| 1. | Zarifa MAHADDINOVA 1957 Baku |
Intigam ALIYEV |
| 2. | Natavan SALIMZADE 1970 Baku |
|
| 3. | Kamala KHALILOVA 1974 Baku |
|
| 4. | Mardana HUSEYNOVA 1978 Baku |
Leave a Reply