Last Updated on July 15, 2021 by LawEuro
The applicant complained that his arrests and periods of detention by the police, had been in breach of Article 5 § 1 of the Convention and that the administrative offence proceedings against him had fallen short of the guarantees of Article 6 of the Convention. The applicant also complained under Article 3 of the Convention that he had been subjected to inhuman and degrading treatment during his detention following his arrest on 25 May 2012, and under Article 13 of the Convention that his right to an effective remedy had been breached.
FIFTH SECTION
CASE OF YAGUBLU v. AZERBAIJAN
(Application no. 69686/12)
JUDGMENT
STRASBOURG
15 July 2021
This judgment is final but it may be subject to editorial revision.
In the case of Yagublu v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Jovan Ilievski,
Ivana Jelić, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 69686/12) 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 an Azerbaijani national, Mr Tofig Rashid oglu Yagublu (Tofiq Rəşid oğlu Yaqublu) (“the applicant”), on 17 September 2012;
the decision to give notice of the application to the Azerbaijani Government (“the Government”);
the parties’ observations;
Having deliberated in private on 24 June 2021,
Delivers the following judgment, which was adopted on that date:
1. The applicant complained that his arrests and periods of detention by the police, had been in breach of Article 5 § 1 of the Convention and that the administrative offence proceedings against him had fallen short of the guarantees of Article 6 of the Convention. The applicant also complained under Article 3 of the Convention that he had been subjected to inhuman and degrading treatment during his detention following his arrest on 25 May 2012, and under Article 13 of the Convention that his right to an effective remedy had been breached.
THE FACTS
2. The applicant was born in 1961 and lives in Baku. The applicant was represented by Mr A. Alizade, a lawyer practising in Azerbaijan.
3. The Government were represented by their Agent, Mr Ç. Əsgərov.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
A. Background information
5. At the material time the applicant was a member of an opposition political union, the Public Chamber (İctimai Palata), the deputy chairman of the Musavat Party and a columnist for the Yeni Musavat newspaper.
6. The Public Chamber organised two protests on 24 and 25 May 2012, which were not authorised by the Baku City Executive Authority. The Public Chamber attempted to hold the first demonstration in front of the public television building and the second at the Seaside park (Dənizkənarı Milli park) in Baku. Apparently, both demonstrations were dispersed as soon as they started.
B. The applicant’s first administrative arrest and the ensuing court proceedings
7. According to the applicant, at around 10.30 a.m. on 24 May 2012 he left his home to go to work. On his way, about 100-150 metres away from his home in the Garachukhur settlement, he was arrested by several plain‑clothes police officers and was taken to the Surakhani district police office (“the Surakhani DPO”). After his arrival at the Surakhani DPO, the head of the police office and another police officer consecutively had “prophylactic” conversations with him. Then another police officer, Y.M., informed him that there was “an order to arrest” him. At around 4 p.m. the applicant was taken to Surakhani district police station no. 31. The applicant did not explain the content of the “prophylactic” conversations.
8. According to the Government, the applicant was arrested at around 12 noon on 24 May 2012, near a market in the Amirjan settlement and was taken directly to the Surakhani district police station No. 31.
9. At the Surakhani district police station No. 31 a police officer, E.A., issued an administrative offence record (inzibati xəta haqqında protokol) in respect of the applicant, setting out the charges against him. The applicant was charged with an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”) (failure to comply with a lawful order of a police officer). According to a report (raport) issued by Y.M. and the administrative offence record, Y.M. stopped the applicant because the latter had been noticed “behaving suspiciously” and he arrested the applicant for failing to comply with an order to produce an identity document and “using offensive language against the police”.
10. According to the applicant, he was not given access to a lawyer after his arrest or while he was in police custody, his request for a lawyer had been ignored.
11. At around 5 p.m. on the same day the applicant was taken to the Surakhani district court, which adopted its decision on the merits.
12. During the trial the applicant was not represented by a lawyer. According to the transcript of the hearing, the applicant declared that he would defend himself in person.
13. The first-instance court heard two police officers (E.A. and Y.M.) as witnesses. In their statements those police officers reiterated the official version of the reasons for the applicant’s arrest (see paragraph 9 above). The applicant contested the police officers’ statements. He argued that he had been arrested in a different place and under different circumstances. He also argued that he had been framed for his political activity and that the purpose of his arrest was to prevent him from participating in the demonstration held in front of the public television building.
14. The court did not address the applicant’s statements. It found the applicant guilty under Article 310.1 of the CAO and sentenced him to a fine of 20 New Azerbaijani manats (AZN). The applicant was released from the courtroom.
15. The applicant lodged an appeal with the Baku Court of Appeal, presenting his version of the facts surrounding his arrest. He complained that his arrest, detention for more than eight hours and conviction had been unlawful (arbitrary), that during his detention he had not been allowed to contact his family and his mobile phone had been taken from him. He further complained that his right to a fair trial had been violated. He argued, in particular, that his conviction had been based only on the two police officers’ submissions, that he had not been represented by a lawyer either during his police custody or at the court hearing, and that the judge had refused to hear witnesses on his behalf. The applicant also argued that his arrest, detention and conviction constituted discrimination based on his political opinion.
16. Before the appellate court the applicant was represented by a lawyer of his own choosing.
17. On 18 June 2012 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the first-instance court’s decision, stating that the conclusions reached by that court were correct. The appellate court’s decision was not subject to appeal.
C. The applicant’s second administrative arrest and the ensuing court proceedings
18. According to the applicant, at around 5.45 p.m. on 25 May 2012 he and his minor son exited Sahil metro station. At that moment, a police officer approached him and demanded them not to go in the direction of the Seaside park where the aforementioned unauthorised demonstration had been planned to take place. Following that demand the applicant and his son took the opposite direction. Just then four plain-clothes police officers arrested him. He and his son were taken to the Sabail district police office (“the Sabail DPO”). The applicant was held at the Sabail DPO until around 12 noon on 26 May 2012.
19. According to the Government, the applicant was arrested at around 7.30 p.m. on 25 May 2012 during the unauthorised demonstration at the Seaside park. He was taken to the temporary detention facility of the Sabail DPO, where he was held until 10 a.m. on 26 May 2012.
20. According to the applicant, he was not given access to a lawyer after his arrest or while he was in police custody, his request for a lawyer had been ignored.
21. At the Sabail DPO a police officer, F.B., issued an administrative offence record in respect of the applicant. The applicant was charged with an administrative offence under Article 310.1 of the CAO. According to a report issued by police officers F.M. and E.G. and the administrative offence record, the applicant participated in the unauthorised demonstration at the Seaside park and failed to comply with an order to stop that action.
22. According to the applicant, while he was taken inside the premises of the Sabail DPO, his son stayed unattended in the courtyard of the police office. Until 3 a.m. on 26 May 2012 the applicant was kept in the walking area of the temporary detention facility of the Sabail DPO. The walking area of the temporary detention facility measured 20 square metres and sixty‑three persons were detained there together with the applicant. After 3 a.m., he was placed in a cell and was held there until around noon on 26 May 2012. The cell was designed for eight persons however, twenty‑three persons were detained in it together with the applicant. Despite his requests, he was not provided with drinking water.
23. According to the Government, on 25 and 26 May 2012 only four persons were held in the temporary detention facility of the Sabail DPO, including the applicant. The walking area of the detention facility measured 16.3 square metres. At 8 p.m. on 25 May 2012 the applicant was placed in a cell and was held there until the morning of 26 May 2012. The cell in question was designed to accommodate two persons, measured 14 square metres and the applicant was held in it alone. The applicant was provided with bedding, water and food.
24. On 26 May 2012 the applicant was taken to the Sabail district court, which adopted its decision on the merits.
25. During the trial the applicant was not represented by a lawyer. According to the transcript of the hearing, the applicant refused the legal assistance of a State-funded lawyer, Mr M.A., and declared that he would defend himself in person.
26. The first-instance court heard one police officer (F.B.) as a witness. F.B. reiterated the official version of the reasons for the applicant’s arrest (see paragraph 21 above). The applicant argued that he had been arrested earlier than the demonstration in question and that he had not participated in it or disobeyed any order of a police officer.
27. The court did not address the applicant’s statements. It found the applicant guilty under Article 310.1 of the CAO and sentenced him to a fine of AZN 20. The applicant was released from the courtroom.
28. The applicant lodged an appeal with the Baku Court of Appeal, presenting his version of the facts surrounding his arrest. He complained that his arrest, detention for more than nineteen hours and conviction had been unlawful and arbitrary, that during his detention he had not been allowed to contact his family and his mobile phone had been taken from him. He further complained that his right to a fair trial had been violated. He argued, in particular, that his conviction had been based only on the police officer’s submissions, that he had not been represented by a lawyer either during his police custody or at the court hearing, and that the judge had refused to hear witnesses on his behalf. The applicant also complained that he had been subjected to inhuman and degrading treatment due to the conditions of his detention and because he had been detained without knowing the whereabouts of his minor son who had stayed unattended in the courtyard of the police office. The applicant also argued that his arrest, detention and conviction constituted discrimination based on his political opinion.
29. Before the appellate court the applicant was represented by a lawyer of his own choosing.
30. On 18 June 2012 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the first-instance court’s decision, stating that the conclusions reached by that court were correct. The appellate court did not examine the applicant’s complaints about alleged ill-treatment. The appellate court’s decision was not subject to appeal.
RELEVANT legal framework AND INTERNATIONAL AND DOMESTIC DOCUMENTS
31. For a summary of the relevant provisions of the domestic law and the relevant extracts from international and domestic documents see Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 31-32, 15 October 2015); Huseynli and Others v. Azerbaijan (nos. 67360/11 and 2 others, §§ 59-76, 11 February 2016); and Huseynov and Others v. Azerbaijan [Committee], nos. 34262/14 and 5 others, §§ 32-36, 24 November 2016).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION
32. The applicant complained under Article 3 of the Convention that he had been subjected to inhuman and degrading treatment during his detention following his arrest on 25 May 2012, and under Article 13 of the Convention that his right to an effective remedy had been breached. Articles 3 and 13 of the Convention read as follows:
Article 3. Prohibition of torture
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13. Right to an effective remedy
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties’ submissions
33. The applicant submitted that the conditions of his detention at the Sabail DPO from the evening of 25 May 2012 until around noon the next day had been inhuman and degrading and that he had been detained without knowing the whereabouts of his minor son who had stayed unattended in the courtyard of the police office, which caused him distress. The applicant claimed in particular that until 3 a.m. on 26 May 2012 he had been kept in the walking area of the temporary detention facility of the Sabail DPO. The walking area measured 20 square metres and sixty-three persons were detained there together with the applicant. Then he was placed in a cell and was held there until around noon on 26 May 2012. The cell was designed for eight persons, but twenty-three persons were detained in it together with the applicant. Despite his requests, he was not provided with drinking water. The applicant also complained that the domestic courts had failed to examine his complaints in that regard.
34. The Government submitted that on 25 and 26 May 2012 only four persons had been held in the temporary detention facility of the Sabail DPO, including the applicant. The walking area of the detention facility measured 16.3 square metres. At 8 p.m. on 25 May 2012 the applicant was placed in a cell and was held there until the morning of 26 May 2012. The cell in question was designed to accommodate two persons, measured 14 square metres and the applicant was held in it alone. The applicant was provided with bedding, water and food. The Government submitted photographs of the cell in question and the walking area of the temporary detention facility.
35. In his reply to the Government’s observations, the applicant reiterated his complaints. He disagreed with the Government’s submissions and argued that the Government had distorted the facts.
B. The Court’s assessment
36. The Court reiterates that it adopts conclusions after evaluating all the evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 121, 10 January 2012).
37. The Court is mindful of the objective difficulties experienced by the applicants in collecting evidence to substantiate their claims about the conditions of their detention. Still, in such cases applicants must provide a detailed and consistent account of the facts complained of (ibid., § 122). In certain cases, applicants are able to provide at least some evidence in support of their complaints. The Court has considered as evidence, for example, written statements by fellow inmates or, if possible, photographs provided by applicants in support of their allegations (see, for example, Golubenko v. Ukraine (dec.), no. 36327/06, § 52, 5 November 2013, and cases cited therein).
38. Once a credible and reasonably detailed description of allegedly degrading conditions of detention, constituting a prima facie case of ill‑treatment, has been made, the burden of proof is shifted to the respondent Government, who alone have access to information capable of corroborating or refuting those allegations (see, among other authorities, Muršić v. Croatia [GC], no. 7334/13, § 128, 20 October 2016).
39. The Court further reiterates that, according to its case law concerning assessment of evidence, distribution of the burden of proof is intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, with further references, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005‑VII).
40. In the present case, even though the applicant’s description of the alleged conditions of detention in his initial application had a certain level of detail, he did not submit any evidence (such as statements of witnesses or other evidence) in support of his allegations of poor conditions of detention, including the alleged lack of information concerning the whereabouts of his minor son. His subsequent submissions were essentially the same and he did not submit any evidence or arguments to rebut the information and photographs submitted by the Government, which do not demonstrate the existence of conditions of detention that were contrary to Article 3 of the Convention (compare, mutatis mutandis, Mehdiyev v. Azerbaijan, no. 59075/09, § 80, 18 June 2015). In the circumstances particular to this case, having regard to the material in its possession, the Court considers that this situation raises a question of whether the applicant’s grievances are sufficiently substantiated.
41. The Court notes that the lack of substantiation of the complaint stems from the fact that the applicant did not seek an examination of his allegations by the relevant domestic investigating authorities or courts. Moreover, no complaints have been lodged on behalf of his minor son to seek examination of the ill-treatment to which he had allegedly been subjected.
42. The Court notes in this connection that avenues of a civil and criminal law nature were available to the applicant in respect of those grievances concerning the alleged poor conditions of detention in particular, as well as other forms of ill-treatment in general (see Kunqurova v. Azerbaijan (dec.), no. 5117/03, 23 June 2005, and Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, §§ 138-39, 20 September 2018). Such remedies, while providing avenues of redress for alleged violations, also serve the purpose of the establishment of the relevant facts. Instead of using those remedies, the applicant raised his allegations of ill‑treatment during the administrative offence proceedings against him, and notably only before the Baku Court of Appeal (see paragraph 28 above), which was not a proper avenue of redress. The appellate court did not take cognisance of the merits of those allegations, as the subject matter of the proceedings (the applicant’s appeal against his conviction of an administrative offence) did not call upon it to do so (see and compare Abbas Ahmadov v. Azerbaijan (dec.), no. 55650/07, §§ 44-46, 12 November 2013; Akif Mammadov v. Azerbaijan (dec.), no. 46903/07, § 32, 13 May 2014; and Abbas and Others v. Azerbaijan [Committee], nos. 69397/11 and 3 others, § 71, 13 July 2017).
43. In these circumstances the Court finds that the applicant failed to sufficiently substantiate his complaint under Article 3 of the Convention and to present a prima facie case of ill‑treatment, and, therefore, this complaint must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention as manifestly ill‑founded.
44. As to the complaint under Article 13 taken in conjunction with Article 3 of the Convention, the Court considers that the applicant failed to demonstrate that there was an “arguable claim” under Article 13 of the Convention, given that he failed to substantiate his allegations of ill‑treatment. The Court finds therefore that the applicant’s complaint under Article 13 of the Convention taken in conjunction with Article 3 must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention as inadmissible ratione materiae.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
45. The applicant complained that his arrests, detentions and the ensuing court proceedings against him had been in breach of Article 5 §§ 1, 2 and 4 and Article 14 of the Convention. The Court considers that this complaint falls to be examined solely under Article 5 § 1 of the Convention, the relevant parts of which read as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …
(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; …”
A. Admissibility
46. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
47. The applicant argued that his arrests and periods of detention on 24, 25 and 26 May 2012 had been unlawful and arbitrary, that he had been arrested and detained for his political activity and the alleged offences giving rise to the deprivation of his liberty had been fabricated. The applicant also complained that the domestic courts had failed to examine the lawfulness of his arrests and periods of detention.
48. The applicant further submitted that he had not been promptly informed about the reasons for his arrests and periods of detention, and that they had not conformed to domestic procedural rules, in particular because his rights, including the right to a lawyer, had not been properly explained to him, he had not been given an opportunity to contact his family and his mobile phone had been taken from him.
49. The Government submitted that the applicant’s arrests and periods of detention had been in conformity with the CAO. They submitted that each time the applicant had been arrested and detained for the purpose of bringing him before the competent legal authority on a reasonable suspicion of having committed the administrative offences in question, in accordance with Article 5 § 3 (c) of the Convention. The Government also submitted that the duration of the periods of detention had been within limits stipulated by the domestic law.
2. The Court’s assessment
50. The Court notes that the principles relevant to the present complaint are summarised in Huseynli and Others (nos. 67360/11 and 2 others, §§ 86‑87 and §§ 142-45, 11 February 2016).
51. Having regard to the material in the case file and the parties’ submissions, the Court notes that the issues raised by the present complaint are essentially similar to those examined in Huseynli and Others, cited above, Huseynov and Others [Committee], nos. 34262/14 and 5 others, §§ 62-69, 24 November 2016); see also Hakobyan and Others v. Armenia (no. 34320/04, 10 April 2012).
52. The Court notes in particular that, although, unlike Huseynli and Others and Huseynov and Others, in the present case the applicant has not raised any complaints under Article 11 of the Convention, the facts of the present case giving rise to the complaint under Article 5 § 1 and those of the above-mentioned cases are essentially similar (see Huseynli and Others, §§ 88 and 93-96, and Huseynov and Others, §§ 47‑48, both cited above).
53. The events of the present case happened in the same period of increased political sensitivity, the early 2010s, as the events of the mentioned cases. The applicant’s affiliation with the opposition was likewise generally known (see paragraph 5 above).
54. On 24 May 2012 the applicant was arrested shortly before a scheduled demonstration, of which the authorities apparently had prior knowledge (see paragraphs 6-8 above), on dubious grounds and in similar circumstances (see paragraph 9 above). Thus, according to the official records, the applicant was arrested on the street for disobeying an order to show an identity document and “using offensive language against police” and he did not resist being taken into police custody. The police officer who arrested the applicant had allegedly suspected him of “suspicious behaviour” and therefore demanded his identity document. However, that suspicion was never elaborated on and was no longer mentioned once the applicant had been charged with disobeying a police order. No specific reasons for that initial suspicion were ever indicated.
55. After having been released the previous day (see paragraph 14 above), on 25 May 2012 the applicant was arrested again, in connection with another scheduled demonstration (see paragraphs 18-19 and 21 above). That fact was acknowledged in the official records. However, the police and the applicant disagreed on the circumstances of the arrest, in particular, whether the applicant had been arrested during or prior to the demonstration.
56. During the proceedings that followed each arrest and detention the domestic courts failed to establish facts that were disputed between the parties – the police and the applicant – by carrying out an objective and thorough examination. They ignored the applicant’s submissions that the arrest had been politically motivated, and merely recapitulated the circumstances and the charges as presented by the police (see paragraphs 13-15, 17, 26-28 and 30 above).
57. In Huseynli and Others and Huseynov and Others, having had regard to, inter alia, various international and domestic reports, the Court noted that, at the material time, opposition activists had been routinely deterred or prevented from participating in demonstrations; punished for having done so; and punished for advocating or showing support for those demonstrations (see Huseynli and Others, §§ 88-91, and Huseynov and Others, § 47, both cited above). Furthermore, having examined the circumstances in which the applicants had been arrested and convicted, the Court concluded that the administrative offence proceedings against them had equally sought to deter them from protesting and to punish them for doing so (see Huseynli and Others, §§ 92-97, and Huseynov and Others, § 48, both cited above). Consequently, the Court found that the applicants’ arrests and periods of detention had pursued aims unrelated to the formal ground relied on to justify the deprivation of liberty, and implied an element of bad faith and arbitrariness (see Huseynli and Others, §§ 147‑48, and Huseynov and Others, §§ 66-68, both cited above).
58. Having regard to the facts of the present case and their similarity to those of Huseynli and Others and Huseynov and Others on all the relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in those judgments, and finds that in the present case the applicant’s right to liberty was breached, on two separate occasions, for the same reasons as those outlined above.
59. Accordingly, there have been violations of Article 5 § 1 of the Convention in respect of both occasions on which the applicant was arrested and detained.
60. In view of the nature and the scope of its finding above, the Court does not consider it necessary to examine the applicant’s other complaints under Article 5 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
61. The applicant complained under Articles 6 and 14 of the Convention that in both sets of administrative offence proceedings, he had not had a fair hearing. The Court considers that this complaint falls to be examined under Article 6 of the Convention, the relevant parts of which read as follows:
“1. In the determination of his civil rights and obligations or 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:
…
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him …”
A. Admissibility
62. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
63. With respect to both sets of administrative offence proceedings against him the applicant submitted that he had not been represented by a lawyer at the pre-trial stage (during his periods of detention) or before the first-instance courts and that he had not been given an opportunity to appoint a lawyer of his own choosing to represent him before the first‑instance courts. The applicant also argued that the courts had ignored his arguments, that he had not been offered the opportunity to obtain witnesses on his behalf, and that the courts had merely based their findings on the statements of the police officers who had been the sole witnesses questioned at the first-instance hearings.
64. The Government submitted that during the proceedings before the first-instance courts the applicant had declared that he would defend himself in person. Furthermore, in the second set of administrative offence proceedings, during the first-instance hearing the applicant had been offered State-funded legal assistance however, he had refused it. The Government also submitted that the applicant had not requested the appearance of any witnesses on his behalf, either before the first-instance courts or before the Court of Appeal.
2. The Court’s assessment
65. The Court notes that the principles relevant to the present complaint are summarised in Huseynli and Others (cited above, §§ 110-12, 119-20, 125-27 and 130).
66. Similar facts and complaints have already been examined in Huseynli and Others and Huseynov and Others in which the Court found a violation of Article 6 § 3 taken together with Article 6 § 1 of the Convention (see Huseynli and Others, cited above, §§ 112-32; Huseynov and Others, cited above, §§ 57-58; see also Gafgaz Mammadov v. Azerbaijan, no. 60259/11, §§ 74-96, 15 October 2015). As in those cases, the applicant in the present case was arrested and convicted in both sets of administrative proceedings following an accelerated procedure under the CAO. On both occasions, he was held in police custody without any contact with the outside world, presented with charges and shortly afterwards taken to a court and convicted. The applicant was not given an opportunity to appoint a lawyer of his own choosing at the pre-trial stage or for the proceedings before the first-instance courts. A mere refusal to be represented by the State-appointed lawyer at the first instance hearing during the second set of administrative offence proceedings does not demonstrate in the present case that the applicant waived his right to choose his own lawyer. Neither the first-instance courts nor the Court of Appeal took note of the applicant’s arguments that he had been arrested for his activities as a member of the opposition. The courts failed to clarify the facts that were disputed between the parties: they merely accepted the police officers’ versions of the facts and the charges as presented in the relevant police reports. In view of the similarities of the present case with the cases of Huseynli and Others and Huseynov and Others (both cited above) the Court sees no particular circumstances that could compel it to deviate from its findings in those judgments, and finds that both sets of administrative offence proceedings in the present case, considered as a whole, were not in conformity with the guarantees of a fair trial.
67. There have accordingly been violations of Article 6 §§ 1 and 3 of the Convention in respect of both sets of administrative offence proceedings against the applicant.
68. Having had regard to the above findings, the Court considers that there is no need to examine the applicant’s arguments concerning the lack of opportunity to obtain the attendance of witnesses on his behalf.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
69. 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
70. The applicant claimed 30,000 New Azerbaijani manats (AZN), which at the material time constituted around 29,603 euros (EUR), in respect of non-pecuniary damage.
71. The Government submitted that the applicant’s claim was unsubstantiated and asked the Court to adopt a strict approach in respect of this claim and reject it.
72. The Court considers that the applicant has 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 applicant EUR 8,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
73. The applicant also claimed AZN 1,800, which at the material time constituted around EUR 1,776, for the costs and expenses incurred before the Court. In support of his claim, he submitted a contract, dated 29 May 2012, for legal services.
74. The Government considered that the claim was unsubstantiated and asked the Court to adopt a strict approach in its respect. In particular, they argued that the contract for legal services signed between the applicant and the representative was not valid because it did not indicate the parties’ addresses and bank account details.
75. The Court considers unsubstantiated the Government’s objections as to the validity of the contract between the applicant and his representative. In the Court’s view both the applicant and his representative were sufficiently identified with their names and signatures.
76. 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 were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the mentioned criteria, the Court considers it reasonable to award the sum of EUR 1,000 for the proceedings before the Court, plus any tax that may be chargeable on the applicant.
C. Default interest
77. 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 under Articles 5 and 6 admissible and the remainder of the application inadmissible;
2. Holds that there have been violations of Article 5 § 1 of the Convention in respect of both occasions on which the applicant was arrested and detained;
3. Holds that there have been violations of Article 6 §§ 1 and 3 of the Convention in respect of both sets of the administrative offence proceedings against the applicant;
4. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts:
(i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, 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;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Mārtiņš Mits
Deputy Registrar President
Leave a Reply