FIFTH SECTION
CASE OF MAJIDLI AND OTHERS v. AZERBAIJAN
(Applications nos. 56317/11 and 10 others – see appended list)
 
 
 
 
 
 
JUDGMENT
STRASBOURG
26 September 2019
 
This judgment is final but it may be subject to editorial revision. In the case of Majidli and Others v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
 André Potocki, President,
 Mārtiņš Mits,
 Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 3 September 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in eleven applications against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). The details concerning each application are set out in the Appendix. 2. On various dates the Azerbaijani Government, who were represented by their Agent, Mr Ç. Əsgərov, were given notice of the applications. Third‑party observations were received in applications nos. 56317/11, 67932/11, 27472/12 and 59661/12 from Mr Maina Kiai, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, and the Human Rights Centre of Ghent University, following the granting of leave to intervene as a third party in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). 3. The Government did not object to the examination of the present applications by a Committee. THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicants’ personal details are set out in the Appendix. 5. The applicants are opposition-oriented activists and members of opposition parties. 6. Starting from 2010 a number of opposition parties or groups organised several demonstrations in Baku. These demonstrations had not been authorised and many participants were arrested during the dispersal of those demonstrations. Two of these demonstrations took place on 19 June 2010 and 2 April 2011. Demonstration of 19 June 2010 (application no. 56317/11)
7. The applicant in application no. 56317/11 was arrested during the dispersal of the demonstration of 19 June 2010 and taken to a police station where an administrative-offence report (inzibati xəta haqqında protokol) was drawn up. The report stated that by participating in an unauthorised demonstration the applicant had deliberately failed to comply with a lawful order of the police, and, by doing so, had committed an administrative offence under Article 310.1 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences (“the CAO”). 8. On the same date the Sabail District Court convicted the applicant under Article 310.1 of the CAO, and sentenced him to a fine of 20 Azerbaijani manats (AZN – approximately 20 euros (EUR)). Both after the arrest and during the first-instance-court hearing the applicant was not represented by a lawyer. The first-instance court relied heavily on the administrative-offence report issued in respect of the applicant. The applicant lodged an appeal and complained that his conviction had been in violation of his rights because the demonstration in which he had participated had been peaceful. 9. On 23 July 2010 the Baku Court of Appeal held a hearing in the applicant’s and his lawyer’s absence and upheld the decision of the first‑instance court. 10. On 28 February 2011 the Registry of the Sabail District Court sent the applicant a copy of the decision of 23 July 2010. Demonstration of 2 April 2011 (all applications)General information pertaining to all applications

11. The year 2011 was marked by an increased number of opposition demonstrations in Azerbaijan, mainly in Baku. They were held, inter alia, on 11 and 12 March, 2 and 17 April, 22 May and 19 June 2011. 12. As regards the demonstration of 2 April 2011, the organisers gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”) on 18 March 2011. The aim of the demonstration was, in particular, to demand the Government “guarantee the right to freedom of assembly”, “carry out democratic reforms” and “release political prisoners”. 13. By the letter of 31 March 2011 the BCEA refused to authorise the holding of the demonstration at the place indicated by the organisers and proposed that it be held at a different location. 14. Nevertheless, the organisers decided to hold the demonstration in the central squares of Baku. Information about the demonstration of 2 April 2011 was disseminated through the press. 15. A day before the demonstration of 2 April 2011, the Baku city prosecutor’s office issued a notice addressed to the applicant in application no. 59661/12 and certain other individuals – presumed organisers of the demonstration of 2 April 2011 – stating that:
“If there is an attempt to hold a public assembly in places not agreed upon with the Baku City Executive Authority, illegal actions consisting of breach of public order and insubordination to lawful demands of public officers, or causing inconvenience to population, or causing disruption of the normal functioning of transport, enterprises, bodies and organisations, will be prevented in accordance with the law, and prescribed relevant measures will be taken against you as one of the organisers of the public assemblies.”
16. The notice also contained a warning that the mentioned actions entailed criminal responsibility under Article 220 (mass disorder) and Article 233 (organisation or active participation in actions causing a breach of public order) of the Criminal Code. 17. The applicants decided to participate in the demonstration of 2 April 2011. The video recordings submitted by some applicants show that on 2 April 2011 as soon as the protesters began gathering in central streets of Baku, marching and chanting slogans calling for the government’s resignation, the police started to disperse the demonstration by arresting demonstrators and forcing them into police vehicles and buses, which resulted in isolated incidents of clashes between police officers and demonstrators. It appears that several demonstrators inflicted physical injuries on around twenty-five police officers, damaged two private vehicles, and broke windows of some shops and offices located near the place where the demonstration was held. Peculiarities of individual applications
(a)   Applications nos. 56317/11, 67932/11, 27472/12 and 59661/12
(i)  Criminal proceedings against the applicants
18. The applicants were arrested during the dispersal of the demonstration of 2 April 2011 and brought to various police offices for questioning as witnesses. Later on the same day, the formal decisions were drawn up to detain the applicants as suspects in the criminal cases. 19. On 4 April 2011 the prosecution formally charged the applicants with a criminal offence under Article 233 of the Criminal Code (organisation of or active participation in actions causing a breach of public order). 20. The applicants in applications no. 56317/11, 67932/11 and 27472/12 were detained pending trial. Mr Fuad Gahramanli was placed under police supervision as a preventive pre-trial measure. 21. On 29 July 2011 a bill of indictment was drawn up in respect of the applicants and the case went to trial. 22. During the trial the applicants pleaded not guilty and argued that the case against them was politically motivated. While the trial against the applicants was under way, on 25 August 2011 the Sabail District Court delivered a judgment in another criminal case against six other participants in the demonstration of 2 April 2011. The judgment stated that the mentioned individuals had committed the criminal offences in question under the direction (təşkilatçılıq) of the applicants and several other individuals. 23. By a judgment of 3 October 2011, the Sabail District Court convicted the applicants under Article 233 of the Criminal Code and sentenced them to various terms of imprisonment ranging from two years to two years and six months (see Appendix). The Sabail District Court found that the applicants had disobeyed the orders of the police, organised and actively participated in actions causing a breach of public order, traffic jams, destruction of private and public property and infliction of injuries to twenty-five civilians and police officers. In finding the applicants guilty, the court relied on the following evidence:
‑  Statements of the civil claimants who testified that some unidentified participants in the demonstration had inflicted on them either physical or material damage;
‑  Statements of the police officers who testified that the applicants had actively participated in the demonstration, behaved aggressively, led other participants, chanted slogans and refused to obey orders of the police;
‑  Medical forensic reports concerning injuries sustained by a number of victims;
‑  Forensic reports concerning the damage inflicted to various vehicles and shops;
‑  Video footage which showed Mr Hajili speaking about the necessity to organise a demonstration against the Government’s policies during a meeting of several opposition parties held on 27 February 2011;
‑  Video footage which contained an interview with Mr Gahramanli held on 1 April 2011 and in which he spoke about organisation of the demonstration of 2 April 2011;
‑  Video footage which showed Mr Gahramanli marching together with others and chanting slogans during the demonstration of 2 April 2011;
‑  Video footage which showed Mr Majidli chanting slogans and being arrested during the dispersal of the demonstration;
‑  A video recording which showed other participants in the demonstration kicking and damaging a bus. 24. As regards the civil claims lodged against the applicants by legal and physical persons, the first-instance court rejected them for procedural reasons. 25. The applicants appealed, complaining of the unfairness of the criminal proceedings, the breach of their right to presumption of innocence, and that their arrest and conviction had been in violation of their right to freedom of assembly. 26. On 16 December 2011 the Baku Court of Appeal dismissed the applicants’ appeals against the judgment of 3 October 2011, finding their complaints unfounded. 27. On 24 April 2012 and 21 June 2012 the Supreme Court dismissed appeals on points of law lodged by the applicants and upheld the Baku Court of Appeal’s judgment of 16 December 2011. (ii)  Alleged ill-treatment of Mr. Tural Abbasli (application no. 27472/12)
28. According to the applicant, on 2 April 2011 he was subjected to ill-treatment during his arrest and then in police custody. 29. On 4 April 2011 Mr Tural Abbasli complained of his ill-treatment to a judge deciding on his pre-trial detention. The judge sent the complaint to the Baku city prosecutor’s office for examination. 30. On 25 April 2011 the Baku city prosecutor’s office refused to institute criminal proceedings in connection with the applicant’s allegations of ill-treatment. 31. The applicant lodged a complaint in respect of the decision of 25 April 2011 of the Baku city prosecutor’s office with the Sabail District Court. 32. On 8 September 2011 the court dismissed the applicant’s complaint. The applicant appealed. 33. In a final decision of 23 September 2011 the Baku Court of Appeal upheld the first-instance court’s decision. According to the applicant, he received the decision of the Baku Court of Appeal on 3 October 2011. (b)   Applications nos. 6814/13, 6903/13, 7990/13, 12717/13 and 28563/13
34. Some of the applicants were arrested during the dispersal of the demonstration on 2 April 2011, while others were a few days later. 35. On 9 April 2011 the prosecution formally charged Mr Babak Hasanov, Mr Elshan Hasanov and Mr Sahib Karimov with a criminal offence under Article 233 of the Criminal Code (active participation in actions causing a breach of public order). Mr Zulfugar Eyvazov and Mr Arif Alishli were formally charged with the same criminal offence under Article 233 of the Criminal Code on 15 and 16 April 2011 respectively. Mr Arif Alishli, Mr Sahib Karimov and Mr Zulfugar Eyvazov were additionally charged under Article 186.1 of the Criminal Code (intentional destruction or damaging of property) for damaging a bus owned by S.M., which the police had been using to transport arrested demonstrators. The applicants were detained pending trial. 36. On 28 June 2011 a bill of indictment was drawn up in respect of the applicants and the case went to trial. 37. During the trial the applicants pleaded not guilty, relying on their right to freedom of assembly. 38. By a judgment of 25 August 2011, the Sabail District Court convicted the applicants under Article 233 of the Criminal Code. The court also convicted Mr. Arif Alishli under Article 186.1 of the Criminal Code while acquitting Mr Sahib Karimov (application no. 12717/13) and Mr Zulfugar Eyvazov (application no. 6903/13) under this Article for lack of evidence. The applicants were sentenced to various terms of imprisonment ranging from one year and six months to three years (see Appendix). The Sabail District Court found that the applicants had disobeyed the orders of the police, actively participated in actions causing a breach of public order, traffic jams, destruction of private and public property and infliction of injuries to twenty-five civilians and police officers. The court also found that the actions of Mr Arif Alishli (application no. 28563/13) “had resulted in damage to other individuals’ property”. 39. In finding the applicants guilty, the court relied on the following evidence:
‑  The testimony of S.M., according to whom some protesters had hit his bus and damaged it;
‑  Statements of civil claimants concerning material loss suffered because of the traffic jams caused by the demonstration;
‑  Statements of police officers, who testified that unidentified participants had behaved aggressively, chanted slogans and refused to obey orders of the police to disperse. One of the police officers who had participated in the arrest of demonstrators was able to identify Mr Babak Hasanov;
‑  Testimonies of bystanders, according to whom unidentified demonstrators chanted slogans and disobeyed the police;
‑  Forensic and financial reports concerning the material damage sustained by various vehicles and businesses;
‑  Video recordings which showed Mr Arif Alishli, together with another demonstrator, kicking and punching various parts of a bus (which had been used by the police to transport arrested demonstrators). 40. The Sabail District Court also examined civil claims against the applicants. The court allowed claims lodged by legal and physical persons who had allegedly suffered financial losses because of the traffic jams caused, awarding in total the sum of AZN 5,265 (approximately EUR 4,659) to be paid jointly by the applicants and another defendant, E.I. 41. In addition, the court granted S.M.’s civil claim in the amount of AZN 1,325 (approximately EUR 1,172) against Mr. Arif Alishli (application no. 28563/13) and E.I. 42. The applicants appealed, complaining of the unfairness of the criminal proceedings and the breach of their right to freedom of assembly. 43. On 18 October 2011 the Baku Court of Appeal reduced the sentence of Mr Elshan Hasanov from two years’ to one year’s imprisonment and dismissed the remainder of the applicants’ appeals. 44. On 5 June 2012 and 17 October 2012 the Supreme Court dismissed appeals on points of law by the applicants and upheld the Baku Court of Appeal’s judgment of 18 October 2011. 45. On 22 June 2012 Mr Babak Hasanov, Mr Zulfugar Eyvazov and Mr Sahib Karimov were pardoned and released from serving the remainder of their sentences. (c)   Applications nos. 23365/14 and 25680/14
46. Mr Ulvu Guliyev and Mr Rufat Hajibeyli were arrested on 8 and 22 April 2011 respectively. 47. On 9 April 2011 the prosecution formally charged Mr Ulvu Guliyev with criminal offences under Article 233 of the Criminal Code and Article 315.1 of the Criminal Code (resistance to or violence against a public officer). Mr Rufat Hajibeyli was formally charged on 23 April 2011 with the criminal offence under Article 233 of the Criminal Code. The applicants were detained pending trial. 48. On 13 July 2011 a bill of indictment was drawn up in respect of the applicants and the case went to trial. 49. During the trial the applicants pleaded not guilty relying on their right to freedom of assembly. 50. By a judgment of 10 October 2011, the Nasimi District Court found that the applicants had actively participated in actions causing a breach of public order. The court also found that Mr Ulvu Guliyev had violently resisted police officers. The court convicted the applicants under Article 233 of the Criminal Code. Mr Ulvu Guliyev was additionally convicted under Article 315.1 of the Criminal Code. The applicants were sentenced to terms of imprisonment of one year and six months and three years respectively (see Appendix). In finding the applicants guilty, the court relied on the following evidence:
‑  Testimonies of four police officers, E.T., N.S., M.M. and R.H., who had participated in the arrest of Mr Ulvu Guliyev and who testified that the latter had violently resisted the arrest by elbowing one of them, N.S., as a result of which that police officer’s cap had fallen off. According to N.S., he had not sustained any injuries as a result. He further submitted that Mr Ulvy Guliyev had kicked and damaged a police car;
‑  Testimonies of other police officers, according to which other demonstrators behaved aggressively, chanted slogans and refused to obey orders of the police to disperse;
‑  Statements of civil claimants and financial reports concerning the damage caused to their property and material loss suffered because of the traffic jams caused by the demonstration;
‑  Testimonies of bystanders which witnessed unidentified demonstrators disobeying orders of the police, damaging a police car and breaking a pharmacy window;
‑  Video recordings of the demonstration of 2 April 2011. 51. As regards the civil claims lodged against the applicants by legal and physical persons, the first-instance court dismissed them for procedural reasons. 52. The applicants lodged appeals with the Baku Court of Appeal. They complained that there had been various defects in the trial and that the hearings before the first-instance court had not been fair. They also complained that their arrest and conviction had been in violation of their right to freedom of assembly. 53. On 1 December 2011 the Baku Court of Appeal dismissed the applicants’ appeals. 54. On 3 July 2012 and 17 September 2013 the Supreme Court dismissed appeals on points of law by the applicants and upheld the Baku Court of Appeal’s judgment of 1 December 2011. 55. On 22 June 2012 Mr Ulvu Guliyev and Mr Rufat Hajibeyli were pardoned and released from serving the remainder of their sentences. RELEVANT DOMESTIC LAW AND PRACTICE
56. The relevant provisions of the Criminal Code provide as follows:
Article 186. Deliberate destruction or damage of property
“186.1. Deliberate destruction or damage of another’s property which caused significant harm
is punishable by a fine in the amount of [AZN 500 to 1,000], or deprivation of liberty for a period of up to two years.”
Article 233. Organisation or active participation in actions causing
a breach of public order
“Organisation by a group of individuals of actions which grossly breach public order, or are associated with insubordination in respect of lawful demands of a public officer, or cause disruption of the normal functioning of transport, companies, [public] bodies and organisations, as well as active participation in such actions –
is punishable by a fine in the amount of [AZN 5,000 to 8,000], or correctional labour for a period of up to two years, or deprivation of liberty for a period of up to three years.”
Article 315. Resistance to or violence against a public officer
“315.1. Use of violence against, or violent resistance to, a public officer in connection with the exercise of the latter’s official duties, or use against the close relatives of such a public officer of violence which does not pose a danger to their life or health, or the threat of use of such violence –
is punishable by deprivation of liberty for a period of up to three years.”
57. For a summary of other relevant provisions concerning administrative proceedings, the relevant provisions concerning the organisation and holding of public assemblies, and the relevant extracts of international documents, see the judgment in the case of Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 27-42, 15 October 2015). THE LAW
JOINDER OF THE APPLICATIONS
58. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION IN RESPECT OF THE DEMONSTRATION OF 2 APRIL 2011
59. The applicants complained that their arrest, prosecution and conviction for participation in the demonstration of 2 April 2011 had been in breach of their right to freedom of assembly, as provided for in Article 11 of the Convention. Some applicants also relied on Article 10 of the Convention (see Appendix). Those provisions read as follows:
Article 10
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 11
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
The parties’ submissionsThe Government

60. The Government submitted that there had been an interference with the applicants’ right to freedom of assembly due to the dispersal of the demonstration of 2 April 2011. They argued that this inference had been prescribed by law and was necessary in a democratic society to protect the rights and freedoms of others, in the interests of national security and for prevention of disorder or crime. Notably, the organisers had failed to hold the demonstration at the place proposed by the authorities and the demonstration had been dispersed by the police in accordance with Article 14 of the Law on Freedom of Assembly. According to the Government, the police had only intervened when demonstrators had started to behave aggressively causing public disorder. The applicants
61. The applicants submitted that the demonstration was peaceful and its dispersal by the authorities was unlawful and unjustified. They further argued that their arrest, prosecution and criminal conviction for participation in the demonstration had been arbitrary and not based on specific facts and evidence. According to the applicants, the real aim of these measures had been to punish them and to discourage others from participating in peaceful assemblies. The third parties
62. The third-party interveners in their joint submissions provided an overview of the case-law of the United Nations Human Rights Committee, the Inter-American Commission on Human Rights and the Court concerning various aspects of the right to freedom of assembly. They further expressed their concern about the general situation concerning the right to freedom of assembly in Azerbaijan, in particular, as regards the use of administrative and criminal sanctions for participation in peaceful assemblies.

Outcome for Article 6: violation