MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-2

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-2 Gafgaz Mammadov group v. Azerbaijan (Application No. 60259/11) Supervision of the execution of the European Court’s judgments Reference document CM/Del/Dec(2021)1398/H46-1

 

Application	Case	Judgment of	Final on	Indicator for the classification
60259/11	GAFGAZ MAMMADOV	15/10/2015	14/03/2016	Complex problem
67360/11+	HUSEYNLI AND OTHERS	11/02/2016	11/05/2016
69234/11+	IBRAHIMOV AND OTHERS	11/02/2016	11/05/2016
69456/11	AHAD MAMMADLI	16/06/2016	16/06/2016
5231/13+	HAJIBEYLI AND OTHERS	30/06/2016	30/06/2016
34262/14+	HUSEYNOV AND OTHERS	24/11/2016	24/11/2016
5417/13+	ABBASLI	16/02/2017	16/02/2017
43137/13+	BABAK HASANOV	16/02/2017	16/02/2017
74609/10+	BAYRAM BAYRAMOV AND OTHERS	16/02/2017	16/02/2017
72230/11+	BAYRAMLI	16/02/2017	16/02/2017
42989/13+	JAMIL HAJIYEV	16/02/2017	16/02/2017
24508/11+	MAHAMMAD MAJIDLI	16/02/2017	16/02/2017
19150/13+	BAYRAMOV	06/04/2017	06/04/2017
65910/14+	KHALILOVA AND AYYUBZADE	06/04/2017	06/04/2017
20589/13+	MEHTIYEV AND OTHERS	06/04/2017	06/04/2017
44699/13	HAJILI AND OTHERS	29/06/2017	29/06/2017
69397/11+	ABBAS AND OTHERS	13/07/2017	13/07/2017
78162/13+	ALISOY AND OTHERS	13/07/2017	13/07/2017
60262/11+	BABAYEV AND HASANOV	20/07/2017	20/07/2017
12854/13+	MIRZAYEV AND OTHERS	20/07/2017	20/07/2017
69180/11	TURAL HAJIBEYLI	28/09/2017	28/09/2017
39919/07+	HASANOV AND OTHERS	05/09/2019	05/12/2019
56317/11+	MAJIDLI AND OTHERS	26/09/2019	26/12/2019
7268/10	AKIF HASANOV	19/12/2019	19/03/2020
66917/11	AGAYEV	14/05/2020	14/08/2020
76236/11	ALIYEV	11/06/2020	11/09/2020
38158/12+	DAMIROV AND OTHERS	03/12/2020	03/12/2020
39466/16	IBRAHIMOV	14/01/2021	14/01/2021
30608/14	SAVALANLI	14/01/2021	14/01/2021
12098/09	SALMANOVA	08/07/2021	08/07/2021

Case description

This group concerns numerous breaches of the applicants’ freedom of assembly through the dispersal of unauthorised peaceful demonstrations not posing any threat to public order, organised or planned by the opposition in 2010-2014 and their ensuing arrest and administrative conviction to short periods of detention (3-15 days) for having participated in the demonstrations or criminal convictions for public disorder (1.5-3 years) (Article 11).

It also concerns a violation of the right of individual petition on account of the seizure from the office of the applicants' representative (Mr Intigam Aliyev) of the entire case file relating to the applicants’ pending cases before the Court, together with all his other case files (Article 34^[1]).

As regards the violations of Article 11, the Court stressed its serious concern about the lack of foreseeability and precision of the legislation governing public assemblies and about the possibility of public assemblies being abusively banned or dispersed. In particular, whereas the Constitution requires only prior notification of a planned public assembly, the Law on Freedom of Assembly provides the relevant local executive authority with broad powers to prohibit or stop a public assembly. Also, the Law vests it with the power to restrict or change the place, route and/or time of a gathering, and to designate specific areas for public assemblies.

The Court considered that in taking the impugned measures (dispersal, arrest and conviction to detention), the authorities failed to act with due tolerance and good faith as regards the applicants’ right to freedom of assembly, did not adduce sufficient and relevant reasons justifying the interferences and imposed disproportionate sanctions. It held that these measures must not only have discouraged the applicants but must also, in all probability, have deterred other opposition supporters and the public at large from attending demonstrations and, more generally, from participating in open political debate.

The Court also found that the proceedings leading to the applicants’ administrative/criminal convictions were unfair (violations of Article 6 §§ 1 and 3) for the following reasons:

-       lack of adequate time and facilities to prepare their defence - pre-trial procedures were very brief; applicants were secluded from the outside world and the assistance of a lawyer was not secured; as the Code of Administrative Offences did not require the mandatory participation of a public prosecutor, the accusations against the applicants were both presented and examined by the judges of the first-instance courts with the result that the applicants were not afforded an opportunity to put forward an adequate defence in adversarial proceedings;

-       lack of adequate reasoning in the domestic courts’ decisions, which relied on the administrative-offence reports prepared by the police and ignored the applicants’ main arguments;

-       lack of assistance by a lawyer at the initial stages of the proceedings and/or at first instance court hearings and the formalistic representation by state lawyers.

Finally, the Court found that the applicants’ arrests and administrative detentions were arbitrary, as unrelated to the formal ground relied on to justify the deprivation of liberty and motivated solely by their participation / intention to participate in peaceful demonstrations. The domestic courts also acted arbitrarily in reviewing the legality of the deprivation of liberty, failing to examine whether the police had invoked the correct legal basis for the applicants’ arrests or the legality of the police interferences with the demonstrations (violations of Article 5 § 1).

Status of execution

Individual measures

This group of cases was presented for the first time for a detailed examination at the Committee’s meeting in June 2017. A communication was submitted by the authorities on 22 February 2021 (see DH-DD(2021)219). According to the information from the authorities, in all the cases of this group, except Majidli and Others, the applicants were sentenced to administrative detention of 15 days or less and are no longer detained. In compliance with Code of Administrative Offences, the administrative offence records were automatically erased after one year and the applicants do not suffer any negative consequences of the administrative convictions.

In the Majidli and Others case, the applicants were convicted of criminal offences, sentenced to imprisonment for up to three years in 2012-2013 and have served their sentences. In accordance with Article 83.3 of the Criminal Code, two years after the end of their sentence, the applicants’ criminal convictions were automatically expunged and considered erased from their criminal records. In addition, the judgment has been sent to the Supreme Court in order to establish whether additional measures of redress need to be taken. Information is awaited on the outcome of this examination.

As to the seizure of case files, the authorities confirmed that all the case files seized from the applicants’ representative’s office have been returned.

As regards the payment of just satisfaction, the authorities reported that it has been paid in full in 21 cases, but certain amounts remain outstanding in five other cases in respect of five applicants.^[2] These applicants (four of whom reside abroad) have not provided bank account details and the authorities’ attempts to reach them or their representatives have been unsuccessful.

General measures

During its last examination of the present group at is 1398^th meeting (March 2021) (DH), the Committee reiterated its deep concern that more than five years after the first judgment in this group became final, the authorities have yet to present an action plan containing full information on the current law and practice on freedom of assembly with concrete proposals on how they intend to remedy the remaining shortcomings identified by the European Court in its judgments.

The Committee also urged the authorities to provide the required action plan within the deadline for 1419th meeting (December 2021), to enable the Secretariat to carry out a full analysis and in the absence of such an action plan, instructed the Secretariat to prepare a draft interim resolution for examination at that meeting.

At the time of the preparation of the present Notes, no information has been provided by the authorities.

Analysis by the Secretariat

The violations found in this group of cases under Article 11 relate to structural problems in both legislation and practice. It is therefore of utmost importance to carry out the necessary reforms in order to ensure the domestic law and practice are in line with the requirements of the Convention. In particular, the domestic legislation must be applied and interpreted by the relevant domestic authorities and the courts as well as the police in a manner respective of a presumption in favour of assemblies and exercise of a right to freedom of assembly. Moreover, it appears important that the Court’s concerns as to the lack of foreseeability and precision of legislation governing public assemblies, allowing possibility for public assemblies to be abusively banned or dispersed be addressed and unfettered discretionary powers to stop, prohibit or unreasonably restrict such assemblies notably through the change of place, route and/or time or area of the assembly are reviewed and limited. 

In this context it is recalled that since the first judgment in this group became final in early 2016, i.e. more than five years ago, the authorities have not yet presented a comprehensive action plan containing full information on the measures planned to remedy the shortcomings identified by the Court.

Since no such an action plan has been submitted by the authorities in response to the Committee last decision, the Committee could adopt an interim resolution.

Financing assured: YES