Mammadov v Azerbaijan (European Court of Human Rights, Grand Chamber, Application No 60259/11, 15 October 2015)
The European Court of Human Rights found that the arrest and conviction of peaceful pro-democracy protesters in Azerbaijan was in bad faith and breached the right to freedom of peaceful assembly.
On 19 June 2011, a protest was held by the opposition group Ictimai Palata in a central area of Baku, Azerbaijan. The group was refused permission to demonstrate in a central square by the relevant Baku City Executive Authority. Nevertheless, the group held the protest in another central location. The applicant, an Azerbaijani national Mr Gafgaz Suleyman oglu Mammadov who attended the demonstration, alleged that it was a peaceful protest, and that participants were demanding free and fair elections, democratic reforms, freedom of assembly and the release of persons arrested during previous demonstrations. The applicant was arrested at the demonstration and not given a lawyer while he was in police custody. On 20 June 2011, a domestic court found him guilty of an ‘administrative offence’ under the ‘Code of Administrative Offences’ and sentenced him to five days of detention. He unsuccessfully appealed to the Baku Court of Appeal.
An application was then lodged against the Republic of Azerbaijan under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms on 10 September 2011.
The applicant alleged that the dispersal of the demonstration and his subsequent arrest and conviction violated his right to freedom of peaceful assembly. He further complained that the administrative proceedings against him had fallen short of guarantees of a fair hearing, and that his arrest and conviction had been contrary to guarantees of the right to liberty.
The complaints concerned Articles 5, 6 and 11 of the Convention which respectively deal with the right to liberty and security, the right to a fair trial and freedom of assembly and association.
Article 11 of the Convention
The Court found that there was a violation of the applicant’s right to freedom of peaceful assembly and freedom of association. The Court held that there was interference with the exercise of freedom of peaceful assembly. An interference can equate to a measure of the authorities other than an outright ban. Accordingly, actions taken before, during and after an assembly can constitute interferences. The dispersal of the protesters and the arrest of the applicant was therefore one such interference. The government argued that the applicant was not punished for his participation in the demonstration. He was punished for deliberately disobeying a lawful order of police officers. However, the Court ruled that the police and domestic courts both described the impugned behaviour as a failure to stop participating in an unauthorized demonstration.
The interference with the demonstration was lawful under Azerbaijani domestic law. The Court noted its concern that peaceful protesters have effectively been banned from central Baku since 2006, despite complying with giving the authorities advanced notice - the only Constitutional requirement under Art 49. However, the Court did not limit its examination solely to the lawfulness of the interference. It also considered whether the interference pursued a legitimate aim and was necessary in a democratic society. Requiring that demonstrations need prior authorization is not per se an infringement of freedom of assembly. In the present case, the dispersal was not necessary. The authorities did not explain why, instead of taking actions to minimize the disruption to traffic and putting in place safety measures, they dispersed the demonstration. There was no evidence that the demonstration would have been hard to police or difficult to protect public safety. The authorities made no effort to balance the applicant’s right to participate in the demonstration against possible damage this could cause to public or private interests.
Further, the Court found that the authorities did not have sufficient evidence to justify the applicant’s arrest and conviction. Despite being formally charged with failure to comply with a lawful order of a police officer, the applicant in fact was arrested and convicted for his participation in an unauthorised peaceful demonstration. Accordingly, the Court found that the sanction imposed on him was unwarranted and disproportionate.
Article 6 of the Convention
There was a violation of Article 6 and the accused’s right to a fair hearing. Despite the local court characterising proceedings against the applicant as ‘administrative’, the Court considered them to be akin to criminal charges.
In this case, the applicant was arrested at 6.10pm on 19 June and was in court for a trial hearing at 12pm on 20 June. He was not allowed access to a lawyer while in custody, and was only allowed a government lawyer – not one of his own choosing - for the trial. The applicant was furthermore not provided with a copy of the report, evidence or charges against him. The Court held that even in a less complex matter than this, the circumstances in which the trial was conducted were not conducive to giving the applicant a fair hearing. The applicant was not given adequate time and facilities to conduct his defence.
The Court stressed that Article 6 usually requires that the accused be allowed to see a lawyer during the initial stages of police questioning. Even if there are reasons to restrict access to a lawyer, that restriction must not unduly prejudice the accused’s rights under Article 6.
Article 5 of the Convention
The Court held that there had been a breach of Article 5 – the right to liberty and security of person.
The applicant argued that his arrest and detention for failing to comply with a lawful order of a police officer was arbitrary. He said that it was arbitrary because he had not disobeyed an order of a police officer.
More broadly, the Court has not formulated a global definition of what arbitrary conduct is. There have been, however, some principles developed on a case-by-case basis. Detention will be arbitrary when, despite it complying with national law, the detention has an element of bad faith, deception, or a neglect to correctly apply relevant legislation.
In the present case, the applicant’s arrest and detention contained an element of bad faith. The applicant was formally charged with failure to comply with a lawful order of a police officer, however he was in fact detained for his participation in an unauthorized peaceful demonstration. Moreover, the domestic Appellate Court acted arbitrarily. It failed to examine whether the police had invoked the correct legal basis for the applicant’s detention and they did not review the lawfulness of the police’s interference with the demonstration. Therefore, there was a breach of Article 5.
The United Nations has reported a trend of Azerbaijani legislation that considerably narrows the space in which civil society and human rights defenders can act.
This decision of the ECHR comes in the context of Azerbaijan’s severe crackdown on demonstrations. According to Human Rights Watch, the authorities have routinely broken up unsanctioned protests and arrested and imprisoned peaceful protesters. The Constitution permits peaceful assembly of groups after simply notifying the authorities, however in practice, authorities require that groups acquire permits from local municipalities. This has increased the Government’s control over which protests and assemblies it allows.
As in this case, the Azerbaijani authorities regularly use administrative charges to imprison people for participating in unsanctioned rallies. This case is an important decision for recognising that these charges can be arbitrary and made in bad faith.
The full decision can be found here.
Beatrice Paull is a legal researcher at the Human Rights Legal Centre.