I incorrectly predicted that there's no violation of human rights in IBRAHIMOV v. AZERBAIJAN.

Judgment

FIFTH SECTION
CASE OF IBRAHIMOV v. AZERBAIJAN
(Application no. 39466/16)

JUDGMENT
STRASBOURG
14 January 2021

This judgment is final but it may be subject to editorial revision. In the case of Ibrahimov 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 Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 39466/16) 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 Turan Mammad oglu Ibrahimov (Turan Məmməd oğlu İbrahimov – “the applicant”), on 20 June 2016;
the decision to give notice of the complaints under Article 6 §§ 1 and 3 (c) of the Convention to the Azerbaijani Government (“the Government”) and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 3 December 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that the domestic proceedings concerning his administrative arrest had been unfair. THE FACTS
2. The applicant was born in 1992 and lives in Baku. He was represented by Mr Y. Imanov, a lawyer based 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. 5. The applicant was arrested at approximately 9.30 p.m. on 13 January 2016 and taken to Narimanov police station no. 17, where a report was drawn up indicating that he had committed an administrative offence under Article 310.1 (deliberate failure to comply with lawful orders of the police) of the Code of Administrative Offences (“the CAO”). The applicant, who had been provided with a State-funded lawyer, submitted a written explanation, admitting that he had been loudly swearing on the street and that he had disobeyed police officers’ demands to stop that language. 6. On 14 January 2016 the applicant was brought before the Narimanov District Court. 7. According to the applicant, he refused State-funded legal assistance at the hearing and insisted on choosing his own lawyer, but the judge disregarded that request. 8. According to the transcript of the hearing, the applicant, who was represented by a State-funded lawyer, refused to give a statement. The judge, however, read out his written explanation given at the police station. The State-funded lawyer stated that he had no request to put before the court and asked it to deliver a fair decision. 9. The only witnesses questioned during the court hearing were two of the police officers who had arrested the applicant, who stated that they had approached the latter while he had been swearing loudly on the street, and had asked him to calm down. As the applicant had disregarded their request and continued his actions, they had taken him to the police station in order to identify him and to compile a report. 10. On the same day the Narimanov District Court found that the applicant had failed to obey police orders. The court convicted him under Article 310.1 of the CAO and sentenced him to seven days’ administrative detention. 11. On 25 January 2016 the applicant, now represented by a lawyer of his own choosing, lodged an appeal before the Baku Court of Appeal. He submitted that the underlying purpose of his arrest and detention had been to punish him for the posts which he had been publishing on social networks as a member of an opposition party. Relying on Articles 5, 6 and 14 of the Convention, the applicant asked the appellate court to thoroughly examine the circumstances of his case and to find violations of his rights such as, inter alia, to be promptly brought before a judge, not to incriminate himself, to have legal representation of his own choosing and to express his political views without discrimination. The applicant also requested that the police officers who had arrested him be called to give evidence. 12. On 29 January 2016 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, finding it justified. The appellate court made no mention of the applicant’s particular complaints. RELEVANT LEGAL FRAMEWORK
13. The relevant provisions of the CAO are described in detail in the Court’s judgment in Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 32‐38, 15 October 2015). THE LAW
14. The applicant complained under Article 6 of the Convention that he had not had a fair hearing in the administrative proceedings against him. In particular, he complained that the domestic courts’ decisions had not been reasoned and that he had not been allowed to choose his own lawyer in the administrative proceedings before and during the trial. The relevant parts of Article 6 provide as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(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;
...”
15. The Court notes that this complaint is not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 16. The applicant maintained his complaint. 17. The Government submitted that the applicant’s rights under Article 6 of the Convention had been duly respected. The domestic courts’ decisions had been reasoned, fair and based on lawful, impartial and comprehensively assessed evidence. Both before and during the trial the applicant had been represented by the State-funded lawyers and he had not raised any objection to their representing him until the proceedings before the appellate court. They further submitted that, in any event, during the hearing before the Baku Court of Appeal the applicant had been represented by a lawyer of his own choosing. 18. The Court notes at the outset that there is a significant degree of similarity between the legal issues raised by the applicant under Article 6 of the Convention in the present case and previous cases against Azerbaijan concerning the administrative convictions of applicants under the CAO (see, among many other authorities, Gafgaz Mammadov v. Azerbaijan, no. 60259/11, §§ 74-96, 15 October 2015; Ibrahimov and Others v. Azerbaijan, nos. 69234/11 and 2 others, §§ 93-115, 11 February 2016; and Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, §§ 110‐35, 11 February 2016). 19. In particular, as in the latter cases, the first-instance court in the present case referred only to the administrative-offence report and to the witness testimony of two of the police officers who had arrested the applicant without giving any further reasons for its decision. The appellate court disregarded the applicant’s request for the police officers who had arrested him to be called to give evidence and endorsed the findings of the first-instance court without considering any other explanations or addressing the serious allegations raised by the applicant. In that regard, the Court reiterates its previous findings in examining the fairness of criminal proceedings, that by ignoring a specific, pertinent and important point made by the accused, the domestic courts fell short of their obligations under Article 6 § 1 of the Convention (see Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 280, 21 April 2011, and Aliyev v. Azerbaijan [Committee], no. 76236/11, § 18, 11 June 2020). Taking the view that in the present case the domestic courts’ decisions lacked adequate reasoning, the Court concludes that the administrative proceedings against the applicant, considered as a whole, were not in conformity with the guarantees of a fair hearing. 20. The Court therefore considers that the administrative proceedings in the present case, considered as a whole, were not in conformity with the guarantees of a fair trial under Article 6 §§ 1 and 3 of the Convention (see Gafgaz Mammadov, § 96; Ibrahimov and Others, § 115; and Huseynli and Others, § 135, all cited above). 21. Furthermore, having regard to the above finding of a violation of Article 6 §§ 1 and 3 of the Convention, the Court finds it unnecessary to rule on the issue of whether refusal by the applicant of State-funded legal assistance in the proceedings before the first-instance court constituted an unequivocal waiver of the right to a lawyer (see Hajili and others v. Azerbaijan [Committee], nos. 44699/13 and 2 others, § 61, 29 June 2017; Mirzayev and Others v. Azerbaijan [Committee], nos. 12854/13 and 2 others, § 30, 20 July 2017; and Agayev v. Azerbaijan [Committee], no. 66917/11, § 25, 14 May 2020). 22. 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.”
23. The applicant claimed 25,000 euros (EUR) in respect of non‐pecuniary damage. 24. The Government submitted that his claim was unsubstantiated. 25. 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 him the sum of EUR 3,600 under this head, plus any tax that may be chargeable on this amount. 26. The applicant also claimed 3,000 Azerbaijani manats (approximately EUR 1,760 at the material time) for the legal fees incurred before the Court. In support of his claim, he submitted a contract, dated 16 June 2016, for legal services. 27. The Government argued that the claims were excessive and could not be regarded as reasonable as to quantum. In particular, the contract submitted by the applicant did not prove that he had made any payment. 28. 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 have been 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 amount of legal work necessary in the present case, the Court considers it reasonable to award the total sum of EUR 500 covering costs under all heads. 29. 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,
(a) that the respondent State is to pay the applicant, 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 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 500 (five hundred 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;
Done in English, and notified in writing on 14 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Lado ChanturiaDeputy RegistrarPresident