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Gafgaz Mammadov v. Azerbaijan, No. 60259/11

FIRST SECTION

CASE OF GAFGAZ MAMMADOV v. AZERBAIJAN

(Application no. 60259/11 )

JUDGMENT

STRASBOURG

15 October 2015

FINAL

14/03/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.

GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT 1
In the case of Gafgaz Mammadov v. Azerbaijan ,
The European Court of Human Rights ( First Section ), sitting as a
Chamber composed of:
András Sajó, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos -Alexandre Sicilianos, judges,
and Søren Nielsen , Section Registrar ,
Having deliberated in priv ate on 22 September 2015 ,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 60259/11) 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 Gafgaz Suleyman oglu
Mammadov ( Qafqaz Süleyman oğlu M əmm ədov – “the applicant”), on
10 September 2011 .
2. The applicant, who had been granted legal aid, was represented by
Mr R. Mustafazade and Mr A. Mustafayev , lawyers practising in
Azerbaijan . The Azerbaijani Government (“the Government”) were
represented by their Agent, Mr Ç. Asgarov .
3. The applicant alleged, in particular, that the dispersal of the
demonstration in which he had part icipated and his arrest and conviction
had 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.
4. On 17 February 2014 the complaints con cerning Articles 5, 6 and 11
were communicated to the Government and the remainder of the application
was declared inadmissible .

2 GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1953 and lives in Baku .
A. Demonstration of 19 June 2011 and the applicant ’s
“administrative” arrest
6. The opposition group Ictimai Palata was planning a demonstration to
be held on 19 June 2011 in Baku. On 9 June 2011 t he organisers –
consisting of several members of that group – gave prior notice to the
relevant authorit y, the Baku City Executive Auth ority ( “the BCEA ”),
informing it of the date, time, place and purpose of the demonstration .
According to the notice, t he assembly was scheduled to take place from
5 p.m. to 7 p.m. on 19 June 201 1 at the square in front of the Narimanov
Cinema in Baku .
7. The BCEA refused to authorise the holding of the demonstration at
the place indicated by the organisers and p roposed ano ther location on the
outskirts of Baku.
8. Nevertheless, the organisers decided to hold the demonstration in one
of the central areas of Baku , namely, near the Puppet Theatre on Seaside
Boulevard .
9. According to the applicant, t he demonstration was intended to be
peaceful and was conducted in a peaceful manner. The participants were
demanding free and fair elections, democratic reforms, freedom of
assembly, and the release of persons arrested dur ing some previous
demonstrations.
10 . The applicant attended the demon stration , but shortly after it had
started the police started to disperse it . The applicant was arrested at around
6.10 p.m. during the dispersal operation . He claimed that he had been
arrested and taken to a police car by plain -clothed persons . According to the
offici al records, he was arrested by police officer s Z.H . and J.M . He was
taken to police station No. 9 of the Sabail District Police Office.
11 . Police officer s Z.H. and J.M. stated the following in a report (raport )
submitted to a superior police officer :
“… at around 6.10 p.m. we were on duty … when Mammadov Gafgaz Suleyman
oglu, whose identity was established later, was attempting to hold an unlawful
demonstration . We demanded that he stop his illegal actions, [he] deliberately
disobey ed [and] continued his actions, and for that reason we broug ht him to the
[police station ] …”
12 . According to the applicant, he was questioned at the police station.

GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT 3
13 . At 6.50 p.m. o n the day of the arrest, an “administrative -offence
report” ( inzibati x əta haqqında protokol ) was issued by police officer H.H.
in respect of the applicant . The report stated that by deliberately failing to
comply with the lawful order of the police during the demonstration , the
applicant had committed an administrative offence under Article 310.1 of
the Code of Administrative Offences (“the CAO”) .
14 . The applicant refused to sign the report , which contained a
pre -printed text declaring that “[the arrested person] was familiarised with
the report, the reasons for his or her arrest and h is or her rights under
Articles 371, 400.2, 401.1.6, 401.1.7 of the CAO of the Republic of
Azerbaijan were explained”.
15 . Subsequently, police officer H.H. prepared an “administrative -arrest
report” ( inzibati qaydada tutma haqqında protokol ), stating that :
“… the [applicant] was subjected to administrative arrest at 8 p.m. on 19 June 2011
… in order to ensur e issuance of an administrat ive -offence report, to ensure a correct
and timely examination of the case, [and] to ensure the execution of decisions, in
accordance with Articles 396.1.2 and 398 of the CAO.”
16 . According to the applicant, he was never served wi th a copy of the
administrative -offence report or with other documents in his case file. He
was not given access to a lawyer after the arrest or while he was kept in
police custody.
B. Court proceedings against the applicant
17 . On 20 June 2011, the day after his arrest, th e applicant was brought
before the Sabail District Court.
18 . According to the applicant, he refused the assistance of a
State -funded lawyer and insisted on hiring a lawyer of his own choice, but
the judge disregarded his request. His r epresentation by that lawyer was
ineffective and of a formalistic nature. The hearing was very brief and
members of the public, including human rig hts defenders and journalists,
were not allowed to attend, even though the court had not taken a formal
decision to close the hearing to the public.
19 . The applicant stated before the court that he was not guilty of
disobeying a lawful order of a police officer and that he had participated in
the demonstration because he had a constitutional right to freedom of
assembly .
20 . According to the record of the hearing provided by the Government,
in response to t he judge ’s question whether the police officers, before
arresting him, had issued a relevant notice about dispersal of the
demonstration, the applicant gave the following answer:
“There were a lot of police officers and they were demanding that we disperse. But
their demand was not lawful because we were exercising our right. Instead of calling

4 GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT
on us to disperse, t he responsibility of the police should have been to ensure our
security.”
21 . The only witness questioned during the court hearing was police
officer Z.H. , who testified as follows :
“At around 6.10 p.m. on 19 June 2011 … we noticed that [the applicant] , together
with a group of other people , was attempting to hold an unauthorised demonstration
by shouting out slogans, and … asked them to observe silence. However, [the
applicant] continued his actions, disobeying our requests …”
22 . According to the reco rd of the hearing, the State -funded lawyer
stated that the appli cant was not guilty and asked the court to take into
consideration the applicant ’s age and the fact that he had children.
23 . The court found that the applicant had failed to stop participating in
the unauthorised demonstration. The court convicted him under
Article 310.1 of the CAO and sentenced him to five days ’ “administrative ”
detention .
24 . The applicant lodged an appeal before the Baku Court of Appeal,
arguing that his conviction was in violation of his rights because the
demonstration in which he had participated had been peaceful. He also
complained that his arrest had been unlawful and that the hearing before the
first -instance court had not been fair. He urged the Baku Court of Appeal to
quash the f irst -instance court ’s decision.
25 . The applicant was represented before the Baku Court of Appeal by a
lawyer of his own choice.
26 . On 24 June 2011 the Baku Court of Appeal dismissed the applicant ’s
appeal and upheld the decision of the first -instance court , stating that its
findings had been correct .
II. RELEVANT DOMESTIC LAW
A. 1995 Constitution
27 . The r elevant part of Article 49 of the Constitution reads as follows:
Article 49
Freedom of assembly
“… II. Everyone has the right, having notified respective governmental bodies in
advance, to assemble with other people peacefully and without arms , to organi se
meetings, demonstrations, protests and marches , and to stage pickets.”
B. Law on Freedom of Assembly of 13 November 1998
28 . Under Article 5 of the Law, advance written notification is required
in order to agree upon the place and time of an assembly and upon the route
of a march , with the purpose of enabling the rel evant local executive

GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT 5
authority to take necessary measures. The notification has to be done in
writing five days before the demonstration.
29 . Other provisions of the Law provide the relevant local executive
authority with broad powers to issue relevant orders so as to prohibit
(Article 8 §§ IV and V) or stop (Article 8 § VI) a public assembly; to restrict
or change the place , route and/or time of a public assembly (Article 9 §§ II
and VII); and to designate specific areas for public assemblies (Article 9
§ VI ).
30 . At the material time Article 14 of the Law provided as follows:
Article 14
Powers of the police authorities with regard to the holding of an assembly
“I. … the police authorities have the following powers with regard to the holding of
an assembly: …
2) When necessary, to stop an assembly which has not been notified [to the
authorities] beforehand , sa ve for [spontaneous] assemblies …;

4) To apprehend and remove from the place where an event is being held persons
who came carrying … weapons, as well as rocks, pieces of wood and glass, or clubs
that may pose a threat to people ’s life and safety or damage property, [as well as] …
explosives, … flammables, … radioactive materials;

II. The police authorities have the following powers with regard to the execution of
orders specified under Article 8 paragraphs V and VI of this Law:

2) To order the organisers and participants of an assembly to use all available
opportunities to stop the assembly and to disperse;
3) To warn o rganisers and participants that physical force or exceptional measures
will be used against them if the order to stop the assembly and to disperse is not
complied with;
4) To use physical force or exceptional measures in order to stop an assembly and
disperse participants , in accordance with the legislation of the Republic of Azerbaijan;
5) To apprehend persons not complying with the order to stop an assembly and
disperse. …
VI. The u se of physical force or exceptional measures by police officers i n all
circumstances must be proportionate to an existing threat.”
C. Code of Administrative Offences of 2000 (“the CAO ”)
31 . Article 298 of the CAO provided, at the material time, as follows:

6 GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT
Article 298
Breach of the rules on the organisation and holding of assemblies, demonstrations,
protests, marches and pickets
“Any b reach of the rules , set forth under the legislation, on the organisation and
holding of assemblies, demonstrations , protests, marches and pickets shall be
punishable by a reprimand or a fine of seven to thirteen manats [AZN] .”
32 . Article 310 provided, at the material time, as follows:
Article 310
Deliberate failure to comply with the l awful order of a police officer
or military serviceman
“310.1. Deliberate failure [by an individual] to comply with the lawful order of a
police officer or military serviceman carrying out their duties to protect public order
shall be punishable by a fine of twenty to twenty -five manats [ AZN ] or, i f that
sanction is inadequate in the circumstances of the case and taking into account the
character of the offender, by administrative detention for a term of up to fifteen days.”
33 . Article 376 provided, at the material time, as follows:
Article 376
Compulsory participation of a lawyer
“… 376.2. If it is impossible for the lawyer chosen by the person against whom
administrative -offence proceedings are being carried out to attend , a judge … shall
appoint a lawyer for that person , in accordance with the legislation of the Republic of
Azerbaijan.
376.3. If a person subjec ted to an administrative arrest has no possibility to hire a
lawyer due to [his or her] financial situation, [his or her] legal assistance shall be
funded by the State. In this case a lawyer may not refuse to carry out his or her
duties.”
34 . Article 396 provided, at the material time, as follows:
Article 396
Measures to secure administrative -offence proceedings
“396.1. An a uthorised offic ial may use the following measures in order to prevent
administrative offences, to establish the identity of a person, to draw up an
admin istrative -offence report if this cannot be done at the place [of the administ rative
offence ] and if the drawing up of a report is important , to ensure the correct and
timely examination of [administrative -offence] cases, and to ensure the
implementation of decisions in administrative -offence cases: …
396.1.2. administrative arrest ; …”
35 . Article 398 provided, at the material time, as follows:
Article 398.1
Administrative arrest
“398.1. Administrative arrest, that is the short -term restriction of an individual ’s
liberty, may be applied in exceptional circumstances when deemed necessary for
ensuring the correct and timely examination of an administrative -offence case or for

GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT 7
the implementation of a decision in an administrative -offence case, except for
instances set out in legislation . …”
36 . Article 410 provided, at the material time, as follows:
Article 410
Administrative -offence report
“… 410. 4. … A copy of the administrative -offence report shall be given to an
individual who is subject to the administrative -offence proceedings or to a
representative of a legal entity …”
37 . Article 414 provided, at the material time, as follows:
Article 414
Communication of an [administrative -offence] report (a prosecutor ’s decision)
for examination
“… 414.2. A report … concerning an administrative offence punishable by
administrative detention shall be sent to a judge for examination immediately after it
has been drawn up.”
38 . Article 422 provided, at the material time, as follows:
Article 422
Time -limits for examination of administrative -offence cases
“422.3. Cases [concerning an administrative offence] punishable by administrative
detention shall be examined on the day of rec eipt [by the court] of an
administrative -offence report; cases against persons subjected to administrative arrest
shall be examined at the latest within 48 hours of their arrest.”
39 . Under Article 368 a public prosecutor has a right to participate in the
administrative proceedings. Chapter 28 of the CAO enumerates the
participants of administrative proceedings and their rights and obligations .
This Chapter does not mention “the prosecution” – a police officer , public
prosecutor or any other public official represent ing the prosecution – as a
participant of the proceedings.
III. RELEVANT INTERNATIONAL DOCUMENTS
A. “Observations on the human rights situation in Azerbaijan:
Freedom of expression, freedom of association, freedom of
peaceful assembly”, by the Commissioner for Human Rights of
the Council of Europe, CommDH(2011) 33 , 29 September 2011
40 . The relevant extracts of t his document read as follows:
“… [T] he Commissioner ’s attention was drawn to the wave of arrests of activists and
political opponents in connection with protests held in Baku in March and April 2011.
According to the information received, these protests were sometimes dispersed with
excessive force, and the work of journalists was hindered. The organisers were denied

8 GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT
permission to demonstrate in a central square and other places in the city centre in
Baku, and were instead authorised to hold a demonstration in the outskirts of the city.
Several persons were detained on grounds of violating public order. Six opposition
activists were sentenced on 25 August 2011 for participating in ‘actions causing
disturbance of public order ’, following trials whose conformity with human rights
standards has been called into question.
The Commissioner has on various occasions criticised the method of curbing the
impact of a demonstration by allowing it to take place only at another time and at a
less central location, thereby diminishing significantly the visibility of the ral ly and its
message to the general public. … The Commissioner … urges the Azerbaijani
authorities to ensure that the right to freedom of peaceful assembly is fully guaranteed
in Azerbaijan, in accordance with the Court ’s case -law.”
B. Report by Nils Mu ižnieks, the Commissioner for Human Rights
of the Council of Europe, following his visit to Azerbaijan from
22 to 24 May 2013, CommDH(2013)14, 6 August 2013
41 . The relevant extracts of the Report read as follows:
“… 53. The issue of limitations imposed on freedom of assembly has regularly been
raised by local and international observers in recent years. The most frequent
problems encountered include the banning of demonstrations in central and easily
accessible locations and the use of force to disperse the demonstrations which still go
ahead, leading to arrests and, in some cases, harsh sentences. …
61. The Commissioner calls on the authorities to adopt effective measures to
prevent the use of force against peaceful protes tors by law enforcement officials. In
particular, he reiterates the recommendation of the 2010 Report, inviting the
authorities to reform the existing system of internal disciplinary investigations of
police ill -treatment and to introduce an independent po lice complaints body. …
63. Azerbaijan amended its Law on Freedom of Assembly in 2008, following two
opinions adopted by the Council of Europe Venice Commission. While the law is thus
in line with international standards, undue restrictions of the right to freedom of
peaceful assembly are widely reported in practice. The problems mainly stem from
the interpretation of Article 5 of the law. This Article provides for a “notification”
procedure before convening an assembly. In 2006, the Venice Commission we lcomed
the confirmation by representatives of the Government that the requirement in the law
was for notification and not for a prior permission to hold the assembly, noting that
“other provisions of the Law could, as they currently stand, encourage the co mpetent
authorities to issue a blanket prohibition as soon as the notification process proves
incomplete.” In 2007, the Venice Commission added that a system of notification is in
itself admissible so long as it is only meant to help the authorities cope m ore easily
with the practical problems involved with the holding of an assembly; it also stressed
that it is indeed important that assemblies can be held with a presumption of legality
so as to avoid any chilling effect on organisers and participants.
64. The Commissioner notes that the authorities have also confirmed that the
legislation does not require permission for rallies. However, the authorities appear to
have interpreted it as requiring such permission, and a system of authorisation has in
practic e replaced the system of notification. Peaceful protesters have for instance been
effectively banned from demonstrating in central Baku since 2006, despite advanced
notification of the assemblies. Several requests by the political opposition or civil

GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT 9
socie ty to hold demonstrations were allegedly denied or, when allowed, organisers
were obliged to have them in areas very remote from the city centre. …
68. The Commissioner remains concerned by the way the Law on Freedom of
Assembly is currently being imple mented in Azerbaijan. He therefore calls on the
authorities to assess the functioning of that law. In particular, the authorities should
ensure that no authorisation is required for the holding of public demonstrations and
that the system of notification i s applied in accordance with European standards.
69. The Commissioner welcomes the announced publication by the authorities of a
list of locations where demonstrations will be made possible, and calls for these to
include adequate locations in the centre of Baku and other cities, as a first step
towards a better enjoyment of the right to freedom of assembly by the population of
Azerbaijan. Given the need for tolerance in a democratic society, the authorities
should nevertheless seek to facilitate and prote ct public assemblies at the organisers ’
preferred location. …
75. Another concern relates to the reported non -implementation of due process
standards in proceedings brought against participants in “unauthorised”
demonstrations. …
77. The Commissioner is of the view that participants in peaceful assemblies should
not be sanctioned for the mere fact of being present at and actively participating in the
demonstration in question, provided they do not do anything illegal, violent or
obscene in the course of it. The Commissioner therefore urges the authorities to
ensure that no disproportionate sanction, which would undermine the fundamental
right to peaceful assembly, is imposed.
78. Finally, the Commissioner calls on the Azerbaijani authorities to ensure the full
respect of fair tr ial guarantees for protesters. …”
C. Report by Human Rights Watch, “Tightening the Screws:
Azerbaijan ’s Crackdown on Civil Society and Dissent”, 2013
42 . The relevant extracts of t he Report read as follows:
“Another manifestation of the government ’s crackdown has been severe limitations
on freedom of assembly. The Baku municipal authorities have implemented a blanket
ban on all opposition demonstrations in the city center since early 2006. The
author ities have broken up unsanctioned ones – often with violence – and have
arrested and imprisoned peaceful protestors, organizers, and participants. Our research
shows that the misdemeanor trials of those charged for involvement in unsanctioned
protests are perfunctory. …
While the constitution of Azerbaijan stipulates that groups may peacefully assemble
after simply notifying the relevant government body in advance, in practice authorities
require that gatherings obtain a permit issued by local municipalit ies. …
Municipal authorities have effectively banned all forms of peaceful protest from the
center of Baku and instead force all demonstrations into designated zones on the
outskirts of the city. Such a blanket ban on freedom of assembly in the central a reas of
Baku violates Azerbaijan ’s international obligations to respect freedom of assembly
and expression. …
[F] or several years police have dispersed, at times violently, peaceful protests in
Baku ’s center. In the days before and during the Eurovision Song Contest held in

10 GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT
Baku in May 2012, police broke up several protests in the city ’s center and briefly
detained dozens of peaceful demonstrators. In 2011 when activists, inspired by the
uprisings in the Middle East and North Africa, launched protests in Azerbaijan, the
government responded by arresting hundreds of protesters, activists, and journalists.
Several were convicted of public order offences and imprisoned for up to three years.

The Azerbaijani authorities regularly use administrative, or mis demeanor, charges to
lock up people for organizing or participating in unsanctioned rallies, then prosecuting
and convict ing them in perfunctory trials. …”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
43 . The applicant complained that the dispersal of the demonstration by
the police and his arrest and conviction for an administrative offence had
been in breach of his freedom of assembly , as provided for in Article 11 of
the Convention, which reads as follows:
“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 rig hts 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 righ ts 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.”
A. Admissibility
44 . 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.
B. Merits
1. The parties ’ submissions
45 . The applicant argued that the domestic legislation regulating
freedom of assembly did not comply with principles of foreseeability and
precision : while the Constitution required only prior notification a bout a
planned public assembly , the system of prior authorisation, which was

GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT 11
applied in practice and stemmed from certain provisions of the Law on
Freedom of Assembly of 13 November 1998, allowed for arbitrary
interference with freedom of assembly and perm itted abusive banning or
dispersal of public gatherings.
46 . The applicant also argued that his arrest and conviction under
Article 310.1 of the CAO had been arbitrary since he had not disobeyed any
order of a police officer .
47 . The applicant further submitted that the authorities had not take n
into consideration the fact that the organisers had given prior notice of the
demonstration to the relevant authorities , and that the demonstration had
been intended to be peaceful an d had been held in a peaceful manner.
48 . The Government submitted that the demonstration had been
organised in breach of provisions of national legislation , without specifying
which provisions . The y argu ed that the dispersal of the demonstration had
pursued the aim of protecting public safety and preventi ng disorder or
crime, and had been proportionate to the aim pursued.
49 . The Government also noted that the applicant had not be en punished
for his participation in the demonstration as such, but for particular
behaviour in the course of it, namely for deliberately disobeying the lawful
order of police officers. Commenting on the proportionality of the measures,
the Government emph asised in particular that the sanction applied to the
applicant had been administrative detention .
2. The Court ’s assessment
(a) Whether there was interference
50 . The Court reiterates that interference with the exercise of freedom of
peaceful assembly does not need to amount to an outright ban, legal or de
facto , but can consist in various other measures taken by the authorities. The
term “restrictions” in Articl e 11 § 2 must be interpreted as including both
measures taken before or during an assembly and those, such as punitive
measures, taken afterwards (see Ezelin v. France , 26 April 1991, § 39,
Series A no. 202 ). For instance, a prior ban can have a chilling e ffect on the
persons who intend to participate in a rally and thus amount to interference,
even if the rally subsequently proceeds without hindrance on the part of the
authorities (see Bączkowski and Others v. Poland , no. 1543/06, §§ 66 -68,
3 May 2007 ). A refusal to allow an individual to travel for the purpose of
attending a meeting amounts to interference as well (see Djavit An
v. Turkey , no. 20652/92, §§ 59 -62, ECHR 2003 -III). So too do measures
taken by the authorities during a rally, such as dispersal of the rally or the
arrest of participants (see Oya Ataman v. Turkey , no. 74552/01, §§ 7 and 30,
ECHR 2006 -XIII, and Hyde Park and Others v. Moldova , no. 33482/06,
§§ 9, 13, 16, 41, 44 and 48, 31 March 2009), and penalties imposed for
having taken part in a rally (see Ezelin , cited above, § 41; Osmani and

12 GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT
Others v. the former Yugoslav Republic of Macedonia (dec.), no. 50841/99 ,
ECHR 2001 -X; Mkrtchyan v. Armeni a, no. 6562/03, § 37, 11 January 2007;
Galstyan v. Armenia , no. 26986/03, §§ 100 -102, 15 November 2007; and
Sergey Kuznetsov v. Russia , no. 10877/04, § 36, 23 October 2008).
51 . In the present case it has not been disputed between the parties that
the demonstration in issue was dispersed by the police , and that the
app licant who participated in the demonstration was arrested and convicted.
52 . The Court takes note of the Government ’s submission that the
applicant was not punished for his participation in the demonstration as
such, but for partic ular behaviour in the course of it, namely, for
deliberate ly disobeying the lawful order of police officers. However, the
Court notes that in describing the circumstances of the administrative
offence , the police who arrested the applicant and the domestic courts both
stated that the applicant had failed to stop participating in the unauthorised
demonstration (see paragraphs 11 and 2 3 above). Accordingly, the
impugned “behaviour” of the applicant actuall y consisted of his
participation in the demonstration. In such circumstances, the Court
considers that the facts of the case disclose interference directly related to
the applicant ’s exercise of his right to freedom of peaceful assembly under
Article 11 of the Convention.
53 . The Court concludes that there has been interference with the
applicant ’s right to freedom of peaceful assembly on account of both the
dispersal of the demonstration and the applicant ’s arrest and conviction.
(b) Whether the interference was lawful and pursued a legitimate aim
54 . As regards the requirement of lawfulness , the Court notes , firstly , the
fact that the demonstration of 19 June 2011 was dispersed because it had not
been authori sed by the BCEA.
55 . The Court observes , however, that Article 49 of the Constitution
require d only prior notification about a planned public assembly. On the
other hand, t he Law on Freedom of Assembly provide d the relevant local
executive authority (in the present case , the BCEA) with broad powers to
prohibit or stop a public assembly. Also, t he Law vest ed it with the rights to
restrict or change the place , route and/or time of a gathering , and to
designate specific areas for public assemblies (see paragraphs 28 and 29
above). A number of international reports have stressed that a system of
notification set forth by the Constitution has been replaced in practice by a
system of authorisation (see paragraphs 40-42 above). The Commissioner
for Human Rights of the Council of Europe in his Report of 6 August 2013
stated, in particular, that “peaceful protesters have … been effectively
banned from demonstrating in cen tral Baku since 2006, despite advanced
notification of the assemblies” (see paragraph 4 1 above). Consequently , the
Court has serious concerns about the foreseeability and precision of the

GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT 13
legislation governing public assemblies , and about the possibility o f public
assemblies being abusive ly banned or dispersed .
56 . The Court notes , secondly, that the authorities invoked Article 310.1
(failure to comply with a lawful order of a police officer) of the CAO as the
legal basis for the applicant ’s arrest and conviction, whereas , as already
mentioned , the action (or “behaviour” ) held against the applicant actually
consisted of his participation in the demonstration. In effect, the key
circumstance constituting the basis for the administrative proceedings
against the applicant was the fact that the demonstration in which he
participated was unauthori sed (contrast with Malofeyeva v. Russia ,
no. 36673/04, 30 May 2013 ). In such circumstances t he Court has doubts
about the credibility of the formal ground invoked by the authorities for the
ap plicant ’s arrest and conviction .
57 . However, given that a more conspicuous problem arises with respect
to the necessity of the interference, the Court considers that it is not
appropriate to limit its examination under Article 11 of the Convention to
the lawfulness of the interference only ( compare Kakabadze and Others
v. Georgia , no. 1484/07 , § 86, 2 October 2012 , and Hyde Park and Others
v. Moldova (nos. 5 and 6), nos. 6991/08 and 15084/08, § 48, 14 September
2010). Therefore, the Court will examine whether the dispersal of the
demonstration and the applicant ’s arrest and conviction were necessary in a
democratic society, which in the specifi c circumstances will also take into
consideration the issue of whether the interference pursued a legitimate aim.
(c) Whether the interference was necessary in a democratic society
58 . When the Court carries out its scrutiny, its task is not to substitute its
own view for that of the relevant national authorities but rather to review
under Article 11 the decisions they delivered in the exercise of their
discretion. This does not mean that it has to confine itself to ascertaining
wh ether the respondent State exercised its discretion reasonably, carefully
and in good faith; it must look at the interference complained of in the light
of the case as a whole and determine whether it was “proportionate to the
legitimate aim pursued” and w hether the reasons adduced by the national
authorities to justify it are “relevant and sufficient”. In so doing, the Court
has to satisfy itself that the national authorities applied standards which
were in conformity with the principles embodied in Articl e 11 and,
moreover, that they based their decisions on an acceptable assessment of the
relevant facts (see, among other authorities, United Communist Party of
Turkey and Others v. Turkey , 30 January 1998, § 47, Reports of Judgments
and Decisions 1998 -I, an d Christian Democratic People ’s Party
v. Moldova , no. 28793/02, § 70, ECHR 2006 -II).
59 . The Court reiterates that although it is not a priori contrary to the
spirit of Article 11 if, for reasons of public order and national security, a
High Contracting Party requires that the holding of meetings be subject to

14 GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT
authorisation, an unlawful situation, such as the staging of a demonstration
without p rior authorisation, does not justify per se an infringement of
freedom of assembly (see Cisse v. France , no. 51346/99, § 50,
ECHR 2002 -III, and Oya Ataman , cited above, §§ 37 -39). While rules
governing public assemblies, such as the system of prior notific ation, are
essential for the smooth conduct of public events since they allow the
authorities to minimise the disruption to traffic and take other safety
measures, their enforcement cannot become an end in itself. In particular,
where irregular demonstrato rs do not engage in acts of violence , the Court
has required that the public authorities show a certain degree of tolerance
towards peaceful gatherings if the freedom of assembly guaranteed by
Article 11 of the Convention is not to be deprived of all subst ance (see
Bukta and Others v. Hungary , no. 25691/04, § 34, ECHR 2007 -III; Fáber
v. Hungary , no. 40721/08, § 49, 24 July 2012; Malofeyeva v. Russia , cited
above , §§ 136 -37; and Kasparov and Others v. Russia , no. 21613/07 , § 91,
3 October 2013 ).
60 . In the present case the organisers of the demonstration of 19 June
2011 gave prior notice to the BCEA in accordance with Article 49 of the
Constitution and Article 5 of the Law on Freedom of Assembly. However,
the authorities have not explained why , instead of taking measures to
minimise the disruption to traffic and implementing other safety measures,
they decided to refuse “authorisation” of the demonstration and
subsequently to disperse it. The domestic courts in their turn did not attempt
to examine whether the absence of authorisation justified the dispersal.
Taking into account that the Constitution required only notification about a
public assembly, not its authorisation, the Court considers that the
authorities ignored t he circumstances that were particularly relevant for
assessment of the necessity of the interference.
61 . The Court also observes that the authorities dispersed the
demonstration shortly after it began , despite the fact that it had been
intended to be peaceful and had been conducted in a peaceful manner up to
that point . This already calls into question the Government ’s assertion about
the necessity of the dispersal. It has not been argued or demonstrated that it
would have been difficult for the police to contain or redirect protestors, or
control the situation otherwise, protect public safety and prevent any
possible disorder or crime. Nor has it been shown, either at the domestic
level or before the Court, that t he demonstration posed a high level of
disruption of public order. It follows that the authorities ha ve not adduced
relevant and sufficient reasons justifying the dispersal of the demonstration.
62 . As for the ap plicant ’s arrest an d conviction, the Court emphasises
that none of the documents drawn up by the police indicate d whether any
order had been specifically addressed to the applicant (apart from a demand
addressed to the protesters at large to stop the demonstration) . Nor did they
specify who had given such an order and when , or indicate its exact

GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT 15
wording. In such circumstances, reference by the authorities to Article 310.1
of the CAO as a ground for the applicant ’s arrest and conviction appears to
be unsubstantiated . Despi te 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.
The Court notes that at the material time, no penalty in the form of
deprivation of liberty was provided for under the CAO for participating in
an unauthorised public assembly or generally for violation of rules on
holding public assemblies . Nevertheless, the applicant was sentenced to five
days ’ “administrative ” detention on charges that he “had failed to stop
participating in the unauthorised demonstration”. It follows that the arbitrary
reference to Article 310.1 of the CAO as a ground for the applicant ’s arrest
and conviction also made it possible to apply a penalty which was otherwise
not applicable to the action held against him .
63 . The Court further notes the lack of any acknowledgment that the
action imputed to the applicant by the authorities, namely participa tion in an
unauthorised peaceful demonstration, was by itself protected by Article 11
of the Convention. The authorities made no effort to balance the applicant ’s
right to participate in the demonstration against any damage this could cause
to other public or private interests.
64 . Lastly , the domestic courts ’ decisions do not contain any findings
that the applicant ’s specific actions during the demonstration necessitated
his arrest and conviction . Nothing in the materials before th e Court suggests
that the applicant committed any reprehensible offence during the
demonstration.
65 . In such circumstances , it follows that the authorities did not adduce
sufficient and relevant reasons justifying the applicant ’s arrest and
conviction. Moreover , the sanction imposed on him was unwarranted by the
circumstances of the case and disproportionate within the meaning of
Article 11 of the Convention.
(d) Conclusion
66 . Having regard to the above considerations, the Court concludes that
the authorities failed to act with due tolerance and good faith as regards the
applicant ’s right to freedom of assembly, did not adduce sufficient and
relevant reasons justifying the interference, and imp osed a sanction which
was disproportionate in the circumstances.
67 . The dispersal of the demonstration and the applicant ’s arrest and
conviction could not but have the effect of discouraging him from
participating in political ral lies . Undoubtedly, those measures had a serious
potential also to deter other opposition supporters and the public at large
from attending demonstrations and, more generally, from particip ating in
open political debate.

16 GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT
68 . There h as accordingly been a violation of Article 11 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
69 . The applicant complained under Article 6 of the Convention that in
the proceedings concerning the alleged administrative offence , he had not
had a fair and public hearing. The relevant parts of Article 6 of the
Convention read as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time by an independent and impartia l
tribunal established by law. …
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of
the nature and cause of the accusation against him;
(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 assi stance, to be given it free when the
interests of justice so require; …”
A. Admissibility
70 . Although the applicability of Article 6 to the administrative
proceedings in question is not in dispute, the Court considers it necess ary to
address this issue of its own motion. The Court notes that t he applicant was
convicted to five days ’ administrative detention and was locked up in the
detention facility for the term of his sentence, the purpose of the sanction
being purely punitive. Referring to its findings in Asadbeyli and Others
v. Azerbaijan , the Court considers that the proceedings in the present case
should be classified as determining a criminal charge against the applicant,
even though they are characterised as “administrative” under Azerbaijani
legislation (see Asadbeyli and Others v. Azerbaijan , nos. 3653/05,
14729/05, 20908/05 , 26242/05, 36083/05 and 16519/06 , §§ 152 -55 ,
11 December 2012 ; see also Ziliberberg v. Moldova , no. 61821/00,
§§ 30 -35 , 1 February 2005, and Menesheva v. Russia , no. 59261/00,
§§ 95 -98 , ECHR 2006 -III).
71 . The Court further notes that the 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.

GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT 17
B. Merits
1. The parties ’ sub missions
72 . The applicant submitted , in particular, that he had not been served,
either prior to the hearing before the first -instance court or subsequently ,
with a copy of the administrative -offence report issued in his respect or with
other materials in his case file , and that the hearing before the first -instance
court had been very brief . He also argued that the courts had based their
findings merely on the administrative -offence report and on the statement of
a police officer who had been the sole witness questioned at the
first -instance hearing . The applicant further submitted that he had not been
represented by a lawyer at the pre -trial stage . He had insisted before the
first -instance court on hiring a lawyer of his own choi ce , but the judge had
disregarded his request , and he had been only formalistically represented by
a State -funded lawyer . Lastly, the applicant argued that the public had not
been allowed to attend the hearing before the first -instance court , even
though t he court had not issued an official decision to examine his case in a
closed hearing .
73 . The Government submitted that the administrative proceedings with
respect to the applicant had been in line with the national legislation. In
particular, the time -limit for lodging an appeal with the Court of Appeal
against the decision of the first -instance court was ten days, so the applicant
had had adequate time and facilities to prepare his defence . The
Government also submitted in general terms that during the court
proceedings the principle of equality of arms had been respected.
2. The Court ’s assessment
74 . The Court reiterates that Article 6 of the Convention guarantee s the
right to a fair hearing, and the Court ’s task is to ascertain whether the
proceedings as a whole, including the way in which evidence was obtained
and heard, were fair, in particular, whether the applicant was given the
opportunity of challenging the evidence and of opposing its use; and
whether the principles of adversarial proceedings and equality of arms
between the prosecution and the defence were respected (see Bykov
v. Russia [GC], no. 4378/02, §§ 88, 90, 10 March 2009 , and Rowe and
Davis v. the United Kingdom [GC], no. 28901/95, § 60, ECHR 2000 -II).
75 . The requirements of Article 6 § 3 are to be seen as particular aspects
of the right to a fair trial guaranteed by Article 6 § 1 (see Sakhnovskiy
v. Russia [GC], no. 21272 /03, § 94, 2 November 2010). The Court will
therefore examine the complaints under both provisions taken together (see,
among many other authorities, F.C.B. v. Italy , 28 August 1991, § 29,
Series A no. 208 -B, and Poitrimol v. France , 23 November 1993, § 29 ,
Series A no. 277 -A). In so doing, it will examine in turn each of the various

18 GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT
grounds giving rise to the present complaints in order to determine whether
the proceedings, considered as a whole, were fair ( see, for a similar
approach, Asadbeyli and Others , cited above, § 130).
(a) Right to adequate time and faci lities to prepare one ’s defence
76 . Article 6 § 3 (b) guarantees the accused “adequate time and facilities
for the preparation of his defence”. The accused must have the opportunity
to organise his defence in an appropriate way and without restriction of the
possibility to put all relevan t defence arguments before the trial court and
thus to influence the outcome of the proceedings. Furthermore, the facilities
which everyone charged with a criminal offence should enjoy include the
opportunity to acquaint himself , for the purposes of prepar ing his defence ,
with the results of investigations carried out throughout the proceedings (see
Moiseyev v. Russia , no. 62936/00, § 220, 9 October 2008). The issue of
adequacy of time and facilities afforded to an accused must be assessed in
the light of t he circumstances of each particular case (see Malofeyeva , cited
above, § 112).
77 . The present case was examined in an expedited procedure under the
CAO: in cases concerning an administrative charge for an offence
punishable by administrative detention, the police were to transmit the
administrative -offence file to a court immediately after having compi led it,
and the court was to examine the case on the same day, or, in the case of
persons being held in police custody , no later than forty -eight hours after the
arrest (see paragraphs 37 and 3 8 above). The Court reiterates that recourse
to that procedure when a “criminal charge” must be determined is not in
itself contrary to Article 6 of the Convention as long as the procedure
provides the necessary safeguards and guarantees (see Borisova v. Bulgaria ,
no. 56891/00, § 40, 21 December 2006).
78 . Turning to the question of procedural safeguards and guarantees, the
Court notes that the pre -trial procedure in the applicant ’s case was evidently
very brief . T he applicant was arrested a t approximately 6.10 p.m. on
19 June 20 11 and at 6.50 p.m. an administrative -offence report was drawn
up . After spending the night in police custody , the applicant was brought
before the court for the trial hearing , which began at 12 noon on 20 June
2011. During his stay at the police station t he applicant was secluded from
the outside world. His situation was aggravated by the fact that he was not
represented by a lawyer during the pre -trial procedure . It appears from the
materials before the Court that the State -funded lawyer joined the
procee dings only at the first -instance hearing.
79 . The Court further notes that the administrative -offence report
contained a pre -printed text stating that the applicant had been familiarised
with the report and that he had refused to sign it. By virtue of Article 410. 4
of the CAO the applicant was entitled to receive a copy of that report.
However, no copy of the report was made available to him. Furthermore,

GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT 19
the appellate court failed to reply to the applicant ’s request for a copy of the
report and of certain other materials in the case file .
80 . Even assum ing that the applicant ’s case was not complex, the Court
doubts that the circumstances in which the trial was conducted were such as
to enable him to familiarise himself properly with and to assess adequately
the charge and evidence against him and to develop a viable legal strategy
for his defence ( compare Vyerentsov v. Ukraine, no. 20372/11 , § 76,
11 April 2013 ).
81 . Furthermo re, the CAO did not require the mandatory participation of
a public prosecutor or other public officer representing the prosecution, who
would present the case against the defendant before a judge (see
paragraph 39 above). It appears that the accusation against the applicant was
both presented and examined by the judge of the first -instance court. The
Court is not satisfied that such a state of affairs afforded the applicant an
opportunity to put forward a n adequate defence in adversarial proceedings .
82 . Having regard to the above considera tions, the Court concludes that
the applicant was not afforded adequate time and facilities to prepare his
defence .
(b) Right to a reasoned decision
83 . The Court ’s duty, under Article 19 of the Convention, is to ensure
observance of the commitments undertaken by the Contracting Parties to the
Convention. In particular, it is not its function to deal with errors of fact or
of l aw allegedly committed by a national court unless and in so far as they
may have infringed rights and freedoms protected by the Convention (see
Schenk v. Switzerland , 12 July 1988, § 45 -46, Series A no. 140, and
Teixeira de Castro v. Portugal , 9 June 1998, §34, Reports 1998 -IV). In that
context, regard must also be had, in particular, to whether the applicant was
given the opportunity of challenging the authenticity of the evidence and of
opposing its use. The quality of the evidence is also taken into acco unt,
including whether the circumstances in which it was obtained cast doubt on
its reliability or accuracy (see Jalloh v. Germany [GC], no. 54810/00, § 96,
ECHR 2006 -IX).
84 . According to the Court ’s established case -law reflecting a principle
related to the proper administration of justice, judgments of courts and
tribunals should adequately state the reasons on which they are based. The
extent to which this duty to give reasons applies may vary accor ding to the
nature of the decision and must be determined in the light of the
circumstances of the case (see García Ruiz v. Spain [GC], no. 30544/96,
§ 26, ECHR 1999 -I, with further references).
85 . In the present case, the first -instance court examined the applicant ’s
case in an oral hearing where the applicant was given an opportunity to
make his submissions. However, the court relied heavily on the
administrative -offence report prepared by the police and on the statement of

20 GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT
polic e officer Z.H, the sole witness questioned at the hearing . The Court
notes that that police officer was a supposed “victim” of the alleged
administrative offence; moreover, the administrative -offence report in
respect of the applicant was based on Z.H. ’s report to a superior police
officer . The domestic courts failed to provide adequate reasons why they
considered the witness statement of the police officer more objective and
reliable than that of the applicant. It is also regrettable that the domestic
cou rts did not attempt to summon a witness who was not connected with the
police.
86 . Furthermore, the applicant ’s arguments before the domestic courts
concerned both the factual circumstances and the legal issues of his case.
The applicant consistently argued that he had not disobeyed an order of a
police officer, and that he had been arrested for participation in a peaceful
demonstration. He also challenged the legality of the police ’s interference
with the demonstration. In particular, in his appeal he argued that the legal
basis invoked by the police for his arrest had been arbitrary; that the law,
including the C onstitution, required advance notification about an intended
public assembly and not authorisation for holding one; and that there were
no circumstances justifying dispersal of the demonstration since it had been
peaceful. In the Court ’s opinion, those arg uments were both important and
pertinent. Nevertheless, the domestic courts, in particular the Court of
Appeal, which examined the applicant ’s written arguments on the issue,
ignored them altogether.
87 . The Court has previously he ld, in examining the fairness of criminal
proceedings, that by ignoring a specific, pertinent and important point made
by the accused, the domestic courts had fallen short of their obligations
under Article 6 § 1 of the Convention (see Nechiporuk and Yonkalo
v. Ukraine , no. 42310/04, § 280, 21 April 2011). Considering that in the
present case the domestic courts similarly did not meet that requirement, the
Court concludes that the domestic courts ’ decisions lacked adequate
reasoning.
(c) Right to lega l assistance
88 . The Court reiterates that, although not absolute, the right of everyone
charged with a criminal offence to be effectively defended by a lawyer,
assigned officially if need be, is one of the fundamental features of a fair
trial (see Krombach v. France , no. 29731/96, § 89, ECHR 2001 -II).
89 . The Court emphasises that Article 6 will normally require that the
accused be allowed to benefit from the assistance of a lawyer already at the
initial st ages of police questioning (see John Murray v. the United Kingdom ,
8 February 1996, § 63, Reports 1996 -I). Even where compelling reasons
may exceptionally justify denial of access to a lawyer, such restriction –
whatever its justification – must not unduly prejudice the rights of the

GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT 21
accused under Article 6 (see Salduz v. Turkey [GC], no. 36391/02, § 55,
ECHR 2008).
90 . In the present case, the right to legal representation was guaranteed
to the applicant by the CAO. However, at the pre -trial stage of the
proceedings the applicant was not represented by a lawyer. From the
materials before the Court i t does not appear that he had expressly waived
his right to a lawyer.
91 . According to the applicant, after his arrest he was questioned at the
police station. However, no record of such questioning was submitted to the
Court. Nor is there any evidence that the statements made by the applicant
(if any) during the questioning were used during the trial. The Court cannot
speculate on the exact impact which the applicant ’s access to a lawyer
during the pre -trial stage of the proceedings would have had on the ensuing
proceedings and whether the absence of a lawyer during that period
irretrievably affected his defence rights (compare Huseyn and Others
v. Azerbaijan , nos. 35485/05, 45553/05, 35680/05 and 36085/05 , § 172,
26 July 2011 ). Nevertheless, the Court reiterates that the very fact of
restricting a detained suspect ’s access to a lawyer may prejudice the rights
of the defence , even where an accused person remained silent, or was not
questioned, or no incriminating statements were obtained (see, for example,
Dayanan v. Turkey , no. 7377/03, §§ 32 -33, 13 October 2009).
92 . Turning to the applicant ’s argument that he was not allowed to hire a
lawyer of his own choice and about the formalistic nature of the
State -funded lawyer ’s representation before the first -instance court, the
Court notes, first ly, that, under Article 376.2 of the CAO a judge must
provide a person against whom an administrative case is being examined
with a lawyer only if the attendanc e of a lawyer of his or her own choice is
impossible . Nothing in the materials before the Court suggests that the
judge gave the applicant an opportunity to appoint a lawyer of his own
choice, as required under Article 376.2 of the CAO .
93 . Second ly, t he Court emphasi ses that, under Article 6 § 3 (c) of the
Convention, an accused is entitled to legal assistance which is practical and
effective and not theoretical or illusory. This Convention provision speaks
of “a ssistance” and not of “nomination”: mere nomination does not ensure
effective assistance , since a lawyer may be prevented from providing such
assistance for various practical reasons, or shirk his or her duties. A State
cannot be held responsible for every shortcoming on the part of a lawyer
appointed for legal -aid purposes. However, if a failure by legal -aid counsel
to provide effective representation is manifest or is sufficiently brought to
the authorities ’ attention in some other way, the authorities mu st take steps
to ensure that the accused effectively enjoys the right to legal assistance (see
Artico v. Italy , 13 May 1980, §§ 33 -37, Series A no. 37, and Kamasinski
v. Austria , 19 December 1989, § 65, Series A no. 168). Moreover, where it
is clear that t he lawyer representing the accused before the domestic court

22 GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT
has not had the time and facilities to organise a proper defence, the court
should take positive measures to ensure that the lawyer is given an
opportunity to fulfil his obligations in the best p ossible conditions (see,
mutatis mutandis , Goddi v. Italy , 9 April 1984, § 31, Series A no. 76). The
Court notes that a State -funded lawyer joined the proceedings at the trial
stage; it is not clear whether , before the opening of the first -instance court
hearing , he was afforded the time and facilities to organise a proper defence.
However, the Court observes that during the hearing the State -funded
lawyer did not submit any written objections, complaints or motions on the
applicant ’s behalf. His oral submissions consisted of a brief repetition of the
applicant ’s statement and a request addressed to the court to consider the
applicant ’s age and the fact that he had children. These circumstances give
reason to believe that the representation by the State -funded lawyer was of a
formalistic nature. Furthermore, the Court of Appeal failed to reply to the
applicant ’s complaints about lack of effective legal assistance both at the
pre -trial proceedings and at the fir st-instance court hearing.
94 . In these circumstances the Court concludes that the applicant ’s right
to legal assistance was not respected.
(d) Conclusion
95 . Having regard to the above findings, t he Court considers that there is
no need to examine the applicant ’s arguments concerning the alleged lack of
a public hearing.
96 . Furthermore, having regard to the above conclusions, the Court finds
that the proceedings, considere d as a whole, were not in conformity with the
guarantees of a fair hearing under Article 6 §§ 1 and 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
97 . The applicant complained that his arrest and five d ays ’
administrative detention following his participation in the demonstration
had been in breach of Article 5 of the Convention . Article 5 of the
Convention, in so far as relevant, reads 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:
(a) the lawful detention of a person after c onviction by a competent court; …
(c) the lawful arrest or detention of a pers on 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; …
2. Everyone who is arrested shall be informed promptly, in a language which he
understands, of the reasons for his arrest and of any charge against him.

GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT 23
3. Everyone arrested or detained in accordance with the provisions of
paragraph 1 (c) of this Article shall be brought promptly before a judge or other
officer authorised by law to exercise judicial power and shall be entitled to trial within
a reasonable time or to release pending trial. Release may be conditioned by
guarantees to appear for trial.”
A. Admissibility
98 . The Court considers, in the light of the parties ’ submissions, that
these complaints raise serious issues of fact and law under the Convention,
the determination of which requires an examination of the merits. The Court
concludes therefore that these complaints are not manifestly ill -founded
within the meaning of Article 35 § 3 (a) of the Convention . It further notes
that they are not inadmissible on any other grounds. They must therefore be
declared admissible.
B. Merits
1. The parties ’ submissions
99 . The applicant argued that his arrest and five days ’ administrative
detention under Article 310.1 (failure to comply with a lawful order of a
police officer) of the CAO had been arbitrary since he had not disobeyed
any order of a police officer. The opening of administrative proceedings
against participants of unauthori sed demonstrations under Article 310.1
rather than Article 298 (violation of rules on holding public assemblies) of
the CAO was an arbitrary administrative practice aimed at imposing a
harsher form of punishment, such as administrative detention for up to
fifteen days, which was not available under the latter Article.
100 . The applicant further complai ned that he had not been promptly
informed about the reasons for his arrest, and that the arrest had not
conform ed to domestic procedural rules, in particular because he had not
been given an opportunity to contact his relatives; his rights, including the
right to have a lawyer, had not been properly explained to him; he had not
been served with a copy of the administrative -offence report drawn up in his
respect; and he had been arrested and taken to a police car by plain -clothed
persons.
101 . The Government submitted that the applicant ’s arrest had been in
conformity with Article 399.3 of the CAO . According to this Article, a
person in respect of whom proceedings are carried out for an administrative
offence punishable by administr ative detention may be taken into custody
for up to twenty -four hours . The Government further submitted that aft er the
administrative -offence report stating that the applicant had violated
Article 310 of the CAO had been drawn up , the applicant had been brought
before a court . His administrative detention had resulted from a lawful court

24 GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT
decision by which he had been found guilty of an administrative offence
under Article 310.1 of the CAO.
102 . The Government also submitted that the applicant had been duly
informed about the reasons for his arrest as well as his rights under the
relevant provisions of the CAO; however, he had refused to sign the
administrative -offence report and a relevant note had accordingly been
included in the report.
2. The Court ’s assessment
103 . The Court reiterates that Article 5 of the Convention guarantees the
fundamental right to liberty and security. That right is of primary
importance in a “democratic society” within the meaning of the Convention
(see De Wilde, Ooms and Versyp v. Belgium , 18 June 1971, § 65, Series A
no. 12, and Winterwerp v. the Netherlands , 24 October 1979, § 37, Series A
no. 33).
104 . Any deprivation of liberty must, in addition to falling within one of
the exceptions set out in sub -paragraphs ( a) to (f), be “lawful”. Where the
“lawfulness” of detention is in issue, including the question whether “a
procedure prescribed by law” has been followed, the Convention refers
essentially to national law and lays down the obligation to conform to the
subs tantive and procedural rules of national law (see Saadi v. the United
Kingdom [GC], no. 13229/03, § 67, 29 January 2008). Compliance with
national law is not, however, sufficient: Article 5 § 1 requires in addition
that any deprivation of liberty should be in keeping with the purpose of
protecting the individual from arbitrariness (see Bozano v. France ,
18 December 1986, § 54, Series A no. 111, and Kafkaris v. Cyprus [GC],
no. 21906/04, § 116, ECHR 2008 -…).
105 . It is a fundamenta l principle that no detention which is arbitrary can
be compatible with Article 5 § 1 and the notion of “arbitrariness” in
Article 5 § 1 extends beyond lack of conformity with national law, so that
deprivation of liberty may be lawful in terms of domestic law but still
arbitrary and thus contrary to the Convention (see Saadi , cited above, § 67).
While the Court has not previously formulated a global definition as to what
types of conduct on the part of the authorities might constitute
“arbitrariness” for th e purposes of Article 5 § 1, key principles have been
developed on a case -by -case basis (see Mooren v. Germany [GC],
no . 11364/03, § 77, ECHR 2009 -…).
106 . Furthermore, detention will be considered “arbitrary” where,
despite complying with the letter of national law, there has been an element
of bad faith or deception on the part of the authorities (see, for example,
Bozano , cited above, § 59, and Saadi , cited above, § 69) or where the
domestic autho rities neglected to attempt to apply the relevant legislation
correctly (see Benham v. the United Kingdom , 10 June 1996, § 47, Reports
1996 -III, and Liu v. Russia , no. 42086/05, § 82, 6 December 2007).

GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT 25
107 . Turning to the present c ase, the Court observes that the applicant
was arrested in the course of the dispersal of an unauthorised demonstration
on 19 June 2011 . He was taken to a police station where he was kept in
police custody overnight, a nd was brought before a court which sentenced
him to five d ays ’ administrative detention.
108 . The Court reiterates its finding above that the measure to which the
applicant was subjected (namely arrest and custody followed by five days ’
imprisonment) pursued aims unrelated to the formal ground relied on to
justify the deprivation of liberty , and implied an element of bad faith on the
part of the police officers . While he was formally charged with failure to
comply with a lawful order of a police officer , the applicant was in fact
detained for his participation in an unauthorised peaceful demonstration (see
paragraph s 56 and 6 2 above). Furthermore, there are sufficient elements to
conclude that the domestic courts that imposed the administrative detention
also acted arbitrarily in reviewing both the factual and the legal grounds for
the applicant ’s detention . They failed to examine whether the police had
invok ed the correct legal basis for the applicant ’s arrest or to examine the
legality of the police ’s interference with the demonstration (see
paragraph 86 above). In such circumstances, the Court cannot but conclude
that the applicant ’s deprivation of liberty as a whole was arbitrary and
therefore contrary to the requirements of Article 5 § 1 of the Convention .
109 . Accordingly, there has been a violation of Article 5 § 1 of the
Convention.
110 . 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.
IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION
111 . 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 reparat ion to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
A. Damage
112 . The applicant claimed 16,00 0 euros (EUR) in respect of
non -pecuniary damage.
113 . The Government submitted that the applicant ’s claim was
unsubstantiated and unreasonable. They considered that, in any event, an
award of EUR 5,000 would constitute sufficient just satisfaction.
114 . The Court considers that the applic ant has suffered non -pecuniary
damage which cannot be compensated for solely by the finding of a

26 GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT
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 aw ards the applicant the sum of EUR 15,600 under
this head, plus any tax that may be chargeable on this amount.
B. Costs and expenses
115 . The applicant also claimed EUR 3,300 for the legal fees incurred
before the domestic courts a nd before the Court. In support of his claim, he
submitted a contract, dated 20 June 2011, for legal and translation services.
116 . The Government considered that the claim was excessive and could
not be regarded as reasonable as to quantum. In particular, the y argued that
the applicant was represented by the same lawyers who were represent ing a
number of other applicants in similar cases and that substantial parts of the
submissions in all those cases were identical or very simil ar.
117 . The Government submitted that, taking into account the above
considerations, the amount of legal aid already granted to the applicant
should be deemed as sufficient reimbursement of costs and expenses.
118 . 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 an d the above criteria, the Court considers it reasonable to award
the sum of EUR 3,3 00 covering costs under all heads, less EUR 850 already
paid in legal aid by the Council of Europe .
C. Default interest
119 . 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 COU RT , UNANIMOUSLY,
1. Declares the application admissible ;

2. Holds that there has been a violation of Article 11 of the Convention on
account of the dispersal of the demonstration and the applicant ’s arrest
and conviction ;

3. Holds that there has been a violation of Article 6 §§ 1 and 3 of the
Convention ;

GAFGAZ MAMMADOV v. AZERBAIJAN JUDGMENT 27

4. Holds that there has been a violation of Article 5 of the Convention;

5. Holds
(a) that the respondent State is to pay the applicant, within three months
of the date on whic h the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be converted
into the currency of the respondent State at the rate applicable at the date
of settlement:
(i) EUR 15,600 (fifteen thousand six hundr ed euros), plus any tax
that may be chargeable, in respect of non -pecuniary damage;
(ii) EUR 2,4 50 (two thousand four hundred and fifty euros), plus
any tax that may be chargeable to the applicant, in respect of costs
and expenses, to be paid directly into his representatives ’ bank
account ;
(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 th e default period plus three percentage points;

6. Dismisses the remainder of the applicant ’s claim for just satisfaction.
Done in English, and notified in writing on 15 October 2015 , pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen An drás Saj ó
Registrar President

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