Hasanov and Majidli v. Azerbaijan (Applications nos. 9626/14 and 9717/14)
A selection of key paragraphs can be found below the judgement.
57. Since the behaviour held against the applicants by the domestic authorities consisted of their having disseminated the above-mentioned leaflets, the Court considers that the facts of the present cases and, in particular, the applicants’ arrest, detention and conviction, which resulted in a sentence of fifteen days’ imprisonment, disclose interference directly related to the applicants’ exercise of their right to freedom of expression under Article 10 of the Convention.
64. The Court already found above that the Government’s assertion about conduct breaching public order or other unlawful behaviour were devoid of any foundation (see paragraph 56 above). As to the act of disseminating leaflets, this was not unlawful in and of itself and, moreover, it has not been demonstrated that there were any applicable rules or regulations concerning the dissemination of leaflets inside public transport facilities (in this case, an underground station) that the applicants might have breached. In so far as the only action that was ostensibly held against the applicants was the dissemination of what the authorities termed as “anti‑government leaflets”, the domestic courts failed to ascertain that any police order that the applicants might have allegedly deliberately disobeyed constituted a “lawful order” within the meaning of Article 310.1 of the CAO. The Court emphasises in this regard that practical interpretation and application of the law by domestic courts must give individuals protection against arbitrary interferences (see, mutatis mutandis, Selahattin Demirtaş, cited above, § 275). It is contrary to the principle of the rule of law for domestic courts to assume that any order emanating from a police officer automatically and unconditionally qualifies as a “lawful” order, since that would risk giving the police unlimited power.
65. In view of the above, it follows that no factual or relevant legal grounds justifying the interference with the applicants’ right to freedom of expression have been established. Noting that the Government had not disputed the applicants’ account of the content of the leaflets (see paragraph 7 above), the Court observes that the applicants were arrested and sentenced to prison terms for distributing leaflets which did nothing more than recall the citizens’ constitutional right to choose their Government. Such an interference with their rights cannot but be described as a flagrant arbitrary act and a negation of the very essence of the freedom of expression under Article 10 of the Convention, which protects the right to disseminate information and political ideas.
67. The Court concludes that the interference in the present cases – the applicants’ arrest, detention and conviction for disseminating leaflets – was not “lawful” within the meaning of Article 10 § 2 of the Convention.
68. There has accordingly been a violation of Article 10 of the Convention in respect of both applicants.