Binaqadi District Court Found Guilty of Elmin Khamzayev

Posted by admin on

Binaqadi District Court Found Guilty of Elmin Khamzayev

The Analysis of violation of law during Elmin Khamzayev’s judicial proceedings

The Binagadi District Court, Baku

Criminal case № 3(001)1528/2018

May 30, 2018

Judge:Mirheydar Zeynalov

The person whoever made the administrative report: Bahruz Ismayilzade

The person against whom the administrative report was drawn up: Elmin Khamzayev

Defender: Samir Abdullayev, Elchin Sadigov

On May 28, 1918 the Interim National Council of Muslims of Transcaucasia (National Council of Azerbaijan) proclaimed the foundation of the independent Azerbaijan Democratic Republic (ADR). On April 27, 1920 the units of the 11th Red Army crossed the border of ADR and entered Baku on April 28. The newly created Azerbaijan Democratic Republic existed only 23 months and was occupied by troops of the Soviet Russia. The Azerbaijan Democratic Republic was the first secular democratic state of the Islamic world, as well as the first state in the Islamic world and in the East where granted women the right to elect and be elected.

In 2018 in Azerbaijan celebrated the 100-year anniversary of the ADR. The opposition parties and members of civil society paid more attention to the celebration of the 100 anniversary of the first republic. The authorities were annoyed by the attention of the civil society to the heroic past of the Azerbaijani people, prevented rallies and processions of citizens to the monuments of leaders of the ADR, prevented even singing hymn and the raising of national flag of Azerbaijan.

On May 28, 2018 on day of proclamation of ADR opposition party “Real Alternatives” (ReAl) and a number of representatives of civil society organized and held in Baku a solemn procession from the underground station Ichari Shahar to the monument of Independence on the central Istiglal Street. Distance from the underground station to a monument no more than 700 meters.
On May 28 at 12:00 participants of a procession gathered near the underground of the Ichari Shahar and moved down to the monument. Citizens walked on the sidewalk, without interfering traffic, carried state flags. Laying flowers to the Monument of Independence, the citizens sang a hymn of the Azerbaijan and went down the Istiglal street to the street, bearing a name of the founder of the Azerbaijan Democratic Republic Mammad Emin Rasulzade. On this street, which the protesters planned to go to the Sea boulevard, the police blocked their way.
One of leaders of the ReAl Party Azer Gasymly explained to the police officers that the procession was organized in honor of the 100-year anniversary of the first Azerbaijan Republic, in honor of the holiday. Police demanded to lower of state flags. A. Gasymly countered that cannot encourage their adherents to lower the national flag raised 100 years ago, especially in such a solemn, in such a momentous day. The police officers blocked the way and not allowed the participants of the rally on the boulevard. Then participants of the rally dispersed.
On May 29, 2018 one of leaders of ReAl Party and organizers of the rally Azer Gasymly was summoned to the General Prosecutor’s Office, and then was brought to the Police Department of Baku City Yasamal District where he was kept about an hour. Then A. Gasymly was brought to the Baku City Yasamal District Court which found him guilty of disobeying of the police officer and sentenced to 30 days of administrative arrest.
In the same day was arrested one of the organizers and active participants of the rally, a member of the ReAl Party Elmin Khamzayev. Against him an administrative report was also drawn up. The official version of detention was that on-street E. Khamzayev used foul language. The police officers demanded to stop it, but E. Khamzaev did not pay attention to their requirements and ignored them.
The next day, E. Khamzayev was taken to the Binagadi District Court of Baku City. On May 30, 2018 Binagadi District Court found E. Khamzayev guilty of an offence under the Article 535.1 (insubordination of legal request of policeman) the Code on Administrative Violations of Azerbaijan Republic, and sentenced to 25 days of administrative detention.

Commentary by an expert lawyer:

The court decision is unlawful and groundless. The court did not clarify what kind of demands made by the police, were legitimate and which are not. The court ruled only on the basis of a report and protocol of the police officers. 
According to the article 49 of the Constitution of Azerbaijan:
     I.  Everyone has the right for meetings.
     II. Everyone has the right, having notified respective governmental bodies in advance, peacefully and without arms, meet with other people, organize meetings, demonstrations, processions, place pickets.

 

In April, 2002 Azerbaijan ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. Since then, Azerbaijan was committed to obligations to respect  the rights and freedoms provided by the European Convention.
According to the Article 11 (1) of the European Convention, 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.

 

          Paragraph 2 of this article provides a clear list of restrictions on the right to freedom of assembly. The right to freedom of assembly may be restricted in the following cases:

· no restrictions shall be placed on the exercise of these rights 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
· for the protection of the rights and freedoms of others.

The right to freedom of assembly is a fundamental right in a democratic society and, along with the right to freedom of thought, conscience and religion, one of the bases of a democratic society. In the judgments of European Court of Human Rights (ECHR) it was repeatedly stated that democracy is the only basis of a democratic society. The European Convention for the Protection of Human Rights and Fundamental Freedoms has been designed for development and maintain of ideals and values of a democratic society. The ECHR has repeatedly stressed that democracy is the only political model under the European Convention and compatible with it.      

In the judgment of the ECHR in the case of Barankevich v. Russia (para. 25) from July 26, 2007 states: “The right to freedom of assembly covers both private meetings and meetings in public thoroughfares as well as static meetings and public processions; in addition, it can be exercised by individuals participants of the assembly and by those organising it (see Adalı v. Turkey, no. 38187/97, § 266, 31 March 2005). States must refrain from applying arbitrary measures capable of interfering with the right to assemble peacefully. In view of the essential nature of freedom of assembly and association and its close relationship with democracy there must be convincing and compelling reasons to justify an interference with this right (see Ouranio Toxo v. Greece, no. 74989/01, § 36, 20 October 2005, with further references)”. See:  https://hudoc.echr.coe.int/eng#{“appno”:[“10519/03″],”itemid”:[“001-81950”]};
http://freecases.eu/Doc/CourtAct/4528891

Elmin Khamzayev participated in the peaceful rally dedicated to the 100-year anniversary of the Azerbaijan Democratic Republic, did not disturb the public order and had not committed any offenses. Furthermore, no one was detained by the police officers at the time of the rally on account of any criminal offence. As can be seen from the list of restrictions, none of them did not exist in this case. That’s why, Elmin Khamzayev was detained under far-fetched charge of committing an administrative offence which he did not commit.

According to the Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in cases and in accordance with a procedure prescribed by law. Purpose of the administrative arrest ofElmin Khamzayev for 25 days was punish for participations in the rally dedicated to the 100-year anniversary of ADR, punishment for active work on the organization of the rally. The arrest has not pursued a legitimate aim under national and international law. A number of organizers of the rally were subjected to administrative detention.