THERE IS NO FREEDOM OF ASSEMBLY IN AZERBAIJAN, AS DEMONSTRATED BY A COURT RULING
Samir Sultanov
Analysis of violation of law during Samir Sultanov’s judicial proceedings
Baku City Yasamal District Court
Case № 3 (004)-1025/2023
21 February 2023
Presiding judge: Rashad Javadzade
The person against whom an administrative record was issued: Samir Sultanov
Defender: Zubeida Sadigova
On 20 February 2023, Samir Sultanov, a 23-year-old member of the “Democracy 1918” Movement (“D-18”) was detained by the police outside the administrative building of the Baku Court of Appeal. That day a court hearing was held on the case of Bakhtiyar Hajiyev, arrested in December 2022 and being on hunger strike (which lasted for more than 50 days). The representatives of opposition organizations, human rights defenders and journalists were waiting for the court’s decision.
At the end of the trial, the attendees began shouting out slogans protesting against the unlawful court ruling. The police detained the activists: Nemat Abbasov, Narmin Shahmarzade and Ali Malikov, later they were released, as well as Afiaddin Mammadov, Samir Sultanov’s fellow organization member, who was arrested the same day and sentenced to 30 days of administrative detention.
Samir Sultanov had been shouting and making noise outside the courthouse, thereby violating the public order as it was stated in the administrative report. The police officers urged him to order, but he did not obey their legal demands, thereby violating the Articles 510 (Failure to obey the legitimate demands of a policeman) and 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic.
Samir Sultanov, interrogated in the course of the trial, did not plead guilty to the charges and testified that he either had not made noise or violated the public order, but had used his constitutional right to freedom of assembly as a citizen and protested against the unlawful court ruling.
Nurlan Hajiyev, the 27th Police Department of the Baku Yasamal District inspector, who was questioned by the Court, testified that it had been him who had drawn up the administrative report concerning S. Sultanov.
Zubeida Sadigova, the defender of Samir Sultanov, said at the trial that on 20 February 2023, the Court dealt with the issue of house arrest of the public activist Bakhtiyar Hajiyev. Samir Sultanov is also a social activist. There were about 30-40 activists standing outside the courthouse that day. The young people, exercising the right to freedom of assembly, shouted out the slogans “Freedom to Bakhtiyar” and “Let Bakhtiyar go”. They did not either insult or disturb anyone, or violate public order.
Interrogated as a witness at the trial, Isa Qurbanaliev, an officer of the post-patrol service of the Baku Yasamal District Police Department, testified that on 20 February 2023, on the territory of Yasamal District there were several people loudly shouting and expressing disobedience to the police, when the officers demanded to respect the public order.
On 21 February 2023, the Baku Yasamal District Court convicted Samir Sultanov on administrative offence under the Articles 510 and 535.1 of the Administrative Offences Code of the Azerbaijan Republic and sentenced him to 30 days of administrative detention.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The court’s one-sided attitude is expressed in the fact that in making the ruling they took into account only the police officers’ testimonies, the very same officers who had detained Samir Sultanov. There is no any other evidence in the case besides these testimonies, reports and the administrative report. It should be noted that there were other activists alongside Samir Sultanov on the day of his detention, the activists who could confirm the absence of any Samir’s wrongdoing.
The defence stated that Samir Sultanov and other activists used their constitutional right to freedom of assembly and protested against the unlawful judicial ruling while demanding freedom for Bakhtiyar Hajiyev.
It should be pointed out that the Right to Freedom of Assembly is enshrined in the Article 49 of the Azerbaijan Republic Constitution, where states:
- Everyone has the right for meetings.
This right is enshrined both in the norms of National law and in international treaties. For example, the Article 11 of the European Convention on Human Rights states:
- 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.
- 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 or for the protection of the rights 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.
First of all, we should determine whether the police intervention was lawful. The activists’ short-term action was peaceful, non-violent in nature. It means that the protesters’ behavior did not annoy or offend others. It could even temporarily hinder, impede or interfere with the actions of the third parties.
There is a so-called presumption in favor of freedom of assembly.
“Since the Right to Freedom of Peaceful Assembly is a fundamental right, it should, insofar as possible, be exercised without any regulation. Whatever is not clearly prohibited by the law should be considered as permitted, and those wishing to assemble should not be required to obtain authorization in order to hold an assembly. There should be a clear and unambiguous legal presumption in favor of the freedom of assembly… The assemblies are held to express the general opinion of their participants and to convey certain ideas and messages to the public. Imposing restrictions on the visual or audible content of their messages should be considerably hampered, and they should be applied only under imminent threat of violence.” (Guidelines on Freedom of Assembly. Edition 2, OSCE, Warsaw-Strasbourg, 2010).
The Court in its ruling refers to the Law “On the Police”, in which one of the police functions is the public order protection. In this case, it should be emphasized that the police officers failed to fulfill their legal obligations, as they should have ensured the participants’ safety, rather than create noise, commotion, and unlawful detention of peaceful demonstrators. The law-enforcement bodies should also protect the peaceful participants from any person or group of people (including provocateurs and anti-assembly participants) who attempt to disrupt or obstruct the gathering by any means.
“Freedom of peaceful assemblies is recognized as one of the pillars of a real democracy. Encouraging participation in peaceful assemblies ensures all members of a society to express their viewpoints that they share with others” (Guidelines on Freedom of Assembly. 2nd edition, OSCE, Warsaw-Strasbourg, 2010).
Legality means that any restrictions must be based on the law and must comply with the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as other international human rights treaties. The domestic law must comply with the international legal norms.
The European Court of Human Rights (ECHR) has found a violation of Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in a large number of precedents in cases against Azerbaijan.
However, the legislation in this area in Azerbaijan is yet failing to meet the International Conventions and Standards.
Given the violation of the Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the violation of the Article 5(1)(c) of the European Convention, which stipulates the right to liberty and security of person, seems also “natural”:
- 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:
(c) the lawful arrest or detention of a person 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.
The right to freedom is enshrined in the Article 28 of the Constitution of Azerbaijan Republic, where states:
- Everyone has the right for freedom.
- Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.
- Everyone legally being on the territory of the Azerbaijan Republic may travel without restrictions, choose the place of residence and travel abroad.
- Any citizen of the Azerbaijan Republic has the right to return to his/her country whenever he/she so desires.
The arrest of Samir Sultanov and his “D-18” colleague Afiaddin Mammadov lacked a legitimate and lawful basis, as their actions did not constitute any administrative offence. Consequently, the police officers’ demands and their interference cannot be considered to be legitimate. Moreover, such an interference had not been in the nature of the public order protection, as the order was not violated with the spontaneous peaceful action. On the contrary, the interference violated the Rights enshrined in the National and International laws, the detainees’ Right to Liberty, the Right to Freedom of Assembly, as well as their Right to Freedom of Expression.