Baku City Nizami District Court found Fatima Movlamova guilty
The analysis of violation of the Law during Fatima Movlamova’s
judicial proceedings
Baku City Nizami District Court
Case #3 (007)-28/2019
January 4, 2019
Judge: Babek Qasimov
A person against whom a protocol on an administrative violation was drawn up: Fatima Movlamova.
A person who drew up a protocol on an administrative violation: district police officer of Baku City Nizami District Police Department #24- Ilham Mamedov
Defender: Ismail Abishev
On December 26, 2018, new charge against imprisoned blogger Mehman Huseynov was brought. He was accused in committing crime under Article 317.2 (threat on application of violence concerning employees of criminal – executive establishments or investigator isolators, and also concerning condemned with a purpose to prevent his correction or from revenge for execution of public duties by him with application of violence not dangerous to life or health) of the Criminal Code of AR. Lieutenant Ali Abdalov testified against M. Huseynov.
M. Huseynov was already convicted on the basis of the complaint lodged by the Head of Baku City Nasimi District Police Department Musa Musayev, in the course of the private prosecution. On March 3, 2017, Baku City Surakhani District Court found blogger guilty in slander and sentenced him to 2 years in prison. M. Huseynov was taken into custody inside court.
On December 26, 2018, M. Huseynov, who is serving his sentence at Prison #14, started dry hunger -strike to protest new charge. He developed problems with his health very soon, and after 10 days, he started drinking only milk and other watery dairy products.
The peaceful demonstration to support Mehman Huseynov and to demand the release of all political prisoners -was organized near Neftchilar metro station, in Baku. The participants of a peaceful demonstration, in majority, were women, who were holding the portraits of M. Huseynov and other political prisoners. Several minutes after, police officers brutally intervened, and started dispersing demonstrators. Almost everyone was forced into police cars and taken to police department.
According to the detainees, they were ill-treated by the police officers, on the way to the police department, who used physical force against them and insulted them. At the police department, the protocols on an administrative violations were drawn up against detainees. A protocol on an administrative violation was drawn up towards Fatima Movlamova, in which, it was indicated that she participated in an unauthorized demonstration, and in such way, violated the Law of the AR “On Freedom of Assembly”.
Then, the detainees were brought to Baku City Nizami District Court. Fatima Movlamova was accused in committing administrative violation under Article 513.2 (participation in unauthorized demonstrations, rallies) of the Code on Administrative Violations of Azerbaijan Republic. Baku City Nizami District Court found Fatima Movlamova guilty and convicted to fine for amount of 300 manat.
Commentary by an expert lawyer:
The court decision is unlawful and groundless. Freedom of assembly is the constitutional right of citizens of Azerbaijan. As prescribed by Article 49 (1) of the Constitution of AR: “Everyone has the right for meetings”.
The right to assemble peacefully is an essential condition for the exercise of other human rights such as the freedom of expression. As a true foundation of democracy, the right to assemble is guaranteed by major human rights treaties and by a commitment made by OSCE participating States in 1990, in Copenhagen. Note that only peaceful assemblies are protected.
In international practice, there are several principles on freedom of assembly: the presumption in favor of holding assemblies, the state’s duty to protect peaceful assembly, legality, proportionality, good administration, and non-discrimination. https://www.osce.org/ru/odihr/24524?download=true
However, Law of AR, “On Freedom of Assembly” not only contradicts the Constitution of AR, but it also contradicts the European Convention for the Protection of Human Rights and Fundamental Freedoms.
It is the responsibility of the state to put in place adequate mechanisms and procedures to ensure that the freedom of assembly is enjoyed in practice and is not subject to unduly bureaucratic regulation. However, the application procedure, provided by the Law “On Freedom of Assembly” of the AR, for permission on holding rallies, demonstrations, and etc., is very complicated, lengthy and bureaucratic.
Any restrictions imposed must have a formal basis in law. The law itself must be compatible with international human rights law, and it must be sufficiently precise to enable an individual to assess whether or not his or her conduct would be in breach of the law, and what the consequences of such breaches would likely be. The Law “On Freedom of Assembly” of the AR completely contradicts international norms and standards. In addition, the law is not written clearly and is contradicting. It is not accessible to the understanding of a general public.
Any restrictions imposed on freedom of assembly must be proportional. The dispersal of assemblies may only be a measure of last resort. Police officers in Azerbaijan use last resort measure to disperse peaceful assemblies: inadequate physical force towards demonstrators, special means, insults. The demonstration in support of Mehman Huseynov was no exception. Police actions while brutally dispersing this peaceful demonstration was not any different from their actions during other demonstrations.
General public should be aware of what regulatory body is responsible for the decision makings in regards of regulation of the peaceful assemblies, and this should be clearly secured by law. It is not stated clearly in Azerbaijan legislation, what exact regulatory body participates in decision makings on holding assemblies.
In regulating freedom of assembly, the relevant authorities must not discriminate against any individual or group on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.
However, since 2003, all peaceful demonstrations in Azerbaijan, which were held with the aim to criticize the policy of government, were brutally dispersed by the police with application of force.
Legitimate grounds for restriction on freedom of assembly are prescribed in international law on human rights.
Article 11 (1) of European Convention for the Protection of Human Rights and Fundamental Freedoms ensures everyone’s right to freedom of assembly. Item 2 of the article 11 of European Convention consists of the list of restrictions, under which this right may be restricted. This list of restrictions is final and clear and may not be interpreted otherwise. The restrictions are as following: · if these restrictionsare prescribed by law, · are necessary in a democratic society, · are in the interest of national security or public safety, · for the prevention of disorder or crime, · for the protection of the rights and freedoms of others
According to Article 7 of the Law of AR “On Freedom of Assembly”, no restrictions shall be placed on the exercise of the right to freedom of assembly other than: 1. for protection of public interest and interests of national security;2. for the prevention of public disorder;3. for the prevention of disorders and crimes;4. for the protection of health;5. for the protection of norms of conduct and spirituality;6. for the protections of the rights and freedoms of others.
Article 8 of the Law of AR “On Freedom of Assembly”lists the circumstances, when the assemblies may be prohibited or suspended: – Assemblies accompanied by calls to discrimination, hostility, violence, propagandizing national, racial or religious discord shall be prohibited. – Assemblies propagandizing war shall be prohibited.– Also holding peaceful assembly with political goals shall be prohibited in the cases prescribed by law. Demonstrations must be held in a visual and audible range, to which given demonstration is addressed. The demonstration with a demand to release Mehman Huseynov was held at the location, close-by to a place where Lieutenant Ali Abdalov lives. The participants of the demonstration have not violated public order, did not cause any damage, did not disturb the movement of the cars and people. They had portraits of Mehman Huseynov and other political prisoners in their hands.
Even if the participants of the demonstration did not refer to a regulatory body with a notification of holding the demonstration, the authorities should still protect and facilitate any spontaneous assembly so long as it is peaceful in nature. Besides national legislation and European Convention for the Protection of Human Rights and Fundamental Freedoms, freedom of assembly is also secured by Article 20 (1) of Universal Declaration of Human Rights, which had its 70th anniversary on December 2018, and also Article 21 of International Covenant on Civil and Political Rights