Court of Appeal replaced 10 days of arrest for Rahim Gaziyev by a fine of 100 manats
Analysis of violation of law during Rahim Gaziyev’s judicial proceedings
Baku Court of Appeal
Case 3(103)-1213/17
December 29, 2017
Judge: Gadim Babayev
The person, against whom the administrative production was initiated: Rahim Gaziyev
Defender: Zibeyda Sadighova
Rahim Gaziyev was born in 1943 in the town of Sheki AzSSR. In 1988, R. Gaziev was one of the founders of the Popular Front of Azerbaijan and a member of the first Board of the PFA.
R.Gaziyev was a deputy of the Supreme Soviet of the Azerbaijan SSR of the last convocation. In 1992-1993 he was the Azerbaijan Minister of Defence. In the fall of 1993, Gaziyev was arrested on charges of high treason, but he managed to escape from the Investigative Isolation Ward of the Ministry of National Security (MNS) in September 1994 with a group of like-minded people (with the support of the Minister of National Security Nariman Imranov). They crossed the border in the north of the country and fled to Russia.
In Azerbaijan Rahim Gaziyev was sentenced to death in absentia through execution. On April 16, 1996, the General Prosecutor’s Office of Russia decided to extradite the ex-defence minister to Baku:
https://ru.wikipedia.org/wiki/Газиев,_Рагим_Гасан_оглы – cite_note-13, where the death sentence was changed to life imprisonment in 1998. Rahim Gaziyev was included in the list of political prisoners by the Institute of Peace and Democracy (IPD). After Azerbaijan joined the Council of Europe in 2001, a list of political prisoners (716 people) was handed over to the special PACE rapporteur on political prisoners, a Belgian deputy George Clerfeat. After the adoption in PACE of a special resolution on political prisoners in Azerbaijan, the process of releasing political prisoners began.
Rahim Gaziyev was pardoned and released in March 2005. However, 74-year-old Gaziyev continues to take an active public stance and criticize President Ilham Aliyev’s policy, mainly in the media, which naturally causes discontent ….
On December 25, 2017 at 4 p.m. R.Gaziyev was promenading in a park. According to him, policemen grabbed him, and without explaining any reason took him to Narimanov Police Station 17. R.Gaziyev was kept in police station almost 24 hours. On December 26 at 11 a.m. he was brought to Narimanov District Court, Baku.
On December 26, 2017 Narimanov District Court (Judge Rashad Abdulov) found R.Gaziyev guilty of the offence foreseen by Article 510 of Code of Administrative Violations of the Republic of Azerbaijan and sentenced to 10 days of administrative arrest. The first data regarding R.Gaziyev’s detention was received by the press on December 26 at 5.07 p.m. at http://www.apa.az website. The information was about R.Gaziyev’s arrest for 10 days.
The defence did not agree with the ruling of the court of first instance and appealed against it. On December 29, 2017 Baku Court of Appeal changed the ruling of Narimanov District Court: arrest was replaced by administrative fine at the rate of 100 manats. R.Gaziyev was released from the courtroom.
Comment by an expert lawyer:
The judicial decision is partially legal, but unreasonable. The appeal court changed the ruling of the court of first instance, but did not justify Rahim Gaziyev, the court merely changed the type of administrative punishment.
A number of violations were committed in the case. R.Gaziyev was detained on December 25, 2017 at 4 p.m. and brought to the Narimanov District Court of Baku on December 26, 2017 at 11 a.m. During this time he was not given the opportunity to call a lawyer. His brother was notified about R.Gaziyev’s arrest and finding in Narimanov Police Station 17 on December 25 at 7 p.m.
In accordance with Article 5(3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ‘Everyone who is detained or taken into custody in accordance with Subparagraph (c) of Clause 1 of this article shall be promptly brought before a judge or other officer vested with judiciary under law and is entitled to trial within a reasonable time or to release pending trial.’ As can be seen from the facts of the case, R.Gaziyev was in the police station for almost 24 hours. He was not immediately brought before a judge.
Here, it is quite appropriate to remind the principles of administrative production. For example, the violation of several principles is evident in the case: the principle of respect for the rights and freedoms of man and citizen (Article 5 of the Code on Administrative Violations of the RA), the principle of legality (Article 6 of the Code), the principle of equality before the law (Article 7 of the Code) and, most importantly, the principle of justice (Article 9 of the Code).
During the court session R.Gaziyev declared violation of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ‘The right to freedom of expression.’ He was talking on the phone during the detention. Policemen say that he used abusive language at the same time, which was the reason for Gaziyev’s arrest and charges against him, the police interrupted his conversation. In this case, there was interference with the right to freedom of expression. Intervention was not provided by law. The judgment of the European Court of Human Rights (ECHR) in the Javadov v. Russia case of September 27, 2007 states:
‘The Court notes that one of the requirements resulting from the wording ‘prescribed by law’ is the predictability of punishment. The norm cannot be considered a ‘law’ until it is formulated clearly, so that a person can regulate his/her behaviour. In doing so, he/she should be able, if necessary, to receive appropriate advice – reasonable and in specific circumstances, in order to know about the consequences that a certain action may entail’ (Clause 35). http://echr.ru/documents/doc/2465658/2465658-004.htm
Let’s consider the law, according to which R.Gaziyev was brought to administrative responsibility. Article 510 of the Code on Administrative Violations of the RA states: ‘Minor hooliganism, that is, a violation of public order, expressed in the application or threat of violence against individuals, as well as damage to someone else’s property or actions aimed at damage to property.’ This article does not indicate that obscene language in public places is petty hooliganism. For comparison, we give an example of the Code of Administrative Offenses of the Russian Federation. Thus, Article 20.1 of the Code of Administrative Offenses of the Russian Federation reads: ‘Minor hooliganism, that is, a violation of public order, expressing obvious disrespect for society, accompanied by obscene language in public places, insulting people, as well as destruction or damage to others’ property.” (Источник: http://www.buhgalteria.ru/administrativniy-kodeks/glava20/stat20.1/).
In the article of the Code on Administrative Offenses of the Russian Federation there is an indication of ‘obscene language’, this provision does not exist in the article of the Republic of Azerbaijan Code on Administrative Offenses.
Thus, the aforementioned police interference in the right to freedom of expression was not provided for by the legislation of the Republic of Azerbaijan and did not correspond to the legitimate aims of Article 10 of the European Convention, ‘The right to freedom of expression.’
“Freedom of speech applies not only to ‘information’ or ‘ideas’ that are accepted favourably, are considered harmless or indifferent, but also to one that offends, shocks or causes anxiety to the State or any part of society” (Michele de Sylvia, Case laws of European Court of Human Rights).
Neither the court of first instance nor the appellate court took into account the violation of these norms of national and international legislation. The Court of Appeal replaced the form of punishment: administrative arrest for an administrative fine, referring to Article 30.2 of RA Code on Administrative Offenses, according to which arrest cannot be applied to persons who have reached the age of 65. However, the court did not completely abolish the ruling of the court of first instance and did not pass an acquittal against R.Gaziyev.
All of the foregoing shows that the national and international legislation was grossly violated in this case and the precedents of the European Court of Human Rights were not taken into account