THE COURT IN AZERBAIJAN HAS ONCE AGAIN VIOLATED THE RIGHTS OF AN ASERBAIJANI CITIZEN
Nariman Shabanzade
Analysis of violation of law during Nariman Shabanzade’s judicial proceedings
Baku City Sabayil District Court
Case № 3 (009)-1674/2024
24 July 2024
Presiding judge: Rana Qafarova
The person against whom an administrative record was issued: Nariman Shabanzade
Defender: Zubeida Sadigova
With the participation of Emin Huseynov, a police captain from the 9th police station from the Sabayil District Police Department.
On 24 July 2024, the police officers from the Sabayil District Police Station 9 issued a report against Nariman Shabanzade for allegedly 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.
- Shabanzadeh, interrogated in the course of the trial, did not plead guilty to the offences and testified that on 23 July 2024, he along with his friend had been distributing anti-war booklets at the Baku Fountain Square. The police officers who approached them on the square, grabbed them by force to the police station without explaining the reason of their offence. There, they were beaten and severely insulted by some 7 or 8 policemen. Their clothes were torn, there were injuries on the back of their heads, and their bones were badly hurt.
His lawyer also confirmed before the Court the fact that the defendant had been beaten and that the injuries on his body had been obvious as well as his clothes had been torn. The defence also stated that the distribution of anti-war booklets would not cause public concern.
Emin Huseynov, a captain questioned at the trial, who drew up an administrative report against Shabanzade, testified that the latter, at about 18:50 on 23 July 2024, had violated public order by using obscene language and had disobeyed the police officers’ lawful orders.
Sanan Qarakhanov, a police officer questioned as a witness at the trial, testified that two young men had been loudly shouting at about 18:50 on 23 July 2024. The police officers approached them, introduced themselves and urged them to keep order. Despite that, the two men were disobedient and violated the public order. Nariman Shabanzadeh along with Rustam Qasimly (also detained and charged with offences under the Code Articles 510 and 535.1) had been asked to the 9th police station, and no physical or psychological pressure had been exerted on them.
The Court did not find any mitigating or aggravating circumstances in the case of N. Shabanzade.
On 24 July 2024, the Baku City Sabayil District Court issued a ruling: to find Nariman Shabanzade guilty on the charges and sentence him to 30 days of administrative arrest.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
Firstly, it should be noted that the Azerbaijan Republic Code is based on the principles of human and civil rights and freedoms, legality, equality before the law, presumption of innocence, fairness and prevention of administrative offences.
According tot the Article 5.1 of the Administrative Offences Code of the Azerbaijan Republic, the rights and freedom of human and citizens are of great value. All the state authorities (officials) having committed violation of these rights and freedom shall be responsible in the order provided by legislation of the Azerbaijan Republic. The Article 5.3 of the Administrative Offences Code of the Azerbaijan Republic states, when applying measures on provision of execution of administrative violation cases, it is not allowed to issue resolutions and take actions, humiliating the human dignity.
It should be recalled that N. Shabanzade was accused of committing two offences under the Article 510 and Article 535.1 of the Code. Hooliganism means a violation of public order, which is not accompanied by the use or threat of violence against individuals or destruction/damage to somebody else’s property. The event took place on one of the Baku central streets where, at any time of the day, there are many people. But nonetheless, none of those who were there addressed to the police about the public order violation by detainees: such as shouting, obscene language, and so forth.
In addition, the booklets distributed by the detainees contained an anti-war message, and therefore were not aggressive or hateful to cause public anxiety.
The other Article (535.1) of the Code is to punish for malicious disobedience to the police lawful demands. It should be emphasised that the demands must be ‘lawful’, i.e. in accordance with the law. There is not a single word in the judgement regarding the police officer’s lawful demand and whether it was indeed ‘lawful’.
The arrest term was imposed for 30 days. The sanction of the Code Article 535.1 contains, in addition to administrative arrest for up to one month, another measure of punishment not related to arrest, i.e. a fine.
The judgement does not contain any court conclusions or arguments according to which the Court has chosen the strictest sentence in the form of arrest for the maximum term against N. Shabanzade.
In the course of proceedings, the Court did not clarify the following matters that it was mandated to clarify pursuant to the Code, sec. 106, namely:
- whether it is within its competence to consider the case;
- whether there are circumstances precluding consideration of the case by a judge, a member of a collegial body or an official;
- whether the report on administrative offence and other case materials have been drawn up in accordance with the Code;
- whether there are circumstances precluding proceedings on the case;
- whether there is sufficient evidence in the case to consider it on the merits;
- whether the parties involved in the case have been informed about the time and place of the case consideration;
- whether there are motions and objections on the case.
It is of great importance in administrative cases, as in civil or criminal ones, whether the obtained evidence is relevant, sufficient, and lawful.
The evidence in this case lies upon the police officer testimony who drew up the administrative report, testimony of another policeman who was at the square, testimony of the accused who committed the administrative offence, as well as a number of various certificates and protocols.
The defence pointed out that there had been a video recording circulated on social networks. The recording depicted two young men, one of whom was N. Shabanzade, quietly distributing booklets without disturbing anyone or committing any offence.
The arrest of N. Shabanzade for the maximum term has no legitimate objective and violates the Article 28 of the Constitution, Article 5(1) of the European Convention for the Protection of Rights and Fundamental Freedoms, as well as the European Court of Human Rights judgments.
Thus, the judgment of the European Court of Human Rights (ECHR) in the case of Labita v. Italy dated 6 April 2000 states,
‘In order for a suspicion to be well founded, there must be evidence or data which would convince an objective observer that an individual involved in the case could have committed this offence.” – https://hudoc.echr.coe.int/?i=001-58559
In the commented case, there are no evidence or information that N. Shabanzade did commit any offence.
It can be considered as a very important point in the case the detainee’s testimony concerning his beating by the police officers. This defence also confirms that fact.
The Article 46 of the Constitution of the Republic of Azerbaijan states,
III. No one may be subject to torture. No one may be subject to degrading treatment or punishment. Medical, scientific and other experiments may not be carried out on any person without his/her consent.
Torture, ill-treatment and inhuman treatment are prohibited under the Article 3 of the European Convention, alongside the National Law.
The ECHR judgment in the case of Kudla v. Poland dated 26 October 2000, states, “The Article 3 protects one of the fundamental values of a democratic society. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” – https://hudoc.echr.coe.int/?i=001-58920
The judgment of the European Court of Justice in the case of Dikme v. Turkey dated 11 July 2000 states,
“The Court recalls that if a detainee has been brought to the police station in good health but by the time of his release he has had injuries, it is incumbent on the State to provide a plausible explanation of their origin and, if it fails to do so, then the Article 3 of the Convention comes into force”. – https://hudoc.echr.coe.int/?i=001-58751
It appears that the issue of ill-treatment remained unresolved, the Court did not take any initiative to investigate the matter, and the perpetrators had not been identified or prosecuted.
In the present case we can also speak of the European Convention violation, Article 10(1), that protects the right to freedom of expressions.
The young men, including N. Shabanzade, were brought to administrative responsibility for spreading their beliefs and ideas, particularly the anti-war leaflets.
The judgment of the European Court in the case of Lingens v. Austria dated 8 July 1996, states,
‘Freedom of expression, as defined in Article 10(1), is one of the supporting pillars of a democratic society, a fundamental condition of its progress and the self-realisation of each of its members. Subject to the requirements of para. 2, the freedom of speech embraces not only ‘information’ or ‘ideas’ that come across as favourable or are regarded as harmless or neutral, but also those that offend, shock or disturb. These are the imperatives of pluralism, tolerance and liberalism, without which there is no ‘democratic society’.”. – https://hudoc.echr.coe.int/?i=001-57523
To summarise all of the above, it can be concluded that the unlawful arrest for 30 days of N. Shabanzade violated his right to liberty and inviolability, the principle of the prohibition of torture and inhuman treatment, as well as the right to freedom of expression.