BEING PUBLICLY CRITICAL ABOUT THE GOVERNMENT ON THE SOCIAL MEDIA HAS ALSO LED THE DETENTION
Elvin Mustafayev
Analysis of violation of law during Elvin Mustafayev’s judicial proceedings
Saatly City Court
Case № 3(055)-361/2023
17 March 2023
Presiding judge: Mirlatif Sadigov
The person against whom an administrative record was issued: Elvin Mustafayev
The administrative protocol was drawn up by Rovshan Huseynov
Defender: Vusal Abbasov
On 17 March 2023, Elvin Mustafayev, born in 1996, was charged with committing administrative offenses under 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 (hereinafter the Code).
According to the investigation, at about 4 p.m. on 17 March 2023, Elvin Mustafayev was using obscene language out loud in the Saatly City of Azerbaijan, and was maliciously disobeying the police lawful demands that called him to order.
It should be noted that Elvin Mustafayev was active on the social networks criticizing the political and public processes in the country. According to Elvin Mustafayev’s relatives he openly condemned the police for using brutal force against the residents of Saatly who held a rally on 13 March 2023. During the protest, the participants were beaten with truncheons and injured with rubber bullets. Two of the protesters were given medical treatment, after which they were released home, however the third one was seriously wounded and remained hospitalized. In this regard, Elvin Mustafayev was summoned to the Saatly District Police Department on 17 March 2023. Rovshan Huseynov, who drew up an administrative report against Elvin Mustafayev, was questioned during the trial and testified that he has been working as a district inspector. Further, his testimony corresponded to the protocol. – https://www.meydan.tv/az/article/saatlida-su-etirazindaki-zorakiliqlari-pisleyen-ictimai-feal-hebs-edildi/
In the course of the trial, Elvin Mustafayev did not plead guilty and testified that about 4 p.m. on 17 March 2023, while he had been talking over the phone, the police officers approached him and there was a small dispute between them. Elvin Mustafayev also testified that during his telephone conversation he had not used any foul language and obeyed the police demands.
Imran Agayev, a police officer, who was questioned as a witness at the trial, testified that at about 4 p.m. on 17 March 2023, while he had been on duty along with another colleague, Mirjalal Qiyasov, he saw a man shouting out uncensored obscene expressions. At that point, the police officers called him to order but the offender maliciously expressed his disobedience to their demands. For this reason, I. Agayev filed a report with the Saatly District Police Department, and as a result of which it was drawn up an administrative protocol for violation of the Articles 510 and 535.1 of the Code.
The Court did not find any aggravating or mitigating circumstances in Elvin Mustafayev’s case.
On 17 March 2023, the Saatly City Court issued a verdict: to convict Elvin Mustafayev for administrative offenses under the Articles 510 and 535.1 of the Administrative Offences Code of the Azerbaijan Republic and sentenced him to 25 days of administrative detention.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
In accordance with the Article 3.1 of the Code, only a person who has been found guilty of committing administrative offences under this Code and has committed a deed (action or non-action) that has all the other attributes of an administrative offence shall be brought to administrative responsibility and penalized.
In this case, we should define what exactly an administrative offense or misconduct is. Hence, an administrative offense (“misconduct”) is an illegal, wrongful act or omission that infringes on public order, citizens’ rights and freedoms, on the established system of governance, which is subject to administrative penalties.
– https://dic.academic.ru/dic.nsf/enc3p/48342
Based on the Article 5.1 of the Code, the individual and citizen’s rights and freedoms have the highest priority. All the State bodies, structures and officials that allowed the violation of such rights and freedoms are to be held liability.
In the given case the Court should have ascertained the following facts:
- a perpetrator of an administrative misdemeanor;
- вculpability of the person in committing an administrative offence;
- the circumstances aggravating and mitigating an administrative responsibility;
- the nature and extent of the damage caused by an administrative offence;
- the circumstances precluding proceedings related to administrative offences;
- other circumstances relevant to the accurate determination of the case, as well as the causes and conditions that led to the commission of an administrative offence (the Article 75 of the Code).
According to the police officers, Elvin Mustafayev was detained for using obscene language and malicious disobedience to their legitimate demands. However, in the case, there is not a single witness complaining about the violation of public order by Elvin Mustafayev.
At this point, let us turn to one of the Articles under which Elvin Mustafayev was convicted, it is the Article 510 of the Code. Thus, according to that Article, hooliganism is actions that violate public order but are not accompanied by the application or threat of violence against individuals, or destruction/damage of other people’s property. In its turn, the public order is a system of rules accepted in society, the attitude between people, established by the law, as well as the customs, traditions and ethical norms. –
https://ukodeksrf.ru/ch-2/rzd-9/gl-24/st-213-uk-rf
There was no evidence in the case that directly indicated that an offence had been committed. As a proof, the Court accepted the submitted administrative report, the police testimony, and E. Mustafayev’s testimony.
According to the Article 76.1 of the Code, it is recognized as proofs of administrative offence proceedings any factual information, on the basis of which the judge, authorized body (official) determines the presence or absence of misconduct, culpability of the person who committed an administrative offence, and other relevant circumstances relevant to the appropriate adjudication of the case. This data is ascertained according to the material clues, testimony of an individual, in respect of whom the proceedings have been conducted on administrative offence, victim’s and witnesses’ testimonies, other documents, testimony of special technical means, expert’s opinion, the protocol on administrative offence, and other protocols defined in this Code.
A Judge, an authorized body (official) examining a case of administrative misconduct assesses the evidence based on their internal belief, which is based on a complete, comprehensive and objective consideration of all case circumstances in their totality (the Article 84 of the Code).
It should be also recalled that the Courts operate in a typical way in such cases, i.e. they issue rulings on arrests without even considering or applying alternative measures of punishment (such as fines, community service, and so on). Moreover, the rulings are literally copied-pasted from the other administrative reports (in some cases, the same grammatical lapses are made), thus, the Courts show their dependence on the Executive authorities.
Otherwise, what else could we say about the fact that the Court acknowledged the police officers’ testimony and the report they drew up as absolute and irrefutable evidences, but failed to accept and consider the detainee’s testimony?
As stated above, at the trial, Elvin Mustafayev testified that he had been talking on the phone when the police officers approached him. It would not be difficult to check, at what time interval the phone conversation had taken place, what its content was, whether Elvin Mustafayev had used obscene language, and if he had, how loud it was and who could be disturbed at that moment. Furthermore, if we take into account the fact that Elvin Mustafayev did use abusive language, then, as the case law of the European Court of Human Rights (ECHR) states, an abusive language is one of the forms of self-expression. If it is so, then the police officers’ interference into the right to freedom of expression had no legal basis. Consequently, the police officers’ demands were not legitimate either.
Another important point is that the Court imposed the most severe administrative punishment, a 25-day detention. The Court was to consider an alternative penalty, as both Articles of the Code provide an alternative punishment in the form of a fine.
Thus, the unlawful and unjustified administrative detention has violated Elvin Mustafayev’s Right to Freedom and Security of the Individual, as guaranteed by the Article 28 of the Azerbaijani Constitution, as well as the Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Also, as a member of the Council of Europe, Azerbaijan is under an obligation to comply with the Judgments of the European Court of Human Rights (ECHR) as well as take into account its practice.