FREEDOM OF SPEECH AND THOUGHT IS ALSO A SUBJECT TO PROSECUTION IN AZERBAIJAN
Afiyaddin Mammadov
Analysis of violation of law during Afiyaddin Mammadov’s judicial proceedings
Baku City Khatai District Court
Case № 3(011)-4517/2022
12 November 2022
Presiding judge: Bakhtiyar Mammadov
The person against whom an administrative record was issued: Afiyaddin Mammadov
Defender: Zubeida Sadigova
Born in 1995, Afiyaddin Mammadov, a board member of the Movement “Democracy 1918”, was detained on 11 November 2022. That day, Mammadov’s relatives and friends could not find him, his phone was turned off. Another member of the “Democracy 1918” Movement, Elvin Feyruzzade disappeared as well. However, he was soon released from the police. According to E. Feyruzzade, he was taken to the Baku City Police Department where the police had fully checked his mobile phone.
Ahmed Mammadli, the Chairman of the “Democracy 1918” Movement (previously under administrative detention for 30 days) told the press that he and Afiyaddin Mammadov had agreed to set up a conference call via the Internet but the latter did not get in touch and failed to connect.
According to him, a few days ago Afiyaddin Mammadov spoke harshly about the statements about Iran made by the President Ilham Aliyev, and the pro-government press published that critique in a form that was beneficial for the government. Ahmed Mammadli also expressed the suggestion that both members of the Movement might have been kidnapped by the intelligence service.
In this regard, Elshad Hajiyev, the Head of the Azerbaijani Media and Public Relations Department of the Ministry of Internal Affairs, told to the radio “Voice of America” that Afiyaddin Mamedov and Elvin Feyruzzade had indeed been summoned to the police authorities and following an investigation they had been released. –
https://www.amerikaninsesi.org/a/demokratiya-1918-members/6831548.html
On 12 November 2022, in respect of Afiyaddin Mammadov it was drawn up an administrative protocol by Davud Soltanov, a district inspector of the 37th Police Department of the Baku Khatai district. In accordance with the protocol, on 12 November 2022, the police officers noticed suspicious behavior of Afiyaddin Mammadov, they approached him, introduced themselves and asked to show them his documents. However, A. Mammadov refused to do it. Then, the policemen asked him to follow them to the police station, in response to which A. Mammadov replied negatively as well. Thus, Afiyaddin Mammadov did not obey the lawful demands of the police officers.
Afiyaddin Mammadov refused to testify at the trial. Questioned at the court, the policeman Davud Soltanov provided testimony similar to the written one in the administrative report
On 12 November 2022, the Baku Khatai District Court convicted Afiyaddin Mammadov on administrative offence under the Article 535.1 (Disorder Conduct) 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. According to the Article 3.1 of the Code On administrative violations of the Azerbaijan Republic, only such person, who was declared guilty for committing administrative violations under this Code and had performed a deed (action or inaction) having all other signs of an administrative violation, shall be called to account and punished.
It means that in order to accuse a person of committing an administrative offence, there must be evidence that leaves no doubt in the mind of an outside observer that the person has been guilty of the offence.
The Azerbaijan Republic Code of Administrative Offences likewise any other law lists the principles of the legislation on administrative offences. The most important Principle is the respect of human and civil rights and freedoms.
According to the Article 5 of the Code On administrative violations 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.
⦁ This Code provides prevention by the state authorities (officials) violation of rights and freedoms of human and citizen and respect for these rights and freedoms.
The Principle of Equality before the Law (the Article 7 of the Code) is another important Principle of Administrative Proceedings. The persons who have committed administrative violations are equal before the Law and are called to account regardless of the race, nationality, religion, language, sex, origin, property and official status, believes and other circumstances. No one may be subjected to administrative liability or exempted from administrative liability on the grounds set out in this Article (Article 7.1 of the Code).
According to the Article 75 of the Administrative Offences Code, in a case of administrative misconduct, it should be determined:
⦁ the event of an administrative offence (whether an administrative offence has occurred);
⦁ a perpetrator of an administrative offence;
⦁ the circumstances aggravating and mitigating administrative liability;
⦁ the nature and extent of the damage resulting from the administrative offence;
⦁ the guilt of the individual committed an administrative offence;
⦁ circumstances precluding proceedings in cases of administrative offences;
⦁ other relevant circumstances for the appropriate determination of the case as well as the causes and conditions that contributed to the administrative offence commission.
Any factual information based on which the judge, competent authority (official) determine the existence or absence of an administrative offence, the guilt of an individual who committed an administrative offence and other circumstances relevant to the proper determination of the case shall be considered as evidence in an administrative misdemeanour case. Such evidence shall be ascertained on the basis of evidentiary items, explanations provided by a person against whom an administrative offence proceeding is being conducted, a victim’s or witness’ testimonies, other documents, depositions using special technical means, an expert’s opinion, an administrative offence report and other reports defined in the Code of Administrative Offences of the Azerbaijan Republic (Art. 76 of the Code).
Let’s consider the evidentiary grounds in this particular administrative case.
So, as mentioned above, the administrative protocol was drawn up by the district police officer Davud Soltanov who subsequently testified before the court. Afiyaddin Mammadov. in his turn, refused to testify.
Therefore, the judicial ruling was based only on the police officer’s administrative report and his own testimony. Is this evidence sufficient to charge someone with disobeying a police officer’s lawful demands and to impose the harshest administrative penalty i. e. detention for a period of one month? The obvious answer is “no”.
When making his decision, the judge obviously took into account Mammadov’s political and public activities, his criticism of senior government officials, his participation in various protests, and so on.
In order to grasp the court’s bias, it is sufficient to note that two members of the “Democracy 1918” Movement had been detained the very same day, however, one of them had been released. The day before the arrest of Afiyaddin Mamedov, another member of the Movement, Orhan Zeynalli, was arrested for 30 days, and on 22 September 2022, the Movement’s Chairman, Ahmed Mammadli, was also detained for 30 days. All these facts illustrate the policy of the authorities to suppress the dissenting voices in the Azerbaijani society.
The judicial ruling is preposterous and not supported with any kind of evidence.
The European Court of Human Rights (ECHR) judgment in the case of Atyukov v. Russian Federation dated 9 July 2019, pointed out that the only evidence was the testimony of the police officer who had drawn up the administrative report and initiated the administrative proceedings on his own account.
A judge, a competent authority (an official) examining a case of administrative offence shall assess the evidence in accordance with his/her inner knowledge, based on a thorough, comprehensive and objective examination of all circumstances of the case.
There was no concrete incontrovertible evidence in Afiyaddin Mammadov’s case in order to find him guilty and convict to 1 month of administrative detention.
The court failed to consider other measures of administrative punishment not related to the detention. Thus, in respect of Afiyaddin Mammadov it was at least a violation of the Right to Liberty guaranteed by the Article 28 of the Constitution of Azerbaijan and Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Azerbaijan, as a member of the Council of Europe, has failed to implement the recommendations of the European Court of Human Rights on compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms.