Yasamal District Court Found Guilty of Azer Gasymly

Yasamal District Court Found Guilty of Azer Gasymly

The Analysis of violation of law during Azer Gasymly’s judicial proceedings

The Yasamal District Court, Baku

Criminal case № № 3(004)-842/2018
May 29, 2018

Judge: Azer Tagiyev

The person whoever made the administrative report: community police officer from 26  Police Department of Yasamal District of Baku City Vusal Kerimov

The person against whom the administrative report was drawn up: Azer Gasymly

Defender: Elchin Sadigov

On May 28, 1918 the Interim National Council of Muslims of Transcaucasia (National Council of Azerbaijan) proclaimed the foundation of the independent Azerbaijan Democratic Republic (ADR). On April 27, 1920 the units of the 11th Red Army crossed the border of ADR and entered Baku on April 28. The newly created Azerbaijan Democratic Republic existed only 23 months and was occupied by troops of the Soviet Russia. The Azerbaijan Democratic Republic was the first secular democratic state of the Islamic world, as well as the first state in the Islamic world and in the East where granted women the right to elect and be elected. 

In 2018 in Azerbaijan celebrated the 100-year anniversary of the ADR. The opposition parties and members of civil society paid more attention to the celebration of the 100 anniversary of the first republic. The authorities were annoyed by the attention of the civil society to the heroic past of the Azerbaijani people, prevented rallies and processions of citizens to the monuments of leaders of the ADR, prevented even singing hymn and the raising of national flag of Azerbaijan.

On May 28, 2018 on day of proclamation of ADR opposition “Real Alternatives” (ReAl) Party and a number of representatives of civil society decided to hold in Baku a solemn procession from the underground station Ichari Shahar to the monument of Independence on the central Istiglal Street. Distance from the underground station to a monument no more than 700 meters.
On social network Facebook were actively calls to participation in the event dedicated to the 100 anniversary of the republic.
On May 28, 2018 at 12:00 participants of the procession gathered near the underground station Icheri Shaher and moved down the Istiglal Street to the monument. Laying flowers, participants of the action sang the national anthem and began to the central street. On M. Rasulzade Street (M. Rasulzade – one of the founders of the first republic) in the center of Baku to the participants of procession approached the police officers. One of the leaders of the ReAl Party Azer Gasymly explained to the police officers that the procession is organized in honor of the 100-year anniversary of ADR and the demonstrators did not violate the law. The police officer demanded to bring down national flags. In response A. Gasymly said that he can not appeal to pull national flags in the 100th day anniversary of the raising of this flag. The police officers blocked the way and prevented participants of the action to the boulevard. After that, participants of the action dispersed.
On May 29, 2018 one of the organizers of the rally Azer Gasymly was summoned to the Prosecutor General’s Office, and then was brought to the Police Department of Yasamal District of the Baku City, where he was kept about an hour. All the questions raised by law enforcement officials to A. Gasymly concerned only the procession on May 28, 2018.
Azer Gasymly was brought from Police Department to Yasamal District Court. During the trial, Azer Gasymly made the political statement and expressed his attitude to the regime in Azerbaijan with one sentence: “This is Gestapo’s regime”.
Consideration of the case of Azeri Gasymly was requested to the judge of Yasamal District Court Azer Tagiyev. It should be noted that judge A. Tagiyev previously dismissed the complaint of the head of the Azerbaijan Branch of the radio Voice of America, photographing an action of students near the Baku State University in 2014 earlier; elected arrest as a preventive measure against head of the news agency TURAN Mehman Aliyev in 2017; rejected the appeal of the journalist Fargana Novruzova who filmed the demolition of Haji Javad mosque in the center of Baku City and faced with brutality of the ex-Chief Executive Power of Yasamal District in 2017; but considered the complaint by way of private prosecution of the deputy dean of the Faculty of Theology of the Baku State University Nigyar Ismaylova against the student of this faculty Zeki Miragayev who through the mass media accused dean’s office of corruption and taking  bribes from students.
On May 30, 2018 judge Azer Tagiyev based just only testimony of the police officers and found Azer Gasymly guilty of an offence under the Article 535.1 (insubordination of legal request of policeman) the Code on Administrative Violations of Azerbaijan Republic, and sentenced to 30 days of administrative detention.

Commentary by an expert lawyer:
The court decision is unlawful and groundless. The right to freedom of Assembly citizens of the Azerbaijan Republic guarantees the article 49 of the Constitution of Azerbaijan. According to this article:
I. Everyone has the right for meetings.
II. Everyone has the right, having notified respective governmental bodies in advance, peacefully and without arms, meet with other people, organize meetings, demonstrations, processions, place pickets.
The same standards exist in international legislation. In April, 2002 Azerbaijan ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. Since then, Azerbaijan was committed to obligations to respect the rights and freedoms provided by the European Convention.
According to the article 11 (1) of the European Convention, everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

Paragraph 2 of this article provides a clear list of restrictions on the right to freedom of assembly. The right to freedom of assembly may be restricted in the following cases: 

            · no restrictions shall be placed on the exercise of these rights other than such as are  
              prescribed by law and are necessary in a democratic society
  · in the interests of national security or public safety, 
  · for the prevention of disorder or crime, 
  · for the protection of health or morals 
  · for the protection of the rights and freedoms of other

The right to freedom of assembly is a fundamental right in a democratic society and, along with the right to freedom of thought, conscience and religion, one of the bases of a democratic society. 

Meetings, rallies, processions and demonstrations of citizens are forms of direct democracy. They can be carried out on purpose: public discussion and expression their views to the actions or inaction of public authorities and local government; in connection with the events in socio-political and socio-economic life of the state, society and world at large; to draw attention to the decision of pressing socio-economic and other problems of the state, society, local territorial community; a public protest against the decisions and actions carried out by the central executive and local authorities against individual events of life of the state or the world at large or on the contrary – their support.

In the judgments of European Court of Human Rights (ECtHR) it was repeatedly stated that democracy is the only basis of a democratic society. The European Convention for the Protection of Human Rights and Fundamental Freedoms has been designed for development and maintain of ideals and values of a democratic society. The ECHR has repeatedly stressed that democracy is the only political model under the European Convention and compatible with it.       

Despite the fact that article 535.1. The Code of the Administrative Offences contains alternative sanctions such as fine in 200 AZN, the court did not consider these measures and adopted a decision on the maximum duration of the arrest, not taking into account personality of A. Gasymly. It should be noted that Azer Gasymly is a doctor of political sciences, married, has the care three young children and positive reputation in society.

In addition, the court issued an order on the maximum duration of the arrest based just only testimony of the police officers. At the time of conversation A. Gasymly with a police there were participants of the rally, who could be called as witnesses in the case. However, they did not call as witnesses. The court also did not take into account the testimony of the Azer Gasymly.

According to the Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in cases and in accordance with a procedure prescribed by law. Purpose of the administrative arrest of Azer Gasymly was punish for participations in the rally dedicated to the 100-year anniversary of ADR, punishment for his political activity. The arrest has not pursued a legitimate aim under national and international law