EVERY YEAR AFIADDIN MAMMADOV IS DEPRIVED OF HIS LIBERTY FOR 30 DAYS
Afiaddin Mammadov
Analysis of violation of law during Afiaddin Mammadov’s judicial proceedings
Baku City Yasamal District Court
Case №3(004)-1024/2023
21 February 2023
Presiding judge: Huseyn Safarov
The person against whom an administrative record was issued: Afiaddin Mammadov
Defenders: Zubeyda Sadiqova
On 20 February 2023, the Baku Court of Appeal was hearing the case of Bakhtiyar Hajiyev, an arrested public activist. That day the members of opposition parties and organizations, journalists and public representatives gathered near the administrative courthouse. Afiaddin Mammadov, a member of the opposition Movement “Democracy 1918” (“D18”), was also outside the courthouse awaiting a verdict. At the end of the trial, young people, including Mammadov and his colleague from “D-18” Samir Sultanov, started shouting out against the unlawful decision of the court. At the end of the trial, young people, including Mammadov and his colleague from “D-18” Samir Sultanov, started shouting out the protest slogans against an illegal court ruling. Both were detained by the police. The following activists, Ali Malikov, Narmin Shahmarzade, and Nemat Abbasov had also been detained but they were event released. Yet, the administrative protocols were drawn up against A. Mamedov and S. Sultanov.
Afiaddin Mammadov was charged with administrative offence 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.
It should be pointed out that Afiaddin Mammadov had been previously brought to the administrative charge. Thus, on 12 November 2022, the Baku Khatai District Court issued a ruling against Mamedov on the basis of which he was found guilty of committing an administrative offense under the same Article 535.1 of the Administrative Offences Code of the Azerbaijan Republic and sentenced to 30 days of administrative detention. See: https://www.ipd-az.org/ru/freedom-of-speech-and-thought-is-also-punishable-in-azerbaijan/
According to A. Mammadov, during his detention he was subjected to mistreatment by the police. – https://www.azadliq.org/a/d18-afiyeddin-memmedov/32145580.html
According to the police report dated 20 February 2023, A. Mammadov, being near the Baku Court of Appeal, was loudly yelling thereby disturbing the people around him. The police officers urged him to be quiet but he did not obey them. Then, A. Mammadov was detained and brought to the 27th Police Department of the Baku Yasamal district. As it was also stated in the report, he continued his illegal actions and used insulting language addressed to the police officers even on the way as well as at the police station.
Afiaddin Mammadov, interrogated during the trial, pleaded not guilty to the charges and testified that outside the Baku Court of Appeal, he protested and shouted slogans against the illegal court ruling along with his friends, thus exercising his right to freedom of assembly. The police intervened, detained him by force and took him to the police station. He also testified that he either did not insult anyone or did not commit any illegal actions.
Isa Qurbanaliev, an officer of the Post Patrol Service of the Baku Yasamal District Police Station, questioned as a witness at the trial testified in a similar manner to the administrative protocol.
Kenan Mammadov, a district inspector of the Baku Yasamal District Police 27th Station, who drew up an administrative protocol, said that on 20 February 2023, Afiaddin Mamedov together with Samir Sultanov shouted loudly near the Courthouse, thereby they disturbed people around and violated the public order. He also testified that A. Mammadov and S. Sultanov behaved aggressively, used foul language and showed disobedience to the legitimate police officers’ demands. Therefore, they were brought to the police station.
On 21 February 2023, the Baku City Yasamal District Court issued a verdict: to convict Afiaddin Mammadov for administrative offenses under the Articles 510 and 535.1 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.
In the Court ruling, it is stated that Afiaddin Mammadov was detained near the Baku Court of Appeal building, he was shouting slogans alongside with other like-minded people. A.Mammadov was charged under the Article 510 ( hooliganism) of the Administrative Offences Code of the Azerbaijan Republic.
The subjective side of hooliganism is characterized as guilt in the form of direct intent and special motives. The hooligan motive is manifested through the desire of the guilty person to oppose himself to others, demonstrate a disdainful attitude towards them. The perpetrator should realize that he grossly violates the public order and demonstrates a clear disrespect to the society. An important role is assigned to the motive of the offense, hooligan impulses. Without such motives, the actions that violate public order do not constitute hooliganism as a crime.
Afiaddin Mammadov’s motive was to protest against the unlawful judicial ruling. It is also confirmed by the fact that his like-minded supporters standing next to him also expressed their protest and demanded the release of the detainee. Neither A. Mamedov, nor others had a motive to violate public order, they had no hooligan motives. Furthermore, there is not a single witness in the case (other than the police officers directly involved in the case) or any victim who would confirm or complain about Afiaddin Mammadov’s unlawful actions. Yelling slogans that do not call upon the violence, war, and so on are not unlawful offenses. Consequently, the police officers’ appeals to stop these actions are not lawful. Therefore, A. Mamedov’s actions do not constitute administrative offences defined by the Articles 510 and 535.1 of the Administrative Offences Code of the Azerbaijan Republic.
The qualification of the activists’ lawful practices as an administrative offense has cost them their freedom. The Right to Freedom is guaranteed by the Constitution of Azerbaijan Republic. According to the Article 28 of the Constitution of the Republic of Azerbaijan,
- Everyone has the right for freedom.
- Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.
The Article 5 of the Administrative Offences Code of the Azerbaijan Republic states:
5.1. 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.
5.2. 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 International Juridical Norms also point to the Right to Liberty. According to the Article 5 (1) of the 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 the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.
In the judgment of the European Court of Human Rights (ECHR) in the case of Fox, Campbell and Hartley v. the United Kingdom of 27 March 1991, it stated,
“Reasonableness” of the suspicion upon which the detention must be based is an essential element of the protection afforded by the Article 5 para. 1 (c) against arbitrary deprivation of liberty. (…) The existence of a reasonable suspicion presupposes the existence of facts or information which could convince an objective observer to believe that a person could have committed the offence. What may be considered reasonable depends, however, on the combination of circumstances”. https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22fox%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57722%22]}
Besides the violation of the right to liberty, there was an unjustified interference in the right to freedom of expression committed by the police. As mentioned above, the activists held a spontaneous demonstration following the ruling near the courthouse. The slogans did not violate the law or urge for violence or war. They were related to the demand to release the detainee.
According to the Article 47 of the Constitution of the Republic of Azerbaijan,
- Everyone may enjoy freedom of thought and speech.
- Nobody should be forced to promulgate his/her thoughts and convictions or to renounce his/her thoughts and convictions.
According to the Article 10 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms,
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
“According to the Court’s well-known established jurisprudence, freedom of expression constitutes one of the supporting pillars of a democratic society, a fundamental condition for its progress and self-fulfillment of each of its members. Freedom of expression encompasses not only “information” or “ideas” that are favourably received or regarded as innocuous or neutral but also those that offend, shock or disturb. These are the demands of pluralism, tolerance and liberalism, without which there is no “democratic society. Hence, exceptions to its exercise call for a restrictive interpretation, and any interference must be ascertained in a convincing manner” (Precedents of the European Court of Human Rights, Michele de Salvia, St. Petersburg, 2004).
The ruling of the European Court (ECHR) in the case of Ozgur Gundem v. Turkey dated on 16 March 2000, stated,
“The Court recalls the importance of freedom of expression, as a precondition for the well functioning of democracy. The real and effective exercise of this freedom depends not only on the duty of the State to refrain from all interference but may require positive measures of protection, even in the interpersonal relations of individuals. In order to determine whether there is a positive undertaking, one must consider; the principle at the core of the entire Convention, the fair balance to be struck between the common interest and the individual’s. The scope of this obligation inevitably varies according to the diversity of situations in the Contracting States, the difficulties encountered by the police in carrying out their functions in modern society, and the choices to be made in regard to priorities and means. This obligation must no longer be interpreted in a manner that would impose an unbearable and excessive burden upon the authorities.” –
The Court’s biased attitude to Afiaddin Mammadov was demonstrated by the fact that the Court did not take into account the lack of sufficient evidence of his guilt; as usual, the Court only referred to the police officer’s testimony who actually drew up the report. Apart from these testimonies, the Court had no other evidence of A.Mammadov’s guilt. The Court ruling also states that the Court referred only to the administrative report, the report and A.Mammadov’s testimony in the case. But despite that, the Court accepted only the police officers’ testimonies and their documents. One-sided, biased consideration of the case! And as a result the Court deprived Afiaddin Mammadov of the Right to Freedom and Freedom of Expression.