BEING IN THE OPPOSITION IN AZERBAIJAN MEANS BEING DEPRIVED OF FREEDOM
Kanan Zeynalov
Analysis of violation of law during Kanan Zeynalov’s judicial proceedings
Baku City Surakhani District Court
Case № 3(010)-4826/2023
5 October 2023
Presiding judge: Elnur Nuriyev
The person against whom an administrative record was issued: Kanan Zeynalov
Defender: Afgan Kazimov
The administrative report was drawn up by: Natiq Ismayilov, a District policeman at the 33rd Police Station within the Surakhani District Police Department
In September 2023, there were multiple arrests of the public and political activists as well as journalists right after the anti-terrorist operation in Nagorno-Karabakh. Among others, there have been arrested five activists of the Popular Front Party of Azerbaijan (PFPA) including the PFPA Chairman’s bodyguard, Kanan Zeynalov. In the past, Zeynalov was a bodyguard of the late ex-President, Abulfaz Elchibey, and he is a veteran of the first Karabakh war, in the course of which he was severely wounded.
On 5 October 2023, Kanan Zeynalov was detained by the people in civilian clothes and brought to the 33rd Police Department of the Baku Surakhani District Police Department; where an administrative report against him was drawn up, under which he was charged with an offence under the Article 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic.
- Zeynalov, interrogated in the course of the trial, did not plead guilty to the offence and testified that on 5 October 2023, he went to the store to buy bread, he was approached by the police officers and taken to the police station. He, having neither resisted in any way nor committed any offence, followed them to the car. Kanan Zeynalov linked his arrest to his political activity and asked the Court to exempt him from administrative responsibility.
The district police officer who drew up the administrative report against K. Zeynalov testified at the trial that on 5 October 2023, he addressed the Chief of the police station with a report in which he indicated that a certain Kanan Zeynalov had maliciously disobeyed to the police officers’ demands. For this reason, he was brought to the police station where it was drawn up an administrative protocol against the above individual.
Questioned in court as a witness, a Major Nurlan Abdullaev, the operative commissioner of the 33rd Police Department, testified that on 5 October 2023, at about 17.10 he had noticed a man who had been loudly shouting obscene words not particularly addressed to anyone. Approaching him he asked not to violate a public order. However, the man didn’t stop screaming and rudely pushed away the police officers who tried to calm him down. Then, the man started a fight with them. The policemen took the man to the station, where it was found out that his name was Kanan Zeynalov. It was drawn up an administrative protocol for violation of Article 535.1 of the Administrative Offences Code of the Azerbaijan Republic against K. Zeynalov.
An operative of the 33rd Police Department, a lieutenant, Alovsat Alizade who was questioned as a witness at the trial, provided the testimony similar to that of Nurlan Abdullayev.
The Court did not find any mitigating or aggravating circumstances in the administrative case.
On 5 October 2023, the Baku City Surakhani District Court issued a ruling: to find Qiyas Ibrahimov guilty on the charges and sentence him to 25 days of administrative arrest.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
According to the Article 535.1 of the Administrative Offences Code of the Azerbaijan Republic, malicious disobedience to the lawful request of a police officer or military man while on duties to protect a public order shall entail a fine of two hundred manat for individuals, and if, under the certain circumstances and taking into account an offender’s personality, the application of these measures is deemed insufficient, it should be applied an administrative arrest for the period up to a month.
As it appears, the Article stipulates an alternative punishment to arrest in the form of a fine. In order to be able to apply an arrest to offender, it is necessary to have a condition of insufficiency of such a measure as a fine.
The judgement on the arrest of K. Zeynalov there is nothing said about the fact that the imposition of a fine would not be sufficient. The Court, by virtue of its legal duties, should consider alternative measures of punishment other than arrest, particularly since the Article under which K. Zeynalov was charged provided an alternative punishment in the form of a fine. Moreover, the charge was brought under the Code of Administrative Offences rather than the Criminal one. To deprive a person of liberty, even for 25 days, without respecting the principles of presumption of innocence, legality and equality of all before the law, it means at least to violate his right to freedom and personal inviolability.
The principle of respect for human and civil rights, and freedoms is one of the first principles in the Code of Criminal Procedure.
According to 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.
Despite the existence of this legal Norm, this Norm is almost never applied, especially in such cases as prosecution of political and public activists and opposition-minded citizens.
According to the Article 8.2 and 8.3 of the Administrative Offences Code of the Azerbaijan Republic, the person being called to account for administrative violation has not to prove his guiltlessness. Doubts regarding the guiltiness of the person called to account for administrative violation shall be resolved in his favour.
There are a number of contradictions in this case, doubts about the guilt of K. Zeynalov, however none of them were interpreted in his favour.
Thus, the witnesses in the case are only the police officers who brought him to administrative responsibility. They were concerned in the outcome of the case, and therefore, the Court should have been alert and assessed their testimony in conjunction with the other evidence.
According to the Article 67.2 of the Administrative Offences Code of the Azerbaijan Republic, any witnesses are obliged to provide just truthful testimonies. Otherwise, a witness may be held administratively liable, of which he/she is warned before testifying.
Apart from the police testimony, there was no any other evidence of Kanan Zeynalov’s guilt in the case.
According to the Article 75 of the Administrative Offences Code of the Azerbaijan Republic, the following circumstances must be determined in the case:
- the occurrence of an administrative offence (whether an administrative offence has taken place);
- a individual who has committed an administrative offence;
- guilt of an individual in commission of an administrative offence;
- the circumstances aggravating and mitigating administrative responsibility;
- the nature and extent of the damage caused by the administrative offence;
- circumstances precluding proceedings on cases of administrative offences;
- other circumstances significant for the proper determination of the case, as well as the causes and conditions that contributed to the occurrence of an administrative offence.
As evident from the ruling, the circumstances that would exclude administrative responsibility, as well as other circumstances, were not considered by the Court.
One of the proofs for administrative offences is a testimony of a person brought to responsibility (Article 78.1 of the Administrative Offences Code of the Azerbaijan Republic). Despite the fact that K. Zeynalov clarified to the Court that he had not committed any offence, not disobeyed the police and linked his arrest to some political activity, the Court did not respond to that testimony in any way and failed to provide any legal assessment.
The evidences in the case were obviously insufficient, as stated above, the Court considered only the testimony given by the police officers who had been directly involved in the case.
In such a case, the Judge, an authorized body (official), whose proceedings a case of administrative misconduct is under consideration, may adopt a ruling on requesting additional information necessary for the case settlement (Article 83.1 of the Administrative Offences Code of the Azerbaijan Republic).
The assessment of evidence is carried out in this way: a judge, an authorized body (official), examining a case on administrative misconduct, shall assess the evidence upon his internal conviction, based on a comprehensive, exhaustive and objective examination of all the circumstances relevant to the case in its totality.
As we can see, the lack of evidence in the case put under question the legality and validity of the Court ruling, which is based just on the police officers’ testimonies.
It is an interesting fact that in the summary of the ruling it was written that the arrest of Khayam Aliyev (!) began at 5.15 p.m. on 5 October 2023. The wrong spelling of the detainee’s name and surname indicates that that ruling was just copied from some other order, which the Court did not even bother to modify.
As per the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5, “everyone has the right to liberty and security of person. No one shall be deprived of his liberty except in such cases and in such manner as may be prescribed by the law.” The Article further lists those exhaustive examples of cases in which arrest may be lawful.
For a deprivation of liberty to be in conformity with the European Convention, it must fulfil two conditions: legality and lawfulness. The deprivation of liberty must be in accordance with a domestic law; in this respect, it is incumbent on national judicial authorities to interpret domestic law in a particular area.
The domestic proceedings must be fair and appropriate. The deprivation of liberty must also be legitimate, i.e. it must correspond to the purpose provided for in one of the cases from the comprehensive list set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5.
In the case of Kanan Zeynalov, the legality and lawfulness were not respected, as the arrest did not have a legitimate ground but fulfilled other goals not specified in the Law.
The judgment of the European Court of Human Rights (ECHR) in the case of Guzzardi v. Italy of 6 November, 1980, it is said,
“In proclaiming the ‘right to liberty’, Article 5(1) indicates a personal liberty in its classical sense, i.e. an individual’s physical liberty. Its purpose is to ensure that no one could be arbitrarily deprived of that freedom” –
https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-57498%22]}
Thus, it can be concluded that Kenan Zeynalov had been unlawfully detained, the Court violated his right to freedom issuing its ruling; the Right to Freedom is enshrined in the Article 28 of the Azerbaijani Constitution, as well as in the Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the precedents of the European Court of Human Rights.