IN AZERBAIJAN, THE RIGHT TO FREEDOM IS NOT GUARANTEED TO DISSIDENTS
Anar Huseynov
Analysis of violation of law during Anar Huseynov’s judicial proceedings
Baku City Sabayil District Court
Case №3(009)-89/2023
21 January 2023
Presiding judge: Shahla Suleymanova
The person against whom an administrative record was issued: Anar Huseynov
The person who drew up the administrative protocol: Adalat Mammadov, the district policeman of the 8th Police Department of the Baku City Sabayil District
Black January or Bloody January is the month when on the night of 20 January 1990, the Soviet Army units entered the Azerbaijani capital of Baku and opened fire on civilians. More than a hundred civilians were killed.
Since then, 20 January has been a day of mourning for all Azerbaijanis. This day, many people attend the Alley of Honorable Burial in Baku. Due to the large number of attendants, people are usually allowed to enter in small groups.
Every year, the members of opposition parties, political, public activists, and journalists encounter the police barriers when entering the Alley of Honorable Burial. Annually, dozens of oppositionists have been arrested there. The year 2023 was no exception. Four members of the Popular Front Party of Azerbaijan (PFPA) were arrested that day.
On 20 January 2023, Anar Huseynov, a member of the PFPA, was detained by the police as a participant in a mourning procession. According to the PFPA information, Anar Huseynov was detained outside the building of the Cabinet of Ministers in the center of Baku. The detention was carried out by the people in civilian clothes following his visit to the Alley of Honorable Burial.
The leader of PFRA Ali Karimli wrote on his Facebook page:
“On January 20, on the Day of Sorrow, we intended to visit the Alley of Martyrs in an organized manner. But the police blocked our way. We were made to wait a long time. Then our column was cut into several parts and they began to let them through to the Alley of Martyrs in small groups. They did this in order to make our participation not look massive,” wrote PFPA leader Ali Karimli on his Facebook page.
https://www.turan.az/ext/news/2023/1/free/Social/en/652.htm
On 20 January 2023, Anar Huseynov was charged with committing an administrative offence under the Articles 510 (Failure to obey the legitimate demands of a policeman) and 535.1 (Disorderly Conduct) of the Code of Administrative Offences of the Azerbaijan Republic.
According to the administrative protocol, Anar Huseynov, being on Lermontov Street in the center of Baku, used foul language at about 18:10 on 20 January 2023. Despite the fact that the police officers attempted to call him to order, he did not obey their demands and committed an administrative offence under the Articles 510 and 535.1 of the Code of Administrative Offences of the Azerbaijan Republic.
Adalat Mammadov, the police district inspector, who drew up an administrative report, was questioned in the court and provided the testimony similar to the one in the report.
Raul Маmmadov, a detective officer of the criminal investigation department of the 8th police station, the Baku Sabayil district, who was interrogated as a witness in the courtroom, testified that on 20 January 2023 a man was loudly swearing while walking in the direction of Lermontov street from the Alley of Honorable Burial. Approaching the man and introducing themselves, the police officers demanded him to stop doing it. However, he did not obey and continued swearing, so he was detained and brought to the police station.
Anar Huseynov, interrogated in the court, testified that on 20 January, he took part in the mourning procession when the police forcibly divided the participants into several groups, so he got very angry and had a dispute with the policemen but he neither used foul language nor committed any offence.
On 21 January 2023, the Baku City Sabayil District Court found Anar Huseynov guilty of committing an administrative offence and sentenced him to administrative arrest for a period of 25 days.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
It is worth examining the sanctions of the articles brought against Anar Huseynov. Thus, according to the Article 510 of the Code,
“hooliganism, i.e. actions that violate public order but are not followed by the application or threat of violence against individuals or destruction or damage of property shall be punishable by a fine of fifty to one hundred manats, and if, under the circumstances of the case, taking into account the personality of the offender, application of these measures would be considered insufficient, an administrative detention for up to fifteen days should be imposed”.
In accordance with the Article 535.1 of the Code, malicious disobedience to a legal request of a police officer or military serviceman during the performance of his duties of the public order protection shall be punishable with a fine of two hundred manats for individuals, and if, based on the circumstances of the case and the personality of the offender, application of these measures is deemed insufficient, an administrative arrest for a term of up to one month should be imposed.
Thus, the sanctions of both Articles include alternative measures to detention. But we see in the ruling under commentary that the Court did not even consider those alternatives. The Court also failed to justify why the harshest measure of punishment, arrest, has been imposed on A.Huseynov, why he was sentenced to 25 days, and what circumstances influenced such a ruling.
The Azerbaijan Republic Code, Articles 510 and 535.1, have become the “favorite” ones for the police. They have been issuing administrative reports against the opposition politicians and activists for over a decade. Moreover, the court rulings are lacking in substantiation, any facts or evidence, and are based on bias and partiality.
Let us recall that an administrative sanction (Article 21 of the Code) “is applied in order to teach a person who has committed an administrative offense to obey the laws, as well as to prevent committing a new administrative offense by the person who committed the administrative offense, as well as by others”. An administrative arrest imposed on a political activist loses its true purpose and is used as a punitive measure against a dissident. This measure is intended to temporarily isolate an opposition activist from society. It is difficult to find a political activist in Azerbaijan who has not been subjected to administrative arrest throughout his active opposition activities.
An arrest that has no legitimate objective leads to a violation of the Right to Freedom.
According to the Article 28 of the Constitution of the Azerbaijan Republic,
- 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 European Convention on Human Rights and Fundamental Freedoms also protects an individual’s physical freedom. According to the the Article 5 of the European Convention on Human Rights states:
- 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;
The practice of the European Court of Human Rights (ECHR) has repeatedly highlighted the importance of the Right to Liberty in a democratic society. Deprivation of freedom must fulfil two requirements: legality and legitimacy. The deprivation of liberty must first of all be lawful under domestic law; in this respect, it is incumbent upon the National Judicial Authorities to interpret domestic law in the specific context.
The judgment of the European Court of Human Rights (ECHR) in the case Weemhoff v. Germany of June 27, 1968, says,
“Article 5, which begins with a statement regarding the right to liberty and security of individuals, defines in addition cases and conditions where derogation from this principle is permitted, especially for the sake of maintaining public order that requires the penalization of those who have committed criminal offenses.”
In the judgment of the ECHR, in the case of Kurt v. Turkey of May 25, 1998, it is written,
“The Court underlines the fundamental importance in a democratic society of the guarantees provided in the Article 5, the rights of an individual against unlawful arrest or detention imposed by the authorities. It is for this reason that the Court has repeatedly emphasized in its judgments that any deprivation of liberty must be exercised not only in accordance with the the national law fundamental procedural rules but also comply with the objectives of Article 5, i.e. to protect an individual from arbitrary detention imposed by the authorities. This imperative to protect an individual against any kind of abuse by the authorities is confirmed by the fact that Article 5(1) confines the grounds in which a person may be lawfully deprived of his liberty, although these grounds cannot be broadly interpreted, since they are exceptions within the fundamental guarantees of an individual’s freedom”. – https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Kurt%20v.Turkey%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58198%22]
Thus, the illegitimate arrest of Anar Huseynov violated the fundamental Right to Freedom in a democratic society. The Court did not meet the requirements of National and International Laws, in particular the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the precedents of the European Court of Human Rights, which are of a recommendatory nature for the Council of Europe member countries.