Baku City Nasimi District Court found Nijat Nizamov guilty
The analysis of violation of the Law during Nijat Nizamov’s
Baku City Nasimi District CourtJanuary 16, 2019
Case #3 (006)-130/2019
Judge: Azer Tagiyev
A person against whom a protocol on an administrative violation was drawn up: Nijat Nizamov
A person who drew up a protocol on an administrative violation: district police officer of Baku City Nasimi District Police Department #22: Elman Mamedov.
Nijat Nizamov is a member of the Youth Committee of Azerbaijan Popular Front Party, and is also a member of “Muslim unity” movement. He constantly participates in the opposition rallies, and actively criticizes the policy of Ilham Aliyev on social networks.
Police repeatedly detained N. Nizamov. He was brought to administrative responsibility several times.
On January 15, 2019, there was a trial at Baku Court on Grave crimes on so-called “unlawful financing of Azerbaijan Popular Front Party”. On the dock were the members of this party: Agil Maharamli, Babek Hasanov, Ruslan Nasirli, Saleh Rustamov and his nephew Vidadi Rustamov.
The members of Azerbaijan Popular Front Party, the representatives of the diplomatic missions, human rights defenders and activists of civil society gathered near the court. The courtroom could fit in 50 persons. Firstly, the relatives of the defendants, diplomats were allowed to enter, and then the members of the Popular Front Party and journalists. Many who wished to attend the trial remained behind court doors. However, they did not leave after the court began. They went to the nearby park, whereat they started waiting for news from the relatives and the lawyers of the defendants. The court building itself and the neighboring streets were cordoned off by the police and police cars.
Half an hour after the beginning of the trial, the police approached to the people in the park and demanded to vacate the territory, arguing that there are too many people in the park, and that could lead to demonstration. Several people were removed from the park by force, and pushed into police cars, and taken to Baku City Nasimi District Police Department #22.
Detainees were kept at the police department for the period of 24 hours, and on the following day, they appeared before the court. On January 16, 2019 Baku City Nasimi District Court found them guilty in committing offences under article 535.1 (insubordination of legal request of policeman) of the Code of the Azerbaijan Republic on Administrative Violations . Several people received punishments in form of administrative arrest, and others were convicted to fines. Nijat Nazimov was also found guilty and convicted to fine for amount of 200 manat.
Commentary by an expert lawyer:
The court decision is unlawful and groundless. All decisions that were made on January 16, 2019, by Baku City Nasimi District Court are identical in content. In Nijat Nizamov’s decision, it is indicated that he repents of his deed and promises never to commit such violations again. In fact, none of the detainees said this at the trial. According to the law, the ground to bring a person to the administrative responsibility is a commission of a deed (action or inaction) having all signs of an administrative violation. Besides, the most important principle is the respect for rights and freedom of human and citizen.
Persons who were in the park near the court, did not violate public order, and did not commit administrative violations. In fact, police violated the requirements of the Police Act of the Azerbaijan Republic. Duties of Police Officers are indicated in Section 23 of the Police Act of the Azerbaijan Republic. According to Section 23:
I. In the course of enforcing his/her authority to restrict right of freedom, the police officer shall be bound as follows:1) to use of safe methods and means in the course of detaining or arresting a person, except for the cases of necessary self – defence and last resort;2) to introduce himself/herself and show official identity document to the detained or arrested person;3) to inform of the grounds of detention immediately after detention, as well as to explain the right of rights not to testify against oneself or one’s relatives and the right to use legal aid;4) to convoy individuals arrested or detained to the police headquarters immediately, to make the record of the fact of arrest or detention according in order provided by the legislation of, the Republic of Azerbaijan; to introduce these records to the persons detained or arrested; and to have each fact of arrest or detention registered at the respective police department;5) to inform close relatives of detained or arrested person, as well as to notify their employers or education institutions about his/her arrest studies upon his/her demand (in cases of elders, juveniles and persons who by the virtue of the mental disorder are not capable of doing that, the management of the detention place shall inform family members subject to his/her own initiative) 6) to ensure the right of using legal aid of the detained or arrested person upon his/her demand, as well as in case of mandatory participation of the legal counselor;7) to treat the detainee or arrestee with due respect to his person and dignity, with particular attention being paid to women, minors, elders, ill and disabled persons;8) to release detained or arrested person subject to the court (judge) warrant, as well as, upon expiration of the terms of detention.
II. Police office shall ensure other rights of the detained or arrested person as provided by the legislation of the Azerbaijan Republic.
According to Section 27 (8) of the Police Act of the Azerbaijan Republic: to submit to the respective prosecutor a written statement concerning the use of private force. The private force was used towards all detainees, however, there are no documents in the case files about the notification of the prosecutor.
According to Section 13 of the Police Act of the Azerbaijan Republic : while applying to any person, a police officer shall introduce himself/herself by quoting family name, forename, special rank and position and presenting his/her official ID.
According to Article 90.2 of the Code of the Azerbaijan Republic on administrative violations: Administrative Protocol is signed by official who had developed it and the person arrested. Should the person arrested refuse to sign protocol appropriate note in the protocol shall be made. The arrested person holds the right to provide explanations and comments on protocol content as well as indicate the reasons for which he refuses to put his signature. Such explanations and comments shall be attached to the protocol. The detainee is provided with the copy of the protocol.
Nijat Nizamov refused to sign protocol, however it was not noted in the protocol. Besides, he was not provided with a copy of the administrative protocol.
Court did not examine what exact action of Nijat Nizamov was recognized as administrative violation. Besides, it is not clear from the court decision, if the demand of the police was in accordance with the current legislation.
Article 91 of the Code of the Azerbaijan Republic on administrative violations specifies the measures, which should be taken by the investigation body. According to Article 91: Investigation body should’ve taken following measures:
· shall immediately advice the arrested person on reasons of his arrest, explain his rights, · shall let the person arrested to review the protocol on administrative violation; · on arrested person request to create condition for his contact with close relatives, or with administration, where he studied or worked, or to inform lawyer; · in relations with the person arrested shall maintain the respect to his personality and dignity; · to let the person arrested to contact with his lawyer and to create condition for meeting; · in the absence of the personal lawyer, he should be provided with the list of advocates who provide legal consulting services at the places of arrest and other entities, to contact with chosen lawyer and to create condition for meeting. It is necessary to underline here that none of the indicated rights were not provided to the detainee.
Court did not examine if the protocol was drawn up in accordance with the provisions of the law, if the detainee was provided with his rights, if all evidences alleging breach of law were collected, and if they are enough to find a person guilty. To court did not present any evidence that would prove the guilt of the detainee, except the administrative protocol. During his detention, there were many people near N. Nizamov who could confirm that he did not breach the law and the demand of the police was unlawful, police were fulfilling someone’s unlawful order.
In addition to the norm of the National Law, court also violated the norms of International Law. In particular, it violated Article 5 (1) and 6 (1) of European Convention for the Protection of Human Rights and Fundamental Freedoms.
According to Article 5 of European Convention: 1. 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 right to liberty and security of Nijat Nizamov was violated by the police. N. Nizamov did not commit any offence and did not plan to commit any offence and to flee after doing so.
According to Article 6 of European Convention: 1. In the determination of his civil rights rand obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Nijat Nizamov was not provided with a fair and impartial trial, as the court did not fulfill its obligation, indicating in the law.