THE BELIEVER’S PRESUMPTION OF INNOCENCE RIGHT AND FAIR TRIAL HAVE BEEN ONCE AGAIN VIOLATED
Rustam Qasimli
Analysis of violation of law during Rustam Qasimli’s judicial proceedings
Baku City Sabayil District Court
Case № 3(009)-1675/2024
24 July 2024
Presiding judge: Rana Qafarova
The person against whom an administrative record was issued: Rustam Qasimli
Defender: Zibejda Sadygova
With the participation of Emin Huseynov, a police captain from the 9th police station from the Sabail District Police Department.
On 23 July 2024, Rustam Qasimli (born in 1993), along with his acquaintance, were distributing anti-war peace leaflets at the Fountain Square in the center of Baku. They were approached by the police officers and then taken to the local police station.
An administrative report was made against Rustam Qasimli for allegedly violating 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.
- Qasimli, interrogated at the trial, did not plead guilty to the charges and said that on 23 July 2024, they had been distributing the anti-war leaflets while holding the posters on the same topic and flags thereby wishing to share their convictions with the people around them. They were approached by the police officers who demanded them to stop it. The officers did not explain why their actions were unlawful. Qasimli’s acquaintance captured all that on video the police officers’ actions and the following confrontation. Then, Qasimli was taken to the police station. He also testified that he was subjected to physical and psychological pressure exerted by the police officers.
The policeman from the Sabali district 9th police station questioned at the trial said that on 23 July 2024, at about 6.50 p.m., R. Qasimli violated the public order at the Fountain Square by using obscene language, and he hadn’t obeyed the policemen lawful demands. He also pointed out that a few days prior to the incident the police warned R. Qasimli and others who had already gathered on the same square and violated the public order.
- Qasimli’s lawyer clarified to the Court that her client had not violated the law. From the video circulated on social networks, it was clear that the detainee did not violate the public order but just called for peace, which cannot create disturbance in the society. They were approached by the police officers who could not explain the illegality of such actions. The lawyer also indicated that it was not an offence to take a video of a police officer, and the latter should be more tolerant. But her client had been beaten. She also noted that the detainee had a seven-day-old baby and a mentally ill mother to care for.
Sanan Qarakhanov, questioned as a witness at the trial, testified that on 23 July 2024, at about 6.50 p.m. he had seen two men engaged in a loud conversation. Those men were approached by the police officers who introduced themselves and urged them to order. Despite that, the men were disobedient and proceeded with their actions. Then, they were “invited” to the police station where they were not subjected to physical or psychological pressure.
On 24 July 2024, the Baku City Sabayil District Court issued a ruling: to find Rustam Qasimli guilty on the charges and sentence him to 30 days of administrative arrest.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The legislation on administrative offences is based on the principles of respect for human and civil rights, freedoms, lawfulness, equality before the law, presumption of innocence, fairness and prevention of administrative offences.
The Article 5.1 of the Administrative Offences Code of the Azerbaijan Republic states,
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.
The Articles 510 and 535.1 of the Administrative Offences Code of the Azerbaijan Republic, under which R. Qasimli is charged, are usually applied to the political and public activists, journalists and bloggers.
In almost all of these cases, the Courts issue unmotivated rulings and apply administrative arrest.
Though the Article 8 of the Administrative Offences Code of the Azerbaijan Republic refers to the presumption of innocence, according to which an individual in respect of whom there are initiated the proceedings on an administrative misdemeanour, shall be presumed innocent if his/her guilt is not proved in accordance with the procedure provided for by the Administrative Offences Code of the Azerbaijan Republic, and is not determined by the decision of a judge, an authorized body (official), which considered the administrative misdemeanour proceedings, in this case the reasonable doubts concerning an individual’s guilt brought to administrative responsibility shall be settled in his/her favour.
However, what we see in practice is quite different: the Courts ignore important Constitutional provisions, as well as the National and International legislation.
According to the Article 510 of the Administrative Offences Code of the Azerbaijan Republic,
“Petty hooliganism, i.e. the actions that violate public order, but are not supported by the use or threat of violence against individuals or destruction/ damage to someone else’s property, shall be punishable by a fine in the amount of fifty to one hundred manats and if, due to the circumstances of the case, taking into account the offender’s personality, the application of these measures is deemed insufficient, it should be applied an administrative arrest for up to fifteen days.”
As noted above, R. Qasimli, together with an acquaintance, addressed peaceful slogans and distributed the anti-war leaflets at the Fountain Square. There were no aggression or unlawful messages in those appeals, which in no way could have violated the public order. Besides, there is no indication in the ruling that R. Qasimli and others had created any disturbance to society. Neither, any of the witnesses who were at the Square at that moment, applied to the law enforcement bodies with a complaint against him.
What is ‘public order’?
‘Public order is an established in society system of relations between people, rules of common behaviour and co-existence governing by the existing legislation, customs and traditions, as well as by moral standards. The public order includes the legal order. The public order is the entire complex system of social relationships, which is created as a result of the implementation of the following social norms: the law norms, moral standards, regulations of public organisations, non-legal customs, traditions and rituals’. – https://ru.wikipedia.org/wiki/Общественный_порядок
Thus, R. Qasimli’s activities could not violate the established order in society, the standards of morality and ethics, or the law and order.
The second Article 535.1 of the Administrative Offences Code of the Azerbaijan Republic, under which R. Qasimli was charged,
‘Malicious disobedience to the police officer’s legitimate request or a request of a serviceman, whose duties to protect public order shall entail a fine of two hundred manats for individuals, and in case, under the case circumstances, and taking into account the offender’s personality, the application of these measures is deemed insufficient, it shall entail administrative arrest for a period of up to one month’.
There is not a single argument in the Court ruling that would prove R. Qasimli’s ‘malicious disobedience’. Moreover, the Court did not clarify whether the police officers’ demand was lawful. In spite of the lack of any arguments and reasons supporting the prosecution, the Court sentenced Qasimli to 30 days of administrative arrest, without substantiating that the isolation of the detainee was a necessary measure and that the interests of society were superior to depriving him of his liberty for one month.
Viewed in the light of the human rights enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, there is a violation of the following Articles: Article 3 – the right to the prohibition of torture and ill-treatment, Article 5(1) – the right to liberty and security of person, and Article 10(1) – the right to freedom of expression.
Both the provision of the Constitution of the Azerbaijan Republic (Article 46 III) and Article 3 of the Convention prohibit the mistreatment of a detainee. These Articles contain no derogations or exceptions and apply to everyone including those in the fight against terrorism and mafia, as well as in time of war.
The European Court’s ruling under the Article 3 in the case of Selmouni v. France dated 28 July 1999, states,
‘If a detainee has been brought to a police station in good health and, by the time of his release, he has injuries, the State has an obligation to provide a plausible explanation as to their origin, and if it fails to do so, then the Article 3 of the Convention comes into force.” – https://hudoc.echr.coe.int/?i=001-58287
“In order for ill-treatment to constitute a violation of the Article 3, it must attain a minimum level of severity. The assessment of this minimal level is inherently relative; it depends on all the circumstances of a case, in particular on its duration, its impact on the physical or mental state and, in some cases, on the gender, age, state of health of the victim, etc.” (Monde c. Royaume-Uni,162). (Monde с. Royaume-Uni,162).
The judgment of the European Court of Human Rights in the case of Aksoy v. Turkey dated 18 December 1996, concerning the Article 5 it states,
‘The Court underlines the importance of the Article 5 in the Convention: it enshrines a fundamental human right, namely the protection of everyone against arbitrary interference by the State with his right to liberty. The judicial supervision of executive interference in everyone’s right to liberty is an essential element of the guarantees embodied in Article 5 para. 3, which are designed to minimise the risk of arbitrariness and to guarantee the supremacy of the law (…). Moreover, a prompt judicial intervention may lead to the detection and prevention of ill-treatment, which, (…) is absolutely prohibited by the Convention and is non-derogable.” – https://hudoc.echr.coe.int/?i=001-58003
The violation of the above-mentioned norms led to a violation of the right to freedom of expression guaranteed by the Article 10(1) of the Convention in respect of R. Qasimli.
The state authorities’ interference in this right did not have a legal objective and was not either lawful or legitimate in the light of the case precedents of the European Court of Human Rights.
The judgment of the European Court in the case of Oberschlick v. Austria dated 23 May 1991 says,
“Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed.” https://hudoc.echr.coe.int/?i=001-57716
- Qasimli communicated his beliefs and ideas in the form of appeals by distributing leaflets with anti-war rhetoric.
The judgment of the European Court in the case of Worm v. Austria dated 29 August 1997 states,
“The Court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance. As a matter of general principle, the “necessity” for any restriction on freedom of expression must be convincingly established.” – https://hudoc.echr.coe.int/?i=001-58087
The unreasonableness and unjustified lack of motivation in the court judgement, weak evidentiary basis, the case consideration in breach of the right to presumption of innocence, partiality and unfair trial have resulted in violation of the fundamental rights of a democratic society in respect of a detainee.
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