Critics of the Aliyev regime are not admitted to the parliamentary elections in Azerbaijan
Analysis of violation of law during Ilkin Rustamzade’s judicial proceedings
The Baku Court of Appeal
Criminal case: №2-3 (103)-12/2020
15 January, 2020
Presiding judge: Elmira Nagiyeva
Plaintiff: Ilkin Rustamzade
Respondent: The Central Election Commission of the Azerbaijan Republic
Ilkin Rustamzade, a member of the civil movement N!DA, was detained by the police in 2013 following the rallies organized by the N!DA movement against the growing non-combatant soldiers’ mortality in the army. The rallies were characterized by a significant number of participants and attracted a large crowd of the young people. Besides Ilkin Rustamzade, 7 other members of N!DA movement were detained in the period from January to May 2013, four of them were the organization board members.
Almost all of the detained N!DA activists were charged with the organization and participation in the rioting.
Ilkin Rustamzade was charged with the committing of crimes under the Articles 220.1 (The organization of a mass disorders accompanied with violence, breaking, arsons, destruction of property, application of fire-arms, explosives, and also rendering of armed resistance to representative of authority, or participation in such disorders) and 228.3 (Illegal purchase, transfer, selling, storage, transportation or carrying of fire-arms, accessories to it, supplies, explosives, committed by organized group) of the Criminal Code of the Azerbaijan Republic (CC AR). Following the six-month trial, on 6 May 2014, the Baku Court on Serious Crimes issued a verdict according to which all the accused had been found guilty and sentenced from 6 to 8 years imprisonment. Ilkin Rustamzade was found guilty of the charges and sentenced to 8 years imprisonment. The local and International human rights organizations recognized all the convicted N!DA activists as political prisoners.
In February 2019, the European Court of Human Rights (ECHR) rendered a decision in the case of Ilkin Rustamzade’s unlawful arrest. The ECHR found a violation of the Article 5 (right to liberty and security of individuals) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. On 17 March 2019, Ilkin Rustamzade was released by the Presidential decree on pardon.
On 5 December 2019 the President announced the date of extraordinary parliamentary elections. The elections were scheduled on 9 February 2020. A number of the opposition parties and public activists submitted a list of their candidates for the parliament. Ilkin Rustamzade also decided to run in the parliamentary elections.
On 21 December 2019, I. Rustamzade sent a request to the Second Nizami constituency #25, where he sought to put forward his candidacy for the Parliament. On 25 December 2019, the Second Nizami constituency #.25 decided to deny approval of Ilkin Rustamzade’s candidacy, on the grounds of his criminal record. Having disagreed with the constituency decision, I. Rustamzade, according to the law, appealed that ruling to the Central Election Commission of the Azerbaijan Republic (CEC AR).
According to the Azerbaijan Republic legislation, the complaint concerning the violation during the elections should be addressed to the CEC of AR. The second instance is the Court of Appeal. On January 4, 2020, CEC of AR made a decision to reject the complaint of Ilkin Rustamzade on the same grounds as the Second Nizami constituency #25.
Not accepting the CEC decision dated on 4 January 2020, I. Rustamzade filed a lawsuit against the CEC in the Baku Court of Appeal. I. Rustamzade submitted his claim asking the Court to annul the CEC decision of 4 January 2020, and register him as a candidate for MPs.
On 15 January 2020, the Baku Court of Appeal issued a decision to reject Ilkin Rustamzade’s claims and left in force the January decision of the Central Election Commission of the Azerbaijan Republic.
Commentary by an expert lawyer:
The court verdict is illegal and unjustified. According to the Article 54 (I) of Constitution of Azerbaijan Republic, citizens of the Azerbaijan Republic have the right to take part in political life of society and state without restrictions.
The Article 56 of the Constitution of Azerbaijan states:
- Citizens of the Azerbaijan Republic have the right to elect and be elected to state bodies and also to take part in referendum.
- Those recognized incapable by law court have no right to take part in elections and in referendum.
The Article 3 of the Electoral Code of the Azerbaijan Republic states, “Citizens of the Azerbaijan Republic, regardless of their race, nationality, religion, gender, origin, property status, official position, beliefs, affiliation to political parties, trade unions and other public associations or any other status, have the right to vote, be elected and participate in the referendum”.
The Article 4 of the Electoral Code of the Azerbaijan Republic stipulates equal participation of all citizens in the country elections and referendums.
As mentioned above, in February 2019, the European Court of Human Rights (ECHR) delivered a resolution in the case of Ilkin Rustamzade, according to which it was determined a violation of the Article 5 (right to liberty and security of person) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This means that the arrest of I. Rustamzade has been declared unreasonable and unlawful by the ECHR.
On 17 March 2019, Ilkin Rustamzade was released in accordance with the granted pardon by the Presidential decree. According to the Article 82.1 of the CC of AR, the pardon shall be carried out by the President of the Azerbaijan Republic in the attitude of individually certain person. The Article 83.4 of the CC of AR states: “If condemned in order provided by the law was prescheduled released from serving punishment or deserved part of punishment was replaced with mitigate kind of punishment, term of release from conviction shall be estimated from a moment of release from serving a basic and additional punishment”. At last, according to the Article 83.6 of the CC of AR, release or removal of conviction cancels all legal consequences connected to a previous conviction.
Following the European Court of Human Rights ruling on the case of Ilkin Rustamzade, the Plenum of the Supreme Court of the Azerbaijan Republic was forced to re-examine his case. According to the Article 455.0 of the Criminal Procedure Code of the Azerbaijan Republic (CPC AR), the grounds for consideration of judicial acts are based on new circumstances related to the violation of rights and freedoms as follows:
455.0.2. The determination by the European Court of Human Rights regarding violations of the provisions of the European Convention “”On the Protection of Human Rights and Fundamental Freedoms”” in proceedings on criminal cases, pre-trial simplified production materials, or complaints under special charges in the courts of the Azerbaijan Republic.
According to the Article 456.2 of the AR Criminal Procedural Code, when the grounds stipulated by the Articles 455.0.1 and 455.0.2 of the Code are met, the Plenum of the Supreme Court of the Azerbaijan Republic, in connection with the implementation of the decisions of the Constitutional Court of the Azerbaijan Republic, and the European Court of Human Rights, shall consider only the cases on legal issues. Upon receipt of the decision made by the Constitutional Court of the Azerbaijan Republic or the European Court of Human Rights to the Supreme Court of the Azerbaijan Republic, the Chairman of the Supreme Court shall assign one of the judges to report and prepare the case for the court session. The case, sent to the Supreme Court of AR, shall be considered at the Plenum session within 3 months after the issued decision by the Constitutional Court of the Azerbaijan Republic or the European Court of Human Rights.
Despite the fact that a year has passed since the European Court of Human Rights adopted its decision in the case of Ilkin Rustamzade (in February 2019), the case has not been studied by the Plenum of the Supreme Court of the Azerbaijan Republic. The European Court of Human Rights decision in the case of Ilkin Rustamzade concerned violation of the right of freedom. Therefore, the decision of the European Court of Human Rights and Ilkin Rustamzade’s release in accordance with the Presidential Decree provided him with a legal opportunity to participate in the parliamentary elections scheduled on 9 February 2020.
However, the courts of the Azerbaijan Republic violated the constitutional right of the former political prisoner: the right to participate in elections, the right to be elected and the right to be involved in the state administration.