IN AZERBAIJAN, ANYONE WHO CRITICISES ILHAM ALIYEV WILL DEFINITELY BE DETAINED
Analysis of violation of law during Ahmad Mammdli’s judicial proceedings
Baku City Sabayil District Court
Case №3 (009)-1535/2022
21 September 2022
Presiding judge: Azer Taqiyev
The person against whom an administrative record was issued: Ahmad Mammadli
Defenders: Rafael Aliyev, Zubeida Sadigova
The person who drew up the administrative report: Rashad Rzazade, the Police Chief of the 9th Station in Sabayil District Police Department
Ahmad Mammadli is a Chairman of the opposition political organisation Movement D18. He began his oppositional activities while studying at university. At that time, Ahmad Mammadli defended the students’ rights and organized anti-corruption protests. He also established the Student Power Centre, in which he helped the students who encountered the corruption problems and all other kinds of difficulties in the process of their studies. A. Mammadli has participated in many rallies, he has been detained by the police on more than one occasion, has been vocal regarding some crucial political issues and has harshly criticised the actions of the government and, in particular, the President Ilham Aliyev. Prior to his arrest, Mammadli posted on Twitter and Facebook that Ilham Aliyev “will be responsible for the crimes he has committed not only against the Azerbaijani people but also against the Armenians”.
On 20 September 2022, Ahmad Mammadli was detained by the individual in civilian clothes and forcibly pushed into the vehicle and taken away in an unknown direction. The incident took place in Baku, on Islam Safarli Street.
Later it became known, that A. Mammadli was charged with administrative offence under 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.
According to the police, A. Mammadli, born in Jalilabad in 2001, while being on Sheikh Shamil Street in Baku he was swearing out though not addressing to anyone in particular on 20 September, 2022. He failed to respond to the police calls to stop cursing.
Rashad Rzazade, the Chief of Police Station 9 of the Baku Sabayil District Police Department, who was questioned at the trial, requested the Court to impose a sentence on A. Mammadli under the Articles 510 and 535.1 of the Code of Administrative Offences of the Azerbaijan Republic.
The detainee, Ahmed Mammadli, interrogated at the trial, objected to the unlawful administrative charge and testified that he had not sworn on the street and had not resisted the police.
In the course of the trial, it was also questioned Orkhan Selimzade, an officer of the Sabayil District Criminal Investigation Department, who testified that he had seen how A. Mammadli had been swearing on Sheikh Shamil Street in Baku. He had approached him, introduced and asked to calm down. However, Mammadli did not obey the police officer’s legitimate demands. As a result, A. Mammadli was detained, forced into a car and brought to the 9th police station.
The Court did not find any aggravating or mitigating circumstances in the case.
On 21 September 2022, the Baku Sabayil District Court convicted Ahmed Mammadli on administrative offence under the Articles 510 and 535.1 of the Administrative Offences Code of the Azerbaijan Republic, and sentenced him to 30 days of administrative detention.
- Mammadli has begun a hunger strike in protest against his unlawful arrest.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified. According to the Article 3.1 of the Code On administrative violations of the Azerbaijan Republic, only such person, who was declared guilty for committing administrative violations under this Code and had performed a deed (action or inaction) having all other signs of an administrative violation, shall be called to account and punished.
In addition, the Article 5.1. of the Code On administrative violations of the Azerbaijan Republic states, that 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.
One of the fundamental principles in administrative proceedings is the presumption of innocence. This principle is most important in “sensitive cases”. According to the Article 8 of the Code On administrative violations of the Azerbaijan Republic,
- The person with respect to whom a case on administrative violation is pleaded shall not be found guilty if his guiltiness was not proved in the order provided by this Code, and not established by the acting resolution of the court, authorized body (official) considering the case on administrative violation.
- 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.
First, we should examine the evidentiary basis upon which the judicial ruling regarding A.Mammadli’s arrest was based. Thus, the evidence gathered in A.Mammadli’s case consisted of: an administrative report drawn up by Rashad Rzazade, the Chief of the Police Station 9, his testimony at the trial, the testimony of A.Mamedli, and the statements provided by Orkhan Selimzade, an officer of the Sabayil District Police Criminal Investigation Department. There was no other evidence in the case submitted to the court.
A.Mammadli’s testimony was not either considered at all or given any legal assessment by the Court. Rashad Rzazade’s testimony was in line with the protocol prepared by him. Whereas Orkhan Selimzade’s testimony was entirely consistent with those given by Rashad Rzazade. Both men are the police officers and for an independent court their testimonies would not be considered sufficient to impose a punishment.
The police did not submit a sufficient amount of evidence to the court to convince any outside observer whether the person charged with administrative offence was indeed guilty of the offence.
A.Mammadli’s guilt was not proven in the court, while the doubts were not interpreted in favour of the accused person. Thus, it was violated the principle of the presumption of innocence enshrined not only in the above Article of the Code of Administrative Offences of the Azerbaijan Republic but also in the Article 6 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to the para 2 of the Article 6 of European Convention on Human Rights, everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
This principle requires the judges, in exercising their functions, to abstain from the preconceived notion that the defendant has committed a criminal offence, as the burden of proof is on the prosecution, and any doubt is to be interpreted in favour of the accused.
The European Court of Human Rights judgment in the case of Minelli v. Switzerland of 25 March, 1983 states,
“The presumption of innocence enshrined in Article 6 § 2 is one of the elements of a fair trial referred as such in paragraph 1 of the same article. This principle is violated if the court declares the accused guilty while his guilt has not been previously proven. If there is no formal proof of guilt, it is essential for the judge’s motivation to assume that he presumed the accused guilty”.
The court did not consider alternative sanctions other than arrest when imposing an administrative punishment in the form of administrative detention. Furthermore, there was no justification in the court order whether the failure to obey was “malicious”, as stipulated in the Article 535.1 of the Code of Administrative Offences of the Azerbaijan Republic.
What meant by “malevolence”? The officers were unable to provide any answers to that questions.
According to the police, the incident took place on one of the central streets of Baku, Sheikh Shamil street. This street is in the centre of Baku where there is installed a large number of video surveillance cameras. However, not a single video footage was shown at the trial. If A. Mammadli had had indeed committed the administrative offence he was accused of, then providing the video footage from the cameras would have been sufficient to prove his guilt. Yet, it was not done, which might suggest that the police officers were biased.
If we pay attention to the Articles brought against A. Mammadli, it is clear that these Articles are the “preferred“ ones by the police officers, that they often applied to youth opposition activists, journalists, and others.
The Court did not even take into account A. Mammadli’s personality, who is a university student, has a vibrant and active social life, has always openly expressed his stance on important political issues in the country and has never used abusive language to criticise the existing regime either in his social media posts or in the comments.
The biased, partial and one-sided judicial consideration of the administrative case resulted in a gross violation of the principle related to the respect of human and civil rights, freedoms of an individual and a fundamental right in a democratic society – the Right to Liberty as set out in the Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, whereas “the Convention aims at ‘protecting freedom and personal integrity against arbitrary arrest and detention’” (the judgement of the European Court of Human Rights in the case Lawless v. Ireland from 7 April 1961). –