Another trial against Mammad Ibrahim
Analysis of violation of law during Mammad Ibrahim’s judicial proceedings
Baku City Khatai District Cour
27 February 2020
Judge: Farid Yaqubov
The person against whom the administrative case was initiated: Mammad Ibrahim
The person who compiled the official report with regard to M. Ibrahim: a district police officer of the 37th branch of the Baku City Khatai District Police Department
Mammad Ibrahim is a member of the opposition party Popular Front of Azerbaijan (PFA), the party chairman’s adviser and former political prisoner. On 26 February 2020, the day when Azerbaijan commemorates the terrible massacre of people in Khojaly, he, along with other party members, visited the monument to the victims of Khojaly in the Baku Khatai district. That day, the roads leading to the monument were blocked, and people had to follow detour routes in order to access the monument.
After having visited the monument, Asif Yusifli, also a former political prisoner and a friend of PFA, was driving Mammad Ibrahim. Mammad Ibrahim suddenly suffered a seizure due to kidney problems. Asif Yusifli urgently decided to take him to the hospital. But the roads were blocked, and they asked the police to let them through. It was around 5:00 p.m. Despite their persistent requests to allow their vehicle to pass and explanation of such an urgency, the police did not let them go. According to Yusifli, Mammad Ibrahim said that the policemen weren’t to blame for the current situation since they had been implementing the superior orders. However, his words made the police officers angry, and Asif Yusifli and Mammad Ibrahim were detained and brought to the 37th Khatai District Police Department in Baku. The police officers’ attitude dramatically worsened after they had learned that M. Ibrahim and A. Yusifli were the functionaries of the opposition party. At the police station, an ambulance was called twice to Mammad Ibrahim. Then Asif Yusifli was released and Mammad Ibrahim was taken to the Baku City Khatai District Court.
An administrative protocol was drawn up in respect of M. Ibrahim, according to which he was accused of having committed an administrative offence under the Article 535.1 (malicious disobedience to the lawful demands of a police officer) of the Administrative Offences Code of Azerbaijan Republic.
During the trial, Mammad Ibrahim pleaded not guilty and called the arrest based on his political affiliation. On 27 February 2020, the Baku Khatai District Court issued a ruling declaring Mammad Ibrahim guilty of committing an offence under the Article 535.1 of the Administrative Offences Code of Azerbaijan Republic and sentenced him to 10 days of administrative arrest.
Commentary by expert lawyer:
A court decision is illegal and unjustified. The administrative legislation is based on the principle respecting human and civil rights and freedoms, the principle of legality, the principle of equality before the law, the principle of presumption of innocence, the principle of justice, and the principle of prevention of administrative offences (the Articles 5-10 of the Code of Administrative Offences of Azerbaijan Republic).
The Article 5.1 of the Azerbaijan Republic Administrative Offences 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 in the order provided by legislation of the Azerbaijan Republic”.
The right to freedom guaranteed by the Article 28 of the Azerbaijan Republic Constitution was also violated with regard to Mammad Ibrahim. According to this article:
- Everyone has the right for life.
- Except extermination of enemy soldiers in a case of military aggression, when executing the sentence and in other cases envisaged by law, right of every person for life is inviolable.
The right to freedom is one of the fundamental human rights guaranteed also by the international law provisions: The European Convention for the Protection of Human Rights and Fundamental Freedoms, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
According to the Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to liberty and security of person.
The list of restrictions in this Article is rather clear and cannot be interpreted in any mind-independent manner. According to this article: “No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation 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;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
According to the Article 9 of the Universal Declaration of Human Rights, no one shall be subjected to arbitrary arrest, detention or exile.
The International Covenant on Civil and Political Rights also enshrines the right to freedom as a fundamental human right. Thus, according to the Article 9, Paragraph 1 of the International Covenant on Civil and Political Rights, everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
In the case of Mammad Ibrahim, there were circumstances precluding administrative misconduct proceedings. The list of these circumstances is specified in the Article 53 of the Code on Administrative Offences of the Azerbaijan Republic.
They’re as follows:
- No incident of administrative misconduct;
- lack of administrative misconduct;
- if the individual has acted in a state of utmost urgency;
- if the individual has acted in a state of self-defence;
- where an administrative act establishing administrative liability has been annulled;
- at the end of the terms stipulated in the Article 38 of the Code;
- where there is a judge’s or an authorized body (official’s) decision imposing an administrative penalty on the same fact relating to an individual in respect of whom there are proceedings on an administrative offence, or where there is existence of still pending decision to terminate the administrative offence case, as well as a decision to initiate a criminal case on the same fact;
- in the event of an individual’s death, in relation to whom the proceedings on administrative misdemeanour are under way;
- reconciliation of a person who has committed an administrative offence with the victims, the offence under the Articles 157 and 158 of the Code;
- compensating for the damage by the individual who has committed an administrative offence under the Article 227 of the Code, and conciliating with the victim;
- in case the electronic order on misdemeanour provided for in the Article 122.1 of the Code is not drawn up in real time.
In the case of Mammad Ibrahim, there was no occurrence (performing) of an administrative offence.
Aside from the substantive law provisions of both national and international law, there was a gross violation of procedural law. In accordance with the Article 91 of the Administrative Offences Code, the authorized body (official) takes the following measures to ensure the detainee’s rights established by this Code (Article 91.0 of the Code):
91.0.1. immediately inform the detainee about the detention reason and explain his rights;
91.0.2. informs the detainee of the protocol content based on administrative misconduct;
91.0.3. at the detainee’s request, inform his/her close relatives, the administration of the place where he/she works or studies, or inform his/her lawyer about the detention;
91.0.4. immediately inform the parents or other legal representatives of the detention of the minor;
91.0.5. show respect for the detainee’s personality and dignity in his/her treatment;
91.0.6. enables the detainee to communicate and meet with his/her lawyer;
91.0.7. in case the detainee does not have his/her own lawyer, provide the detainee with a list of lawyers operating in the legal structures at the place of temporary detention, enable him/her to maintain communication with the chosen lawyer and meet with him/her.
None of these rights were respected in the case of Mammad Ibrahim’s detention.
In the light of the above, it can be concluded that the police officers violated the norms of the Procedural Law and one of the fundamental rights, the Right to Freedom, when detaining M. Ibrahim, as the detention did not have a legitimate purpose and was in contradiction to the norms that guarantee the Right to Freedom.