THE MULTIPLE ADMINISTRATIVE DETENTIONS ENDED UP IN BRINGING CRIMINAL CHARGES
Analysis of violation of law during Afiyaddin Mammadov’s judicial proceedings
Baku City Khatai District Court
Case № 4 (011)-604/2023
21 September 2023
Presiding judge: Bakhtiyar Mammadov
Defendant: Afiyaddin Mammadov
Defender: Zubeida Sadiqova
With the participation of Sanan Gudratli, an investigator of the Khatai District Police Department Investigation Unit
Afiyaddin Mammadov, born in 1995, a member of the Board of the “Democracy 1918” Movement, a Chairman of the Working Table at the Trade Unions Confederation, has been detained more than once in the course of various rallies; as well as on administrative charges.
The first time it happened on 12 November 2022, the Baku Khatai District Court convicted Afiyaddin Mammadov on administrative offence under the Article 535.1 (Disorder Conduct) of the Administrative Offences Code of the Azerbaijan Republic, and sentenced him to 30 days of administrative detention. – https://www.ipd-az.org/freedom-of-speech-and-thought-is-also-punishable-in-azerbaijan/
Afiyaddin Mammadov was again detained on 20 February 2023: that day it was hearing on the case of the arrested public activist Bakhtiyar Hajiyev at the Baku Court of Appeal. In front of the administrative Court building there were gathering of the members of opposition parties, organizations, journalists, and public figures. Afiyaddin Mammadov 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. On 21 February 2023, the Baku City Yasamal District Court issued a verdict: to convict Afiyaddin Mammadov for administrative offenses 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. – https://www.ipd-az.org/every-year-afiaddin-mammadov-is-deprived-of-his-liberty-for-30-days/
On 20 September 2023, the Investigation Department of the Khatai District Police Department opened a criminal case against Afiyaddin Mammadov. He was brought as a suspect for committing an offence under the Article 221.3 of the Criminal Code of the Azerbaijan Republic.
On 21 September 2023, the Article 126.1 (Deliberate causing of serious harm to health) of the Criminal Code of the Azerbaijan Republic was added to the existed one Article 221.3. At the same time A. Mammadov got an accusation. The charges were built on the above-mentioned articles.
According to the investigation, on 20 February 2023, A. Mammadov was walking along a street where there were many people in the Baku City Khatai district. A certain S.G., whom A. Mammadov allegedly started cursing was walking toward him. At that moment a tense situation arose, A. Mammadov manifested his disrespect to the public pulling a pocket knife from his pocket, deliberately stabbed S.G. in the abdomen. According to the Law, a stab wound is a serious crime.
An Investigator and Prosecutor requested in their petition and submission to the Court to impose a preventive measure against A. Mammadov in the form of custody for a period of 4 months.
Afiyaddin Mammadov, interrogeted in the course of the trial, did not plead guilty to the charges and testified that he had not inflicted any injuries on anyone, and he had attributed his arrest to his social and political activities.
The defendant’s lawyer stated that A. Mammadov was a well-mannered and civilized individual, and he had never been carrying a knife. “He is accused of inflicting bodily harm, but in fact he is the victim”. He was injured during the arrest, and he still had his nose swelled which caused him difficulties to breathe. The lawyer also said that his nose had been bleeding for two days in the detention center and he was taken for a medical examination. It was formed a hematoma under his eyes as a result of the beatings during detention.
On 21 September 2023, the Baku City Khatai District Court issued a ruling: to find Afiyaddin Mammadov guilty on the charges and sentence him to 2 months of administrative arrest.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The National Courts rulings on the imposition of preventive measures do not practically differ one from another. As a rule, they contain references to the criminal procedural legislation, general and abstract phrases, unfounded conclusions, lack of arguments on the application of alternative preventive measures other than remand in custody, and, as a consequence, the application of remand in custody in 90 per cent of cases. That case was not an exception since it perfectly fell into the category of “sensitive cases” and the defendant was a social and political activist.
Before taking into account the Articles of the Criminal Procedure Code of the Azerbaijan Republic concerning the imposition of preventive measures, let us consider some objectives of criminal procedure.
Thus, the objectives are: legality, equality of all before the Law and Court, ensuring the Rights and Freedoms any citizen, respect of an individual’s honour and dignity, presumption of innocence and others.
One of the most important Principles is a Principle of the Judges’s Independence who must be autonomous and obey only to the Laws of the Criminal Procedure Code of the Azerbaijan Republic (Article 25.1 of the of the Criminal Procedure Code of the Azerbaijan Republic).
Judges shall not be bound by the conclusions reached the prosecuting authorities during the investigation (Article 25 of the Code of Criminal Procedure of the Azerbaijan Republic).
According to the Article 25 of the Criminal Procedure Code of the Azerbaijan Republic, nobody shall have the right to interfere in administering justice or to ask judges or jurors to give explanations of the criminal cases or other prosecution material before them.
In this connection, it is worth mentioning the principle of power division in Azerbaijan. Thus, according to the Article 7 para III of the Constitution of the Republic of Azerbaijan, state power in the Azerbaijan Republic is based on a principle of division of powers:
- Milli Majlis of the Azerbaijan Republic exercises legislative power;
- executive power belongs to the President of the Azerbaijan Republic;
- law courts of the Azerbaijan Republic exercise judicial power.
In the para IV of this article states, that according to provisions of the present Constitution legislative, executive and judicial power interact and are independent within the limits of their authority.
Interference in the work of the Courts is inadmissible. However, it is totally different in practice. The Courts, in almost all cases, copy the investigators’ motions related to the imposition of a preventive measure. They literally copy the petitions of investigators into their rulings, and also approve the request of the investigative bodies concerning the imposition of the harshest preventive measure e.g., detention.
The Paragraph 3, Decision No. 2 of the Plenum of the Supreme Court of the Azerbaijan Republic from 3 November 2009 “On the practice of the Legislation application by the Courts while considering petitions for the imposition of a preventive measure in the form of arrest on the accused individuals” states that, according to the Law, there must be substantive and procedural legal grounds for the imposition of a preventive measure on an accused. The substantive grounds are to be evidence proving the accused person’s involvement in an incriminating act provided by the Criminal Law. The procedural grounds consist of the totality of grounds proved by the Court, and confirmed the legality and necessity of a preventive measure imposition in the form of arrest, that stipulated in the Article 155 of the Criminal Procedure Code of the Azerbaijan Republic.
There are the following grounds provided in the Article 155 of the Criminal Procedure Code of the Azerbaijan Republic:
- hidden from the prosecuting authority;
- obstructed the normal course of the investigation or court proceedings by illegally influencing parties to the criminal proceedings, hiding material significant to the prosecution or engaging in falsification;
- committed a further act provided for in criminal law or created a public threat;
- failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;
- prevented execution of a court judgment.
The Court ruling states that one of the grounds for imposing a measure of restraint in the form of arrest is that A. Mammadov, an accused, who has no permanent place of residence in Baku (!), in case of being at large may abscond from the investigation, and at this stage of the investigation there is no truce reached with the injured person, there is also a hostile situation between them that may lead to the commission of a more serious offence by the accused.
It should be noted that the Criminal Procedure Legislation, in particular Articles 154-155 of the Criminal Procedure Code of the Azerbaijan Republic, does not provide a permanent place of residence in Baku prescribed for the accused. There is only mentioned, in general, a permanent place of residence.
The second thing is that the Court did not indicate any specific arguments as to why They assumed the accused’s possibility of hiding from the investigation possible. And the more absurd Court’s argument is that in case of being at large, A. Mammadov may commit a more serious crime.
The Court did not take into account the personality of the accused. A. Mammadov is characterized as a well-bred, intellectual and educated person, has a good reputation in the society, and is always fair-minded. As the Chairman of the Working Table of the Trade Unions Confederation o he was actively engaged in the defence of workers’ rights.
Moreover, the Court did not consider an imposition of alternative preventive measures other than arrest referring to the absence of alternative punishments other than deprivation of liberty in the Articles under which A. Mammadov was charged.
The above-mentioned Decision of the Azerbaijan Republic Supreme Court Plenum from 3 November 2009 is stated that the Courts, applying the Legislation in this area, make a number of mistakes, in particular, they do not comprehensively check the petitions submitted by the investigative authorities, they do not comment on the grounds that make them impose the strictest measure of restraint, an arrest, and employ just the general expressions as grounds, such as concealment from the body conducting the criminal proceedings, obstruction of the normal course of the investigation, failure to appear when summoned by the body conducting the criminal proceedings.
The Azerbaijan Republic Supreme Court Plenum has ordered the Courts not letting a formal approach to the case, moreover, when imposing a preventive measure, they must verify the legitimacy and legality of arrest submissions. It must be taken into account that “reasonable suspicion” should include the existence of sufficient evidences that an individual has really committed such an offence. It is also said in the Decision that the Courts should consider an option of an alternative preventive measure other than arrest when considering implementation of arrest.
In this case, as well as in other “sensitive” cases, the Court did not demonstrate an individual approach, did not consider an alternative preventive measure not related to the arrest, did not justify its ruling on the application of the harshest preventive measure, referred to the arguments not stipulated by the Legislation (lack of a permanent place of residence in Baku), and was not guided in its ruling according to the principle of innocence.
Thus, in respect of Afiyaddin Mammadov it was at least a violation of the Right to Liberty guaranteed by the Article 28 of the Constitution of Azerbaijan and Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The Right to Liberty is one of the fundamental Rights in a democratic society. Despite the existence of multiple judgments of the European Court of Human Rights (ECHR) in relation to the states-participants of the Council of Europe, and, in particular, in respect of Azerbaijan, the Court issued an unjustified and illegitimate ruling in favour of the investigating authorities.