Sabayil District Court issued a guilty verdict of Samir Ashurov
Analysis of violation of law during Samir Ashurov’s
judicial proceedings
Sabayil District Court, Baku
Criminal case № 3(009)-409/2018
March 13, 2018
Judge: Aytan Aliyeva
The person against whom the administrative report was drawn up: Samir Ashurov
Samir Ashurov is a member of the opposition movement “ReAL”. The chairman of the movement and one of the opposition leaders Ilqar Mammadov was arrested on February 04, 2013 and sentenced to 7 years imprisonment. In spite of decision of the European Court of Human Rights (ECHR) to release Ilqar Mammadov from prison and numerous appeals by international human rights organizations, he remains in detention.
On March 13, 2018 Samir Ashurov putting up posters on the walls of houses and on buses in the center of Baku. The posters showed President Ilham Aliyev and the inscription “the Dictator”. So, citizen of Azerbaijan Samir Ashurov protested during the regular presidential election campaign against Ilham Aliyev’s re-election and against the policy of the ruling regime.
On March 13, 2018 to S. Ashurov approached two persons, one in police uniform, other in civilian dress. They did not identified themselves and asked the young man to follow with them to the car. Samir Ashurov recognized the man in civilian – he working the guard of the kindergarten near the metro Ichari Shahar in Baku city center. Samir Ashurov, without resisting, went with them to the car and get sat down in it.
He was brought to the 9th station of the police Department of Sabayil district of Baku where has prepared the Administrative protocol for the violation of article 535.1 (insubordination to legal demands of police) of The Code of Administrative Offences. Samir Ashurov was brought to Sabayil district court. On March 13, 2018, the Sabayil district court found Samir Ashurov guilty of an offence under article 535.1. The Code of Administrative Offences and sentenced to 30 days of administrative arrest.
Commentary by an expert lawyer:
A court verdict is illegal and unreasonable. According to article 28 of the Constitution of Azerbaijan Republic, everyone has the right for freedom (paragraph I). Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment (paragraph II). The right to freedom are also enshrined in article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which was ratified by Azerbaijan on April 2002.
S. Ashurov’s actions did not break the law, they were merely expressed his thoughts and beliefs. The posters content did not incite racial, national, religious and social discord and enmity. Under article 47 of the Constitution, everyone may enjoy freedom of thought and speech (paragraph I). And nobody should be forced to promulgate his/her thoughts and convictions or to renounce his/her thoughts and convictions (paragraph II). Freedom of speech is also guaranteed by article 10 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, according to which “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”. This article provides some of the limitations listed in article 10, paragraph 2 of the European Convention. The list of restrictions is quite clear: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
In the present case, there was neither any of the above limitations. In the judgment of the European Court of Human Rights (ECHR) in the case of “Oberschlick v. Austria” from 23 may 1991 states: “Article 10 (art. 10) protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed”. (paragraph 57 of the judgment). –
http://www.unionedirittiumani.it/wp-content/uploads/2014/11/OBERSCHLICK-v.pdf
“The limits of acceptable criticism are accordingly wider with regard to a politician acting in his public capacity than in relation to a private individual. The former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism. A politician is certainly entitled to have his reputation protected, even when he is not acting in his private capacity, but the requirements of that protection have to be weighed against the interests of open discussion of political issues” (paragraph 59 of the above-mentioned decree).
In this regard, it should be noted that in Azerbaijan announced snap elections scheduled on April 11, 2018. S. Ashurov’s actions was intended to encourage of public attention to the current president of the country – main presidential candidate, elected fourth time. The posters expressed his attitude to Ilham Aliyev’s policy and consistent with his right to freedom of expression.
The police officer behaved improperly. Article 17 of the law of Azerbaijan Republic “On police Act” lists the rights of a police officials:
1. to demand any person to discontinue commission of a criminal offence and other wrongs, as well as actions posing danger to personal or public safety or producing conditions for that;
2. to check identity documents of persons suspected in committing criminal offences or administrative wrong;
3. to apprehend a person who committed or is suspected of commission of a criminal offence or other wrong, in order provided by the legislation;
4. to file motions of imperative consideration effect to public and civil bodies, enterprises, institutions, organizations, political parties, civil associations, trade unions and official with a view to eliminate the conditions for commission of criminal offence and other wrongs, in order provided by the legislation;
5. to access residential premises and other buildings, land plots, enterprises, institutions and organizations in cases provided by the legislation;
6. to use vehicles of private and legal persons in order to reach accident scene, carry persons in need of emergent medical aid to the medical institutions and pursue criminal offenders (any damage caused to the vehicles in these cases shall be covered by the police), exception being the vehicles of foreign diplomatic missions, consulates and other representative offices, vehicles belonging to international organizations and vehicles of special destination;
7. to use helmets, shields, armored vests and other means of personal protection;
8. to apply private force, as well as to keep, carry and use special devices and firearms in cases provided by the present Act.
As can be seen, limiting the right to freedom of speech and expression does not fall within the powers of a police officer. Police officers controlling the situation at rallies of opposition often do not allow protesters to carry posters with protests against the ruling regime. Police take away the posters or require that did not disclose them at the rally. Similar has happened in the case of Samir Ashurov. He has not committed a crime but was detained by police officer and was taken to the police station for putting up posters in the city.
Furthermore, in accordance with article 23 “On police Act” the police officer during the arrest of any person shall be bound as follows:
1. to use of safe methods and means in the course of detaining or arresting a person, except for the cases of necessary self-defense and last resort;
2. to introduce himself/herself and show official identity document to the detained or arrested person;
3. to inform of the grounds of detention immediately after detention, as well as to explain the right of rights not to testify against oneself or one’s relatives and the right to use legal aid;
4. to convoy individuals arrested or detained to the police headquarters immediately, to make the record of the fact of arrest or detention according in order provided by the legislation of, the Republic of Azerbaijan; to introduce these records to the persons detained or arrested; and to have each fact of arrest or detention registered at the respective police department;
5. to inform close relatives of detained or arrested person, as well as to notify their employers or education institutions about his/her arrest studies upon his/her demand (in cases of elders, juveniles and persons who by the virtue of the mental disorder are not capable of doing that, the management of the detention place shall inform family members subject to his/her own initiative)
6. to ensure the right of using legal aid of the detained or arrested person upon his/her demand, as well as in case of mandatory participation of the legal counselor;
7. to treat the detainee or arrestee with due respect to his person and dignity, with particular attention being paid to women, minors, elders, ill and disabled persons;
8. to release detained or arrested person subject to the court (judge) warrant, as well as, upon expiration of the terms of detention.
During detention of S. Ashurov police officers have not fulfilled their legal duties and thus violated the aforesaid “On police Act”.
Finally, should be considered the article 535.1 (insubordination to legal demands of police) of The Code of Administrative Offences by which Samir Ashurov was found guilty. For application of this article, needed to be:
· to insubordination was committed against a police officer;
· should be implemented in the performance by a police their duties for the protection of public order;
• insubordination must be deliberate or reckless, i.e. committed intentionally.
The court decision does not indicate what malicious act S. Ashurov was committed and how it was aimed at disturbing public order; how, where and when the offense was committed; he had identity card and whether it had identity check;what were the actions of the police for protect public order; what exactly is the legitimate demands of the police officer. All of its questions the court didn’t answer because had failed investigate this case fully, comprehensively and objectively and condemned S. Ashurov for a maximum term of administrative arrest for political reasons.
Judge Ayten Aliyeva has once again demonstrated her ineptitude as a judge of the district court.