The Baku Court of Appeal took a decision to keep Elman Quliyev in custody

The Baku Court of Appeal took a decision to keep Elman Quliyev in custody

Analysis of violation of law during Elman Quliyev’s judicial proceedings


The Baku Court of Appeal

Criminal case: №3 (103)-1929/2019
02 August, 2019
Faiq Gasimov

Accused: Elman QuliyevDefender: Osman Kazimov

Elman Quliyev – head of the youth organization of the opposition Musavat Party was detained on July 29, 2019. That day, at early afternoon, members of the Musavat Party organized a protest demanding to release Azad Hasanov, a fellow party member. The protest took place in the Winter Park in the capital centre.
The trial of Hasanov was held on July 29, 2019. And after the trial the Musavat members came to the action demanding to release A. Hasanov. The protesters had posters that were taken away by the police that intervened in the action. The police rudely ripped the posters and forcibly put the protesters and journalists in their vehicles. All participants of the action, except Elman Quliyev, were released.

A protocol against E. Quliyev was drawn up at the police station, in which he was accused of committing administrative offences under Articles 513.2. (participation in an unauthorized action) and 535.1. (disobedience to legal requirements of a police officer) of the Code of Administrative Offences of the Azerbaijan Republic.

We should remind that Elman Quliyev has been subjected to administrative arrests before. Thus, on January 18, 2019, E. Quliyev was arrested for up to15 days just a day prior the rally of the National Council of Democratic Forces, which was planned on January, 19. The rally was in support of political prisoner Mehman Huseynov, a blogger who was on indefinite hunger strike at the time.

At the trial, Elman Quliyev testified that he was forcibly put in a car and taken to the 21st police station, where he was held until 5 p.m. He was said that he would be released. Quliyev also testified that no action had been taken during that period of time. Then, he provided an explanation note, and he was informed that he would be brought before a judge. Despite the fact that, while at the police station, he demanded to have his lawyer present, he was told that he would be provided with a lawyer only in court room. However, he was also denied a lawyer of his own choice at the trial. He was assigned a State lawyer at the court of first instance. The case file also shows that E. Quliyev refused to accept an appointed lawyer.

On July, 29, 2019, The Nasimi District Court of Baku, having considered the case, issued a ruling on the conviction of Elman Quliyev being guilty of administrative offences under Articles 513.2 and 535.1 of the Code of Administrative Offences of AR, and sentenced E. Quliyev to 30 days of administrative arrest. Having disagreed with the decision of the court of first instance, the defence lodged an appeal.

On August 2, 2019, the Baku Court of Appeal dismissed E. Quliyev’s appeal and left the decision of the court of first instance of July 29, 2019, unchanged.

Commentary by an expert lawyer:

The court decision is illegal and unjustified. In this case, the right to freedom of assembly, which is a constitutional right of citizens of Azerbaijan, was primarily violated. This right is enshrined in Article 49 (I) of the Constitution of Azerbaijan: “Everyone has freedom of assembly”. According to Article 7 of the Law of the  Azerbaijan Republic “On Freedom of Assembly”, freedom of assembly may be restricted in the following cases:
1) for protection of public interests and interests of state security;
2) to prevent the violation of public order;
3) to prevent disorder or crimes;
4) for the protection of public health;
5) to protect the norms of conduct and spiritual;
6) to protect the rights and freedoms of other individuals.

Article 8 of the Law “On Freedom of Assembly” lists the cases in which assemblies may be banned or suspended. Thus, assemblies accompanied by calls for discrimination, hostility and violence, propaganda for national, racial or religious discord, propaganda for war or for political purposes during elections in accordance with the procedure established by law are prohibited. In the present case, there were no grounds for banning the assembly.

The Constitution and the Law “On Freedom of Assembly” stipulate that citizens must apply to the executive authorities of the city of Baku in writing to receive a permission to hold actions, rallies, pickets and demonstrations. The protest was peaceful and almost silent, except for the slogan demanding freedom for Azad Hasanov. It did not either block the roads or cause any inconvenience to the capital residents.

As the right to freedom of peaceful assembly is a fundamental right, its exercise should be ensured, to the extent possible, without any additional regulation. Anything not expressly prohibited by law should be considered permissible, and those, wishing to assemble should not be required to obtain permission to hold an assembly. The legal framework should clearly and unambiguously establish a presumption in favour of freedom of assembly. The Universal Declaration of Human Rights does not require that national legislation contained a request to notify prior an assembly. Indeed, in an open society, many types of assemblies do not require any form of state regulation.

Therefore a prior notification should be required only in cases when the notification purpose is to enable public authorities to carry out the preparation to adopt all necessary measures in order to promote freedom of assembly and protect public order, public safety, rights and freedoms of other individuals. Any legal provision on this issue should require an assembly organizer to submit a notification of intent rather than an authorization request (“Guidelines on Freedom of Peaceful Assembly”, Edition 2, OSCE/ODIHR, 2011).

The action demanding Azad Hasanov’s release was held immediately after his trial. If the law requires a prior notice, the provisions should expressly outline for a waiver of this requirement in cases where such a notice is impracticable. Such an exception shall be applied in the limited circumstances when it is impossible to meet the legal deadline. The authorities should always ensure that any spontaneous assembly is protected and facilitated as long as it remains peaceful (“Guidelines on Freedom of Peaceful Assembly”, Edition 2, OSCE/ODIHR, 2011).

Elman Quliyev took part in a protest action that had no signs requiring the police interference. In addition, video footage capturing the action demonstrated that there were practically no people in  the Winter Park due to the high temperature and heat at that time. In other words, a peaceful, small action was unable to disturb public order or leisure. The participants of the action carried nothing in their hands but posters.

Freedom of assembly is also guaranteed by Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to this article, everyone has the right to freedom of peaceful assembly and freedom to form professional unions, including the right to join them in order to protect their interests. Paragraph 2 of this article contains legitimate restrictions. They are as follows: 
if these restrictions are provided by law;
are necessary in a democratic society;
in the interests of national security and public order;
to prevent disorder and crime;
to protect health and morals or the rights and freedoms of others.

Article 20 (1) of the Universal Declaration of Human Rights also guarantees freedom of assembly. It states: “Everyone has the right to freedom of peaceful assembly and association.”

Article 21 of the International Covenant on Civil and Political Rights states: “The right of peaceful assembly is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and, which are necessary in a democratic society in the interests of national security or public safety, public order, protection of public health, morals or protection of the rights and freedoms of others.”
Police officers have exceeded their authority. “The Police Act” regulates a police officer duties related to the use of physical force, special means and firearms.
According to article 27 (I) of “The Police Act”, a police officer performing duties related to the use of physical force, special means and firearms is obliged:

1) to use physical force, special means or firearms against an individual only in case of emergency or in case of necessary defence, in case if the use of all other means of influence did not give the necessary result, depending on offence severity or an offender;
2) not to use physical force, special means and firearms against women, minors, or individuals within a short distance from minors or persons with obvious signs of disability and other physical and mental deficiencies…
8) within 24 hours, notify the relevant prosecutor in writing about the use of physical force, special means and firearms.

If the use of force has not been authorized by law or if there has been excessive use of force beyond the specific circumstances, law enforcement officials should be held civil and/or criminal, as well as disciplinary, responsibility. In the present case, the police officers who had applied severe physical force had not been identified and brought to justice. Those police officers continued to violate the procedural rights of detained Elman Quliyev at the 21st police station: detention of E. Quliyev for several hours, refusal to invite a lawyer, etc.
The court ruling did not specify which of the police’s demands had not been met by E. Quliyev and whether those demands were legitimate.
Elman Quliyev was deprived of the right to defense whilst being held at the 21st police station. He demanded a lawyer of his own choice, however the police officers violated this procedural right in respect to E. Quliyev.
Procedural violations also concerned Article 91 of the Code of Administrative Offences of the AR. In accordance with this article, the authorized body (official) takes the following measures to ensure the rights of the detainee established by this Code. The Article 91.0 of the Code:
            91.0.1. Immediately inform the detainee of the grounds for detention and explain   his rights;
91.0.2. introduces the detainee to the protocol of administrative offence;
91.0.3. upon the detainee’s request, inform his/her close relatives, the administration of the detainee’s work or study places, or his/her lawyer about the detention;
91.0.4. immediately inform parents or other legal representatives of a minor detainee   about the detention;
91.0.5. treat the detainee with respect to his/her dignity;
91.0.6. allow the detainee to maintain contact with his lawyer including legal visits;
91.0.7. in case of the detainee’s without a lawyer, provide him/her with a list of lawyers  working in the structures of temporary detention places, enable him/her to      maintain contact with the chosen lawyer as well as legal visits.

All points of these procedural regulations were violated by the authorities that brought the detainee E. Quliyev to administrative responsibility. He was not allowed to contact his family to inform about his detention; Elman Quliyev, who demanded his lawyer, was left without a lawyer, his requests were not taken into account; he was clearly disrespected; he was not acquainted with the administrative protocol.

The police interference in peaceful demonstration, their violation of substantive and procedural law, maltreatment during detention, abuse of authority by police officers are indeed serious violations of human rights and fundamental freedoms guaranteed by national and international law.