THE COURT VIOLATED THE CONSTITUTIONALLY GUARANTEED RIGHT TO FREEDOM AND INVIOLABILITY
Jalal Javadzade
Analysis of violation of law during Jalal Javadzade’s judicial proceedings
Baku City Court of Appeal
Case № 3(103)-377/2025
7 February 2025
Presiding judge: Ibrahim Ibrahimli
The person against whom an administrative record was issued: Jalal Javadzade
Defender: Zubeida Sadigova
Jalal Javadzade (born in 1999), a public activist, was detained on 30 January 2025. J. Javadzade assumed that his arrest was based on the fact that during the municipal elections held in Azerbaijan on 29 January 2025, he threw a photo of the arrested journalists into the ballot box and then published that photo on Facebook.
On 24 July 2024, the police officers from the Nasimi District Police Station 22 issued a report against Jalal Javadzade for allegedly violating 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.
He was held for an hour. Then, the Head of the department ordered to transport the detainee to the Nasimi District Police Department, where, according to him, he should have ‘’got wise‘’.
At the Police Department he was subjected to beatings with a belt, fists and feet. Moreover, during the beating the attackers insulted him. They said that let those girls, whose photos he had thrown into the ballot box, come and save him.
J.Javadzade was threatened by the policeman called Atig, the Head of the Department for Combating Illegal Drug Trafficking.
A Major, last name Shiraliyev, took him to another room and recorded the detainee’s personal details. There, it was taken his photo, the personal search found no drugs in his possession.
In the very same room, he was forced to drink a glass of water containing some drugs. J. Javadzade refused to do it. So the Head of the Police Department hit him with the handle of a gun, another policeman grabbed his throat and forcefully poured the water into his mouth.
J.Javadzade said that he was in the room No. 207 at that moment. After that, he was brought to the temporary detention centre, where he suddenly collapsed. The staff of the detention centre called an ambulance and he was taken to the Medical Centre. J.Javadzade asked the doctors not to hand him over to the police, but they refused to do that.
The next day a police officer took him for a forensic narcological examination. No examination was carried out, they wrote down something and brought him back.
In respect of J.Javadzade was drawn up an administrative protocol in accordance with the Article 206 (Illegal consumption of narcotics , psychotropic substances, preparation, acquisition, storage, transportatio of small amounts without the purpose of sale) of the Azerbaijani Republic Code of Administrative Offences.
In the afternoon of 31 January 2025, J.Javadzade was brought to the Baku City Nasimi District Court where he was kept for several hours. During his detention in the police and Court, he did not either provide any testimony or sign any documents.
The trial lasted merely 5-10 minutes. Neither his family nor his lawyer was informed about the detention or trial.
On 31 January 2025, the Baku City Nasimi District Court issued a ruling against J.Javadzade, he was found guilty on charges of the administrative offence and sentenced to 30 days of detention.
After the announcement of the court ruling, J. Javadzade was brought to the police station where he was held in administrative detention rented, and where he twice collapsed. J. Javadzade stated that when a major by the name of Mirzali kicked him with his foot, he did not feel it, as his legs were numb.
J.Javadzade considers his arrest illegal having a political motivation. The conclusion of the compulsory narcological medical examination dated 31 January 2025, indicated that in the blood of Mr. J. Javadzade had been found opioids and psychostimulants, as a result of which he had developed a dependency syndrome, therefore there was a need for his compulsory treatment.
According to the case records, on 31 January 2025, at approximately 04.00, J. Javadzade got ill, an ambulance was called, the doctors diagnosed an ‘undetermined seizure’, and Mr Javadzade was hospitalised. During his detention, his mobile phone was taken away but it has not been returned to his lawyer or relatives.
The defence disagreed with the Baku City Nasimi District Court ruling of from 31 January 2025, and appealed to the Court of Appeal.
The defence pointed to the violation of the National and International law provisions and asked the Court to annul the ruling issued by the Court of first instance on 31 January 2025, and requested to return the mobile phone illegally confiscated from J.Javadzade.
On 7 February 2025, the Baku City Court of Appeal issued a ruling to dismiss the defence’s appeal and leave the ruling of the Nasimi District Court dated 31 January, 2025, unchanged.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The grounds for administrative punishment shall be the commission by a person of an administrative offence provided for by the Code, an action or inaction that has all the attributes of an administrative offence.
According tot the Article 5.1 of the Administrative Offences Code of the Azerbaijan Republic, 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.
As stated in the appeal, neither his relatives nor his lawyer were informed of D.Javadzade’s detention. In addition, he was deprived of legal counselling.
The rights of the detainee are listed in the Code, Article 91.0. The Code; the rights must be ensured by the authorised body. Thus, this authority is obliged to:
- immediately notify the arrested person of the reasons for his arrest, explain his rights;
- to acquaint the detained person with the protocol on the administrative error;
- at the request of the detained person, to inform his close relatives, the administration of the place where he works his lawyer;
- immediately inform the parents or other legal representatives of the arrested minor;
- to respect the personality and dignity of the detained person;
- to enable the detained person to contact and meet with his lawyer;
- if the detained person does not have his own lawyer, to provide him with a list of lawyers working in law firms in the place of temporary detention, to contact and meet with the selected lawyer.
The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6, paragraph 3, also enumerates the rights of the detainee. They are as follows:
- to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
- to have adequate time and facilities for the preparation of his defence;
- to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
- to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
- to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
As can be seen, the right to defence is one of the fundamental principles of fair justice.
The Convention, Article 6, paragraph (c), contains three aspects: which concerns the right to a fair trial. This paragraph guarantees the right to defend oneself in person or through legal assistance, including the right to free legal assistance if one lacks sufficient means and the interests of justice require it.
The judgment of the European Court of Human Rights (ECHR) in the case of Artico v. Italy from 13 May 1980 states,
The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective; this is particularly so of the rights of the defence in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive. – https://hudoc.echr.coe.int/?i=001-57424
- Javadzade testified that he had been subjected to physical and psychological pressure exerted by the police officers. In order to obtain the desired result, they had forcefully poured water with drugs into his throat. He described in detail everything that had happened to him. Furthermore, the case file contains materials confirming the fact that he had twice felt ill, an ambulance had been called that had taken him to the hospital.
Everything described above indicates that Javadzade was indeed subjected to cruel and degrading treatment, thereby there was obvious violatiion of the right to the prohibition of ill-treatment and torture; although, it is prohibited by the Convention, Article 3, which does not have any exceptions and is valid both in times of war, state of emergency and while fighting against the mafia.
In addition, the police officers obtained the evidence in an unlawful manner, i.e. by forcefully pouring water with drugs into the throat of J.Javadzade.
The Court did not take any kind of action to ascertain the truth and identify the perpetrators of the unlawful treatment.
The State has a responsibility to ensure that no one is subjected to prohibited treatment. Thus, if a detainee claims in his or her own defence that he or she has been subjected to degrading treatment as set out in the Convention, Article 3, an objective official investigation must be carried out to identify the responsible individuals in order to punish them.
Subjected to ill-treatment, Mr Javadzade’s health drastically deteriorated, he suffered a sudden attack and was admitted to a hospital.
The burden of proof in this case is on the State authorities.
The Court is obliged to determine whether there have been numerous and repeated violations that constitute evidence of the administrative practice of mistreatment. The existence of this practice is characterised by two aspects: the repeatedness of the application (it occurs, as a rule, during detentions) and official tolerance (because the authorities show unacceptable passivity in investigating the claimed facts).
The ECHR judgment in the case of Soering v. the United Kingdom dated 7 July 1989, states,
Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) in time of war or other national emergency. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 (art. 3) enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also to be found in similar terms in other international instruments such as the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights and is generally recognised as an internationally accepted standard. – https://hudoc.echr.coe.int/?i=001-57619
Among the evidence submitted to the Court were just the forensic narcological examination results and supporting case materials confirming the fact of J. Javadzade’s deteriorating health condition. There was no other evidence in the case. J. Javadzade’s testimony was not taken into account by that Court. He explained his detention by the fact of his action on the election day, 29 January 2025: that day he dropped a photograph of the arrested female journalists into the ballot box to protest against their unlawful arrest. No other offence had been committed on his part. For this reason, the police officers subjected him to unlawful treatment and illegally obtained evidence proving a substance of drugs in his blood.
The Article 84 of the Administrative Offences Code of the Azerbaijan Republic states, that in evaluation of evidence the judge, competent body (official) who hears cases on administrative errors evaluates the evidence based on a com complete and objective review of all the circumstances of the case.
According tot the Article 106.0 of the Administrative Offences Code of the Azerbaijan Republic, the judge resolves the following issues when considering cases of administrative offense:
- whether the consideration of the case belongs to his authority;
- are there any circumstances that preclude consideration of the case by a judge, a member of a collegial body;
- whether the administrative offense protocol and other materials of the case were drawn up in accordan requirements of this Code;
- whether there are circumstances that deny the execution of the case;
- whether sufficient evidence has been gathered in the case for consideration on its merits.
The Court issued a ruling based only on the results of the forensic examination. It was not sufficient to apply to the detainee an administrative arrest.
The sanction of the Code, Article 206, under which J. Javadzade was charged, provides for alternative penalties not linked to arrest, such as a fine of three hundred to four hundred manat. If these measures are deemed insufficient, taking into account the case circumstances and offender’s personality, an administrative arrest for the period of up to two months may be applied.
The Court did not provide any explanation why the fine was not an alternative punishment for the detainee and why administrative arrest for 30 days had been ordered instead.
There are many uncertainties and questions in the case, but they were not provided by the Court.
The Court should have terminated the proceedings in accordance with the Article 53.0.2. of the Code, specifically in the absence of corpus delicti of an administrative misdemeanour.
The principle of fairness stipulates that the penalty imposed on a person who has committed an administrative offence is fair, i.e. corresponds to the nature of the administrative offence, its circumstances and personality of the person who has been found guilty of committing an administrative offence. In this case, this principle was violated by the Court.
The presumption of innocence is also important in cases of an administrative offence. Thus, according to the Article 8.3 of the Code, any doubts concerning the guilt of a person brought to administrative responsibility shall be resolved in his favour. The Court construed all the doubts not in favour but against the detainee.
The ECHR judgment in the case of Barbera and Others v. Spain dated 6 December, 1988, states,
Article 6 para. 2 ’requires, moreover, that in the exercise of their powers judges must abandon the preconceived idea that a defendant has committed a criminal act, since the burden of proof is upon the prosecution and any doubt shall be construed in favour of the accused. In addition, it is incumbent on the prosecution to inform the person concerned of the charge to which he is subject in order to provide him with an adequate opportunity to prepare his defence and present sufficient evidence to substantiate a claim of guilt. – https://hudoc.echr.coe.int/?i=001-57429
- Javadzade’s actions of inserting the photo into the ballot box do not imply any punishment, as they contain neither signs of an administrative offence nor a criminal act. His arrest was unlawful and aimed at intimidating the dissidents.
Moreover, there was an infringement upon the right to freedom of expression guaranteed by the Constitution of the Azerbaijan Republic, Article 47, and Article 10(1) of the Convention.
Thus, the arrest of J. Javadzade violated a number of important rights, such as the Right to defence and Presumption of Innocence, the right to prohibition of torture and inhuman treatment, the Right to a fair trial, the Right to freedom of expression, and most importantly, the Right to liberty and inviolability of the person, guaranteed by the Constitution, Article 28, and Article 5 of the Convention.