The judicial paradox: two different court orders on a Raphael Huseynzade case

The judicial paradox: two different court orders on a Raphael Huseynzade case

Analysis of violation of law during Raphael Huseynzade’s judicial proceedings

Absheron District Court

Criminal case № 3 (012)-1481/2019

2 September 2019

Judge: Vaqif Hasanov

The person against whom the administrative report was drawn up: Raphael Huseynzade

The person who drafted the administrative report: Polad Agayev

The 21-year-old civil activist Rafael Huseynzade is known for the single pickets he used to carry out in the city centre. The demands on the posters were political and most often concerned the presidential resignation and release of all political prisoners. On several occasions Rafael Huseynzade has been brought to administrative responsibility for his actions. He was detained on 25 January and on 02 March 2019 in connection with the single protest actions and was subjected to administrative charges. Rafael took up the baton for solitary pickets from his father, Fizuli Huseynov, an opposition REAL party member, who was also repeatedly subjected to administrative liability.
At the end of August 2019, R. Huseynzade held a solitary protest action against the police authorities’ arbitrariness and lack of opportunity to find a job.  The protest was carried out in the Baku Nasimi district. According to R. Huseynzade’s family, a month ago Rafael was subjected to pressure exerted by the police in the Absheron district in the village of Mahammadali. That was stated by Huseynzade who underwent a medical examination, and on 02 September 2019, Huseynzade was called up by the district policeman to the Police Absheron district Department where he was said that he would be involved in the case as a victim.
Raphael, as it should be, went to the police but he never came back. Rafael Huseynzade was charged with administrative offences under the Article 535.1 (failure to comply with the legal requirements of a police officer) of the Administrative Offences Code of Azerbaijan Republic. According to the administrative protocol drawn up in regard to R. Huseynzade, while in the park in the Absheron district, Rafael vociferously manifested in obscene language. Having heard this, the police came up to the guy and asked him to follow them. However, Rafael did not obey the legitimate demands of the police.
On 02 September 2019, the Absheron district court found Huseynzade guilty of committing an administrative offence under the Article 535.1 of the Code on Administrative Offences and sentenced him to 15 days of administrative arrest.
The beginning of the detention term is considered to be the day of the court, e.g. on 02 September. Therefore, the end of the term should end on 17 September.  However, neither on 17 September, nor later, despite the fact that the term of detention had expired, Rafael Huseynzade was not released and continued to be held under arrest.
On 23 September 2019, there was another court ruling against Huseynzade. This second ruling was submitted by the Absheron district court to the police officers. In the second order, which contained the same case number (No. 3(012)-1481/2019), the same date (02 September 2019), the same composition of the court (the judge Vaqif Hasanov), though the term of punishment for R. Huseynzade was different, instead of 15 days, as it was in the first order submitted to the lawyer, it was 1 month. Thus, in the case of Rafael Huseynzade, there are two court decisions with different terms of administrative detention. Isn’t it a paradox….?


Commentary by an expert lawyer:


Both court rulings are illegal and unjustified. There can not be two different rulings in the same case, which differ only in the term of the sentence. The order that was handed over to the lawyer, stipulated the administrative detention for 15 days. However, 15 days later Huseynzade was not released. The second court order, which was discovered by the lawyer on the official court website, imposed a one-month administrative arrest.
This is not only a serious violation of all norms of the law but it should be considered as nonsense in legal system.
According to the Article 47 of the Constitution of Azerbaijan Republic, “I. Everyone may enjoy freedom of thought and speech”.
The right to freedom of expression is enshrined in the Article 10 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to this article, everyone has the right to freely express his/her opinion.
According to the Article 19 of the International Covenant on Civil and Political Rights:


1. Everyone has the right to hold opinions without interference.
2. Everyone has the right to freedom of expression; this right includes freedom to seek,    receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any media of his choice.


The above mentioned norms of domestic and international legislation consolidate one of the fundamental rights of a democratic society. Rafael Huseynzade, exercising this right, has repeatedly held single pickets containing political demands. All actions were peaceful, his slogans did not contain any calls prohibited by law (provocations, violence, propaganda of war, etc.).
The right to freedom of expression, like most human rights, has its limitations, the list of which is exhaustive. Under the international law, there are three conditions for restrictions on freedom of expression: they must be strictly in line with the law, pursue a legitimate goal, and be necessary and adequate to achieve that goal.
In accordance with judgment of European Court of Human Rights (ECHR) case Fatullayev v. Azerbaijan (paragraph 122) from 22 April 2010: “…the Court reiterates that the freedom of expression is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population” –{“dmdocnumber”:[“866824″],”itemid”:[“001-98401”]}


In the Article 5.1 of the Code of Administrative Offences of the Azerbaijan Republic 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 Article 22 of the Code of Administrative Offences of the Republic of Azerbaijan specifies the measures of administrative punishments. There are only seven of them. The most severe is an administrative arrest. The court rulings handed down against R. Huseynzade did not specify any grounds according to which a measure such as a arrest could be applied. However, the Court’s reasoning for the arrest that was not justified at all.
The administrative arrest order for 1-month period was found out at the time when the lawyer informed the press and wrote on social networks that despite the expiration of the 15-day term, R. Huseynzade had been illegally detained.
As stated in the Article 99.3 of the Code of Administrative Offences of the Republic of Azerbaijan, the authorized official must have sufficient grounds to initiate the administrative investigation.  There were no such grounds. On the 2nd of September Rafael Huseynzade was called to the Absheron district police Department where he was said that he would be involved in the case as a victim.
In the court, R. Huseynzade testified that he had been called up to the police, and the local police officer was preparing a report on the fact that he had vociferously manifested in obscene language on the street and had not obeyed the police demands. The court could easily eliminate the contradictions in these arguments by extracting video surveillance recordings from the police. However, the court did not take such an initiative, accepted the police testimony as reliable arguments and did not overcome the contradictions.
Thus, the right to freedom guaranteed by the Article 28 of the Constitution of the Azerbaijan Republic was violated in respect of R. Huseynzade. According this article:


I. Everyone has the right for freedom.
II. Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.


According to the Article 5 (1) of European Convention on Human Rights, everyone has the right to liberty and security of person. According to the paragraph c) of Article 5 (1), everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure 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;


As we can see, and as it is stated in this norm, deprivation of liberty is possible only if there are sufficient grounds. In accordance with judgment of European Court of Human Rights (ECHR) case Aksoy v. Turkey (paragraph 76) from 18 December 1996: “The Court would stress the importance of Article 5 (art. 5) in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual’s right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3 (art. 5-3), which is intended to minimise the risk of arbitrariness and to ensure the rule of law (…). Furthermore, prompt judicial intervention may lead to the detection and prevention of serious ill‑ treatment, which (…) is prohibited by the Convention in absolute and non-derogable terms”. –{“itemid”:[“001-58003”]}


Article 9 of the International Covenant on Civil and Political Rights also prohibits of arbitrary arrests. It states: “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”. 
Procedural violations also concerned the Code of Administrative Offences of the Azerbaijan Republic.
Procedural violations also concerned Article 91 of the Code of Administrative Offences of the Azerbaijan Republic. 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.


None of the listed procedural rights were provided to R. Huseynzade at the time of his detention. The arrest of the young activist did not pursue a legitimate aim, and, therefore, was not legitimate