BEING A MEMBER OF THE OPPOSITION PARTY ALWAYS LEADS TO ARREST
Rovshan Mammadov
Analysis of violation of law during Rovshan Mammadov’s judicial proceedings
Baku City Sabayil District Court
Case № 3(009)-1839/2022
12 November 2022
Presiding judge: Shahin Abdullayev
The person against whom an administrative record was issued: Rovshan Mammadli
Defender: Nemat Karimli
Rovshan Mammadov is a member of the opposition Popular Front Party of Azerbaijan (PFPA). On 11 November 2022, the PFPA planned a peaceful demonstration to demand freedom in front of the Baku City Executive building. Nearly 250 people attended the rally that day, and according to unofficial sources approximately 204 participants (the press claimed 235) were detained and taken to the police custody.
Rovshan Mammadov was also involved in this action. He was forcibly detained by the police outside the Baku City Executive building, then pushed into a police car and taken away. –
https://www.turan.az/ext/news/2022/11/free/politics_news/az/11611.htm
In respect to Rovshan Mammadov it was drawn up an administrative protocol at the Baku Sabayil District 8th Police Station, according to which R.Mammadov took part in an unauthorized rally outside of the Baku City Executive building at about 16:20 on 11 November 2022. Apparently, he was blamed in using obscene language and didn’t obey the legal demands of the police officers. In addition, it was mentioned in the report that R. Mammadov broke the window of a police car in the course of his detention.
Rovshan 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.
At the trial, the interrogated Rovshan Mammadov pleaded not guilty to the charges and testified that while participating in the protest he had not either used obscene language or disobeyed the legal police demands.
Kamal Babakishiyev, an employee of the Baku Sabayil District Police Department, questioned as a witness at the trial, testified that on 11 November 2022, he saw a man shouting out the swear words while he was on duty near the Baku City Executive building. K.Babakishiyev approached the man and asked him to leave. The man then disobeyed the policeman’s demands and was invited to the police station. However, the man disobeyed and was forced into the police car, while smashing the vehicle’s window.
Another witness, Elmar Jafarov, an officer of the Baku Sabayil District Police Department was also questioned at the trial and provided similar to the Kamal Babakishiev’s testimony.
On 12 November 2022, the Baku Sabayil District Court convicted Rovshan Mammadov on administrative offence 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.
Following the reading of the court order, the lawyer of R. Mammadov visited him in the Temporary Detention Centre, where the latter informed him that he had been subjected to physical pressure. He had been severely beaten.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified. According to the Article 3.1 of the Code On administrative violations of the Azerbaijan Republic, only such person, who was declared guilty for committing administrative violations under this Code and had performed a deed (action or inaction) having all other signs of an administrative violation, shall be called to account and punished.
It means that in order to accuse a person of committing an administrative offence, there must be evidence that leaves no doubt in the mind of an outside observer that the person has been guilty of the offence.
The principles of the legislation are the basis on which a person may be held administratively liable. Thus, the Code of Administrative Offences of the Azerbaijan Republic (Article 4) states that the Code is based on the principles of respect for human and civil rights and freedoms, legality, equality before the law, presumption of innocence, fairness and prevention of administrative offences.
Upon a careful reading of the ruling, it is clear that the Court violated the presumption of innocence. It should be noted that the main evidence in the case is the police officers’ testimonies who, at the time of the action, were at the scene. Both police officers testified that R.Mammadov had smashed the police car window at the time of his detention. However, as can be seen on the press video (the link attached above), the vehicle glass had been broken prior to R.Mammadov being seated in the car.
In this connection, there was no forensic examination that could have determined the property damage. Furthermore, in the final part of the court judgment, the Court did not provide any legal assessment of Mr Mammadov’s actions mentioned by the police officers. Logically, if R. Mammadov had broken the police car window, he should have been charged with pecuniary damage but it has not been done. That is why the police officers’ testimonies cannot be regarded as logical and truthful.
There were not attached either the video camera footage installed in the police car or press footage showing R. Mammadov’s detention as proof to the case.
According to the Article 100.1.9 of the Code of Administrative Offences of the Azerbaijan Republic it is stated that if an administrative offence resulted in light damage to a person’s health or material damage, the administrative report must contain a record of these circumstances.
According to the Article 75 of the Administrative Offences Code, in a case of administrative misconduct, it should be determined:
⦁ the event of an administrative offence (whether an administrative offence has occurred);
⦁ a perpetrator of an administrative offence;
⦁ the circumstances aggravating and mitigating administrative liability;
⦁ the nature and extent of the damage resulting from the administrative offence;
⦁ the guilt of the individual committed an administrative offence;
⦁ circumstances precluding proceedings in cases of administrative offences;
⦁ other relevant circumstances for the appropriate determination of the case as well as the causes and conditions that contributed to the administrative offence commission.
As can be seen, the Court did not determine a single fact of R. Mammadov’s guilt, but despite this the activist was found guilty and sentenced to the harshest punishment in the form of administrative detention.
As much as we know, the police say that R. Mammadov used obscene language (although no one but them has either heard or confirmed it) and disobeyed their legal demands. Even if R. Mammadov did use obscene language, then according to the Article 10 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to freedom of expression. The European Court of Human Rights case law suggests that swearing is also a form of expression. The policemen did not say that those words called for violence or could have led to any undesirable consequences. We should emphasize that only in this case the police have a legitimate right to intervene and restrict the right to freedom of expression.
Therefore, the police demands were not legitimate in the light of the International Laws. We have considered that option, assuming that R. Mammadov had indeed used obscene language. However, once again, we must note that there was no other evidence in the case but the policemen’s testimonies.
All of the above suggests that the Court was biased against the detainee, dealt with the case in a non-objective and one-sided manner, issued a ruling that was not based on direct and truthful evidence, thereby violating an individual’s fundamental right in a democratic society, the Right to Freedom, the Right to Respect the Protection against Physical Assault.
These Rights are enshrined in the Article 28 of the Constitution of the Azerbaijan Republic and the Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.