Analysis of violation of law during Bayram Mammadov’s trial



Baku Court of Appeal

Case#3(103)-871/2019

April 10, 2019

Judge:
Aflatun Qasimov

A person against whom a protocol on administrative violation was made: Bayram Mammadov

Defender: Elchin Sadiqov

Bayram Mammadov - a member of youth organization “NIDA” was, for the first time, arrested on May 10, 2016. The reason behind the arrest was a graffiti on a monument of a former Azerbaijani president Heydar Aliyev, that was made on the date of his birthday.  Every year, May 10th is celebrated as a former president’s birthday, in Baku.
State authorities are purchasing flowers from Europe by spending millions of euros, and hold a celebration that they called the Flower Holiday (
Gül bayramı). On May 10, 2016, Bayram Mammadov, together with his friend Qiyas Ibrahimov, as a sign of protest, drew a graffiti on the monument of Heydar Aliyev. They wrote: «Qul bayramınız mübarək» (Happy slave day), “F*cktheSystem”. On the same day, both young men were arrested under accusation on sale and storage of narcotics in large amount.

Baku Court on Grave Crimes reviewed the case of the civil activists. Bayram Mammadov and Qiyas Ibrahimov were found guilty and sentenced to 10 years in prison. Both activists were recognized as “prisoners of conscience” by human rights defenders and by many international organizations.

On March 16, 2019, they were pardoned under ukase of President of  the AR and released.

On March 30, 2019, Bayram Mammadov was arrested again under accusation in committing administrative offence. According to testimonies of Bayram Mammadov’s father, on March 30, 2019, district policeman came to the address, where he lives with his parents. He said that Bayram is summoned to Baku City Sabunchi District 12th Police Department. Bayram went there together with his father. From there, he was taken to Baku City Sabunchi District Police Department and then to Baku City Sabunchi District Court.

On March 30, 2019, Baku City Sabunchi District Court found Bayram Mammadov guilty in committing offence under Article 535.1. (persistent insubordination of legal request of policeman) of the Code of the Azerbaijan Republic on administrative violations and sentenced him to 30 days of administrative arrest.

Bayram Mammadov’s family, friends, and also political activists consider this arrest to be connected to the interview he gave after his release. Journalist of Information Agency “Turan” asked Mammadov the following question: “Would’ve you done the same thing with the monument, by knowing, that you will be punished for that? “  Bayramov replied:
“If I knew that the torments I experienced would return in much greater volume, I would still without any doubt and fear would’ve gone there again, to the monument, even with my eyes closed. Only next time, I would’ve tried to do more, than I did last time”.

The next day, after court, there appeared information both in mass media and social networks, that after arrest, Bayram Mammadov was subjected to physical violence, he was beaten by two police officers at the detention facility (for convicted on administrative procedure) of the Ministry of Internal Affairs, which is located on the territory of Binagadi dictrict in Baku city.
It was possible to identify the name and rank of one of them -
Panah Hasan oglu Mikayilov, sergeant of Baku City Binagadi District Police Department.

This sergeant and his colleague brutally beat Bayram Mammadov: he was hit on his nose, face, ears, legs, knees and stomach. Bayram’s condition was unsatisfactory. When he was brought to the cell, they handcuffed his arms and legs, and he remained in such position till morning. Because of the beatings, he lost conscious. Because of the beatings, the factual tortures, lawyer applied to the court with a complaint on inhuman treatment, however  neither the court of first instance nor the court of appeal satisfied lawyer’s complaints.

On April 10, 2019, appeal application on administrative arrest was reviewed by Baku Court of Appeal. Court of Appeal did not satisfy the complaint and left the decision of Baku City Sabunchi District Court from March 30, 2019 in power.

Commentary by an expert lawyer:

The court decision is unlawful and groundless. Bayram Mammadov  was accused in committing of administrative offence, prescribed by Article 535.1 of the Code of the Azerbaijan Republic on administrative violations. According to this article,  “persistent insubordination of legal request of policeman or military man at execution by them of duties on protection of public order,  entails imposition on natural persons of penalty in amount of 200 manats, and if by circumstances due to personality of disturber the application of these measures will be considered insufficient.”
The court decision does not indicate what exact action of Bayram Mammadov, was considered as a reason to call him responsible for. According to his father’s words, he went to police department together with his son. The reason why he was summoned to police department is unknown.

What had happened at this Baku City Sabunchi District Police Department #12?
It is also unknown to what demand Bayram Mammadov did not subordinate.
According to testimonies of Bayram Mammadov and his father, there were no requests and no “insubordination”. He was just taken from Baku City Sabunchi District Police Department #12 to Sabunchi District Police Department, and then to Baku City Sabunchi District Court.

Court did not show any initiative to examine B. Mammadov’s testimonies that denies any “persistent insubordination of legal request of policeman”.
It is known, that there are surveillance cameras nearby and inside any police department, which could’ve proved the fact of absence of any “persistent insubordination” from Bayram Mammadov’s side.

The court decision also does not indicate, to what police request B. Mammadov as if did not subordinate. Was this legal request?

Court also did not consider the possibility of application of punishment in form of fine towards B. Mammadov. As can be seen from the Article 535.1 of the Code of the Azerbaijan Republic on administrative violation, arrest is applied, if the application of fine will be considered insufficient. Court decision does not indicate, why and which grounds caused court not to choose a punishment in form of fine, but arrest.

According to Article 88.2 of the Code of the Azerbaijan Republic on administrative violations, person affected by administrative arrest shall be made aware of his rights stipulated by this Code and appropriate record shall be made in administrative arrest protocol. This Article was violated towards B. Mammadov.
Procedural violations also concerned with Article 91 of the Code of the AR on administrative violations. According to given article, authorized body (official) shall take the following measures to provide the rights of the person arrested in accordance with this Code:
91.0.1. shall immediately advice the arrested person on reasons of his arrest, explain his rights;
91.0.2. shall let the person arrested to review the protocol on administrative violation;
91.0.3. on arrested person request shall inform his close relatives, employer or place of study, as well as advocate about the fact of arrest;
91.0.4. shall immediately inform about the arrest of not adult person to his parents or legal representatives;
91.0.5. in relations with the person arrested shall maintain the respect to his personality and dignity;
91.0.6. provides the person arrested with opportunity to get hold of his advocate and meet him;
91.0.7. in the absence of the personal advocate of the person arrested, provide him with the list of advocates who provide legal consulting services at the places of arrest and other entities in accordance with the legislation of the Azerbaijan Republic, helps him to maintain contacts with advocate.
Law enforcement agency that attracted B. Mammadov to administrative responsibility, violated almost all the items of a given procedural rule.
The Code of the Azerbaijan Republic on administrative vviolations also regulates judge’s authority, considering administrative violation case. In such way, according to Article 106.0 of the Code, judge, authorized body (official) shall decide on following issues when prepares for consideration of administrative violation case:
106.0.1. if consideration of this case is within his competence;
106.0.2. if there are circumstances that exclude the possibility of case consideration by the judge, collegial body member, authorized official;
106.0.3. if protocol on administrative violation and other materials of the case are in accordance with requirements of this Code;
106.0.4. if there are circumstances, that exclude the possibility of case execution;
106.0.5. if there are sufficient evidences for case consideration;
106.0.6. if a person participating in the case is notified about time and location of the trial;
106.0.7. if there are petitions and overrules on the case.
Consideration of B. Mammadov’s case at the Court of First Instance, and at the Court of Appeal was held formally. The circumstances of the case were not considered, defender’s appeals were not accepted, no instructions were given on presentation of additional facts (videos from the exterior cameras and etc).
Right for freedom was violated towards Bayram Mammadov. This right is prescribed by Article 28 of the Constitution of the Azerbaijan Republic:
I. Everyone has the right for freedom.
II. Right for freedom might be re stricter only as specified by law, by way of detention, arrest or imprisonment.

This norm is also prescribed by Article 5 (1) of European Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits arbitrary arrests. Precedents of European Court on Human Rights ( ECHR) that are obligatory in nature for Member States of Council of Europe, also secure the right for freedom. Precedents of ECHR repeatedly underline the fact that for a person’s detention, the reasonable suspicions are necessary that could convince wing side spectator that a crime was committed.
The statement on beatings and torture of Bayram Mammadov was fully ignored. In such way,  the norms of national legislation of the AR and international law were violated.
In accordance with Article 46 of the Constitution of the AR: “Nobody must be subject to tortures and torment, treatment or punishment humiliating the dignity of human beings.”
International law categorically prohibits tortures: Article 3 of European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5 of the Universal Declaration of Human Rights, as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Precedents of European Court on Human Rights repeatedly underlined the prohibition on tortures and inhuman treatment. Bodies that  receive statement on tortures, beatings must fully, thoroughly and objectively investigate them, and also bring culprits to the responsibility. Despite the fact that users of social networks published the photos of official
Panah Hasan oglu Mikayilov, sergeant of police of the Department of Ministry of Internal Affairs of Binagadi District, who, according to testimony, beat Bayram Mammadov, neither court, nor Prosecutor Office examined this fact.

Thus, the former “prisoner of conscience” Bayram Mammadov was unlawfully and groundlessly attracted to administrative responsibility, and his statement on torture and beatings were not investigated by law enforcement agencies and courts.
Baku Court of Appeal found Bayram Mammadov guilty
INSTITUTE FOR PEACE AND DEMOCRACY