Illegal ban on the movement of citizens

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- Alasgar bey, is there a legal basis for the government's ban on people’s leaving their homes on Saturday and Sunday, as well as other restrictions? Were the provisions of the Constitution and legislation taken into account during the application of these rules?

- If we summarize it, quarantine rules have been implemented systematically so far. In this regard, the government referred to the "Law of the Republic of Azerbaijan on Sanitary and Epidemiological Safety" adopted in 1992. It is true that the law was amended in 2018 and at different times. However, the issue of the power to apply the quarantine regime directly, including the transfer of the power to adopt normative legal acts in this regard to the executive body is seriously controversial in view of the current Constitutional Law on Normative Legal Acts and the Constitution itself. The Constitution clearly states that the rights and freedoms enshrined in the Constitution may be restricted only if it is explicitly expressed in law. The law does not, for example, prohibit going outside or apply curfews in general. These cases are stipulated in the Constitution in the state of emergency. Therefore, without imposing a state of emergency, to close all major cities in general, to apply curfew, even to the courtyard, in short, to force people to sit between the four walls, is not only a restriction of fundamental rights but a complete ban of them. Even the law adopted in 1992 provides for certain regulations and does not provide for restrictions. Regulation is always understood as a restriction in our country. It should not be forgotten that the regulation of fundamental rights and freedoms means its realization within certain limits. For example, a person has to throw away trash or buy bread every day. A certain time must be applied for a person to go out. Previous SMS permissions were regulation. But declaring curfew is a restriction, and the Cabinet of Ministers has no legal right to declare it. Interestingly, there is no decree on the implementation of this law. In general, when the government says an authority, it does not know which ministry it means. There is a decree on the implementation of all laws. The law stated that the quarantine regime should be regulated by the Ministry of Health. In 2004, the name of the Ministry of Health was removed and the relevant executive authority was written instead of it. However, this relevant executive authority has not been identified yet. However, this is implemented by the Cabinet of Ministers and its Operational Headquarters, citing some unknown or officially undisclosed documents. This is a serious flaw. If we discuss this in a serious legal environment, we will see that the Operational Headquarters under the Cabinet of Ministers does not have the right to restrict. It may have the right to regulate, for example, access to a particular area may be restricted at certain hours, and the quarantine regime may be applied on a rotating basis. But applying curfew for 24, 48, or 72 hours and forcing people to stay at home mean completely disregarding this right. The Constitution does not allow it. And in this respect, that law is unconstitutional.

- The application and control of the last Saturday-Sunday quarantine regime were assigned to the Ministry of Internal Affairs. Penalties were considered to be imposed on those who violated quarantine rules. But in fact, we have seen examples of violence against those who break the rules. We witnessed their detention, physical pressure from the police, being pressured into police cars, and being taken to police stations. Was this a legal step? In fact, what legal action should have been taken against a citizen who violated the rules?

- Here the essence of the regime is before us. If a state of emergency was applied, the response to its violation may be more severe. But if it is a question of the government's request to "stay home" over the weekend and making it the norm, then the citizen should be in the lead. Because the goal here is the health of the citizen and the prevention of infectious diseases. The citizen who goes out here is, first of all, a citizen. He/She does not spread infectious diseases, but simply violates the rules of quarantine. An administrative sanction or protocol could be imposed on him/her. However, attacking someone with 4-5 people, treating someone inhumanely, exceeding the function of the police in a way that degrades human dignity are a gross violation of Article 5 of the Law on Police. Because the police must respect fundamental human rights and freedoms in the performance of their duties and even in disarming criminals. There are no criminals here. If a citizen goes out, he/she may have committed an administrative offense. Even the street is controversial here. Because many people did not go out to the street, they just went out into the yard. This should not apply to the yard. The yard is man's own living space. The principle of queuing can be set for going out. The completely applying curfew is a major blow to human health in the name of protecting human health. The immune system and blood circulation of 4-5 people sitting in a house for 72 hours weaken the and there quickly becomes a potential for infection. This is a completely ineffective, unbalanced, and endless restriction.

- In the videos spread on social media, we have witnessed the aggressive attitude of other citizens towards the treatment of people by the police. And a day after the videos were released, units of the Rapid Police Unite and a lot of police were deployed against the area and people. People were taken from their homes half-naked. Does the police have the right to treat people in this way?

- Curfew has been lifted since the 8th of the month. Sunday's protest was a civil protest by citizens against inadequate police intervention. I was not there and I do not have any evidence that they threw garbage to the police there. Maybe they threw water or threw apple peel to prove their existence. It does not matter. But if they throw something, it is a citizen's protest. Citizens have the right to protest. In other countries, there have been times when eggs and tomatoes have been thrown at the prime minister or even the president of the United States. That is, people protest in this form. But it is also necessary to look at the degree of justification of the protested side. There was a case in the European Court. The journalist had used the term "uniformed savage" to describe police brutality, and the local government had restricted the journalist's right to freedom of expression. The European Court ruled that the police had acted so arbitrarily that calling him a "uniformed savage" was an appropriate expression and did not violate freedom of expression. It is almost like that. In our case, the actions of the police are so inadequate that six people used force against one person, beat him and these happened in front of another citizen, and the citizen instinctively protested. Even if they violate the law in this protest, they should be investigated or brought to justice. As a result, it is not a crime. A person sits at home and shouts or protests in some other way. Massive, inhumane treatment of a citizen, such as an attack on an enemy unit, in a way that degrades human dignity, which the Constitution does not allow, is a form of torture. Taking a person out of the house naked, whether morally or physically, is the greatest moral torture. This is unacceptable. In this regard, the police violated Article 5 of the law.

- In civilized countries, if the police had committed such an act, how would they be punished?

- We have already reached a point where the expression of a civilized country is irritating. We see violations everywhere. In any case, wherever there is a law, there is rudeness. Sometimes there are even police officers who abuse their authority and commit crimes, and they are brought to justice. As for what happened in Azerbaijan, if I were a politician, I would think that this is political sabotage. This sabotages the government so that the citizens revolt. But as a lawyer, I think that the government should immediately take legal action and dismiss all officials who exceed their authority. They should not face the citizen again, they should bear legal responsibility.

- But we see from the official information that the ministry defends the police ...

- This is a very scary thing. To treat a citizen so discriminatorily, to humiliate him/her, to see him/her as a commodity, not to see him as a personality, is “to become pregnant with big problems”. It means making the country pregnant with big problems.

- Did any foreign country have such a strict regime, such rules, or such behavior during the pandemic?

- We saw on social media that a citizen was beaten by a police officer in India. And, of course, we laughed a lot at this event. But in normal civilized countries, the law prevails. Precautions are also accepted by society. There are also regulations. For example, if there is a curfew on the weekends in Turkey, bakeries and pharmacies are open. There are home deliveries. Those in need of social assistance are served. But closing the door completely and saying "be there" is not a regulation. This does not happen in any civilized country.

- In your opinion, what legal and lawful rules can the government apply in accordance with the legislation of Azerbaijan in the current situation during the pandemic?

- So far, there have been many steps taken to protect the health of the population, rather than indirect restrictions. Not going out at certain hours and now the fact that recreation centers do not work on weekends prevent contact with different people. To make contact in the office at work and to go to other places on the weekends and make contact with different people are different things. This can cause problems. From this point of view, this type of application may have a certain legal basis. But regulation is important here. That is, to close completely and to restrict are not a regulation. This is disregard for the right. And it causes other problems, such as what happened at the weekend. It is wrong to restrict people from going to the yard or throwing garbage. Health-promoting activities, walking should not be restricted. As long as there is no communication, it may be allowed provided that social distance is maintained. As it is today. There is actually a problem with the regulation. I see the government's approach and sequencing as problematic. For example, the government first took the right steps, then stopped those steps and went for mitigation. The opening of the subway, large shopping malls, and restaurants has been encouraged, and today the number of daily infections has risen from 30 to 300. There is a very clear consequence of the bad governance of the government. Citizens must also be sensitive in a sense. They must maintain social distance, wear a mask, avoid contact as much as possible, and follow hygienic rules.