There is no such thing as “special quarantine regime” in the legislation

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- The quarantine regime has been applied in Azerbaijan for about a month. First, some laws were amended, and then the quarantine regime was tightened. Is there a legal basis for the implementation of these laws, as well as many rules imposed in the quarantine regime? Were the provisions of the Constitution and all legislation taken into account in making these decisions?

- The special quarantine regime was applied in accordance with Article 25 of the Law on Sanitary and Epidemiological Safety. Interestingly, the law was adopted in 1992 and is still in force, despite several changes. According to Article 25 of the Law, “in the event of a threat of the emergence or spread of infectious, parasitic, and mass non-communicable diseases, The Government of Azerbaijan, the Chief Sanitary Doctors shall, within the scope of their authority, apply special labor, education, movement, transportation conditions and regimes in the relevant areas or facilities in accordance with the established procedure.” The special quarantine regime, which came into force on March 24, was subsequently tightened by Prime Minister's Decisions No. 120 of 30 March 2020 and No. 124 of 2 April 2020.

As can be seen from the article of the law referred to as the legal basis of the special quarantine regime, this regime can be applied "in the relevant areas" or "facilities". However, the current quarantine regime, as is well known, has been applied throughout the country, which is a clear inconsistency with the requirements of the law.

On the other hand, the restrictions imposed by the special quarantine regime and the additional responsibilities imposed on people are in clear conflict with both the Constitution of Azerbaijan and the conventions to which the country is a party. In particular, I especially mean restrictions on people's freedom of movement. According to Article 28 of the Constitution, everyone in the territory of the Republic of Azerbaijan can freely move, choose a place of residence, and leave the country. Article 2 of Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms also provides for the freedom of movement of people and states that restrictions shall be placed on the exercise of freedom of movement of people which are in accordance with law and are necessary in a democratic society to protect public safety, public order, health or morals.

The protection of health may indeed seem like a legitimate goal here, but we cannot say that the restrictions are "in accordance with law ".

- Many lawyers equate the current strict quarantine regime with a state of emergency. If so, why wasn’t the state of emergency declared? What is deterring the government from declaring a state of emergency?

- First of all, there is no such thing as a "special quarantine regime" in Azerbaijani legislation. This regime is more like a state of emergency due to its symptoms and the special legal consequences it creates. Like everyone else, my expectation was the declaration of a state of emergency in connection with the pandemic in accordance with Article 112 of the Constitution and the requirements of the Law on the State of Emergency. Only in this way, the measures taken now and the temporary restrictions could be legitimate. Rights and freedoms may be restricted more than usual when natural disasters, epidemics, major environmental and other disasters occur; as well as when actions aimed at violating the territorial integrity of the country, rebellion, or coup d’état are taken; when mass riots accompanied by violence occur; and in other emergencies. In such a case, according to the theory of "necessity", rights and freedoms are widely restricted, regardless of the existing legal system. It is difficult to give a concrete and definitive opinion on the reasons for the no declaration of a state of emergency, but some considerations can be made. According to the law, a number of political events - referendums or elections - may not be held during a state of emergency, as well as within 3 months after the abolition of the state of emergency. Maybe there are some plans in this direction that we do not know. At the same time, extensive guarantees of property and social rights of all legal entities and individuals during the state of emergency are envisaged. Probable reasons may include the government's avoidance of this obligation. Another version does not come to mind.

- Many people are fined or sentenced to administrative detention after the quarantine regime has been applied. Is there a legal basis for this? Especially when you look at the detainees, you get the impression that opposition activists are more being arrested on charges of violating the quarantine regime. What does it mean? Many say the government uses the quarantine regime for its own political purposes and has the members of the opposition arrested. If this is true, why is the government doing it now? What could be the goal?

- The number of people brought to administrative and criminal responsibility for allegations of violation of the quarantine regime is growing every day and we are talking about tens of thousands of people. As for the persecuted political activists, I am familiar with the case of three opposition activists who were administratively arrested. These are the cases of Faig Amirli, director of the Azadlig newspaper and a member of the Azerbaijan Popular Front Party (APFP), Anar Malikov, a member of the Supreme Assembly of the APFP, and Vafadar Aliyev, an activist of the ADR movement. According to the decision of the Cabinet of Ministers dated April 2, 2020, on additional measures to prevent the spread of coronavirus infection in the territory of the Republic of Azerbaijan, a system of permission to leave the place of residence has been applied, except for some individuals. For this purpose, the procedure for sending SMS to 8103 has been determined. According to Article 1.1.11 of this decision, employees of the mass media were allowed to move freely on the basis of service cards or a certificate of employment. Faig Amirli was abducted near his home. He told police and the court that he was the director of the Azadlig newspaper, i.e. a journalist, and that the permit system to leave his residence did not apply to him. However, neither police officers nor the court examined whether he was, in fact, a journalist and whether he worked for the Azadlig newspaper. In other words, the police and the court not only investigated the fact that Faig was a journalist but also did not show such enthusiasm and desire generally; as a result, he was administratively detained for a month. However, the Sabail District Court, which issued an administrative detention order against him, ruled in July 2017 that Faig Amirli was sentenced to 3 years and 3 months in prison and fined 39,000 AZN under Articles 213.1 (significant tax evasion) and 308 (abuse of office) of the Criminal Code on the grounds that he was the director of the Azadlig newspaper. It is impossible to understand what this double standard is.

Or the administrative violation report on Vafadar Aliyev states that the police officers saw him in the yard of the building where he lived and asked him if he had official permission to leave his residence due to the special quarantine regime, and asked for an identity document. However, he said that his official permission and identity document were not on it. Then when he was called to the police station, he was rude to police officers,  used unpleasant expressions against them, and tried to avoid going to the police station. And after all this, he was taken to the police station, where an administrative violation report was drawn up stating that he did not comply with the lawful request of the police. However, ordinary logic and law required that Vafadar Aliyev be subjected to an administrative reprimand under Article 211, not Article 535.1 (non-compliance with the lawful request of the police) of the Code of Administrative Offenses.

- Another example. The decision of the Jalilabad District Court on Anar Malikov, a member of the Supreme Assembly of the APFP, states that on March 18, he caused confusion among the population by spreading false information about the quarantine period on Facebook. First, the quarantine regime has been applied since March 24; second, how can any critical status posted on a social network violate the regime against epidemic?

- On the other hand, in the court decisions on all three persons, why the application of the maximum limit of the sanction, which was provided for in the sanction of the articles on which they were administratively punished, (1 month) or, in the best case, 10 days of administrative detention is not justified. Even if we assume that their actions had the elements of an administrative offense, the purpose of the administrative reprimand could be achieved with a fine. As they say, “to my friends, anything; to my enemies, the law!”

My purpose in giving these three examples is to show the real situation and the state of jurisprudence for alleged violations of the quarantine regime. When you read such decisions, you have no choice but to confirm what you said in the second part of the question.

- One of the decisions taken in the quarantine regime is the issue of providing benefits to the unemployed, those who lost their job, those who deprived of daily earnings that the rigidity and inaccessibility of this decision have become the subject of discussion. For example, those who own share lands or receive benefits in any form and citizens, whose one family member works, are not provided with these benefits. Are there legal and legitimate grounds for the adoption of such rules?

- According to the Law on Employment, unemployed people are those who do not have a job and income, are ready to start a job, but have not been able to find a job, are registered as unemployed, and are of working age. It is interesting that in this law, those who own a share land suitable for agriculture, members of family farms are included in the list of employed persons. This is the legal basis for non-payment of benefits to these people. However, the fact that any person owns a share land should not mean that he/she is an employed person. Financial resources, agricultural equipment, etc. are needed to cultivate these share lands. There are so many people who own share land but are unemployed. The mere fact of owning land cannot be considered sufficient not to be considered unemployed. Let's hope that one day they will make amendments, taking into account the problems created by this article of the Law on Employment. No, if they insist on it, then the state's responsibilities in the field of employment must be continuously implemented, financial-credit, insurance, investment, and tax policy measures aimed at organizing and developing entrepreneurship and labor activity, encouraging the introduction of flexible work regimes must be implemented.

The non-application of the decision of the Prime Minister “On the approval of the terms and conditions of payment of lump sum to persons registered as unemployed due to the application of a special quarantine regime during the coronavirus (COVID-19) pandemic” dated April 7, 2020, to members of families receiving targeted state social assistance, labor pensioners, recipients of monthly benefits and pensions, persons provided with the property under the self-employment program, recipients of unemployment insurance benefits, etc. is not adequate to the current difficult economic situation. The same can be said about paying a lump sum to only one family member (husband or wife).

- One of the confusing issues is related to the activities of journalists. Even though the rules allowed the activities of mass media representatives, permission was subsequently required for this activity. The activities of journalists without employment contracts were made more difficult. Isn't this against freedom of the media?

- According to the decision of the Cabinet of Ministers dated April 2, 2020, mass media workers were allowed to move freely on the basis of service cards or a certificate of employment. According to the Law on Mass Media, the status of a journalist applies to full-time and freelance correspondents of the mass media engaged in the collection, preparation, editing, and production of information. Although not provided for in the decision, the Operational Headquarters under the Cabinet of Ministers later warned that this privilege could only be granted to persons belonging to any media outlet under a service contract. First of all, a person's desire to work under an employment or service contract depends on his/her choice based on his/her free will. According to the civil legislation of the Republic of Azerbaijan, it is the exclusive right of the parties to conclude any contract and determine the terms of that contract, individuals and legal entities are free to conclude contracts and determine the content of these contracts. The journalist has the right to conclude an employment or civil contract with the editorial office of the mass media outlet with which he/she cooperates and to agree on the terms of that contract in accordance with his/her wishes.

By the way, the status of a journalist can be applied not only to registered mass media workers in the country, but also to unregistered Internet TV and website employees, or completely independent bloggers.

For this reason, such a warning from the Operational Headquarters is inappropriate and illegal, contradicting Article 50 of the Constitution (Freedom of Information), Article 10 of the European Convention (Freedom of Expression) and other relevant laws. Therefore, regardless of whether there is an employment or service contract, conditions should be created for journalists to carry out their professional activities, and there should be no restrictions or obstacles to their collection, preparation, and dissemination of information.

- At such times, during the unexpected pandemic period, what legal and legitimate rules should the government have applied in accordance with the Constitution, the legislation of Azerbaijan, in order to avoid dissatisfaction?

- The only legal step was to declare a state of emergency. In this case, the measures taken and the temporary restrictions could be justified. This is what Article 112 of the Constitution required. At the same time, in accordance with Article 15 of the European Convention, in time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. Measures such as unprecedented restrictions on people's freedom of movement, complete cessation of communication between districts and cities with minor exceptions, restriction of traffic and their periodic inspections, verification of identity documents of citizens, etc. could only be legitimate in this case, and the full or partial restriction of human and citizen’s rights and freedoms would not raise numerous questions or create problems.-0-