Does an attempt to march with Soviet symbols constitute criminal liability?

Analysis

On November 7, several individuals were arrested for an attempt to march in connection with the 108th anniversary of the October Revolution, raising the flags of the USSR and the Azerbaijan SSR in Baku. On November 26, the participants of the march, Ibrahim Asadli and Abdulla Ibrahimli, were sentenced to 3 months in pre-trial detention by a court decision. They are charged under Article 233 of the Criminal Code (CC).

“Tribunat” analyzed the incident in the context of a criminal case against the mentioned individuals and freedom of expression and assembly.

The disposition of Article 233 of the Criminal Code criminalizes the following acts:

a) gross violation of public order;

b) or related to disobeying the lawful demands of a representative of the authorities;

c) or actions that cause disruption of transport, the normal functioning of enterprises, institutions and organizations.

Such actions must be organized by a group of individuals or there must be an act of active participation in such acts. The sanction of the article includes a fine, corrective labor, restriction of freedom, as well as imprisonment for up to 3 years.

The Decision of the Plenum of the Constitutional Court on the interpretation of Article 221.3 of the Criminal Code puts forward that “In criminal law, public order is understood as a complex of relations established between people in society that ensure public obeyance, the inviolability of the person and the integrity of property, and the normal functioning of state and public institutions”.

The Commentary on the Criminal Code indicates that gross violation of public order refers to actions that cause significant harm to personal or public interests and have a prejudicial and offensive effect on members of society.

Disobeying the lawful demands of a representative of state authority implies conscious failure to fulfill the lawful demand made by the official.

From the video footage of the attempted march of those individuals, which was circulated in the local media, it is observed that several people are moving in one of the parks in Baku with flags in their hands. No other people are visible around them, no representative of the authorities voicing legitimate demands is visible, and there is no indication of disruption of transport, the normal functioning of institutions, enterprises and organizations at all, since there is no transport in the park, no buildings of departments, enterprises and organizations are located and the like. All in all, an analysis of the footage released reveals that the attempted march was completely peaceful in nature, and was not accompanied by insults to random passersby, disruption of people's peace, and et cetera. This confirms that the attempted march did not constitute any attempt of violation of public order or public morality.

On the other hand, transporting, carrying, marching with and displaying symbols of the former USSR, that is, the promotion of communist ideology as a whole, is not prohibited in the Republic of Azerbaijan, and accordingly, no type of liability, including criminal, is envisaged for this.

Thus, the actions of these individuals do not include any of the acts that fall within the objective aspect of the article in question.

The Constitution of Azerbaijan (Articles 49 and 50) and the European Convention on Human Rights (Articles 10 and 11) stipulate freedom of expression and assembly as one of the fundamental rights.

The arrest, criminal prosecution, and pre-trial detention of the aforementioned individuals 19 days after the attempted march violate named fundamental rights.

Since the interference with their freedom of expression and assembly is not provided for by law, does not pursue any legitimate aim, and is not necessary in a democratic society.

In Şolari v. the Republic of Moldova, the ECtHR stated that the wearing of the red star, which was ubiquitous in several countries under communist regimes, may cause distress and legitimate resentment to the victims of those regimes and their families. Nevertheless, such feelings, however understandable, cannot in themselves restrict freedom of expression (§35).

Freedom of assembly, as enshrined in Article 11 of the Convention, protects demonstrations which may irritate or be offensive to those who oppose the ideas and demands which those exercising that freedom wish to promote (Kudrevičius and Others v. Lithuania, § 145).

In the context of both cited cases, it is especially important to emphasize that there is no information that the attempt by just a handful of individuals to peacefully march in one of Baku's deserted parks with symbols of the USSR caused any sense of anxiety or anger among the residents of the capital or any part of them.

“Tribunat” concludes that the transportation and display of former Soviet symbols does not give rise to any type of liability in Azerbaijan, the actions of these individuals, who are said to be propagating communist ideology, do not contain the elements of Article 233 of the Criminal Code, and the criminal prosecution and arrest of Ibrahim Asadli and Abdulla Ibrahimli by court decisions violate their rights to freedom of expression, opinion and peaceful assembly as stipulated in Articles 5, 10 and 11 of the Convention.