A DRUG FIGHTER WAS JAILED FOR HAVING POSSESSED DRUGS
Analysis of violation of law during Razi Humbatov’s judicial proceedings
Baku Grave Crimes Court
20 May 2022
Presiding judge: Telman Huseynov
Defendant: Razi Humbatov
Defenders: Javad Javadov, Gunay Hajiyeva
State Prosecutors: Rauf Malyshev and Valeh Alakparov, the prosecutors of the Department of Public Prosecution Support on Serious Prosecutions within the General Prosecutor’s Office of the Azerbaijan Republic
Razi Humbatov, born in 1985, a member of the Muslim Unity Movement, was detained as a suspect in connection with an offence under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic on 7 July, 2021.
According to the investigation, at around 13:00 on 7 July 2021, Razi Humbatov’s car was stopped by the officers of the Department for Combating Organized Crime within Azerbaijani Ministry of Internal Affairs. R.Humbatov was taken to the Department for personal examination. As a result of that inspection, it was found that he had been carrying 66.132 grams of the narcotic substance tiryak.
In the course of the trial, Razi Humbatov testified that he was a member of the “Muslim Unity” Movement, ran for the local municipal council in 2019, and on 20 January, 2020, was summoned to the Department of Organized Crime, where he was requested to resign from the “Movement”. Razi Humbatov had been carrying out his activities as a member of the Movement since 2020. Humbatov had been conducting educational campaigns against drug addiction, which led to three burglaries at his house in April 2021. According in his words, it was intended to discourage him to continue his work. The police department and the 102 service were informed by Humbatov. The district police officer stated that the robbery might be committed by some drug addicts.
- Humbatov was certain that his arrest had to do with his awareness-raising activities against the drug addiction, which he had conducted in schools, kindergartens and other crowded places. On the day of his detention, he was waiting for a friend in his car when a man grabbed his arm and forced him out of the vehicle. He initially thought it might be a junkie, but soon it turned out to be an employee of the Department for Combating Organized Crime, to which he was later taken. He did not show any resistance upon apprehension, but the police officers who arrested him started verbally abusing and beating him demanding that he should take responsibility for the committed offence. At the Department, the chief, identified as Elnur, put the drugs on the table in front of him and said that if he did not admit it belonged to him, he would be charged with the weapons possession. In order not to be subjected to further pressure and protect his family, R. Humbatov was forced to make a self-incriminating confession.
- Humbatov also testified to the fact that there had been two video recordings of him in the Department. During the first video recording he had forgotten the word “tiryak”, and the recording was therefore suspended. On the second occasion, he was told that he had allegedly purchased the drugs from a man named Ali. Razi Humbatov was unable to pronounce that name, as it was a religious one (the name of a companion of the Prophet Muhammad), therefore he said that he had allegedly bought the drugs from a man named Ruslan. When R. Humbatov was detained, the residents of the village of Jeyranbatan, where he was residing, collected signatures and appealed to the relevant authorities to release Razi Humbatov. At the trial, he also indicated that he had no knowledge of drugs or how to use them. R. Humbatov also said that he had no regrets about his anti-drug educational activities but that he would not continue doing so after his release. He plans to renounce his Azerbaijani citizenship.
In response to questions posed by the trial participants, R. Humbatov replied that he had not been subjected to a personal search during his detention, the officer had twisted his head, put him in the car and punched him in the neck and back. The man sitting in the front seat of the vehicle had been insulting him. While in the Department, he had been beaten with a truncheon, insulted and threatened that his brother would be also brought in. Back on 20 January 2020, R. Humbatov was summoned to the police and an officer named Jafar explained the reason for his summons by pointing out on Humbatov’s affiliation with the “Muslim Unity” Movement. He was demanded to quit the Movement under the threat that he would end badly.
- Humbatov also claimed that prior to the videotaping, they had put some drugs in his pocket, read out the statement he should have made, and only then called his lawyer. R. Humbatov also testified that during the examination of his phone nothing suspicious had been found.
During the trial, Shahin Sharifov, Tunar Allahverdiyev and Ilham Ismayilov, the Interior Ministry’s Department for Combating Organised Crime employees were questioned as witnesses. They confirmed the investigation’s version and testified that R. Humbatov had not been subjected to physical or psychological pressure.
According to a forensic medical examination dated 26 July 2021, it was found that heroin in Humbatov’s blood and urine. No other drugs had been detected.
A forensic narcological examination conducted on 23 August 2021, revealed that R. Humbatov had neither suffered from drug addiction nor required compulsory treatment.
The report of the phone inspection carried out on 12 August 2021, indicated that a mobile phone belonging to R. Humbatov did not reveal any information or evidence that was related to the case.
According to the forensic psychiatric examinations conducted on 24 August and 27 December 2021 and 12 March 2022, R. Humbatov was not suffering from any mental illness and was in his sane state of mind at the time of the crime he was charged with.
Based on the decision not to institute criminal proceedings issued on 15 September, 2021, it follows that the actions of Shahin Sharifov, Ilham Ismayilov and Turan Allahverdiyev from the Department for Combating Organized Crime did not constitute an offence of physical and psychological pressure on R. Humbatov.
The court assessed R. Humbatov’s testimony as unreliable and not supported by any other evidences. However, the court concluded that Razi Humbatov’s guilt had been fully proven in the course of the trial.
On 20 May 2022, the Baku Grave Crimes Court issued the following verdict against R. Humbatov: find Razi Humbatov to be guilty of the charges brought against him and sentence him to a six-year term of imprisonment to be served in a general regime penal colony.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified. The Article 3 of the Law of the Azerbaijan Republic On Courts and Judges states:
Activity of the courts of the Republic of Azerbaijan is aimed solely at the administration of justice and, in cases and order provided by legislation, at the enforcement of judicial supervision. While administering justice, courts protect rights and freedoms of person and citizen, rights and lawful interests of all enterprises, establishments and organizations irrespective of the form of property, political parties, civil associations, other legal persons, from any encroachments and law violations, fulfil other objectives provided for in Constitution of the Republic of Azerbaijan and this Law. Vesting of other objectives on courts is inadmissible.
Like other politically motivated cases, the court once again played the role of a reprisal authority in this criminal case. In order to be sure of that, let us look at the violations in details.
The case evidences consist of the police testimonies, forensic examinations, the defendant’s testimony, and some law enforcement statements.
The authority that detained R. Humbatov was the Department for Combating Organized Crime of the Interior Ministry, and the witnesses in the case were also employees of that Department and therefore subordinated to it.
As indicated above, the defendant’s testimonies had not been either verified and examined in detail, or been given a legal assessment. On the contrary, his testimonies were assessed by the court as unsubstantiated. Razi Humbatov indicated he had been subjected to physical and psychological abuse. It is well known that the law enforcement officers often use torture on detainees. In this regard, there are numerous accounts confirmed by various local and international human rights organizations, as well as the decisions against Azerbaijan issued by the European Court of Human Rights (ECHR), confirming the facts of torture in the law enforcement authorities. Mr. Humbatov described in details how he had been treated by the Department officers, the methods they had used and how they had obtained his “confession”. Unfortunately, the measures applied to R. Humbatov were virtually identical to those applied to other political detainees.
Torture and abuse are prohibited by both domestic Laws and International Conventions.
The Article 13 of the Code of Criminal Procedure of the Azerbaijan Republic state:
13.2. During a criminal prosecution nobody shall:
13.2.1. be subjected to treatment or punishment that debases human dignity;
13.2.2. be held in conditions that debase human dignity;
13.2.3. be forced to participate in carrying out procedures that debase human dignity.
The Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms prohibits torture and other ill-treatment:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
The Article 5 of the Universal Declaration of Human Rights and the Article 7 of the International Covenant on Civil and Political Rights are also without exception and specifically prohibit torture and ill-treatment. There are no exceptions in these legal provisions.
This Norm protects precisely the dignity and physical integrity of the individual. In order for ill-treatment to constitute a violation of the Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, it must attain a minimum level of severity. According to ECHR jurisprudence, this Article sets a particularly stringent framework for a State’s action or inaction insofar as it seeks to protect the dignity, and both physical and mental integrity of a individual. Even in the most controversial cases, such as the fight against terrorism and organized crime, any public authorities must abstain from any conduct that could be considered as treatment prohibited by this provision. Such a treatment will never be tolerated, whatever the frightening consequences, real or perceived, for the effective fight against crime. In addition, there is a positive state obligation to ensure that no one is subjected to prohibited treatment. Thus, if a detainee claims in his defence that he has been subjected to the ill-treatment stipulated in the Norm in question, an efficient official investigation must be carried out to identify those in charge in order to punish them.
A judgment of the ECHR in the case of Ilhan v. Turkey from 27 June 2000, stated:
The Court has determined that the meaning of an effective legal remedy in this context includes the duty to carry out a full and effective investigation aimed at identifying and punishing those responsible for the ill-treatment and allowing the petitioner free access to the investigation process. Thus, to find a procedural violation of Article 3 of the Convention will therefore depend on the particular circumstances in each case”.
The ECHR judgment in the case of Campbell and Cozans v. the United Kingdom from 23 March 1983, states:
A mere threat in respect of treatment prohibited by the Article 3 may fall within the scope of this Article if it is reasonably serious and imminent. Thus, a threat to someone to torture him or her could, in particular circumstances, constitute at least ‘inhuman treatment’. –
In this case, there was no effective investigation despite the fact that the defendant had accurately identified those who had tortured him.
According to the Article 1 of the European Prison Rules,
- All persons deprived of their liberty shall be treated with respect for their human rights.
- Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.
3 Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.
Apart from the prohibition of torture, the domestic law prohibits obtaining testimonies through the use of torture and other unlawful methods.
According to the Article 15 of the Code of Criminal Procedure of the Azerbaijan Republic,
15.2. During the criminal prosecution the following shall be prohibited:
15.2.1. the use of torture and physical and psychological force, including the use of medication, withdrawal of food, hypnosis, deprivation of medical aid and the use of other cruel, inhuman or degrading treatment and punishment;
15.2.2. the imposition of long-term or severe physical pain or acts which are detrimental to health, or any similar ill-treatment;
15.2.3. taking evidence from victims, suspects or accused persons or from other participants in the criminal proceedings using violence, threats, deceit or by other unlawful acts which violate their rights.
In the course of trial, Razi Humbatov testified that he had been subjected to torture and ill-treatment in order to retrieve his “confessions”, which were then used against him.
The Article 66 of the Constitution of the Republic of Azerbaijan states:
Nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister. Complete list of relations against whom testifying is not obligatory is specified by law.
The International legal framework refers to this right as the “right to silence”. Whilst the “right to silence” is not explicitly mentioned in the Article 6 (1) of the European Convention, the European Court of Human Rights’ practice nevertheless implies it.
The ECHR judgment in the case of Saunders v. the United Kingdom from 17 December 1996, states:
The Court recalls that although the Right to silence and the Right not to incriminate oneself are not expressly mentioned in the text of the Article 6 of the Convention, these two Rights are nonetheless generally binding provisions of the International Norms that form the core of the fair trial concept referred to in the Article 6. Their justification, inter alia, is anchored primarily in protecting the accused against unlawful coercion by the authorities, and thereby helping to avoid legal errors and achieve the objectives set out in the Article 6 (…). In particular, the right not to testify against oneself encourages the prosecution in a criminal case by seeking to prove the guilt of the accused without resorting to evidence obtained against the will of the accused through coercion or pressure. In this sense, this Right is closely linked to the principle of the presumption of innocence enshrined in the Article 6 § 2 of the Convention. – https://www.studeersnel.nl/nl/document/rijksuniversiteit-groningen/strafrecht-3-nieuw-form-straf/saunders-v-the-united-kingdom/1536160
The above-mentioned information concerned the evidence that had been submitted to the court by the investigative authority. These pieces of evidence were not sufficient to convict Razi Humbatov and impose a further six-year sentence.
The criminal prosecution proofs are considered to be credible evidences (information, documents, things) obtained by the court or the parties of the criminal proceeding. Such evidences:
- must be obtained in compliance with the requirements of criminal procedural law without restricting the constitutional rights and freedoms of individuals and citizens or with a limitation by a court order (or, in urgent cases specified in this Code, by order of the investigating officer);
- must demonstrate whether a crime has occurred, whether there are elements of a crime in the committed act, whether the act was committed by the accused, his guilt or innocence, as well as other circumstances relevant to the proper determination of the charge. (Article 124.1 of the Code of Criminal Procedure of the Azerbaijan Republic).
The collected evidences in the case did not prove that the drugs belonged to R. Humbatov and, therefore, that he had committed the offence. It were not sufficient proves to convict R. Humbatov and impose a sentence of long-term imprisonment. In the final part of the judgment the Court did not state the reason why R. Humbatov’s testimony was not considered on an equal footing with the other evidences.
According to the Article 126.4 of the Code of Criminal Procedure of the Azerbaijan Republic,
126.4. The value of evidence may not be assigned to statements given in the following situations:
126.4.1. when a person is agreed to be unable to comprehend or describe matters significant to the prosecution at the appropriate time;
126.4.2. when a person refuses to undergo an examination by experts of his ability to comprehend or describe matters significant to the prosecution.
As can be clearly seen above, in all other cases the Court is obliged to treat fairly all evidences including the defendant’s testimonies.
The Court entirely relied on the experts’ conclusions that had been conducted in the case and adopted those opinions as irrefutable. Although, the Article 127.3 of the Code of Criminal Procedure of the Azerbaijan Republic states that an experts’ conclusion is non-binding for an investigator, prosecutor or the Court, it, like any other evidence, must be examined and assessed by the authority conducting the criminal proceedings in connection with all the circumstances of a case.
In sum, the evidence adduced by the investigating authority appeared to be credible and irrefutable for the Court, while the evidence submitted by the defendant and his lawyer were dubious.
In this case, as in other “sensitive” cases, the defendant’s fundamental rights and freedoms were violated. The violation of the right to liberty, the right to qualified legal aid, the prohibition of torture and other related rights and freedoms have generally resulted in the violation of the right to a fair trial, which covers not only the trial proceedings but also the handling of the case at the pre-trial investigation stage