The unjustified court ruling led to the illegitimate and unlaüful arrest of Elkhan Zaman


Elkhan Zaman

Analysis of violation of law during Elkhan Zaman’s judicial proceedings

Absheron District Court

Case № 4 (012)-352/2023

15 May 2023

Presiding judge: Sevinj Quliyeva

Defender: Vagif Bayramov

Defendant: Elkhan Zaman

The plaintiff: Majid Majidli, a captain Investigator of the Investigation Division of the Absheron District Police Department


Elkhan Zaman, a Shiite believer, was born in Baku in 1968, has a university degree in economics and worked as an accountant prior to his arrest. On 13 May 2023, he was detained due to the deterioration of relations between Azerbaijan and the Islamic Republic of Iran.

He was searched at the Absheron District Police Department, and as a result, it had been found 6.013 grams of the psychotropic drug methamphetamine.

The investigative body charged Elkhan Zaman with committing an offence under the Article 234.1.1 (Illegal acquisition, storage, manufacture, processing, transportation without purpose of sale of narcotic drugs or psychotropic substances in significant quantities, committed in large amounts) of the Criminal Code of the Azerbaijan Republic.

Despite the court’s notification, a prosecutor supervising the preliminary investigation did not attend the trial on which the preventive measure was to be imposed.

The captain of the Investigation Division of the Absheron District Police Department who attended the trial supported his motion and asked the Court to elect a preventive measure against Elkhan Zaman in the form of detention for a period of 4 months. The investigator insisted taking into account the public danger of the offence, potentiality of committing a new offence, or interference in the normal course of the investigation and trial, as well as the risk of absconding from the judicial authority.

In the course of the trial the defendant pleaded not guilty and asked the court to decline the investigator’s request for his detention.

On 15 May 2023, the Absheron District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Elkan Zaman in the form of detention for a period of 3 months.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The National Criminal Procedure Legislation of Azerbaijan is focused on:

  • the possibility of identifying and prosecuting anyone who has committed an act that the law recognises as an offence;
  • the impossibility of unlawful suspicion, accusation or condemnation of arbitrary actions on the part of officials conducting the criminal proceedings
  • non-application of unlawful or unnecessary procedural coercive measures, or other restrictions on human and civil rights and freedoms against anyone (Article 1.2. of Azerbaijan Republic Criminal Procedure Code).

Punishing the guilty one and releasing the innocent are the key principles of justice as enshrined in the above-mentioned law. These principles are particularly important in such judicial systems as in Azerbaijan, where, the judiciary tends to be dependent on the executive power.

Further we shall examine the case in which these principles were also violated.

So, according to the Article 154.2 of the Criminal Procedure Code of the Azerbaijan Republic, restrictive measures may be the following:

  • arrest;
  • house arrest;
  • bail;
  • restraining order;
  • personal surety;
  • surety offered by an organisation;
  • police supervision;
  • supervision;
  • military observation;
  • removal from office or position.

As it can be seen, a complete isolation from the society is an arrest, the harshest preventive measure. It has limited applicability in the national criminal procedure legislation. In practice, as a rule, arrest is applied in almost all cases when a detainee is held by the investigative body, and in all cases when the detainee is a political or social activist, journalist, or someone in opposition to the authorities.

The isolation of an individual from the society by means of arrest is such a common phenomenon that courts do not bother to justify rulings on arrest and do not provide any particular reasons. These rulings are usually formal, they are copied from each other and only names and articles have been changed.

The present case does not differ from other similar ones. The judgement in the case of Elkhan Zaman also is formal in nature, referring to the same Articles and lacking any reasoning and justification.

The Decision of the Azerbaijan Republic Supreme Court Plenum “On the practice of the Courts on consideration of applications regarding the preventive measures in the form of arrest and house arrest” from 3 November 2009 stated that the Courts make a number of violations while implementing the legislation, in particular, they do not verify the validity of the submitted applications for the arrests; the rulings do not clarify the grounds for election of the strictest preventive measure stipulated in the AR CC, Article 154.2 ; they use such broad statements as “the risk of absconding from the investigative body”, “interfere with the normal course of the investigation”, “evade appearing upon summons by the body conducting the criminal proceedings”, the Courts do not refer to any factual circumstances supporting the suspicion.

As we can see, the Supreme Court Plenum of the Azerbaijan Republic confirmed the lack of validity not only of the petitions for arrest but also of the judicial rulings.

According to the Supreme Court Plenum Resolution, paragraph 4, it was clarified that the Courts should first of all refer to the Article 154 of the Criminal Code of the Azerbaijan Republic, when considering implementation of preventive measures, and upon satisfaction of the applications they should justify the impossibility of implementation of a preventive measure other than arrest.

Despite the fact that 14 years have passed since the above mentioned Resolution of the Azerbaijan Republic Supreme Court Plenum, the National Courts still commit such mistakes that lead to illegitimate arrests.

The following grounds on the measure of restraint against Elkhan Zaman are stated in the judicial ruling:

  • the risk of absconding from the body conducting the criminal proceedings;
  • the risk of committing a new offence and danger to the society;
  • interference in the normal course of the preliminary investigation.

As noted above, apart from these grounds and listing of the Criminal Procedure Code of the Azerbaijan Republic Articles, there was nothing else in the ruling: not a single argument, reasoning, finding or evidence.

In this case, the arrest of Elkhan Zaman cannot be considered as legitimate and lawful.

The Right to Freedom is enshrined in both National and International Law. Thus, the Article 28 of the Azerbaijani Constitution stipulates the protection of a citizen against arbitrary arrest. The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1), guarantees a fundamental right among the most important Rights: the Right to Liberty and Personal Inviolability. The protection provided by this norm is strict insofar as this Article provides an exhaustive list of deprivation of liberty cases and defines a precise framework to protect individuals from arbitrary detention. To this effect, the European Convention for the Protection of Human Rights and Fundamental Freedoms renders the National Judiciary the true guardian of individuals’ liberty.

The judgment of the European Court of Human Rights in the case of Kurt v. Turkey of 25 May 1998 states:

“The Court notes at the outset the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is precisely for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness  This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5 § 1 circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute” –{%22fulltext%22:[%22\%22CASE%20OF%20KURT%20v.%20TURKEY\%22%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58198%22]}

The unjustified judicial ruling caused the illegitimate and unlawful arrest of Elkhan Zaman, his groundless, prolonged isolation from the society and the gross violation of his Right to Liberty and Personal Inviolability.