Another 15 people who had been arrested after the july 2020 action in support of the army were put under house arrest

ANOTHER 15 PEOPLE  WHO HAD  BEEN ARRESTED AFTER THE JULY 2020  ACTION IN SUPPORT OF THE ARMY  WERE PUT UNDER HOUSE ARREST

The trial analysis

Baku City Sabayil District Court

Case №1 (009)-162/2020

7 December 2020

Judge: Agamali Qafarov

The State Prosecutors: The Prosecutors of the Department on State Prosecutions in the Courts of Baku under the Office of State Prosecutors Support of the General Prosecutor of the Azerbaijan Republic – Tural Qahramanov and Suradzh Salmanov

 

In the courtroom there were also attending lawyers

  1. Musa Hasanov, the defence lawyer of the accused Ilkin Aliyev
  2. Chingiz Mansurov, the defence lawyer of the accused Farid Abadov
  3. Vugar Tumasov, the defence lawyer of the accused Sabuhi Mustafayev
  4. Jabbar Bayramov, the defence lawyer of the accused Azar Mammadov
  5. Annagi Mammadli, the defence lawyer of the accused Siyavush Mustafayev
  6. Aqil Lahij, the defence lawyer of the accused Ramid Naqiyev
  7. Elkhan Quliyev, the defence lawyer of the accused Ramiz Babayev
  8. Mirismayil Hadi, the defence lawyer of the accused Parvin Chobanov
  9. Quldisar Karimova, the defence lawyer of the accused Ismayil Mammadov
  10. Elvin Alamov, the defence lawyer of the accused Gunduz Mirzoyev
  11. Azar Rasulov, the defence lawyer of the accused Elnur Jabbarov
  12. Leyla Mammadov, the defence lawyer of the accused Tale Mamishev

 

The defendants participating at the trial by video conference:

  1. Ilkin Aliyev
  2. Elchin Mammadov
  3. Farid Abadov
  4. Mushfiq Vahabov
  5. Sabuhi Mustafayev
  6. Azar Mammadov
  7. Dayanat Movlayev
  8. Siyavush Mustafayev
  9. Ramid Naqiyev
  10. Ramiz Babayev
  11. Ismayil Mammadov
  12. Parvin Chobanov
  13. Gunduz Mirzoyev
  14. Elnur Jabbarov
  15. Tale Mamishev

     

On 13-14 July 2020, in Tovuz, there were violent fights between the two sides on the border of Azerbaijan and Armenia. As a result of the fighting, eleven Azerbaijani army soldiers were killed, including General Polad Hashimov and Colonel Ilqar Mirzoyev.

On 15 July 2020, a meeting in support of the Azerbaijani army was held in Azerbaijan. A large number of people have made a long way from Sumgayit to the center of Baku. The protesters walked from the center of the city to the Presidential Palace, and then to the Parliament building. According to the witnesses, a small group of strangers broke into the Parliament building and caused damage to the state property. As the participants said, those people had been intentionally sent as provocateurs to break the law. The State Security Service employees were also noticed in the crowd on the photos captured during the rally. Following the rally, 36 people were detained and charged with disruption of public order, resistance to the authorities and others.

The defendants Fuad Qahramanli, Mammad Ibrahim, Ayaz Maharramov and Bakhtiyar Imanov were charged with committing crimes under the articles:

  • 3, 32.4, 233 (organization and incitement to activities that facilitate public order violation)
  • 3, 34.2, 315 (organization and participation in resistance or use of violence against a state official)
  • 3, 34.2, 186.2.1. (organization and participation in intentional destruction or damage of property)
  • 3, 34.2, 127.2.1. (organization and participation in intentional infliction causing of a less serious harm to health) of the Criminal Code of the Azerbaijan Republic.

The defendants Ilkin Aliyev, Elchin Mammadov, Farid Abadov, Mushfiq Quliyev, Sabuhi Mustafayev, Asif Yusifli, Seymur Ahmadov, Emin Huseynzade, Elvin Mammadov, Ramiz Babayev, Azar Mammadov, Kamil Mahmudov, Tural Valiyev, Shamsi Rahimli, Dayanat Movlayev, Ramid Naqiyev, Siyavush Mustafayev, Ismayil Hasanov, Vusal Quliyev, Jeyhun Novruzov, Elchin Mehdiyev, Parvin Chobanov, Ismayil Mammadov, Baba Suleymanov, Mahabbat Naqiyev, Telman Seyfullayev, Fariz Mammadov, Gunduz Mirzoyev, Ariz Safarli, Elnur Jabbarov, Mushfiq Quliyev and Jeyhun Mammadov  were charged with committing crimes under the articles:

  • 2, 233 (committing actions facilitating violation of public order or active participation in such actions by a group of individuals upon prior conspiracy)
  • 2, 315 (resistance or use of violence against a state authority by a group of individuals upon prior conspiracy)
  • 2, 186.2.1 (intentional destruction or damage of property by a group of individuals upon prior conspiracy in order to cause significant property damage)
  • 2, 127.2.1 (intentional infliction causing a less serious harm to health by a group of individuals upon prior conspiracy) Criminal Code of Azerbaijan Republic.

All 36 of the accused were sentenced to a 3-month-period in the form of house arrest.

On 17 November 2020, the Prosecutor’s Office submitted a request to the Baku Sabayil District Court to replace the measure of restraint in the form of detention to house arrest. Due to the spread of the coronavirus infection, the court issued a ruling to change the measure of restraint in the form of detention to house arrest after conducting a court hearing via video conference (only the defendants’ attorneys were present in the courtroom). This ruling concerned the 21 defendants: Shamsi Rahimli, Ayaz Maharramov, Seymur Ahmadov, Jeyhun Novruzov, Mushfiq Quliyev, Kamil Mahmudov, Vusal Quliyev, Fuad Qahramanli, Elchin Mehdiyev, Fariz Mammadov, Telman Seyfullayev, Bakhtiyar Imanov, Ismayil Hasanov, Baba Suleymanov, Mammad Ibrahim, Mahabbat Naqiyev, Emin Huseynzade, Tural Valiyev, Ariz Safarli, Asif Yusifli, Jeyhun Mammadov.

The second group of defendants remained in custody until the prosecutor’s office petitioned the court to change their preventive measures.

Having heard the defendants’ arguments and their defence lawyers, the Baku Sabayil District Court ruled to satisfy the investigator’s petition and the prosecutor’s submissions on 7 December 2020. The preventive measure previously selected for the specified group of defendants in the form of detention was changed to house arrest.

 

Commentary by expert lawyer:

The court ruling is only partially lawful and justified. According to the Article 155.1 of the Criminal Procedure Code of the Azerbaijan Republic, restrictive measures may be applied by the relevant preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court when the material in the prosecution file gives sufficient grounds to suppose that the suspect or accused has:

155.1.1. hidden from the prosecuting authority;

155.1.2. obstructed the normal course of the investigation or court proceedings by illegally influencing parties to the criminal proceedings, hiding material significant to the prosecution or engaging in falsification;

155.1.3. committed a further act provided for in criminal law or created a public threat;

155.1.4. failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;

155.1.5. prevented execution of a court judgment.

Despite the fact that the defendants are currently under house arrest, this ruling should be taken with great caution. First, the ruling indicates the following circumstances, according to which the court modified the previously selected preventive measure: the age of the defendants, their involvement in less serious crimes, health and marital status, also their permanent place of residence, and other circumstances. Second, all of the above-mentioned circumstances were also in existence at the time when the most restrictive measure of restraint, the arrest, was imposed. Moreover, the court did not refer the above-mentioned circumstances to a specific defendant. They were listed in general. The court did not consider the matter on an individual basis. In addition, the court did not specify what circumstances had been changed after the imposed arrests, what reasons caused to change the measure of restraint for a large number of the defendants in the same criminal case.

Although the court ruling looks legitimate and substantiated from a human rights perspective, there are plenty of gaps in the procedural aspect.

The Article 155.2 of the Criminal Procedure Code of the Azerbaijan Republic states, in resolving the question of the necessity for a restrictive measure and which of them to apply to the specific suspect or accused, the preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court shall bear in mind:

155.2.1. the seriousness and nature of the offence with which the suspect or accused is charged and the conditions in which it was committed;

155.2.2. his personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence;

155.2.3. whether he has committed a previous offence, the previous choice of restrictive measure and other significant facts.

155.2.4. the presence or absence of a reconciliation between a suspect or accused and a victim or his/her legal successor or his/her close relative, the compensation for damages caused by the crime, and other significant circumstances.

According to the above article, the preventive measure must be applied to a specific defendant, i.e., the ruling to change the preventive measure must be specified as applicable individually to each defendant.

The court has the authority to impose house arrest on its own initiative. However, the courts usually do not take such an initiative and they just have to wait for the prosecutor’s proposal. That case was not an exception. The court’s initiative on application of house arrest is enshrined in the Article 156.2. of the Azerbaijan Republic Criminal Procedural Code. It states, “…the house arrest may be chosen by the court’s own initiative, at the defence’s request, as well as at the investigator’s or prosecutor’s suggestion, who carries out the preliminary investigation, in the manner prescribed by the Article 163 of this Code”.

In nearly every case, the defence appeals to the court to change the preventive measure, yet the court unreasonably refuses to grant such appeals.

In this case, when the court had previously imposed a preventive measure in the form of arrest upon the defendants, the defense also filed a motion for house arrest and the court denied the defense’s motion. That is what has happened and continues to happen in all cases. However now, when the prosecutor’s office’s submission was filed, the court immediately granted it. This confirms the dependence of the judicial system on the Executive.

There is a clear division of the legislative, executive and judicial authorities in the Constitution of the Azerbaijan Republic. According to the Article 7 of the Constitution of the Azerbaijan Republic:

III. State power in the Azerbaijan Republic is based on a principle of division of powers:

  • Milli Majlis of the Azerbaijan Republic exercises legislative power;
  • executive power belongs to the President of the Azerbaijan Republic;
  • law courts of the Azerbaijan Republic exercise judicial power.
  1. According to provisions of the present Constitution legislative, executive and judicial power interact and are independent within the limits of their authority.

And yet, if we look at the procedure of appointing judges, then what do we see?

The Article 94 of the Law “Courts and Judges” of the Azerbaijan Republic states:

«Subject to part IX Article 109 of the Constitution of the Republic of Azerbaijan, the President of the Republic of Azerbaijan appoints judges of the Republic of Azerbaijan. Subject to part IX Article 109 and part X Article 95 of the Constitution of the Republic of Azerbaijan, Milli Majlis of the Republic of Azerbaijan appoints the judges of the Supreme Court and appellate courts, upon the advice of the President of the Republic of Azerbaijan.

President of the NAR National Assembly participates in selection of the candidates to the post of judges in the NAR. The presidents of the Supreme Court, appellate courts, NAR Supreme Court and serious crimes courts shall be appointed according to the procedure provided for in the paragraph 32 of Section 109 of the Constitution of the Republic of Azerbaijan.»

Apparently, the mentioned articles of the Law “On Courts and Judges” do not provide any information concerning the judges’ independency.

However, the requirement for judges’ independence is particularly emphasized in the Article 100 of the Law “On Courts and Judges”:

Subject to part I article 127 of the Constitution of the Republic of Azerbaijan, judges are independent and bound by the Constitution and acts of the Republic of Azerbaijan. Independence of judges shall be provided by their depoliticizing and securing their inalterability and immunity; laying limitations on the appointment, calling to liability, suspension and termination of their office; operating of the judiciary independently; administrating of justice in order provided by the legislation; preventing of imposing of any limitations on or interference with court proceedings; ensuring their personal safety; and supplying them with the financial and social provisions according to their posts, throughout the entire term of their office. Court judgments shall be based on independent persuasion of judges and trial outcome.

The judges constantly violate this principle when considering a so-called “sensitive” case, or as they say, the case having a “political motive”. When considering the political cases concerning the arrests of political and public activists, journalists and human rights activists, the judges in Azerbaijan are not either independent or objective, as the law prescribes. They carry out the political assignment issued by the executive authorities.

The Article 6 para.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

The International Covenant on Civil and Political Rights, the Article 14, and the Universal Declaration of Human Rights, the Article 10, also enshrine the principle of independence and impartiality of the courts.

Similarly to a certain number of other guarantees provided by the Article 6 para. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the external signs may also acquire significance in relation to what constitutes the independence of the court. “In order to determine whether a given court can be regarded as ‘independent’, attention should be paid, in particular, to the mode of nomination of its members, the duration of their tenure, the existence of guarantees against outside pressure and the existence of outward signs of independence on the body. Thus, the fact that judges are tenured during their term in office is one of the circumstances to be taken into account in this case”. (Decision of the European Court of Human Rights in Langborger v. Sweden, 22 June 1999).

See: http://echr.ketse.com/doc/11179.84-en-19890622/view/

Thus, the court, by issuing a ruling to change the preventive measure, although it ensured the accused the right to freedom (partial), it failed to provide appropriate motivation, thereby violating a number of procedural guarantees stipulated by the criminal procedural legislation.