ANOTHER BELIEVER WAS CONVICTED AS A DRUG ADDICT
Samir babayev
Analysis of violation of law during Samir babayev’s judicial proceedings
Baku City Grave Crimes Court
Case № 1(101)-1162/2023
19 October 2023
Presiding judge: Eldar Ismayilov
Judges: Javid Huseynov, Sabuhi Huseynov
Defendant: Samir Babayev
Defender: Fariz Namazli
The State Prosecutor: Fuad Musayev, a Counsellor of Justice, Prosecutor for Support of the State Prosecution within the AR General Prosecutor’s Office
Samir Babayev, born in 1982, is a Shia believer and member of the “Muslim Unity Movement” (MUM), the Chairman of which Tale Bagirzade was found guilty in 2016 under many Articles of the Criminal Code of the Azerbaijan Republic and sentenced to 20 years imprisonment. Many of the MUM members are also imprisoned or have been released and then again brought to criminal responsibility.
Samir Babayev was repeatedly called as a witness to the criminal case against T. Bagirzade and other believers. On 4 February, 2018, he was detained by administrative procedure and sentenced to 60 days under administrative arrest. Besides that, C. Babayev has been subjected to administrative arrests for about 3-4 more times and served different terms.
In 2023, during the escalation of Iranian-Azerbaijani relations following the attack on the Azerbaijani Embassy in Iran, several hundred Shia believers in Azerbaijan have been arrested. Even though the authorities claimed that all those arrested had been agents working for Iran, the officially arrested Shia believers were charged with illegal use of drugs. None of the detainees were charged with espionage, treason or any other offence.
Samir Babayev was no exception.
On 2 December 2022, S.Babayev was brought to the criminal case as a suspect. On 4 December 2022, he was charged with committing an offence under the Article 234.1-1 (Illegal acquisition or storage of drugs or psychotropic substances without the purpose of sale in an amount exceeding the amount necessary for personal consumption, committed in a large amount) of the Criminal Code of the Azerbaijan Republic. A measure of restraint in the form of detention for a period of 4 months has been chosen against S.Babayev, and subsequently that measure has been extended a number of times.
According to the investigation, Samir Babayev was detained on in the course of the police operational-search activities on 2 December 2022. Three bags have been found in his possession: one was weighing 3.148 grams, the others were 3.142 grams and 3.405 grams, with a total of 9.695 grams of the homemade methamphetamine.
On 11 May 2023, the accused S. Babayev, interrogated during the trial, pleaded not guilty and testified that he had been tortured and subjected to ill-treatment when detained and provided testimonies. He testified,
“I was detained near my house when I was on my way to work. They brought me to the Baku Sabunchi District Police Department. All along the road, while we were driving to the Department, I was insulted and beaten. At the Police Department they put drugs on the table in front of me. They said that they would make a video, and I should reach out and show the drugs. I said that the drugs was not mine. A few people started beating me in the area of my head and body. But I did not sign the testimony. Then a representative of the ” gang unit” (Main Department for Combating Organised Crime within the Ministry of Internal Affairs) arrived. He told me that if I had not taken it upon me, they would have planted me with a gun. I replied that I wouldn’t accept either one or the other. I did not sign that testimony. They banged my head against the wall”.
- Babayev also testified that his arrest was due to his membership in the MUM and he had never used drugs.
It should be noted that during the preliminary investigation S. Babayev refused to testify against himself.
Shahriyar Asadov, a senior operative officer from the 14th police station, questioned as a witness during the trial, testified that S. Babayev had been arrested and brought to the 14th police station on 2 December 2022. The narcotic drug methamphetamine had been found in his possession.
Elchin Abilov, an operative office from the 14th Police Department of the Baku City Sabunchi District Police Department, provided the similar testimony and added that the personal examination of S. Babayev had been performed at the police station. It should be noted that Abilov’s name was mentioned in S. Babayev’s testimony when he had been talking about his torture and ill-treatment. E. Abilov denied S. Babayev’s testimony against him, he said that he had not beaten S. Babayev and had any information regarding the religious organisation to which Babayev was affiliated.
The witness, Siraj Veliyev, was questioned in the trial and confirmed his testimony provided at the investigation. Another witness, Qasym Abdullayev, did not turn up in the court, in spite of the order on compulsory attendance. It was established before the Court that the witness had left the territory of Azerbaijan, travelled to Novosibirsk, and the date of his return remained unknown. Therefore, the Court read out his testimony provided at the preliminary investigation.
Rashad Ismayilov, a senior interrogator of the 14th police department, questioned as a witness and summoned at the request of the defence, testified that S. Babayev had been brought to the police station on 2 December 2022. There were two officers there, Shahriyar Asadov and Elchin Abilov. Ismayilov was assigned to conduct a personal examination of S. Babayev. He wanted to carry out the examination by making a video, but S. Babayev declined to be filmed. The detainee also refused to sign the documents. At that point, the police invited a lawyer, but the detainee rejected his assistance; as a result, the inspection was carried out without the presence of a lawyer. Three bags with narcotic drugs were found in the defendant’s possession during the examination.
The report of the face-to-face session dated 4 December 2022 reveals that Shahriyar Asadov, Elchin Abilov, as well as the witnesses Qasym Abdullayev and Siraj Veliyev, all confirmed their testimony and denounced S. Babayev.
The protocol of personal examination and seizure dated 2 December 2022, indicates that three bags of the drug methamphetamine have been found in S. Babaev’s possession during the personal search.
- Babayev’s testimony was taken by the Court as having the nature of a defence.
The letter dated 25 June 2023, issued by the Baku City Sabunchi District Police Department indicates that the recordings from the video surveillance cameras located at the Police Department’s administrative building are kept for one month, for this reason it is impossible to submit the recordings that dated back to 2 December, 2022.
According to the statement of the Prosecutor’s Office of the Baku City Sabunchi district, dated 1 May 2023, no injuries on S.Babayev’s body had been observed and the initiation of a criminal case on this matter had been denied.
The Court pointed out as mitigating circumstances the existence of the defendant’s two minor children. The Court did not reveal any aggravating circumstances.
On 10 October 2023, the Baku Court for Serious Crimes issued a verdict: to find S. Babayev guilty on all charges and sentenced him to 4 years imprisonment with serving the sentence in a general regime penal institution.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The criminal case brought against S. Babayev does not differ from other similar cases brought against a large number of believers convicted under the drug related Articles.
As evidence in the case it was recognised: the police officers’ testimonies and the witnesses’s ones, the latest were invited by the same police officers, the testimonies of the defendant and several expertises on the chemical composition of the found drugs, the defendant’s psychological state, as well as the protocols of confrontations. It should be stressed that not a single piece of evidence listed above is irrefutable. All the evidences should be assessed in the aggregate.
The testimonies of the police officers who were directly participating in the detention of S. Babayev should have been supported by other strong evidence supporting the case. The Court should have been critical about the police officers’ testimony. However, it was precisely those testimonies that became crucial for the Court. At the same time, the Court was critical and did not take into account the testimony of the defendant himself (including the testimony about ill-treatment, in which he mentioned the names of specific police officers who had subjected him to torture). The Court did not determine the relevance of the found drugs to S. Babayev.
As the defendant testified, he had been demanded to admit the drugs as his own, but he neither agreed to do so nor signed any documents. A clear deficiency in the evidence casts doubt on the guilt of the accused.
According to the Article 146.1 of the Code of Criminal Procedure of the Azerbaijan Republic,
The notion that sufficient evidence has been collected for the prosecution means
that the amount of evidence on the facts to be determined is such as to allow a reliable and final conclusion to be reached on the case.
The Article 145.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,
All evidence shall be assessed as to its relevance, credibility and reliability. The content of all evidence collected for the purposes of prosecution shall be assessed in terms of whether it is sufficient to substantiate the charge.
At the same time, according to the Article 144 of the Code of Criminal Procedure of the Azerbaijan Republic,
Evidence collected for the purposes of prosecution shall be verified fully, thoroughly and objectively. As part of the verification process the items of evidence collected shall
be analysed and compared with one another, new evidence shall be collected and the reliability of the source of the evidence obtained shall be established.
The testimony of a witness summoned for questioning at the trial upon the defence’s motion is an important piece of evidence. Rashad Ismayilov, a Senior Inquirer from the 14th Police Department, confirmed the fact that the personal examination of S. Babayev had been conducted without a lawyer at the police station, as the latter had declined the lawyer summoned by the investigation.
There are fundamental rights of the accused listed in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6, paragraph 3. These are as a minimum as follows:
- to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
- to have adequate time and facilities for the preparation of his defence;
- to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
- to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
- to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
The Article 145.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,
The investigator, prosecutor or court shall guarantee the rights of the accused, shall not prevent him from exercising his right of defence by all lawful means and methods and, if he so requests, shall allow him sufficient time for the preparation of his defence.
Failure to recognise the right to defence leads to a denial of everyone’s right to justice, that, particularly in criminal cases, must first and foremost be fair. The right to defence is an integral element of the right to a fair trial.
The judgment of the European Court of Human Rights (ECHR) in the case of Van Mechelen and Others v. the Netherlands dated 23 April, 1997, stipulates:
“Bearing in mind the importance that the right to a fair administration of justice has in a democratic society, any measure restricting defence rights must be imposed by a strict necessity. If a less restrictive measure would be sufficient, it is that measure alone that should be applied”. – https://hudoc.echr.coe.int/?i=001-58030
The judgment of the European Court of Human Rights (ECHR) in the case of Pacelli v. Germany dated 25 April, 1983, indicates:
“The Article 6 para. 3 (c) guarantees a defendant charged with a criminal offence three rights: to defend oneself voluntarily; to have a defence counsel of his/her choice; and, in certain circumstances, to have a defence counsel assigned to him/her free of charge”.- https://hudoc.echr.coe.int/?i=001-57554
One of the most important points in a criminal case is the testimony of the accused regarding the ill-treatment and his subjection to torture. As mentioned above, the Prosecutor’s Office dismissed the criminal case of mistreatment, although the accused accurately recorded the individuals’ names who had subjected him to torture and ill-treatment. The Court, referring to the Prosecutor’s decision not to initiate criminal proceedings, did not take any initiative to verify the accused’s testimony. Having heard the police officers’ testimonies, the Court considered their testimonies that they had not committed such actions against the defendant.
According to the Article 13.2 of the Code of Criminal Procedure of the Azerbaijan Republic, during a criminal prosecution nobody shall:
- be subjected to treatment or punishment that debases human dignity;
- be held in conditions that debase human dignity;
- be forced to participate in carrying out procedures that debase human dignity.
The torture is also prohibited under the Constitution of Azerbaijan, Article 46, paragraph III. Thus, it states:
Nobody must be subject to tortures and torment, treatment or punishment humiliating the dignity of human beings. Medical, scientific and other experiments must not be carried out on any person without his/her consent.
The European Convention, Article 3, as well as other international legal norms, regulates the right of everyone not to be subjected to torture and ill-treatment. There are no exceptions to this Article, which means that it applies in all cases, even in the fight against terrorism or mafia.
The judgment of the European Court of Justice in the case of Assenov and Others v. Bulgaria dated 28 October, 1998, states:
“Where a person alleges, by making a claim, that he has been subjected to ill-treatment contrary to the Convention, Article 3, on the part of the police or other relevant public services, this Norm, viewed in conjunction with the obligation, common to all States under the Article 1 ‘to secure to everyone within their jurisdiction, the rights and freedoms defined in the Convention’, requires by its very terms that some form of effective official investigation be carried out. This investigation, like the one required by Article 2, should result in the identification and punishment of those responsible. If it were otherwise, the general legal prohibition on torture and inhuman or degrading treatment, despite its essential importance, would be ineffective in practice and, in some cases, a State official could disregard, in a quasi-punitive manner, the rights of those who are under their control.”. – https://hudoc.echr.coe.int/?i=001-58261
The Mahmut Kaya v. Turkey judgment from 28 March, 2000, where it states:
“The duty imposed on the High Contracting Parties in accordance with the Article 1 of the Convention to protect mentioned in the Convention rights and freedoms of everyone within their jurisdiction, and also Article 3 of the Convention that oblige the State to take appropriate measures to ensure that everyone within its jurisdiction won’t be subjected to torture or inhuman and degrading treatment, including violence by any individuals. When the existing law fails to provide a required protection or when the authorities fail to take reasonable steps to prevent a risk of violence, a State must be also responsible to protect their citizen”. – https://hudoc.echr.coe.int/?i=001-58523
Thus, having summarized all the above, we can certainly conclude that Samir Babayev has been subjected to violation of his rights that must be protected in any democratic society e.g. the Right not to be subjected to torture, the Right to defense, the Right to a fair trial and, combined together these rights – the Right not to be subjected to discrimination.