ANOTHER FUNDAMENTAL VIOLATION BY THE AZERBAIJANI AUTHORITIES IN RESPECT OF THE RIGHT TO LIBERTY
Nijat Ibrahim
Analysis of violation of law during Nijat Ibrahim’s judicial proceedings
Baku City Nasimi District Court
Case № 4(006)-509/2024
11 September 2024
Presiding judge: Anar Ibadzade
Defendant: Nijat Ibrahim
Defenders: Zibeyda Sadigova, Farhad Aliyev
With the participation of Murad Quliyev, a Colonel-investigator from the Baku City Nasimi District Police Station Investigation Department
Nijat Ibrahim is a social activist, he had participated in many rallies. On 20 July 2020, he was detained during the demonstration near the Presidential Administration building, accused of violating sanitary regulations and spreading coronavirus.
On 5 March 2021 the Baku City Nasimi District Court sentenced Nijat Ibrahim to 1 year and 3 months in prison.
Once again, N. Ibrahim was detained at the Baku airport checkpoint on 6 September 2024. He was informed that the Azerbaijani Ministry of Internal Affairs announced ban on him crossing the border of the Azerbaijan Republic. Earlier, his wife with two children left the country to Moldova.
Ibrahim’s lawyer, Z. Sadigova, said that if the travel ban was not cancelled, he would commit an act of self-immolation in front of the Ministry of Internal Affairs building. The officials did not provide any reasons behind the prohibition.
On 9 September 2024, N. Ibrahim was charged with committing a crime under the Article 126.1 (Deliberate causing of serious harm to health) of the Criminal Code of the Azerbaijan Republic (CC AR).
- Ibrahim’s spouse told the press that at the police station, Ibrahim took a cutting device from the table and cut his throat in order to protest. He was taken to the hospital where the doctors put 17 stitches on his throat.
According to the investigation, on 9 September 2024, being at one of the gas stations in Baku, a dispute broke out between N. Ibrahim and a certain Bahman Aliyev, as a result of which Ibrahim stabbed him with a knife; two wounds under the rib were qualified as a serious assault.
However, the defence states that on 9 September 2024, an unknown individual approached N. Ibrahim and hit him. As a result, Nijat fell to the ground. At that moment, the police officers approached him, covered his eyes and grabbed him away. Since Nijat Ibrahim did not plead guilty, he was subjected to physical pressure by the police officers.
The Prosecutor and Investigator made a submission and motion to the court, respectively, and requested the Court to take a preventive measure against N. Ibrahim in the form of detention for a period of 4 months.
The defence asked the Court to reject the Prosecutor’s submission and investigator’s motion.
On 11 September 2024, the Baku City Nasimi District Court issued a ruling: to apply a preventive measure against Nijat Ibrahimov in the form of arrest for a period of 4 months. He was transferred to the Baku City Investigative Isolator No. 1, where he is kept up today.
As N. Ibrahim’s wife stated “while in the isolation centre, he again tried to suicide”.
On 12 December 2024, N. Ibrahim was charged with other offences under the Articles 126.2.4 (Deliberate causing of serious harm to health, committed publicly dangers a way, from hooligan prompting) and 221.3 (Hooliganism committed with application of a weapon or subjects, used as the weapon) of the CC AR.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
As grounds for imposing a measure of arrest, the Court indicated the following:
- the classification of the offence as a serious one;
- the probability of committing a new offence;
- the concealment from the investigative body.
According to the law, a preventive measure against a suspect or accused person must not be chosen arbitrarily. It must be legal and lawful, i.e. it must be in accordance with the criminal procedure law and pursue a legitimate aim.
The Article 156.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,
Restrictive measures shall be decided by the preliminary investigator, the investigator, the prosecutor in charge of the procedural aspects of the investigation or the court. The offence committed by the suspect or accused and the grounds for the need to apply a restrictive measure based on the preliminary evidence shall be indicated in the decision on the choice of restrictive measure.
Although the National Legislation does not define the concept of ‘reasonable suspicion’, it is quite clearly defined in the rulings of the European Court of Human Rights (ECHR). Thus, in the judgment of “Nechyporuk and Yonkalo v. Ukraine” from 21 April 2011, it is stated that the term ‘reasonable suspicion’ means that there are the facts or information that could convince an objective observer that the person in question may have committed an offence. Also, the requirement of reasonable suspicion implies the existence of evidence that objectively links the suspect to a particular offence, and it does not have to be sufficient to secure a conviction, but it must be sufficient to justify further investigation or charges. – https://hudoc.echr.coe.int/?i=001-104613
According to the Article 155.2 of the Code of Criminal Procedure of the Azerbaijan Republic,
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:
- the seriousness and nature of the offence with which the suspect or accused is charged and the conditions in which it was committed;
- his personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence;
- whether he has committed a previous offence, the previous choice of restrictive measure and other significant facts.
Despite this, the Court failed to take into account the accused’s personality and moral character, his family status and the presence of minor children.
The Article 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms reads:
Obligation to respect Human Rights – The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
According to the Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms,
- Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.
As stated above, the investigative body is obliged to have sufficient grounds, which must be submitted to the court. However, in this criminal case, neither the investigative body nor the court had such grounds.
The ECHR judgment in the case of “Rasul Jafarov v. Azerbaijan” from 17 March 2016, said:
“The reasonableness of the suspicion on which detention must be based is an essential element of the protection provided by Article 5(1)(c) of the Convention on Human Rights against arbitrary deprivation of liberty. (…) The existence of a reasonable suspicion presupposes beforehand the existence of facts or information that would convince an objective observer that the individual could have committed the offence. What may be considered reasonable, however, depends on the set of circumstances.” https://hudoc.echr.coe.int/?i=001-161416
Paragraph 1 of the Decision of the Plenum of the Supreme Court of the Azerbaijan Republic ‘On judicial practice in cases of applications for preventive measures in the form of arrest or house arrest’ from 3 November 2009, it is said:
“To inform the courts that, in accordance with the precedents of the European Court of Human Rights, the application of a preventive measure in the form of arrest is generally permissible when the right to liberty of a person overrides the interests of society, i.e. when the individual’s being at liberty creates negative emotions and danger to society.”
Furthermore, paragraph 2 of the Decision states that there must be substantive and procedural grounds for the imposition of a preventive measure in the form of arrest.
In the case of N. Ibrahim, there were no substantive or procedural grounds for imposing a preventive measure in the form of remand in custody.
Under the criminal procedure law, the Court was under an obligation to consider the imposition of a preventive measure other than arrest. Moreover, the Court had to justify why an alternative preventive measure could not be chosen against a defendant.
The wording in the court ruling was vague, formal and abstract. Even though the ECHR precedents strictly prohibit it.
The violation of substantive and procedural norms, non-compliance with the international law, as well as the ECHR precedents, had led to the violation of a fundamental right in a democratic society, i.e. the Right to Liberty that protects an individual’s physical freedom.