Yet, another political activist is deported from Germany and convicted

YET, ANOTHER POLITICAL ACTIVIST IS DEPORTED FROM GERMANY AND CONVICTED

Malik Rzayev

Analysis of violation of law during Malik Rzayev’s judicial proceedings

Sumgayit City Court on Serious Crimes

Case № 1(124)-292/2022

28 September 2022

Presiding judge: Hafiz Aliyev

Judges: Fikrat Aliyev, Fahmin Humbatov

Defendant: Malik Rzayev

Defender: Nemat Karimli

The State Prosecutor: Orhan Rustamov, a Junior Counselor of Justice, Prosecutor of Support of Public Prosecution Department at the Serious Crimes Courts within the General Prosecutor’s Office of the Azerbaijan Republic

In 2014, Malik Rzayev left Azerbaijan to Germany due to his political views. After having moved to Germany, Rzayev continued sharply criticizing the actions of Azerbaijani officials and leadership, participating in rallies against the Azerbaijani authorities, and publishing his critical articles on the social media. However, despite all that, he was not granted a residency permit in Germany.

At the end of July 2021, Malik Rzayev was deported to Azerbaijan in accordance with a readmission agreement concluded between Germany and Azerbaijan.

On 25 October 2021, at around 10 a.m., he was detained by the police and brought to the 2nd station of the Sumgayit City Police Department.

Malik Rzayev was detained on charges related to a crime 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 24 October 2021, the Sumgayit City Court issued, in respect of M. Rzayev, an order in the form of detention for a period of 4 months.

Interrogated at the court, Malik Rzayev did not plead guilty to the charges and testified that on 25 October 2021, in the morning, he went out to the nearest store to upload money to his gas card and notices a white Prado car next to the store. When he was coming out of the store, several police officers approached and forced him into a police car. He was then brought to the 2nd station of the Sumgayit City Police Department.

At the station, he was beaten by about 7-8 policemen, one of whom put a plastic bag in his pocket. Then Malik Rzayev was taken to the Police Department Deputy Head office, Tural Huseynov. There, he was again subjected to beatings. Some time later he was forced to admit to what the police officers demanded. He was required to say that he had bought the drugs for 150 manats from a certain Rauf, and to sign the relevant documents. His “confessions” were recorded on a video camera. M.Rzayev once again emphasized that he had only “confessed” because of being severely beaten. He also testified that he had never consumed drugs and had no connection whatsoever.

On 11 November 2021, Malik Rzayev’s lawyer told the press that his client had been subjected to beatings, forced to do the leg-split, and threatened with rape using an object. In addition, the lawyer said that he could not meet with his client until 10 November 2021. At the same time, M.Rzayev was twice illegally transferred from the pre-trial detention facility to the temporary detention center of the Sumgayit City Police Department, of which he, as a lawyer, was not informed. The lawyer filed a complaint to the Prosecutor’s Office of the city of Sumgayit in connection with his client’s mistreatment. See:

https://www.amerikaninsesi.org/a/i%CC%87ctimai-f%C9%99al-i%C5%9Fg%C9%99nc%C9%99y%C9%99-m%C9%99ruz-qal%C4%B1d%C4%B1%C4%9F%C4%B1n%C4%B1-bildirib-r%C9%99smi-qurum-t%C9%99kzib-edib-/6309264.html

Questioned as a witness at the trial, the detective officer of the 2nd Station of the Sumgayit City Police Department, Major Ismail Ismayilov, testified he got information on 25 October 2021, concerning someone named Malik who was illegally keeping, selling and consuming drugs in the city of Sumgayit. That man was detained near the store at around 10:50 a.m. on 25 October 2021. Subsequently, he was requested to surrender the illegal items out of his pockets. M. Rzayev pulled out rolls of drugs from his jacket pocket. I. Ismayilov also testified that Rzayev was not subjected to any kind of pressure. In the course of the trial, there were also questioned the following witnesses: a Junior Inspector of the Criminal Investigation Unit within the Sumgayit City Police Department, First Lieutenant Elnur Mamedov; Eldaniz Mehdiyev, a Senior Operative Officer of the Criminal Investigation Unit and Shahbaz Shahbazov, the Deputy Head of the 3rd Station of the Sumgayit City Police Department, all of them provided the testimonies similar to Ismayil Ismayilov’s ones.

Also, at the trial, it was questioned the Senior Interrogator of the 2nd Station, a Major Matlab Abbasov, who testified that those activities had been carried out by the 2nd Station and Criminal Investigation Unit of the Sumgayit City Police Department. He also testified that a lawyer and a forensic expert had been invited to the station. The search was carried out with their participation and the following drugs, methamphetamine, heroin and methadone had been found in M.Rzayev’s possession.

According to the forensic narcological examination report from 18 December 2021, M.Rzayev had no signs of drug addiction, therefore there was no need in his compulsory treatment.

In accordance with the criminal case materials, Malik Rzayev’s son, Mikayil Rzazade, was born in 2015.

Based on the Sumgayit City Prosecutor’s Office resolution from 25 February 2022, it was conducted an investigation on the cruel treatment of M.Rzayev, but due to the absence of criminal elements in the police actions, it was not initiated a criminal case.

The Court considered Malik Rzayev’s testimony at the trial as having the nature of a defense in order to avoid the punishment. The Court assessed M.Rzayev’s testimony given in the course of preliminary investigation as a true one. As a mitigating circumstance, the Court recognized the fact that M.Rzayev has one minor child and a good characteristic from his place of residence.

On the 8th page of the Court verdict there is a sentence:

“In accordance with the Article 61 of the Criminal Code of the Azerbaijan Republic there are no circumstances aggravating the guilt of the accused Salamov Bahruz Bahram oglu (!)”. (The name of the accused is given incorrectly).

On 28 September 2022, the Sumgayit City Grave Crimes Court issued a verdict against Malik Rzayev: he was found guilty of committing a crime under the Article 234.4.3 of the Criminal Code of Azerbaijan Republic and sentenced to 7-year- imprisonment in the penal colony of general regime.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

According to the defendant, in the course of investigation the police officers coerced him to provide the testimony they wanted. The supportive argument is the contradiction between the testimony during the investigation and at the trial. As stated above, the Court considered the testimony provided at the trial to be of a defensive nature and for the purpose of avoiding further punishment, whereas the testimony at the investigation had been accepted as truthful. The Court did not examine the reason of such a contradiction between his testimony at the trial and that one at the investigation.

Thus, the biased attitude of the Court, and blind confidence to the investigation bodies led to a violation of the Article 66 of the Azerbaijani Constitution. In accordance with the Constitution of Azerbaijan, Article 66, no one shall be forced to testify against himself/herself, his/her spouse, children, parents, brother or sister.

Besides, the same principle is enshrined in the Article 20.2 of the Criminal Procedure Code of the Azerbaijan Republic. In this Article states,

During the investigation or court hearing, a person asked to give information which may incriminate him and his close relatives in respect of an offence shall have the right to refuse to incriminate them without fear of negative legal consequences for himself.

In this case, everything happened to be turned out the other way around. The testimony that M. Rzayev was forced to make became the main piece of evidence for his “guilt” and was manipulated into a conviction with a rather long sentence.

Apart from the above Constitutional provisions, there is also the Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Although the text of the Article does not explicitly refer to the so-called “right to remain silent”.

In the judgment of the European Court of Human Rights (ECHR) in the case of John Murray v. the United Kingdom of February, 8, 1996 it is stated:

Although not specifically mentioned in Article 6 of the Convention, there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. … By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6.

https://www.legal-tools.org/doc/bd8dfc/pdf

The judgment of the ECHR in the case of Saunders v. the United Kingdom dated 17 December, 1996, noted,

“The Court recalls that although the right to silence and right not to be self-incriminating are not specifically mentioned in the Convention text (Article 6), these two Rights are nonetheless internationally recognized standard-setting rules that form the core of the fair trial concept of the Article 6.

Their justification is, inter alia, rooted in the protection of the accused against unlawful coercion by the authorities, thereby helping to avoid judicial errors and achieve the objectives set out in the Article 6 (…). In particular, the right not to self-incriminate contributes to ensuring that the prosecution side has an obligation to prove the guilt of the accused without having to rely on evidence obtained against the defendant’s will, by means of coercion or pressure. In this respect, the right is strongly linked to the presumption of innocence enshrined in the Article 6 § 2 of the Convention. –

https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Saunders%20v.%20the%20United%20Kingdom%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58009%22]}

Another important point in this case is the factual basis, which consists of contradictory testimony of the defendant during the investigation and in the court, the witnesses’ testimonies, e.g. the law enforcement officers involved directly in the process, and the experts’ conclusions. As mentioned above, the Court did not detect (or did not want to detect) the cause of the defendant’s contradictory testimonies. The police officers’ testimonies can be treated with skepticism, since all of them are employees of the Ministry of Internal Affairs. The results of the forensic examination merely indicated the drug’s chemical composition, the defendant’s psychological state, and the absence of his drug addiction.

All this means that the evidence is more circumstantial than factual. Moreover, there is great doubt as to whether the drugs belonged to the defendant.

According to the Article 138.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

Proof shall consist in the obtention, verification and assessment of evidence in

order to establish facts of importance for the lawful, thorough and equitable determination of the criminal charge.

The Article 145 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.
  • The preliminary investigator, investigator, prosecutor, judge and jury shall assess the evidence according to their personal conviction on the basis of a thorough, full and objective examination of its content, guided by the law and their conscience.
  • If suspicions which emerge during the process of proving the charge cannot be removed by other evidence, they shall be interpreted in favour of the suspect or accused.

Unfortunately, as we can perceive, the doubts have not been interpreted in favor of the defendant but on the contrary against him.

And the most important point: the sufficiency of evidence. The Article 146.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

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.

All the evidence in the case was not sufficient for a solid final judgment. An outside observer is left with lots of questions concerning the case, on which the court did not provide any answers in its verdict.

It should be underlined that all political and public activists deported from Germany, were arrested upon their arrival to Azerbaijan, all of them faced the same accusations. All of them (except Samir Ashurov) were charged under the CC Article 234.4.3. The sentences of all the arrested are very similar in both technical and substantive terms, as if they were written off from one another. This is confirmed by the fact mentioned above on the page 8 of the verdict that contains the following sentence:

“In accordance with the Article 61 of the Criminal Code of the Azerbaijan Republic there are no circumstances aggravating the guilt of the accused Salamov Bahruz Bahram oglu (!)”. (The name of the accused is given incorrectly).

Writing off this statement from another verdict, the court did not even bother to change the name to the correct one, keeping the name of another accused. Even though we may speak about a technical error but it is said us a lot, namely, the Court doesn’t care to treat each case individually instead they used the same method and sentences and in the best case scenario change only the defendant’s initials.

In this case, the main violation of the Law Norms is a violation of the right to prohibit tortures.

The Article 15.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that during the criminal prosecution the following shall be prohibited:

  • 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;
  • the imposition of long-term or severe physical pain or acts which are detrimental to health, or any similar ill-treatment;
  • 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.

The Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms strictly prohibits torture, degrading and inhuman treatment. It should be noted that this Article does not contain any exceptions. It is always activated, as on time of the fight against the mafia and terrorism, as during the armed conflicts.

Unfortunately, it is not a secret to anyone that Azerbaijani are subjected to degrading and inhuman treatment used by the law enforcement authorities. Those facts have been proved in numerous judgments of the ECHR against Azerbaijan as well as in many reports provided by the local and international human rights organizations on the human rights situation in the country.

The Court partial attitude towards Malik Rzayev, the issuance of a guilty verdict with

A 7-year-imprisonment punishment without sufficient proven evidence, the failure to eliminate contradictions in the case, the doubts interpretation in against the accused, all the above violated his right to Freedom enshrined in the Article 28 of the Azerbaijani Constitution, as well as in the Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.