ANOTHER UNJUSTIFIED ACCUSATION OF “HOMELAND TREASON”
Analysis of violation of law during Emil Aliyev’s judicial proceedings
Ganja Military Court
Case №1-1 (095)-163/2018
16 August 2018
Presiding judge: Vugar Mammadov
Defendant: Emil Aliyev
Defender: Ali Mehdiyev
The State Prosecutor: Elman Abbasov, the Prosecutor of the Public Prosecution Department of the Military Prosecutor’s Office of the Azerbaijan Republic, in the rang of Lieutenant-Colonel of Justice
The victim: Vusal Mehdiyev
Emil Aliyev was born in 1991 in the Russian Federation. He is a citizen of the Azerbaijan Republic, married and has one small child. On 1 January 2010, he was conscripted to the military service in the city of Tovuz. On 1 July 2011, he was demobilized.
On 16 January 2018, Emil Aliyev was accused of committing crimes under the Articles 150.2.1 (Buggery or other actions of sexual nature, with application of violence or with threat thereof against the victim (male, female) or to other persons, or with use of a helpless condition of the victim (male, female), committed by a group of persons, by a group with a premeditated conspiracy or by an organized group) and 274 (treason) of the Criminal Code of the Azerbaijan Republic (CC AR). On the same day, he was sentenced to 4-month imprisonment by the decision of the Baku Military Court. On 4 May 2018, the detention measure against E. Aliyev was extended until 27 June 2018.
On May 8, 2018, E. Aliyev was also additionally charged in accordance with the Article 338.1 (Infringement of authorized rules on internal service) of the Criminal Code of the AR. On 8 May 2018, the criminal case against unknown to the investigation the Armenian employees of the special services and the Armenian Military Forces engaged in hostile activities against the Azerbaijan Republic was diverted to a separate proceeding under the Article 150.2.1 of the AR Criminal Code and sent to the Special Investigation Department of the AR Military Prosecution for investigation.
The investigation version
According to the investigation, Emil Aliyev was involved in the secret cooperation with the special service of the Republic of Armenia engaging in hostile activities against the Azerbaijan Republic. He carried out some secret activities in the enemy’s favour, facilitated the commission of homosexual acts or other violent incidents of a sexual nature against Azerbaijani servicemen by the Armenian militaries, and filmed those acts in order to blackmail Azerbaijani soldiers and involve them in the secret cooperation with the Armenian servicemen.
Thus, in April 2011, Emil Aliyev headed from one combat post to another, brought his mobile phone to the soldier Vusal Mehdiyev telling him that Vusal’s brother wanted to talk to him. When Vusal Mehdiyev left his post, leaving behind his weapon and cartridges with another soldier, Fizuli Nabiyev, he followed Emil Aliyev to another combat post. E. Aliyev persuaded the unarmed V. Mehdiyev to go toward the Armenian post in order to kill the Armenian soldiers, inspiring him with the heroic character of the National Azerbaijani Hero Mubariz Ibrahimov. Having walked a little, E. Aliyev, who knew that the Armenian military was somewhere nearby, ran away. At this point, the Armenian military, having grabbed V. Mehdiyev, who had been on the Armenian territory, tied his hands from behind and dragged him into the forest. First, they punched and kicked V. Mehdiyev, and when Mehdiyev stopped resisting them, they placed the flag of the Republic of Azerbaijan on the ground and committed sexual violence against him, which was filmed on the video.
After that, the Armenian soldiers took Vusal Mehdiyev to one of the combat posts and gave him an instruction to kill the Ensign Ruslan Rustamov. In case of failure to fulfill the order, they threatened V. Mehdiyev with distribution of the sexual violence video on the Internet resources. They also informed Mehdiyev that if he would like to meet with them, he would have to take one shot in the air as a password, and two shots in case he would have to approach the neutral zone. V. Mehdiyev, being frightened, promised the Armenian military to fulfill their orders. Upon his return to his combat post, V. Mehdiyev did not fulfill the orders and decided to meet with the Armenian military to tell them about it. In a few days V. Mehdiyev made one shot in the air as a password, the Armenian military made two shots in the air, and then Mehdiyev headed towards the neutral zone where he met with the Armenian soldier he had already seen on that day. V. Mehdiyev reported to him that he would not be able to fulfill the orders regarding the assassination of Ruslan Rustamov, but he was told that there was very little time left and the job had to be done. After that the Armenian soldier withdrew.
Then, V. Mehdiyev notified an official of the Main Department of the Military Counterintelligence of the AR Ministry of National Security (MNS) that Emil Aliyev, deceiving him, led him to the Armenian military combat posts where he had been ordered to kill the Warrant Officer Ruslan Rustamov, and in case of refusal to perform the execution of the murder, threatened to distribute video with a sexual violence against him. V. Mehdiyev also asked the security officers to ensure his safety, and for that purpose V. Mehdiyev was transferred to a sanitary unit, while an investigation was initiated with regard to the matter.
In the course of the investigation, Emil Aliyev did not plead guilty to the charges and testified that on January 1, 2010, he was conscripted to the compulsory military service, and on July 1, 2011, at the end of his service he was demobilized. He knew the soldier Vusal Mehdiyev and had strictly professional relations with him. He also testified that during his service he did not cooperate with the Armenian military, did not fulfill their orders and did not call up V. Mehdiyev to the enemy positions in order to surrender him. E. Aliyev said that V. Mehdiyev’s testimonies were untruthful. He indeed came to the combat post to bring the soldiers water and food. During the service he had been using a mobile phone to contact his family. Other soldiers had been using his phone, including also Vusal Mehdiyev. V. Mehdiyev had numerous conversations with his brother. Once, when Vusal’s brother called on his phone, he passed a message for Vusal Mehdiyev via other soldiers saying that Vusal’s brother wanted to talk to him. He had never come to the combat post to inform Mehdiyev about any phone calls.
Emil Aliyev said that the Lieutenant Vugar Yaqubov informed them that there were landmines placed in the neutral zone to prevent the Armenian military entering the zone, therefore, V. Yaqubov ordered the entry prohibition. Those mines could not be seen from afar. E. Aliyev testified that while at his post he had repeatedly heard some movements being made in the neutral zone, the military used the password to provide that kind of information but due to the fact that the moves were stopped the military did not open the fire. In his turn, the Lieutenant Vugar Yaqubov explained that those steps belonged to the wild animals.
- Aliyev stated that Vusal Mehdiyev’s testimony against him was connected to the fact that V. Mehdiyev himself had cooperated with the Armenian military, and therefore he had testified against E. Aliyev in order to conceal the crime he had committed. Mehdiyev replied that he had two months to complete the service, and thus, thanks to his “guardian”, he could evade the service.
- Aliyev revealed that at the age of 13-14 he had about 10 times sexual intercourse with his neighbor Isif Rzayev, who was a year older than him. That’s how he explained the lesions in the back aisle found by the expert examination.
The victim’s statement
At the trial, the victim, Vusal Mehdiyev, testified that on 1 January 2010, he was conscripted for the military service. In April 2011, he and the Private Fizuli Nabiyev were serving at the combat post. One day, Emil Aliyev came to their combat post and said that his brother, Tale Mehdiyev, would like to talk to him. He left his weapon and cartridges beside Fizuli Nabiyev and headed towards the combat post where E. Aliyev had been serving. Having walked for 50 meters, he saw that E. Aliyev had had a mobile phone in his hands and realized that nobody had called him. E. Aliyev told V. Mehdiyev that they could go to the enemy’s positions and kill the Armenian soldiers. He also said that it was necessary to take revenge on the Armenian military, to follow the example of Mubariz Ibrahimov and also become a hero.
When they got to the woodlands. Emil Aliyev warned V. Mehdiyev to walk very carefully and look under his feet. V. Mehdiyev walked up ahead, E. Aliyev was behind him. When they approached the Armenian positions, E. Aliyev was not nearby. Someone, behind him, grabbed his the neck. It was two Armenian soldiers in black masks who pointed their weapons at him. Then they beat him and, when he stopped resisting, put down the flag of the Republic of Azerbaijan on the ground, committed a sexual assault against him, which was filmed on the video. After that, the Armenians brought him to one of the Azerbaijani combat posts, where, at that time, there was only Ruslan Rustamov. The Armenian soldiers insisted that V. Mehdiyev would kill R. Rustamov. But V. Mehdiyev did not dare to fulfill that demand, and in a few days he decided to meet with the Armenians. At that moment, there was Natiq Shikhiev at that combat post. V. Mehdiyev made one shot in the air, and said to Shikhiev that it had happened by accident. When he heard two reciprocal shots in the air, he immediately went towards the Armenian positions. Having met the Armenian military, V. Mehdiyev first wanted to kill him, but remembering the video, he told the Armenian that he could not kill Ruslan Rustamov. In response, the Armenian soldier told him, “There is little time left, finish the job in a short time”. V. Mehdiyev, being afraid of the Armenian military, managed to get being transferred to the sanitary unit.
Vusal Mehdiyev also revealed that in 2-3 days after the meeting with the Armenian soldiers he spotted the mines of green and black color, and informed his commanders about it. When V. Mehdiyev came to clear the area of the mines along with an operative investigator by the name of Elshan, he told him about everything, and Elshan placed V. Mehdiyev in the sanitary unit. He also testified that he had not stood in line with the other soldiers to obtain their military tickets at the moment of the demobilisation on 1 July 2011. He was given his ticket signed by the Colonel Vasif Mammadov at the Colonel’s headquarters, and then was brought by the latter to Shamkir. There, Vusal Mehdiyev shared everything that had happened to him with the military counterintelligence officers. After that, Elshan accompanied him to a bus and sent him home to Salyan. So far, none of the Armenian military has contacted him.
It should be noted, that according to the case file, Natiq Shikhiev was demobilized on 1 April 2011, while Vusal Mehdiyev referred to his presence at a combat post in late April – early May 2011.
Vusal Mehdiyev also stated that he had been with the Private Fizuli Nabiyev at the combat post when Emil Aliyev had approached him and taken him away. However, according to Fizuli Nabiyev’s testimony, Emil Aliyev had never taken Vusal Mehdiyev from his post and V. Mehdiyev had never left his post.
The witnesses’ testimonies
At the trial, a witness, Elshan Bayramquliyev, testified that he was appointed as the detective commissioner of the Military Counterintelligence Headquarters in May 2011. At the same time, he was approached by a soldier Vusal Mehdiyev with a request to transfer him to a sanitary unit due to his illness. During the medical treatment V. Mehdiyev informed him that Emil Aliyev had fraudulently led him to the enemy positions, where he was attacked by the Armenian military. They had committed violent acts against him, filmed all this on the video, after which they demanded to kill Ruslan Rustamov, otherwise they threatened to spread the footage of violent acts on the Internet resources. However, V. Mehdiyev refused to execute that demand.
In view of B. Mehdiyev’s message E. Bayramquliyev sent a letter to the First Department of the General Directorate of the Military Counterintelligence. The Head of the First Department, Eldzhan Abdullayev, gave an instruction to take over control of the situation. In July 2011, when Emil Aliyev and Vusal Mehdiyev were demobilized from the army, the information was sent from the Ministry of National Security to the district offices of the Military Counterintelligence Department about concerning these two individuals.
Bakhysh Mammadov, a witness, testified within the court investigation that he is the Head of the First department of the brigade at the Military Counterintelligence Headquarters. The Major B. Mammadov revealed that the Captain Elshan Bayramquliyev told him that Vusal Mehdiyev, who was under the treatment, answering on the question about the operational readiness of the army reluctantly and mentioned that the army’s level for combat had been rather low. When E. Bayramquliyev asked about the reasons of his dissatisfaction, V. Mehdiyev told him about Emil Aliyev’s deed. The received information was sent to the Colonel-Lieutenant Eldzhan Abdullayev, and according to Abdullayev’s order an investigation had been conducted, the results of the which were reported to the management of the First department. It was established the control over the persons, whose names had been specified in the case documents. The report, agreed upon and approved by the Colonel Vasif Mammadov, was also sent to the district offices of the National Security Service. With regard to Vusal Mehdiyev’s information concerning the mines on that territory, it was made a video recording at the place. Bakhysh Mammadov also indicated that he had not had any information whether the mines belonged to the Armenian military.
The witness Vasif Mammadov testified in the course of the trial that in 2011 he worked in the rank of colonel as the Head of the First division of the Corps № of the Main Department of Military Counterintelligence at the Ministry of National Security. He passed on the information of Vusal Mehdiyev about Emil Aliyev to the Captain E. Bayramquliyev, who, in his turn, interrogated Vusal Mehdiyev. V. Mehdiyev’s interrogation was conducted in presence of Bakhysh Mammadov. The management of the First department was informed about the interrogation, but the outcome of the investigation is unknown to him. Following V. Mehdiyev’s information concerning the mines in April-May 2011, those mines were discovered and removed during the territory inspection.
The witness Ruslan Rustamov testified in the course of the court investigation that in April-May 2011, he was the deputy platoon commander of the military unit, when E. Bayramquliyev and B. Mammadov were making video on neutral zone territory where the mines had been laid. Then, they had a private conversation with Vusal Mehdiyev. Ruslan Rustamov assumed that it was related to V. Mehdiyev’s latest reports and the inspection. Ruslan Rustamov also testified that about 10 mines had been laid under the trees. The witness added that he hadn’t had any information that V. Mehdiyev had been going to kill him; he did not notice any aggressive attitude on the part of V. Mehdiyev. In addition, R. Rustamov said that all the soldiers had automatic rifles and bullets, and if V. Mehdiyev had the intention to kill him, he could have done so while he was sleeping.
The witness Dayanat Malikov testified that in October 2011 and January 2012, he had clearly seen the smoke coming from the Armenian posts. He once heard as if a stone had been thrown from the Armenian posts towards the soldiers’ barracks. Due to that incident, that had been sounded an alarm, however, they couldn’t manage to see or observe anything special on the territory of the Armenian military posts. D. Malikov explained in order to throw a stone from the Armenian posts the distance should be much smaller. In order to do it, it was necessary to get closer. D. Malikov also testified that he had ordered to open fire without warning in case of the detection of the Armenians nearby.
During the trial the witness Ali Aydamirov testified that in 2010 he was conscripted to the military unit № and continued his service there until his demobilization in 2011. He said that neither the commander nor other military personnel had ever spoken about the Armenian military post located on the opposite side of them, but he had been told about the neutral zone mining and prohibition to enter it. He came to the conclusion that the noise and sounds emanating from the Armenian military post had been somewhere nearby. Ruslan Rustamov forbade the soldiers to react to the shouts “Vazgen” and “Khoren” coming from the Armenian posts. Due to the fact that the Armenian special services might be close to the combat posts, the order to open fire without warning had been given.
The witness Fariz Safarov testified that he was appointed as a platoon commander on 12 July 2011. Ruslan Rustamov was his deputy. An Armenian military combat post was located across from their combat post, but the distance between them was about 300 meters. The Armenian military post was in a forest area, so, in summer time, it was impossible to see the enemy’s post due to the plentiful greenery. In winter time, it was sometimes possible to see the smoke coming from the Armenian military post.
The witness Seymur Hajiyev testified at the trial that an Armenian military combat post had been located on the opposite side of their combat post. Although he did not know where Vusal Mehdiyev had been brought, he believed that it should have been the same post, as it was the closest one.
The witness Hanhuseyn Sariyev provided a testimony similar to Seymur Hajiyev’s one.
The witness Rovshan Nuraliyev testified that in January-February 2005, on the instructions of the authorities, there were deployed the combat posts at higher altitudes. While establishing the posts on the territory, many anti-personnel mines had been discovered, which later were dug down in the direction of the Armenian combat posts.
The witness Ilqar Gardashkhanov testified that he had been an assistant platoon commander of the military unit № from August 2007 to August 2011. He could not remember the exact location of the combat post, but he had known that the Azerbaijani combat post was not far from the Armenian one, according to his commander. The territory in the direction of the Armenian military post had been mined. He also explained that in summer time, it had been impossible to see the Armenian military posts, but occasionally there had been heard voices coming from there. I. Gardashkhanov confirmed that he hadn’t been aware of Emil Aliyev or any other military being connected to the Armenian military while he had been serving. He found out about Emil Aliyev’s actions only while being questioned during the investigation.
The case forensics
The forensic medical examination of 7 November 2017, disclosed that there was a scar on Vusal Mehdiyev’s left knee-cap, which had been caused by a blunt object approximately 1-1.5 years prior to the examination, i.e. in 2016-2015. (But according to the investigation, Vusal Mehdiyev was captured and beaten by Armenians in April 2011. – IPD). The forensic medical examination also identified the changes in Vusal Mehdiyev’s rectum, which are indications of unnatural sexual intercourse.
On 10 November 2017, the forensic medical examination did not reveal any damages on Emil Aliyev’s body. Though, the forensics noted some evidence in E. Aliyev’s rectum, which proved unnatural sexual intercourse.
The complex outpatient forensic psychiatric and psychological examination on 27 December 2017 proved that Vusal Mehdiyev did not suffer from any mental illness or any psychological disorders.
On 29 December 2017, the complex outpatient forensic psychiatric and psychological examination did not reveal any signs of mental illness or psychological disorders.
The court investigation’s summary
In the course of the trial, Emil Aliyev pleaded not guilty. The court considered his testimony as self-defense. The court found that E. Aliyev’s guilt had been fully proved by the victim’s testimony, the witnesses’ statements, and with other case materials. The Court stated that E. Aliyev’s deeds should be qualified under the Articles 150.2.1, 274 and 338.1 of the Criminal Code of the AR. However, due to the fact that the statute of limitations for committing an offence under the Article 338.1 of the Criminal Code of the Azerbaijan Republic has expired, the court did not impose a penalty under that Article.
The court does not provide any mitigating or aggravating circumstances in E. Aliyev’s criminal case.
The court, having considered the given criminal case in a closed session, issued a sentence:
- to find Emil Aliyev guilty of committing crimes under the Articles 15.2.1, 274 and 338.1 of the AR Criminal Code and to sentence him to 12 years of imprisonment. In view of the expiration of the statute of limitations, the sentence under the Article 338.1 of the AR Criminal Code shall not be imposed.
Commentary by expert lawyer:
A court decision is illegal and unjustified. In accordance with the Constitution of AR, the Article 26 (II), the State guarantees the protection of the rights and freedoms of each individual. The protection of the citizens’ rights and freedoms in the courts is guaranteed under the Article 60 of the Constitution.
Pursuant to the Article 3 of the AR Law “On Courts and Judges”, it is stated: “The activity of the AR courts is aimed exclusively at implementation of the justice.”
The Article 99 of the AR Law “On Courts and Judges” enumerates the duties of judges:
“The following duties must be performed by judges: while administering justice, to comply precisely and unconditionally with the requirements of the law; to ensure the moral and educational contribution of the judiciary; to be fair and impartial; to maintain the secrecy of the courtroom; not to disclose any information revealed in the private court sessions; to avoid any conduct harmful to the prestige of justice, its authority, honour and dignity of the judges. Other obligations of judges shall be determined by the legislation of the Azerbaijan Republic”.
It can be seen from the example of this case that the court, and judges in particular, did not fulfill their duties prescribed by the Law “On Courts and Judges” and the AR Constitution.
Initially, the accused Emil Aliyev was charged under the Articles 150.2.1. and 274 of the AR Criminal Code. According to the Article 150.2.1 of the CC AR :
“Buggery or other actions of sexual nature, with application of violence or with threat thereof against the victim (male, female) or to other persons, or with use of a helpless condition of the victim (male, female), committed by a group of persons, by a group with a premeditated conspiracy or by an organized group is punished by imprisonment for the term of five to eight years.”
The Article 274 of the CC AR states:
“State betray, that is deliberately action committed by a citizen of the Azerbaijan Republic to detriment of the sovereignty, territorial integrity, state security or defensibility of the Azerbaijan Republic: changeover to enemy side, espionage, distribution of the state secret to foreign state, rendering assistance to a foreign state, foreign organization or their representatives in realization of hostile activity against the Azerbaijan Republic is punished by imprisonment for the term of from ten up to fifteen years or life imprisonment with confiscation of property or without it.”
While investigating the guilt of the accused in the commission of the crime under the Article 150.2.1 of the AR Criminal Code, the court was to use evidence showing that the crime in question really took place, and it was the accused who had been implicated. The only evidence submitted to the court by the prosecution was the testimony of the victim Vusal Mehdiyev. Although the forensic medical examination on 7 November 2017, determined the presence of certain lesions on V. Mehdiyev’s anus, the investigation, and later the court, could not provide an accurate and irrefutable answer whether the accused had been involved in the given act.
As it’s said in the Paragraph 58 of the “Regulations on forensic medical examination of the sexual state of men” of the AR Ministry of Health on 26 July 1999, as a rule, single sexual acts do not leave any traces and damages on the rectum or anus. Moreover, the prosecution argues that the crime was committed in 2011, and the examination of Vusal Mehdiyev’s physical condition was conducted only in 2017. It is logical to think that if it was a single violent intercourse (according to the prosecution, it is such a case), then why a trace of the sexual assault would have been seen 6 years later? Furthermore, the court did not determine whether the sexual violence had been intended as a means to achieve a criminal purpose.
The accusation under the Article 274 of the AR Criminal Code also lacked the sufficient evidentiary basis. In the Article 5.1 of the Law of the Azerbaijan Republic “On State Secrets” states:
5.1. The State secrets in the military sector are as follows:
5.1.1. the content of strategic and operational plans, the documents of operational department on preparation and conduct of military operations, strategic, operational and mobilization deployment of the Armed Forces of the Azerbaijan Republic, other armed formations, other troops stipulated by the legislation, their combat and mobilization readiness, creation and use of mobilization resources;
5.1.2. on the plans for the construction of the armed forces and other armed formations provided for in the legislation of the Azerbaijan Republic, on directions for the development of armaments and military equipment, on the content and results of the implementation of targeted programmes, and on research and development work to create and modernize the patterns of armaments and military equipment;
5.1.3. the tactical and technical characteristics, and combat capabilities of weapons and military equipment, properties, the formulas or technologies, and production of new types of the military purpose;
5.1.4. the location, designation, degree of readiness, security of the facilities of particular national security and defensibility, their construction and operation, as well as the allocation of land, resources and coastal and offshore areas for these facilities;
5.1.5. the location, the effective renaming, the organizational structure, the number of personnel and their combat support, as well as the military, political or operational situation;
5.1.6. the coordinates of geodetic points and geographical targets of the significant defence and economic importance within the territory of Azerbaijan.
It is not specified what kinds of actions were taken by Emil Aliyev in order to make this very crime. The accusation under this article was only based on the victim’s testimony. Neither any of the witnesses testified directly against Emil Aliyev, nor any of them indicated the accused’s criminal acts.
Either the investigation or the court could not provide an answer to the main question: if the crime was committed in 2011 and the military intelligence officers were aware of Aliyev’s crime constantly watching him (according to them) after his demobilization, then why Emil Aliyev was arrested only in 2017. Why didn’t the investigators arrest E. Aliyev promptly? Unfortunately, neither the investigation nor the court provided any appropriate answer to this question.
According to the Article 41.3 of the Code of Criminal Procedure of the Azerbaijan Republic, if the public prosecutor finds circumstances which preclude criminal prosecution in court, he shall withdraw the criminal prosecution of the accused.
The Court was to acquit the defendant with regard to the following:
- lack of legal components of the crime;
- failure to prove the guilt of Emil Aliyev.
According to the Article 95.1 of Code of Criminal Procedure of the Azerbaijan Republic (CCP AR), a person who is aware of any important circumstances may be summoned and questioned as a witness by the prosecution during the investigation or the court hearing and by the defence during the court hearing.
No witness interrogated in this case was an eyewitness to any criminal act. In addition, almost all the witnesses stated that they had not known about the alleged crimes committed by E. Aliyev. Many of them could not testify accurately as more than 6 years had passed since their demobilization.
The same applies to the victim’s testimony. If one reads Vusal Mehdiyev’s testimony carefully, it can be seen that the testimony provided by the victim in a time period of 6 years is quite accurate, which raises certain doubts about its truthfulness. Mehdiyev specifies everything in detail, up to minutes and concrete actions. In this case, the court had to verify the credibility of the victim’s testimony and support it with other relevant evidence. It is obvious that the prosecution was unable to provide the court with sufficient irrefutable evidence.
According to the Article 95.1 of CCP AR, reliable evidence (information, documents, other items) obtained by the court or the parties to criminal proceedings shall be considered as prosecution evidence. The testimony provided by the victim is not credible and the testimony of witnesses is neither valid nor indicative of the accused’s culpability; nor the expertise results can be considered sufficient to proceed with any serious charges.
According to the Article 125.1 of CCP AR, “if there is no doubt as to the accuracy and source of the information, documents and other items and as to the circumstances in which they were obtained, they may be accepted as evidence”.
According to the Article 126.2 of CCP AR, “Only statements based on the information or conclusions of a person directly comprehending the act and its causes, character, mechanism or development may be considered as evidence”.
According to the Article 127.3 of CCP AR, “the expert’s opinion shall not be binding on the preliminary investigator, investigator, prosecutor or court; it shall be checked by the prosecuting authority in the same way as any other evidence and evaluated in the light of all the relevant facts. ”
According to the Article 130.0 of CCP AR, during prosecution, the following may be determined only on the basis of evidence:
139.0. During prosecution, the following may be determined only on the basis of evidence:
139.0.1. the facts and circumstances of the criminal act;
139.0.2. the connection of the suspect or accused with the criminal act;
139.0.3. the criminal ingredients of the act provided for in criminal law;
139.0.4. the guilt of the person in committing the act provided for in criminal law;
139.0.5. the circumstances which mitigate or aggravate the punishment for which criminal law provides;
139.0.6. if there is no other circumstance covered by this Code, the grounds for a request by a party to the criminal proceedings or another participant in the proceedings.
The right to freedom is a fundamental right in a democratic society. The right to freedom is guaranteed by the Article 28 of the AR Constitution :
- Everyone has the right for freedom.
- Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.
The right to freedom is one of the fundamental human rights guaranteed also by the international law provisions. According to the Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to liberty and security of person.
The list of restrictions in this Article is rather clear and cannot be interpreted in any mind-independent manner. According to this article: “No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation 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;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
This list of restrictions is exhaustive. Deprivation of freedom must also be lawful, i.e. it must be in line with the purpose stipulated in one of the cases from this list. The core of the article is the individual’s physical freedom. It enshrines a fundamental human right, namely the protection of everyone against arbitrary interference by the State in his or her right to freedom.
It is stipulated in the European Convention for the Protection of Human Rights and Fundamental Freedoms that only a well-grounded suspicion of a person committing a criminal offence will justify deprivation of freedom. Therefore, a justified suspicion is an essential element of the protection against the arbitrary deprivation of freedom.
The Universal Declaration of Human Rights also protects the right to freedom. According to the Article 9 of the Universal Declaration of Human Rights, no one shall be subjected to arbitrary arrest, detention or exile.
The International Covenant on Civil and Political Rights also enshrines the right to freedom as a fundamental human right. Thus, according to the Article 9, Paragraph 1 of the International Covenant on Civil and Political Rights, “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”.
As it is stated in the paragraph 155 of the Judgment of the European Court of Human Rights (ECHR) in the case of Labita v. Italy on 6 June 2000, “However, for there to be reasonable suspicion there must be facts or information which would satisfy an objective observer that the personconcerned may have committed an offence “http://docs.pravo.ru/document/view/19382469/
The absence of the evidence basis for the accusation, insufficient amount of the proofs, lack of the direct and clear-cut evidence against the accused, and the failure of the court considering the criminal case have resulted in the gross violation of the Emil Aliyev’s right to freedom guaranteed by the Constitution of the Azerbaijan Republic, and by other national laws, as well as by the norms of the International Law, International Treaties and Practice of the European Court of Human Rights.