ANOTHER VIOLATION OF THE BELIEVER’S RIGHT TO LIBERTY, PERSONAL INTEGRITY AND PRESUMPTION OF INNOCENCE
Maftun Naqiyev
Analysis of violation of law during Maftun Naqiyev’s judicial proceedings
Lankaran City Grave Crimes Court
Case № 1(099)-635/2023
13 November 2023
Presiding judge: Oruj Jalilov
Judges: Khammad Nuriyev, Ali Aliyev
Defendant: Maftun Naqiyev
Defender: Buqar Khasayev
State Prosecutor: Mr. Valeh Shabanov, a prosecutor from the Department for the Protection of State Prosecution in the Serious Crimes Courts within the State General Procurator’s Office of the Azerbaijan Republic
Maftun Naqiyev, born in 1988, is a Shiite believer. On 9 April 2023, he was detained and charged with committing 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 11 April 2023, a measure of restraint in the form of detention by the Neftchala District Court’s ruling was chosen against M. Naqiyev.
The time of M. Naqiyev’s arrest was at the period when relations between Azerbaijan and Iran escalated and there were extensive arrests of believers, who were officially accused of illegal drug trafficking and unofficially labelled as agents of Iran. The state television broadcast open propaganda against the Shiite believers, accusing them of working for Iran’s intelligence services. But despite these accusations, none of those detainees have been charged with treason or espionage.
According to the investigation, at approximately 19:30 on 9 April 2023, M. Naqiyev was detained by the Neftchala District Police Department officers. They found in his jacket pocket a single bag containing 31.370 grams of the heroin.
The defendant M. Naqiyev, who was interrogated at the trial, pleaded not guilty to the charge against him; he also testified that he had been married and had three young children in his care, one of whom had a cerebral palsy. Nagiyev is employed as an operator in a company and has a monthly income. He called the accusations ‘baseless’ and testified that he had been performing religious rituals and had never messed with drugs. Nagiyev said that he even never smoked. On 9 April 2023, at about 7:30 pm, 7-8 police officers suddenly came to his house while he was with his family members. The policemen told him that he should go with them to the Head of the Neftchala District Police Station. He got dressed, the police officers placed him in a ‘Zhiguli’ and took him away. The witnesses to the fact that the police officers took Naqiyev away in the car were his mother, brother, spouse and two neighbours.
When he was brought to the office of the superior, the latter told him that due to the fact that he was a believer, an order for his arrest had been issued. The Head of the police station also said that he should accept the drugs placed in his possession as his own, and not to torture himself or them, otherwise he would be charged with espionage. Naqiyev was frightened of such a threat and agreed to it. Further, a personal search was conducted and it was video-recorded. He took a package out of his pocket and handed it to the police officer. Naqiyev testified that although the police officers had not applied any physical pressure on him, they had used psychological harassment. He also testified that he had never used or sold any drugs.
Intiqam Damirov, an officer of the Neftchala District Police Station, questioned as a witness at the trial, testified that on 9 April 2023, he received an operational information about the sale of narcotic drugs. To verify the information, it was formed a special operational group, and on the same day at about 7 p.m., M. Naqiyev was detained near his house. He was brought to the police station, where he was searched and they found the heroin in his possession. During the interrogation, Naqiyev testified that he had found the drugs on the road. The police officer also indicated that no measures of physical or psychological pressure had been used against the detainee, Naqiyev had not been brought to the Head of the police station, and during the personal search he had not expressed any objection.
Sadiq Aliyev, Sadiq Amrakhov and Nariman Dadashev. the police officers who had been questioned as witnesses before the Court provided testimonies similar to those of Intiqam Damirov.
Khadija Naqiyeva, a witness summoned by the defence for questioning, testified that the defendant was indeed her son. She said that 7-8 unknown men in civilian clothes entered the house at about 19:30 on 9 April 2023. Not explaining the reason, they demanded her son to follow them to the police. Maftun went up one floor in order to change his clothes. The men put her son into a Zhiguli car and drove him away. Later it became known that her son had been detained on charges of drug distribution. Kh. Naqiyeva testified that her son had performed religious rituals, he had never had any bad habits, including the use or distribution of drugs. She believes that the drugs found in his possession have nothing to do with her son, and they were planted on him by the police. The religious literature seized in their house belonged to her son, and he had bought it in various locations.
Bahar Naqiyeva, Narmin Naqiyeva, Murad Naqiyev and Shahla Qarayeva, who were questioned as witnesses at the trial, provided testimonies similar to Kh. Naqiyeva’s.
According to the forensic chemical examination report dated 10 April 2023, 31.370 grams of the found drug was heroin, manufactured in an artisanal way.
The medical and narcological examination conducted on 12 April 2023, revealed that M. Naqiyev had a history of using drugs but there was not a dependency syndrome (drug addiction) detected.
The search report dated 16 May 2023, reveals that it was found and confiscated the religious literature (the list is enumerated) during the house search conducted on 16 May 2023. The search and confiscation were carried out under a court order issued on 1 May 2023.
According to the forensic-religious expertise dated 31 May and 23 June 2023, some items of religious literature are considered inadmissible on the territory of the Azerbaijan Republic. The remaining books do not contain any illegal connotation.
From the reference and characteristic of the Neftchala district rural administration dated 12 July 2023, it is evident that M. Naqiyev lives in a house with registration, he has a place of work what describes him as a hard-working, well-mannered, sincere person with high moral values; he has been respected by the rural population and there is no complaint against him.
On 13 November 2023, the Lankaran City Grave Crimes Court issued a verdict against M. Naqiyev: he was found guilty on the charges and sentenced to 5 years and 6 months imprisonment serving his sentence in a general regime penal institution.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The most important principle of criminal proceedings is the Principle of Legality, according to which the Courts and participants of criminal proceedings must comply with the provisions of the Azerbaijan Republic Constitution, the Code of Criminal Procedure, other laws of the Azerbaijan Republic, as well as the international treaties with the Azerbaijan Republic participation (Article 10.1 of the Code of Criminal Procedure of Azerbaijan Republic).
The supreme goal of the State is to ensure human and civil rights and freedoms, in accordance with the Constitution of the Azerbaijan Republic, Article 12 (I).
Such important legal norms must be unconditionally observed by all state authorities, and especially by the Courts. However, as a rule, the Courts prefer to be on the side of the law enforcement agencies and issue rulings in their favour.
The case brought against M. Naqiyev is no exception.
Firstly, it is necessary to examine the evidential base submitted by the investigating authority to the Court. Thus, it was submitted: the defendant’s testimony, testimony of witnesses e.g. the police officers, defendant’s relatives’ testimonies, summoned to the Court at the request of the defence; they were eyewitnesses of how the police officers entered Nagiyev’s house and took him to the police station. Further, there were forensic examinations, search reports, various certificates and characteristics concerning the defendant’s personality and moral character included in the evidentiary database.
As you can see, the police officers appearing as witnesses were also part of the investigation team that detained M. Naqiyev. All of them provided testimonies corresponding to the investigation’s version. The Court assessed the relatives’ and neighbours’ testimonies as being of a defence nature. Moreover, the Court pointed out that the testimonies provided by the relatives and neighbours of the accused were not confirmed by the police officers’ testimonies.
According to the Article 145.2 of the Code of Criminal Procedure of Azerbaijan Republic, 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.
In this context, there is no legitimate justification why the Court found the police officers’ testimonies to be conclusive whereas the relatives’ and neighbours’ ones to be in the nature of defence. Therefore, it would appear that the Court is inclined to favour the police testimony without having sufficient grounds for rejecting the evidence of the accused’s relatives. It can be summed up that in evaluating the evidence, the Court did not consider it thoroughly, fully and objectively in accordance with the law.
A very important point in the case is the search conducted in the house of the accused, during which the religious literature was confiscated.
As mentioned above, the investigative body received an operational information about illegal drug trafficking, and M. Naqiyev was detained on the very same day. As it became known later, the investigating authorities were interested in the presence of any religious literature in the defendant’s house. According to the forensic-religious expertise, some copies of literature banned in Azerbaijan were found in the house during the search. In spite of this, however, M. Naqiyev was not charged under the Article 167-2 of the Criminal Code of the Azerbaijan Republic. The seized literature has been returned to the accused’s mother.
It is worth remembering that the wave of arrests of Shiite believers began in 2022. Despite the fact that pro-government media spread the theory that all of them had been arrested in connection with their work for the Iranian intelligence services, yet, the official charge against all of them, without exception, had been brought under the Article 234.4.3 of the Criminal Code of the Azerbaijan Republic. This may be the reason why M. Naqiyev was charged under the Article 234.4.3 of the Criminal Code of the Azerbaijan Republic, and not under the Article 167-2 of the Criminal Code of the Azerbaijan Republic, in which the religious subtext is obvious.
The Article 139 of the Code of Criminal Procedure of Azerbaijan Republic states, during prosecution, the following may be determined only on the basis of evidence:
- the facts and circumstances of the criminal act;
- the connection of the suspect or accused with the criminal act;
- the criminal ingredients of the act provided for in criminal law;
- the guilt of the person in committing the act provided for in criminal law;
- the circumstances which mitigate or aggravate the punishment for which criminal law provides;
- 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 Court did not determine the attributability of the found drugs to the defendant, although he and his mother testified that he had nothing to do with the drugs. Also, Naqiyev’s professional characteristic was favourable.
The Court, imposing the punishment, did not take into account the presence of the defendant’s three young children, one of whom is suffering from infantile cerebral palsy. Moreover, he is the only breadwinner in the family, while his spouse takes care of a sick child and two other young kids. Equally important is the issue of a preventive measure against the accused.
According to the Article 306 of the Code of Criminal Procedure of Azerbaijan Republic, during the preparatory hearing, the Court deals with the question:
- the grounds for applying a restrictive measure to the accused or not;
- if a restrictive measure is adopted, the grounds for adopting that particular type of restrictive measure;
- maintaining, altering or annulling the restrictive measure applied to the accused.
Despite the existence of this legal provision, the Court upheld the previously ordered measure of restraint in the form of arrest, without even taking into account the fact of the presence of three young children, including one sick child.
The numerous procedural violations led to the contravention of fundamental rights against M. Naqiyev, i.e. the Right to Liberty and Personal Inviolability, the Right to Presumption of Innocence, the Right not to testify against himself, the Right to a Fair Trial and other fundamental rights in the democratic society.