Criticising the authorities will result in arrest and imprisonment


Elvin Mustafayev

Analysis of violation of law during Elvin Mustafayev’s judicial proceedings

Baku City Binagadi District Court

Case № 4(001)-826/2023

5 August 2023

Presiding judge: Zamiq Bagirov

Defendant: Elvin Mustafayev

Defender: Ilkin Mammadov

The plaintiff: police major Sabuhi Mehbaliyev, an investigator of the Investigative Unit at the Binagadi District Police Department

On 1 August 2023, in Baku, there was a rally organised by the motorbike couriers. They protested against the police that requested their driving licences and the actions of the authorities taking their vehicles to the impound yard. It should be noted that the new law adopted in this field prohibited such actions of the police.

Among those taking part in the rally there were members of the Trade Unions Confederation “Workers’ Table” including an activist Elvin Mustafayev who, in March 2023, had previously been arrested for his critical statements on social media for the period of 30 days. He was arrested for critisising the authorities’ negligence on the water shortage in the Saatly District of Azerbaijan.

This time Elvin Mustafayev was charged with committing an offence 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. The accusation stated that on 4 August 2023, E. Mustafayev illegally acquired and possessed 3.471 grams of the narcotic drug heroin. The place and source where Elvin Mustafayev purchased the drugs is unknown to the investigation. In the course of operational-search measures he was detained by the police and brought to the Baku City Binagadi District Police Department.

Anar Qafarov, an employee of the Azerbaijani Interior Ministry Press Service, said to the Turan News Agency journalist that Elvin Mustafayev had pleaded guilty. –

Sabuhi Mehbaliyev, an investigator, provided similar interpretations to the motion for arrest, and asked the Court to fulfil the request and impose a measure of restraint in the form of arrest on E. Mustafayev.

Elvin Mustafayev, interrogated in the course of the trial, testified that he worked as a courier for the Wolt Company. He had never been involved in drug dealing and, moreover, had always had a negative attitude towards such people, always avoiding them. He also testified that he had been forcibly detained in his yard and forced to “confess” due to threats, which had been recorded on a video. He was threatened to face heavier charges if he failed to admit guilt. He initially disagreed, even though he was told that in case of pleading guilty, the charges would be reclassified to the less severe Article 234.1 (Illegal acquisition, storage, manufacture, processing, transportation without purpose of sale of narcotic drugs or psychotropic substances in significant quantities, committed in large amounts) of the Criminal Code of the Azerbaijan Republic and he would be released. However, he was deceived by the investigating bodies and had to sign the papers in a hurry.

On 5 August 2023, the Binagadi District Court of Baku City issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Elvin Mustafayev in the form of detention for a period of 4 months.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

There are the following objectives in the criminal procedure legislation:

  • to defend individuals, society and the state against criminal attempts;
  • to defend individuals against abuse of power in connection with the commission of a real or possible offence;
  • to detect offences as early as possible, to investigate all the circumstances thoroughly, completely and objectively;
  • to prosecute and to incriminate those who have committed offences;
  • to conduct judicial proceedings in order to punish persons found guilty of committing offences and to acquit those who are not guilty.
  • to apply the criminal law measures against the legal entities for the offences committed by individuals in favour of the legal entity or for the protection of its interests.

Above there is the testimony of the accused E. Mustafayev who prior to this arrest was brought to the administrative responsibility and sentenced to a 30-day administrative detention.

Elvin Mustafayev has described in detail the police officers’ pressure and threats in order to obtain a “confession”. As mentioned above, an employee of the Azerbaijani Interior Ministry Press Service also referred to E. Mustafayev’s “confession”. It can only mean that there will most likely be no irrefutable evidence of his guilt in the case other than the video recording of his “confession”, plus a few forensic medical expertises.

At this stage of the proceedings, we should consider the lawfulness of the preventive measure in the form of arrest.

The judgment of the European Court of Human Rights (ECHR) in the case of Baranowski v. Poland from 28 March 2000 says:


“The lawfulness of detention from the point of view of the domestic Law is an essential element but not a decisive one. Moreover, the Court must be convinced that the detention during the period in question fulfils the objective of the Article 5 para. 1 of the Convention in order to protect the individual against arbitrary deprivation of liberty. The Court must therefore be satisfied that the domestic Law itself is in conformity with the Convention throughout, including the principles enshrined or implied therein.” – –{%22fulltext%22:[%22baranowski%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58525%22]}

In the court ruling, there is a reference on the election of a preventive measure saying that the presumed punishment assumes deprivation of liberty for a term exceeding 2 years. Although the Criminal Procedure Law of Azerbaijan Republic provides this provision, Article 151 of the Azerbaijani Constitution, Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the case law of the European Court of Human Rights (ECHR) completely refute it. According to the Article 151 of the Constitution of the Republic of Azerbaijan,

Whenever there is disagreement between normative-legal acts in legislative system of the Azerbaijan Republic (except Constitution of the Azerbaijan Republic and acts accepted by way of referendum) and international agreements wherein the Azerbaijan Republic is one of the parties, provisions of international agreements shall dominate.

The intended punishment cannot justify the use of the strictest preventive measure, unless there are other justifications.

The judgment of the ECHR in the case of Wemhoff v. Germany from 27 June 1968 states:

“Although the severity of the punishment to which the accused may be subjected if convicted may legitimately be regarded as capable of inducing flight, notwithstanding that the fear lessens as pre-trial detention continues, and that the remaining part of the punishment duration to which the accused may be subjected thereby diminishes, in the meantime there is insufficient scope for cruel punishment in this respect”. –{%22itemid%22:[%22001-57595%22]}


According to the Article 9.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

Under the circumstances provided for in this Code, violation of the principles or conditions governing criminal proceedings may render the completed criminal proceedings invalid, cause the decisions taken during them to be annulled and deprive the evidence collected of its value.

The ruling on the arrest of Elvin Mustafayev failed to contain any initial evidence that would justify and substantiate the imposition of a preventive measure in the form of arrest. In this case, as in many other cases, the Court did not provide any reasoning arguments in relation to a specific individual.

The Court also referred to the particular gravity of the alleged offence in its judgment, but that was not sufficient justification for the arrest. On this point, the ECHR “recognises that the particular gravity of certain offences may cause a public reaction and social consequences that make pre-trial detention justified, at least for a certain period of time. Under exceptional circumstances, this point may be taken into account in the light of the Convention, at least insofar as the domestic law recognises the notion of a breach of public order resulting from an offence. However, it can only be considered justified and necessary if there are indications that a detainee’s release would actually violate the public order or if that order is actually jeopardised. The pre-trial detention should not be a precursor to a custodial sentence”.

There is no specific ground to believe that such a danger exists, there are just formal general statements in the Court ruling.

The Court regarded Elvin Mustafayev’s testimonies said in the course of trial as inconsistent with reality. The statement concerning the threats from the part of investigating officers the Court didn’t take seriously explaining its deny by the fact that the defendant has a high intellectual level and therefore he (the defendant) wouldn’t be able to believe in such alleged threats.

The Article 33.4 of the Code of Criminal Procedure of the Azerbaijan Republic states,

Judges and jurors may not regard evidence or other materials unfavourably, or attach more importance to one piece of evidence or other item than to another, until they are examined under the statutory procedure.

In the case at hand, the Court actually demonstrated that they did not have any intention to investigate or provide a legal assessment to what Elvin Mustafayev had said.

According to the Article 124.2 of the Code of Criminal Procedure of the Azerbaijan Republic, the following shall be accepted as evidence in criminal proceedings:

  • statements by the suspect, the accused, the victim and witnesses;
  • the expert’s opinion;
  • material evidence;
  • records of investigative and court procedures;
  • other documents.

As can be seen, the accused’s testimony is the same kind of evidence provided by any others interrogated at the trial. It means that his testimony must be verified, examined and evaluated by the court.

It is inadmissible to accept any information, documents or objects obtained with the use of violence, threat, deceit, torture and other cruel, inhuman or humiliating actions as evidence in a criminal case (Article 125.2.2 of the Code of Criminal Procedure of the Azerbaijan Republic).

Despite the existence of these procedural regulations of law, the Court just took into account the primary evidence provided by the investigative body (e.g.the video recording with the alleged confession of Elvin Mustafayev) but did not consider the accused’s testimony at the trial, on the contrary, treated it in a biased and unlawful manner.

All indicated above lead to the assumption that the arrest of Elvin Mustafayev, a public activist who openly protests against the authorities’ actions, is not of a legitimate nature but as usual has an intention to intimidate individuals engaged in the political, public, journalistic, human rights or other types of activities criticising the current government deeds, as well as gross violations in the field of human rights protection.