Appeals Court kept Mehman Guseynov’s verdict unchanged
Analysis of the law violation at Mehman Huseynov’s trial
The Baku Court of Appeal, the Criminal Collegium
Case no. 1(103)-674/17
Chairman: Vagif Mursagulov
Judges: Faig Gasimov, Hasan Ahmadov
Accused: Mehman Huseynov
Defenders: Elchin Sadighov, Shakhla Humbatova, Fuad Aghayev
The private prosecutor: The head of the Nasimi District Police Department Musa Musayev
Representative and advocate of the prosecutor: Alirza Khabilov
Famous blogger Mehman Huseynov, chairman of the Institute for Reporters’ Freedom and Safety, was repeatedly subjected to surveillance. As far back as in December 2016, specially trained people tried to provoke a fight with him. But he, having understood this, was able to avoid it. On January 9, 2017 in the centre of Baku, saying goodbye to his friends, Huseynov went to a meeting with a colleague. However, he was abducted by five unknown persons in a civilian. He was forcibly put in a car, they put a bag over his head, twisted his arms and took him away. The car drove for a long time, although the distance from the place where he was kidnapped to the nearest police station is a maximum of 10 minutes. Finally, he was brought to the Nasimi District Police Department.
The next day, M.Huseynov was taken to the Nasimi District Court, where he was found guilty under Article 535.1. (Malicious disobedience to the lawful demand of a police officer) of the Criminal Code of the Republic of Azerbaijan and fined 200 manats ($118). After leaving the court, M. Huseynov told reporters how he was kidnapped on January 9, and described in detail how he was tortured in the Police Department of Nasimi district.
It was his story of beatings and torture in the police that led him to be accused of libel. The complaint was filed by the head of the Nasimi District Police Department Musa Musayev to the Surakhani District Court. It should be pointed out that when talking about torture and inhuman treatment, Mehman Huseynov did not name anyone. In the complaint of police chief M.Musayev it was stated that M.Huseynov slandered the police, accused the police of committing a serious crime, that his actions fall under Article 147.2. CC RA. According to this article: ‘Defamation combined with the accusation of a person for committing a grave or especially grave crime is punishable by correctional labor for up to two years, or by restraint of liberty for up to two years, or by imprisonment for up to three years”.
On February 10, 2017, the first hearing was held in the Surakhani District Court, chaired by Judge Jeyhun Gadimov. It should be noted that the meeting was held in a small room, friends and the press were not admitted to the process. At this meeting, lawyer Elchin Sadigov asked to give time to get acquainted with the complaint. The judge, having satisfied the lawyer’s petition, appointed the meeting on February 17. Twice the trial was postponed. All the motions submitted by the lawyer were rejected by the court.
On March 3, 2017, the Surakhani District Court found M.Huseynov guilty of committing a crime under Article 147.2. of Criminal Code of the Republic of Azerbaijan and sentenced him to 2-year imprisonment.
Mehman Huseynov’s lawyers filed an appeal against the verdict of the court of first instance. At the preparatory meeting, the judicial board of the Court of Appeal decided that the trial would be conducted without judicial investigation. The defendant was placed in a glass enclosure installed in the hall with a fully enclosed top. The microphone was attached to the camera, the microphone control button (on/off) was located on the spot where the judicial board was located.
The lawyers appealed to the college with several petitions. One of the first motions was to release M. Huseynov from the glass chamber and allow him to sit next to the lawyers for more effective protection. However, this petition was rejected. Further, the following petitions were filed: getting video records of the registrar from the patrol car, in which M.Huseynov was brought to the police on January 9; records of video cameras located near the Nasimi District Police Department; to summon and interrogate as witnesses Huseynov’s 4 friends (with whom he was on January 9 on the day he was kidnapped); to summon to the court and interrogate the head of the Department, accusing the blogger of slander. All the filed petitions were rejected by the court.
During the trial M. Huseynov told in detail about the torture in the police, having demonstrated the places on his body where the electric shock was applied.
The defense speech was based on the violations committed in the course of the judicial investigation in the court of first instance. The defense asked to justify Huseynov for the absence of corpus delicti.
On April 12, 2017, the Criminal Collegium of the Baku Court of Appeal ruled to refuse satisfaction the appeal and left the verdict of the first instance court of March 3, 2017 unchanged.
Commentary by an expert lawyer:
The judgment is illegal and unreasonable. As indicated above, the defense filed a large number of motions, which related directly to the defendant’s rights and freedoms, but none of them was satisfied. In this regard, it is worth recalling the norm of the criminal procedure legislation. Thus, in accordance with Article 299.7.1. of the Criminal Procedure Code of the Republic of Azerbaijan (CCP) ‘the court shall be entitled to reject only such applications that are irrelevant or related to the presentation of evidence in the event that it is deemed inadmissible.’ If the petitions of the defense party were satisfied, the matter would be clarified.
The defense pointed out that violations in the court of first instance were already admitted at the primary meeting. According to Article 298.3 of the Code of Criminal Procedure: ‘The court notifies the accused, his/her counsel, as well as the public prosecutor (if the prosecution is carried out by public or public-private accusation), the victim, the private prosecutor (if prosecuted in private prosecution), civil plaintiff, civil defendant or their representatives on the admission the materials of simplified pre-trial proceedings or a complaint in the private charges to the judicial proceedings of the relevant criminal case, and on the conduct of a preparatory hearing of the court, in the following terms:
(Article 298.3.2) no later than 3 (three) days prior to the preparatory hearing of the court on the basis of simplified pre-trial proceedings or a complaint in the form of a private prosecution.’
Despite the availability of these procedural rules, the court of first instance rendered the verdict without providing the resolution of the primary meeting.
The only evidence presented by the prosecution was a videotape, in which M.Huseynov speaks of torture and ill-treatment.
During the consideration of the case, the court of first instance violated the jurisdiction. The place of commission of the crime provided for in Article 147.2. CC RA, is the place where defamatory information was distributed. We recall that M.Huseynov spoke about torture and ill-treatment, leaving the building of the Nasimi District Court. The complaint was filed with the Surakhani District Court, at the place where Huseynov was registered.
During the trial, M.Huseynov’s lawyer stated that the head of the Nasimi District Police Department Musa Musayev had no right to file a complaint as a private charge, since M.Huseynov, speaking of torture, did not name anyone, and, therefore, did not cause any damage specifically to this person.
As it is known, the trial must proceed on the basis of the principle of competitiveness and equality of parties. As stated above, the defense appeal to summon to the court and interrogate as witnesses the 4 persons who could testify in favour of the accused, as well as private prosecutor Musa Musaev himself was rejected. Other defense petitions directly related to the case were also not satisfied. Thus, the principle of adversarial character and equality of parties was violated.
During the trial, the defense also recalled the torture to Emin Huseynov, Mehman Huseynov’s own brother, in the Nasimi District Police Department. On June 14, 2008, torture and ill-treatment were applied to him in the Nasimi District Police Department. This fact was confirmed by the decision of the European Court of Human Rights in the case of E.Huseynov v. Azerbaijan of May 7, 2015.
In M.Huseynov’s case, besides the material and procedural norms of national legislation, the norms of international law were violated. Thus, according to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ‘No one shall be subjected to torture or inhuman or degrading treatment or punishment.’
The following indicates the use of torture and ill-treatment to M.Huseynov:
· On January 9, 2017, an ambulance was called to M.Huseynov in the Nasimi District Police Department, which was there from 10.28 p.m. to 10.47 p.m. He was diagnosed with lower varix dilatation, an injection was made from a mixture of analgin and dimedrol;
· According to the conclusion of the forensic medical examination conducted on January 13, 2017, abrasions were found on M. Huseynov’s right arm and behind the right knee;
· These damages refer to January 9, 2017.
Examination showed that traces of the use of an electric shocker on M.Huseynov’s body were not detected. In this case, it should be noted that the traces of the electric shock remain on the body for several hours, in some cases for one day. Examination was conducted 4 days after the incident.
It should also be noted the video recording attached to the case file by a private prosecutor. The source and origin of this video (by whom, when and how it was produced) was not established either by the private prosecutor or during the judicial investigation.
In addition to Article 3 of the European Convention (Prohibition of torture and inhuman treatment), the court violated the following articles of the EC:
· Article 5 (Right to person’s liberty and security),
· Article 6 (Right to a fair trial),
· Article 7 (Punishment solely on the basis of the law),
· Article 10 (Freedom of expression of opinion),
· Article 13 (Right to an effective remedy),
· Article 14 (Prohibition of discrimination),
· Article 17 (Prohibition of abuse of rights),
· Article 18 (Limits on the use of restrictions on rights).