ASIF YUSIFLI IS ANOTHER VICTIM OF THE VIOLENT REPRESSION OF 2020
Analysis of violation of law during Asif Yusifli’s judicial proceedings
Baku City Nasimi District Court
Case № 4 (006)-413/2020
18 July 2020
Judge: Babak Panahov
Defendant: Asif Yusifli
Defender: Shohrat Allahmanov, Nemat Karimli
The person who requested the arrest: the investigator, a member of the investigation group at the Investigative Department on Particularly Grave Crimes of the General Prosecutor’s Office of the Azerbaijan Republic, Tural Hagverdiyev
The person who issued for the arrest: Sattar Rzayev, the Senior Prosecutor of the General Prosecutor’s Office Investigative Department of the Azerbaijan Republic, Sattar Rzayev
Asif Yusifli is a deputy chairman of the People’s Front Party of Azerbaijan, a veteran of the Karabakh war, who was seriously wounded in combat and therefore was rendered a 2-nd group disabled. Asif Yusifli was first brought to criminal responsibility on the fabricated charges in 2014. On 30 July 2015, the Baku Court of Serious Crimes issued a sentence against A. Yusifli. He was found guilty of the committed crime under the Article 178.3.2 (Swindle committed with causing damage in the large size) of the Criminal Code of the Azerbaijan Republic and sentenced to 7 years and 6 months imprisonment. The Supreme Court reduced his term of imprisonment to 6 years. On 25 November 2019 A. Yusifli was released.
On 12-14 July 2020 there were violent battles between the Azerbaijani and Armenian sides on the border in Tovuz region. As a result of the fighting 11 militaries of the Azerbaijani army were killed, including the General Polad Hashimov and Colonel Ilqar Mirzoyev.
On 14 July 2020, in the evening, there was a demonstration in Baku to support the Azerbaijani army. A considerable number of people marched a long way from the Koroglu metro station to the center of the capital. Then, the protesters continued walking to the building of the presidential administration, and to the parliament. According to eyewitnesses, a small group of unidentified people broke into the parliament building at night on 15 July causing damage to the public property. The protesters said that those people had been purposely sent to the parliament as provocateurs to break the law. Employees of the State Security Service (SSS), including the Major General of the SSS and the President’s cousin, Rauf Khalafov, who had been among the first to enter the Azerbaijani Parliament building, were also captured on the photos. The doors to the building were unexpectedly opened on the night of 15 July.
Asif Yusifli was a participant of this rally. On 17 July 2020 Asif Yusifli was detained near his house and interrogated at the Main Investigation Department of the General Prosecutor’s Office of Azerbaijan Republic. Asif Yusifli’s lawyer, Nemat Karimli, was not allowed to see his client. The lawyer considered that action as illegal.
Asif Yusifli was charged with committing crimes under the Articles 186.2.1 (Deliberate destruction or damage of another’s property which caused significant damage to a victim committed with causing damage to a victim in the large size), 233 (Organization of actions promoting infringement of a social order or active participation in such actions) and 315.1 (Resistance or application of violence concerning the representative of authority) of the Criminal Code of Azerbaijan Republic. Asif Yusifli became a victim of mass repressions in the country launched after the 14-15 July demonstration.
Ilham Aliyev gave a speech on 21July, in which he accused the opposition of preparing a coup d’état, as he said that began with the seizure of the parliament building.
Within a few days, about 150 people had been arrested. They were brutally beaten and asked to testify about the forthcoming coup. Dozens of citizens were brought to administrative responsibility and were charged with between 15 and 60 days of the detention. Criminal cases under the Articles 186.2.1, 233 and 315.1 of the Criminal Code were initiated against 28 citizens. The member of the Board of Popular Front Party of Azerbaijan, Fuad Qahramanli, who was detained on July 24, 2020, was also charged under the Article 278 of the Criminal Code, in addition to the above-mentioned articles.
On 18 July 2020, the Baku Nasimi District Court granted the investigator’s petition and the Prosecutor Office’s submission and adopted a ruling concerning the arrest of Asif Yusifli for a period of 3 months.
On 19 July 2020, the Ministry of Internal Affairs of the Azerbaijan Republic published the information on its website (www.mia.gov.az) stating that the individuals who committed illegal actions in the center of Baku were detained during the rally. Later, there were published photos of some detainees, including Asif Yusifli.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified. According to the Article 153.1 of the Code of Criminal Procedure of the Azerbaijan Republic, in the event of detention, the prosecuting authority shall secure the detainee’s rights as suspect or accused, depending on his legal status as provided for in this Code. Article 153.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that to secure the rights of the detainee, the officials of the prosecuting authority and those in charge of the temporary detention facility shall:
153.2.1. inform the detainee immediately after detaining him of the grounds for detention, and explain to him his right not to testify against himself and his close relatives as well as his right to the assistance of defence counsel;
153.2.2. take the detainee without delay to the police or other preliminary investigating authority’s temporary detention facility, register the detention, draw up a record and show him the detention record;
153.2.3. report each instance of detention, immediately after registration in the temporary detention facility, to the head of the appropriate preliminary investigating authority and to the prosecutor in charge of the procedural aspects of the investigation (this information shall be given in writing within 12 hours of detention);
153.2.4. secure the right of the person to inform others of his detention immediately after detention (the authority in charge of the temporary detention facility, on his own initiative, shall inform the family members of any detainees who are elderly, under age or unable to do so themselves because of their mental state);
153.2.5. provide opportunities for the person, from the moment of detention, to meet in private and in confidence with his lawyer and legal representative under decent conditions and under supervision;
153.2.6. if the detainee does not have a lawyer of his own, present him with a list of lawyers from the bar association offices in the vicinity of the temporary detention facility, contact the chosen lawyer and create an opportunity for the detainee to meet him;
153.2.7. if the financial position of the detainee does not enable him to retain a lawyer at his own expense, create an opportunity for him to meet the duty lawyer from one of the bar association offices in the vicinity of the temporary detention facility, at the state’s expense;
153.2.8. if the detainee refuses the services of a lawyer, receive his written request to that effect (if he evades writing the request, a record to that effect shall be drawn up between the lawyer and the representative of the temporary detention facility);
153.2.9. secure the right of any person who does not know the language of the criminal proceedings to use the services of an interpreter free of charge;
153.2.10. not treat the detainee in a way that fails to respect his personality or dignity, and pay special attention to women and persons who are under age, elderly, ill or disabled;
153.2.11. take the restrictive measure of arrest in respect of the detainee, and bring him to court in good time in order to ensure that the question of forcibly sending him to the place where the sentence or other final court decision is to be executed, replacing the penalty given to him with another or repealing his suspended sentence or conditional release is settled within the time limits provided for in Articles 148 and 150-152 of this Code;
153.2.12. perform the duties prescribed in Article 153.3 of this Code.
In this case, the investigation body did not provide the detainee with all the rights mentioned in the above-mentioned article. Thus, Asif Yusifli was not given an opportunity to immediately inform his relatives about the detention, his lawyer was denied access to him, instead he was appointed a state lawyer, Shohrat Allahmanov. Although the law requires a different procedure for the appointment of an attorney.
Nemat Karimli, the lawyer, was able to join the trial only during the court session when the imposition of a constraint measure was under consideration. The Article 153.2 of the Criminal Procedural Code of Azerbaijan Republic also refers to the prohibition of a detainee’s humiliation. However, the law enforcement bodies, having charged Asif Yusifli and other detainees, took photos of those people and distributed them in the mass media. The authorities did not provide any explanation about the purpose of this action. Following the logic, the pictures were distributed to humiliate the detainees. The detainees were standing with their heads down on the photographs. The purpose of the law enforcement agencies was to show the public their helplessness and present those detained as criminals beforehand, violating the principle of presumption of innocence.
The court ruling does not indicate what Asif Yusifli has committed, what the illegal actions were, and what evidence and arguments have proved it. It is not either clear what primary evidence the investigation body submitted to the court or how the court proceeded when imposing the constraint measure.
According to the Article 155.1 of the Code of Criminal Procedure of the Azerbaijan Republic, restrictive measures may be applied by the relevant preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court when the material in the prosecution file gives sufficient grounds to suppose that the suspect or accused has:
155.1.1. hidden from the prosecuting authority;
155.1.2. obstructed the normal course of the investigation or court proceedings by
illegally influencing parties to the criminal proceedings, hiding material significant to
the prosecution or engaging in falsification;
155.1.3. committed a further act provided for in criminal law or created a public threat;
155.1.4. failed to comply with a summons from the prosecuting authority, without good
reason, or otherwise evaded criminal responsibility or punishment;
155.1.5. prevented execution of a court judgment.
The court ruling on the imposition of a preventive measure states the following grounds, which, in the opinion of the court, justify the imposition of a preventive measure in the form of arrest:
- the nature and public danger of the act;
- the gravity of the charge;
- failure to appear without a valid excuse on the summons of the investigating body or otherwise evading criminal liability and serving the sentence.
If the investigation authorities indicated the existence of the above grounds that justify the arrest of the accused, whereas the Court should have requested specific evidence and arguments that would have proved the investigation’s reasoning. However, as can be seen from the ruling, the court merely listed the grounds provided by the investigation, accepted them as significant and issued an arrest warrant. Besides, the court did not indicate what was the primary evidence that led to the arrest of Asif Yusifli. Even though Asif Yusifli took part in a rally in support of the army, this does not mean that he committed illegal activities.
By choosing the preventive measure in the form of arrest against Asif Yusifli, the court violated the right to liberty and security of person guaranteed by the Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, also by the Article 3 of the Universal Declaration of Human Rights, and the Article 9 of the International Covenant on Civil and Political Rights. All these articles guarantee the physical integrity of the individual from arbitrariness. The principle of personal freedom must be the rule; deprivation of liberty before a court sentence is a direct exception.
Pretrial detention is justified only if the specific grounds reveal the existence of danger to a public safety that prevails, despite the presumption of innocence, over respect for individual freedom. National jurisdictions should consider all circumstances that enable a public interest to be demonstrated that would justify exceptions to the general rule of respect of individual liberty.
With regard to the motives cited by the national judicial authorities to deny the release of a person held in temporary detention, the primary motives are the following: violation of public order, threat to flee, danger of conspiracy, re-offending. With regard to the violation of public order, it is clear that certain offences, due to their particular gravity and the public reaction to their commission, may cause public disorder that justifies a pretrial detention. However, this reason may only be considered relevant and sufficient if it is based on facts that can prove that the release of a detainee may indeed disrupt the public order. Moreover, the detention will be lawful only if there is a real threat to the public order; it cannot last longer than the sentence of deprivation of liberty.
Regarding the threat of absconding, the casу-law specified that if the seriousness of the sentence to which an accused might be subjected if convicted could legitimately be considered as being likely to induce escape, there was not enough, after some time, to justify detention, especially since the threat of absconding might increase over time. The threat of flight, however, does not stem from the simple opportunity or ease with which an accused person can cross a border, which is rather simple nowadays, when the border control is gradually fading. In order for it to appear credible, all other circumstances relevant, inter alia, to the profile of the person in question, his or her moral identity, place of residence, profession, his or her means, family ties, ties of any kind with the country in which he or she is persecuted, must be able either to confirm the existence of a threat of absconding or to reduce it to such a degree that pretrial detention would not be justified” (“Cases of the European Court of Human Rights”, Michele de Salvia, St. Petersburg, 2004).
From the above it follows that the use of the preventive measure in the form of arrest against Asif Yusifli was not for a legitimate purpose, was not based on the concrete evidence that should have supported the investigation arguments and subsequently the court, and thus violated Asif Yusifli’s right to liberty and security of person.