BEING IN THE OPPOSITION IN AZERBAIJAN MEANS BEING DEPRIVED OF FREEDOM

Kanan Zeynalov

Analysis of violation of law during Kanan Zeynalov’s judicial proceedings

Baku City Surakhani District Court

Case № 3(010)-4826/2023

5 October 2023

Presiding judge: Elnur Nuriyev

The person against whom an administrative record was issued: Kanan Zeynalov

Defender: Afgan Kazimov

The administrative report was drawn up by: Natiq Ismayilov, a District policeman at the 33rd Police Station within the Surakhani District Police Department

In September 2023, there were multiple arrests of the public and political activists as well as journalists right after the anti-terrorist operation in Nagorno-Karabakh. Among others, there have been arrested five activists of the Popular Front Party of Azerbaijan (PFPA) including the PFPA Chairman’s bodyguard, Kanan Zeynalov. In the past, Zeynalov was a bodyguard of the late ex-President, Abulfaz Elchibey, and he is a veteran of the first Karabakh war, in the course of which he was severely wounded.

On 5 October 2023, Kanan Zeynalov was detained by the people in civilian clothes and brought to the 33rd Police Department of the Baku Surakhani District Police Department; where an administrative report against him was drawn up, under which he was charged with an offence under the Article 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic.

1. Zeynalov, interrogated in the course of the trial, did not plead guilty to the offence and testified that on 5 October 2023, he went to the store to buy bread, he was approached by the police officers and taken to the police station. He, having neither resisted in any way nor committed any offence, followed them to the car. Kanan Zeynalov linked his arrest to his political activity and asked the Court to exempt him from administrative responsibility.

The district police officer who drew up the administrative report against K. Zeynalov testified at the trial that on 5 October 2023, he addressed the Chief of the police station with a report in which he indicated that a certain Kanan Zeynalov had maliciously disobeyed to the police officers’ demands. For this reason, he was brought to the police station where it was drawn up an administrative protocol against the above individual.

Questioned in court as a witness, a Major Nurlan Abdullaev, the operative commissioner of the 33rd Police Department, testified that on 5 October 2023, at about 17.10 he had noticed a man who had been loudly shouting obscene words not particularly addressed to anyone. Approaching him he asked not to violate a public order. However, the man didn’t stop screaming and rudely pushed away the police officers who tried to calm him down. Then, the man started a fight with them. The policemen took the man to the station, where it was found out that his name was Kanan Zeynalov. It was drawn up an administrative protocol for violation of Article 535.1 of the Administrative Offences Code of the Azerbaijan Republic against K. Zeynalov.

An operative of the 33rd Police Department, a lieutenant, Alovsat Alizade who was questioned as a witness at the trial, provided the testimony similar to that of Nurlan Abdullayev.

The Court did not find any mitigating or aggravating circumstances in the administrative case.

On 5 October 2023, the Baku City Surakhani District Court issued a ruling: to find Qiyas Ibrahimov guilty on the charges and sentence him to 25 days of administrative arrest.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

According to the Article 535.1 of the Administrative Offences Code of the Azerbaijan Republic, malicious disobedience to the lawful request of a police officer or military man  while on duties to protect a public order shall entail a fine of two hundred manat for individuals, and if, under the certain circumstances and taking into account  an offender’s personality, the application of these measures is deemed insufficient, it should be applied an administrative arrest for the period up to a month.

As it appears, the Article stipulates an alternative punishment to arrest in the form of a fine. In order to be able to apply an arrest to offender, it is necessary to have a condition of insufficiency of such a measure as a fine.

The judgement on the arrest of K. Zeynalov there is nothing said about the fact that the imposition of a fine would not be sufficient. The Court, by virtue of its legal duties, should consider alternative measures of punishment other than arrest, particularly since the Article under which K. Zeynalov was charged provided an alternative punishment in the form of a fine. Moreover, the charge was brought under the Code of Administrative Offences rather than the Criminal one. To deprive a person of liberty, even for 25 days, without respecting the principles of presumption of innocence, legality and equality of all before the law, it means at least to violate his right to freedom and personal inviolability.

The principle of respect for human and civil rights, and freedoms is one of the first principles in the Code of Criminal Procedure.

According to the Article 5.1 of the Administrative Offences Code of the Azerbaijan Republic,

The rights and freedom of human and citizens are of great value. All the state authorities (officials) having committed violation of these rights and freedom shall be responsible in the order provided by legislation of the Azerbaijan Republic.

Despite the existence of this legal Norm, this Norm is almost never applied, especially in such cases as prosecution of political and public activists and opposition-minded citizens.

According to the Article 8.2 and 8.3 of the Administrative Offences Code of the Azerbaijan Republic, the person being called to account for administrative violation has not to prove his guiltlessness. Doubts regarding the guiltiness of the person called to account for administrative violation shall be resolved in his favour.

There are a number of contradictions in this case, doubts about the guilt of K. Zeynalov, however none of them were interpreted in his favour.

Thus, the witnesses in the case are only the police officers who brought him to administrative responsibility. They were concerned in the outcome of the case, and therefore, the Court should have been alert and assessed their testimony in conjunction with the other evidence.

According to the Article 67.2 of the Administrative Offences Code of the Azerbaijan Republic, any witnesses are obliged to provide just truthful testimonies. Otherwise, a witness may be held administratively liable, of which he/she is warned before testifying.

Apart from the police testimony, there was no any other evidence of Kanan Zeynalov’s guilt in the case.

According to the Article 75 of the Administrative Offences Code of the Azerbaijan Republic, the following circumstances must be determined in the case:

• the occurrence of an administrative offence (whether an administrative offence has taken place);
• a individual who has committed an administrative offence;
• guilt of an individual in commission of an administrative offence;
• the circumstances aggravating and mitigating administrative responsibility;
• the nature and extent of the damage caused by the administrative offence;
• circumstances precluding proceedings on cases of administrative offences;
• other circumstances significant for the proper determination of the case, as well as the causes and conditions that contributed to the occurrence of an administrative offence.

As evident from the ruling, the circumstances that would exclude administrative responsibility, as well as other circumstances, were not considered by the Court.

One of the proofs for administrative offences is a testimony of a person brought to responsibility (Article 78.1 of the Administrative Offences Code of the Azerbaijan Republic). Despite the fact that K. Zeynalov clarified to the Court that he had not committed any offence, not disobeyed the police and linked his arrest to some political activity, the Court did not respond to that testimony in any way and failed to provide any legal assessment.

The evidences in the case were obviously insufficient, as stated above, the Court considered only the testimony given by the police officers who had been directly involved in the case.

In such a case, the Judge, an authorized body (official), whose proceedings a case of administrative misconduct is under consideration, may adopt a ruling on requesting additional information necessary for the case settlement (Article 83.1 of the Administrative Offences Code of the Azerbaijan Republic).

The assessment of evidence is carried out in this way: a judge, an authorized body (official), examining a case on administrative misconduct, shall assess the evidence upon his internal conviction, based on a comprehensive, exhaustive and objective examination of all the circumstances relevant to the case in its totality.

As we can see, the lack of evidence in the case put under question the legality and validity of the Court ruling, which is based just on the police officers’ testimonies.

It is an interesting fact that in the summary of the ruling it was written that the arrest of Khayam Aliyev (!) began at 5.15 p.m. on 5 October 2023. The wrong spelling of the detainee’s name and surname indicates that that ruling was just copied from some other order, which the Court did not even bother to modify.

As per the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5, “everyone has the right to liberty and security of person. No one shall be deprived of his liberty except in such cases and in such manner as may be prescribed by the law.” The Article further lists those exhaustive examples of cases in which arrest may be lawful.

For a deprivation of liberty to be in conformity with the European Convention, it must fulfil two conditions: legality and lawfulness. The deprivation of liberty must be in accordance with a domestic law; in this respect, it is incumbent on national judicial authorities to interpret domestic law in a particular area.

The domestic proceedings must be fair and appropriate. The deprivation of liberty must also be legitimate, i.e. it must correspond to the purpose provided for in one of the cases from the comprehensive list set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5.

In the case of Kanan Zeynalov, the legality and lawfulness were not respected, as the arrest did not have a legitimate ground but fulfilled other goals not specified in the Law.

The judgment of the European Court of Human Rights (ECHR) in the case of Guzzardi v. Italy of 6 November, 1980, it is said,

“In proclaiming the ‘right to liberty’, Article 5(1) indicates a personal liberty in its classical sense, i.e. an individual’s physical liberty. Its purpose is to ensure that no one could be arbitrarily deprived of that freedom” –

https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-57498%22]}

Thus, it can be concluded that Kenan Zeynalov had been unlawfully detained, the Court violated his right to freedom issuing its ruling; the Right to Freedom is enshrined in the Article 28 of the Azerbaijani Constitution, as well as in the Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the precedents of the European Court of Human Rights.

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THE COURT VIOLATES RASHAD ALIYEV’S RIGHT TO FREEDOM

Rashad Aliyev

Analysis of violation of law during Rashad Aliyev’s judicial proceedings

Collegium for Criminal Cases of the Shirvan Court of Appeal

Case № 4(106)-60/2023

8 June 2023

Presiding judge: Mahammad Bagirov

Judges: Ismayil Ahmadov, Elshad Aliyev

Defendant: Rashad Aliyev

Defender: Rasul Jafarov

With the participation of Elton Agayev, a Senior Investigator of the Investigation Department of the Jalilabad District Police Department

Rashad Aliyev was born in 1997 in Jalilabad City of Azerbaijan, is a Shiite believer, previously convicted, and has a permanent place of residence in Jalilabad.

In early 2023, the Azerbaijani Embassy in the Islamic Republic of Iran was attacked. The wave of repression against Shiite believers, which began long ago, got more intense following the attack on the Embassy. In 2023, more than 500 people were arrested, all of whom were prosecuted for the illegal drug distribution on a large scale.

Rashad Aliyev was detained on 31 January 2023 in Jalilabad.

According to the investigation, a cellophane bag with the narcotic drug, methamphetamine, weighing 38.043 grams was found in his possession. Rashad Aliyev was 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 1 February 2023, the Jalilabad District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Rashad Aliyev in the form of detention for a period of 4 months. On 25 May 2023, the Jalilabad District Court extended the term of his arrest for another two months until 31 July 2023. The defence asked to revoke the Court ruling of 25 May 2023 and release Rashad Aliyev.

In the course of the trial it was questioned a Senior Investigator of the Investigation Department of the Jalilabad District Police Department who said that R. Aliyev could hide from the investigation and trial, put illegal pressure on the people involved in the criminal procedures, interfere with the normal course of the investigation, so he asked the Court to leave the ruling of 25 May 2023 unchanged.

On 8 June 2023, a Collegium for Criminal Cases of the Shirvan Court of Appeal issued a ruling: to reject the appeal of R. Aliyev’s defense lawyer and leave the ruling of the Jalilabad District Court of 25 May 2023, unchanged.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

According to the Article 159.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

At the pre-trial stage of criminal proceedings, the period of detention on remand of the accused may be prolonged by a court, depending on the complexity of the case: for those offences which do not pose a major public threat, for no longer than 1 (one) month; for minor offences, for no longer than 2 (two) months; for very offences, for no longer than 3 (three) months, and for very serious offences, for no longer than 4 (four) months.

As said above, the initial imprisonment term of R. Aliyev was 4 months due to the serious offence incriminated by the investigating authorities. Further, the Prosecutor and investigator requested to extend the term of imprisonment for another 2 months.

In the Article 159.1 of the Code of Criminal Procedure of the Azerbaijan Republic it is mentioned a “motivated motion” of the investigator and the prosecutor’s submission. However, the investigating authorities did not provide to the Court any arguments and justifications that would give grounds for the detention term extension. The investigator’s reason voiced out at the trial was not based on any evidence. As in other cases, in the case of R. Aliyev, the investigative body formally indicated, as a reason, the probability of concealment from the investigation and Court as well as exerting unlawful pressure on the criminal procedures parties.

Moreover, there was not a single argument related to the fact that the interests of society exceed the right to freedom of R. Aliyev, and the gravity of the incriminated offence cannot be sufficient for the selection of the strictest preventive measure.

In the Article 159.4 of the Code of Criminal Procedure of the Azerbaijan Republic states,

When deciding whether to prolong the remand period, the court shall have the right to substitute house arrest for detention on remand or to release the accused by granting bail and determining the amount of bail.

The Court did not exercise the legal power and failed to consider the option of changing an arrest to alternative types of preventive measures.

The present criminal case is not complicated from the point of view of participants in the proceedings, in terms of episodes, etc. There are not a large number of defendants and other participants, i.e. all this suggests that there is no need for a large amount of time to investigate the case. For the first 4 months of the investigation, it was carried out almost all investigative activities: interrogations, examinations, etc. In fact, during the next 2 months the defendant was kept in custody only on the basis of formal arguments, general phrases and an unfounded investigator’s petition.

 

The Right to Liberty and Personal Inviolability, apart from the Constitution of Azerbaijan, Article 28, is guaranteed by Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

According to the ECHR  on the matter of the cases concerning the terrorist offences investigation:

“The Court has reiterated on several occasions in the past that the investigation of terrorist offences is undoubtedly caused for the authorities particular difficulties. However, it does not mean that the investigating bodies have carte blanche under the Article 5 to arrest and detain individuals suspected in terrorism for interrogation outside the effective control of the domestic Courts or the Convention authorities. The point is the importance of Article 5 in the Convention system: it refers to a fundamental human right, namely the protection of the individual against the State arbitrary interference on his or her liberty. The judicial control of such interference on the part of the executive power is an important element in the Article 5(3) that is intended to minimise the danger of arbitrariness and ensure respect of the Law, which is one of the ‘basic principles of a democratic society’ referred to in the Preamble of the Convention” (Sakik et al. v. Turkey). – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22sakik%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58117%22]}

Equally important is the ECHR judgment in the case of Van Der Tang v. Spain of 13 July 1995, in which it is written about the reasonableness of the accused detention:

“The reasonableness of the detention of the accused must be assessed in each case in accordance to eace case particularity. (…) Detention can be justified, in a given case, only if certain indications reveal a genuine requirement of public interest overriding, notwithstanding the presumption of innocence, respect for individual liberty”.

https://hudoc.echr.coe.int/#{%22fulltext%22:[%22\%22CASE%20OF%20VAN%20DER%20TANG%20v.%20SPAIN\%22%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57946%22]}

As is evident from the European Court of Human Rights (ECHR) case law, the issuance of arrest orders must be clearly and fully justified, and an investigator’s petition for arrest must contain detailed arguments to prove each of the grounds given by the investigating authority to justify the arrest. The personal freedom of each individual is so essential in democratic societies that even in dealing with such serious and complicated offences as terrorism, the investigating authorities and Courts are obliged to consider a defendant’s liberty prior to sentencing. This ensures not only the legal right to liberty for a defendant, but also his/her presumption of innocence, to which investigative and judicial bodies must be governed at all stages of criminal proceedings.

The unjustified extension of Rashad Aliyev’s detention violated his right to liberty, presumption of innocence and a number of other related rights.

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THE COURT IN AZERBAIJAN HAS ONCE AGAIN VIOLATED THE RIGHT TO FREEDOM OF AN AZERBAIJANI CITIZEN

Jeyhun Balashov

Analysis of violation of law during Jeyhun Balashov’s judicial proceedings

Beylaqan District Court

Case № 4(020)-07/2023

3 February 2023

Presiding judge: Ramiz Nurullayev

Defendant: Jeyhun Balashov

Defender: Farhad Humbatov

With the participation of: Elkhan Azimli, a Senior Deputy Prosecutor at the Beylaqan District Prosecutor’s Office, and Rashad Novruzov, a Senior Police Lieutenant, investigator at the Investigation Division of the Beylaqan District Police Department

Jeyhun Balashov was born in 1977 in Beylaqan district of Azerbaijan; permanent resident in Beylaqan district married, obtained secondary education, a Shiite believer and member of the “Muslim Unity” Movement.

On 27 January 2023, the Embassy of Azerbaijan in the Islamic Republic of Iran was attacked. The wave of repression against Shiite believers, which had begun earlier, became more intense after the attack on the Embassy. In total, there were arrested about 500 believers in the first six months of 2023, and almost all of them were prosecuted for drugs smuggling on a large scale.

Jeyhun Balashov was detained on 2 February 2023, in Beylaqan district. According to the investigation, he had in his position 7 plastic bags and one of them contained the narcotic drug methamphetamine of 0.955 grams, the second — 1.019 grams, the third —1.016 grams, the fourth—1.061 grams, the fifth — 0.959 grams, the sixth — 0.976 gram and the seventh —1.094 grams, in total — 7.08 grams.

Jeyhun Balashov 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.

In the course of the trial it was questioned an investigator of the Beylaqan District Police Department’s Investigation Unit. His testimony was related to the preventive measure against J. Balashov, and it was in accordance to the indictment. He also required the Court to issue a preventive measure in the form of remand in custody for the period of 4 months.

Also, during the trial, a defendant, Jeyhun Balashov, testified that he hadn’t going to hide from the investigative body, had a permanent place of residence, and undertook to come when summoned by the investigative body. He asked the Court to reject the investigator’s motion for arrest.

The Senior prosecutor assistant of Beylaqan district who was interrogated at the trial testified that the accused had committed an act falling into the category of particularly serious ones and he was a person prone to crime,  so there were chances of another crime being committed. In addition, according to the Senior prosecutor assistant, the accused might hide from the investigative body, would fail to appear when summoned and try to avoid punishment evading criminal responsibility. He may also exert unlawful pressure on the others involved in the trial. Thus, the Assistant prosecutor asked the Court to satisfy the submission of the Prosecutor’s Office in order to apply to J. Balashov a measure of restraint in the form of arrest.

On 3 February 2023, the Beylaqan District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Jeyhun Balashov in the form of detention for a period of 4 months.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

According to the Article 154 of the Code of Criminal Procedure of the Azerbaijan Republic, a restrictive measure is a coercive procedural measure intended to prevent unlawful behaviour by the suspect or accused during criminal proceedings and to ensure the execution of the sentence; it shall be applied in the cases described in Article 155.1 of this Code.

There are several types of preventive measures listed in the Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic, the strictest one is detention (arrest).

The Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic stipulates the grounds for applying a preventive measure.  The list of grounds is rather limited and consists of the following provisions:

• hidden from the prosecuting authority;
• 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;
• committed a further act provided for in criminal law or created a public threat;
• failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;
• prevented execution of a court judgment.

Now, let’s examine which of the above-mentioned grounds the Court pointed out in the ruling to justify the imposition of a preventive measure in the form of arrest:

• exerting unlawful pressure on those involved in the criminal proceedings;
• obstructing the normal course of the preliminary investigation and judicial proceedings;
• re-committing an offence under the criminal law;
• pose a danger to the public;
• failure without a valid reason to appear at the summons of the body conducting the criminal proceedings;
• evading from criminal liability and serving punishment;
• the seriousness of the accusation.

As we can see, the Court stated almost all the grounds listed in the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic. However, the ruling does not contain a single fact or argument proving any of the above grounds. Plus, the ruling does not specify whether any ground has been applicable to a particular person, or directly related to the accused.

It is odd that the Court, in its ruling, referred to the decision of the European Court of Human Rights (ECHR), the case of Lukanov v. Bulgaria, in which it was listed three conditions in order to impose an arrest: first, the arrest must be required by the domestic Law, second, the detainee must be brought before a competent court, and third, there must be reasonable suspicion of the commission of an offence.

Despite the reference to the ECHR judgment in this case, the domestic Court did not verify whether such conditions could be met in the present case. Even if the arrest was foreseen by the National Law, in this case it was imposed in violation of the procedural regulations. Furthermore, there was no clarity from the judgment regarding the defendant’s involvement in the drugs possession. It was testified only by the police officers who had detained Mr. Balashov.

The following is what the European Court of Human Rights said about “reasonable suspicion” in its judgment in the case of Fox, Campbell and Hartley v. the United Kingdom of 30 August 1990,

“The ‘reasonableness’ of the suspicion on which detention must be founded is an essential element of the protection afforded by subparagraph (c)(1) of the Article 5, against an arbitrary deprivation of liberty. (…) The existence of a reasonable suspicion presupposes beforehand the existence of facts or information that could convince an objective observer that an individual could have committed the offence. Whatever might be considered as reasonable depends, however, on the set of circumstances”. – https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-57721%22]}

Unfortunately, taking into account the current situation and practice of the police, the investigators’ testimonies who detained the defendant, as well as the results of the drugs chemical examination, all above are rather doubtful to convince an objective observer that J. Balashov had committed that crime.

It is repeatedly stated in the arrest ruling that the accused was a person prone to committing a crime. It is unclear on what facts and arguments the police and Court reached such an assessment. It should also bear in mind that the ruling does not contain any facts about the crime previously committed by J. Balashov.

The Court justifies the application of the strictest preventive measure for a rather long period of time (initially it was for 4 months but later the term of imprisonment was repeatedly extended) by the fact that the defendant was accused of committing a serious crime. In this regard, the ECHR issued a ruling in the case of Scott v. Spain of 18 December 1996, which states,

“The mere existence of a credible suspicion of being involved in serious offences, being a relevant factor, does not justify such a lengthy pre-trial detention”. – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22scott%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58010%22]}

Thus, the lack of particular arguments and justifications on the part of the Court, that could justify the imposition of preventive measure in the form of arrest, the general statements such as the risk of escape, hiding from the court and investigation, exerting illegal pressure on the parties involved in the process, etc., the absence of reasonable suspicion in the commission of a criminal offense on the part of the accused led to a gross violation of his Right to Freedom enshrined in the Article 28 of the Azerbaijani Constitution, Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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HE FLED FROM IRAN TO ESCAPE JAIL THERE BUT ENDED UP IN PRISON IN AZERBAIJAN

Puya Purkhimmati 

Analysis of violation of law during Puya Purkhimmati’s  judicial proceedings

Baku City Sabayil District Court

Case № 4(009)-722/2023

14 October 2023

Presiding judge: Madina Bagirova

Defendant: Puya Purkhimmati

Defender: Nizami Aliyev

With the participation of the Captain of Justice Qeys Mammadov, an investigator from the Investigation Division within the State Border Guard Service of the Azerbaijan Republic, and Ilkin Abdullayev, a Prosecutor from the Department for Supervising the Execution of Laws in Investigation, Inquiry and Operative Investigation Activities in the State Security, Emergency Situations and State Border Service Bodies under the General Prosecutor’s Office of the Azerbaijan Republic

Puya Purkhimmati, ethnic Azerbaijani, a citizen of the Iranian Islamic Republic, was born in the city of Julfa in 1987. He is married and has a university degree.

On 20 September 2022, the rallies against the actions of the Iranian authorities in the city of Tabriz took place. The protestors were dispersed by the police. One of the participants of the action was Puya Purkhimmati. He was arrested for participation in that rally. The Tabriz Revolutionary Court found P. Purkhimmati guilty of  “participation in an assembly for the purpose of committing an offence against the internal and external security of the country”.

According to P. Purkhimmati’s words, while in jail, he was interrogated and ill-treated for six days.

12 days later, P. Purkhimmati was released on bail of 200 million Tuman (the currency of Iran). Soon, the Court issued the ruling against P. Purkhimmati. He was found guilty of the charge and sentenced to 3 years imprisonment. He was also subjected to an additional punishment of a 2-year ban on travelling outside the country. The Tabriz security authorities declared him wanted again right after the custodial sentence.

On 12 October 2023, P. Purkhimmati surrendered to the Border Guard Service of the Azerbaijan Republic in Ardabil province at the Beylasar border, had raised a white flag. He requested a political asylum in Azerbaijan.

However, the Azerbaijani investigative bodies have brought charges against P.Purkhimmati with committing an offence under the Article 318.1 (Crossing of protected frontier of the Azerbaijan Republic without established documents or outside of check point of frontier) of the Criminal Code of the Azerbaijan Republic.

In the course of the trial P.Purkhimmati’s lawyer petitioned the Court to order a preventive measure in the form of house arrest.

On 14 October 2023, the Baku Sabayil District Court adopted an order: to satisfy the investigator’s petition for a preventive measure in the form of arrest against P. Purkhimmati, reject the defence’s one, and apply a preventive measure in the form of arrest for 2 months.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The case of P. Purkhimmati is atypical for Azerbaijan. It is quite seldom that other countries’ citizens apply to Azerbaijan in search of political asylum. There are a number of political as well as economic reasons behind it.

The Azerbaijani mass media have repeatedly covered the problem that P. Purkhimmati had faced in Iran. As an ethnic Azerbaijani, he often spoke out against the illegal actions of the Iranian authorities. Due to his political convictions P. Purkhimmati’s stay in the country had been impossible.

As said above, P. Purkhimmati raised a white flag at the border. He had been attempting to surrender to Azerbaijan in order to receive a political asylum. But despite of the Legal Norms of Domestic and International Legislation, he was arrested and accused of violating the State border.

According to the Article 70 of the Constitution of the Republic of Azerbaijan

1. In accordance with recognized international legal standards the Azerbaijan Republic grants political refuge to foreign citizens and stateless persons.
2. Extradition of persons persecuted for their political beliefs and also for acts which are not regarded as crime in the Azerbaijan Republic is not permitted.

The Article 4 of the “On the status of refugees and internally displaced persons (displaced persons within the country)” of the Law of the Azerbaijan Republic,

A person who wants to receive refugee status is allowed to enter the territory of the Republic of Azerbaijan from the border control points in accordance with the legislation of the Republic of Azerbaijan.

The Article 5 of this Law states,

A person who illegally came to the Republic of Azerbaijan from another state for the reasons specified in the first part of Article 1 of this Law and applied to the relevant competent body as soon as possible is released from the responsibility provided for in the legislation of the Republic of Azerbaijan by the reasoned decision of that body.

If we consider the punishment stipulated by the Article 318.1 of the Criminal Code of the Azerbaijan Republic., under which P. Purkhimmati was charged, we will find that it provides not only for imprisonment for up to 2 years but also an alternative punishment in the form of a fine of 200 to 500 manat. The alleged offence falls into the category of less serious ones.

The Court imposed the harshest preventive measure in the form of arrest against the accused, no ruling’s justification has been provided. In addition, the chosen preventive measure is absolutely illogical in this case. As stated above, P. Purkhimmati had approached Azerbaijan to seek a political asylum. His escape in this case is unrealistic.

The Court, as in many other cases, did not justify the chosen preventive measure.

A Resolution of the Plenum of the Supreme Court of the Azerbaijan Republic from 3 November 2009 is stated that the Courts do not comply with the requirements of the Law in this area. At the same time, it is known that mistakes have been made during the application of the Legislation, in particular, the validity of the submitted petitions is not verified,  the Courts’ rulings do not justify the grounds for selecting the strictest preventive measure in the form of arrest stipulated in the Article 154.2 of the Azerbaijan Republic  Criminal Procedure Code; instead, the Courts use such common expressions as “the probability of hiding from the body conducting the criminal proceedings”, “interference in the normal course of the investigation”, “failure to appear at the call of the body conducting the criminal proceedings”;  either the practice of the European Court of Human Rights (ECHR) and  requirements of the Criminal Procedural Legislation are not taken into account.

In the above Resolution of the Azerbaijan Republic Supreme Court Plenum is underlined that the Courts should first of all consider application of a preventive measure in the form of arrest, as well as justify the impossibility of applying alternative preventive measures not related to arrest (e.g. bail, house arrest, etc.).

In this case, the Court deviated from its legal duties, failed to consider applications of any alternative preventive measures, did not justify the application of the strictest preventive measure, thus putting the legitimacy of the arrest under a good and great question.

It has been stated above that P. Purkhimmati was hiding from the Iranian political persecution, the charge brought against him in this country was purely political and related only to his political convictions.

In respect of P. Purkhimmati, the Court violated the Right to Liberty enshrines in the Article 28 of the Azerbaijani Constitution as well as in the Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

According to the Article 69 of the Constitution of the Republic of Azerbaijan

1. Foreign citizens and stateless persons staying in the Azerbaijan Republic may enjoy all rights and must fulfil all obligations like citizens of the Azerbaijan Republic if not specified by legislation or international agreement in which the Azerbaijan Republic is one of the parties.

The investigative bodies and the Court were obliged to ensure the Right to Liberty for an Iranian citizen who had being persecuted by the Iranian authorities for his political belief and arrived in Azerbaijan.

In proclaiming the Right to Liberty, Article 5(1), the European Convention for the Protection of Human Rights and Fundamental Freedoms refers to personal liberty in its classical sense, i.e. an individual’s physical freedom. In this Article there is a list of cases where deprivation of the Right to Liberty and security of person may be legitimate.

The judgment of the European Court of Human Rights (ECHR) in the case of Aksoy v. Turkey from 18 September 1996 it was said,

“The Court underlines the importance of Article 5 of Convention: it enshrines a fundamental human Right, namely the protection of everyone’s Right to Liberty against an arbitrary interference by any State. The Judicial control over executive interference into individual’s right to liberty is an essential feature of the guarantees embodied in Article 5 para. 3, which are designed to minimise the risk of arbitrariness and to guarantee the rule of law (…)”. – https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-58003%22]}

In turn, in the Judgment of the ECHR in the case of Quinn v. France from 22 March 1995, the European Court points out,

“This norm requires first and foremost the ‘lawfulness’ of the detention, including compliance with the procedure of Law. The Convention points primarily to the duty to comply with National Law but, in addition, requires that any measure of deprivation of liberty must fulfil the purpose of Article 5: to protect the individual against arbitrariness.”

• https://hudoc.echr.coe.int/#{%22fulltext%22:[%22Quinn%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57921%22]}

Taking into account all the above, it is obvious to conclude that the investigative bodies and Court in the case of P. Purkhimmati did not comply with the norms of National and International Legislations, including the Article 70  on granting asylum enshrined in the Constitution of Azerbaijan, Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the UN Convention relating to the Status of Refugees, as well as the precedents of the European Court of Human Rights, which are binding on the member states of the Council of Europe.

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THE MULTIPLE  ADMINISTRATIVE  DETENTIONS ENDED UP IN BRINGING CRIMINAL CHARGES

Afiyaddin Mammadov

Analysis of violation of law during Afiyaddin Mammadov’s judicial proceedings

Baku City Khatai District Court

Case № 4 (011)-604/2023

21 September 2023

Presiding judge: Bakhtiyar Mammadov

Defendant: Afiyaddin Mammadov

Defender: Zubeida Sadiqova

With the participation of Sanan Gudratli, an investigator of the Khatai District Police Department Investigation Unit

Afiyaddin Mammadov, born in 1995, a member of the Board of the “Democracy 1918” Movement, a Chairman of the Working Table at the Trade Unions Confederation, has been detained more than once in the course of various rallies; as well as on administrative charges.

The first time it happened on 12 November 2022, the Baku Khatai District Court convicted Afiyaddin Mammadov on administrative offence under the Article 535.1 (Disorder Conduct) of the Administrative Offences Code of the Azerbaijan Republic, and sentenced him to 30 days of administrative detention. – https://www.ipd-az.org/freedom-of-speech-and-thought-is-also-punishable-in-azerbaijan/

Afiyaddin Mammadov was again detained on 20 February 2023: that day it was hearing on the case of the arrested public activist Bakhtiyar Hajiyev at the Baku Court of Appeal. In front of the administrative Court building there were gathering of the members of opposition parties, organizations, journalists, and public figures. Afiyaddin Mammadov was charged with administrative offence under the Articles 510 (Failure to obey the legitimate demands of a policeman) and 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic. On 21 February 2023, the Baku City Yasamal District Court issued a verdict: to convict Afiyaddin Mammadov for administrative offenses under the Articles 510 and 535.1 of the Administrative Offences Code of the Azerbaijan Republic and sentenced him to 30 days of administrative detention. – https://www.ipd-az.org/every-year-afiaddin-mammadov-is-deprived-of-his-liberty-for-30-days/

On 20 September 2023, the Investigation Department of the Khatai District Police Department opened a criminal case against Afiyaddin Mammadov. He was brought as a suspect for committing an offence under the Article 221.3 of the Criminal Code of the Azerbaijan Republic.

On 21 September 2023, the Article 126.1 (Deliberate causing of serious harm to health) of the Criminal Code of the Azerbaijan Republic was added to the existed one Article 221.3. At the same time A. Mammadov got an accusation. The charges were built on the above-mentioned articles.

According to the investigation, on 20 February 2023, A. Mammadov was walking along a street where there were many people in the Baku City Khatai district. A certain S.G., whom A. Mammadov allegedly started cursing was walking toward him. At that moment a tense situation arose, A. Mammadov manifested his disrespect to the public pulling a pocket knife from his pocket, deliberately stabbed S.G. in the abdomen. According to the Law, a stab wound is a serious crime.

An Investigator and Prosecutor requested in their petition and submission to the Court to impose a preventive measure against A. Mammadov in the form of custody for a period of 4 months.

Afiyaddin Mammadov, interrogeted in the course of the trial, did not plead guilty to the charges and testified that he had not inflicted any injuries on anyone, and he had attributed his arrest to his social and political activities.

The defendant’s lawyer stated that A. Mammadov was a well-mannered and civilized individual, and he had never been carrying a knife. “He is accused of inflicting bodily harm, but in fact he is the victim”. He was injured during the arrest, and he still had his nose swelled which caused him difficulties to breathe. The lawyer also said that his nose had been bleeding for two days in the detention center and he was taken for a medical examination. It was formed a hematoma under his eyes as a result of the beatings during detention.

On 21 September 2023, the Baku City Khatai District Court issued a ruling: to find Afiyaddin Mammadov guilty on the charges and sentence him to 2 months of administrative arrest.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The National Courts rulings on the imposition of preventive measures do not practically differ one from another. As a rule, they contain references to the criminal procedural legislation, general and abstract phrases, unfounded conclusions, lack of arguments on the application of alternative preventive measures other than remand in custody, and, as a consequence, the application of remand in custody in 90 per cent of cases. That case was not an exception since it perfectly fell into the category of “sensitive cases” and the defendant was a social and political activist.

Before taking into account the Articles of the Criminal Procedure Code of the Azerbaijan Republic concerning the imposition of preventive measures, let us consider some objectives of criminal procedure.

Thus, the objectives are: legality, equality of all before the Law and Court, ensuring the Rights and Freedoms any citizen, respect of an individual’s honour and dignity, presumption of innocence and others.

One of the most important Principles is a Principle of the Judges’s Independence who must be autonomous and obey only to the Laws of the Criminal Procedure Code of the Azerbaijan Republic (Article 25.1 of the of the Criminal Procedure Code of the Azerbaijan Republic).

Judges shall not be bound by the conclusions reached the prosecuting authorities during the investigation (Article 25 of the Code of Criminal Procedure of the Azerbaijan Republic).

According to the Article 25 of the Criminal Procedure Code of the Azerbaijan Republic, nobody shall have the right to interfere in administering justice or to ask judges or jurors to give explanations of the criminal cases or other prosecution material before them.

In this connection, it is worth mentioning the principle of power division in Azerbaijan. Thus, according to the Article 7 para III of the Constitution of the Republic of Azerbaijan, state power in the Azerbaijan Republic is based on a principle of division of powers:

• Milli Majlis of the Azerbaijan Republic exercises legislative power;
• executive power belongs to the President of the Azerbaijan Republic;
• law courts of the Azerbaijan Republic exercise judicial power.

In the para IV of this article states, that according to provisions of the present Constitution legislative, executive and judicial power interact and are independent within the limits of their authority.

Interference in the work of the Courts is inadmissible. However, it is totally different in practice. The Courts, in almost all cases, copy the investigators’ motions related to the imposition of a preventive measure. They literally copy the petitions of investigators into their rulings, and also approve the request of the investigative bodies concerning the imposition of the harshest preventive measure e.g., detention.

The Paragraph 3, Decision No. 2 of the Plenum of the Supreme Court of the Azerbaijan Republic from 3 November 2009 “On the practice of the Legislation application by the Courts while considering petitions for the imposition of a preventive measure in the form of arrest on the accused individuals” states that, according to the Law, there must be substantive and procedural legal grounds for the imposition of a preventive measure on an accused. The substantive grounds are to be evidence proving the accused person’s involvement in an incriminating act provided by the Criminal Law. The procedural grounds consist of the totality of grounds proved by the Court, and confirmed the legality and necessity of a preventive measure imposition in the form of arrest, that stipulated in the Article 155 of the Criminal Procedure Code of the Azerbaijan Republic.

There are the following grounds provided in the Article 155 of the Criminal Procedure Code of the Azerbaijan Republic:

• hidden from the prosecuting authority;
• 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;
• committed a further act provided for in criminal law or created a public threat;
• failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;
• prevented execution of a court judgment.

The Court ruling states that one of the grounds for imposing a measure of restraint in the form of arrest is that A. Mammadov, an accused, who has no permanent place of residence in Baku (!), in case of being at large may abscond from the investigation, and at this stage of the investigation there is no truce reached with the injured person, there is also a hostile situation between them that may lead to the commission of a more serious offence by the accused.

It should be noted that the Criminal Procedure Legislation, in particular Articles 154-155 of the Criminal Procedure Code of the Azerbaijan Republic, does not provide a permanent place of residence in Baku prescribed for the accused. There is only mentioned, in general, a permanent place of residence.

The second thing is that the Court did not indicate any specific arguments as to why They assumed the accused’s possibility of hiding from the investigation possible. And the more absurd Court’s argument is that in case of being at large, A. Mammadov may commit a more serious crime.

The Court did not take into account the personality of the accused. A. Mammadov is characterized as a well-bred, intellectual and educated person, has a good reputation in the society, and is always fair-minded. As the Chairman of the Working Table of the Trade Unions Confederation o he was actively engaged in the defence of workers’ rights.

Moreover, the Court did not consider an imposition of alternative preventive measures other than arrest referring to the absence of alternative punishments other than deprivation of liberty in the Articles under which A. Mammadov was charged.

The above-mentioned Decision of the Azerbaijan Republic Supreme Court Plenum from 3 November 2009 is stated that the Courts, applying the Legislation in this area, make a number of mistakes, in particular, they do not comprehensively check the petitions submitted by the investigative authorities, they do not comment on the grounds that make them impose the strictest measure of restraint, an arrest, and employ just the general expressions as grounds, such as concealment from the body conducting the criminal proceedings, obstruction of the normal course of the investigation, failure to appear when summoned by the body conducting the criminal proceedings.

The Azerbaijan Republic Supreme Court Plenum has ordered the Courts not letting a formal approach to the case, moreover, when imposing a preventive measure, they must verify the legitimacy and legality of arrest submissions. It must be taken into account that “reasonable suspicion” should include the existence of sufficient evidences that an individual has really committed such an offence. It is also said in the Decision that the Courts should consider an option of an alternative preventive measure other than arrest when considering implementation of arrest.

In this case, as well as in other “sensitive” cases, the Court did not demonstrate an individual approach, did not consider an alternative preventive measure not related to the arrest, did not justify its ruling on the application of the harshest preventive measure, referred to the arguments not stipulated by the Legislation (lack of a permanent place of residence in Baku), and was not guided in its ruling according to the principle of innocence.

Thus, in respect of Afiyaddin Mammadov it was at least a violation of the Right to Liberty guaranteed by the Article 28 of the Constitution of Azerbaijan and Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Right to Liberty is one of the fundamental Rights in a democratic society. Despite the existence of multiple judgments of the European Court of Human Rights (ECHR) in relation to the states-participants of the Council of Europe, and, in particular, in respect of Azerbaijan, the Court issued an unjustified and illegitimate ruling in favour of the investigating authorities.

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ONCE AGAIN AN AZERBAIJANI CITIZEN IS IMPRISONED FOR HAVING CRITICISED THE AUTHORITIES

Nurlan Qahramanli

Analysis of violation of law during Nurlan Qahramanli’s judicial proceedings

Baku City Yasamal District Court

Case № 3(004)-4978/2023

21 September 2023

Presiding judge: Huseyn Safarov

The person against whom an administrative record was issued: Nurlan Qahramanli

Defendant: Nurlan Qahramanli

Defender: Elchin Sadiqov

Nurlan Qahramanli (nicknamed Libre), a well-known blogger, reporter and journalist in Azerbaijan, has been repeatedly detained and subjected to administrative arrest. While in custody, he has been repeatedly beaten and mistreated in the police stations.

In 2020, when the armed clashes between Azerbaijanis and Armenians resumed in Nagorno-Karabakh, some residents of the country supported the military action, while the others condemned it. The blogger was among the latter. N. Qahramanli also demonstrated his anti-war position in the course of the uprisings in Nagorno-Karabakh in September 2023.

On 21 September 2023, Nurlan Qahramanli wrote a post in an ironic form on his Facebook page expressing his negative attitude towards the military actions in Nagorno-Karabakh. That post was the reason for administrative charges against him.

The General Prosecutor’s Office of Azerbaijan launched an administrative case against the blogger. The Prosecutor’s Office stated that N. Qahramanli had misinterpreted the anti-terrorist operation in Nagorno-Karabakh and doubted the territorial integrity of the country. Thus, the journalist committed an offence under the Article 388-1.1.1 “Publication of the prohibited information on the Internet resource or telecommunication network, as well as failure to prevent the placement of such an information” of the Administrative Offences Code of the Azerbaijan Republic.

N. Qahramanli, interrogated in the course of the trial, testified that he had found out about anti-terrorist activities on the territory of the Azerbaijan Republic from publications in the press on 19 September 2023. He had also been aware that the Azerbaijani Ministries of Internal Affairs and Defence had banned certain publications regarding the anti-terrorist activities. N. Qahramanli claimed that he had not questioned the country’s territorial integrity and constitutional order. He does not regret what he has done and believes that his actions do not violate any law.

His post published on Facebook is of an ironic nature but it is not aimed at any particular category of citizens. The journalist supports the peaceful conflict resolution and always stands against the war. N. Qahramanli also stated that his Facebook post had not caused any concern to any citizen and there had been no complaint regarding it. He was summoned and questioned about the mentioned post by the State Security Service of Azerbaijan, where he was told that what he had done was not a criminal but he was warned not to make any more similar publications.

Bakhtiyar Mirzoyev, an acting prosecutor of the Department of Affairs beyond Criminal Prosecution of the Azerbaijani General Prosecutor’s Office who was questioned during the trial, testified that Nurlan Qahramanli had committed a deed that infringed the Article 20.1. of the Law of the Azerbaijan Republic “On National Security”. The prosecutor requested the Court to impose punishment on N. Qahramanli in connection with committing an administrative offence under the Article 388-1.1.1 of the Administrative Offences Code of the Azerbaijan Republic.

The Court did not find circumstances excluding the administrative liability in the case.

On 21 September 2023, the Baku City Yasamal District Court issued a ruling: to find Qiyas Ibrahimov guilty on the charges and sentence him to 30 days of administrative arrest.

Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
According to the charge, Nurlan Qahramanli enabled the information distribution prohibited by the Law of the Azerbaijan Republic “On Information, Computerisation and Protection of Information”, in particularly mentioned in the Article 13-2.3.1. of the Law. This Article prohibits the distribution of information that is forbidden by the Law. In the particular case, the journalist posted on his Facebook nothing else but an ironic attitude to the ongoing actions, which was evident from the comments and responses to those comments under the above-mentioned post. It was an expression of his thoughts, and convictions in an ironical manner.

The charges against N. Qahramanli are at least somewhat frivolous, as the judgement itself does not refer to any information prohibited by the Law, and even if it did, it does not specify what category the information fits into and what threat it poses to the country. In addition, there is no expert opinion about the post publication in the judgement. The post did not contain any information, it was the author’s personal view, his ideas and convictions.

It should be noted that it is not unusual for such charges to be brought against non-governmental and political activists and journalists in the course of such events. For example, in June 2023, during a rally in the village of the Azerbaijani Gadabay district, a civil activist and former political prisoner, Qiyas Ibrahimov, was arrested for 32 days on the same charge. He was accused of spreading the information prohibited by the Law, although in his case it was the spread of his opinion, which was not favoured by the authorities. Moreover, the authorities blocked or restricted the access to many information sources.

The accusation regarding the distribution of prohibited information and the long-term detention of N. Qahramanli are of an illegitimate nature and are intended to frighten those who try to express their opinion in public. It is a clear violation of the Right to Freedom of Expression.

The Right to Freedom of Expression is enshrined in both National and International laws. According to the Article 47 of the Constitution of the Azerbaijan Republic,
1. Everyone may enjoy freedom of thought and speech.
2. Nobody should be forced to promulgate his/her thoughts and convictions or to renounce his/her thoughts and convictions.
Freedom of opinion and expression is also guaranteed by the Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 18 of the International Covenant on Civil and Political Rights and Article 18 of the Universal Declaration of Human Rights.

This Right is one of the pillars established in a democratic society.

The European Convention contains a list of restrictions, Article 10(2). This list is sufficiently definite. Thus, in the paragraph 2, it is stipulated that Freedom of Expression may be restricted in cases if it is:

• The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Н. Qahramanli did not spread any information by virtue of his activity. Besides, it did not cause any threat to the territorial integrity of Azerbaijan. He testified at the trial that he had not put the integrity of the country under doubt and had no such an intention and, accordingly, no statements that would prove it.

In this case, there was the State interference in in the case of N. Qahramanli, his freedom of expression; this interference was not legitimate as it was undertaken with other objectives and beyond the Law.

The judgment of the European Court of Human Rights (ECHR) in the case of the Sunday Times v. the United Kingdom dated 26 November 1991 said,

“Freedom of expression, as enshrined in the Convention, Article 10, is subject to a number of exceptions which, however, must be understood in a narrow sense and the necessity for any limitation of which must be established with certainty” – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22Sunday%20Times%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57708%22]}

The judgment of the ECHR in the case of Bladet Tromso and Stensaas v. France from 20 May 1999, says,

“Although the press must not exceed certain limits, in particular when it comes to the reputation and rights of others and necessity to prevent the disclosure of confidential information, it must nevertheless fulfil its functions and must be responsible in imparting the information and ideas on any matter of public interest. Moreover, the Court is convinced that freedom of journalism also implies the engagement of expressions which are to some extent exaggerated and even provocative”. – https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-58369%22]}

This judgement also applies to the case of N. Qahramanli. The blogger -journalist expressed his opinion on the current events of public interest in his usual ironic manner, not violating the law through spreading any prohibited information.

In the ECHR judgment in the case of Fressoz and Roire v. France dated 21 January 1999, the European Court of Justice (ECtHR) regulated the authorities’ interference in the right to freedom of expression, noting as follows,

“The necessity of any interference with the exercise of freedom of expression must be established in a convincing manner. Certainly, the domestic authorities must first of all appraise whether there is an ‘urgent public need’ that can justify that interference in the exercise of which they have a certain margin of appreciation. When it concerns the press, as in the present case, the States’ margin of appreciation collides with the interest of a democratic society in securing and maintaining press freedom. Also, a particular weight must be attached to that interest when it comes to determining, as required by Article 10(2), whether the interference was in conformity with the legitimate objective pursued”. – https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-58906%22]}

The consequence of the violation of the journalist’s Right to Freedom of Expression was a violation of his Right to Liberty. He was subjected to administrative arrest for a period of 30 days, whereas the Right to Liberty is guaranteed by the Article 28 of the Azerbaijani Constitution, which stipulates that everyone has the Right to Liberty that may be restricted solely and only in the manner stipulated by the Law by means of detention, imprisonment or deprivation of liberty. Besides the provisions of the National Law, the Right to Liberty is enshrined in the European Convention, Article 5 (1), International Covenant on Civil and Political Rights, Article 9, of the Universal Declaration of Human Rights, as well as in the numerous precedents of the European Court of Human Rights, issued against either Azerbaijan or other member states of the Council of Europe.

Thus, a violation of two most fundamental rights of the democratic society, namely the Right to Freedom of Expression (Article 10 of the European Convention) and the Right to Liberty and Security of the Individual (Article 5 of the European Convention) in respect of N. Qahramanli must be recognized.

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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. – https://www.azadliq.org/a/elvin-mustafayev-kuryer-etiraz/32537392.html

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.” – – https://hudoc.echr.coe.int/#{%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”. –

https://hudoc.echr.coe.int/#{%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.

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THE CRITICS OF THE AUTHORITIES IN AZERBAIJAN  ARE DRUG ADDICTS OR HOOLIGANS

Bakhtiyar Babashov

Analysis of violation of law during Bakhtiyar Babasov’s judicial proceedings

Criminal Collegium of the Baku Court of Appeal

Case № 4(103)-238/2023

16 March 2023

Presiding judge: Ramin Qaraqurbanli

Judges: Mirzali Abbasov, Anar Ibrahimov

Defender: Zubeyda Sadiqova

Defendant: Bakhtiyar Babasov

With the participation of Elshan Hasanov, an investigator from the Narimanov District Police Investigation Department, and Elvin Mammadli, a representative from the Narimanov District Prosecutor’s Office

On 9 March 2023, a member of the Muslim Unity Movement, Bakhtiyar Babashov, was detained as a suspect by the Baku Narimanov district policemen. According to the official version, in the course of personal search it was found 1 cellophane bag containing 40.704 grams of heroin in his possession.

Initially, on 10 March 2023, the Narimanov District Police Department initiated a criminal case against Bakhtiyar Babashov under the Article 234.1 (Illegal purchase, storage, manufacturing, processing, transportation without a purpose of selling of narcotics or psychotropic substances in a quantity (amount) exceeding necessary for personal consumption) of the Criminal Code of the Azerbaijan Republic.

However, on very same day, the criminal case against Bakhtiyar Babashov was reclassified to the Article 234.1-1 (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.

On 11 March 2023, Bakhtiyar Babashov was found guilty under the Article 234.1.-1 of the Criminal Code of the Azerbaijan Republic by the Baku Narimanov District Court. In accordance with the Court ruling of 11 March 2023, against B.Babashov it was chosen a preventive measure in the form of detention for the period of 4 months.

Bakhtiyar Babashov’s defence, disagreeing with the Court ruling on the chosen measure of restraint, appealed to the Baku Court of Appeal. He admitted the incriminated deed due to threats to his family and under the pressure exerted by the officers of the Baku Narimanov District Police Department. The defence also demonstrated that Bakhtiyar Babashov signed the blank sheets of paper with no lawyer in attendance; he was not provided legal assistance, and at the time of detention B.Babashov was not given the opportunity to notify his family and relatives about his arrest. In addition, the video recording of the search was carried out about 4-5 hours later. The lawyer also pointed out that B.Babashov is being charged for the first time and he has a permanent place of residence. He has never used drugs and is a deeply religious person. The defence also stated that there were no grounds listed in the Article 155 of the Azerbaijan Republic Criminal Procedure Code to impose a preventive measure in the form of arrest.

The defendant, Bakhtiyar Babashov, asked the Court to satisfy the appeal filed by his lawyer, whilst the representative of the Prosecutor’s Office and an investigator insisted to leave the appeal without satisfaction.

On 16 March 2023, the Criminal Collegium of the Baku Court of Appeal issued a ruling: to dismiss the appeal and leave the ruling of the Baku Narimanov District Court of 11 March 2023 on choosing a preventive measure unchanged.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

 

There are gross procedural violations in the case of Bakhtiyar Babashov. As mentioned above, the defence pointed out in its appeal that B.Babashov had signed the blank sheets, he had not been provided with the right to defence and the right to immediately inform his family of his detention. These are typical violations committed by the bodies conducting criminal proceedings. In respect of Bakhtiyar Babashov, it were violated his fundamental rights.

The Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic stipulates the grounds for applying a preventive measure.  The list of grounds is rather limited and consists of the following provisions:

• hidden from the prosecuting authority;
• 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;
• committed a further act provided for in criminal law or created a public threat;
• failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;
• prevented execution of a court judgment.

The limited list of grounds means that Courts, issuing rulings on the imposition of a preventive measure must refer only to those grounds specified in the Article 155 of the AR CCP. Moreover, these grounds must be substantiated and the Court rulings must contain individualized arguments.

The Decision of the Plenum of the Azerbaijani Republic Constitutional Court “On Interpretation of the Article 157.3. of the Criminal Procedure Code of Azerbaijan” from 9 July 2010 states that the Article 155.3 provides two grounds for application of a preventive measure in the form of arrest or an alternative preventive measure. The first ground is

“the act imputed to the accused person must stipulate a punishment of deprivation of liberty for a term exceeding 2 years (Article 155.3.1. of the AR CCP)”. The second ground is “to prevent the unlawful behaviour of a person accused of committing an offence punishable by deprivation of liberty up to 2 years”.

According to this Decision, an unlawful act means committing the acts specified in the Article 155.1.1.1 – 155.1.3 of the Code of Criminal Procedure of the Azerbaijan Republic, namely:

• concealment from the body conducting the criminal proceedings;
• interference in the normal course of the case during the preliminary and judicial investigation by exerting unlawful pressure on the persons involved in the proceedings, concealment or falsification of materials meaningful for the criminal prosecution;
• repeated commission of an act stipulated by the criminal law or creation of a threat to the public.

In accordance with this Decision, the application of a preventive measure in the form of arrest or an alternative preventive measure, except the cases specified in the legislation, is inadmissible.

Thus, as stated above, the Constitutional Court of Azerbaijan has noted that when applying a preventive measure, the presumed punishment of deprivation of liberty for a term exceeding 2 years is essential. Although the National Criminal Procedure Law provides for this provision, the case law of the European Court of Human Rights (ECHR) fully refutes it.

Thus, the ECHR judgment in the case of Wemhoff v. Germany of 27 June 1968 it was written:

“Whilst a grounded suspicion that an accused has committed an offence might justify an initial period of detention, in order to hold an accused in detention beyond this initial stage, it is necessary for the State to comply with two cumulative criteria. Although, the risk that the accused might abscond from the jurisdiction of the court can not be determined solely by reference to the gravity of the charged offences or the possible severity of sentence faced by the accused; the court must examine all relevant factors, for example, if it is possible to obtain guarantees in the form of a bail bond, or whether the accused has social or financial connections in the State in question which render it unlikely that he would wish to flee from the jurisdiction of the court.”.

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Any ground set in the investigator’s application for arrest must be substantiated and contain specific arguments in favour of each of them. The Court judgement refers to several grounds, but does not provide a single argument justifying the imposition of a preventive measure in the form of arrest. The grounds are quite serious, each of them the European Court interprets in detail in its judgments.

Thus, the judgment of the European Court of Justice in the case of Letellier v. France of 26 June 1991 states:

“Inadequacy of court supervision: where only remaining reason for continued detention is danger of accused’s absconding, he must be released if he is in a position to provide adequate guarantees that he will appear for trial, for example by lodging a security – indictments divisions did not establish that this had not been the position in case under review.

Preservation of public order: by reason of their particular gravity and public reaction to them, certain offences may give rise to a social disturbance capable of justifying pre-trial detention, at least for a time – factor which might therefore, in exceptional circumstances, be taken into account for the purposes of the Convention, in any event in so far as domestic law recognises the notion of disturbance to public order caused by an offence – however, this ground can be regarded as relevant and sufficient provided only that it is based upon facts capable of showing that detainee’s release would actually disturb public order – in addition detention continues to be legitimate only if public order remains actually threatened – indictments divisions assessed need to continue the deprivation of liberty from purely abstract point of view, taking into consideration only gravity of offence.”.

The Paragraph 46 of the above judgement is said “When the only remaining reason for continued detention is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, he must be released if he is in a position to provide adequate guarantees to ensure that he will so appear, for example by lodging a security”

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One of the grounds indicated in the court judgement is interference in the normal course of the investigation but, as in the previous cases, there is no specific argument. The judgment of the European Court in the case of Kluth v. Belgium states that

“The Court is at ease with the fact that the authorities must keep a suspect in jail, at least at the beginning of an investigation, in order to prevent him from obstructing the enquiry, particularly when it is (…) a complex case requiring complex and extensive investigations. However, the mandatory requirements of the investigation are not enough – even in a case such as this one – to justify such detention: normally, the danger decreases over time, as the investigation is completed, the evidence is recorded and the verifications are made.”

 

The Paragraph 40 of the mentioned Judgment also says,

 

“According to the Court, the gravity of the charge may lead the judiciary to remand the suspect in pretrial detention in order to prevent him or her from attempting to commit further offences. It is also necessary, among other preconditions, that the circumstances of the case, and in particular the previous activities and personality of the offender concerned, make the risk reasonable and the measure adequate”.

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It should be recalled that the criminal offence imputed to B.Babashov consists of only one episode, it appears to involve a small number of people, and it does not require any additional investigation or arrangements of additional, complicated  and comprehensive expertise.

As for the reason of the risk of committing a new offence, in this case the court did not provide any specific arguments either, which would prove this fear. This is what the European Court’s judgements have to say in this respect,

“As regards the fear of reoffending, references to the previous activity are not always sufficient to justify a refusal of release”(Mutter с. France, 44).

We have considered all the grounds stated by the Court in its judgement. None of them is supported by any evidence, reasoning or argument justifying the imposition of the strictest preventive measure such an arrest. The long-term isolation of the accused from the society is not justified either by the National and International Legal Norms, or by the case-law of the European Court of Human Rights, that as a recommendatory character for the member states of the Council of Europe.

Thus, it is obvious that the arrest of Bakhtiyar Babashov is illegitimate, intended to penalise him for his active political and public activities.

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