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The court verdict against Elvin Isayev is unlawful and unreasonable

THE COURT VERDICT AGAINST ELVIN ISAYEV IS UNLAWFUL AND UNREASONABLE

Elvin Isayev

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

Baku Court on Serious Crimes

Case №1(101)-1015/2020

30 October 2020

Presiding judge: Afgan Hajiyev

Judges: Ali Mammadov, Telman Huseynov

Defendant:  Elvin Isayev

Defender: Ganga Ibrahimov

Public Prosecutors: Vugar Quliyev, Huseyn Rustamli

 

In 2001, Elvin Isayev, an Azerbaijani blogger, received Russian citizenship, and in 2014 he was issued a new Russian passport, in view of the loss of the old one. Elvin Isayev lived with his wife and two minor sons in St. Petersburg, and all of his family members are also Russian citizens. In 2014, he started a blog on YouTube, in which he sharply criticized the government of Azerbaijan, spoke extremely disrespectfully about the president of the country and his family members. In a matter of five years, the blogger has collected 17 thousand subscribers.

In June 2018, he recorded an “Appeal to the Azerbaijanis living in Russia”, in which he urged his fellow citizens “not to be afraid of the government” and “save the country”. A week later, the blogger registered a video, in which he told about the threats he had received. According to him, a certain person demanded him “to stop criticizing the family members of the president, the president himself, as well as the government of Azerbaijan”, threatening him with death.

On 24 August 2019 Elvin Isayev was detained while driving from Petro-Slavyanka settlement to St. Petersburg.

Right on 26 August, the Dzerzhinsky District Court of St. Petersburg found Elvin Isayev guilty of violation of the regime of foreign citizens or persons without citizenship who entered into the territory of the Russian Federation (according to the Code of administrative violations of the Russian Federation) and issued a resolution on deporting him to Azerbaijan with penalty of 5 thousand rubles. For that he was sent to the Temporary Detention Center for Foreign Citizens (TDCFC).

However, E. Isayev’s lawyers urgently filed a petition to the European Court of Human Rights (ECHR) to apply the “Rule 39” to Elvin Isayev. Usually, the ECHR considers the received appeals for quite a long time, but in case of emergency when there is a threat to the life and health of a person, the ECHR may request the national court to take “interim measures” to guarantee the security to the applicant. This requirement is mandatory according to the practical guidelines on the application of interim measures (called “Rule 39”) of the ECHR regulations. And, at the next session of the Dzerzhinsky District Court of St. Petersburg, a notice from the ECHR came with a demand to suspend the deportation.

On 10 September 2019, the Dzerzhinsky District Court of St. Petersburg overturned its ruling. After that, Elvin Isayev was released. Since then, nothing was known about E. Isayev’s whereabouts. E. Isayev’s relatives remained wary of his extradition or abduction and his deportation to Azerbaijan.

Back on 22 August 2019, the Baku Nasimi District Court adopted a ruling on the application of preventive measures in the form of arrest against Elvin Isayev.

On 14 December 2019, Elvin Isayev was detained in Ukraine “for violation of the immigration law” and deported to Azerbaijan, where he was imprisoned in Baku Investigative Isolator № 1.

The Department of Serious Crimes of the General Prosecutor’s Office of the Azerbaijan Republic initiated a criminal case against Elvin Isayev. He was accused of committing crimes stipulated by the Articles 12.1, 34.2, 220.2 (Appeals to active disobedience to the legitimate demands of the authorities and to mass disorders, as well as appeals to violence against citizens committed by a group of persons upon prior conspiracy of the Azerbaijani citizens who committed a deed (act or inaction) outside the boundaries of the Azerbaijani Republic) and the Articles 12.1, 34.2, 281. 2 (Public appeals to violent seizure of power, violent retention of power or violent alteration of the constitutional order or violation of territorial integrity of the Azerbaijan Republic, as well as dissemination of such content materials committed repeatedly by the citizens of the Azerbaijan Republic who committed an act (act or inaction) outside the Azerbaijan Republic of the Criminal Code of the Azerbaijan Republic).

According to the investigation version, in 2018 Elvin Isayev joined a criminal conspiracy group of political emigrants from Azerbaijan, through social networks and on his YouTube channel distributed videos, in which he opposed the state and made appeals for violent downfall of the power.

In the course of the preliminary investigation, E. Isayev admitted his guilt. However during the trial he denied his guilt and testified that he had admitted under the pressure. Isayev also stated that he had been subjected to physical and psychological pressure. At the trial, E. Isayev said that he, as a free man and opposition minded citizen, had the right to express his opinion, did not approve of the authorities’ policies such as injustice, and he could not keep silence about it. Elvin Isayev admitted that he had participated in a rally in Berlin, but pointed out that it was not a crime. He also said that during the 9 months in the pre-trial detention center he had not been allowed to see his lawyer, he had been deprived of the opportunity to see his elderly, sick father.

The only witness in the case, Elchin Sadigov, testified during the trial that he had established a relationship with the defendant in the 2017. At that time, E. Isayev was engaged in charitable activities and helped the village where he was originally from. Since 2018, E. Isayev has begun displaying videos on the social networks, in which he had been openly speaking out against the President Aliyev and his policy in Azerbaijan. At the rally in Berlin, Isayev spoke out against the authorities and urged others to do the same. After that Elchin Sadigov talked to Isayev’s uncle, Yalchin Isayev. He called Elvin from Yalchin Isaev’s WhatsApp number and told him that he was not on the right track

The forensic-linguistic examination on 08 November 2019, revealed that there had been phrases threatening the public security in Azerbaijan, that urged to forcibly change the constitutional order of Azerbaijan, mass disorders and forcible seizure of power in E. Isayev’s statements. They also contained anti-Azerbaijani standpoint and separatist rudiments.

The forensic psychiatric examination on 14 January 2020, proved that during the criminal act E. Isayev had not suffered from any mental illness or mental disorder.

The forensic narcological examination on 22 January 2020, indicated that E. Isayev neither had had drug addiction nor needed forced treatment.

On 30 October 2020, the Baku Court on Serious Crimes issued a sentence to Elvin Isayev according to which he had been found guilty of committing crimes stipulated by the Articles 12.1, 220.1. and 12.1, 281.2. of the Criminal Code of the Azerbaijan Republic and sentenced him to 8 years of imprisonment in a general regime colony.

Commentary by an expert lawyer:

The court verdict is illegal and unjustified. According to the Article 12.1 of the Criminal Procedure Code of the Azerbaijan Republic, the judicial authorities shall observe the human and civil rights and liberties afforded by the Constitution to all participants in criminal proceedings. This procedure also applies to the arrested persons. Thus, if a person is detained according to a court order, he should not be deprived of procedural rights.

According to E. Isayev, he was denied access to his chosen lawyer for 9 months. According to the Article 61 (I) of the Constitution of the Azerbaijan Republic, everyone has the right for obtaining qualified legal advice. Lack of an attorney, especially during the preliminary investigation, puts any participants of criminal proceedings in an unequal position. Any detainee has the right to consult with his lawyer. Despite E. Isayev’s statement during the trial that he had been refused a meeting with his lawyer, the court either did not take any steps to establish the truth on this issue or did not make any special determination with regard to those who had violated the procedural rights of the accused.

Under Article 6, paragraph 3 and subparagraph “c” of the European Convention on Human Rights, everyone charged with a criminal offence has the following minimum rights:

 

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.

The right to protection is also enshrined in the Article 14, paragraph 3 and subparagraph “d” of the International Covenant on Civil and Political Rights.

During the trial, the defendant claimed that he had been subjected to physical and psychological torture while undergoing the preliminary investigation. Despite such an important statement, the court did not take the initiative in investigating such a statement. Tortures and inhuman treatments are prohibited under both National and International laws. Thus, according to the Article 46 (III) of the Constitution of the Azerbaijan Republic, nobody must be subject to tortures and torment, treatment or punishment humiliating the dignity of human beings.

The Article 13 of the Criminal Procedure Code of the Azerbaijan Republic states:

13.1. It shall be prohibited to take decisions or allow acts during the criminal prosecution which debase the honour and dignity of the person or may threaten the life

and health of the participants in the proceedings.

13.2. During a criminal prosecution nobody shall:

13.2.1. be subjected to treatment or punishment that debases human dignity;

13.2.2. be held in conditions that debase human dignity;

13.2.3. be forced to participate in carrying out procedures that debase human dignity.

The prohibition of torture and inhuman treatment is enshrined in the Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms that Azerbaijan also signed in 2002. In this article states: no one shall be subjected to torture or to inhuman or degrading treatment or punishment. The same principle is set forth in the Article 7 of the International Covenant on Civil and Political Rights and in the Article 5 of the Universal Declaration of Human Rights.

In addition, there are numerous judgments of the European Court of Human Rights (ECHR), which are binding on the Council of Europe member states, including the Azerbaijan Republic.

Thus, in the judgment of the European Court of Justice in the case of Tomasi v. France from 27 August 1992, it is written: “The Convention categorically prohibits torture and inhuman or degrading treatment or punishment, regardless of the victim’s (accused) behavior. Unlike most of the Convention’s Articles and Protocols No. 1 and 4, the Article 3 does not provide for any exemptions and, according to the Article 15, paragraph 2, there can be no derogations from the Article 3, even in a state of emergency that threatens the existence of the nation”.

http://www.echr.ru/documents/doc/2461435/2461435.htm

https://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001-57796

 

“Even in the most difficult circumstances, such as the fight against terrorism and organized crime, the Convention categorically prohibits torture or inhuman or degrading treatment or punishment” (decision in the case of Assenov and others v. Bulgaria, on 28 October, 1998).

https://cambodia.ohchr.org/sites/default/files/echrsource/Assenov%20&%20Others%20v.%20Bulgaria%20%5b28%20Oct%201998%5d%20%5bEN%5d.pdf

http://www.rrpoi.narod.ru/echr/translation/end_ru/assenov_end.htm

 

Let’s proceed to the analysis of the evidence-based data collected by the investigating authority. As mentioned above, the main evidence in the case were the testimony of witness Elchin Sadigov and the forensic-linguistic examination report dated 08 November 2019. It is known that the experts conducting the examination pointed out that E. Isayev’s statements had contained the phrases threatening the public security of Azerbaijan, appealing for violent change of Azerbaijan’s constitutional order, mass disorders and violent seizure of power, they also had contained anti-Azerbaijani position and separatist rudiments. All of the above is a legal characteristic, not an expert one in any way. Therefore, it follows that the experts have actually exceeded their authority, noting the legal qualification of the imputed crime. The court sentence does not indicate any specific phrases or statements, which the experts referred to this or that category (forcible seizure of power or forcible change of the constitutional regime in Azerbaijan). According to the Article 97.3 of the Criminal Procedure Code of the Azerbaijan Republic, a person may not be appointed as an expert or be called in another capacity on judicial aspects of the criminal proceedings.

The court took the expert opinion as a basis of the conviction. But according to the Article 127.3 of the Criminal Procedure Code of the Azerbaijan Republic, the expert’s opinion shall not be binding on the preliminary investigator, investigator, prosecutor or court; it shall be checked by the prosecuting authority in the same way as any other evidence and evaluated in the light of all the relevant facts. If the opinion is not approved, a reasoned decision to that effect shall be given. Despite the existence of this norm, the court did not doubt in such a questionable opinion and did not call the expert for questioning in court.

Violation of procedural norms casts doubt on the charges. Thus, the right to freedom guaranteed by the Article 28 of the Constitution of the Azerbaijan Republic, the Article 14 of the Criminal Procedural Code of the Azerbaijan Republic, the Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 9 of the International Covenant on Civil and Political Rights, and the Article 9 of the Universal Declaration of Human Rights are violated.

The court sentence against Elvin Isayev was not only illegal and groundless, but also unmotivated. Although the Article 349.3. of the Criminal Procedural Code of the Azerbaijan Republic states that the court sentence must be lawful and motivated.

Thus, violations of norms of both procedural and substantive legislation, as well as of the International treaties in the criminal case resulted in the conviction and illegal detention of a person whose guilt was not proved by the investigating body in the court, and the doubts that arose during the trial were not interpreted in favor of the accused.

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Unlawful and unreasonable verdict against a human rights defender

UNLAWFUL AND UNREASONABLE VERDICT AGAINST A HUMAN RIGHTS DEFENDER

Elchin Mammad

Analysis of violation of law during Elchin Mammad’s judicial proceedings

Sumgayit City Court

Case №1(060)-317/2020

14 October 2020

Judge: Parviz Hajiyev

Defendant: Elchin Mammad

Defender: Fariz Namazly

Public Prosecutor: Tural Nabiyev 

Victim: Aysel Mustafayeva

On 30 March 2020, Elchin Mammad, the Head of the NGO “Sumgayit Youth Legal Education Society” and the editor-in-chief of www.yukselis.info was detained on suspicion of stealing someone’ property in Sumgayit. In the NGO office it was carried out a search, which resulted in Sumgayit resident, also it was found an ammunition. As it was known, A. Mustafayeva made a statement to the police that blamed Elchin Mammad of stealing from her bag the gold jewelry. E. Mammad told the Turan News Agency that Aysel Mustafayeva had asked him for legal assistance, and then she filed a complaint with the police blaming him in stealing her jewelry. Elchin Mammad called it absurdity. He also said that the woman had perjured herself in the criminal case of Anar Mammadov, the editor of www.criminal.az. E. Mammad linked the prosecution against him to a report on the human rights situation in Azerbaijan, which was published on the website on 24 March 2020, where he was taking a managerial position as the editor-in-chief.

See: https://yukselis.info/2020/03/hesabat-muxalif-liderlərə-isgəncələr-və-tənqidi-fikirlərə-qarsi-kibercinayətkarliq/

It’s worth to remind that Elchin Mammad was also a candidate from the 42nd electoral district of Sumgayit to the Parliament in the elections on 09 February 2020. In 2014, Elchin Mammad was summoned to the Serious Crimes Department of the Azerbaijan Republic General Prosecutor’s Office where he testified as a witness in connection with the criminal case against a number of the independent NGO. In 2015, he was detained and then released.

On 31 March 2020, Elchin Mammad was charged with the crime under the Articles 177.2.4 (Theft with considerable damage) and 228.1. (Illegal storage of weapons) of the Criminal Code of the Azerbaijan Republic.  Elchin Mammad was sentenced to 3 months of imprisonment by the judgement of Sumgayit city court issued on 31 March 2020.

See: https://www.ipd-az.org/after-criticism/

 

The Amnesty International human rights organization released a statement with regard to Elchin Mammad’s arrest stating, “The new criminal case is again based on false accusations, and this is another act of revenge for his critical reports in the field of human rights.”

See: https://www.amnesty.org/en/documents/eur55/2069/2020/en/

At the end of the preliminary investigation, the criminal case was referred to the Sumgayit City Court. During the trial, his lawyer asked the court to change the preventive measure in the form of arrest, since his client, E. Mammad was not able to influence the persons involved in the process, escape from justice, or participate in falsification of investigative documents. The court denied the lawyer’s request. Elchin Mammad did not plead guilty to the charges.  Aysel Mustafayeva, who filed a complaint with the police accusing Elchin Mammad of stealing her jewelry, during the trial filed a statement that she had no claims and complaints against E. Mammad. In the course of trial Elchin Mammad testified that he had not been interested in the course of process since the only thing he had been looking for was the justice for him.

On 26 August 2020, the trial of the human rights activist continued. During the trial, Aysel Mustafayeva was questioned as a victim. E. Mammad’s lawyer asked A. Mustafayeva where, when and from whom she bought the gold jewelry. The victim’s answers were contradictory: first she said that she had bought them in the department store “Moscow” 2 years ago, and then she said that she had received them as a gift. A. Mustafayeva also testified that on 14 March 2020, she came to E. Mammad’s office for a legal consultation bringing the jewelry that she had left there.

On 15 March 2020, she realized the missing jewelry missing and thought that it might have been stolen in Mammad’s office. But she did not say anything about it to Elchin Mammad. The victim found out about the loss of jewelry on 15 March, but filed a report to the police only on 24 March. A. Mustafayeva explained that contradiction by the fact that she had repeatedly called Elchin Mammad asking about the missing jewelry. Whereas Elchin Mammad stated that she had called him only once, on 17 March, and then she had written a message full of insults.

The next court hearing, scheduled on 02 September 2020, was postponed to 07 September for unknown reasons. On 07 September the trial was not held either and was again postponed. It should be noted that the court did not provide the reasons foray of those delays. It was known that during the postponed court hearings the following people should have been interrogated: the chief of the 1st Police Department of Sumgayit City police Azer Ahmadov, who was conducting a search in the office of NGO, the Chief of criminal investigation of Sumgayit City Police Department Hagverdi Zeynalov as well as some other police officers.

Elchin Mammad appealed to the Judicial Legal Council in connection with the violations. In his appeal, the human rights defender noted that he had been concerned about the frequent unjustified postponement of the judicial process.

The trial continued on 18 September 2020. However, Azer Ahmadov, the Head of the 1st Police Department of the Sumgayit City, and Hagverdi Zeynalov, the Head of the Criminal investigation of the Sumgayit City Police Department, did not appear in the court, no reasons were justified. The witnesses, Arazkhan Seyfullayev and Munasib Rustamov, who also had been invited as witnesses by Elchin Mammad to take part in the search of his office since they had been living nearby. They observed the search process standing behind the office door. According to them, despite the fact that there were about 10 policemen in the office, only one of them was conducting the search. The official witnesses explained that the policeman conducting the search had “found” the jewelry in the drawer, while the cartridges were “found” in another filling cabinet. They expressed their opinion saying that most likely all those things had been placed in the office in advance.

The trial continued on 25 September 2020. During the trial, there were questioned the following people: Hagverdi Zeynalov, the Head of the Criminal Investigation Department of the Sumgait City Police Department, and Eldjan Ismayilbeyli, a police officer. However, the Head of the 1st Police Department of the Sumgayit City, Azer Ahmadov, did not take part in the trial.

Hagverdi Zeynalov testified that he, along with Elchin Mammad, arrived at E. Mammad’s apartment in order to pick up the keys from Mammad’s office. Then, he together with Azer Ahmadov searched E. Mammad’s office. He also testified that a search in E. Mammad’s apartment had not Benn conducted despite the existence of such a court order. The policeman could not explain the reason behind it. H. Zeynalov declared that he had found the jewelry in the armoire that he’d approached the first, and the bullets had been found in another locker. H. Zeynalov also pointed out that the experts had not taken any fingerprints on the found items.

The other policeman, Eldjan Ismayilbeyli, testified that he had received an order to detain E. Mammad and that he along with other policemen had detained E. Mammad in his apartment. The policeman declared that his goal had been to protect the human rights defender and he also had provided his security in the office while the search had been conducted. E. Ismayilbeyli also testified that the policeman who had been conducting the search, had indeed found the jewelry and bullets in the first armoire that had come across.

During the trial, the human rights defender’s lawyer filed a petition. The petition concerned the submission of the case (No. 2477) documents submitted through the 1st Police station concerning the threat to Elchin Mammad’s life. The petition was justified by the fact that E. Mammad repeatedly received threats in connection with his professional activities. As for these threats, the human rights defender appealed to the Prosecutor’s Office. The complaint was sent to the 1st Police station for consideration. According to the interrogator Ruslan Veliyev’s ruling, the criminal case was denied. The lawyer was informed about this when he was at the designated police station. According to the lawyer, Elchin Mammad’s complaint had been examined acquiescingly, and a day after Aysel Mustafayeva filed the complaint, a criminal case was initiated against E. Mammad. The judge, having discussed the complaint, issued a decision to deny the lawyer’s request.

On 14 October 2020, the Sumgayit City Court issued a sentence against Elchin Mammad. According to the verdict, the human rights defender was found guilty in committing the charges and was sentenced to 4 years of imprisonment.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. While investigating and considering criminal cases, it is important to observe the principle of legality enshrined in the Article 10.1 of the Criminal Procedure Code of the Azerbaijan Republic. According to this article,

courts and participants in criminal proceedings shall conform to the Constitution of the Azerbaijan Republic, this Code, other laws of the Azerbaijan Republic as well as provisions of the international agreements to which Azerbaijan is a signatory. This means that all the rulings taken by investigation bodies and courts must strictly comply with the Constitution, laws, by-laws and international conventions. Thus, Article 12.1 of the Criminal Procedure Code of the Azerbaijan Republic states, that the judicial authorities shall observe the human and civil rights and liberties afforded by the Constitution to all participants in criminal proceedings.

In all cases, the investigative bodies are obliged to respect the human rights and freedoms.

In that case under consideration, the investigation bodies and the court violated the principles of the Criminal procedure law. The violations in the course of the investigation and trial were rather gross and serious. They concerned both the Norms of Substantive Law (Criminal Code of the Azerbaijan Republic) and the Norms of Procedural Law (Criminal Procedure Code of the Azerbaijan Republic).

According to the order of the Sumgayit City Court on 28 March 2020, a search was to be carried out in the office where the non-governmental organization “Sumgayit Youth Legal Education Society” was located, as well as in the apartment where Elchin Mammad was residing. Despite the court order, the search was carried out only in the office of the organization. For unknown reasons, the apartment of Elchin Mammad was not searched. The court did not find out the reasons why the search had not been carried out in the apartment. The lawyer asked the court to invite for interrogation the investigator who had been conducting the criminal case. During the trial the investigator Rafiq Ganbarov could not explain the reasons why, despite the court order, the search had been carried out only in E. Mammad’s office. The bias and lack of objectivity of the investigative body are obviously seen in this case.

 

As for the cartridges found in the office, the court did not prove the defendant’s involvement in them. Despite the fact that the investigation believed that the cartridges belonged to E. Mammad, no any weapons were found. The fact that only the cartridges had been found in the office did not pose any public danger.

 

In addition, the court did not take into account the fact that the victim filed a complaint with the police on 24 March 2020, whereas the missing items were discovered on 15 March 2020, as well as the fact that the victim claimed in court that she hadn’t had any complaints or claims against the accused.

 

The criminal case is based on evidence collected and submitted to the court by the investigating body. The following items were submitted as evidence: the victim’s statement-complaint, the search protocol in E. Mammad’s office, the witnesses’ testimony, etc.

According to the Article 33.1 of the Criminal Procedure Code of the Azerbaijan Republic,

during the proceedings the judges and jurors shall assess the evidence collected on the criminal case in accordance with the requirements of this Code.

The evidence provided to the court was not sufficient to convict the defendant. According to the Article 146.1 of the Criminal Procedure Code of the Azerbaijan Republic, the notion that sufficient evidence has been collected for the prosecution means that the amount of evidence on the facts to be determined is such as to allow a reliable and final conclusion to be reached on the case.

The Article 146.2 of the Criminal Procedure Code of the Azerbaijan Republic states, that

the sufficiency of evidence for the prosecution shall help to achieve the following:

146.2.1. the investigation and the court proceedings to be carried out purposefully;

146.2.2. the court’s perspective on the prosecution to be determined in good time;

146.2.3. a correct and well founded decision to be taken on the prosecution.

According to the Article 145.3 of the Criminal Procedure Code of the Azerbaijan Republic, if suspicions which emerge during the process of proving the charge cannot be removed by other evidence, they shall be interpreted in favour of the suspect or accused. Unfortunately, the numerous doubts were not interpreted in favour of the defendant.

Due to the fact that the investigation, and then the court, could not prove the guilt of the accused, E. Mammad should have been acquitted.

According to the Article 42.1 of the Criminal Procedure Code of the Azerbaijan Republic,

an accused person may be declare innocent of the offence and acquitted by the court in the following circumstances:

42.1.1. if no criminal act has been committed;

42.1.2. if the act has no criminal content;

42.1.3. if there is no link with the offence committed;

42.1.4. if guilt is not proven.

In this case, the involvement of the human rights defender in the crime was not proved during the trial.

The lack of the factual basis has resulted in the violation of the right to freedom enshrined in the Article 28 of the Constitution of the Republic of Azerbaijan, in Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in the Article 9 of the International Covenant on Civil and Political Rights, as well as in the Article 9 of the Universal Declaration of Human Rights.

Partiality, bias of the court violated the human rights defender’s right to a fair trial guaranteed by the Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This Norm mainly guarantees the right to a fair trial, and therefore the right of every participant in the trial to “the proper course of justice”.

The judgment of the European Court of Human Rights (ECHR) in the case Delcourt v. Belgium of 19 January 1970 states, “In a democratic society, within the meaning of the Convention, the right to the proper administration of justice occupies such a significant place that a restrictive interpretation of the Article 6(1) would not be consistent with the objectiveness and aim of this norm.

https://www.legal-tools.org/doc/5e02c9/pdf/

https://europeancourt.ru/resheniya-evropejskogo-suda-na-russkom-yazyke/delkur-protiv-belgii-postanovlenie-evropejskogo-suda/

The lack of evidentiary base, lack of implication of the human rights defender to the objects found in his office, the violation of the norms of substantive and procedural law, the International Conventions, as well as the precedents of the European Court of Human Rights led to the illegal and unjustified conviction of the human rights defender engaged in the protection of human rights and freedoms.

 

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The opposition member is not going to be granted a house arrest

The opposition member is not going to be granted a house arrest

Muhammad Imanly

Analysis of violation of law during Muhammad Imanly’s judicial proceedings

 

Baku City Sabunchi District Court

Case №4(008)-536/2020

19 September 2020 

Judge: Suleyman Agayev

Defendant: Muhammad Imanly

Defender: Asabali Mustafayev

Police Major Mukhtar Mukhtarov – an Investigator of the Investigative Department of the Baku Sabunchi District Police Division.

On 15 July 2020, Muhammad Imanly, a member of the People Front Party of Azerbaijan (PFPA) at Sabunchi district was arrested by the police officers from the 13th Department of the Baku Sabunchi district. A day prior his arrest, on 13-14 July, there were intense clashes in Tovuz district on the Azerbaijani-Armenian border. As a result of those fights eleven Azerbaijani militaries were killed including the general Polad Hashimov and colonel Ilqar Mirzoyev.

On 15 July 2020, a large rally and demonstration in support of the Azerbaijani army was held in Azerbaijan. A large number of people were marching a long way from the city of Sumgait to the center of the capital of Baku. The protesters passed by the President administrative building and approached the Parliament. According to eyewitnesses, a small group of strangers burst into the Parliament building and damaged the state property. The rally participants said that those people had been provocateurs who had been sent to break the law. On the photos made during the rally, there were captured some employees of the State Security Service.

After 15 July, there were arrests of PFPA functionaries who were accused of premeditated destruction or large-scale property damage, organization of actions facilitating violation of public order or active participation in such actions, as well as resistance or use of violence against the authorities.

Having participated in the rally Muhammad Imanly marched only up to the “Koroglu” metro station that was a 20-minute walking distance away from the city center, after which he returned home.

Next morning the district policeman came up to M.Imanly’s apartment and asked to follow him to the 13th police station of the Baku Sabunchi District Police Department. Muhammad Imanly spent there for 4 days, and during that time his family was not informed about the reasons of his detention.

A few days later Muhammad Imanly was brought to the trial. He was prosecuted for the crime commission in the crimes under the Article 139-1.1 (Violation of the anti-epidemic regime, sanitary and hygienic or quarantine procedures) of Criminal Code of the Azerbaijan Republic.

On 22 July 2020, the Baku City Sabunchi District Court issued a ruling to impose a preventive punishment measure against M. Imanly in the form of 3-month detention. Taking into account M.Imanly’s health conditions, he was placed into the Penitentiary Service Specialized Medical Institution #3. During the whole period of his arrest M. Imanly was not allowed to communicate with his immediate family members, relatives or friends. The family was not informed about his condition and the reasons for his arrest. Imanly’s lawyer wasn’t allowed to see him either.

M.Imanly’s defence filled an appeal against the Sabunchi ruling issued on 22 July 2020 to the Baku Appeal Court, however it was denied and M. Imanly was left under the arrest.

In September 2020, the defense filed a petition to replace the detention measure with a house arrest.

On 19 September 2020, the Baku City Sabunchi District Court rejected the defense’s petition and remanded M. Imanly in custody.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. The Article 155 of the Criminal Procedure Code of the Azerbaijan Republic shall regulate the grounds for determining the measure of preventive punishment, among which:

  • 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.

 

Also, in resolving the question of the necessity for a restrictive measure and which of them to apply to the specific suspect or accused, the preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court shall bear in mind:

 

  • the seriousness and nature of the offence with which the suspect or accused is charged and the conditions in which it was committed;
  • his personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence;
  • whether he has committed a previous offence, the previous choice of restrictive measure and other significant facts.

On 22 July 2020, against M. Imanly, it was chosen a preventive measure in the form of detention. Since the beginning of the preliminary investigation to the present the investigation was conducted only in the first two days. In addition, if we pay attention to the Article of the Criminal Code of the Azerbaijan Republic under which M. Imanly has been accused, we understand that nowadays, almost 3 months after his arrest, he does not pose any kind of danger to the public. Even though assuming that he was ill with the new type of coronavirus COVID-19, the incubation period of this disease lasts from 14 to 21 days. Beyond 3 months from the date of arrest, he could not have any virus at all, which means that the prolonged detention is illegitimate.

According to the Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms:

  1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

 

The Decision of the Plenum of the Supreme Court of the Azerbaijan Republic from 3 November 2009, “On the practice of implementation of the legislation by the courts while considering petitions on detaining of the accused” indicates that in addition to the above-mentioned justified suspicions, there must be also the procedural grounds. The Plenum also advised the courts to take into account the nature and degree of danger to the public posed by the accused, the information on his identity, including age, family status, occupation, health condition and other circumstances.

Currently, there are no grounds to believe that M. Imanly, being at large, may interfere with investigations or avoid the investigation, and, in addition, may not appear without a valid reason on the orders of the investigating body that carries out the criminal process, to avoid being brought to criminal charges and serving his sentence.

Furthermore, M. Imanly has a permanent residency, and two young children, the oldest of whom is a year and a half, and the second one was born at the time of his detention.

Based on the case materials, all the necessary investigative procedures have already been conducted and the list of evidence has been determined. Therefore, there is no way for M. Imanly to interfere in the course of the investigation.

It is significant that, there was not carried out a single investigative activity with M.Imanly’s participation following the imposition of the constraint measure in the following days. All investigative procedures that may be carried out afterwards could be conducted with the involvement of M. Imanly, even if he is at large. In other words, for this purpose, there is no need to keep him in detention.

According to the press reports, there is no preventive measure in the form of arrest in respect of those who suffer from coronavirus and leave their place of residence without the appropriate permission. On the police and doctors’ recommendation, they are returned to their homes, continue treatment, and in case of criminal charges, are placed under the police supervision. This illustrates the fact that the arrest of Muhammad Imanly is biased and illegal.

According to the Article 163.1 of the Code of Criminal Procedure of the Azerbaijan Republic, house arrest is a restrictive measure which restricts a person’s liberties and some other rights by a court decision, without the accused being detained on remand and isolated completely from society.

The punishment under the Article, under which M. Imanly is accused, is up to 3 years of imprisonment. This activity belongs to the category of less serious crimes. The Article also foresees a fine as well as limitation of freedom.

As it was mentioned above, M. Imanly has a permanent place of residence, two young children, he has a higher education, and he is an opposition party activist; though he has never been convicted before, and is the only breadwinner in the family.

  1. Imanly’s detention violates his right to freedom guaranteed by the Article 3 of the Universal Declaration of Human Rights as well as by the Article 9 of the International Covenant on Civil and Political Rights. All these articles guarantee a physical inviolability of the person and protection from any arbitrary action. Personal liberty must be respected by law; deprivation of liberty prior to trial is a matter of exception.

The detention is justified only if the particular characteristics reveal a public interest that prevails over the respect of individual freedom, despite the presumption of innocence. The national judicial authorities must consider all circumstances that enable a public interest to be demonstrated that would justify exceptions to the general rule on respect for individual freedom.

The court ruling stated that there were no grounds to substitute the preventive measure, and the danger existed at the time of arrest had not been eliminated yet. However, the ruling does not specify the exact danger posed by M. Imanly. The court did not consider the issue of non-arrest-related preventive measures.

The European Court of Human Rights (ECHR) precedents prohibit any arbitrary arrests. Thus, in the paragraph 153 of the ECHR judgment in the case of Labitha v. Italy from April 6, 2000, stated, “The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings”

https://www.srji.org/resources/search/3/

https://hudoc.echr.coe.int/rus?i=001-58559

As it is seen from the described above, the illegitimate and groundless ruling of the court rejecting the request of the defense to replace the measure of restraint in the form of house arrest, entailed the violation of the constitutional norm, the norms of criminal procedure legislation, stipulated in the Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 3 of the Universal Declaration of Human Rights, the Article 9 of the International Covenant on Civil and Political Rights, as well as the judicial precedents of the European Court of Human Rights.

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Ramil Aliyev

INVESTIGATORS WHO FALSIFY ACCUSATIONS OF POLITICAL PRISONERS

Ramil  Aliyev

Investigator of the Baku Nizami District Police Department’s Investigative Department

Ramil Aliyev was the investigator who initially falsified the criminal case against Tofig Yagublu. It was this investigator who destroyed all the video recordings on the phone of Tofig Yagublu and his wife, as well as from the security cameras of the city, confirming the innocence of Tofig Yagublu. Investigator Ramil Aliyev submitted a petition and a proposal for the arrest of Tofig Yagublu.

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Tofig Yaqublu’s conviction is in the focus of attention by both azerbaijani and international communities

TOFIG YAQUBLU’S CONVICTION IS IN THE FOCUS OF ATTENTION BY BOTH AZERBAIJANI AND INTERNATIONAL COMMUNITIES

Tofiq Yaqublu

Analysis of violation of law during Tofiq Yaqublu’s judicial proceedings

Baku City Nizami District Court

Case № 1 (007)-197/2020

03 September 2020

Judge: Nariman Mehdiyev

Defendant: Tofiq Yaqublu

Defenders: Elchin Sadigov, Nemat Karimli, Aqil Lahij

The State Prosecutor: Asadulla Ramazanov

Victims: Elkhan Jabrayilov and Javayir Jabrayilova

Victims’ representative and lawyer: Elkhan Shukurov

Tofiq Yaqublu is a veteran of Karabakh war, member of Musavat Party and National Council of Democratic Forces of Azerbaijan. Earlier, he had been convicted three times for his political activity: in 1998, T. Yaqublu received 2 years of suspended prison sentence, in 2012 – 2,6-year term of imprisonment, was released earlier, and in 2013 he was sentenced to 5 years of imprisonment. On 17 March 2016, he was pardoned by presidential decree. In addition, T. Yaqublu was brought 35 times to administrative charges. The last time, in October 2019, Tofiq Yaqublu was subjected on administrative charges. It was then when he was subjected to physical and psychological pressure, he was beaten and threatened with murder of his son.

  1. Yaqublu was arrested for the fourth time on 22 March 2020. He was accused of committing a crime under the Article 221.3 (Hooliganism committed with application of a weapon or subjects, used as the weapon) of the Criminal Code of the Azerbaijan Republic.

According to the investigator Ramil Aliyev, at about 3 p.m. on 22 March 2020, T. Yaqublu, while driving his Toyota Corolla, ran over the VAZ 21074 driven by Elkhan Jabrayilov, his wife, Javayir Jabrayilova, near the market in the settlement “8 km”. After that, he hit Javayir Jabrayilova with the opened door of his car and then injured Elkhan Jabrailov with a screwdriver.

The defense and the defendant Tofiq Yaqublu claim that he went shopping with his wife and her nephew on 22 March 2020. He stayed in the car, while his wife and her nephew went shopping. However, not even 5 minutes later, Yaqublu called his wife and asked her to come back. He told his wife that he had realized that a provocation against him was being prepared. Yaqublu immediately wrote about the provocation on his Facebook page. In the course of the trial the defense filed many motions, most of which were not satisfied by the court. The testimonies of the prosecution witnesses at the trial differed from those they had given during the investigation. The most important element was the interrogation of the witness Novruz Novruzov, whose name was indicated as Javanshir Novruzov on the list of prosecution witnesses. The defence asked the court to send a request to the Ministry of Internal Affairs in order to identify the witness’ real name, but the court refused to grant that request.

At the trial, on 1 September 2020, Tofiq Yaqublu addressed the court with the following petitions and remarks.

 

The petitions:

  • to admit media representatives as well as up to 10 people willing to participate in the process, taking into account the social distance;
  • issue a pending order to hold a preparatory court hearing;
  • to satisfy all those petitions filed in connection with the submission of evidence, which were initially dismissed and subsequently denied;
  • request to watch the video recording in the courtroom;
  • objection to the entire court, request to send the case to another court.

Observations:

 

  • Issue an outstanding order to hold a preparatory court hearing;
  • grant all those petitions filed in connection with the provision of evidence that were initially dismissed and subsequently denied;
  • request to watch the video recording in the courtroom;
  • objection to the entire court, request to send the case to another court.

Comments:

  • while questioning the witnesses, the corrections to their testimony have been made. Their answers were revised;
  • during the break, the judge went to his office and waited for an order to be given to him.
  • Aladin Jafarov was the court’s Chairman. In 1998 he issued a guilty verdict against T. Yaqublu, which indicates that he is now interested in this criminal case;
  • Yaqublu was in a glass box, which is prohibited by the precedents of the European Court of Human Rights (ECHR), and there was a convoy nearby;
  • during the preliminary investigation, it was interrogated Javanshir Novruzov, not the same man as the one who was invited to the court, Novruz Novruzov.

Tofiq Yaqublu’s petitions and comments were disregarded and ignored by the court. In the final arguments of the parties the state prosecutor stated in court that T. Yaqublu’s guilt had been fully proved and asked to sentence the defendant to 4 years and 6 months imprisonment in a high security colony. The lawyer, in his defence speech, said only one phrase “We protest against injustice and lawlessness.”

The court offered the defendant a final word.

In his speech, Tofiq Yaqublu said:

“You have broken the law here and there. I was not interrogated during the trial, I only said that at this stage I did not want to testify. There were many violations during this trial. One of the violations is that you did not set up the conditions either for me or for my lawyers to voice our point of view. I know that the sentence is ready and I will be deprived of my liberty. Those years, months, days that I will spend in prison, I dedicate to the national leader of the Azerbaijani people, a great personality, the father of the nation, whom I love very much, a man hated by Aliyevs, Muhammad Emin Rasulzade.

If you remember, last year the Ministry of Internal Affairs and the Prosecutor General’s Office delivered a joint statement. The First Vice-Minister of Internal Affairs and the First Vice-Prosecutor General’s Office invited me and threatened saying that “if you continue your political activities, criticize the head of the country, you will be arrested again.” This statement was circulated in the press. After that, I was arrested on October 19. At the detention center an employee of “bandit department” came to me and said that “this is your last chance, you must stop your political activity, you must leave the National Council, otherwise you will be arrested”.

 

The judge, “Get to the point…”

  1. Yaqublu continued,

“I am actually getting to the point. I must explain why I am arrested. I was convicted more than once, having been slandered both in administrative and criminal matters. It is impossible to falsify accusations in such a way. But this time there is a novelty. Previously, Ganimat Zahid, Seymur Hazi, and Mammad Ibrahim were slandered and convicted under this Article.  However, there is something new in my case, mainly because only one family is involved in this slander. Before, someone had also slandered.  And in this case, there is a family business in a row.  I don’t know who pushed whom on such a bad path, either it was husband who pushed his wife or vice versa, a wife who pushed her husband.”

The judge, “Speak on the merits…”

  1. Yaqublu keeps going,

“I am speaking at the core. Elkhan Dzhabrayilov is a policeman who screws people over. Here, you say every minute “This is the Article of the Criminal Procedure Code”. Let me remind you once again: you are not a judge. Ilham Aliyev ordered, and what he will tell you, you will just announce. You say that I am nervous, I speak too loud here. Aladin Jafarov, the Chairman of Nizami district court, is guilty of my first criminal prosecution. In 1998 he condemned me on trumped-up charges. Then, in 1998, I spoke very thoughtfully, quietly, my voice did not even change its tone.  At that time I thought, believed that everything had been clear in my case, the court would sort everything out, I would be released. Then there was another court, and another one… Actually, if today I won’t be nervous, you will be surprised that, how I can stay cool and quiet after what has happened? How many times can a person be stipulated? How much can one person slander another? How many times can anyone be arrested? How many times can anyone be tortured? Therefore, my nervousness and loud voice are absolutely natural. In order to believe the accusations of the investigation, the testimony of so-called victims and witnesses, I say with full responsibility that you must first of all admit that I am an idiot. Because no sane person would believe such crap. It is impossible. This crime was organized from the very beginning.

During the interrogation, when I asked Elkhan Jabrayilov where he had come from, he answered me that he was driving on the same road as I was. He confessed unknowingly that he was following me. The reason I am here is not to prove my innocence. You had to prove that you have dignity. You could not do it, you did not do it. If I really committed this crime, then you would show it to the whole world as if it were the wedding of Ramiz Mehdiyev’s grandson …”

The judge, “Speak on the merits…”

  1. Yaqublu replied,

“I am speaking on the merits. If I had committed this crime, it would be shown from morning to evening on TV channels. The authorities are spending tens of millions, a lot of money installing security cameras and radars in the city. Why can’t they find footage, a video? I demand video. Show it to us. They hit my car at the parking lot, they expected me to get out of the car, get angry and generate a conflict. Without any shame, they hit my car at the parking and expected me to get out! If I got out of the car, the scene they had planned in advance would automatically occur and would be caught on the camera. Both the officers and the police handlers rushed there right from the very beginning. This plan did not work out because I did not get out of the car. They are lying and saying that allegedly I got out of the car shouting and striking Elkhan Jabrayilov. If I scolded Elkhan Jabrayilov, let these insults get back to me and my family ten times more. I did not do this; these alleged foul words will be addressed ten times more to the families of those who ordered and committed this crime against me.”

The judge, “Speak on the merits, I am making a warning”.

  1. Yaqublu continues,

“I am speaking to the core. You do not have the guts to listen to the truth. I have the war diaries. I was the only military man who wrote a diary, while at war. I have been twice officially nominated for the title of National Hero. I captured the Armenian women, the wounded Armenians, but I have never said anything bad to them. I provided them with food, drink and treated their wounds. Now, they tell me that as if I had scolded someone and hit. Shahbaz and Dilgham, who are now in the Armenian captivity, have more rights to be protected than I do. How much lies are in this criminal case!

I am 60 years old, I do not either smoke or drink. Since our childhood my father forbade me and my brother to smoke, drink, and quarrel. We gave our word and kept it. So much lies were invented… The investigator wrote down lots of lies. What is the most important lie based on? The arrows of the clock were moved forward. They would say that I scolded, hit, and then wrote the status. All witnesses as a one said that it was around 3 p.m. There are witnesses who were questioned 2 months later, 3 weeks later. All say the same thing. I left the house at about 14:58. We had to go to the bazaar, from there we should go to visit my daughter’s grave, and in the evening we should talk with my grandson. At about 2:55 pm my wife told me, let’s go.

Everything was falsified. You studied forensics, logic. According to the investigation, at 15.00 I hit, scolded, hit with a screwdriver and then went and called the police in order they would catch me? If I committed that crime, why did I call the police? There was a camera above my head. Imagine, Tofig Yaqublu said that he had not got out of the car, then they distributed video where he had got off the car and cursed. I will never allow myself this. I am not Ilham Aliyev to tell people the lies. I know that everyone has a phone, there are security cameras everywhere, how could I lie?

It is written in the investigation report concerning the scene of the incident as if I had participated at the scene of crime but refused to sign the report. Why is there so much lying and dishonesty? In fact, I was not there, I did not participate in investigation of that place.

They say I hit Elkhan Jabrayilov on the head. If I knocked him out, why should I hit him again with a screwdriver? So far, all oppositionists, including me have been repeatedly beaten and we had been asked to keep silence. The lawyer saw me in such condition when I was subjected to an administrative arrest.  However, the medical examination report indicated that I had not been hurt. But, as about Jabrayilov, it was written as if track had passed over him. How can you say so many lies with such calmness?

I asked Elkhan a question: you showed someone your wound right after I slapped you? He answered that “no, I could not open it and show it to people.” But all policemen who came here said they had seen the scratches. If someone says he didn’t show his chest, how could they see scratches through the wool clothes?

Elkhan Jabrayilov is such a big man, how could I hit him with a screwdriver? It is impossible to imagine.  Aren’t you ashamed of yourself? The funniest thing is that such a strong man could not pull out a screwdriver from my hands whereas his wife Javayir could do it.

I am not talking about the allegation that I allegedly hit Javayir with my car door. It is not clear whether I hit her from behind or from the front.  She claims that when I closed the car door she was slammed in the shoulder. You bought a lot of cars with the money from bribes. Imagine, I sit in the car and do not go out. How can I hit her right shoulder with a door?

I was sitting in the car and saw in the mirror another car hit mine. You have this video, you have watched it, so you know it very well. When I saw him next to my car, I thought he came up to apologize. But no, he scolded me, using cursing and swearing. I immediately understood that it was a provocation. Because he hit my car at the parking lot and in addition he scolded me. At once, I locked the doors and windows of my car. I started shooting what was going on and wrote a post on Facebook. I had to send the recorded video to someone right away. I did not think that on behalf of the state they would do such a disgrace.

Elkhan Jabrayilov was scolding me and shouting at me in order to get me out of the car, he was creating a sinister situation. It was right under the camera. Get the camera footage to be shown. I did not get out of the car until the traffic control policeman, Malik Manafov, arrived. I went with him and he asked for my documents. I handed him the documents. A photo where I shoot video was circulated. Where has this video gone and why isn’t it there? They, dishonorable, also erased the video with my grandson, the son of my deceased daughter Nargiz Yaqublu.

They say there were blood drops on the handle of the screwdriver. If there were no scratches, how could there have been blood on the handle? It is said that I was beating him for 25-30 minutes! When you tell a lie, you have at least to follow the logic.

When the confrontation was carried out, he showed his chest, and there were red thin stripes painted with a red marker. In order to aggravate the situation, they added a screwdriver.

I bought my car for the money paid for my arrest by the decision of the European Court, which fined the state because of judges like you. Do I drive a trucks ZIL or a Kamaz, that I have a screwdriver in my cabin? So far I have not poured anything other than gasoline and antifreeze, I have rarely opened a hood. They say that I took out a screwdriver from my pocket. If I was sitting, how could the screwdriver be placed in my back pocket?

What are the cameras for? Tomorrow there is going to be a fight, you will leave the cameras and interrogate the witnesses? The cameras are installed on the right and left sides. Do you only need them to watch the oppositions’ beds?

I provided testimony to the investigator. I said, all what had been taken place was filmed on my phone. Initially I thought that only my phone had been taken. It turned out that they had also taken my wife’s phone. They forcibly took my wife’s phone away like robbers in the street. If a thief breaks into your house, you won’t watch the cameras? What are the cameras for? The cameras was left aside, they brought the fools here to testify against me. I am as confident as I am that I demand these videos. And these criminals are only busy with destroying the evidence.  And this is what you might call an investigation? Can you be called a judge? Can you be called a prosecutor?

The phone was inspected two months later. How does it comply with the mind and logic? Why wasn’t the phone examined immediately? Why were the records from the DVRs erased? The fake testimony is evidence, and these devices are not.

If the investigation was objective, why was my phone seized from the first day and Jabrayilovs’ phones were not?

For four days I was not allowed to contact my family members. The investigator is just a criminal, he looked through all the cameras, the video taken by the officers, as well as the city security cameras. He then deleted all of the videos.

How many policemen were involved in Ilham Aliyev’s crime in order to arrest Tofiq Yaqublu? You all will be responsible. And you personally. It is much harder to serve a sentence at the age of 80. What will happen to you, this is also a question.

When you look at the diagram of the incident, do you even worry? In order to believe it, a person should shout “I am a donkey” at the Fountain Square.

People wonder if such brazenness is possible? One of the men who was at the parking lot told me that the driver of the car had called someone and said, “he didn’t get out of the car”. I was first filming from inside the car and only when the policeman Malik Manafov arrived I got out and continued shooting. They erased those footage as well. When I got out they attacked me. The incident happened this way.

Tofiq Yaqublu, who defended his homeland from aggressors killing the enemies, is incriminated by these people. Aren’t you ashamed?

The investigation states, that it was impossible to determine the fingerprints on that screwdriver. Why not? Is that how they fight against crime? Not even 10 minutes passed after the incident, when the screwdriver was collected, look what they are saying.

What should I do once the robbers break into my house? Can I trust the police? I ask you seriously. People have built the state to protect them and protect their rights. But the state incriminates us, slander the people who defended the very state. While we were protecting this state on the front line, Ilham Aliyev was playing in a casino.”

The judge, “I am warning you for the second time.”

  1. Yaqublu:

“I was caught by the officers of the Nizami District Police Department. The Nizami District Prosecutor’s Office has been involved in that trial. And the court continued the case. In the Soviet times, the district was named after Shaumyan. And you are the followers of Shaumyan’s affair.”

The judge: “I warn you, speak on the matter.”

  1. Yaqublu:

“And I am talking basically about the matter. A judge has a right to warn, and you are not a judge. In this court there are only lawyers, as well as Suraya (court session secretary) who are legitimate. I will go on hunger strike from now on, let everyone know it. Here, the accused is not the accused, the victims are not victims, the judge is not a judge, the prosecutor is not a prosecutor. You are asking me to speak on the merits. How can I talk about things that did not happen? Do I have to prove to you that I was on Mars? Go ahead and watch the video. That’s why we want democracy, to have the right, the court, the right to defense, so you won’t be able to do what you want. What have I done? I, a poor man, went to the market to buy food.

I started a hunger strike, I do not want to lose much energy. I will go all the way to the end in order to win. I will die for my Homeland, but the criminal regime, Aliyev’s regime must be gone. The corrupted people have to leave. I am innocent, you, Ilham Aliyev, Ramiz Mehdiyev are criminals.”

The judge:

“I warned you to speak on the merits. I have warned you several times. I interrupt your last word as you are not speaking on the merits. The trial is over. Tomorrow, on September 3, at 11.00 a.m. the sentence will be announced. The court is going to leave for the meeting.”

The lawyer Nemat Karimli, “Do we have the right for a comment?”

The judge: “You already spoke yesterday. You have no right.”

On 2 September 2020, at the trial Tofiq Yaqublu began a hunger strike to protest against injustice and unlawfulness. He demanded acquittal.

On 3 September 2020, the Nizami District Court of Baku City sentenced Tofiq Yaqublu to 4 years and 3 months imprisonment finding him guilty in committing the incriminated crime, and convicted him to serve his sentence in a high-security colony.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. According to the Article 12.1 of the Code of Criminal Procedure of the Azerbaijan Republic, the judicial authorities shall observe the human and civil rights and liberties afforded by the Constitution to all participants in criminal proceedings.

The Article 14 of the Code of Criminal Procedure of the Azerbaijan Republic states:

14.1. The right to liberty may be limited only in cases of detention, detention on remand or imprisonment in accordance with the law.

14.2. Nobody may be detained or arrested other than on the grounds provided for in the Code and other laws of the Azerbaijan Republic.

The right to freedom is specified in the Article 28 of the Azerbaijan Republic Constitution. According to the Article 28 (I) of the Constitution of the Azerbaijan Republic, everyone has the right for freedom. Accordance the Article 28 (II), right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.

The ban on arbitrary arrest is also specified in the International Law norms, in particular in the Article 5(1) subparagraph c) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It concludes:

  1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.

The prohibition of arbitrary arrest is also set out in the Article 3 of the Universal Declaration of Human Rights and the Article 6 of the International Covenant on Civil and Political Rights.

In the case of Tofiq Yaqublu, this right was grossly violated, since during the trial the prosecution had not presented any facts that T. Yaqublu was dangerous for the society and should be isolated. Apparently, Tofiq Yaqublu’s arrest had no legitimate grounds.

In the course of the trial, the defendant repeatedly stated that after his arrest the investigation authorities interfered in the correspondence of his mobile phone’s WhatsApp system. T. Yaqublu requested an examination of his cell phone, but it was not granted. Moreover, the defendant’s spouse confirmed this interference. When questioned during the trial, Maya Yaqublu testified that her husband’s phone had been confiscated in brutal form from her bag. Meanwhile, the investigation bodies did not submit any court ruling to do it. This step by the investigation bodies violated the right to respect for private and family life, as well as the right to respect for private correspondence stipulated by the Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 12 of the Universal Declaration of Human Rights and the Article 17 of the International Covenant on Civil and Political Rights.

Almost every court session commenced with Tofiq Yaqublu’s petition to let media representatives, as well as the defendant’s close relatives and friends into the room, according to the rules related to the pandemic. However, apart from T. Yaqublu’s daughter no one was allowed into the room.

According to the Article 127 (V) of the Constitution of the Azerbaijan Republic, in all law courts hearing of legal cases shall be open. It is allowed to have closed hearing of legal cases only if the law court decides that open hearings may result in disclosure of state, professional or commercial secrets, or that it is necessary to keep confidentiality with respect to personal or family life.

According to the Article 27.1 of the Code of Criminal Procedure of the Azerbaijan Republic, while safeguarding state, professional, commercial, personal and family secrets in accordance with this Code, court hearings in criminal cases and on other prosecution material shall be held publicly in all courts of the Azerbaijan Republic.

The Court, deliberately failing to admit those wishing to attend, explained the reason for the refusal by the coronavirus pandemic, as well as the existence of the relevant informative recommendation of the Supreme Court of the Azerbaijan Republic issued on 15 May 2020.

According to the paragraph 1.1.3 of this document, it is prohibited to gather more than 10 people in one courtroom, even in the courthouse administrative buildings. The recommendation of the Azerbaijan Republic Supreme Court was also violated. First, there were the accused, the defense lawyer, the prosecutor, the judge, and the secretary of the court session. That is, 4-5 people could have been allowed in the courtroom. Secondly, according to the paragraph 2.2.2 of the Decree of the President of the Azerbaijan Republic “On creation of information system “Electronic Court” from February 13, 2014, the proceedings on criminal, civil, commercial, administrative cases and cases on administrative violations can be conducted online. Despite the fact that this decree was adopted back in 2014, this decree was not put into practice at the time of the pandemic. Instead of ensuring the openness of the legal process and providing technical facilities to the parties to broadcast online, the courts chose to conduct trials behind closed doors. It is known that during the Coronavirus pandemic in Russia, for example, such practices have been used. “Sensitive cases” litigation is conducted via Youtube broadcasts or on Facebook. There is another option to make court hearings open – by means of the court’s technical facilities, i.e. to put a monitor at a place accessible for people who want to follow the trial. All above means that the open trial was not the court’s objective, that is why none of the options provided by the legislation has been used.

The principle of transparency is protected by the International Norms of Law, in particular by the Article 6, paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 14, paragraph 1 of the International Covenant on Civil and Political Rights, as well as by the Article 11, paragraph 1 of the Universal Declaration of Human Rights.

Thus, one of the fundamental principles of fair legal proceedings was grossly violated by the Baku City Nizami District Court.

One of the most crucial points in the criminal proceedings is the witnesses’ testimonies. According to the Article 95.1 of the Code of Criminal Procedure of the Azerbaijan Republic, a person who is aware of any important circumstances may be summoned and questioned as a witness by the prosecution during the investigation or the court hearing and by the defence during the court hearing.

In the course of hearing, almost all witnesses testified that they had not seen either the collision of cars, or how Elkhan Jabrailov had been injured or any other details of the incident. It was clarified during the cross-examination between the prosecution and the defence.

A minor witness (15 years old) was also questioned in the course of the trial, and his answers to many questions were not very clear. The defence requested a forensic psychological examination to determine whether the young witness was capable or not, due to his physical or mental disabilities, of perceiving and describing the circumstances to be investigated accurately. However, the court did not grant the motion.

According to the Article 95.2 of the Code of Criminal Procedure of the Azerbaijan Republic, the following persons may not be called or questioned as witnesses:

95.2.1. those who because they are under age or because of their physical or mental disabilities cannot understand and testify about the matters to be investigated in the criminal proceedings.

The court’s denial to grant the most important petitions violated the Article 121.2. of the AR CPC, which states:

“Reasons shall be given for the decision taken on an application or request, together with an assessment of the applicant’s arguments. Applications and requests for any matters connected with the prosecution to be examined thoroughly, fully and objectively under the required legal procedure, and for the violated rights and legal interests of the parties to the criminal proceedings and of other participants in the proceedings to be restored, may not be rejected.”

According to the Article 126 of the Code of Criminal Procedure of the Azerbaijan Republic,

126.1. Oral and written information received by the prosecuting authority from the suspect, accused, victim or witnesses in pursuance of this Code shall be considered as evidence.

126.2. Only statements based on the information or conclusions of a person directly comprehending the act and its causes, character, mechanism or development may be considered as evidence.

126.3. Information given to the prosecuting authority by the suspect, accused, victim or witnesses on the basis of hearsay may not be used as evidence. Only information derived from the words of a deceased person may exceptionally be accepted as evidence by court decision.

126.4. The value of evidence may not be assigned to statements given in the following situations:

126.4.1. when a person is agreed to be unable to comprehend or describe matters significant to the prosecution at the appropriate time;

126.4.2. when a person refuses to undergo an examination by experts of his ability to comprehend or describe matters significant to the prosecution.

126.5. Information from persons who may not be questioned as witnesses shall not be used as evidence.

Article 126 of the Code of Criminal Procedure of the Azerbaijan Republic states:

 “Evidence collected for the purposes of prosecution shall be verified fully, thoroughly and objectively. As part of the verification process the items of evidence collected shall be analysed and compared with one another, new evidence shall be collected and the reliability of the source of the evidence obtained shall be established.”

In the case of Tofiq Yaqublu, the testimonies of many witnesses were not supported with other case evidences, and the reliability of the source raised reasonable doubts about its credibility.

The investigation and court did not determine whether the event had been a crime, whether Tofiq Yaqublu had been involved in the incident, and what had happened exactly at the market in the settlement “8 km” on 22 March 2020.

The doubts that arose in the course of the investigation and trial were not interpreted in favor of the defendant, as stipulated by the criminal procedure law. Therefore, an illegal and groundless verdict was issued against T. Yaqublu.

 

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The verdict of Tofig Yaqublu is a clear illustration of lawlessness in Azerbaijan

The verdict of Tofig Yaqublu is a clear illustration of lawlessness in Azerbaijan

Tofig Yaqublu

Statement of Institute for Peace and Democracy

On September 3, 2020, the judge of Baku City Nizami District Court Nariman Mehdiyev pronounced sentence the prominent leader of the opposition Tofig Yaqublu guilty in hooliganism (Article 221.3 of the Criminal Code of Azerbaijan Republic) and sentenced him to 4 years and 3 months in high security colony.

Currently, there are 191 political prisoners behind bars in Azerbaijan. See: https://www.ipd-az.org/political-prisoners-for-10-august-2020/

A new wave of brutal repressions began in spring of 2020, after March 19th speech of President Ilham Aliyev, when he called for reprisals against opposition as “enemies of nation” and “the fifth column”.

Already, on March 23, 2020, the same judge of Baku City Nizami District court, Nariman Mehdiyev imprisoned T. Yaqublu, by violating all norms of the national legislation of Azerbaijan Republic and international law.

See:https://www.ipd-az.org/opposition-leader-tofig-yagublu-accused-of-hooliganism/

For more details about judge, see: https://www.ipd-az.org/mekhdiyev-nariman-huseyngulu-oglu/

The judicial proceeding, whereat rules of law and arguments of the defense were ignored, is a clear illustration of the complete legal lawlessness in Azerbaijan Republic.

European Court of Human Rights will recognizes the verdict of Tofig Yaqublu unlawful, violating the Articles of the European Convention. But will not young, with poor health condition person survive these years and these humiliations?

On September 3rd, Tofig Yaqublu went on hunger-strike.

Tofig Yaqublu is the first victim of the 2020 repression. During pandemic, authorities began their next repressive drive with the most authoritative leader of the opposition. In total, in the period of March – August 2020, criminal cases were falsified against 43 opposition activists, see:  https://www.ipd-az.org/courts/

and:https://www.ipd-az.org/political-prisoners-for-10-august-2020/

We summon all Azeri nation and the international community to begin the struggle for the release of one of the best sons of Azerbaijan, Tofig Yaqublu.

 

Dr. Leyla Yunus

 

Director of Institute for Peace and Democracy

Chevalier of the French Legion of Honor

Winner of International Theodore Hacker Award

Laureate of Polish Sergio Vieira de Mello Award

Winner of Battle of Crete Award

Sakharov Prize for Freedom of Thought of the European Parliament Finalist

September 3, 2020

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Pasha Umudov is yet another victim of 2020 severe repressions

PASHA UMUDOV IS YET NOTHER VICTIM OF 2020 SEVERE REPRESSIONS

Pasha Umudov

Analysis of violation of law during Pasha Umudov’s judicial proceedings

Baku City Narimanov District Court

Case № 1 (005)-116/2020

07 August 2020

Judge: Vusal Gurbanov

Defendant: Pasha Umudov

 Defender: Zubeida Sadigova

 

The State Prosecutor: Tural Qahramanov, the Prosecutor of the Department on Support of Public Prosecutions of Baku City Courts of the General Prosecutor’s Office of the Azerbaijan Republic

Pasha Umudov is the Nizami branch at Chairman of the Popular Front Party of Azerbaijan (PFPA), and also a personal driver of PFPA leader Ali Karimli. On 16 October 2019, Pasha Umudov was arrested prior to the meeting scheduled by the National Council of Democratic Forces on 19 October 2019. For several days his place was unknown. During these days dozens of PFPA members were arrested, and some of them were brought to administrative charges from 15 to 60 days of administrative arrest.

Then, it became known that Pasha Umudov was charged with criminal charges under the Article 234.2 (Illegal purchase or storage with a view of selling, manufacturing, processing, transportation, transfer or selling of narcotics or psychotropic substances)

of the Criminal Code of the Azerbaijan Republic. A preventive measure in the form of arrest has been selected against P. Umudov, which subsequently was extended.

On 24 October 2019, a video recording was shown on the state TV channels and the Internet resources, where four men (Pasha Umudov, Bayram Heydarov, Rauf Quliyev, Mais Mammadov) confessed that they had been using and selling drugs. – https://apa.az/az/hadise/axcp-sedrinin-surucusu-narkotik-madde-satdigini-etiraf-edib-556250

After the completion of the preliminary investigation, the case was transferred for hearing to the Baku City Narimanov District Court. On 16 March 2020, the Public Prosecutor announced an accusation act stating that employees of the Department on combating against organized crime of the Azerbaijani Ministry of Internal Affairs found three parcels with narcotic substance in Pasha Umudov’s pocket. In the course of the trial Pasha Umudov did not plead guilty and stated that the found drugs were thrown to him by the employees of the Department, and everything written in the indictment was a lie. The PFPA stated that Umudov’s arrest had been related to his political activities, and also to the fact that he was Ali Karimli’s driver.

During the trial Pasha Umudov testified that 6 times he had been forced to incriminate himself and his “confessions” had been recorder on video. The policemen insisted that P. Umudov emphasized that he had been Ali Karimli’s driver.

At the trial, Pasha Umudov also said that when he found the drugs, he pulled them out and threw them on the floor, but the Department officials once again put the drug in his pocket.

On 7 August 2020, the Baku City Narimanov District Court ruled a verdict against Pasha Umudov. He was found guilty in committing a crime under the Article 234.2 of the Criminal Code and sentenced to 4 years and 6 months of imprisonment.

It is worth noting that neither media representatives, nor civil society representatives, nor friends and relatives of the defendant were allowed into the courtroom during the hearing.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. As mentioned above, Pasha Umudov was forced to admit his guilt publicly. According to the Article 66 of the Constitution of the Azerbaijan Republic, nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister. Complete list of relations against whom testifying is not obligatory is specified by law.

However, this is prohibited according to the Article 20 of the AR Criminal Procedure Code of the Azerbaijan Republic. According to the Article 20.1 of the Code of Criminal Procedure of the Azerbaijan Republic, nobody may be forced to testify against himself or his close relatives, or be prosecuted on this basis.

Apart from the participants of the trial, no one else was admitted to the courtroom. According to the Article 127 of the Constitution of the Azerbaijan Republic, in all law courts hearing of legal cases shall be open. It is allowed to have closed hearing of legal cases only if the law court decides that open hearings may result in disclosure of state, professional or commercial secrets, or that it is necessary to keep confidentiality with respect to personal or family life.

According to the Article 27.1 of the Criminal Procedure Code of the Azerbaijan Republic, while safeguarding state, professional, commercial, personal and family secrets in accordance with this Code, court hearings in criminal cases and on other prosecution

material shall be held publicly in all courts of the Azerbaijan Republic.

Those, wishing to attend the trial, were not allowed into the courtroom. The reason for refusal was explained by the coronavirus pandemic, as well as by the relevant informative recommendation of the Supreme Court of the Azerbaijan Republic from 15 May 2020.

According to the recommendation paragraph 1.1.3, it is prohibited to gather more than 10 people at one place in the court halls, including the court administrative buildings. Yet, this recommendation of the Azerbaijan Republic Supreme Court was violated. Firstly, there were: the accused, the defence counsel, the prosecutor, the judge, the secretary of the court session, all together 4 people, which means another 4 or 5 could have been allowed into the courtroom.

Secondly, according to the paragraph 2.2.2. of the Decree of the President of the Azerbaijan Republic on “Creation of the informative “Electronic Court” system” from 13 February 2014, on criminal, civil, commercial, administrative cases and cases on administrative violations, the court proceedings can be conducted in electronic mode. Although, this decree was adopted back in 2014, it was not implemented during the pandemic. Rather than ensuring the openness of the judicial process and providing the technical facilities for parties to stream online, the courts chose to carry out the trials entirely behind closed doors.

It is known that in Russia, for example, the trials are held openly during the pandemic, taking into account the above mentioned practice. The trials on “sensitive cases” are conducted through Youtube broadcasts, or through the social network Facebook.  Using another option to arrange court hearings openly by means of the technical court procurement, i.e. to set up a monitor in a place where it will be accessible for people willing to watch the trial. All of the above indicates that the open trial was not considered by the Baku City Narimanov District Court. That’s why none of the options provided by the legislation for holding open hearings has been used.

The principle of transparency is protected by the International Legislation Norma, in particular by the Article 6 Paragraph 1 of the European Convention on Human Rights Protection and Fundamental Freedoms, the Article 14 Paragraph 1 of the International Covenant on Civil and Political Rights and the Article 11 paragraph 1 of the Universal Declaration of Human Rights.

Thus, one of the fundamental principles of fair trial was grossly violated by the Narimanov District Court of Baku City.

As it was mentioned above, Pasha Umudov revealed in the course of the trial that he had been forced to stipulate himself 6 times and his “confessions” had been recorded on video in the” Department for the fight against organized crime” of the Ministry of Internal Affairs of the Azerbaijan Republic. This video recording, showing Pasha Umudov and three others “confessing” to what they had done, was broadcasted on the state TV channels and spread on the Internet long before the trial-itself.

The indicated distribution of the video recording with “confessions” violated the Article 66 of the Azerbaijan Republic Constitution and grossly violated the principle “presumption of innocence”. The distribution of the recorded video on local central TV channels, as well as on news feeds of pro-government websites, was intended to show the society the accused’s ” guilt ” prior the court verdict against him.

According to the Article 63 of the Constitution of the Azerbaijan Republic, (1) Everyone is entitled for presumption of innocence. Everyone who is accused of crime shall be considered innocent until his guilt is proved legally and if no verdict of law court has been brought into force. And (5) nobody may be accused of crime without the verdict of law court.

Article 21 of the Criminal Procedure Code of the Azerbaijan Republic states:

21.1. Any person suspected of committing an offence shall be found innocent if his

guilt is not proven in accordance with this Code and if the court has not delivered a final judgment to that effect.

21.2. Even if there are reasonable suspicions as to the guilt of the person, this shall not cause the latter to be found guilty. The accused (the suspect) shall receive the benefit of any doubts which cannot be removed in the process of proving the charge in accordance with the provisions of this Code, within the appropriate legal proceedings. He shall likewise receive the benefit of any doubts which are not removed in the application of criminal law and criminal procedure legislation;

The International Legislation ratified by the Azerbaijan Republic also protects the principle of the presumption of innocence.

Thus, the Article 6 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms states “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

The Article 14, Paragraph 2, of the International Covenant on Civil and Political Rights as well as the Article 11 of the Universal Declaration of Human Rights also require observance of the principle of the presumption of innocence.

The investigation, and subsequently the court, could not prove that the bundle found in Pasha Umudov’s pocket belonged to the accused or he had been aware of it. The investigation had no irrefutable evidence of P. Umudov’s guilt.

The investigation and court’s conclusions were based on unconfirmed suspicions. In this case, the defendant should have been acquitted.

According to the Article 21 of the Criminal Procedure Code of the Azerbaijan Republic, acquittal shall be ordered in the following circumstances:

42.2.1. on the grounds of Article 42.1.1. of this Code if it is proven that the act did not take place or the act was not shown to be a criminal act;

42.2.2. on the grounds of Article 42.1.2. of this Code if there is no criminal content in the act of the accused or if there are circumstances which show that the act was not an offence;

42.2.3. on the grounds of Article 42.1.3. of this Code if the person is proven not to have any link with the offence of which he is accused or if that link is not proven;

42.2.4. on the grounds of Article 42.1.4. of this Code if there is not sufficient evidence to prove guilt or if the evidence collected proves the accused’s innocence.

Taking into account all the above, it is obvious that the conviction of Pasha Umudov violated a number of National and International legal Norms, primarily the right to liberty and security of person, the right to the presumption of innocence, the right to a fair trial and other equally important rights enshrined in the International Law.

 

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If you are an opposition member, then you are guilty

IF YOU ARE AN OPPOSITION MEMBER,

THEN YOU ARE GUILTY

Tazakhan Miralamly

Analysis of violation of law during Tazakhan Miralamly’s judicial proceedings

Baku City Khatai District Court

Case № 1 (011)-139/2020

19 June 2020

Judge: Farid Yaqubov

Defendant: Tazakhan Miralamly

Defenders: Sara Aliyeva, Bahruz Bayramov

The State Prosecutor: Sadiq Akbarov, a prosecutor of the Baku Office within the State Prosecution Support Department of the General Prosecutor’s Office of the Azerbaijan Republic

Victim: Ata Abdullayev

Victim’s defender: Telman Talybov

 

On 26 February 2020, on the day of the Khojaly tragedy, Tazakhan Miralamly, a journalist and APF member, along with other members of the Popular Front of Azerbaijan, attended a ceremony that took place in front of the monument commemorating the victims of the horrible massacre in Khojaly. Ata Abdullayev, a pro-government blogger known as a provocateur in opposition circles, was also there at the mourning ceremony.

Later, Abdullayev claimed that on that day, T. Miralamly slapped him in his face, leaving traces and bruises on the impact. T. Miralamly, in his turn, stated that he had never inflicted any bodily injuries to Abdullayev.

In March 2020, A. Abdullayev posted on his Facebook page the investigator’s initiating order, however the defendant’s name was not disclosed. T. Miralamly denied that he had been informed about the initiation of criminal proceedings against him, although the investigator’s order was dated 11 March 2020.

The Criminal case against Tazakhan Miralamly was initiated under the Article 221.1 (Hooliganism) of the Criminal Code of Azerbaijan Republic.

According to the investigation version, on 26 February 2020, at about 2 p.m., T. Miralamly, a journalist, violated public order by striking Ata Abdullayev in the face without any reason, inflicting injuries that did not affect his health.

  1. Miralamly did not plead guilty to the charges, and testified that he, as a reporter in the newspaper “Azadliq” (“Freedom”), was filming the politicians who came to the monument of the victims of Khojaly, “Mother’s Suffering”, at about 13.00 on 26 February 2020. People who came to the memorial were allowed to visit just a few at a time. Ali Karimli, the leader of the Popular Front of Azerbaijan, was also among those who came to the monument. Ata Abdullayev abusively addressed A. Karimli and other people, which is seen in the video recording. Despite the requests of other journalists attending the ceremony to stop, Ata Abdullayev, paying no attention to anyone, continued loudly insulting Ali Karimli and other people. At some point when A. Abdullayev shouted “Ali Karimli, you committed the tragedy in Khojaly”, T. Miralamly approached A. Abdullayev and pushed him away. After that, T. Miralamly continued shooting or filming.

Т. Miralamly also indicated that after this incident he had had no relations, had not seen A. Abdullayev. In addition, he testified that he had not committed any criminal actions specified in the Article 221.1. of the Criminal Code of the Azerbaijan Republic.

On 19 June 2020, the Baku Khatai District Court ruled against the journalist: find Tazakhan Miralamly guilty of committing a crime under the Article 221.1 of the Criminal Code of Azerbaijan Republic and sentence him to 1 year of freedom restriction. The Court upheld the preventive measure against the journalist that had been previously chosen in the form of a abstaining from travelling. According to the sentence, the restriction of freedom was as follows: not to leave the place of residence from 23.00 to 07.00; to wear the electronic device and keep it in good condition; not to leave the boundaries of Baku city; not to change the place of residence without the court order as well as notify in advance about the change of the place of work or place of study.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. As mentioned above, T. Miralamly was not informed about the initiation of criminal proceedings; he learned about it from Ata Abdullayev’s Facebook posting. However, the Article 224 of the Criminal Procedure Code of the Azerbaijan Republic stipulates the following procedure for bringing charges:

  • Within 48 hours of the investigator’s decision to prefer charges, and, in any case, not later than the day when the accused gives himself up or is forcibly brought before the prosecuting authority, he shall be formally charged.
  • After verifying the identity of the accused, the investigator shall inform him of the decision to prefer charges and explain the nature of the charges. The investigator and the accused shall sign the decision as confirmation of the formal announcement of the charges and its date and time. Defence counsel shall be entitled to attend the formal announcement of the charges.
  • After announcing the charges, the investigator shall explain to the accused his rights and duties under Article 91 of this Code. The accused shall be given a copy of the decision to prefer charges and written notification of his rights and duties. The investigator shall draw up a record of the formal announcement of charges, explanation of the accused’s rights and duties and transmittal of a copy of the decision. This record shall be signed by the investigator, the accused and defence counsel (if present).
  • If the accused or defence counsel refuses to sign the decision or the record, the investigator shall note this in the record, stating the reasons for it, and shall inform the prosecutor in charge of the procedural aspects of the investigation within 24 hours.

Having carefully read the verdict, it becomes clear that there is no further evidence of T. Miralamly’s guilt other than the testimony of two witnesses of the prosecution, or forensic medical examination of physical injuries. The testimony of prosecution were provided by Vadat Ismayilov, an acquaintance of Ata Abdullayev, and Rashad Borchaliyev, an employee of the agency www.xeber.az.

Forensic medical examination indicated that A. Abdullayev had blunt-force trauma on his jaw, and the injury could take place on 26 February 2020.

If we pay attention to the Article 124.1 of the of the Criminal Procedure Code of the Azerbaijan Republic, we will learn what evidence is. Thus, evidences in criminal proceedings are credible elements (information, documents, things) obtained by the court or parties of the criminal proceedings. Whereas in this case there are the following discrepancy:

124.1.1. shall be obtained in accordance with the requirements of the Code of Criminal Procedure, without restriction of constitutional human and civil rights and liberties or with restrictions on the grounds of a court decision (on the basis of the investigator‘s decision in the urgent cases described in this Code);

124.1.2. shall be produced in order to show whether or not the act was a criminal one, whether or not the act committed had the ingredients of an offence, whether or not the act was committed by the accused, whether or not he is guilty, and other circumstances essential to determining the charge correctly.

Witnesses’ testimonies are not supported by any other proof, except for the forensic medical report from 29 February 2020. It is known that the expert opinion is not binding for an investigator, prosecutor or court; it, like any other evidence, must be checked and evaluated by the body conducting the criminal proceedings in connection with all the circumstances of the case.

In this case, the court accepted the statement as the principal evidence without supporting it with other reliable evidence. As mentioned above, the physical examination was carried out on 29 February three days after the incident.

Besides, the video where T. Miralamly ran up to A. Abdullayev was circulated in the social networks and sites, yet, the punch itself was not captured.

  1. Miralamly was accused of committing a crime under the Article 221.1. of the Criminal Code (Hooliganism). In order to incriminate this Article, a specific should be a crime, in this case hooliganism, with the following features:
  • violation of public order;
  • open manifestation of disrespect to society;
  • use or threat or use of force;
  • damage or destruction of someone else’s property.

The Decision of the Plenum of the Constitutional Court “On Interpretation of Article 221 of the Criminal Code of the Azerbaijan Republic” dated 20 May 2011, states that hooliganism is referred to the category of the crimes with regard to public order. The primary object of this crime is public order. A subsidiary object is human health, honour and dignity, as well as his/her property. Despite the fact that the wording of the Article 221 of the Criminal Code of the Azerbaijan Republic specifies different actions, they all have three essential features:

  • these actions are supposed to violate the public order;
  • they should be expressed in open manifestation of disrespect to society;
  • the use or threat of force, including damage to or destruction of property.

There was no combination of all these three features in the journalist’s actions, which means that there was no criminal act.

In the criminal law, public order is understood as the combination of interpersonal relationships in society that ensure public order, individual and property inviolability, and the normal functioning of state and public institutions.

Actions that roughly violate public order are those that cause significant damage to public or private interests or the ones that are expressed in a biased violation of the rules of coexistence and etiquette established in society.

Gross violation of public order, manifested in flagrant disrespect for society are the actions of the violator threatening the normal life and activities of citizens, departments, enterprises and other organizations, and arousing fear and anxiety.

The term “use of force” should be interpreted as beating, harm to health, and other forms of violence that have a physical impact on the victim. The phenomenon of hooliganism violence is an expression of the intent to use physical force by means of words or actions. The liability for the threat arises when there are real grounds for implementation of the threat.

The total loss of the economic and historical value of other people’ property means that the property is completely lost, whereas the damage means that the property is not fully or partially fulfilled as intended, but damaged to the extent that it can be restored.

This refers to the definition of the characteristics of hooliganism specified in the Resolution of the Plenum of the Constitutional Court dated 20 May 2011.

According to the Article 87.1. of the Code of Criminal Procedure of the Azerbaijan Republic, if there are sufficient grounds to show that the individual suffered direct nonmaterial, physical or material damage as a result of the act provided for in criminal law, he shall be referred to as a victim.

Taking into account the lack of crime elements, A. Abdullayev could not be considered a victim, since there were not sufficient grounds in the case to assume that he had suffered from the physical harm caused to him by the offender.

The lack of criminal elements indicates the absence of the crime, i. e. the court issued a biased, one-sided, unmotivated sentence against the journalist.

According to the Article 349.5 of the Code of Criminal Procedure of the Azerbaijan Republic, in the following cases the court judgment shall be considered well-founded:

349.5.1. if the conclusions at which the court arrives are based only on the evidence

examined during the court’s investigation of the case;

349.5.2. if the evidence is sufficient to assess the charge;

349.5.3. if the facts established by the court are consistent with the evidence

investigated.

Article 351.2. of the Code of Criminal Procedure of the Azerbaijan Republic states, that a conviction by the court may not be based on assumptions and shall be handed down only where guilt of the accused is proved during the court’s examination of the case.

This verdict is based on assumptions rather than on a set of concrete evidences and arguments. The motivation of the sentence is also provided by the Article 6 (1) of the European Convention on Human Rights and Fundamental Freedoms. Whilst this Article does not stipulate it, the numerous case law of the European Court of Human Rights has developed a practice whereby domestic courts are obliged to motivate the sentences handed down.

 

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