THE COURTS CONTINUE TO FLAGRANTLY VIOLATE IMRAN ALIYEV’S RIGHTS

Imran Aliyev

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

Baku City Court of Appeal trial, Criminal Collegium Case

30 August 2024

Presiding judge: Habil Mammadov

Judges: Mirzali Abbasov, Farid Eyyubov

Defendant: Imran Aliyev

Defender: Qanqa Ibrahimov

With the participation of Togrul Huseynov, a major of police and Senior Investigator at the Investigation Division for Serious Crimes within the Investigation and Inquiry Department of the Baku City Police Headquarters, and Emil Alizade, a Prosecutor at the Department for Supervision over the Execution of Laws in the Investigation, Inquiry and Investigative Activity of the Baku Internal Affairs Bodies Prosecutor’s Office

On 18 April 2024, Imran Aliyev, the site www.meclis.info manager, was detained at Baku International Airport. While being detained, he recorded a video message saying that he had been about to leave the country for Istanbul, but he was detained by the border police. Following his detention, he was taken to the Baku City Police Department. The police officers searched Imran Aliyev’s house the same night.

Imran Aliyev became yet another journalist who was detained within the criminal case against Abzas Media under the Article 206.3.2 (Smuggling, is moving large amount through customs border of the Republic of Azerbaijan of goods or other subjects, committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic (CC AR) launched on 20 November 2023.

Both, the investigator and Prosecutor, applied to the Court with a request to choose a preventive measure against Iran Aliyev in the form of arrest for a period of 2 months and 1 day.

In the course of trial, I.Aliyev did not plead guilty to the charges and testified that the police officers had exerted on him psychological and physical pressure. He also stated that he had undertaken to appear upon the investigation and judicial summons and would not influence either parties in any way, and therefore asked the Court to dismiss the investigator’s petition and Prosecutor’s submission. The defendant’s lawyer also urged the Court to reject the above-mentioned petition and submission.

It should be noted that Imran Aliyev had visible bruises and hematomas under his eyes when he was brought to the Khatai District Court on 19 April 2024.

 

On 19 April 2024, the Khatai District Court issued a ruling against Imran Aliyev to satisfy the investigator’s petition and Prosecutor’s submission to impose a measure of restraint in the form of arrest for a period of 2 months and 1 day. More details see:  https://www.ipd-az.org/ru/imran-aliyevs-right-to-freedom-and-physical-and-psychological-integrity-was-grossly-violated-by-the-court/

The defence appeal did not bring any results, and the court ruling of 19 April 2024 was upheld.

On 13 June 2024, the Baku City Khatai District Court again issued an order to extend the preventive measure for another 2 months and 7 days, i.e. until 27 August 2024.

On 25 June 2024, the Baku City Court of Appeal upheld the first instance court’s ruling dated 13 June, 2024.

Due to the fact that the period of the preventive measure was about to end on 27 August 2024, on 22 August 2024, the Baku City Khatai District Court, reissued an order to extend the term of arrest for another 2 months and 22 days, i.e. until 19 November 2024, on the grounds of the investigator’s petition and prosecutor’s submission.

The defence appealed to the Court with a request to annul the aforementioned ruling of the Court of First Instance from 22 August 2024.

On 30 August 2024, the Baku City Court of Appeal issued a ruling that rejected the defence’s appeal and upheld the first instance court’s ruling dated 22 August 2024.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The Article 154.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

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

According to the Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic, restrictive measures may be the following:

• arrest;
• house arrest;
• bail;
• restraining order;
• personal surety;
• surety offered by an organisation;
• police supervision;
• supervision;
• military observation;
• removal from office or position.

The period of preventive measure in the form of arrest against Imran Aliyev was extended by the Court several times, upon the investigator’s motion and prosecutor’s submission, and without providing any specific arguments to the court to justify the election of such measure of restraint in the form of arrest, and the illegal extension of its duration.

At the trial, the accused stated that he had been interested in the investigation of his case, since he had been illegally imprisoned for four months.

In the ruling, there are the following grounds for the imposition and extension of the preventive measure: potential to abscond from the investigation and court, obstruct the normal course of the investigation, influencing the witnesses and committing a new offence.

As for the ground of hiding from the investigation, it should be noted that Imran Aliyev was detained at the Baku airport. He was informed about the ban on travelling out of the country. It means that under no circumstances, Imran Aliyev will not be able to leave the country, in case of a travel ban. Therefore, this court’s argument is irrational. Moreover, it is not substantiated by any kind of proof. The investigative body and court merely indicated it in the ruling, as it is listed among other grounds in the criminal procedure legislation. However, this ground is nothing else but words without valid arguments.

The investigation’s petition and court’s ruling also referred to the other ground, i.e. unlawful pressure on those involved in the criminal proceedings. In the course of trial Imran Aliyev said that he hadn’t familiarised with the list of witnesses, and therefore, he could not influence anyone. Besides, he noted that only one investigative operation with his participation had been conducted during those four months. According to the investigation and court, that criminal case, in which the accused Imran Aliyev had been involved, was different in terms of complexity, which required additional time in order to implement additional investigative operations. However, for carrying them out, keeping the accused under arrest was not essential. The defence was eager to provide the court with assurances that in case of changing the measure of restraint from detention to house arrest, the defendant would turn up when summoned by the investigation. However, the Court declined it without providing any substantiated grounds.

The Article 155.2  of the Code of Criminal Procedure of the Azerbaijan Republic states, 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.

As it is said in paragraph 4 of the Supreme Court Plenum Decision ‘On the judicial practice in considering implementation of preventive measures in the form of detention and house arrest’ issued on 3 November 2009, it has been explained to the courts that when considering applications for the imposition of a preventive measure in the form of arrest, they must first of all consider the feasibility of imposing other preventive measures provided for under the Article 154 of the Code of Criminal Procedure of the Azerbaijan Republic, as well as justify the inapplicability of preventive measures other than arrest.

The Court did not consider any alternative preventive measures in its ruling granting an extension of the preventive measure against Imran Aliyev.

According to the Article 447.5 of the Code of Criminal Procedure of the Azerbaijan Republic,

In connection with the compulsory conduct of an investigative procedure or the application of a coercive procedural measure, the judge shall have the right to hear statements, to summon for questioning persons who confirm or deny the circumstances indicated in the application and to request the documents and material evidence required to verify the grounds for the application.

Para 8 of the Resolution adopted by the Plenum of the Supreme Court states,

‘It should be clarified to the Courts that the legal investigation in the above mentioned procedure does not include guilt determination, but only verification of the preliminary evidence specified in the application and submission indicating that a defendant has committed an act stipulated by the Criminal Law, as well as the procedural grounds for imposing a preventive measure’.

The paragraph 3 of the Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms reads:

Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

The judgment of the European Court of Human Rights (ECHR) in the case of Smirnova v. Russia dated 24 July, 2003, states,

1. In examining the length of detention undergone subsequent to the date of entry of the Convention into force, the Court takes account of the stage which the proceedings had reached. To that extent, therefore, it may have regard to the previous detention (see Ventura v. Italy, no. 7438/76, Commission decision of 9 March 1978, Decisions and Reports (DR) 12, p. 38).
2. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (see, as a classic authority, Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, pp. 24-25, § 12; Yagci and Sargin v. Turkey, judgment of 8 June 1995, Series A no. 319-A, § 52). – https://hudoc.echr.coe.int/?i=001-61262

The investigation and Court did not have any valid arguments to detain Imran Aliyev and repeatedly extend his arrest.

Keeping him in custody was not necessary to prevent further wrongdoing, as stated in the Court’s ruling. Imran Aliyev’s personality and lack of previous convictions in no way suggested that he might be involved in any criminal offence.  Neither was there any ground for suspicion that his release could lead to a disturbance of public order.

The above judgement of the European Court of Justice said:

1. The danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre-trial detention. In this context regard must be had in particular to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts (see W. v. Switzerland, judgment of 26 January 1993, Series A no. 254-A, § 33 with further references).
2. The issue of whether a period of detention is reasonable cannot be assessed in abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see W. v. Switzerland, cited above, § 30).
3. Arguments for and against release must not be “general and abstract”. – https://hudoc.echr.coe.int/?i=001-61262

The judgment of the ECHR in the case of Van der Tang v. Spain dated 13 July, 1995, states,

“The domestic courts are primarily responsible for ensuring that the accused’s pretrial detention does not exceed reasonable limits in each case. To that end, they must consider all the circumstances that make apparent the existence of a public interest which, in the light of the presumption of innocence, would justify exceptions to the general rule of respect for individual liberty, and take them into account as part of their judgements on the requests for release.”.- https://hudoc.echr.coe.int/?i=001-57946

In view of the above, we can conclude that the unjustified and unlawful order on arrest and its extension in respect of Imran Aliyev, in which there were no arguments justifying the arrest, violated the Right to Freedom and Personal Inviolability guaranteed by the Constitution of the Azerbaijan Republic, Article 28, and the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1).

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EVEN IF YOU ARE A CITIZEN OF ANOTHER COUNTRY YOU COULD BE ARRESTED FOR CRITICISING ILHAM ALIYEV

Mirhafiz Jafarzade

Analysis of violation of law during Mirhafiz Jafarzade’s judicial proceedings

Baku City Grave Crimes Court

Case № 1(101)-427/2024 10 October 2024

Presiding Judge: Sabina Mammadzade

Judges: Ali Mammadov, Azad Madjidov

Defendant: Mirhafiz Jafarzade

Defender: Akif Aliyev

The State Prosecutor: Ziya Mansurov, a Prosecutor from the Division for Support of the State Prosecution in Courts on Grave Crimes  within the Support of State Prosecution Department at the General Prosecutor’s Office of the Azerbaijan Republic

Mirhafiz Jafarzade (born in 1966), a citizen of the Azerbaijan Republic and, since 2009, also a Russian Federation citizen, has been engaged in private different countries trades. While studying he had been actively participating in the social and political life of the country, on 20 January, 1990, he along with other society representatives came out to protest against the Soviet troops intrusion into Azerbaijan. After becoming a Russian citizen in 2009, he had not visited Azerbaijan for a long time. In February 2020, M. Jafarzadeh came over in Azerbaijan for a short time and then returned back to Russia. However, in July 2021, he again came to Azerbaijan.

On 24 September 2021, M. Jafarzade was detained by the State Security Service of Azerbaijan at the Baku airport. A few hours later he was released, but on 11 November 2022, M. Jafarzadeh was again detained by the State Security Service officers near Koroglu metro station in Baku.

He was charged with committing offences under the Articles 274 (High treason) and 283.1 (The actions directed on excitation of national, racial, social or religious hate and hostility, humiliation of national advantage, as well as actions directed on restriction of citizens rights, or establishment of the superiority of citizens on the basis of their national or racial, social belonging, creeds committed publicly, including with use of mass media) of the Criminal Code of the Azerbaijan Republic. M. Jafarzade was taken into custody for the period of 4 months that was subsequently extended.

The detainee, M. Jafarzade, who was interrogated at the trial, did not plead guilty to the charges and called it ‘absurd’. He also proved that the facts of the case were fabricated by the body conducting the criminal proceedings. In addition, he testified that he had never used a profile called ‘Rost Merd’ on Facebook but used another name — ‘Hafiz Jafar’. In his opinion the investigating authority first detained him and then ‘invented’ the charges. In the course of his detention, he was asked about Talyshs living in the Russian Federation.

Javid Aliyev, questioned as a witness at the trial, said that the accused used to publish the posts against the state on Facebook, under which M. Jafarzade expressed his discontent and called for solidarity with everyone. The witness soon blocked his account and currently does not use any social networks.

Yunus Gulamov, questioned as a witness at the trial, testified that he has been using the social network Facebook since 2010. He was questioned in connection with his comment written 3-4 years ago. In 2020, during the second Karabakh war, it was created a Facebook page where he left a comment. However, he does not remember what exactly he wrote then. The witness though remembered that his comment was an objection on the words that the fighters in Karabakh war had been representatives of other nationalities.

Another witness, Ilqar Safarov, also testified about the written FB posts.

Bahruz Gasymov, yet, another witness, said that he had received a phone call from the State Security Service of Azerbaijan. His father answered the phone call and was informed that Gasymov should urgently come to the State Security Service Department of Lankaran district. There he was given a summons to go to Baku. He was also asked why he had put a ‘heart’ and written a comment under the ‘Rost Merd’ post, under which, according to the investigation body, M. Jafarzade had been hiding. The witness explained that the ‘Rost Merd’ had criticised the disrespect for Azerbaijani Shehids (Martyrs), and he agreed and supported it with a comment. In the course of interrogation at the department, he was shown a several photographs, on one of which he recognised M. Jafarzade; they used to live in the same neighbourhood and had the same teachers at school. When B. Gasymov was told that M. Jafarzade had been hiding under the name ‘Rost Merd’, he was sincerely surprised.

Azer Ahadov and Anar Heydarov were also questioned as witnesses, and commented the posts published on the page of ‘Rost Merd’ on Facebook.

The testimonies of other witnesses were only voiced at the trial.

According to the forensic phonoscopic examination dated 6 January 2023, the voice and speech recorded on the optical disc was attributed to M. Jafarzade.

The forensic linguistic examination report from 1 April 2023, stated that the ‘Rost Merd’ post on the Facebook had contained expressions inciting national, racial, social or religious hatred and enmity.

The testimony of the accused M. Jafarzade the Court considered as irrelevant and having a defence nature. The Court didn’t find either mitigating or aggravating guilt evedences in the criminal case.

On 10 October 2024, the Baku City Court Grave Crimes, having considered the criminal case in closed proceedings, passed a verdict against M. Jafarzade: guilty of the charges and sentence him to 16-year-period of imprisonment to be served in a high-security penal institution.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

One of the charges brought against M. Jafarzade is the state treason. The Article 274 of the Criminal Code of the Azerbaijan Republic discloses what it is meant:

High treason, that is deliberately action committed by a citizen of the Republic of Azerbaijan to detriment of the sovereignty, territorial integrity, state security or defensibility of the Republic of Azerbaijan: changeover to enemy side, espionage, distribution of the state secret to foreign state, rendering assistance to a foreign state, foreign organization or their representatives in realization of hostile activity against the Republic of Azerbaijan.

The signs of committing this offence are those specified in the Article 274 of the Criminal Code of the Azerbaijan Republic, e.g.:

• acts committed to the detriment of the sovereignty, territorial integrity, state security or defence of the Azerbaijan Republic
• defecting to the enemy
• espionage
• the disclosure of state secrets to a foreign state
• assisting a foreign State, or foreign organisation, or their representatives in carrying out a hostile activity against the Azerbaijan Republic.

What are the listed points?

Espionage means:  a foreign citizen collects the information that constitutes state secrets or any other data, steals or hides it in order to transfer this date to a foreign state or its representatives in purpose to use it against the republic security.

A state secret is any information in the field of military, foreign policy, economic, scientific and technological, intelligence, counterintelligence and investigative activities, the disclosure of which may cause damage to the national security. The list of such information is determined by the state, and the state also determines the secrecy level to be assigned to the data. Prior to issuing state secrets, it is necessary to obtain them. To get access to it, you can either by means of work or duty. At that time, a person who passes such information to a foreign state, clearly understands that this information is indeed state secrets. It is almost impossible to mix it up with publicly available information since the secret documents are transmitted only upon signature, and they are labelled as confidential.

Assisting a foreign state in activities that are directed against the country security. Such assistance might be: financial, logistical, advisory, or other kind. Or defection to the side of the enemy, when a citizen participates in an armed conflict or other activities with the use of weapons and military equipment on the side of the enemy. It is not an offence when a citizen accidentally or deliberately finds himself in a state that is engaged in hostilities against his country. The most important thing is that this individual does not take up a weapon to help the enemy’s armed formations. The corpus delicti will emerge when a citizen begins to provide active assistance to the opposing side. For example, he/she starts to operate a combat vehicle – https://journal.tinkoff.ru/guide/izmena/

So, we have analysed the features of the criminal activities called ‘high treason’. It is clear that in order to bring this charge, it is required a strong and irrefutable evidentiary basis. Moreover, the investigative body should prove each of the feature that takes place in a particular criminal case.

What evidences do we have in the case on the charges against M. Jafarzade?

The investigating authority refers to a correspondence allegedly between M. Jafarzade and a certain O.M on the Telegram mobile application group. In the course of the trial, the accused testified that he hadn’t ever met that man, who, according to the investigation, had emigrated to the Iranian Islamic Republic. In the conversation between M. Jafarzade and O.M., it was mentioned a certain military warehouse, which had once been seized by Aliakram Humbatov, who in 1993 was arrested in Azerbaijan, but a year later managed to escape from the detention centre, in 1995, he was arrested again, and in 1996, he was sentenced to death; two years later, the death penalty was replaced with a life sentence; on 3 September 2004, he was granted a pardon by the Presidential Decree, deprived of Azerbaijani citizenship and deported to Holland, where he died on 22 December 2022.

Even if we take into account the fact that, according to the investigation and Court, M. Jafarzade transferred the secret information concerning the location of the warehouse, the Court was obliged to indicate whether that information had been really confidential? If so, it should have investigated how the information had been passed to M. Jafarzade, and who had been responsible for its leaking? What is meant by the concept of ‘switching to the side of the enemy’? Who is the ‘enemy of the country’? Did the accused provide any assistance (financial, logistical, counselling or other) to the enemy? Is Iran a country that can be considered hostile to Azerbaijan?

Unfortunately, all those questions have not been answered either by the investigative body (no evidence or proof) or by the Court that considered the criminal case.

At the trial, the defendant argued that the evidences presented by the investigation were falsified. Despite that objection, the Court did not take any steps to eliminate the contradictions.

The second charge is of incitement to national, racial, social or religious hatred and enmity. In this particular case, it is a national one.

The objective side of the crime is characterised by the actions aimed at inciting hatred or enmity, as well as at humiliating an individual’s or group of people dignity on the grounds of sex, race, nationality, language, origin, attitude to religion, or association to a social group. Incitement to such hatred or enmity means an attempt to create conflicts between citizens of different ethnicities, races, confessions (their religious affiliation) or social groups, committed publicly or with the use of the mass media or information and telecommunications networks, including the Internet. The subjective side is characterised by an intent to incite hatred or enmity or humiliate the dignity of an individual (or group of individuals) on the basis of the above-mentioned characteristics. The statements or expressions of judgement that exploit facts of inter-ethnic, inter-confessional or other social attitudes in scientific or political discussions and texts that do not seek to achieve these goals do not fall under the scope of criminal law. – https://www.ugolkod.ru/statya-282

Thus, in order to constitute an offence under the Article 283.1 of the Criminal Code of the Azerbaijan Republic, there must be a direct intent to incite interethnic hatred in a particular case. Was there such an intent in M. Jafarzadeh’s actions and what did this intent consist of? The investigation did not provide irrefutable evidence in that regard.

As it is said in the verdict: M. Jafarzade stated that the Facebook profile under the name ‘Rost Merd’, attributed to the accused by the investigation, had not actually belonged to him. It should be taken into account the miserable practice of the AR investigative authorities is to create and manage fake social profiles by themselves in order to prove their case or accusation. It has often happened in various criminal cases.

In order to support its position and eliminate doubts, the investigating authority should have presented a sufficient amount of evidence supporting one another.

In addition to the violation of the substantive law norms, the norms of procedural law were also violated in respect of M. Jafarzade. Thus, the State Security Service press service tried to create an image of a criminal out of Jafarzade by spreading biased information in media resources regarding the case in the absence of a guilty verdict. The circulated information led to the negative portrayal of M. Jafarzade among the people he acquainted with. According to the accused, it was done in order to prevent anyone from daring to defend him.

The principle of presumption of innocence is enshrined in the Article 63 of the Azerbaijani Constitution. It says:

1. Everyone has the right to presumption of innocence. Everyone who is accused of crime shall be considered innocent until his/her guilt has been proven according to law and verdict of law court has been brought into force.

Besides the provisions of domestic law, the principle of presumption of innocence is also enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(2). It says:

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

The judgment of the European Court of Human Rights (ECHR) in the case of Allenet de Ribemont v. France dated 10 February1995, said,

‘The freedom of expression as guaranteed by the Convention, Article 10, extends to the freedom to receive and impart information. Consequently, under the Article 6 para. 2, the authorities cannot be prevented from informing the public about ongoing criminal investigations, but they must do so with restraint and sensitivity, as required in accordance with the respect for the presumption of innocence.” – – https://hudoc.echr.coe.int/?i=001-57914

The above mentioned enables us to conclude that the biased and prejudiced attitude of the investigative body and Court led to the violation of a number of fundamental rights in a democratic society, namely the right to a high quality legal defence, the right to presumption of innocence, the right to liberty and personal inviolability and, in general, the right to a fair trial in respect of M. Jafarzade.

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THE LACK OF AN INDEPENDENT JUDICIARY HAS ONCE AGAIN LED TO THE VIOLATION OF THE AZERBAIJANI CITIZENS RIGHTS

Ruslan Izzatli

Analysis of violation of law during Ruslan Izzatli’s judicial proceedings

Baku City Court of Appeal trial, Criminal Collegium

Case № 4(103)-1077/2024

10 October 2024

Presiding judge: Elbey Allahverdiyev

Judge: Javid Huseynov, Qabil Mammadov

Defendant: Ruslan Izzatli

Defender: Rasul Jafarov

With the participation of Jeyhun Huseynov, a Senior Investigator from the Division for Investigation and Inquiry of Special Cases within the Baku Police Headquarter

Ruslan Izzatli, born in 1989, began his political activity in the Umid Party. In 2012-2013, he served as a deputy chairman of the party.

In 2013, R. Izzatli was elected Chairman of the D18 Movement, in 2015 and 2020 he was registered as a candidate in the parliamentary elections.

In May 2020, he was sent for the compulsory military service and participated in the second Karabakh war, for what he was twice awarded.

In 2021, R. Izzatli left the post of D18 Movement Chairman and continued to pursue his political career independently.

On 7 December, 2023, he and other political activists founded an organisation under the name ” The Platform of the III Republic“.

In November 2023, there were arrests of journalists from the Abzas Media online publication and then employees of the Toplum TV online resource. On 6 March 2024, the police entered the Toplum TV office, where there were the founders of the Platform and employees of the Institute for Democratic Initiatives. Ruslan Izzatli was detained, but released the same evening.

 

On 8 March 2024, in the morning, R. Izzatli was again detained near the Baku City Khatai District Police Department. The same day, his house was searched and as a result, the police seized 4,700 euros. His wife and young son were locked in a room while the search was conducted.

Несмотря на обжалование защитой вынесенного постановления, суд оставил меру пресечения в виде ареста в силе. Впоследствии данная досудебная мера неоднократно продлевалась.

Ruslan Izzatli was charged with committing an offence under the Article 206.3.2 (Smuggling committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic. On 9 March 2024, the Baku City Khatai District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Ali Zeynalov in the form of detention for a period of 4 months. Despite the defence’s appeal against the ruling, the Court upheld the preventive measure in the form of arrest. Subsequently, this pre-trial measure was extended again and again.

On 28 September 2024, the investigating authority requested one more time the Court to extend the preventive measure until 6 January 2025. On 1 October 2024, the Court issued an order granting the investigation request and the Prosecutor’s submission to extend the preventive measure until 6 January 2025.

The defence, not accepting that ruling, appealed to the Court.

At the trial, the defence pointed out that the first-instance court’s ruling on the extension of the preventive measure should be cancelled, and in case a necessary extension, the preventive measure in the form of arrest should be replaced with a house arrest.

On 10 October 2024, the Baku City Court of Appeal issued a ruling to decline the defence’s appeal and leave the court’s ruling issued on 1 October 2024, in force.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

According to the legislation, there must be procedural and substantive legal grounds for the imposition of a preventive measure in the form of arrest against an accused.

Substantive grounds refer to the evidence confirming an accused involvement in the commission of the act punished by the criminal law. The procedural grounds, on the other hand, consist of the grounds determined by the Court, which consist of the totality of circumstances stipulated in the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic and confirm the legality and necessity of the chosen preventive measure.

In selecting a preventive measure, the Courts should not be limited with a formal enumeration of the grounds specified in the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic; the relevance of a particular ground to the accused must be verified, and whether it is confirmed with the criminal case materials.

The Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic states,

Restrictive measures may be applied by the relevant preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court when the material in the prosecution file gives sufficient grounds to suppose that the suspect or accused has:

• 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.

As it was said under paragraph 4 of the Decision of the Supreme Court Plenum of the Azerbaijan Republic “On judicial practice on consideration of applications linked to preventive measures in the form of arrest and house arrest” and, then clarified to the Courts that when considering an implementation of arrest and house arrest as preventive measures, the Courts must first of all check the feasibility of another preventive measure provided for under the Article 154 of the Code of Criminal Procedure of the Azerbaijan Republic, and if the application is granted, the impossibility of implementing a preventive measure other than arrest must be justified

In the commented judgement there is not a single indication that the Court considered the imposition of alternative preventive measures other than arrest.

There is not a single reason or argument why the Court extended the term of the preventive measure in the form of arrest, rejecting to replace the arrest with house arrest, as requested by the defence.

The Court noted in its ruling that the criminal case, in which Mr Izyatli is an accused, is complicated, therefore additional time is required and the investigators have to conduct a number of other forensic examinations. The Court also pointed out that the grounds for arrest, previously listed in the rulings, had not been eliminated, and therefore the preventive measure in the form of arrest could not be replaced by a house arrest.

In accordance with the procedural Norms of National and International laws, the arrest must be lawful and legitimate. All suspicions must be well-founded.

One of the judgments of the European Court of Human Rights (ECHR) has stated that

‘Reasonable suspicion justifying detention is an essential element of the protection against arbitrary deprivation of liberty provided under the Article 5(1)(c). The existence of reasonable suspicion beforehand assumes the availability of facts or information which would convince an objective observer that an individual would have committed the offence. Nevertheless, the suspicious facts have not attained the level of reasonable grounds for conviction or even indictment, as is required at a subsequent stage of the criminal proceedings.”

The judgment of the European Court of Justice in the case of Kudla v. Poland dated 26 October, 2000, states,

“The Court reiterates that the reasonable term is not subject to an abstract̆ assessment. The reasonableness of an accused’s detention must be determined for each case on an individual basis in accordance with the particular features of the case. Detention may be justified, in a given case, only if specific indications reveal the existence of a genuine public interest overriding, notwithstanding the presumption of innocence, the respect for individual liberty enshrined in the Article 5. It is primarily incumbent on the domestic judicial authorities to ensure that the pretrial detention of the accused does not exceed a reasonable term. In order to do so, taking into account the principle of the presumption of innocence, they must investigate all the circumstances establishing a public interest that would justify an exception to the general requirement respecting the individual’s liberty, and consider them in their judgement concerning requests for release. Based on the reasons set out in the judgments relating to the applications for release and on the facts submitted by the applicant in his complaint, it is for the Court to determine whether there has been a violation of the Convention,Article 5 para. 3.”- https://hudoc.echr.coe.int/?i=001-58920

Thus, ‘the mere existence of a serious suspicion of involvement in serious offences, as a relevant factor, does not justify such prolonged pre-trial detention’ (Van der Tang, 63).

The lack of motivation and arguments, disregard for the principle of presumption of innocence, and the unavailability of an independent judicial system in Azerbaijan stated in the judgement led to another violation of the right to liberty and personal inviolability of R. Izzatli, which is ensured under the Article 28 of the Constitution of the Azerbaijan Republic and Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

 

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ANOTHER VIOLATION OF THE BELIEVERS’ FUNDAMENTAL RIGHTS

Agaali Yahyayev

Analysis of violation of law during Agaali Yakhyayev’s judicial proceedings

Sumqayit City Grave Crimes Court

Case № 1(124)-457/2024

20 September 2024

Presiding Judge: Elchin Mammadov

Judges: Nuraddin Huseynli, Nahid Mirzayev

Defendant: Agaali Yahyayev

Defender: Zubeida Sadiqova

State Prosecutor: Samir Mammadov, a Prosecutor from the Support of State Prosecution in Grave Crimes Courts Division within the Support of State Prosecution Department of the AR General Prosecutor’s Office

Agaali Yahyaev (born in 1983) is a member of the “Muslim Unity” Movement. In 2016, he was arrested in the course of the events that took place in the Baku suburb village of Nardaran. In 2017, the Baku City Grave Crimes Court found him guilty on the charges and sentenced him to 15-years imprisonment.

On 18 March 2021, Agaali Yahyaev was released according to the presidential pardon decree.

Following his release, he kept being engaged in public activities, spoke sharply against the authorities and provided assistance to the Karabakh war veterans, as well as to the shahid families. As a result, he was often summoned to various state bodies where he was asked to stop his activities.

On 31 August 2023, Agaali Yahyaev was detained by the officers from the Drug Control Department withing the AR Ministry of Internal Affairs.

According to the investigation, Agaali Yahyaev possessed a package containing 21.289 grams of heroin, a homemade narcotic drug. He was charged under the Article 234.4.3 (Illegal drugs large-scale distribution) of the Criminal Code of the Azerbaijan Republic.

The defendant, Agaali Yahyaev, interrogated at the trial, pleaded not guilty to the charge and testified that his arrest had been related to his public activities and active position against the authorities. He also testified that his detention had taken place by 7-8 police officers in Mehdiabad village. The officers first told him that he had a fine of 18 manat and asked him to approach their vehicle. As soon as he obeyed, the police officers seized his hands from behind, forcibly put him into the car and brought to the Mehdiabad Police Station. There, he had been beaten and ill-treated until 2 a.m. He was beaten and ill-treated. Besides being subjected to physical abuse, it was psychological pressure, namely, the threats against his family. The police officers demanded him to accept the drugs possession. In order to protect his family, he was forced to agree with their demand.

Answering the questions at the trial, Agaali Yahyaev testified that the date and address indicated in the indictment had been correct, however, the time of his detention hadn’t been falsified. He also testified that everything had been prepared in advance and then videotaping. Despite he hires a lawyer, it was another lawyer assisting the videotaping. Agaali Yahyaev provided the name of one of the policemen involved in his beating, Anar. The whole operation was led by the policeman Alakbar. Yahyaev’s lawyer was only able to meet with him a few hours later. No one was informed of Agaali’s detention. 15 days later, Yahyaev’s wife applied to the Azerbaijani Ministry of Internal Affairs, where she was informed about her husband detention and his placement in the Baku Detention center No. 1.

Roman Hasanov, an employee of the Drug Control Department within the Azerbaijani Ministry of Internal Affairs, questioned as a witness at the trial, testified that on 31 August 2023, Agaali Yahyaev was detained in Mehdiabad settlement on the basis of received operational information. He said that they found a package with narcotic drug heroin in the detainee’s possession. Also, he testified that Agaali Yahyaev accepted the drugs as his own and said that he had found it on the same day. Roman Khasanov noted that neither he nor any of other police officers had applied physical or psychological pressure on Yahyaev.

The police officers, Elmaddin Pashayev and Arif Aliyev, questioned as witnesses at the trial, provided similar to Roman Hasanov’s testimonies.

The results of the forensic narcological examination dated 4 December 2023, revealed that Agaali Yahyaev was not addicted to drugs and did not need any compulsory medical treatment.

An outpatient forensic psychiatric examination dated 4 December 2023, confirmed that Agaali Yahyaev hadn’t been suffering any mental illness or psychological problems.

The Court assessed Agaali Yahyaev’s unexpunged criminal record and his commission of a new offence as a particularly dangerous recidivism.

The Court also noted that the purpose of selling the narcotic drug was not proved, therefore, the primary chosen Article 234.4.3 of the Criminal Code of the Azerbaijan Republic was replaced to the Article 234.1-1 (Illegal acquisition or storage of drugs or psychotropic substances without the purpose of sale in an amount exceeding the amount necessary for personal consumption, committed in a large amount) of the Criminal Code of the Azerbaijan Republic.

The Court didn’t accept the defendant’s testimony and pointed out that his testimony was not either supported by any other testimonies, or the criminal case materials.

On 20 September 2024, the Sumqayit City Grave Crimes Court issued a verdict against Agaali Yayhyayev: he was found guilty of committing a crime under the Criminal Code, Article 234.1-1 and sentenced him to 7 years imprisonment in a general regime penal institution.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The Article 90.7 of the Criminal Code of the Azerbaijan Republic lists a suspect’s rights from the moment of  his/her detention, such as:

• to know the grounds for detention, if detained, to receive legal aid from the defence counsel from the outset of detention, and to receive written notification of his rights from the person who detained him or the preliminary investigator, investigator or prosecutor;
• to have access to defence counsel from the time of the decision on detention or on the choice of restrictive measure;
• to inform his family, relatives, home or workplace (or place of study) immediately after he is detained, by telephone or other means;
• to choose his defence counsel independently, to dismiss him and to conduct his own defence if he waives the right to defence counsel;
• to have unlimited opportunity and time to meet his defence counsel in private and in confidence;
• to give statements, not to incriminate himself or his relatives and in general to refuse to give a statement.

As stated in this Article, a suspect has the right to have a lawyer from the beginning of detention, also immediately inform his/her relatives about the detention, and also a right to refuse to testify against oneself. All the above rights were violated by the investigative body. Agaali Yahyaev was not explained that he had a right to refuse to testify against himself in accordance with the Article 66 of the Constitution of the Azerbaijan Republic, Article 20 of the Code of Criminal Procedure of the Azerbaijan Republic, as well as the Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The investigative body obtained the accused “confession” by means of physical and psychological pressure, even though it is prohibited by the Article 15.2 of the Code of Criminal Procedure of the Azerbaijan Republic.

According to the Article 15.2 of the Code of Criminal Procedure of the Azerbaijan Republic, during the criminal prosecution the following shall be prohibited:

• the use of torture and physical and psychological force, including the use of medication, withdrawal of food, hypnosis, deprivation of medical aid and the use of other cruel, inhuman or degrading treatment and punishment;
• the imposition of long-term or severe physical pain or acts which are detrimental to health, or any similar ill-treatment;
• taking evidence from victims, suspects or accused persons or from other participants in the criminal proceedings using violence, threats, deceit or by other unlawful acts which violate their rights.

Also, according to the Article 13.2 of the Code of Criminal Procedure of the Azerbaijan Republic, during a criminal prosecution nobody shall:

• be subjected to treatment or punishment that debases human dignity;
• be held in conditions that debase human dignity;
• be forced to participate in carrying out procedures that debase human dignity.

These legal norms are closely intertwined with the Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, according to which ‘no one shall be subjected to torture, or inhuman or degrading treatment, or punishment’.

Such a treatment is illegal and abnormal. Even in the most serious cases, such as fighting against terrorism and organised crime, the State authorities must refrain from any action that could be considered to be treatment prohibited by this provision. If a detainee claims that he or she has been subjected to ill-treatment, an effective official investigation must be carried out to identify and punish those responsible. The burden of proof in this regard is upon the investigating authorities. It is for them to prove that the ill-treatment did not take place. In the case under comment, no initiative was taken by the investigating authorities to prove it and the Court found the defendant’s evidence concerning the ill-treatment to be inadmissible and dubious. The Court did not initiate an effective investigation to identify the perpetrators and their subsequent punishment. The Court demonstrated unacceptable passivity in this matter, as well as in other similar cases of allegations of ill-treatment by the police.

The judgement of the European Court of Human Rights (ECHR) in the case of Caloc v. France dated 20 July 2000 states,

“The Court holds that if a detainee alleges, by making a claim, that he has been subjected to any form of treatment in violation of the Conventio, Article 3, by the police or other State services, that norm, viewed in conjunction with the common duty of all States, pursuant to Article 1, “to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention”, requires, according to its meaning, that some form of formal enquiry be undertaken.”

This investigation – such as that required by the Article 2 – should effectively examine, identify and punish those who were responsible. If it were not, the general legal ban on torture and inhuman or degrading treatment, despite its substantial value, would be ineffective in practice, and in some cases the State officials might disregard it, in a quasi-unpunitive manner, in favour of those whose rights are under their control. – https://hudoc.echr.coe.int/?i=001-58758

As indicated above, he has been prosecuted more than once. In the sentence, the Court pointed out the fact that after his release in 2021, Yahyaev still had an unsettled criminal record, thus causing a particularly dangerous recidivism. Therefore, the Court violated the presumption of innocence in respect of the defendant. Both Article 21 of the AR CPC and Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms enshrine that principle.

The violation of this fundamental principle is the fact that doubts that could not have been resolved by the relevant legal procedure in proving the charge have not been resolved in favour of the accused. Moreover, any doubts not eliminated by the application of the criminal law and criminal procedural law have not been resolved in his favour.

According to the Article 21.3 of the Code of Criminal Procedure of the Azerbaijan Republic, the accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defence of the suspect or the accused.

Thus, the judgment of the European Court of Justice in the case of Minelli v. Switzerland dated 25 March 1983, said,

“The presumption of innocence enshrined in paragraph 2 of Article 6 (art. 6-2) is one of the elements of the fair criminal trial that is required by paragraph 1 (art. 6-1)  This principal is violated if, without the accused’s having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty.”

• https://hudoc.echr.coe.int/?i=001-57540

The guilt of the accused was not proved in the course the trial, as the investigating authority submitted evidence to the court that could not be considered sufficient for a conviction. The evidence consisted of formal forensic examinations, and the testimonies of three police officers who had a direct interest in the case outcome. It should be also noted that the accused’s testimony, his reasoning and the defence’s arguments, the Court either did not take into account or did not give the correct legal assessment.

Thus, the Article 138.1 of the Code of Criminal Procedure of the Azerbaijan Republic states, that proof shall consist in the obtention, verification and assessment of evidence in order to establish facts of importance for the lawful, thorough and equitable determination of the criminal charge.

According to the Article 144 of the Code of Criminal Procedure of the Azerbaijan Republic,

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.

The Court verdict in the case of Agaali Yahyaev was neither lawful nor motivated as stated in the Article 349.3 of the Code of Criminal Procedure of the Azerbaijan Republic. 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:

• if the conclusions at which the court arrives are based only on the evidence examined during the court’s investigation of the case;
• if the evidence is sufficient to assess the charge;
• if the facts established by the court are consistent with the evidence investigated.

The guilt of the accused may be regarded as proven, as follows:

• bearing in mind the presumption of innocence;
• on the basis of the results of the court’s examination of the charge in accordance with the rules set out in this Code;
• on the basis of the reliable and admissible evidence examined during the court’s investigation of the case;
• interpreting in his favour any doubts as to the guilt of the accused which cannot be removed.

All of the above terms of conviction were violated by the Court. Therefore, the violation of the above-mentioned norms of substantive and procedural law led to the violation of the fundamental rights of Agaali Yahyaev, e.g. the right to liberty and personal inviolability, the right to a fair trial, the right to the prohibition of torture and ill-treatment, the right to defence and presumption of innocence.

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THE COURT VIOLATED THE PROHIBITION TO TORTURE, INHUMAN TREATMENT, THE RIGHT TO DEFENCE AND SILENCE IN RESPECT OF HIKMAT AGAYEV

Hikmat Agayev

Analysis of violation of law during Hikmat Agayev’s judicial proceedings

Baku City Court for Serious Crimes

Case № 1(101)-1983/2024

10 September 2024

Presiding Judge: Rasim Sadigov

Judges: Novruz Karimov, Leyla Asgarova-Mammadova

Defendant: Hikmat Agayev

Defenders: Aydin Hajiyev, Javad Javadov

The State Prosecutor: Rauf Malyshev, a prosecutor from the State Prosecution Defence Division of the Serious Crimes Courts within the State Prosecution Defence Department of the General Prosecutor’s Office of the Azerbaijan Republic

Hikmat Agayev (born in 1985) was a Shiite believer, an active public and philanthropic activist, who sharply criticised the current authorities via social media. He had previously been a member of the opposition movements “D18” and the “Muslim Unity Movement”, but later left the both organisations.

On 6 April 2024, Hikmat Agayev was detained on charges of committing an offence under the Article 234.4.3 (Illegal drugs large-scale distribution) of the Criminal Code of the Azerbaijan Republic.

Agayev’s arrest came at a time when relations between Azerbaijan and Iran had deteriorated, and there were mass arrests of believers in the country. The believers were officially accused of illegal drug trafficking and unofficially labelled as agents of Iran. The state television broadcast open propaganda against Shiite believers, accusing them of working for Iran’s intelligence services. However, despite those accusations, none of the detainees had been charged with treason or espionage.

According to the investigation, H.Agayev was detained at a street in Baku on 6 April 2024, and brought to the AR Ministry of Internal Affairs Head Department on Combating Organised Crime. Upon personal examination, it was found two bags with the psychotropic drug methamphetamine, one of which weighed 3.909 grams, the other 3.098 grams, with a total weight of 7.007 grams.

The defendant, Hikmat Agayev, interrogated at the trial pleaded not guilty to the charge and testified that he was a believer, did not consume alcohol or drugs but did smoke cigarettes. He was detained while leaving the ‘Oba’ shop carrying a persimmon in his hand. At that time he was fasting. The police officers who detained H. Agayev stated that they had been instructed to bring him to the police department. There, having imposed physical and psychological pressure on him, they ordered him to accept two bags of drugs as their own. He was threatened that in case of refusal, his mother and wife would be prosecuted. Therefore, Hikmat Agayev was forced to fulfil their demands. Due to the injuries inflicted by the police officers, the marks were left on his face, the police reauested Agayev to justify his injuries by saying that he had collapsed while working at the factory.

 

Anar Shamiyev, the Chief operative commissioner for very important cases from the Main Department for Combating Organised Crime within the Azerbaijani Ministry of Internal Affairs, who was questioned as a witness at the trial testified that the accused Hikmat Agayev had been engaged in the drugs illegal trafficking. In this regard, on 6 April 2024, an operative-search action was conducted, during which Hikmat Agayev was detained at one of the factories. In the course of personal search by the interrogator, it was found two bags with methamphetamine in Agayev’s possession. Answering the inquirer’s questions, Hikmat Agayev testified that he had found those packages in the workshop sanitary unit where he had been working. The witness also said that his colleagues and he had detained Agaev and the detainee hadn’t been subjected to physical or psychological pressure.

The Court pointed out that during the trial the accusation under the Criminal Code Article 234.4.3 against Hikmat Agayev had not been proved, therefore, the Court reclassified it to the Article 234.1-1 (Illegal acquisition, storage, manufacture, processing, transportation without purpose of sale of narcotic drugs or psychotropic substances in significant quantities, committed in large amounts) of the Criminal Code.

Forensic medical examination of 7 April 2024, revealed the presence of a substance methamphetamine in Agayev’s t blood and urine.

The conclusion of the forensic narcological expertise of 8 April 2024, confirmed that Hikmat Agayev had not been addicted to drugs, so there was no need for his compulsory treatment.

There were not found any contacts or correspondence relevant to the case in Hikmat Agayev’s mobile phone.

The Court recognized Agayev’s four minor children as a mitigating circumstance. The Court did not find any aggravating circumstances in the case.

On 10 September 2024, the Baku City Court of Serious Crimes issued a verdict against Hikmat Agayev: he was found guilty of committing a crime under the Criminal Code, Article 234.1-1, and sentenced him to 3 years and 6 months’ imprisonment in a general regime penal institution.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The criminal proceedings are based on the following principles:

• defining the rules that form the framework for the prosecution of criminal offences;
• ensuring the protection of individual and citizen against the cases of unlawful restriction of his/her rights and freedoms;
• ascertaining the legality and validity of each criminal prosecution.

It’s very important that according to the Article 9.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

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

At the same time, the Article 12.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

The judicial authorities shall observe the human and civil rights and liberties afforded by the Constitution to all participants in criminal proceedings.

In the case of Hikmat Agayev, there were violated a number of norms of substantive and procedural law.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 (3),  lists the following rights of the accused, namely:

• to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
• to have adequate time and facilities for the preparation of his defence;
• 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;
• to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
• to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Hikmat Agayev was denied the right to a defence, e.g. he did not have enough time to prepare for his defence. As the defendant testified at the trial, the police officers who detained  and brought him to the Department for Combating Organised Crime demanding to admit the charges while threatening him with ill-treatment against his mother and wife, and subjecting him to physical pressure. Thus, he had no choice but to do what had been demanded without consulting his lawyer.

In this connection, it will be appropriate to mention the judgment of the European Court of Human Rights in the case of Artico v. Italy dated 13 May 1980, where it states,

“The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective; this is particularly so of the rights of the defence in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive.” https://hudoc.echr.coe.int/?i=001-57424

The ill treatment violated  the CPC Article 13.2 where states:

During a criminal prosecution nobody shall:

• be subjected to treatment or punishment that debases human dignity;
• be held in conditions that debase human dignity;
• be forced to participate in carrying out procedures that debase human dignity.

According to the Article 9 of the Criminal Code of the Azerbaijan Republic,

• the Criminal Code shall provide safety of people.
• Penalties and other measures of criminal-legal nature, applicable to a person who has committed a crime, shall not have the character or purpose of torture or other cruel, inhuman or degrading treatment.

The prohibition of torture and inhumane treatment is enshrined in the European Convention, Article 3, stating:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

It is the State’s duty to ensure that no one is subjected to any prohibited form of ill-treatment. If a detainee claims in his or her defence that he or she has been subjected to ill- or inhuman treatment, there must be an effective official investigation to identify those responsible in order to prosecute them.

As stated above, Hikmat Agayev got injuries on his face as a consequence of being caught in the police custody. In order to prove that fact, it would have been enough to inspect the video surveillance cameras.

The State authorities must prove that the origin of any possible marks of ill-treatment on the individual face were not caused by a punch, and that it did not take place while a detainee was deprived of his or her liberty. In this case, the burden of proof is not on the victim but on the investigating authorities. Disappointingly, the investigative authority did not take any initiative to prove that the traces of ill-treatment had not been inflicted by them while Hikmat Agayev was being held in the police custody. The Court unreasonably trusted the police officers’ testimonies and ignored the defendant’s one. Meanwhile, the Court should always take into account the investigation bodies’ malpractice that many detainees repeatedly appeal and report at the trial.

The judgment of the European Court of Justice in the case of Soering v. the United Kingdom dated 7 July 1989, states,

“Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) in time of war or other national emergency. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 (art. 3) enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also to be found in similar terms in other international instruments such as the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights and is generally recognised as an internationally accepted standard.”-

https://hudoc.echr.coe.int/?i=001-57619

In the Selmoni v. France judgment of 28 July1999, the European Court specified,

“The Court considers that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention.”- https://hudoc.echr.coe.int/?i=001-58287

The investigating authorities committed another violation when they required the accused to provide the necessary for them testimony, e.g., the incriminating one. In this case, the investigative body had been obliged to recall the existence of the AR Constitution, Article 66, where states:

Nobody may be forced to testify against himself/herself, wife (husband), children, parents, or siblings. The full list of relatives against whom testifying is not obligatory is prescribed by law.

As the European Court refers to such a right of the accused as the ‘right to silence’. Even though this right is not explicitly stated in the text of Article 6(3) of the European Convention, yet, the Court’s case-law enshrines it precisely as part of this legal provision.

Thus, the judgment of the European Court of Justice in Servais v. France dated 20 October, 1997, state:

“The Court found that there was no doubt that “the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 … By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6… in particular, it had to be determined whether the applicant had been subjected to compulsion to give evidence and whether the use made of the resulting testimony offended the basic principles of a fair procedure under Article 6 § 1.” – https://hudoc.echr.coe.int/?i=001-58103

Thus, the investigation and Court, having infringer the norms of substantive and procedural law, as well as the international treaty provisions, violated in respect of Hikmat Agayev, his right to at least not to be subjected to torture, cruel and inhuman treatment, as well as his right to defence and silence. Overall, in that case there were violated the fundamental rights of any democratic society such as the rights to liberty and fair trial and also the right to an efficient legal defence.

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THE COURT IN AZERBAIJAN HAS ONCE AGAIN VIOLATED THE RIGHTS OF AN ASERBAIJANI CITIZEN

Nariman Shabanzade

Analysis of violation of law during Nariman Shabanzade’s judicial proceedings

Baku City Sabayil District Court

Case № 3 (009)-1674/2024

24 July 2024 

Presiding judge: Rana Qafarova

The person against whom an administrative record was issued: Nariman Shabanzade

Defender: Zubeida Sadigova

With the participation of Emin Huseynov, a police captain from the 9th police station from the Sabayil District Police Department.

On 24 July 2024, the police officers from the Sabayil District Police Station 9 issued a report against Nariman Shabanzade for allegedly violating the Articles 510 (Failure to obey the legitimate demands of a policeman) and 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic.

1. Shabanzadeh, interrogated in the course of the trial, did not plead guilty to the offences and testified that on 23 July 2024, he along with his friend had been distributing anti-war booklets at the Baku Fountain Square. The police officers who approached them on the square, grabbed them by force to the police station without explaining the reason of their offence. There, they were beaten and severely insulted by some 7 or 8 policemen. Their clothes were torn, there were injuries on the back of their heads, and their bones were badly hurt.

His lawyer also confirmed before the Court the fact that the defendant had been beaten and that the injuries on his body had been obvious as well as his clothes had been torn. The defence also stated that the distribution of anti-war booklets would not cause public concern.

Emin Huseynov, a captain questioned at the trial, who drew up an administrative report against Shabanzade, testified that the latter, at about 18:50 on 23 July 2024, had violated public order by using obscene language and had disobeyed the police officers’ lawful orders.

Sanan Qarakhanov, a police officer questioned as a witness at the trial, testified that two young men had been loudly shouting at about 18:50 on 23 July 2024. The police officers approached them, introduced themselves and urged them to keep order. Despite that, the two men were disobedient and violated the public order. Nariman Shabanzadeh along with Rustam Qasimly (also detained and charged with offences under the Code Articles 510 and 535.1) had been asked to the 9th police station, and no physical or psychological pressure had been exerted on them.

The Court did not find any mitigating or aggravating circumstances in the case of N. Shabanzade.

On 24 July 2024, the Baku City Sabayil District Court issued a ruling: to find Nariman Shabanzade guilty on the charges and sentence him to 30 days of administrative arrest.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

Firstly, it should be noted that the Azerbaijan Republic Code is based on the principles of human and civil rights and freedoms, legality, equality before the law, presumption of innocence, fairness and prevention of administrative offences.

According tot the Article 5.1 of the Administrative Offences Code of the Azerbaijan Republic, the rights and freedom of human and citizens are of great value. All the state authorities (officials) having committed violation of these rights and freedom shall be responsible in the order provided by legislation of the Azerbaijan Republic. The Article 5.3 of the Administrative Offences Code of the Azerbaijan Republic states, when applying measures on provision of execution of administrative violation cases, it is not allowed to issue resolutions and take actions, humiliating the human dignity.

It should be recalled that N. Shabanzade was accused of committing two offences under the Article 510 and Article 535.1 of the Code. Hooliganism means a violation of public order, which is not accompanied by the use or threat of violence against individuals or destruction/damage to somebody else’s property. The event took place on one of the Baku central streets where, at any time of the day, there are many people. But nonetheless, none of those who were there addressed to the police about the public order violation by detainees: such as shouting, obscene language, and so forth.

In addition, the booklets distributed by the detainees contained an anti-war message, and therefore were not aggressive or hateful to cause public anxiety.

The other Article (535.1) of the Code is to punish for malicious disobedience to the police lawful demands. It should be emphasised that the demands must be ‘lawful’, i.e. in accordance with the law. There is not a single word in the judgement regarding the police officer’s lawful demand and whether it was indeed ‘lawful’.

The arrest term was imposed for 30 days. The sanction of the Code Article 535.1 contains, in addition to administrative arrest for up to one month, another measure of punishment not related to arrest, i.e. a fine.

The judgement does not contain any court conclusions or arguments according to which the Court has chosen the strictest sentence in the form of arrest for the maximum term against N. Shabanzade.

In the course of proceedings, the Court did not clarify the following matters that it was mandated to clarify pursuant to the Code, sec. 106, namely:

• whether it is within its competence to consider the case;
• whether there are circumstances precluding consideration of the case by a judge, a member of a collegial body or an official;
• whether the report on administrative offence and other case materials have been drawn up in accordance with the Code;
• whether there are circumstances precluding proceedings on the case;
• whether there is sufficient evidence in the case to consider it on the merits;
• whether the parties involved in the case have been informed about the time and place of the case consideration;
• whether there are motions and objections on the case.

It is of great importance in administrative cases, as in civil or criminal ones, whether the obtained evidence is relevant, sufficient, and lawful.

The evidence in this case lies upon the police officer testimony who drew up the administrative report, testimony of another policeman who was at the square, testimony of the accused who committed the administrative offence, as well as a number of various certificates and protocols.

The defence pointed out that there had been a video recording circulated on social networks. The recording depicted two young men, one of whom was N. Shabanzade, quietly distributing booklets without disturbing anyone or committing any offence.

The arrest of N. Shabanzade for the maximum term has no legitimate objective and violates the Article 28 of the Constitution, Article 5(1) of the European Convention for the Protection of Rights and Fundamental Freedoms, as well as the European Court of Human Rights judgments.

Thus, the judgment of the European Court of Human Rights (ECHR) in the case of Labita v. Italy dated 6 April 2000 states,

‘In order for a suspicion to be well founded, there must be evidence or data which would convince an objective observer that an individual involved in the case could have committed this offence.” – https://hudoc.echr.coe.int/?i=001-58559

In the commented case, there are no evidence or information that N. Shabanzade did commit any offence.

It can be considered as a very important point in the case the detainee’s testimony concerning his beating by the police officers. This defence also confirms that fact.

The Article 46 of the Constitution of the Republic of Azerbaijan states,

III. No one may be subject to torture. No one may be subject to degrading treatment or punishment. Medical, scientific and other experiments may not be carried out on any person without his/her consent.

Torture, ill-treatment and inhuman treatment are prohibited under the Article 3 of the European Convention, alongside the National Law.

The ECHR judgment in the case of Kudla v. Poland dated 26 October 2000, states, “The Article 3 protects one of the fundamental values of a democratic society. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” – https://hudoc.echr.coe.int/?i=001-58920

The judgment of the European Court of Justice in the case of Dikme v. Turkey dated 11 July 2000 states,

“The Court recalls that if a detainee has been brought to the police station in good health but by the time of his release he has had injuries, it is incumbent on the State to provide a plausible explanation of their origin and, if it fails to do so, then the Article 3 of the Convention comes into force”. – https://hudoc.echr.coe.int/?i=001-58751

It appears that the issue of ill-treatment remained unresolved, the Court did not take any initiative to investigate the matter, and the perpetrators had not been identified or prosecuted.

In the present case we can also speak of the European Convention violation, Article 10(1), that protects the right to freedom of expressions.

The young men, including N. Shabanzade, were brought to administrative responsibility for spreading their beliefs and ideas, particularly the anti-war leaflets.

The judgment of the European Court in the case of Lingens v. Austria dated 8 July 1996, states,

‘Freedom of expression, as defined in Article 10(1), is one of the supporting pillars of a democratic society, a fundamental condition of its progress and the self-realisation of each of its members. Subject to the requirements of para. 2, the freedom of speech embraces not only ‘information’ or ‘ideas’ that come across as favourable or are regarded as harmless or neutral, but also those that offend, shock or disturb. These are the imperatives of pluralism, tolerance and liberalism, without which there is no ‘democratic society’.”. – https://hudoc.echr.coe.int/?i=001-57523

To summarise all of the above, it can be concluded that the unlawful arrest for 30 days of N. Shabanzade violated his right to liberty and inviolability, the principle of the prohibition of torture and inhuman treatment, as well as the right to freedom of expression.

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THE BELIEVER’S PRESUMPTION OF INNOCENCE RIGHT AND FAIR TRIAL HAVE BEEN ONCE AGAIN VIOLATED

Rustam Qasimli

Analysis of violation of law during Rustam Qasimli’s judicial proceedings

Baku City Sabayil District Court

Case № 3(009)-1675/2024

24 July 2024

Presiding judge: Rana Qafarova

The person against whom an administrative record was issued: Rustam Qasimli

Defender: Zibejda Sadygova

With the participation of Emin Huseynov, a police captain from the 9th police station from the Sabail District Police Department.

On 23 July 2024, Rustam Qasimli (born in 1993), along with his acquaintance, were distributing anti-war peace leaflets  at the Fountain Square in the center of Baku. They were approached by the police officers and then taken to the local police station.

An administrative report was made against Rustam Qasimli for allegedly violating the Articles 510 (Failure to obey the legitimate demands of a policeman) and 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic.

1. Qasimli, interrogated at the trial, did not plead guilty to the charges and said that on 23 July 2024, they had been distributing the anti-war leaflets while holding the posters on the same topic and flags thereby wishing to share their convictions with the people around them. They were approached by the police officers who demanded them to stop it. The officers did not explain why their actions were unlawful. Qasimli’s acquaintance captured all that on video the police officers’ actions and the following confrontation. Then, Qasimli was taken to the police station. He also testified that he was subjected to physical and psychological pressure exerted by the police officers.

The policeman from the Sabali district 9th police station questioned at the trial said that on 23 July 2024, at about 6.50 p.m., R. Qasimli violated the public order at the Fountain Square by using obscene language, and he hadn’t obeyed   the policemen lawful demands.  He also pointed out that a few days prior to the incident the police warned R. Qasimli and others who had already gathered on the same square and violated the public order.

 

1. Qasimli’s lawyer clarified to the Court that her client had not violated the law. From the video circulated on social networks, it was clear that the detainee did not violate the public order but just called for peace, which cannot create disturbance in the society. They were approached by the police officers who could not explain the illegality of such actions. The lawyer also indicated that it was not an offence to take a video of a police officer, and the latter should be more tolerant. But her client had been beaten. She also noted that the detainee had a seven-day-old baby and a mentally ill mother to care for.

Sanan Qarakhanov, questioned as a witness at the trial, testified that on 23 July 2024, at about 6.50 p.m. he had seen two men engaged in a loud conversation.  Those men were approached by the police officers who introduced themselves and urged them to order. Despite that, the men were disobedient and proceeded with their actions. Then, they were “invited” to the police station where they were not subjected to physical or psychological pressure.

On 24 July 2024, the Baku City Sabayil District Court issued a ruling: to find Rustam Qasimli  guilty on the charges and sentence him to 30 days of administrative arrest.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The legislation on administrative offences is based on the principles of respect for human and civil rights, freedoms, lawfulness, equality before the law, presumption of innocence, fairness and prevention of administrative offences.

The Article 5.1 of the Administrative Offences Code of the Azerbaijan Republic states,

The rights and freedom of human and citizens are of great value. All the state authorities (officials) having committed violation of these rights and freedom shall be responsible.

The Articles 510 and 535.1 of the Administrative Offences Code of the Azerbaijan Republic, under which R. Qasimli is charged, are usually applied to the political and public activists, journalists and bloggers.

In almost all of these cases, the Courts issue unmotivated rulings and apply administrative arrest.

Though the Article 8 of the Administrative Offences Code of the Azerbaijan Republic refers to the presumption of innocence, according to which an individual in respect of whom there are initiated the proceedings on an administrative misdemeanour, shall be presumed innocent if his/her guilt is not proved in accordance with the procedure provided for by the Administrative Offences Code of the Azerbaijan Republic, and is not determined by the decision of a judge, an authorized body (official), which considered the administrative misdemeanour proceedings, in this case the reasonable doubts concerning an individual’s guilt brought to administrative responsibility shall be settled in his/her favour.

However, what we see in practice is quite different: the Courts ignore important Constitutional provisions, as well as the National and International legislation.

According to the Article 510 of the Administrative Offences Code of the Azerbaijan Republic,

“Petty hooliganism, i.e. the actions that violate public order, but are not supported by the use or threat of violence against individuals or destruction/ damage to someone else’s property, shall be punishable by a fine in the amount of fifty to one hundred manats and if, due to the circumstances of the case, taking into account the offender’s personality, the application of these measures is deemed insufficient, it should be applied an administrative arrest for up to fifteen days.”

As noted above, R. Qasimli, together with an acquaintance, addressed peaceful slogans and distributed the anti-war leaflets at the Fountain Square. There were no aggression or unlawful messages in those appeals, which in no way could have violated the public order. Besides, there is no indication in the ruling that R. Qasimli and others had created any disturbance to society. Neither, any of the witnesses who were at the Square at that moment, applied to the law enforcement bodies with a complaint against him.

 

What is ‘public order’?

 

‘Public order is an established in society system of relations between people, rules of common behaviour and co-existence governing by the existing legislation, customs and traditions, as well as by moral standards. The public order includes the legal order. The public order is the entire complex system of social relationships, which is created as a result of the implementation of the following social norms: the law norms, moral standards, regulations of public organisations, non-legal customs, traditions and rituals’. – https://ru.wikipedia.org/wiki/Общественный_порядок

Thus, R. Qasimli’s activities could not violate the established order in society, the standards of morality and ethics, or the law and order.

The second Article 535.1 of the Administrative Offences Code of the Azerbaijan Republic, under which R. Qasimli was charged,

‘Malicious disobedience to the police officer’s legitimate request or a request of a serviceman, whose duties to protect public order shall entail a fine of two hundred manats for individuals, and in case, under the case circumstances, and taking into account the offender’s personality, the application of these measures is deemed insufficient, it shall entail administrative arrest for a period of up to one month’.

There is not a single argument in the Court ruling that would prove R. Qasimli’s ‘malicious disobedience’. Moreover, the Court did not clarify whether the police officers’ demand was lawful. In spite of the lack of any arguments and reasons supporting the prosecution, the Court sentenced Qasimli to 30 days of administrative arrest, without substantiating that the isolation of the detainee was a necessary measure and that the interests of society were superior to depriving him of his liberty for one month.

Viewed in the light of the human rights enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, there is a violation of the following Articles: Article 3 – the right to the prohibition of torture and ill-treatment, Article 5(1) – the right to liberty and security of person, and Article 10(1) – the right to freedom of expression.

Both the provision of the Constitution of the Azerbaijan Republic (Article 46 III) and Article 3 of the Convention prohibit the mistreatment of a detainee. These Articles contain no derogations or exceptions and apply to everyone including those in the fight against terrorism and mafia, as well as in time of war.

The European Court’s ruling under the Article 3 in the case of Selmouni v. France dated 28 July 1999, states,

‘If a detainee has been brought to a police station in good health and, by the time of his release, he has injuries, the State has an obligation to provide a plausible explanation as to their origin, and if it fails to do so, then the Article 3 of the Convention comes into force.” – https://hudoc.echr.coe.int/?i=001-58287

“In order for ill-treatment to constitute a violation of the Article 3, it must attain a minimum level of severity. The assessment of this minimal level is inherently relative; it depends on all the circumstances of a case, in particular on its duration, its impact on the physical or mental state and, in some cases, on the gender, age, state of health of the victim, etc.” (Monde c. Royaume-Uni,162).  (Monde с. Royaume-Uni,162).

The judgment of the European Court of Human Rights in the case of Aksoy v. Turkey dated 18 December 1996, concerning the Article 5 it states,

‘The Court underlines the importance of the Article 5 in the Convention: it enshrines a fundamental human right, namely the protection of everyone against arbitrary interference by the State with his right to liberty. The judicial supervision of executive interference in everyone’s right to liberty is an essential element of the guarantees embodied in Article 5 para. 3, which are designed to minimise the risk of arbitrariness and to guarantee the supremacy of the law (…). Moreover, a prompt judicial intervention may lead to the detection and prevention of ill-treatment, which, (…) is absolutely prohibited by the Convention and is non-derogable.” – https://hudoc.echr.coe.int/?i=001-58003

The violation of the above-mentioned norms led to a violation of the right to freedom of expression guaranteed by the Article 10(1) of the Convention in respect of R. Qasimli.

The state authorities’ interference in this right did not have a legal objective and was not either lawful or legitimate in the light of the case precedents of the European Court of Human Rights.

The judgment of the European Court in the case of Oberschlick v. Austria dated 23 May 1991 says,

“Article 10  protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed.” https://hudoc.echr.coe.int/?i=001-57716

1. Qasimli communicated his beliefs and ideas in the form of appeals by distributing leaflets with anti-war rhetoric.

The judgment of the European Court in the case of Worm v. Austria dated 29 August 1997 states,

“The Court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance. As a matter of general principle, the “necessity” for any restriction on freedom of expression must be convincingly established.” – https://hudoc.echr.coe.int/?i=001-58087

The unreasonableness and unjustified lack of motivation in the court judgement, weak evidentiary basis, the case consideration in breach of the right to presumption of innocence, partiality and unfair trial have resulted in violation of the fundamental rights of a democratic society in respect of a detainee.

 

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 THE RIGHT TO PRESUMPTION OF INNOCENCE AND FAIR TRIAL HAS BEEN VIOLATED IN THE CASE OF IQBAL ABILOV

Iqbal Abilov

Analysis of violation of law during Iqbal Abilov’s judicial proceedings

Baku City Sabayil District Court

Case № 4(009)-388/2024

24 July 2024

Presiding judge: Rana Qafarova

Defendant: Iqbal Abilov

Defender: Qanqa Ibrahimov

With the participation of Fuad Almammadov, Acting Head of the Second Department of the Main Investigation Office within the Azerbaijan Republic State Security Service Investigation Department, and a Counsellor of Justice, Qadir Mammadov, a Senior Methodist-Prosecutor at the Department for Supervising the Execution of Laws in Investigation, Inquiry and Operative Investigation Activities of the State Security Service and State Border Guard Service within the AR General Prosecutor’s Office.

Iqbal Abilov, a researcher-scientist, is one of the founders of ‘Talysh National Academy’, as well as the editor-in-chief of the press publication ‘News of Talysh National Academy’. His articles have been published on various media websites.

I.Abilov is an ethno-Talish, citizen of the Azerbaijan Republic living in the Republic of Belarus. Having come to his parents in Bala Kolaghan village in Masally region, on 22 July 2024, he was detained by the State Security Service (SSS).

According to Abilov’s relatives, he had been living in Belarus since his childhood and came to Azerbaijan to attend a relative’s wedding.

On 22 July 2024, he was interrogated for 6 hours by the Masally District SSS Department officers, after which he was released. Abilov was to fly from Baku to Moscow, but he was not admitted to the aircraft. His passport and phone were confiscated.

On the pretext of recovering his passport and phone, he was again summoned to the Masally District SSS Department. From there, he was sent to Baku, not informing his parents, who subsequently applied to the Ombudsman’s Office where they were informed that Iqbal Abilov had been suspected of committing offences under the Articles 274 (High treason), 281.3 (Public appeals to violent capture of authority, violent deduction of authority or violent change constitutional grounds or infringement of territorial integrity of the Republic of Azerbaijan, committed by orders of foreign organizations or their representatives) and 283.1 (The actions directed on excitation of national, racial, social or religious hate and hostility, humiliation of national advantage, as well as actions directed on restriction of citizens rights, or establishment of the superiority of citizens on the basis of their national or racial, social belonging, creeds committed publicly, including with use of mass media) of the Criminal Code of the Azerbaijan Republic.

The investigator and Prosecutor addressed the Court with a motion and submission to impose a measure of restraint against I. Abilov in the form of remand in custody for a period of 4 months.

In the course of trial, Mr Abilov pleaded not guilty to the charges and asked the Court to dismiss the investigator’s motion and the Prosecutor’s submission to impose a preventive measure in the form of detention in custody.

 

On 24 July, 2024, the Baku City Sabayil District Court granted the investigator’s petition and Prosecutor’s submission to impose a measure of restraint in the form of detention in custody for a period of 4 months against I. Abilov.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

First and foremost, the bodies conducting criminal proceedings are obliged to ensure that the rights and freedoms of the individual enshrined in the Constitution are respected for all those taking part in the criminal proceedings.

 

The defence stated at trial that the investigating authorities did not admit a lawyer to his client for a long time. Thus, for the first time Abilov was interrogated not having a lawyer on his side, which contradicts the provisions of both the national and international laws.

Thus, according to the Article 19.1 of the Code of Criminal Procedure of the Azerbaijan Republic, during the criminal prosecution the preliminary investigator, investigator, prosecutor and court shall take measures to guarantee the right of the victim, the suspect and the accused to proper legal aid.

In the Article 19.4 of the Code of Criminal Procedure of the Azerbaijan Republic there are the lists of investigative body’s obligations ensuring a suspect’s or accused’s rights:

• to have the assistance of the counsel for the defence from the moment of detention or arrest, as the suspect before the first interrogation or as the accused as soon as charges have been laid;
• to explain his rights;
• to give him adequate time and opportunity to prepare his defence;
• to be able to defend himself in person or with the aid of counsel for the defence chosen by him or, if unable to pay for defence counsel, to receive free legal aid;
• to interrogate any witness against him.

The paragraph 3 of the Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms reads:

Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(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.

 

As can be seen, these norms of law were grossly violated by the body conducting the preliminary investigation.

 

Further, let us consider the grounds on which the Court imposed a preventive measure in the form of remand in custody for 4 months.

 

According to the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic, the grounds for imposing a preventive measure in the form of arrest might be:

• hidden from the prosecuting authority;
• obstructed the normal course of the investigation or court proceedings by illegally influencing parties to the criminal proceedings, hiding material significant to the prosecution or engaging in falsification;
• committed a further act provided for in criminal law or created a public threat;
• failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;
• prevented execution of a court judgment.

The grounds set out in the judgement are as follows:

• re-committing an act under the criminal law or posing a danger to society;
• concealment from the body conducting the criminal proceedings;
• obstruction to the preliminary investigation normal course or court proceedings involving unlawful pressure on those involved in the criminal proceedings, with the mean of concealing or falsifying materials of importance for criminal prosecution.

As indicated above, I. Abilov was first summoned for interrogation on 22 July 2024, and then, on 24 July 2024. He also informed the investigating authority that he would have to leave the country on 27 July 2024.

 

1. Abilov did not hide his plans from the investigative body and turned up several times upon their call. It is not clear on what basis the investigative body indicated that reason. The grounds are not supported by any arguments and facts. The ruling is merely a copy of the Code of Criminal Procedure and lacks any serious grounds.

 

Deprivation of personal liberty prior to the Court ruling should be an exception, whereas an individual liberty should be a must. And it is not vice versa.

 

Detention is justified only if certain grounds reveal the existence of a public interest overriding, notwithstanding the presumption of innocence, the respect for individual liberty.

 

When issuing the order on remand in custody, the Court merely used general and abstract phrases drawn from the Law. It lacks any motivation. None of the stated grounds is considered in relation to a particular defendant. The judgement is substantiated only by the gravity of the charges and possible punishment. Despite the fact that it is provided in the criminal procedure legislation, but it is entirely against the European Convention norms, in accordance with which the legislation of every country, a member of the Council of Europe, must be aligned. It is one of the obligations that a state party must fulfil.

 

Thus, the judgment of the European Court in the case of Scott v. Spain dated 18 December, 1996, states:

“The existence of a strong suspicion of the involvement of a person in serious offences, while constituting a relevant factor, cannot alone justify a long period of pre-trial detention”

 

The Convention provides that only a well-founded suspicion that a person has committed a criminal offence can justify deprivation of liberty. Therefore, the reasonable suspicion is an essential part of the defence against arbitrary arrest. The existence of reasonable suspicion requires an availability of facts or information that would convince an objective observer that a certain individual may have committed the offence. Reasonableness depends on a set of circumstances.

As one of the arrest justifications, the Court indicated that I. Abilov appeared to be a danger to the society. As mentioned above the accused is a researcher-scientist who writes academic papers. What kind of danger could Abilov pose to the society if he was about to leave the country on 27 July 2024? In order to support that ground, the investigating authority had to submit some evidences to the Court, but they had none, and the Court, in its turn, obviously did not indicate any in its judgement.

The public reaction to the serious offences commission may cause a public upheaval that could justify remand in custody. However, this motivation can only be considered relevant and sufficient if it is based on facts that can demonstrate that the detainee’s release may actually violate public order. Furthermore, a detention will be lawful only if there is a real threat to the public safety.

The European Court of Human Rights (ECHR) has a pracice to place vagrants, alcoholics, drug addicts and other non-adapted in socium individuals in the category of socio-dangerous people who theoretically and practically may be dangerous to society.

However, when it comes to custodial restraint, the ECHR has a warning,

“In addition to vagrants, Article 5(e) of the Convention indicates mentally ill, alcoholics and drug addicts individuals. While the Convention authorises the deprivation of liberty in respect of these socially maladapted people, it is not the only reason to consider them a threat to public safety; their own interest may require their confinement in a psychiatric hospital. It does not follow from the authorisation to detain vagrants under Article 5 that the same grounds, even better ones, apply to someone who might be considered even more dangerous’ (thejudgment of the European Court of Human Rights in the case of Guzzardi v. Italy dated 6 November 1980). – https://hudoc.echr.coe.int/?i=001-57498

“The Court recalls that one of the necessary “lawfulness” requirements of detention in terms of Article 5(1)(e) is the non-arbitrariness of it. Deprivation of liberty is such a severe measure that it must be upheld only when other measures, less severe, have been considered insufficient to protect either an individual or public interest and requiring the deprivation of liberty. It is not sufficient that the deprivation of liberty complies with domestic law; it must also be indispensable given the circumstances of the case” (WitoldLitwa, 78).

As seen from the above, the lack of strong arguments, primary evidences, as well as unsubstantiated and unmotivated judicial ruling led to the violation of the national and international laws, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the precedents of the European Court of Human Rights. The unjustified ruling caused a violation of the fundamental rights of the accused individual, i.e. his rights to defence, to presumption of innocence, to a fair trial and other pertinent rights.

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THE COURT VIOLATED ANAR MAMMADLI’S RIGHT TO LIBERTY AND PERSONAL INVIOLABILITY

Anar Mammadli

Analysis of violation of law during Anar Mammadli’s judicial proceedings

Baku City Khatai District Court

Case № 4(011)-570/2024

22 August 2024

Presiding judge: Bakhtiyar Mammadov

Defendant: Anar Mammadli

Defenders: Javad Javadov, Elchin Sadigov

 

With the participation of Togrul Huseynov, a Senior Investigator from the Division for Investigation and Inquiry of Special Cases within the Baku Police Headquarter, and Heydar Yusifzade, a Prosecutor from the Department for Supervision over the Execution of Laws in Investigative, Inquiring and Operative Activities of Internal Affairs Bodies within the Baku City Prosecutor’s Office.

In 1999, Anar Mammadli (born in 1978) graduated from the Azerbaijan Foreign Languages University, specialising in German and philology.

In 2000, he graduated from the Maxwell School of Syracuse University in the USA, Faculty of Public Administration. Anar Mammadli has also worked as a reporter and editor for several newspapers.

In 2001, A. Mammadli founded a human rights organisation “Training Centre for Monitoring Elections and Democracy”. In 2008, the organisation’s registration was annulled upon the claim of the Azerbaijan Republic Ministry of Justice.

In 2013, the organisation monitored the elections and was the first one to circulate a report in which stated that there were violations in the election process, thus causing strong objections from the authorities.

On 27 October 2013, the General Prosecutor’s Office of the Azerbaijan Republic initiated a criminal case against the organisation. On 16 December 2013, Anar Mammadli was arrested. On 26 May, 2014, the Baku Court for Serious Crimes found Mr Mammadli guilty and sentenced him to 5 and a half years imprisonment. He was recognised as a political prisoner by both local and international human rights organisations.

On 17 March 2016, A. Mammadli was released in accordance with the decree on pardon. A. Mammadli was a participant of a number of international events.

On 29 April 2024, Anar Mammadli was detained as a suspect in a criminal case under the Article 206.3.2 (Smuggling, is moving large amount through customs border of the Republic of Azerbaijan of goods or other subjects, committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic.

On 30 April, 2024, he was found to be guilty under the above article.

In connection with the charge, an investigator and Prosecutor filed an appropriate petition and submission to the Court with a request to choose a preventive measure in the form of remand in custody for 3 months and 28 days against the accused. In the course of trial, the investigator and Prosecutor upheld the motion and submission, while A. Mammadli stated that his arrest appeared to be of a political nature. On 30 April, 2024, the Baku City Khatai District Court ordered a preventive measure to remand A. Mammadli in custody for the period of 3 months and 28 days.

On 27 August 2024, the chosen preventive measure was about to expire. In this regard, the representatives of the investigative body applied to the Court with a request to extend the preventive measure term for another 3 months. The indicated reason was the case complexity and vast amount of case files.

On 22 August 2024, the Baku City Khatai District Court issued an order: to satisfy the investigator’s petition and Prosecutor’s submission to extend the term of preventive measure in the form of remand in custody against A. Mammadli until 27 November 2024.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The Baku City Khatai District Court ordered a measure of restraint in the form of remand in custody in respect of A. Mammadli on 30 April 2024. There were the following grounds in the  Court’s ruling:

• concealment from the body carrying out the criminal proceedings;
• unlawful pressure on those involved in the criminal process;
• obstruction to the normal course of the preliminary investigation by concealing the materials relevant to the criminal prosecution;
• re-committing an act provided for by the Criminal Law and posing a danger to the society.

In addition, the Court referred to the gravity of the alleged sentence.

In the commented judgement, the Court indicated as grounds for extending the term of the preventive measure: the case complexity, the large number of criminal case files, necessity to conduct expert examinations, as well as the waiting period for responses to enquiries sent to certain governmental structures inside and outside the country.

It should be noted that there are the detailed arguments and reasons given by the investigating authority, while the arguments and reasons provided by the defence are not mentioned at all in the ruling.

The Article 155.2 of the Code of Criminal Procedure of the Azerbaijan Republic states,

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.

The Court, both in imposing the preventive measure and extending its term, failed to take into account the personality, credibility of the accused whether inside or outside the country, ignoring his occupation and marital status.

When imposing a preventive measure or extending its duration, it is necessary to adopt an individualised approach to the case. The judgements should not contain formal and abstract expressions. Each argument must be supported by particular and irrefutable evidence. However, in the case of A. Mammadli, the Court did not demonstrate such an approach.

The Court did not specify why it was necessary to isolate the accused from the society, what danger to the public his freedom posed, and what kind of mass disturbances or public discontent might occur if A. Mammadli were released, for example, on house arrest or  bail.

According to the Article 159.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

At the pre-trial stage, in an exceptionally complicated case, the remand period may again be prolonged by the court: for minor offences, for no longer than 2 (two) months; for serious offences, for no longer than 3 (three months), and for very serious offences, for no longer than 5 (five) months.

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

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

Despite the indicated in the Code of Criminal Procedure of the Azerbaijan Republic Article 159.4, powers the Court did not exercise them and issued a ruling in favour of the investigative body.

The judgment of the European Court of Human Rights (ECHR) in the case of Smirnova v. Russia dated 24 July, 2003 states,

“61. The matter of whether a period of detention is reasonable should not be assessed in the abstract. It must be assessed on a case-by-case basis in accordance with the individual characteristics of the accused. An extended detention may be justified in this case only if there are particular indications that it is genuinely required by a public interest which, notwithstanding the presumption of innocence, outweighs the principle of respect for individual liberty”. – https://hudoc.echr.coe.int/?i=001-61262

The ECHR judgment in the case of Labita v. Italy dated 6 July, 2000, stated,

“According to the Court’s practice, a reasonable term is not subject to an abstract assessment. The reasonableness of an accused’s detention must be analysed on a case-by-case basis in accordance with the particularities of the case. The detention in custody could be justified in a given case only if the specific grounds disclose a public interest prevailing, notwithstanding the presumption of innocence, over respect for individual liberty. It is primarily incumbent on the national judicial authorities to ensure that the period of temporary detention of the accused does not exceed a reasonable limit. To that end, they must consider, taking into account the principle of the presumption of innocence, all the circumstances that enable them to ascertain whether there is a public interest which would justify exceptions to the general rule of respect for individual liberty and take them into account in their judgements on requests for release”. – https://hudoc.echr.coe.int/?i=001-58559

The unreasonableness, one-sidedness, partiality, lack of motivation and arguments in the court ruling to extend the preventive measure in the form of remand in custody led to a gross violation of the right to liberty and inviolability of A. Mammadli, which is guaranteed by the Constitution of the Azerbaijan Republic, Article 28, and the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1).

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