CRITICISING THE AUTHORITIES WILL RESULT IN ARREST AND IMPRISONMENT

Elvin Mustafayev

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

Baku City Binagadi District Court

Case № 4(001)-826/2023

5 August 2023

Presiding judge: Zamiq Bagirov

Defendant: Elvin Mustafayev

Defender: Ilkin Mammadov

The plaintiff: police major Sabuhi Mehbaliyev, an investigator of the Investigative Unit at the Binagadi District Police Department

On 1 August 2023, in Baku, there was a rally organised by the motorbike couriers. They protested against the police that requested their driving licences and the actions of the authorities taking their vehicles to the impound yard. It should be noted that the new law adopted in this field prohibited such actions of the police.

Among those taking part in the rally there were members of the Trade Unions Confederation “Workers’ Table” including an activist Elvin Mustafayev who, in March 2023, had previously been arrested for his critical statements on social media for the period of 30 days. He was arrested for critisising the authorities’ negligence on the water shortage in the Saatly District of Azerbaijan.

This time Elvin Mustafayev was charged with committing an offence under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic. The accusation stated that on 4 August 2023, E. Mustafayev illegally acquired and possessed 3.471 grams of the narcotic drug heroin. The place and source where Elvin Mustafayev purchased the drugs is unknown to the investigation. In the course of operational-search measures he was detained by the police and brought to the Baku City Binagadi District Police Department.

Anar Qafarov, an employee of the Azerbaijani Interior Ministry Press Service, said to the Turan News Agency journalist that Elvin Mustafayev had pleaded guilty. – https://www.azadliq.org/a/elvin-mustafayev-kuryer-etiraz/32537392.html

Sabuhi Mehbaliyev, an investigator, provided similar interpretations to the motion for arrest, and asked the Court to fulfil the request and impose a measure of restraint in the form of arrest on E. Mustafayev.

Elvin Mustafayev, interrogated in the course of the trial, testified that he worked as a courier for the Wolt Company. He had never been involved in drug dealing and, moreover, had always had a negative attitude towards such people, always avoiding them. He also testified that he had been forcibly detained in his yard and forced to “confess” due to threats, which had been recorded on a video. He was threatened to face heavier charges if he failed to admit guilt. He initially disagreed, even though he was told that in case of pleading guilty, the charges would be reclassified to the less severe Article 234.1 (Illegal acquisition, storage, manufacture, processing, transportation without purpose of sale of narcotic drugs or psychotropic substances in significant quantities, committed in large amounts) of the Criminal Code of the Azerbaijan Republic and he would be released. However, he was deceived by the investigating bodies and had to sign the papers in a hurry.

On 5 August 2023, the Binagadi District Court of Baku City issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Elvin Mustafayev in the form of detention for a period of 4 months.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

There are the following objectives in the criminal procedure legislation:

• to defend individuals, society and the state against criminal attempts;
• to defend individuals against abuse of power in connection with the commission of a real or possible offence;
• to detect offences as early as possible, to investigate all the circumstances thoroughly, completely and objectively;
• to prosecute and to incriminate those who have committed offences;
• to conduct judicial proceedings in order to punish persons found guilty of committing offences and to acquit those who are not guilty.
• to apply the criminal law measures against the legal entities for the offences committed by individuals in favour of the legal entity or for the protection of its interests.

Above there is the testimony of the accused E. Mustafayev who prior to this arrest was brought to the administrative responsibility and sentenced to a 30-day administrative detention.

Elvin Mustafayev has described in detail the police officers’ pressure and threats in order to obtain a “confession”. As mentioned above, an employee of the Azerbaijani Interior Ministry Press Service also referred to E. Mustafayev’s “confession”. It can only mean that there will most likely be no irrefutable evidence of his guilt in the case other than the video recording of his “confession”, plus a few forensic medical expertises.

At this stage of the proceedings, we should consider the lawfulness of the preventive measure in the form of arrest.

The judgment of the European Court of Human Rights (ECHR) in the case of Baranowski v. Poland from 28 March 2000 says:

 

“The lawfulness of detention from the point of view of the domestic Law is an essential element but not a decisive one. Moreover, the Court must be convinced that the detention during the period in question fulfils the objective of the Article 5 para. 1 of the Convention in order to protect the individual against arbitrary deprivation of liberty. The Court must therefore be satisfied that the domestic Law itself is in conformity with the Convention throughout, including the principles enshrined or implied therein.” – – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22baranowski%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58525%22]}

In the court ruling, there is a reference on the election of a preventive measure saying that the presumed punishment assumes deprivation of liberty for a term exceeding 2 years. Although the Criminal Procedure Law of Azerbaijan Republic provides this provision, Article 151 of the Azerbaijani Constitution, Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the case law of the European Court of Human Rights (ECHR) completely refute it. According to the Article 151 of the Constitution of the Republic of Azerbaijan,

Whenever there is disagreement between normative-legal acts in legislative system of the Azerbaijan Republic (except Constitution of the Azerbaijan Republic and acts accepted by way of referendum) and international agreements wherein the Azerbaijan Republic is one of the parties, provisions of international agreements shall dominate.

The intended punishment cannot justify the use of the strictest preventive measure, unless there are other justifications.

The judgment of the ECHR in the case of Wemhoff v. Germany from 27 June 1968 states:

“Although the severity of the punishment to which the accused may be subjected if convicted may legitimately be regarded as capable of inducing flight, notwithstanding that the fear lessens as pre-trial detention continues, and that the remaining part of the punishment duration to which the accused may be subjected thereby diminishes, in the meantime there is insufficient scope for cruel punishment in this respect”. –

https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-57595%22]}

 

According to the Article 9.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

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

The ruling on the arrest of Elvin Mustafayev failed to contain any initial evidence that would justify and substantiate the imposition of a preventive measure in the form of arrest. In this case, as in many other cases, the Court did not provide any reasoning arguments in relation to a specific individual.

The Court also referred to the particular gravity of the alleged offence in its judgment, but that was not sufficient justification for the arrest. On this point, the ECHR “recognises that the particular gravity of certain offences may cause a public reaction and social consequences that make pre-trial detention justified, at least for a certain period of time. Under exceptional circumstances, this point may be taken into account in the light of the Convention, at least insofar as the domestic law recognises the notion of a breach of public order resulting from an offence. However, it can only be considered justified and necessary if there are indications that a detainee’s release would actually violate the public order or if that order is actually jeopardised. The pre-trial detention should not be a precursor to a custodial sentence”.

There is no specific ground to believe that such a danger exists, there are just formal general statements in the Court ruling.

The Court regarded Elvin Mustafayev’s testimonies said in the course of trial as inconsistent with reality. The statement concerning the threats from the part of investigating officers the Court didn’t take seriously explaining its deny by the fact that the defendant has a high intellectual level and therefore he (the defendant) wouldn’t be able to believe in such alleged threats.

The Article 33.4 of the Code of Criminal Procedure of the Azerbaijan Republic states,

Judges and jurors may not regard evidence or other materials unfavourably, or attach more importance to one piece of evidence or other item than to another, until they are examined under the statutory procedure.

In the case at hand, the Court actually demonstrated that they did not have any intention to investigate or provide a legal assessment to what Elvin Mustafayev had said.

According to the Article 124.2 of the Code of Criminal Procedure of the Azerbaijan Republic, the following shall be accepted as evidence in criminal proceedings:

• statements by the suspect, the accused, the victim and witnesses;
• the expert’s opinion;
• material evidence;
• records of investigative and court procedures;
• other documents.

As can be seen, the accused’s testimony is the same kind of evidence provided by any others interrogated at the trial. It means that his testimony must be verified, examined and evaluated by the court.

It is inadmissible to accept any information, documents or objects obtained with the use of violence, threat, deceit, torture and other cruel, inhuman or humiliating actions as evidence in a criminal case (Article 125.2.2 of the Code of Criminal Procedure of the Azerbaijan Republic).

Despite the existence of these procedural regulations of law, the Court just took into account the primary evidence provided by the investigative body (e.g.the video recording with the alleged confession of Elvin Mustafayev) but did not consider the accused’s testimony at the trial, on the contrary, treated it in a biased and unlawful manner.

All indicated above lead to the assumption that the arrest of Elvin Mustafayev, a public activist who openly protests against the authorities’ actions, is not of a legitimate nature but as usual has an intention to intimidate individuals engaged in the political, public, journalistic, human rights or other types of activities criticising the current government deeds, as well as gross violations in the field of human rights protection.

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

Bakhtiyar Babashov

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

Criminal Collegium of the Baku Court of Appeal

Case № 4(103)-238/2023

16 March 2023

Presiding judge: Ramin Qaraqurbanli

Judges: Mirzali Abbasov, Anar Ibrahimov

Defender: Bakhtiyar Babasov

Defendant: Zubeyda Sadiqova

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

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

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

However, on very same day, the criminal case against Bakhtiyar Babashov was reclassified to the Article 234.1-1 (Illegal acquisition, storage, manufacture, processing, transportation without purpose of sale of narcotic drugs or psychotropic substances in significant quantities, committed in large amounts) of the Criminal Code of the Azerbaijan Republic.

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

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

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

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

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

 

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

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

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

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

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

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

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

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

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

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

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

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

https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-57595%22]}

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

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

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

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

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

https://hudoc.echr.coe.int/#{%22fulltext%22:[%22Letellier%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57678%22]}

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

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

 

The Paragraph 40 of the mentioned Judgment also says,

 

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

https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-57699%22]}

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

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

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

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

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

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THE UNJUSTIFIED COURT RULING LED TO THE ILLEGITIMATE AND UNLAWFUL ARREST OF ELKHAN ZAMAN

Elkhan Zaman

Analysis of violation of law during Elkhan Zaman’s judicial proceedings

Absheron District Court

Case № 4 (012)-352/2023

15 May 2023

Presiding judge: Sevinj Quliyeva

Defender: Elkhan Zaman

Defendant: Vagif Bayramov

The plaintiff: Majid Majidli, a captain Investigator of the Investigation Division of the Absheron District Police Department

 

Elkhan Zaman, a Shiite believer, was born in Baku in 1968, has a university degree in economics and worked as an accountant prior to his arrest. On 13 May 2023, he was detained due to the deterioration of relations between Azerbaijan and the Islamic Republic of Iran.

He was searched at the Absheron District Police Department, and as a result, it had been found 6.013 grams of the psychotropic drug methamphetamine.

The investigative body charged Elkhan Zaman with committing an offence under the Article 234.1.1 (Illegal acquisition, storage, manufacture, processing, transportation without purpose of sale of narcotic drugs or psychotropic substances in significant quantities, committed in large amounts) of the Criminal Code of the Azerbaijan Republic.

Despite the court’s notification, a prosecutor supervising the preliminary investigation did not attend the trial on which the preventive measure was to be imposed.

The captain of the Investigation Division of the Absheron District Police Department who attended the trial supported his motion and asked the Court to elect a preventive measure against Elkhan Zaman in the form of detention for a period of 4 months. The investigator insisted taking into account the public danger of the offence, potentiality of committing a new offence, or interference in the normal course of the investigation and trial, as well as the risk of absconding from the judicial authority.

In the course of the trial the defendant pleaded not guilty and asked the court to decline the investigator’s request for his detention.

On 15 May 2023, the Absheron District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Elkan Zaman in the form of detention for a period of 3 months.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The National Criminal Procedure Legislation of Azerbaijan is focused on:

• the possibility of identifying and prosecuting anyone who has committed an act that the law recognises as an offence;
• the impossibility of unlawful suspicion, accusation or condemnation of arbitrary actions on the part of officials conducting the criminal proceedings
• non-application of unlawful or unnecessary procedural coercive measures, or other restrictions on human and civil rights and freedoms against anyone (Article 1.2. of Azerbaijan Republic Criminal Procedure Code).

Punishing the guilty one and releasing the innocent are the key principles of justice as enshrined in the above-mentioned law. These principles are particularly important in such judicial systems as in Azerbaijan, where, the judiciary tends to be dependent on the executive power.

Further we shall examine the case in which these principles were also violated.

So, according to the Article 154.2 of the Criminal Procedure Code 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.

As it can be seen, a complete isolation from the society is an arrest, the harshest preventive measure. It has limited applicability in the national criminal procedure legislation. In practice, as a rule, arrest is applied in almost all cases when a detainee is held by the investigative body, and in all cases when the detainee is a political or social activist, journalist, or someone in opposition to the authorities.

The isolation of an individual from the society by means of arrest is such a common phenomenon that courts do not bother to justify rulings on arrest and do not provide any particular reasons. These rulings are usually formal, they are copied from each other and only names and articles have been changed.

The present case does not differ from other similar ones. The judgement in the case of Elkhan Zaman also is formal in nature, referring to the same Articles and lacking any reasoning and justification.

The Decision of the Azerbaijan Republic Supreme Court Plenum “On the practice of the Courts on consideration of applications regarding the preventive measures in the form of arrest and house arrest” from 3 November 2009 stated that the Courts make a number of violations while implementing the legislation, in particular, they do not verify the validity of the submitted applications for the arrests; the rulings do not clarify the grounds for election of the strictest preventive measure stipulated in the AR CC, Article 154.2 ; they use such broad statements as “the risk of absconding from the investigative body”, “interfere with the normal course of the investigation”, “evade appearing upon summons by the body conducting the criminal proceedings”, the Courts do not refer to any factual circumstances supporting the suspicion.

As we can see, the Supreme Court Plenum of the Azerbaijan Republic confirmed the lack of validity not only of the petitions for arrest but also of the judicial rulings.

According to the Supreme Court Plenum Resolution, paragraph 4, it was clarified that the Courts should first of all refer to the Article 154 of the Criminal Code of the Azerbaijan Republic, when considering implementation of preventive measures, and upon satisfaction of the applications they should justify the impossibility of implementation of a preventive measure other than arrest.

Despite the fact that 14 years have passed since the above mentioned Resolution of the Azerbaijan Republic Supreme Court Plenum, the National Courts still commit such mistakes that lead to illegitimate arrests.

The following grounds on the measure of restraint against Elkhan Zaman are stated in the judicial ruling:

• the risk of absconding from the body conducting the criminal proceedings;
• the risk of committing a new offence and danger to the society;
• interference in the normal course of the preliminary investigation.

As noted above, apart from these grounds and listing of the Criminal Procedure Code of the Azerbaijan Republic Articles, there was nothing else in the ruling: not a single argument, reasoning, finding or evidence.

In this case, the arrest of Elkhan Zaman cannot be considered as legitimate and lawful.

The Right to Freedom is enshrined in both National and International Law. Thus, the Article 28 of the Azerbaijani Constitution stipulates the protection of a citizen against arbitrary arrest. The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1), guarantees a fundamental right among the most important Rights: the Right to Liberty and Personal Inviolability. The protection provided by this norm is strict insofar as this Article provides an exhaustive list of deprivation of liberty cases and defines a precise framework to protect individuals from arbitrary detention. To this effect, the European Convention for the Protection of Human Rights and Fundamental Freedoms renders the National Judiciary the true guardian of individuals’ liberty.

The judgment of the European Court of Human Rights in the case of Kurt v. Turkey of 25 May 1998 states:

“The Court notes at the outset the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is precisely for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness  This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5 § 1 circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute” – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22\%22CASE%20OF%20KURT%20v.%20TURKEY\%22%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58198%22]}

The unjustified judicial ruling caused the illegitimate and unlawful arrest of Elkhan Zaman, his groundless, prolonged isolation from the society and the gross violation of his Right to Liberty and Personal Inviolability.

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ELKHAN ALIYEV WAS REPEATEDLY ARRESTED UNDER ADMINISTRATIVE PROCEDURE, BUT NOW THEY HAVE INITIATED CRIMINAL PROCEEDINGS

Elkhan Aliyev

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

 Baku City Sabunchi District Court

Case № 4(008)-595/2023

27 July 2023

Presiding judge: Mirheydar Zeynalov

Defender: Elkhan Aliyev

Defendant: Neimat Karimli

Javid Ahmadov — an investigator at the Sabunchi District Police Department Investigation Unit

The petition for arrest was filed by Ibrahim Lemberanskiy, a Sabunchi district Prosecutor

Elkhan Aliyev, a member of the Popular Front Party of Azerbaijan (PFA) participated in many rallies and actively expressed his position against the authorities on social networks, has been repeatedly arrested under administrative order.

On 26 July 2023, it was initiated a criminal case against E. Aliyev. He was charged with committing offences under the Articles 178.3.2 (Swindle, that is maintaining another persons property or buying another persons property by a deceit or breach of confidence, committed by organized group); 320.1 (Fake of certificate or other official document giving the rights or releasing from duties, with a view of its use or selling of such document, as well as manufacturing in same purposes or selling of counterfeit state awards of the Azerbaijan Republic, stamps, seals, forms) 320.2 (Use of obviously counterfeit documents) of the Criminal Code of the Azerbaijan Republic.

The Press Service of Azerbaijani Ministry of Internal Affairs informed that Elkhan Aliyev, Yusif Aliyev and Vafadar Akhundov were detained in the course of investigative operations following a complaint. According to the Ministry of Internal Affairs information, the three aforementioned individuals sold a land plot in the settlement of Nardaran for AZN 57,000 to some civilian with forged documents.

 

It should be pointed out that a few days prior to his arrest, Elkhan Aliyev posted a video on his Facebook page saying that the authorities had been preparing a provocation against him. However, the Ministry of Internal Affairs claimed that his video was intended to insure his safety in advance.

E.Aliyev said on the video:

“I used to be engaged in buying and selling flats. But I haven’t been doing it for a few months. Then, a man called me and said that he was allegedly looking for a house to buy. I hesitated but showed him a few houses. The man has been following me for 10 days so far. He calls me every day and asks me to find him a house or a summer cottage. Today I also showed him one house that he didn’t like either. Now he has called me for a lunch to get to know me better. I have my suspicions. I’m telling it to let you know. I’m going to meet him now. I believe it’s a game. Yet I am still going to meet him.”

Asif Yusifli, a senior advisor to the PFA Chairman, attributes Elkhan Aliyev’s arrest to his harsh criticism of the authorities on the social networks, as well as to his active work as an organiser within the party, including his efforts in regard to the party’s state registration at the Ministry of Justice of Azerbaijan. See: https://www.amerikaninsesi.org/a/7200559.html

In the course of the trial E. Aliyev did not plead guilty and testified that he had not committed any crime and his actions do not constitute a corpus delicti. Also, Elkhan Aliyev indicated that he had a permanent place of residence and did not intend to hide from either the investigators or the court. He asked the Court to dismiss the arrest petition.

On 27 July 2023, the Sabunchi District Court of Baku City issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against E.Aliyev in the form of detention for a period of 3 months.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The Criminal Procedure Code of the Azerbaijan Republic, the Article 8, enumerates the criminal procedure objectives. This is:

• to defend individuals, society and the state against criminal attempts;
• to defend individuals against abuse of power in connection with the commission
• of a real or possible offence;
• to detect offences as early as possible, to investigate all the circumstances
• thoroughly, completely and objectively;
• to prosecute and to incriminate those who have committed offences;
• to conduct judicial proceedings in order to punish persons found guilty of
• committing offences and to acquit those who are not guilty.

We draw the reader’s attention primarily to the objectives of criminal proceedings mainly for the reason that this legal norm should be an essential basis for the law enforcement officers who carry out legal proceedings. Besides, all these objectives are important not only for them but also for the courts that hear the cases upon completion of the preliminary investigation.

The case of Elkhan Aliyev is no exception to the rule, it fully complies with the rules. Upon examination of the order on arrest it is obvious that the Court has used formal, abstract sentences. The ruling does not contain any facts or arguments to confirm the judgement.

The ruling lists the paragraphs of the Criminal Procedure Code of the Azerbaijan Republic Article 155, which provide the grounds for the application of preventive measures. According to this article, 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.

In their judgements, the Courts must clearly specify the particular grounds that justify the use of the harshest preventive measure. In the particular case, the Court merely listed those grounds.

It is significant that the Court also referred to the Article 155.3.1 of the Criminal Procedure Code of the Azerbaijan Republic, according to which the arrest and alternative measures of restraint may be applied to a defendant accused of committing an offence punishable by deprivation of liberty for a term exceeding 2 years. Although this provision is stipulated in the AR CPC, it contradicts to the International Norms, in particular to the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as to the precedents of the European Court of Human Rights (ECHR). It clearly violates the principle of presumption of innocence.

The Article 151 of the Constitution of the Azerbaijan Republic states:

“Whenever there is disagreement between normative-legal acts in legislative system of the Azerbaijan Republic (except Constitution of the Azerbaijan Republic and acts accepted by way of referendum) and international agreements wherein the Azerbaijan Republic is one of the parties, provisions of international agreements shall dominate”.

However, what we see in practice, as a general rule, is completely opposite. Although the law enforcement and judicial authorities refer to the norms of procedural legislation, they are totally forgetful about the Fundamental Law (Constitution), the obligation to comply with the provisions of International Law and the ECHR precedents mandatory for the Council of Europe member states.

Thus, in the case of Baranowski v. Poland judgment from 28 March 2000, the ECHR states,

“The ‘lawfulness’ of the detention from the point of view of the domestic law is an essential element but not a crucial one. The Court must be further convinced that detention during the period in question fulfils the objective of Article 5 para. 1 of the European Convention, in order to protect the individual from arbitrary deprivation of liberty. Therefore, the Court must be satisfied that the domestic law is in conformity with the Convention, including the principles enshrined or implied therein”.

https://hudoc.echr.coe.int/#{%22fulltext%22:[%22baranowski%20v%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58525%22]}

As mentioned above, Elkhan Aliyev had published a video on Facebook in which he expressed his concerns about a dubious call and an equally dubious request from a stranger. Elkhan Aliyev anticipated his arrest, since he was engaged in active political activity. He had a permanent place of residence and a good record. These and some other arguments could have been the basis for choosing a preventive measure against him not involving an arrest.

According to the Decision of the Supreme Court Plenum of the Azerbaijan Republic issued on 3 November 2009 “On the Court’s Practice on Consideration of Applications Related to Precautionary Measures in the Form of Arrest and House Arrest”, the courts were advised to apply a preventive measure in the form of arrest only if the interests of society outweigh an individual’s right to freedom, i.e. if a person remains at large, this will cause adverse emotions in the society and cause danger to the public.

According to the Resolution of the Azerbaijan Republic Supreme Court Plenum, paragraph 3, it is stated that, in compliance with the legislation, there must be substantive and procedural legal grounds for imposing a preventive measure in the form of arrest against an accused individual. Also, according to the Resolution of the AR Supreme Court Plenum, the Courts should not be limited solely to the formal grounds specified in the Article 155 of the Criminal Procedure Code of the Azerbaijan Republic, whereas each ground must be verified in regard to a particular defendant. It should be taken into account the nature of the committed crime, its gravity, information concerning him/her, including age, marital status, kind of activity, and other circumstances.

The Plenum of the Supreme Court of the Azerbaijan Republic, in the Resolution, paragraph 8, states that the investigation in the above-mentioned procedure does not include the determination of a person’s culpability but rather the verification of the preliminary evidences indicated in the petition and the submission of those evidences indicating that the accused has committed an act stipulated by the criminal law, as well as the existence of procedural grounds for the imposition of a preventive measure. The Courts have also been ordered to pay particular attention to the completion and quality of the documents submitted to the Court by the pre-trial investigation body.  As shown, the unjustified imposition of a preventive measure in the form of arrest results in a violation of the right to liberty in particular and of human rights in general.

The Right to Freedom is guaranteed under the norms of National and International Laws. Thus, the Right to Liberty is enshrined in the Constitution, Article 28, and in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5.

“This Norm refers to deprivation of liberty determined in the criminal context. It is clear that there is a close link between this form of deprivation of liberty and the guarantees that must be accompanied it. It is a corollary to this that any individual detained or imprisoned must be brought before a court, either for the purpose of considering deprivation of liberty or for a judgement on the merits. Nevertheless, there must be substantial grounds to justify the deprivation of liberty. The Convention stipulates that only a well-founded reasonable suspicion that an individual has committed a criminal offence shall justify deprivation of liberty. Therefore, the reasonable suspicion is an essential requirement under the Convention protection against an arbitrary deprivation of liberty. The existence of reasonable suspicion entails, in advance, the availability of facts or information that would convince an objective observer that a particular individual might have committed an offence. What qualifies as reasonable, however, depends on the totality of the circumstances” (“Precedents of the European Court of Human Rights”, Michele de Salvia, St. Petersburg, 2004).

Thus, as indicated above, the imposition of a preventive measure in the form of imprisonment in respect of Elkhan Aliyev was not legitimate, did not comply with the Norms of the Basic Law (Constitution), other laws and by-laws of Azerbaijan, the Norms of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the precedents of the European Court of Human Rights.

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THE COURT’S RULING IS UNJUSTIFIED AND CONTRADICTS TO THE LAW AND PUBLIC INTEREST

Gubad Ibadoglu

Analysis of violation of law during Gubad Ibadoglu’s judicial proceedings

Baku City Narimanov District Court

Case № 4(005)-1112/2023

24 July 2023

Presiding judge: Vusal Qurbanov

Defender: Gubad Ibadoglu

Defendant: Zubeida Sadiqova

Attended by: Yusif Yusifov, a Chief Investigator of the Investigation Department for Combating Organised Crime within the Ministry of Internal Affairs of the Azerbaijan Republic, and Jafar Hasanov, a Prosecutor of the Department of Supervision over Execution of Legislation in Investigation, Inquiry and Operative Investigation Activities within the Internal Affairs Bodies of the Azerbaijan Republic

Gubad Ibadoglu was born in 1971 in Fuzuli district of Azerbaijan. He obtained the secondary school education at a boarding school with a physics and mathematics bias, and he graduated from the State Economic University of Azerbaijan in 1992, then in 1996 he accomplished the postgraduate studies. In 1999-2000 he carried out scientific researches in different European universities. G. Ibadoglu was a member of the “Musavat” party, in 2014, he was nominee for the party chairmanship in the elections, but lost it to Arif Hajili, another party member. On 6 February 2015, he was expelled from the party. On 21 February 2016, he was elected Chairman of the Azerbaijan Democracy and Prosperity Movement.

1. Ibadoglu was a lecturer at the University of London, as well as the author and co-author of many publications in the field of physics and economics.

On 20 July 2023, a criminal case under the Articles 204.1 (Manufacturing with a view of selling, and also buying or selling of counterfeit money, state securities either foreign currency, or securities in foreign currency) and 228.1 (Illegal purchase, transfer, selling, storage, transportation or carrying of fire-arms, accessories to it, supplies (except for the smooth-bore hunting weapon and ammunition to it), explosives) of the Criminal Code of the Azerbaijan Republic was brought against a certain A.A. at the Department for Combating Organised Crime within the Ministry of Internal Affairs of Azerbaijan.

On 24 July 2023, Gubad Ibadoglu was brought to that criminal case under the Article 204.3.1 (Manufacturing with a view of selling, and also buying or selling of counterfeit money, state securities either foreign currency, or securities in foreign currency committed by organized group) of the Criminal Code of the Azerbaijan Republic.

The Baku City Narimanov District Court, considering the imposition of a preventive measure against G. Ibadoglu, ruled to impose a preventive measure in the form of arrest in view of the fact that the accused could escape from the authority in charge of the criminal proceedings, illegally exert influence on the criminal proceedings parties, obstruct the normal pre-trial investigation by withholding the materials relevant to the criminal prosecution, re-commit the criminal offence, pose a danger to the society, and fail to appear at the trial. The Court also pointed out that, in issuing the judgement, it was taking into account the gravity and nature of the offence incriminated against the accused person.

On 24 July 2023, the Baku City Narimanov District Court issued a ruling: to grant the investigator’s petition and Prosecutor’s submission on arrest and elect a preventive measure against G.Ibadoglu in the form of arrest for a period of 4 months, i.e. until 20 November 2023.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. According to the Article 154.1 of the Criminal Code of the Azerbaijan Republic, a restrictive measure is a coercive procedural measure intended to prevent unlawful behaviour by the suspect or accused during criminal proceedings and to ensure the execution of the sentence; it shall be applied in the cases described in Article 155.1 of this Code.

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 Article 155.1 of the AR CPC enumerates the grounds for applying a preventive measure. This is:

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

The Court imposed the harshest preventive measure of arrest against G. Ibadoglu, while stating the following grounds: absconding from the authority conducting the criminal proceedings, exerting illegal pressure on the parties involved in the criminal proceedings, obstructing the preliminary investigation normal course by concealing the materials relevant to the criminal proceedings, repeated perpetration of an offence under the criminal law, endangering society, failure to appear without a valid reason when summoned by the authority conducting the investigation.

Apparently, the Court simply listed the grounds set out in the legislation. However, it failed either to consider each ground separately, or provide arguments justifying the imposition of a preventive measure in the form of arrest, and also the relevance of each ground to a particular individual. There is no information in the judgement that would prove the necessity of isolating the defendant from the society.

As mentioned above, G.Ibadoglu is a scientist physicist, author and co-author of many works on physics and economics, has experience and authority in the political life of the country. The Court, having chosen an arrest, did not take into account Gubad Ibadoglu’s personality, his authority, various regalia, his renown reputation as a scientist inside and outside the country.

In the court ruling, the Court referred to the Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms that protects an individual’s right to liberty and security. However, as usual, the Court interpreted the Article in its own way, without taking into account the case law of the European Court of Human Rights (ECHR). The ECHR stated that the use of a preventive measure in the form of arrest is admissible  if the interests of society outweigh an accused’s right to liberty i.e. if a person remains at liberty, it will cause negative emotions in public and create a danger for society.

In the case of G. Ibadoglu, it happened the opposite. His arrest led to a negative reaction in the civil society as well as international structures. Moreover, the incriminated against G.Ibadoglu Article, by and large, may harm the economic interests of the country but not the society as a whole.

According to the case law of the European Court of Human Rights (ECtHR), it must be reasonable suspicions for an arrest:

“Reasonable suspicion justifying detention is an essential element of the protection against arbitrary deprivation of liberty afforded by Article 5(1)(c). The existence of reasonable suspicion presupposes in advance the existence of facts or information that could convince an objective observer that an individual may have committed the offence. In addition, a constellation of factors will not be sufficient to ground reasonable suspicion where it amounts to only a generalized suspicion”.

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

“…by reason of their particular gravity and public reaction to them, certain offences may give rise to a social disturbance capable of justifying pre-trial detention, at least for a time – factor which might therefore, in exceptional circumstances, be taken into account for the purposes of the Convention, in any event in so far as domestic law recognises the notion of disturbance to public order caused by an offence – however, this ground can be regarded as relevant and sufficient provided only that it is based upon facts capable of showing that detainee’s release would actually disturb public order – in addition detention continues to be legitimate only if public order remains actually threatened – indictments divisions assessed need to continue the deprivation of liberty from purely abstract point of view, taking into consideration only gravity of offence.” – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22Letellier%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57678%22]}

Thus, the Court’s reference to the precedents of the European Court of Human Rights (ECHR) on the prevalence of public interest over an individual’s right to liberty in this particular case has no grounds.

The Court was not guided by the principles of independence and impartiality and issued an order of arrest to satisfy the investigative authorities, failing to provide any arguments and grounds for the imposition of a preventive measure in the form of confinement in custody. The arrest of G. Ibadoglu is illegitimate; his arrest clearly pursues other goals not stipulated by the law. The illegitimate arrest has led to the violation of a fundamental right : the Right to Liberty, enshrined in the Article 28 of the Constitution of Azerbaijan, Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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QIYAS IBRAHIMOV HAS BEEN SUBJECTED TO PERSECUTION AND ARRESTS SINCE 2016

Qiyas Ibrahimova

Analysis of violation of law during Qiyas Ibrahimov’s judicial proceedings

Baku City Nizami District Court

Case № 3(007)-3474/2023

24 June 2023

Presiding judge: Niqar Qadirli

The person against whom an administrative record was issued: Qiyas Ibrahimov

Defender: Elchin Sadigov

On 10 May 2016, Qiyas Ibrahimov, a young activist, was arrested for the first time for graffiti on the monument of ex-president Heydar Aliyev. The graffiti was done together with his friend Bayram Mamedov. On 10 May, Heydar Aliyev’s birthday, they wrote on the monument “Happy Slaves’ Day!”.

Following that, and especially after their arrest, Qiyas Ibrahimov and Bayram Mammadov, his friend and associate, became widely known to the public of the country. Although they were arrested for the graffiti on the monument dedicated to Heydar Aliyev, officially they were formally charged with fraudulent accusations of illegal drug trafficking on a large scale. The Court sentenced both of them to 10 years imprisonment. In the Court of Appeal, Qiyas Ibrahimov faced a new charge of “Contempt of Court” for a phrase he addressed to the judges: “You are puppets in robes”.

Qiyas Ibrahimov and Bayram Mammadov were recognized as “prisoners of conscience” by the local and international Human Rights organizations. In March 2019, due to an act of pardon, the two activists were released.

On 2 May 2021, Bayram Mammadov perished under unclear circumstances in Turkey. The official Turkish authorities’ version was considered to be an accident. His body was found in the sea.

Qiyas Ibrahimov has continued his activity. He had been organizing a number of protests, for which he was repeatedly brought to the administrative charges.

On 20 June 2023, the residents of Soyudlu village in the Gadabay region took to the streets to protest against the contamination of water and soil caused by the industrial waste at the gold mines, which are dangerous to their life and health. As a result, 5 residents as well as activists who expressed their protest on the social networks were arrested. In addition, the journalists who came to the village to cover the events were subjected to physical harassment by the police officers. During the rally, the police used physical force and tear gas against the protesters.

On 22 June 2023, on his Facebook page, Qiyas Ibrahimov published a post expressing his extremely negative opinion regarding the occurred events. He sharply criticized the authorities’ conduct.

On the very same day, a District Police Officer and others came to the Qiyas Ibrahimov’s house while Qiyas’ mother was at home. The policemen detained the activist and demanded to remove the FB post. But Qiyas Ibrahimov refused to do it.

Qiyas Ibrahimov was charged with administrative offence under the Article 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic. On 22 June 2023, the Baku City Nizami District Court issued a ruling against Qiyas Ibrahimov on the basis of which he was found guilty of committing an administrative offense under the same Article 535.1 of the Administrative Offences Code of the Azerbaijan Republic and sentenced to 30 days of administrative detention.

On 24 June 2023, Qiyas Ibrahimov was again brought to the Court.  In this case, he was charged with another Article 388-1.1.1 “Publication of the prohibited information on the Internet resource or telecommunication network, as well as failure to prevent the placement of such an information” of the Administrative Offences Code of the Azerbaijan Republic.

On 24 June 2023, the Baku City Nizami District Court issued a ruling: to find Qiyas Ibrahimov guilty on the charges and sentence him to 32 days of administrative arrest.

From the first day of his arrest Qiyas Ibrahimov announced the beginning of a “dry” hunger strike in protest against the Soyudlu events. As he was very weak due to the hunger strike, Qiyas Ibrahimov was physically brought to the trial at the Court of Appeal. He felt ill and lost consciousness in the courtroom. Then, Shura Amiraslanova, Ibrahimov’s mother, who was in the courtroom, also got unwell. Giyas Ibrahimov remained collapsed for about an hour until the ambulance arrived. He was given medical assistance, and shortly afterwards Ibrahimov stopped his hunger strike.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The above case is a typical example of the right to freedom of expression violation. But this time the Azerbaijani authorities demonstrated “creativity” by charging Qiyas Ibrahimov for publishing prohibited information on the Internet or telecommunication network.

Thus, in the court ruling, there was provided the entire text of Qiyas Ibrahimov’s post, followed by the links to the Law of the Azerbaijan Republic “On Information, Computerization and Protection of Information” and the Code of Administrative Offences of the Azerbaijan Republic.

There is no evidence of Qiyas Ibrahimov’s guilt in the ruling. The Law Enforcement Authorities did not submit any expert opinion that would have evaluated the published post. The Court refers to the Article 13-2.3 of the Azerbaijan Republic Law “On Information, Computerization and Protection of Information”, where listed the examples of prohibited information, as:

• financing and propaganda of terrorism, methods and means of its implementation, organization and carrying out of events for the purpose of terrorism, as well as open calls to terrorism;
• propaganda of violence and religious extremism, open calls for national, racial or religious enmity, violent amendment of the constitutional state order, violation of territorial integrity, violent seizure and retention of power, and mass riots;
• state confidentiality;
• rules or procedures for the manufacturing of firearms, component parts, ammunition, or explosives;
• regulations for the manufacturing of narcotic, psychotropic substances and their precursors, places of their illegal acquisition, as well as locations and methods of cultivating plants containing narcotic substances;
• pornographic material, including those relating to child pornography;
• inciting the organization and participation in gambling and other illegal games;
• advertising suicide as a means for solving problems, advocating, justifying, and inciting suicide, describing methods of committing suicide, and organizing suicide by a group of people;
• movies, television and videos which specify the age requirement in accordance with the Law of the Azerbaijan Republic “On Child Protection from Harmful Information”, including animation movies, computer or other electronic games (except for those in the category of “universal”);
• offensive or defamatory, including those violating an individual’s right to personal privacy;
• false statements damaging to human life and health, property, mass disruption of public safety, vital facilities, financial, transportation, communications, industrial, energy infrastructure activities or statements that create a threat that could have potentially jeopardizing socially harmful consequences;
• information prohibited by the laws of the Azerbaijan Republic.

As can be seen, the Law contains a list of prohibited for publication information. In the Court ruling, there is no reference to any of the above-mentioned provisions, the court did not indicate what kind of prohibited information Qiyas Ibrahimov spread in his posting, what exactly violated his post, whose interests or rights were affected or violated. The ruling contains nothing but broad, formal sentences and superficial references to the law without a relevant interpretation.

The Right to Freedom of Expression is enshrined in both National and International laws. According to the Article 47 of the Constitution of the Azerbaijan Republic,

1. Everyone may enjoy freedom of thought and speech.
2. Nobody should be forced to promulgate his/her thoughts and convictions or to renounce his/her thoughts and convictions.

The International Juridical Norms also point to the Right to Liberty. According to the Article 10 (1) of the European Convention on Human Rights,

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

This provision also contains limitations. Thus, the European Convention states (art. 10, para. 2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

First of all, it is necessary to conduct a test to determine whether there has been interference by the authorities in respect of the right to freedom of expression and whether this interference was legitimate (lawful). The answer to the first question in the present case is “yes, there was”. The answer to the second question can be provided by referring to the national and international legal norms. As mentioned above, the Court did not provide a direct answer to this question in its judgment, as it did not indicate any specific provision that was violated by Qiyas Ibrahimov and which became the reason for his long-term arrest.

If Qiyas Ibrahimov’s post failed to contain anything that violated the Law, it means that his arrest was not legitimate, therefore the Right to his Liberty was also violated. We will discuss it below.

An important aspect of the case is that Qiyas Ibrahimov’s posting did not contain any information but rather his assessments of the events that took place in the village of Soyudlu.

The judgment of the European Court of Human Rights (ECHR) in the case of De Haes et Gijsels v. Belgiumfrom February 24, 1997, it was written,

“The Court reiterates that a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof”. –  https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-58015%22]}

“As regards value-judgments this requirement is impossible of fulfilment and it infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (art. 10) of the Convention.” (Judgment of the European Court of Justice in Lingens v. Austria of July 8, 1986). – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22lingens%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57523%22]}

The arrest of Qiyas Ibrahimov has an intimidating nature for all those who are willing to publicly express their negative opinion on the events taking place in the country.

In this regard, the judgment of the European Court of Justice in the case of Barfod v. Denmark of February 22, 1989 said,

“In the present case proportionality implies that the pursuit of the aims mentioned in Article 10 para. 2 has to be weighed against the value of open discussion of topics of public concern (…). When striking a fair balance between these interests, the Court cannot overlook(…), the great importance of not discouraging members of the public, for fear of criminal or other sanctions, from voicing their opinions on issues of public concern.” – https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-57430%22]}

The European Court “recalls that the dominant position exercised by the State authorities requires it to show restraint when it comes to criminal prosecutions. The authorities of a democratic State must be tolerant towards criticism, even if it may be regarded as provocative or offensive” (judgment of the European Court of Justice in Ozgur Gundem v. Turkey of 16 March 2000). – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22Ozgur%20Gundem%20v.%20turkey%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58508%22]}

In the judgment in the case of Oberschlick v. Austria on 23 May 1991, the European Court recalled “that, subject to the requirements of Article 10 para. 2 of the Convention, freedom of expression covers not only ‘information’ or ‘ideas’ which are regarded as favorable or regarded as harmless or neutral, but also those which offend, shock or cause alarm”.

As you can see, it is not for the first time that the law enforcement and judicial bodies violated the Right to Freedom of Expression. This time it was in relation to Mr. Ibrahimov. The illegitimate arrest also violated the fundamental Right in any democratic society – the Right to Freedom guaranteed by Article 28 of the Constitution of Azerbaijan, as well as Article 5(1) of the European Convention on Human Rights.

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THE JUDGES KEEP ISSUING UNJUSTIFIED VERDICTS AGAINST ABBAS HUSEYNOV

Abbas Huseynov

Analysis of violation of law during Abbas Huseynov’s judicial proceedings

Baku City Nizami District Court

Case № 7(007)-184/2023

27 April 2023

Presiding judge: Nariman Mehdiyev

Defender: Mina Mahmudova

A Prosecutor of the Non-Criminal Prosecution Department at the General Prosecutor’s Office of the Azerbaijan Republic, Huseyn Rustamli

A representative of the Penitentiary Institution No. 1, Vasif Safarov

A detainee, whose transfer was requested by the Penitentiary Institution No. 1 management, Abbas Huseynov

 

Abbas Huseynov was arrested during the events in the Nardaran settlement outside Baku: the events took place on 26 November 2015. At that time, during the clash between the police and settlement residents seven people were killed, four were wounded, and dozens were arrested. The majority of those arrested were members of the opposition “Muslim Unity” Movement. Their Chairman, Tale Bagirzade, was detained in 2015 and sentenced to 20 years imprisonment in 2017. The others arrested were mostly sentenced to 10 to 15 years in jail. According to human rights activists, all of them are on the list of political prisoners.

Along with T.Bagirzade, it was arrested his close friend and fellow member of the “Muslim Unity” Movement, Abbas Huseynov, who was also sentenced to a 20-year-period of imprisonment. While in prison Huseynov suffered numerous incidents of ill-treatment and beatings.

In April 2023, the management of the Penitentiary Institution № 1 addressed to the court with a submission to transfer Abbas Huseynov to the closed-type Gobustan prison. The submission indicated that Abbas Huseynov had committed illegal actions against the order in the courts on several occasions. Also, the inmate was characterized as a person prone to riotous behavior. We recall that the trials in the case took place in 2017. The colony management requested the Court to place that inmate in the closed-type (known as a “roof”) Gobustan prison for a period of 3 years.

On 27 April 2023, the Baku City Nizami District Court issued a ruling: to satisfy the Penitentiary management Institution No. 1 submission and transfer Abbas Huseynov to the Gobustan closed-type prison for a 1-year-period.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. As indicated above, it was written in the submission that A.Huseynov committed illegal deeds in the Court of Serious Crimes and the Court of Appeal in the course of consideration of his case in 2017. Such behaviors were, for example, when A.Huseynov threw his shoes in the direction of a witness or wrote something on the glass wall inside the cage in the courtroom as an act of protest in the Serious Crimes and Appeals Courts. As we can see, there is not a single word in the submission that A.Huseynov should be transferred from the Penitentiary Institution № 1 to Gobustan prison for the actions committed inside the Penitentiary Institution № 1.

The document of the Internal Order in Detention Centers, Paragraph 8, approved by the Decree of the Cabinet of Ministers dated on 26 February 2014, there is a list of the inmates’ duties in places of detention.

The submission states that on 13 August 2017, A.Huseynov was placed in the penalty zone for 3 days since he physically assaulted an institution employee, while banging his head against the wall. However, it does not indicate the employee’s exact name and whether he or Abbas Huseynov suffered any injuries. There was neither any expert opinion on the matter. There was no any evidence submitted to the Court.

The submission also stated that on 4 October 2017, A.Huseynov held radical Shiite discussions among the prisoners, incited them to disobey the staff of the institution demands. As for this ground, there is no information about who these prisoners were, whether they provided any explanations, what kind of pressure A. Huseynov exerted on other inmates.

The institution’s submission also states that on 14 May 2020,  A.Huseynov was placed for 5 days in the penalty area for breaking a telephone set and other equipment, on 15 May 2020, he broke a lamp and tore a towel, on 21 May 2020, he was placed for 7 days in the penalty area for damaging things in the cell. It should be pointed out that no evidences of the above-mentioned actions were submitted to the Court, there were neither any photos of the broken items, nor any acts that should had been drawn up on that occasion.

As it is stated in the Plenum Decision on the Supreme Court of the Azerbaijan Republic, paragraph 12, from 8 October 2010, “On the court practice in regard to release on parole, commutation of the outstanding part of sentence to a milder one, modification of the type of institution to serve the sentence and release on illness”:

“Deliberate violation of the regime is determined by a well-grounded ruling of the prison management simultaneously with the application of penalties to the prisoner”.

Based on the Court’s ruling, it is clear that the judge did not investigate objectively the submission, and the trial was held in a formal manner.

In the course of the trial, the defence argued that A.Huseynov’s forced multiple changes of place detention infringed his right not to be subjected to torture, as provided by the Article 3 of the European Convention on Human Rights and Fundamental Freedoms. It is clearly indicated in the decisions that A.Huseynov was placed in the penalty area more than once, while he was not given an opportunity to appeal against those rulings. It should be underlined that in 2017, when Huseynov was transferred from the Baku Investigative Isolator to the Gobustan prison, he had been beaten by the prison staff and left crucified for hours outside in the cold.

On 26 October, 2000, the European Court of Human Rights judgment in the case of Kudla v. Poland states,

“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 minimum level is inherently relative: it depends on all the case circumstances such as the nature and context of the treatment, the way in which the treatment is performed and the methods used, its duration, its effect on the physical or mental well-being and, in some cases, the sex, age and medical condition of the victim concerned.” – –  https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22kudla%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58920%22]

As it is said in the Paragraph 1 of the European Prison Rules, all persons deprived of their liberty should be treated in a manner that observes their human rights.

According to the Article 3 of the European Prison Rules,

Restrictions placed on persons deprived of their liberty shall be the minimum             necessary and proportionate to the legitimate objective for which they are             imposed.

The Article 59 of the European Prison Rules states:

• Prisoners charged with disciplinary offences shall:
• be informed promptly, in a language which they understand and in detail,
• of the nature of the accusations against them;
• have adequate time and facilities for the preparation of their defence;
• be allowed to defend themselves in person or through legal assistance when
• the interests of justice so require;
• be allowed to request the attendance of witnesses and to examine them or
• to have them examined on their behalf;
• have the free assistance of an interpreter if they cannot understand or speak
• the language used at the hearing.

According to the Article 60 of the European Prison Rules,

 

• Any punishment imposed after conviction of a disciplinary offence shall be
• in accordance with national law;
• The severity of any punishment shall be proportionate to the offence;
• Collective punishments and corporal punishment, punishment by placing in a dark cell, and all other forms of inhuman or degrading punishment shall be prohibited;
• Punishment shall not include a total prohibition on family contact;
• Solitary confinement shall be imposed as a punishment only in exceptional cases and for a specified period of time, which shall be as short as possible;
• Instruments of restraint shall never be applied as a punishment.

At last, the Article 64 of the European Prison Rules states,

Prison staff shall not use force against prisoners except in self-defence or in

cases of attempted escape or active or passive physical resistance to a lawful order and always as a last resort.

It has been said above that coercive measures, such as crucifixion, had been used against A.Huseynov. In this regard, as it is stated in Paragraph 68 of the European Penitentiary Rules, the use of chains and shackles is strictly prohibited.

In view of the above, we can conclude that the biased attitude of the penitentiary institution management and further the Court one resulted in a violation of the prisoner Abbas Huseynov’s fundamental rights, norms of the European Convention on Human Rights and Fundamental Freedoms, precedents of the European Court of Human Rights, and the European Prison Rules, approved by the Committee of Ministers of the Council of Europe.

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THE COURT FOUND THE OPPOSITION ACTIVIST GUILTY AND SENTENCED HIM TO IMPRISONMENT

Zamin Salayev

Analysis of violation of law during Zamin Salayev’s judicial proceedings

Baku City Qaradag District Court

Case № 1(002)-181/2023

22 May 2023 

Presiding judge: Rufan Mursalov

Defendant: Zamin Salayev

Defender: Nemat Karimli, Fakhraddin Mehdiyev

The State Prosecutor: an advisor of justice Seymur Mahmudov, Prosecutor at the Department of Public Prosecution Support in the Courts of Baku City under the General Prosecutor’s Office of the Azerbaijan Republic

Zamin Salayev, the Chairman of the People’s Front Party Salyan branch, has repeatedly been brought to criminal and administrative charges for being active in the opposition party, his participation in various rallies, and for harshly criticizing the authorities on social networks.

 

Z.Salayev’s administrative arrests were mainly related to the Article 535.1 (Failure to obey the legitimate demands of a policeman) of the Administrative Code of the Azerbaijan Republic.

 

In 2020, the Salyan District Court sentenced Zamin Salayev to 2 years and 3 months of imprisonment having found him guilty of committing a crime under the Articles 147.2 (The slander, which is connected with accusation of committing serious or especially serious crime) and 148 (The Insult) of the Criminal Code of the Azerbaijan Republic. On 19 January 2022, Zamin Salayev was released in accordance with an Act of amnesty.

On 7 February 2023, Zamin Salayev was detained by the police on suspicion of committing a crime under the Article 221.3 (The hooliganism committed with application of a weapon or subjects, used as the weapon) of the Criminal Code of the Azerbaijan Republic. As written in the case file, Zamin Salayev inflicted with a knife physical injury to Natiq Suleymanov

In the course of the trial, Zamin Salayev testified that the charges brought against him had been fabricated. Besides, Zamin Salayev testified that on the evening of February 7, 2023, he had been in the outskirts of Baku, at Logbatan circle in order to return home to the Salyan district. Then suddenly a man was heading in his direction shouting obscene language. According to Zamin Salayev, the man abruptly pulled out a knife from his pocket. At that moment he realized that it was a provocation and pushed him away. When he tried to move away, many people gathered around him. He understood that the whole action was planned in advance in order to arrest him. Zamin Salayev considers his arrest as politically motivated.

The Ministry of Internal Affairs of Azerbaijan has spread the information that at night, on 7 February 2023, Zamin Salayev had been detained for inflicting physical injuries to Natiq Suleymanov. – https://www.xural.com/zamin-salayev-haqda-h%C9%99bs-q%C9%99rari-verildi/

On 8 February 2023, the Baku City Qaradag District Court issued a ruling: to satisfy the motion and request, and apply a preventive measure in the form of detention for a period of 3 months to Zamin Salayev

Immediately after his arrest, Zamin Salayev announced a hunger strike protesting against his arbitrary arrest that lasted 112 days. According to his lawyers, Zamin Salayev lost 47 kilos; his weight from 118 dropped to 71 kilos, there were wounds on his body, he had a fever of 33 degrees, his blood pressure was 60/40, and he had difficulties to move.

On 12 May 2023, the U.S. Embassy in Azerbaijan commented on the arrest of Zamin Salayev. An Embassy representative told the “Turan” News Agency:

The United States continues to call on Azerbaijani authorities to release all individuals unjustly or arbitrarily detained for exercising their human rights and fundamental freedoms. –

https://www.amerikaninsesi.org/a/7090232.html

On 2 May 2023, in the Baku City Qaradag District Court there was a preliminary hearing on the case of Zamin Salayev. When testifying at the trial, he could not stand on his feet and was allowed to talk while seated. The wounds on his body were demonstrated to all those at the trial.

At the trial, Mr. Salayev did not plead guilty to the charge brought against him and testified that the case had been premeditated against him, as he was a political activist and chairman of the Salyan branch of the People’s Front Party of Azerbaijan. Zamin Salayev also indicated that he had been with his friend, the lawyer Nemat Karimli, on the day of his arrest. Then, he called for a car in order to go to the Logbatan circle. The victim and witnesses in the case mentioned different time of the event. According to Zamin Salayev, everything happened at 22:30 on 7 February 2023. He was walking along the narrow sidewalk and the victim, Natiq Suleymanov, came down toward him. The latter deliberately stepped on his foot and then started swearing. Suleymanov was holding something shiny in his hands. Having realized that it was a provocation, Z.Salayev pushed N.Suleymanov aside. After that Salayev tried to run away but 10-15 policemen in civilian clothes turned up. They knocked Salayev to the ground and handcuffed him. The policemen took away his phone and bag. Then, he was placed in a Jeep and taken to the 10th police station. There, he was said that the man with whom he had the incident died. Z.Salayev explained that he had not committed a crime, that day he had been drinking wine with friends but he was not drunk and could control himself.

Natiq Suleymanov, who was recognized as a victim, reaffirmed his testimony provided during the investigation and testified that on 7 February 2023, at about 00.30, a man in a black jacket, burly, under alcoholic intoxication, approached him. An argument broke out between them, in the course of which the man pulled out a knife and headed towards him. Upon seeing many people around, the man threw the knife onto the ground. The police officers showed up and grabbed him.

Semral Hamidli and the police officer Emin Mamedov, who were questioned during the trial as witnesses, testified saying that the incident took place at 00:40 on 7 February 2023. They also testified that they saw a well-built man shouting profanities and beating N. Suleymanov. E.Mammadov insisted that there was a knife next to Suleymanov, and there were blood-like drops on the ground. He wanted to call the ambulance service 103, but Natiq Suleymanov said that he would not be able to wait. He got into an unidentified car and, according to him, drove off to the hospital.

The police officers, Afgan Aliyev and Etibar Eyvazov, who were also questioned as witnesses, provided similar testimonies. Bilal Mirzoyev, a witness summoned to the trial, did not appear in the courtroom. He confirmed the testimony provided during the investigation sent by telegram.

According to the conclusion of the forensic medical examination dated 6 March 2023, N. Suleymanov had injuries such as bruises under the eye in the form of hematoma, a cut of the third finger phalanx of his right hand, and two superficial sores on the left side of the abdomen. The bruises under the eye could have been caused as a result of a blow with a blunt object, and the incised wounds could have been caused with a sharp object (perhaps a knife). The date of the injuries matches 7 February 2023.

Based on the results of the forensic medical examination of 10 March 2023, the victim N. Suleymanov’s blood group and that of Z. Salayev, as well as the blood on the victim’s clothes are identical.

The results of forensic dactyloscopy dated 3 April 2023, indicated that the fingerprints found on the knife seized at the scene of the incident, as well as those of Z. Salayev, available in the database, are identical.

The alcohol intoxication examination of 7 February 2023, revealed that Z. Salayev had been slightly intoxicated.

 

The Court considered the recidivism of the committed crime as an aggravating circumstance, and the availability of Salayev’s young daughter as a mitigating one.

On 22 May 2023, in the Baku City Qaradag District Court issued a verdict against Zamin Salayev. He was found guilty on the charges and sentenced to 4 years imprisonment in a strict regime colony.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The Criminal Procedure Code of the Azerbaijan Republic establishes the principles of criminal proceedings. These principles apply from the very beginning to the end of criminal proceedings including trials.

The fundamental ones are legality, equality of all before the law, the Constitutional guarantee of civil Rights and Freedoms, respect of a person’s dignity and integrity, the Right to liberty, inviolability of private life, residence, property, the presumption of innocence, and other related rights.

The participants of the judicial process, including judges, are obliged to protect citizens and society as a whole from arbitrary arrests. Unfortunately, arbitrary arrests are rather the rule than the exception in Azerbaijan. Especially when it comes to political and public activists, journalists, human rights defenders, and simply active members of civil society. In these types of cases, the Courts openly depend on the executive authorities.

The examples of criminal cases monitored by the human rights defenders demonstrate all kinds of gross violations of substantive and procedural laws, the European Convention for the Protection of Human Rights and Fundamental Freedoms Norms, as well as the inconsistency of the judgments issued with the precedents of the European Court of Human Rights, that are mandatory.

The commented criminal case brought against a political activist, member of the opposition Popular Front Party of Azerbaijan, is no different from other “sensitive” cases.

Even if it is written in the Article 10.1 of the Criminal Procedure Code of the Azerbaijan Republic that the Courts and all participants of criminal proceedings must strictly observe the provisions of the Constitution of the Azerbaijan Republic, the Criminal Procedure Code of the Azerbaijan Republic and other legislations of the Azerbaijan Republic, as well as other international agreements involving the Azerbaijan Republic, in practice it does not comply.

In the case there are many nuances, issues that have not been examined and clarified by the Court. The gathered by the pre-trial investigation body evidences, on which the Court has relied in issuing a verdict, to say the least, are untrustworthy.

 

Thus, if we examine the witnesses’ identities called upon by the investigators, we’ll see that among them are mostly the police officers who have a direct interest in the case outcome. Their testimonies are literally indistinguishable from one another and copied from the indictment by the Court. Despite the fact that the police officers’ testimonies are not the only ones in this criminal case, however, they are crucial.

There is no indication of the position and arguments of the defence in the verdict, other than the defendant’s testimony considered to be of the “nature of defence” by the Court. It is indeed the phrase employed in all “sensitive” cases with political connotations.

Moreover, the authorities in charge of criminal proceedings are not allowed to grant anyone involved in criminal proceedings preferential treatment based on citizenship, social, sexual, racial, national, political or religious affiliation, language, origin, wealth or occupational status, beliefs, place of residence, location or other grounds not justified by the law. Discrimination is prohibited in any form.

The statement of the Ministry of Internal Affairs, which referred to the hooliganism committed by Z.Salayev, also confirms the political nature of this criminal case. As a rule, such statements are made by the Azerbaijani Ministry of Internal Affairs in connection to criminal cases initiated against the political activists. The purpose is to introduce the detainee as a criminal to the society prior to the court verdict, which grossly violates the presumption of innocence, enshrined in the Article 63 of the Azerbaijani Constitution, Article 21 of the Criminal Procedure Code of the Azerbaijan Republic and Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

In the judgment of the European Court of Human Rights in the case Allene de Ribemont v. France from 10 February 1995, it is written,

“Freedom of expression as guaranteed by the Article 10 of the Convention applies also to the freedom both to receive and distribute information. Consequently, the Article 6 para. 2 cannot prevent the authorities from informing the public about ongoing criminal investigations but it requires that the authorities exercise their discretion and sensitivity, as required with respect to the presumption of innocence.”

https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Allenet%20de%20Ribemont%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57914%22]}

Despite the fact that the results of the examination confirmed that there were the defendant’s fingerprints on the handle of the knife, it does not indicate the attribution of the knife to Salayev in particular. In this case, all the circumstances of the case should be clearly defined, i.e., by whom this or that act was committed.

As mentioned above, a prosecution witness, Semral Hamidli, testified that he had seen blood-like stains on the ground. It should be recalled here that the event took place at night when it is not easy to distinguish not only who is who but also to see drops of blood on the ground in the darkness. The Court did not establish at what distance from the participants in the event the witness was, what his eyesight was, or whether he could theoretically and practically see what had happened in order to provide such a clear statement. The partiality of the Court is also demonstrated by the fact that the testimonies of the prosecution witnesses were found to be irrefutable by the Court.

These serious violations, mentioned above, led to the fundamental right violation in relation to Zamin Salayev, the Right to Freedom guaranteed by the Article 28 of the Azerbaijani Constitution, Article 14 of the Code of Criminal Procedure of the Azerbaijan Republic as well as by the Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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FOR AN OPPOSITIONAL ACTIVIST IN AZERBAIJAN THERE IS NO ASSURANCE OF LIBERTY OR PERSONAL SECURITY

Zamin Salayev

Analysis of violation of law during Zamin Salayev’s judicial proceedings

Baku City Qaradag District Court

Case № 4(002)-26/2023

8 February 2023

Presiding judge: Teymur Qurbanov

Defendant: Zamin Salayev

Defender: Nemat Karimli

The plaintiff: Farid Seyfalov, an investigator of the Investigative Unit at the Qaradag District Police Department

The applicant: Zafar Ahmadov, the Prosecutor of the Qaradag District

A representative of the Qaradag District Prosecutor’s Office: Medina Pashayeva

Zamin Salayev, the Chairman of the People’s Front Party (PFPA) Salyan branch, has repeatedly been brought to criminal and administrative charges for being active in the opposition party, his participation in various rallies, and for harshly criticizing the authorities on social networks.

Z.Salayev’s administrative arrests were mainly related to the Article 535.1 (Failure to obey the legitimate demands of a policeman) of the Administrative Code of the Azerbaijan Republic. This Article is the most frequently applied to political and public activists in Azerbaijan.

In 2020, the Salyan District Court sentenced Zamin Salayev to 2 years and 3 months of imprisonment having found him guilty of committing a crime under the Articles 147.2 (The slander, which is connected with accusation of committing serious or especially serious crime) and 148 (The Insult) of the Criminal Code of the Azerbaijan Republic. On 19 January 2022, Zamin Salayev was released in accordance with an Act of amnesty.

On 7 February 2023, Zamin Salayev was detained by the police on suspicion of committing a crime under the Article 221.3 (The hooliganism committed with application of a weapon or subjects, used as the weapon) of the Criminal Code of the Azerbaijan Republic. As written in the case file, Zamin Salayev inflicted with a knife physical injury to Natiq Suleymanov.

In the course of the trial, Zamin Salayev testified that the charges brought against him had been fabricated. Besides, Zamin Salayev testified that on the evening of February 7, 2023, he had been in the outskirts of Baku, at Logbatan circle in order to return home to the Salyan district. Then suddenly a man was heading in his direction shouting obscene language. According to Zamin Salayev, the man abruptly pulled out a knife from his pocket. At that moment he realized that it was a provocation and pushed him away. When he tried to move away, many people gathered around him. He understood that the whole action was planned in advance in order to arrest him. Zamin Salayev considers his arrest as politically motivated.

The Ministry of Internal Affairs of Azerbaijan has spread the information that at night, on 7 February 2023, Zamin Salayev had been detained for inflicting physical injuries to Natiq Suleymanov. – https://www.xural.com/zamin-salayev-haqda-h%C9%99bs-q%C9%99rari-verildi/

The investigator and Prosecutor who appealed to the Court with a motion and request for arrest, asked the Court to issue an order for the arrest of Zamin Salayev for a period of 3 months on the evidence of the criminal case.

On 8 February 2023, the Baku City Qaradag District Court issued a ruling: to satisfy the motion and request, and apply a preventive measure in the form of detention for a period of 3 months to Zamin Salayev.

 

Immediately after his arrest, Zamin Salayev announced a hunger strike protesting against his arbitrary arrest that lasted 94 days. According to his lawyers, Zamin Salayev lost 47 kilos; his weight from 118 dropped to 71 kilos, there were wounds on his body, he had a fever of 33 degrees, his blood pressure was 60/40, and he had difficulties to move.

On 12 May 2023, the U.S. Embassy in Azerbaijan commented on the arrest of Zamin Salayev. An Embassy representative told the “Turan” News Agency:

The United States continues to call on Azerbaijani authorities to release all individuals unjustly or arbitrarily detained for exercising their human rights and fundamental freedoms. –

https://www.amerikaninsesi.org/a/7090232.html

On 2 May 2023, in the Baku City Qaradag District Court there was a preliminary hearing on the case of Zamin Salayev. When testifying at the trial, he could not stand on his feet and was allowed to talk while seated. The wounds on his body were demonstrated to all those at the trial. The hearing of the case is continuing.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The Article 155 of the Criminal Procedure Code of the Azerbaijan Republic specifies the grounds for application of such a preventive measure as arrest. They are as follows:

• 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.

 

According to the Article 155.2 of the Code of Criminal Procedure of the Azerbaijan Republic, 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 following grounds for arrest are specified in the Court Order:

• social dangerousness of the committed act,
• previous convictions,
• unexpunged sentence,
• probability of influencing the participants of criminal proceedings,
• presumed punishment for a period of more than 2 years.

The Article 155.3 of the Code of Criminal Procedure of the Azerbaijan Republic states, that arrest, or restrictive measures as an alternative to it, may be applied only as follows:

• to a person charged with an offence punishable by deprivation of liberty for a period of more than two years;
• in order to prevent the acts provided for in Article 155.1.1. and 155.1.2., to a person charged with an offence punishable by deprivation of liberty for a period of less than two years.

Even though the Article refers to an eventual punishment, this Article of the Code of Criminal Procedure theoretically contradicts the Presumption of Innocence.

Yet, another fact can be regarded as a violation of the Presumption of Innocence.

As mentioned above, the Ministry of Internal Affairs released a statement that Zamin Salayev injured Natiq Suleymanov, deliberately introducing Zamin Salayev as a criminal to the public.

It should be noted that the presumption of innocence is stipulated by the Article 63 of the Azerbaijan Republic Constitution, as well as by the Article 21 of the Azerbaijan Republic Criminal Procedure Code and the Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The judgment of the European Court of Human Rights (ECHR) in the case of Barberà, Messegué and Jabardo v. Spain, of June 13, 1994, states,

“The Article 6(2) ” furthermore it requires that in exercising their functions the judges shall abandon the preconceived notion that a defendant has committed a criminal act as the burden of proof is upon the prosecution and any doubt shall be construed for the benefit of the defendant. In addition, it is incumbent upon the prosecution to indicate to the defendant in question what charge he is being subjected to in order to give him an opportunity to be prepared to defend himself, and to offer sufficient evidence to substantiate a plea of guilt” –

https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Barbera,%20Messegue%20et%20Jabardo%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57876%22]}

As it is written in the paragraph 3 of the Decision of the Plenum of the Supreme Court of the Azerbaijan Republic “On the Practice of the Courts Considering Applications for Precautionary Measures of Arrest and House Arrest” dated on 3 November 2009,

“According to the legislation, there must be substantive and procedural legal grounds in order to apply a measure of restraint in the form of arrest against an accused person. The substantive grounds refer to the evidence confirming the attributability of the committed act under the Criminal Code. The procedural grounds consist of the totality of the circumstances set forth in the Article 155 of the Code of Criminal Procedure”.

In Zamin Salayev’s case, there is neither substantive nor procedural grounds provided to the Court.

 

In the paragraph 1 of the Decision of the Plenum of the Supreme Court of the Azerbaijan Republic, it is stated,

 

“While considering the submissions related to the procedural compulsory measures against the defendants, the attention of the Courts should be drawn to the fulfillment of the Article 28 of the AR Constitution, Articles 5 and 6 of the European Convention on Human Rights and Fundamental Freedoms, the requirements of the Criminal Procedure Law, and the practice of the European Court of Human Rights in a timely and qualified manner”.

And yet, another no less significant issue covered in the Resolution of the AR Plenum of the Supreme Court is the issue of alternative measures of restraint. Thus, paragraph 4 says,

“To clarify to the Courts that while considering applications for a preventive measure in the form of arrest, they shall consider the option of other preventive measures provided in the Article 154 of the Azerbaijan Republic Criminal Code, and while satisfying the applications it shall be possible to justify the impossibility of choosing a preventive measure not related to the arrest”.

Whereas in the Court ruling regarding the arrest of Zamin Salayev there is no information on the consideration of alternative preventive measures by the Judge. Moreover, there are no grounds to justify the selected preventive measure in the judgment.

The Court violated the Norms of substantive and procedural laws and as a result Z. Salayev’s right to liberty and security guaranteed by the Article 28 of the Constitution of Azerbaijan Republic and the Article 5(1) of European Convention for the Protection of Human Rights and Fundamental Freedoms.

 

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