AZERBAIJANI CITIZENS ARE DEPRIVED OF THE RIGHT TO PROTEST AND DEFEND THEIR RIGHTS

Tarlan Zeinli (Rauf Heydarov)

Analysis of violation of law during Tarlan Zeinli’s judicial proceedings

Baku City Binagadi District Court

Case № 3(001)-1506/2025

10 March 2025

Presiding judge: Elchin Agayev

The person against whom an administrative record was issued: Tarlan Zeinli

The administrative report was drawn up by: Shahin Sadigov, a District police major at the 5th Police Station within the Binagadi District Police Department

On 8 March, 2025, Tarlan Zeinli (born in 2000), a pro-feminist activist known as Rauf Heydarov on social media, stood in front of the Natavan monument in Baku holding a poster with the arrested female journalists’ faces.

It should be noted that for several years, pro-feminists activists have been organising annual actions in defence of women’s rights in the centre of Baku on 8 March. In 2025, such an action was also held in the central squares of various Azerbaijani cities.

On 8 March 2025, Tarlan Zeinli (Rauf Heydarov) carried out a solitary picket demanding the release of the arrested female journalists. The photo of his action was circulated on Facebook. Under the post he wrote ‘‘Hours intimidating the authorities”. – https://minorityaze.org/en/1589-feminist-activist-rauf-heydarov-has-been-detained

Two days later, on 10 March 2025, T.Zeinli disappeared. His friends and lawyer called the Baku 5th Police Department, but they were told that Tarlan had not been there. According to the activists, the hospital doctors Tarlan visited the day of his detention said that the police officers picked him up and drove away in a civilian vehicle.

Soon, it became clear that T. Zeinli was detained on charges of committing administrative offences under the Article 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic.

As per the indictment, at about 17:00, on 10 March 2025, T.Zeinli spoke loudly on the phone using obscene words outside one of the metro stations in Baku. At that time, the Head of the Baku 5th Police Department urged him to terminate that conversation but T.Zeinli did not obey.

The police officer, who had drawn up the administrative protocol, questioned at the trial provided testimony similar to the one written in the protocol. Besides, he stated that T. Zeinli’s obscene language caused disturbance to the nearby residents.

1. Zeinli, interrogated before the Court, did not plead guilty to the charges and testified that on 10 March 2025, two policemen approached him and demanded to follow them to the 5th police station.

The Court considered as aggravating evidence the fact that T.Zeinli, despite the police warnings, did not cease his misconduct. The Court did not find any mitigating circumstances in the case.

On 10 March 2025, the Baku City Binagadi District Court issued a ruling: to find Tarlan Zeyinli guilty on the charges and sentence him to 30 days of administrative arrest.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

Under the Constitution of the Azerbaijan Republic, Article 24, everyone is entitled to inviolable, irrevocable and inalienable rights and freedoms.

The Article 47 of the Constitution of the Azerbaijan Republic guarantees to each individual the freedom of thought and speech. This provision is also enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10 (1).

As stated above, on 8 March 2025, T. Zeinli held up a poster with images of the arrested female journalists, thereby conducting a solitary protest against those arrests. Thus, he expressed his thoughts and opinions in the form set out above, thereby he should not have been penalised for it.

According tot he Article 10 (1) oft he European Convention on Human Rights,

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.

Paragraph 2 of this Article provides restrictions on the extent to which it may be lawful to interfere with this right. The restrictions are lawful if they:

• are prescribed by law,
• 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,
• for maintaining the authority and impartiality of the judiciary.

The judgment of the European Court of Human Rights in the case of Handysite v. the United Kingdom dated 7 December 1976, says:

“Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. – https://hudoc.echr.coe.int/?i=001-57499

In order to understand whether any interference took place and if it was lawful, we should analyse it. Thus, in this case there was an interference with the right to freedom of expression. To understand whether it was lawful and legitimate, we will consider the facts of violation of the substantive and procedural law.

As seen from the judgement, the Court considered the following as evidence: the submitted the police officer’s reports, an administrative protocol, the police officer and detainee’s testimonies.

The police officer who drew up the protocol was questioned at the trial. He provided the testimony similar to the one stated in the protocol. Whereas the detainee’s testimony indicated that he had not violated the law and been detained by two police officers on 10 March, 2025. He testified, however, that he neither had used obscene language loudly nor expressed disobedience to the police officers.

There were several points in the policeman’s testimony which, under a full and comprehensive investigation, would have proved the detainee’s innocence. So, the policeman testified that T. Zeinli was talking loudly on the phone using an obscene language. Also, the policeman insisted that the loud obscene language caused a disturbance to the public.

If the Court had examined T. Zeinli’s telephone conversations, it would have been clear whether the policeman’s testimony was truthful. As far as the public distress was concerned, there was not a single complaint or petition expressing such distress or dissatisfaction. There are substantiated doubts in this case that the police officer was not impartial in his investigation.

The testimony of the detainee T.Zeinli was not examined at all. He said that he had been detained outside one of the metro stations. As a rule, there are always cameras installed in such crowded places that should indicate exactly what was going on from the angle of the given camera.

In this case, the Court did not take any initiative in requesting additional evidence that could prove either guilt or innocence of the detainee.

According to the Article 83.1 of the Administrative Offences Code of the Azerbaijan Republic,

A judge, an authorized body (official), who is conducting a case on an administrative offense, may make a decisio additional information necessary for the resolution of the case.

The Court proceeded as it does in most cases, e.g., it accepted the police officer’s testimony and documents submitted by the police as irrefutable evidence.

The Article 76.1 of the Administrative Offences Code of the Azerbaijan Republic states,

Any factual information on which a judge, competent body (official) can be based to determine the presence or a administrative error, the guilt of the person committing an administrative error, and other circumstances important fo resolution of the case shall be considered as evidence in cases of administrative errors. This information is provided with mater explanations of the person, the victim, witnesses, other documents, indicators of special technical means , in the information body (institution) determined by the relevant executive authority, as well as in other state information systems. It is determined by the info [59] in (reserves), the expert’s opinion, the administrative error protocol, and other protocols defined by this Code.

According to the Article 84.1 of the Administrative Offences Code of the Azerbaijan Republic,

The judge, competent body (official) who hears cases on administrative errors evaluates the evidence based on a com complete and objective review of all the circumstances of the case.

Pursuant to the Article 53.0.1 of the Code, the initiated proceedings shall be ceased if there is no administrative misdemeanour.

Apart from breach of procedural law norms, there was also a violation of substantive law norms in the matter. In this case, the Court did not clarify why the detainee was sentenced to 30 days of administrative confinement, why the strictest measure of punishment was applied, and why an alternative punishment not related to arrest was not imposed instead.

The Articles under which T.Zeinli was charged referred to an alternative punishment, such as a fine. However, the Court did not apply that sanction to the detainee without explaining their reasons.

It should be noted that the above-mentioned Articles are frequently used against the activists in order to intimidate them. All court judgements in these cases are written in a very similar way, with formal and abstract terms. There is no individual approach to each specific case in these rulings.

All of the above points to the fact that T. Zeinli’s guilt was not proved by the Court, and doubts were not cleared or interpreted in his favour. His detention, appearance before the Court and further sentence were not of a lawful and legitimate nature.

Thus, the breach of the norms of substantive and procedural Law led to the violation of fundamental human rights and freedoms, notably the right to freedom of expression, the right to a fair trial and, most importantly, the right to liberty and inviolability of individual.

THE COURT HAS GROSSLY VIOLATED THE RIGHTS OF AZER QASIMLY

Azer Qasimly

Analysis of violation of law during Azer Qasimly’s judicial proceedings

Baku City Yasamal District Court

Case № 4(004)-1087/2024

9 December 2024 

Presiding judge: Orkhan Mammadli

Defendant: Azer Qasimly

Defenders: Aqil Layij, Rovshana Rahimli

With the participation of Jeyhun Mirjavadli from the Baku City Yasamal District Police Station Investigation Department

Azer Qasimly (born in 1975) a political scientist and Head of the Institute of Political has been a participant of many political conferences. In 1997 he took part in the conference of young sociologists and political scientists in Kiev, his analysis was published in the collection of articles concerning the conference resolutions.

In 2008-2009,  the journal ‘Policy’ published A.Qasimly’s series of articles. In the period from 2005 to 2010 he participated in business projects in Germany, Estonia and Russia. However, Qasimly decided to return to Azerbaijan to be engaged in political activity. Starting from 2011 and up to 2019, he held various managerial positions in the ReAl political movement in Azerbaijan. In 2019, Gasymly left ReAl and started his political science career creating the Institute of Political Management, the Head of which he had been until his arrest.

On 8 December 2024, he was detained and charged with committing a crime under the Article 182.3.2 (Extortion, committed with a purpose of occupying large scale of property) of the Criminal Code of the Azerbaijan Republic.

According to the investigation, in 2022-2023, A.Qasimly extorted a large sum of money from his acquaintance, Qurbanali Yusifov. The investigator appealed to the Court with a motion to select a preventive measure in the form of arrest for  the period of 4 months against A. Qasimly.

At the trial, Mr Qasimly pleaded not guilty to the charges and asked the Court to dismiss the investigator’s motion.

The defence indicated that there was a civil dispute between A.Qasimly and Q.Yusifov, a complaint concerning that dispute has been sent to the Sheki Court of Appeal. His lawyer also clarified that in the civil case there had been a receipt signed by Yusifov obliging him to return Qasimly’s money that Yusifov had borrowed. Qasimly was forcibly detained in front of his young son.

On 9 December 2024, the Baku City Yasamal District Court granted the investigator’s petition to impose a measure of restraint in the form of detention in custody for a period of 4 months against A. Qasimly.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

According to the Article 148.3 of the Code of Criminal Procedure of the Azerbaijan Republic,

if there is other information giving grounds to suspect a person of committing an act provided for in criminal law, he may be detained by the preliminary investigator, another official of the investigating authority, the investigator or the prosecutor in the following cases:

• if he tries to escape from the crime scene into hiding, or to hide from the prosecuting authority;
• if he has no permanent home or lives in another area;
• if his identity cannot be established.

As stated above, A.Qasimly was detained in a rough manner in front of his minor son, without any reason to do so, as there were no grounds on which a particular person could be detained by the law enforcement officers in such a manner.

The Article 155 of the Criminal Procedure Code of the Azerbaijan Republic lists the grounds on which the Court may impose a preventive measure on the accused:

• 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 that case, the Court indicated the following grounds in its ruling:

• hiding from the body conducting the criminal proceedings;
• recommitting an act stipulated by the criminal law;
• obstructing the normal course of the preliminary investigation or Court proceedings with unlawful pressure on the individuals engaged in the criminal proceedings;
• committing a particularly grave offence by the accused.

Interestingly, the Court justified the likelihood of hiding from the investigating authority by the severity of the presumed punishment without indicating any valuable arguments proving that assumption.

According tot he Para. 3 of the Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms,

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

The judgment of the European Court of Human Rights (ECHR) in the case of Aguilina v. Malta dated 29 April 1999 states,

“…His counsel drew the court’s attention to Article 5 § 3 of the Convention which, according to him, obliged the court to examine of its own motion whether the circumstances of the case justified his continued detention. The Court of Magistrates ruled as follows: According to the constant practice of this Court and according to the Criminal Code, this Court cannot consider any circumstances at this stage and has to regulate itself according to the charges brought forward by the prosecution. The Court, furthermore, cannot enter into any question to consider ex officio the release from arrest, but first an application has to be filed which has to be notified to the Attorney-General, and after his reply or failing such a reply after the time set by law, it may decide on release under guarantees. Therefore what the defence is requesting is outside the functions of this Court.” – https://hudoc.echr.coe.int/?i=001-58239

The judgment of the ECHR in the case of Asenov and Others v. Bulgaria dated 28 October, 1998, states,

“…preliminary inquiries regarding alleged police misconduct should include the examination of independent witnesses, and that further investigations should therefore be carried out. Thus, the “officer” must be independent of the executive and the parties (ibid.). In this respect, objective appearances at the time of the decision on detention are material: if it appears at that time that the “officer” may later intervene in subsequent criminal proceedings on behalf of the prosecuting authority, his independence and impartiality may be open to doubt. The “officer” must hear the individual brought before him in person and review, by reference to legal criteria, whether or not the detention is justified. If it is not so justified, the “officer” must have the power to make a binding order for the detainee’s release.”  – https://www.srji.org/resources/search/33/

In the particular case, the ‘official’ should be understood as the court that considered the application of a preventive measure against Mr Qasimly. It is evident from the judgement that the Court stated only that a measure of restraint in the form of arrest could be applied to Qasimly, without indicating the specific circumstances and arguments justifying the imposition of the harshest measure of restraint.

Moreover, the Court didn’t consider either a detainee’s or defence’s testimonies. At this stage of the case, the Court took into account only the testimony of the person recognised by the investigating authority as a victim.

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

In resolving the question of the necessity for a restrictive measure and which of

them to apply to the specific suspect or accused, the preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court shall bear in mind:

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

The moral character of the accused, his impeccable authority within and outside the country, his level of education and upbringing, his permanent place of residence, place of work, marital status, custody of minor children, absence of any offences in the past were ignored by the Court.

As the lawyer pointed out at the trial, there had been a civil dispute between the defendant and victim, which was currently pending before the National Courts. There was no corpus delicti in the actions of the accused. The prosecution was based just on the victim’s testimony.

The Court justified the imposition of a preventive measure in the form of arrest by recalling the gravity of the charge, according to which there is a punishment of more than 10 years. Despite the fact that the Article 155.3.1 of the Code of Criminal Procedure of the Azerbaijan Republic states that arrest may be applied to the individuals accused of committing an offence, for which a punishment of imprisonment for a term exceeding 2 years may be imposed, however, this Norm violates the principle of presumption of innocence enshrined in the Article 63 of the Constitution of the Azerbaijan Republic and Article 6.2 of the European Convention.

Furthermore, the Constitution of the Azerbaijan Republic stipulates in its Article 151 that in the event of contradiction between the legal acts within the legislative system of the Azerbaijan Republic and the inter-State treaties of which the Azerbaijan Republic is a party, the international instruments shall be applied.

In this case compliance with the Article 6.2 of the European Convention would be more appropriate rather than invoking the Code of Criminal Procedure of the Azerbaijan Republic Article 155.3.1.

In addition, the ECHR case laws also enshrine the principle of presumption of innocence as one of the most important elements of a fair trial.

Thus, the ECtHR judgment in the case of Van der Tang v. Spain of 13 July 1996 states,

“The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices: the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty.” – https://hudoc.echr.coe.int/?i=001-57946

The Court did not consider any alternative preventive measures other than arrest. There was no need to isolate Mr Qasimly from the society in the pre-trial period, there were no grounds or evidence and arguments for imposing a preventive measure in the form of arrest. The arrest of Qasimly is not legitimate. It is unlawful and illegal. The Court should have applied a different preventive measure not related to arrest, as the defence was willing to provide the guarantees established by Law.

The ECHR judgment in Wemhoff v. Germany dated 27 June 1968, states that if a detention in custody is maintained only because of a fear that the accused would abscond from the justice system, he should nevertheless be released from the detention if he provided appropriate guarantees.  – https://hudoc.echr.coe.int/?i=001-57595

The violations of the substantive and procedural norms committed by the Court in the application of the preventive measure adopted by the European Convention, ratified by the Azerbaijan Republic, as well as the ECHR precedents, resulted in a gross violation of A.Qasimly’s fundamental rights, e.g. the Right to Liberty and Personal Inviolability as well as the Right to Presumption of Innocence.

FREEDOM IS NOT GUARANTEED TO A FREE-THINKING CITIZEN IN AZERBAIJAN

Elshan Alakbarov

Analysis of violation of law during Elshan Alakbarov’s judicial proceedings

Ganja City Grave Crimes Court

Case № 1(100)-290/2024

21 October 2024

Presiding judge: Natiq Aliyev

Judges: Mikayil Mammadzade, Dadash Imanov

Defendant: Elshan Alakbarov

Defender: Nadim Heydarov

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

On 21 October 2023, Elshan Alakbarov (born in 1978) was detained on 21 October 2023. He was charged under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic.

On 23 October 2023, the Ganja City District Court issued a ruling against Elshan Alakbarov in the form of detention for a period of 2 months in a pre-trial detention center.

According to the investigation, on 21 October 2023, at about 17.45, Elshan Alakbarov was detained during the operative-search measures in Ganja city. In the time of personal search it was found 10.154 grams of artisanal heroin wrapped in a cellophane bag in his trouser pocket.

The accused E. Alakbarov, interrogated at the trial, did not plead guilty to the charge and testified that on 21 October 2023, three police officers detained him at his workplace and brought to the police department. As they had put a shirt over his face, he could not see their faces. At the police station, he was taken from the back door straight to the Police Head. In the room there was a man who told him that he had been ordered to come from Baku. He took a package placed on the top of cabinet, put it in front of Elshan and said, “It is yours, take it and put in your pocket.” On which E. Alakbarov replied, “If it is mine, why it is in your office. The Head by the name Shahin hit him on his right ear and said, “I’m telling you once again, put it in your pocket and then you will serve just a year or a year and 6 months, after which you be free.”

1. Alakbarov replied that he had never taken drugs and had nothing to do with it. Then Shahin said that if he would not do so, three policemen standing there would come to his house and place the drugs there. E. Alakbarov agreed to do what he was demanded. About an hour and a half later, a personal examination was carried out and videotaped. The video was interrupted several times at the moments when Shahin threatened E. Alakbarov.

At the last shooting, E. Alakbarov was forced to admit that he had been using drugs, that he had found them on the roadside, and when he wanted to throw it away, he was detained by the police officers. During the detention, his student, Emin Makhmudov, was next to him.

The police officer Orkhan Agazade, questioned as a witness at the trial, testified that on 21 October 2023, it was created an operational-investigation group on the basis of operational information. E. Alakbarov was detained on one of the avenues of Ganja city and brought to the Ganja Police Department. A narcotic drug weighing about 10 grams was found in the detainee’s pocket, it was packed and sent for expertise.

Further, the witness testified that in the course the detention E. Alakbarov was alone, no physical or psychological pressure had been applied to. Apart from him, the detention had been carried out by another police officer A.Khokmaliyev who also was questioned as a witness and confirmed Orkhan Agazadeh’s testimony at the trial.

Emin Makhmudov testified that he was next to E. Alakbarov at the time of detention. He was detained while leaving the shop. Two police officers, without identifying themselves, took him under the arms in their car. The third policeman was in the car and forced E. Alakbarov inside.

The conclusion of the Ganja City Necrological Dispensary from 31 October 2023 is proved that E. Alakbarov periodically took the drugs but he was not a drug addicted. Therefore, he was not required any compulsory medical treatment. E. Alakbarov was not registered in the mentioned dispensary.

There are the documents in the criminal case file confirming that E. Alakbarov has three young children, and also medical epicrises, which reveal that E. Alakbarov has an oncological disease, i.e. soft tissue sarcoma (soft tissue tumour of the frontal bone). As a result of the disease, he has the second disability group.

It is also revealed that E. Alakbarov’s son, Murtaza Alakbarov, suffers from a serious illness and needs other people for care and support.

The Court treated the defendant’s given at the trial testimony critically and considered it as the nature of defence, not supported by other evidence. At the same time, the Court noted that the accusation concerning the sale purpose had not been proved by the investigative body. There were no evidences that E. Alakbarov had engaged in a criminal conspiracy with anyone in order to sell the drugs.

In view of this, the trial substituted the previous Article of the Prosecution with a new one, 234.1-1 (Illegal acquisition or storage of drugs or psychotropic substances without the purpose of sale in an amount exceeding the amount necessary for personal consumption, committed in a large amount) of the Criminal Code of the Azerbaijan Republic.

On 21 October 2024, the Ganja City Grave Crimes Court issued a verdict against Elshan Alakbarov: he was found guilty of committing a crime under the Criminal Code, Article 234.1-1 and sentenced him to 3 years and 6 months of imprisonment in a general regime penal institution.

 Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

No one doubts that the main principle of criminal proceedings is the principle of lawfulness enshrined in the Criminal Procedure Code of the Azerbaijan Republic (CPC AR), Article 10.

According to the Article 10.1 of the Code of Criminal Procedure of the Azerbaijan Republic, the courts and participants in criminal proceedings shall conform to the Constitution of the Azerbaijan Republic, this Code, other laws of the Azerbaijan Republic as well as provisions of the international agreements to which Azerbaijan is a signatory.

It means that all participants in the process should act only within the framework of the established law. Furthermore, they must comply not only with the provisions of national legislation but also those of the international laws, namely the Conventions and Covenants ratified by Azerbaijan.

The laws of the Azerbaijan Republic must comply with the international norms. According to the Article 151 of the Constitution of the Republic of Azerbaijan, if a conflict arises between normative legal acts of the legislative system of the Republic of Azerbaijan (with the exception of the Constitution of the Republic of Azerbaijan and acts adopted by referendum) and inter-state treaties to which the Republic of Azerbaijan is a party, the international treaties shall apply.

Despite the substantive norms mentioned above, the Courts are evasive, as can be seen in the case discussed below.

In any criminal case, one of the most important points is the evidence in the case.

As stated in the Article 124.1 of the AR Code of Criminal Procedure, the evidence in a criminal prosecution shall be credible proofs (information, documents, items) obtained by the Court or participants of the criminal proceedings.

The Article 124.1 of the Code of Criminal Procedure of the Azerbaijan Republic states, that reliable evidence (information, documents, other items) obtained by the court or

the parties to criminal proceedings shall be considered as prosecution evidence. Such

evidence:

• shall be obtained in accordance with the requirements of the Code of Criminal Procedure, without restriction of constitutional human and civil rights and liberties or with restrictions on the grounds of a court decision (on the basis of the investigator‘s decision in the urgent cases described in this Code);
• shall be produced in order to show whether or not the act was a criminal one, whether or not the act committed had the ingredients of an offence, whether or not the act was committed by the accused, whether or not he is guilty, and other circumstances essential to determining the charge correctly.

According to the Article 125.1 of the Code of Criminal Procedure of the Azerbaijan Republic, if there is no doubt as to the accuracy and source of the information, documents and other items and as to the circumstances in which they were obtained, they may be accepted as evidence.

The Article 125.2 of the Code of Criminal Procedure of the Azerbaijan Republic indicated, that information, documents and other items shall not be accepted as evidence in a criminal case if they are obtained in the following circumstances:

• if the accuracy of the evidence is or may be affected by the fact that the parties to the criminal proceedings are deprived of their lawful rights, or those rights are restricted, through violation of their constitutional human and civil rights and liberties or other requirements of this Code;
• through the use of violence, threats, deceit, torture or other cruel, inhuman or degrading acts;
• where the rules governing investigative or other procedures are seriously violated.

The following evidences are submitted as proof in the criminal case: the defendant’s testimony during investigation and at the court, the policemen’s testimonies, the forensic chemical and necrological expertise results, the reports of an investigation-operative group, the protocols of detention, personal examination, seizure of documents and etc.

The defendant described in detail everything that had happened since his arrest and named those who had been around him at the time. It is logical that other than his words there was no any other proof provided as he was in custody. However, the fact that the accused has described the threatening in detail, and testified freely before the Court, indicates that the pressure from the police officers took place. Again, in view of the poor practice of law enforcement agencies, and in particular in cases of drug offences, it is highly credible.

Despite the contradictions in the defendant’s testimonies, the Court did not take initiative to verify any, identify the perpetrators and bring them to justice. The Court only assessed the testimonies as being in the nature of a defence. The defendant’s testimony concerning the presence of another person at the time of his arrest was confirmed by a witness who was with him.

The Court preferred to believe the police officers’ testimonies, the ones who denied that the presence of another person at the time of arrest, although the interest of the police in the outcome of the case was obvious.

The Court also referred in its conclusion to the forensic necrological examination, which revealed the presence of narcotic substances in the defendant’s blood. If approaching the issue theoretically, it is certainly feasible. But the accusation was about the possession of a large-scale drugs, and it was directly linked to the discovered narcotics. Explaining that, the defendant testified he had nothing to do with the drugs. In this case, the Court was obliged to establish the attributability of drugs to the accused.

According to the Article 127.3 of the Code of Criminal Procedure of the Azerbaijan Republic, the expert’s opinion shall not be binding on the preliminary investigator, investigator, prosecutor or court; it shall be checked by the prosecuting authority in the

same way as any other evidence and evaluated in the light of all the relevant facts. If the opinion is not approved, a reasoned decision to that effect shall be given.

The Court’s tendency to believe the prosecution’s arguments and deny any of the defence’s is a sign of bias and partiality on its part.

According to the para 2 of the Article 127 of the Constitution of the Republic of Azerbaijan, judges shall consider cases impartially and fairly, observing equality between the parties, on the basis of facts and in conformity with the law.

The Court’s partiality can also be determined by violations of the presumption of innocence. The presumption of innocence is enshrined both in the Constitution, Article 63 and Article 21 of the AR Code of Criminal Procedure, as well as in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(2).

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

The Court did not construe the doubts and contradictions in favour of the accused. It rendered an improper legal assessment.

The judgment of the European Court of Human Rights in the case of Minelli v. Switzerland dated 25 March 1983, said,

“The presumption of innocence enshrined in paragraph 2 of Article 6 is one of the fair trial elements referred to  the same Article, paragraph 1. This principle is violated if the court declares a defendant guilty while his guilt has not been proved beforehand. If there is no formal proof of guilt, the judge’s motivation should be given reasons to assume a defendant’s guilt.”- https://hudoc.echr.coe.int/?i=001-57540

The issues that judges discuss at the end of the trial, among others, also concern the imposition of punishment.

Thus, the AR Code of Criminal Procedures, Article 346.1, provides a complete list of issues. We shall examine those that the courts must consider in connection with imposing a punishment.

They are as follows:

• whether the accused should be punished for the act committed;
• whether there are grounds for punishing the accused for reoffending;
• which punishment to impose on the accused;
• whether the accused should serve the sentence;
• if the accused is sentenced to deprivation of liberty, to which penal or corrective institution he should be committed;
• whether it is necessary to impose additional penalties on the person found guilty of the offence, and if so, which penalty.

As indicated above, the defendant suffers from a cancerous disease and has a second disability group. He also has three children in his care, one of whom has a serious illness and needs constant assistance. However, the Court accepted only the presence of his children as mitigating circumstances in its judgement. But the defendant’s oncological disease and disability group were not taken into account. If a preventive measure in the form of arrest had been chosen prior to the trial, then the court was obliged to consider the necessity of such a measure during the proceedings. At the trial, all the evidence in the case had been compiled, examinations had been carried out and witnesses had been questioned. In such a case, given the defendant’s serious health problems, the Court was under an obligation to change the preventive measure to an alternative one not related to detention.

Thus, the AR CPC, Articles 155.2 to 155.2.2.2, provide that when considering the appropriateness of a preventive measure and the type of one to be applied to a particular suspect or defendant, the investigator, inquirer, prosecutor supervising the preliminary investigation or Court shall take into account the personality, age and health of a suspect or defendant, his/her occupation, family, material and social status, including the presence of dependents and permanent place of residence.

The Article 157.8.1 of the Code of Criminal Procedure of the Azerbaijan Republic states, according to medical opinion, the seriousness of the accused person’s illness makes it impossible to detain him on remand.

Thus, the biased and one-sided approach of the Court, its acceptance of the Prosecution’s evidence as irrefutable, its disregard of the defence’s arguments, its failure to investigate contradictions in the defendant’s testimonies and other procedural irregularities have led to the violation of the fundamental rights of the individual accused, i.e. the Right to Liberty and Personal Inviolability, the Right to Presumption of Innocence, the Right to a Fair Trial, the Right to Prohibition of Torture and Ill-treatment and other related rights enshrined in the National and International Norms.

ANOTHER FUNDAMENTAL VIOLATION BY THE AZERBAIJANI AUTHORITIES IN RESPECT OF THE RIGHT TO LIBERTY

Nijat Ibrahim

Analysis of violation of law during Nijat Ibrahim’s judicial proceedings

Baku City Nasimi District Court

Case № 4(006)-509/2024

11 September 2024 

Presiding judge: Anar Ibadzade

Defendant: Nijat Ibrahim

Defenders: Zibeyda Sadigova, Farhad Aliyev

With the participation of Murad Quliyev, a Colonel-investigator from the Baku City Nasimi District Police Station Investigation Department

Nijat Ibrahim is a social activist, he had participated in many rallies. On 20 July 2020, he was detained during the demonstration near the Presidential Administration building, accused of violating sanitary regulations and spreading coronavirus.

On 5 March 2021 the Baku City Nasimi District Court sentenced Nijat Ibrahim to 1 year and 3 months in prison.

Once again, N. Ibrahim was detained at the Baku airport checkpoint on 6 September 2024. He was informed that the Azerbaijani Ministry of Internal Affairs announced ban on him crossing the border of the Azerbaijan Republic. Earlier, his wife with two children left the country to Moldova.

Ibrahim’s lawyer, Z. Sadigova, said that if the travel ban was not cancelled, he would commit an act of self-immolation in front of the Ministry of Internal Affairs building. The officials did not provide any reasons behind the prohibition.

On 9 September 2024, N. Ibrahim was charged with committing a crime under the Article 126.1 (Deliberate causing of serious harm to health) of the Criminal Code of the Azerbaijan Republic (CC AR).

1. Ibrahim’s spouse told the press that at the police station, Ibrahim took a cutting device from the table and cut his throat in order to protest. He was taken to the hospital where the doctors put 17 stitches on his throat.

According to the investigation, on 9 September 2024, being at one of the gas stations in Baku, a dispute broke out between N. Ibrahim and a certain Bahman Aliyev, as a result of which Ibrahim stabbed him with a knife; two wounds under the rib were qualified as a serious assault.

However, the defence states that on 9 September 2024, an unknown individual approached N. Ibrahim and hit him. As a result, Nijat fell to the ground. At that moment, the police officers approached him, covered his eyes and grabbed him away. Since Nijat Ibrahim did not plead guilty, he was subjected to physical pressure by the police officers.

The Prosecutor and Investigator made a submission and motion to the court, respectively, and requested the Court to take a preventive measure against N. Ibrahim in the form of detention for a period of 4 months.

The defence asked the Court to reject the Prosecutor’s submission and investigator’s motion.

On 11 September 2024, the Baku City Nasimi District Court issued a ruling: to apply a preventive measure against Nijat Ibrahimov in the form of arrest for a period of 4 months. He was transferred to the Baku City Investigative Isolator No. 1, where he is kept up today.

As N. Ibrahim’s wife stated “while in the isolation centre, he again tried to suicide”.

On 12 December 2024, N. Ibrahim was charged with other offences under the Articles 126.2.4 (Deliberate causing of serious harm to health, committed publicly dangers a way, from hooligan prompting) and 221.3 (Hooliganism committed with application of a weapon or subjects, used as the weapon) of the CC AR.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

As grounds for imposing a measure of arrest, the Court indicated the following:

• the classification of the offence as a serious one;
• the probability of committing a new offence;
• the concealment from the investigative body.

According to the law, a preventive measure against a suspect or accused person must not be chosen arbitrarily. It must be legal and lawful, i.e. it must be in accordance with the criminal procedure law and pursue a legitimate aim.

The Article 156.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

Restrictive measures shall be decided by the preliminary investigator, the investigator, the prosecutor in charge of the procedural aspects of the investigation or the court. The offence committed by the suspect or accused and the grounds for the need to apply a restrictive measure based on the preliminary evidence shall be indicated in the decision on the choice of restrictive measure.

Although the National Legislation does not define the concept of ‘reasonable suspicion’, it is quite clearly defined in the rulings of the European Court of Human Rights (ECHR). Thus, in the judgment of “Nechyporuk and Yonkalo v. Ukraine” from 21 April 2011, it is stated that the term ‘reasonable suspicion’ means that there are the facts or information that could convince an objective observer that the person in question may have committed an offence. Also, the requirement of reasonable suspicion implies the existence of evidence that objectively links the suspect to a particular offence, and it does not have to be sufficient to secure a conviction, but it must be sufficient to justify further investigation or charges.  – https://hudoc.echr.coe.int/?i=001-104613

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.

Despite this, the Court failed to take into account the accused’s personality and moral character, his family status and the presence of minor children.

The Article 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms reads:

Obligation to respect Human Rights – The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

According to the Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms,

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

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

As stated above, the investigative body is obliged to have sufficient grounds, which must be submitted to the court. However, in this criminal case, neither the investigative body nor the court had such grounds.

The ECHR judgment in the case of “Rasul Jafarov v. Azerbaijan” from 17 March 2016, said:

“The reasonableness of the suspicion on which detention must be based is an essential element of the protection provided by Article 5(1)(c) of the Convention on Human Rights against arbitrary deprivation of liberty. (…) The existence of a reasonable suspicion presupposes beforehand the existence of facts or information that would convince an objective observer that the individual could have committed the offence. What may be considered reasonable, however, depends on the set of circumstances.” https://hudoc.echr.coe.int/?i=001-161416

Paragraph 1 of the Decision of the Plenum of the Supreme Court of the Azerbaijan Republic ‘On judicial practice in cases of applications for preventive measures in the form of arrest or house arrest’ from 3 November 2009, it is said:

“To inform the courts that, in accordance with the precedents of the European Court of Human Rights, the application of a preventive measure in the form of arrest is generally permissible when the right to liberty of a person overrides the interests of society, i.e. when the individual’s being at liberty creates negative emotions and danger to society.”

Furthermore, paragraph 2 of the Decision states that there must be substantive and procedural grounds for the imposition of a preventive measure in the form of arrest.

In the case of N. Ibrahim, there were no substantive or procedural grounds for imposing a preventive measure in the form of remand in custody.

Under the criminal procedure law, the Court was under an obligation to consider the imposition of a preventive measure other than arrest. Moreover, the Court had to justify why an alternative preventive measure could not be chosen against a defendant.

The wording in the court ruling was vague, formal and abstract. Even though the ECHR precedents strictly prohibit it.

The violation of substantive and procedural norms, non-compliance with the international law, as well as the ECHR precedents, had led to the violation of a fundamental right in a democratic society, i.e. the Right to Liberty that protects an individual’s physical freedom.

IN AZERBAIJAN, NOT ONLY THE AZERBAIJANI CITIZENS BUT ALSO THE EUROPEANS HAVE BEEN ILLEGALLY ARRESTED

Hamza Mammadli

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

Baku City Court of Appeal trial, Criminal Collegium

Case № 4(103)-83/2024

6 February 2024

Presiding judge: Ziya Shirinov

Judges: Ibrahim Ibrahimli, Vahid Sadiqov

Defendant: Hamza Mammadli

Defender: Aytan Aliyeva

With the participation of Turgay Nabiyev, an investigator of the 2nd Division of the Preliminary Investigation Department within the AR State Security Service Main Investigation Department

On 11 July 2018, it was initiated a criminal case under the Article 214-2 (Public calls for terrorism)  of the Azerbaijan Republic Criminal Code (AR CC) on the fact of information distribution disturbing the public security, provoking chaos and potentially leading to fatalities or harming people’s health. The information was published on the Facebook page under the name of ‘Kamil Akhundov’ with the purpose of pressurising the State authorities in their decision-making process.

On 18 July 2018, Hamza Mammadli (born in 1991) was brought to that criminal case as an accused by the State Security Service. He was charged with the committing offences under the Articles 214-2 and 281.2 (Public appeals directed against the state, committed repeatedly or by group of persons) of the AR CC. Since H. Mammadli had been residing in Germany from 2015, he was just declared wanted in Azerbaijan.

It should be noted that the publications that triggered the investigative body’s suspicion concerned Yunis Safarov. In July 2018, in the city of Ganja, Yunis Safarov committed an armed attack on the Head of the city’s executive power, as a result of which the latter became incapacitated. Shortly after, the protests broke out in the city’s central square, there was an attack on high-ranking police officers. As a result, Yunis Safarov and many others were detained.

During the trials, all detainees were condemned to long-term sentences. The convicted who had nothing to do with those events were recognised by the human rights activists as political prisoners.

On 15 September 2018, the criminal case against H. Mammadli was suspended. But on 1 June 2023, when H. Mammadli returned from Germany to Azerbaijan, he was detained at the airport and the suspended criminal case was resumed.

By the decision of the Baku City Sabayil District Court, it was chosen a preventive measure against H. Mammadli for a period of 28 days. Then the term of the preventive measure was extended for another 4 months, and then until 28 January 2024.

In order to carry out an investigation, an investigator applied to the Court with a motion for another extension (3 months) of the preventive measure. On 23 January 2024, the Baku City Sabayil District Court issued a ruling to satisfy the investigator’s petition and extend the term for another 2 months, i.e. until 28 March 2024.

The defence, disagreeing with the ruling, appealed to the Court, requesting to quash the ruling of 23 January 2024 and dismiss the investigator’s motion.

The appeal was justified by the fact that H. Mammadli, while in Germany, obtained a medical diploma and worked as a doctor’s assistant in various clinics in Germany before returning to Azerbaijan. In February 2023, he applied to the German authorities in order to obtain citizenship. Having passed all the exams, Mammadli was issued German citizenship. He did not have any information concerning an investigation, opened criminal case against him, or an issued arrest order.

Furthermore, Mammadli’s family in Azerbaijan had not been informed about the criminal case investigation.

It was also noted in the complaint that he had not been engaged in any political activity in Germany and had no opposition views to the current government. The defence considered the investigation organ conclusions about supporting the events that had taken place in Ganja during 2018 to be incorrect, as Hamza Mammadli had not even known anything about the crimes incriminated against him. Moreover, Hamza Mammadli had not been a member of the ‘Council of the National Association of Azerbaijanis in Europe’, as stated in the indictment, and had no information whatsoever about the existence and activities of that organisation. Mammadli had never created the fake Facebook profiles mentioned in the indictment nor made any publications supporting the actions of Yunis Safarov. The defence also noted that it would not be possible to obstruct the investigation, conceal the case file or influence the investigative bodies in any way on the part of H. Mammadli. Besides, H.Mammadli’s family has a permanent place of residence, and they are unable to leave Azerbaijan due to the restriction of the right to movement. He has his own interest in the investigation of the criminal case, so he is committed to appear in a timely manner when summoned by the investigative body.

The investigator of the 2nd Division of the Preliminary Investigation Department within the Main Investigation Department under the State Security Service of the Azerbaijan Republic, who attended the trial, objected to the arguments of the appeal and asked the Court to dismiss the appeal and leave the ruling of the first instance Court unchanged.

On 6 February 2024, the Baku City Court of Appeal Criminal Collegium made a decision to satisfy the investigator’s petition to extend the term of the preventive measure in the form of arrest for 2 months and leave the first instance ruling of 23 January 2024 intact.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

According to the Article 154.1 of the Code of Criminal Procedure of the Azerbaijan Republic, a restrictive measure is a coercive procedural measure intended to prevent unlawful behavior 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.

As can be seen from this Article, the main purpose of it is to suppress an unlawful behavior of a suspect or an accused.

According to the Criminal Procedure Law, unlawful behavior of a suspect or accused consists of the following:

• Committing an offence (the defendant may be directly involved in the criminal act);
• Concealment of evidence (destruction or concealment of evidence that can be used against him);
• Violation of the preliminary investigation conditions (e.g. failure to appear when summoned, breach of a non-departure undertaking, attempting to influence witnesses);
• Committing new offences (if the defendant commits a crime or offence while under investigation, this aggravates his or her situation);
• Obstruction of justice (the defendant tries to influence the course of the investigation, for example, by giving false testimony, falsifying documents or threatening witnesses).

All of the above can be used as evidence at the trial to prove the accused’s guilt or to assess behavior prior to trial.

In respect of H. Mammadli, it was initially chosen a preventive measure in the form of remand in custody, which was subsequently repeatedly and unreasonably extended. There is not a single fact or argument proving the likelihood of the accused’s unlawful behavior in the court ruling.

The election of the harshest preventive measure of arrest, specified in the Article 154.2.1 of the AR CCP, was not justified by comprehensible or specific arguments. Everything the Court noted in the judgement was abstract and formal.

According to the Article 155.1 of the AR CC, preventive measures may be applied in such cases when the data collected in the criminal prosecution provide sufficient grounds to believe that the suspect or accused has committed unlawful acts.

In the criminal case against H. Mammadli there were no any materials that provide sufficient grounds to believe that he had committed unlawful or criminal acts. Therefore, the use of a preventive measure in the form of arrest, and, most importantly, its repeated prolongation, is not legitimate and is outlawed.

What does it mean probability of absconding from investigation? The probability of absconding from investigation means there is a possibility that a person suspected or accused of an offence may evade investigation or justice. It includes such actions as:

• evading communication with law enforcement authorities,
• concealment or destruction of evidence,
• use of false documents or false alibis,
• fleeing or hiding from the investigation (e.g., leaving the place of residence, change of identity).

At the time of detention, it was taken H. Mammadli’s ID documents.

According to the 3rd paragraph of the AR Law ‘On Passports’, the passport is the only document that certifies the person’s identity and gives him/her the right to leave and enter the country. To cross the border, it is necessary to have the following documents: passport, printout of e-ticket, health insurance policy and other documents.

The Article 155.6 of the Code of Criminal Procedure of the Azerbaijan Republic states,

In all cases where a restrictive measure is applied, the passport or other document confirming the identity of the suspect or accused shall be taken from him and added to the prosecution file until the final resolution of the suspicion or charge.

Thus, the preparation of the above documents is impossible without notifying the appropriate institutions. H. Mammadli had no chance to leave Azerbaijan without a passport. Therefore, we conclude that the court’s argument that the accused may abscond from the investigation is only a mere suggestion copied from the Article of the AR Code of Criminal Procedure.

According to the Article 157.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

In accordance with the principle of the presumption of innocence, if the connection of the person to the offence committed is not proven, he may not be arrested or unnecessarily detained on remand.

The Article 157.5 of the Code of Criminal Procedure of the Azerbaijan Republic states,

When examining the question of arrest as a restrictive measure, the court, if it decides that there is no need to isolate the accused from society by detaining him on remand, shall have the right to substitute house arrest for arrest. The court may simultaneously make its decision about arrest and resolve the matter of releasing the accused from arrest by granting bail, and if this release is considered possible, it shall determine the amount of bail. The court may review its decision about the inadmissibility of bail and the amount of bail at the request of the defence.

The Court did not consider whether alternative preventive measures other than arrest could be applied, nor did it consider the provision of guarantees by the defence. Furthermore, if the Court initially considered that there were grounds for believing that the defendant would commit an unlawful act prior to the trial, then those grounds were insufficient to extend the preventive measure.

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

1. The issue of whether a period of detention is reasonable cannot be assessed in abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. – https://hudoc.echr.coe.int/?i=001-61262

In view of the above, it should be pointed out that the Courts by issuing against Mr Mammadli unlawful and unjustified orders of arrest and extension of his detention violated the right of a citizen of the Federal Republic of Germany to liberty and security of person and the right to a fair trial, as enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1) and Article 6(1), respectively.

THE COURT VIOLATED M. HUSEYNZADE’S FUNDAMENTAL RIGHTS TO LIBERTY

Mirjafar Huseynzade

Analysis of violation of law during Mirjafar Huseynzade’s judicial proceedings

Ganja City Court of Appeal trial, Criminal Collegium

Case № 4(104)-129/2024

26 July 2024

Presiding judge: Nural Aliyev

Judges: Rafiq Jafarov, Rashad Mamedov

Defendant: Mirjafar Huseynzade

Defender: Zabil Qahramanov

With the participation of Elvin Iskandarov, a captain -investigator from the Qazakh District Police Station Investigation Department

Mirjafar Huseynzade (born in 1976), a resident of Qazakh district, was charged with committing an offence under the Article 234.1-1 (Illegal acquisition or storage of drugs or psychotropic substances without the purpose of sale in an amount exceeding the amount necessary for personal consumption, committed in a large amount) of the Criminal Code of the Azerbaijan Republic.

On 12 July 2024, the Qazakh District Court ruled to impose a measure of restraint on M. Huseynzade in the form of detention for 3 months, i.e. until 17 October 2024. By the same ruling, the Court rejected the defence’s appeal to replace the preventive measure of restraint in the form of arrest on house arrest.

The defence, having disagreed with the above ruling, appealed to the Court. The defence appeal was justified by the fact that the investigation had failed to obtain any physical proof that would confirm whether the found drugs belonged to the defendant. The defence also pointed out that the only investigation proof was the police officers’ testimony, whereas the operative-investigative activities had been carried out without a relevant judicial order.  Therefore, the defence requested the Court to annul the judgment of the first instance court due to the lack of any circumstances required for the extension of the preventive measure in the form of arrest.

On 26 July 2024, the Criminal Board of Ganja Court of Appeal issued a ruling: to partially satisfy the investigator’s motion and the prosecutor’s submission on the extension of the measure of restraint in the form of arrest, to amend the first instance court ruling and extend the term of arrest for another month.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

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

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

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

The following grounds were specified in the judgement:

• the identity and nature of the committed act;
• the likelihood of absconding from the investigative body carrying out criminal prosecution;
• preventing the normal course of the preliminary investigation or court proceedings.

It was also stated in the ruling that there were no grounds to change the measure of restraint in the form of arrest on house arrest. The Court noted that the investigation still should conduct one confrontation, familiarise the accused with the final case materials and indictment. For that reason, the Court made a decision to extend the preventive measure for one month.

As stated above, one of the grounds is the identity of the accused. In spite of that remark, the Court did not take into account the personality of M. Husenzade. It was stated that the accused had the second disability group and was receiving a pension on this basis, as said in the Court ruling.

Let’s examine the other grounds stated by the Court:

• There was a likelihood of absconding from the investigative body conducting the criminal prosecution. It was not a risk that the defendant would abscond from the justice system. He had only one place of residence. Besides, the accused was suffering from a serious illness, as a result of which he had received the second disability group. He had never previously absconded from justice.
• Obstruction of the normal course of the preliminary investigation or trial. There was no risk that the accused interfered with the course of legal procedure. He either did not destroy any documents, any evidences, or was unable to exert pressure on the witnesses who were in reality the police officers. There was no other strong evidential material cited by the Court.

The Articler 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms  states,

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

…

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

…

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

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

1. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention.
2. The danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre-trial detention. In this context regard must be had in particular to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts.
3. The issue of whether a period of detention is reasonable cannot be assessed in abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty.
4. It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention.
5. Arguments for and against release must not be “general and abstract”.
6. Where a suspect is on remand, he is entitled to have his case given priority and conducted with special diligence. – https://hudoc.echr.coe.int/?i=001-61262

Thus, we clearly observe that the Court’s ruling on the extension of the preventive measure does not contain any legal grounds, it consists only of formal and abstract expressions, extracts from the legislation, and unfounded assumptions. The ruling was unlawful and illegitimate, in other words, it was issued in breach of the norms of procedural law, the Azerbaijani Constitution, the provisions of the European Convention and the precedents of the European Court of Human Rights.

It resulted in a serious violation of M. Huseynzade’s right to liberty and personal inviolability, which is one of the fundamental rights of any democratic society that protects the physical freedom of individuals and is guaranteed by the AR Constitution, Article 28, Article 5(1) of the European Convention, and also the Article 9 of the International Covenant on Civil and Political Rights.