ONCE AGAIN THE COURT HAS VIOLATED THE RIGHT TO LIBERTY AND PERSONAL SECURITY OF ANOTHER AZERBAIJANI CITIZEN

Elbayi Karimli

Analysis of violation of law during Elbayi Karimli’s judicial proceedings

Baku City Grave Crimes Court

Case № 1(101)-1248/2024

2 April 2024

Presiding judge: Elnur Nuriyev

Defendant: Elbayi Karimli

Defender: Nemat Karimli  

The State Prosecutor: a Prosecutor, Tural Yaqubov, from the State Prosecution Defence Division at the Courts of Serious Crime within the Department for Protection of State Prosecution at the Azerbaijan Republic General Prosecutor’s Office

Elbayi Karimli, born in 2001, a member of the Popular Front Party of Azerbaijan (PFAP), was detained on 18 August 2023. Yet, the party members managed to obtain the information on his arrest only two months later.

1. Karimli was detained in Baku while he was drawing graffiti on the monument of ex-president, Heydar Aliyev, and shooting it on video. He 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 very same day, the Baku City Nasimi District Court issued a preventive measure in the form of detention against E. Karimli, that measure was subsequently extended.

According to the investigation, E. Karimli was detained by the police officers and brought to the 22nd police station of the Nasimi District Police Department in the course of operational-search measures. The event took place on 18 August 2023. There, during a personal examination, a homemade heroin drug weighing 30.135 grams has been found in Karimli’s possession.

In the course of trial, the detainee, E.Karimli, did not plead guilty to the charges and testified that he had never either used  or sold drugs. He further said that on 18 August 2023, in Baku, he wrote with white spray the word ‘Stalin’ on the pedestal of Heydar Aliyev, which is located close to the National Bank. As soon as he finished two policemen approached, detained, and put him into a post-patrol car. He was brought to the 22nd police station of the Baku City Nasimi district. There, he was left in a room on the ground floor where there were no any other cells. When a group of policemen entered the room they first questioned him, and then threw him down on the floor and started kicking him in the stomach. After that they put the drugs in front of him and demanded to choose any one. When E. Karimli refused to do it, they began to threaten him. The officers explained that it would be better to choose one drug in order to mitigate the punishment. They also said that if he did not do it, he would be charged with espionage. Then he was given a glass of juice, which had a bitter taste, then he was insisted to drink a Coca-Cola. Karimli felt sick and dizzy. Finally, he agreed to obey. The police officers told him that in order to do it they seized 1 kilogramme of drugs at the house of Qiyas Ibrahim.

Afterwards, an appointed lawyer was introduced to E. Karimli. Thereafter, Karimli, providing his «confession» was filmed on a video camera. But when he found out that he would face a sentence for a period from 5 to 12 years, he realized that he had been tricked. Karimli testified that the police officers had inhumanely treated him; he had been subjected to beatings and torture. There were injuries on his body. The officers pushed him on the floor, twisted his hands, and his legs were forced against his lungs.

Questioned as a witness, Vusal Qasimov, an operative of the 22nd police department, testified that on 18 August 2023, he got an information that E. Karimli had illegally acquired some drugs that he had been carrying around. A group of policemen, including an operative commissioner Muhammad Quliyev was set up in order to check the information. As soon as they saw E. Karimli, they approached him, introduced themselves, and then asked him to follow them to the police station. E. Karimli did not demonstrate any resistance and went with them. The case was assigned to the senior interrogator Emil Qaralov, who prosecuted E. Karimli as a suspect and appointed him a lawyer. While conducting a personal search, the drugs were found in Karimli’s possession; on the video shown at the trial E. Karimli confessed that the drugs belonged to him.

Muhammad Quliyev, questioned as a witness before the Court, provided the same testimony as Vusal Qasimov.

On 19 August 2023, the forensic chemical examination detected that the found drugs, heroin, had been manufactured by artisanal means.

A forensic narcological examination held on 19 August 2023, discovered the substance of opioids and psychostimulants in E. Karimli’s blood, which led the detainee to drug addiction. A compulsory treatment is a must.

The forensic psychiatric examination, dated 30 November 2023, revealed that E. Karimli was not suffering from any mental illness.

The court accepted Karimli’s testimony about the inscription on the pedestal and the use of physical force by the police officers as self-defence.

The Court assumed E. Karimli’s testimony concerning the writing on the pedestal, as well as his resistance to the police officers’ use of physical force, to be in self-defense.

On 2 April 2024, the Baku City Court for Serious Crimes issued a verdict against E. Karimli: to find him guilty of committing a crime under the Article 234.4.3 of the Criminal Code of the Azerbaijan Republic and sentence him to the period of 6-year imprisonment with serving the penalty in a general regime facility.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

In the course of trial, E. Karimli testified that he had been tortured and ill-treated in order to admit his offence. The police officers threatened him with harsher punishment, forced to accept drugs as if it were his. He also described in detail the police’s methods and inhuman treatment, as well as how the officers forced him to drink a beverage in which the drugs were presumably spiked.

The detailed description of such a treatment makes it appear that it did really take place.

In this context, it should be noted the Article 13 of the AR Criminal Procedure Code of the Azerbaijan Republic, where states:

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

During a criminal prosecution nobody shall:

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

The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3, also prohibits torture and ill-treatment.

The European Court of Human Rights (ECHR) in its numerous judgments has repeatedly pointed out that an act of treatment is considered “inhuman” if it is deliberate, inflicted for several hours at a time and causes, if not actual physical injury, but at least intense physical and mental suffering. “Degrading treatment” is considered by the ECHR to be of such a nature as to cause fear, distress and feelings of inferiority capable of offending and humiliating victims. In order for punishment or treatment to be considered ‘inhuman’ or ‘degrading’, the suffering or humiliation related to it must, in one way or another, be more than the inevitable element of suffering or humiliation linked to a form of lawful punishment…”.

An inhuman punishment is defined as a punishment that causes suffering of a special level. In order for this punishment to fall within the scope of the article in question, it must entail some form of violence (e.g. corporal punishment).

Degrading punishment is understood to be a punishment for which a humiliation and oppression that accompany it are also of a special level (e.g. in terms of method of execution), which differs, at any rate, to the ordinary character of humiliation typical to each and every punishment. –

https://www.srji.org/upload/iblock/a63/1de_sal_via_m_pretsedenty_evropeyskogo_suda_po_pravam_chelove.pdf

The judgment of the ECHR in the case of  Tekin v. Turkey dated 9 June 1998, it is stated,

«In respect of a detainee deprived of liberty, the use of physical force that was not provoked by the detainee’s personal actions is degrading to human dignity and is, as a matter of fact, an infringement upon the right enshrined in the Convention, Article 3. The Court is of opinion that the conditions under which the applicant has been detained and treatment to which an applicant has been subjected resulting in marks of wounds and bruises on his or her body fall within the scope of inhuman and degrading treatment under that Article». – https://hudoc.echr.coe.int/?i=001-58196

This judgement clearly illustrates E. Karimli’s situation, who has had injuries that occurred whilst under the custody of the investigating authorities.

The admissibility and sufficiency of evidence is an important aspect of any criminal proceedings. As proof in this case, the investigative body submitted the defendant’s testimony during the investigation and trial, the testimony of two witnesses, operative officers, a number of forensic examinations, as well as the reports provided by the investigating body.

According to the Article 124.1 of the Criminal Procedure Code of the Azerbaijan Republic, 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.

What was illustrative is that the Court considered the defendant’s testimony given during the investigation as true, and his testimony provided at the trial as a defensive nature. The Court, in this case, neither did substantiate its conclusion nor gave a legal assessment to the testimony of the accused before the Court, even though defendant’s testimony was that of physical and psychological abuse of authority. Moreover, the Court did not take any initiative to investigate those arguments.

The Article 126.6 of the Criminal Procedure Code of the Azerbaijan Republic states, that the accused person’s confession of guilt may be accepted as grounds for the charge against him only if confirmed by the contents of all the evidence on the case.

None of the evidence provided by the investigative body was irrefutable or accurate. The totality of those evidences was insufficient in order to find E. Karimli guilty.

The following circumstances were not proven at the trial:

• the fact of the criminal incident;
• the accused’s connection with the incriminated incident;
• the defendant’s guilt in committing an act provided for by the Criminal Law.

Finally, one of the most important points in a criminal case is whether the defendant committed an act that is not covered by the criminal law.

As E. Karimli stated in his testimony that he had written the word ‘Stalin’ on Heydar Aliyev’s pedestal. That very fact was the only reason for his arrest just as it was in 2016, when two young guys, Qiyas Ibrahimov and Bayram Mammadov, wrote on the same pedestal “Qul bayraminiz mubarek” (“Happy Slaves’ Holiday”). As a result, both the activists were charged with drug trafficking on a large scale and sentenced to 10 years imprisonment. According to E. Karimli, Giyas Ibragimov’s name had been mentioned by a police officer.

In this regard, it is worth recalling the Article 47 of the Constitution of the Republic of Azerbaijan, which states,

1. Everyone has the right to freedom of thought and speech.
2. No one shall be forced to proclaim or to repudiate his/her thoughts and beliefs.

Freedom of expression is also regulated by the European Convention on Human Rights, Article 10(1), according to which:

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.

The Article 10, paragraph 2, stipulates a number of restrictions, as follows:

provided for by law,

• necessary in any democratic society in the interests of national security, territorial integrity or public order,
• for the prevention of disorder or crime,
• for the protection of health or morals,
• protection of other’s reputation or rights,
• prevention of the disclosure of information received confidencely,
• ensuring the credibility and impartiality of justice.

First of all, the following questions must be answered: whether there was an interference to the right to freedom of expression and whether that interference was in line with legitimate aims. In the commented case, the answers would be: yes, there was interference; however, it was not in accordance with the legitimate aims and restrictions listed in the Convention, Article 10(2).

The precedents of the European Court of Human Rights (ECHR) have repeatedly indicated that “freedom of expression covers not only ‘information’ or ‘ideas’ that meet favorably or are regarded as innocuous or neutral, but also those that offend, shock or arouse concern. That is the imperative of pluralism, tolerance and liberalism, without which there is no “democratic society”.

The judgment of the ECHR in the case of Oberschlick v. Austria from 23 May 1991, states,

«The Article 10 protects not only the substance of expressed ideas and information, but also the manner in which they are transmitted». – https://hudoc.echr.coe.int/?i=001-57716

The judgment of the ECHR in the case of Ibrahimov and Mammadov v. Azerbaijan from 13 June 2020, states,

«In order for an intervention to be justified under the Article 10, it must be ‘prescribed by law’, pursue one or more of the legitimate objectives enumerated in the second paragraph of that provision, and be ‘ one that is necessary in a democratic society’, i.e. proportionate to the pursued objective».- https://hudoc.echr.coe.int/?i=001-200819

Finally, the judgment of the ECHR in the case of Ceylan v. Turkey from 8 July 1999, states,

«The Court recalls, however, that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest. Furthermore, the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion. Moreover, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries.» – https://hudoc.echr.coe.int/?i=001-58270

Thus, the gross violation of the norms of National Law (the Constitution, Criminal and Criminal Procedural legislation) has led to a violation of the democratic society fundamental rights — the Right to Freedom and personal inviolability and and also the right to freedom of expression.

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THE COURT VIOLATED ANAR MAMMADLI’S RIGHT TO LIBERTY

Anar Mammadli

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

Baku City Khatai District Court

Case № 4(011)-328/2024

30 April 2024

Presiding judge: Sulhana Hajiyeva

Defendant: Anar Mammadli

Defenders: Javad Javadov, Elmar Suleymanov

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

In 1999 Anar Mammadli (born in 1978) graduated from the Azerbaijan University of Foreign Languages, majoring in German language and Philology.

In 2000, while in the USA he graduated from the Maxwell School of Syracuse University with a degree in public administration. Also, A. Mammadli has worked as a reporter and editor in several newspapers.

In 2001, A. Mammadli founded the human rights organisation ” Monitoring Election and Democracy Training Centre”. In 2008, the licence of the organisation was cancelled upon the claim of the AR Ministry of Justice.

In 2013, the organisation monitored the elections and was the first to circulate an independent report on the violations in the election process, which resulted in strong objections from the authorities.

On 27 October 2013, the Azerbaijani General Prosecutor’s Office initiated a criminal case against the organisation. On 16 December 2013, Anar Mammadli was arrested. On 26 May 2014, the Baku Court for Serious Crimes found A. Mammadli guilty and sentenced him to 5 years and 6 months incarceration. He was recognised as a political prisoner by the domestic and international human rights organisations.

On 17 March 2016, A. Mammadli was released following a grant of pardon. A. Mammadli was a participant in a number of international events.

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

On 30 April, 2024, he was found guilty under the above-mentioned article. The investigator and prosecutor filed an appropriate application and submission to the Court requesting a preventive measure of 3 months 28 days’ remand in custody.

In the course of trial, the investigator and the prosecutor supported the application and submission, whereas A. Mammadli argued that his arrest was of political nature.

On 30 April 2024, the Baku City Khatai District Court issued a ruling: to satisfy the investigator’s petition and prosecutor’s submission to extend the preventive measure against Anar Mammadli for the period of 3 months and 28 days.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

In this ruling, the Court stated the following grounds:

• hiding from the body conducting the criminal proceedings;
• unlawful pressure on those involved in criminal proceedings;
• obstruction to the pre-trial investigation by concealing materials of significance for criminal prosecution;
• committing once again an act under the criminal law and posing a danger to the public.

In addition, the ruling stated that the fact of being charged under an article punishable by up to 8 years of imprisonment raised reasonable ground to believe that the commission of an act provided for by the criminal law could be considered as a new offence and pose a danger to the society.

In the Article 155.1 of the Criminal Procedure Code of the Azerbaijan Republic, there are enumerated the grounds for imposing a preventive measure:

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

As can be seen, the Court cited almost all the grounds listed in the Article 155.1 of the Criminal Procedure Code of the Azerbaijan Republic, while not referring to any arguments justifying the measure of restraint in the form of arrest.

According to the Decision of the Plenum of the Azerbaijani Supreme Court from 3 November 2009, “On judicial practice in cases involving implementation of preventive measures in the form of arrest or house arrest”, paragraph 1, said:

“It should be brought to the Courts attention that, in accordance with the case law of the European Court of Human Rights, the application of a preventive measure in the form of arrest is generally admissible when the right to liberty of a person overrides the interests of society, i.e. when an individual’s freedom poses negative emotion and danger to the society”.

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

The ruling on the arrest of A. Mammadli fails to provide any substantive and procedural grounds. The Courts are required in such orders to indicate specific arguments and justifications concerning a particular defendant.

The Courts are also obliged to consider the possibility of imposing alternative preventive measures other than arrest.

The primary pieces of evidence brought by the investigating authority as justification for a preventive measure in the form of arrest must persuade an outside observer that a defendant may indeed have committed a criminal act. The Courts are to pay their attention to the comprehensiveness and accuracy of the materials submitted by the investigating authorities to the Court.

Apart from the primary evidence, there is a lack of logical and individualised approach in the commented case. It is not permissible to use broad and abstract phrases in such cases.

As it is stated in the above-mentioned Decision, paragraph 4, the Courts are to verify whether it is feasible to apply a measure of restraint not related to arrest provided for in the Article 154 of the Criminal Procedure Code of the Azerbaijan Republic, when approving submissions on arrest, the inadmissibility of applying a measure of restraint not related to arrest must be substantiated.

There are no explanations in the commented ruling that alternative preventive measures other than arrest were considered in the course of the trial.

It is completely illogical the Court’s conclusion that A. Mammadli could re-commit an offence and that the alleged punishment for the incriminated Article stipulates a sentence of up to 8 years’ imprisonment.

The right to freedom is enshrined in the Article 14 of the Criminal Procedure Code of the Azerbaijan Republic, where it is written:

• The right to liberty may be limited only in cases of detention, detention on remand or imprisonment in accordance with the law.
• Nobody may be detained or arrested other than on the grounds provided for in the Code and other laws of the Azerbaijan Republic.

This right must be effectively implemented and it should not be delusive.

The Article 5 (1) oft he Convention for the Protection of Human Rights and Fundamental Freedoms states,

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

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

The European Court of Human Rights (ECHR) has noted:

“Reasonable suspicion justifying detention is an essential element in the protection against arbitrary deprivation of liberty provided by Article 5(1)(c). The existence of well-founded suspicion suggests in advance the availability of facts or information which would convince an objective observer that an individual may have committed the offence. Nevertheless, the alleged facts have not yet reached the level of suspicion necessary for a conviction or even indictment, which occurs at the next stage of the criminal proceedings” (K.-F. c. A1-lemagne, 57).

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

«…to be reasonable suspicion there must be facts or information which would satisfy an objective observer that the person concerned may have committed an offence ». – https://hudoc.echr.coe.int/?i=001-58559

In another judgment of the ECHR in the case of Wloch v. Poland dated 19 October 2000, it says:

“Thus, it is obvious that suspicion cannot be justified if the acts or facts imputed to the detainee did not constitute an offence at the time when they were committed. In the present case, it must be ascertained whether the applicant’s detention was ‘lawful’ within the meaning of the Article 5 § 1 (c). The Convention mainly refers to the national legislation, but in addition it requires that any measure of deprivation of liberty must be compatible with the purpose of the Article 5: to protect an individual from arbitrary deprivation of liberty”. – https://hudoc.echr.coe.int/?i=001-58893

The paragraph 58 of judgment of the ECHR in the case of Smirnova v. Russia dated 24 July 2003, stated:

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. –  https://hudoc.echr.coe.int/?i=001-61262

The Court did not have any relevant and sufficient grounds to impose a measure of restraint in the form of arrest in the case of Anar Mammadli.

As to the severity of sentence, paragraph 60, of the judgement in the case of Smirnov v. Russia stated:

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. – https://hudoc.echr.coe.int/?i=001-61262

The Court did not take into account either reputation or moral profile, in particular the human rights defender’s reputation and intellectual level; Mr. Mammadli is well known as inside as outside the country. Moreover, as mentioned above, A. Mammadli was first detained in 2013; at that time he was also placed under restraint in the form of arrest, however, while in detention he had never violated the established legal order and defended himself by all means allowed by law.

Crossing the Azerbaijani State border if the passport necessary for that purpose is confiscated. Therefore, the argument made by the Court that he could abscond from the trial and investigation has no valid grounds, as well as all other judge’s arguments.

Thus, the Court, failing to demonstrate an individual approach to the case, not requiring sufficient primary evidence from the investigative body, not observing the Constitutional norms and norms of other domestic and international provisions, as well as the precedents of the European Court of Human Rights, violated in respect of Anar Mammadli the fundamental right to freedom guaranteed by the Article 28 of the Azerbaijani Constitution, Article 14 of the Criminal Procedure Code of the Azerbaijan Republic and Article 5(1) of the European Convention.

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THE COURT HAS GROSSLY VIOLATED IMRAN ALIYEV’S PHYSICAL AND PSYCHOLOGICAL INVIOLABILITY, AS WELL AS HIS RIGHT TO LIBERTY

Imran Aliyev

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

Baku City Khatai District Court

Case № 4(011)-293/2024

19 April 2024

Presiding judge: Fuad Akhundov

Defendant: Imran Aliyev

Defender: Qanqa Ibrahimov

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

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

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

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

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

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

On 19 April 2024, the Khatai District Court issued a ruling against Imran Aliyev to satisfy the investigator’s petition and Prosecutor’s submission to impose a measure of restraint in the form of arrest for a period of 2 months and 1 day. It is also stated in the given ruling that it should be an investigation concerning Aliyev’s beating that is entrusted to the Baku City Prosecutor’s Office that carries out the procedural supervision.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. According to the Article 12.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

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

This norm is designed to ensure the rights and freedoms, including those of detainees.

The Article 13.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that during a criminal prosecution nobody shall:

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

As stated above, at the trial, I.Aliyev voiced out his concerns about the use of physical and psychological pressure on the part of the police officers. The defendant recorded a video message taken at the airport prior to his detention, showing no injuries on Imran Aliyev’s face. After being detained, he was taken to the Baku City Police Department and then to the Khatai District Court; the photo is clearly demonstrated the hematomas on his face. During the period of time while I. Aliyev was under the investigation bodies’ surveillance on the way from the airport to the Court, therefore, his testimony and bodily injuries has been proving the evidence of ill-treatment he encountered while in the Baku City Police Department.

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

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

Besides, the right to be protected from arbitrariness and be treated with dignity is guaranteed by the Article 68 of the Azerbaijan Republic Constitution, stating that:

1. Everyone has the right to the conscientious treatment that excludes arbitrariness by state bodies.
2. The rights of a person who has been a victim of a crime and abuse of power shall be protected by the law. A victim has the right to take part in administration of justice and demand for compensation of losses.
3. The state, together with civil servants, shall bear civil liability for damage caused to human rights and liberties and for the violation of their guarantees as a result of unlawful actions and inaction of public servants.

In 2002, Azerbaijan signed the European Convention for the Protection of Human Rights and Fundamental Freedoms and guarantees the rights of its citizens. The country is required not only to comply with the Convention norms, but also to change existing legislation and practices if they do not meet the Convention norms requirements.

Despite the existing norms prohibiting ill-treatment and abusive treatment in the Azerbaijani legislation, the practice during pre-trial investigation still remains rather disappointing. The torture and ill-treatment committed by the investigative bodies and police have been repeatedly described in the judicial precedents against Azerbaijan issued by the European Court of Human Rights.

Thus, the European Convention states in its Article 3 that no one shall be subjected to cruel, inhuman treatment, torture or punishment. This provision does not have any exceptions and is valid in all cases, even in such areas as the fight against terrorism and mafia, and also during the military operations. The purpose of the Article 3 is to protect an individual’s mental and physical integrity.

Accordingly, all the States have acknowledged the responsibility for their officials’ actions. If an individual claims in his/her own defence that he/she has been subjected to the treatment provided for in the Article 3 of the European Convention, there must be an effective formal investigation in order to determine the identity of those responsible and their punishment.

With regard to the visible injuries on Imran Aliyev’s face, the State authorities must therefore be able to establish the signs of ill-treatment occurring after a punch inflicted on the individual concerned and that the punch did not take place while the person had been deprived of liberty.

The judgment of the European Court of Human Rights (ECHR) in the case of Dikme v. Turkey dated 11 July, 2000, states,

“The Court recalls that if a detainee has been brought to the police station in good health and, by the time of his release, he has injuries, the State has an obligation to provide a reasonable explanation of the injuries origin, and if it fails to do so, then the Convention’s Article 3 should be applicable”. – https://hudoc.echr.coe.int/?i=001-58751

The ECHR also points out that the conduct prohibited by the European Convention, Article 3, is subject to the State party’s liability only if it is committed by those exercising public authority; moreover, it must be assumed that these practices are in breach of domestic law in all signatory countries. Consequently, the Article 3 violations are inherently unlawful and abnormal government practices.

The Paragraph 101 of the judgment of the European Court of Human Rights (ECHR) in the case of Dikme v. Turkey dated 11 July, 2000, states,

“The Court has previously held that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in … [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity”. – https://hudoc.echr.coe.int/?i=001-58751

Thus, we have examined the actions Illegality committed against Imran Aliyev while he was placed under the investigation bodies’ custody.

The Court, by issuing a ruling on a preventive measure for a period of 2 months and 1 day, also violated the provisions of the National Criminal Procedure Law, as well as the European Convention.

The grounds for the measure of restraint in the form of arrest are as set out in the ruling as:

• hiding from the body conducting the criminal proceedings;
• unlawful pressure on the parties involved in criminal proceedings;
• obstruction to the preliminary investigation by withholding the information relevant to the criminal prosecution;
• re- committing an act under the criminal law and posing a danger to the society, as well as
• the presumptive sentence for the offence that is punishable beyond 5 years.

It should be remarked that the commented judgement is practically identical to the other judgments on the imposition of preventive measures. The grounds listed above, as in the other cases, are not supported with any particular arguments or justifications that could legitimate the application of the strictest preventive measure. There are neither substantive nor procedural justifications in the ruling.

The substantive justifications mean the initial evidence confirming the accused’s involvement in the incriminated offence. The procedural grounds shall mean the grounds confirming legitimacy of a preventive measure impositions in the form of arrest and the totality of circumstances stipulated under the the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic.

Pursuant to the Supreme Court plenum Decision, paragraph 3, on “Judicial practice in cases involving applications concerning the imposition of measures of restraint in the form of arrest or house arrest” dated 3 November, 2009, the courts, in imposing a measure of restraint in the form of arrest, must not be limited to a formal enumeration of the grounds set out in the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic, they must verify the nature of each ground relating to a particular individual and whether it is confirmed by the evidence in the criminal case file. In this case, the nature as well as danger to the public posed by the accused person’s offence and information characterising his or her personality, including age, marital status, type of activity, state of health and other similar circumstances, must be taken into account.

There is the most important paragraph 4 of the above-mentioned Decision, which states that the Courts are to check the feasibility of applying a preventive measure other than arrest as provided for in the Article 154 of the Code of Criminal Procedure of the Azerbaijan Republic, and in granting applications for arrest, the inadmissibility of applying a preventive measure other than arrest must be substantiated.

In respect of Imran Aliyev, as stated above, there has been a gross violation of the fundamental right guaranteed by the Azerbaijani Constitution, Article 28, and Article 5(1) of the European Convention, as well as the right not to be subjected to cruel and inhuman treatment, guaranteed by the Constitution, Article 68, and Article 3 of the European Convention. In a broad sense, the violation of the above-mentioned Articles resulted in a failure to comply with an important right, the Right to a Fair Trial, enshrined in the European Convention, Article 6(1). The Court also failed to respect the judgements of the European Court of Human Rights (ECHR), stipulating the Right of the individual to Liberty and physical and psychological integrity.

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HAFIZ BABALY HAS ONCE AGAIN BEEN IMPRISONED WITHOUT A VALID REASON

Khafiz Babaly

Analysis of violation of law during Khafiz Babaly’s judicial proceedings

Baku City Khatai District Court

Case № 4(011)-180/2024

7 March 2024

Presiding judge: Sulkhana Hajiyeva

Defendant: Khafiz Babaly

Defender: Rasul Jafarov

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

Hafiz Babaly, born in 1971, a journalist, was the Editor of Economics Department of the “Turan” News Agency. He was involved in journalistic investigations concerning the corruption in the country and cooperated with the “Abzas Media” resource.

It should be reminded that earlier the managers of “Abzas Media” website Ulvi Hasanli and Sevinj Vaqifqizi, as well as the website employees, Muhammad Kekalov and Nargiz Absalamova were arrested. About five website employees were questioned as witnesses in the criminal case against them.

On 13 December 2023, Hafiz Babaly was detained as a suspect in the case of “Absaz Media”.  He was charged under the Article 206.3.2 (Smuggling, is moving large amount through customs border of the Republic of Azerbaijan of goods or other subjects, committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic (CC AR). The same Article was previously brought against Ulvi Hasanli, Sevinj Vaqifqizi, Muhammad Kekalov, Nargiz Absalamova and Elnara Qasimova

On 14 December 2023, the Baku City Khatai District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Hafiz Babaly in the form of detention for a period of 3 months.

In March 2024, a senior investigator from the Serious Crimes Investigation Division within the Baku Main Police Investigation and Inquiry Headquarters and the Baku Deputy Prosecutor applied to the Baku City Khatai District Court with a petition and submission respectively requesting the Court to extend the term of preventive measure against the journalist until 13 June.

In the course of the trial, the defendant testified that he had nothing to do with the charge and his arrest appeared to be of a political nature.

The journalist’s defence lawyer said that the chosen preventive measure against his client hadn’t had any substantive or procedural grounds. He also pointed out that during the past three months of detention there had been no investigative actions with the participation of his client, therefore the lawyer asked the Court to reject the investigator’s and the prosecutor’s petition and replace the measure of restraint in the form of arrest on the house arrest.

On 7 March 2024, the Baku City Khatai District Court issued a ruling: to satisfy the investigator’s petition and prosecutor’s submission to extend the preventive measure against H. Babaly and extend it until 13 June 2024. The Court also denied the defence’s motion to replace the preventive measure of restraint in the form of arrest on the house arrest.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. According to the Article 158.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

At the pre-trial stage of the criminal case, when it chooses arrest as a restrictive measure, the court shall specify a remand period of up to 2 (two) months in respect of offences which do not pose a major public threat or minor offences and of up to 3 (three) months in respect of serious and very serious offences.

The Article 158.3 of the Code of Criminal Procedure of the Azerbaijan Republic states,

At the pre-trial stage of the criminal case, the remand period, other than in cases of prolongation of the period as prescribed by Article 159 of this Code, may not exceed the above-mentioned periods.

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

At the pre-trial stage of criminal proceedings, the period of detention on remand

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

At the same time, the Article 158.3 of the Code of Criminal Procedure of the Azerbaijan Republic states,

At the pre-trial stage, in an exceptionally complicated case, the remand period

may again be prolonged by the court: for minor offences, for no longer than 2 (two) months; for serious offences, for no longer than 3 (three months), and for very serious offences, for no longer than 5 (five) months.

Thus, summarising the above mentioned articles, we can conclude that the extension of a preventive measure shall be granted only in case of exceptional complexity of the matter and upon a motivated petition of an investigator and prosecutor’s submission.

According to the Supreme Court plenum decision ‘On the practice of the courts in considering applications in connection with preventive measures in the form of arrest and house arrest’ issued on 3 November 2009, when considering applications to extend the period of pretrial detention the Courts must comprehensively verify the arguments of the submission that it was not possible to complete the preliminary investigation within the period of time set earlier.

In the judicial order to extend the term of arrest in respect of H. Babaly, the grounds were stated as:

• concealment from the authority conducting the criminal proceedings;
• the chance of fleeing the country;
• obstruction to the normal course of the preliminary investigation or judicial proceedings with the exertion of unlawful pressure on those involved in the criminal proceedings;
• re-committing an act under the criminal law or presenting a danger to society;
• committing a criminal offence punishable with more than 2 years deprivation of liberty.

If we compare the Baku City Khatai District Court’s ruling issued on 14 December 2023, on the imposition of a preventive measure in the form of arrest and the commented judgment issued on 7 March 2024, on the extension of the term of arrest, we shall see that the grounds specified by the Court in the first ruling do not differ at all from the grounds of the second ruling. Thereby, in both cases, the Court proceeded formally, having noted the abstract wording enumerated in the Criminal Procedure Legislation.

However, there are no reasons, specific arguments justifying the extension of the arrest period for another 3 months in the commented judgment, as well as in the ruling on the selection of a preventive measure.

The Court issued the ruling pursuant to the investigator’s unmotivated request and the prosecutor’s submission. It is precisely the lack of reasons behind the judgement that reveals its illegality and unlawfulness.

The Court unreasonably dismissed the defence motion to replace the preventive measure of arrest with house arrest. The Court considered that the previous grounds for arrest had not been resolved yet, and that, due to the complexity of the case, it was impossible to finalise the preliminary investigation.

At this point, the Court should have indicated what investigative actions would be conducted in the next 3 months, and what arguments indicate that the previously asserted grounds have not currently been eliminated.

It should be noted that the measure of restraint in the form of arrest against the journalist has been chosen by the Baku Khatai District Court Judge, Sulkhana Hajiyeva. The prolongation of the chosen preventive measure was also assigned to the same Judge, Hajiyeva. That fact can be considered as partiality, bias and violation of the right to a fair trial guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1).

The European Convention, Article 5(1), enshrines the right of everyone to liberty and personal inviolability.

The judgment of the European Court of Human Rights (ECHR) in the case of Smirnov v. Russia dated 24 June 2003, said,

‘In considering the length of detention following the date of the Convention’s application, the Court takes into account the stage reached by the proceedings. It may therefore, within those limits, take into account the previous period of detention”.

It further says,

“A charged with an offence should always be released prior to a trial, unless the State is able to present “relevant and sufficient” grounds to justify extended detention”.

With regard to the risk of absconding, the European Court observes in the judgment,

‘The risk of absconding cannot be assessed solely on the severity of the eventual sentence; it must be judged with regard to a number of other relevant factors that might either confirm the existence of fugitivity or render it so insubstantial that it would not justify a pre-trial detention. In this regard, it should focus particularly on the individual involved, his or her character, morals, assets, international contacts, affiliations with the State where the person is being prosecuted “.

The judgment further provides,

“The question whether a period of detention is reasonable and it cannot be viewed in the abstract. Whether it is reasonable to remand an accused person in custody must be determined in each case individually in accordance with his or her individual characteristics. Extended detention may be justified in a particular case only if there are definite signs that it is genuinely required by a public interest which, notwithstanding the presumption of innocence, overrides the principle respecting the liberty of individuals”.

There is the following in the ECHR judgment,

“62. First and foremost, it falls to the domestic judicial authorities to ensure that the pre-trial detention of an individual charged in a given case does not exceed a reasonable time. In that regard, it must be considered all the facts pro and con as to whether there is a genuine public interest justification, taking into account the principle of the presumption of innocence, for disregarding the principle of individual liberty in order to direct decision-making with respect to the petitions requesting release. It is largely on the basis of the grounds set out in those judgments and actual circumstances referred to by the applicant in his motions that the Court must decide whether there has been a violation of the Convention, Article 5 § 3.

1. The arguments pro and con regarding a release should not be either ‘general or abstract’..
2. If a suspect is taken into custody, he is entitled to have priority to his case be conducted with the utmost diligence”. – https://hudoc.echr.coe.int/?i=001-61262

Thus, the European Court of Human Rights, the precedents of which are mandatory for the States members of the CoE, imposes an obligation on the national judicial authorities to respect the principle of keeping an accused or suspected individual at liberty prior to the trial.

The judicial authorities, in depriving an individual of his or her right to liberty during pre-trial proceedings, must provide concrete and relevant arguments that would justify the application of the strictest preventive measure in the form of arrest and, subsequently, its extension.

In case of lack of the definite arguments, a deprivation to the right to freedom and individual inviolability should be considered as a gross violation, which is guaranteed by the Azerbaijani Constitution, Article 28, the AR Criminal Procedure Code, Article 14, and Article 5(1) 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 UNLAWFUL AND UNJUSTIFIED VERDICT AGAINST RASHAD RAMAZANOV

Rashad Ramazanov

Analysis of violation of law during Rashad Ramazanov’s judicial proceeding

Baku City Grave Crimes CourtCase

Case № 1 (101)-89/2024

5 February 2024

Presiding judge: Azer Taqiyev

Judges: Elnur Nuriyev, Kamran Mukhtarov

Defendant: Rashad Ramazanov

Defender: Elchin Sadiqov

The State Prosecutor: Rauf Malyshov, a prosecutor at the Department for Support of the State Prosecution in the Serious Crimes Courts within the State Prosecution Support Division of the General Prosecutor’s Office of the Azerbaijan Republic

A blogger, Rashad Ramazanov, born in 1982, was first arrested on charges of large-scale drug trafficking in 2013 and sentenced to 9 years imprisonment. He was recognised by the human rights activists as a “prisoner of conscience” and included on the list of political prisoners.

In March 2019, he, along with other political prisoners, was released on the basis of a pardon decree.

Afterwards, Ramazanov left the country and settled in Georgia. But soon he returned to Azerbaijan.

On 20 May 2023, he was detained on charges of committing crimes 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.

1. Ramazanov, interrogated at the trial, did not plead guilty to the charges and testified that he had neither used nor sold the drugs. The blogger also claimed that the drugs found by the police officers on 20 May had not belonged to him, they had been planted by the officers themselves, who had also subjected him to physical and psychological pressure. It had been done in order to extort his “confession”. R.Ramazanov could not withstand the police pressure and did what had been asked. While answering the questions at the trial, the blogger specified that he had applied to the Baku City Sabunchi District Prosecutor’s Office following the police officers’ unlawful actions. Having emphasised that he was innocent, R.Ramazanov asked the Court to issue an acquittal verdict.

 

Elshad Qafarov, a Senior operative commissioner of the Main Department for Combating Drugs within the Azerbaijani Interior Ministry, questioned as a witness at the court, had testified that on 20 May 2022, it had been arranged an operational group by the officers of the 14th Baku City Sabunchi District Police Department. Then it was known that Rashad Ramazanov was detained and brought to the 14th police station at about 2.00 p.m. on 20 May 2022. He also testified that at that time R.Ramazanov had been brought in as a suspect and a lawyer had been called in. In the right pocket of Rashad’s jacket the police had found a narcotic drug heroin weighing 10.830 grams, packed in accordance with the law. Answering the questions, E. Qafarov testified that he had not obtained any supporting information on the drug purchase with the purpose of selling it.

Miryusif Seyidov, an operative of the Main Department for Combating Drugs, and Elchin Qahramanov and Tariel Rzaquliev, operatives of the 14th Sabunchi District Police Station, were also questioned as witnesses and provided the similar testimonies. They also affirmed that they had not possessed any information that would confirm the existence of any arrangement to purchase or sell the drugs.

The witness, Najaf Aburshu, a Senior Inquirer of the Inquiry Group within the Main Department for Combating Drugs, summoned at the request of the defence, testified that he neither had acquainted with R. Ramazanov, nor seen him, nor had any confrontation with him, and he did not know the reasons for summoning him to the Court. The fact that he was found on the territory of the Sabunchi district on 20 May 2022, could have been due to various reasons.

The results of the expert assessment dated 20 May 2022, reveal that the detected drug is heroin, made in an artisanal way.

According to the results of the forensic narcological examination dated 7 June 2022, it is clear that R. Ramazanov is not a drug addict and does not need to undergo compulsory medical treatment.

According to a forensic psychiatric examination from 13 June 2022, R. Ramazanov was not suffering from any mental or psychological disorder.

Based on the Baku City Sabunchi District Prosecutor’s Office resolution from 20 June 2022, we can see that the complaint about physical pressure on R. Ramazanov was investigated, and as a result of the investigation it was declined to initiate a criminal case.

In the course of the trial it was determined that there had been no evidence in the case file that would confirm any evidence supporting the intent to sell. That’s why the c Court reached the conclusion that the offence should be reclassified from the Article 234.4.3 to 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 AR Criminal Code.

It should be noted that during the Prosecutor’s speech at the trial, R.Ramazanov tried to swallow “the battery”  as a sign of protest.

On 5 February 2024, the Baku City Court for Serious Crimes issued a verdict: Rashad Ramazanov was found guilty of committing an offence under the Article 234.1-1 of the  Criminal Code of the Azerbaijan Republic and sentenced him to 5 years and 4 months imprisonment to be served in a general regime penal institution.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The recent practice has shown that in the course of trial the criminal cases initiated under the Article 234.4.3 are reclassified to the Article 234.1-1 of the AR Criminal Code. In spite of the re-classification from the more serious Article to the less severe one, the efficiency of the proceedings remains rather poor.

Thus, in accordance with the criminal procedure legislation, the investigative body shall submit the case file to the Court upon the investigation completion. The Court must consider whether the submitted evidences are sufficient for a fair trial.

The verification and evaluation of evidences should be the main focus of the judicial proceedings.

The Article 138.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

Proof shall consist in the obtention, verification and assessment of evidence in

order to establish facts of importance for the lawful, thorough and equitable determination of the criminal charge.

At the same time, according to the Article 138.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

The prosecutor shall be responsible for proving the grounds for the criminal responsibility of the accused and whether or not he is guilty.

It means that the Prosecution must provide sufficient irrefutable evidence to the Court to convince an outside observer that a defendant is indeed guilty.

The Article 139.1 of the Code of Criminal Procedure of the Azerbaijan Republic states, that during prosecution, the following may be determined only on the basis of evidence:

• the facts and circumstances of the criminal act;
• the connection of the suspect or accused with the criminal act;
• the criminal ingredients of the act provided for in criminal law;
• the guilt of the person in committing the act provided for in criminal law;
• the circumstances which mitigate or aggravate the punishment for which criminal law provides;
• if there is no other circumstance covered by this Code, the grounds for a request by a party to the criminal proceedings or another participant in the proceedings.

In the present case, the Court did not determine the connection between a defendant and the found drugs. Even the fact that the drugs had been found in the defendant’s pocket did not indicate that they belonged to him. The totality of the collected evidences in the case doesn’t prove that R. Ramazanov had committed a criminal offence either, as none of it proved his culpability.

The case evidence includes: the defendant’s testimony before and throughout the judicial investigation, witnesses’ testimonies, and a number of forensic examinations.

In the course of the trial, the defendant testified that he had been subjected to physical pressure on the part of the police officers and had been forced to denounce himself. The Court did not resolve the contradictions between the defendant’s testimony at the investigation and the ones he had given at the trial. Neither did the Court clarify the reasons why those testimonies drastically differed from each other. As the evidence allegedly proving the defendant’s guilt, the Court adopted his testimony given during the investigation. In addition, the police officers’ testimonies were taken as irrefutable, despite the fact that they had a direct interest in the case outcome.

The Article 145.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

All evidence shall be assessed as to its relevance, credibility and reliability. The

content of all evidence collected for the purposes of prosecution shall be assessed in terms of whether it is sufficient to substantiate the charge.

According to the Article 145.3 of the Code of Criminal Procedure of the Azerbaijan Republic,

If suspicions which emerge during the process of proving the charge cannot be removed by other evidence, they shall be interpreted in favour of the suspect or accused.

At the trial, the defendant claimed that he had been subjected to physical and psychological abuse. According to Ramazanov’s lawyer, an expertise confirmed the signs of physical injury on his body, which coincided with the time when he was under arrest. See: https://turan.az/az/siyaset/mehkeme-dini-bloger-resad-ramazanovu-5-il-4-ay-muddetine-azadliqdan-mehrum-edib

However, the Baku City Sabunchi District Prosecutor’s Office ruled against the initiation of criminal proceedings on the facts of ill-treatment.

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

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

According tot he Article 46 (III) of the Constitution of the Republic of Azerbaijan,

Nobody must be subject to tortures and torment, treatment or punishment humiliating the dignity of human beings. Medical, scientific and other experiments must not be carried out on any person without his/her consent.

Apart from the National Legislation, the provisions of International Conventions also prohibit torture and abuse. The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3, states,

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

Such a treatment is illegal and abnormal. Even in the most serious cases, such as the fight against terrorism and organised crime, the authorities must refrain from any action that could be considered as treatment prohibited by this provision. No such treatment shall ever be tolerated, whatever its intimidating consequences, real or perceived, upon the effective fight against criminal offences. In addition, the State has a mandatory duty to ensure that no one should be subjected to unlawful ill-treatment.

The judgment of the European Court of Human Rights (ECHR) in the case of Tomasi v. France dated 27 August 1992, stipulates,

‘The Convention categorically forbids inhuman or degrading treatment, torture or punishment, regardless of a victim’s conduct”.- https://hudoc.echr.coe.int/?i=001-57796

Apart from the Article 3, it was in breach of the Article 13 (right to an efficient legal defence) of the European Convention.

The judgment of the European Court of Justice (ECHR) in the case of Ilhan v. Turkey dated 27 June 2000, it is stated,

“The Court takes the view that the requirement of the Convention, Article 13, that an individual who claims a violation of the Convention, Article 3, be provided with an effective legal remedy, in most cases will provide both compensation to the applicant and the necessary procedural safeguards against breaches by the State officials. In its case-law, the Court has held that the notion of an effective remedy in this context includes the duty to carry out a full and effective investigation, the purpose of which is to identify and sanction those responsible for the ill-treatment and to grant the applicant free access to the investigation process. Thus, whether it is possible or necessary to recognise procedural violations of the Convention, Article 3, will depend on the particular characteristics of each case”. – https://hudoc.echr.coe.int/?i=001-58734

 

According tot he Article 66 of the Constitution of the Republic of Azerbaijan,

Nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister. Complete list of relations against whom testifying is not obligatory is specified by law.

 

The same right is granted to each person under the European Convention, Article 6(1), which refers to this right as the “right to silence”. Although this is not specified in the text of Article 6(1), it is however stipulated in the judgements of the European Court of Human Rights.

The law of criminal procedure sets out the prerequisites for a conviction. Thus, according to the Article 351.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

A conviction by the court may not be based on assumptions and shall be handed down only where guilt of the accused is proved during the court’s examination of the case.

The Article 351.3 of the Code of Criminal Procedure of the Azerbaijan Republic states, that the guilt of the accused may be regarded as proven, as follows:

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

None of the above points were observed by the Court. Thus, the verdict of conviction was not in accordance with the Law.

The illegitimate and unjustified verdict violated the fundamental right of the blogger R. Ramazanov: the right to freedom and personal inviolability, as well as the right to silence, fair trial, presumption of innocence, prohibition of torture and inhuman treatment, etc.

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IN AZERBAIJAN, THE DISSENTERS ARE SUBJECTED TO ARREST AND IMPRISONMENT

Ruslan Izzatli

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

Baku City Khatai District Court

Case № 4(011)-251/2024 2 April 2024

Presiding judge: Sulhana Hajiyeva

Defendant: Ruslan Izzatli

Defenders: Rasul Jafarov, Bahruz Bayramov

Nahid Abbasli, an investigator from the Serious Crimes Investigation Unit within the Investigation and Inquiry Department of the Baku City Police Head Office; Emil Alizadeh, a Prosecutor from the Supervision Department for the Execution of Laws in the area of investigation, enquiry and operative-search activity within the internal affairs structures of the Baku City Prosecutor’s Office.

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

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

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

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

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

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

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

Ruslan Izzatli was charged with committing an offence under the Article 206.3.2 (Smuggling committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic.

On 9 March 2024, the Baku City Khatai District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Ali Zeynalov in the form of detention for a period of 4 months.

The defence considered the ruling unlawful and submitted an appeal to the Baku City Court of Appeal. On 15 March 2024, the Court issued a ruling to dismiss the defence’s appeal and upheld the Baku City Khatai District Court’s rulings from 9 March 2024.

The defence also applied to the Court with a motion to replace the measure of restraint in the form of arrest to house arrest.

On 2 April 2024, the Baku City Khatai District Court issued a ruling: to reject the defence’s motion to substitute the measure of restraint in the form of arrest to house arrest.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

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.

As can be seen, the strictest preventive measure is an arrest, i.e. a complete isolation from the society, severe deprivation of liberty. The preventive measure in the form of house arrest, though not accompanied by complete deprivation of liberty and detention of the accused in places of liberty but there are other serious restrictions: such as restriction of communication, leaving the place of residence without the relevant permission by the investigation authorities, restriction of making phone calls, use of the Internet, and so on.

The advantage of house arrest is that the accused person is not completely isolated from society and remains, as a rule, in his or her place of residence until the trial. This measure of restraint is more humanitarian and should be used in most cases concerning the criminal case initiated on the basis of offences classified as serious ones.

In the case of R. Izzatli, the house arrest could have been applied. At least, the Court had to consider an alternative preventive measure other than arrest.

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

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

The Court did not specify the specific grounds that could justify the use of the strictest preventive measure in the ruling on the arrest of R. Izzatli

Pursuant to the decision of the Plenum of the Supreme Court of the Azerbaijan Republic “On judicial practice in cases involving applications for preventive measures in the form of arrest or house arrest” paragraph 1, dated 3 November, 2009, the attention of the Courts in considering applications for coercive measures must be drawn to the observance of the 28th Article of the AR Constitution, Articles 5 and 6 of the European Convention on Human Rights and Fundamental Freedoms, the provisions of the criminal procedure legislation and the practice of the European Court of Human Rights (ECHR). The Courts are obliged to bear in mind that arrest is the strictest preventive measure and therefore a formalistic approach is inadmissible in considering applications to restrict a detainee’s rights. They were also explained that, according to the European Court’s case law, as a rule, arrest is permissible when the public interest overrides the interests of an individual, i.e. if a person remains at large, it would create negative emotions in society and pose a danger to the public.

Paragraph 3, of the Decision stipulates that the Courts, when imposing a preventive measure in the form of confinement, should not just limit themselves to the formal enumeration of grounds set out in the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic, instead they should examine the nature of each ground relating to a particular accused person and whether it is confirmed by the evidence in a criminal case. Here, the nature and social danger of the crime committed by an accused person, information characterising his/her personality, including age, marital status, type of activity, state of health and other relevant circumstances shall be taken into account.

One of the important points of the Decision is paragraph 4, stating that the Courts are obliged to verify the possibility of applying a non-arrest preventive measure provided for in the Article 154 of the Code of Criminal Procedure of the Azerbaijan Republic; upon satisfaction of arrest applications, the inadmissibility of applying a non-arrest preventive measure must be justified.

Further, the Decision, paragraph 8, states that a Judge, when considering applications for a preventive measure in the form of arrest, has the right to request documents and evidence necessary to verify the grounds for such an application. The Courts do not determine an individual’s guilt, but rather solely verify the existence of procedural grounds for the imposition of a preventive measure, as well as the existence of primary evidence. The Courts rulings must indicate the set of evidence (to the required extent), an accused person’s clarifications, including assessments of their clarifications, which must be in line with the remarks in the court record; the court may not justify arrest orders with the evidence not reviewed in the course of the judicial proceedings.

The provisions of National Legislation prohibit arbitrariness. The prohibition of arbitrariness means that people cannot be deprived of their liberty on the basis of any discriminatory considerations.

Keeping a detainee at liberty is the rule, whereas detention should be considered an exception to that rule.

Unlike custodial sentences, an arrest order is based not so much on evidence as on a reasonable suspicion.

The Article 163.3 of the Code of Criminal Procedure of the Azerbaijan Republic states, that house arrest may be accompanied by application of the following measures, separately or where possible jointly:

• prohibition of leaving one’s home at any time or at certain times;
• prohibition of speaking on the telephone, sending mail or using other means of communication;
• prohibition of contact with certain people and of receiving visits from anyone at home;
• application of electronic monitoring devices and obligation to wear them and operate them

The investigating authority, and subsequently the Courts, could have applied the above-mentioned restrictions to R. Izzatli without his isolation from the society. The Court took into account neither his state of health (“need for surgical intervention”), nor his impeccable political activity, nor his authority in society, nor the presence of a young child.

If Ruslan Izzatli were at large, it wouldn’t create any negative emotions in the society.

Thus, the isolation of R. Izzatli from the society is not either legal or lawful, i.e. it does not comply with the domestic legislation and International Legal Norms.

The widespread arrests of journalists and civil society representatives are not legitimate, but, as evident from the judicial rulings on the arrests, are of a different nature, not stipulated by the provisions of domestic and International Law.

One-sided, single-minded, unfounded court rulings, lacking sufficient grounds to justify the arrests, have become a pervasive violation of one of the fundamental rights in a democratic society: the Right to Liberty and Personal Inviolability. This right, guaranteed by the Constitution of the Azerbaijan Republic, Article 28, Article 14 of the AR Criminal Procedure Code and Article 5(1) of the European Convention, was grossly violated by the investigative bodies and Courts in relation to the political activist, Ruslan Izzatli. The Courts disregarded the Law provisions, the Basic Law of the country (Constitution), International Norms (European Convention and International Covenant on Civil and Political Rights), provisions of the Supreme Court Plenum Decision from 3 November 2009, as well as the ECHR practice.

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THE RIGHT OF A CITIZEN TO A FAIR TRIAL HAS ONCE AGAIN BEEN VIOLATED IN AZERBAIJAN

Bahruz Karimov

Analysis of violation of law during Bahruz Karimov’s judicial proceedings

Baku City Grave Crimes Court

Case № 1(101)-387/2024

20 February 2024

Presiding judge: Samir Aliyev

Judges: Faiq Qaniyev, Mahmud Agalarov

Defendant: Bahruz Karimov

Defender: Elkhan Khudaverdiyev

The State Prosecutor: Orkhan Mehdiyev, a prosecutor from the Department supporting the State Prosecution in the Serious Crimes Courts within the Serious Crimes Administrative Division at the General Prosecutor’s Office of the Azerbaijan Republic

Bahruz Kerimov, born in 1984, is a Shia believer, married and has two young children.

On 9 March 2023, he was detained on charges of committing crimes 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.

Bahruz Karimov’s arrest occurred at a time when the Azerbaijani-Iranian relations had escalated, and there were mass arrests of Shiite believers in Azerbaijan. The state TV channels and newspapers launched a propaganda campaign against the arrested Shiite believers, labelling them as “agents of Iran” and accusing of working for Iran’s special services. At the same time, by labelling the arrested Shiites as “agents of Iran”, the investigation and subsequent trials accused them of illegal use or drug trafficking. None of the detainees were charged with treason or espionage.

According to the investigation, B. Karimov was detained in one of the capital’s streets on 9 March 2023, and brought to the 20th Police Department of the Baku City Nasimi District Police Department. In the course of personal inspection, a bag with the narcotic drug heroin with a total weight of 19.603 grammes has been found in his possession.

On 11 March 2023, the Baku City Nasimi District Court chose a preventive measure in the form of detention for the period of 4 months against B. Karimov.

Bahruz Karimov, interrogated as a defendant at the trial, did not plead guilty to the charge and testified that he had been working as a kebab man in one of the capital’s restaurants, where two men had entered one day in early March 2023. They ordered a kebab. Once Bahruz Karimov had prepared their order and a waiter had served it to the customers, the later left. The men, after having dinner, approached B. Karimov and said that there had been a complaint against him. They and demanded Karimov to follow them. In the car, where Karimov was taken there were four men. He was brought to the police station; there he saw a baseball bat. They threatened to beat him with the bat if he would not agree to undertake the drugs. After that, all those policemen left the room and the one who stayed there told him that his arrest had been ordered. Further, the interrogator, Najaf, forced him to accept the drugs, but Bahruz did not agree. Seeing that Karimov did not co-operate, they threatened that in this case they would accuse his wife of doing so: the drugs would be plant in their house. His wife was pregnant at the time. Being afraid for her, B. Karimov had to accept it. Then the investigator called a lawyer into the room. Once there, Karimov saw that the lawyer had headphones in his ears and was not listening to him or anyone else in the room. At that point, B. Karimov refused to talk to that particular lawyer. The defendant also testified that he had been detained because he was a believer. He had never used drugs and did not drink alcohol.

Vasif Badalov, an operative commissioner from the Main Department for Combating Drugs within the Ministry of Internal Affairs of Azerbaijan, who, as a witness, was questioned at the trial, confirmed the investigation’s version. Ariz Amirov, another witness, also testified in a similar manner as V. Badalov.

The Court reached the conclusion that the offence should be reclassified from the Article 234.4.3 to 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 AR Criminal Code.

1. Karimov’s testimony was assessed by the Court as the one intended to mitigate the punishment.

 

The forensic medical examination dated 10 March 2023, indicated that the found narcotic drug was homemade heroin.

 

The forensic narcological examination conducted on 20 May 2023, determined that B. Karimov had not suffered from drug addiction, not required any compulsory treatment.

The report provided by the Society of Forensic Medical and Pathological Expertise under the Azerbaijan Republic Ministry of Health that carried out on 17 March 2023, concluded that no injuries had been found on Karimov’s body.

On 20 February 2024, the Baku City Court for Serious Crimes issued a verdict: Bahruz Karimov was found guilty of committing an offence under the Article 234.1-1 of the  Criminal Code of the Azerbaijan Republic and sentenced him to 3-years- imprisonment to be served in a general regime penal institution.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

As in any other criminal case, the most important factor in this case must be the issue of adequacy and incontrovertibility of evidence. According to the Article 146.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

The notion that sufficient evidence has been collected for the prosecution means that the amount of evidence on the facts to be determined is such as to allow a reliable and final conclusion to be reached on the case.

The evidence base submitted by the investigating authority to the Court, considered sufficient for the indictment and further arrest of an individual, consisted of the defendant’s testimony, statements provided by two police officers who supported the prosecution’s version as well as several formal forensic expertises. None of the submitted pieces of information prove the defendant’s involvement in the found drugs.

At the trial, the defendant testified that he had been detained by two individuals had been having dinner at the restaurant where he worked as a kebab man. However, the police officers claimed that they had detained him in one of the streets. The Court did not take any initiative to resolve the contradictions between the given testimonies.

It appears that the final Court’s judgement concerning the defendant’s guilt was based upon the police officers’ testimony and investigation’s version. Despite the existence of the Norm in the Criminal Procedure Law, the Court evaded its observance and did not interpret the contradictions in favour of the defendant, but rather, everything was interpreted to his disadvantage.

According to the Article 145.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

All evidence shall be assessed as to its relevance, credibility and reliability. The content of all evidence collected for the purposes of prosecution shall be assessed in terms of whether it is sufficient to substantiate the charge.

The Article 145.3 of the Code of Criminal Procedure of the Azerbaijan Republic states,

If suspicions which emerge during the process of proving the charge cannot be removed by other evidence, they shall be interpreted in favour of the suspect or accused.

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

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

The Article 139 of the Code of Criminal Procedure of the Azerbaijan Republic states, that during prosecution, the following may be determined only on the basis of evidence:

 

• the facts and circumstances of the criminal act;
• the connection of the suspect or accused with the criminal act;
• the criminal ingredients of the act provided for in criminal law;
• the guilt of the person in committing the act provided for in criminal law;
• the circumstances which mitigate or aggravate the punishment for which criminal law provides;
• if there is no other circumstance covered by this Code, the grounds for a request by a party to the criminal proceedings or another participant in the proceedings.

As we can see, the Court did not take into account the above-mentioned legal provision, and the circumstances that should have been determined from the evidence; due to its lack and irrefutability. The connection between the defendant and found drugs has not been proved by the Court, as it happens in all similar cases without exception.

Here, it should be recalled the Article 10 of the Code of Criminal Procedure of the Azerbaijan Republic, stipulating that the Courts and participants of criminal proceedings shall strictly observe the provisions of the Constitution, Code of Criminal Procedure and other laws of Azerbaijan, as well as the International Treaties with the participation of the Azerbaijan Republic.

1. Karimov was deprived of the right to a fair trial guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1). According to this Article, everyone in the event of a dispute concerning his/her civil rights and obligations or in the determination of any criminal charge against him/her shall be entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by Law.

As the defendant testified before the Court, the police threatened him and forced to admit his possession of the drugs. The threats were also made against his pregnant wife. Having feared that the police officers might hurt her, he agreed to their demands.

Unfortunately, those testimonies of his have not been verified either. The defendant even mentioned the name of the one who forced him to do so: the inquirer Najaf. In order to clear all doubts, the Court should take an initiative but it didn’t. The Court was not either proactive in summoning that person for questioning.

According to the Article 125.2 of the Code of Criminal Procedure of the Azerbaijan Republic states,

 

Information, documents and other items shall not be accepted as evidence in a criminal case if they are obtained in the following circumstances through the use of violence, threats, deceit, torture or other cruel, inhuman or degrading acts.

The Article 13.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

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

Moreover, the Article 66 of the Constitution of the Azerbaijan Republic states

Nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister. Complete list of relations against whom testifying is not obligatory is specified by law.

The right to silence, though not explicitly stated in the European Convention, Article 6(1), the case law of the European Court of Human Rights (ECHR) enshrines this right in the above-mentioned Article.

Thus, the judgment of the European Court of Justice in the case of John Murray v. the United Kingdom dated 8 February 1996 says:

“Though it is not explicitly mentioned in the Article 6 of the Convention, there is no doubt that the right to silence during the police interrogation and privilege not to testify against yourself are recognised by the International Standards which are at the heart of the notion of fair trial under the Article 6 (…). By protecting a defendant from unfair coercion by the authorities, these privileges contribute to avoiding errors in the administration of justice and guarantee the fulfilment of the objectives set out in the Convention, Article 6.” – https://hudoc.echr.coe.int/?i=001-57980

Lack of sufficient evidence, bias on the part of the investigative and judicial bodies, failure to comply with the norms of both National and International Laws, lack of the judicial system to act independently have led to the violation of B. Karimov’s fundamental rights, i.e. the right to liberty and inviolability of a person, the right prohibiting torture and inhuman treatment, the right to a fair trial in general and right to silence in particular, as well as other related rights enshrined in the National Legislation, the European Convention on Human Rights, the European Convention for the Protection of Human Rights and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

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THE NUMBER OF ARRESTED WOMEN JOURNALISTS HAS DRASTICALLY INCREASED

Elnara Qasimova

Analysis of violation of law during Elnara Qasimova’s judicial proceeding

Collegium for Criminal Cases of the Baku City of Appeal

Case № 4(103)-90/2024

2 February 2024

Presiding Judge: Anar Ibrahimov

Judges: Mirzali Abbasov, Ramin Qaraqurbanli

Defendant: Elnara Qasimova

Defenders: Aisha Abdel Qadir, Bahruz Bayramov

With participation of Abulfaz Huseynov, a Prosecutor at the Investigation Department within the Baku City Prosecutor’s Office, Division for Supervision over Execution of Laws on Inquiry and Investigative Activity; and Togrul Huseynov, a Senior Investigator from the Investigation Department on Serious Crimes within the Baku City Police Main Office

Elnara Qasimova, born in 1996, was previously a member of the N!DA Civic Movement and then became a journalist. She has been recently cooperating with the Internet site Abzas Media.

In November 2023, there were arrested: the website Director, Ulvi Hasanli; an editor-in-chief Sevinj Vaqifqizi; the employees Nargiz Absalamova, Mohammad Kekalov; also, an employee from the Turan News Agency, Hafiz Babaly. In a short time, there were arrests of the following people: Aziz Orujev, an Executive director from Kanal-13, Teymur Karimov and other employees from Kanal-11.

On 13 January 2024 Elnara Qasimova was brought as a suspect to the criminal case initiated against journalists.

On 15 January 2024, she was charged for committing a crime under the Article 206.3.2

(Smuggling committed on preliminary arrangement by group of persons) of the Criminal Code of Azerbaijan Republic (CC AR). On the same day, the Baku City  Khatai District Court imposed a measure of restraint on Elnara Qasimova in the form of detention for a period of 2 months.

1. Qasimova was sent to the Pre-Trial Detention Centre No.1 in the settlement of Kyurdakhani, outskirts of Baku.

The defence, having applied to the Baku City Khatai District Court, sought to replace the previously elected measure of restraint in the form of arrest with a house arrest. On 25 January, 2024, the Baku City Khatai District Court issued a ruling declining to replace the arrest with a house arrest. The defence, being disagree with the ruling, filed an appeal.

On 2 February 2024, the Collegium for Criminal Cases of the Baku City of Appeal issued a ruling: to decline the defence’s appeal and leave the Baku City Khatai District Court ruling from 25 January 2024, unchanged.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

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.

As stated above, the Court chose a preventive measure in the form of detention for 2 months against the detained journalist Elnara Qasimova. The Court did not consider any alternative preventive measures other than arrest. Despite the existence of nine preventive measures, the Courts always issue the strictest one by default— an arrest in “sensitive cases”. Moreover, the Courts do not provide any justification or reasoning for the rulings on arrest.

 

The Court of Appeals ruling issued on 2 February 2024, is also lacking any argument.

Thus, it states that the use of arrest as a preventive measure against E. Qasimova is justified by the public danger, seriousness and nature of the committed offence, probability of concealment from the authority carrying out the criminal proceedings and exerting an illegitimate influence on the parties involved in the trial, and interference in the normal course of the preliminary investigation as well as exposing other members of the group.

It is further stated in the ruling that at present, the listed grounds have not been eliminated, so the defence motion to change the measure of restraint from arrest to the house arrest is inappropriate.

According to the Article 156.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

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.

At the same time, the Article 163.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

House arrest is a restrictive measure which restricts a person’s liberties and some other rights by a court decision, without the accused being detained on remand and isolated completely from society.

A preventive measure in the form of house arrest is not applied if the accused does not have a permanent place of residence in Azerbaijan (Article 163.3-3 of the Code of Criminal Procedure of the Azerbaijan Republic). In the case of E. Qasimova, the Article 163.3-3 of the Code of Criminal Procedure of the Azerbaijan Republic is not applicable, as she has a permanent place of residence in Azerbaijan.

In the court’s judgement, the Court points out the necessity of restricting the journalist’s right to freedom, but does not provide any arguments to prove such a serious statement. The Court merely limits itself to the pre-trial investigation request.

In order for a deprivation of liberty to be in line with the European Convention for the Protection of Human Rights and Fundamental Freedoms, it must fulfil two conditions: legitimacy and lawfulness. The deprivation of liberty must first and foremost be legitimate in terms of domestic law. This right must be in conformity with the European Convention and general principles enshrined in that Convention must be respected. In particular, the domestic procedure must be fair and proper.

The deprivation of liberty must also be lawful, i.e. it must be in conformity with a purpose prescribed by any of the exhaustive list of cases contained in the Article 5(1) of the Convention which guarantees the right to liberty and security of person.

“…Deprivation of liberty is a measure of such severity that it can be justified only when other less severe measures have been considered insufficient to protect the personal or public interest that requires the deprivation of liberty. It is insufficient that the deprivation of liberty is in accordance with domestic law; it must also be compulsory in view of the particular case”. (WitoldLitwa, 78).

The European Court of Human Rights (ECHR) judgment, paragraph 58, in the case of Smirnova v. Russia dated 24 July 2003, it stated:

“An individual charged with an offence must always be released prior to his or her trial, unless the State could present ‘appropriate and sufficient’ grounds to justify prolonged detention”. It has been noted above that the Court has referred to the risk of absconding from justice due to the severity of the impending sentence as a ground for acquittal in refusing a change of preventive measure. In that case, the European Court in the case of Smirnova v. Russia emphasised: “The risk of absconding cannot be assessed solely on the basis of the severity of the sentence to be imposed; it must be considered with regard to a number of other relevant factors which may either confirm the risk of absconding or make it so insignificant that it cannot justify a pre-trial detention. In this respect, attention must be paid to, in particular, the individual’s character, his or her morals, assets, association with the State, in which he or she is being prosecuted and international contacts.” “Arguments pro and con for release must not be “general and abstract” (paragraph 60 of the above-mentioned judgment). – https://hudoc.echr.coe.int/?i=001-61262

The Court of First Instance, and subsequently the Court of Appeal, did not provide any solid evidence or arguments for denying the application of the defense, did not substantiate its ruling, did not demonstrate an individual approach to the case, in fact, failed to comply with the provisions of substantive and procedural law, including the Norms of International Conventions, as well as the precedents of the European Court of Human Rights, when imposing the measure of restraint in the form of arrest, further replacing the arrest with house arrest. Such a judicial approach violated E. Gasymova’s right to freedom and personal inviolability guaranteed by the Constitution of the Azerbaijan Republic, Article 28, and the European Convention, Article 5 (1).

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 ANOTHER BELIEVER WAS CONVICTED AS A DRUG ADDICT

Samir babayev

Analysis of violation of law during Samir babayev’s judicial proceedings

Baku City Grave Crimes Court

Case № 1(101)-1162/2023

19 October 2023

Presiding judge: Eldar Ismayilov

Judges: Javid Huseynov, Sabuhi Huseynov

Defendant: Samir Babayev  

Defender: Fariz Namazli

The State Prosecutor: Fuad Musayev, a Counsellor of Justice, Prosecutor for Support of the State Prosecution within the AR General Prosecutor’s Office

Samir Babayev, born in 1982, is a Shia believer and member of the “Muslim Unity Movement” (MUM), the Chairman of which Tale Bagirzade was found guilty in 2016 under many Articles of the Criminal Code of the Azerbaijan Republic and sentenced to 20 years imprisonment. Many of the MUM members are also imprisoned or have been released and then again brought to criminal responsibility.

Samir Babayev was repeatedly called as a witness to the criminal case against T. Bagirzade and other believers. On 4 February, 2018, he was detained by administrative procedure and sentenced to 60 days under administrative arrest. Besides that, C. Babayev has been subjected to administrative arrests for about 3-4 more times and served different terms.

In 2023, during the escalation of Iranian-Azerbaijani relations following the attack on the Azerbaijani Embassy in Iran, several hundred Shia believers in Azerbaijan have been arrested. Even though the authorities claimed that all those arrested had been agents working for Iran, the officially arrested Shia believers were charged with illegal use of drugs. None of the detainees were charged with espionage, treason or any other offence.

 

Samir Babayev was no exception.

On 2 December 2022, S.Babayev was brought to the criminal case as a suspect. On 4 December 2022, he 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. A measure of restraint in the form of detention for a period of 4 months has been chosen against S.Babayev, and subsequently that measure has been extended a number of times.

 

According to the investigation, Samir Babayev was detained on in the course of the police operational-search activities on 2 December 2022. Three bags have been found in his possession: one was weighing 3.148 grams, the others were 3.142 grams and 3.405 grams, with a total of 9.695 grams of the homemade methamphetamine.

On 11 May 2023, the accused S. Babayev, interrogated during the trial, pleaded not guilty and testified that he had been tortured and subjected to ill-treatment when detained and provided testimonies. He testified,

“I was detained near my house when I was on my way to work. They brought me to the Baku Sabunchi District Police Department. All along the road, while we were driving to the Department, I was insulted and beaten. At the Police Department they put drugs on the table in front of me. They said that they would make a video, and I should reach out and show the drugs. I said that the drugs was not mine. A few people started beating me in the area of my head and body. But I did not sign the testimony. Then a representative of the ” gang unit” (Main Department for Combating Organised Crime within the Ministry of Internal Affairs) arrived. He told me that if I had not taken it upon me, they would have planted me with a gun. I replied that I wouldn’t accept either one or the other. I did not sign that testimony. They banged my head against the wall”.

1. Babayev also testified that his arrest was due to his membership in the MUM and he had never used drugs.

It should be noted that during the preliminary investigation S. Babayev refused to testify against himself.

Shahriyar Asadov, a senior operative officer from the 14th police station, questioned as a witness during the trial, testified that S. Babayev had been arrested and brought to the 14th police station on 2 December 2022. The narcotic drug methamphetamine had been found in his possession.

Elchin Abilov, an operative office from the 14th Police Department of the Baku City Sabunchi District Police Department, provided the similar testimony and added that the personal examination of S. Babayev had been performed at the police station. It should be noted that Abilov’s name was mentioned in S. Babayev’s testimony when he had been talking about his torture and ill-treatment. E. Abilov denied S. Babayev’s testimony against him, he said that he had not beaten S. Babayev and had any information regarding the religious organisation to which Babayev was affiliated.

The witness, Siraj Veliyev, was questioned in the trial and confirmed his testimony provided at the investigation. Another witness, Qasym Abdullayev, did not turn up in the court, in spite of the order on compulsory attendance. It was established before the Court that the witness had left the territory of Azerbaijan, travelled to Novosibirsk, and the date of his return remained unknown. Therefore, the Court read out his testimony provided at the preliminary investigation.

Rashad Ismayilov, a senior interrogator of the 14th police department, questioned as a witness and summoned at the request of the defence, testified that S. Babayev had been brought to the police station on 2 December 2022. There were two officers there, Shahriyar Asadov and Elchin Abilov. Ismayilov was assigned to conduct a personal examination of S. Babayev. He wanted to carry out the examination by making a video, but S. Babayev declined to be filmed. The detainee also refused to sign the documents. At that point, the police invited a lawyer, but the detainee rejected his assistance; as a result, the inspection was carried out without the presence of a lawyer. Three bags with narcotic drugs were found in the defendant’s possession during the examination.

The report of the face-to-face session dated 4 December 2022 reveals that Shahriyar Asadov, Elchin Abilov, as well as the witnesses Qasym Abdullayev and Siraj Veliyev, all confirmed their testimony and denounced S. Babayev.

The protocol of personal examination and seizure dated 2 December 2022, indicates that three bags of the drug methamphetamine have been found in S. Babaev’s possession during the personal search.

1. Babayev’s testimony was taken by the Court as having the nature of a defence.

The letter dated 25 June 2023, issued by the Baku City Sabunchi District Police Department indicates that the recordings from the video surveillance cameras located at the Police Department’s administrative building are kept for one month, for this reason it is impossible to submit the recordings that dated back to 2 December, 2022.

According to the statement of the Prosecutor’s Office of the Baku City Sabunchi district, dated 1 May 2023, no injuries on S.Babayev’s body had been observed and the initiation of a criminal case on this matter had been denied.

The Court pointed out as mitigating circumstances the existence of the defendant’s two minor children. The Court did not reveal any aggravating circumstances.

On 10 October 2023, the Baku Court for Serious Crimes issued a verdict: to find S. Babayev guilty on all charges and sentenced him to 4 years imprisonment with serving the sentence in a general regime penal institution.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The criminal case brought against S. Babayev does not differ from other similar cases brought against a large number of believers convicted under the drug related Articles.

As evidence in the case it was recognised: the police officers’ testimonies and the witnesses’s ones, the latest were invited by the same police officers, the testimonies of the defendant and several expertises on the chemical composition of the found drugs, the defendant’s psychological state, as well as the protocols of confrontations. It should be stressed that not a single piece of evidence listed above is irrefutable. All the evidences should be assessed in the aggregate.

The testimonies of the police officers who were directly participating in the detention of S.  Babayev should have been supported by other strong evidence supporting the case. The Court should have been critical about the police officers’ testimony. However, it was precisely those testimonies that became crucial for the Court. At the same time, the Court was critical and did not take into account the testimony of the defendant himself (including the testimony about ill-treatment, in which he mentioned the names of specific police officers who had subjected him to torture). The Court did not determine the relevance of the found drugs to S. Babayev.

 

As the defendant testified, he had been demanded to admit the drugs as his own, but he neither agreed to do so nor signed any documents. A clear deficiency in the evidence casts doubt on the guilt of the accused.

According to the Article 146.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

The notion that sufficient evidence has been collected for the prosecution means

that the amount of evidence on the facts to be determined is such as to allow a reliable and final conclusion to be reached on the case.

The Article 145.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

All evidence shall be assessed as to its relevance, credibility and reliability. The content of all evidence collected for the purposes of prosecution shall be assessed in terms of whether it is sufficient to substantiate the charge.

At the same time, according to the Article 144 of the Code of Criminal Procedure of the Azerbaijan Republic,

Evidence collected for the purposes of prosecution shall be verified fully, thoroughly and objectively. As part of the verification process the items of evidence collected shall

be analysed and compared with one another, new evidence shall be collected and the reliability of the source of the evidence obtained shall be established.

The testimony of a witness summoned for questioning at the trial upon the defence’s motion is an important piece of evidence. Rashad Ismayilov, a Senior Inquirer from the 14th Police Department, confirmed the fact that the personal examination of S. Babayev had been conducted without a lawyer at the police station, as the latter had declined the lawyer summoned by the investigation.

There are fundamental rights of the accused listed in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6, paragraph 3. These are as a minimum as follows:

• to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
• to have adequate time and facilities for the preparation of his defence;
• to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
• to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
• to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

The Article 145.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

The investigator, prosecutor or court shall guarantee the rights of the accused, shall not prevent him from exercising his right of defence by all lawful means and methods and, if he so requests, shall allow him sufficient time for the preparation of his defence.

Failure to recognise the right to defence leads to a denial of everyone’s right to justice, that, particularly in criminal cases, must first and foremost be fair. The right to defence is an integral element of the right to a fair trial.

The judgment of the European Court of Human Rights (ECHR) in the case of Van Mechelen and Others v. the Netherlands dated 23 April, 1997, stipulates:

“Bearing in mind the importance that the right to a fair administration of justice has in a democratic society, any measure restricting defence rights must be imposed by a strict necessity. If a less restrictive measure would be sufficient, it is that measure alone that should be applied”. – https://hudoc.echr.coe.int/?i=001-58030

 

The judgment of the European Court of Human Rights (ECHR) in the case of Pacelli v. Germany dated 25 April, 1983, indicates:

“The Article 6 para. 3 (c) guarantees a defendant charged with a criminal offence three rights: to defend oneself voluntarily; to have a defence counsel of his/her choice; and, in certain circumstances, to have a defence counsel assigned to him/her free of charge”.- https://hudoc.echr.coe.int/?i=001-57554

One of the most important points in a criminal case is the testimony of the accused regarding the ill-treatment and his subjection to torture. As mentioned above, the Prosecutor’s Office dismissed the criminal case of mistreatment, although the accused accurately recorded the individuals’ names who had subjected him to torture and ill-treatment. The Court, referring to the Prosecutor’s decision not to initiate criminal proceedings, did not take any initiative to verify the accused’s testimony. Having heard the police officers’ testimonies, the Court considered their testimonies that they had not committed such actions against the defendant.

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

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

The torture is also prohibited under the Constitution of Azerbaijan, Article 46, paragraph III. Thus, it states:

Nobody must be subject to tortures and torment, treatment or punishment humiliating the dignity of human beings. Medical, scientific and other experiments must not be carried out on any person without his/her consent.

The European Convention, Article 3, as well as other international legal norms, regulates the right of everyone not to be subjected to torture and ill-treatment. There are no exceptions to this Article, which means that it applies in all cases, even in the fight against terrorism or mafia.

The judgment of the European Court of Justice in the case of Assenov and Others v. Bulgaria dated 28 October, 1998, states:

“Where a person alleges, by making a claim, that he has been subjected to ill-treatment contrary to the Convention, Article 3, on the part of the police or other relevant public services, this Norm, viewed in conjunction with the obligation, common to all States under the Article 1 ‘to secure to everyone within their jurisdiction, the rights and freedoms defined in the Convention’, requires by its very terms that some form of effective official investigation be carried out. This investigation, like the one required by Article 2, should result in the identification and punishment of those responsible. If it were otherwise, the general legal prohibition on torture and inhuman or degrading treatment, despite its essential importance, would be ineffective in practice and, in some cases, a State official could disregard, in a quasi-punitive manner, the rights of those who are under their control.”. – https://hudoc.echr.coe.int/?i=001-58261

The Mahmut Kaya v. Turkey judgment from 28 March, 2000, where it states:

“The duty imposed on the High Contracting Parties in accordance with the Article 1 of the Convention to protect mentioned in the Convention rights and freedoms of everyone within their jurisdiction, and  also Article 3 of the Convention that oblige the State to take appropriate measures to ensure that everyone within its jurisdiction won’t be subjected to torture or inhuman and degrading treatment, including violence by any individuals. When the existing law fails to provide a required protection or when the authorities fail to take reasonable steps to prevent a risk of violence, a State must be also responsible to protect their citizen”. – https://hudoc.echr.coe.int/?i=001-58523

Thus, having summarized all the above, we can certainly conclude that Samir Babayev has been subjected to violation of his rights that must be protected in any democratic society e.g. the Right not to be subjected to torture, the Right to defense, the Right to a fair trial and, combined together these rights – the Right not to be subjected to discrimination.

 

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ONCE AGAIN THE COURT VIOLATED THE DEFENDANT’S RIGHT TO LIBERTY AND PERSONAL INVIOLABILITY

Agalar Agayev

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

Baku City Grave Crimes Court

Case № 1(101)-927/2024

9 February 2024 

Presiding judge: Anar Sadiqov

Judges: Fakhri Mammadov, Mahira Karimova

Defendant: Agalar Agayev

Defender: Fariz Namazly

The State Prosecutor: Ergin Qafarov, a prosecutor from the Department supporting the State Prosecution in the Serious Crimes Courts within the Serious Crimes Administrative Division at the General Prosecutor’s Office of the Azerbaijan Republic

Agalar Agayev, a 45-year-old Shiite believer and veteran of the Karabakh war, previously affiliated to the Muslim Unity Movement, but had resigned from the movement. On 31 January 2023, he was detained on charges of committing crimes under the Articles 167-3.1 (Manufacture, storage or distribution of religious extremist materials, i.e. materials calling for the implementation of religious extremist activities or justifying such activity, either justifying the need for such activities) and 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 2 February 2023, the Baku City Binagadi District Court issued a preventive measure in the form of detention against A. Agayev, which was then subsequently extended for several times.

According to the investigation, on 31 January 2023, Agalar Agayev was detained in the course of operative search activities, brought to the 43rd police station, and searched. In the course of the search, the drug methamphetamine weighing 19.104 grams has been found in his possession. Also, while searching Agalar Agayev’s apartment, the police seized some religious literature and CDs with a extremist tendency.

The defendant, Agalar Agayev, interrogated during the trial, did not plead guilty to the charges and testified that the police detained him in a store and immediately brought him to the Chief of the Baku City 43rd Police Department.

The Chief asked him two questions: whether he performed namaz (prayer) and if he had been to Iran. In response to these questions, Agalar Agayev said that in 2018, he traveled with a group of 55 people to Mashhad, a holy place for all Shiite and the second largest city in Iran, where there is located one of their most important sanctuary, the mausoleum of Imam Reza. Then, the Chief of the 43rd police station insisted that he would detain Agaev on charges of drug trafficking. At that moment, one of the policemen, Naheed, took the drugs out of the secure place and put it on the table asking Agalar Agayev to take it. As Agayev stated at the trial, he had had nothing in his pocket but his cell phone. However, he did as he was told. Two days after his arrest, his house was searched without his presence. The police found in his house: a disk, flag with the name of one of the prophets and religious books. A. Agayev explained that he had nothing to do with the found disk and drugs. He also noted that the walking distance between the place where he was detained and the police station was just 5 minutes, but the personal search was conducted in almost 4 hours. Before he was brought to the police station, his cell phone was in his pocket. It was seized only at the police station. A. Agayev also testified that he had been subjected to psychological pressure.

Tural Asqarov, a police officer, questioned at the trial as a witness, testified that he received an information relating to the illegal trafficking of drugs. Agalar Agayev was detained and brought to the police station in the course of that search operation. Tural Asqarov also testified that he hadn’t apply any physical or psychological pressure to the detainee who was not caught in the store but on the street.

Another police officer, Ilkin Shakhverdiyev, questioned as a witness at the trial, provided similar to Tural Asqarov’s testimony.

The witness Eltun Isayev, questioned at the trial, testified that he had been an invited witness during the search at A. Agayev’s apartment. At that time Agayev’s wife was at home, she was explained her rights and obligations, the police provided to her the Baku City Binagadi District Court order to conduct the search. She did not express any objection. The search was conducted in Agalar Agayev’s private one-storey house, as well as on a small plot adjacent to the house. 3 disks, 12 flags, 8 religious books, 6 photos and other items with inscriptions in Azerbaijani and some foreign languages were found on the place. Then, the protocol was drawn up and signed; all the found items were packed.

Mirrasul Mahmudov, an invited witness and Muhammadali Tahirzade, a witness provided testimonies similar to Eltun Isayev’s one.

A forensic chemical examination from 1 February, 2023, confirmed the origin of the found drug, methamphetamine.

The forensic narcological examination conducted on 3 April 2023, determined that A. Agayev had not suffered from drug addiction, not required any compulsory treatment.

A forensic-religious examination dated 23 May 2023, confirmed that the registered information on three disks found in Agalar Agayev’s house should be considered as an extremist that spreading religious hatred and enmity.

The Court pointed out as mitigating circumstances the existence of the defendant’s three minor children. The Court did not reveal any aggravating circumstances.

On 9 February 2024, the Baku Court for Serious Crimes issued a verdict: to find Agalar Agayev guilty on all charges and sentenced him to 3 years and 6 months’ imprisonment with serving the sentence in a general regime penal institution.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

There are the same evidences in Agalar Agayev’s case as in similar cases that involve other Shiite believers arrested in the last two years. The police officers’ testimonies are unconditionally accepted by the Court as irrefutable ones, whereas the defendants’ testimonies are perceived as having the character of defense. There is also an identical set of forensic examinations, protocols of confrontations and interrogations.

The investigation scenarios in these kinds of cases are the same. The same pattern of finding drugs, as well as the types of those drugs. Also, the police officers’ behaviors are similar in all cases.

The defendant was ordered to identify the drugs as his own, thereby testifying against himself. It should be noted that the Constitution of the Azerbaijan Republic primarily prohibits testifying against oneself and close relatives. According to the Constitution of the Republic of Azerbaijan,

Nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister.

The Article 20 of the Code of Criminal Procedure of the Azerbaijan Republic states,

• Nobody may be forced to testify against himself or his close relatives, or be prosecuted on this basis.
• During the investigation or court hearing, a person asked to give information which may incriminate him and his close relatives in respect of an offence shall have the right to refuse to incriminate them without fear of negative legal consequences for himself.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1), also contains a protection of the right to avoid being obliged to testify against oneself. Though it is not clearly articulated in the text of the Article itself, it has been emphasized in numerous judgments of the European Court of Human Rights (ECHR) and represents one of the pillars of the right to a fair trial. It is also stated that a silence should not be used against a defendant.

The judgment of the European Court of Justice (ECHR) in the case of Sanders v. the United Kingdom dated December 17, 1999, said,

“The right not to testify against oneself is primarily related to demonstrating respect for the defendant’s wish to remain silent. As recognized in the legal systems of the Convention States Parties and other countries, this right shall not apply in criminal proceedings to materials that may be obtained from the defendant through the exercise of coercive powers by the authorities but that exist regardless of the suspect’s will, such as, inter alia: the papers to be seized under a warrant, samples of a human being’s breath, blood, urine or tissue for DNA analysis”. Also, the ruling states that “in particular, the right not to testify against oneself contributes to the prosecution to prove the guilt of a suspect in a criminal case without recourse to evidence obtained against the defendant’s will, through coercion or pressure. In this respect, the right is closely linked to the principle of the presumption of innocence enshrined in Article 6(2) of the Convention”. – https://hudoc.echr.coe.int/?i=001-58009

Speaking of the presumption of innocence, the Article 21.3 of the Code of Criminal Procedure of the Azerbaijan Republic, where it is stated that a person accused of committing a crime shall not be obliged to prove his innocence, while the obligation to prove accusation, refuting the arguments brought up by the defense shall be upon the party of the prosecution.

In order to render fair rulings, the judges must be independent and obey only the Law (Article 25.1 of the Code of Criminal Procedure of the Azerbaijan Republic). As a rule, the judges tend to be bound by the conclusions drawn by the authorities conducting criminal proceedings in the course of preliminary investigation. However, it is prohibited under the Article 25.2 of the Code of Criminal Procedure of the Azerbaijan Republic.

According the Article 28.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

Courts shall hear criminal cases and other prosecution matters in accordance with the legal procedures established by this Code, on the basis of the facts and of impartiality and justice.

Another side, the Article 28.2 of the Code of Criminal Procedure of the Azerbaijan Republic states,

In the course of the proceedings, judges may not express interests other than those of the law.

In the Article 28.4 of Code of Criminal Procedure of the Azerbaijan Republic lists the tasks that during the criminal proceedings courts shall perform the following functions:

• ensure that the parties to the proceedings are able to examine thoroughly, fully and objectively all the circumstances relating to the prosecution;
• take into consideration circumstances which incriminate or exonerate the suspect or accused as well as circumstances which mitigate or aggravate his criminal responsibility;
• examine applications presented by the suspect or the accused or by their counsel for the defence concerning their innocence or minimal guilt and the availability of evidence which exonerates them or mitigates their responsibility;
• examine complaints alleging breach of law during the criminal proceedings;
• guarantee the right of the parties to criminal proceedings to participate.

As it appears, the Court shirked its statutory duty and examined the case in a lopsided and biased manner.

in the defendant’s house and his small land plot adjacent to the house was carried out without his presence. During the search, his wife was the only family member.

The Article 244.4 of the Code of Criminal Procedure of the Azerbaijan Republic states,

Steps shall be taken to guarantee the presence of the person concerning whom the search and seizure is being conducted, adult members of his family or those who represent his legal interests. If it is impossible to secure the participation of the abovementioned people, a representative of the relevant housing organisation or local

authority shall be asked to participate.

So, the investigating authority violated the procedure of the search, not ensuring the defendant’s participation, not providing any justification of his absence.

In the course of the trial, the defendant testified that he faced psychological pressure on the part of the police officers, whom, he said, forced him to accept drugs as his own.

According to the Article 13.2 of the Code of Criminal Procedure of the Azerbaijan Republic, in such cases the Law prohibits the following:

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

The Court also failed to determine the relevance of the found items to the defendant, who denied that the seized disks and drugs had ever belonged to him.

The Article 351.2 of the Code of Criminal Procedure of the Azerbaijan Republic states,

A conviction by the court may not be based on assumptions and shall be handed down only where guilt of the accused is proved during the court’s examination of the case.

According the Article 351.3 of the Code of Criminal Procedure of the Azerbaijan Republic,

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

All of the above points were not respected by the Court.

All the above-mentioned factors indicate that the investigative body, and subsequently the Court, refusing to comply with the provisions of substantive and procedural law, violated the fundamental right in any democratic society – the right to liberty and inviolability of individuals, guaranteed by the Article 28 of the Azerbaijani Constitution, Article 14 of the Code of Criminal Procedure of the Azerbaijan Republic, Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as numerous precedents of the European Court of Human Rights in respect of Mr. Agalar Agayev.

 

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