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Seven more citizens were convicted on so-called “Ganja case”

Seven more citizens were convicted on so-called “Ganja case”


Yaver Ismayilzade

Elvin Aliyev

Aydin Rustamov

Alim Yusifov

 

Ganja City Court on Grave Crimes
Case #1(100)-94/2019
March 15, 2019
Presiding judge: Emin Rustamov
Judge:Faiq Mahmudov
Judge of Baku City Court on Grave Crimes, on whom the responsibility of Judge of Ganja District Court on Grave Crimes was imposed:Eldar Ismayilov
Public Prosecutor: Fuad Musayev

 

Defendants: Yavar Ismayilzade, Zabil Mammadov, Ganbar Qarazade, Elvin Aliyev, Isa Maharramzade, Aydin Rustamov, Alim Yusifov

 

Defenders: Kanan Ismayilov, Vafa Ismayilova, Altay Huseynov, Vurgun Quliyev, Samir Aliyev, Qachay Mammadov, Ilham Ibadov, Vusal Orujev

 

Victims: Afgan Ismayilov, Tural Akperov, Vusal Safarov, Sarhan Naqiyev, Sabuhi Jafarov, Samir Bayramov, Elnur Mammadov, Rashad Kazimov, Emin Hasanov, Asiman Mammadov, Asif Damirov, Ziyafat Hasanov, Madjid Qurbanov, Tural Qarayev, Nidjat Gojayev, Nidjat Allahverdiyev

 

On July 3, 2018, around 20:30 h (8:30 pm), the armed attempt was perpetrated on the Chief of Ganja City Executive Power Elmar Valiyev, in Ganja. At crime scene, Police arrested the suspect, Yunis Safarov, a Russian citizen, who seriously wounded the Chief of the Executive Power and his bodyguard.
On July 4, 2018, Yunis Safarov’s photos with the traces of tortures and beatings were disseminated in Mass Media. The origin of these photos is still unknown. Investigation bodies deny any involvement in them, and unofficial sources bring various versions in regards of the origin of these photos. According to first version, while Yunis Safarov was at Police Department, he was beaten there by a son of the Chief of Executive Power Elmir Valiyev. According to second version, Yunis Safarov was beaten and tortured by the Head of the Criminal Investigation Department colonel – lieutenant Sarxan Ismayilov and the Chief Investigative Officer of Ganja City Main Police Department Qorxmaz Ibrahimov. After capturing the beating to his phone, Sarxan Ismayilov sent these photos to Elmir Valiyev – a son of Elmar Valiyev. Then, Elmir Valiyev widespread those photos in social networks for intimidation purpose.

 

On July 10, 2018, a protest action took place in the centre of Ganja, during which a Deputy Chief of Ganja City Main Police Department colonel Ilgar Balakishiyev and a Deputy Chief of Ganja City NizamiDistrict Police Department  colonel – lieutenant Samad Abbasov were killed.

 

On July 10, 2018, security agencies – the Prosecutor’s General Office, Ministry of Internal Affairs and State Security Service of the AR, widespread their joint statement, which stated that on July 10, 2018, around 20:00 h (8 p.m.), the group of radical believers, approximately 150-200 people, tried to brutally disturb public order. While ignoring police warnings, they committed unlawful actions and showed resistance to the police, by physically injuring them with the blunt and sharp cutting objects.  It is also mentioned in the statement, that police detained around 40 persons at a scene, but others managed to run away. Security agencies in their statement expressed their condolences over two killed policemen, who died at the square.

 

Immediately, the arrests of Ganja citizens began. Farrukh Qasimov was among the first detainees. Already on July 13, 2018, as a result of special operation carried out by officers of law enforcement agencies, R. Boyukkishiyev was killed in Shamkir city.
On July 21, 2018, as it was informed by Press Office of State Security Service, during “armed resistance” previously convicted and wanted Anar Bagirov was killed in Binagadi District Hojasan village. On July 25, 2018, a resident of Ganja city and a member of “Muslim Unity” movement Ali Huseyn oglu Sarhani was shot dead, according to law-enforcement agencies also during “armed resistance”.

 

The “Muslim Unity” Movement made a statement, in which it clearly pointed out the following: “Under false accusations in organising disorders in Ganja, innocent religious people are being killed there, the members of the movement are chosen as targets, authorities are trying to create fear in society”.
On July 28, 2018, during special operation of the State Security Service, Fuad Tofiq oglu Samadov was shot dead in Samukh city. According to State Security Service, F. Samadov was also killed during“armed resistance”, and that he was one of the active members “of a radical religious group” and the participant of Ganja disorders.

 

On August 10, 2018, Muraz Rahimov was killed by police during special operation in Sumgayit. According to law-enforcement agencies, he was also a member of “a radical religious group” and was killed during “armed resistance”.

 

In the first half of August, due to events in Ganja, General Prosecutor of the AR held a meeting whereat he informed that 77 persons involved in Ganja events were brought to justice, 13 were declared wanted, and 5 (whose names were mentioned above) were killed during special operation.

 

However, killings continued. On August 28, 2018, during special operation of the State Security Service in Khachmaz district, accused in religious extremism and terrorism Niyazi Nadjafov was killed during“armed resistance”. He was the 6th citizen of the AR, who was killed in the period of July-August 2018, under murky circumstances…

 

All detainees were brought to Ganja City Main Police Department. The criminal case was incriminated against them under following Articles: 120.2.3. (deliberate murder of a victim in connection with implementation of a given person of service activity or performance of public debt), 120.2.7 (deliberate murder of two or more persons), 220.2.1 (mass disorders), 221.3 (hooliganism committed with application of a weapon or subjects, used as the weapon), 228.4 (Illegal purchase, selling or carrying of gas weapon, cold steel, including throwing weapon) and 315.2 (Application of the violence dangerous to life or health, concerning the representative of the authority, in connection with performance of official duties) of the Criminal Code of the AR.

 

Indictment states that on July 10, 2018, accused participated in an unauthorised action, committed armed attack on police and caused them physical injuries.

 

Detainees were not provided with lawyers. Elchin Sadiqov, well-known lawyer, by taking “sensitive cases”, was removed from Yunis Safarov’s defence, who was accused in assassination attempt on a Chief of the Executive Power of Ganja city Elmar Valiyev due to the complaint lodged by the punitive institution. It was based on that as if E. Sadiqov tried to incite Yunis Safarov to file complaints on tortures. Lawyer denies this, and finds this decision to be unlawful and ungrounded.  Russian lawyer Yevgeny Sherbatov is also not allowed to defend Y. Safarov.

 

When preliminary investigation ended, the case was transferred for a review to Ganja City Court on Grave Crimes. Despite the fact, that according to jurisdiction, the court had to be held  in Ganja, the judges of Ganja Court on Grave Crimes were travelling to Baku, and the trial itself was held at Baku City Sabunchi District Court.

 

All detainees of ‘Ganja case’ were divided into groups, and each group had its own court proceedings. We describe below, the court proceeding of one of these groups that consists of 7 people: Yavar Ismayilzade, Zabil Mammadov, Ganbar Qarazade, Elvin Aliyev, Isa Maharramzade, Aydin Rustamov, Ali Yusifov.

 

Y. Ismayilzade was accused in committing crimes under Articles  220.1 (mass disorders), 229.4 (Illegal manufacturing of a gas weapon, cold steel, including the throwing weapon) 315.2 (Application of the violence dangerous to life or health, concerning the representative of the authority, in connection with performance of official duties)of the Criminal Code of the AR. During court investigation, Y. Ismayilzade did not plead guilty. He stated that he did not call for mass disorders, he did not participate in them, he did not apply violence towards police and he did not show any armed resistance.

 

Y. Ismayilzade testified that he found out about July 10th 2018 demonstration via social networks and planned to participate in it.  He and his friend Zabil Mammadov heard some voice nearby mosque “Shah Abbas”. They saw a person with a dragger in his hand hitting a policeman.  Then, they run away towards the direction whereto others run. When they approached to Ganja hotel, he was detained there by the members of the Special Forces, near the entrance of the park.

 

Zabil Mammadov was accused in committing crimes under Article 220.1 (mass disorder), and 315. 2 (Application of the violence dangerous to life or health, concerning the representative of the authority, in connection with performance of official duties)of the Criminal Code of AR. During the court, he testified that he found out about the assassination attempt on a Chief of the Executive Power and about Yunis Safarov via social networks.  Z. Mammadov also saw information about July 10th protest at social networks

 

But, he did not know who the organiser of this protest was, and who widespread this information. Together with his friend Y. Ismayilzade, he decided to participate in it. On July 10, 2018, around 16:00 (4 pm), they arrived to Ganja city centre, near the building of the executive power. There were a lot of armed policemen. When they saw police, they moved to the back side of the Mosque “Shah Abbas”. Suddenly, they saw, a person in black shirt and dragger in his hand attacking policeman and hitting him with it. Policeman felt down. At this moment members of Special Forces arrived. Together with his friend, Z. Mammadov tried to leave, but they were stopped by members of Special Forces. Z.Mammadov also added that he did not call anyone to participate in the protest, that he was not able to participate in it, he did not apply any violence towards police, and did not show any armed resistance.

 

Ganbar Qarazade was accused in committing crimes under Articles 220.1 (mass disorders), and 315.2 (Application of the violence dangerous to life or health, concerning the representative of the authority, in connection with performance of official duties)of the Criminal Code of AR. During court, he did not plead guilty. He testified that he found out about the action in support of Yunis Safarov via social networks. G. Qarazade was not acquainted with Y. Safarov and did not have any connection with him. In order to participate in the action, he arrived to Ganja from Shamkir. He saw a lot of policemen around Q. Qarazade square, who demanded to leave the square, and so he did. He testified that he did not see how the policemen were killed, he did not shout out any slogans, did not show resistance towards policemen.

 

Accused in committing crimes under Articles 220.1 (mass disorders) and 315.2 (Application of the violence dangerous to life or health, concerning the representative of the authority, in connection with performance of official duties)of the Criminal Code of AR, Elvin Aliyev did not plead guilty in crimes incriminated against him, and testified that he lives in Moscow, and he came to Ganja for summer. On July 7, 2018, he found out about the July 10th action  via social network. On July 10, 2018 around 18:00 h (6pm) together with his friends, he had a dinner at cafe in Ganja. Around 19:50 h (7:50 pm) Elvin Aliyev left cafe and went towards shopping centre to buy a ticket to Moscow.  He heard shouting’s in front of the building of the executive power at the square, and at that moment he was detained by Special Forces. During court proceedings, Elvin Aliyev testified that he did not know the organisers of the action, he did not know participants of the action, he did not know R. Boyukkishiyev, and he did not show any armed resistance towards police.

 

Isa Maharramzade was accused in committing crimes under Article 220.1 (mass disorder), and 315.2 (Application of the violence dangerous to life or health, concerning the representative of the authority, in connection with performance of official duties)of the Criminal Code of AR. During  court hearing I. Maharramzade testified that on July 7, 2018, his friend A. Rustamov, who resides in Moscow, sent him photos of beaten Yunis Safarov (lying in  his blood on them), and voice message about July 10th action.  The action was organised in support of Y. Safarov. He did not reply to his friend. On July 10, 2018, I. Maharramzade arrived to Ganja from Samukh, where he met with A. Rustamov and his two friends. They went towards Ganja hotel. When they sat on the bench, close-by hotel, they saw confrontation between people and police. They also saw a person in black shirt hitting the police with a dragger. Isa Maharramzade testified, that he did not participate in any action, he did not call on anything, and he did not show any resistance towards police.

 

Aydin Rustamov was also accused in committing crimes under Articles 220.1 (mass disorder) and 315.2 (Application of the violence dangerous to life or health, concerning the representative of the authority, in connection with performance of official duties)of the Criminal Code of AR. A. Rustamov did not plead guilty.  Since 2001, A. Rustamov lives in Russia and works a taxi driver there. His testimonies were in line with I. Maharramzade’s testimonies.  He also added to his testimonies that on July 17, 2018, district militia officer called him and told him: “You got snapped by camera, and Ganja city Nizami District Police Department is looking for you”. A. Rustamov went to militia officer himself, whereat he was detained by policemen. He also testified that he did not participate in any action, he did not show any resistance towards police and he did not cause anyone injuries.

 

Accused in committing crimes under Article 220.1 (mass disorder) of the Criminal Code of AR, Alim Yusifov also did not plead guilty. During court hearing, he told that he found out about Y. Safarov and assassination attempt on a Chief of the Executive Power via social networks. He also found out about July 10th action via social networks. In order to participate in the action, he arrived to Ganja. On July 10, 2018, around 17:00-18:00 (5pm-6pm), he was detained by police nearby “Shah Abbas” Mosque. He was detained at the same time with Vugar Ismayilov, Bashar Mammadov, and Sakhavat  Hasanov.

 

All the witnesses at the court were policemen, whose testimonies were almost identical. Victims testified that they were  hit, but they did not know who hit them. One of the victims, policeman Rashad Kazimov testified,  that people shouting slogans were hitting policemen at the square. He stated so: “The participants of the actions had intention to commit mass disorder”. However, the verdict does not indicate from where he knew about the intentions of the participants (and precisely whose).

 

Victim Asiman Mammadov testified that he is a platoon leader commander of patrol service,  and the area of his service for the last two months covers the area nearby administrative building of executive power of Ganja city.  A. Mammadov indicated that policemen always have during their work Makarov pistol, handcuffs, tear gas cylinder and rubber club.  However, on July 10, 2018, during the action,  police received order to go to the square without those special means, that they must not cause any damage to the health and life of citizens.

 

During judicial investigation, all the accused told about tortures, which were applied towards them during preliminary investigation.

 

On March 15, 2019, Ganja City Court on Grave Crimes passed a sentence on a given group of accused. According to verdict, accused were found guilty in all pressed charges and sentenced to:

 

1. Yavar Ismayilzade to 9 years in prison
2. Zabil Mammadov to 8 years 6 months in prison
3. Ganbar Qarazade to 7 years 6 months in prison
4. Elvin Aliyev to 6 years 6 months in prison
5. Isa Maharramzade to 8 years in prison
6. Aydin Rustamov to 8 years in prison
7. Alim Yusifov to 7 years 6 months in prison.

 

The courts of First Instance and Court of Appeal currently view the judicial proceedings on other groups of accused of Ganja case.

 

Commentary by expert lawyer:

 

The court decision is unlawful and groundless.

 

According to presumption of innocence provided by Article 63 of the Constitution of the AR, Article 21 of the Code of Criminal Procedure of the AR and Article 6 (2) of European Convention for the Protection of Human Rights and Fundamental Freedoms, it requires that while exercising their powers, judges should deviate from prejudged idea, that defendant has committed criminal act, it shall be for the prosecution to prove the charge and the accused (the suspect) shall receive the benefit of any doubts.

 

This principle guarantees to any individual that the representatives of the authority cannot consider them guilty of a crime, without the verdict of law court. Not only judge or court may infringe the presumption of innocence, but also other state authorities. This should not hinder the authorities to inform about the progress of the criminal investigation to public.

 

However, article b, paragraph 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the right to the presumption of innocence) requires that they do this delicately and carefully, as required by the presumption of innocence.

 

In so called “Ganja case”, presumption of innocence was violated by following state bodies – the Prosecutor’s General, Ministry of Internal Affairs and State Security Service. Despite the fact that this principle is  provided by all national and international norms, the statement of the state security agencies that all the accused belong to the group of radical believers, participated in mass disorders and committed illegal actions – has violated the principle of the presumption of innocence.

 

According to Article 66 of the Constitution of the AR, nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister.

 

Article 20 of the Code of Criminal Procedure of the AR states that:
20.1. Nobody may be forced to testify against himself or his close relatives, or be prosecuted on this basis.
20.2.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.

 

Besides national legislation, given principle is provided in Article 6 (1) of European Convention and in precedents of European Court on Human Rights.

 

“The Court recalls that, although not specifically mentioned in Article 6 of the Convention (art. 6), the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (art. 6). Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 (art. 6) (see the above-mentioned John Murray judgment, p. 49, para. 45, and the above-mentioned Funke judgment, p. 22, para. 44). The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6 para. 2 of the Convention (art. 6-2).
“ (judgement of European Court on Human Rights on Case of Saunders v. United Kingdom from December 17, 1996, item 68.)
https://hudoc.echr.coe.int/eng#{“dmdocnumber”:[“695886″],”itemid”:[“001-58009”]}

http://europeancourt.ru/uploads/ECHR_Saunders_v_the_United_Kingdom_17_12_1996.pdf

Second important condition, which we indicated above, is the application of tortures towards detainees. Tortures are prohibited by local and international legislation. Article 15.2 of the Code of Criminal Procedure of the AR, prohibits during criminal investigation:
15.2.1. 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;
15.2.2. the imposition of long-term or severe physical pain or acts which are detrimental to health, or any similar ill-treatment;
15.2.3. 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.
Article 3 of European Convention prohibits tortures, inhuman or degrading treatment. Physical inviolability of a person (torture, illegal arrests, personal searches) are indicators of the democracy in the society. According to general rule, treatment which Article 3 of European Convention prohibits, contradicts  domestic rule by itself.

 

If the fact of unlawful and abnormal treatment occurs, the complaint on it should be reviewed by national criminal courts. Even during the hardest cases, such as the fight with a terrorism and organised crimes, state authorities must abstain from any actions that might be viewed as the treatment prohibited by law. Such treatment is never allowed, cannot be justified even as effective method for fights with criminality.

 

It is the responsibility of the government to ensure that no-one is subjected to illicit treatment. Thus, if a person claims in his defence, that he was subjected to such treatment, there should be effective official investigation with a goal to establish persons responsible and their punishment. Such treatment must reach its minimum level to fall under described Article. The assessment of this minimum level is rather relative, it depends on all circumstances of the case, particularly, its duration, its influence on a physical and psychological condition, and in some cases on the sex, age, and health condition of the victim of such treatment. (Precedents of European Court on Human Rights, Michel de Salvia, 2004).

 

On 10 December 1984, the UN General Assembly (Resolution 39/46) adopted the Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment, which defined the concept of torture and stated that States under the Charter must take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under their jurisdiction.

 

The Convention excluded all circumstances, whether a state of war or a threat of war, internal political instability or any other public emergency, stating that they could not be invoked as a justification of torture. The Convention was adopted with reference to Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, as well as to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment, adopted by the UN General Assembly on 9 December 1975. 

 

Despite the existence of domestic and international law norms prohibiting torture, the Ganja court on serious crimes did not conduct any thorough and detailed investigation of the facts of torture, which were revealed by all the defendants and were repeatedly reported in mass media, stated by human rights activists at press conferences on the events in Ganja. Moreover, the court ignored this issue in any way in the indictment handed down in the case. Thus, the circle of persons involved in the acts of torture was not established, and the perpetrators of this crime were not brought to criminal responsibility. 

 

Attention should also be paid to the testimony of victims that claimed to be police officers. Almost all of them spoke about the fact that they received different kind of injuries during the action. However, most of them could not identify offenders. Some of the defendants were detained before the action began and were not in the square during the confrontation between demonstrators and the police officers. At the trial the police said that the defendants had “intentions to disturb public order”. In order to find out whether the “intent” is an act of crime, attention should be paid to a matter of wording of what “crime” is. A crime is an act prohibited by criminal law under threat of punishment (https://ru.wikipedia.org/wiki/Преступление). 

 

An act, in criminal law, is an act of conscious and volitional conduct in the form of action or inaction, which has led to socially dangerous consequences. An act is an obligatory sign of the event of a crime and the objective side of the crime as its element (https://ru.wikipedia.org/wiki/Деяние_в_уголовном_праве).

 

It is clear from the foregoing that in order for an offence to be treated  under criminal law it should correspond to an act as it is called differently in jurisdiction. The investigating authorities detained the defendants because of their “intention” to participate in the action on 10 July 2018. If there is no act or crime, there is no liability.

 

A number of important questions remained open and uninvestigated during the trial; why were the policemen ordered to be on duty on the day of the action without appropriate equipment, while the other days they were carrying handcuffs, Makarov pistol, and more? Why wasn’t security organized for the highest ranks of the police department? Why could Rashad Beyukkishiev, who is the main suspect in the attack and the murder of a high-ranking official, go to the square with a huge dagger in his hands without hiding it, approach the police officers and strike a deadly blow? Has an internal command investigation been conducted into the killing of officers by the intelligence services?

 

Thus, a number of substantive and procedural rules of domestic and international law, as well as judicial precedents of the European Court of Human Rights, which were binding on States parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms, had been violated in respect of the accused.

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Baku Court of Appeal found Bayram Mammadov guilty

Baku Court of Appeal found Bayram Mammadov guilty

Analysis of violation of law during Bayram Mammadov’s trial

Baku Court of Appeal

Case#3(103)-871/2019

April 10, 2019

Judge:
Aflatun Qasimov

A person against whom a protocol on administrative violation was made: Bayram Mammadov

Defender: Elchin Sadiqov

Bayram Mammadov – a member of youth organization “NIDA” was, for the first time, arrested on May 10, 2016. The reason behind the arrest was a graffiti on a monument of a former Azerbaijani president Heydar Aliyev, that was made on the date of his birthday.  Every year, May 10th is celebrated as a former president’s birthday, in Baku.
State authorities are purchasing flowers from Europe by spending millions of euros, and hold a celebration that they called the Flower Holiday (Gül bayramı). On May 10, 2016, Bayram Mammadov, together with his friend Qiyas Ibrahimov, as a sign of protest, drew a graffiti on the monument of Heydar Aliyev. They wrote: «Qul bayramınız mübarək» (Happy slave day), “F*cktheSystem”. On the same day, both young men were arrested under accusation on sale and storage of narcotics in large amount.

Baku Court on Grave Crimes reviewed the case of the civil activists. Bayram Mammadov and Qiyas Ibrahimov were found guilty and sentenced to 10 years in prison. Both activists were recognized as “prisoners of conscience” by human rights defenders and by many international organizations.
On March 16, 2019, they were pardoned under ukase of President of  the AR and released.

On March 30, 2019, Bayram Mammadov was arrested again under accusation in committing administrative offence. According to testimonies of Bayram Mammadov’s father, on March 30, 2019, district policeman came to the address, where he lives with his parents. He said that Bayram is summoned to Baku City Sabunchi District 12th Police Department. Bayram went there together with his father. From there, he was taken to Baku City Sabunchi District Police Department and then to Baku City Sabunchi District Court.

On March 30, 2019, Baku City Sabunchi District Court found Bayram Mammadov guilty in committing offence under Article 535.1. (persistent insubordination of legal request of policeman) of the Code of the Azerbaijan Republic on administrative violations and sentenced him to 30 days of administrative arrest.
Bayram Mammadov’s family, friends, and also political activists consider this arrest to be connected to the interview he gave after his release. Journalist of Information Agency “Turan” asked Mammadov the following question: “Would’ve you done the same thing with the monument, by knowing, that you will be punished for that? “  Bayramov replied:
“If I knew that the torments I experienced would return in much greater volume, I would still without any doubt and fear would’ve gone there again, to the monument, even with my eyes closed. Only next time, I would’ve tried to do more, than I did last time”.

The next day, after court, there appeared information both in mass media and social networks, that after arrest, Bayram Mammadov was subjected to physical violence, he was beaten by two police officers at the detention facility (for convicted on administrative procedure) of the Ministry of Internal Affairs, which is located on the territory of Binagadi dictrict in Baku city.
It was possible to identify the name and rank of one of them – Panah Hasan oglu Mikayilov, sergeant of Baku City Binagadi District Police Department.

This sergeant and his colleague brutally beat Bayram Mammadov: he was hit on his nose, face, ears, legs, knees and stomach. Bayram’s condition was unsatisfactory. When he was brought to the cell, they handcuffed his arms and legs, and he remained in such position till morning. Because of the beatings, he lost conscious. Because of the beatings, the factual tortures, lawyer applied to the court with a complaint on inhuman treatment, however  neither the court of first instance nor the court of appeal satisfied lawyer’s complaints.

On April 10, 2019, appeal application on administrative arrest was reviewed by Baku Court of Appeal. Court of Appeal did not satisfy the complaint and left the decision of Baku City Sabunchi District Court from March 30, 2019 in power.

Commentary by an expert lawyer:

The court decision is unlawful and groundless. Bayram Mammadov  was accused in committing of administrative offence, prescribed by Article 535.1 of the Code of the Azerbaijan Republic on administrative violations. According to this article,  “persistent insubordination of legal request of policeman or military man at execution by them of duties on protection of public order,  entails imposition on natural persons of penalty in amount of 200 manats, and if by circumstances due to personality of disturber the application of these measures will be considered insufficient.”
The court decision does not indicate what exact action of Bayram Mammadov, was considered as a reason to call him responsible for. According to his father’s words, he went to police department together with his son. The reason why he was summoned to police department is unknown.

What had happened at this Baku City Sabunchi District Police Department #12?
It is also unknown to what demand Bayram Mammadov did not subordinate.
According to testimonies of Bayram Mammadov and his father, there were no requests and no “insubordination”. He was just taken from Baku City Sabunchi District Police Department #12 to Sabunchi District Police Department, and then to Baku City Sabunchi District Court.

Court did not show any initiative to examine B. Mammadov’s testimonies that denies any “persistent insubordination of legal request of policeman”.
It is known, that there are surveillance cameras nearby and inside any police department, which could’ve proved the fact of absence of any “persistent insubordination” from Bayram Mammadov’s side.
The court decision also does not indicate, to what police request B. Mammadov as if did not subordinate. Was this legal request?

Court also did not consider the possibility of application of punishment in form of fine towards B. Mammadov. As can be seen from the Article 535.1 of the Code of the Azerbaijan Republic on administrative violation, arrest is applied, if the application of fine will be considered insufficient. Court decision does not indicate, why and which grounds caused court not to choose a punishment in form of fine, but arrest.

According to Article 88.2 of the Code of the Azerbaijan Republic on administrative violations, person affected by administrative arrest shall be made aware of his rights stipulated by this Code and appropriate record shall be made in administrative arrest protocol. This Article was violated towards B. Mammadov.
Procedural violations also concerned with Article 91 of the Code of the AR on administrative violations. According to given article, authorized body (official) shall take the following measures to provide the rights of the person arrested in accordance with this Code:
91.0.1. shall immediately advice the arrested person on reasons of his arrest, explain his rights;
91.0.2. shall let the person arrested to review the protocol on administrative violation;
91.0.3. on arrested person request shall inform his close relatives, employer or place of study, as well as advocate about the fact of arrest;
91.0.4. shall immediately inform about the arrest of not adult person to his parents or legal representatives;
91.0.5. in relations with the person arrested shall maintain the respect to his personality and dignity;
91.0.6. provides the person arrested with opportunity to get hold of his advocate and meet him;
91.0.7. in the absence of the personal advocate of the person arrested, provide him with the list of advocates who provide legal consulting services at the places of arrest and other entities in accordance with the legislation of the Azerbaijan Republic, helps him to maintain contacts with advocate.
Law enforcement agency that attracted B. Mammadov to administrative responsibility, violated almost all the items of a given procedural rule.
The Code of the Azerbaijan Republic on administrative vviolations also regulates judge’s authority, considering administrative violation case. In such way, according to Article 106.0 of the Code, judge, authorized body (official) shall decide on following issues when prepares for consideration of administrative violation case:
106.0.1. if consideration of this case is within his competence;
106.0.2. if there are circumstances that exclude the possibility of case consideration by the judge, collegial body member, authorized official;
106.0.3. if protocol on administrative violation and other materials of the case are in accordance with requirements of this Code;
106.0.4. if there are circumstances, that exclude the possibility of case execution;
106.0.5. if there are sufficient evidences for case consideration;
106.0.6. if a person participating in the case is notified about time and location of the trial;
106.0.7. if there are petitions and overrules on the case.
Consideration of B. Mammadov’s case at the Court of First Instance, and at the Court of Appeal was held formally. The circumstances of the case were not considered, defender’s appeals were not accepted, no instructions were given on presentation of additional facts (videos from the exterior cameras and etc).
Right for freedom was violated towards Bayram Mammadov. This right is prescribed by Article 28 of the Constitution of the Azerbaijan Republic:
I. Everyone has the right for freedom.
II. Right for freedom might be re stricter only as specified by law, by way of detention, arrest or imprisonment.

This norm is also prescribed by Article 5 (1) of European Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits arbitrary arrests. Precedents of European Court on Human Rights ( ECHR) that are obligatory in nature for Member States of Council of Europe, also secure the right for freedom. Precedents of ECHR repeatedly underline the fact that for a person’s detention, the reasonable suspicions are necessary that could convince wing side spectator that a crime was committed.
The statement on beatings and torture of Bayram Mammadov was fully ignored. In such way,  the norms of national legislation of the AR and international law were violated.
In accordance with Article 46 of the Constitution of the AR: “Nobody must be subject to tortures and torment, treatment or punishment humiliating the dignity of human beings.”
International law categorically prohibits tortures: Article 3 of European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5 of the Universal Declaration of Human Rights, as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Precedents of European Court on Human Rights repeatedly underlined the prohibition on tortures and inhuman treatment. Bodies that  receive statement on tortures, beatings must fully, thoroughly and objectively investigate them, and also bring culprits to the responsibility. Despite the fact that users of social networks published the photos of official Panah Hasan oglu Mikayilov, sergeant of police of the Department of Ministry of Internal Affairs of Binagadi District, who, according to testimony, beat Bayram Mammadov, neither court, nor Prosecutor Office examined this fact.

Thus, the former “prisoner of conscience” Bayram Mammadov was unlawfully and groundlessly attracted to administrative responsibility, and his statement on torture and beatings were not investigated by law enforcement agencies and courts.

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Qaradag District Court passed a sentence on Abulfaz Sadiqbeyli, Asif Sadiqbeyli and Kamran Abbasov

Qaradag District Court passed a sentence on Abulfaz Sadiqbeyli, Asif Sadiqbeyli and Kamran Abbasov

Baku City Qaradag District Court 

Case #1(002)-50/2019
March 6, 2019
Judge: Fuad Aliyev
Public Prosecutor: Suradj Salmanov
Defendants: Abulfaz Sadiqbeyli, Asif Sadiqov, Kamran Abbasov
Defenders: Osman Kazimov, Mirismayil Hadi, Alisafa Aliyev
Complainant: Alakpar Bayramov

In 2018, Main Criminal Investigation Department of the Ministry of Internal Affairs of the AR instituted criminal case on swindle and document counterfeiting. Abulfaz Sadiqbeyli, his relative Asif Sadiqov and the worker of Nikoil bank Kamran Abbasov were attracted to the case as suspects. Abulfaz Sadiqbeyli was accused in committing crimes prescribed by following Articles of the Criminal Code of the AR: · 178.2.1. (swindle, on preliminary arrangement by group of persons)
· 178.2.4. (swindle, with causing damage in the significant size) · 320.1. (fake, manufacturing or selling of official documents, state awards, seals, stamps, forms or use of counterfeit documents ) · 320.2 (use of obviously counterfeit documents provided of the present Code)
Asif Sadiqov was accused in committing crimes prescribed by following Articles of the Criminal Code of the AR: · 178.2.1. (swindle, on preliminary arrangement by group of persons) · 178.2.4. (swindle, with causing damage in the significant size) · 320.1. (fake, manufacturing or selling of official documents, state awards, seals, stamps, forms or use of counterfeit documents ) Kamran Abbasov was accused in committing crimes prescribed by following Articles of the Criminal Code of the AR: · 178.2.1. (swindle, on preliminary arrangement by group of persons) · 178.2.3. (swindle, by person with use of service position) · 178.2.4. (swindle, with causing damage in the significant size) · 320.1. (fake, manufacturing or selling of official documents, state awards, seals, stamps, forms or use of counterfeit documents )
On November 21, 2018 Baku City Sabail District Court ruled on the choice of the restrictive measure  towards the Head of the Youth Organisation of the Opposition Musavat Party Abulfaz Sadiqbeyli in form of arrest for the period of 3 months.  The restrictive measure not related to arrest was chosen towards other defendants. According to investigation, on June 21, 2015, Abulfaz Sadiqbeyli entered into loan agreement with Nikoil Bank and bought a car VAZ-21214. It is stated in indictment that A. Sadiqbeyli has entered into a criminal conspiracy with a bank lawyer Kamran Abbasov, and his relative A. Sadiqov- who was representative from bank side by proxy. According to loan agreement, the car should’ve  come under full disposal of A. Sadiqbeyli only after its total cost is fully paid. Investigation claimed that three defendants counterfeited the receipt, which showed that the total amount was paid. In the course of the court, the representative of a civil complainant on Alakpar Bayramov’s case stated that defendants have caused the damage in amount of 6251 manat as interests. During  court proceedings this amount was fully paid by defendants. In result, the damage was recouped.  The representative of a complainant stated that he does not have any complaints and claims towards defendants, and because of that he withdraws his suit and asks the court to take it into account. 
It is necessary to mention here, that during judicial investigation, it came to light that Abulfaz Sadiqbeyli was not reckoned as a debtor in bank’s electronic system, and his debt was deleted from computer system.  On March 6, 2019 Baku City Qaradag District Court passed a sentence on a given criminal case. Thus, Abulfaz Sadiqbeyli was found guilty in committing crimes under Articles 178.2.1 and 178.2.4 of the Criminal Code of the AR and sentenced  to  restraint of liberty for the period of 1 year and 6 months. The restrictive measure in form of arrest, elected earlier, was changed to travel ban. Court also imposed restrictions of movement within the bounds of Baku and obliged A. Sadiqbeyli to wear electronic bracelet that would identify his location. It also ordered A. Sadiqbeyli to remain at home from 23.00 (11pm) to 07:00 (7am). He was released from the court room.  With aforesaid verdict, Asif Sadiqov was found guilty in committing crimes under Articles 178.2.1 and 178.2.4. of the Criminal Code of the AR and sentenced  to the restraint of liberty for the period of 1 year and 6 months.  He was also found guilty in committing crime prescribed by Article 320.1. of the Criminal Code of the AR, but, since the period of limitation of this Article has passed, he was not punished for it. Court kept the restrictive measure in form of travel ban in power and imposed on A. Sadiqov restrictions of movement within the bounds of Baku, and also ordered him to remain at home from  23.00 (11pm) to 07:00 (7am). Court decided to stop criminal prosecution towards Kamran Abbasov under Articles 178.2.1, 178.2.3 and 178.2.4 of the Criminal Code of the AR. Court also found Kamran Abbasov guilty in committing crime under Article 320.1. of the Criminal Code of the AR, but, since the period of limitation of this Article has passed, he was not punished for it. Commentary by an expert lawyer:
The court decision is unlawful and groundless. As can be seen, only one of the defendants was arrested under the court order on choosing restrictive measure in form of custodial placement. According to Article 14.1 of the Code of Criminal Procedure of Azerbaijan Republic, the right to liberty may be limited only in cases of detention, detention on remand or imprisonment in accordance with the law.  14.2 states «nobody may be detained or arrested other than on the grounds provided for in the Code and other laws of the Azerbaijan Republic.» Prosecution did not present any sufficient grounds to the court that would provide to a winged spectator a complete picture of the primary evidences of A. Sadiqbeyli’s arrest. 
During trial, it came to light that loan agreement and other documents of a given case, somehow vanished from the bank. Bank representative testified that the cost of the car in amount of 10 thousands 800 manat was paid, however the total which is due to payment with interest is much higher. He was not able to explain to the court, whereto the papers vanished. Thus, bank representative who spoke about the damage and filed a suit against defendants was not able to provide necessary documents, and in such way could not prove his claims.  A. Sadiqbeyli’s interrogation by investigator raises interest. At the court, A. Sadiqbeyli testified that only 10 minutes of the interrogation by investigator were dedicated to the debt, and the rest of the time was devoted to his political activity. A. Sadiqbeyli testified that investigator only asked questions about the number of members of the organisation he headed, the reasons behind his frequent visits to Georgia, about the events they are holding and etc. This interrogation and also the fact of choosing preventive measure against A. Sadiqbeyli in form of arrest speak about the political nature of a given case, a punishment of the member of opposition party.  The court did not take into consideration those circumstances that were in favor to A. Sadiqbeyli (the payment of the cost of the car, absence of the documents in the bank and etc.). Article 28.4.2 of the of Criminal Procedure of the AR directs courts to take into consideration circumstances which incriminate or exonerate the suspect or accused as well as circumstances which mitigate or aggravate his criminal responsibility. According to Article 28.4.3 of the Code of Criminal Procedure of the AR court should also “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”. According to Article 28.5 of the Code of Criminal Procedure of AR « the court decision regarding the guilt of the person charged may not be based on opinion but shall be supported by all the reliable evidence concerning the case».
A. Sadiqbeyli’s arrest shows that the conviction was not based on the cumulative evidences, since they did not exist in the case.
In 2002 Azerbaijan signed European Convention for the Protection of Human Rights and Fundamental Freedoms. According to Article 1 of European Convention, the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. 
This norm specifies that the rights and freedoms, protected by European Convention shall be fully provided from the moment of ratification of this document with a corresponding State.
It sets the scope of European Convention in respect to the holders of rights, the object of protection, the bounds and effectiveness of the jurisdiction exercised by State.
Article 1 of Protocol № 4 European Convention for the Protection of Human Rights and Fundamental Freedoms states: “No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.” Given case concerns the debt to the bank on the loan agreement, however, despite of above mentioned norm, the restrictive measure in form of arrest was applied towards Abulfaz Sadiqbeyli.  Despite the fact that national criminal law provides a punishment in form of deprivation of liberty under pressed Articles, international law prohibits deprivation of liberty for contractual obligations. According to Article 151 of the Constitution of AR, “Whenever there is disagreement between normative-legal acts in legislative system of the Azerbaijan Republic (except Constitution of the Azerbaijan Republic and acts accepted by way of referendum) and international agreements wherein the Azerbaijan Republic is one of the parties, provisions of international agreements shall dominate. “ The norms of the legislation on criminal procedure of the AR, above mentioned Constitutional norm of the AR, the norms of European Convention for the Protection of Human Rights and Fundamental Freedoms and Protocol 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms were violated in a given case.

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Ganja City Court on Grave Crimes passed a sentence on 11 defendants on so called “Ganja Case”

Ganja City Court on Grave Crimes passed a sentence on 11 defendants on so called “Ganja Case”


Seymur Aliyev

Nizami Akperov

Kamal Magerramov

Ganja City Court on Grave Crimes

Court hearing was held at Baku City

Sabunchi District Court

Case #1(100)-51/2019

February 22, 2019

Presiding  judge: Natik Aliyev

Judges: Faiq Mahmudov

(speaker), Xaqani Samadov

Defendants: Maarif Hajiyev, Shahlar Rzayev Ruslan Hasanov, Tural Bayramov, Nizami Akperov, Kamal Magerramov, Araz Hasanov, Togrul Verdiyev, Orhan Yanqaliyev, Seymur Aliyev, Vagif Ashrafov

Public Prosecutor: Fuad MusayevDefenders: Aydin Kerimov, Jafar Jafarli, Ilgar Gadirov, Vugar Ahmedov, Elnur Nabiyev, Teyar Talibov, Teyar Mirzoyev, Samad Aliyev, Kamandar Huseynov, Orhan Yusubov, Zabil Qahramanov

Victims: Afgan Ismayilov, Tural Akperov, Vusal Safarov, Sarhan Nagiyev, Nijat Allahverdiyev, Sabuhi Jafarov, Samir Bayramov, Elnur Mammadov, Vugar Huseynov, Rashid Kazimov, Emin Hasanov, Asiman Mammadov, Asif Damirov, Ziyafat Hasanov, Medjid Qurbanov, Tural Qarayev, Nijat Hojayev

Legal heir of a victim: Leyli Abbasova (wife of a murdered Samad Abbasov);

lawyer: Rustam Zulfugarov


On July 3, 2018, around 20:30 (8:30 pm), the armed attempt was perpetrated, in Ganja city, on a Chief of the Executive Power of the city Elmar Veliyev. At crime scene, Police arrested the  suspect Yunis Safarov, Russian citizen, who seriously wounded the Chief of the Executive Power, and his bodyguard. On July 4, 2018, Yunis Safarov’s photos with the traces of tortures and beatings were disseminated in Mass Media. The origin of these photos is still unknown. Investigation bodies deny any involvement with them, and unofficial sources bring various versions in regards of the origin of these photos. According to first version, while Yunis Safarov was at Police Department, he was beaten there by a son of the Chief of Executive Power Elmir Veliyev. According to second version, Yunis Safarov was beaten and tortured by the Head of the Criminal Investigation Department colonel – lieutenant Sarxan Ismayilov and the Chief Investigative Officer of Ganja City Main Police Department Qorxmaz Ibrahimov. After capturing the beating to his phone, Sarxan Ismayilov sent these photos to Elmir Veliyev – a son of Elmar Veliyev. Then, Elmir Veliyev disseminated photos in social networks for intimidation purpose. On July 10, 2018, a protest action took place in the center of Ganja, during which a Deputy Chief of Ganja City Main Police Department colonel Ilgar Balakishiyev and a Deputy Chief of Ganja City Nizami District Police Department  colonel – lieutenant Samad Abbasov were killed. Immediately, the arrests of Ganja residents began. Farukh Qasimov was among the first detainees. Already on July 13, 2018, as a result of carried out operation by officers of law enforcement agencies in Shamkir city, Rishad Boyukkishiyev was murdered. He was accused in killing of the colonel Ilgar Balakishiyev. On July 21, 2018, Press Office of the State Security Service informed that during “armed resistance” previously convicted and wanted Anar Bagirov was killed in Khodjasan village of Binagadi District.
On July 25, 2018, a resident of Ganja city and a member of “Muslim Unity” movement Ali Huseyn oglu Sarhani was shot dead, according to law-enforcement agencies also during “armed resistance”. State Security Service also disseminated his photo, whereon Sarhani is lying with a gun in his hand.
It is interesting, how a person who was shot dead, managed to keep a gun in his hand, while falling down? And why would Aga Sarhani hold a gun in his right hand, when he is left handed? “Muslim unity” movement came forward with a statement, in which it clearly indicated “Under false accusations in organizing disorders in Ganja, innocent religious people are being murdered in Ganja, the members of the movement are chosen as targets, authority is trying to create fear in a society”
On July 28, 2018, during special operation of the State Security Service, Fuad Tofiq oglu Samadov was shot dead in Samukh city. According to State Security Service, F. Samadov was also killed during “armed resistance”, and that he was one of the active members “of the radical religious group” and  participant of Ganja disorders.
On August 10, 2018, Muraz Rahimov was murdered by police during special operation in Sumqayit. According to law-enforcement agencies, he was also a member of the radical religious group and was killed during “armed resistance”. In the first half of August, due to events in Ganja, General Prosecutor of AR held a meeting whereat he informed that 77 persons involved in Ganja events were brought to justice, 13 were declared wanted, and 5 were killed. However, murders continued. On August 28, 2018, during special operation of State Security Service in Khachmaz district, accused in religious extremism and terrorism Niyazi Nadjafov was murdered during “armed resistance”. He was the 6th citizen of Azerbaijan, who was murdered in the period of July-August 2018, under murky circumstances…
All detainees on “Ganja case” were divided into groups. We will be describing below, the judicial proceedings on one of these groups.
Detainees were not provided with lawyers. After preliminary investigation ended, the case was transferred for a review to Ganja City Court on Grave Crimes. Despite the fact, that according to jurisdiction, the court had to be held  in Ganja, the judges of Ganja Court on Grave Crimes were travelling to Baku, and the trial itself was held at Baku City Sabunchi District Court.
The indictment that was presented during the trial stated that on July 10, 2018, all of 11 accused participated in an unauthorized action, were involved in armed attack on police, and caused them physical injuries. During trial, accused persons said following:
Accused Shahlar Rzayev testified that he does not use any social networks, he has never been abroad, and that he joined action on July 10, because of a ban on Azan (call to prayer at mosques). He was not aware of the exact time of the action, and he found out about it through unknown people. Sh. Rzayev testified that he did not invite anyone to the action, during the action he expressed his protest by only shouting several times the slogans in support of Аzan. Police requested to stop the action. Police seized him, when he was shouting the slogans. Sh. Rzayev testified that he saw a man of medium height with a dagger in his hands, however he did not see anyone attacking police.

Accused Maarif Hajiyev testified that on July 10, 2018, he came to “Ganjlik Mall” in order to pay his phone’s loan, and he saw people near the office of the executive power. Suddenly, M. Hajiyev noticed a man who had a knife in his hand. This man approached a policeman (Samad Abbasov) and hit him from behind. It caused a stir, this man run away, while saying “We avenged Ali’s blood”.
Accused Tural Bayramov also did not plead guilty. He told that he found out about attempt on a chief of the executive power of Ganja City via social networks. On July 10, 2018, while in Baku, he also found out about the action via social networks. He returned from Baku to Ganja on July 10, around 20:00 (8 pm). On his way, he entered the mosque “Shah Abbas”, and then he went towards a square, whereat he was seized by police. He testified, that he did not cause anyone physical injuries, he is not acquainted with victims and those who were at the square.
Accused Nizami Akperov did not plead guilty and testified that he approached the square on July 10, 2018 around 20:00 (8 pm). There were a lot of people in civilian clothes and policemen. Then, he heard someone’s whistle, and the collision between people in civilian clothes and police began. Police applied tear-gas. The participants of the actions were forced to move away. N. Akperov said that he did not throw stones at anyone. It was done by men to whom he was not acquainted with. Police seized him, on Sabir street, nearby the mausoleum of Javad Khan.
Kamal Maharramov testified that he was working at clothing store. On July 10, 2018, around 20:00 (8 pm) the worker of the shop closed the store, and he went towards mosque “Shah Abbas”.  When K. Maharramov was passing by the office of the executive power, he saw a crowd of people there, and his neighbor Sevil was among them. She was having an argument with a police regarding the closure of the roads. K. Maharramov also asked police about it and at that moment he was detained by police. When he was brought to police department, he found out about the murder of two policemen. He also testified that he did not throw stones on anyone, he does not use any social networks and he did not see under what circumstances the policemen were murdered.
Accused Araz Hasanov also did not plead guilty and told that, in 2009, together with his friends, he visited Iran and since then he started doing namaz (a prayer).  He has account in Instagram. On July 3, 2018, he saw Yunis Safarov’s photo on Instagram, and “liked” it, but he did not share it. Araz said that he did not participate in the protest action on July 10, 2018,  but together with his friends, he was at 20.30 (8.30 pm) in cafe, watching football. Then, he got into his car, drove through Ataturk avenue, in Ganja. When he drove up to his house, he saw several police cars, and police informed him that action is taking place. He also testified that he is not acquainted with Rashad Boyukkishiyev (who was killed, on suspicion of terrorism, during operation by the officers of the law enforcement agencies), he did not participate in action, and he did not cause anyone physical injuries.
During court, accused Togrul Verdiyev also did not plead guilty. He said that on July 10, 2018, approximately at 18:00 (6:00 pm) he left his office, and went to have a tea with his friends. Then, together with his friends, he went towards the square, where they sat under TV, which was placed at the square. Their acquaintance Turgut came there. There were a lot of police around  the square. Suddenly, he saw a person with a dragger in his hand hitting a policeman. When they saw arrived officers of special division of the police, they run towards the market. There, he met with his acquaintance Ali, and they went home together. T. Verdiyev testified that he did  not shout any slogans and did not cause anyone physical damage.
Accused Orhan Yanqaliyev, also did not plead guilty. He testified that on July 10, 2018 he was on commemoration of his relative, and around 14:00 (2 pm) together with his cousin, he went to his uncle. Approximately at 20:00 (8 pm) they passed near Ganja City Nasimi District Court, and policemen approached to his cousin Vugar and asked him to go with them to police department. Orhan Yanqaliyev approached to police and  told a police that Vugar has diseased heart. After that policemen took them both. O. Yanqaliyev stated that he did not participate in the action, he did not cause anyone physical injuries, and during investigation, he gave his testimonies under tortures, and because of this he does not confirm this testimonies.
Accused Seymur Aliyev also did not plead guilty. He testified that he was not acquainted with Yunis Safarov. On July 8, 2018, he received a message on WhatsApp from unknown number about the intention to hold protest action on July 10, with a demand to expatriate a Chief of Executive Power of Ganja city Elmar Veliyev and his family from the city. That day, he went to the mosque to do namaz and was seized by police.  He did not cause police any physical injuries.
Accused Vagif Ashrafov also did not plead guilty. He testified that he uses social networks and on July 3, 2018, he found out about the attempt on Elmar Veliyev from social networks. He saw a page in support of Yunis Safarov on Instagram. There was information about July 10th action on this page. Together with his friend, he went to the square, to observe the action.  Approximately at 14:00 (2pm) V. Ashrafov went to the cafe to drink a tea, then together with his friend, they went to the club to play computer games and about 19:50 (7:50pm) they went to the square. There, they saw a public gathering, policemen were running towards people. He heard slogans and saw how young man in black shirt with dragger in his hand attacked police. Later on, he found out that the person’s name was Rashad Boyukkishiyev. After seeing all of these, together with his friend, he left this location. He said that he did not cause anyone physical injures and did not shout any slogans.
Accused Ruslan Hasanov also did not plead guilty. He testified that he is a believer, that is why he was visiting holy places.  He found out about the attempt on the Chief of the Executive Power and planned July 10th action from social networks. On July 10, 2018, approximately at 19:00 (7 pm), together with  his friend, he went to the tea club. Then they went to buy food in the nearest shop, because they started feeling hungry. After that they came to cafe to smoke narghile. At the same time they heard a noise, which was coming from the square. Hasanov’s friend stayed inside the cafe, but he went towards the square. There, Hasanov saw people  who ran back and forth. He understood that something was wrong and went back. Police stopped him near the passage and asked for his phone. Then, they seized him,  put him in the car and took him to the police department. He did not witness any violence by people, he did not participate in the action, he did not shout slogans, he did not see the murder of the policeman and he did not know anyone participating in the  action. All the victims on a given case are policemen. All of them testified that accused participated in  an unauthorized action, which according to investigation was organized by “radical powers”.
The majority of the witnesses are also the officers of the law-enforcement agencies. One of the witnesses Rufan Farzaliyev, who is not a police, testified that he was not far from the location whereat the action was held. He saw that unknown man in black shirt with a dragger in his hand hit the policeman. In his testimonies, he indicated that he does not know anyone who participated in the action, and among his friend no-one participated in the action.
Witness Vugar Allahverdiyev is a cousin of accused Orhan Yanqaliyev. He confirmed O. Yanqaliyev’s testimonies. He also added that when Orhan and he was detained, and taken to police department, the administrative protocol was made against them. Both of them were accused in committing of offence, and Ganja City Nizami District Court sentenced him to 20 days and Orhan to 15 days of administrative arrest. During court proceedings, both of them stated that they did not shout any slogans and did not show any resistance to police.
On February 22, 2019, after reviewing a case at the location of Baku City Sabunchi District Court, Ganja City Court on Grave Crimes, passed a guilty verdict towards all accused in committing crimes under Articles 220.1 (mass disorders) and 315.2 (resistance or application of violence concerning the representative of authority, dangerous to life and health) of the Criminal Code of the AR : 1 Maarif Hajiyev to 9 years in prison;
2 Shahlar Rzayev to 8 years and 6 months in prison;
3 Ruslan Hasanov to 8 years in prison;
4 Tural Bayramov to 8 years in prison;
5 Nizami Akperov to 8 years in prison;
6 Kamal Maharramov to 8 years and 6 months in prison;
7 Araz Hasanov to 7 years and 6 months in prison;
8 Togrul Verdiyev to 8 years in prison;
9 Orhan Yanqaliyev to 8 years and 6 months in prison;
10 Seymur Aliyev to 8 years in prison;
11 Vagif Ashrafov to 7 years and 6 months in prison;

Commentary by an expert lawyer:
The court decision is unlawful and groundless. According to criminal legislation, criminal proceedings are based on certain principles. One of the principles is the principle of validity. Punishment and other measures of criminal – legal nature instituted to the person, who has committed a crime, shall be fair, and shall correspond to nature and a degree of public danger of a crime, circumstances of committing it and nature of a guilty person. One of the  most important things here is the circumstances under which a crime was committed In a reviewed case, the court did not consider all the circumstances. Court’s findings did not correspond to the circumstances of the case. Another affected principle of the same importance is a principle of humanism. This principle of humanism lays at the core of the infliction of penalty. A preliminary and court investigation should be based on this principle. During judicial sitting, almost all accused spoke about tortures and inhuman treatments, and giving evidences under tortures. However, this serious circumstance – forcing giving evidence under tortures, was not investigated by court.  Court did not even show any initiative towards starting investigation of the fact of tortures. As can be seen from the verdict, all accused received long prison terms. However, there was not any clear and irrefutable evidence proving their guilt. One of the fundamental principles of the democratic society is the principle of  presumption of innocence. According to Article 21.2 of the Code of Criminal Procedure of the AR, even if there are reasonable suspicions as to the guilt of the person, this shall not cause the latter to be found guilty. According to current Code of Criminal Procedure, the accused (the suspect) shall receive the benefit of any doubts which cannot be removed in the process of proving the charge in accordance with the provisions of this Code, within the appropriate legal proceedings. He shall likewise receive the benefit of any doubts which are not removed in the application of criminal law and criminal procedure legislation; Given principle is also prescribed by Article 6 (2) of  the European Convention for the Protection of Human Rights and Fundamental Freedoms : “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” In given case, investigation did not introduce to the court any reasonable and irrefutable proves of the guilt of accused, and their guilt was not proved by court. The right to freedom was also violated towards accused. This right is prescribed by Article 28 of the Constitution of the AR: I. Everyone has the right for freedom. II. Right for freedom might be re stricter only as specified by law, by way of detention, arrest or imprisonment. This norm is also prescribed by Article 5 (1) of European Convention, which prohibits arbitrary arrests. Precedents of European Court on Human Rights, which are obligatory in nature for Member States of Council of Europe, also secure the right for freedom. Precedents of ECHR repeatedly underline the fact that for a detention of a person, the reasonable suspicions are necessary, which could convince wing side spectator that a given person has committed a crime. During detention, almost all accused were deprived of the possibility to inform their families and friends about the arrest and their whereabouts. This violation continued for several months, although Article 91.5.6 of Code of Criminal Procedure of the AR states: · to inform his family, relatives, home, workplace or place of study immediately after detention, by telephone or other means; · if a detainee is a foreigner or a stateless person, a diplomatic mission or consulate of the country to which a person is a national or a permanent resident, is immediately informed about it, in Azerbaijan Republic, or a national or international organization which took  guardianship over him; The defendants spoke about the tortures to which they were subjected by law enforcement agencies.  Many of them gave confessing testimonies under tortures. From the testimony of one of accused: “My hands, legs, and mouth were sealed with a tape and I was laid on the floor. They beat me in such position, and mocked me”. Another defendant told: “The period from July 11 till 20, I was kept with my eyes tied, I was beaten with a bludgeon on my feet, I was thrown on the ground and the heaviest person was seated on me  they pulled out hair in a beard, used a current ”. Despite the fact that enough time had passed from the beginning of the trial, many defendants still had traces of handcuffs and tortures on their bodies. How does national and international legislation regulate the application of tortures and inhuman treatment? According to Article 46 of the Constitution of the AR: “Nobody must be subject to tortures and torment, treatment or punishment humiliating the dignity of human beings.” According to Article 9.2 of the Criminal Code of the AR, “Punishment and other measures of criminal – le gal nature applied to the person, who has committed a crime, shall not have the purposes causing physical” Criminal Procedure Legislation also prohibits the application of tortures and inhuman treatment. Article 13, of the Code of Criminal Procedure of the Azerbaijan Republic states: 13.1. It shall be prohibited to take decisions or allow acts during the criminal prosecution which debase the honor and dignity of the person or may threaten the life and health of the participants in the proceedings.13.2. During a criminal prosecution nobody shall:13.2.1. be subjected to treatment or punishment that debases human dignity;13.2.2. be held in conditions that debase human dignity;13.2.3. be forced to participate in carrying out procedures that debase human dignity. International law categorically prohibits tortures: Article 3 of European Convention, Article 5 of the Universal Declaration of Human Rights, as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 1 of the Convention against Torture defines “torture” in such way: ”the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public of official or other person acting in an official capacity.” Item 2 of the Article 2 of the Convention against Torture states that, tortures cannot be justified in no circumstances: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Even an order from a superior officer or a public authority may not be invoked as a justification of torture (Item 3 of Article 2 of European Convention against Torture). In cases, if there is information about the use of torture, state authority should put all effort to conduct full and objective investigation, to determine the circle of culprit and to call them to account. Article 12 of Convention against Torture  states: “Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” Article 15 of Convention against Torture states following about the evidences received under tortures: “Each State Party shall ensure that any statement which is established to have been made as result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidenced that the statement was made.’ Despite of the fact, that there were many complaints by defendants on application of tortures and getting confessing testimonies from them under tortures, the court did not show any initiative to investigate these complaints. Since April 2002 (the date of ratification of AR – the  European Convention for the Protection of Human Rights and Fundamental Freedoms) European Court on Human Rights adopted 18 decisions against Azerbaijan in regards of violation of Article 3 of European Convention. The bad practice of law enforcement agencies, whose officers apply torture, is repeatedly pointed out in the decisions of ECHR. But Azerbaijan does not implement these decisions. One of the conditions of implementation of the decisions  is the adaptation of the individual and common measures, which means, that State, as Member Party of Council of Europe, must either change its laws in regards of prohibition of tortures or the bad practice. Despite of the fact, that sufficient time has passed, the practice of the application of tortures by law enforcement agencies not only remains unchanged, but also develops and widens.

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Baku City Court on Grave Crimes passed a sentence on 5 defendants on so called case “illegal financing of Azerbaijani Popular Front Party”

Baku City Court on Grave Crimes passed a sentence on 5 defendants on so called case “illegal financing of Azerbaijani Popular Front Party”


Saleh Rustamov

Ruslan Nasirli

Aqil Maharramov

 


Babek Hasanov

Vidadi Rustamli

Analysis of violation of law during members of Popular Front Party judicial proceedings

 

Baku City Court on Grave Crimes
Case #1(101)-286/2019
February 27, 2019
Presiding Judge: Eldar Ismaylov
 
Defendants: Saleh Rustamov, Vidadi Rustamli, Aqil Maharramov, Babek Hasanov, Ruslan
Nasirli
 
Defenders: Ilhama Hasanova, Gulnar Quluzade, Orhan Yusubov, Javad Javadov, Fariz Namazli,
Bahruz Bayramov
 
Public Prosecutor: Ali Aliyev

Case #1(101)-286/2019February 27, 2019Presiding Judge: Eldar IsmaylovJudges:Javid Huseynov, Samir AliyevDefendants: Saleh Rustamov, Vidadi Rustamli, Aqil Maharramov, Babek Hasanov, Ruslan NasirliDefenders: Ilhama Hasanova, Gulnar Quluzade, Orhan Yusubov, Javad Javadov, Fariz Namazli, Bahruz BayramovPublic Prosecutor: Ali Aliyev


In 1992-1993, Saleh Rustamov held a position of a chief executive of Gadabay region in Azerbaijan. Nowadays, he is a citizen of Russian Federation and prior to his arrest, he was doing the business in Moscow. On May 5, 2019, S. Rustamov arrived to Gadabay to attend his relative’s funeral. Three days later, while returning to Russia, he was detained on en route to the airport by a traffic police.
That day, he was accused in committing crimes under Articles 192.3.2 (illegal business,  with extraction of income in the large size), 193-1.3.2 (legalization of cash assets or any other property, obtained by felonious means, committed on a large scale) and 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances in large amount) of the Criminal Code of Azerbaijan Republic.
On May 8, 2018, Saleh Rustamov’s nephew Vidadi Rustamli was detained as a suspect to crimes prescribed by Articles 192.3.2, 193-1.3.2 and 234.1 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances in large amount) of the Criminal Code of AR. On May 11, 2018, Vidadi Rustamli was recognized as an accused, and a restrictive measure in form of arrest was chosen against him.

On May 25, 2018, Aqil Maharramov – a member of Azerbaijan Popular Front Party, a member of Party’s General Committee (Presidium), and also a chairman of Baku City Sabunchi District Department was detained. On May 26, 2018, A. Maharramov was accused in committing crimes under Articles 192.3.2, 193-1.3.1 (legalisation of cash assets or any other property, obtained by felonious means, committed by organised group or criminal organisation) and 193-1.3.2 of the Criminal Code of AR. On the same day, the restrictive measure in form of arrest was chosen against A. Maharramov.
On May 25, 2018, Babek Hasanov a chairman of Baku City Surakhany District Department of Azerbaijan Popular Front Party, veteran of Karabakh war was detained as a suspect. On May 26, 2018, he was accused in committing crimes under Articles 192.3.2, 193-1.3.1 and 193-1.3.2 of the Criminal Code of AR. On the same day, a restrictive measure in form of arrest was chosen against B. Hasanov.

Ruslan Nasirli a chairman of a Supreme Council of Youth Committee  of Azerbaijan Popular Front Party – was repeatedly detained under administrative procedure in connection to his political activism. On September 2016, due to complaint lodged by Saatly District Chief Executive, Saatly District Prosecutor’s Office initiated criminal case against R. Nasirli under Article 148 (insult) of the Criminal Code of AR. On April 11, 2017, Saatly District Court found R. Nasirli guilty in committing crimes under Article 148 (insult) and sentenced him to 1 year of penal labor.
On May 25, 2018, Ruslan Nasirli was detained as a suspect, on May 26, 2018, he was accused in committing crimes under Articles 192.3.2, 193-1.3.1 and 193-1.3.2 of the Criminal Code of  AR.  On the same day, a restraint measure in form of arrest was chosen against R. Nasirli. With the investigation completed, the case was transferred for a review to Baku City Court on Grave Crimes, and assigned to the judicial panel presided by Judge Eldar Ismayilov. The preparatory meeting was scheduled to January 7, 2019.
During preparatory meeting, Saleh Rustamov’s lawyer Ilhama Hasanova filed a motion to the court. In her motion, lawyer indicated that during preliminary investigation her defendant was subjected to inhuman treatment and that he signed his interrogation protocol under pressure, and this is the violation of law, and therefore this protocol should be excluded from the list of evidences. She also indicated that Saleh Rustamov was detained on May 8, 2018,  and  contract  with a lawyer was signed  on May 10, 2018.

Even though the lawyer was authorized, the defendant’s meeting with a lawyer was only allowed after 10 days. Saleh Rustamov was appointed with a lawyer at the expense of a state, both during detention and during his time at Main Department of the Ministry of Internal Affairs of Azerbaijan Republic on Combating Crimes.
He was forbid to meet with his family, despite of the fact that one of his kids is seriously ill. During court, his lawyer asked to grant him permission to meet with his kid. Lawyer also stated that while he was at Baku Pre-trial Detention Facility #1, he was kept in a cell with 12 prisoners, in a cell that was designated to hold 6 people. Lawyer asked from the court to change his restrictive measure in form of arrest to a restrictive measure not related to arrest. Babek Hasanov’s lawyer Javad Javadov, Ruslan Nasirli’s lawyer Fariz Namazli, Agil Magerramov’s lawyer Agil Laidj asked from the court to release their clients from the glass cage, and to allow them to be seated near their lawyers. This would ensure unhindered communication between lawyers and their clients. Lawyers also asked from the court to hold audio and video recording inside courtroom. Agil Laidj asked from the court to send the case back for re-investigation. He based his motion on that his defendant Agil Magerramov was forced to confess under tortures. Lawyers filed a petition with a request to terminate criminal case.

None of the motions filed by lawyers were satisfied by the court.

During judicial investigation, the witnesses Elchin Askerbeyli, Javid Masimli and Javanshir Abishev were questioned. Elchin Askerbeyli, who resides in Saint Petersburg testified that he was introduced to Aqil Maharramov through his acquaintance Zaur in one of the capital’s cafe. A. Maharramov complained about difficult life and Elchin transferred 220 USD to him via bank.  He testified that only after Aqil Maharammov’s arrest, he found out that money was transferred to Ali Kerimli. 

Witness Javid Masimli testified that he became acquainted with Aqil Maharramov through social network – Facebook. He said “I remember it was Ramadan Holiday and because of this, I decided to help financially”. “After Agil’s arrest, I was scared that I would also be arrested” – said Javid Masimli. Javanshir Abishev testified that he works at the market in Moscow. He found out from Orhan Zeynallov – who works there, that money is gathered for political prisoners. He gave 75 USD. “Later I found out that money was transferred to opposition” said D. Abishev. During the court, witness Tural Mehtixanov testified that he was delivering money from Moscow to Baku. He said that his uncle who lives in Moscow, was telling him to whom to deliver money. He said that he was not acquainted with those people to whom he gave money. Lawyer Javad Javadov complained:” Dear court, this man was engaged in illegal business activity, however, others including Saleh Rustamov are brought to criminal liability. Why isn’t he held accountable? We have serious suspicion that he entered in an agreement with investigation and agreed to testify against defendants in order to avoid criminal liability”.

Tural Mehtixanov testified that he gave, at first 175.500 USD to Vidadi Rustamli, and then 4.000 USD.  To this Vidadi Rustamli replied that he received 175.500 USD from this person. This was money he earned in 2010-2016. His companion sent it. He said that this money was not transferred to Popular Front Party, but he used money to buy apartment in Baku City Yasamal District for 272.000 USD. “And after this, I took about 3 times money from him. Every time, it was around 300, 500. 1000 USD. I did not sign any receipt; I was forced to sign these receipts in “criminal gang department” (means here the Main Department for Combating Organized Crime of the Ministry of Internal Affairs of AR).
At court session, on February 6, 2019, Babek Hasanov appealed to the court with a request to call and to question as a witness the chairman of the Popular Front Party Ali Kerimli. He said that despite the fact that the defendants are accused in transferring money to Ali Kerimli, he has never been questioned. B. Hasanov stated that Kerimli’s questioning is very important. The motion was not satisfied.
Saleh Rustamov’s brother Taleh Rustamov and his wife Rasmiya Rustamova testified that they were together with Saleh Rustamov in the car, when the car was stopped on the road between Shamkir and Gedebey. “Suddenly, people in civilian clothes attacked the car” said Taleh and Rasmiya Rustamovs. Saleh was pushed out from the car by force and taken away. People, who were close by, became interested who this person was and why he was treated in such way”. According to Saleh Rustamov’s relatives, they were not explained, where to they were taking him.
During trial, all defendants spoke about the pressure by the investigatory authorities, both physical and psychological in nature. The veteran of Karabakh war Babek Hasanov testified, that they tried to make him confess through beatings, he warned these people that during the war he was wounded to his spine and asked not to beat there. However, when Main Department of the Ministry of Internal Affairs on Combating crimes found out about the weak spots, they proceeded with beatings on those spots. Agil Magerramov also testified that he was subjected to terrible tortures.
Saleh Rustamov and Vidadi Rustamli was also tortured. Ruslan Nasirli was pressured psychologically, and in result he had to sign confession statement, which was refuted by him at the court. During the court, all accused refused from their confession statements, indicating that they were made under tortures.

On February 19, 2019 judicial investigation finished, and the process continued with prosecutor’s speech. He asked from the court to find all defendants guilty in pressed charges and to sentence: Saleh Rustamov to 8 years and 6 months, Babek Hasanov and Agil Magerramov to 7 years and 6 months, Ruslan Nasirli and Vidadi Rustamli to 3 years and 6 months in prison.
Lawyers asked from the court to dismiss all the charges from their defendants, and to acquit them. On February 27, 2019 defendants had their last word. During his speech, Agil Maharramov said “This case is fabricated from the beginning till the end. If we could launder money, then our names would’ve been in the scandal “landromat”.  This case has political motive. When I was arrested, my daughters were 4 months old. Now they are a year and half. They celebrate their birthdays without me. This is very hard for me. I was subjected to terrible tortures. But no matter what, if you ask me whether it was worth it, I would reply it was.” Ruslan Nasirli said: ”First of all, I have to say that pressed charges are falsified from the beginning till the end. We believe that our pure thoughts on building a democratic state will one day come true. No matter how much you try to stop the realization of our thoughts, Azerbaijan will be independent!”

Babek Hasanov also spoke about the falsification of the case, about tortures, which he had to go through. B. Hasanov thanked those, who helped him during his arrest and to this day, he does not plead guilty. B. Hasanov also stated that the case is politically motivated and directed against the leader of Popular Front Party Ali Kerimli.
During his speech, Saleh Rustamov stated that he is innocent. “It does not matter how much they tried to present us as an organized criminal group and narcobarons, they did not succeed. Everyone knows about the order nature of the case. If  court was interested in the investigation of the case, it would’ve requested surveillance cameras from the location where at I was pushed out of the car by force.
“I was sending 300-500 USD to support families of political prisoners.  In order to do it, the bank account was opened. The former Minister of Communications, who was questioned in connection with the case of Ministry of National Security, testified that he received  300,000 manat each month. Former head of the Baku Metro, Tagi Akhmedov admitted receiving bribes in a large scale. However, none of them were touched. But, we are under arrest for several months, just for helping people who are in dire condition. My request to you would be that during decision making, rest on the principles of humanism and humanity”  said Saleh Rustamov.

On February 27, 2019 Baku City Court on Grave Crimes announced its verdict. According to verdict, all defendants were found guilty in committing crimes and sentenced to:
• Saleh Rustamov to 7 years and 3 months in prison; with additional punishment of a 3 year ban on holding positions of trust in a state or private owned organizations;
• Vidadi Rustamli conditionally to 6 years, 8 months and 13 days of criminal punishment with a period of 3 year probation; with additional punishment of a 3 year ban on holding positions of trust in a state or private owned organizations;
• Agil Magerramov to 4 years in prison;  with additional punishment of a 3 year ban on holding positions of trust in a state or private owned organizations; • Babek Hasanov to 3 years in prison; with additional punishment of a 3 year ban on holding positions of trust in a state or private owned organisations; • Ruslan Nasirli conditionally to 6 years, 8 months and 28 days of criminal punishment with a period of 3 year probation; with additional punishment of a 3 year ban on holding positions of trust in a state or private owned organisations.

Commentary by an expert lawyer:
The court decision is unlawful and groundless. According to Article 2.1 of the Criminal Code of Azerbaijan Republic, tasks of the Criminal Code of the Azerbaijan Republic are: providing of the peace and safety of mankind, protection of rights and freedom of the person and the citizen, of property, of economic activities, of social order and public safety, of environment, of constitutional building of the Azerbaijan Republic from criminal encroachments, and also the prevention of crimes. The case in point showed that during investigation period and the trial the tasks of the Criminal Code were not achieved. The investigation and court violated defendants’ fundamental rights and freedoms.

During judicial investigation, all defendants spoke about the tortures and inhuman treatments towards them. Investigative authority tried to obtain “confessing testimonies” from the defendants, “forgetting” that accusation built on such testimonies is considered groundless, it must be terminated, and evidences obtained unlawfully, should be excluded from the list of the evidence.

According to Article 13.2. of  Code of Criminal Procedure of the Azerbaijan Republic during a criminal prosecution nobody shall:
13.2.1. be subjected to treatment or punishment that debases human dignity;13.2.2. be held in conditions that debase human dignity;13.2.3. be forced to participate in carrying out procedures that debase human dignity. Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms also prohibits application of tortures and inhuman or degrading treatment. This Article does not contain any exceptions and is in force for all cases (during military operations, fight with terrorism or mafia).In connection with the application of tortures, European Court on Human Rights in case of Gorodnitchev v. Russian Federation from May 24, 2007 stated the following: “European Court reminds that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. While considering whether a punishment or treatment is “inhuman” or ”degrading”, the suffering and humiliation in any case must exceed the level of suffering and humiliation, inevitably presented in any legal punishment.” http://echr.ru/documents/doc/2465023/2465023-001.htm
Practice of tortures is widespread during preliminary investigation in Azerbaijan.  The cardinal problems that promote this practice, are the impunity of the officials who apply tortures, lack of independent judicial system (none of the complaints on tortures submitted in the course of judicial supervision, was not satisfied by local judge), non-compliance and the failure to fulfill by Azerbaijan the decisions of the European Court on Human Rights on Article 3 (prohibition of torture) of the European Convention.  If the practice changes, then the amount of tortures will decrease dramatically. Besides, the dependence of the judicial system on the executive authority does not give the possibility to the court to be independent in investigation of the facts of tortures.
In summer of 2018 the  European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) widespread the report that tortures in Azerbaijan are applied by the officials of the law enforcement agencies. Authorities objected to this report and stated that such type of facts were not registered. However, by spring 2019, European Court on Human Rights issued 18 decisions against Azerbaijan on violation of Article 3 (prohibition of torture) of Convention for the Protection of Human Rightsand Fundamental Freedoms

The most important thing in the criminal cases are evidences: testimonies of the suspect, accused, victim and witnesses; conclusion of the expert; material evidences; and other documents. According to Article 125.1 of Code of Criminal Procedure of the Azerbaijan Republic: “If there is no doubt as to the accuracy and source of the information, documents and other items and as to the circumstances in which they were obtained, they may be accepted as evidence.”
It is stated in the Article 125.2 of Code of Criminal Procedure of the Azerbaijan Republic: “Information, documents and other items shall not be accepted as evidence in a criminal case if they are obtained in the following circumstances:125.2.1. if the accuracy of the evidence is or may be affected by the fact that the parties to the criminal proceedings are deprived of their lawful rights, or those rights are restricted, through violation of their constitutional human and civil rights and liberties or other requirements of this Code; 125.2.2. through the use of violence, threats, deceit, torture or other cruel, inhuman or degrading acts; 125.2.3. through violation of the defence rights of the suspect or accused, or the rights of a person who does not know the language used in the criminal proceedings;
125.2.4. where the rights and duties of a party to the criminal proceedings are not explained, or not explained fully and accurately and, as a result, he exercises them wrongly;125.2.5. where the criminal prosecution and investigative or other procedures are conducted by a person who does not have the right to do so; 125.2.6. where a person whose participation should be objected to, and who knows or should know the reasons precluding his participation, takes part in the criminal proceedings; 125.2.7. where the rules governing investigative or other procedures are seriously violated; 125.2. 8. where the document or other item is taken from a person unable to recognise it or who cannot confirm its accuracy, its source and the circumstances of its acquisition; 125.2.9. where evidence is taken from a person unknown at the trial or from an unknown source; 125.2.10. where evidence is taken through means conflicting with modern scientific views.”
The evidences obtained via aforesaid circumstances, do not have legal validity and cannot be used as evidences in a criminal case.  Despite of the fact that law directly prohibits the use of the evidences obtained unlawfully, exactly such type of evidences underlie as  grounds for the verdict.
Another procedural infraction was concerning defendants’ detention. All of them were detained with a violation of the criminal – procedural legislation. To secure the rights of the detainee, the officials of the prosecuting authority and those in charge of the temporary detention facility shall (Article 153 of Code of Criminal Procedure of the Azerbaijan Republic): • inform the detainee immediately after detaining him of the grounds for detention,• explain to him his right not to testify against himself and his close relatives as well as his right to the assistance of defence counsel;• take the detainee without delay to the police or other preliminary investigating authority’s temporary detention facility,• register the detention, draw up a record and show him the detention record;
• report each instance of detention, immediately after registration in the temporary detention facility, to the head of the appropriate preliminary investigating authority and to the prosecutor in charge of the procedural aspects of the investigation (this information shall be given in writing within 12 hours of detention); • secure the right of the person to inform others of his detention immediately after detention (the authority in charge of the temporary detention facility, on his own initiative, shall inform the family members of any detainees who are elderly, under age or unable to do so themselves because of their mental state);• provide opportunities for the person, from the moment of detention, to meet in private and in confidence with his lawyer and legal representative under decent conditions and under supervision; • if the detainee does not have a lawyer of his own, present him with a list of lawyers from the bar association offices in the vicinity of the temporary detention facility, contact the chosen lawyer and create an opportunity for the detainee to meet him;
• if the financial position of the detainee does not enable him to retain a lawyer at his own expense, create an opportunity for him to meet the duty lawyer from one of the bar association offices in the vicinity of the temporary detention facility, at the state’s expense;
• if the detainee refuses the services of a lawyer, receive his written request to that effect (if he evades writing the request, a record to that effect shall be drawn up between the lawyer and the representative of the temporary detention facility). Important point in the case also lies on the repudiation in satisfaction of the applications. None of the applications filed by lawyers and defendants were satisfied by court: Even though Article 121.2 of Code of Criminal Procedure of the Azerbaijan Republic states: Reasons shall be given for the decision taken on an application or request, together with an assessment of the applicant’s arguments. Applications and requests for any matters connected with the prosecution to be examined thoroughly, fully and objectively under the required legal procedure, and for the violated rights and legal interests of the parties to the criminal proceedings and of other participants in the proceedings to be restored, may not be rejected.”

Arrest, which is carried out with a violation of the procedural provisions, at the same time violates Article 5 (1) of Convention for the Protection of Human Rightsand Fundamental Freedoms. According to Article: “ 1.Everyone has the  right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.”

Article 6 (3) of the Convention for the Protection of Human Rights and Fundamental Freedoms was also violated towards accused: “Everyone charged with a criminal offence has the following minimum rights: (b)  to have adequate time and facilities for the preparation of his defence; (c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”.

However, after detention, they were not provided with a legal assistance of their own choice. They were also not provided with a list of lawyers, from which they could chose the lawyers themselves. Lawyers were appointed at the state’s expense. Investigation body that is responsible to check the material well-being of the detainee, did not do it.
At the court, the defendant Agil Maharramov told that he was tortured in presence of Safar Huseynov – a lawyer who was appointed to him at the state’s expense. S. Huseynov commented on tortures in such way: He said to A. Maharramov “You are young and you will forget everything soon”. The detainees’ rights for legal assistance was violated, they did not have any legal aid. Thus, fundamental rights and freedoms, prescribed by both national and international law, also by the precedents of the European Court on Human Rights were violated towards accused.

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Baku City Court on Grave Crimes found Mustafa Hajili guilty and conditionally sentenced him to 5 years and 6 months.

Baku City Court on Grave Crimes found Mustafa Hajili guilty and conditionally sentenced him to 5 years and 6 months.

The analysis of violation of the law during Mustafa  Hajili’s

judicial proceedings

Baku Court on Grave Crimes
Case #1(101)-311/2019
February 21, 2019
Presiding Judge: Sabuhi Huseynov 
Judges: Azad Majidov, Zeynal Agayev
Accused: Mustafa Hajili 
Defender: Osman Kazimov
Public  Prosecutor: Anar Tarverdiev  


On July 9, 2018, Karabakh war veteran, a disabled person of the 3rd category, a member of opposition party Musavat, also a founder and editor-in-chief of the informative website www.bastainfo.com Mustafa Hajili was summoned for questioning to the Department for Investigation of Grave Crimes of the Prosecutor General’s Office of the Republic of Azerbaijan. The questioning was linked to several publications on a website – managed by him. During several months, Mustafa Hajili was repeatedly questioned. From M. Hajili’s interview to mass media: “From July 9, I am being questioned for several hours each day at the Prosecutor’s Office. Today (on July 20, 2018), I was asked several questions regarding the publications of two years’ prescription, which have absolutely nothing to do with a criminal case. In fact, I am being kept under psychological pressure for several days. I am being asked the questions, which are not related to a given criminal case. I consider, what is going on at present, as a pressure directed towards me”.
Criminal case was initiated on account of July 3rd, 2018, assassination attempt on the chief of the executive power of Ganja city and police officers. Public Prosecutor’s Office issued a statement, stating that some news media disseminated information that do not represent the facts, and are of a propagandistic nature.

In connection with this, a criminal case under Articles 214.2 (public appeals to terrorism), 281.1 (public appeals directed against the state), and 313.3 (service forgery, that is deliberately disseminating false data in informative resources by the official) of the Criminal Code of the AR was initiated.
On the grounds of criminal case, the Prosecutor’s General Office referred to the Ministry of Transport, Communication and High Technologies, with a request to limit the access to the following websites: www.bastainfo.comwww.criminalaz.com  и www.fia.az. After this, the administration and workers of these websites were questioned for hours, during several days, at the Prosecutor’s Office.
On November 30, 2018, Baku City Prosecutor’s Office, whereto the criminal case was sent, accused M. Hajili in committing crimes under Articles 281.2 (public appeals directed against the state), 309.2 (excess of official powers), 313 (service forgery)  of the Criminal Code of the AR. A restrictive measure in form of placement under police supervision was chosen against M. Hajili. According to a given restrictive measure, M. Hajili shouldresort to a police department each Friday, and should register his presence; he should also notify police prior leaving Baku.
The criminal case was sent to Baku City Court on Grave Crimes. The preparatory meeting was scheduled for January 11, 2019. At the meeting, Prosecutor read out indictment.  According to indictment, “on July 5th, 2018, the article “Energy blackout in Mingachevir did not stop repressive machine”, and on July 6th, 2018, the article “Azerbaijanis created a model of social resistance for themselves” were published at the website – headed by M. Hajili. In given articles, there were public appeals directed towards violent capture of power and violent change of the constitutional grounds of the Republic of Azerbaijan.”
During trial proceedings, Mustafa Hajili did not plead guilty, he stated that the criminal case against him is groundless. He also stated that he would testify only after witnesses to the case are questioned. In capacity of the witnesses to this case, the workers of the website: Konul Aliyeva, Heybat Amrah, and Rufat Bakhisov were summoned to the court. 
The witness Heybat Amrah testified that he is a member of Musavat Party, that he knows Mustafa Hajili since 90s, and works at the website on a voluntary basis. The witness Konul Aliyeva testified that both articles were taken from the website of informative-agency Turan, and because of that www.bastainfo.com does not carry any responsibilities for them. She expressed her resentment to the fact that the criminal case was initiated against the website. Rufat Bakhisov also testified that articles were taken from a website of Turan agency. One of the articles speaks about a photo of Yunis Safarov who committed an assassination attempt towards the chief of the executive power of Ganja city. A photo shows the traces of tortures on his body, and according to unofficial data, his photo was widespread at social network by police itself. All witnesses, the workers of the website testified that they are working on a voluntary basis. M. Hajili’s lawyer,  Osman Kazimov stated that these witnesses had nothing to do with accusations.
On January 29, 2019, the victims to the case – Ilaha Xalidova, Arzuxanim Mammadova, Zulfiya Babayeva were scheduled to be questioned at the court. According to investigators, these witnesses experienced anxiety after reading above mentioned articles. However, none of the witnesses appeared at the court.
The victims only testified on February 19, 2019, at judicial sitting. They testified that after reading articles they felt anxiety and that is why they submitted complaint to the law enforcement agencies. However, while answering to M. Hajili’s and his defender’s questions, they could not remember a single sentence from these articles. The victims testified that these articles spoke about an assassination attempt on the chief of the executive power of Ganja city Elmar Valiyev, and there were also appeals for public disorders. 
The lawyer asked from the court to show these articles to the victims and asked from victims to reply: “ Dear witness, please read the articles out loudly, and tell what sentence contains public appeals. Please, show this sentence here”. Public prosecutor protested to this request. After the victims were questioned, Mustafa Hajili filed a complaint, stating that all testimonies given by witnesses were false and asked from the court to remove them from the list of the evidences. The court made a decision to leave M. Hajili’s complaint unreviewed.
On February 21, 2019, Baku City Court on Grave Crimes announced verdict. According to verdict, Court found Mustafa Hajili guilty and sentenced him conditionally to 5 years and 6 months of criminal punishment with a period of 2 year probation. Court also passed a decision to ban M. Hajili from holding any position in any state or self-governed institutions.

Commentary by an expert lawyer:
The court decision is unlawful and groundless. During trial, the norms of substantive and procedural law of both national and international legislation were violated. M. Hajili was accused in violation of the Articles 281.2 (public appeals directed against the state), 309.2 (excess of official powers), 313 (service forgery) of the Criminal Code of the AR.
Public appeals to violent capture of power, violent deduction power or violent change of the constitutional grounds – is a crime, which may be accomplished deliberately and with direct intentions. This means that, the crime shall be admitted as committed with direct intention, if the person realized public danger of the act, expected its publicly dangerous consequences and wished their approach. In order to consider above mentioned crime as accomplished, the public appeal must be deliberate and with direct intentions. The condition of the direct intention is wishing its direct approach. One of the conditions that stipulates the publicity of the call, is a presence of a specific circle, to which the call is addressed. If public call is disseminated with the purpose of committing a crime, then it must without fail be directed towards specific audience. 
Suppose that a public call is directed towards some well-known circle. Then, there is a question if this circle is able to realize this call or not? The important condition to commit the act as prescribed by Article 281 of the Criminal Code of the AR, is the availability of necessary resources, possession of the resources by the circle to which the appeal is directed. It must be taken under account, that violent change of the constitutional grounds is not ordinary action of the hooliganism: http://www.contact.az/ext/news/2019/2/free/Want%20to%20Say/ru/78896.htm In journalist’s case, none of all above mentioned conditions were met, and therefore there was no corpus delicti.
Besides the substantive legal norms, the procedural norms were violated during the investigation and trial. Thus, according to article 21.2. of the Code of Criminal Procedure of the Azerbaijan Republic, even if there are reasonable suspicions as to the guilt of the person, this shall not cause the latter to be found guilty. The accused (the suspect) shall receive the benefit of any doubts which cannot be removed in the process of proving the charge in accordance with the provisions of this Code, within the appropriate legal proceedings. He shall likewise receive the benefit of any doubts which are not removed in the application of criminal law and criminal procedure legislation.
The trial on the criminal case did not prove the guilt of the accused. Investigating authorities failed to provide the court with enough sufficient amount of the irrefutable and convincing evidences   to prove journalist’s guilt. The entire accusation was built only on the testimonies of the victims, who, during the court, were not able to show the words and sentences, used in the articles, which caused them anxiety.  Even though according to Article 21.3 of the Code of Criminal Procedure of the Azerbaijan Republic the accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defence of the suspect or the accused. 
Article 28.1 of the  Code of Criminal Procedure of the AR : “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.”
The given criminal case should’ve already been suspended during the preliminary hearing, since there was no corpus delicti in M.Hajili’s act. One more circumstance is prescribed by Article 39.2 of the Code of Criminal Procedure of the AR, a criminal prosecution may not start or shall be discontinued (and the criminal case may not be begun or proceedings in the criminal case shall be discontinued) in the following circumstances if the act does not have a criminal content. M. Hajili’s guilt was not proven at the court.
The individuals who were recognised as victims, could not explain at the court, what damage they suffered from reading those articles, to what led their anxiety and if there were any consequences. According to Article 87.1 of the Code of Criminal Procedure of the AR: If there are sufficient grounds to show that the individual suffered direct non- material, physical or material damage as a result of the act provided for in criminal law, he shall be referred to as a victim. 
During judicial investigation, the defence and the editor himself submitted to the court  corresponding applications. However, none of them were reviewed. Although, according to Article 121. 2 of the Code of Criminal Procedure of the AR, reasons shall be given for the decision taken on an application or request, together with an assessment of the applicant’s arguments. Applications and requests for any matters connected with the prosecution to be examined thoroughly, fully and objectively under the required legal procedure, and for the violated rights and legal interests of the parties to the criminal proceedings and of other participants in the proceedings to be restored, may not be rejected. 
The evidences that were collected by investigative authority, must be examined separately. The list of evidences contain: victims’ testimonies, the report of a linguistic examination, witnesses’ testimonies, a notice of the Ministry of the Transport, Communications and High Technologies.
As was mentioned above: · the victims could not explain at the court, what damage they suffered from by reading those articles; · none of the witnesses testified against accused; · According to the legislation, a report of a linguistic examination is not obligatory for the court. The judge evaluates all the evidences together, and passes decision about the guiltiness of a person.
Facts which need to be proven:
· the facts and circumstances of the criminal act (Article 139.0.1 of  the Code of Criminal Procedure of the AR) · the connection of the suspect or accused with the criminal act (Article 139.0.2 of the Code of Criminal Procedure of the AR)
· the criminal ingredients of the act provided for in criminal law (Article 139.0.3 of the Code of Criminal Procedure of the AR)
· the guilt of the person in committing the act provided for in criminal law (Article 139.0.4   of the Code of Criminal Procedure of the AR)
· the circumstances which mitigate or aggravate the punishment for which criminal law provides (Article 139.0.5 of the Code of Criminal Procedure of the AR)
· 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 ( Article 139.0.6 of the Code of Criminal Procedure of the AR)
None of the evidences collected by the investigatory authority were irrefutable and convincing to prove M. Hajili’s guilt. Court should’ve declared M. Hajili innocent of the offence and acquitted him, because of the absence of the criminal content in the act and because the guilt was not proven (Articles 42.1., 42.1.2., 42.1.4. of the Code of Criminal Procedure of the AR).
During the analysis of Mustafa Hajili’s judicial proceedings, it became known that international legal norms were also violated towards journalist. For example: Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms were violated. According to this Article: “ In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitle to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The case was not reviewed fairly and impartially, since the evidences collected for this case were not enough to convince prosecution. All doubts were not interpreted by the court in favour of the accused. On the contrary, they became grounds of the unlawful accusation.
In addition, Article 10 (1) of the European Convention, which enshrines the right of everyone to freedom of expression, was violated. 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
In accordance with Article 50 of the Constitution of the  Azerbaijan Republic, everyone is free to look for, acquire, transfer, prepare and distribute information. Journalist made use of the right, provided to him  by national and international legislation.
If we conduct a test, which as a rule, is conducted by the European Court of Human Rights during decision making on the violation of the Article 10 of European Convention, then we will see that there was, in fact, state organ’s intervention into this right, it did not carry any legitimate purpose, and was not “needed in a democratic society”. Besides, articles were taken from another website, and this fact was not taken into account by the court at all.
The analysis of Mustafa Hajili’s  trial proceedings clearly demonstrates the numerous violations of a national and international law during the trial.
International organization “Reporters without borders” sharply condemned the verdict of the  chief editor of www.bastainfo.com.

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Baku City Nasimi District Court found Nijat Nizamov guilty

Baku City Nasimi District Court found Nijat Nizamov guilty

The analysis of violation of the Law during Nijat Nizamov’s

judicial  proceedings

Baku City Nasimi District CourtJanuary 16, 2019
Case #3 (006)-130/2019
Judge: Azer Tagiyev
A person against  whom a protocol on an administrative violation was drawn up: Nijat Nizamov
A person who drew up a protocol on an administrative violation: district police officer of Baku City Nasimi District Police Department #22: Elman Mamedov.
Nijat Nizamov is a member of the Youth Committee of Azerbaijan Popular Front Party, and is also a member of “Muslim unity” movement. He constantly participates in the opposition rallies, and actively criticizes the policy of Ilham Aliyev on social networks.
Police repeatedly detained N. Nizamov. He was brought to administrative responsibility several times.
On January 15, 2019, there was a trial at Baku Court on Grave crimes on so-called “unlawful financing of  Azerbaijan Popular Front Party”. On the dock were the members of this party: Agil Maharamli, Babek Hasanov, Ruslan Nasirli, Saleh Rustamov and his nephew Vidadi Rustamov.
The members of Azerbaijan Popular Front Party, the representatives of the diplomatic missions, human rights defenders and activists of civil society gathered near the court.  The courtroom could fit in 50 persons. Firstly, the relatives of the defendants, diplomats were allowed to enter, and then the members of the Popular Front Party and journalists. Many who wished to attend the trial remained behind court doors. However, they did not leave after the court began. They went to the nearby park, whereat they started waiting for news from the relatives and the lawyers of the defendants. The court building itself and the neighboring streets were cordoned off by the police and police cars.
Half an hour after the beginning of the trial, the police approached to the people in the park and demanded to vacate the territory, arguing that there are too many people in the park, and that could lead to demonstration.  Several people were removed from the park by force, and pushed into police cars, and taken to Baku City Nasimi District Police Department #22.
Detainees were kept at the police department for the period of 24 hours, and on the following day, they appeared before the court. On January 16, 2019 Baku City Nasimi District Court found them guilty in committing offences under article 535.1 (insubordination of legal request of policeman) of the Code of the Azerbaijan Republic on Administrative Violations . Several people received punishments in form of administrative arrest, and others were convicted to fines. Nijat Nazimov was also found guilty and convicted to fine for amount of 200 manat. 
Commentary by an expert lawyer:
The court decision is unlawful and groundless. All decisions that were made on January 16, 2019, by Baku City Nasimi District Court are identical in content. In Nijat Nizamov’s decision, it is indicated that he repents of his deed and promises never to commit such violations again. In fact, none of the detainees said this at the trial.   According to the law, the ground to bring a person to the administrative responsibility is a commission of a deed (action or inaction) having all signs of an administrative violation. Besides, the most important principle is the respect for rights and freedom of human and citizen. 
Persons who were in the park near the court, did not violate public order, and did not commit administrative violations. In fact, police violated the requirements of the Police Act of the Azerbaijan Republic.  Duties of Police Officers are indicated in Section 23 of the Police Act of the Azerbaijan Republic. According to Section 23:
I. In the course of enforcing his/her authority to restrict right of freedom, the police officer shall be bound as follows:1) to use of safe methods and means in the course of detaining or arresting a person, except for the cases of necessary self – defence and last resort;2) to introduce himself/herself and show official identity document to the detained or arrested person;3) to inform of the grounds of detention immediately after detention, as well as to explain the right of rights not to testify against oneself or one’s relatives and the right to use legal aid;4) to convoy individuals arrested or detained to the police headquarters immediately, to make the record of the fact of arrest or detention according in order provided by the legislation of, the Republic of Azerbaijan; to introduce these records to the persons detained or arrested; and to have each fact of arrest or detention registered at the respective police department;5) to inform close relatives of detained or arrested person, as well as to notify their employers or education institutions about his/her arrest studies upon his/her demand (in cases of elders, juveniles and persons who by the virtue of the mental disorder are not capable of doing that, the management of the detention place shall inform family members subject to his/her own initiative) 6) to ensure the right of using legal aid of the detained or arrested person upon his/her demand, as well as in case of mandatory participation of the legal counselor;7) to treat the detainee or arrestee with due respect to his person and dignity, with particular attention being paid to women, minors, elders, ill and disabled persons;8) to release detained or arrested person subject to the court (judge) warrant, as well as, upon expiration of the terms of detention.
II. Police office shall ensure other rights of the detained or arrested person as provided by the legislation of the Azerbaijan Republic.
According to Section 27 (8) of the Police Act of the Azerbaijan Republic: to submit to the respective prosecutor a written statement concerning the use of private force. The private force was used towards all detainees, however, there are no documents in the case files about the notification of the prosecutor.
According to Section 13 of the Police Act of the Azerbaijan Republic : while applying to any person, a police officer shall introduce himself/herself by quoting family name, forename, special rank and position and presenting his/her official ID.
According to Article 90.2 of the Code of the Azerbaijan Republic on administrative violations: Administrative Protocol is signed by official who had developed it and the person arrested. Should the person arrested refuse to sign protocol appropriate note in the protocol shall be made. The arrested person holds the right to provide explanations and comments on protocol content as well as indicate the reasons for which he refuses to put his signature. Such explanations and comments shall be attached to the protocol.  The detainee is provided with the copy of the protocol.
Nijat Nizamov refused to sign protocol, however it was not noted in the protocol. Besides, he was not provided with a copy of the administrative protocol. 
Court did not examine what exact action of Nijat Nizamov was recognized as administrative violation. Besides, it is not clear from the court decision, if the demand of the police was in accordance with the current legislation.
Article 91 of the Code of the Azerbaijan Republic on administrative violations specifies the measures, which should be taken by the investigation body. According to Article 91: Investigation body should’ve taken following measures:
· shall immediately advice the arrested person on reasons of his arrest, explain his rights,  · shall let the person arrested to review the protocol on administrative violation;  · on arrested person request to create condition for his contact with close relatives, or with administration, where he studied or worked, or to inform lawyer; · in relations with the person arrested shall maintain the respect to his personality and dignity; · to let the person arrested to contact with his lawyer and to create  condition for meeting; · in the absence of the personal lawyer, he should be provided with the list of advocates who provide legal consulting services at the places of arrest and other entities, to contact with chosen lawyer and to create condition for meeting. It is necessary to underline here that none of the indicated rights were not provided to the detainee. 
Court did not examine if  the protocol was drawn up in accordance with the provisions of the law, if the detainee was provided with his rights, if all evidences alleging breach of law were collected, and if they are enough to find a person guilty.   To court did not present any evidence that would prove the guilt of the detainee, except the administrative protocol. During his detention, there were many people near N. Nizamov who could confirm that he did not breach the law and the demand of the police was unlawful, police were  fulfilling someone’s unlawful order.
In addition to the norm of the National Law, court also violated the norms of International Law. In particular, it violated Article 5 (1) and 6 (1) of European Convention for the Protection of Human Rights and Fundamental Freedoms. 
According to Article 5 of European Convention: 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so. 
The right to liberty and security of Nijat Nizamov was violated by the police. N. Nizamov did not commit any offence and did not plan to commit any offence and to flee after doing so.
According to Article 6 of European Convention: 1. In the determination of his civil rights rand obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. 
Nijat Nizamov was not provided with a fair and impartial trial, as the court did not fulfill its obligation, indicating in the law.

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Baku City Surakhany District Court found Mammad Ibrahim guilty

Baku City Surakhany District Court found Mammad Ibrahim guilty

 

The analysis of violation of the law Mammad  Ibrahim’s  judicial proceedings 

Baku City Surakhany District Court

Case #01-198/2018

January 10, 2019

Judge: Jeyhun Qadimov

Accused: Mammad Ibrahim

Defenders: Nazim Musayev, Javad Javadov  

Public Prosecutor: Elshan Mamedov

Mammad Ibrahim is the advisor to the chairman of the opposition party Popular Front of AR. He is known for his sharp criticism towards Azerbaijan authorities. On September 29, 2015 Mammad Ibrahim was detained on trumped up charge hooliganism. 

On March 15, 2016, Baku City Narimanov District Court sentenced Mammad Ibrahim to 3 years in prison under Article 221.2.2 (Hooliganism,committed with resistance to representative of the authority, acting as on protection of a social order or stopping infringement of a social order or with resistance to other person) of the Criminal Code of Azerbaijan Republic.

During Mammad Ibrahim’s detention, his lawyer repeatedly appealed to the court on conditional discharge (early parole), but this appeal was not satisfied. While serving sentence at penal colony #16, Ibrahim started having serious problems with vision. In summer of 2018, he had operation on his eye in the medical unit by the Ministry of Justice. However, it was not possible to completely solve his problems with vision via above mentioned operation, and M. Ibrahim continues to suffer from the pain in his eyes. 

 

On 27 September 2018, two days before the termination of his sentence and the release date, he informed his family, that there was a search in his cell, and the knife was found under his pillow. Mammad Ibrahim did not know who planted the knife under his pillow. M. Ibrahim stated that he was not privy to this, and that the knife was intentionally planted to him, so he would not be released. On the same day, the members of M. Ibrahim family and his party colleagues went to the Colony #16, where he was serving his sentence. They demanded to see Mammad Ibrahim. However, police brutally dispersed them. Then M. Ibrahim’s son Turan Ibrahim met with the chief of the colony. He assured Turan Ibrahim that on September 29, in the afternoon, his father will be at home. On September 29, 2018, Turan Ibrahim and his party colleagues went again to the colony. There they found out, that the new criminal case is opened against Mammad Ibrahim, and that he,  himself, for the period of the preliminary investigation, is transferred to Baku Pretrial Detention Facility #1.

Application with the request for the arrest was submitted by the Investigator of the Investigation Department by the Ministry of Justice of Azerbaijan Republic to Baku City Yasamal District Court on the grounds of the initiation of the criminal case under Article 317-2.1. (Production, storage, concealment, transportation or usage of the prohibited items by the individuals held in the penal colonies or pretrial detention facilities) of the Criminal Code of Azerbaijan Republic. 

On September 28, 2018, Baku City Yasamal District Court  chose against Mammad Ibrahim preventive measure in form of arrest for the period of 2 months.

 

On November 19, 2018, the trial process on new charge against Mammad Ibrahim began at Baku City Surakhany District Court.
Persons wishing to attend the trial, gathered near the court. However, security let persons in selectively. The court room could fit around 10-15 persons. And despite of empty places, only 10 persons were allowed inside the court room. There, the trial warders asked from the attendants to turn off their phones; and took them away. 

The Leader of Azerbaijan Popular Front Party Ali Karimli who wished to attend the trial was not allowed twice into the courtroom. Mammad Ibrahim and his son expressed their protest against it. However, the judge responded with the phrase “So it should be”.

During preparatory meeting, the defence submitted several applications. Lawyer asked from the court, to remove M. Ibrahim from the metal cage, whereat he was placed during the court proceedings and to allow him to sit by his lawyers. The application was based on that the act in which M. Ibrahim was accused in, is not grave in nature and is not committed against personality and does not represent any public threat. Further, defence submitted to the court the request to change the preventive measure, and to dismiss the criminal case. Court did not satisfy any of submitted applications.

On  December 4, 2018, four witnesses, who are the workers of the Prison #16 – Tadjaddin Mansimov, Kamil Mamedov, Mehman Ahmedov, Ramin Xalilov and Farid Jafarov were questioned. They testified that the search was conducted by the order of the Chief of the Prison #16. Mammad Ibrahim refused to ask any questions to witnesses, by highlighting that they were forced to give false testimonies, and explained that with his questions he may harm them, and cause them feeling shameful. One more witness – the worker of the facility, and three prisoners who were also witnesses did not come to the court. 
On December 25, 2018, the witnesses did not come to the court hearing again. Judge stated that two of the witnesses are released, and the third one is transferred to the settlement colony (a type of establishment to serve a sentence) in Quba (region in Azerbaijan). 
According to the judge, despite the fact that the court sent the notices to the witnesses to their registration addresses, it became known, that they do not live at those addresses. During the trial, defence applied to the court with the request to invite to the trial and to question the Chief of the Operation Department of the Prison #16 Emil Shihaliyev, who signed M. Ibrahim’s characterization. It is written in the characterization that Mammad Ibrahim is the аdvisor to the Chairman of Azerbaijan Popular Front Party and has “propensity for” Wahhabism. The lawyers based their application on the fact that these details are intentionally included to the characteristics, and this shows the discrimination towards M. Ibrahim. Lawyers’ application was rejected by the court.

During the trial, Mammad Ibrahimov’s lawyer also indicated that the act of which Mammad Ibrahimov is being accused of, falls under the category of intended crime, and that is why, the motive of  its perpetration should be provided in the indictment. However, nothing about it is mentioned in the indictment.

On January 8, 2019, one of the three witnesses Mirza Iskenderov was questioned. After signing search protocol, this witness M.Iskenderov was transferred to the settlement colony. At the trial, he stated that the only thing that he saw, was the moment when the knife was taken out from the pillow. He does not know who put this knife there, and if M. Ibrahim has used it earlier. Mammad Ibrahim did not ask questions to M. Iskenderov. He based his refusal to that this questioning may cause harm to Iskenderov and he might be returned to the prison again.

After M. Iskenderov was questioned, the judge read out the evidences of the case (witnesses’ testimonies, the results of examinations and etc.), then he announced about the end of the judicial investigation. After the judge, Public Prosecutor took the floor. He supported the accusation, and asked from the court to find Mammad Ibrahim guilty in committing of the presented crime and to sentence him to 6 months and 2 days in prison. Legal process ended, and the defence speech and the last statement of the accuse was postponed to January 10, 2019.

On January 10, 2019, the trial began with the lawyer’s Nazim Musayev’s speech, who in details  described all inconsistencies in the criminal case, the absence of the motive of the crime,
indicating that the knife does not belong to  Mammad Ibrahim. The lawyer also stated about the absence of internal investigation to find who could’ve brought the knife to the closed facility and planted it under M. Ibrahimov’s pillow. He asked from the court to pass verdict of not guilty, and to pass the ruling towards the officials who are participating in the falsification of the criminal case.

Lawyer Javad Javadov supported his colleague’s speech, and also added that M. Ibrahimov was subjected to discrimination due to his political persuasion, his arrest and charges against him are connected to his political activity.  Lawyer also asked from the court to pass verdict of not guilty, and to pass the ruling towards the officials who are participating in the falsification of the criminal case.

At the end, the last statement of the accuse was heard. M. Ibrahim said: “We are in the place, where the words are not necessary. If you want to punish me, do it with dignity. I am not speaking about you (does not mean a judge), I am speaking about the one who gave the order. I want to tell few words about the characterization. Yes, I am the аdvisor to the Chairman of Azerbaijan Popular Front Party, and that is why I am arrested. Everything that happened to me is political order. The officials testified against me.

I can say many things about their job, but then they will be fired. They are not guilty in anything. They were ordered.  My arrest is connected to my political activity, I was organizer of many protest actions, I was actively and openly criticizing authority. In my characterization, it is written that I practice Salafizm (Wahhabism). I am Sunni and I do namaz as Sunni. They don’t even know what Salafizm is. 

When I was doing namaz, the Chief of Department Kamil muellim called me in and asked: “Does the prison governor knows about this?” I said yes. I wonder, why when we are doing namaz as Sunni, we are being accused in Wahhabism, and when we are doing namaz as Shia, we are being called spies of Iran? So how should we do namaz? Authorities are building mosques, but we cannot do namaz. Prosecutor said that I was respected in the prison. But, if I was really respected, why the knife was planted to me? I am not feeling hurt by the people, they were forced to do this.
The heroism should not be expected from everyone. Not everyone is capable for it, and this is normal. To tell the truth is the crime. And this is our crime. I know wherefrom the order is coming. But I do not know, what will happened after 6 months. The culprit of all is the current regime. I am innocent, and in your heart, you know this.”

After defendant’s last statement, the judge left to the retiring room, and 10 minutes after, he came back to announce the verdict.  He had already pre-typed verdict in his hands, which he read out.  On January 10, 2019 Baku City Surakhany District Court found Mammad Ibrahim guilty in presented crime and sentenced him to 5 months and 22 days in prison. 

Commentary by an expert -lawyer:

The court decision is unlawful and groundless. Let’s view some requests (applications), which were submitted to the court by the defence. The request on removing defendant from the metal cage and seating him by his lawyers was not satisfied by the court. Keeping defendant in the cage, violates the presumption of innocence. Besides, the crime that M. Ibrahim is accused of does not represent any public threat, and the sanction (punishment) to this crime provided by Article, is from 2 to 6 months. In 2014, the reforms were made to judicial system. One of the introductions was the replacement of the metal cages to the glass boxes, in the courtrooms. However, despite of the fact that 4 years passed, some courts still have cages.

Placing the defendant in the cage violates Article 3 (no one shall be subjected to torture or to inhuman or degrading treatment or punishment) of European Convention for the Protection of Human Rights and Fundamental Freedoms. Besides Article 3, in this case, Article 6 (2) (right to presumption of innocence) of European Convention is violated. There is Article 21 in the Code of Criminal Procedure of the AR, which also secures the right of the defendant to presumption of innocence. It is indicated in Article 21 item 3 of the Code of Criminal Procedure of the AR “The accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defence of the suspect or the accused.” Placing  someone in the cage unambiguously indicates that the defendant is guilty. 

In this case,  none of the evidences presented by the prosecution were irrefutable.  It is enough just to look at the conclusion of the examination. In the conclusion of the examination, it is indicated that  M. Ibrahimov’s fingerprints  were not found on the knife (which was found under his pillow). This means that M. Ibrahim has nothing to do with the knife. As for the witnesses testimonies, it is important to indicate here, that all the witnesses testified that they only saw the moment when the knife was taken out from Ibrahimov’s pillow. None of the witnesses ascertained the fact that the knife belongs to M. Ibrahimov.

As for lawyers’ request to change the preventive measure, the court did not have any legal grounds to keep the arrest as a preventive measure in power. It was not indicated why alternative preventive measures, not related to the arrest – were not applied, and if there was a need to preserve the preventive measure in form of arrest.

One of the principles of the justice is the principle of the legality,  provided by the Article 10 of the Code of Criminal Procedure of the AR . According to Article 10.1:“Courts and participants in criminal proceedings shall conform to the Constitution of the Azerbaijan Republic, this Code, other laws of the Azerbaijan Republic as well as provisions of the international agreements to which Azerbaijan is a signatory.”

Equality of each before the law and the court is also the fundamental principle of the legal system. The right to prohibit discrimination is provided by the Article 14 of European Convention for the Protection of Human Rights and Fundamental Freedoms.  However, given right and the principle of equality were also violated towards Mammad Ibrahim. In order to understand this, it is enough to pay attention at the characterization, which was issued by Prison #16. It solely stresses on the matter of his belonging to political party and to his religious views, which are in fact, not prohibited by law.

According to Article 121.2 of the Code of Criminal Procedure of the AR the obligation to consider applications and requests are regulated in such way: “Reasons shall be given for the decision taken on an application or request, together with an assessment of the applicant’s arguments. Applications and requests for any matters connected with the prosecution to be examined thoroughly, fully and objectively under the required legal procedure, and for the violated rights and legal interests of the parties to the criminal proceedings and of other participants in the proceedings to be restored, may not be rejected. “

According to Article 323.5 of the Code of Criminal Procedure of the AR, “the court shall allow applications submitted under Article 323.1 of this Code in the following circumstances
323.5.1. if the purpose of the application is the examination of all circumstances that may be of significance for a thorough, full and objective investigation of all matters connected with the criminal prosecution; 
323.5.2. if information and documents whose evidential value is in dispute were obtained by significantly violating requirements of this Code and other laws of the Azerbaijan Republic.” 
All the applications which were submitted to the court by Mammad Ibrahim’s lawyers, were directly related to the case and should’ve been satisfied. However, court dismissed all of them.

As indicated above, the trial was held in half-closed regime; while the courtroom could fit from 10 to 15 persons, no more than 10 persons were allowed to enter. They were selectively chosen for entering, and that was violating the principle of openness and transparency. Article 127 (V) of the Constitution of the AR provides for the principle of openness and transparency: “In all law courts hearing of legal cases shall be open. It is allowed to have closed hearing of legal cases only if the law court decides that open hearings may result in disclosure of state, professional or commercial secrets, or that it is necessary to keep confidentiality with respect to personal or family life. “ Mammad Ibrahim’s  case does not fall under indicated criteria. 

During Mammad Ibrahim’s trial proceeding, the verdict of “not guilty” should’ve been passed. 
The Article 42.1 of the Code of Criminal Procedure of the AR indicates that: ”An accused person may be declare innocent of the offence and acquitted by the court in the following circumstances:
42.1.3. if there is no link with the offence committed; 

42.1.4. if guilt is not proven”
The analysis of the case concludes that during the trial proceeding, Mammad Ibrahim’s involvement in the crime and his guilt were not proven; both the norms of national and international law towards him were violated

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Baku City Nizami District Court found Fatima Movlamova guilty

Baku City Nizami District Court found Fatima Movlamova guilty

The analysis of violation of the Law during Fatima Movlamova’s

judicial proceedings

Baku City Nizami District Court
Case #3 (007)-28/2019
January 4, 2019
Judge: Babek Qasimov
A person against whom a protocol on an administrative violation was drawn up: Fatima Movlamova.
A person who drew up a protocol on an administrative violation: district police officer of Baku City Nizami District Police Department #24- Ilham Mamedov
Defender: Ismail Abishev 


On December 26, 2018, new charge against imprisoned blogger Mehman Huseynov was brought. He was accused in committing crime under Article 317.2 (threat on application of violence concerning employees of criminal – executive establishments or investigator isolators, and also concerning condemned with a purpose to prevent his correction or from revenge for execution of public duties by him with application of violence not dangerous to life or health) of the Criminal Code of AR. Lieutenant Ali Abdalov testified against M. Huseynov.
M. Huseynov was already convicted on the basis of the complaint lodged by the Head of Baku City Nasimi District Police Department Musa Musayev, in the course of the private prosecution. On March 3, 2017, Baku City Surakhani District Court found blogger guilty in slander and sentenced him to 2 years in prison. M. Huseynov was taken into custody inside court.
On December 26, 2018, M. Huseynov, who is serving his sentence at Prison #14, started dry hunger -strike to protest new charge.  He developed problems with his health very soon, and after 10 days, he started drinking only milk and other watery dairy products.
The peaceful demonstration to support Mehman Huseynov and to demand the release of all political prisoners -was organized near Neftchilar metro station, in Baku. The participants of a peaceful demonstration, in majority, were women, who were holding the portraits of M. Huseynov and other political prisoners. Several minutes after, police officers brutally intervened, and started dispersing demonstrators. Almost everyone was forced into police cars and taken to police department.
According to the detainees, they were ill-treated by the police officers, on the way to the police department, who used physical force against them and insulted them.  At the police department, the protocols on an administrative violations were drawn up against detainees. A protocol on an administrative violation was drawn up towards Fatima Movlamova, in which, it was indicated that she participated in an unauthorized demonstration, and in such way, violated the Law of the AR “On Freedom of Assembly”.
Then, the detainees were brought to Baku City Nizami District Court. Fatima Movlamova was accused in committing administrative violation under Article 513.2 (participation in unauthorized demonstrations, rallies) of the Code on Administrative Violations  of Azerbaijan Republic. Baku City Nizami District Court found Fatima Movlamova guilty and convicted to fine for amount of 300 manat.
Commentary by an expert lawyer:

The court decision is unlawful and groundless.  Freedom of assembly is the constitutional right of citizens of Azerbaijan. As prescribed by Article 49 (1) of the Constitution of AR:  “Everyone has the right for meetings”.
The right to assemble peacefully is an essential condition for the exercise of other human rights such as the freedom of expression. As a true foundation of democracy, the right to assemble is guaranteed by major human rights treaties and by a commitment made by OSCE participating States in 1990, in Copenhagen. Note that only  peaceful assemblies are protected.
In international practice, there are several principles on freedom of assembly: the presumption in favor of holding assemblies, the state’s duty to protect peaceful assembly, legality, proportionality, good administration, and non-discrimination. https://www.osce.org/ru/odihr/24524?download=true
However, Law of AR, “On Freedom of Assembly” not only contradicts the Constitution of AR, but  it also contradicts the European Convention for the Protection of Human Rights and Fundamental Freedoms.
It is the responsibility of the state to put in place adequate mechanisms and procedures to ensure that the freedom of assembly is enjoyed in practice and is not subject to unduly bureaucratic regulation. However, the application procedure, provided by the Law “On Freedom of Assembly” of the AR, for permission on holding rallies, demonstrations, and etc., is very complicated, lengthy  and bureaucratic. 
Any restrictions imposed must have a formal basis in law. The law itself must be compatible with international human rights law, and it must be sufficiently precise to enable an individual to assess whether or not his or her conduct would be in breach of the law, and what the consequences of such breaches would likely be. The  Law “On Freedom of Assembly” of the AR   completely contradicts international norms and standards.  In addition, the law is not written clearly and is contradicting. It is not accessible to the understanding of a general public.
Any restrictions imposed on freedom of assembly must be proportional. The dispersal of assemblies may only be a measure of last resort. Police officers in Azerbaijan use last resort measure to disperse peaceful assemblies: inadequate physical force towards demonstrators, special means, insults. The demonstration in support of Mehman Huseynov was no exception.  Police actions while brutally dispersing this peaceful demonstration was not any different from their actions during other demonstrations.
General public should be aware of what regulatory body is responsible for the decision makings in regards of regulation of the peaceful assemblies, and this should be clearly secured by law. It is not stated clearly in Azerbaijan legislation, what exact regulatory body participates in decision makings on holding assemblies.
In regulating freedom of assembly, the relevant authorities must not discriminate against any individual or group on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.
However, since 2003, all peaceful demonstrations in Azerbaijan, which were held with the aim to criticize the policy of government, were brutally dispersed by the police with application of force. 
Legitimate grounds for restriction on freedom of assembly are prescribed in international law on human rights.
Article 11 (1) of European Convention for the Protection of Human Rights and Fundamental Freedoms  ensures everyone’s right to freedom of assembly. Item 2 of the article 11 of European Convention consists of the list of restrictions, under which this right may be restricted. This list of restrictions is final and clear and may not be interpreted otherwise. The restrictions  are  as following: · if these restrictionsare prescribed by law, · are necessary in a democratic society, · are in the interest of national security or public safety, · for the prevention of disorder or crime, · for the protection of the rights and freedoms of others
According to Article 7 of the Law of AR “On Freedom of Assembly”, no restrictions shall be placed on the exercise of the right to freedom of assembly other than: 1. for protection of public interest and interests of national security;2. for the prevention of public disorder;3. for the prevention of disorders and crimes;4. for the protection of health;5. for the protection of norms of conduct and spirituality;6. for the protections of the rights and freedoms of others.
Article 8 of the Law of AR “On Freedom of Assembly”lists the circumstances, when the assemblies may be prohibited or suspended: – Assemblies accompanied by calls to discrimination, hostility, violence, propagandizing national, racial or religious discord shall be prohibited. – Assemblies propagandizing war shall be prohibited.– Also holding peaceful assembly with political goals shall be prohibited in the cases prescribed by law. Demonstrations must be held in a visual and audible range, to which given demonstration is addressed. The demonstration with a demand to release Mehman Huseynov was held at the location, close-by to a place where Lieutenant Ali Abdalov lives. The participants of the demonstration have not violated public order, did not cause any damage, did not disturb the movement of the cars and people. They had portraits of Mehman Huseynov and other political prisoners in their hands.
Even if the participants of the demonstration did not refer to a regulatory body with a notification of holding the demonstration, the authorities should still protect and facilitate any spontaneous assembly so long as it is peaceful in nature. Besides national legislation and European Convention for the Protection of Human Rights and Fundamental Freedoms, freedom of assembly is also secured by Article 20 (1) of Universal Declaration of Human Rights, which had its 70th anniversary on December 2018, and also Article 21 of  International Covenant on Civil and Political Rights

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The Baku City Sabail District Court chose preventive measure against Abulfaz Sadiqbeyli

The Baku City Sabail District Court chose preventive measure against Abulfaz Sadiqbeyli

The analysis of violation of the law during Abulfaz Sadiqbeyli’s judicial proceedings

Baku City Sabail District Court

Criminal case № 4(009)- 691/2018                                     
November 21, 2018
Judge:
Shahin Abdullayev
Accused: Abulfaz  Sadigbeyli
Defender: Mirismayil  Khadi
Investigator: Osman Mammadov

On November 21, 2018, the Chairman of the Youth organization of Musavat Party Abulfaz Sadiqbeyli was detained on accusation of committing crimes prescribed by Articles 178.2.1 (Swindle, is maintaining another persons property or buying another persons property by a deceit or breach of confidence committed on preliminary arrangement by group of persons), 178.2.4 (Swindle, is maintaining another persons property or buying another persons property by a deceit or breach of confidence committed with causing damage in the significant size) and 320.2 (Use of obviously counterfeit documents) of the Criminal Code of the Azerbaijan Republic.


Abulfaz Sadiqbeyli claims that in 2016 he bought a car “Niva” on a loan through intermediation of Nikoil Bank.

On the same year, he paid half the cost of the car. On January 2017, the Bank’s employees informed him that he still owes 8100 manat to the bank. Later, he was informed, in the bank, that he does not have to pay any penal interest and that his debt is 5100 manat.

After paying off this debt, Bank provided A. Sadiqbeyli with a document certifying the absence of debt and the full closing of the loans.

After 3-4 months he sold this car, and formalized the sale in traffic police. When the Ministry of Internal Affairs discovered the facts of appropriation of money at Nikoil Bank, A. Sadiqbeyli was summoned several times for questioning. He was attracted to the case in capacity of the witness and he was questioned 5 times.

On November 21, 2018, Abulfaz Sadiqbeyli was summoned for interrogation once again, where he was questioned not as a witness, but as a defendant. The accusations under Articles 178.2.1 (Swindle, is maintaining another persons property or buying another persons property by a deceit or breach of confidence committed on preliminary arrangement by group of persons), 178.2.4 (Swindle, is maintaining another persons property or buying another persons property by a deceit or breach of confidence committed with causing damage in the significant size) and 320.2 (Use of obviously counterfeit documents) of the Criminal Code of the Azerbaijan Republic were brought against him.

In the presence of his lawyer, A. Sadiqbeyli presented to the investigation all documents on paying off the debt. It should be indicated that carried out handwriting examination confirmed the authenticity of the signature and stamp on the document -certifying the discharge of a debt- and established its affiliation to the Bank.

However, several hours later, A. Sadiqbeyli was brought to Baku City Sabail District Court for selection of the preventive measure.

Investigator’s application was filed on the basis of the statement of the First Deputy of General Prosecutor of the AR Rustam Usubov.

At the court hearing, A. Sadiqbeyli stated that he did not commit any crime, that he paid off the loan fully, and that he received a document certifying the full discharge of the debt, of which the authenticity was established by the respective examination.

On November 21, 2018, Baku City Sabail District Court decided to choose preventive measure against A. Sadiqbeyli in form of arrest for the period of 3 months.


Commentary by an expert lawyer:

The court decision is unlawful and groundless. According to the Article 28 of Constitution of Azerbaijan Republic,

– I. Everyone has the right for freedom.
– II. Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.

The right to freedom is one of the fundamental rights in a democratic society, enshrined in both national and international law. As prescribed by Article 5 (1) of the European Convention for  Protection of Human Rights and Fundamental Freedoms, 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;

Article 155.2 of the Code of Criminal Procedure of the Azerbaijan Republic regulates the question of the necessity for choosing a restrictive measure and which of them should be applied to the specific suspect or accused. In resolving the question of the necessity for a restrictive measure and which of them to apply to the specific suspect or accused, the preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court shall bear in mind:

155.2.1. the seriousness and nature of the offence with which the suspect or accused is charged and the conditions in which it was committed;

155.2.2. his personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence;

155.2.3. whether he has committed a previous offence, the previous choice of restrictive measure and other significant fact;.

155.2.4. the presence or absence of reconciliation between the suspect or accused and the victim or his legal successor, who is a close relative, compensation for damage caused by the crime, and other significant circumstances.

As grounds, that justify the necessity for application of the preventive measure in form of arrest against A. Sadiqbeyli are indicated in the Court decision:

–        possibility to abscond from the investigation and the court;

–        likelihood of repetition of the crime;

–        illegally influencing parties to the criminal proceedings;

–       obstruction of the normal course of the investigation;

–        the seriousness, nature and public threat of the alleged crimes;

–        the existence of sanctions involving the punishment  for a period of more than 2 years
              

The Court showed as the first ground “the possibility to abscond from the investigation and the court”.  As can be seen from above mentioned Articles, for the arrest, “there should be enough sufficient grounds to suppose” that a person may abscond from the investigation and the court.

No grounds are indicated in given court decision. The decision solely consists of the standard expressions and extracts from the law, and does not differ from any other court decisions on arrest, only the facts of the case and details of detainees are changed.

A. Sadiqbeyli always arrived, when summoned by the investigation body, to testify. Exactly, because of  this reason, this argument is not supported by any serious grounds.

The next argument of the court is “likelihood of repetition of the crime” by the accused. A. Sadiqbeyli never committed a crime before. This argument is also not proved by any facts.

The argument about “illegally influencing parties to the criminal proceedings” does not have any right to exist at all. Even though investigation body brought the accusation under Article 178.2.1 (Swindle, is maintaining another persons property or buying another persons property by a deceit or breach of confidence committed on preliminary arrangement by group of persons) of Criminal Code of Azerbaijan Republic, no one except A. Sadiqbeyli was attract to the investigation.

Another argument related to “obstruction of the normal course of the investigation” also does not have any grounds. A. Sadiqbeyli presented to the investigation all the documents available, helped the investigation in establishing the truth and did not interfere with the normal course of the investigation.

There is no need to speak about “the seriousness, nature and public threat of the alleged crimes”. In its decision, the court speaks about the lesser nature of the charge, but at the same time refers to the seriousness of the crime and the public threat to the society.

Concerning preventive measure, in any case, the court had to consider the question of application of  restrictive measure, other than arrest. Besides, the court had to present the sufficient grounds, reasoning, why in this case, alternative measure cannot be chosen.
In the decision of the Plenum of the Supreme Court of Azerbaijan Republic “About the practice of the application by courts of the jurisdiction when considering the cases about the selection of the measure of restraint such as taking the accused into custody” from November 3, 2009, states that courts, when choosing the preventive measure should not restrict themselves to only formal procedural grounds, prescribed by the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic.

The courts must examine, if there are sufficient grounds related to a particular accused, and if they are proven by case materials. In given case, court did not only ignore laws, but also the direct instructions of the Plenum of the Supreme Court of Azerbaijan.

The above-mentioned Article 5 “The Right to liberty and security” of the European   Convention for the Protection of Human Rights and Fundamental Freedoms in the paragraph 1 speaks about the physical freedom of  person; its aim is to ensure that no one shall be deprived of his liberty. An exhaustive list of the cases established by Article 5, paragraph 1 of the European Convention could not be interpreted more broadly. This list is quite sufficient  and restricted.

“It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with.” (Judgment of the European Court of Human Rights in Scott v. Spain,  from December 18, 1999) – https://www.refworld.org/cases,ECHR,3ae6b68620.html


The arrest of A. Sadiqbeyli is unlawful and groundless, because it violates the norms of the criminal procedural law and by-laws, norms of international agreements and precedents of the European Court of Human Rights, which carry the recommendations of the mandatory nature  for member states of the Council Europe.

A. Sadiqbeyli’s brother Vasif Sadiqbeyli calls this arrest politically motivated. He views this arrest as the punishment for active political role in the opposition party “Musavat”

 

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