Azad Hasanov was released in a courtroom

Azad Hasanov was released in a courtroom

Analysis of violation of law during Azad Hasanov’s judicial proceedings


Baku City Court on Grave Crimes

Criminal case: №1(101)-387/2019

August 05, 2019

Presiding judge:Irada Hasanzadа

Judges: Azar Pashayev, Ahmad Quliyev

Defendant:  Azad Hasanov

Defender: Osman Kazimov

Public Prosecutor: Fariz Rzayev

A member of opposition Party Musavat, Azad Hasanov, was detained by five people in civilian clothes, forced into a car, and taken into unknown location on 11 October 2018. In the year 2014, Azad Hasanov got a political refugee status in Lithuania where he had been living with his family at that time.  A day before his arrest, A. Hasanov arrived to Baku to visit his seriously ill father who was suffering from cancer.
His relatives called the 102 police service 6 hours later after Azad Hasanov’s disappearance. Hasanov’s brother reported to the police that Azad was kidnapped by unknown people and driven to undisclosed location.
On 12 October 2018, it became known that criminal charges against Azad Hasanov were initiated under the Article 234.4.3 of the Criminal Code of  Azerbaijan Republic (illegal acquisition or possession for the purpose of sale, manufacturing, processing, transportation, transfer or sale of narcotic drugs or psychotropic substances on a large scale).
The Khatai District Court of Baku issued a decision to remand Hasanov in custody from the 12 October 2018. According to the lawyer, Osman Kazimov, that information was provided by the Khatai District Police Department. The criminal case was proceeded at the Baku Police Headquarter. Azad Hasanov was transferred from the Khatai District Police Department to the Detention Pre-trial Center #1 of the city of Baku.
At the end of pre-trial investigation the case has been brought to the Baku Court of Serious Crimes. On 11 February 2019 there was a preliminary hearing. During the hearing, the lawyer requested the court to change the preventive measure from the Detention Pre-trial Centre to a house arrest. However, a prosecutor objected that request and the court also rejected it. At the trial Azad Hasanov denied accusation of using drugs, assuring the court that he had never used an illegal substance and told about psychological pressure on him during the preliminary investigation. Hasanov assumed that he had been arrested because of his political activities in opposition party that he had been continuing to perform being in asylum. He also confirmed that the policemen had asked him only about his political activities in opposition at the time he was arrested. “They asked me the same question several times: how could you come to Baku?”, said Hasanov. At the moment of detention he did not know that he would be accused of illegal possession and distribution of drugs. According to his older brother’s statement, Azad was searched for at his last place of work as soon as he arrived to Baku. Azad also said that he had never seen any drugs and he hadn’t ever been a smoker.
Azad Hasanov added that while he was held at the Police Headquarter he used the washroom. If he had had drugs, he would have been able to throw them there. Who would keep drugs in his pocket at the police? “Fifteen minutes prior my arrest my brother told me over the phone that I had been in search. That conversation is still on my phone. The court could extract that record and then, absurdity of accusation would be proved in a matter of 5 minutes. But I am under the arrest for several months and can’t ask anyone to do it,” said Hasanov.
Moreover, he explained that when he was brought to the Baku Police Headquarter he had been handcuffed. He was forced to keep his head low and asked to sign confession of guilt, and if refused to do it, he would be accused of committing more serious offence. Have analyzed the situation, Azad Hasanov thought that if he signed it, he then would be able to avoid criminal investigation and would be charged with administrative seizure, so he signed a confession of guilt.
Azad Hasanov stated that he hadn’t been allowed to inform his family about arrest and invite chosen by him defender either in the Baku Police Headquarter or in the Khatai Police District Department, or the Khatai District Court. The lawyer appointed by the State and participated in the trial did not pronounce a word in his defence while it was chosen the constraint measure, e.g. a defender was irresponsibly carrying out his duty. After the trial, at which the constraint measure has been chosen, Azad Hasanov was sent to the Detention Pre-trial Center #1, where he was able to meet with his lawyer Osman Kazimov.  He was able to contact his family only in 3 months after the arrest.
At the trial, interrogated as a witness officer, the commander of an operational group of the Baku Police Headquarter, Elvin Kazimov, in his turn stated that he received an information about illegal drug trafficking in the afternoon on 11 October 2018. An operational group was immediately created. When Hasanov’s lawyer asked the question about witnesses at the moment of accused’s arrest, E. Kazimov responded that they hadn’t had any opportunity and been unable to find any.
On the second lawyer’s question why Hasanov’s family hadn’t been informed about his detention, E. Kazimov replied that the detainee hadn’t wanted it to be done.
E. Kazimov also confirmed that Azad’s house had not been searched, whereas in such circumstances that procedure should be done at the address of the accused.
The trial of Azad Hasanov began in the Baku Serious Crimes Court in May 2019. In the course of the trial the lawyer of A. Hasanov filed a request demanding the court to send inquiry to the Baku Police Headquarter about the time of Azad Hasanov’s registration in the Police Department. A. Hasanov insisted that during his interrogation at the Baku Police Headquarter there were no witnesses and as a result nobody signed the interrogation protocol. No response to the request was received for two months, and the trial was postponed four times.
On 22 July 2019, during the trial the judge again recalled that the answer on the request had not been provided. Then, the lawyer applied for termination of the criminal case proceedings against Azad Hasanov on the ground of the process artificial delay and refusal of the Baku Police Headquarter to provide respond to the inquiry, which speaks about the innocence of A. Hasanov and manipulation of the facts. The Judicial Committee adjourned to a meeting and the trial was postponed until the 29 July.
The very same day, July 22, Azad Hasanov declared a hunger strike against the trial artificial delay, which had been continued for 10 days. On the 29 July 2019, the trial proceedings were again delayed until the 05 August 2019. On August 05, 2019, a judge Irada Hasanzade announced the completion of the judicial investigation and invited the defence and prosecution to begin deliberation.
The State prosecutor in the course of his speech asked the court to re-qualify the Article 234.4.3 to the Article 234.1 (illegal purchase or storage without a purpose of selling of narcotics or psychotropic substances in a quantity (amount) exceeding necessary for personal consumption) of the Criminal Code of the Azerbaijan. Here, it should be noted that the conducted expertise showed that Azad Hasanov has not used any drugs.The State prosecutor asked the court to find Hasanov guilty of committing a crime under the Article 234.1 of the of the Criminal Code of the Azerbaijan and sentence him to 1 year and 6 months of imprisonment.
A. Hasanov’s lawyer paid attention of the court to the mistakes of the investigation, the political motive of the detention and asked the court to pass an acquittal verdict.
Azad Hasanov said in his last word that he did not plead himself guilty, and his arrest was due to his political activity in the opposition.
On 05 August 2019, the Baku Court of  Grave  Crimes re-qualified the Article 234.4.3 to the Article 234.1 of the Criminal Code of the Azerbaijan, and found Azad Hasanov guilty of committing a crime under the Article 234.1 of the of the Criminal Code of the Azerbaijan and sentenced him to imprisonment for a year. Applying the Article 70 of the Criminal Code of the Azerbaijan, the court rendered a decision to grant parole with a probationary period of 6 months. Azad Hasanov was released in the courtroom.
Commentary by expert lawyer:
The court verdict is illegal and unjustified. The Constitution of the Azerbaijan Republic guarantees everyone his rights and freedoms.


The investigative body has committed a number of procedural violations. One of the most serious violations was the violation of the right to defence. Azad Hasanov was actually deprived of his defence during the detention, indictment and preventive measures. According to the Article 91.4 of the Criminal Procedure Code of the Azerbaijan Republic, the investigator, prosecutor or court shall guarantee the rights of the accused, shall not prevent him from exercising his right of defence by all lawful means and methods and, if he so requests, shall allow him sufficient time for the preparation of his defence.
The Article 85.2 of the Criminal Procedure Code of the Azerbaijan Republic defines the duties of an investigator. According to the Article 85.2.2 investigator shall to inform the suspect from the moment of detention and the accused from the time when he is charged or arrested about their rights, and to explain the reasons for detention, charges or detention on remand, as the case may be. . According to the Article 85.2.3 investigator shall to guarantee the right to the assistance of defence counsel from the moment of detention, charge or arrest (in accordance with the provisions of Articles 153.2.5. – 153.2.8 of this Code).
As mentioned above, Azad Hasanov did not understand at the time of his arrest what he was accused of, all the police questions were aimed on his arrival from Lithuania only, and he was informed of the charges just some hours later, while being at the Baku Police Headquarter.
According to the paragraph 1 of the Resolution No. 1 of the Plenum of the Supreme Court of the Azerbaijan Republic “On Judicial Activities in the Field of Protection of Human Rights and Freedoms during the Course of Justice” of 10 March 2000, the awareness of the courts should be drawn to their obligation to implement the provisions of the Constitution of the Azerbaijan Republic, which declared the primary goal to ensure the rights and freedoms of the man and citizen, as well as the stipulations of their international agreements, to which the State has adhered.
Paragraph 2 of the above mentioned Resolution states, “It is to be taken into account that according to the Article 151 of the Constitution of the Azerbaijan Republic “In case of contradiction between the normative-legal acts included in the system of the legislation of the Azerbaijan Republic (except the Constitution of the Azerbaijan Republic and the acts adopted by referendum) and the international treaties, to which the Azerbaijan Republic is a party, international agreements shall be applied”. Therefore, the courts (judges) in their decision-making must directly refer to the international agreements, to which the Azerbaijan Republic has adhered.
The right to defence is guaranteed by the Article 61 of the Constitution of the Azerbaijan Republic:
I. Everyone has the right for obtaining qualified legal advice.
II. In specific cases envisaged by legislation legal advice shall be rendered free, at the governmental expense.
III. Every citizen has the right for the lawyer’s advice from the moment of detention, arrest or accusation with crime by competent state bodies.
The Convention for the Protection of Human Rights and Fundamental Freedoms states in the Article 6:
3. Anyone accused of a criminal offence has at least the following rights:
(c) To defend themselves personally or through the assistance of legal representative of his/ her choice or, if he or she lacks the funds to pay for legal representatives, to have the services of legal aid assigned to him or her free of charge when it requires the cause of justice.
The disregard for the right to defence leads to the denial of everyone’s right to justice, which, particularly in criminal cases, must be, above all, equitable. The effectiveness of the implementation of the right to defence has been highlighted in the epigraph, given the leading role exercised by the right to a fair trial, from which the right to defence is derived in a democratic society.
Thus, the Article 6 in the paragraph 3 section C of the European Convention contains three aspects: first, it stipulates the right of the individual to be adequately defended in person; second, the defence can be provided by a lawyer; third, it requires the State to provide free legal assistance in certain cases. The investigation claims that a lawyer was appointed to defend A. Hasanov at the expense of the State. However, the appointed lawyer does not mean that the right to defence is ensured in its entirety. In this regard, the European Court of Human Rights (ECHR) Judgment of April 21, 1998 on “Daoud v. Portugal” states: “The Court points out that the purpose of the Convention is to guarantee not theoretical or illusory rights but their practical and effective implementation, and that the appointed lawyer does not ensure the effectiveness of the assistance that can be provided to the accused”. (paragraph 38 of the ECHR judgement).
As it was mentioned above, Azad Hasanov was forced to testify against himself during the investigation. This is prohibited by the Article 66 of the Constitution of the Azerbaijan Republic: “Nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister. Complete list of relations against whom testifying is not obligatory is specified by law”.
According to the Article 15.2.3 of the Criminal Procedure Code of the Azerbaijan Republic, during the criminal prosecution it is prohibited “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”.
The Article 20 of the Criminal Procedure Code of the Azerbaijan Republic states:
“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.”

In the case of Azad Hasanov, the evidence he was forced provide in the course of the investigation was used against him in court.
There is also a right to silence under the Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Although the right to remain silent is not specified in the text of this article, this article presumes this right.
The right to silence is also enshrined in the precedents of the European Court of Human Rights (ECHR). Thus, the ECHR judgement of “Averill v. the United Kingdom from the 12 of June 2000” stated: “The Court finds that the possibilities to draw unfavourable conclusions from the defendant’s refusal to answer the Police questions should be limited. If, in most cases, an innocent person is to be expected to cooperate with the Police and explain that he or she has not been involved in any alleged offence, the person may, for the purposes of this case, have reasons not to do so. In particular, an innocent person may choose to remain silent until he or she has the opportunity to consult a lawyer.” HYPERLINK “#{“itemid”:[“001-58836″]}”{“itemid”:[“001-58836”]}
The right to silence with regard to Azad Hasanov was violated.
In Hasanov’s case investigation failed to provide evidence of his guilt and involvement in the found drugs. The testimonies of the staff of the Baku Police Headquarter were considered as evidence. In turn, the court did not take into account the procedural violations against A. Hasanov, leaving a number of doubts in his guilt, which were not interpreted in favour of the accused, as required by law.
The court had no legal grounds for the conviction of Azad Hasanov. According to the Article 351.2 of the Criminal Procedure Code of the Azerbaijan Republic, the conviction of the court may not be based on suppositions and shall be pronounced only if the accused’s guilt was proven during the trial. According to the Article 346.1 of the Criminal Procedure Code of the Azerbaijan Republic, the Judicial Committee should have reviewed the following issues in this sequence:
346.1.1. whether the criminal act is proved;

346.1.2. whether it is proved that the act committed by the accused has a criminal

346.1.3. whether it is proved that the accused was connected with the commission of the

346.1.4. whether the accused is proved guilty of committing the offence;

346.1.5. whether the act committed by the accused corresponds to the ingredients of the
offence with which the accused is charged under the relevant provision of criminal law;

346.1.6. whether there are circumstances that preclude the act being an offence;

346.1.7. whether there are circumstances aggravating or mitigating the criminal
responsibility of the accused;

346.1.8. whether there are grounds for exonerating the accused from criminal

346.1.9. whether the accused should be punished for the act committed;

346.1.10. whether there are grounds for punishing the accused for reoffending;

346.1.11. which punishment to impose on the accused (including consideration of
previous offences, the total number of offences, the total length of sentences, the
combination of penalties, calculation of the length of sentences, an alternative penalty,
reduction of sentence, the jurors’ recommendation of a lighter sentence instead of the
statutory penalty provided for in respect of this offence, and the possibility of imposing
a conditional sentence);

346.1.12. whether the accused should serve the sentence;

346.1.13. if the accused is sentenced to deprivation of liberty, to which penal or
corrective institution he should be committed;

346.1.14. whether it is necessary to impose additional penalties on the person found
guilty of the offence, and if so, which penalty;

346.1.15. whether it is possible to apply compulsory corrective training measures to an
under-age accused and, if so, which measures;

346.1.16. whether it is possible to apply compulsory measures of a medical nature to the
accused and, if so, which measures;

346.1.17. in whose interest and for what amount the civil claim should be secured;

346.1.18. whether the attachment of property, either for the purpose of confiscation or
to pay for the damage caused by the offence, should be rescinded;

346.1.19. how to decide the matter of the material evidence;

346.1.20. whether to annul, modify or adopt a restrictive measure (and if so, which
measure), including how to resolve the matter of bail;

346.1.21. whom to charge with the court expenses, and their amount;

346.1.22. when the sentence is to start;

346.1.23. whether there are grounds for giving a special decision; if so, about whom it
will be given and what its content will be.

The court’s verdict of guilty indicates that the court failed to fulfill the obligations listed in the Article 346.1 of the Criminal Code of the Azerbaijan Republic, and as a result Azad Hasanov, whose guilt had not been proven in court, received a sentence of guilty verdict (despite the recharacterization of the Article and a punishment in the form of parole)