THE AZERBAIJANI AUTHORITIES ARREST THE BELIEVERS UNDER THE PRETEXT THAT THEY ARE DRUG ADDICTS
Subhi Aliyev
Analysis of violation of law during Subhi Aliyev’s judicial proceeding Collegium for Criminal Cases of the Baku City of Appeal
Case № 1(103)-1951/2023
19 October 2023
Presiding judge: Qadim Babayev
Judges: Ilqar Murguzov, Anar Tanriverdiyev
Defendant: Sunhi Aliyev
Defender: Fuad Quliyev
With participation of Tural Qahramanov, a Prosecutor from the Protection of State Prosecution in Courts of Appeal Department within the General Prosecutor’s Office of the Azerbaijan Republic
Subhi Aliyev, a 53-year-old believer, was detained on 10 December 2022. He was arrested at a time when the Azerbaijani-Iranian relations had deteriorated and Shia Muslims were being subjected to mass arbitrary arrests in the country. Officially, they were being detained on charges of illegal drug trafficking, but the state propaganda machine portrayed them as “agents of Iran” in the media and on TV channels, accusing them of working for Iran’s intelligence services. But despite these accusations, none of the detainees have been charged with treason or espionage.
Subhi Aliyev also became one of the arrested individuals accused of illegal drug trafficking. He was charged with committing an offence under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed on preliminary arrangement by group of persons or organized group) of the Criminal Code of the Azerbaijan Republic.
According to the investigation, on 10 December 2022, Subhi Aliyev illegally purchased and possessed 9.473 grams of methamphetamine. He was detained by the officers from the Main Department in charge of Combating Organised Crime within the Ministry of Internal Affairs of Azerbaijan in the course of their operational-search activities and brought to the Department.
During the proceedings at the Court of First Instance, the Court reclassified the charge from the Article 234.4.3 to 234.1-1 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic.
Subhi Aliyev, interrogated at the first instance Court, did not plead guilty to the charge and made a disagreeing statement. Subhi Aliyev testified that three unknown people approached him when he left a fitness center on 9 December 2022. They twisted his hands, forcibly put him in a car and brought him to the Department in charge of Combating Organised Crime at the Ministry of Internal Affairs.
While in the car, Subhi Aliyev was beaten with fists and asked what religious group he belonged to. Subhi Aliyev replied that he had not been a member of any religious organisation. Then he was asked about his practice of namaz (prayer) and whether he had ever met Tale Bagirzade (a political prisoner sentenced to 20 years in prison). S. Aliyev answered that he had been practising namaz for a long time, and he had never known or connected to Tale Bagirzade. Nonetheless, he was handed a bag with drugs that he should pretend as his own one. S. Aliyev did not accept it, and as a result he was beaten by the officers of the Department.
He suffered from bruises on his abdomen and a swelling in the area of his ribs due to the brutal beatings. After that, they made a video recording, during which he had been given a bag with drugs. Unable to withstand the torture, Subhi Aliyev admitted it as his own.
Some 2-3 days after his detention in the Department, he was taken to a narcological examination, where he was given a cup of tea. Subhi Aliyev claimed that the tea was spiked with drugs in order to find traces of narcotic drug in his blood. Indeed, a trace of opioids and psychostimulants was detected in his blood following consumption of that tea. He was registered as a drug-dependent individual. Subhi Aliyev testified that he was a religious person, had never used drugs and practised sports. He asked the Court to take into account his statement.
Elvin Hasanov, an operative officer from the Department in charge of combating organised crime at the Ministry of Internal Affairs, questioned at trial as a witness, testified that on 10 December 2022, together with his colleague, he had been informed about illegal drug trafficking in the city of Baku. In order to detain Subhi Aliyev, it was created a task force group that included his colleagues, Tunar Allahverdiyev and Emre Shikhaliyev, as well as him.
On 10 December 2022, Subhi Aliyev was detained and it was conducted a personal examination and seizure of the drugs. According to the video recording, Subhi Aliyev voluntarily provided the bag with drugs. There was no physical or psychological pressure against Subhi Aliyev, he was explained about all his rights and liabilities.
Emre Shikhaliyev and Tunar Allahverdiyev, the operatives from the Department in charge of combating Organised Crime within the Ministry of Internal Affairs, questioned as witnesses in the first instance Court, provided testimony similar to Elvin Hasanov’s.
The conclusion report of the forensic chemical examination dated 10 December 2022, confirmed that the detected drug methamphetamine was a psychotropic drug produced artisanally.
Another conclusion of forensic narcological examination dated 13 December 2022, also confirmed the existence of opioids and psychostimulants in Subhi Aliyev’s blood, which had been identified as his drug addiction.
On 25 July 2023, the Baku Court of Serious Crimes issued a verdict against S. Aliyev: he was found guilty of committing a crime under the Article 234.1-1 of the AR Criminal Code of the Azerbaijan Republic and sentenced him to a 4-year imprisonment term to be served in a general regime correctional institution.
Not accepting the judicial verdict, his defence appealed to the Court. The appeal sought to cancel the verdict of the first instance Court dated 25 July 2023, and render an acquittal verdict .
On 19 October 2023, the Criminal Collegium of the Baku Court of Appeal issued a ruling: to dismiss the defence’s appeal and leave the sentence of the Baku Court of Serious Crimes from 25 July 2023 intact.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
As stated above, in his testimony, Subhi Aliyev described the inhuman treatment he had been subjected to at the Department in charge of combating organised crime within the Ministry of Internal Affairs of the Azerbaijan Republic. As he said, he had experienced both physical and psychological cruelty. The police tried to obtain his “confession”.
The officers interrogated as witnesses in the Court of First Instance rejected the accused’ s words and stated that S. Aliyev had not been beaten by anyone.
It should be noted here that, as a rule, all those who end up in the above-mentioned department face physical or psychological torture. Such evidences have been repeatedly confirmed by the judgments of the European Court of Human Rights, as well as numerous reports of the International Organisations dealing with the problems of torture. However, the National Courts have never carried out a proper and effective investigation of the accused’s testimonies, and not a single law enforcement officer of the Azerbaijan Republic responsible for torture and similar offences has been brought to justice. The practice of the investigative bodies is still not satisfactory.
Subhi Aliyev’s case was no exception either. He described in detail everything that had happened to him at the department. As a result of torture and inhuman treatment, he was forced to accept the possession of drugs.
According to the Article 46 (III) of the Constitution of the Republic of Azerbaijan,
Nobody must be subject to tortures and torment, treatment or punishment humiliating the dignity of human beings.
The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3, also prohibits cruel and inhuman treatment and torture. Also, it is prohibited under the International Covenant on Civil and Political Rights, Article 7.
The evidentiary record in the case is based on the testimonies provided by the officers from the Department in charge of Combating Organised Crime, who had a direct interest in the outcome of that case. There are other evidence in the case concerning an expertise on drugs and defendant’s medical examination.
At the trial of the first instance Court, Subhi Aliyev stated that he had never consumed any drugs, and that the result of the expertise concerning the presence of opioids in his blood was a consequence of the drunk tea. It was quite a serious argument that should have been checked by the Court and a determination should have been made in order to conduct an official investigation concerning an individual in question — who had given the tea containing narcotics to Mr Aliyev. However, the Court accepted the policemen’s words and did not take any initiative to investigate such a serious allegation. The Court took measures in accordance to the investigative bodies.
According to the Article 8 of the Law of the Azerbaijan Republic On Courts and Judges,
Justice is administered in compliance with the principle of ensuring independence of judges without any restrictions, and in a fact based, impartial, just and lawful manner.
The Article 9 of the Law of the Azerbaijan Republic On Courts and Judges states,
Direct or indirect restricting, undue influencing, threatening or interfering with court proceedings or acting in disrespect of the court and explicit disobedience by any person for any reason is inadmissible and shall entails liability provided by the legislation of the Republic of Azerbaijan.
There is reasonable doubts in the defendant’s accusation as the evidentiary grounds of the case has not been proved.
The presumption of innocence is particularly important principle in criminal cases. The Article 21.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that any person suspected of committing an offence shall be found innocent if his guilt is not proven in accordance with this Code and if the court has not delivered a final judgment to that effect.
According tot he Article 21.2 oof the Code of Criminal Procedure of the Azerbaijan Republic,
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 investigating authority did not provide the Court with sufficient evidence to convict the accused. The Article 21.3 of the Code of Criminal Procedure of the Azerbaijan Republic states,
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.
Thus, if the prosecution had failed to provide irrefutable evidence, the Court would have obliged to terminate the criminal prosecution against the accused or issued a verdict of acquittal.
If the Court, pursuant to the Code of Criminal Procedure of the Azerbaijan Republic, Article 350, issues a verdict of acquittal, they must invoke the Article 42 of the Code of Criminal Procedure of the Azerbaijan Republic, in which the grounds for acquittal are enumerated. They are as follows:
- if no criminal act has been committed;
- if the act has no criminal content;
- if there is no link with the offence committed;
- if guilt is not proven.
Moreover, if the Court issues a guilty verdict, as it did in respect to Subhi Aliyev, it must:
- proceed on the basis of the presumption of innocence;
- rely on the results of consideration of the charges in the course of the trial within the rules stipulated by the CPC;
- proceed on the basis of strong and potential evidence examined at the trial;
- interpret the irremovable doubts regarding the guilt of the accused in his favor.
Кроме того, если суд и выносит обвинительный приговор, как в отношении С.Алиева, то он должен:
- исходить из презумпции невиновности;
- основываться на результатах рассмотрения обвинения в ходе судебного разбирательства в пределах правил, предусмотренных УПК;
- основываться на веских и возможных доказательствах, исследованных на судебном следствии;
- истолковать в пользу обвиняемого неустранимые сомнения относительно его виновности.
Also, according to the Article 351.2 of the Code of Criminal Procedure of the Azerbaijan Republic,
A conviction by the court may not be based on assumptions and shall be handed down only where guilt of the accused is proved during the court’s examination of the case.
The Courts have referred to the illegally obtained evidence, although it is strictly prohibited by the Article 125.2 of the Code of Criminal Procedure of the Azerbaijan Republic. In this article written, that
Information, documents and other items shall not be accepted as evidence in a criminal case if they are obtained in the following circumstances:
- if the accuracy of the evidence is or may be affected by the fact that the parties to the criminal proceedings are deprived of their lawful rights, or those rights are restricted, through violation of their constitutional human and civil rights and liberties or other requirements of this Code;
- through the use of violence, threats, deceit, torture or other cruel, inhuman or degrading acts.
We should note once again that the Courts did not pay attention to the serious procedural violations committed by the investigative body conducting the preliminary investigation.
Obtaining a “confession” testimony from a defendant is another important violation. This procedural violation is committed in every second case of arrest, in particular on charges of possession and sale of narcotic drugs.
It contradicts to the Constitution of Azerbaijan, Article 66.
Nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister.
The same provision is set out in the European Convention, Article 6(1). While the text of the Article is not explicitly referred to, but there is ample case law of the European Court of Human Rights, which has referred to this right as the “right to silence”.
Thus, the judgment of the European Court of Justice in the case of Servais v. France from 20 October, 1997, states:
“The Court recalls that the right of any defendant to remain silent and not to testify against himself are recognized as a part of international norms that are the essence of the notion of a fair trial enshrined in the Article 6 of the Convention. Their basis for being aimed, in particular, at protecting an accused against abusive violence on the part of the authorities, which helps to avoid judicial errors and makes it possible to achieve the objective of the Article 6. Notably, the right not to contribute to one’s own prosecution presupposes that, within a criminal case, the prosecution seeks a means of creating its case without having recourse to means of proof obtained by coercion or pressure, contrary to the will of the accused”. – https://hudoc.echr.coe.int/?i=001-58103
Both the Court of First and Appeal instances committed the same violations.
All the above-mentioned violations led to the infringement of the fundamental right of a democratic society – the Right to Freedom guaranteed by the Article 28 of the Constitution of the Azerbaijan Republic, Article 14 of the Code of Criminal Procedure of the Azerbaijan Republic, Article 5 (1) of the European Convention, supported by the numerous precedents of the European Court of Human Rights, which are mandatory for the Council of Europe member stat