Baku City Court on Grave Crimes passed a sentence on 5 defendants on so called case “illegal financing of Azerbaijani Popular Front Party”
Analysis of violation of law during members of Popular Front Party judicial proceedings
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.