Baku Grave Court “resolved ambiguities” in a sentence on the so-called case of “Nardaran-3”
Analysis of violation of law during second “Nardaran-3” judicial proceedings
The Baku Grave Crimes Court
Criminal case no.1 (101)-427/2017
December 22, 2017
Chairman: Zeynal Agayev
Judges: Azad Medjidov, Sabukhi Huseynov
Court clerk: Muhammed Kazimov
Judgments against the accused: Zulfuqar Mikayilov, Elman Agayev, Elkhan Hasanov
On November 26, 2015 police operation was held in the settlement of Nardaran. The police armed with automatic weapons, entered the settlement and opened heavy fire. As a result, 6 people were killed, including two police officers. Dozens of citizens were arrested. The Ministry of Internal Affairs (MIA) and the Prosecutor General’s Office issued a joint statement explaining the use of firearms against villagers as an operation necessary to neutralize a criminal armed group that functioned under a religious cover and planned mass riots, terrorist acts and destabilization of the socio-political situation in the country.
People in detention under the Nardaran case are divided into 4 groups: the first group Nardaran 1, which included the chairman of the movement Muslim Unity Taleh Baghirov and 17 other people, who were sentenced to long terms of imprisonment on July 20, 2017; the second group Nardaran 2, which included the chairman of the Board of the Muslim Unity movement Elchin Gasimov and 11 others, who were sentenced to long terms of imprisonment on December 28, 2017; the third group Nardaran 3, which included a scholar-theologian Zulfuqar Mikayilov and 11 people, sentence was passed on December 6, 2017. It should be noted that the trial of the fourth Nardaran 4 group is still ongoing in the Baku Grave Crimes Court (accused under the case are Elkhan Isgandarov and Abulfaz Bunyadov).
The trial of the group “Nardaran-3” lasted from January 17, 2017 to December 6, 2017. Among the accused are a theological scholar Zulfuqar Mikayilov and 11 others. According to the indictment, since 2015 the accused, in particular Zulfuqar Mikayilov, as part of the unregistered organization Muslim Unity under the leadership of Taleh Baghirov (accused in the Nardaran 1), committed acts aimed at forcible change of the state system, an attempt to create a religious state managed by Shariah, made public calls for terrorism and mass riots, as well as committed other serious crimes.
On December 6, 2017, the Baku Grave Crimes Court sentenced 12 defendants under so called case “Nardaran 3.” According to the verdict, accused Zulfuqar Mikayilov was sentenced to 17 years of imprisonment with serving his sentence in a tight institution.
Accused Elman Agayev was sentenced to 13 years of imprisonment with serving a sentence in a tight institution.
Accused Elkhan Hasanov was sentenced to 12 years and 3 months of imprisonment with serving a sentence in a tight institution.
The others 8 defendants was sentenced to various periods of imprisonment. Inaccuracies were not found in a sentence in this part. However in the text of sentence concerning Zulfuqar Mikayilov, Elman Agayev and Elkhan Hasanov the court “was allowed inaccurate” which “corrected” on trial on December 22, 2017.
On December 22, 2017 the Baku Grave Court ordered on eliminating ambiguities in a sentence from December 6, 2017. In the decree states that in sentence should be corrected as follows
resolution it is specified that in a sentence the following has to be corrected:
• concerning Elman Agayev: replaced words “previous convictions” by “not previously sentenced”;
• concerning Zulfuqar Mikayilov: should be replace the phrase “Given that Z. Mikayilov was a first offender a particularly serious crime and was sentenced to imprisonment, to be served in a strict regime” to replace “Because in Z. Mikayilov’s actions there is particularly dangerous recidivist, he must be to serve sentence in a strict regime”.
• concerning Elkhan Hasanov: replace the phrase “Has been convicted of a crime under article 8,214.2.1. of the Criminal Code of the Azerbaijan Republic” to replace “Has been convicted of a crime under article 28,214.2.1. of the Criminal Code of the Azerbaijan Republic”.
Commentary by an expert lawyer:
That court order is illegal and unreasonable. A court declared that “after conviction copies of which increased and sent to the parties. It was later proved that several technical mistakes had been made in a sentence, which were resolved”. The court reasoned its judgment by article 518 of the Criminal Procedure Code of the Azerbaijan Republic (CCP of AR).
According to this articles:
518.0. The court which decided sentence or other final judicial decision are entitled on convicted prisoner’s application, based on agency or body carrying out punishment, and also shall have the right on own initiative to resolve following doubts and inaccuracies, occurred in terms of the sentence or other final judgment:
518.0.2. to determine a type of detention for juvenile offenders or reform institutions where are served sentences of deprivation of liberty, if it isn’t determined by a sentence;
518.0.4. to clarify other ambiguities of the sentence or other final decision.
The section CCR of AR which includes this article is called “Joinder in execution of the sentences or other final judgments”. It should be noted that enforcement of sentence starts after its entry into force.
According to article 6 of the Punishments Execution Code of the Azerbaijan Republic, the basis of penal corrections and applications to convicts of other criminal-law arrangements are court verdict, or court order for changing the sentences which had come into legal force and also amnesty or pardon. Court’s sentence of December 6, 2017 do not yet have the force of law of December 22, criminal case was being investigated by the Baku Court of Appeal.
This order was made on December 22, 2017, i.e. 15 days later after following sentence. On December 22 since 20-days had not yet expired deadline for appeal of sentence. It would be not time for enforcement of senesces on December 22 still.
At the same time the court cited article, which procedure of the execution of the sentence. This reference is absolutely unreasonable.
There was not any norms in the law which allows the court commute the sentence of court of first sentence.
According to article 352.6 CCR of AR, corrections to sentence shall be and signed by all the judges voted in favor in the jury room before declaration of verdict.
This requirement also was stated in order of the Plenum of the Azerbaijan Supreme Court “On juridical verdict” No. 4 on December 27, 1996. These issues include: whether there are aggravating and extenuating circumstances (article 346.1.7 CCR of AR); whether there are grounds for reducing the punishment for repeat offender (article 346.1.10 CCP of AR); what punishment is to be given to defendant (including recidivism, multiple offences, cumulative of sentences, accumulation of punishment, calculation time of penalties, change of punishment with the possibility of applying suspended sentences) (article 346.1.11 CCP of AR); which penal institution or reform institution should be determined defendant appointing to him punishments of prison sentence (article 346.1.13 CCP of AR).
The presiding shall adjudicate all questions for discussion of judges in the order cited in article 346.1. CCP of AR. Thus, in the jury room should have been resolved questions – whether it in Z. Mikayilov’s actions recidivism or not, type of recurrence and institution, where he has to serve sentence a punishment for the repeat offender.
Speaking at trial on September 18, 2017 in the Baku Grave Crime Court the prosecutor requested Z.Mikayilov a penalty of 18 years of imprisonment with serving sentence in strict regime prison. This prosecutor’s claim was completely transferred to the court verdict. In Azerbaijan courts with political motives usually agree with the prosecution. That’s why changes made are unreasonable and illegal.
Because if was being amended:
1. they are not to change essence of sentence;
2. position of defendant shouldn’t be aggravated;
3. it must be made in jury room before sentence.
The illegal and unreasonable decision by the court demonstrated biased approach against Zulfuqar Mikayilov.