Baku Grave Crimes Court pronounced the verdict for Fuad Ahmedli
The Baku Grave Crimes Court
Case no. 1(101)-680/2017
June 16, 2017
Chairman: Fikrat Qaribov
Judges: Rasim Sadiqov, Afghan Hajiyev
Prosecutor: Anar Tarverdiyev
Accused: Fuad Ahmedli
Defender: Asabali Mustayfayev
Complainants: Muhammad Quliyev, Samir Xalilov, Aynur Aliyeva
Fuad Ahmedli – chairman of the Khatai Branch of the Youth Committee of the opposition party Azerbaijan Popular Front Party (APFP). On December 25, 2015 Fuad Ahmedli was detained by police at his workplace. On the same day, at 20.00h, Baku City Khatai District Court
passed the decision to arrest F. Ahmedli for the period of ten days. Article 310.1 (persistent insubordination of legal request of policemen or military man at execution by them of duties on protection of public order) of the Code on Administrative violations of the Azerbaijan Republic
was brought against him. According to Fuad Ahmedli, on December 23, 2015 he wrote the status criticizing authorities at social networks and because of this he is being punished.
On August 18, 2016 Fuad Ahmedli was detained again at his workplace at LLC “Azerfon”, where he worked as operator. At the moment of his arrest, the search inside his apartment has already began. According to investigation, during the search, the books of Fethullah Gulen, cd’s, religious literature, including documents related to communication with persons, referred to as “Servants of Imams” (“Hizmət imamları”) were found.
Defence claims that everything that was seized from F. Ahmedli apartment was placed stealthily by the employees of investigative agency inside his apartment. Fuad Ahmedli was accused in committing of crimes under Article 302 (infringement of the legislation on operative – search activity) and Article 308 (abusing official powers) of the Criminal Code of the Azerbaijan Republic.
The investigation on this case was carried out by Mehti Mirzoyev, the investigator of the Investigation Department on Grave Crimes of the Prosecutor’s Office. After the arrest, State Security Service and General Prosecution Office disseminated their joint statement that F. Ahmedli, who worked as operator at the call centre at mobile LLC “Azerfon”, passed over personal dates and places of location of the certain individuals. On August 18, 2016 Baku City Nasimi District Court ruled on the application of restrictive measure towards F. Ahmedli in form of deprivation from liberty for the period of 4 months.
On January 6 and March 3, 2017 Baku City Nasimi District court has twice extended the period of the restrictive measure, and each time for the period of three months.
Immediately after his arrest, F. Ahmedli was placed to Investigative prison under State Security Service. On March 6, 2017 he was transferred to Baku Detention Centre under the Penitentiary Service of the Ministry of Justice, where he was interrogated for the second time (first time he was interrogated during his arrest).
On April 13, 2017, lawsuit on the case of Fuad Ahmedli began. F. Ahmedli was placed inside the glass cage at the courtroom. Defender claimed that it was only notified of the date of the preparatory meeting one day before. Neither defender, nor accused have received any notification of the date of the meeting.
Judicial Collegiums announced the composition of the court and read out the personal details of the accused, and then appointed the preparatory hearing to April 25, 2017. During the meeting, defender applied to the court with two motions, one of which was to terminate the criminal case; and second one on the change of the restrictive measure and application of the restrictive measure other than arrest. The court declined both motions. During the investigation in court, Attorney applied with the motion on carrying out video and audio recordings, on vindication of additional proofs and interrogation of additional witnesses, including chief executive of LLC “Azerfon” Kent Macknelli. All motions were declined.
During investigation in court, Attorney stated that the complainants to the case, appeared and became acknowledged only from April 2017, which means that during the period of 8 months, while investigation was carried out, there were no complainants. Complainant Muhammed Quliyev stated that he is not acquainted with accused and he does not have any pretension or complaints against him. M. Quliyev was wanted in the case of fraud. Complainant Samir Xalilov also referred to the court orally and in writing with the request to be removed from the list of complainants, since he did not bear any loss and does not have any complaints and pretension against F. Ahmedli. Both complainants stated that they became aware of that they were attracted to the case of F. Ahmedli as complainants, only after they were called to investigative agencies.
Complainant Aynur Aliyeva, currently residing in Turkey, was not questioned at the court. Her testimony was read out by presiding judge. Defnder complained about this, and asked the court to exclude testimony of A. Aliyeva from the list of proofs reasoning that neither defence nor prosecution was able to question her, and that violates adversarial principle.
At the meeting on June 6, 2017, the defender applied with a request that the request to Azerfon LLC about whether F.Akhmadli fulfilled the powers having legal consequences was sent.
Fuad Ahmedli did not plead guilty to the facing charges. He called his arrest to be politically motivated, since he is one of the prominent activists of the opposition party, he always openly expresses his civic position and sharply criticizes the policy of the government.
Prosecutor addressed to the court with the speech and asked from court to find Fuad Ahmedli guilty to the charges, and to sentence him to 7 years in prison. Defender denied all accusations, and called arrest to be politically motivated, and the criminal case – completely falsified.
On June 16, 2017, Baku Grave Crimes Court re-qualified Article 308.2 (abusing official powers, which entailed heavy consequences) to Article 308.1 (abusing official powers without aggravating circumstances) of the Criminal Code of Azerbaijan Republic and sentenced Fuad Ahmedli to 4 years in prison.
Commentary by an expert lawyer:
The court ruling is unlawful and groundless. The court restricted itself only to re-qualifying Article 308.2 to Article 308.1 of the Criminal Code of Azerbaijan Republic. According to verdicts, by using his official powers, Fuad Ahmedli, gathered secretly personal data of several clients using the technical means, and passed them over to unauthorised persons – outsiders. In such way, Fuad Ahmedli carried out unlawful operative search activities causing essential harm to rights of three citizens.
For example, assuming, that Fuad Ahmedli passed over the telephone numbers of several clients to unauthorized persons, by using his official position, this fact is still not enough to incriminate Articles 302.2 and 308.2 of the Criminal Code of Azerbaijan Republic against him.
In order to bring to account under above mentioned Articles of the Criminal Code, the following actions of Fuad Ahmedli should’ve been detected:
• conducting illegal operatively-search activities;
• obtaining confidential personal data of the victims;
• gathering of the confidential data by using technical means, asgd to receive information in latent form;
• passing over these datas to unauthorized persons and violation of the rights and interests of the victims, causing essential harm to victims.
• The subject must be an official.
In this connection, it is important to highlight that Fuad Ahmedli’s activity, by no means, should be viewed as operative-search activity, since the service of rendering information to the clients was included in his duties. He did not have any need to illegally use any kind of technology to pass data over to the clients. On daily and hourly basis operators have gathered information and forwarded it to the necessary addressees. This service is included to all operators’ duties. Based on the logic of investigation, all operators should’ve been brought to criminal accountability. Fuad Ahmedli actions do not fall under the nature of operative-search activity.
According to Article 5.3 of the Law on “Personal Data”, publicly available personal data refers to the personal data of “data subject”, depersonalised in the established order, the data that was made publicly available by individual concerned, or was entered on his or her given consent to the information system created for public use. The last name, name, and patronymic name refers to permanently open data. Securing the confidentiality of personal data which is publicly available is not required.” From the materials of the criminal case, it is evident that Azerfon LLC makes contracts with its client; clients provide personal data to the organization, and in such way, they give their consent to use these datas.
According to Article 38.2 of the Law on “Receiving information”, personal information is the aggregate of datas related on personal and family life. Restrictions on obtaining information are specified in the article itself. Name, last name, patronymic name and also address of person is not included to the list. There were no proofs in the criminal case that the data that Fuad Ahmedli was passing over, was confidential. Thus, one cannot be held criminal liable for transferring their information.
In this connection, it should be indicated that even if the case of data transfer occurred, it would‘ve lead to the application of disciplinary measures by LLC Azerfon towards the violator. Interrogated in the capacity of the witness, the responsible person of the company – Shain Efendiyev, gave the evidence that such cases have occurred on repeated occasions and the violators were subjected to disciplinary measures. This fact once again proves that there is no components of the crime in Fuad Ahmedli actions.
Highly important element is related to the application of the technical means, which were, as if, used to obtain personal details. F. Ahmedli used equipment (computers), which is used as well by other operators. This equipment is especially designed to store information. It is not designed for searching purposes. The court, without having any evidences, or grounds acknowledged equipment (computers), that was used by dozens of operators, as the equipment, designed to search information.
Attorney told to the court about the violation of Article 6 (2) of the European Convention on protection of human rights and fundamental freedoms, which states that;” Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” On August 19, 2016 State Security Service and General’s Prosecutor’s Office disseminated the statement relying on the official version of investigation, where F. Ahmedli name was mentioned, and where he was accused in committing the crime.
In such way, the Presumption of Innocence was violated in accordance with the Article 23 of the Constitution of the Republic of Azerbaijan and Article 21 of the Code of Criminal Procedure of the Azerbaijan Republic.
In decision of European Court of Human Rights (ECHR) on the case of Fatullayev v. Azerbaijan from April 22, 2010 was recognized the violation of the Article 6 (2) of the European Convention on protection of human rights and fundamental freedoms. This is what indicated in item 159 of the decision of ECHR: “ The Court reiterates that Article 6 § 2, in its relevant aspect, is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings. The presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1 (see Allenet de Ribemont, §35).
It not only prohibits the premature expression by the tribunal itself of the opinion that the person “charged with a criminal offence” is guilty before he has been so proved according to law (see Minelli v. Switzerland, 25 March 1983, § 38, Series A no. 62), but also covers statements made by other public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge the assessment of the facts by the competent judicial authority (see Allenet de Ribemont, cited above, § 41, and Daktaras v. Lithuania, no. 42095/98, §§ 41-43, ECHR 2000-X). The Court stresses that Article 6 § 2 cannot prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected (see Allenet de Ribemont, cited above, § 38).
And the last thing to mention is whether F. Ahmedli was an official, since he was charged under article 308.2 of the Criminal Code of Azerbaijan Republic and under this article subject must be an official.
The objective aspect of abusing official powers is characterized by a set of essential factors:
• contrary to interests of service, use by the official service powers from self-interest and other personal interests;
• causing essential harm to rights and legitimate interests of citizens or organisations or protected by law interests of a society or state;
• causal conjunction between act and consequence.
In the criminal case there is no evidence confirming that F. Ahmedli was an official.
Evidently, from the analysis of the criminal case, F. Ahmedli is not the subject of the articles, that were incriminated against him; court of first instance, issued unlawful and groundless verdict, and violated several norms of national and international law, including precedents of European Court on Human Rights