Baku Grave Crimes Court sentenced Orhan Bakhyshly to 6 years in prison
The analysis of violation of the law during Orhan Bakhyshly’s judicial proceedings
The Baku Grave Crimes Court
Criminal case № 1(101)-820/2018
September 18, 2018
Chairman: Mahmud Agalarov
Judges: Eldar Mikayilov, Alovsat Abbasov
Prosecutor: Jeyhun Budagov
Accused: Orhan Bakhyshly
Defender: Elchin Sadigov
Orhan Bakhyshly is a member of the Youth Committee of the Popular Front Party of Azerbaijan (PFPA) and Vice-Chairman of Khatai branch of Youth Committee of PFPA. The chairman of the Khatai branch of the Youth Committee Fuad Ahmedli is currently a political prisoner. (FuadAhmedli was arrested on December 25, 2015. On June 16, 2017, Baku Grave Crimes Court sentenced Fuad Ahmedli to 4 years of imprisonment). Orhan Bakhyshly was politically and publicly active. He often and sharply criticised the policy of the authorities, both at various events and in social networks. He was also responsible for the organisation of various actions of PFPA.
On March 31, 2018, on the eve of the rally organised by the National Council of Democratic Forces, several members of PFPA were brought to administrative responsibility: Abdullah Mahmudov for 30 days (March 26, 2018), Ayaz Qasimov for 15 days (March 29, 2018) and Orhan Bakhyshly for 30 days (March 27, 2018). All the detainees were accused with an offence in accordance with the article 535.1. (insubordination to legal demands of police) of the Code of Administrative Offences of the Azerbaijan Republic. Organisers of the rally, young activists were arrested on the eve of the rally on March 31.
On May 7, 2018, O. Bakhyshly was again detained by unknown men in civil clothes in the park close by Elmar Akademiyasi metro station and he was brought to the Baku City Yasamal District Police Department. This time the criminal case against Orhan Bakhyshly was opened under the article 234.4.3 (manufacturing, purchase, storage, transfer, transportation or selling drug with a view of illegal manufacturing and processing of narcotics or psychotropic substances in large amount) of the Criminal Code of Azerbaijan Republic.
On May 9, 2018 Baku city Yasamal District Court chose preventive measure against O. Bakhyshly in form of arrest for the period of 4 months.
On August 14, 2018, the trial on case of O. Bakhyshly started. The trial took place at Baku City court on Grave Crimes.
Despite the fact that the trial was open to public and that there were a lot of people who were wiling to support Bakhyshly (party friends, family members, public and political activists, journalists), no one was allowed to the preliminary meeting. The trial officers did not even allow his mother to enter the courtroom. During the preliminary meeting the lawyer submitted several applications: to dismiss the criminal case against O. Bakhyshly; to change the preventive measure to house arrest; to invite additional witnesses for questioning; to release the defendant from the iron cage, whereat he was kept inside the courtroom and to let him sit near his lawyer. All of the applications were rejected by the court.
The lawyer submitted the documents to court evidencing that the witnesses who were attracted to the case, had criminal records and had participated in capacity of witness in the number of drug related cases (in this particular case, the lawyer indicated that the witnesses cooperate with law enforcement authorities who attract them to such cases, and they testify in accordance with law enforcement authorities).
During the investigation, Orhan Bakhyshly pleaded not guilty, and stated that his arrest is political order, because of his political and social activities. After indictment reading, he protested and refused to testify; he turned his back to panel of judges. Then the court heard the testimony of witnesses, who were police officers, testifying against O. Bakhyshly.
All trial proceedings were held semi-closed; journalists, public and political activists were not allowed to enter the courtroom.
On September 7, 2018 two police officers – Naib Omarov and Nasimi Ismayilov were questioned at the trial. During questioning, the defence established that Naib Omarov detained another “prisoner of conscience” Bayram Mamedov in 2016. On May 10, 2016, Bayram Mammadov together with his friend Qiyas Ibrahim drew graffiti on the monument of former President Heydar Aliyev. They wrote in Azerbaijan language “Qul bayramınız mübarək” (“Happy Slave Day”). They were detained on the same day under charge of selling drugs in large scale and each of them were sentenced to 10 years in prison. Witnesses stated that there was not any information about the identity of O. Bakhyshly in the operative data. In response, lawyer indicated that there was information on the identity of Bakhyshly in case materials, and operation was carried out without decision of court or investigative body.
Then, witnesses Mahir Iskandarov and Nijat Narimanov gave their testimonies. During the questioning, the defence stated that on October 31, 2013 Nijat Narimanov was convicted by Baku City Khatai District Court for drug use and that he was released in 2015 in connection with the pardon decree.
On September 13, 2017, the judicial investigation on Bakhyshly case ended. The Public Prosecutor read the indictment and asked court to find O. Bakhyshly guilty and sentence him to 7 years in prison. On September 18, 2018, the defence made his speech at the court. In his speech, defence asked the court acquit his client.
The trial ended with the last words of Orhan Bakhyshly. He said that the criminal case against him is totally falsified.
Bakhyshly said that he is happy to be on the same dock, where his party colleagues, well-known journalists and bloggers were at, for their sharp criticism towards the government. He stated that he had to decide between his girlfriend and his political activities, and he chose the latter. He expressed that his choice was rightful, and that he will never refuse from it, and that he is willing to sacrifice not only his freedom, but also his life for the sake of freedom and democracy.
The panel board left to the retiring room. During announcement of the verdict O. Bakhyshly was handcuffed. On September 18, 2017, Baku Court on Grave Crimes found O. Bakhyshly guilty and sentenced him to 6 years in prison.
Commentary by an expert lawyer:
The court decision is unlawful and groundless. According to article 349.3 of the Code of Criminal Procedure of the Azerbaijan Republic, the court judgment shall be lawful and well-founded. The court judgment shall be considered lawful in the following cases:
· if the conclusions at which the court arrives are based only on the evidence examined during the court’s investigation of the case (Article 349.5.1 of the Code of Criminal Procedure of the Azerbaijan Republic); · if the facts established by the court are consistent with the evidence investigated (Article 349.5.3 of the Code of Criminal Procedure of the Azerbaijan Republic).
It is necessary to indicate that the court did not examine all of the evidences submitted to the court, did not give a legal assessment and did not eliminate the contradictions between the testimony of the accused and witnesses, did not take the initiative to verify the testimony of the accused. The evidence provided by the investigative body were not sufficient for a conviction.
One of the issues that judges must decide on, in the retiring room, is about the involvement of accused in the trumped up charge that was incriminated against him. According to the police, the heroines packages were found inside the pocket of his jacket. During the preliminary and court investigation Bakhyshly denied any affiliation to the drugs. He stated that the drugs were planted to him by the police. It was not difficult to determine whose fingerprints were on the drug packages; it was only necessary to conduct fingerprint examination. However, neither the investigative body nor the court took any initiative.
The next, and equally important issue is related to the applications filed by the defence. As mentioned above, the defence filed several motions in the case: to dismiss the criminal case against O. Bakhyshly; to change the preventive measure to house arrest; to invite additional witnesses for questioning; to release the defendant from the iron cage, where he was kept inside the courtroom and to let him sit near his lawyer. None of the applications were satisfied. According to article 323 of the Code of Criminal Procedure of the Azerbaijan Republic, the court grants applications in the following cases:
· if the purpose of the application is the examination of all circumstances that may be of significance for a thorough, full and objective investigation of all matters connected with the criminal prosecution (Article 323.5.1 of the Code of Criminal Procedure of the Azerbaijan Republic);
· if information and documents whose evidential value is in dispute were obtained by significantly violating requirements of this Code and other laws of the Azerbaijan Republic (Article 323.5.2 of the Code of Criminal Procedure of the Azerbaijan Republic).
The satisfaction of the defence’s motions would’ve lead to a comprehensive, complete and objective study of all the aspects in the case. The court did not hear the witnesses of the defence and passed a sentence based solely on the indictment.
Violation of national law lead to the violation of the norms of international law, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Prison Rules and others.
According to Article 6 Right to a fair trial of the European Convention for the Protection of Human Rights and Fundamental Freedoms, paragraph 1: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
As can be seen from this article, the case at the court should be viewed publicly, thus openly. According to Article 27.1 of the Code of Criminal Procedure of the Azerbaijan Republic, while safeguarding state, professional, commercial, personal and family secrets in accordance with this Code, court hearings in criminal cases and on other prosecution material shall be held publicly in all courts of the Azerbaijan Republic.
There was not any information in relation to above mentioned secrets in the case of O. Bakhyshly and due to this, there was no court decision on holding proceedings behind the closed doors. However, despite of this, friends, colleagues of the party, representatives of public and political organisations, as well as journalists were not allowed in the courtroom. This shows that the court hearings were carried out behind closed doors.
There is one more fact that attracts attention. During announcement of verdict, the hands of Orhan Bakhyshly were handcuffed. According to the paragraph 68.1 of The European Prison Rules, the use of chains and irons shall be prohibited. Handcuffs, restraint jackets and other body restraints shall not be used. They can be used only in the following cases:
a) if necessary, as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise;
b) for medical reasons by direction of and under the supervision of a doctor;
(c) by order of the director, if other methods of control fail, in order to protect a prisoner from self- injury, injury to others or to prevent serious damage to property, provided that in such instances the director shall immediately inform the medical practitioner and report to the higher prison authority.
Thus, in subparagraph (a) of paragraph 68.2 of the European Prison Rules states that once a prisoner is brought to the courtroom, the handcuffs and chains must be removed.
Judicial supervision did not take into account the rules prohibiting the handcuffs inside the courtroom, and the court did not point out about the violation of given norms. The handcuffs limits the movement of the prisoner, and therefore cause him suffering. These sufferings achieve a minimum level of cruel and inhuman treatment, which leads to violation of the Article 3 of the European Convention: “Prohibition of torture”. Article 3 of the European Convention prohibits torture or to inhuman or degrading treatment or punishment. It does not have any restrictions. This means that such treatment is prohibited in all situations, even in the fight against terrorism, organised crime and the mafia.
Orhan Bakhyshly considers his arrest to be a political order, that is related to his political and social activities.
The evidences of the unlawfulness of the indictment are: · contradictions in the inculpatory evidence · biased attitude of the judicial panel · testimonies by the accused himself
In the case of Orhan Bakhyshly, as in dozens of other cases of political prisoners, the Article 18 of the European Convention, Limitation on use of restrictions on rights. – was also violated. According to Article 18, “The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed”.
Numerous violations of national legislation and international law during the trial proceedings of Orhan Bakhyshly have the political nature and aim to punish the citizen for his active civil position, criticism towards the policy of the authorities.