BEING DETAINED WITHOUT JUSTIFICATION FOR ANY LENGTHY TIME PERIOD IS A CLEAR VIOLATION OF HUMAN RIGHTS
Imran Aliyev
Analysis of violation of law during Imran Aliyev’s judicial proceedings
Baku City Court of Appeal trial, Criminal Collegium
Case № 4(103)-1266/2024
23 November 2024
Presiding judge: Zaur Huseynov
Defendant: Imran Aliyev
Defender: Qanqa Ibrahimov
With the participation of Nahid Abbasly, an investigator of the the Investigation Division for Serious Crimes within the Investigation and Inquiry Department of the Baku City Police Headquarters
On 18 April 2024, Imran Aliyev, the site www.meclis.info manager, was detained at Baku International Airport. While being detained, he recorded a video message saying that he had been about to leave the country for Istanbul, but he was detained by the border police. Following his detention, he was taken to the Baku City Police Department. The police officers searched Imran Aliyev’s house the same night.
Imran Aliyev became yet another journalist who was detained within the criminal case against Abzas Media under the Article 206.3.2 (Smuggling, is moving large amount through customs border of the Republic of Azerbaijan of goods or other subjects, committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic (CC AR) launched on 20 November 2023.
On 19 April 2024, the Baku City Khatai District Court issued a ruling against Imran Aliyev to satisfy the investigator’s petition and Prosecutor’s submission to impose a measure of restraint in the form of arrest for a period of 2 months and 1 day. The period of detention in custody during the investigation has been subsequently extended several times
Once again, the term of the preventive measure was extended for 3 months by the ruling of the Baku City Khatai District Court from 18 November 2024, i.e. until 19 February 2025. The Defense considered the ruling unlawful and unjustified, and appealed to a superior court.
The complaint was substantiated by the fact that a detainee, Imran Aliyev, had been very concerned in the criminal case investigation, as he hoped to be acquitted. The complaint also stated that the detainee’s health condition had noticeably deteriorated: he felt heaviness in his legs and back, his immune system had dropped significantly, he had lost weight, and felt pain whilst walking. Yet, it is unrealistic to treat him in prison due to the lack of qualified medical personnel. Besides, the investigating authority knows his address of registration and residence. As said in the complaint, during 7-month period of his arrest there was only one investigative operation, and the detainee was not aware if any other investigative operations would be carried out; he wasn’t either informed if there had been any witnesses in the case, therefore, he had no opportunity to influence anyone, as claimed by the investigators.
On 23 November 2024, the Criminal Collegium of the Baku Court of Appeal issued a ruling: to reject the defence’s appeal and leave the ruling of the Baku City Khatai District Court dated 18 November 2024 unchanged.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
As stated above, the Court initially selected the strictest preventive measure in respect of I. Aliyev, i.e. imprisonment, the period of which was repeatedly extended.
The commented court ruling was not an exception either.
The courts, from the very beginning, violated a number of substantive and, in particular, procedural norms of law by imposing and extending the preventive measures.
According to the Article 155.1 of the Code of Criminal Procedure of the Azerbaijan Republic, restrictive measures may be applied by the relevant preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court when the material in the prosecution file gives sufficient grounds to suppose that the suspect or accused has:
- hidden from the prosecuting authority;
- obstructed the normal course of the investigation or court proceedings by illegally influencing parties to the criminal proceedings, hiding material significant to the prosecution or engaging in falsification;
- committed a further act provided for in criminal law or created a public threat;
- failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;
- prevented execution of a court judgment.
In any case, the courts must respect the principle of presumption of innocence stipulated by the Constitution of the Azerbaijan Republic, Article 63, Article 21 of the Code of Criminal Procedure of the Azerbaijan Republic, and the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6, paragraph 2.
The Article 157.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,
In accordance with the principle of the presumption of innocence, if the connection of the person to the offence committed is not proven, he may not be arrested or unnecessarily detained on remand.
The presumption of innocence is also provided in this article.
The European Convention, Article 5, guarantees the right to liberty and security of the person. The list of exceptions to the right to liberty set out in paragraph 1of the same Article 5 is limited and shall be interpreted strictly for the objectives set out in the Article.
According to the Article 14.1 of the Code of Criminal Procedure of the Azerbaijan Republic,
The right to liberty may be limited only in cases of detention, detention on remand or imprisonment in accordance with the law.
The Article 157.5 of the Code of Criminal Procedure of the Azerbaijan Republic states,
When examining the question of arrest as a restrictive measure, the court, if it decides that there is no need to isolate the accused from society by detaining him on remand, shall have the right to substitute house arrest for arrest. The court may simultaneously make its decision about arrest and resolve the matter of releasing the accused from arrest by granting bail, and if this release is considered possible, it shall determine the amount of bail. The court may review its decision about the inadmissibility of bail and the amount of bail at the request of the defence.
By the Decision of the Plenum of the Constitutional Court of the Azerbaijan Republic ‘On Interpretation of Article 157.5 of the Criminal Procedure Code of the Azerbaijan Republic’ dated 9 July 2010, it was determined that Article 157.5 of the Criminal Procedure Code is to be applied in compliance with the requirements specified in the Articles 154.4, 156.2 and 163.2 of the same Code. When considering the imposition of a preventive measure in the form of remand in custody, the Courts may consider substituting remand in custody with house arrest upon the Defence’s request and upon reaching the conclusion that detention in custody is unnecessary to isolate a detainee from the society.
In the case of Imran Aliyev, there were no grounds for isolation from society for such a long period of time. None of the grounds indicated by the Court was supported with concrete pieces of proof. There is formal, abstract, general and vague phrases in the ruling that have no relevance to Imran Aliyev. The Court did not take into account besides the existence of specific grounds, the following: the defendant’s ethics, his place and authority in the society, his illnesses, which had worsened while under arrest.
Furthermore, there was no risk that Imran Aliyev would abscond from justice. The accused was a law-abiding citizen, since his reputation as the website’s manager was very important to him. Also, there was no risk of the defendant’s interference with the administration of justice. He did not destroy any documents or any other evidences, did not put pressure on the participants of the process as he had no information about those to be questioned in the course of the investigation.
And finally, the detention in custody was not necessary to prevent further offences. I. Aliyev’s personality and lack of criminal record in no way suggested that he could be involved in any criminal offence.
The judgment of the European Court of Human Rights (ECHR) in the case of Smirnova v. Russia dated 24 July, 2003, states,
- In examining the length of detention undergone subsequent to the date of entry of the Convention into force, the Court takes account of the stage which the proceedings had reached. To that extent, therefore, it may have regard to the previous detention.
- A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention.
- The Convention case-law has developed four basic acceptable reasons for refusing bail: the risk that the accused will fail to appear for trial; the risk that the accused, if released, would take action to prejudice the administration of justice or commit further offences.
- The danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre-trial detention. In this context regard must be had in particular to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts.
- The issue of whether a period of detention is reasonable cannot be assessed in abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. – https://hudoc.echr.coe.int/?i=001-61262
Thus, the detention of detainee for such a long period of time is a retributive method and a continuation of the authorities’ repressive policy. The arrest is not legitimate and does not pursue a lawful goal, which is categorically prohibited by the European Convention, Article 18, according to which, the restrictions permitted in this Convention in respect of the specified rights and freedoms shall not be applied for any purpose other than those set out in the Convention.