Category: Courts

Azerbaijan is imprisoned for criticizing President Ilham Aliyev….

In Azerbaijan, those who criticize the President Ilham Aliyev are deprived of their freedom…

Elmir Abbasov

Analysis of violation of law during Elmir Abbasob’s judicial proceedings

Sumgayit City Court

Case №3 (060)-664/2021

20 February 2021

Judge: Parviz Hajiyev

Elmir Abbasov: a defendant subjected to an administrative case

Eldar Ibrahimov, a plaintiff: a police officer of the 4th Police Station of the Sumgayit City Police Department, who initiates a lawsuit on administrative offenses

Defender: Rabbil Aliyev

Elmir Abbasov, a member of the NIDA Civic Movement, is known for his sharp critique of the state’ first officials on the social networks. In January 2021, one evening, a vehicle VAZ 2107 obstructed his way on the street. According to E. Abbasov, the man in the car asked for his name and suggested to get into the car to ride to the police just to talk. E. Abbasov requested to send him an official summons but he was forced into the car and brought to the Sumgayit City Police Department. There, he was told that the reason for his detention was his critical posts concerning the President on the social networks.  The following day, Elmir Abbasov told the press that he had been released two hours later and only when he had deleted the posts.

On 20 February 2021, a 27-year-old E. Abbasov was again detained by the police. He was charged with an administrative offence under the Article 206 (Illegal consumption of drugs, psychotropic substances, manufacturing, purchasing, storing, transporting or sending not for the purpose of selling, in the quantity necessary for his personal consumption) of the Code of Administrative Offences of the Azerbaijan Republic.

In the course of the trial, Elmir Abbasov did not plead guilty to the specified administrative offence. The police officers, Ramil Ibrahimov, Ibrahim Allahverdiyev and Tale Mehdiyev, who were interrogated at the trial, provided the same testimonies against E. Abbasov. In the court ruling, these testimonies are absolutely same and written literally word for word. No witnesses for the defence were questioned in the court.

On 20 February 2021, the Sumgayit City Court found Elmir Abbasov guilty of the offense under the Article 206 of the Administrative Offences Code and sentenced him to 1 month of administrative detention.

The young activist attributed the reason for his arrest to his critical views regarding the President of the Azerbaijan Republic.  –

https://m.facebook.com/story.php?story_fbid=2564996263802398&id=100008761483653.

On 4 March 2021, Elmir Abbasov’s mother, Matanat Abbasova, told the press that she had visited her son at the temporary detention facility of the Sumgayit City Police Department, where he had not been provided with the necessary sanitary conditions. According to her, her son had not been able to take a shower for the past 14 days. She complained that the clothes she had brought to her son in the last 10 days had not been given to him. For 14 days, E. Abbasov has been wearing the same clothes.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. There are serious violations of both National and International laws in the administrative case initiated against Elmir Abbasov.

Thus, the right to liberty and security of person guaranteed by the Article 28 of the Constitution of the Azerbaijan Republic, as well as the Article 5(1)(c) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 9(1) of the International Covenant on Civil and Political Rights, the Article 3 of the Universal Declaration of Human Rights has been violated. The above-mentioned articles of the International law protect a person from arbitrary arrest. According to the Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, there are grounds upon which an arrest could be made. These reasons are quite limited as they cannot be interpreted in any broad way.

In the judgment of the European Court of Human Rights (ECHR) in the case of Kurt v. Turkey of May 25, 1998, it is written, “The Court underlines the fundamental importance of the guarantee of the individual’s rights in a democratic society against arbitrary arrest or detention by the authorities, as set out in the Article 5.That is why, the Court has repeatedly emphasized in its judgments that any deprivation of liberty must not only be in accordance with the basic procedural norms of the national law, but also meet the objectives of the Article 5, i.e., to protect the individual from arbitrary authority’s conduct. This imperative to protect individuals from any kind of abuse by the authorities is confirmed by the fact, that the Article 5(1) confines the circumstances under which a person may be lawfully deprived of his liberty, although these grounds must not be interpreted in a broad manner, since they are exceptions of the fundamental guarantees to the individual’s freedom”. –

https://europeancourt.ru/uploads/ECHR_Kurt_v_Turkey_25_05_1998.pdf

As it was mentioned above, Elmir Abbasov had been detained in the same clothes for 14 days, whereas his mother had brought him fresh clothes, yet, the clothes had not been handed over to E. Abbasov. Keeping a young activist in the same clothes for the period of 14 days is considered ill-treatment and inhumane. Under the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 3, no one shall be subjected to torture or inhuman or degrading treatment or punishment. This Article provides no exception and applies both in the fight against terrorism and the Mafia and in times of war. The Article 3 of the European Convention is unconditional and categorically prohibits torture and inhuman treatment.

The European Court of Human Rights judgment in the case of Aksoy v. Turkey dated December 18, 1996, stated, “The Article 3 (…) protects one of the basic values of a democratic society. Even in the most difficult contexts, such as the fight against terrorism and organized crime, the Convention categorically prohibits torture, inhuman / degrading treatment or punishment. Unlike most of the Articles of the Convention and Protocols No. 1 and 4, there are no exceptions provided under Articlethe 3, and according to the Article 15(2) there can be no derogations from the Article 3 even in case of a public emergency threatening the existence of the nation.” –

https://www.dipublico.org/1563/case-of-aksoy-v-turkey-application-no-2198793-european-court-of-human-rights/

The United Nations Standard Minimum Rules on the Treatment of Prisoners (known as the Nelson Mandela Rules, named after the South African President Nelson Mandela) were adopted by the United Nations General Assembly on 17 December 2015. Under the Rule 1, all prisoners are to be respected due to their inherent dignity and value as human beings. Neither torture nor other cruel, inhuman or degrading treatment or punishment shall be inflicted on any prisoner, all prisoners shall be safeguarded from it, and no circumstances whatsoever may be invoked as a justification for it. There shall at all times be the safety and security of inmates, staff, service providers, and visitors.

It is stated in Rule 16 of the Nelson Mandela Rules,

“Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, i.e. at least once a week in a temperate climate.”

Rule 19 specifically refers to a prisoner’s clothing and bedding. It states:

  1. Every prisoner who is not allowed to wear his or her own clothing shall be provided with an outfit of clothing suitable for the climate and adequate to keep him or her in good health. Such clothing shall in no manner be degrading or humiliating.
  2. All clothing shall be clean and kept in proper condition. Underclothing shall be changed and washed as often as necessary for the maintenance of hygiene.

Rule 20 of the Nelson Mandela Rules states,

“If prisoners are allowed to wear their own clothing, arrangements shall be made on their admission to the prison to ensure that it shall be clean and fit for use.”

“The Nelson Mandela Rules” formed the basis of the European Prison Rules, approved by the Committee of Ministers on 12 February 1987.

Thus, Rule 22.2. of the European Prison Rules states,

“All clothing shall be clean and kept in proper condition. Underclothing shall be changed and washed as often as necessary for the maintenance of hygiene.”

In the segment of “Personal hygiene” note:

“20. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness.

“21. In order that prisoners may maintain a good appearance compatible with their self-respect, facilities shall be provided for the proper care of the hair and beard, and men shall be able to shave regularly”.

The European Court of Human Rights judgment in the case of Selcuk and Asker v. Turkey on 24 April 1998 states, “The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim”. – file:///C:/Users/User/Downloads/001-58162.pdf

Wearing the same clothes for 14 days following the arrest should be interpreted as a minimum level of mistreatment. That fact is illustrated by the refusal to hand over clean clothes brought in by the prisoner’s mother. The ill-treatment, in this case, is of a continuing nature and is intended to cause the detainee distress.

The UN Human Rights Committee decision in the case of Prashanta Kumar Pandey v. Nepal on 30 October 2018 states,

“The Committee reaffirms that persons deprived of their liberty must not be subjected to any deprivation or burdens other than those resulting from their incarceration, and that they must be treated in a humane manner and with respect for their dignity.”  – file:///C:/Users/User/Downloads/G1835144.pdf

There was also a violation of the Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in relation to Elmir Abbasov. According to this article,

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The arrest of Elmir Abbasov was due to his social network posting, which was characterized by sharp criticism of the State President. The right to freedom of speech interference was not legitimate, it was intended to force the young activist to shut up. This interference did not comply with the Norms within a democratic society and was not in line with the objectives of the Article 10.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The right to freedom of expression is also protected by the International Covenant on Civil and Political Rights, the Article 19 (paragraphs 1 and 2), as well as by the Article 19 of the Universal Declaration of Human Rights.

The judgment of the European Court of Human Rights in the case of Handyside v. the United Kingdom of 7 December 1976 states:

“Freedom of expression, as defined in Article 10(1), is one of the supporting pillars of a democratic society, fundamental to the progress and self-fulfillment of each of its members. Within the requirements of paragraph 2, freedom of expression encompasses not only “information” or “ideas” that are favourably received or regarded as innocuous or neutral, but also those that offend, shock or disturb. These are the demands of pluralism, tolerance and liberalism, without which there is no “democratic society”. –

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjW88zv2JnvAhV07eAKHaHrCw8QFjAAegQIARAD&url=https%3A%2F%2Fglobalfreedomofexpression.columbia.edu%2Fcases%2Fhandyside-v-uk%2F&usg=AOvVaw1c11d3E3WNtpNvf18xcunr

 

The young activist’s arrest and the violations of his fundamental human rights are a continuation of the authorities’ repressive policy aimed at silencing dissenting voices.

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There is no freedom of speech in Azerbaijan …

There is no freedom of speech in Azerbaijan …

Elchin Hasanzade

Ibrahim Salamov

Analysis of violation of law during Elchin Hasanzade and Ibrahim Salamov’s judicial proceedings

Mingachevir City Court

Case №1 (051)-77/2020

16 November 2020

Judge: Huseyn Mirzaliyev

 The State Prosecutor: Shahriyar Mustafayev

Defendants: Elchin Hasanzade, Ibrahim Salamov

Elchin Hasanzade, a journalist and member of the Popular Front Party of Azerbaijan (PFPA), was subjected to repeated persecution for his political position and was threatened and blackmailed. On 22 April 2020, E. Hasanzade wrote a post on Facebook about another attempt to pressure him, he posted, “Today, an officer of the Khazar District Police Department called me and insisted that I come to the police. I asked him the reason behind his call. He immediately made-up various pretexts. Then, I asked him to send me a subpoena. Afterwards, I received a call from the housing-management and they asked me to urgently come there”. Elchin Hasanzade also pointed out that many political and public activists were being recently arrested (during the coronavirus pandemic), so he, too, was at risk of being arrested.

In May 2020, Shahriyar Mustafayev, the Head of Mingachevir Public Utilities Department, filed a complaint to the court regarding the slander and insult caused by Elchin Hasanzade and Ibrahim Salamov, a public activist and actor of the Mingachevir State Drama Theater. According to S. Mustafayev’s complaint, on Facebook, E. Hasanzade and I. Salamov spread defamatory and inappropriate information that insulted his honor and dignity.

Mr. Mustafayev considers the following phrases to be an insult, “a jerk, with big and small horns”, “criminal, murderer, a corruptionist”, as well as an article titled “Why aren’t the heads of the Housing and Utilities Department getting better…!!?”, which contains the following information, “There are reports about officials in the regions who turned into oligarchs using money stolen from people by stealthy means. One of such officials is Shahriyar Mustafayev, the Head of Mingachevir’s Housing and Public Utilities Department.”».

The court heard a criminal case under the Articles 147.1 (Slander), 147.2 (Slander, which is connected with accusation of committing serious or especially serious crime) and 148 (Insult) of the Criminal Code of the Azerbaijan Republic in the order of special proceedings.

On 16 November 2020, the Mingachevir City Court issued a verdict against E. Hasanzade and I. Salamov. They both were found guilty of the charges and sentenced to 6 months of community service.  The bloggers appealed to the Court of Appeal.

On 3 March 2021, the Shirvan Court of Appeal, chaired by the Judge Rafael Aliyev, did not satisfy the appeal of E. Hasanzade and I. Salamov, and changed the Mingachevir City Court verdict. E. Hasanzade and I. Salamov were sentenced to imprisonment for the period of 8 months.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. First, let’s study the articles that were incriminated to the accused.

According to the Article 147 of the Criminal Code of the Azerbaijan Republic:

147.1. The slander, is distribution of obviously false information which discredit honor and dignity of any person or undermining his reputation in public statement, publicly or in mass media shown products is punished by fine of hundred up to five hundred of the nominal financial unit, or by public works for the term of till two hundred forty hours, or by corrective works for the term of up to one year, or imprisonment for the term of up to six months.

147.2. The slander, which is connected with accusation of committing serious or especially serious crime is punished by corrective work for the term of up to two years, or deprivation of freedom for the term of up to two years, or imprisonment for the term of up to three years.

The Article 147 of the Criminal Code of the Azerbaijan Republic states:

The Insult, is deliberate humiliation of honor and dignity of a person, expressed in the indecent form in the public statement, publicly or in mass media shown product is punished by fine of three hundred up to one thousand of the nominal financial unit, or by public works for the term of up to two hundred forty hours, or by corrective work for the term of up to one year, or imprisonment for the term of up to six months.

The accused claim that they have the evidence of Shahriyar Mustafayev’s corruption captured on video, which proves their validity and accusations against the official. So, the assertion of S. Mustafayev that the accused spread deliberately false information about him and accused him of committing a serious crime, has no grounds. However, the court did not take into account these facts.

According to the Article 47 of the Constitution of the Azerbaijan Republic:

  1. Everyone may enjoy freedom of thought and speech.
  2. Nobody should be forced to promulgate his/her thoughts and convictions or to renounce his/her thoughts and convictions.

According to the paragraph 6 of the Resolution of the Azerbaijan Republic Supreme Court Plenum “On Judicial Practice Related to Special Charges Complaints” dated on 21 February 2014,

It should be explained to the courts that according to the precedents of the European Court, thoughts or facts spread via information should be differentiated. If the existence of a fact can be demonstrated, whereas the validity of the thoughts cannot be proved. The requirement to prove the validity of thoughts cannot be complied with and violates the freedom of thought itself, which is a fundamental part of the right set forth in the Article 10 of the Convention. At the same time, when claims are made against the conduct of a third party, it is sometimes difficult to determine the difference between thoughts and the submission of facts. Despite this, even if thoughts are not based on facts, they may be quite unreasonable.

According to the Article 1 of the Law of the Azerbaijan Republic “On Mass Media”, the mass media is free in the Azerbaijan Republic. Freedom of mass media is based on the right of citizens to seek, receive, prepare, transfer, produce and distribute the information in a lawful manner, which is guaranteed by the state.

The Law “On Mass Media” states in its Article 7:

The State censorship over mass media, as well as the creation and financing of special state bodies or positions for this purpose, shall not be permitted.

The right of the mass media to receive information is regulated by the Article 8 of the Law “On Mass Media”. It says:

The mass media are entitled to receive prompt and reliable information about the economic, political, social and welfare situation in society, and about the activities of State bodies, municipalities, institutions, enterprises and organizations, public associations, political parties, and functionaries.

There is a clause in the Law, the Article 11, “Any mass-media editor responsible for the publication (broadcasting) of a report and (or) a journalist may not be compelled to disclose the source of information, except in cases prescribed by the Law, when the case is under investigation or in the course of judicial proceedings. …. The court may force an editor or journalist to disclose a source in the following cases:

1) to protect a life of an individual;

2) in order to prevent a serious crime;

3) in order to protect a person accused or convicted of a serious crime.”

In this case, the defendants might not have disclosed the source of information about the official’s corruption, since the Law fully protects the journalist’s right to the confidentiality of the information source.

The right to freedom of speech is regulated by the Article 10(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. There is a precise list of restrictions that are allowed to apply, which is outlined in the article. These restrictions are as follows:

  • prescribed by law;
  • necessary in a democratic society, in the interests of national security, territorial integrity or public order;
  • for the prevention of disorder or crime;
  • for the health or morality of others protection;
  • to protect the reputation or rights of others, to prevent the disclosure of confidential information;
  • or to ensure the credibility and impartiality of justice.

The right to freedom of speech is an essential individual’s right, and in particular, it has a significant part in the establishment of democracy and implementation of all other human rights.

According to the Article 19 of the International Covenant on Civil and Political Rights,

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

In 2011, the President of Azerbaijan signed a Decree “On the National Program of Action for Ensuring Human Rights and Freedoms”. The Paragraph 1.7 of the Decree stated the following provision, decriminalization of defamation in the legislation, i.e. the exclusion of the articles regarding slander from the Criminal Code of the Azerbaijan Republic. In 2012, the implementation of the Decree was assigned to the Presidential Administration. However, the decriminalization of defamation has not yet been undertaken. Not only has defamation legislation been decriminalized, but, in 2015, there were amendments to the AR Criminal Code. But also, it was added the Article 148.1 (Libel or slander by using fake user names, profiles or accounts on the Internet) to the Azerbaijan Republic Criminal Code. There were amendments to the Articles 147 (Slander) and 148 (Insult) of the Azerbaijan Republic Criminal Code, and the words “Internet resources” was added as well.

Numerous recommendations of the Council of Europe’s Baku Office on the implementation of legislation to decriminalize defamation have also been ignored.  ODIHR, the Office for Democratic Institutions and Human Rights, published a report on its visit to Azerbaijan on 19-21 December 2020. It is stated in the report that “although the constitution guarantees freedom of expression, defamation is still a crime and extends to the sphere of the Internet, punishable by up to two years’ imprisonment. ”

Decisions of the European Court of Human Rights (ECHR) often point to violations of the right to freedom of expression. Furthermore, there are certain criteria according to which one can speak of interference.

In this case, there was an interference. That’ s unequivocal. Moreover, such an interference was prescribed by the law. Yet, it was not necessary in a democratic society, and the arrest of the accused struck a balance between the interests and reputation of the special prosecutor and the right of the accused to liberty.

The decision of the European Court of Human Rights in the case of Oberschlick v. Austria on 23 May 1991 states, “57. The Court has repeatedly stressed that freedom of expression, as guaranteed by the Article 10, paragraph 1, constitutes one of the essential foundations of a democratic society, one of the basic conditions for the progress and self-fulfilment of all its members. Being a subject to the restrictions set out in the Article 10, paragraph 2, it extends not only on “information” or “ideas” that are favourably received in society or regarded as innocuous or neutral, but also on those who offend, shock or alarm the State or part of the population. These are the requirements of a pluralistic, tolerant and broad-minded society, without which there is no “democratic society”.

https://hudoc.echr.coe.int/ENG#{“itemid”:[“001-989”]}

The legislation in this area, in particular the Articles 147 and 148 of the Criminal Code of the Azerbaijan Republic, which should have been decriminalized as recommended by the international organizations, does not comply with the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Article 151 of the Azerbaijan Republic Constitution states:

Whenever there is disagreement between normative-legal acts in legislative system of the Azerbaijan Republic (except Constitution of the Azerbaijan Republic and acts accepted by way of referendum) and international agreements wherein the Azerbaijan Republic is one of the parties, provisions of international agreements shall dominate.

Thus, all other laws lose their legal force in the context of the Constitutional Norms on the validity of the International Treaties.

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The courts in Azerbaijan support the police officers’ unlawful activities

The courts in Azerbaijan support the police officers’ unlawful activities

Mustafa Hajily

Analysis of violation of law during Mustafa Hajili’s judicial proceedings

Baku City Binagadi District Court

Case №6 (001)-5/2021

5 February 2021

Judge: Elchin Agayev

Complainant: Mustafa Hajily

Mustafa Hajily, a journalist, a member of the opposition party “Musavat», the Head of which, Arif Hajily, is Mustafa’s brother, the chief of the site www.basta.com.

On 9 February 2020, an early parliamentary election was held in Azerbaijan. On 11 February 2020, after the announcement of the election results, political and socio-political activists, as well as former parliamentary candidates, gathered in front of the Central Election Commission (CEC) administrative building to protest against the utter falsification of the election results. The action lasted for several hours.

Mustafa Hajily along with his wife, Bajihanum Hajily, approached the CEC building, where they saw the protesters and journalists being subjected to inhuman treatment by the police. Protesting against this arbitrariness, M. Hajily shouted out the word “Azadliq” (“Freedom”) a few times. Right at that moment the police officers, without any warning to him and not identifying themselves, twisted his arms from behind and put him into a patrol car that was parked nearby.

Inside the car, the policemen hit him with their fists in the area of his chest and neck. Five to ten minutes later, they forced him out of the patrol car and placed in a large police car without windows.   There were three police officers from the Rapid Response Unit in the car, all wearing helmets on their heads, who started punching and kicking him in the head, face and other parts of his body. The beating continued for 3-5 minutes. In the meantime, M. Hajily started bleeding from his nose and mouth, and he suffered sharp pains in his eyes and head. Then, three policemen got out of the car and he was left alone in the car for about 20-30 minutes. Then one of the policemen opened the car door and asked him where he worked. The policemen of the Rapid Response Unit dropped the journalist off near the CEC building and carried him to the CEC door. There, he washed off the blood and realized that he had lost his glasses. Afterwards, the police officers brought the journalist to the 5th Police Department of the Baku Binagadi District.

At the 5th Division, the police conducted a body examination of M. Hajily, and then took him to the Baku Binagadi District Police Department.  At the Police Department, Mustafa Hajily stated that he had been beaten by the police officers. He was then taken for an alcohol test. He informed the doctor about the beating and asked for help. However, due to the fact that the police officers were around, the doctor did not dare to provide medical assistance to him.

However, the forensic medical examination that was conducted on 13 February 2020, determined the injuries on Mustafa Hajily’s body and face.

With regard to the incident, the journalist filed a complaint to the Prosecutor’s Office about the police’s illegal actions, asking for the initiation of criminal proceedings under the relevant Article of the Azerbaijan Republic Criminal Code.

On 13 February 2020, the Baku Binagadi District Prosecutor’s Office issued a decree not to initiate criminal proceedings.

The journalist M. Hajily applied then to the Baku Binagadi district court with a complaint according to the judicial supervision procedure, in which he indicated that the decision of the Binagadi District Prosecutor’s Office from 13 February 2020, was unreasonable and illegal, and asked the court to reverse that decision.

On 5 February 2021, the Binagadi District Court of Baku issued a ruling dismissing Mustafa Hajily’s complaint.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. According to the Article 68 of the Constitution of the Azerbaijan Republic:

  1. Rights of the person suffered from crime and also from usurpation of power are protected by law. Suffered person has the right to take part in administration of justice and demand for compensation of losses.
  2. Everyone has the right for compensation by the state of losses borne as a result of illegal actions or non-action of state bodies or their officials.

 

The Article 26 of the Constitution of the Azerbaijan Republic states:

  1. Everyone has the right to protect his/her rights and liberties using means and methods not prohibited by law.
  2. The state guarantees protection of rights and liberties of all people.

The Article 12.2 of the Code of Criminal Procedure of the Azerbaijan Republic states:

The victim of a criminal act shall have the right to demand criminal prosecution, to take part in it as a victim or as a victim bringing a private prosecution and to obtain compensation for non-material, physical and material damage as required by this Code.

As mentioned above, the journalist Mustafa Hajily had suffered from the police officers’ illegitimate actions, who had inflicted numerous physical injuries to him, as confirmed by the forensic medical examination results on 13 February 2020.

The ruling of the Baku Binagadi District Prosecutor’s Office was also issued on 13 February 2020.

The Article 207.1. of the Code of Criminal Procedure of the Azerbaijan Republic defines the procedure for verification of the complaints concerning either committed or forthcoming crimes:

207.1. The preliminary investigator, the investigator or the prosecutor in charge of the procedural aspects of the investigation shall fulfil the following duties:

207.1.1. register immediately and examine any information received from individuals or legal entities about an offence committed or planned, and information within the investigating authority’s jurisdiction which has been published in the media and submitted together with confirming documents;

207.1.2. when necessary, to conduct a preliminary investigation on the existence of sufficient grounds for initiation of a criminal case within 3 (three) days, if necessary, and within 10 (ten) days, if not possible, in connection with obtaining an expert opinion or in cases provided by the Article 207.3 of this Code, within 30 (thirty) days, after receiving the report on the committed or forthcoming crime (except reports of obvious crimes);

207.1.3. decide whether or not to proceed with the case, depending on the results of the examination (or verification) of the information concerning the offence committed or planned.

 

The coinciding date of the forensic examination report and the ruling refusing to initiate criminal proceedings against the police officers who used force against M. Hajily indicates that the journalist’s complaint was considered biased, subjective and one-sided. The denial to initiate a criminal case was not grounded and purely formal in nature. The Prosecutor’s office did not conduct any further investigation into the complaint and issued a resolution not to institute criminal proceedings right on the day it received the forensic examination results. Regardless of such obvious facts of bias against M. Hajily, the Binagadi district Court considered the Prosecutor’s Office decision as justified and lawful.

 

Moreover, the police officers’ actions, which exceeded the legal boundaries, as well as their abuse of power, were not investigated. The police officers’ actions can be qualified under the Criminal Code of the Azerbaijan Republic, the Article 309.2 (Abuse of power, committed with the use of violence).

In the Article 13 of the Law of the Azerbaijan Republic On Police states, that general duties of a policeman are the following:

  1. Take urgent actions to prevent prepared crimes or other violations of law;
  2. Take actions to seize and bring the criminal or the violator to the police station;
  3. Arrange for protection of the locus delicti and take measures to determine witnesses;
  4. Provide first aid to the victims of crime, violation or accident, as well as to helpless persons whose life and health is under danger.
  5. Ensure provision of rights and legal interests of a detained or arrested person;
  6. Participate in the rescue arrangements of people and their property in the cases of natural disasters, catastrophes and other emergencies;
  7. While executing its responsibilities to obey rules of behaviour defined by the relevant executive body (Ministry of Interior) of the Azerbaijan Republic.

 

III. While addressing any person a policeman must introduce himself by telling his name, surname, rank and producing his identification card.

  1. While executing his responsibilities a policeman reports, directly and indirectly, to his chief.

VII. When received evidently illegal order or instructions a policeman must obey the law and inform the police management about it.

VIII. Not executing evidently illegal order or instruction doesn’t cause any accountability. A policeman executing such order or instruction bears accountability in accordance with the legislation of the Azerbaijan Republic.

Ensuring the personal safety of everyone is the duty of the police officers in the area of public order and public security (Article 14, paragraph 2 of the Law of the Azerbaijan Republic On Police).

According to the Article 26 of the Law of the Azerbaijan Republic On Police, only in the below-mentioned cases a policeman may apply physical strength against the person who does not execute his lawful requirements:

  • while preventing the imminent crime or a crime under process;
  • while detaining a person who has committed administrative offence or a crime;
  • while physical strength is used while committing of an administrative offence.

There was no record of any offence or crime committed by M. Hajily, so the police officers’ application of physical force against the journalist was unlawful.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 3, the Article 7 of the International Covenant on Civil and Political Rights and the Article 5 of the Universal Declaration of Human Rights prohibit torture and inhuman treatment.

The prohibition of torture has no exceptions in any Articles. The prohibition of torture applies at all times: from emergencies and war to the fight against the mafia and terrorism. In short, the above-mentioned norms of law protect the dignity and physical integrity of the individual.

 

It is considered a violation of the Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in cases involving ill-treatment and some level of severity. As a consequence, the jurisprudence has elaborated the meaning to be given to the various notions contained in this article: inhuman, humiliating treatment; inhuman, disgraceful punishment. Torture is an aggravated form of inhuman treatment.

The judgment of the European Court of Human Rights in the case of Soring v. UK dated July 7, 1989, states, “The Article 3 makes no provision for exceptions and no derogation from it is permissible under the Article 15 (art. 15) in time of war or other national emergency. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that the Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also to be found in similar terms in other international instruments such as the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights and is generally recognised as an internationally accepted standard”.

See: https://www.uio.no/studier/emner/jus/jus/JUR5710/h10/undervisningsmateriale/5nov_Soering-v-UK.pdf

Thus, the inadequate and illegal use of physical force by the police officers against Mustafa Hajily violated the prohibition of inhuman treatment and torture, whereas the Prosecutor’s office and the court denying the journalist’s complaint also upheld the illegal actions of the police officers.

 

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The law can guarantee freedom, but the courts will not set an opposition activist free

The law can guarantee freedom, but the courts will not set an opposition activist free

Aqil Maharramov

Analysis of violation of law during Aqil Maharramov’s judicial proceedings

Baku City Khazar District Court

Case №7 (003)-13/2021

13 January 2021

Judge: Tarlan Akbarov

Defendant: Aqil Maharramov

Defender:  Aqil Lahij

Zamir Pashayev, the Prosecutor at the Department of Extrajudicial Prosecution under the General Prosecutor’s Office of the Azerbaijan Republic

 

On 25 May 2018, a member of the Board of the Supreme Majlis of the Popular Front Party of Azerbaijan (PFPA), Aqil Maharramov was arrested.   He was charged under the Articles 193.3.2 (Illegal entrepreneurship on a particularly large scale), 193-1.3.1 (Legalization of funds or other property obtained by criminal means, committed by an organized group or criminal organization (criminal network), and 193-1.3.2 (Legalization of funds or other property obtained by criminal means, committed on a large scale) of the Azerbaijan Republic Criminal Code.

Together with Aqil Maharramov, Ruslan Nasirli, a PFPA member and the Chairman of the PFPA Youth Committee Supreme Majlis, also Babek Hasanov, an PFPA member and participant of the first Karabakh war, as well as a Russian citizen Saleh Rustamov, a businessman, a former head of the Gadabay District Executive Power, and his nephew, Vidadi Rustamov, all of them have been charged under the above-mentioned Articles.

All defendants were subjected to torture and inhuman treatment during the preliminary investigation, which they revealed to the Baku Court of Serious Crimes in the course of their trial.  On 27 February 2019, the Baku Court of Serious Crimes found the defendants guilty of the charges and sentenced Saleh Rustamov to 7 years 3 months, Aqil Maharramov to 4 years, Babek Hasanov to 3 years imprisonment, and Ruslan Nasirli as well as Vidadi Rustamov to a suspended sentence. On the same day, Ruslan Nasirli and Vidadi Rustamov were released at the courtroom.

Both Azerbaijani and international human rights organizations have recognized Aqil Maharramov and Saleh Rustamov as political prisoners and demanded the Azerbaijani authorities to release them from jail.

See:

https://www.amnesty.org/en/countries/europe-and-central-asia/azerbaijan/report-azerbaijan/

https://www.hrw.org/news/2020/03/25/azerbaijan-opposition-leader-arrested#

https://www.state.gov/wp-content/uploads/2020/02/AZERBAIJAN-2019-HUMAN-RIGHTS-REPORT.pdf

https://www.state.gov/report/custom/346c351ea5/

Aqil Maharramov is serving his sentence at Penitentiary Institution #2 under the Ministry of Justice Penitentiary Service of the Azerbaijan Republic.

In January 2021, Aqil Lahij, Aqil Maharramov’s defender appealed to the Baku Khazar District Court (Correctional Institution #2 is located on the territory of Khazar District) and asked the court to implement the amendments to his client, which were adopted into the Azerbaijan Republic Criminal Code on 1 May 2020, and to release A. Maharramov.

On 13 January 2021, the Baku Khazar District Court ruled that the amendments made to the Azerbaijan Republic Criminal Code did not apply to the criminal case against Aqil Maharramov and denied the lawyer’s appeal; Aqil Maharramov remained in custody.

 

Commentary by an expert lawyer:

The court verdict is illegal and unjustified. The Law on Amendments to the Azerbaijan Republic Criminal Code (No. 68-VIQD) dated on 1 May 2020, entered into force on 1 June 2020. The objective of this law is to humanize, liberalize, modify the punishments related to economic crimes and mitigate the penalty policy. The Article 193 of the Azerbaijan Republic Criminal Code, under which Aqil Maharramov was convicted, is exactly the one that fell within the scope of this law.

The Chapter 11 of the Azerbaijan Republic Criminal Code provides the conditions that constitute the basis for the exemption from prosecution of those convicted of the economic crimes.

According to the new law wording, in force since 1 June 2020, the person who has committed the act (actions) provided by the Articles 209 and 213 of the Azerbaijan Republic Criminal Code, shall be released from criminal liability, if the person fully compensates the damage caused by the crime (the Article 73-2.1). This provision is extended to the Articles 192, 192-1, 193, 195, 195-1, 196, 197, 198, 202-2, 203, 203-1.1, 205-2, 209.2.1, 209.3, 210, 211, 212 and 213-2 of the Criminal Code of the Azerbaijan Republic. The person who has committed the act (actions) provided by the Articles 1 and 3, and who has fully compensated the damage caused by the crime or has transferred the profits gained through the crime to the State budget, shall be exempted from the criminal liability (the Article 73-2.1).

If we take a look at the set of conditions stipulated by the new law with regard to the Article 193 of the Azerbaijan Republic Criminal Code, their cumulative effect is the basis for exemption from criminal responsibility.

These conditions are:

  • A person who has fully repaid the damage caused by a criminal action.

According to the sentence that entered into legal effect, there was no material damage found in the criminal case. Moreover, there were no victims who suffered as a result of the criminal acts in the case. Aqil Maharramov was convicted for passing the funds that had been allocated for the party’s needs, to certain individuals as a kind of assistance. The criminal case failed to establish damage by even 1 penny.

  • If the damage caused by the crime is fully compensated.

It was determined through the materials of the criminal case and the verdict itself that Saleh Rustamov, a businessman, was engaged in entrepreneurial activities in Russia. He financially assisted the party members, as well as the political prisoners’ families. Aqil Maharramov was one of those who transported the financial aid to the recipients. Saleh Rustamov had no criminally earned income, he was engaged in entrepreneurship in Russia and did not violate the laws of Russia. Aqil Maharramov did not own a penny of the donations intended for the part needs or the political prisoners’ families. He was only an intermediary in transferring money to the beneficiaries. A. Maharramov’s financial situation has not been improved in any way. It should also be taken into account that, according to the verdict, the money had been transferred in the period of 2010-2018, while A. Maharramov became a member of the PFPA only in 2013, and he could not take part in any activities related to the PFPA prior to 2013.

  • A person who has paid to the state budget an income, as well as a respective interest, received as a result of criminal activity.

This law condition is generalized and subject to the presence of the two previous conditions. This condition is not alternative to the two previous conditions. Aqil Maharramov has not made any profit, has not caused any financial damage to anyone, has not embezzled the state budget, and has not caused damage to the state budget. The case did not define either the victims, the civil plaintiff, or the criteria of damage done to the state budget.

According to the Article 65 of the Azerbaijan Republic Constitution, every person convicted by the law court has the right to appeal, as specified by the law, to the higher law court asking for reconsideration of the verdict and also for pardon and mitigation of the sentence.

The Article 71 para. VIII of the Azerbaijan Republic Constitution states: “No one will be responsible for acts which were not considered criminal at the moment of their implementation. If after the crime new law was introduced envisaging no responsibility or mitigation of responsibility, said new law shall apply”.

Transitional provisions of the Law of the Azerbaijan Republic on amendments to the Criminal Code from 1 May 2020, (the Article 2.2.) stipulate that the persons condemned prior to this Law entering into force and serving their sentences at the moment, shall be released from serving their sentences. These persons’ criminal records shall be expunged and they shall be deemed not convicted (the Article 2.3 of the Azerbaijan Republic Law).

If the situation of the condemned who were sentenced prior to entry into force of the present Law, and who are serving or had served is improved by the present Law, these questions, as well as the questions provided by the Article 2.2 of the present Law, shall be resolved by the court or the court at the location where the sentence is served, on submission of the institution or body executing the sentence, or the condemner’s application, in the order provided by the Criminal Procedure Code of the Azerbaijan Republic (the Article 2.4.).

According to the Article 15 para. 1 of the International Covenant on Civil and Political Rights, no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

The Article 7 para. 1 of the European Convention on Human Rights states: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The ruling of the European Court of Human Rights (ECHR) in the case Scoppola v. Italy from 17 September 2009, states that the Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, while prohibiting retroactive effect in criminal legislation on serious grounds, at the same time guarantees the retroactive effect of easier sentences, although the legislation in force at the time of the criminal act provides a harsher penalty, that is, under the new law a lighter punishment must be applied to the offender.

See: https://hudoc.echr.coe.int/fre#{“itemid”:[“001-111044”]}

Summarizing aforesaid, we can conclude that the court violated Aqil Maharramov’s right to freedom that is guaranteed by the Article 28 of the Azerbaijan Republic Constitution, the Article 5(1) of the European Convention on Human Rights, the Article 9(1) of the International Covenant on Civil and Political Rights and numerous precedents of the European Court of Human Rights, which are binding for the Council of Europe member states. The court violated new law provisions by not fulfilling the requirements of international legal norms, as well as the right to freedom.

 

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Another 15 people who had been arrested after the july 2020 action in support of the army were put under house arrest

ANOTHER 15 PEOPLE  WHO HAD  BEEN ARRESTED AFTER THE JULY 2020  ACTION IN SUPPORT OF THE ARMY  WERE PUT UNDER HOUSE ARREST

The trial analysis

Baku City Sabayil District Court

Case №1 (009)-162/2020

7 December 2020

Judge: Agamali Qafarov

The State Prosecutors: The Prosecutors of the Department on State Prosecutions in the Courts of Baku under the Office of State Prosecutors Support of the General Prosecutor of the Azerbaijan Republic – Tural Qahramanov and Suradzh Salmanov

 

In the courtroom there were also attending lawyers

  1. Musa Hasanov, the defence lawyer of the accused Ilkin Aliyev
  2. Chingiz Mansurov, the defence lawyer of the accused Farid Abadov
  3. Vugar Tumasov, the defence lawyer of the accused Sabuhi Mustafayev
  4. Jabbar Bayramov, the defence lawyer of the accused Azar Mammadov
  5. Annagi Mammadli, the defence lawyer of the accused Siyavush Mustafayev
  6. Aqil Lahij, the defence lawyer of the accused Ramid Naqiyev
  7. Elkhan Quliyev, the defence lawyer of the accused Ramiz Babayev
  8. Mirismayil Hadi, the defence lawyer of the accused Parvin Chobanov
  9. Quldisar Karimova, the defence lawyer of the accused Ismayil Mammadov
  10. Elvin Alamov, the defence lawyer of the accused Gunduz Mirzoyev
  11. Azar Rasulov, the defence lawyer of the accused Elnur Jabbarov
  12. Leyla Mammadov, the defence lawyer of the accused Tale Mamishev

 

The defendants participating at the trial by video conference:

  1. Ilkin Aliyev
  2. Elchin Mammadov
  3. Farid Abadov
  4. Mushfiq Vahabov
  5. Sabuhi Mustafayev
  6. Azar Mammadov
  7. Dayanat Movlayev
  8. Siyavush Mustafayev
  9. Ramid Naqiyev
  10. Ramiz Babayev
  11. Ismayil Mammadov
  12. Parvin Chobanov
  13. Gunduz Mirzoyev
  14. Elnur Jabbarov
  15. Tale Mamishev

     

On 13-14 July 2020, in Tovuz, there were violent fights between the two sides on the border of Azerbaijan and Armenia. As a result of the fighting, eleven Azerbaijani army soldiers were killed, including General Polad Hashimov and Colonel Ilqar Mirzoyev.

On 15 July 2020, a meeting in support of the Azerbaijani army was held in Azerbaijan. A large number of people have made a long way from Sumgayit to the center of Baku. The protesters walked from the center of the city to the Presidential Palace, and then to the Parliament building. According to the witnesses, a small group of strangers broke into the Parliament building and caused damage to the state property. As the participants said, those people had been intentionally sent as provocateurs to break the law. The State Security Service employees were also noticed in the crowd on the photos captured during the rally. Following the rally, 36 people were detained and charged with disruption of public order, resistance to the authorities and others.

The defendants Fuad Qahramanli, Mammad Ibrahim, Ayaz Maharramov and Bakhtiyar Imanov were charged with committing crimes under the articles:

  • 3, 32.4, 233 (organization and incitement to activities that facilitate public order violation)
  • 3, 34.2, 315 (organization and participation in resistance or use of violence against a state official)
  • 3, 34.2, 186.2.1. (organization and participation in intentional destruction or damage of property)
  • 3, 34.2, 127.2.1. (organization and participation in intentional infliction causing of a less serious harm to health) of the Criminal Code of the Azerbaijan Republic.

The defendants Ilkin Aliyev, Elchin Mammadov, Farid Abadov, Mushfiq Quliyev, Sabuhi Mustafayev, Asif Yusifli, Seymur Ahmadov, Emin Huseynzade, Elvin Mammadov, Ramiz Babayev, Azar Mammadov, Kamil Mahmudov, Tural Valiyev, Shamsi Rahimli, Dayanat Movlayev, Ramid Naqiyev, Siyavush Mustafayev, Ismayil Hasanov, Vusal Quliyev, Jeyhun Novruzov, Elchin Mehdiyev, Parvin Chobanov, Ismayil Mammadov, Baba Suleymanov, Mahabbat Naqiyev, Telman Seyfullayev, Fariz Mammadov, Gunduz Mirzoyev, Ariz Safarli, Elnur Jabbarov, Mushfiq Quliyev and Jeyhun Mammadov  were charged with committing crimes under the articles:

  • 2, 233 (committing actions facilitating violation of public order or active participation in such actions by a group of individuals upon prior conspiracy)
  • 2, 315 (resistance or use of violence against a state authority by a group of individuals upon prior conspiracy)
  • 2, 186.2.1 (intentional destruction or damage of property by a group of individuals upon prior conspiracy in order to cause significant property damage)
  • 2, 127.2.1 (intentional infliction causing a less serious harm to health by a group of individuals upon prior conspiracy) Criminal Code of Azerbaijan Republic.

All 36 of the accused were sentenced to a 3-month-period in the form of house arrest.

On 17 November 2020, the Prosecutor’s Office submitted a request to the Baku Sabayil District Court to replace the measure of restraint in the form of detention to house arrest. Due to the spread of the coronavirus infection, the court issued a ruling to change the measure of restraint in the form of detention to house arrest after conducting a court hearing via video conference (only the defendants’ attorneys were present in the courtroom). This ruling concerned the 21 defendants: Shamsi Rahimli, Ayaz Maharramov, Seymur Ahmadov, Jeyhun Novruzov, Mushfiq Quliyev, Kamil Mahmudov, Vusal Quliyev, Fuad Qahramanli, Elchin Mehdiyev, Fariz Mammadov, Telman Seyfullayev, Bakhtiyar Imanov, Ismayil Hasanov, Baba Suleymanov, Mammad Ibrahim, Mahabbat Naqiyev, Emin Huseynzade, Tural Valiyev, Ariz Safarli, Asif Yusifli, Jeyhun Mammadov.

The second group of defendants remained in custody until the prosecutor’s office petitioned the court to change their preventive measures.

Having heard the defendants’ arguments and their defence lawyers, the Baku Sabayil District Court ruled to satisfy the investigator’s petition and the prosecutor’s submissions on 7 December 2020. The preventive measure previously selected for the specified group of defendants in the form of detention was changed to house arrest.

 

Commentary by expert lawyer:

The court ruling is only partially lawful and justified. According to the Article 155.1 of the Criminal Procedure Code 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:

155.1.1. hidden from the prosecuting authority;

155.1.2. 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;

155.1.3. committed a further act provided for in criminal law or created a public threat;

155.1.4. failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;

155.1.5. prevented execution of a court judgment.

Despite the fact that the defendants are currently under house arrest, this ruling should be taken with great caution. First, the ruling indicates the following circumstances, according to which the court modified the previously selected preventive measure: the age of the defendants, their involvement in less serious crimes, health and marital status, also their permanent place of residence, and other circumstances. Second, all of the above-mentioned circumstances were also in existence at the time when the most restrictive measure of restraint, the arrest, was imposed. Moreover, the court did not refer the above-mentioned circumstances to a specific defendant. They were listed in general. The court did not consider the matter on an individual basis. In addition, the court did not specify what circumstances had been changed after the imposed arrests, what reasons caused to change the measure of restraint for a large number of the defendants in the same criminal case.

Although the court ruling looks legitimate and substantiated from a human rights perspective, there are plenty of gaps in the procedural aspect.

The Article 155.2 of the Criminal Procedure Code of the Azerbaijan Republic states, in resolving the question of the necessity for a restrictive measure and which of them to apply to the specific suspect or accused, the preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court shall bear in mind:

155.2.1. the seriousness and nature of the offence with which the suspect or accused is charged and the conditions in which it was committed;

155.2.2. his personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence;

155.2.3. whether he has committed a previous offence, the previous choice of restrictive measure and other significant facts.

155.2.4. the presence or absence of a reconciliation between a suspect or accused and a victim or his/her legal successor or his/her close relative, the compensation for damages caused by the crime, and other significant circumstances.

According to the above article, the preventive measure must be applied to a specific defendant, i.e., the ruling to change the preventive measure must be specified as applicable individually to each defendant.

The court has the authority to impose house arrest on its own initiative. However, the courts usually do not take such an initiative and they just have to wait for the prosecutor’s proposal. That case was not an exception. The court’s initiative on application of house arrest is enshrined in the Article 156.2. of the Azerbaijan Republic Criminal Procedural Code. It states, “…the house arrest may be chosen by the court’s own initiative, at the defence’s request, as well as at the investigator’s or prosecutor’s suggestion, who carries out the preliminary investigation, in the manner prescribed by the Article 163 of this Code”.

In nearly every case, the defence appeals to the court to change the preventive measure, yet the court unreasonably refuses to grant such appeals.

In this case, when the court had previously imposed a preventive measure in the form of arrest upon the defendants, the defense also filed a motion for house arrest and the court denied the defense’s motion. That is what has happened and continues to happen in all cases. However now, when the prosecutor’s office’s submission was filed, the court immediately granted it. This confirms the dependence of the judicial system on the Executive.

There is a clear division of the legislative, executive and judicial authorities in the Constitution of the Azerbaijan Republic. According to the Article 7 of the Constitution of the Azerbaijan Republic:

III. State power in the Azerbaijan Republic is based on a principle of division of powers:

  • Milli Majlis of the Azerbaijan Republic exercises legislative power;
  • executive power belongs to the President of the Azerbaijan Republic;
  • law courts of the Azerbaijan Republic exercise judicial power.
  1. According to provisions of the present Constitution legislative, executive and judicial power interact and are independent within the limits of their authority.

And yet, if we look at the procedure of appointing judges, then what do we see?

The Article 94 of the Law “Courts and Judges” of the Azerbaijan Republic states:

«Subject to part IX Article 109 of the Constitution of the Republic of Azerbaijan, the President of the Republic of Azerbaijan appoints judges of the Republic of Azerbaijan. Subject to part IX Article 109 and part X Article 95 of the Constitution of the Republic of Azerbaijan, Milli Majlis of the Republic of Azerbaijan appoints the judges of the Supreme Court and appellate courts, upon the advice of the President of the Republic of Azerbaijan.

President of the NAR National Assembly participates in selection of the candidates to the post of judges in the NAR. The presidents of the Supreme Court, appellate courts, NAR Supreme Court and serious crimes courts shall be appointed according to the procedure provided for in the paragraph 32 of Section 109 of the Constitution of the Republic of Azerbaijan.»

Apparently, the mentioned articles of the Law “On Courts and Judges” do not provide any information concerning the judges’ independency.

However, the requirement for judges’ independence is particularly emphasized in the Article 100 of the Law “On Courts and Judges”:

Subject to part I article 127 of the Constitution of the Republic of Azerbaijan, judges are independent and bound by the Constitution and acts of the Republic of Azerbaijan. Independence of judges shall be provided by their depoliticizing and securing their inalterability and immunity; laying limitations on the appointment, calling to liability, suspension and termination of their office; operating of the judiciary independently; administrating of justice in order provided by the legislation; preventing of imposing of any limitations on or interference with court proceedings; ensuring their personal safety; and supplying them with the financial and social provisions according to their posts, throughout the entire term of their office. Court judgments shall be based on independent persuasion of judges and trial outcome.

The judges constantly violate this principle when considering a so-called “sensitive” case, or as they say, the case having a “political motive”. When considering the political cases concerning the arrests of political and public activists, journalists and human rights activists, the judges in Azerbaijan are not either independent or objective, as the law prescribes. They carry out the political assignment issued by the executive authorities.

The Article 6 para.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states: “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”.

The International Covenant on Civil and Political Rights, the Article 14, and the Universal Declaration of Human Rights, the Article 10, also enshrine the principle of independence and impartiality of the courts.

Similarly to a certain number of other guarantees provided by the Article 6 para. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the external signs may also acquire significance in relation to what constitutes the independence of the court. “In order to determine whether a given court can be regarded as ‘independent’, attention should be paid, in particular, to the mode of nomination of its members, the duration of their tenure, the existence of guarantees against outside pressure and the existence of outward signs of independence on the body. Thus, the fact that judges are tenured during their term in office is one of the circumstances to be taken into account in this case”. (Decision of the European Court of Human Rights in Langborger v. Sweden, 22 June 1999).

See: http://echr.ketse.com/doc/11179.84-en-19890622/view/

Thus, the court, by issuing a ruling to change the preventive measure, although it ensured the accused the right to freedom (partial), it failed to provide appropriate motivation, thereby violating a number of procedural guarantees stipulated by the criminal procedural legislation.

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If you are opposition member, you’re guilty of spreading covid-19

IF YOU ARE OPPOSITION MEMBER, YOU’RE GUILTY OF SPREADING COVID-19

Muhammad Imanly

Analysis of violation of law during Mahammad Imanly’s judicial proceedings

Baku City Sabunchi District Court

Case №1 (008)-400/2020

1 December 2020

Judge: Mirheydar Zeynalov

Defendant: Muhammad Imanly

Defender: Asabali Mustafayev

The State Prosecutor: Amin Shakaraliyev

 

On 16 July 2020, Muhammad Imanly, a member of the People Front Party of Azerbaijan (PFPA) at Sabunchi district was arrested by the police officers from the 13th Department of the Baku Sabunchi district.

A day prior his arrest, on 13-14 July, there were intense clashes in Tovuz district on the Azerbaijani-Armenian border. As a result of those fights eleven Azerbaijani militaries were killed including the general Polad Hashimov and colonel Ilqar Mirzoyev.

On 15 July 2020, a large rally and demonstration in support of the Azerbaijani army was held in Azerbaijan. A large number of people were marching a long way from the city of Sumgait to the center of the capital of Baku. The protesters passed by the President administrative building and approached the Parliament. According to eyewitnesses, a small group of strangers burst into the Parliament building and damaged the state property. The rally participants said that those people had been provocateurs who had been sent to break the law. On the photos made during the rally, there were captured some employees of the State Security Service.

After 15 July, there were arrests of PFPA functionaries who were accused of premeditated destruction or large-scale property damage, organization of actions facilitating violation of public order or active participation in such actions, as well as resistance or use of violence against the authorities.

Having participated in the rally Muhammad Imanly marched only up to the “Koroglu” metro station that was a 20-minute walking distance away from the city center, after which he returned home.

Next morning the district policeman came up to M. Imanly’s apartment and asked to follow him to the 13th police station of the Baku City Sabunchi District Police Department. Muhammad Imanly spent there for 4 days, and during that time his family was not informed about the reasons of his detention.

A few days later Muhammad Imanly was brought to the trial. He was prosecuted for the crime commission in the crimes under the Article 139-1.1 (Violation of the anti-epidemic regime, sanitary and hygienic or quarantine procedures) of Criminal Code of the Azerbaijan Republic.

On 22 July 2020, the Baku City Sabunchi District Court issued a ruling to impose a preventive punishment measure against M. Imanly in the form of 3-month detention. Taking into account M. Imanly’s health conditions, he was placed into the Penitentiary Service Specialized Medical Institution #3. During the whole period of his arrest M. Imanly was not allowed to communicate with his immediate family members, relatives or friends. The family was not informed about his condition and the reasons for his arrest. Imanly’s lawyer wasn’t allowed to see him either.

  1. Imanly’s defence filled an appeal against the Sabunchi ruling issued on 22 July 2020 to the Baku Appeal Court, however it was denied and M. Imanly was left under the arrest.

In September 2020, the defense filed a petition to replace the detention measure with a house arrest.

On 19 September 2020, the Baku City Sabunchi District Court rejected the defense’s petition and remanded M. Imanly in custody.

Upon the completion of the preliminary investigation, the criminal case was submitted to the Baku City Sabunchi District Court. A pre-trial hearing was scheduled on 29 October 2020, in the course of which M. Imanly’s lawyer appealed to the court with the following motions: on interrogation of additional witnesses, exclusion of some pieces of evidence from the list of evidences, and carrying out a press audio recording in the courtroom. The judge called for a case postponement due to some technical issues. At the hearing on 12 November the court again failed to provide the technical aspect of the petition.

On 30 November 2020, after having heard the several witnesses’ testimonies, the court announced the completion of the judicial investigation. Imanly’s lawyer objected to that, insisting to ask the court for questioning the accused’s family members and neighbors as witnesses, since the three police officers who were questioned at the trial claimed that M. Imanly had been detained on 20 July 2020. However, according to M. Imanly’s statement, he was detained by the district police at his home on 16 July 2020, whereas his family members and neighbors had been witnessing it. In the course of the trial, M. Imanly testified that he neither had known two of the police officers who appeared before the court, nor they had been engaged in his detention. The policemen testified that after having detained M. Imanly, they brought him to the Baku City Sabunchi District Police Department. In his turn, M. Imanly claimed that he had been brought to the 13th Division of the Sabunchi District Police Department and held over there for 4 days. M.Imanly testified that he had not had COVID-19, and at the time of the trial he had not either. He emphasized that during the detention for four-day-period at the 13th Division the Prosecutor’s Office interrogated him in connection with the demonstration in support of the army, which took place on 15 July 2020. He had been taken for questioning to the General Prosecutor’s Office Investigation Department, then brought back to the 13th Police Department of the Baku City Sabunchi District.

It was not until 20 July 2020, that he was transferred to the Baku City Sabunchi District Police Department, where a criminal case was opened against him based on the Article 139-1.1 of the Criminal Code of the Azerbaijan Republic.  M.Imanly claims that he could not be a carrier of the infection.

According to his words, he was detained by the police officers who did not wear a protective suit. This once again confirms that he was not a carrier of the coronavirus infection. M. Imanly also testified that despite the fact that he had been placed in the Medical Institution, he was not administered any treatment there as he was not contagious.

  1. Imanly’s lawyer submitted the relevant authorization to the court (that was sent via SMS in Baku), according to which his client left his home on the day of detention, which was also an indication that M. Imanly did not have a disease.

In Azerbaijan, those, infected with the coronavirus are restricted in their movement, and the people living together with an ill person are immediately subjected to control. If M. Imanly had been a virus carrier, he would have been prohibited to leave his home (a prohibition sent via the same SMS). However, it did not happen, nor his family members were placed under monitoring. The lawyer asked the judge to pay attention to those undeniable facts.

The police, interrogated during the trial, testified that they carried out the operation in order to determine whether M. Imanly had been infected. The defense lawyer stated that according to the law, it was not within the authority of the police officers, thus they exceeded their authority. Therefore, the lawyer asked the court to exclude their testimony from the evidence. The court dismissed the lawyer’s petition.

The judge, announcing the completion of the judicial investigation, called on the parties to proceed with their statements. The State Prosecutor, making an accusatory speech, asked the court to find M. Imanly guilty of committing the alleged crime and sentenced him to 1 year 6 months of imprisonment. M. Imanly’s lawyer, making a defensive speech, asked the court to acquit the defendant.

On 1 December 2020, the Baku City Sabunchi District Court of issued a verdict against an opposition party (APFP) activist.  The court found M. Imanly guilty of the charges and sentenced him to a-year-imprisonment at the general regime penal colony.

 

Commentary by an expert lawyer:

The court verdict is illegal and unjustified. M. Imanly was charged in accordance with the Article 139-1.1 of the Criminal Code of the Azerbaijan Republic. Criminal Code of the Republic of Azerbaijan. According to this Article, violation of the anti-epidemic regime, sanitary – hygienic or quarantine regime leads to the disease spread or poses a real threat of the disease spread, and it is punishable by a fine in the amount of two thousand five hundred to five thousand manats or restraint of freedom for up to three years, or imprisonment for a term of up to three years.

One of the striking violations in that case was the date on which the sentence should be calculated. As mentioned above, in the course of the trial M. Imanly testified that the district police officers arrived at his home and asked him to go to the Sabunchi district 13th Police Department on 16 July 2020, where he had been held for 4 days. The court did not verify M. Imanly’s testimony and did not take the initiative to establish the truth. It was enough to capture the video footage from the surveillance cameras installed outside the 13th Police Department, as well as inside its administrative building.

According to the Article 158.2 of the Azerbaijan Republic Criminal Procedure Code, the term of detention is to be calculated starting from the factual moment of the accused detention or, if he is not held, at the time of the implementation of the court decision on arrest as a restrictive measure. The following shall be included in the period for which the suspect or accused is detained on remand:

158.2.1. the period of detention and remand;

158.2.2. the period of house arrest;

158.2.3. the period during which he was detained in a medical establishment for an inpatient medical report under coercive procedural measures or on account of temporary illness.

The Article 158.2.4. states that the accusal sentence should be counted from the moment of detention outside the Azerbaijan Republic until the transfer to the body carrying out the criminal proceedings on the territory of the Azerbaijan Republic.

The actual detention of M. Imanly was dated on 16 July 2020, and in the sentence the effective date of the punishment was indicated as 21 July 2020. M. Imanly was illegally detained for extra 5 days.

The Article 148.6 of the Azerbaijan Republic Criminal Procedure Code states: “The detention of a person on the basis of suspicion of having committed a crime cannot last more than 48 hours, with the exception of the case stipulated by the Article 148.7 of the present Code. The detainee shall be informed of the charges prior to the expiration of the above-mentioned period, and, if the public prosecutor has submitted a request for detention, the detainee shall be brought before a court, in its turn the court shall consider the case without delay in order to rule on the choice of a preventive measure of detention against the person or on his/her release”.

According to the Article 5 paragraph 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

M.Imanly was detained with the violations of the specified criminal procedural norms.

The verdict stated that M. Imanly walked out of the house without authorization in the form of an SMS. However, in the course of the trial, M. Imanly’s lawyer submitted such a permission to the court, and indicated that his client had not been restricted in any way to leave the house. The court, distorting the case evidence in favour of the accused, issued an unlawful verdict.

At the trial, M. Imanly testified, but the court interpreted his testimony as a defensive one. However, in the verdict there were no reasons for such a conclusion.

There is also an objective suspicion with respect to the imposition of the sentence. In accordance with the Article 41.2 of the Azerbaijan Republic Criminal Code, punishment is applied with a view of restoration of social justice, correction of condemned and prevention of committing new crimes by condemned and other persons. According to the Article 58.1 of the Azerbaijan Republic Criminal Code, to the person, which is recognized as guilty in commitment of a crime, shall be appointed fair punishment in the limits provided by appropriate articles of the Especial part of the present Code, and in view of positions of the General part of the present Code. More strict kind of punishment from among provided for a crime shall be appointed only in case, if less strict kind of punishment cannot provide achievement of the purposes of punishment.

In accordance with the paragraph 2 of the Supreme Court Plenum Resolution “On the Practice of Criminal Sanctioning Impositions by the Courts” from 25 June 2003, “if the sanction of the article according to which an individual was found guilty provides for the imposition of lighter penalties in addition to the imprisonment, it should be considered as the basis of the sentence upon imposition of the punishment”.

The Article incriminated to M. Imanly stipulates penalties not related to imprisonment. Thus, the Article specifies the following penalties: a fine in the amount ranging from two thousand five hundred to five thousand manats, or the deprivation of freedom for up to three years, or imprisonment for up to three years. The Court did not specify in the verdict the reasons for imposing the most severe punishment in the form of imprisonment. Besides, there were no any negative consequences of the incriminated crime.

In imposing the punishment, the court should always take into account mitigating and aggravating circumstances. The court did not identify any aggravating circumstances in M. Imanly’s case. However, it did not take into account the mitigating circumstances.

According to the Article 59.1 of the Azerbaijan Republic Criminal Code, the mitigating circumstances are:

59.1. Circumstances softening punishment shall be following:

59.1.1. commitment for the first time, owing casual coincidence of circumstances, a crime which are not representing big public danger or less serious crimes;

59.1.2. commitment of a crime by the minor;

59.1.3. commitment of a crime by the pregnant woman;

59.1.4. presence of dependent on the person, who have committed a crime, of a juvenile child;

59.1.5. commitment of a crime by virtue of confluence at heavy vital circumstances or on motive of compassion;

59.1.6. commitment of a crime as a result of physical or mental compulsion or by virtue of material, service or other dependence;

59.1.7. commitment of a crime at infringement of conditions on legitimacy of necessary defense, detention of the person who has made socially dangerous act, emergency, proved risk, execution of the order or instructions;

59.1.8. commitment of a crime owing to illegal or immoral actions of the victim or in a condition of suddenly arisen strong emotional excitement (affect) caused by such actions;

59.1.9. to give himself up and to confess, active actions on disclosing of a crime, exposure of other accomplices of a crime, to search and detection of the property extracted as a result of a crime;

59.1.10. rendering of medical and other help to the victim after direct r commitment of a crime, voluntary compensation or elimination of the material and moral harm, caused as a result of a crime, attempt to come to consent with the victim, other actions directed on smoothing down of harm, caused to the victim.

59.1.11. a minimizing of harm to the victim’s life and health by providing medical or other assistance immediately after the commission of the crime;

59.1.12. reconciliation with the victim or the legal successor that is his close relative;

59.1.13. full, voluntary compensation or elimination of the harm caused by the crime;

59.1.14. partial compensation of the harm, inflicted as a result of a crime, or performance of other actions, entailing the reduction of the harm.

In the case of M. Imanly, there were mitigating circumstances (his guilt was not proven), such as the fact that he had two young children, one of which was one and a half years old and the other was just 4 months old (born one and a half months after the arrest of his father on 27 August 2020). Also, the court did not take into account the defendant’s first criminal record and his personality (his university education, young age, and good reputation).

The witnesses’ testimonies are crucial to the case. It is known that three police officers testified as witnesses in the case. The court interpreted their testimony as truthful and irrefutable, while the defendant’s testimony was not examined by the court. And the lawyer’s request to call up M. Imanly’s neighbours and family members to testify as witnesses was denied.

In this case, the court breached the principle of a fair trial. The trial dynamics suggest that fairness of a trial can solely depend on a full consideration of all the actions taken in those proceedings. There are two aspects upon which the jurisprudence focuses that concern mainly the evidence and observance of a defender’s rights. The witness’ testimony falls within the realm of evidence. It was mentioned above that the defence requested to question additional witnesses, the defendant’s family members as well as his neighbours. However, the court unreasonably denied the motion, thereby failing the initiative to establish the truth of the criminal case. Thus, the principle of adversarial nature and equality of the parties has been violated.

The necessity to avoid the parties’ inequality and ensure their equality has been repeatedly demonstrated within the practice of International courts. The equality of arms is intended to prevent, especially in the criminal proceedings, a defendant from being disadvantaged vis-à-vis the prosecution. Unfortunately, the denial of essential motions submitted by the defence and acceptance of the police testimonies as truthful and irrefutable led to M. Imanly’s unjustified conviction and a rather long imprisonment term.

The right to a fair trial is guaranteed by the Article 6 paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to this article, 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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

“…The principle of equality of arms is part of the broader notion of a fair trial, which also includes the fundamental principle of the adversarial nature of the criminal process. The right to an adversarial criminal trial means, as for the prosecution and as for the defence, an opportunity to examine and respond to the observations and evidence submitted by the other party. The National legislation may fulfil this requirement differently but the legal procedure must guarantee that the adverse party will be aware of the comments and able to comment on them” (the Judgment of the European Court of Human Rights in the case of Belziuk v. Poland of March 25, 1998) – file:///C:/Users/User/Downloads/001-58145.pdf

An Article 6, paragraph 3 (d) states: “Everyone charged with a criminal offence has the following minimum rights to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

Unfortunately, the court did not grant the defence’s request to interrogate the other witnesses, thus violating the above-mentioned Norm of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Therefore, the state bodies, including the court, violated Muhammad Imanly’s right to freedom, guaranteed by the Article 28 (items I and II) of the Constitution of the Azerbaijan Republic, by the Article 14 of the Azerbaijan Republic Criminal Procedure Code, by the Article 5 Paragraph 1 of the European Convention on Human Rights, by the Article 9 Paragraph 1 of the International Covenant on Civil and Political Rights, by the Article 9 Paragraph 1 of the Universal Declaration of Human Rights, and by the numerous precedents of the European Court of Human Rights, rulings of which comprise recommendations

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Afghan Sadigov, a journalist, went on a hunger strike immediately after being illegally convicted and in 82 days he fell into coma…

Afghan Sadigov, a journalist, went on a hunger strike immediately after being illegally convicted and in 82 days he fell into coma…

Afgan Sadigov 

Analysis of violation of law during Afgan Sadigov and Sakit Muradov’s judicial proceedings

Baku Court on Serious Crimes

Case № 1 (101)-876/2020

3 November 2020

Presiding judge: Ilham Mahmudov

Judges: Mirza Khankishiyev, Faiq Qaniyev

Defendants: Afgan Sadigov, Sakit Muradov

Defenders: Shahin Dadashev, Elchin Sadigov

The State Prosecutor: Jeyhun Azadaliyev, a prosecutor of the Prosecution Department of the AR General Prosecutor’s Office

Defendant’s representative: Laiga Hidayatova

Afgan Sadigov is a journalist, founder and editor of the Azel.TV website. Sadigov had previously been prosecuted, and human rights activists added him to the list of political prisoners. Thus, for the first time he was detained on 22 November 2016, on charges of committing a crime under the Article 127.2.2 (Deliberate causing of less serious harm to the health which was not dangerous to life of a victim and did not bring to any consequences, committed with special cruelty, tortures to a victim) of the Criminal Code of the Azerbaijan Republic. On 12 January 2017, the Jalilabad District Court issued a verdict against the journalist: he was found guilty of the incriminated crime and sentenced to 2.5 years of imprisonment. The Supreme Court of the Azerbaijan Republic changed that sentence to one year and six months. On 23 May 2018, Afgan Sadigov was released.

On 27 November 2018, the journalist was charged with an administrative offense under the Article 535.1. (persistent insubordination of legal request of policeman) of the Administrative Code of the Azerbaijan Republic and sentenced to 30 days of administrative detention.

On 13 May 2020, Afgan Sadigov was detained by the officers of the Main Department on Combating Corruption within the Azerbaijan Republic General Prosecutor’s Office. His lawyer, Elchin Sadigov, communicated with the Department, but he was not told what his client had been accused of. Following the arrest, Sadigov’s house was searched. His wife, Sevinj Sadigov, wrote on her Facebook profile, “My phone and computer were illegally confiscated. Yes, I consider it illegal. Afghan is accused of corruption, but they found only 30 manats at home. This arrest is not accidental and the customers are known. Then they took away manuscripts that belonged to Afgan. A writer or journalist has to write, what’s so surprising? Afghan has always been a target for his articles and remarks”.

Along with Afgan Sadigov, they also detained Sakit Muradov, the editor-in-chief of the website Xeberfakt.az.

Muratov was charged with the same charges that were brought against A. Sadigov.

On 13 May 2020, the Baku Binagadi District Court issued a preventive measure against Sadigov and Muradov: Sadigov was placed in custody for 4 months, Muradov was placed under the police supervision.

On 14 May 2020, the State central TV channel AzTV broadcasted a video allegedly proving Afgan Sadigov’s guilt in its “News” program, and also played a WhatsApp audio recording. On AzTV’s Youtube channel, the video appeared under the following title “Two journalists detained while soliciting and obtaining 10 thousand manats”.

See: https://www.youtube.com/watch?v=2bHzi4ezHtI

The same day, the Head of the Press Service of the Azerbaijan Republic General Prosecutor’s Office, Eldar Sultanov, made a statement regarding the criminal case against the journalists. He said that the criminal case was initiated following a complaint submitted to the Main Anti-Corruption Department. ” The necessary investigative actions and operative-investigative measures have been carried out with regard to the case. Afghan Sadigov is detained under suspicion of committing criminal acts under the relevant articles of the Criminal Code. We will provide more information to the public later,” said Eldar Sultanov.

Sadigov was accused of committing crimes under the Articles 182.2.1 (Extortion committed on preliminary arrangement by group of persons) and 182.2.4 (Extortion committed with causing damage to a victim in significant size) of the Criminal Code of the Azerbaijan Republic. The other defendant in the case, Sakit Muradov, was also charged under these articles.

According to the investigation version, Afgan Sadigov, having colluded with his colleague, Sakit Muradov, the chief editor of the website Xeberfakt.az, threatened respectively Gunduz Aliyev on 9 May 2020 and Adil Khudadatov on 13 May 2020, to spread the evidence of their malfeasance. The journalists demanded 15 thousand manat cash from each, Gunduz Aliyev and Adil Khudadatov, in exchange for their silence.

On 29 June 2020, A. Sadigov’s wife, Sevinj Sadigova, held a protest in front of the building of the Prosecutor General’s Office’s Main Anti-Corruption Department. She stated that her husband’s case investigation was going wrong and that he was arrested for his critical articles. “Let my husband be released since they illegally arrested him. Release my husband from captivity. He is a prisoner in his own country. The charges against Afgan are very serious. How can it be that the journalist’s wife, the journalist who has bribed officials, couldn’t find enough money to visit him in prison. Have them come and see how we live. I’m left with two young children and I can’t support them. They should look at the livelihood of the officials who gave the order. Then they will see who is really corrupt”, said Sevinj Sadigova at the rally. The Deputy Head of the Department, Anar Mammadov, listened to S.Sadigova who told him about her husband’s unlawful detention.

At the end of the preliminary investigation, the case was referred to the Baku Court of Serious Crimes.

A preliminary hearing was scheduled on 10 August 2020. During the preliminary hearing, the defence filed a number of motions with the court, but the court denied them. A trial on the merits was scheduled on 1 September 2020. The journalist’s wife, as well as human rights activists and journalists, were not allowed into the courtroom. The reason given by the bailiff was that the coronavirus pandemic in the country was rampant, and therefore the courtroom could not accommodate more than 10 people. However, he did not explain to A. Sadigov’s wife who those 10 people were.

During the trial, the accused, Afgan Sadigov pleaded not guilty to the charges and testified that on 7 May 2020, Sakit Muradov called him from an unknown number and proposed to meet. S. Muradov said that it was a serious matter. The same day, they met in S.Muradov’s car parked not far from the “Baku” cinema. During the meeting, S.Muradov informed A. Sadigov that he could befriend the head of the Sumgayit City Executive Authority, Zakir Farajev and requested not to write any more critical articles about him. He also offered, just for the sake of friendship, to take money from an employee of the Sumgayit City Executive Authority, by the name of Gunduz, in the amount of 15 thousand manat. A. Sadigov asked S.Muradov what was his goal and interest in this case, to which S.Muradov replied that Gunduz was his relative. Later, A. Sadigov repeatedly tried to contact S. Muradov, but he failed. On 13 May 2020, S.Muradov called again to A.Sadygov and proposed to meet at the same place, in his car. During the meeting, S. Muradov handed Afghan Sadigov 10 thousand manats.

  1. Sadigov received the money, however, he returned 1 thousand to S.Muradov, and the rest he left in Muratov’s car.

During the trial, the accused Sakit Muradov pleaded not guilty to the charges and indicated that he had been the editor-in-chief of Xeberfakt.az since 2015. On 10 May 2020, Gunduz Aliyev, an employee of the Sumgayit City Executive Authority, called Sakit Muradov and said that Afghan Sadigov constantly wrote critical articles concerning the management of the mentioned structure. G.Aliyev also said that it bothered his organization, so they should meet to resolve the issue. Muradov agreed to meet and next day they met on the boulevard in Sumgayit. Gunduz Aliyev asked S.Muradov to talk to A.Sadigov in order to suspend publication of the critical articles regarding the management of the above-mentioned structure. In his turn Aliyev also offered money. A.Sadigov agreed to accept 15 thousand manat and promised to remove the published material from the website.

S.Muradov passed A. Sadigov’s consent to Gunduz Aliyev. Two days later, Gunduz Aliyev called S. Muradov and said that 15 thousand manats would be divided in two parts: at the beginning, it would be paid 10 thousand, and 5 thousand would be given within the next two months. Afghan Sadigov accepted. Having met with A. Sadigov, Muradov handed him 10 thousand manat, of which he received 1 thousand manat as a gestur of gratitude from A. Sadigov. As they were leaving the car, they were approached by the employees of the Anti-Corruption Department of the AR General Prosecutor’s Office. Then, he realized that it was an operational-search activity. Sakit Muradov stated that he repented of what he had done.

Laig Hidayatov’s representative testified in the court that Afghan Sadigov and Sakit Muradov had demanded 15 thousand manats in exchange for not spreading the evidence of the Sumgayit City Executive Authority malfeasance. She requested the court to sentence Afgan Sadigov to imprisonment and Sakit Muradov to a non-custodial punishment.

Gunduz Aliyev, interrogated as a witness at the trial, confirmed the testimony of the representative and added that he had not been aware of A.Sadigov’s and S.Muradov’s previous convictions. He also testified that two months prior to the operation, A. Sadigov stated that if he had not been paid, he would not have removed the discrediting information from the site and would have spread more facts of malfeasance concerning the Sumgayit City Executive Authority. This was said by Afgan Sadigov to Gunduz Aliyev.

The interrogated during the trial, Adil Khudadatov, testified that he was the Head of the Architecture and Construction Department at the Sumgayit City Executive Authority. In 2018-2019, Afgan Sadigov constantly published information discrediting his Department. The information concerned the embezzlement of public money, non-compliance with quarantine regulations, illegal deforestation on the territory and other illegal things. He also testified that in March 2020, Sadigov had been warned and asked to stop his publications. Further, his testimony was similar to that of Gunduz Aliyev.

On 11 June 2020, during the forensic examination it was found that the confiscated banknotes had been made with special protection in a typography and were identical to the real ones. Based on the report, “Nazarat 2020” (“Control 2020”) was inscribed on all the banknotes.

By the forensic audio expertise dated 30 June 2020, it was determined that audio files registered the voices of Afgan Sadigov, Sakit Muradov, Gunduz Aliyev and Adil Khudadatov and have been attached to the case file. Also, the expertise confirmed that the voices on the files had belonged to the above-mentioned persons.

The case file also contained a note that on 31 July 2014 Sakit Muradov had been found guilty of committing a crime under the Article 178.2.4. of the Azerbaijan Republic Criminal Code (Fraud causing significant damage) and fined with 2 thousand manats by the verdict issued by the Zaqatala District Court. On 4 July 2016, given the Amnesty Act, he was exempted from punishment in the form of a fine.

The court concluded that there were no grounds to exclude Afgan Sadigov and Sakit Muradov from the criminal liability.

On 3 November 2020, the Baku Court of Serious Crimes convicted the accused: Afgan Sadigov and Sakit Muradov had been found guilty of the incriminated crimes and sentenced: Afghan Sadigov to 7 years in a general regime colony, and Sakit Muradov to 4 years 11 months 29 days in a penitentiary with probation.

It should be noted that Afgan Sadigov had been on hunger strike since 4 November 2020. As a result of the hunger strike, the journalist’s health condition dramatically deteriorated.   In January 2021, he was transferred to the Medical Institution of the Penitentiary Service within the Ministry of Justice of the Azerbaijan Republic. According to the journalist’s wife, he had lost weight, from 95 kg to 57 kg and had suffered with serious kidney, liver, and heart problems. According to the doctor, A.Sadigov’s condition was considered to be critical.

 

On 24 January 2021, Afgan Sadigov fell into a coma following 82-day-hunger strike.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. Both defendants were charged with committing crimes under the Articles 182.2.1. and 182.2.4 of the Azerbaijan Republic Criminal Code. According to the Article 182, extortion, is requirement to transfer another’s property or right on property or commitment of other actions which is admitted as in property nature under threat of application of violence, distribution of data, dishonoring a victim or his close relatives, as well as by threat of destruction of property belonging to them is punished by restriction of freedom for the term up to three years or imprisonment for the term from three up to five years.

The Article 182.2 of the Criminal Code of the Azerbaijan Republic states:

182.2. The same act committed:

182.2.1. on preliminary arrangement by group of persons;

182.2.4. with causing damage to a victim in significant size – is punished by imprisonment for the term from five up to ten years with confiscation of property or without it.

The incriminated articles do not provide any alternative forms of punishment not involving arrest. However, the court may, at its own discretion, impose a suspended sentence. Both accused have the same charges under the same Azerbaijan Republic Criminal Code articles, but the imposed sentences are absolutely different. The court didn’t clarify the reasons why Afgan Sadigov had been sentenced to 7 years of imprisonment whereas Sakit Muradov got only 4 years 11 months and 29 days of suspended sentence. Both of them have small children, both had been previously convicted, though their convictions had been cleared so far.

Moreover, as mentioned above, both Afgan Sadigov and Sakit Muradov had been detained at the same time, on 13 May 2020. Yet, on 14 May 2020, Sakit Muradov was taken into police custody as a preventive measure, while Afgan Sadigov was subjected to the harshest measure, an arrest.

The text of the incriminated Article contains the phrase “spreading the information disgracing the victim or his/her close relatives”. According to the verdict, the interrogated in the course of the judicial investigation Adil Khudadatov testified what kind of information they considered to be discrediting and disgracing the Sumgayit City Executive Authority: the embezzlement of public money, non-compliance with quarantine regulations, illegal deforestation on the territory and others. As we can see, the above-mentioned facts relate to the functioning of this state structure, and the journalist’s duty is to inform the public about the obtained information and share his thoughts and ideas, including the critical ones. If this information was related to the illegal activities of the officials, there are no insults or slander in it, so it cannot be considered to be a disgrace aimed against someone’s dignity and reputation.

In the course of trial, Afgan Sadigov did not plead guilty and testified that he had first taken the money but then rejected it. This testimony was not verified by the court. Besides, the court neither did comment at all upon that testimony and nor gave any legal assessment of it.

Taking into account the testimony of the other defendant, Sakit Muradov, at first he stated his innocence, but then he said that he repented of what he had done. That was the reason for S. Muradov’s suspended sentence.

During the trial the court grossly violated the principle of the trial transparency. Neither the journalists nor human rights activists were allowed into the courtroom, even the journalist’s wife was not allowed into the courtroom. There was a video showing Afgan Sadigov’s wife talking to a court officer who did not let her in the courtroom. That video was broadcasted in the media. The prohibition was justified by the fact of the pandemic in the country. During the coronavirus pandemic, the principle of transparence was particularly grossly violated at all trials in Azerbaijan without exception.

According to the Article 127, paragraph V of the Constitution of the Azerbaijan Republic, in all law courts hearing of legal cases shall be open. It is allowed to have closed hearing of legal cases only if the law court decides that open hearings may result in disclosure of state, professional or commercial secrets, or that it is necessary to keep confidentiality with respect to personal or family life.

The Article 27.1 of the Criminal Procedure Code of the Azerbaijan Republic states: “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.”

The court, not allowing those wishing to attend, explained the reason for the denial by the coronavirus pandemic, as well as the existence of the relevant informative recommendation issued by the Supreme Court of the Azerbaijan Republic on 15 May 2020.

According to the Paragraph 1.1.3. of the above recommendation, it is prohibited to gather more than 10 people at a single place in the courtrooms, including the administrative court buildings. Even this Supreme Court of the Azerbaijan Republic recommendation was violated. First of all, there were the defendants, defense attorneys, the prosecutor, the judge, and the secretary of the court session in the courtroom. It means that at least the journalist’s spouse could have been admitted into the courtroom. Secondly, according to the Paragraph 2.2.2 of the Decrees signed by the President of the Azerbaijan Republic “On Creation of Electronic Court Information System” from 13 February 2014, the court proceedings on criminal, civil, commercial, administrative and administrative offences can be conducted electronically. Despite the fact that the decree was adopted back to 2014, it was not implemented during the pandemic. Instead of ensuring the openness of the judicial process and providing the technical facility for online broadcasting to the parties, the courts preferred to carry out the trials behind closed doors. It is known that in Russia, for example, this is the practice during the new coronavirus pandemic. Trials in “sensitive cases” are broadcast via Youtube channels or the social network Facebook. There is another possibility to keep court proceedings open: by providing technical support services to the courts, i.e. putting a monitor in a place where it will be available for people who want to watch the trial. All of the above indicates that the Azerbaijani courts were not intended to carry out trials openly, that is why none of the opportunities provided by the legislation has been used.

The principle of transparency is protected by the norms of the International Law, in particular by the Article 6, paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, by the Article 14, Paragraph 1 of the International Covenant on Civil and Political Rights, as well as by the Article 11, paragraph 1 of the Universal Declaration of Human Rights.

Thus, one of the fundamental fair trial principles, the principle of transparency, was grossly violated by the Baku Court of Serious Crimes.

The National and International laws are protecting the presumption of innocence. In this case, the media released a video made during the operational activities, in which it was shown Afgan Sadigov’s detention by the officers of the Anti-Corruption Department of the Azerbaijan Republic General Prosecutor’s Office that took place in S. Muradov’s car. The purpose of the video broadcast was to portray the journalist as an extortionist.

According to the Article 21 of the Constitution of the Azerbaijan Republic:

21.1. Any person suspected of committing an offence shall be found innocent if his guilt is not proven in accordance with this Code and if the court has not delivered a final judgment to that effect.

21.2. Even if there are reasonable suspicions as to the guilt of the person, this shall not cause the latter to be found guilty. The accused (the suspect) shall receive the benefit of any doubts which cannot be removed in the process of proving the charge in accordance with the provisions of this Code, within the appropriate legal proceedings. He shall likewise receive the benefit of any doubts which are not removed in the application of criminal law and criminal procedure legislation;

21.3 The accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defence of the suspect or the accused.

The presumption of innocence principle is enshrined in the Article 6, Paragraph 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It states, “Everyone accused of a criminal offence shall be presumed innocent until his guilt has been proved in accordance with a lawful procedure”.

Similarly, the Article 14, Paragraph 2 of the International Covenant on Civil and Political Rights and the Article 11, Paragraph 1 of the Universal Declaration of Human Rights protect the presumption of innocence.

It is forbidden to violate the principle “the presumption of innocence” by the European Court of Human Rights for the member countries of the Council of Europe.  However, there are multiple precedents. Thus, in the judgment of the European Court in the case of Salabiacou v. France issued on October 7,1988, it is written, “Any legal system recognizes presumptions based on facts or Law; The Convention does not, in principle, create any obstacle to this, but it obliges the Contracting States, within the realm of criminal law, not to exceed a certain limit in this respect.

See: https://sherloc.unodc.org/cld/uploads/res/case-law-doc/drugcrimetype/_irb/salabiaku_v__france_html/SALABIAKU_v._FRANCE.pdf

There is no reasoning in the court verdict. According to the Article 349.3 of the Criminal Procedure Code of the Azerbaijan Republic, the court judgment shall be lawful and well-founded.

The Article 349.5 of the Criminal Procedure Code of the Azerbaijan Republic states:

349.5. In the following cases the court judgment shall be considered well-founded:

349.5.1. if the conclusions at which the court arrives are based only on the evidence examined during the court’s investigation of the case;

349.5.2. if the evidence is sufficient to assess the charge;

349.5.3. if the facts established by the court are consistent with the evidence investigated.

As it is clear in the verdict, there was insufficient evidence in the criminal case to determine the charge. In addition, the court’s finding was based solely on the evidence gathered during the investigation. The justified motions submitted by the defense were unreasonably denied by the court, which prevented the determination of the truth in the case as well as a comprehensive, complete and objective examination.

The illegal, groundless and unsubstantiated verdict actually cost the journalist his life.  Afghan Sadigov, who began a hunger strike immediately following the verdict, and who did not receive the necessary medical care, fell into a coma on 24 January 2021…          

 

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Neither the prosecutor’s office nor the court accept the claim regarding the police unlawful actions

NEITHER THE PROSECUTOR’S OFFICE NOR THE COURT ACCEPT THE CLAIM REGARDING THE POLICE UNLAWFUL ACTIONS

Ruslan Izzatli

Analysis of the Baku Administrative Court violations upon the ruling on Ruslan Izzatli’s claim

Baku Administrative Court

Case №2-1 (112)-574/2020

26 November 2020

Judge: Mehriban Qarayeva

Claimant: Ruslan Izzatli

Respondent: the Baku Nariman District Prosecutor’s Office 

The Chairman of the opposition organization Movement D18 (Democracy 1918), Ruslan Izzatli, was a candidate at the early parliamentary elections on 9 February 2020. His candidacy was registered within the District Election Commission. R. Izzatli was a nominated as a candidate of the 33rd Khatai electoral district of Baku City of Baku. In accordance with the electoral legislation there was held an election campaign. On the day of the parliamentary elections, 9 February 2020, a large number of violations was registered at the polling stations, and it was indicated at the corresponding protocols. Some representatives of the opposition political and public sectors have become nominees for the parliamentary elections. However, almost no one made it to the parliament.

On 16 February 2020, the candidates who disagreed with the election results decided to protest in front of the Central Election Commission administrative building.

In this regard, an appeal to the Baku Supreme Executive Authority was drawn up in order to alert the authorities. One of the organizers of the action was Ruslan Izzatli. But the Baku Authority deemed the action unacceptable. Although, the organizers still decided to carry out a protest action and express their disapproval. Due to the prepared action R. Izzatli was summoned to the Baku City Police Department, where he was warned that in case of an unsanctioned action its organizers would be brought to responsibility.

On 16 February 2020, Ruslan Izzatli went out from his house and went to the office of Movement D18 located in the Baku Narimanov district. At 12.30 p. m., approaching the office, he saw a black car with a license plate No. 90-AP-104 parked in the office backyard. In the car, there were three unknown to him men in civilian clothes. Without any explanation, these people grabbed R. Izzatli, forcibly put him in the car and drove him away in an unknown direction. Later, it became clear that the car belonged to the officers of the Baku City Police Department. The members of the Movement D18 organization managed to catch on video and take pictures of the seizure moment and violent treatment of R. Izzatli.

Samira Agayeva, a member of the Movement D18 Board appealed to the Minister of Internal Affairs of the Azerbaijan Republic, Vilayat Eyvazov, through the Internet; in her appeal to the Minister she described what had happened, indicating the car license plate. That appeal was registered at 16:14 on 20 February 2020, about which S. Agayeva received a confirmation on her mobile phone.

According to Ruslan Izzatli’s testimony, he was first brought to the Baku City Police Department, however a few minutes later he was taken away from there in a different direction. R. Izzatli said that while he was in the car, he realized that the people in civilian clothes were in reality the officers from the Police Department. Approximately four hours later (around 5 p.m.) he was brought to the town of Yevlakh, 294 km away from Baku, where he was dropped off in a deserted place. R. Izzatli managed to get back to Baku with great difficulties at about 9 p.m.

The illegal actions of the police officers made Ruslan Izzatli appeal to the Baku Narimanov District Prosecutor’s Office, in which he complained and demanded to initiate a criminal case against the police officers who had violated his rights and freedom. He requested to identify those police officers, provide a legal assessment of their actions and bring them to justice. The complaint also stated that the rights to freedom of assembly and freedom of speech had been violated, since the planned action supposed to be of a peaceful nature.

Beyond the deadline, established by law, for a justified response to the citizens’ appeals, the Baku Narimanov District Prosecutor’s Office did not provide any response regarding the investigation of the complaint to the applicant.

The Narimanov District Prosecutor’s Office sent a complaint to the Baku City Prosecutor’s Office, and the Baku City Prosecutor’s Office sent it, in its turn, to the Central Election Commission for the investigation. It should be noted that the complaint concerned the police officers’ illegal actions, which should be assessed by the Prosecutor’s Office rather than the Central Election Commission.

  1. Izzatli has not received a reply from the Baku City Narimanov District Prosecutor’s Office. Consequently, he filed a lawsuit to the Baku Administrative Court to impose on the Prosecutor’s Office the obligation to provide a substantiated response.

On 26 November 2020, the Baku Administrative Court issued a ruling that Ruslan Izzatli’s claim was considered unsustainable.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. In accordance with the Article 57.1 of the Constitution of the Azerbaijan Republic, citizens of the Azerbaijan Republic have the right to appeal personally and also to submit individual and collective written applications to state bodies. Each application should be responded to in an established order and term.

The right to appeal is also stipulated in the Article 1 of the Law of the Azerbaijan Republic, “On Appeals of Citizens”. According to the Article:

1.1 The citizens of the Azerbaijan Republic have the right to appeal to the state and municipal bodies, to the legal entities that are either in the state or municipally authorities, whose controlling interest (shares) belong to the state or municipalities, and to the state budget organizations/ their officials either personally or through a representative, both in writing and orally, independently or as a group.

1.2. The right to appeal shall be exercised by the citizens independently and voluntarily. The citizens’ exercise of their right to appeal must not violate the rights and freedoms of others.

1.3. It is strictly prohibited to impose restrictions on a citizen’s right by reason related to his/her race, nationality, religion, language, gender, origin, wealth, official position, convictions, affiliation with a political party, trade union, or other public association.

In accordance with the Article 7.5 of the Law of the Azerbaijan Republic “On the appeal of citizens”, upon consideration of the issue indicated in the appeal, and notification of a citizen (in case of collective appeals just the of the applicants), there is only a justified response shall be treated as a considered appeal. The reply to the appeal is delivered in the official state language. This norm prescribes the fact that not each response may be regarded as a considered complaint. Only a substantiated justified response is regarded as considered complaint.

According to the Article 2.2.2 of the Administrative Procedural Code of the Azerbaijan Republic, the following actions are considered in the order of administrative proceeding: actions on imposition of relevant liability on administrative body concerning the adoption of an administrative act or petitions on defence against the inactivity of administrative bodies (action on compulsion).

The Article 33.1 of the Administrative Procedural Code of the Azerbaijan Republic states, that claimant may require the court to impose, the responsibility to accept the administrative act on respondent, through the claim on compulsion.

From the above-mentioned articles, it is clear that the plaintiff Ruslan Izzatli applied to the Court with the claims in accordance with the legislation. The Baku Administrative Court had to consider his claim.

In the Court ruling it was written, “As it is evident, the plaintiff demanded a substantiated response to his complaint concerning the pressure by the police officers, and the claim has been sent to the Narimanov district prosecutor’s office”.

The Court’s ruling further states, “As it appears, the claim is about illegal actions of the police officers. According to the Article 67.1 of the Criminal Procedure Code of the Azerbaijan Republic, the district (city) courts function as the courts of first instance”.

On the page 3 of the Court ruling it is said, “The investigation reveals that the claimant’s suit cannot be considered in the administrative proceedings, as it is related to the criminal procedure activities of the administrative body”.

Apparently, the commented court’s ruling contains two opposite conclusions: the first is the claim related to the police officers’ illegal actions, the second is related to the lack of a substantiated response to the appeal.

In view of the fact, that the court’s conclusions are initially erroneous, consequently, the final determination also raises doubts about its legality and validity.

There are the principles of administrative proceedings listed in the Code of Administrative Procedure. Thus, according to the principle of independence of judiciary and Article 10.1 of the Code of Administrative Procedure, judges shall act independently and adhere solely to the Constitution and legislation of the Republic of Azerbaijan when carrying out administrative court proceedings.

The principle of equality before law and court states, that the court shall be bound to create full and equal opportunities to participants to express their attitude, exercise their procedural rights and duties in the course of administrative procedure (the Article 11.2 of the Code of Administrative Procedure).

The principle of investigating merits of a case and the Article 12 of the Code of Administrative Procedure states:

12.1. Court shall be bound to investigate all factual merits that are significant in proper settlement of a dispute, having been not content with explanations, applications and proposals of participants of judicial procedure, the evidence provided by them and other materials available in case.

12.2. Court shall be obliged to independently gather other necessary evidence on its own initiative or based on the motion by participants. Court may request additional information and evidence from the parties.

The Court, without summoning the claimant to the hearing, without having heard his arguments, and without initiative in a fair case examination, rendered an unlawful and unreasonable ruling, thereby violating the right to a fair trial, guaranteed by the Article 6 paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 14 of the International Covenant on Civil and Political Rights, as well as the Article 8 of the Universal Declaration of Human Rights.

 

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The court declared a journalist Polad Aslanov to be “a national traitor”

THE COURT DECLARED A JOURNALIST POLAD ASLANOV TO BE “A NATIONAL TRAITOR”

Polad Aslanov

Analysis of violation of law during Polad Aslanov’s judicial proceedings

Baku Court on Grave Crimes

Case №1 (101)-369/2020

16 November 2020

Presiding judge: Faiq Qaniyev

Judges: Mirza Khankishiyev, Ilham Mahmudov

Defendant: Polad Aslanov

Defenders: Elchin Sadigov, Kamran Musayev

The state prosecutors: Ali Aliyev, the prosecutor of the Baku section of the Public Prosecution Department at the General Prosecution Office of the Azerbaijan Republic; Seyhun Azadaliyev, the prosecutor of the Department for Public Prosecution at Serious Crimes Courts of the Azerbaijan Republic Public Prosecution Office; Eldar Hamza, the Senior prosecutor of the above-mentioned section.

Victim: Dayanat Babayev

Polad Aslanov, a journalist, the founder and editor-in-chief of www.xeberman.org  and www.press-az.com, was detained at the border with Iran, at the Bilasuvar border checkpoint, on 12 June 2019.

The journalist’s wife describes his detention as follows:

“On 12 June 2019, at about 10:30 in the morning, Polad Aslanov, our daughter Fatima, and I were detained at the Bilasuvar border checkpoint. We were told there was a problem in the system. A few minutes later, we were brought into the investigation room again. The phones were forcibly taken away. We asked the reason for the detention, but they brutally dragged our daughter and me out of the room, and left Polad for the interrogation. In about an hour and a half, three officers of the State Security Service (SSS) of the Bilasuvar District Branch arrived on the spot. First, they interrogated Polad separately, then they brought us to the SSB of the Bilasuvar District Branch. The Department Head told us that he should take us to Baku and hand over to a certain person. I argued a lot with him demanding my phone back. They said that they would take us to Baku in separate cars: Polad would be taken in one car but our out daughter and I would be transported in the other. I did not agree. Then they set the condition that if I refused to obey, they would handcuff Polad. I told them to put one of the handcuffs on my hand, and that if they transported us in separate cars, I would kill myself. So, we all were sitting together in one car and brought to Baku to the State Security Department. Then they took Polad away. In about 2 hours they brought my daughter and me to the house where we lived. They searched the house by a court order. They confiscated the computer, USB flash drives, documents, and Polad’s photo and video cameras. They even searched Polad’s mother’s house. They also confiscated a book that didn’t belong to Polad, and an old phone card that belonged to Polad’s mother. After that they took us back to the SSS. I was interrogated for about 4-5 hours, and released at 01:30. At the moment, Polad is being held at the SSS”.

On 13 June 2019, the State Security Service of the Azerbaijan Republic spread the information about Polad Aslanov’s detention. It was stated,

“It was established that Polad Aslanov had held secret meetings with foreign intelligence services outside the country, signed receipts for the received amount of money and participated in the secret cooperation in exchange for a material interest on condition of a regular payment. Based on the instructions, received from the foreign intelligence services, he transmitted the information that he had assembled for the purpose of using it to the detriment of Azerbaijan’s state security and defense capabilities. Polad Aslanov introduced the journalists, whose names were not disclosed due to the confidentiality of the investigation, to the intelligence officials in a foreign country for further cooperation. During the investigation, there were obtained numerous documents concerning Polad Aslanov’s cooperation with the representatives of foreign secret services that were aimed against the interests of the Azerbaijani state security. Based on the instructions, received from the foreign intelligence services, he transmitted the information that he had assembled for the purpose of using it to the detriment of Azerbaijan’s state security and defense capabilities. Polad Aslanov introduced the journalists, whose names were not disclosed due to the confidentiality of the investigation, to the intelligence officials in a foreign country for further cooperation. During the investigation, there were obtained numerous documents concerning Polad Aslanov’s cooperation with the representatives of foreign secret services that were aimed against the interests of the Azerbaijani state security. Polad Aslanov rendered a detailed information about his criminal activity”.

Polad Aslanov was charged with committing crimes under the Articles 274 (Treason) and 134 (Threatening to kill or cause serious harm to health) of the Criminal Code of the Azerbaijan Republic.

On 14 June 2019, the Baku Sabayil District Court issued a ruling on imposing a preventive measure against Polad Aslanov in the form of 4-month detention.

That day, Polad Aslanov’s wife Gulmira Aslanova wrote on her Facebook page:

“In the course of the trial, Polad Aslanov pleaded not guilty and said that the charges against him had been in connection with the conspiracy as well as with his journalistic activities. For instance, Polad Aslanov had written a number of articles describing how the SSS officers, who subsequently arrested him, had been taking the bribes of every pilgrim going to Mashhad and Karbala. Polad Aslanov and we, his family, hereby declare that his arrest is solely and only related to those articles”.

It should be pointed out that the principal witness in the criminal case against Polad Aslanov had been the founder of the website www.bakunews.az, Mirkanan Seyidov, who got arrested in the courtroom on 6 August 2019, on the charge of blackmailing some money. The Baku Court of Serious Crimes found Mirkanan Seyidov guilty and sentenced him to 4 years 11 months and 28 days imprisonment. According to Polad Aslanov’s wife. Gulmira Aslanova, M. Seyidov attempted to engage her husband in cooperation with the SSS, he demanded to halt writing the critics against the SSS structure. But Polad Aslanov refused to do that. Later, according to her, M. Seyidov testified against her husband.

Upon the completion of the preliminary investigation, the case was transferred for consideration by the Baku Court of Serious Crimes.

A preliminary hearing was scheduled for 3 February 2020. The defendant’s lawyer applied to the court with two motions: to modify the preventive measure, and let P. Aslanov sitting next to his lawyer at the trial. Both motions were denied by the court. The Court also ruled to hold a partially closed hearing.

The hearing on the merits of the case was scheduled for 10 February 2020. On 10 February 2020, it was invited to the Court for interrogation a victim, Dayanat Babayev, who claimed about threatening to his life, the Article 134 (Threatening to kill or cause serious harm to health) of the Criminal Code of the Azerbaijan Republic. However, he expressed his desire to be reconciled with the defendant and stated that he had not had any complaints or grievances against P. Aslanov.

At the hearing on 17 February 2020, the State prosecutor asked the defendant whether he had been in charge of the website during his military service, which, according to the Aslanov’s wife and himself, he had been illegally drafted to, despite his poor health. The defendant’s wife told the media that the question should have been addressed not to Polad, but to her. At the trial, Aslanov demanded to let the human rights activists and journalists enter into the courtroom. The judge explained that only the defendant’s family would be allowed to attend, to which Aslanov expressed his displeasure. Finally, a few human rights defenders were also allowed to enter.

At the trial on 5 March 2020, the presiding judge Faiq Qaniyev revealed that the criminal case had also been initiated against the journalist’s wife, Gulmira Aslanova. That was the reason upon which the court issued a search order in respect of Gulmira Aslanova.

In the course of the trial, the journalists, Rovshan Kananoglu and Miralam Khashimov were questioned as witnesses. Both journalists asked the court to exclude some of the misinterpreted testimonies given by them during the preliminary investigation. However, the court left them untouched and included their misinterpreted words in the verdict.

On 22 October 2020, the prosecutor delivered an indictment, asking the court to find Polad Aslanov guilty on the charges and sentence him to a 17-year imprisonment. On 5 November 2020, the trial continued, as Aslanov’s defense attorney said that Polad Aslanov’s guilt had not been proven in the court and he should be given an acquittal verdict.

On 16 November 2020, the Baku Court of Serious Crimes issued a verdict against Polad Aslanov: he was found guilty of committing a crime under the Article 274 (Treason) of the Azerbaijan Republic Criminal Code and sentenced him to serve 16 years strict regime penal colony. Though, P. Aslanov was acquitted by the court verdict under the Article 134 (Threatening to kill or cause serious harm to health) of the Criminal Code of the Azerbaijan Republic.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. Above, it was described the detention of Polad Aslanov that was carried out violating the norms of national criminal-procedural legislation. According to the Article 150.1 of the Criminal Procedure Code of the Azerbaijan Republic, if the evidence collected on a criminal case gives grounds to suppose that a person has committed an act provided for in criminal law, and if this person lives in another area or if his abode is not known, the investigator or prosecutor may decide to detain him. If a person hides from the prosecuting authority or intentionally fails to comply with a summons, and it is decided to detain him in order to charge him, the investigator or prosecutor shall at the same time announce a search for him.

 

The Article 153.2 of the Criminal Procedure Code of the Azerbaijan Republic states: “To secure the rights of the detainee, the officials of the prosecuting authority and those in charge of the temporary detention facility shall:

 

153.2.1. inform the detainee immediately after detaining him of the grounds for detention, and explain to him his right not to testify against himself and his close relatives as well as his right to the assistance of defense counsel;

153.2.2. 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;

153.2.3. 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);

153.2.4. 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);

153.2.5. 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;

153.2.6. 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;

153.2.7. 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;

153.2.8. 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);

153.2.9. secure the right of any person who does not know the language of the criminal proceedings to use the services of an interpreter free of charge;

153.2.10. not treat the detainee in a way that fails to respect his personality or dignity, and pay special attention to women and persons who are under age, elderly, ill or disabled;

153.2.11. take the restrictive measure of arrest in respect of the detainee, and bring him to court in good time in order to ensure that the question of forcibly sending him to the place where the sentence or other final court decision is to be executed, replacing the penalty given to him with another or repealing his suspended sentence or conditional release is settled within the time limits provided for in Articles 148 and 150-152 of this Code;

153.2.12. perform the duties prescribed in Article 161.0.1-161.0.8 and 161.0.10 of this Code.”

Below, there are the following rights violations in respect of Polad Aslanov: he was not informed about the reasons of detention at the time of detention, he and his family members were mistreated, he was not provided a lawyer upon the indictment (only an attorney appointed by the state, and whom he did not independently choose), his right to be defended was violated in appointing a state lawyer since his financial situation was not verified in order to make sure that he had funds to pay for the lawyer of his choice. P. Aslanov was deprived of the opportunity to choose a lawyer from the list of those who work on the territory.

According to the Article 5 paragraph 3 of the European Convention on Human Rights, everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

The Article 5 paragraph 3 of the European Convention on Human Rights states, that everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

The case of Polad Aslanov, who was detained at 10.30 on 12 June 2019, and brought before the court on 14 June 2019, when the Baku City Sabayil District Court selected a preventive measure of detention for a period of 4 months, the defendant was not brought to court “immediately”, and without delay. That is another right violation.  (https://ru.wiktionary.org/wiki/незамедлительно).

According to the Article 5 paragraph 4 of the European Convention on Human Rights, everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

With regard to Polad Aslanov, the right to the presumption of innocence has been also violated. As mentioned above, on 13 June 2019, the State Security Service issued a statement on the detention of Polad Aslanov on the grounds of his cooperation with some foreign intelligence services. It is worth pointing out that the measure of restraint in the form of arrest was selected by the court only on 14 June 2019. Such a statement seriously violated the principle of presumption of innocence, as it was intended to portray the journalist as a traitor and a criminal who collaborated with the intelligence services of a foreign state. The statement itself had an impact on the court’s ruling concerning the measure of restraint in the form of detention right after its publication.

According to the Article 63 of the Constitution of the Azerbaijan Republic, everyone is entitled for presumption of innocence. Everyone who is accused of crime shall be considered innocent until his guilt is proved legally and if no verdict of law court has been brought into force.

 

Article 21.1 of the Criminal Procedure Code of the Azerbaijan Republic states, that any person suspected of committing an offence shall be found innocent if his guilt is not proven in accordance with this Code and if the court has not delivered a final judgment to that effect.

The same principle is enshrined in the Article 6 paragraph 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in the Article 14 paragraph 2 of the International Covenant on Civil and Political Rights, and in the Article 11 para. 1 of the Universal Declaration of Human Rights.

The principle enshrined in any legal system based on the Rule of Law, that is the presumption of innocence, which means that the one who is suspected or formally accused of a criminal offense has the right to an independent and impartial justice, the essential feature of which must be a tolerant state of mind. The presumption of innocence applies throughout the criminal proceedings, regardless of the investigation result, and not just when considering the charges legitimacy. Moreover, it requires that the judges, in exercising their functions, abandon the preconceived notion that a defendant has committed a criminal act, since the burden of proving is upon the prosecution, and any doubt is to be interpreted in favor of the defendant. The authorities should not prevent a public awareness of the criminal investigation process. However, the European Convention, the Article 6 paragraph 2, states that they must do so with sensitivity and caution, in accordance with the respect to the presumption of innocence.

“Freedom of expression, as guaranteed by the Article 10 of the Convention, extends to the freedom of receiving and imparting the information. Consequently, the Article 6 (2) cannot prevent the authorities from informing the public about the ongoing criminal investigations, but it requires the authorities to do so with discretion and sensitivity, in accordance with mutual respect for the presumption of innocence” (Judgment of the European Court of Human Rights in the case of Allen de Ribemont v. France, February 10, 1995). –

https://europeancourt.ru/uploads/ECHR_Allenet_De_Ribemont_v_France_10_02_1995.pdf http://echr.ketse.com/doc/15175.89-en-19950210/view/

As it was mentioned above, the journalist’s wife was questioned as a witness in the criminal case. Moreover, the court issued an order to search the house where Aslanov’s mother lived. According to Gulmira Aslanova, Polad Aslanov’s wife, when she was summoned to testify, the investigator did not warn her that she could refuse to testify against her husband, as it was stipulated by the constitutional norm. European legal standards refer to this right as the “right to silence”. The Article 66 of the Azerbaijan Republic Constitution states, “No one shall be compelled to testify against himself, his wife (husband), children, parents, brother, or sister. The complete list of relatives against whom testifying shall not be compulsory is defined by the law”. According to the Article 95.6.4 of the Criminal Procedure Code of the Azerbaijan Republic, a witness has the right to refuse testifying, providing materials and information about himself/herself and his/her close relatives. This right has not been clarified to the journalist’s wife.

The right to silence was violated in the case of Polad Aslanov, who was forced to testify against himself. “Although it is not specifically invoked under the Article 6 of the Convention, there is no doubt that the right to silence in the course of the police interrogation and the privilege not to self-incriminate are recognized by the International Standards that underpin the notion of a fair trial under the Article 6 (…). By protecting the accused against unfair coercion by the authorities, these privileges contribute to avoiding injustices and guaranteeing the Article 6 objectives stipulated in the Convention” (Judgment of the European Court of Human Rights in John Murray v. the United Kingdom,   February 8, 1996). –

https://hudoc.echr.coe.int/eng#{“dmdocnumber”:[“695857″],”itemid”:[“001-57980”]}

One of the most important detainee’s rights is the right to a defense. According to the Article 91.5.7 of the of the Criminal Procedure Code of the Azerbaijan Republic, accused shall exercise to choose his defense counsel independently, to dismiss counsel and to conduct his own defense if he waives the right to defense counsel. P. Aslanov was deprived of the right to choose his own lawyer at the beginning of his arrest. Instead, he was assigned a state lawyer. He was deprived of the right to have a qualified legal assistance either to have sufficient time to prepare his defense.

“The Court recalls that the Convention is not intended to guarantee theoretical or illusory rights but their practical and effective exercise, and that the appointed lawyer does not mean that he would ensure the effectiveness of a juridical assistance that should be offered to the accused.” (Judgment of the European Court of Human Rights in case of Daoud v. Portugal, April 21, 1998). – file:///C:/Users/User/Downloads/001-58154.pdf

Apart from the above-mentioned violations, the unmotivated nature of the judicial verdict is noteworthy. According to the Article 349.3 of the Criminal Procedure Code of the Azerbaijan Republic, the court judgment shall be lawful and well-founded.

According to the Article 349.4 of the Criminal Procedure Code of the Azerbaijan Republic, the court judgment shall be considered lawful if it fulfils the requirements of the

Constitution of the Azerbaijan Republic, this Code and the criminal and other legislation of the Azerbaijan Republic.

The Article 349.5 of the Criminal Procedure Code of the Azerbaijan Republic states: “In the following cases the court judgment shall be considered well-founded:

349.5.1. if the conclusions at which the court arrives are based only on the evidence

examined during the court’s investigation of the case;

349.5.2. if the evidence is sufficient to assess the charge;

349.5.3. if the facts established by the court are consistent with the evidence investigated”.

“The Contracting States enjoy a large degree of freedom in the choice of the means to enable their judicial system to comply with the mandatory requirements of the Article 6. However, the judges must indicate the grounds upon which they have based their verdicts reasonably well. Thus, the accused may advantageously apply the existing legal defence” (the Judgment of the European Court of Human Rights in the case of Hadjianastassiou v. Greece, Judgment of 16 December 1992). –

file:///C:/Users/User/Downloads/001-57779.pdf

http://www.consultant.ru/cons/cgi/online.cgi?req=doc&base=ARB&n=464330#025679170829552733

Taking into account the above violations of the Azerbaijani legislation and the International law, we come to the conclusion that in respect to Polad Aslanov there was an illegal, unjustified and unmotivated sentence, which violated Aslanov’s right to freedom.

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No to freedom of speech

NO TO FREEDOM OF SPEECH

Analysis of violation of law at the trial concerning the blocking of independent websites

The Baku Court of Appeal, Civil Chamber

Case №2 (103)-5341/2020

09 September 2020

Presiding judge: Ziya Shirinov 

Judges: Fuad Talyshinsky, Rafael Eyvazov

Applicant: Ministry of Transport, Communications and Hi-Tech of the Azerbaijan Republic

The interested parties: Adil Ismayilov, a representative of Azadliq (“Freedom”) Radio, Tazakhan Miralamli, a representative of “Azadliq.info” LLC and Zubeida Sadigova, a representative and lawyer of Meydan TV

In recent years, the pressure of the Azerbaijani authorities on freedom of speech has further worsened. The journalists, bloggers, writers and publicists who have been criticizing the government’s policies are arrested, and many of them, unable to withstand the existing pressure, are fleeing the country. Pressure is also exerted on the Internet resources, many sites are blocked even without a court order, for example such as www.abzas.net, www.islamazeri.az, www.islaminsesi.az, www.nur-az.com, www.criminal.az, www.gununsesi.info, www.realliq.info, www.realliq.az, www.politika.az, www.nia.az, www.neytral.az, www.vediinfo.az, www.obyektiv.org, www.sonolay.az, www.ulus.az, www.qanunxeber.az, www.infoaz.org, www.xalqinsesi.com, www.aztoday.az, www.bastainfo.com,  whereas some others are blocked by means of appeals to the courts by the Ministry of Transport, Communications and Hi-Tech of the Azerbaijan Republic.

Just in 2020, the applicant Ministry of Transport, Communications and Hi-Tech of the Azerbaijan Republic appealed to the court with a request to impose restrictions on the domains of azadliq.info, azadliq.org, azerbaycansaati.com, TV programs Meydan TV, TV channel Turan (Turan TV) and Azərbaycan saatı. The complaint was justified by the fact that the channels broadcast programs that contradicted the state and public interests, and posted the materials that propagate suicide. The complainant pointed out that doing so was harmful to society, and justified the claim by the Article 13-2 (distribution of information on the Internet resource or telecommunication network) of the Law of the Azerbaijan Republic “On Information, computerization and the Protection of Information”.

Specific allegations made by the complainant concerned in the following publications on the sites:

  • in March 2017, Meydan TV posted an article written by Dr. Jamil Hasanli, the Chairman of the National Council of Democratic Forces, which the complainant considered dangerous, as according to the complainant, the article compared religious radicalism with authoritarianism reigning in our country,
  • on 28 March 2017, the websitel info posted an article “If the people can say: I am”, which underlined the increasing cases of suicide by desperate people who were unable to find any other way out of the difficult financial situation in the country. The article also stated that if the people were able to say no to corruption, arbitrariness, monopoly, and injustice, we would be able to enjoy normal life.
  • in March and April 2017, there were posted the articles on the Internet portal org, in one of which Dr. Jamil Hasanli talked about necessity of protests, and in another one, allegedly questioning the country constitutional structure in general. He said that “we wrongfully created this state”, “falsely wrote the constitution”, “created falsely a democracy”. There were the following words, “The longest, most difficult winter is coming to an end, and spring is emerging in its place…it is in one of these springs that the cherry trees in the gardens will blossom. I do believe. There are all kinds of opportunities here to realize your ideas, your fantasies.”

On 12 May 2017, the Baku City Sabayil District Court ruled to satisfy the application of the Ministry of Transport, Communications and Hi-Tech of the Azerbaijan Republic.

The case defendants filed an appeal against the Baku City Sabayil District Court’s ruling.

On 09 September 2020, the Civil Chamber of the Baku Appeal Court issued a decision to deny the appeal and uphold the judgment of the Court of First Instance from 12 May 2017.

 

Commentary by an expert lawyer:

The court verdict is illegal and unjustified. According to the Article 50 of the Constitution of the Azerbaijan Republic:

  1. Everyone is free to look for, acquire, transfer, prepare and distribute information.
  2. Freedom of mass media is guaranteed. State censorship in mass media, including press is prohibited.

According to the Article 1 of the Law of the Azerbaijan Republic “On freedom of information” and to the Article 50 of the Constitution of the Azerbaijan Republic it is stipulated that everyone has a freedom to legally seek, get, transfer, produce and distribute any information.  The law defines the information as the data, regardless of its form, concerning the events, processes in society in the states, as well as the facts and individuals occurring therein.

According to the Article 13-2.1 of the Law of the Azerbaijan Republic “On Information, computerization and Protection of Information”, the owner of the Internet site shall independently determine the content of the information placed on such resource as well as the procedure of its publication. The owner of the Internet site and its domain shall ensure legitimate activity of the resource, including compliance with the norms of the state language, and shall be personally responsible for these activities.

In accordance with the Article 13-2.3 of the above-mentioned Law, the owner of the information Internet resource and its domain or the user of the information and telecommunication network has no right whatsoever to provide the following prohibited information on it (“information and telecommunication network”):

13-2.3.1. the information on propaganda and financing of terrorism, the ways and means of implementing terrorism, organizing or conducting trainings for the purpose of terrorism, and open calls regarding terrorism;

13-2.3.2. the information on violence and religious extremism propaganda, open calls to incite national, racial or religious hatred and hostility, violent alteration of the state constitutional system, fragmentation of territorial integrity, violent seizure or retention of power, organization of mass riots;

13-2.3.3. the information that constitutes the state secrets;

13-2.3.4. any information on the manufacturing procedure or processes regarding the production of firearms, its components, ammunition, explosives and devices;

13-2.3.5. the information regarding the methods and processes of preparation or consumption of any narcotic drugs, psychotropic substances and their precursors, places of their illegal acquisition, as well as places or practices of cultivating plants containing narcotic substances;

13-2.3.6. the information concerning pornography, including child pornography;

13-2.3.7. the information encouraging to organize and participate in gambling and other illegal forms of gaming;

13-2.3.8. the information that promotes suicide to be an instrument of resolving problems, justifies or provokes suicide, explains methods of its commitment or distribution with the purpose of arranging suicide of several people in a group.

Based on the analyzed court ruling, it is not clear how the court identified the discrepancy between the information on the websites and the law. In the judgment the court only referred to the above-mentioned articles of the AR Law «On Information, Computerization and Information Protection” and pointed out that the content on the Internet sites did not meet the provisions of the Law.

In addition, if the applicant considered some articles in conflict with the law, he could ask the court to impose on the defendants the burden of removing just these articles, rather than the entire site.

The right to freedom of speech and the distribution of the information is also guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 10. According to this article:

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

As it can be seen, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 10, provides for certain restrictions. A clear list of restrictions is provided in the Article 10 Paragraph 2.

In order to determine a violation of the Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights (ECHR) provides answers to several case-by-case test questions:

  • whether there was an authority’s interference in this right;
  • whether the interference was provided by the law;
  • whether the interference pursued a legitimate purpose in accordance with the provisions of the Article 10 par. 2;
  • whether the interference was “necessary in a democratic society”.

If the first question can be answered positively, then all the other questions will be answered negatively.

Thus, according to the ECHR, the following two requirements are derived from the expression “provided by the law”. Firstly, the law must be adequately accessible: the citizens should have an appropriate framework to be able to navigate through the legal norms that apply to the case in question. Secondly, a norm cannot be regarded as a “law” unless it is defined precisely enough to enable the citizen to relate his conduct to it: the citizen should be able, with the aid of appropriate guidance, to foresee, with a degree sufficient to the circumstances, the consequences that might follow from the action in question.

As for the third question regarding the legitimacy of the intervention, it should be pointed out that the Ministry, in the commented case, tried to justify its complaint by stating that the articles contain pro-suicide propaganda and are also contrary to the state and public interests.

One final point. Whether the intervention was “necessary in a democratic society”. There is no doubt that all those articles that alarmed the Ministry staff were indeed of public interest. “As the Court has already indicated, the Article 10 not only guarantees the freedom of the press to inform the public, but also the right of the public to be duly informed” (the Judgment of the European Court in Sandy Times v. United Kingdom of April 26, 1979).

http://echr.ru/documents/doc/2461498/2461498.htm

https://www.eui.eu/Projects/CentreForJudicialCooperation/Documents/2011-10-28-29/ECtHRSundayTimesvUK.pdf

 

The Article 19 of the International Covenant on Civil and Political Rights states:

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
  3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (order public), or of public health or morals.

The Article 19 of the Universal Declaration of Human Rights states:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

The ban on the most popular Internet resources that publish critique and informational articles has resulted in a violation of the citizens’ rights to be informed. In this case, the authorities’ illegitimate interference has violated both the rights of the media to distribute the received information, as well as the citizens’ rights to obtain this information.

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