TOFIG YAGUBLU, AN OPPOSITION ACTIVIST IS BEEN REGULARLY ARRESTED
Analysis of violation of law during Tofiq Yaqublu’s judicial proceedings
Baku City Narimanov District Court
Case № 4(005)-1701/2023 15 December 2023
Presiding judge: Gultakin Asadova
Defendant: Tofiq Yaqublu
Defender: Aqil Lahidj, Nemat Karimli
With participation of the Prosecutor’s Assistant of Narimanov district, Hamlet Huseynov, and Abdulla Jalili, an senior investigator at the Investigation Department of the Narimanov District Police Department
Tofiq Yaqublu, a well-known political figure in the country, joined the “Musavat” party in 1992. He was the first Deputy Head of the Executive Power of the Baku Binagadi district. He is also a veteran of the first Karabakh war.
- Yaqublu was arrested for the first time in 1998 and sentenced to 2 years imprisonment.
On February 4, 2013, he and Ilqar Mammadov, the Chairman of “REAL” party, were arrested in the course of local social disturbances in Ismayilli district of Azerbaijan. I. Mammadov was sentenced to 5 years imprisonment but on 17 March 2016, he was released according to an act of pardon.
In October 2020, T. Yaqublu was detained on an administrative case for malicious disobedience to the official request of the police officer, and sentenced to 30 days of administrative arrest.
Another criminal case against Yaqublu was initiated in 2020 under the Article “Hooliganism”, and on 3 September 2020, the Baku City Nizami District Court found T. Yaqublu guilty in committing the incriminated crime and sentenced him to 4 years of imprisonment. In his final speech, Tofig Yagublu called his case politically motivated. As a sign of protest against the verdict, he went on hunger strike. On 12 September 2020, T. Yaqublu was transferred from the detention center to the hospital due to his poor health condition. On 17th day of his hunger strike, the Baku City Court of Appeal changed Yagublu’s preventive measure to a house arrest. T. Yaqublu ceased his hunger strike, left the hospital and left to home following the Court’s ruling.
On 14 December 2023, T. Yaqublu was charged as a suspect in a criminal case initiated under the Articles 178.3.2 (Swindle, that is maintaining another persons property or buying another persons property by a deceit or breach of confidence, committed by organized group), 320.1 (Fake of certificate or other official document giving the rights or releasing from duties, with a view of its use or selling of such document, as well as manufacturing in same purposes or selling of counterfeit state awards of the Azerbaijan Republic, stamps, seals, forms) and 320.2 (Use of obviously counterfeit documents) of the Criminal Code of the Azerbaijan Republic.
The Senior Investigator of the Baku City Narimanov District Police Station Investigation Department applied to the court with a motion to apply a preventive measure in the form of detention in respect of T. Yaqublu. The Prosecutor’s Office supported the investigator’s motion and also asked the court to remand T. Yaqublu in custody.
On 15 December 2023, the Baku City Narimanov District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Tofiq Yaqublu in the form of detention for a period of 4 months.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The ruling stated that the grounds for the application of a preventive measure in the form of detention are:
- concealment from the body conducting the criminal proceedings;
- unlawful pressure on individuals involved in the criminal proceedings;
- obstruction to the normal course of the preliminary investigation by concealing the significant documents for criminal prosecution;
- committing again an act stipulated by the Criminal Law and posing a danger to the society;
- evasion from summoning the investigative body without valid reasons.
The Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic stipulates the grounds for applying a preventive measure. The list of grounds is rather limited and consists of the following provisions:
- hidden from the prosecuting authority;
- obstructed the normal course of the investigation or court proceedings by illegally influencing parties to the criminal proceedings, hiding material significant to the prosecution or engaging in falsification;
- committed a further act provided for in criminal law or created a public threat;
- failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;
- prevented execution of a court judgment.
As one can see, the grounds listed in the judgment and the grounds listed in the Law are identical. They are simply derived from the Law.
However, there is no indication in the ruling as to what facts, arguments or evidence the investigating authority possessed in order to justify the request for a preventive measure in the form of arrest.
In order to be in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1), there are two conditions: lawfulness and legality. Legality means that it must be provided for in the National Law, and lawfulness means that it must be in accordance with the objectives provided for in the exhaustive list of cases contained in the Article 5(1) of the European Convention.
The judgment of the European Court of Human Rights (ECHR) in the case of Aksoy v. Turkey of 18 December 1996, states:
“The Court emphasizes the importance of the Article 5 of the Convention system: it enshrines a fundamental human right, namely the protection of individuals against arbitrary interference with their right to liberty by the State. The judicial monitoring over the executive’s interference in everyone’s right to liberty is an essential feature of the guarantees embodied in the Article 5 par 3, which are designed to minimize the risk of arbitrariness and guarantee the predominance of rights (…). Moreover, a prompt judicial intervention may lead to the detection and prevention of ill-treatment, which (…) is absolutely prohibited by the Convention and is non-derogable”.- https://hudoc.echr.coe.int/?i=001-58003
Thus, based on the example of this precedent, we can conclude that the Court is obliged to issue a lawful and legitimate ruling, rather than facilitate the investigative authorities in arresting the defendant, without indicating the arguments and evidence that are the grounds for the adoption of the strictest measure of restraint. In this case, as well as in 99% of similar cases, the Court did not fulfill its main obligation, namely, it did not demonstrate an individualized approach to a particular case and did not justify its conclusion on the application of arrest.
The commented ruling was not issued in compliance with the principles of legality and lawfulness, it did not comply with the provisions of the national substantive and procedural law, nor with the regulations of the international conventions binding on the Council of Europe member states which had ratified those conventions.
Furthermore, the investigating body did not have any arguments or circumstances that would have been sufficient for reasonable suspicion. The existence of reasonable suspicion requires the existence of facts or information that would convince an objective observer that a person may have committed the offense. What may be considered reasonable depends on the totality of the circumstances.
An interesting point in the Court’s ruling is that the investigating body, and subsequently the Court, indicated the re-offense and presenting a danger to society as grounds for arrest.
The European Court of Human Rights categorizes mentally ill individuals, alcoholics and drug addicts as those who may pose a danger to society. However, even in this case, the Court points out the following:
“Although the Convention allows the deprivation of liberty for these socially maladapted individuals: it should not be the only ground for considering them a threat to public safety; their own interest may require them to be confined in a psychiatric hospital. IIt doesn’t follow from the authorization of the detention of vagrants stipulated in the Article 5 that the same grounds, even better ones, could be applied to any one who might be considered even more dangerous” (Guzzardi v. Italy judgment of 6 November 1980). – https://hudoc.echr.coe.int/?i=001-57498
This precedent suggests that the Court’s ruling that T. Yaqublu left at large, might pose a danger to the society, is at least illogical and does not have even the slightest relevance to him.
The Court was also obliged to consider alternative preventive measures other than arrest, but it seems that it was not done. The arrest is such a strict measure that it can be justified only when other measures, less severe, have been regarded as insufficient to protect the personal or public interest demanding the remand in custody. It is not enough that the arrest be in accordance with the National Law; it is also essential that it be justified by the circumstances of the case.
In addition to the above, the Courts are also required to provide reasons for their judgments. It means that the Courts should comprehensively, fully and objectively consider the pros and cons of the case circumstances, correctly assess them and refer to the law provisions accurately. As seen, the Court did not fulfill its legal obligation in the present case. The biased attitude towards T. Yaqublu once again violated the fundamental rights of any individual, especially such an important right as the Right to Liberty and Personal Inviolability.Older Posts »