Category: Courts

In Azerbaijan even the lawyers have trouble defending themselves against the judicial arbitrariness in courts

IN AZERBAIJAN EVEN THE LAWYERS HAVE TROUBLE DEFENDING THEMSELVES AGAINST THE JUDICIAL ARBITRARINESS IN COURTS

Elchin Sadigov

Analysis of violation of law during Elchin Sadigov’s judicial proceedings

Baku City Binagadi District Court

Case №4 (001)-1035/2022

11 September 2022

Judge: Farid Amiraliyev

Defendant: Elchin Sadigov

Defender: Shahla Humbatova, Bakhtiyar Hajiyev

Plaintiff: a Junior Counsellor of Justice, Teymur Qarayev,  an investigator in charge of serious cases in the Investigation Department of the Prosecutor General’s Office of Azerbaijan Republic

Representative of the plaintiff: a Junior Counsellor of Justice, Hagverdi Mehrabov, a Senior Prosecutor in the Investigation Department of the Prosecutor General’s Office of Azerbaijan Republic.

 

Elchin Sadigov is a member of the Bar Association who has defended many political prisoners. He previously worked at the Media Rights Institute and mainly specialised in defending the journalists. E. Sadigov was a defending attorney for the journalist Parviz Hashimli, political activist Qiyas Ibrahimov, human rights activist Leyla Yunus, journalists Afgan Sadigov and Avaz Zeynalli, Ziya Ibrahimov, a political activist deported from Germany to Azerbaijan, and many others arrested on political grounds.

Elchin Sadigov has repeatedly been subjected to heavy pressure due to his activities. The Azerbaijani Bar Association has initiated numerous disciplinary proceedings against him, and at the highest level there have been cybercrimes of a threatening nature.

On 10 September 2022, E. Sadigov was charged with offences under the Articles 32.5 and 311.3.3 (Aiding and abetting in large-scale bribery) of the Azerbaijan Republic Criminal Code.

The office of Elchin Sadigov and his wife, Zibeyda Sadigova, a lawyer, was searched by the officers of the General Prosecutor’s Office Investigation Department at night from 10 to 11 September 2022.  Elchin Sadigov couldn’t assist the search since his freedom had been already restricted starting from 10 September 2022.

It should be pointed out that the journalist and Head of Xural TV Avaz Zeynalli was charged along with E. Sadigov in the same case. In his turn, he was charged with committing a crime under the Article 311.3.3 (A bribe on a large scale) of the Azerbaijan Republic Criminal Code.

Just three days later after Elchin Sadigov’s arrest, Zibeyda Sadigova claimed that her husband had not been allowed to contact his family or even to meet with his lawyer. While in detention, E. Sadigov denied meals, officially submitting his statement to the management of the detention facility of the State Security Service, where he had been held.

On 11 September 2022, the Baku Binagadi District Court issued a restraint order against Mr. Sadigov: arrest for a period of 4 months.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. We shall examine the Article on which E. Sadigov has been charged. According to the Article 32.5, 311.3.3 of the Azerbaijan Republic Criminal Code, receiving a bribe by an official in exchange for illegal actions on a large scale is punishable by imprisonment for a term of 8 to 12 years.

“The person who temporarily, permanently or by special authorization performs administrative or organisational functions in the state bodies, municipal or state institutions, local authorities or performs functions of a representative of power is the perpetrator of the offence of bribery.” – https://www.legalneed.ru/info/criminallaw/poluchenie-vzatki/

However, Mr. Sadigov is not an official. He is a lawyer. He does not fulfil any administrative or organisational functions in the government bodies. He is a member of the Bar Association.

The Article 1 of the Law of the Republic of Azerbaijan On lawyers and legal practice states,

“Legal practice in the Republic of Azerbaijan shall mean an independent legal institution which professionally exercises legal protection activity.”

This provision clearly indicates that an advocate cannot be a subject of this Article as he is not a public official.

Besides the violation of the Substantive Law of the Criminal Code, it was also a violation of the principles of the criminal procedure.

One of the most important rights of any democratic society is the right to freedom. It is enshrined in the Constitution, the Fundamental Law of Azerbaijan.

According to the Article 28 of the Constitution of the Republic of Azerbaijan,

  1. Everyone has the right for freedom.
  2. Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.

Moreover, one of the principles of criminal procedure is also the right to liberty, and it is enshrined in the Article 14 of the Criminal Procedure Code of Azerbaijan Republic.

The right to liberty is enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1), the Article 9 of the Universal Declaration of Human Rights, adopted by the UN General Assembly on 10 December, 1948, and in the Article 9 of the International Covenant on Civil and Political Rights, adopted by the UN on 16 December, 1966, based on the Universal Declaration of Human Rights.

This right is a fundamental right amongst the most important rights. It is a non-derogable right that cannot be waived by an individual. The guarantees enshrined in this norm apply to everyone: anyone at liberty or in custody has this right.

Despite the existence of these norms in the National and International legislation, the court issued a ruling in the case of arrest of Elchin Sadigov that was not supported by the norms of Law. It was based on a biased and groundless perception of the defendant.

According to the Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic, restrictive measures may be the following:

  • arrest;
  • house arrest;
  • bail;
  • restraining order;
  • personal surety;
  • surety offered by an organisation;
  • police supervision;
  • supervision;
  • military observation;
  • removal from office or position.

Among the listed preventive measures, an arrest is the measure that fully restricts a person’s freedom. Unfortunately, this measure is used much more frequently in the Azerbaijani courts, I would say in 90% of criminal cases, instead of alternative measures of restraint. In the case of political activists, independent journalists, and others, as a rule, an arrest is applied in all cases.

The court imposed the harshest measure of restraint for no reason whatsoever. The lawyer’s arrest was neither necessary nor in the public interest.  E. Sadigov could not have caused any danger to national security.

As grounds justifying the arrest, the court laid down all the grounds that had been stated in the application and submission for arrest, i.e:

  • hiding from the body conducting the criminal proceedings;
  • obstructing the normal course of the preliminary investigation or court proceedings by exerting unlawful pressure on the persons involved in the criminal proceedings, by concealing or falsifying the significant for criminal prosecution materials;
  • failure without a valid excuse to appear in the court when summoned by the authority conducting the criminal proceedings or evading criminal prosecution and serving the sentence in any other way.

It is worth recalling again that E. Sadigov is a lawyer for human rights protection and has always defended the rights that are being trampled most of all in Azerbaijan: the right to freedom, the right to express an opinion and other important rights. Therefore, the investigating authority’s grounds and the court’s confirmation of these grounds look more than silly and illogical. Furthermore, there was not a single piece of evidence to justify the arrest of E. Sadigov in the course of the trial.

The court failed to take an individual approach to the case when imposing the preventive measure. It adopted a blanket approach and voiced abstract arguments.

The Article 155.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that 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 his personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence. If the court had taken into account E. Sadigov’s personal background, it would have indicated that he had a permanent place of residence, a job, three young children, one of whom was seriously ill, and his reputation in the country and beyond. But instead the court said that for the charges brought against him he would face a future sentence exceeding two years of imprisonment (under the Article 158.1 of the Code of Criminal Procedure of the Azerbaijan Republic).

The judgment of the European Court of Human Rights (ECHR) in the case of Weeks v. the United Kingdom, 2 March 1987, it is written

“The Article 5 applies to ‘everyone’. Anyone at liberty or in custody shall have the right to defence, i. e. the right not to be deprived of liberty, except the requirements stated in the 1st paragraph and, if under arrest or detention, the right to benefit from the various guarantees referred to in the paragraphs 2-5 insofar as they are taken into consideration”. https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Weeks%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57594%22]}

Apart from the violation of his right to liberty, since the day of his arrest his procedural rights have also been violated. The arrest took place at night, from Saturday to Sunday. While in detention, he was not allowed either to call his family for a week, nor to meet with the lawyers of his choice.

The Article 91.5 of the Code of Criminal Procedure of the Azerbaijan Republic enumerates the rights of the accused. Thus, every accused person has the right:

  • has a defence lawyer starting from the moment of his or her detention or indictment;
  • shall have the assistance of a defender free of charge;
  • immediately upon his/her arrest, inform by telephone or other means his/her close relatives or other persons with whom he/she has a legitimate connection by informing them of his/her arrest or detention and the place of detention; if the detainee is a foreign national or stateless person, he/she shall immediately inform the diplomatic mission or consular office of his/her country of citizenship or permanent residency in Azerbaijan, or a National or International Organization, which has assumed legal custody of him/her;
  • to independently choose a defence counsel, terminate his or her mandate and, if he/she renounces the counsel’s services, conduct his/ her own defence;
  • has a private and confidential meeting with the defence lawyer without any limitation regarding the number and duration of the meetings, etc.

The Article 6 (3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, also protects the individual’s personal liberty:

Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) 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;

(e) to have the free assistance of an interpreter if he cannot understand or speak

the language used in court.

The judgment of the European Court of Justice (ECHR) in the case of Artico v Italy of 13 May, 1980, it is stated

“The Convention is intended to guarantee not theoretical or illusory rights but rather their practical and effective implementation; this is particularly true in respect of the right to defence, which is a prominent right in a democratic society, as the right to a fair trial from which it derives – https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Artico%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57424%22]}

All of the above demonstrates that the court, once again in this criminal case, was not applying a preventive measure in accordance with the law and a specific, individual approach but rather with a biased attitude. The restraint measure was imposed on the assumptions, and not on the basis of the specific evidence. With regard to the lawyer taking acre of human rights, his fundamental rights were violated: the right to liberty, the right to defence, the right to call the family and relatives, and other rights. Moreover, Elchin Sadigov could not be the perpetrator of the incriminated crime. Once again, the Court violated the obligations that Azerbaijan undertook when the country joined the Council of Europe.

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In Azerbaijan a critic of the Aliyev regime has been arrested without any reason

IN AZERBAIJAN A CRITIC OF THE ALIYEV REGIME HAS BEEN ARRESTED WITHOUT ANY REASON

Maqsud Aliyev

Analysis of violation of law during Maqsud Aliyev’s judicial proceedings

Baku City Binagadi District Court

Case №3 (001)-2517/2022

17 August 2022 

Judge: Abbas Rzayev

The person against whom an administrative record was issued: Maqsud Aliyev

Defendant: Elnura Zeynalova

The person who drew up the administrative report: Vusal Hidayatzade, a Lieutenant serving as a district police officer at the 40th Police Station of the Binagadi District Police Directorate

Maqsud Aliyev, born in 1995, a university graduate, is a politically active member of the youth movement who openly expresses his critical position on social networks and at a range of events focusing on the political situation in Azerbaijan. Previously, he was a member of the opposition D18 Movement.

According to the police version, Maqsud Aliyev was detained on the following grounds: At about 19:35 on 16 August 2022, M. Aliyev, used cursed language when he was in the 28 May settlement of Binagadi district however, these obscene words were not addressed to anyone. The police officers urged him to order but he did not follow their legitimate demands.

An administrative report was made against M. Aliyev for allegedly violating the Article 535.1 (Failure to obey the legitimate demands of a policeman) of Azerbaijan’s Code of Administrative Offences.

In the course of the trial, M. Aliyev testified that he had been innocent, had not committed any administrative offence, called the administrative protocol unreasonable and unlawful, and asked the court to terminate the administrative proceedings against him.

The policeman, Vusal Hidayatzade, who drew an administrative protocol against Maqsud Aliyev, interrogated by the court, said that on 16 August 2022, M. Aliyev cursed, for which he was called to order but did not obey the legitimate demands of the police officer.

The Court considered M. Aliyev’s testimony as a tactic of defence, with the help of which he tried to avoid the administrative punishment.

On 17 August 2022, the Baku City Binagadi District Court found Maqsud Aliyev guilty of committing an administrative offense and sentenced him to 30 days of administrative detention.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. Like other hundreds administrative cases against political and civil society activists, this one was no exception. All the rulings seem to have been copy-matched from one another. The same phrases, similar arguments and the absence of any evidence whatsoever.

In the ruling against M. Aliyev, there was only one person who testified in the court, a district police officer Vusal Hidayatzade. Therefore, his testimony did not differ from the administrative report that he had drawn up himself.

The court ruling also states that M. Aliyev used obscene language in “a public gathering place”. Despite the police officer’s argument, not a single person who, according to the police, was nearby and heard the swearing was called as a eyewitness in the case. There is no evidence against Maqsud Aliyev in the case, other than the administrative report and V.Hidayatzade’s testimony.

Nevertheless, the Court found the police officer’s testimony irrefutable, whereas M.Aliyev’s testimony was found to be an avoidable one.

One of the principles of administrative proceedings is the presumption of innocence.

According to the Code of the Azerbaijan Republic On administrative violations,

8.1. The person with respect to whom a case on administrative violation is pleaded shall not be found guilty if his guiltiness was not proved in the order provided by this Code, and not established by the acting resolution of the court, authorized body (official) considering the case on administrative violation.

8.2. The person being called to account for administrative violation has not to prove his guiltlessness.

8.3. Doubts regarding the guiltiness of the person called to account for administrative violation shall be resolved in his favour.

8.2. The Article 8.2 state, that the person being called to account for administrative violation has not to prove his guiltlessness. Despite the existence of this norm, and in accordance with the most important principle of any legal procedure (the Presumption of Innocence), the police officer failed to prove M. Aliyev’s guilt, because he did not provide the court with any evidence. Either, not a single witness statement has been submitted to the court.

Under the Article 75 of the Administrative Offences Code, in a case of administrative misconduct, it should be determined:

  • the event of an administrative offence (whether an administrative offence has occurred);
  • a perpetrator of an administrative offence;
  • the circumstances aggravating and mitigating administrative liability;
  • the nature and extent of the damage resulting from the administrative

offence;

  • the guilt of the individual committed an administrative offence;
  • circumstances precluding proceedings in cases of administrative offences;
  • other relevant circumstances for the appropriate determination of the case as well as the causes and conditions that contributed to the administrative offence commission.

In accordance with the Article 76.1 of the Code on Administrative Offences, the proofs in an administrative offence case shall be any factual information on the basis of which the judge, the authorized body (official) determine the existence or absence of an administrative offence, guilt of the perpetrator and other circumstances relevant to the proper adjudication of the case. These data shall be ascertained through physical items of evidence, explanations of the perpetrator, testimonies of the victims, witnesses, other documents, depositions of special technical means, experts’ conclusions, the protocol of administrative offence, and other reports as defined in the Code.

The Article 535.1 of the Administrative Offences Code, which M. Aliyev was charged with violating, stipulates the penalties (punishments). Thus, it states that for a violation of the Article the punishment shall be a fine of two hundred manats imposed on individuals, and if, in the circumstances of the case, taking into account the offender’s personal characteristics, the application of these measures would be deemed insufficient, an administrative detention for a period of up to one month.

Apparently, the Article stipulates an alternative penalty that is not related to arrest, i.e. an administrative fine. The Court even did not consider the option of imposing a non-custodial administrative sanction. Furthermore, there was no evidence provided in the ruling that a fine would have been insufficient. When imposing an administrative charge, the Court did not take into account either M. Aliyev’s personality or his university education and advanced cultural level.

Despite the fact that M. Aliyev’s guilt was not proven, his right to liberty was violated. The right to liberty is also guaranteed by the International Norms of Law.

According to the Article 28 of the Constitution of the Republic of Azerbaijan,

  1. Everyone has the right for freedom.
  2. Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.

The International Juridical Norms also point to the Right to Liberty. According to the Article 5 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms,

  1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

This Norm guarantees a fundamental right among the most important rights: the right to liberty and personal inviolability. It is an inalienable right that a person cannot renounce. The guarantees enshrined in the Article 5 are applicable to everyone. Any individual either at liberty or in custody has this right.

There must be substantive justifications for a deprivation of liberty. As it said in the European Convention for the Protection of Human Rights and Fundamental Freedoms, it should be a reasonable suspicion that an individual has committed an offence, which justifies his or her deprivation of liberty. Therefore, only a reasonable suspicion is an essential element within the Convention’s protection in respect of arbitrary deprivation of liberty. The determination of a reasonable suspicion presupposes the existence of facts or information that would persuade an objective observer that a person could have committed the offence.

The judgment of the European Court of Human Rights (ECHR) in the case of Lawless v Ireland dated 14 November, 1960, states that

“the Convention aims at protecting liberty and security of persons against unlawful arrest and detention”. – https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22\%22CASE%20OF%20LAWLESS%20v.%20IRELAND%20(No.%201)\%22%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57516%22]}

In the judgment of the European Court of Human Rights in the case of Kurt v. Turkey dated 25 May, 1998, it is written:

The Court emphasizes the fundamental importance of guarantees of individuals’ rights against unlawful arrest or detention by the authorities in a democratic society, as set out in the Article 5. That is why the Court has repeatedly stressed in its judgments that any deprivation of liberty must be exercised not only in accordance with the substantive procedural provisions of a National Law but also comply with the objectives laid down in the Article 5, i.e. to protect the individual from arbitrariness of the authorities. This urge to protect the individual against any form of abuse committed by the State authorities is corroborated by the fact that the Article 5 § 1 narrows down the grounds on which a person may be lawfully deprived of his liberty, although these grounds cannot be broadly interpreted since they are exceptions within the fundamental guarantees of a person’s individual liberty.

https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22kurt%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58198%22]}

Thus, the subjective, biased and unfair judicial consideration of Maqsud Aliyev’s administrative case has resulted in the violation of a fundamental right, the Right to Freedom.

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Failure to pay alimonies is currently being exploited to imprison the opposition activists

FAILURE TO PAY ALIMONIES IS CURRENTLY BEING EXPLOITED TO IMPRISON THE OPPOSITION ACTIVISTS

Ziya Ibrahimov

Analysis of violation of law during Ziya Ibrahimov’s judicial proceedings

Baku City Yasamal District Court

Case №4 (004)-616/2022

22 July 2022 

Judge: Rauf Dashdamirov

Defendant: Ziya Ibrahimov

The applicant: Bakhtiyar Quliyev, an investigator of the Imishli Regional Department of the Azerbaijani Ministry of Justice

A person who brought charges before the court: Shamil Shammadli, a Prosecutor of the Department on Monitoring the Implementation of Laws in the Investigation, Inquiry and Investigative Activities in the Justice, Customs and Tax Authorities at the Prosecutor General’s Office of the Azerbaijan Republic

Ziya Ibrahimov is a functionary within the Bilasuvar branch of the Popular Front Party of Azerbaijan (PFPA). In 2018, he was particularly active and fought against falsification in the course of the presidential elections. He was therefore persecuted by the authorities and forced to flee Azerbaijan. Then, Ziya Ibrahimov went to Germany and applied for political asylum there. However, on 19 May 2022, Mr. Ibrahimov was deported from Germany back to Azerbaijan.

According to the Azerbaijani Ministry of the Interior Affairs, Ziya Ibrahimov has been wanted since 2019 due to his failure to pay alimonies, and that was the reason of his deportation from Germany.

Upon his return from Germany on 19 May, 2022, Ziya Ibrahimov was detained right at the airport. He was charged with committing an administrative offence under the Article 528.1 (Failure to comply with the demands of an enforcement official in connection with the fulfillment of judicial and other bodies) of the Administrative Offences Code of the Azerbaijan Republic, and arrested for a period of one month.

On 22 June 2022, a criminal case was brought against Ziya Ibrahimov under the Article 306.1 (Malicious non-execution of a judgment, decision, ruling or order of the court that has entered into force, or interfering with their execution) of the Criminal Code of the Azerbaijan Republic (AR Criminal Code).

On 5 May 2017, Ziya Ibrahimov had to pay the alimony of 18.500 manat, 3.500 manat according to the judgment of Shirvan Appeal Court on 28 January 2018, and also based on the judgment of Qaradag District Court of 8 May 2015, he had to pay another 9.000 manat. Therefore, in accordance with the ruling of the Bilasuvar District Court of 20 May 2022, Ziya Ibrahimov was subjected to administrative custody for a period of 1 month.

On 22 July 2022, the Baku City Yasamal District Court issued a ruling: to satisfy the investigator’s petition and the prosecutor’s submission to arrest Ziya Ibrahimov and apply a preventive measure of detention for a period of 2 months and 26 days against him.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. Like 95 per cent of all arrest warrants, this ruling does not differ from the others. It does not specify the grounds and their validity that should justify the court’s order.

One of the reasons for the arrest the court cited was the probability of absconding from the trial and investigation. As mentioned above, Ziya Ibrahimov was deported from Germany to Azerbaijan. That means that the law-enforcement authorities have been informed about it, which means that the probability of absconding is equal to almost zero. In that case, it would have been sufficient to confiscate Ibrahimov’s passport, without which he would not have been able to cross the border of the country.

The Article 2 of the Law of the Azerbaijan Republic Exit, Entry and Passports stipulates,

In accordance with the procedure established by this Law a citizen’s right to exit and enter the country shall be exercised only on the basis of a passport of a citizen of the Azerbaijan Republic and a permit to enter a foreign country such as a visa issued in accordance with international treaties.

The official revocation of the passport could be a guarantee to ensure that the accused did not abscond abroad, otherwise it would be a reason for choosing an alternative preventive measure other than arrest.

Especially since the offence of which Ziya Ibrahimov was accused did not entail any public danger. The individual did not cause any harm to society, and in this case he should not be deprived of his liberty.

According to the Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic, restrictive measures may be the following:

  • arrest;
  • house arrest;
  • bail;
  • restraining order;
  • personal surety;
  • surety offered by an organisation;
  • police supervision;
  • supervision;
  • military observation;
  • removal from office or position.

Apparently, an arrest is the harshest preventive measure as it completely deprives the accused of his liberty.

In addition, the Article 155.2 of the Code of Criminal Procedure of the Azerbaijan Republic states that 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:

  • the seriousness and nature of the offence with which the suspect or accused is charged and the conditions in which it was committed;
  • his personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence;
  • whether he has committed a previous offence, the previous choice of restrictive measure and other significant facts;
  • it should be considered the presence or absence of reconciliation between the suspect or accused and the victim or his/her legal successor as a close relative, compensation for damages caused by the crime and other relevant circumstances.

According to this Article, the gravity, nature and circumstances of the offence are the most important factors to be taken into account when imposing a preventive measure in the form of detention. However, they had not been considered by the court.

According to the Article 157.5 of the Code of Criminal Procedure of the Azerbaijan Republic,

When examining the question of arrest as a restrictive measure, the court, if it decides that there is no need to isolate the accused from society by detaining him on remand, shall have the right to substitute house arrest for arrest. The court may simultaneously make its decision about arrest and resolve the matter of releasing the accused from arrest by granting bail, and if this release is considered possible, it shall determine the amount of bail. The court may review its decision about the inadmissibility of bail and the amount of bail at the request of the defence.

In addition to the above-mentioned grounds, the court ruling also pointed out that Ziya Ibrahimov had been arrested on the grounds of the charge that imposed a sentence of more than 2 years’ imprisonment. While it is true that the Article 155.3.1 of the Code of Criminal Procedure of the Azerbaijan Republic specifies this ground, we should again emphasize that the imposition of a preventive measure cannot be justified solely by the severity of the conviction. Besides, in this case it would violate the principle of presumption of innocence, since the offence did not entail any public danger.

The court did not consider the possibility of applying a preventive measure other than arrest and failed to specify the grounds why an alternative preventive measure could not be applied to the defendant. Instead, the court only took into account the investigator’s motion and the prosecutor’s submission, and imposed the preventive measure requested by the law-enforcement authorities. At the same time, the defence arguments were not either considered or properly assessed by the court.

All of the above are clear violations of the right to liberty guaranteed in both National and International laws.

According to the Article 28 of the Constitution of the Republic of Azerbaijan,

  1. Everyone has the right for freedom.
  2. Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.

The Article 14 of the Code of Criminal Procedure of the Azerbaijan Republic state,

  • The right to liberty may be limited only in cases of detention, detention on remand or imprisonment in accordance with the law.
  • Nobody may be detained or arrested other than on the grounds provided for in the Code and other laws of the Azerbaijan Republic.

The Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1), also protects the individual’s personal liberty:

  1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.

Individual freedom must be the rule while a deprivation of liberty prior to a judgment is the obvious exception. Whilst the existence of suspicion that prompted the detention was a condition for the person’s lawful, it was not sufficient to justify, after a certain lapse of time, as an extension of detention. The detention is justified, only if the particular grounds reveal the presence of a public interest overriding, notwithstanding the presumption of innocence, a personal liberty.

In this case, Z. Ibrahimov’s detention was not justified insofar as respect for his personal liberty overrode the public interest.

The Court failed to consider all the circumstances that would enable the public interest element that, in its turn, would justify an exception to the general rule respecting the individual’s liberty. The European Court of Human Rights (ECHR) judgment in the case of Lettellier v France of 29 June, 1991 states,

“The National Judicial Authorities must first ensure that the length of the pre-trial detention of an accused does not exceed a reasonable limit in each particular case. To that end, they must consider all the circumstances that might justify, in the light of the presumption of innocence, exceptions from the general rule concerning respect for individual liberty and take them into account when determining the request for release”. https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Letellier%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57678%22]}

As mentioned above, Ziya Ibrahimov had already been charged with administrative offences and sentenced for a month. After that, the authorities should have granted him time to implement the court decision for non-compliance with it. However, as soon as the administrative detention period was over, he was immediately brought up on criminal charges and arrested. This indicates that the objective of the law enforcement authorities has not been to ensure the implementation of the court decision, but actually to incarcerate him. The administrative sanction was merely a procedural measure that the authorities sought to comply with.

Protocol No. 4 of the to the Convention for the Protection of Human Rights and Fundamental Freedoms state.

No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.

Despite the fact that the Criminal Code of the Azerbaijan Republic listed non-compliance with a court decision as an offence and stipulated custodial sentences, the Protocol 4 under the European Convention for the Protection of Human Rights and Fundamental Freedoms prohibits imprisonment for non-compliance with a contractual obligation.

According to the Article 151 of the Constitution of the Azerbaijan Republic,

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.

Upon his return from Germany, Ziya Ibrahimov was not provided an opportunity to pay his debts. Instead, two punitive measures have been imposed on him. Ziya Ibrahimov’s current imprisonment is nothing else but a punishment for his active political position and activities. One of the fundamental rights of a democratic society, the Right to Freedom, has been violated in relation to Ziya Ibrahimov.

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They are deported from Germany and arrested in Azerbaijan

THEY ARE DEPORTED FROM GERMANY AND ARRESTED IN AZERBAIJAN

Punkhan Karimli

Analysis of violation of law during Punkhan Karimli’s judicial proceedings

Baku Grave Crimes Court

Case №1(101)-1092/2022

27 July 2022

Presiding judge: Samir Aliyev

Judges: Javid Huseynov, Eldar Ismayilov

Defendant: Punkhan Karimli

Defender: Javad Javadov

Public Prosecutor: Orkhan Mehdiyev, a prosecutor of the Department of Public Prosecution Support in the Serious Crimes Courts of the Department of Public Prosecution Support within the General Prosecutor’s Office of Azerbaijan Republic

In November 2021, Punkhan Karimli, a member of the opposition Popular Front Party of Azerbaijan (PFPA), was deported from Germany. On 25 January 2022, he was detained by the Anti-Drug Department officers affiliated with the Azerbaijani Ministry of the Interior. Karimli was charged with crimes under the Articles 234.4.1 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed on preliminary arrangement by group of persons or organized group) and 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic (AR Criminal Code).

According to the investigation, on 25 January 2022, the officers of the Anti-Drug Department of the Azerbaijani Interior Ministry conducted a raid, during which Punkhan Karimli was detained. A total of 7.510 grams of heroin and 2.512 grams of the psychotropic substance methamphetamine were discovered in his possession. P. Karimli was arrested and brought to the Baku Narimanov district police department.

The defendant, Punkhan Karimli, has been interrogated in the court and testified that he was born in Baku in 1989. He obtained a university degree at the Slavic State University and at the same time he was engaged in socio-political activities. In 2012, he was involved in public and political work as a member of the “Youth Club”, a non-governmental organisation. Since 2016, he has belonged to the PFPA. In October 2018, he left to Germany to become a political immigrant. For the period of 3 years, while living in Augsburg, Germany, he was constantly involved in political activities, participated in rallies against the dictatorial regime in Azerbaijan and openly expressed his negative views against Ilham Aliyev’s government on social media.

On 25 November 2021, he was deported from Germany to Azerbaijan. Following his deportation, two months later, he went along with his father to the Narimanov district. His father headed to the Oil Company and he went to the Tax Department. Having finished his errand, he walked out of the Department and distanced about 10-15 metres away as he was suddenly attacked by four unknown men, physically assaulted, handcuffed and put into the car. The entire incident was captured on a video camera set up in the area. He did not know what was going on. At first the men told him that his name was Ali. When Karimli denied it and told them that his name was not Ali but Punkhan, they replied “you have a gun”. Then Elman Guliyev, who was in the front seat of the car said, “Yesterday in the area of Khalglar Dostlugu metro station, you were molesting a woman, that’s why we detained you.” P. Karimli demanded to be told the real reason for such a treatment, on which E. Guliyev said, “Your name is Punkhan, you know what you are detained for”. Then the Major, Surkhay Aliyev, said, “You oppose the State and President and therefore you are arrested”. Karimli’s hands were handcuffed. He was wearing a hooded jacket. Surkhay Aliyev put the hood over his head and started strangling him.

He was then brought to the Baku Narimanov District Police Department in Baku. But while still in the car, the men who arrested Karimli planted two packages of drug in his pocket. It has been carried out a personal search in the presence of a lawyer, during which these two drug packages were found in the pocket of his jacket. Elman Guliyev said that because of his statements against the State and President, he would be arrested. When the police officers asked him to sign a testimony, he refused to do it. At that moment, they closed the door, shut the windows and blinds of the office. Three other unidentified men came in and started pressuring him psychologically. P. Karimli had to sign the testimony they required. It was captured on a video camera. Karimli also testified that upon his arrival from Germany he was not engaged in any political or social activities but only took care of his personal matters.

In the course of the trial, Elman Guliyev, an officer of the Interior Ministry’s Anti-Drug Department, was questioned as a witness testifying that he had received an operational information on Punkhan Karimli on January 25 2022. In this regard, they formed a special operational group, which consisted of him and other officers. On 25 January 2022, at about 12:30 p.m., they detained Punkhan Karimli in the Baku Narimanov district. Having introduced themselves, they invited Mr Karimli to follow them to the police station. The latter did not object and went along with them. The police conducted a body search and found heroin and methamphetamine in the specified quantities on Mr. Karimli. It was videotaped. When questioned, Punkhan Karimli testified that he had purchased the drugs for personal purposes in the Khatai district of Baku.

In the course of the trial, Roman Hasanov and Rovshan Mammadaliyev, two police officers were also questioned as witnesses who confirmed Elman Guliyev’s testimony.

The forensic narcological examination conducted on 3 February 2022, revealed that Punkhan Karimli had an opioid and psychostimulant addiction syndrome. According to the conclusion of the forensic narcological examination, the accused must undergo a compulsory treatment for drug addiction.

The forensic psychiatric examination dated 5 February 2022, concluded that Punkhan Karimli had not suffered from any mental illness or psychological disorder at the time of the crime.

There is a decree of 15 March 2022, in the case file not to initiate criminal prosecution regarding the torture of Punkhan Karimli.

On 27 July 2022, the Baku Court on Serious Crimes issued a verdict against Punkhan Karimli. He was found guilty on the charges and sentenced to 6 years imprisonment to be served in a penal colony of general regime. The verdict also states that in accordance with the Article 93-1.1 of the Azerbaijani Criminal Code, Karimli should be subjected to compulsory medical treatment measures aimed at treating his drug addiction. Mr. Karimli should also be registered in a narcological dispensary at his place of residence.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. Punkhan Karimli was accused of committing a crime under the Article 234.4.1 of the Criminal Code. Within this Article, as an aggravating factor of the crime is whether it had been committed by a group of individuals upon prior conspiracy or by an organisation. However, neither the indictment nor the verdict specify who belonged to such a group, how the group members communicated with each other, how the crime was planned, whether there were any written arrangements between the group members, how responsibilities were distributed between them, and many other issues. There is not a single word, not a single proof that the crime was entirely committed by an organized criminal group. None of this has been specified in the verdict. The verdict only states that Karimli purchased the drugs directly from a person whose identity had not been identified by the investigation. It should be noted that Karimli had been living in Germany for three years. Furthermore, the verdict does not indicate what type of criminal group was involved in the crime.

According to the Constitutional Court Decree On Interpretation of the Concept  Organized Group in the Criminal Code of the Azerbaijan Republic dated 20 April 1999, the concepts of “group of individuals”, “group of people upon pre-conspiracy” and “organized group” are clearly differentiated in terms of their attributes. These elements also differ in terms of the social threat; one group may be more dangerous than the other.  Согласно Постановлению, группа лиц по предварительному сговору либо организованная группа с целью совершения преступлений объединяет между собой сложную форму двух или более лиц. Здесь обязательным отличительным признаком является предварительный сговор. According to the Decree, a group of people upon pre-conspiracy or an organized group with the purpose of committing crimes are similar by the fact that both groups include at least two or more individuals. The essential distinguishing feature here is prior conspiracy. In such criminal groups consensual agreement to commit an offence is acquired prior to the commission of the offence. There must be a certain time period between the adoption of such a decision to commit a crime and its execution. Moreover, within an organized criminal group there must be a clear allocation of responsibilities, and the positions taken as by the leader and other members. This Decree states that the courts must clearly distinguish between all three concepts, as well as take into account the following attributes: the choice of an organiser and leader of a criminal group, the strict observance of order, the integrity of the criminal intentions, the elaboration of an offence plan and its serious preparation, the assignment for each group member, the provisional determination of the method to commit the crime, the coordination of actions according to the elaborated plan, and the distribution of acquired profit in accordance with the status in the group.

According to the Constitutional Court’s judgment, the courts bear a strong obligation to examine and legally assess charges involving an aggravated offence committed by a group of people upon pre-conspiracy or by a gang. In the commented case there is nothing inherent in a group of conspirators or an organized group.

Furthermore, as it is indicated above, neither the investigative body nor the court differentiated between the types of organized crime. In the verdict, it was only the defendant’s name No any other member of the so-called criminal group was identified by the investigation. Yet, despite all this, the court retained this aggravating circumstance in P. Karimli’s accusation, even though the investigation did not provide any evidence of it.

We should also pay attention to the dates of Karimli’s deportation from Germany and his detention. Thus, he was deported on 25 November 2021, and detained on 25 January 2022. Two months have apparently elapsed since his deportation. A logical question then arises: within such a short period of time, how was Karimli able to establish contacts with other members of the criminal group, plan and commit the crime, assign roles and other actions? Neither the investigation nor the court has provided any kind of explanation.

This is a gross violation of the norms of substantive law. The domestic courts often make such a breach by failing to examine all the arguments and merits of the defence. As a rule, the investigation bodies file such charges and the courts, without having fully, objectively and comprehensively considered the cases, impose unjustified sentences that lead to the long terms of imprisonment.

In the course of the trial, P. Karimli’s lawyer submitted a petition to the court. He asked the court to summon Karimli’s father, who was a first-hand eyewitness of his son’s arrest. In the motion, the defence also asked for an inspection of the CCTV cameras installed in the area where Karimli was detained. That motion was made as in the course of pre-trial investigation as in the court. However, the State prosecutor objected to the motion, and the judge left the defence lawyer’s motion without consideration.

It is also odd that, according to the police officers, the body search was not carried out during P. Karimli’s detention but instead took place at the Police department. Logically, if the police officers had been aware that P. Karimli had drugs in his possession, they should have conducted an on-the-spot inspection supported by a court order.

As for the defence motions, according to the Article 121.2 of the Criminal Procedure Code of the Azerbaijan Republic, the ruling adopted on the motion or request should be motivated and contain an assessment of the applicant’s arguments. The motions and requests that are aimed at comprehensive, detailed and objective clarification of all the circumstances pertaining to the criminal prosecution within the framework of due process of law and at restoring the violated rights and legitimate interests of the parties involved in the criminal proceedings and other persons involved in the criminal proceedings cannot be rejected.

The Court dismissed the essential motions that would have contributed to the disclosure of truth and further to the acquittal verdict. In fact, the inspection of the CCTV cameras should have been of interest to the investigation authority (to prove the guilt of the accused), but the denial of the motion made it clear that the detention had taken place beyond the framework of the law. The Court dismissed the essential motions that would have contributed to the disclosure of truth and further to the acquittal verdict. In fact, the inspection of the CCTV cameras should have been of interest to the investigation authority (to prove the guilt of the accused), but the denial of the motion made it clear that the detention had taken place beyond the framework of the law.

Another very important point in the conduct of a fair trial is the non-admission of those wishing to attend the trial, including close relatives of the accused, into the courtroom. In this case, the Court did not order the trial to be held behind closed doors, which meant that the case had to be heard in public.

The Principle of Publicity is protected by the Article 27 of the Criminal Procedure Code of the Azerbaijan Republic as well as the Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Accordance 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.

The court proceeding transparency, in both criminal and civil cases, is one of the essential guarantees of the justice system’s fairness. It protects defendants from behind-the-scenes justice that avoids public scrutiny and constitutes one of the means to maintain the confidence and trust of the court.

The judgment of the European Court of Human Rights in the case of Goch v. Poland of 16 July 2002 states:

According to the practice established by the Court, in proceedings before a court of first instance only, the right of everyone to have his case heard in public, as understood under Article 6 § 1, comprises the right to a ‘court hearing’ unless exceptional circumstances make it impossible not to have one. – https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22\%22CASE%20OF%20GOC%20v.%20POLAND\%22%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-60428%22]}

All the above-mentioned violations of the Norms of Substantive and Procedural Laws show a biased attitude of the investigation and court towards the accused, and once again prove the fact that the arrests of political emigrants expelled from Germany and subsequently arrested in Azerbaijan (there are five of them at the moment) have a political motive and have absolutely nothing in common with the law.

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if you are a believer, then you are a terrorist

IF YOU ARE A BELIEVER, THEN YOU ARE A TERRORIST

Analysis of violation of law at the trial of the Azerbaijan citizens accused of terrorist offences

 

Baku Court of Appeal

Case №1(103)-1112/2021

9 August 2021

Presiding judge: Ilqar Murguzov

Judges: Habil Mammadov, Hasan Ahmadov

Defendants: Samir Qurbanov, Amin Hasanov, Aflatun Bayramov, Babak Mammadli, Tehran Qasimov, Elgun Ismayilov, Aladdin Ibishev, Yusif Imanov, Orkhan Qurbanov, Shahriyar Jabbarov, Javid Amanov

Defenders: Babak Hamidov, Elchin Sadiqov, Eynulla Valiyev, Sudaba Aliyeva, Vali Valiyev, Azer Naqiyev 

The Public Prosecutor: Emil Mirzoyev, a prosecutor of the Support Public Prosecution Department at the Courts of Appeal under the Azerbaijan Republic Prosecutor General’s Office

 

A citizen of the Azerbaijan Republic, born in 1988 in the Qazakh district of Azerbaijan, Samir Qurbanov, previously not convicted, against whom a preventive measure of custody had been imposed as of 9 May 2019, was arrested on charges of committing offences under the following Articles of the Criminal Code of the Azerbaijan Republic:

  • 167-2.2.1 (Production, import with the purpose of sale or distribution, sale or distribution of literature, religious objects and other informational materials of religious content without relevant permission, committed by a group of persons upon a preliminary conspiracy or by an organized group);
  • 167-2.2.2 (Production, import with the purpose of sale or distribution, sale or distribution of literature, religious objects and other informational materials of religious content without relevant permission, committed more than once);
  • 167-3.1 (Manufacture, storage or distribution of religious extremist materials, i.e. materials calling for the implementation of religious extremist activities or justifying such activity, either justifying the need for such activities);
  • 28,214.2.1 (Preparation for terrorism committed by an organized criminal group);
  • 28, 214.2.6 (Preparation of terrorism committed on the base of religious enmity, religious radicalism or religious fanaticism);
  • 214-1 (Financing of terrorism);
  • 218-1 (Creation of criminal community (criminal organization) for commitment minor serious or serious crimes);
  • 283-1.1 (Involvement of citizens of the Republic of Azerbaijan or stateless persons permanently residing in the Republic of Azerbaijan, to armed conflicts outside the Republic of Azerbaijan with a purpose to disseminate religious teachings, under the pretence of performing religious rites, or due to religious animosity, religious radicalism and religious fanaticism or conducting military exercises for this purpose, or creation of stable group for this purpose and management of such group).
  1. Qurbanov was arrested on 9 May 2019. He is currently being held in the Baku Detention Centre of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May, 2021, the Baku Court of Serious Crimes found S. Qurbanov guilty on the charges and sentenced him to 8 years’ imprisonment in a strict regime colony.

Amin Hasanov, born in 1993 in the Tovuz district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 9 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-2.2.1, 167-2.2.2, 167-3.1, 28,214.2.1, 28,214.2.6, 214-1 and 218.2 (Participation in criminal community (criminal organization) or in association of organizers, heads or other representatives of the organized groups) of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found A. Hasanov guilty on the charges and sentenced him to 7 years’ imprisonment in a strict regime colony.

Aflatun Bayramov, born in 1993 in the Tovuz district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 9 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1, 28,214.2.1, 28,214.2.6, 218.2, 28, 283-1.3 and 228.4 of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found A. Bayramov guilty on the charges and sentenced him to 7 years’ imprisonment in a strict regime colony.

Babak Mammadli, born in 1980 in Fuzuli City of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 9 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1, 214-1 and 218.2 (Participation in criminal community (criminal organization) or in association of organizers, heads or other representatives of the organized groups) of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found B. Mammadli guilty on the charges and sentenced him to 7 years’ imprisonment in a strict regime colony.

Tehran Qasimov, born in 1991 in the Tovuz district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 9 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-2.2.1, 167-2.2.2, 167-3.1, 214.1 and 218.2 of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found T. Qasimov guilty on the charges and sentenced him to 5 years’ imprisonment in a strict regime colony.

Elgun Ismayilov, born in 1995 in the Tovuz district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 8 June 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1, 218.2 and 28,283-1.3 (Involvement of citizens of the Republic of Azerbaijan or stateless persons permanently residing in the Republic of Azerbaijan, to armed conflicts outside the Republic of Azerbaijan with a purpose to disseminate religious teachings, under the pretence of performing religious rites, or due to religious animosity, religious radicalism and religious fanaticism or conducting military exercises for this purpose, or creation of stable group for this purpose and management of such group) of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found E. Ismayilov guilty on the charges and sentenced him to 2 years and 6 months imprisonment in a strict regime colony.

Aladdin Ibishev, born in 1993 in the Tovuz district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 16 September 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 218.2 and 28,283-1.3 of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found A. Ibishev guilty on the charges and sentenced him to 2 years and 6 months imprisonment in a strict regime colony.

Yusif Imanov, born in 1985 in the Nakhchivan Autonomous Republic of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 10 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1 and 218.2 of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found Y. Imanov guilty on the charges and sentenced him to 2 years imprisonment in a strict regime colony.

Orkhan Qurbanov, born in 1987 in Baku City, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 9 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1 and 218.2 of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found O. Qurbanov guilty on the charges and sentenced him to 2 years and 6 months imprisonment in a strict regime colony.

Shahriyar Jabbarov, born in 1996 in the Khanlar district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 20 August 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 218.2 and 218-1.3 of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found Sh. Jabbarov guilty on the charges and sentenced him to 2 years and 6 months imprisonment in a strict regime colony.

Javad Amanov, born in 1977 in Ali-Bayramly City (today – Shirvan City) of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 7 June 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1, 214-1 and 218.2 of the Criminal Code of the Azerbaijan Republic. He is currently being held in the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of Azerbaijan. On 4 May 2021, the Baku Court of Serious Crimes found J. Amanov guilty on the charges and sentenced him to 2 years and 6 months imprisonment in a strict regime colony.

According to the investigation and the first instance court verdict, Samir Qurbanov had set up a criminal network of the Azerbaijani citizens in order to commit serious and extremely serious acts of crime. S. Qurbanov was the leader of the community and engaged its members into the armed conflicts on the grounds of religious enmity, religious radicalism and fanaticism outside the Azerbaijan Republic. The following individuals joined and were members of the network: Babek Mammadli nicknamed “Abdul Rahman”, Amin Hasanov nicknamed “Bilal”, Tehran Qasymov nicknamed “Abdullah”, Aflatun Bayramov nicknamed “Abu Bakr”, Elgun Ismayilov nicknamed “Khamza”, Orhan Qurbanov, Shahriyar Jabbarov, Aladdin Ibishev, Yusif Imanov, and others. The objective of the network was to compromise public security, cause panic among the population, as well as killing and inflicting harm to health, damaging vital facilities by blowing up, setting fires and other criminal activities. However, due to unknown reasons, they were unable to finalise those crimes, although they had carried out the preparations. The charge also stated that the criminal network had raised funds for the financing of terrorism, distributed and stored the banned religious literature, audio and video materials appealing for the implementation of religious extremism. The indictment and conviction of the Court of First Instance stated that in February-March 2017, Samir Qurbanov by the religious nickname “Musab” had received the assignment from a member of the prohibited Syrian organisation ISIS that was declared a terrorist organisation by the UN in 2014. The identity of this ISIS member was revealed by the investigation. The investigators believe that the communication between the network members was maintained via a hidden correspondence by means of the “Threema ID” mobile app. In 2019, the network members were instructed by an ISIS member nicknamed “Abdul Ghafoor” to commit suicide bombing at the public crowded place on the territory of the Russian Federation. However, they subsequently refused to proceed, having tentatively informed Samir Qurbanov.

On 9 May, 2019, the Azerbaijan Republic State Security Service officers conducted a search in Samir Qurbanov’s house in Tovuz, as a result of which they found the books, audio and video materials containing the prohibited religious content, also, they discovered a notebook containing the written records of  their expenses and a Samsung cell phone. All items were seized. The same day, a search was conducted in Aflatun Bayramov’s house in Tovuz, where they found an “Elfmon-Key” knife considered to be a cold weapon, as well as a Samsung mobile phone. A search of Yusif Imanov’s car, held on 10 May, 2019, led to the discovery and confiscation of electronic carriers containing the banned religious content. The other defendants’ homes were also searched and the electronic devices containing the banned religious materials were confiscated.

Samir Qurbanov, who was interrogated in the course of the investigation and at the trial pleaded not guilty to the charges and testified that he had moved to Turkey on 15 April 2016, where he got a job in the laundry. On 15 June 2016, there was an attempted coup d’état in Turkey. Many people gathered at the town squares. He was also curious about it and periodically wandered around the square. In October 2016, S. Qurbanov was deported to Azerbaijan. Then he returned to Tovuz where he was engaged in the private retail business. Soon, Samir Qurbanov met Babek Mammadli, Tehran Qasymov, Amin Hasanov, and others.

Back in 2012, those people formed a group aimed at collecting money and helping the people in need (”sadaqa” in Islam). Since Qurbanov lived in the centre of Tovuz and was able to solve problems in a timely manner, he was elected as their leader. Their meetings mainly took place at the teahouses or in the parks. S. Qurbanov testified that the funds had not been collected to finance terrorism, as indicated in the accusation but as sadaqa, an assistance to those in need. He refuted the argument that Amin Hasanov had rented a flat to hold there secret meetings with the purpose of committing crimes. A. Hasanov had been residing in that flat and, due to his back problems, he was unable to work. In addition, A. Hasanov had three minor children to support, so he was allocated 90, 99 or 100 manats as an aid from the collected money. Also, Amin Hasanov ran classes on the Quran and the life of the prophets in his house.

In 2017, Abdul Ghafoor asked Tehran Qasymov to lend him money for his personal needs, as well as for the treatment of his child. He was given $400 and $900. S. Qurbanov testified that he had known Babek Mammadli for about 15 years, he did not have any religious nickname, the others he had known only as individuals performing religious rituals. He had known Tehran Qasymov since 2011. S. Qurbanov taught him Arabic and Quran but did not give him any instructions. He did not have any connections with people from Syria and Afghanistan. Qurbanov testified that he had not transferred any religious literature to the accused Elgun Ismayilov and Yusif Imanov by means of Teleqram system, neither he had provided testimony concerning Babek Mammadli to the investigation, nor about Yusif Imanov being a member of the criminal group nor about his attitude to ISIS. He had not previously met Javid Amanov and saw him for the first time in the courtroom. S. Qurbanov testified that he had been detained by the State Security Service in his house in Tovuz and he had not been beaten but had been subjected to psychological pressure. His lawyer was not in attendance at the first interrogation, while during the last interrogation there was another lawyer, Chimnaz Eyubova.

The verdict of the first instance court stated that the accused Babek Mammadli had refused to testify at the trial. However, he denied that fact in his appeal.

The other defendants, Amin Hasanov, Aflatun Bayramov, Tehran Qasymov, Yusif Imanov, Orkhan Qurbanov, Elgun Ismayilov, Shahriyar Jabbarov, Aladdin Ibishev and Javid Amanov, as stated in the first instance court verdict, also made partial confessions at the pre-trial investigation stage.

Afsun Qalandarli, Rafayil Jafarov, Nizami Mammadov, Shahmar Salimov, Elchin Jafarov, Adil Ahmadov, Qabil Qasymov, Alisurat Aliyev, Rahil Nasirli, Vusal Abbasov, Tural Abdiyev, Ramin Hajiyev, Hasan Ahmadov, Aladdin Mehdiyev and Samir Aliyev were interrogated as witnesses at the first instance court. The witness Rafayil Jafarov testified in favour of the accused at the trial of the first instance. Their testimonies differed from the ones provided in the course of the pre-trial investigation. He explained the contradiction by the fact that he had signed the protocol of interrogation without reading it. The same happened with the testimonies of Nizami Mammadov, Elchin Jafarov, Qabil Qasymov, Alisurat Aliyev and Rahil Nasirli.

According to the search protocols, there were found the religious materials (books, audio and video) in the possession of the accused. Distribution of these materials requires permission issued by the State Committee on Religious Structures of the Azerbaijan Republic.

The forensic psychiatric examinations conducted on 19 June, 2019, revealed that all the accused individuals had been in their sane state at the time of the offences, and had not suffered from any psychiatric or psychological disorders.

The Baku Court of Appeal concluded that the first-instance court had issued the correct verdict by declaring the defendants guilty of the charges.

The Baku Court of Appeal also considered that the defendants’ testimonies provided at the first instance court had been of a defensive nature, had not been supported by any other evidence, and had been intended to avoid the criminal charges.

The first instance court determined that committing the offences as part of an organised criminal group and on the grounds of religious fanaticism had been considered to be aggravating circumstances. The Court regarded Babek Mammadli’s, Javid Amanov’s and Orkhan Qurbanov’s minor children as mitigating circumstances. Also, the Court found the fact that Tehran Qasymov, Aladdin Ibishev and Aflatun Bayramov active assistance to the investigation in the detection of the crimes and identification of other participants of the crime group as mitigating circumstances. According to the verdict of the first instance court, the aggravating circumstances were that Aflatun Bayramov had committed criminal offences as part of the organised criminal group and on the grounds of religious fanaticism, and as his particularly dangerous recidivism.

On 9 August, 2021, the Criminal Panel of the Baku Court of Appeal issued a ruling on the appeals lodged:

  • dismiss the appeals lodged by the defendants Amin Hasanov, Aflatun Bayramov, Tehran Qasymov, Elgun Ismayilov, Aladdin Ibishev and also Samir Qurbanov’s lawyer Babek Hamidov, Babek Mammadli’s lawyer Azer Naqiyev, Tehran Qasymov’s lawyer Eynulla Valiyev, Amin Hasanov’s, Aflatun Bayramov’s and Babek Mammadli’s lawyer Elchin Sadigov;
  • uphold the sentence of the Baku Court of Serious Crimes issued on 4 May 2021.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. According to the Article 46.3 of the Code of Criminal Procedure of the Azerbaijan Republic,

The grounds for starting criminal proceedings shall be sufficient evidence to indicate the ingredients of the offence. If there are grounds to suppose that there are no circumstances indicating the absence of a criminal act or precluding criminal prosecution, the preliminary investigator, investigator or prosecutor shall immediately start the criminal proceedings in accordance with his powers.

Thus, it is necessary to have sufficient elements of evidence that clearly indicate that an individual has been or is about to be involved in the commission of a crime.

In this case, the accused were charged with aggravating circumstances and the trial court verdict and the appeal court ruling did not adequately prove the guilt of the individuals brought before the court. As evidence, the investigation found the books, videos and audio materials confiscated at the defendants’ homes, which had been assessed as illegal. However, there is no indication in the Court of Appeal ruling (nor in the first instance verdict) that it was an expertise of any kind stating that the found materials had been banned. It only points out that there was no authorization from the Azerbaijan State Committee for Religious Structures to store and distribute those materials. The judgment and ruling also fail to specify the titles of the seized books and the content of the video and audio recordings.

It is necessary to draw attention to the witnesses’ testimonies in the case in question. As stated above, the Court relied on the testimonies provided by witnesses during the pre-trial investigation and not on those in the course of the trial. It should be noted that the testimonies at the investigation were of an accusatory nature and the testimonies at the trial were of a defensive nature. There was not anything that could partially prove the defendants’ guilt. All those witnesses testified that they had signed their statements at the investigation without reading them. Therefore, all of them could not have conspired with each other in advance to testify similarly in the court. It means that most likely the witnesses were subjected to psychological coercion in the course of the investigation, as it often happens. It is unclear the Court’s position with regard to the witnesses’ testimonies. The Court explains that they consider the testimonies provided in the course of investigation more appropriate because they are corroborated with other evidences obtained in the case. However, what kind of evidence it is, whether it is irrefutable and what particular circumstance it confirms, it is equally unclear.

The first-instance verdict, as well as the judgment of the Court of Appeal, only indicated the prosecution position; the verdict and judgment were in fact copied word by word from the indictment. Whereas the arguments, proofs and reasoning of the defence had not only been omitted but failed to be assessed as a whole.

Furthermore, in addition to procedural violations, there were violations of substantive law. As indicated above, the six defendants were charged with the financing of terrorism and preparation for terrorism. The charges on those Articles are sufficiently severe and require a very strong evidentiary basis. It should be emphasized that the amounts set out in the indictment, and later in the first instance verdict and appeal court ruling, are so insignificant that to suggest that terrorism was financed with those amounts is simply illogical and ridiculous.

One of the important points in the case are the charges with aggravating circumstances, e.g. crimes committed as part of an organized criminal group (criminal network). As the defendants testified, many of them did not know each other at all, they had just met for the first time in the courtroom. Others knew each other but their cooperation in organizing serious crimes was not proven in the court. The charge with this aggravating circumstances was half-hearted and unproven.

The investigation indicated that secret software such as “Threema İD” was found in the accused ones’ mobile phones, but almost all of them had not been aware of the existence of such software and had never used it. That was confirmed with a forensic report.

It is also puzzling how, during the first instance trial, the court ordered the compulsory attendance of a number of witnesses but, having not waited for that order to be enforced, the investigation was terminated and the court proceeded with making oral arguments.

It is also important to consider the question of the motions filed by the defence. There are certificates in the criminal case file lacking a source. The defence requested the court to establish the source of those documents. However, as usual, the motions were declined.

According to the Article 121.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

Reasons shall be given for the decision taken on an application or request, together with an assessment of the applicant’s arguments. Applications and requests for any matters connected with the prosecution to be examined thoroughly, fully and objectively under the required legal procedure, and for the violated rights and legal interests of the parties to the criminal proceedings and of other participants in the proceedings to be restored, may not be rejected.

As can be deduced from the above, there were serious violations of substantive and procedural law in the course of the investigation and in the courts of two instances.

Partiality, bias of the court violated the right to a fair trial guaranteed by the Article 6 (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. The court violated the principle of a fair trial by an independent and impartial tribunal.

The trials conducted by the two courts were not fair and impartial. The courts, having accepted the version of the preliminary investigation, issued the rulings that contradicted the Norms of National and International law.

The judgment of the European Court of Human Rights (ECHR) in Castillo Algar v Spain of 28 October 1998 states:

Under the objective test, it must be determined whether, irrespective of the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public, including the accused. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. In deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether this fear can be held to be objectively justified. –

https://hudoc.echr.coe.int/eng#{“fulltext”:[“\”CASE%20OF%20CASTILLO%20ALGAR%20v.%20SPAIN\””],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-58256”]}

The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 1, specifies that the rights and freedoms protected by the Convention are to be fully enforced as soon as a State ratifies it. It sets out the limits of the Convention in terms of the rights-holders, the object of protection, the limits and effectiveness of the jurisdiction exercised by the State.

Violations of the procedural and substantive provisions were not investigated by the court, they were not legally assessed, the prejudicial treatment of the defendants, the failure to take into account strong defence evidence, the one-sided examination of the criminal case and the subsequent conviction resulted in a gross violation of the right to a fair trial, guaranteed by the domestic law and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as ECHR case-law.

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A drug fighter was jailed for having possessed drugs

A DRUG FIGHTER WAS JAILED FOR HAVING POSSESSED DRUGS

Razi Humbatov

Analysis of violation of law during Razi Humbatov’s judicial proceedings

Baku Grave Crimes Court

Case №1(101)-224/2022

20 May 2022

Presiding judge: Telman Huseynov

Judges: Fikrat Qaribov, Ali Mammadov

Defendant: Razi Humbatov

Defenders: Javad Javadov, Gunay Hajiyeva

State Prosecutors: Rauf Malyshev and Valeh Alakparov, the prosecutors of the Department of Public Prosecution Support on Serious Prosecutions within the General Prosecutor’s Office of the Azerbaijan Republic

Razi Humbatov, born in 1985, a member of the Muslim Unity Movement, was detained as a suspect in connection with an offence under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic on 7 July, 2021.

According to the investigation, at around 13:00 on 7 July 2021, Razi Humbatov’s car was stopped by the officers of the Department for Combating Organized Crime within Azerbaijani Ministry of Internal Affairs. R.Humbatov was taken to the Department for personal examination. As a result of that inspection, it was found that he had been carrying 66.132 grams of the narcotic substance tiryak.

In the course of the trial, Razi Humbatov testified that he was a member of the “Muslim Unity” Movement, ran for the local municipal council in 2019, and on 20 January, 2020, was summoned to the Department of Organized Crime, where he was requested to resign from the “Movement”. Razi Humbatov had been carrying out his activities as a member of the Movement since 2020. Humbatov had been conducting educational campaigns against drug addiction, which led to three burglaries at his house in April 2021. According in his words, it was intended to discourage him to continue his work. The police department and the 102 service were informed by Humbatov. The district police officer stated that the robbery might be committed by some drug addicts.

 

  1. Humbatov was certain that his arrest had to do with his awareness-raising activities against the drug addiction, which he had conducted in schools, kindergartens and other crowded places. On the day of his detention, he was waiting for a friend in his car when a man grabbed his arm and forced him out of the vehicle. He initially thought it might be a junkie, but soon it turned out to be an employee of the Department for Combating Organized Crime, to which he was later taken. He did not show any resistance upon apprehension, but the police officers who arrested him started verbally abusing and beating him demanding that he should take responsibility for the committed offence. At the Department, the chief, identified as Elnur, put the drugs on the table in front of him and said that if he did not admit it belonged to him, he would be charged with the weapons possession. In order not to be subjected to further pressure and protect his family, R. Humbatov was forced to make a self-incriminating confession.
  2. Humbatov also testified to the fact that there had been two video recordings of him in the Department. During the first video recording he had forgotten the word “tiryak”, and the recording was therefore suspended. On the second occasion, he was told that he had allegedly purchased the drugs from a man named Ali. Razi Humbatov was unable to pronounce that name, as it was a religious one (the name of a companion of the Prophet Muhammad), therefore he said that he had allegedly bought the drugs from a man named Ruslan. When R. Humbatov was detained, the residents of the village of Jeyranbatan, where he was residing, collected signatures and appealed to the relevant authorities to release Razi Humbatov. At the trial, he also indicated that he had no knowledge of drugs or how to use them. R. Humbatov also said that he had no regrets about his anti-drug educational activities but that he would not continue doing so after his release. He plans to renounce his Azerbaijani citizenship.

In response to questions posed by the trial participants, R. Humbatov replied that he had not been subjected to a personal search during his detention, the officer had twisted his head, put him in the car and punched him in the neck and back. The man sitting in the front seat of the vehicle had been insulting him. While in the Department, he had been beaten with a truncheon, insulted and threatened that his brother would be also brought in. Back on 20 January 2020, R. Humbatov was summoned to the police and an officer named Jafar explained the reason for his summons by pointing out on Humbatov’s affiliation with the “Muslim Unity” Movement. He was demanded to quit the Movement under the threat that he would end badly.

  1. Humbatov also claimed that prior to the videotaping, they had put some drugs in his pocket, read out the statement he should have made, and only then called his lawyer. R. Humbatov also testified that during the examination of his phone nothing suspicious had been found.

During the trial, Shahin Sharifov, Tunar Allahverdiyev and Ilham Ismayilov, the Interior Ministry’s Department for Combating Organised Crime employees were questioned as witnesses. They confirmed the investigation’s version and testified that R. Humbatov had not been subjected to physical or psychological pressure.

According to a forensic medical examination dated 26 July 2021, it was found that heroin in Humbatov’s blood and urine. No other drugs had been detected.

A forensic narcological examination conducted on 23 August 2021, revealed that R. Humbatov had neither suffered from drug addiction nor required compulsory treatment.

The report of the phone inspection carried out on 12 August 2021, indicated that a mobile phone belonging to R. Humbatov did not reveal any information or evidence that was related to the case.

According to the forensic psychiatric examinations conducted on 24 August and 27 December 2021 and 12 March 2022, R. Humbatov was not suffering from any mental illness and was in his sane state of mind at the time of the crime he was charged with.

Based on the decision not to institute criminal proceedings issued on 15 September, 2021, it follows that the actions of Shahin Sharifov, Ilham Ismayilov and Turan Allahverdiyev from the Department for Combating Organized Crime did not constitute an offence of physical and psychological pressure on R. Humbatov.

The court assessed R. Humbatov’s testimony as unreliable and not supported by any other evidences. However, the court concluded that Razi Humbatov’s guilt had been fully proven in the course of the trial.

On 20 May 2022, the Baku Grave Crimes Court issued the following verdict against R. Humbatov: find Razi Humbatov to be guilty of the charges brought against him and sentence him to a six-year term of imprisonment to be served in a general regime penal colony.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. The Article 3 of the Law of the Azerbaijan Republic On Courts and Judges states:

Activity of the courts of the Republic of Azerbaijan is aimed solely at the administration of justice and, in cases and order provided by legislation, at the enforcement of judicial supervision. While administering justice, courts protect rights and freedoms of person and citizen, rights and lawful interests of all enterprises, establishments and organizations irrespective of the form of property, political parties, civil associations, other legal persons, from any encroachments and law violations, fulfil other objectives provided for in Constitution of the Republic of Azerbaijan and this Law. Vesting of other objectives on courts is inadmissible.

Like other politically motivated cases, the court once again played the role of a reprisal authority in this criminal case. In order to be sure of that, let us look at the violations in details.

The case evidences consist of the police testimonies, forensic examinations, the defendant’s testimony, and some law enforcement statements.

The authority that detained R. Humbatov was the Department for Combating Organized Crime of the Interior Ministry, and the witnesses in the case were also employees of that Department and therefore subordinated to it.

As indicated above, the defendant’s testimonies had not been either verified and examined in detail, or been given a legal assessment. On the contrary, his testimonies were assessed by the court as unsubstantiated. Razi Humbatov indicated he had been subjected to physical and psychological abuse. It is well known that the law enforcement officers often use torture on detainees. In this regard, there are numerous accounts confirmed by various local and international human rights organizations, as well as the decisions against Azerbaijan issued by the European Court of Human Rights (ECHR), confirming the facts of torture in the law enforcement authorities. Mr. Humbatov described in details how he had been treated by the Department officers, the methods they had used and how they had obtained his “confession”. Unfortunately, the measures applied to R. Humbatov were virtually identical to those applied to other political detainees.

Torture and abuse are prohibited by both domestic Laws and International Conventions.

The Article 13 of the Code of Criminal Procedure of the Azerbaijan Republic state:

13.2. During a criminal prosecution nobody shall:

13.2.1. be subjected to treatment or punishment that debases human dignity;

13.2.2. be held in conditions that debase human dignity;

13.2.3. be forced to participate in carrying out procedures that debase human dignity.

The Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms prohibits torture and other ill-treatment:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

The Article 5 of the Universal Declaration of Human Rights and the Article 7 of the International Covenant on Civil and Political Rights are also without exception and specifically prohibit torture and ill-treatment. There are no exceptions in these legal provisions.

This Norm protects precisely the dignity and physical integrity of the individual. In order for ill-treatment to constitute a violation of the Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, it must attain a minimum level of severity. According to ECHR jurisprudence, this Article sets a particularly stringent framework for a State’s action or inaction insofar as it seeks to protect the dignity, and both physical and mental integrity of a individual. Even in the most controversial cases, such as the fight against terrorism and organized crime, any public authorities must abstain from any conduct that could be considered as treatment prohibited by this provision. Such a treatment will never be tolerated, whatever the frightening consequences, real or perceived, for the effective fight against crime. In addition, there is a positive state obligation to ensure that no one is subjected to prohibited treatment. Thus, if a detainee claims in his defence that he has been subjected to the ill-treatment stipulated in the Norm in question, an efficient official investigation must be carried out to identify those in charge in order to punish them.

A judgment of the ECHR in the case of Ilhan v. Turkey from 27 June 2000, stated:

The Court has determined that the meaning of an effective legal remedy in this context includes the duty to carry out a full and effective investigation aimed at identifying and punishing those responsible for the ill-treatment and allowing the petitioner free access to the investigation process. Thus, to find a procedural violation of Article 3 of the Convention will therefore depend on the particular circumstances in each case”.

https://hudoc.echr.coe.int/eng#{“fulltext”:[“\”CASE%20OF%20ILHAN%20v.%20TURKEY\””],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-58734”]}

The ECHR judgment in the case of Campbell and Cozans v. the United Kingdom from 23 March 1983, states:

A mere threat in respect of treatment prohibited by the Article 3 may fall within the scope of this Article if it is reasonably serious and imminent. Thus, a threat to someone to torture him or her could, in particular circumstances, constitute at least ‘inhuman treatment’. –

https://hudoc.echr.coe.int/eng#{“itemid”:[“001-57454”]}

In this case, there was no effective investigation despite the fact that the defendant had accurately identified those who had tortured him.

 

According to the Article 1 of the European Prison Rules,

  1. All persons deprived of their liberty shall be treated with respect for their human rights.
  2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.

3 Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.

Apart from the prohibition of torture, the domestic law prohibits obtaining testimonies through the use of torture and other unlawful methods.

 

According to the Article 15 of the Code of Criminal Procedure of the Azerbaijan Republic,

15.2. During the criminal prosecution the following shall be prohibited:

15.2.1. the use of torture and physical and psychological force, including the use of medication, withdrawal of food, hypnosis, deprivation of medical aid and the use of other cruel, inhuman or degrading treatment and punishment;

15.2.2. the imposition of long-term or severe physical pain or acts which are detrimental to health, or any similar ill-treatment;

15.2.3. taking evidence from victims, suspects or accused persons or from other participants in the criminal proceedings using violence, threats, deceit or by other unlawful acts which violate their rights.

In the course of trial, Razi Humbatov testified that he had been subjected to torture and ill-treatment in order to retrieve his “confessions”, which were then used against him.

The Article 66 of the Constitution of the Republic of Azerbaijan states:

Nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister. Complete list of relations against whom testifying is not obligatory is specified by law.

The International legal framework refers to this right as the “right to silence”. Whilst the “right to silence” is not explicitly mentioned in the Article 6 (1) of the European Convention, the European Court of Human Rights’ practice nevertheless implies it.

The ECHR judgment in the case of Saunders v. the United Kingdom from 17 December 1996, states:

The Court recalls that although the Right to silence and the Right not to incriminate oneself are not expressly mentioned in the text of the Article 6 of the Convention, these two Rights are nonetheless generally binding provisions of the International Norms that form the core of the fair trial concept referred to in the Article 6. Their justification, inter alia, is anchored primarily in protecting the accused against unlawful coercion by the authorities, and thereby helping to avoid legal errors and achieve the objectives set out in  the Article 6 (…).  In particular, the right not to testify against oneself encourages the prosecution in a criminal case by seeking to prove the guilt of the accused without resorting to evidence obtained against the will of the accused through coercion or pressure. In this sense, this Right is closely linked to the principle of the presumption of innocence enshrined in the Article 6 § 2 of the Convention. – https://www.studeersnel.nl/nl/document/rijksuniversiteit-groningen/strafrecht-3-nieuw-form-straf/saunders-v-the-united-kingdom/1536160

 

The above-mentioned information concerned the evidence that had been submitted to the court by the investigative authority. These pieces of evidence were not sufficient to convict Razi Humbatov and impose a further six-year sentence.

The criminal prosecution proofs are considered to be credible evidences (information, documents, things) obtained by the court or the parties of the criminal proceeding. Such evidences:

  • must be obtained in compliance with the requirements of criminal procedural law without restricting the constitutional rights and freedoms of individuals and citizens or with a limitation by a court order (or, in urgent cases specified in this Code, by order of the investigating officer);
  • must demonstrate whether a crime has occurred, whether there are elements of a crime in the committed act, whether the act was committed by the accused, his guilt or innocence, as well as other circumstances relevant to the proper determination of the charge. (Article 124.1 of the Code of Criminal Procedure of the Azerbaijan Republic).

The collected evidences in the case did not prove that the drugs belonged to R. Humbatov and, therefore, that he had committed the offence. It were not sufficient proves to convict R. Humbatov and impose a sentence of long-term imprisonment. In the final part of the judgment the Court did not state the reason why R. Humbatov’s testimony was not considered on an equal footing with the other evidences.

 

According to the Article 126.4 of the Code of Criminal Procedure of the Azerbaijan Republic,

126.4. The value of evidence may not be assigned to statements given in the following situations:

126.4.1. when a person is agreed to be unable to comprehend or describe matters significant to the prosecution at the appropriate time;

126.4.2. when a person refuses to undergo an examination by experts of his ability to comprehend or describe matters significant to the prosecution.

As can be clearly seen above, in all other cases the Court is obliged to treat fairly all evidences including the defendant’s testimonies.

The Court entirely relied on the experts’ conclusions that had been conducted in the case and adopted those opinions as irrefutable. Although, the Article 127.3 of the Code of Criminal Procedure of the Azerbaijan Republic states that an experts’ conclusion is non-binding for an investigator, prosecutor or the Court, it, like any other evidence, must be examined and assessed by the authority conducting the criminal proceedings in connection with all the circumstances of a case.

In sum, the evidence adduced by the investigating authority appeared to be credible and irrefutable for the Court, while the evidence submitted by the defendant and his lawyer were dubious.

In this case, as in other “sensitive” cases, the defendant’s fundamental rights and freedoms were violated. The violation of the right to liberty, the right to qualified legal aid, the prohibition of torture and other related rights and freedoms have generally resulted in the violation of the right to a fair trial, which covers not only the trial proceedings but also the handling of the case at the pre-trial investigation stage

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Even having evidence and witnessesconfirming innocence will not help the opposition member at trial

EVEN HAVING EVIDENCE AND WITNESSES CONFIRMING INNOCENCE WILL NOT HELP THE OPPOSITION MEMBER AT TRIAL

Shahin Hajiyev

Analysis of violation of law during Shahin Hajiyev’s judicial proceedings

Ganja Grave Crimes Court

Case №1(100)-168/2022

31 March 2022

Presiding judge: Khagani Samadov

Judges: Nural Aliyev, Dadash Imanov

Defendant: Shahin Hajiyev

Defender: Zabil Qahramanov

State Prosecutor: Zaur Qasymov, a Junior Counsellor of Justice, Prosecutor of the Department of State Prosecution Support at the Serious Crimes Courts under the Department of State Prosecution Support of the General Prosecutor’s Office of Azerbaijan Republic

Shahin Hajiyev, a member of the Popular Front Party of Azerbaijan (PFPA), was detained on November 26, 2021. A few days prior to his arrest, Hajiyev wrote on his Facebook page a post in which he compared the Azerbaijani President Ilham Aliyev to former Libyan dictator Muammar Gaddafi. According to the official information, they found 13 grams of drugs in his possession at the time of detention. Hajiyev, as well as his party associates, attributed his arrest to his strong political views, given that he had sharply condemned the actions of President Ilham Aliyev.

On the day of Shahin Hajiyev’s detention the Head of the Press Secretary of Azerbaijani Ministry of Internal Affairs, Elshad Hajiyev, declared that Shahin Hajiyev had been detained in connection with a specific incident and that his arrest had nothing to do with his political activities.

It is worth noting that Shahin Hajiyev is a chess teacher in the city of Ganja.

Shahin Hajiyev was charged with an offence under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic. In the course of the trial, Shahin Hajiyev testified that the drugs had been put into his possession by the police and that the police officers had confiscated his computer during the search of his house.

Also, Sh. Hajiyev’s lawyer pointed out that the order on the special operation indicated a different name: instead of Shahin Hajiyev, it said the name “Mushfiq Isayev”. The investigative authority justified it as a “technical error”. However, this “mistake” occurs more than once in other documents.

During his detention in custody, Shahin Hajiyev was subjected to torture and ill-treatment, which was confirmed with a report issued at the detention centre. According to the report, there were injuries on Shahin Hajiyev’s calf and the knee area.

At the trial, Shahin Hajiyev testified that the police broke into his house forcing him out to the police station on November 26, 2021. The police officers slipped the drugs into his jacket pocket. While in the police department of the Ganja City Kyapaz district, he was tortured and forced to make a “confession”. Then, a lawyer by the name of Khatira was invited. Sh. Hajiyev told her about the torture that he had been subjected to. When she learned about the torture, she immediately left the department. As soon as the lawyer left, the police officers started beating him again. Approximately half an hour later, another lawyer, Ayaz Hasanov, turned up. Afterwards, a video of his “confession” was made. The police officers who had come from Baku forced him to admit that the drugs belonged to him. They also threatened to plant 1 kg of drugs if he refused to comply with their demands.

In a temporary detention centre, on November 27, 2021, he was once again beaten. Afterwards, Sh. Hajiyev was brought to his residence for a search. However, no drugs were found in the house. Videotaping was conducted throughout the search, however it was repeatedly stopped. Hajiyev testified that the drugs had not belonged to him, he had never used them and had never had a clue about any drugs at all. He does not consume alcohol or cigarettes, and leads a healthy lifestyle. The protocols available in the case file were signed under torture and he did not plead guilty either during the investigation or in the trial.

Elman Guliyev, Elmaddin Pashayev, Seymur Shabanov, Khasrat Askerov and Mehman Qurbanov, the police officers, were questioned as witnesses in the course of the trial.

Bakhtiyar Yusubov, a witness, testified that he had been in Shahin Hajiyev’s house on the day when the police broke in. The police officers stormed into the house, twisted Shahin Hajiyev’s hands and handcuffed him. Elmaddin Pashayev, who happened to be there, introduced himself as Elchin Mammadov. B. Yusubov asked the police officers to uncuff Hajiyev, but the officer in charge did not allow to do so. The police commander who also came there forbade him to say anything about what had happened in the house. Razi Alyshev was also at the time in the house, called 102 service and informed them of what had happened. The witness Razi Alyshev confirmed B. Yusubov’s testimony. It should be noted that on May 28, 2022, Razi Alyshev was also arrested on charges of illegal possession and distribution of drugs.

The testimonies provided by Bakhtiyar Yusubov and Razi Alyshev had not been taken as credible and assessed as having defensive nature.

On 31 March 2022, the Ganja Court on Grave Crimes issued a sentence to Shahin Hajiyev according to which he had been found guilty of committing crimes stipulated by the Article 234.4.3 of the Criminal Code of the Azerbaijan Republic and sentenced him to 6 years of imprisonment in a general regime colony.

Commentary by an expert lawyer:

The court verdict is illegal and unjustified. Keeping in mind that for many years the political and civil activists have been prosecuted under the Article 234 of the Criminal Code, the commented criminal case was not an exception. Practically in all cases, the defendants were able to prove the activists’ innocence in court, however, the Court convicted all of them without exception and sentenced to lengthy terms, while the charges were usually under the Article 234 with an aggravating clause “4”, i.e. Article 234.4 of the Criminal Code of the Azerbaijan Republic.

This case was no exception in terms of procedural irregularities either.

As stated above, Shahin Hajiyev had been beaten, what had been proved with the injuries on the detainee’s body by a certificate issued at the detention centre. That fact was not investigated at the trial, the judge did not take into account the defendant’s testimony and did not issue a ruling ordering the law enforcement authorities to investigate the allegation.

Torture and ill-treatment are well known to be prohibited by both domestic laws and international conventions. According to the Article 13 of the Code of Criminal Procedure of the Azerbaijan Republic, it shall be prohibited to take decisions or allow acts during the criminal prosecution which debase the honour and dignity of the person or may threaten the life and health of the participants in the proceedings. And during a criminal prosecution nobody shall:

⦁ be subjected to treatment or punishment that debases human dignity;

⦁ be held in conditions that debase human dignity;

⦁ be forced to participate in carrying out procedures that debase human dignity.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3, prohibits torture and ill-treatment:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Neither the Article 5 of the Universal Declaration of Human Rights nor the Article 7 of the International Covenant on Civil and Political Rights have exceptions and specifically prohibit torture and inhuman treatment. There are no exceptions to these legal provisions.

Apart from the prohibition of torture, the domestic law forbids obtaining testimonies by means of torture and other unlawful measures.

According to the Article 15.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

⦁ the imposition of long-term or severe physical pain or acts which are detrimental to health, or any similar ill-treatment;

⦁ taking evidence from victims, suspects or accused persons or from other participants in the criminal proceedings using violence, threats, deceit or by other unlawful acts which violate their rights.

In the course of the trial, Sh. Hajiyev testified that the torture and inhuman treatment he had suffered was to obtain his “confessions” that were later used against him.

The law enforcement officers who carried out the investigation fully disregarded the existence of the Article 66 of the Constitution of the Azerbaijan Republic, which states as:

Nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister. Complete list of relations against whom testifying is not obligatory is specified by law.

The International Instruments refer to this Right as the “right to silence”. While the Right to silence is not explicitly stated in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article 6(1), the case law of the European Court of Human Rights (ECHR) nevertheless entails this right.

The Judgment of the European Court in the case of John Murray v. the United Kingdom from February 8, 1998, it stated in this respect, “On the matter of whether the drawing of adverse inferences from the Applicant’s silence infringed Article 6, the Court reasoned that it ought to be determined in the light of all the circumstances of the case. The Chamber determined that the Applicant had not been compelled to testify and the essence of the privilege against self-incrimination had not been destroyed. The Chamber therefore concluded that it should concentrate on the role the inferences played in the proceedings and conviction against the applicant. Concentrating on the role the inferences played, the Chamber cited the existence of the safeguards designed to respect the rights of the defence and to limit the extent to which inferences can be relied upon. Due to these safeguards and the strength of the evidence against Murray the Chamber found that the drawing of adverse inferences from Murray’s silence did not violate Article 6”. The Judgment also states that this Right is absolute (paragraph 47 of the Judgment). – https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22\%22CASE%20OF%20JOHN%20MURRAY%20v.%20THE%20UNITED%20KINGDOM\%22%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57980%22]}

The proper assessment of the case evidences by the court is an essential point in the judicial proceedings. As mentioned above, in the course of the trial, the police officers who testified against the accused and two witnesses (B.Yusubov and R.Alyshev) who testified in defence of Sh. Hajiyev had been questioned as witnesses. The Court’s attitude and assessment in respect to this set of evidence was to accept the police officers’ witness statements as irrefutable, and the testimonies provided by B.Yusubov and R.Alyshev as of a defence nature. Even though the witness B. Yusubov testified that he had been in Hajiev’s house when the police officers had broken in, and detained Shahin Hajiyev. He also described in detail what had happened there and how the detention had been carried out. Regrettably, the court did not take his testimony seriously and did not explain the reason for such an assessment.

In the Judgment of the European Court of Human Rights in the case of Khan v. Germany of 21 September 2016, it was written, “The Court reiterates that its task, under Article 19 of the Convention, is to ensure that the Contracting States respect the obligations deriving from the Convention. In particular, it must have no knowledge of legal or factual irregularities committed by a domestic court unless they would infringe the rights and freedoms protected by the Convention. While the Article 6 of the Convention guarantees the right to a fair trial, it does not set out any rules on the admissibility of evidence as such; that is the task of domestic law. The Court should not comment as a matter of principle on the admissibility of certain kinds of evidence, such as evidence obtained by unlawful means, or on the culpability of the applicant. It must ascertain whether the proceedings as a whole were fair, including both how the evidence was obtained, which implies an examination of the ‘illegality’ in question and, if another right protected by the Convention is affected, an examination of that violation.” – https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Khan%20%20v%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-166853%22]}

The presumption of innocence has also been violated. According to the Article 63 of the Constitution of the Republic of Azerbaijan,

I. 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.

II. A person under suspicion of crime must not be considered guilty.

III. A person accused of crime does not need to prove his/her innocence.

IV. Proofs received against the law must not be used when administering justice.

V. Nobody may be accused of crime without the verdict of law court.

Article 21 of the Code of Criminal Procedure of the Azerbaijan Republic states,

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 is also guaranteed by the Article 6 (2) of the European Convention and the case law of the European Court. The presumption of innocence seeks, above all, to protect the accused against a conviction unless the latter is found to be lawfully guilty. The presumption of innocence applies throughout criminal proceedings, regardless of the outcome of the investigation, and not only when considering the validity of the charge. Moreover, in exercising their powers, the judges must abandon the preconceived notion that the defendant has committed a criminal act, as the burden of proof lies upon the prosecution and any doubt is construed in favour of the defendant.

The European Court of Human Rights Judgment in the case of Allene de Ribemont v. France from August 7, 1996 states, “The presumption of innocence enshrined in Article 6 § 2 is one of the elements of a fair trial referred to in paragraph 1 of the same Article. This principle is violated if the Court convicts an accused while his guilt has not been initially proven. If there is no formal evidence to support that, the judge’s motivation must be such as to suggest that he presumed the accused to be guilty”.. – https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22\%22CASE%20OF%20ALLENET%20DE%20RIBEMONT%20v.%20FRANCE\%22%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57987%22]}

In the context of the violations of the rights listed above, there is a manifestation of discrimination against the defendant due to his political views. Discrimination is prohibited by the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 14, a violation of which is considered by the European Court in conjunction with its substantive articles. Thus, the Right to Freedom, the Prohibition of Torture, the Right to a Fair Trial (including the Right to Silence, the Right to Presumption of Innocence, etc.) must be considered in the context of the Article 14 of the European Convention, which once again confirms that Shahin Hajiyev was arrested on political grounds.

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The right to freedom will be infringed on a regular basis if you are in opposition

THE RIGHT TO FREEDOM WILL BE INFRINGED ON A REGULAR BASIS IF YOU ARE IN OPPOSITION

Elkhan Aliyev

Analysis of violation of law during Elkhan Aliyev’s judicial proceedings

Baku City Nasimi District Court

Case №3 (006)-1066/2022

March 19, 2022   

Judge: Azer Taqiyev  

The person against whom an administrative record was issued: Elkhan Aliyev

The person who drew up the administrative report: Sanil Abdullayev, the Police Chief of the 20th Station in Nasimi District Police Department 

Defendant: Ramin Mammadov

Elkhan Aliyev is a member of the Popular Front Party of Azerbaijan (PFPA) and is known for his active political activities, participation in rallies and sharp criticism of the country’s leadership on social networks. Elkhan Aliyev has been previously arrested and subjected to administrative charges on several occasions.

On March 19, 2022, Elkhan Aliyev was detained by the police while he was driving. Upon being detained, Elkhan Aliyev informed the police that there were 2,500 manats in his car. According to his relatives, the police officers took the money and refused to returning them. The police officers ordered E.Aliyev to go with them to the 20th Police Station of the Baku Nasimi District Police Department, so he obeyed their demand.

However, regardless of his obedience to the police, an administrative report was made against E.Aliyev for allegedly violating the Articles 510 (Failure to obey the legitimate demands of a policeman) and 535.1 (Disorderly Conduct) of Azerbaijan’s Code of Administrative Offences.

In the course of the trial, Elkhan Aliyev testified that he had not committed any administrative offence, his arrest, as well as the previous ones, had been based on his political activities and there had been no evidence of his guilt; the video from the surveillance cameras’ as well as witnesses could prove  his innocence.  Also, he indicated that he had not been given the opportunity to inform his family about his arrest and whereabouts.

During the trial, Sanil Abdullayev, the Chief of the 20th Station of the Baku Nasimi District Police Department, stated that he had approached E.Aliyev and urged him not to commit administrative violations. However, E.Aliyev did not comply with the police officer’s legitimate demand and continued his illegal actions.

There were documents enclosed to the administrative case file indicating that Elkhan Aliyev had also committed an administrative offence under the Article 535.1 of the Administrative Offences Code on October 8, 2019, May 9, 2020, and October 16, 2021.

In accordance with the Code of Administrative Offences, Article 32, the Court found that E.Aliyev’s family was a mitigating circumstance. However, the Court determined that under the Article 33 of the Code of Administrative Offences, the repeated commission of offences within one year was an aggravating factor. On March 19, 2022, Elkhan Aliyev was found guilty of committing offences under the above Articles and sentenced to 30 days of the administrative detention.

The PFPA members and Chairman, Ali Kerimli, believe Elkhan Aliyev’s arrest to be politically motivated, pointing out that “in the recent past E.Aliyev has been arrested on three occasions and sentenced to 30 days in detention”.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. According to the Article 3.1 of the Code On administrative violations of the Azerbaijan Republic, only such person, who was declared guilty for committing administrative violations under this Code and had performed a deed (action or inaction) having all other signs of an administrative violation, shall be called to account and punished. In addition, the Article 5.1. of the Code On administrative violations of the Azerbaijan Republic states, that the rights and freedom of human and citizens are of great value. All the state authorities (officials) having committed violation of these rights and freedom shall be responsible in the order provided by legislation of the Azerbaijan Republic.

One of the fundamental principles in administrative proceedings is the presumption of innocence. This principle is most important in “sensitive cases”. According to the Article 8 of the Code On administrative violations of the Azerbaijan Republic,

  • The person with respect to whom a case on administrative violation is pleaded shall not be found guilty if his guiltiness was not proved in the order provided by this Code, and not established by the acting resolution of the court, authorized body (official) considering the case on administrative violation.
  • The person being called to account for administrative violation has not to prove his guiltlessness.
  • Doubts regarding the guiltiness of the person called to account for administrative violation shall be resolved in his favour.

The principle of presumption of innocence is violated not only in criminal cases but also in administrative proceedings. This fact proves that a large number of political and public activists are subjected to administrative arrests every month, when the goal of administrative arrests is to temporarily isolate the activists from society. The case of Elkhan Aliyev was no exception.

As mentioned above, Elkhan Aliyev had been repeatedly charged with administrative offences, the sentence had always been administrative detention for a maximum period of time. In the ruling quoted above, it was stated that Elkhan Aliyev’s multiple administrative offences in the course of one year constituted an aggravating factor for the judgment.

According to the para 2 of the Article 6 of European Convention on Human Rights, everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

In the course of the trial, the testimonies, similar to the contents of the report were given solely by the Chief of the 20th Station 20 of the Baku Nasimi District Police Department, who had written that report, and by E.Aliyev himself.  No other evidence was attached to the administrative case. In fact, the Court accepted the police officer’s testimony as irrefutable and reliable, whereas Elkhan Aliyev’s testimony was not taken into account and was not given a legal assessment.

The Court has not determined:

  • the event of an administrative offence (whether an administrative offence has occurred);
  • the guilt of the individual committed an administrative offence;
  • circumstances precluding proceedings in cases of administrative offences;
  • other relevant circumstances for the appropriate determination of the case as well as the causes and conditions that contributed to the administrative offence commission (Articles 75.1 and 75.7 of the Administrative Offences Code).

The following are evidence in administrative cases:

  • Physical evidence;
  • Explanations of a person in respect of whom the administrative proceedings are conducted;
  • Testimonies of witnesses and victims;
  • Documents;
  • Special technical means;
  • State information system data;
  • Expertise;
  • A judge, an authorized body (official) examining a case of administrative offence shall assess evidence in their inner conviction based on a comprehensive, full and objective investigation of all the circumstances in the case in their totality (Article 84.1 of the Code of Administrative Offences).

Elkhan Aliyev testified at the trial that he had not been given the opportunity to inform his family about his detention and location.  This right had to be granted to the detainee by the authority responsible for his detention.

Procedural violations also concerned Article 91 of the Code of Administrative Offences of the Azerbaijan Republic. In accordance with this article, the authorized body (official) takes the following measures to ensure the rights of the detainee established by this Code. The Article 91.0 of the Code:

  • immediately inform the detainee of the grounds for detention and explain   his rights;
  • introduces the detainee to the protocol of administrative offence;
  • upon the detainee’s request, inform his/her close relatives, the administration of the detainee’s work or study places, or his/her lawyer about the detention;
  • immediately inform parents or other legal representatives of a minor detainee about the detention;
  • treat the detainee with respect to his/her dignity;
  • allow the detainee to maintain contact with his lawyer including legal visits;
  • in case of the detainee’s without a lawyer, provide him/her with a list of lawyers working in the structures of temporary detention places, enable him/her to maintain contact with the chosen lawyer as well as legal visits.

Violation of the substantive and procedural rules of law in relation to E.Aliyev has led to a gross violation of his right to freedom, which is protected by the national and international law. Thus, the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5, states, “Everyone has the right to freedom and personal security. No one shall be deprived of his liberty except as provided for by the law in the following cases and in the manner prescribed by the law.” The list of cases is very precise and should not be interpreted in any other way. This regulation protects individuals from arbitrary arrest. It stipulates the individual’s physical freedom.

According to the judgment of the European Court of Human Rights in the case of Aksoy v. Turkey from the 18th of December 1996, “The Court enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual’s right to liberty is an essential feature of the guarantee embodied in Article 5§3, which is intended to minimise the risk of arbitrariness and to ensure the rule of law (see the above-mentioned Brogan and Others judgment, p. 32, 58). Furthermore, prompt judicial intervention may lead to the detection and prevention of serious ill-treatment, which, as stated above (paragraph62), is prohibited by the Convention in absolute and non-derogable terms”.  https://hudoc.echr.coe.int/fre#{“itemid”:[“001-58003”]}

Thus, the obvious violations of fundamental human and civil rights by the court and the authority and the biased treatment of political activist Elhan Aliyev have resulted in the violation of one of the fundamental rights of a democratic society – the Right to Liberty.

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They have even slipped drugs to a drug fighter in order to imprison him

THEY HAVE EVEN SLIPPED DRUGS TO A DRUG FIGHTER IN ORDER TO IMPRISON HIM

Elshan Abbasov

Analysis of violation of law during Elshan Abbasov’s judicial proceedings

Baku City Narimanov District Court

Case №4(005)-302/2022 

March 5, 2022 

Judge: Gultakin Asadova

Defendant: Elshan Abbasov

Defender: Eldar Gadimli

The person who filed the application on arrest: Shamkhal Najafov, an investigator of the Investigative Unit of the Department for Combating Organized Crime within Azerbaijani Ministry of Internal Affairs 

The person who requested the arrest: Jafar Hasanov, a prosecutor of the Investigative Department, and the Office of Oversight of Laws on Operational and Investigative Activities of the Azerbaijani Internal Affairs Agency.  

 Elshan Abbasov, a member of the “Muslim Unity” Movement, was detained by the men in civilian clothes and taken to an unknown location at 5.30 p.m. on March 3, 2022. For two days, Mr. Abbasov’s relatives did not know of his whereabouts. They managed to find out where Abbasov was, only on March 5, 2022. He was taken to the Department for Combating Organized Crime within the Ministry of Internal Affairs of Azerbaijan. According to the detainee’s relatives, he was deprived of the opportunity to contact his family by telephone in order to inform them of the reasons behind his detention.

According to the civil society representatives, Elshan Abbasov is persecuted for defending the rights of believers. Thus, in 2012, E. Abbasov was sentenced to a year imprisonment for taking part in an initiative to defend the hijab, and in 2017, he was arrested and sentenced to 2.5 years on charges of illegal arms and drug possession. According to the testimony of civil society activists, Elshan Abbasov had always been active in campaigning against drugs among young people, as well as arranging courses on the Koran, and was distinguished for being intelligent, knowledgeable and well-educated.

On March 5, 2022, E.Abbasov was accused of committing a crime under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic. In accordance with the prosecution, E.Abbasov illegally possessed and carried 8.399 grams of the drug methamphetamine, which was manufactured in an unauthorized manner.

On March 5, 2022, the Baku Narimanov district court issued a restraint order against E.Abbasov: to place him in custody for a period of four months.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. According to the Article 8.0.1 of the Code of Criminal Procedure of the Azerbaijan Republic, the one of the purposes of criminal proceedings are defend individuals, society and the state against criminal attempts.

 

The Article 1 of the European Convention on Human Rights state,

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

Azerbaijan ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms on April 15, 2002, and the country is a member of The Council of Europe; therefore Azerbaijan has assumed a positive obligation to implement the provisions of the above-mentioned Convention.

However, in practice we see quite the opposite. It was violated a number of procedural provisions in the criminal case commented upon.

In accordance with the Article 153.1 of the Code of Criminal Procedure of the Azerbaijan Republic, the prosecution authority is required to ensure the rights of any person under this Code, as well as under the Law of Azerbaijan on “Protecting the Rights and Freedoms of Persons in Detention”. This law is applicable as for a suspect as an accused person depending on his/her status.  These rights are as follows:

  • 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 defence counsel;
  • 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);
  • 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;
  • 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;
  • 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;
  • 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);
  • 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;
  • to release the detainee immediately in the cases provided under the Article 153.3 of the AR Code of Criminal Procedure, as well as other rights.

As indicated above, Elshan Abbasov was detained on March 3, 2022. However, for two days no information about his detention was provided to his family, who were also unaware of the grounds for his detention. The family could only guess about E. Abbasov’s location, as he had previously twice been arrested likewise.

Elshan Abbasov remained in the status of a suspect for two days (from March 3 to March 5, 2022).

Although the National Criminal Procedure Law enables such an approach, whereas the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(4) states,

“Anyone who is deprived of his liberty as a result of arrest or detention shall be entitled to have the lawfulness of his detention reviewed by the court without delay and his release if his detention is not recognized by the court to be lawful”. There is the word ” immediate” in the Article, which means “urgent, imperative, expeditious, fast, rapid; momentary, imminent, immediate, irrevocable, without delay, immediacy”.

See: https://dic.academic.ru/dic.nsf/efremova/140940/Безотлагательность

In this case, the principle of “immediacy” was violated by the investigating body.

In respect to E.Abbasov the strictest measure of restraint has been chosen in the form of custodial detention. The Court did not provide in the ruling any reasons for imposing such a harsh preventive measure. In each particular case the judicial order of arrest must depict all the circumstances indicating that no other preventive measure than arrest could be imposed on the accused.

According to the Article 28 of the Constitution of the Azerbaijan Republic,

  1. Everyone has the right for freedom.
  2. Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.

This right is enshrined both in the norms of National law and in international treaties. For example, the Article 5 of the European Convention on Human Rights states:

  1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.

The judgment of the European Court of Human Rights in the case of “Fox, Campbell and Hartley v. the United Kingdom” dated August 30, 1990 states,

“The ‘reasonable suspicion’ upon which detention must be justified is an essential element of the protection afforded by Article 5 § 1 (c) against arbitrary deprivation of liberty. (…) The presence of a reasonable suspicion presupposes the existence of facts or information sufficient to persuade an objective observer that the person may have committed the offence. What may be considered reasonable shall, however, depend on the totality of the circumstances”. https://hudoc.echr.coe.int/eng#{“fulltext”:[“fox%20v.”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57721”]}

In the Court order commented upon, the imposition of preventive detention was justified by the gravity of the offence and the fact that the sentence for that offence exceeded two years (Article 155.3.1 of the Azerbaijan Republic Code of Criminal Procedure).

However, according to International Law, it cannot justify the imposition of a preventive measure in the form of arrest. The European Court of Human Rights (ECHR) case law suggests that “the need to combat terrorism cannot justify extending the notion of ‘reasonableness’ to interfere with the substance of the guarantee afforded by Article 5 § 1 (c). (Fox, Campbell and Hartley v. the United Kingdom, judgment dated 30 August 1990). In other words, the Court has demonstrated that even in the context of the fight against terrorism, and in the most difficult situations and accusations, the Court may not apply the specified precautionary measure without substantial evidence.

In the ruling on E.Abbasov’s arrest, the Court set out the following grounds which, in the Court’s view, justified the application of the arrest:

 

  • 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.

By listing all the grounds referred in the Article 155.1 of the Code of Criminal Procedure of the Azerbaijan Republic, the Court demonstrated the unseriousness in the reasoning of the ruling. In fact, the Court simply copied all the grounds from the of the Code of Criminal Procedure of the Azerbaijan Republic without having thought to specify the arguments for each ground either. Here, there is a lack of individual approach, which the Court should adopt in each particular case.

“… In order for suspicion to be justified, certain facts or information must be available to convince an objective observer that the person involved in the case could have committed the offence” (European Court of Justice (ECHR) the judgment in the case of Labita v Italy from 6 April 2000).

https://hudoc.echr.coe.int/eng#{“fulltext”:[“\”CASE%20OF%20LABITA%20v.%20ITALY\””],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-58559”]}

Yet, there is another interesting nuance in the case that should be pointed out in order to highlight the Court’s lack of impartiality. The Law Enforcement Authority that detained Elshan Abbasov, specifically the Department for Combating Organised Crime of the Ministry of Internal Affairs, is located in Baku’s Narimanov district. Earlier, another member of the “Muslim Unity” Movement, Razi Humbatov, was detained by the same authority in the Narimanov district and charged under the same Article as Elshan Abbasov. The Baku Narimanov district Court also issued an unjustified preventive measure in the form of arrest in relation to Razi Humbatov for a period of four months.

Further, the judgment specified that E. Abbasov had pleaded guilty to the charges brought against him. In this case there is reasonable doubt that the investigative authority has explained to the detainee his right to silence as guaranteed under the Article 66 of the Azerbaijan Constitution and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

“Although it is not specifically mentioned in the Article 6 of the Convention, there is no doubt that the right to silence during police interrogation and the privilege not to incriminate oneself are recognised by the International Standards that underpin the notion of a fair trial in accordance with the Article 6 (…). By protecting the accused from being unfairly coerced by the authorities, these privileges serve to avoid procedural errors and ensure compliance with the objectives set out in the Article 6 of the Convention” (John Murray v. the United Kingdom, judgment of the European Court of Justice, 8 February 1996). https://hudoc.echr.coe.int/eng#{“fulltext”:[“John%20Murray%20v.”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57980”]}

The Decision of the Plenum of the Supreme Court of the Azerbaijan Republic “On the practice of application of legislation by the courts when considering motions to impose a preventive measure in the form of detention against the accused” adopted on November 3, 2009, outlines the common errors in the work of the courts when imposing a measure of restraint in the form of imprisonment. Namely, this Decision states that in 2008, the courts when considering the motions regarding the use of arrest did not comply with the legislation, at the same time a number of mistakes had been made, the grounds for arrest had not been thoroughly examined, the court decisions had failed to comment on the grounds for the most serious preventive measure in the form of arrest; the grounds for arrest were such general phrases as likelihood of hiding from the authority conducting the criminal proceedings, interference in the normal course of the investigation, avoidance of appearing before the investigating body, etc. The Court decisions had been not provided with the factual grounds for arrest, which could have been justified in the case. For this reason, the Plenum of the Supreme Court of Azerbaijan ordered the Courts to comply with the national criminal procedure legislation, the provisions of the Articles 5 (right to liberty and security of person) and 6 (right to a fair trial) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the practice of the European Court of Human Rights according to which a limitation of the right to liberty is permitted only in the public interest and when the freedom of a particular individual may result in a negative outcome in the interests of society and cause a danger for a detainee.

Unfortunately, more than a year has passed since the adoption of this decision, but the courts’ practice has not altered for the better. The Courts in Azerbaijan, as in the past, limit themselves to one-sided, unjustified and unreasonable statements, without indicating the specific circumstances that could confirm the appropriateness and lawfulness of the chosen measure of restraint.

Once again, the case of Elshan Abbasov, arrested for the third time, recognized as a political prisoner by human rights activists was no exception. The one-sided, body-dependent investigative position of the court, the lack of an individual approach, the violation of the fundamental Norms of the AR Constitution, the Criminal and Criminal Procedural Legislation, failure to correctly observe the precedents of the European Court of Human Rights makes the Azerbaijani Courts a punitive mechanism in the general system of justice.

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To imprison an opposition activist, they use any pretext

TO IMPRISON AN OPPOSITION ACTIVIST, THEY USE ANY PRETEXT

Ali Aliyev

Analysis of violation of law during Ali Aliyev’s judicial proceedings

Baku City Yasamal District Court

Case № 1(004)-58/2022

January 13, 2022 

Judge: Huseyn Safarov

Defendant: Ali Aliyev

Defenders: Javad Javadov, Togrul Babayev

Private prosecutors: Emil Jafarov, Ramin Adilov

Ali Aliyev was born in 1967 in Baku, graduated from the Azerbaijan State Medical University, PhD in Biology, and became politically active in 1989 as a member of the Popular Front of Azerbaijan. In 1992, he entered the National Revival Party of Azerbaijan. After stepping down, on 28 May 2006, A.Aliyev and his supporters organized the founding congress of the Citizens and’ Development Party, and he was elected the chairman of the Party. Aliyev was nominated as a presidential candidate in October 2013. However, the Central Election Commission rejected his nomination.

Ali Aliyev, as an opposition activist, was regularly subjected to pressure by the law enforcement authorities of Azerbaijan.

On September 22, 2021, Ali Aliyev was summoned to the General Prosecutor’s Office of the Azerbaijan Republic and warned that serious measures would be taken in case of his illegal comments in the press. In connection with that warning, Ali Aliyev made a public statement saying that he had expected such a pressure, as two of his Facebook profiles had been recently hacked, while there was also pressure at his job. He said that about 20 deputies had spoken out against him and the Party he headed, and that his summons to the Prosecutor General’s Office and warning had been a consequence of his activities. In his statement, Ali Aliyev called on the authorities to abandon such methods of pressure on the opposition.

Another attack on Ali Aliyev occurred on November 6, 2021, when the State Security Service officers came to the Party premises to conduct a search and detained Ali Aliyev. In this regard, Aliyev said that he had testified in a criminal case, but he could not reveal the details of the interrogation in view of his commitment to confidentiality. At the same time, Aliyev said that it was illegal to take him to the State Security Service, as prior to his detention he had received neither a summons nor an official letter of request.

On December 9, 2021, Ali Aliyev appeared on the YouTube channel “Osmanqızı TV” to share his thoughts and assumptions about the explosion of a helicopter at the Garaheybat airfield. He said the following, “The state of our officers allegedly sitting in the helicopter is highly untrustworthy. Personally, I don’t buy it as there is not a single scratch on the officer’s face, just a broken arm. A man who has fallen from a height of 3,000 metres should lose his memory. The absence of scratches or scars on his face, the existence of only broken bones, is not plausible that this man was indeed in the helicopter at the time of accident. The person in the cockpit of the helicopter could not possibly be aware of the cause of the explosion. It is only the pilot who may be able tell where the malfunction was, what kind of problem may have occurred during the operation of the helicopter. Actually, the specific clarification by the injured people on this particular issue indicates that they have been taught what to say about it.”

Let us remind you that on November 30, 2021, the Azerbaijani State Border Guard Service helicopter was conducting a training flight, and as a result of which it crashed. According to the official data, 14 people were killed and two were injured. Those two survivors of the helicopter crash are Emil Jafarov, a lieutenant colonel, and Ramin Adilov, a captain, who considered Ali Aliyev’s statements a slander and filed a private prosecution against him in the court.

They requested the court to initiate criminal proceedings against A.Aliyev in accordance with the Article 147.1 (Slander) of the Criminal Code of Azerbaijan Republic and to sentence A.Aliyev to imprisonment for a period of 6 months.

It is Aliyev’s above-mentioned statements and opinion that the individual prosecutors took as slander that, in their view, was intended to mislead the public. Emil Jafarov and Ramin Adilov consider that the above statements defame their honor and dignity and undermine their credibility.

Ali Aliyev’s political activities and harsh criticism of the authorities were considered by his lawyers to be the reason behind the criminal charges against him.

Subsequently, as noted above, a criminal case followed on private charges against Emil Jafarov and Ramin Adilov.

On January 13, 2022, the Baku Yasamal District Court issued a verdict against Ali Aliyev: to find A.Aliyev guilty of committing a crime under the Article 147.1 of the Criminal Code of the Azerbaijan Republic, and sentenced him to 5 months’ imprisonment.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. The Article 147.1 of the Azerbaijan Republic Criminal Code, under which Ali Aliyev is charged, states:

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.

The Article refers to ” deliberately false information defaming the honor and dignity of another person”. In order to understand this, let us clarify what the word “information” means. Information is (1) certain information or information about something, (2) knowledge in a certain field. See: https://kartaslov.ru/значение-слова/сведение

If we focus our attention on Aliyev’s statements, we clearly see with the naked eye that his statements do not contain any information or data. His statements are nothing but his personal opinion and judgements. Moreover, in his statements, A. Aliyev did not mention anyone’s name, even the names of private prosecutors. He literally said that he had not believed that anyone could survive that kind of catastrophe.

Interestingly, Emil Jafarov and Ramin Adilov are both filing private petitions at the same time, written in the same font, using the same words.

There were also procedural violations in the criminal case. For example, the lawyer Javad Javadov joined the case in the course of the trial. According to the procedures, he submitted an appropriate order and asked for time to get acquainted with the case. The Court granted him only half an hour to get familiarized with the case. In this regard, the defense objected to the Court, but this objection was ignored by the Court.

The defense submitted several important motions in the case to the Court, which were dismissed.

According to the Article 121.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

Reasons shall be given for the decision taken on an application or request, together with an assessment of the applicant’s arguments. Applications and requests for any matters connected with the prosecution to be examined thoroughly, fully and objectively under the required legal procedure, and for the violated rights and legal interests of the parties to the criminal proceedings and of other participants in the proceedings to be restored, may not be rejected.

Moreover, the defense was not given the opportunity to question private prosecutors.

In the course of the trial Aliyev’s health had deteriorated sharply and his blood pressure had increased up to 250/130 at the time of the ambulance’s arrival. However, the judge did not postpone the trial and continued it. The ambulance doctor recommended that A. Aliyev should see a specialist. Despite the lunch break and the doctor’s recommendation, Ali Aliyev was not allowed to leave the court premises.

These measures are incompatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3, which states:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

The Article 5 of the Universal Declaration of Human Rights and the Article 7 of the International Covenant on Civil and Political Rights also prohibit inhuman and degrading treatment and torture.

There is no exception to the prohibition of inhuman and degrading treatment. This Article does not provide scope for any interference by the state. It means that nothing can justify the use of torture, including wars, extreme situations, the fight against terrorism and the mafia, among others.

In the judgment of November 21, 2001, in the case of Al-Adsani v. the United Kingdom, the European Court of Human Rights (ECHR), the Article 3 was defined as follows,

“It has long been recognized within the Convention that the right set out in Article 3 of the Convention, stating that no one shall be subjected to torture or inhuman or degrading treatment or punishment, enshrines one of the fundamental values of a democratic society. It is an absolute right, barring any exception under any circumstances. Of all the treatments prohibited under Article 3 of the Convention, torture has a particular attribute unique to deliberate inhuman treatment causing very serious and cruel suffering”.

https://hudoc.echr.coe.int/eng#{“fulltext”:[“\”CASE%20OF%20AL-ADSANI%20v.%20THE%20UNITED%20KINGDOM\””],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-59885”]}

 

The ECHR judgment in the case of Pretty v the United Kingdom from April 29, 2002, states:

As regards the types of “treatment” which fall within the scope of Article 3 of the Convention, the Court’s case-law refers to “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterized as degrading and also fall within the prohibition of Article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible

https://hudoc.echr.coe.int/eng#{“fulltext”:[“pretty%20v.italy”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-60448”]}

At the end of the proceedings against Aliyev, which were highly formal, the lawyers asked the Court to be given three days to prepare a defense speech. The judge declared that the lawyers would be given just five minutes to deliver their speeches. The defense objected to the judge but this objection was left without consideration.

Furthermore, the defendant was not given time to prepare for his last word. Ali Aliyev requested that the trial be postponed due to his state of health. The Court, not taking it into account, after a brief meeting, read out the verdict. According to the Article 342.1 of the Azerbaijan Republic Code of Criminal Procedure, a defendant is given the last word upon completion of the court debate and remarks.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 6(3), specifies that everyone charged with a criminal offence has the right to have sufficient time as well as the means to prepare his or her defense.

According to the Bangalore Principles of Judicial Conduct, a judge’s impartiality is a prerequisite for his or her proper conduct. It is manifested both in the content of the judgment and in all the proceedings that support it.

 

The Principles state in the Paragraph 2.5,

A judge shall withdraw from a case if he or she cannot reasonably be expected to make an objective judgment or if an outside observer would suspect that a judge might be unable to decide the case objectively.

Finally, the most important point in this case is the violation of the right to freedom of expression.

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

  1. Everyone has the right to defend his/her honor and dignity.
  2. Dignity of a person is protected by state. Nothing must lead to humiliation of dignity of human being.

The Article 10.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms states:

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.

The Right to freedom of expression is also enshrined in the International Covenant on Civil and Political Rights, Article 18(1), and in the Universal Declaration of Human Rights, Article 19.

Freedom of political debate is at the core of the democratic society concept. Thus, the press plays a leading role in a state based on law. Thanks to its daily work of informing and attracting attention, freedom of the press endows societies with one of the most sophisticated tools for discovering and making sense of the ideas and attitudes of political leaders.

“A careful distinction must be drawn between facts and value judgments. While the existence of facts can be proved, the existence of value judgments cannot always be proved… In respect of value judgments, this requirement cannot be fulfilled and it infringes freedom of expression itself, which is a fundamental part of the right guaranteed by the Convention. Article 10”. (Judgment of the European Court of Justice in the case of Lingens v. Austria, 8 July 1986).

https://hudoc.echr.coe.int/eng#{“fulltext”:[“lingens%20v.”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57523”]}

“Freedom of press provides one of the most excellent means for citizens to discover and develop their opinions on the views and attitudes of their political leaders. In particular, it enables politicians to speak out on the public’s preoccupations and it allows everyone to be engaged in free political debate, which is at the very core of the notion of a democratic society” (Castells v Spain judgment from April 23, 1992). https://hudoc.echr.coe.int/eng#{“fulltext”:[“\”CASE%20OF%20CASTELLS%20v.%20SPAIN\””],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57772”]}

On April 3, 2019, the President of Azerbaijan signed the Decree “On Deepening Reforms in the Judicial and Legal System”. This Decree also dealt with the decriminalization of articles on slander and insult. Decriminalization of such Articles of the Criminal Code as Articles 147 (Slander) and 148 (Insult) is one of the obligations Azerbaijan has undertaken upon becoming a member of the Council of Europe. In return, Azerbaijan is obliged to adopt a Defamation Law. The Human Rights Defenders engaged in protecting press rights have prepared a draft law and submitted it to the Parliament for its consideration. It is noteworthy that these Articles of the Azerbaijan Republic Criminal Code were not applied in practice from 2011 to 2015. However, since 2015, a number of press representatives, political activists and politicians have again been arrested on the basis of the Articles 147 and 148 of the Azerbaijan Republic Criminal Code. Ali Aliyev’s case was not an exception either.

Ali Aliyev exercised his right to freedom of expression by expressing his personal views concerning the helicopter crash without mentioning any names. His remarks were of an evaluative nature and expressed only his opinion. Due to the fact that there is no Defamation Law and the practical application of the Article 147 of the Azerbaijan Republic Criminal Code, Aliyev’s right to freedom was violated, as well as a number of substantive and procedural provisions, the Azerbaijani Constitution Norms, the relevant articles of the International Treaties and precedents of the European Court of Human Rights, which are binding recommendations for the Member States of the Council of Euro

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