Category: Courts

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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Failed to keep in a mental asylum, decided to put in prison

FAILED TO KEEP IN A MENTAL ASYLUM, DECIDED TO PUT IN PRISON

Aqil Humbatov

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

Baku Grave Crimes Court

Case № 1(101)-1736/2021

November 15, 2021

Presiding judge: Samir Aliyev

Judges: Javid Huseynov, Eldar Ismayilov

Defendant: Aqil Humbatov

Defenders: Neymat Karimli, Khagani Imanov

Victim: Yaman Mammadov

Public Prosecutor: Ergin Qafarov, 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

Aqil Humbatov, a member of the opposition Popular Front Party of the Azerbaijan Republic (PFPA), an individual against whom the harshest and most unpredictable repressions have been ongoing for several years. A.Humbatov, unemployed, lived in the village of Zira near Baku, and had three dependent young children. He collected cardboard at the dumpsters and sold it in order to provide food for his children. Sometimes was engaged in rubbish collection. Humbatov has repeatedly criticised the country’s President on his personal Facebook page. In March 2020, on Facebook, Humbatov addressed to the President and strongly criticised him. He raised the issue of child benefits as he has three young children, one of whom is seriously ill, and as a father he is unable to pay for his child’s treatment. See:  https://www.youtube.com/watch?v=ihzNZTheruE

Such an abrupt and critical statement of the unemployed father of a sick child was not forgiven by Ilham Aliyev. The police began to detain Aqil Humbatov. On March 14, 2019, he was arrested once again and held on administrative charges. His party associates believe that the pressure on A. Humbatov is due to his hardline criticism against the President. On March 30, 2020, Humbatov was again detained in the village of Mashtagha outside Baku, but this time his was placed in the Republican Psychiatric Hospital. On March 30, 2020, he was again detained in the village of Mashtagha in the Baku suburb but that time he was placed in the Republican Psychiatric Hospital. That day the Hospital’s chief doctor, Aghahasan Rasulov, filed an appeal with the Sabunchi District Court of Baku, requesting that Aqil Humbatov be forcibly placed in a psychiatric hospital.  The hospital chief justified his claim by saying that Aqil Humbatov, born in 1983, should be urgently admitted to the hospital on grounds of a letter dated March 30, 2020, received from the 1st department of the Khazar District Police Directorate.

On April 1, 2020, Samir Talybov, the Judge of the Baku Sabunchi District Court, having studied the case materials and heard the  participants’ testimonies, decided to reject the Hospital Medical Chief’s application, justifying it by the fact that the Court had not received any irrefutable evidence that Aqil Humbatov could be dangerous to  the society, that he could not manage his life by himself since they hadn’t discovered either any mental disorder or the presence of a severe mental illness. The Judge Samir Talybov took a lawful and justified decision in relation to Aqil Humbatov and … quit his job as a judge. See: https://www.ipd-az.org/ru/agil-gumbatov/

However, on April 3, 2020, the Chairman of the Civil Chamber of the Baku Court of Appeal, Mammad Mammadov, issued a different ruling on the case. The decision of the Baku Sabunchi District Court from April 1, 2020, was overturned and a new ruling was issued: Aqil Humbatov must be forcibly placed in the Republican Psychiatric Clinic, where he should be held for 3 months. See: https://www.ipd-az.org/ru/agil-gimbatov-2/

However, the Azerbaijani public, as well as the human rights organisation “Amnesty International”, launched a major campaign demanding that the practice of the USSR KGB of placing regime critics in psychiatric hospitals to be terminated. As a result, the Chief Medical Doctor of the Psychiatric Hospital, Aghahasan Rasulov, was forced to release Aqil Humbatov. See: https://www.ipd-az.org/ru/agahasan-rasulov

Yet, Aqil Humbatov, a father of three young children, has not been allowed to live at liberty in a long time.

 

The accusation

On the evening of August 11, 2021, Aqil Humbatov went out of his house and was detained by the officers of the Khazar District Police Department. He was charged with an offence under the Article 126.2.4 (Deliberate causing of serious harm to health, committed publicly dangers a way, from hooligan prompting) of the Criminal Code of the Azerbaijan Republic.

According to the investigation, Aqil Humbatov stabbed a certain Yaman Mammadov in the abdomen, while he was removing rubbish in his yard at Mammadov’s request.

On August 13, 2021, the Baku Khazar District Court issued a restraint measure against A.Humbatov in the form of detention for a period of four months.

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

 

Defendant’s testimonies:

The accused, Aqil Humbatov, interrogated during the trial, pleaded not guilty to the charge and testified his political views had caused him to believe that the incident in question was a planned game. He testified that he had been engaged in the collection and removal of rubbish from the Zirya settlement. On August 2, 2021, a certain Yaman Mammadov called and asked him to clean up the rubbish in the yard of his new house where he had recently moved in. Previously, Aqil Humbatov had twice been to Yaman’s house and cleaned up the rubbish, for which the latter had paid him 10 manats. That day Yaman told him that he had moved to a new house because of his work; he obtained Agil’s phone number from the residents of the settlement. Four or five days later, Yaman called once again to Aqil and asked him to come. Aqil found his call suspicious, so he refused to come citing a lack of time.

On August 11, 2021, Y. Mammadov called A. Humbatov again and asked him to clean up the rubbish. Humbatov agreed. When he arrived, Y. Mammadov was in the yard of his house. A. Humbatov collected the rubbish but there was still some on the ground. Y. Mammadov asked him to remove the rest as well. A. Humbatov did it and returned to finish his work. He left his motorbike outside the door to the courtyard of the house. A. Humbatov did not enter the house and waited for Yaman Mammadov. At this point, Y. Mammadov’s daughter-in-law and mother called him into the house and asked to remove the rest of the rubbish. He refused to enter since Y. Mammadov was not at home, and it was not appropriate to enter the house where there were two women.  Afterwards, the women returned home, and A. Humbatov then stayed waiting in the courtyard, near the door. At that point, an officer of the Khazar District Police Department by the name of Elkhan, with whom he was acquainted, was passing by. It was then that Aqil Humbatov realised that the game had been planned by the police and that they would capture him at any cost. He was not mistaken. Yaman Mammadov appeared soon afterwards and asked Aqil to finish cleaning up the yard, while he entered the house. Humbatov then heard a woman’s voice behind him. The woman handed him two bags asking to throw them away, on which A. Humbatov replied that he would do it as soon as he would have finished his work in the yard. The woman left the bags and walked away. Then Yaman appeared and started yelling at him: “Are you molesting my brother’s wife?”. First, A. Humbatov thought that Yaman was saying these words to someone else. However, when he turned around he realised that those words of Y.Mammadov were addressed to him. A. Humbatov was not sure but Yaman Mammadov confirmed that the words were addressed to him. He then realised that it was a game planned by the police and Yaman was actually playing their game. When he realised it, he tried to take his motorbike and leave. So, Yaman did not leave him alone and started fighting with him. At that time, Yaman’s mother was in the yard laughing. Thereafter, the police officers entered the yard through the fence door. As soon as Yaman saw the policemen, he released A. Humbatov, fell on the floor, took out a knife and started shouting that Humbatov had stabbed him. The policemen grabbed Aqil and, kicking and beating him, dragged Humbatov to the police car. When the policemen forced him into the car, he saw an ambulance outside the house. All that had all been planned in advance.

After Aqil Humbatov had been taken to the police, he was held there from 6pm to 9pm. The police then told him that he had allegedly stabbed Yaman Mammadov with a knife and they started beating him. The police officers had been beating him up until the morning of August 12, 2021. Afterwards, they took him to the investigator who also told him that he had stabbed Yaman Mammadov. Though A. Humbatov said that it had been a lie and he hadn’t stabbed Y. Mammadov, the officers kept beating him again and again. He asked for a presence of a lawyer but they declined his request. When A. Humbatov asked to inform his family about his detention, that request of his was rejected by the police as well.

Since he refused to confess, he was taken to the room of the Deputy Head of the Khazar District Police Department where they applied some blood with a syringe to his clothes. And he was beaten again. However, Aqil Humbatov again refused to provide the false testimony demanded from him. There were five police officers who told him that if he refused to testify he would be raped. Following such a threat, A. Humbatov testified against himself as requested by the police and signed the relevant documents. Then, A. Humbatov was taken to Yaman Mammadov’s house where he was subjected to videotaping. There, A. Humbatov said what he had been asked to say.  A bit later, he was taken to an expert examination where he stated that he had been tortured and made a confession under the torture. As soon as the police heard that, they threatened to beat him up again, after which he was forced to say that he had not been tortured. That’s why he did not say so either in the Prosecutor General’s Office or in the court when the preventive measure was imposed. At first A. Humbatov was afraid of being tortured again but when the fear subsided, he told the truth.

 

Victim’s testimonies:

The victim, Yaman Mammadov, testified that on August 11, 2021, he called Aqil Humbatov and summoned him to clean up the rubbish in his yard. The latter came and did it. Sometime later, Y. Mammadov went shopping to buy water, and when he came back he saw that A. Humbatov had been harassing his brother’s wife. So, they started to fight. A. Humbatov took out a knife and stabbed Y. Mammadov in the stomach. When Humbatov wanted to run away, Y. Mammadov’s mother shouted, “Where are you going after killing my son, you better help me”. After that, Aqil left his motorbike there and ran away. Mammadov’s mother then called the police at 102.

 

Witnesses’ testimonies:

In the course of the trial, Elmir Ibrahimov from the Criminal Investigation Department of the Khazar District Police Department was questioned as a witness; he testified that he together with his colleague Elkhan Rustamov had been in the settlement of Zirya in connection with the search for another person. They were dressed in civilian clothes. Suddenly, they spotted an agitated man walking along the road. They noticed what looked like blood stains on the man’s clothes. They stopped the man to find out what had happened. The man did not say anything, behaved aggressively and only swore. At that time, they received a radio call from the 102 service informing them of a stabbing incident. Suspecting the man in the incident, they brought him to the Khazar District Police Department. There, it turned out that the man was Aqil Humbatov.  While being interrogated, Aqil Humbatov confessed that he had stabbed Yaman Mammadov.

The police officer Elkhan Rustamov being questioned in the court confirmed the testimony of his colleague Elmir Ibrahimov.

Narmina Fataliyeva, the mother of Yaman Mammadov, who was interrogated as a witness at the trial, testified that on August 11, 2021, Aqil Humbatov had been cleaning rubbish in their courtyard. Then her son went out shopping to buy water, and when he came back she saw him and Aqil Humbatov fighting. When she went out into the yard, she saw that Aqil had stabbed her son who was lying on the ground. The knife was also nearby. She called the emergency and 102 services. Her son was taken to the hospital. According to her information, A. Humbatov said something obscene to her daughter-in-law, so a fight broke out between the men.

Interrogated as a witness in the court, the wife of Yaman’s brother testified that on August 11, 2021, Aqil Humbatov had been cleaning up the rubbish in their courtyard. When she went out into the yard to throw away the litter, Aqil asked her if she was Yaman’s spouse or sister-in-law and then asked for her phone number. Her brother-in-law, who came up at that moment, also heard it. A fight ensued between them and then A. Humbatov pulled out a knife and stabbed Y. Mammadov. According to her, the fight lasted about 10 minutes. Then A. Humbatov ran away. Her mother-in-law called the ambulance and the police service by dialing the number 102.

 

Some other evidences:   

According to a forensic medical examination conducted on September 2, 2021, a wound on Yaman Mammadov’s front abdomen had been inflicted with a stabbing and cutting object. The time of infliction correlated with August 11, 2021, and assumed to have been caused by another person.

However, a forensic medical examination conducted on August 17, 2021, found no injuries on Yaman Mammadov’s body.

A forensic dactyloscopic expertise from September 23, 2021, determined that the fingerprints on the knife submitted by the investigating agency for examination belonged to Aqil Humbatov.

The conclusion of the forensic psychiatric examination conducted on September 11, 2021, revealed that Aqil Humbatov had a paranoid personality disorder, a state of compensation. The expert also pointed out that Aqil Humbatov had not suffered from any mental disorder at the time of the crime. As Aqil Humbatov was in a compensatory (mentally stable) state at the time of the crime, he was aware of the actual nature of the act, its public danger and could control himself. The expertise found Aqil Humbatov to be sane. Thus, the expert indicated that there had been no need for compulsory medical treatment to be provided to A. Humbatov.

 

Assessment of the court

The court regarded Agil Humbatov’s testimony at the trial as defensive in nature, since his testimony was not in accordance with and contradicted the other evidence in the case.

In the course of the investigation, A. Humbatov first made a confession and then testified that he had been subjected to the physical abuse by officers of the Khazar District Police Department. For this reason, too, he confessed.

The Court stated that an investigation into the allegations of torture had been carried out by Vugar Islamzade, an investigator of the Khazar District Prosecutor’s Office. However, the statement made by A.Humbatov was not confirmed by the investigators and on September 16, 2021, it was decided not to initiate criminal proceedings in connection with the torture.

As mitigating circumstances, the Court took into account Aqil Humbatov’s three minor children. The Court did not find any aggravating circumstances in the criminal case.

 

The court verdict  

On November 15, 202, the Baku Court of Serious Crimes has issued a verdict against Aqil Humbatov:

  1. Humbatov was found guilty of committing a crime under the Article 126.2.4 of the Criminal Code of Azerbaijan Republic and sentenced him to 10-year-imprisonment to be served in a penal colony of general regime.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. According to the Article 12.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

The judicial authorities shall observe the human and civil rights and liberties afforded by the Constitution to all participants in criminal proceedings.

Article 12 of the Azerbaijan Republic Constitution states:

  1. Ensuring the rights and liberties of a person and a citizen, decent living conditions for the citizens of the Republic of Azerbaijan is the highest objective of the State.

These norms are of a formal nature for the majority of law enforcement officers, however they are fundamental within the administration of the criminal justice system. They are a prerequisite ensuring the proper functioning of the judicial system.

We have referred to these norms due to the fact that the most basic and fundamental human rights principles have been violated in the criminal case commented upon.

According to the defendant’s testimony at the trial he had been subjected to physical pressure exerted by the police officers. The defendant attributed the initial defamatory statements he made as a result of physical pressure, of which he had been subjected in order to provide the evidence required by the investigators. It should be recalled that the defendant had been under the close supervision of the police officers throughout the investigation and it was they who were responsible for everything that happened to him at that stage.

Proving the physical pressure to which a detainee was subjected in the police custody is quite difficult, as he, as we know, was restricted in his right to liberty. The results of the forensic examination may, of course, also be inaccurate due to the fact that there is no alternative expertise available in the country. All forensic examinations are carried out by a single organization, the Judicial Expertise Centre. In addition, as a rule, the forensic examination of a defendant who claims to have been tortured is carried out some time later in order to make the traces on the body disappear. There are numerous examples when a defendant has experienced such problems, prior to his arrest he had no issues with his health, but after the arrest, even over a long period of time, he had injuries on his body, or even acquired a disability.

There are numerous reports concerning the torture inflicted by the law enforcement bodies at the local as well as reputable international human rights institutions, such as OMCT, Human Rights Watch, and others.

According to the Article 13.2 of the Code of Criminal Procedure of the Azerbaijan Republic, 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 Court, citing the decision not to initiate criminal proceedings in relation to torture, did not provide the necessary legal assessment and logical explanation to the defendant’s testimony.

In fact, not a single allegation of torture supplied by a defendant has ever been properly investigated by the law enforcement authorities in Azerbaijan. There have been known reports provided by the defendants of severe beatings, photos taken and distributed on the Internet (the case of Yunis Safarov and others). However, despite that, the law enforcement authorities remained silent, and if they did comment, their explanations were usually utterly illogical and foolish (for example, the accused inflicted the injuries by himself or received them as a result of escaping upon his detention).

In view of the above, we have no reason to distrust the defendant’s testimony, who has described the conduct of the police officers in great detail. According to the Article 15.2.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

During the criminal prosecution the following shall be prohibited 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.

The Article 125.2.2 of the Code of Criminal Procedure of the Azerbaijan Republic states,

Information, documents and other items shall not be accepted as evidence in a

criminal case if they are obtained through the use of violence, threats, deceit, torture or other cruel, inhuman or degrading acts.

Torture and inhuman and degrading treatment are also prohibited by the Norms of International Law. Thus, according to the Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, no one shall be subjected to torture or to inhuman or degrading treatment or punishment.

The prohibition of torture is also set out in the Article 7 of the International Covenant on Civil and Political Rights and in the Article 5 of the Universal Declaration of Human Rights, in addition to the European Convention.

As can be seen, all the above mentioned norms have no exceptions. It means that nothing can justify the use of torture, including wars, emergencies, the fight against terrorism, the Mafia, and so on.

In the judgment of the European Court of Human Rights (ECHR) in the case of Ilhan v. Turkey of June, 27, 2000 it is stated:

Article 3, however, is phrased in substantive terms. Furthermore, although the victim of an alleged breach of this provision may be in a vulnerable position, the practical exigencies of the situation will often differ from cases of use of lethal force or suspicious deaths. The Court considers that the requirement under Article 13 of the Convention that a person with an arguable claim of a violation of Article 3 be provided with an effective remedy will generally provide both redress to the applicant and the necessary procedural safeguards against abuses by State officials. The Court’s case-law establishes that the notion of effective remedy in this context includes the duty to carry out a thorough and effective investigation capable of leading to the identification and punishment of those responsible for any ill-treatment and permitting effective access for the complainant to the investigatory procedure. Whether it is appropriate or necessary to find a procedural breach of Article 3 will therefore depend on the circumstances of the particular case.

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

As mentioned above, and as the defendant testified at the trial, he was forced to testify against himself under the torture in the course of the investigation. According to the Article 66 of the Azerbaijan Republic Constitution,

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 Article 20.1 of the of the Code of Criminal Procedure of the Azerbaijan Republic states,

Nobody may be forced to testify against himself or his close relatives, or be prosecuted on this basis.

Whilst the text of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 (1), is not specifically stated as such, the case law of the European Court of Human Rights has enshrined the right of the accused to keep silent.

In the judgment of the ECHR in the case of John Murray v. the United Kingdom of February, 8, 1996 it is stated:

Although not specifically mentioned in Article 6 of the Convention, there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. … By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6.

https://hudoc.echr.coe.int/eng#{“fulltext”:[“john%20murray%20v.”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57980”]}

Furthermore, it is not permissible to find a defendant guilty even if there is a reasonable suspicion that he or she may be guilty. According to the Article 21.2 of the of the Code of Criminal Procedure of the Azerbaijan Republic,

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.

The Article 21.3 of the of the Code of Criminal Procedure of the Azerbaijan Republic states,

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.

At the trial, the defendant revealed that he had requested the presence of a lawyer following his arrest, but had been denied it. This is a very important point in the prosecution. Everyone’s right to legal assistance is enshrined under the Article 61 of the Azerbaijani Constitution:

  1. Everyone has the right for obtaining qualified legal advice.

III. Every citizen has the right for the lawyer’s advice from the moment of detention, arrest or accusation with crime by competent state bodies.

The Article 19.4-19.4.4 of the of the Code of Criminal Procedure of the Azerbaijan Republic states, that the prosecuting authority shall secure the following rights of the suspect or accused:

  • to have the assistance of the counsel for the defence from the moment of detention or arrest, as the suspect before the first interrogation or as the accused as soon as charges have been laid;
  • to explain his rights;
  • to give him adequate time and opportunity to prepare his defence;
  • to be able to defend himself in person or with the aid of counsel for the defence chosen by him or, if unable to pay for defence counsel, to receive free legal aid.

The Article 6 (3) of the European Convention on Human Rights states, that everyone charged with a criminal offence has the following minimum rights:

(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.

In the judgment of the ECHR in the case of Padin Gestoso v. Spain it is stated:

“The opportunities” to be afforded to any defendant should include the possibility to become familiar with the result of the expert examinations carried out during the trial in order to be prepared for the defence. Yet, it is clear that the opportunities to be provided to the defendant are limited to those which contribute or can contribute to the preparation of the defence”. https://hudoc.echr.coe.int/eng#{“fulltext”:[“Padin%20Gestoso%20v.%20spain”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”,”DECISIONS”],”itemid”:[“001-5623”]}

Failure to recognise the right to defence results in a denial of everyone’s right to justice, which, particularly in criminal cases, must first and foremost be fair.

In the judgment of the ECHR in the case of Artico v. Italy from May 13, 1980 it is stated:

«The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective; this is particularly so of the rights of the defence in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive».

https://hudoc.echr.coe.int/eng#{“fulltext”:[“artico%20v.”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”,”DECISIONS”],”itemid”:[“001-57424”]}

At the trial, the defendant claimed that he had not been given the opportunity to inform his family of his detention. This is a gross violation of the criminal procedure law. The Article 90.7.6 of the Code of Criminal Procedure of the Azerbaijan Republic enumerates the rights of a suspect, one of which is to immediately inform their close relatives or other persons with whom he has a legitimate interest about the detention and the place of detention by telephone or other means.

When considering the evidence in the case, these are:

  • The defendant’s testimony;
  • The witnesses’ statements;
  • The victim’s testimony;
  • The results of forensic examinations;
  • Various characteristics.

With regard to the defendant’s testimony, the Court found that the defendant’s testimony was defensive in nature and could not be accepted as irrefutable. Everything was very much clear with regard to the testimony of the victim. However, the witnesses’ testimonies are quite interesting. Who are the witnesses in the case? Two police officers, the victim’s mother and her daughter-in-law, i.e.  the persons interested in the outcome of the case. The Court should have doubted the testimony of those individuals and regarded them with suspicion. However, the Court considered them to be irrefutable and relied on them in passing the sentence.

Regarding the expert examinations, we have already mentioned that above. Furthermore, the results of the expert examinations are not mandatory either for the investigation or the Court. However, the Court accepted them as irrefutable as well.

It should be pointed out here that not a single piece of evidence, conclusion or argument of the defence was examined by the Court. The Court did not legally examine them and did not refer to them in the judgment.

Thus, the prosecution evidences had not been sufficient for the Court in order to impose a custodial sentence for a period of 10 years.

Despite the fact that the Court indicated that the accused had three minor children, the sentence was not affected in any way with this factor. The Article 126.2.4 of the Azerbaijan Republic Criminal Code provides for a maximum sentence of imprisonment for the period of 11 years. The Court sentenced A. Humbatov to 10 years. There is no justification in the Court verdict for such a harsh, almost maximal term of punishment. The Court’s partiality, its one-sided investigation, lack of initiative in full, objective and comprehensive analysis of the case, and lack of the principle of humanism and individual approach are obvious in this case.

All of the above demonstrates a gross violation of Aqil Humbatov’s fundamental rights, such as the right to liberty, the right to presumption of innocence, the right to silence, the right to qualified legal assistance, the right to a fair trial and most importantly, the right not to be subjected inhuman and degrading treatment and torture.

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There is no fair trial even for the state officials in Azerbaijan

THERE IS NO FAIR TRIAL EVEN FOR THE STATE OFFICIALS IN AZERBAIJAN

Eldar Hasanov 

Analysis of violation of law during Eldar Hasanov’s judicial proceedings

Baku Grave Crimes Court

Case №1(101)-178/2022

January 21, 2022 

Presiding judge: Afgan Hajiyev

Judges: Ahmad Quliyev, Zeynal Agayev

Defendant: Eldar Hasanov

Defenders: Javad Javadov, Adam Mammadov, Jalil Mirzoyev, Valeh Mehraliyev

State prosecutors: Anar Yusifov, the Deputy Head of the Department of Public Prosecutions at the Prosecutor General’s Office of the Azerbaijan Republic, and Zafar Ramazanov, the Department Prosecutor

 

Victim and civil plaintiff: Rashad Abdullayev, representative of the Ministry of Foreign Affairs of the Azerbaijan Republic

Representatives of the accused, a representative of the Ministry of Finance of the Azerbaijan Republic: Rovshan Yusifov, Malik Balakishiyev

Eldar Hasanov was born in 1955 in Lachin village of Kelbadjar district of the Azerbaijan Republic. In 1983, he graduated from the Faculty of Law of the Academy of the Ministry of Internal Affairs. He has been working in law enforcement bodies of Azerbaijan for many years. From 1995 to 2000, he served as the Prosecutor General of the Azerbaijan Republic, from 2001 to 2013, he was the Envoy Extraordinary and Plenipotentiary to Romania, and from 2013 to 2020, to the Republic of Serbia, Montenegro, and Bosnia and Herzegovina. He is married, has three children, and he is a Phd in Law.

On August 13, 2020, Eldar Hasanov was arrested on charges of committing offences under the Articles: 

  • 179.3.2 Assignment or waste, that is plunder of property entrusted to guilty by another person, committed in large scale;
  • 193-1.3.2 Legalization of money or other property obtained by crime, committed in large scale;
  • 308.2 Abusing official powers, entailed heavy consequences;
  • 308-1.1. Failure to use the state budget funds, target budget funds and extra-budgetary state funds for its intended purpose if this offense is committed in significant amount;
  • 313 Official forgery of the Criminal Code of the Azerbaijan Republic.

Following his arrest on August 17, 2020, Eldar Hasanov was withdrawn and dismissed from his post as ambassador.

 

Investigation

According to the investigation, Eldar Hasanov, as part of a criminal group, used his official position to cause damage to the property entrusted to him, embezzled and squandered it in a large scale. Along with a group of individuals, by prior conspiracy, he used his official status to receipt money, being aware that it had been obtained by criminal activity. Then E. Hasanov together with other entities used this money to conceal its true source, as well as legalized it through conversion, transfers and other financial transactions. The funds allocated from the budget were being spent for other purposes than intended. According to the prosecution, E. Hasanov applied to the Ministry of Foreign Affairs and the Ministry of Finance of Azerbaijan in order to misappropriate and embezzle funds from the state budget. Thus, while serving as Ambassador Extraordinary and Plenipotentiary in Romania, Republic of Serbia, Montenegro, Bosnia and Herzegovina, from 2010 to 2020, E.Hasanov misappropriated and embezzled funds in total amount of 16.893.868,89 EUR, reappropriated and embezzled 17.931.316,09 AZN (11.156.716,69 EUR) at the then exchange rate, repeatedly committed official forgery by entering deliberately false data in the official documents.

The defendant’s testimony

The defendant, Eldar Hasanov, interrogated in the course of the trial, pleaded not guilty to the charges and testified that he had been charged with 15 episodes, three of which related to the purchase of administrative buildings for the Embassy, while the remaining episodes had been related to carrying out construction and renovation work in connection with various humanitarian projects, new construction of the Embassy fence, upgrading the surveillance cameras, as well as providing assistance.

Between 2009 and 2014, Azerbaijan bought buildings to be used as Azerbaijani embassies in 28 countries. E. Hasanov revealed that if you compared the table of prices for purchasing buildings in different countries, the embassy building he had worked in was by far the cheapest. For this purpose the government had drawn up relevant regulations and a commission was set up. In order to collect the necessary information, this commission visited the sites, checked the data, compiled acts which were submitted to the Ministry of Foreign Affairs (hereinafter referred to as MFA), and the latter, in its turn, submitted it to the Cabinet of Ministers. However, the Embassy was responsible for the accommodation, leisure, meetings and the provision of transport for the visiting commission.

Eldar Hasanov also said that in order to buy or rent a property for the embassy, it was necessary beforehand to apply to the Ministry of Foreign Affairs, issuing a relevant permit to do so. Afterwards, a pertinent agreement is signed and then Azerbaijan decides whether to purchase this or that property, in particular a building, for the embassy’s operations. He also added that there were testimonies of the property owner, with whom several people had met, including a lawyer, the Embassy officials, as well as a large delegation from Baku. There is no information in any of the testimonies that discussions about the purchase of the property were held together with the Ambassador.

In 2004, the Embassy team, under the leadership of E. Hasanov, began work on establishing a monument to the former president of Azerbaijan, Heydar Aliyev, in Bucharest. Only 9 months later they managed to get approval to do it. Another year and a half they dedicated to the project of the monument, in which E.Hasanov was helped by his son, Anar Hasanov, and his daughter, Sabina Huseynova, as well as his two brothers, Shahin Hasanov and Alaskar Hasanov. In connection with the monument installation the relevant documents were signed, the permission of the Ministry of Foreign Affairs was given, which approved two designs and appointed Natiq Aliyev as the sculptor. In its turn, the Ministry of Foreign Affairs applied to the Cabinet of Ministers of the Azerbaijan Republic to obtain the final authorization. The Azerbaijani side sent their employee Eldar Huseynov, who dealt with tenders. All contracts were submitted indeed to E. Huseynov. The Embassy did not take any official measures in relation to this project, it only acted as an implementer and carried out the work efficiently and on time.

Regarding the accusation of embezzlement of the state funds, Hasanov revealed that the budget of the Embassy is sent to the Ministry of Foreign Affairs, which considers it for 3-6 months, then the budget is submitted to the Cabinet of Ministers for approval. E.Hasanov indicated that the money which was not allocated by the Embassy, has been returned back. It is confirmed with the materials of the criminal case. Thus, in 2015, 40.710 EUR were returned, in 2016 – 12.145 EUR, in 2017. – 32.944 EUR, in 2018 – 13.340 EUR, and in 2019 4.957 EUR.

Eldar Hasanov said his actions were unjustifiably regarded as abusing his duties and embezzlement of funds out of the state budget for purposes other than those for which they were intended.

He also added that the charges of official forgery and public funds embezzlement were not covered in the criminal case file. The charges against him were brought with serious violations of the law on the basis of inaccurate and disputed evidence, information and assumptions. E.Hasanov pointed out that the criminal law provisions had been implemented inappropriately. And the charges against him were not based on specific evidence but rather on the investigator’s subjective assumptions.

 

The testimonies of the victim’s and civil plaintiff’s representatives

Rovshan Yusifov, the representative of the victim of the Ministry of Finance of Azerbaijan, who was questioned in the court, testified that, in accordance with the directive of the Azerbaijani State Security Service Main Department, the Ministry of Finance started an inspection of the business activities of the Ministry of Foreign Affairs. The inspection covered the period from January 2015 to July 3, 2020. Based on the results of the inspection, an act was drawn up and submitted to the investigative body. According to the ruling of the investigative body, an audit of the economic activities of the Azerbaijani embassy in Serbia has also been carried out. Rovshan Yusifov testified that he had been familiar with the inspection report and confirmed it. He said that the person responsible for handling the spending of the funds was the Ambassador. The remaining money had to be returned to the State Treasury and the transfer of this amount to any other account had been prohibited. R.Yusifov also explained that the law stipulates that in case of a shortage of money destined to pay a freelancer’s salary, the employment contract with this person must be either terminated or the salary must be reduced.

Rashad Abdullayev, a representative of the victim and the civil plaintiff of the Foreign Ministry, testified that the Ministry had sustained significant damage, the amount of which was specified in the indictment. The damage caused by the accused is proved by the criminal case records. He also testified that the Ministry had filed a civil suit and requested to fulfil the claim.

The witnesses’ testimonies

As part of the investigation and trial, 51 witnesses were interrogated, 17 of whom were foreign citizens.

Gabil Kocharli, interrogated as a witness at the trial, testified that he had held the position of Advisor at the Azerbaijani Embassy in Serbia. He had been working in a rented building for several months, and then he had been informed that Azerbaijan wanted to purchase that building. On that occasion, a commission arrived from Azerbaijan. The commission got acquainted with the building and informed the Azerbaijani government regarding the acquaintance and the choice of the building. A few months later, they were informed that Azerbaijan had chosen one of the buildings. G.Kocharli testified that he had participated as a financial representative and a superintendent at the time of the buy-sale transaction. Upon completion, an act was drawn up and sent to the Ministry of Foreign Affairs. It was signed by the embassy staff. He had no authority to suggest the price of the building. The commission dealt with the issues of selection. The witness testified that he had not participated in the funds transfer, he had just signed the documents delivered to him by the accountant. G.Kocharli also confirmed the testimony he had given in the course of the investigation.

 Azer Shamilzade, interrogated as a witness at the trial, testified that from 2010 to 2013 and then from August 2020 he held the position of Attaché at the Embassy of Azerbaijan in the Republic of Serbia. He prepared and signed the payment authorisation on behalf of Eldar Hasanov. Araz Agalarov performed these duties while he was on holiday. His main duty as an accountant was to draw up statements. Nobody, including Eldar Hasanov, had interfered in his activities while he was working at the Embassy. The witness testified that a commission headed by the Deputy Minister of Foreign Affairs, Vagif Sadigov, had arrived from Baku with regard to the purchase of the building for the Embassy and had drawn up the relevant act. Then, the funds in the amount of 3.205.800 EUR were allocated for that purpose. However, he does not know how much the building really cost.

Vagif Sadigov, a witness, testified that he had served as the Deputy Minister of Foreign Affairs from 2004 to 2010. He confirmed his testimony that he had visited Serbia as part of the commission. Out of 6 buildings, the commission selected 3. An act was drawn up in this regard and all the commission members signed it. Eldar Hasanov was acquainted with the act. The cost of the building was approximately 3 million euro. Sadygov clarified that Eldar Hasanov had not come to Serbia in connection with the Embassy’s activities, but rather with the installation of a monument to Heydar Aliyev.

Araz Agalarov witnessed at the trial and testified that his father Alovsat Agalarov used to be a friend of Eldar Hasanov. In 2010, he applied to the Ministry of Foreign Affairs under the instruction of E.Hasanov, applying for the post of Head of Housekeeping at the Azerbaijani Embassy in Serbia. Araz Agalarov remained in that position until 2013. He testified that a new building had been bought for the Embassy and they had moved there. He withdrew 270.000 EUR transferred into his name for the renovation of the Embassy building, and handed that amount to the building owner and got a receipt confirming the payment.

The witness, Farkhad Mollazade, interrogated at the trial, testified that he had served as the Head Office of the Ministry of Foreign Affairs. He confirmed the witnesses’ previous testimonies concerning the arrival of the commission, selection of the building, drawing up a report, and addressing to the Cabinet of Ministers in that regard. At the time when Eldar Hasanov was Ambassador, F. Mollazade was involved as the Chairman of the commission buying buildings for the Embassies in Serbia and Montenegro, as well as Bosnia and Herzegovina. The money was transferred to the Embassy’s account in order to purchase the buildings. The amount stated in the deed was the price quoted by the firm. They were told the price of the buildings two months in advance. The amount quoted by Eldar Hasanov and the amount in the deed/act matched each other.

The witness, Aghasalim Azizov, who was interrogated at the trial, testified that he had worked for the State Construction and Architecture Committee, he had also been a member of the commission, and inspected the building as an architect. It was shown to him by the Embassy staff, and whether Eldar Hasanov had been involved, he could not remember.

Ismayil Hasanly, who held the post of the Head of the Real Estate Registry section of the Property Committee, was interrogated at the trial. He was also a member of the commission. His duty was to provide an expertise on the property inspection. Out of three possible options one had been chosen. An act was drawn upon the result. Although the price was mentioned in the act, I. Hasanly did not negotiate about it.

Rufat Agazade, a witness, testified at the trial that he had been a commission member on behalf of the Ministry of Emergency Situations. He had been unaware of the building price. Eldar Hasanov had been involved in the building inspection in Serbia and Montenegro, but he had not been in Bosnia.

In the course of the trial, the following witnesses were also interrogated: Gayum Farzullayev, Vakil Islamov, Fuad Azizov, Seyran Mirzazade, Ashraf Guliyev, Anar Dunyamalyev, Ashur Ibadov, Yusif Vezirov, Farid Aydinbekov, Rabil Huseynov, Haji Hajibeyli, Araz Aliyev (this witness testified that he personally handed Eldar Hasanov 298. 000 euro), Javanshir Madjidov, Shahin Hajiyev, Shamil Hajibeyli, and others. Besides the Azerbaijani citizens, there were also the foreign citizens as witnesses, whose testimonies had been given at the investigation and confirmed at the trial. They did not attend the trial.

Thus, one of the witnesses, Jasmina Radžić, testified that two Serbian citizens approached her with a request to help them sell their property, while at the same time the Embassy of the Azerbaijan Republic approached her with a request to purchase the property. In this connection, she met with Eldar Hasanov on several occasions. Two interpreters also attended the meetings. Eldar Hasanov said that he would like to buy the property after paying 1.350.000 EUR. Then, the Azerbaijani delegation arrived and, following approval of the property, the owners agreed to sell it for 1.350.000 EUR. Due to the fact that the building was subject to a mortgage, the purchase and sale contract was concluded in the Belgrade City Court. The contract was drafted in two languages, printed on letterhead with the organization’s logo, and an electronic version was sent to the lawyers of both parties.

The witness testified that she had no idea why the amount of 3.020.000 EUR had been indicated in the agreement submitted to her. She believes that this amount, mentioned in the agreement, is not correct, the property in the area in question is not worth that much, the amount of 1.350.000 EUR was indicated in the agreements sent to the parties by e-mail. The witness also believes that it is possible that the agreement may have been subsequently modified by someone.

 

Other evidences

According to the official documents requested from the Azerbaijani Foreign Ministry and the Azerbaijani Embassy in Serbia, the Ambassador to the Republic of Serbia, Eldar Hasanov, applied to the Cabinet of Ministers and the Foreign Ministry (both letters dated July 22, 2010) to allocate money for the purchase of the Embassy building.

A letter from the MFA to the Deputy Prime Minister of Azerbaijan, dated August 20, 2010, reveals that a commission has been set up to carry out the decision of the Cabinet of Ministers.

According to the commission’s act from August 18, 2010, they were shown three buildings. One of them was selected for the Embassy and the price of the building was 3.020.000 EUR (plus taxes, translation and legal services, the total of 3.205.800 EUR).

The case file contains a contract dated September 22, 2010, obtained from the Belgrade City Court, in paragraph 2.1 – the value of the property is not 3.020.000 EUR but 1.350.000 EUR, whereas 675.000 EUR were transferred to the accounts of the two owners.

The Embassy’s account statement from the bank in Serbia indicates that 675.000 EUR were transferred on September 22, 2010, and another 675,000 EUR, a total of 1.470.000 EUR, while 270.000 EUR were cashed by the Head of the Business Department, Araz Agalarov, of the Embassy. On September 23, 2010, 70.000 EUR were cashed, then 20.000 EUR, and 9.750 EUR were transferred, and 270.000 EUR were paid for the banking services.

Eldar Hasanov’s letters to former Deputy Prime Minister of Azerbaijan, Abid Sharifov, dated from October 5, 2010, and November 2, 2010, it can be seen that 3.203.531,91 EUR designated for the building purchase 2.268.09 EUR of that amount were returned to the State Budget.

Although, 2.268.09 EUR was refunded to the State budget on November 2, 2010, but the very same amount was again transferred to the Embassy’s bank account on November 22, 2010. All this have been stated in the case file. as well.

The case file contains an expertise report, dated May 16, 2021, on the authenticity of the signatures of two Serbian citizens who signed the agreement of September 22, 2010. The expertise determined that the signatures of those individuals were falsified.

Based on the letter dated September 28, 2012, of the Azerbaijan Republic Ministry of Foreign Affairs, it has been transferred 4.227.920 EUR to the account of the Embassy in Serbia, 4.227.900 EUR to the account of the Embassy in Romania, and 4.219.287,20 EUR to the account of the Embassy in Montenegro.The case file reveals that the building for the Embassy in Montenegro was purchased for 1.400.000 EUR. A bank statement in Montenegro indicates that Seyran Mirzazade, an Embassy Advisor, cashed out 250.000 EUR on October 10, 2012, and 2.250.000 EUR on October 12, 2012. Then, 1.400.000 EUR were transferred to the accounts of three different banks, 150.000 EUR were cashed on October 17, 2012, and 90.000 EUR were cashed on October 22, 2012, as well on October 26, 2012 – 90.000 EUR, on October 26, 2012 – 2.699.31 EUR. All documents were signed by Seyran Mirzazade.

Based on the payment records, 1.339.060 EUR were transferred to the Embassy’s account between September 3, 2010, and July 5, 2011, and on June 30, 2011, the amount of 175.681.44 EUR were returned to the account of the Ministry of Foreign Affairs of the Azerbaijan Republic.

There is a document dated September 22, 2011, indicating that 450.000 EUR were allocated for the reconstruction of the Tashmaidan Park, where a monument to the former President of Azerbaijan, Heydar Aliyev, was placed.

Besides these documents, a number of financial statements and bank documents for various sums, as well as forensic reports, are attached to the criminal case.

 

Judicial review 

The Court assessed Eldar Hasanov’s testimony regarding the fact that the late Eldar Huseynov had been responsible for all proceedings, as well as for the expenditure of financial resources, as groundless. The Court pointed out that if Eldar Huseynov had been a responsible figure, the funds would have been transferred to his bank account and he would have been responsible for all financial issues as well. However, according to the case file, it was the Embassy’s responsibility. In this regard, the Court refers to the testimony of Elvin Alizadeh, a witness, who said that Eldar Huseynov had been a very poor man, his situation had particularly worsened since he had quite his post and he lived in a poor area of Serbia where he died as a result of a heart attack. The Court also points out that the responsibility for all of Eldar Hasanov’s activities has been confirmed by the witnesses’ testimonies.

Further, the Court also referred to Eldar Hasanov’s testimony with regard to the fact that the reason for the underpricing indicated in the contracts and payment documents was the avoidance of taxes by the sellers or firms. The Court indicates that the property owners testified in this regard that they had just indicated the real amounts in the contracts, and that they had been unaware of the other amounts. Moreover, there is no a single document in the case file to prove the matter.

Further, it was criticized the testimony of Eldar Hasanov concerning the lack of his signature on the documents, while on the other hand he testified that due to the large volume of work he had not had time to sign all the documents and therefore entrusted it to his councillors. The counsellors interrogated at the trial said that they had signed the documents on Eldar Hasanov’s instructions and with his consent.

In the verdict, the Court stressed that although Eldar Hasanov had not pleaded guilty to the charges, there were numerous documents, forensic reports, and the witnesses’ testimonies proving his guilt, whereas the Court could not accept his own testimony as the evidence.

The Court also considered that Eldar Hasanov’s crimes had been correctly qualified by the investigating authority. In addition, the Court specified that in view of the fact that the charges under the Article 313 of the Azerbaijan Republic Criminal Code did not constitute a great public danger, and two years had passed since the commission of this crime (the statute of limitations for the crime), and also the failure of E.Hasanov to plead guilty under this Article, excludes criminal prosecution under the Article 313 of the Azerbaijan Republic Criminal Code. Therefore, the Court does not impose a sentence under this Article.

The Court did not find any circumstances precluding the commission of the offences or the exemption from criminal liability.

The fact that Eldar Hasanov had no previous criminal record and had been awarded the Order of the “Flag of Azerbaijan” by the President of Azerbaijan on December 24, 1998, were mitigating circumstances.

The fact that E. Hasanov had repeatedly committed the crime, and had also committed it as part of a criminal group, was an aggravating circumstance.

The Azerbaijani Ministry of Foreign Affairs brought a civil claim for damages caused by Mr. Hasanov, in the amount of 18.258.689,92 AZN. The Court considers that the claim of the Ministry of Foreign Affairs is legitimate and must be upheld in full.

Moreover, Eldar Hasanov has a deposit in the amount of 50.217,16 AZN, as well as a dacha in Nardaran village, an apartment in the Baku Nasimi district, non-residential premises and two shops in the Baku Narimanov district, a land plot in Nardaran village, a flat in the Baku Yasamal district, a land plot in Absheron district, a cottage in the Baku Khatai district, and a flat in Montenegro that were to be seized, confiscated and used to ensure a civil claim.

The costs of the expertise in the amount of 723,04 AZN have also been imposed on Eldar Hasanov.

 

The Court verdict

The Court, having heard the criminal case as an open-label trial, issued its verdict:

  • To find Eldar Hasanov guilty of committing offences under the above Articles and to sentence him to 10 years imprisonment in a general regime penal colony. The Court also imposed an additional sentencing under all the articles, namely a ban on holding senior and responsible positions within the state and self-governing bodies for a period of 2 to 4 years (depending on the article).

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. It is well known that the basic principles of criminal proceedings are to define the regulations that form the basis of criminal prosecutions, ensuring the protection of the individual and citizen against unlawful restrictions to his rights and freedoms, and establishing the legality and validity of each criminal procedure. All these principles are mandatory in administering fair justice.

Furthermore, it is incumbent on the Courts and other participants in proceedings to strictly comply with the provisions of the Constitution of the Azerbaijan Republic, the Criminal Code, and other laws of the Azerbaijan Republic, as well as the International Treaties to which the Azerbaijan Republic is a party.

The charges brought against Eldar Hasanov consist of 15 episodes, which involve a substantial sum of money.

It should be recalled that upon the accusations against 67-year-old Eldar Hasanov, a preventive measure in the form of detention has been selected, but it was subsequently extended a number of times. Once the preliminary investigation was completed, the case was transferred to the Baku Court of Serious Crimes.

A preparatory hearing is held when the case is brought before the Court. In each case at the preparatory hearing with the parties the following are among the matters to be considered:

  • whether the requirements of the Criminal Code were violated in the course of the pre-trial investigation;
  • whether there are grounds for suspending or terminating criminal proceedings;
  • whether there are grounds for imposing, modifying or revoking a preventive measure in a criminal case.

This means that the Court considering the case also examines the grounds on which the precautionary measure was imposed. In this case, the arrest was not only imposed as a preventive measure for a certain period of time (before the hearing the case by the court), but was also extended several times by the court order. When choosing a preventive measure, the court, in addition to other circumstances, must take into account the state of health, the personality of the accused, etc. The 67-year-old accused, Eldar Hasanov, has serious health problems and his medical condition has drastically deteriorated since his arrest. Also, he is quite a well-known personality in Azerbaijan, and for many years had held leading positions in the law enforcement system of the country, as well as being a Professor and Doctor of Laws. However, in this case the Court did not explore an alternative measure of restraint other than arrest. There were always problems with restraint orders in the Azerbaijani judicial system. The arrest orders appealed to the Courts of Appeal are not upheld in 90% of cases.

Right to liberty and security

Right to a fair trial

On November 3, 2009, the Courts have been advised to strictly comply with the Article 28 (Right for freedom) of the Constitution of Azerbaijan, Articles 5 (Right to liberty and security) and 6 (Right to a fair trial) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the decisions of the European Court of Human Rights (ECHR)in accordance with a decision of the Plenum of the Supreme Court on the practice of the courts in considering applications related to the imposition of preventive measures in the form of arrest on accused persons. The Plenum of the Supreme Court of Azerbaijan recalled that when imposing a preventive measure in the form of arrest the Courts should not limit themselves to a formal listing of the procedural grounds set out in the Article 155 of the Code of Criminal Procedure (CPC). They should verify whether each ground is relevant to a particular defendant and whether it is supported by the evidence in the criminal case file. In this case, the nature and degree of public danger of the act committed by the accused, information characterizing his/her personality, including age, marital status, occupation, health and other circumstances should be taken into account.

The Article 320 of the Code of Criminal Procedure of the Azerbaijan Republic states:

 

During its examination of a case, the court may alter or annul any restrictive measure applied to the accused after hearing the submissions of the accused and his representative and the opinions of the public prosecutor and the victim (or victim bringing a private prosecution).

Thirteen years have passed since the above-mentioned resolution of the Supreme Court Plenum was adopted, but it remains only on paper. The rulings on arrest, generally contain standard formulations, are formal in nature. The Courts do not adopt an individual approach in each particular case.

In this criminal case neither the court considering the legality of the preventive measure, nor the court examining the merits of the criminal case demonstrated an individual approach, grossly violated the constitutional provisions, criminal procedural law, International Treaties and decisions of the European Court on Human Rights.

The detention of the 67-year-old defendant, who has a number of medical conditions, inflicts additional physical and mental suffering on him. Such a treatment indicates a bias against the accused.

The defendant’s testimony, which the court regarded as of a defensive nature, is particularly important. E.Hasanov and his lawyer have logical questions to which the investigation did not provide any answers. Thus, on one of the 15 incidents, the lawyer asks, “Did Eldar Hasanov sign the contract for the Embassy property purchase? Was Eldar Hasanov in a particular city when the contract was being signed? Is there any evidence that he received at least one cent from the funds acquired from the property, is there anyone’s testimony, a bank receipt? Is there any evidence of criminal conspiracy? E. Hasanov testified that the firm, for example, takes 10 manats for the case, and for 8 manats, it rents out, 2 manats remains as a profit. They pay taxes based on these 2 manats. The investigation considered this difference as a damage.”

As can be seen, the investigation did not respond to these and other questions, thereby leaving gaps in the criminal case.

The court verdict is more similar to an indictment than a conviction. It does not reflect the defence position, it does not mention any evidence or circumstance in favour of the defendant. The verdict does not contain the defence’s objections to the prosecution’s charges. It starts with accusations and ends with severe sentencing.

The Court did not adequately examine the evidence in defence of the defendant, and all doubts that the Court failed to resolve during the trial were not interpreted in favour of the defendant.

The Law of Criminal Procedure sets out a number of requirements for a court verdict. According to the Article 349.3 of the Code of Criminal Procedure of the Azerbaijan Republic, the court judgment shall be lawful and well-founded.

According to the Article 349.4 of the Code of Criminal Procedure of the Azerbaijan Republic, the court judgment shall be considered lawful if it fulfils the requirements of the Constitution of the Azerbaijan Republic, this Code and the criminal and other legislation of the Azerbaijan Republic.

 

According to the Article 349.5 of the Code of Criminal Procedure of the Azerbaijan Republic, in the following cases the court judgment shall be considered well-founded:

 

  • if the conclusions at which the court arrives are based only on the evidence
  • examined during the court’s investigation of the case;
  • if the evidence is sufficient to assess the charge;
  • if the facts established by the court are consistent with the evidence investigated.

As we noted above, the court verdict appeared to be more like an indictment than a judicial verdict. The provisions of the Articles 349.4 and 349.5 of the Azerbaijan Republic Code of Criminal Procedure were grossly violated by the Court. There was no reasoning, no defence argument, no assessment or verification of the defendant’s testimony, no elimination of doubts that should be interpreted in the defendant’s favour.

According to the Article 351.2 of the Code of Criminal Procedure of the Azerbaijan Republic, a conviction by the court may not be based on assumptions and shall be handed

down only where guilt of the accused is proved during the court’s examination of the

case.

According to the Article 351.3 of the Code of Criminal Procedure of the Azerbaijan Republic, the guilt of the accused may be regarded as proven, as follows:

  • bearing in mind the presumption of innocence;
  • on the basis of the results of the court’s examination of the charge in accordance with the rules set out in this Code;
  • on the basis of the reliable and admissible evidence examined during the court’s investigation of the case;
  • interpreting in his favour any doubts as to the guilt of the accused which cannot be removed.

Also, the Article 353.2.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that the evidence on the basis of which the court came to its conclusions, and its reasons for not accepting other evidence.

The commented judgment contains no grounds upon which the court disproved the other evidence or the evidence of the defence.

The defendant was deprived of the right to a fair trial as set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1). According to that provision, everyone is entitled, if his civil rights and obligations are in dispute, or if any criminal charge is brought against him, to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by the Law.

In the judgment of the European Court of Human Rights (ECHR) in the case of Edwards v. United Kingdom of December, 16, 1992 it is stated,

Among the indispensable requirements of fairness required by the Article 6 paragraph 1 (…) is the obligation of the prosecuting authorities to communicate to the defence all relevant evidence, whether accusatory or exculpatory. –  https://hudoc.echr.coe.int/eng#{“fulltext”:[“edwards%20v.united%20kingdom”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57775”]}

As it follows from the judgment, the litigants (prosecution and defence) were not on an equal footing because, as discussed above, the judgment did not include the defence’s reasoning, arguments, and evidence. Thus, the Court only assessed the Prosecution’s evidence. On this point we refer again to the case law of the ECHR.

Thus, the ECHR judgment in the case of Dombo Beheer v. the Netherlands of October 27, 1993, states:

In litigation where there are competing private interests, this ‘equality of arms’ implies that each party must have a reasonable opportunity to present its case, including evidences, in circumstances where neither party has a clear advantage. – https://hudoc.echr.coe.int/eng#{“fulltext”:[“dombo%20beheer%20v.netherlands”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57850”]}

In the judgment of the ECHR in the case of Vidal v. Belgium of April 22, 1992 it is stated,

As a basic rule, the National Courts must assess the evidence brought before that court and the relevance of the evidence provided by the defendants. – https://hudoc.echr.coe.int/eng#{“fulltext”:[“vidal%20v.belgium”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57799”]}

Although it is not explicitly stated within the text of the Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the practice of the ECHR suggests that one element of the right to a fair trial is the reasoning behind decisions. Thus, in the ECHR judgment of January 12, 1999, in the case of Garcia Ruiz v. Spain, the Court stated “The Court recalls that, in accordance with its constant practice reflecting the principle linked to the effective implementation of justice, the judicial rulings must indicate in sufficient proportion the reasons on which they are based.” – https://hudoc.echr.coe.int/eng#{“fulltext”:[“garcia%20ruiz%20v.”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-58907”]}

As can be seen from the above, the Court grossly violated the provisions of the Azerbaijani Constitution, Criminal and Penal Procedure Laws, subordinate legislation, as well as the Norms of the European Convention for the Protection of Human Rights and Fundamental Freedoms in relation to the former Ambassador Eldar Hasanov. The Court was failing to follow the decisions of the European Court of Human Rights, which are advisory in nature for the member states of the Council of Europe, in passing the judgement.

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The supreme court has not released Bahruz Aliyev

THE SUPREME COURT HAS NOT RELEASED BAHRUZ ALIYEV

Bahruz Aliyev

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

Supreme Court of Azerbaijan Republic

Case №1(102)-648/2020

August 12, 2020 

Presiding judge: Aziz Seyidov

Judges: Tahir Kazimov, Inqlab Nasirov

Defendant: Bahruz Aliyev

Defender: Elchin Sadiqov

 The State Prosecutor: Ramiz Alverdiyev, a prosecutor of the Prosecution Support and Analytical Department at the Cassation Courts of the Prosecutor General’s Department on Supporting the State Prosecution of the Azerbaijan Republic

 Bahruz Aliyev, born in 1985 in the city of Neftchala, Azerbaijan, the editor of websites www.nia.az, www.icmaric.az, www.nia24.info , was arrested on May 30, 2018. He was charged with committed offences under the Articles 311.3.2 (Receipt of a bribe committed repeatedly) and 311.3.4 (Receipt of a bribe committed with application of threat) of the Criminal Code of the Azerbaijan Republic. On May 30, 2018, a pre-trial detention order was issued against him.

The investigation’s version was based on the fact that in 2017, Bahruz Aliyev, as the editor of the aforementioned websites, spread misleading information on the founder and actual head of “Mammadogullary” LLC, Ramazan Mirzoyev. In December 2017, B. Aliyev solicited 2.700 AZN from Asad Aliyev, an acquaintance of R. Mirzoyev, as a bribe for the removal of that information from the website.  However, not having achieved his goal, B. Aliyev left the website untouched.

On February 13, 2018, Rashadat Agayev, a close friend of Ramazan Mirzoyev, invited Bahruz Aliyev to the “Mammadogullary” LLC office, where B. Aliyev demanded 4.000 AZN by threatening him.

According to the investigation, throughout 2017, Bahruz Aliyev, being the head of the above-mentioned websites, published the improper articles in regard of the management and activities of the State Oil Company of the Azerbaijan Republic and its Integrated Excavation Works Trust, as well as the deputy head of the Trust, Isa Mammadov. The latter was demanded 100-200 AZN monthly by Bahruz Aliyev. I. Mammadov handed out the money to B. Aliyev using the help of ” Gala” cafe’s cashier in Baku, who, in his turn, was unaware of the purpose of the money.

Testifying at the trial, the defendant, Bahruz Aliyev, did not plead guilty to the charges and revealed that www.nia.az, www.icmaric.az, www.nia24.info sites did belong to him, but due to the sites being blocked, in September 2017, he founded the website www.icmaric.az, which was registered on the name of his acquaintance Aghali Mirzoyev. Aghali Mirzoyev as a computer specialist assisted him in technical matters. In 2017-2018, due to the improper activities of the head of “Mammadogullary” LLC, Ramazan Mirzoev, B. Aliyev wrote a number of articles published on his website. He testified that he had not published any false information but rather had written what was in reality. In 2018, the head of the website www.politico.az, Asad Aliyev, asked him to remove the publications about R. Mirzoyev. At his request, Bahruz Aliyev did remove a few articles. When Asad Aliyev asked him to do it again, he objected. Further, he received a phone call from a certain Rashadat Agayev, who called himself R. Mirzayev’s man and suggested to meet. On February 13, 2018, B. Aliyev met with R. Agaev at the office of “Mammadogullary” LLC. At the meeting, Rashadat Aghayev asked Bahruz Aliyev to remove those articles in exchange for remuneration. B.Aliyev replied that he did not withdraw the publications in exchange for money.

At that time, B. Aliyev addressed to the “Avrasiya” clinic in order to have a surgery on his nose. He had to pay 4.000 AZN for the surgery. Rashadat Agayev said to B.Aliyev at the meeting that he could ask him for any help. After having heard about the surgery, Rashadat Agayev, himself, offered B. Aliyev 4.000 AZN. This money was to be paid by B.Aliyev to the Avrasiya Clinic. And there were no threats addressed to Rashadat Agayev by B. Aliyev. R.Agayev volunteered to help him pay for the surgery.

Further, Bahruz Aliyev indicated that he had known Isa Mamedov as the deputy head of the Trust. He published a number of articles on his activities. Isa Mammadov personally met with him and asked not to publish articles concerning the Trust. Since that time B.Aliyev had not written any more about them. Then, Isa Mammadov called and offered him money. He said that he had left 100 manat at the cashier of the “Gala” cafe, and B.Aliyev went there to pick it up. In April 2018, B.Aliyev did indeed take 300 AZN handed to him by Isa Mamedov’s assistant. He also testified that everything he had written in the articles was indeed true, there were no a word of lie. B.Aliyev said that there had been no threats against the aforementioned individuals. He did not know that the articles he had taken from other websites would have such an impact on these people.

Rashadat Agayev, interrogated as a witness in the court, testified that he and Ramazan Mirzoyev had been on friendly terms. He stated that Bahruz Aliyev, in order to remove and no longer write about R. Mirzoyev, demanded 2.700 AZN, then 1.000 AZN, and then another 1.700 AZN. Rashadat Agayev informed R. Mirzoyev of that, and he, in his turn, refused to do so. At that time, B.Aliyev started publishing more acute articles. Thus, for this reason, Ramazan Mirzoyev applied to the State Security Service of Azerbaijan that placed a video surveillance camera. Rashadat Agayev handed over 1.000 AZN to B.Aliyev in the room where the camera had been installed. Overall, 4.000 AZN had been given to B.Aliyev.

Asad Aliyev, interrogated as a witness at the trial, testified that he had worked in the media for a long time and was the founder of the website www.politico.az. He and Bahruz Aliyev have a good relationship. In 2017, Ramazan Mirzoyev asked him for help in removing content related to his activities from the websites. He asked B. Aliyev to withdraw inappropriate materials, but Aliyev refused to do so. In exchange for the removal of 17 publications, Bahruz Aliyev asked for 2.700 AZN. The request was conveyed by Asad Aliyev to Rashadat Agayev, but the latter knew nothing about it afterwards. He learned just later that B.Aliyev had demanded money from R. Mirzoyev and therefore was brought to justice.

Ikram Rahimov, a witness, questioned in the courtroom, testified that he was the editor-in-chief of the portal www.realliq.az and had known B.Aliyev for about two years. He only recently learned that B. Aliyev had demanded from an official to pay him for the removal of undesirable publications and was criminally prosecuted for doing so. Yet, he does not know whether B.Aliyev actually demanded money from R. Mirzoyev or whether he actually took it. B.Aliyev offered him several times to meet with Rashadat Agayev, but Rashadat refused the offer. One day, upon Bahruz Aliyev’s request, Ikram Rahimov took him to the clinic, but who he met there and why, he does not know.

From Ramazan Mirzoyev’s appeal dated January 30, 2018, to the management of the State Security Service of Azerbaijan, it is clear that he requests to find and bring to justice the website www.qafqaznew.az, www.aztoday.az, www.xeberinfo.az, www.ismaric.az, www.cumhuriyyat.az journalists-racketeers who publish the articles discrediting his honor and dignity, having the nature of slander.

According to the protocol of examination from June 1, 2018, a conversation between Bahruz Aliyev and Isa Mammadov concerning the transfer of money by I. Mammadov to the cashier and its taking by Bahruz Aliyev was recorded on the CD. The CD recording also contains a conversation between B.Aliyev and Rashadat Agayev.

According to the inspection report dated June 1, 2018, the State Security Service officers, following a court order, installed a video surveillance camera. The video footage shows Bahruz Aliyev sitting in one chair and Rashadat Agayev in the other, and R. Agayev offers his vis-a-vis 3.000 AZN. But B. Aliyev tells him that he is not a 3-5 AZN journalist.  Then, R. Agayev puts 3.000 AZN on the coffee table, and Bahruz Aliyev takes the bills, stands up, puts the money in his jacket pocket, and promises to remove the content.

The forensic examination from August 3, 2018, revealed that one voice on the video recording belongs to Bahruz Aliyev, and the other to Rashadat Agayev.

The Press Council’s letter dated August 14, 2018, was submitted to the court by the investigation, which stated that Vurgun Shiraliyev, a resident of the Neftchala district, had filed a complaint on the website www.nia.az. The Council discussed the complaint and found that the site violated the Azerbaijani Regulations of Professional Journalists’ Conduct due to thoughts that defamed honour and dignity.

On November 5, 2018, the Lankaran Court of Serious Crimes issued a verdict against Bahruz Aliyev: he was found guilty of committing crimes under the Articles 311.3.2 and 311.3.4 of the Azerbaijan Republic Criminal Code and sentenced him to 8 years 6 months imprisonment with deprivation of the right to occupy any responsible posts and the right to engage in journalistic activities up to 2 years. B.Aliyev should serve his sentence in a general regime colony.

Having disagreed with the court verdict, on November 5, 2018, the defense filed an appeal. On February 13, 2019, the Penal Collegium of the Shirvan Court of Appeals, chaired by Elshad Aliyev and judges Kamil Bashirov and Etibar Jamalov, ruled on the case: to dismiss Bahruz Aliyev’s appeal and leave in force the sentence imposed by the Lankaran Court of Serious Crimes dated November 5, 2018.

Having considered the Court of Appeal’s ruling as illegal and unfounded, the defence filed a cassation appeal to the Supreme Court of the Azerbaijan Republic. The cassation appeal was justified by the fact that there is no evidence in the case that B.Aliyev threatened Ramazan Mirzoyev and solicited money by threatening him. Ramazan Mirzoyev helped Bahruz Aliyev in the form of a charitable gesture, by giving him money in the amount of 1.600 AZN for B.Aliyev’s medical treatment. The defence also believes that B.Aliyev’s accusation regarding threats against Isa Mammadov is groundless, given that there has been no complaint on the part of I.Mammadov. The conversation between Isa Mammadov and Bahruz Aliyev does not reveal what the money was given for and what B.Aliyev was supposed to do with them. At the same time, the defence drew the court’s attention to the fact that B.Aliyev has health problems and disability of the second category, there is no complaint against B.Aliyev by the above mentioned individuals, and also that he supports his elderly parents. Given the above, the defence requested the court to pass an acquittal verdict against B.Aliyev on the basis of lack of corpus delicti in his actions.

The Judicial Board of the Supreme Court of the Azerbaijan Republic ruled on August 12, 2020. The Criminal Chamber of the Supreme Court of the Republic of Azerbaijan has made a ruling in the criminal case: to deny the appeal of the accused and leave in force the judgment of the Shirvan Court of Appeal from February 13, 2019.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. The Articles brought against Bahruz Aliyev have aggravating factors: 311.3.2 and 311.3.4 of the Azerbaijan Republic Criminal Code, i.e. taking a bribe by an official in exchange of multiple illegal actions and with the use of threats.

First, we should consider the evidentiary basis for the recurrence of the crime. According to the Article 16.1 of the Azerbaijan Republic Criminal Code,

Repeatedly committed crimes shall be two or more crimes provided by one article of the present Code.

The investigation did not provide the court with sufficient evidence of the repeated commission of the crime.

In the case, there are the witnesses’ testimonies regarding this, but there is no other evidence to support their testimonies. As for the video footage, which shows Bahruz Aliyev, it does not prove that he committed the crime. Moreover, this video cannot prove that the crime was repeatedly committed, as was suggested by the investigation. Also, the fact that threats of any kind were used, is not actually proven by any evidence.

The most important point in the criminal case is that there are no complaints or claims on the part of the individuals whom B.Aliyev allegedly demanded money from. Thus, the case contains two applications submitted by Isa Mammadov and Ramazan Mirzoyev. Ramazan Mirzoyev’s statement dated June 13, 2019, is addressed to the Commission on Pardon Issues chaired by the President of the Azerbaijan Republic, in which R. Mirzoyev pointed out that he had neither claims nor complaints against Bahruz Aliyev. Isa Mammadov’s application dated November 22, 2018, is addressed to the Shirvan Court of Appeal, which considered the case on appeal. Therein, Isa Mammadov also asks to take into account the fact that there are no complaints and claims from his side against B. Aliyev.

There is also a request letter from Ramazan Mirzoyev to the State Security Service, in which he says nothing about Bahruz Aliyev and does not even mention his name.

The fact that B. Aliyev received money directly from Rashadat Agayev, as seen on the video, does not prove that B. Aliyev committed the crime he is accused of. He admitted that he did receive a certain amount of money, but this amount was intended for his treatment and surgery, not as a bribe for illegal actions. Besides, what kind of illegal actions B. Aliyev had to perform in exchange for the money? Did the investigation consider the removal of the content from the sites to be an illegal action?

As mentioned above, the act of threatening by B. Aliyev was not proven in the court due to the fact that the investigation bodies did not provide sufficient irrefutable evidence.

Although, the Criminal Law stipulates the punishment not only for bribery, but also for offering it, where the subject of the crime is a sane individual, whose age is 16 years or older. If we follow the logic of the investigation, then the officials who allegedly passed the bribe to B.Aliyev could also have been prosecuted in this case. However, the investigative body did not consider that version as a valid one, and the court did not take into account the fact that neither Isa Mammadov nor Ramazan Mirzoyev had any complaints and claims against the accused, which both clearly indicated in their official statements.

The involvement of the Azerbaijani State Security Service, which is authorized to deal with external problems rather than internal ones, is equally strange. To solve criminal situations inside the country, there is the Ministry of Internal Affairs, responsible specifically for dealing with this.

In the verdict, the Court of First Instance pointed out that the accused’s second category disability and the fact that he supported his two elderly parents were extenuating circumstances. However, upon B.Aliyev’s detention, the Court applied to him a preventive measure in the form of detention.

Article 299.3 of the Code of Criminal Procedure of the Azerbaijan Republic states, that in

all cases, during the preparatory hearing of the court with the participation of the parties to the proceedings, the following matters shall be examined:

 

  • whether the criminal case file, the file on simplified pre-trial proceedings or the complaint with a view to a private prosecution received by the court are within its jurisdiction or not;
  • whether the requirements of this Code were violated during the investigation;
  • whether the content of the complaint with a view to a private prosecution complies with the provisions of Article 293.3.1-293.3.7 of this Code;
  • whether there are grounds for suspending or discontinuing the criminal proceedings;
  • whether there are grounds for choosing, altering or cancelling a restrictive measure in respect of the criminal case;
  • whether there are grounds for the court’s examination of the criminal case concerning a serious or very serious offence to be conducted with the participation of a jury.

The last paragraph precisely states that the court is to consider the question whether there are sufficient grounds to impose a preventive measure against the defendant. In this case, given the defendant’s health issue and other circumstances, the court could have changed the preventive measure of arrest to a measure not involving his confinement.

The first instance court violated B.Aliyev’s right to freedom, and this violation was upheld by the superior courts.

The right to liberty is enshrined in the Article 28 of the Constitution of the Azerbaijan Republic, in the Article 14 of the Criminal Procedure Code, in the Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in the Article 11 of the International Covenant on Civil and Political Rights, in the Article 9 of the Universal Declaration of Human Rights.

This Norm guarantees a fundamental Right among the most important ones: the Right to Liberty and Personal Inviolability. The protection provided by this Norm is strict insofar as this Article provides an exhaustive list of cases involving deprivation of liberty and defines a precise framework for protecting individuals against arbitrary detention. For this purpose, the European Convention for the Protection of Human Rights and Fundamental Freedoms establishes the National Judicial Power as the true guardian of individual liberty. In proclaiming the Right to Liberty, this Article refers to personal liberty in its classical meaning, that is, the physical freedom of an individual.

The ECHR judgment in the case of Kurt vs Turkey from May 25, 1998, states:

The Court notes at the outset the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is precisely for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness. This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5 § 1 circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom. https://hudoc.echr.coe.int/eng#{“fulltext”:[“kurt%20v.turkey”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-58198”]}

The decision of the European Court of Human Rights (ECHR) in the case of Scott vs Spain from December 18, 1996, states:

Detention can be justified in a particular case only if there are direct indications of a public interest which, notwithstanding the presumption of innocence, takes precedence over respect for individual liberty. In the first place, it is incumbent upon the judicial authorities to consider all the circumstances allowing the existence of such an interest justifying an exception to the general norm of respect for individual liberty and to take them into account in their decisions on the requests submitted for their release. https://hudoc.echr.coe.int/eng#{“fulltext”:[“scott%20v.”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-58010”]}

“For this purpose, there must be serious grounds for deprivation of liberty. The Convention stipulates that only a reasonable suspicion that a person has committed a criminal offence can justify deprivation of liberty. Therefore, the reasonable suspicion is an essential element of the Convention’s protection against arbitrary deprivation of liberty. The existence of a reasonable suspicion presupposes the availability of facts or information that could convince an objective observer that a person could have committed the offence” (Michele de Salvia, Case-law of the European Court of Human Rights, St. Petersburg, 2004).

The Right to Personal Liberty should be the rule; deprivation of liberty prior to a judicial verdict should be the outright exception.

The preventive measure selected against Bahruz Aliyev was not legitimate and lawful, and the courts considering that criminal case did not take that, as well as other circumstances, into account.

 The Article 416.0 of the Azerbaijan Republic Code of Criminal Procedure outlines the competence of the Appeal Court. The Supreme Court shall have the right to set aside or amend the judgment or decision of the court of first instance or appeal in the following cases:

  • if the court refused, without any grounds, to examine evidence submitted by a party to the criminal proceedings which could be of importance for the full, thorough and objective examination of the charge;
  • if the court did not examine the evidence in accordance with Articles 143-146 of this Code;
  • if the court judgment as to the guilt of the convicted person or the innocence of the acquitted person is based on inadmissible evidence;
  • if the court convicted the accused although the ingredients of a criminal offence were lacking;
  • if the court made an error in classifying the act committed;
  • if the court sentenced the accused without taking account of aggravating or mitigating circumstances.

Upon the existence of the above grounds, the Court of Cassation may overturn or modify the judgment of the Appeal Court. Despite the availability of those grounds in this case, the Cassation Court did not overturn or modify the judgment of the Appeals Court, but upheld it. The Cassation Court, otherwise referred to as the “court of right,” must verify the compliance of the Appeal Court’s ruling with the Criminal Procedural Law.

According to the Article 419.1 of the Azerbaijan Republic Code of Criminal Procedure, when conducting its substantive examination of the complaint or appeal, the Supreme Court shall only verify whether the rules of criminal law and of this Code on points of law are applied correctly or not.

Despite the norms of the Criminal Procedural Law, the Supreme Court of the Azerbaijan Republic, as well as the inferior courts, did not fulfill its legal duties, thereby also violating the defendant’s Right to Freedom нарушив в отношении обвиняемого право на свободу.

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20 years of imprisonment imposed on two armenian prisoners of war

20 YEARS OF IMPRISONMENT IMPOSED ON TWO ARMENIAN PRISONERS OF WAR

Ludwig Mkrtchyan and Alesha Khosrovyan

Analysis of violation of law during 2 Armenian prisoners of war judicial proceedings 

Baku Military Court

Case №1-1(093)-104/2021

August 2, 2021

Presiding judge: Elbey Allahverdiyev

Judges: Jamal Ramazanov, Rafiq Abbasov

Defendants: Ludwig Mkrtchyan, Alesha Khosrovyan

Defenders: Tofiq Aslanov, Arzu Javadov

Victims:  Elshan Islamov, Elman Hajiyev, Yashar Abdulaliyev, Zahid Hasanov, Rauf Qafarov, Zaur Rzayev, Habib Kazimov, Famil Aliyev, Kamil Babayev, Qarib Valiyev, Huseyn Javid

Victims’ assignees: Khanbala Askerov, Yegyana Yediyarova

Victim’s representative: Rashad Guliyev

The State Prosecutor: Mahir Abbasov, a Counsellor of Justice and Senior Assistant of the Prosecutor General of the Azerbaijan Republic

In September 2020, there were the violent hostilities between Azerbaijan and Armenia in and around Karabakh. As a result of the 44-day-war, Azerbaijani soldiers liberated several towns and many villages in Karabakh and the territory adjacent to it.  Dozens of Armenian soldiers were captured in the course of military operations and were convicted and sentenced to the various terms of imprisonment.

Ludwig Mkrtchyan, born in 1969 in Nakhchivan in the Azerbaijan Republic, a citizen of the Republic of Armenia, currently held in a temporary detention facility of the State Security Service of the Azerbaijan Republic, was charged with committing crimes under the articles:

  • 29,120.2.1 (Attempt of deliberate murder committed by group of persons, on preliminary arrangement by group of persons, by organized group or criminal community);
  • 112 (Imprisonment in infringement of international law norms);
  • 113 (Application of tortures);
  • 2 (Application to a persons provided in article 115.1 of the present Code, tortures, severe or brutal manipulation with them, implementation of medical, biological and other researches, including withdrawal of bodies for transplantation, and also their use as a barrier for protection of armies or objects, or maintenance as hostages, as well as attraction of civilians to forced hard labor or compulsory moving from places of a lawful settlement for other purposes);
  • 3 (The acts provided by articles 115.1 and 115.2 of the present Code, entailed to death of persons or causing of heavy harm to their health);
  • 2.1 (Deliberate murder committed by group of persons, on preliminary arrangement by group of persons, by organized group or criminal community);
  • 2.3 (Deliberate murder of a victim in connection with implementation of a given person of service activity or performance of public debt);
  • 2.12 (Deliberate murder on motive of national, racial, religious hatred or enmity);
  • 29,120.2.1 (Attempt of deliberate murder committed by group of persons, on preliminary arrangement by group of persons, by organized group or criminal community);
  • 29,120.2.3 (Attempt of deliberate murder of a victim in connection with implementation of a given person of service activity or performance of public debt);
  • 29,120.2.7 (Attempt of deliberate murder of two or more persons);
  • 29, 120.2.12 (Deliberate murder committed on motive of national, racial, religious hatred or enmity);
  • 3.2 (Smuggling committed on preliminary arrangement by group of persons);
  • 2.1 (Illegal purchase, transfer, selling, storage, transportation or carrying of fire-arms, accessories to it, supplies (except for the smooth-bore hunting weapon and ammunition to it), explosives committed on preliminary arrangement by group of persons);
  • 2.2 (Illegal purchase, transfer, selling, storage, transportation or carrying of fire-arms, accessories to it, supplies (except for the smooth-bore hunting weapon and ammunition to it), explosives committed on preliminary arrangement by group of persons repeatedly);
  • 1 (Creation of armed formations or groups, which are not provided by the legislation of the Azerbaijan Republic, and also participation in their creation and activity, supplying them by weapon, ammunition, explosives, military engineering or military equipment),
  • 3 (Creation of armed formations or groups, which are not provided by the legislation of the Azerbaijan Republic entailed to destruction of people or other heavy consequences);
  • 2 (Crossing of protected frontier of the Azerbaijan Republic without established documents or outside of check point of frontier, committed on preliminary arrangement by group of persons or organized group either with application of violence or with threat of its application) of the Criminal Code of the Azerbaijan Republic.

Alesha Khosrovyan, born in 1967, a citizen of the Republic of Armenia, presently kept in the temporary isolation ward of the State Security Service of the Azerbaijan Republic, was accused of committing crimes under the Articles 115.2, 115.3, 206.3.2, 228.2.1, 276 (Espionage), 279.1 and 318.2 of the Criminal Code of the Azerbaijan Republic.

According to the investigation, Ludwig Mkrtchyan violated the International Legal Norms, deprived people of their freedom, tortured them physically and psychologically, inflicted serious harm to the health of prisoners and other individuals protected by the International Humanitarian Law, treated them with cruelty and brutality, committed premeditated murder based on ethnic hatred, and smuggled, illegally crossed the State border of the Azerbaijan Republic, participated in the illegal armed groups, and unlawfully acquired, carried, stored weapons and ammunition.

It is also specified in the indictment that the illegal armed formations formed by Ludwig Mkrtchyan consisted of the Armenian nationalists. Having colluded with others to commit a crime, L. Mkrtchyan captured Ismayil Ibrahimov (born in 1962) and Yashar Mehdiyev (born in 1963), a resident of Barda, and kept them captive in a forest house in Khojaly from July 12 to July 27, 1991, constantly hitting them on various parts of their bodies with machine guns and iron bars, as well as with fists and kicks, forcing them to sleep with their hands tied, pouring gasoline on them from head to toe, letting them eat only a piece of dry bread a day, keeping them hungry, and also torturing them psychologically.

Moreover, having entered into a criminal agreement with other individuals in the course of military actions on August 31, 1993, he brutally and inhumanly treated a prisoner, Habib Kazimov, a former soldier of military unit No. N, who was illegally held in a prison in Shusha. From March 1994 to March 1995, he constantly hit him on various parts of his body with a rifle, wooden and iron bars, fists and kicks, made him perform hard labor, once a day allowed him to eat some dry bread, and tortured him psychologically.

He was torturing and inhumanly treating the captive soldier Elman Hajiyev in the Kelbadjar region on September 25, 1993, illegally keeping him, making him work at the construction site of the self-proclaimed defense minister of Nagorno Karabakh, Samvel Babayan, giving him only dry bread once a day, not allowing him to rest, constantly beating him with machine guns, wooden and iron bars, fists and kicks on various body parts, causing him severe pain.

Ludwig Mkrtchyan committed the same actions on January 2, 1994, against the captive soldier of military unit No. N, Famil Aliyev, on January 5, 1994, against the captive soldier of military unit No. N, Huseyn Javid, on February 14, 1994, against Kamil Babayev, on February 16, 1994, against Yashar Abdulaliyev, on March 8, 1994, against Zahid Hasanov, on July 7, 1994, against Rauf Qafarov, December 28, 1998, against Elshan Islamov, on September 13, 1999, against a resident of Barda region, Garib Valiyev, brought to the city of Yerevan of the Republic of Armenia.

Ludwig Mkrtchyan was also part of a separatist-minded organization called “Yerkrapa”,” established in 1993, and participated in the large-scale combat operations at Goranboy, Terter, Agdam, and Fuzuli districts in April 2016, having illegally crossed the State border of Azerbaijan.

On September 27, 2020, he came up to a military post in Yerevan to take part in the military operations against Azerbaijan, there he received the relevant weapons and illegally crossing the State border through the Lachin corridor headed to Azerbaijan.

On October 20, 2020, he participated in a raid on soldiers of the Armed Forces of Azerbaijan, during which Firavan Askerov, a soldier, received a fatal wound with a bullet penetrating through his heart, as a result of which Askerov died.

Alesha Khosrovyan’s accusations were related to the fact that on August 31, 1993, together with Ludwig Mkrtchyan and others, he used torture and inhuman treatment against a captive soldier of the AR Armed Forces, Habib Kazimov, on January 2, 1994, to the soldier Famil Aliyev, on January 5, 1994, to Huseyn Javid, on February 14, 1994, to Kamil Babayev, on March 8, 1994, to Zahid Hasanov, on April 27, 1994, to Zaur Rzayev, on July 7, 1994, to Rauf Qafarov. On October 3, 2020, with the purpose of participation in military operations against Azerbaijan, which began on September 27, 2020, he arrived in Jabrayil City illegally crossing the state border of Azerbaijan while being a member of “Yerkrapa”, a separatist organization established in 1993.

 

As stated in the verdict:

Defendants’ testimonies:

In the course of the preliminary investigation, the accused, Ludwig Mkrtchyan, pleaded guilty. During the trial, he pleaded guilty only to the illegal crossing of the Azerbaijani State border and confirmed his testimony provided during the investigation.

In the course of the preliminary investigation, the accused Alesha Khosrovyan also pled guilty. At the trial, he pleaded guilty only to the illegal crossing of the Azerbaijani State border and confirmed his testimony provided during the investigation.

 

Victims’ testimonies:

Mr. Kamil Babayev, a citizen of Azerbaijan, who was interrogated as a victim at the trial, has testified that he was called up for active military service at the military commissariat in Sabirabad on 4 January 1994. On January 15, 1994, he was captured in the area of Kelbadjar where he was beaten by a group of Armenians until he fainted. When he became conscious, he had his hands tied. He had been beaten by ethnic Armenians for three days. Then, K.Babayev was brought to Kelbadjar, and then to a cell in the Agdam police department. Afterwards, Babayev was transported to the children’s clinic in Khankendi, from there to the prison in Shusha. In December 1995, he was released from captivity with the help of the Red Cross. The victim also testified that among the individuals of Armenian nationality who subjected him to torture and inhuman treatment were people by the names Lesha, Lekha, Roba, Vanya, Kamo, Samvel, and others. The victim described the appearance of a certain Lesha, who tortured him and was particularly cruel at that time. He recognized Alyosha Khosrovyan as Lesha and Ludwig Mkrtchyan as Lecha. While in Shusha prison, they tortured him, either together or separately.

Rauf Qafarov, Famil Aliyev, Zahid Hasanov, Habib Kazimov, Huseyn Javid, Garib Valiyev, Elshan Islamov, Elman Hajiyev, Yashar Abdulaliyev, who were interrogated as victims at the trial, testified that, while in captivity, they had been tortured by the individuals of Armenian nationality. Many of them mentioned the names Lesha, Lekha, and others.

Yashar Abdulaliyev added to his testimony that while he had been in Shusha prison, a policeman by the name of Zhirik and others had beaten him. All the victims were released from captivity between 1995 and 2000.

Yegana Yediyarova, the legal successor of the victim, who was interrogated in the court, testified that her husband, I. Ibrahimov, worked as a chief mechanic at the sewing department in the city of Barda in 1991. Having gone together with his colleague to get material for their work, they were taken captive by individuals of Armenian nationality in the vicinity of the Shusha district. They were kept in the forest near Khojaly for several days and then released. Upon their release from captivity, I. Ibrahimov and his friend revealed that they had been tortured in captivity. Then, she saw numerous injuries on her husband’s body. On December 25, 2020, I. Ibrahimov died due to coronavirus infection.

Hanbala Askerov, the father of the deceased Firavan Askerov, his legal successor, who was questioned in the court, testified that his son had been drafted by the Sabirabad military commissariat to active military service in April 2019. Firavan Askerov was sent to the front line during the military operations that began on September 27, 2020. On October 20, 2020, Khanbala Askerov found out that his son had been killed in a firefight between Azerbaijani and Armenian soldiers.

 

Witnesses’ testimonies:

Jeyhun Velibekov, interrogated as a witness at the trial, testified that he and his fellow soldiers Elnur Suleymanov, Turan Davudov and Aydin Memishev were on duty in the Jabrayil district on October 3, 2020. They saw an UAZ vehicle approaching and went out on the road to see where the car was going. When the car approached them, a soldier in Armenian military uniform got out, they mistakenly took Jeyhun Velibekov and others for Armenian military personnel and started speaking Armenian. The Azerbaijani soldiers asked him to surrender in Russian. He didn’t manifest any resistance and relinquished his weapon. During the search of his car, they found some automatic rifles and cartridges. In the course of interrogation, the soldier admitted that his name was Alyosha, he was a citizen of the Republic of Armenia, who had volunteered to fight against the Azerbaijani military and had knowledge of the Azerbaijani language.

The witnesses Elnur Suleymanov, Turan Davudov, and Aidyn Memishev provided the same kind of testimonies.

 

Some other evidences:   

 In the criminal case, there are protocols of identification, according to which the victims Kamil Babayev, Rauf Qafarov, Famil Aliyev, Zahid Hasanov, Habib Kazimov, Huseyn Javid Zaur Rzayev, Garib Valiyev, Yashar Mehdiyev, Elshan Islamov, Elman Hajiyev, and Yashar Abdulaliyev identified the accused individuals and stated that Ludwig Mkrtchyan was Lekha, and Alesha Khosrovyan was Lesha.

The protocols of confrontation between the suspects (accused) and victims also confirm the victims’ words.

The testimonies verification protocols, made on the spot, confirm the fact that the Azerbaijani soldiers were illegally detained by the Armenian military, and that Ludwig Mkrtchyan and Alesha Khosrovyan subjected them to torture and inhuman treatment.

According to the protocol of examination dated May 7, 2021, there is a tattoo of dark green color inscribed in Russian letters “LMM” on Ludwig Mkrtchyan’s left hand, between his thumb and forefinger.

Based on the forensic medical expertise dated April 30, 2021, it is clearly seen that there are scars on the left eyebrow and on the lower ankle of the left leg of Famil Aliyev. These injuries were caused with a blunt object, the time and conditions of their infliction correspond to what he said, according to the degree of severity these injuries are related to the lesions that resulted in a short-term health disturbance.

According to the forensic medical examination expertise from December 28, 2012, there are scars on Elshan Islamov’s right leg and he has three broken teeth. These injuries were caused with a blunt object. The time and conditions of infliction correspond to what he said, according to the degree of severity these injuries are related to the lesions that resulted in a short-term health disturbance.

According to the forensic medical expertise from February 4, 2003, Huseyn Javid lost his vision in both eyes due to cataracts; this disease was caused by the trauma (beating on the head and eyes with a blunt object) during his captivity. The severity of the injuries were classified as serious lesions causing significant harm to his health.

The forensic medical examination report dated December 7, 2005, says that Zaur Rzayev’s nose fracture, deviation of septum, and breathing difficulties have been detected. These injuries were made with a blunt object, the time of infliction refers to April 28, 1994, and the degree of injuries are considered to be light.

According to the forensic medical expertise report dated January 22, 2007, the injuries were found on Yashar Abdulaliyev’s right leg and back, and they were inflicted with a cutting instrument (a knife, glass or iron bars) on February 19 and May 21, 1994.  The degree of its gravity has not been established due to their lightness.

The forensic medical expertise dated May 12, 2010, indicated that as a result of the injury incurred to the right side of Habib Kazimov’s head, he had an astheno-vegetative state, a syndrome of mental decay. This injury could have been caused by a projectile rupturing, and its fragments penetrating into his head. The time of the injuries corresponds to August 31, 1993. In terms of severity, these injuries were considered to be less significant.

The forensic medical expertise dated October 20, 2020, concluded that the deceased Firavan Askerov died as a result of a gunshot wound in the chest area. In terms of severity, the wound is considered to be grave, as it resulted in death.

The comprehensive out-patient forensic psychiatric and forensic psychological examinations carried out on February 26, 2021, and January 15, 2021, respectively, revealed that either Ludwig Mkrtchyan or Alesha Khosrovyan did not suffer from any mental or psychological disorders.

In the course of the forensic medical examination carried out on February 25, 2021, it was determined that Ludwig Mkrtchyan’s body injuries have been caused by a bullet within the period specified by Mkrtchyan himself (4-6 months prior to the examination).

The forensic medical examination dated February 5, 2021, revealed that there were old deformations in the lower part of Alesha Khosrovyan’s body, and no other injuries have been recorded.

 

The court verdict  

The Court found in the case of each defendant additional aggravating circumstances. On August 2, 2021, the Baku Military Court sentenced the accused:

  • Ludwig Mkrtchyan was found guilty of committing crimes under the Articles 112, 113, 3, 120.2.1, 120.2.3, 120.2.12, 29,120.2.1, 29,120.2.3, 29,120.2.7, 29,120.2.12, 206.3.2, 228.2.1, 228.2.2, 279.1, 279.3 and 318.2 of the Azerbaijan Republic Criminal Code, and sentenced him to 20 years of imprisonment, while the first 10 years were to be served in the closed Gobustan prison, and the remaining 10 years in a strict regime colony.
  • Alesha Khosrovyan was found guilty of committing crimes under the Articles 3, 206.3.2, 228.2.1, 276, 279.1 and 318.2 of the Azerbaijan Republic Criminal Code, and sentenced him to 20 years of imprisonment, while the first 7 years were to be served in the closed Gobustan prison, and the remaining 13 years in a strict regime colony.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. We must first consider the charges brought against him. As can be seen, Ludwig Mkrtchyan, besides being subjected to torture and inhuman treatment, was charged with murder and attempted murder. The verdict states that in the course of the investigation and then at the trial Khanbala Askerov, the father of the killed soldier Firavan Askerov, participated as the legal successor, testifying that his son was drafted for the military service, sent to the front line on September 27, 2020, and on October 20, 2020, the news of his death was received.

Further, the widow of the victim Ismail Ibrahimov, also participated at the trial, testified that after her husband’s release from captivity his body had been covered with numerous injuries. I. Ibrahimov died as a result of a coronavirus infection in 2020. Ibrahimov’s wife did not mention any names of those responsible for causing injuries to her husband.

According to the Article 87.1 of the Code of Criminal Procedure of the Azerbaijan Republic, if there are sufficient grounds to show that the individual suffered direct nonmaterial, physical or material damage as a result of the act provided for in criminal law, he shall be referred to as a victim.

In this criminal case, there are only two aforementioned legal successors of the victims. No other deaths and murders were mentioned in the verdict. As in the first or second case, Ludwig Mkrtchyan has not been involved in; the deaths of Ismail Ibrahimov and Firavan Asgarov had nothing to do with him. The fact of L. Mkrtchyan’s participation in the combat operations against the Azerbaijani army is by no means denied, but what murders this defendant has been charged with is not stated in the verdict.

All of the above cast doubt on the legitimacy of the charges of murder and attempted murder, as the investigation did not provide the court with concrete evidence. Such evidences are abstract, not direct or irrefutable. It is obvious that hostilities result in deaths, but in order to lay a concrete charge, there must be definite evidences.

Further, the accusation of Alesha Khosrovyan in espionage seems dubious. According to the Article 276 of the Azerbaijan Republic Criminal Code, espionage is transfer, as well as kidnapping, collecting or storage with the purpose of transfer to the foreign state, foreign organization or their representatives of a data which are a state secrets, and also transfer, kidnapping with a purpose of transfer or collecting by orders of special services of the foreign states of other data for their use to detriment safety of the Republic of Azerbaijan, if espionage is committed by a foreigner or person without citizenship. 

The verdict states that Alesha Khosrovyan used to gather information concerning the number and location of the Azerbaijani army as well as the availability of their military equipment. However, the verdict does not specify through which channels the secret information has been transferred to the Armenian special services and whether it has constituted a State Secret. In the criminal case, there is no confirmation of the experts whether this information represents the State Secret or it does not. There are neither dates indicated in the verdict, nor the timeframes of the committed espionage.

The charges, as we see, embrace a sufficiently long period of time, starting in 1991 and ending in 2020. The charges are brought under the current Criminal Code of the Azerbaijan Republic. Either the investigation or court have not differentiated the crimes according to the time of their commission. The investigation and the court have not differentiated the crimes according to the time of their commission. Thus, the crimes committed prior to the entry into force of the Criminal Code currently in effect (before 2000) were to be charged under the Criminal Code that was in force before 2000, and the crimes committed after 2000 were to be qualified under the Criminal Code of nowadays.

 

According to the Article 10.1 of the Azerbaijan Republic Criminal Code,

The criminality and punish of action (action or inaction) shall be determined by the criminal law, exercised during commitment of this action (action or inaction). No one shall be applied to criminal liability for action, which was not admitted as a crime at the time of committing it.

The Article 10.2 of the Azerbaijan Republic Criminal Code states,

Time of committing socially dangerous action (action or inaction) shall be time of committing a crime irrespective on time of approach of consequences.

This means, in other words, that the law applies only for the period of time following its enactment. The law does not extend to the deeds of past, that is, it does not have retroactive force. It is only in those cases where the law removes the criminality of the act, mitigates the punishment, or improves the position of the perpetrator in any other way, that it extends its force to all past events related to the crime and its conviction.

It is remarkable that the defendants’ testimonies in the verdict were outlined in a few sentences. It does not contain their testimonies either taken in the course of investigation or at the trial, and the victims’ testimonies have been written practically word by word, all of them identical.

Perhaps, there were facts of inhuman treatment by the accused, but 20 years later could the victims and witnesses recognize their torturers as those who had tortured them then? Those facts can hardly ever be proven. The investigation should have had such evidences that directly indicated that it had been done by the accused who had committed the crimes.

The Article 139 of the Criminal Procedure Code of the Azerbaijan Republic sets out the circumstances that must be proven, namely:

  • the facts and circumstances of the criminal act;
  • the connection of the suspect or accused with the criminal act;
  • the criminal ingredients of the act provided for in criminal law;
  • the guilt of the person in committing the act provided for in criminal law;
  • the circumstances which mitigate or aggravate the punishment for which
  • criminal law provides;
  • if there is no other circumstance covered by this Code, the grounds for a
  • request by a party to the criminal proceedings or another participant in the proceedings.

The evidences obtained in a criminal prosecution must be fully comprehensively and objectively examined. At the time of verification, these evidences should be analyzed and compared with each other, and new evidence should be compiled and the reliability of the origin of the obtained evidence must be determined (the Article 144 of the Azerbaijan Republic Code of Criminal Procedure).

All evidence shall be assessed as to its relevance, credibility and reliability. The content of all evidence collected for the purposes of prosecution shall be assessed in terms of whether it is sufficient to substantiate the charge (the Article 145.1 of the Azerbaijan Republic Code of Criminal Procedure). If suspicions which emerge during the process of proving the charge cannot be removed by other evidence, they shall be interpreted in favour of the suspect or accused (the Article 145.3 of the Azerbaijan Republic Code of Criminal Procedure).

The gaps made by the preliminary investigative body were not eliminated by the court. Despite the fact that the Article 299.3.2 of the Azerbaijan Republic Code of Criminal Procedure stipulates that one of the questions considered by the court in the preliminary hearing is whether the requirements of the Criminal Code have been violated in the course of the pre-trial investigation.

The following matters relating to the results of the court’s examination of the case shall be discussed by the court (or examined by the judge) in the deliberation room:

  • whether the criminal act is proved;
  • whether it is proved that the act committed by the accused has a criminal
  • content;
  • whether it is proved that the accused was connected with the commission of the offence;
  • whether the accused is proved guilty of committing the offence;
  • whether the act committed by the accused corresponds to the ingredients of the offence with which the accused is charged under the relevant provision of criminal law;
  • whether there are circumstances that preclude the act being an offence;
  • whether there are circumstances aggravating or mitigating the criminal responsibility of the accused;
  • whether there are grounds for exonerating the accused from criminal responsibility;
  • whether the accused should be punished for the act committed;
  • whether there are grounds for punishing the accused for reoffending;
  • which punishment to impose on the accused (including consideration of previous offences, the total number of offences, the total length of sentences, the combination of penalties, calculation of the length of sentences, an alternative penalty, reduction of sentence, the jurors’ recommendation of a lighter sentence instead of the statutory penalty provided for in respect of this offence, and the possibility of imposing a conditional sentence);
  • whether the accused should serve the sentence.

The court judgment shall be lawful and well-founded (the Article 349.3 of the Azerbaijan Republic Code of Criminal Procedure).

According to the Article 349.5 of the Azerbaijan Republic Code of Criminal Procedure, in the following cases the court judgment shall be considered well-founded

  • if the conclusions at which the court arrives are based only on the evidence examined during the court’s investigation of the case;
  • if the evidence is sufficient to assess the charge;
  • if the facts established by the court are consistent with the evidence investigated.

The commented verdict was not either well-grounded or legitimate.

In this case, the Court also treated the criminal case superficially, as in other “sensitive cases,” did not resolve the above issues, did not properly evaluate the sufficiency of the evidences, thereby depriving the defendants of their right for a fair trial, as enshrined in the Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The principle of the Norm of Law is an important pillar for the States Members of the CoE. This Norm guarantees the right to a fair trial and therefore the right of each participant in a trial to the proper administration of justice. There are two aspects on which the judicial practice concentrates, mainly they concern evidentiary matters and respect of the defendants’ rights. In the area of evidentiary matters, the following principles emerge from jurisprudence, which only reaffirm the principles that govern criminal proceedings. First of all, the burden of proving must be on the prosecution, and doubts must be interpreted in favour of the accused. As such, it follows that it is incumbent upon the prosecution to provide evidence sufficient to substantiate a claim of guilt.

It was written in the judgment of the European Court of Human Rights in the case of Kraska v. Switzerland from April 19, 1993:

According to Article 6 para. 1 (art. 6-1) of the Convention everyone is entitled to a fair trial by an impartial tribunal. The right to a fair hearing includes, inter alia, the right for the parties to the proceedings to submit to the court observations which they regard as relevant to their case. This right is, however, effective only if the submissions made to the court are also duly considered by the court. – https://hudoc.echr.coe.int/eng#{“fulltext”:[“kraska%20v.Switzerland”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57828”]}

The fairness requirements apply to the process as a whole and are not limited to adversarial hearings. The right to a fair trial is also enshrined in the Article 14 of the International Covenant on Civil and Political Rights. This fundamental right was violated in the course of that trial.

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10 more Armenian prisoners of war were convicted with the International Law violations

10 MORE ARMENIAN PRISONERS OF WAR WERE CONVICTED WITH THE INTERNATIONAL LAW VIOLATIONS

Armenian prisoners of war

Analysis of violation of law during 10 Armenian prisoners of war judicial proceedings

Baku Grave Crimes Court

Case №1(101)-1258/2021

July 29, 2021

Presiding judge: Faiq Qaniyev

Judges: Mirza Khankishiyev, Ilham Mahmudov

Defendants: Robert Gevorkyan, Karen Aramyan, Andranik Sukiasyan, Eduard, Giragosyan, Gevorg Martirosyan, Volodya Hakobyan, Tigran Avakyan, Ovsep Manukyan, Grigor Saqatelyan, Vagarshak Avetisyan.

Defenders: Parviz Musayev, Emin Babayev, Faiq Dunyamaliyev, Guldisar Karimova, Togrul Mammadov, Nardana Farzaliyeva, Musa Hasanov, Aqil Nuriyev, Soyankhan Mustafayev, Ayazbey Ahmadov.

State prosecutors: Vugar Guliyev, the Senior Prosecutor-Methodist of the State Prosecution Support Department  in Serious Crimes Courts of the General Prosecutor’s Office of the Azerbaijan Republic, and Ziya Mansurov, the prosecutor of the same Department.

In September 2020, there were the violent hostilities between Azerbaijan and Armenia in and around Karabakh. As a result of the 44-day-war, Azerbaijani soldiers liberated several towns and many villages in Karabakh and the territory adjacent to it.  Dozens of Armenian soldiers were captured in the course of military operations and were convicted and sentenced to the various terms of imprisonment.

Robert Gevorkyan, born on 1998, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1 (Terrorism, committed on preliminary arrangement by group of persons, by organized group or criminal community), 214.2.3 (Terrorism, committed with application of fire-arms or subjects used as a weapon), 228.3 (Illegal purchase, transfer, selling, storage, transportation and carrying of fire-arms, accessories to it, supplies or explosives, committed by organized group), 279.2 (The attack on enterprises, establishments, and organizations or on separate persons by structure of formations or groups which is provided by articles 279.1 and 279.1-1 of the present Code) and 318.2 (Crossing of protected frontier of the Azerbaijan Republic, committed on preliminary arrangement by group of persons or organized group either with application of violence or with threat of its application) of the Criminal Code of the Azerbaijan Republic.

Karen Aramyan, born on 1995, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Andranik Sukiasyan, born on 1997, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Eduard Giragosyan, born on 1992, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Gevorg Martirosyan, born on 1999, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Volodya Hakobyan, born on 1999, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Tigran Avakyan, born on 1998, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Ovsep Manukyan, born on 1993, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Grigor Saqatelyan, born on 1992, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Vagarshak Avetisyan, born on 1996, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

According to the investigation, Robert Gevorkyan, Karen Aramyan, Andranik Sukiasyan, Eduard Giragosyan, Gevorg Martirosyan, Volodya Hakobyan, Tigran Avakyan, Ovsep Manukyan, Grigor Saqatelyan and Vagarshak Avetisyan and some others, all citizens of the Republic of Armenia, as part of an organized criminal group, have illegally crossed the State border of the Azerbaijan Republic, and acquired, stored, and carried the firearms, as well as its accessories, ammunition and explosives. Thus, the aforesaid Armenian citizens had been committing the mentioned crimes from November 27, 2020, till December 13, 2020.

The defendant, Robert Gevorkyan, interrogated in the course of the trial, did not plead guilty to the incriminated crimes and declared his disagreement with the charges at all. He revealed that he received a phone call on November 26, 2020, and was summoned to the military base. On November 27, 2020, R. Gevorkyan went there in Voskeask village. At the place, he was given a military uniform and a Kalashnikov automatic rifle. He explained that the provided weapons were not issued illegally, it had its own registration number, and the soldier signed the document upon receiving it. In addition to weapons, he was also given a helmet, 120 bullets and four magazines with ammunition. Once the soldiers had been issued their weapons, they were told to go to the town of Kajaran in Armenia, in order to replace other soldiers at the posts, and then should return. There had been about 100 servicemen on the bus who had not been aware of the fact that the bus had been going to Lachin. They only understood it when the bus stopped. They arrived at the location between the cities of Lachin and Hadrut. Then, for about 3-4 hours, they climbed up the mountain. At the summit they were ordered to stop. Once they were up, other Armenian soldiers went down. Their commander was the Lieutenant Colonel Arsen Ghazaryan. The soldiers were ordered not to open fire. Due to the fog on the top of the mountain while they had been there for 16 days they couldn’t see anything.  Ghazaryan was given provisions by the Russian peacekeepers, who brought the food to the tent located down the hill, and then he collected it there. Gevorkyan testified that he had never been to Lachin before and knew that it was Azerbaijani territory. On December 13, 2020, the military was ordered to go down. They were to be taken to Armenia. Once down, the Armenian military encountered the Azerbaijani soldiers of the “Yashma” military unit. The Azerbaijani commander ordered them to hand over their weapons, and although promised to pass them to the Russian peacekeepers but he did not.

In response to questions posed by the participants of the trial, the accused Robert Gevorkyan said that during his arrest he had not been given the opportunity to contact his family. The last time he spoke to his family was on December 10, 2020. He did not confirm the part of his testimony provided during the investigation, in which he spoke about the order of using the weapon.

Karen Aramyan, who was interrogated as a defendant, pleaded not guilty to the charges and testified that he received a summons from the military commissariat of the city of Gyumri in November 2020. On November 27, 2020, he went directly there. Along with other soldiers they were brought on a bus to a military unit in Gyumri. There, they were given military uniforms and a Kalashnikov automatic rifle. Further, Karen Aramyan’s testimony did not differ from Robert Gevorkyan’s one.

The defendant Andranik Sukiasyan interrogated at the trial, pleaded not guilty to the charges and testified that on November 27, 2020, in accordance with the summons, he had gone to the military registration and enlistment office in Gyumri. Further, Sukiasyan’s testimony did not differ from the testimonies of the previously interrogated defendants. A. Sukiasyan answered to the questions of the trial participants that he had not participated in any military operations. Their commander, Colonel Lieutenant Arsen Ghazaryan did not order to carry out any explosions, they were ordered not to use weapons, and he did not provide testimony on the use of weapons within the investigation.

The defendant, Eduard Giragosyan, interrogated at the trial, pleaded not guilty to the accusations and testified that on November 26, 2020, he was summoned to the military commissariat in Gyumri together with the other defendants. Arsen Ghazaryan, a Lt-Colonel, was in charge of the soldiers. The soldiers were given military uniforms and Kalashnikov automatic rifles. Their goal was to replace the Armenian military personnel on duty. Further, E. Giragosyan’s testimony did not differ from that of the previously interrogated defendants. On December 13, 2020, the Armenian soldiers were detained by the Azerbaijani military unit “Yashma”.

Answering the trial participants’ questions, E. Giragosyan replied that he could not refuse and could not go to the military unit, otherwise a criminal case would have been initiated against him. There were drones flying over there, but they were told that those drones were the ones of Russian peacekeepers in order not to be afraid of. He contacted his family only once through an Armenian mobile operator throughout the period of his arrest. The defendant also testified that they had not been ordered to carry out any explosions. He did not confirm his testimony provided at the inquiry related to this part. The defendant did not know that he had been on the territory of Azerbaijan.

The defendant Gevorg Martirosyan interrogated at the trial didn’t plead guilty to the charges and testified that on November 27, 2020, having received a summons, headed to the military unit in Gyumri. Martirosyan’s testimony was similar to those of the previously interrogated defendants.

In response to the participants of the trial questions, G. Martirosyan replied that he had been unaware that the territory belonged to Azerbaijan, they just had fulfilled their duty. There had been no people in that area, they had only eaten their food for a period of 13-14 days. No orders to carry out explosions had been given to them. Although they were aware of the end of the war but they were told that these territories belonged to Armenia.

The defendant Volodya Hakobyan, interrogated in the court, pleaded not guilty to the charges and testified that on November 26, 2020, he received a call from the military registration and enlistment office, and on November 27, 2020, he arrived at the military unit. They were given the military uniforms and Kalashnikov automatic rifles. Further, the testimony of the defendant V. Hakobyan did not differ from the testimonies provided by the previously interrogated defendants.

Answering the trial participants’ questions, Volodya Hakobyan replied that if he had not gone to the military unit, he would have been arrested. His task was to guard and observe. He also testified that at the time of his testimony under investigation he remembered the number of his weapon, but at the trial he had forgotten it. They were not ordered to open fire or carry out explosions, on the contrary, they were ordered not to use weapons.

The defendant Tigran Avakyan interrogated at the trial pleaded not guilty to the charges and testified that on November 26, 2020, he received a phone call from the military registration and enlistment office. On November 27, 2020, he went to the military unit where he was given a military uniform, a helmet and a Kalashnikov automatic rifle. Further, Tigran Avagyan’s testimony did not differ from the testimonies provided by the other defendants.

In response to the trial participants’ questions, T. Avakyan replied that due to the end of the war they would not have been able to open fire on the Azerbaijani soldiers. They were not given an order to commit any explosions. He testified that he had not given such testimony in the course of the investigation. The defendant signed the testimony without understanding its meaning at the investigation, therefore he did not confirm that part of his testimony before the court.

The defendant Ovsep Manukyan interrogated by the court pleaded not guilty to the charges and testified that on November 25, 2020, he received a phone call from the military enlistment office and was summoned to the military unit. On November 27, 2020, he went down there. There were about 100 soldiers. All of them were given their military uniforms and Kalashnikov automatic rifles. Their commander was Arsen Ghazaryan, a Lt. Colonel who forbade them to use their firearms. O.Manukyan’s testimony was similar to those of the other defendants. He testified that their task had just been to stand on guard.

The defendant explained that he had been previously called up for the military service, it was four years ago, but he had not gone because he had an exemption from the military service due to his work. However, it was impossible not to go that time, as he would have been threatened with arrest. If he had known that the post he was on did not belong to Armenia, he would have objected and would not have been there. H. Manukyan testified that he had not been to Jabrayil, and he did not provide such statements within the investigation. He was married and had one child. While on duty, he had no opportunity to contact his family.

The defendant Grigor Saqatelyan interrogated in the court did not plead guilty to the charges and testified that, similarly to the other defendants that on November 27, 2020, he went to the military unit upon receiving a summons from the military registration and enlistment office. Further, G. Saqatelyan’s testimony was similar to the testimonies provided by the other defendants.

Answering to the questions posed by the trial participants, the defendant G. Saqatelyan replied that he had known that Karabakh belonged to Azerbaijan, but then they were told that some part of it had been surrendered. However, G. Saqatelyan did not know that he had been on the Azerbaijani territory. The Lieutenant Colonel Arsen Ghazaryan did not issue an order to shoot or carry out explosions. G. Saqatelyan did not provide such a testimony in the course of the investigation. The defendant regretted that he had gone there following a summons from the military commissariat.

The defendant Vagarshak Avetisyan interrogated by the court didn’t plead guilty to the charges and testified that on November 26, 2020, he received a phone call from the military registration and enlistment office and, on November 27, 2020, he went there where he was given his military uniform and other accessories having signed a document upon their receipt. Further, V. Avetisyan’s testimony was similar to the testimonies provided by the other defendants. On December 13, 2020, they were encountered with the Azerbaijani soldiers who ordered them to surrender their weapons. So, they obeyed the order, their hands got tied, and they were made walk for a whole day until reached up some unfamiliar place, a building.

When questioned by the trial participants, the defendant V. Avetisyan answered that he had not participated in any military operations. Even though he had been on duty at the time, he was not sent to the combat. Neither he nor the other soldiers were ordered to shoot or carry out explosions. V. Avetisyan  did not confirm his testimony concerning this part that he gave during the investigation.

In the course of the trial, it was interrogated Anar Abdullayev as a witness who testified that following the act of Armenia’s capitulation from November 9, 2020, they received information about the presence of the Armenian terrorists, diversionists on the liberated territories. The information consisted of the fact that in November and December 2020, a group of armed Armenian terrorists illegally crossed the border at Lachin in order to commit terrorist acts and provocations on the territory of Azerbaijan and, having fortified their positions, settled in the Hadrut district. The Armenian terrorists attacked a base of the mobile operator station belonging to Azerbaijan in Hadrut, as well as several Azerbaijani citizens and servicemen. On December 12, 2020, the alarm sounded in the military base where Anar Abdullayev was serving. The troops were ordered to conduct an anti-terrorist operation in Hadrut. They located the Armenian armed groups. A plan was elaborated to neutralize those groups. Having stayed for a day in the village of Domu, the soldiers headed towards the Armenian fortified positions. They saw about 60 Armenian terrorists between Khojavand and Lachin. The Azerbaijani servicemen suggested that they surrender and lay down their arms. The Armenian terrorists, having realized that resistance was impossible, surrendered. As a result of the antiterrorist operation, 62 Armenian were detained. They were handed over to the relevant bodies, as well as their weapons. A day later, the Azerbaijani authorities continued their anti-terrorist operation searching for the hidden Armenian terrorists in the villages surrounding Khojavand. As a result of that operation, two more Armenian terrorists, Argan Unanyan and David Voskanyan, who were heading towards Lachin, were detained on the territory of Khojavand. They were also handed over to the appropriate authorities for an investigation. Another witness in the case, Sadiq Huseynov, provided the similar testimony to the one given by Anar Abdullayev, which substantiated the testimony of the latter.

According to the reference document issued by the State Security Service of Azerbaijan from December 16, 2020, following the agreement signed between Azerbaijan, Armenia and Russia on November 9, 2020, there were some Armenian armed groups operating in the woodland northwest of Hadrut in the Khojavand region. In this regard, they were created conditions for their elimination. The Russian peacekeepers used a sound amplifier addressed from the air, in harsh weather conditions, and informed them of measures to be taken to eliminate them from the territory. Despite that, the Armenian military have neither liberated the territory, but on the contrary, they set up their positions and committed provocations and sabotage against the military personnel and civilians of Azerbaijan. On December 13, 2020, the Azerbaijani State Security Service carried out an anti-terrorist operation resulting in the detention of 62 Armenian terrorists. Then on December 14, 2020, two more Armenian terrorists, Argan Unanyan and David Voskanyan, were detained.

The results of the forensic ballistic examination, conducted on April 15, 2021, indicated that the weapons seized from the detainees had been suitable for use.

The Criminal case files also reveal that a criminal case was launched against the commander, Lieutenant-Colonel Arsen Ghazaryan, under the Articles 214. 2.1, 214.2.2, 214.2.3, 228.3, 279.2, and 318.2 of the Criminal Code, and with regard to Argan Unanyan and David Voskanyan, it was filed a criminal case under the Articles 214.2.1, 214.2.3, 228.3, 279.2, and 318.2 of the Criminal Code. These criminal cases were allocated to separate proceedings.

In assessing the defendants’ guilts, the Court determined that their dependence on the authorities, both on the official and political sides, and the fact that Eduard Giragosyan has two minor children, and Ovsep Manukyan has one minor child, constituted softening circumstances. The Court did not find any aggravating circumstances in the case.

According to the criminal case records, despite the fact that the defendants were detained on December 13, 2020. Robert Gevorkyan, Karen Aramyan, Andranik Sukiasyan, Eduard Giragosyan, Gevorg Martirosyan, and Volodya Hakobyan were charged on March 26, 2021; Tigran Avagyan, Ovsep Manukyan, Grigor Saqatelyan, and Vagarshak Avetisyan were charged on March 27, 2021. The Court considers that, although the defendants were ordered to be restrained at different times, their freedom was actually limited on December 13, 2020. That is why the term of the sentence will be determined from that date.

On July 29, 2021, the Baku Court of Serious Crimes issued a verdict:

  • Robert Gevorkyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
  • Karen Aramyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
  • Andranik Sukiasyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
  • Eduard Giragosyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
  • Gevorg Martirosyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
  • Volodya Hakobyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
  • Tigran Avakyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
  • Ovsep Manukyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
  • Grigor Saqatelyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
  • Vagarshak Avetisyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.

The verdict also stated that all the accused, once served, were to be forcibly deported from the Azerbaijan Republic.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. The most important principle applying to such criminal cases is the equality of all before the Court and the Law, without any discrimination. Therefore, every detail is very meaningful to an outside observer.

According to the Article 25 of the Azerbaijan Republic Constitution,

  1. All people are equal with respect to the law and law court.

III. The state guarantees equality of rights and liberties of everyone, irrespective of race, nationality, religion, language, sex, origin, financial position, occupation, political convictions, membership in political parties, trade unions and other public organizations. Rights and liberties of a person, citizen cannot be restricted due to race, nationality, religion, language, sex, origin, conviction, political and social belonging.

In the Article 7 of the Law of the Azerbaijan Republic On Courts and Judges states:

As set down in Article 25 of the Constitution of the Republic of Azerbaijan, justice in the Republic of Azerbaijan is administered on the bases principle of equality of everyone before law and court, irrespective of race, nationality, religion, language, sex, origin, proprietary status, public rank, conscience, membership in political parties, trade unions or other civil organizations.

The prohibition of discrimination is also enshrined in the International Legal Norms. The Article 14 of the European Convention on Human Rights states:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

This Principle is also enshrined in the Article 26 of the International Covenant on Civil and Political Rights, as well as in the Article 2 of the Universal Declaration of Human Rights.

The European Court of Human Rights (ECHR) observes this principle in the light of the other Articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

According to the Article 25 of the Azerbaijan Republic Constitution,

  1. Foreign citizens and stateless persons staying in the Azerbaijan Republic may enjoy all rights and must fulfil all obligations like citizens of the Azerbaijan Republic if not specified by legislation or international agreement in which the Azerbaijan Republic is one of the parties.

Let us examine whether this Principle was respected in this criminal case.

The key question for the Court to determine is whether the defendants committed the incriminated crimes. As mentioned above, the witnesses did not identify any specific names in their testimonies. They only testified that 62 Armenian military personnel had been arrested. Whether the accused were among them and, if so, how the witnesses recognized them among the 62 other servicemen remains unclear. Perhaps, their faces were identified in photographs but how accurate the identification of each defendant was, it is not disclosed either.

The judges did not take into account the fact that in each case it was necessary to examine the reasonableness of the suspicion of a person’s involvement in the committed crime. It should be borne in mind, however, that a reasonable suspicion presupposes the existence of sufficient evidence that the person in question could have committed that crime.

According to the Article 139.0 of the Code of Criminal Procedure of the Azerbaijan Republic, during prosecution, the following may be determined only on the basis of evidence:

  • the facts and circumstances of the criminal act;
  • the connection of the suspect or accused with the criminal act;
  • the criminal ingredients of the act provided for in criminal law;
  • the guilt of the person in committing the act provided for in criminal law;
  • the circumstances which mitigate or aggravate the punishment for which
  • criminal law provides;
  • if there is no other circumstance covered by this Code, the grounds for a
  • request by a party to the criminal proceedings or another participant in the proceedings.

The Court considering the criminal case, was unable to provide answers to the above questions due to the insufficiency of the evidence submitted by the investigating body.

In the course of court hearings, several defendants stated that they had not been able to contact their families for the period of their arrest. This is a violation, which is constantly committed by the investigating authorities in the course of criminal proceedings. Thus, the monitoring of “sensitive cases” reveals that in the majority of cases, the authorities of investigation denied the defendants’ right to do so.

Here, it is worth recalling the duties of the investigator. The Article 85.2.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that the investigator shall to inform the suspect from the moment of detention and the accused from the time when he is charged or arrested about their rights, and to explain the reasons for detention, charges or detention on remand, as the case may be.

The detainee, in his turn, has the right to immediately inform his close relatives or other persons, whose relations are of legal interest to him, about his detention or custody, place of custody either by telephone or other means; if the detainee is a foreigner or an individual with no citizenship, he shall immediately inform of his detention or custody the diplomatic mission or consulate of the state of his nationality or habitual residence, or the national or inter-country diplomatic mission of the state of his nationality, which is on the Azerbaijani territory or a national or international organization that took over his or her custody (Article 91.5.6 of the Code of Criminal Procedure of the Azerbaijan Republic).

The Article 84 of the Penalty Execution Code of the Azerbaijan Republic regulates the procedure of detainees’ telephone conversations. Thus, the persons sentenced to imprisonment for a certain period of time are entitled to speak twice a week, and those sentenced to life imprisonment once a week, each time for fifteen minutes. Long-distance telephone calls are paid for from the convict’s personal funds or by his or her close relatives (Article 84.1 of the Code of Criminal Procedure of the Azerbaijan Republic). Upon the inmate’s request, when arriving at a new penal institution, and in exceptional cases, the administration of the institution may allow additional telephone calls (Article 84.2 of the Code of Criminal Procedure of the Azerbaijan Republic).

In addition, the Ministerial Committee of the Council of Europe adopted a Recommendation that updates the European Prison Rules from 2006. These rules include basic legal standards and principles on the management of penitentiary facilities, its staff and the treatment of prisoners. These Principles are the global standard bearer in this field and guide the 47 member States of the Council of Europe in their legislation, policy and practice.

The recommendation regulates in more detail the use of solitary confinement (detention for more than 22 hours a day with no meaningful human contact). This measure should only be used as a last resort and should be used in consideration of a prisoner’s state of health. Since solitary confinement can have very negative effects on a person’s physical and mental health, it must be used within a strictly defined period of time, for as short a period of time as possible.

The Article 2 of the European Prison Rules states, that persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.

The Article 24.1 of the European Prison Rules states, that prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.

As mentioned above, even in the case of solitary confinement, where there is no outside contact, this period should not exceed 22 hours. Otherwise, it may have a negative effect on the prisoner’s condition. However, despite the existence of the National and International Procedural Law, this right was not secured by the investigative body.

In this criminal case, as in most “sensitive cases,” the transparency principle was violated. While the verdict says that the case was heard in open court, in fact the trial was held behind the closed doors, with no presence of any independent journalists, human rights defenders or members of the public. In the light of the 44-day war between Azerbaijan and Armenia, this trial, as all other trials against the Armenian prisoners of war, was of great interest to the public. Its publicity would have confirmed that the criminal case was being handled according to the Law. However, the closed nature of the proceedings resulted in the belief that the trial was unfair.

The transparency of the criminal proceedings is regulated by the Article 27 of the Code of Criminal Procedure of the Azerbaijan Republic, as well as by the Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Article 14 of the International Covenant on Civil and Political Rights.

There is another very important point, which was not taken into account by the Court. There are only the defendants’ testimonies provided at the court hearing and included in the verdict. However, some of the defendants testified that they had not given any testimony at the investigation, that their words had been written down inaccurately. The Court did not react in any way to those statements of the defendants, did not clarify whether the testimonies had been falsified, who had fabricated them, and did not properly evaluate the testimonies given in the course of the trial. The Court also failed to eliminate the contradictions in their testimonies. The objectiveness, impartiality and fairness of the criminal procedure are important principles in the justice administrating.  The courts should examine the criminal cases and other submissions related to criminal prosecution only on the basis of facts, impartially and fairly, in accordance with the Legal Procedures established in accordance with the criminal Procedure Law.

According to the Article 28.4 of the Code of Criminal Procedure of the Azerbaijan Republic, during the criminal proceedings, courts shall perform the following functions:

  • ensure that the parties to the proceedings are able to examine thoroughly, fully and objectively all the circumstances relating to the prosecution;
  • take into consideration circumstances which incriminate or exonerate the suspect or accused as well as circumstances which mitigate or aggravate his criminal responsibility;
  • examine applications presented by the suspect or the accused or by their counsel for the defence concerning their innocence or minimal guilt and the availability of evidence which exonerates them or mitigates their responsibility;
  • examine complaints alleging breach of law during the criminal proceedings;
  • guarantee the right of the parties to criminal proceedings to participate.

The Article 28.6 of the Code of Criminal Procedure of the Azerbaijan Republic states, that the rules concerning the administration of justice may not be unilaterally altered for different cases and persons or in particular circumstances or at given times.

Taking into account all the above, we shall come to the conclusion that the proceedings in this criminal case were not conducted in an objective, impartial and fair manner. Numerous procedural violations and failure to ensure the rights of the accused, regulated by the Constitution of the Azerbaijan Republic, the National substantive and Procedural Law, International Treaties (the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, Recommendations of the Committee of Ministers of the Council of Europe, the European Prison Rules), confirm such a conclusion.

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The legal right norms were violated in respect of two more armenian prisoners of war

THE LEGAL RIGHT NORMS WERE VIOLATED IN RESPECT OF TWO MORE ARMENIAN PRISONERS OF WAR

David Davtyan and Gevorg Sujyan

 Analysis of violation of law during 2 Armenian prisoners of war judicial proceedings 

Baku Grave Crimes Court

Case № 1(101)-1390/2021

July 28, 2021

 Presiding judge: Ali Mammadov

Judges: Telman Huseynov, Siyavush Hajiyev

Defendants: David Davtyan, Gevorg Sujyan 

Defenders: Elnur Salmanov, Khanlar Qafarov

The State Prosecutor: Jovdat Mehraliyev, a prosecutor of the Division for Support of Public Prosecution at the Serious Crimes Courts under the Department for Support of Public Prosecution within the General Prosecutor’s Office of the Azerbaijan Republic

In September 2020, there were the violent hostilities between Azerbaijan and Armenia in and around Karabakh. As a result of the 44-day-war, Azerbaijani soldiers liberated several towns and many villages in Karabakh and the territory adjacent to it.  Dozens of Armenian soldiers were captured in the course of military operations and were convicted and sentenced to the various terms of imprisonment.

Gevorg Sujyan, born on 1989, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 228.2.1 (Illegal purchase, transfer, selling, storage, transportation or carrying of fire-arms, accessories to it, supplies (except for the smooth-bore hunting weapon and ammunition to it), explosives committed on preliminary arrangement by group of persons), 276 (Espionage), 279.1 (Creation of armed formations or groups, which are not provided by the legislation of the Azerbaijan Republic, and also participation in their creation and activity, supplying them by weapon, ammunition, explosives, military engineering or military equipment) and 318.2 (Crossing of protected frontier of the Azerbaijan Republic, committed on preliminary arrangement by group of persons or organized group either with application of violence or with threat of its application) of the Criminal Code of the Azerbaijan Republic.

On 18 March 2021, the Baku City Sabayil District Court issued, in respect of Gevorg Sujyan, an order in the form of detention for a period of 4 months.

David Davtyan, born on 1993, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 228.2.1, 279.1 and 318.2 of the Criminal Code of the Azerbaijan Republic.

On 18 March 2021, the Baku City Sabayil District Court issued, in respect of David Davtyan, an order in the form of detention for a period of 4 months.

According to the investigation, the accused Gevorg Sujyan and David Davtyan, within a criminal group that took part in the conspiracy with the purpose of causing damage to the security of the Azerbaijan Republic, obtained the information constituting the State Secret of Azerbaijan and transferred it to the law enforcement bodies of the Republic of Armenia, thereby committing espionage. In addition, the accused had illegally acquired, carried and stored firearms, component parts thereof, ammunition, explosives, and explosive devices, as well as illegally crossed the State border of the Azerbaijan Republic.

At the trial, the accused Gevorg Sujyan has partially pleaded guilty, namely of committing a crime under the Article 318.2 of the Criminal Code of the Azerbaijan Republic.

Gevorg Sujyan revealed that he had been the founder of the “Charity” organization and distributed clothes to the refugees from Karabakh and soldiers who had fought there. Some of those people were in Khankendi and he also sent the charity aid to them. He was made by those people to announce it on his Facebook page. He used to bring the aid to the town of Goris and it was handed out to the soldiers. In order to show the aid-givers that he was really passing it on to the soldiers, G. Sujyan took pictures with the soldiers and mailed them to those people. He came to Shusha to pray in one of the churches following his visit to Goris, where he was interviewed by the media. Then, arriving in Khankendi, he made a video recording the situation of the people there, which he published on his Facebook page. G. Sujyan was in Khankendi two weeks prior to the end of the war. In Khankendi he approached two families in order to transfer them to Armenia. On the way out of Khankendi, his car was stopped by the Russian military, to whom he asked if he could continue on. The military replied he could. Having driven another 2 km in the direction of the Lachin corridor, he saw the Azerbaijani flag. The Azerbaijani servicemen that approached him, arrested him. The accused Sujyan asked the court to acquit him under the Articles 228.2.1, 276 and 279.1, and to impose a light sentence under the Article 318.2 of the Criminal Code of the Azerbaijan Republic.

At the trial, the accused David Davtyan has partially pleaded guilty, namely of committing a crime under the Article 318.2. of the AR Criminal Code, and testified that he had met Gevorg Sujyan in 2020. Having found out about G. Sujyan’s charitable organization, he expressed a wish to help. When the war started, he called Gevorg Sujyan and offered to bring clothes and food.  After that, he constantly delivered the humanitarian aid to Khankendi. D. Davtyan testified that they had not participated in any military operations, but were only engaged in the charity work. On November 10, 2020, G. Sujyan called him to say that he needed help in Khankendi. On November 11, 2020, they passed through the town of Goris in Armenia and drove on down the Lachin corridor where the Russian military officers stopped them. The military let them drive on. Having driven about a kilometer along the Lachin corridor, they saw the Azerbaijani flag. The Azerbaijani military approached and arrested them. D. Davtyan testified that he had not committed any crimes against the Azerbaijan Republic and had only been engaged in a charity work. The accused also asked the court to acquit him under the Articles 228.2.1, 276 and 279.1, and to assign a light sentence under the Article 318.2 of the Criminal Code of the Azerbaijan Republic.

 

In the course of the preliminary investigation, the accused Gevorg Sujyan and David Davtyan provided incriminating testimonies and testified that they had really participated in the military actions against the Azerbaijani soldiers, had been armed with Kalashnikovs and by request of the Armenian National Security Service they had provided them with the information concerning the number, location of the Azerbaijani military and availability thereof with heavy military equipment. They also testified that when they had entered the city of Shusha, they had been aware that this territory was under the Azerbaijani military’s control. It was exactly there they were stopped by the soldiers of the Azerbaijani Armed Forces who asked them what they had been doing there. Confused, the accused were unable to answer the questions. They were detained due to their dubious behavior and illegal invasion into Azerbaijani territory.

It should be pointed out that the testimony provided during the preliminary investigation differed from the testimony at trial. The Court regarded their testimony at the trial as untruthful and having the nature of self- defense.

At the court, the soldiers of the Armed Forces of Azerbaijan Vidadi Orujaliyev and Vugar Abdullayev were questioned as witnesses and testified that on November 11, 2020, while serving in the Armed Forces of Azerbaijan in Shusha, they had spotted and approached two men to ask who they were. The soldiers saw that they were trying to escape. Then, the Azerbaijani soldiers came up closer and asked them to show their passports. They were the Armenian citizens, Gevorg Sujyan and David Davtyan. The soldiers asked them why they were there. They could not provide an intelligible answer. The questionable behaviour of the Armenian citizens and their illegal crossing of the Azerbaijani border caused their detention. They were then handed over to the relevant authorities for further investigation.

The results of forensic examinations carried out on May 16, 2021, confirmed that there were no any injuries on the bodies of both Armenians, Gevorg Sujyan and David Davtyan.

According to the letter of the Azerbaijani State Security Service dated March 17, 2021, the citizens of the Republic of Armenia, Gevorg Sujyan and David Davtyan, took part in military operations in Nagorno-Karabakh against the Armed Forces of Azerbaijan and on November 11, 2020, they were detained on the territory controlled by the Armed Forces of the Azerbaijan Republic.

An inspection of social networks on March 17, 2021, revealed that Gevorg Sujyan and David Davtyan distributed on Gevorg Sujyan’s profile their photos in the military uniform with automatic weapons in their hands and on the background there were seen the “Smerch” rockets.

The Court concluded that the accused actually committed the alleged crimes under all the Articles of the indictment. The Court considered the defendants’ testimonies during the investigation to be truthful. The Court also pointed out that there had been no stamps in the accused’s passports indicating that they had legally crossed the Azerbaijani border.

On July 28, 2021, the Baku Court of Serious Crimes issued a verdict against Gevorg Sujyan and David Davtyan:

  • Gevorg Sujyan was found guilty of committing crimes under the Articles 228.2.1, 276, 279.1, and 318.2 of the AR Criminal Code and sentenced him to 15 years imprisonment to serve the first 5 years in the Gobustan closed prison, and the rest 10 years in a strict regime colony.
  • David Davtyan was found guilty of committing crimes under the Articles 228.2.1, 276, 279.1, and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced him to 15 years imprisonment to serve the first 5 years in the Gobustan closed prison, and the rest 10 years in a strict regime colony.

The verdict also stipulated that both men were to be forcibly deported from Azerbaijan once they had served the bulk of their sentences.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. The most bizarre is the accusation of espionage (the Article 276 of the Criminal Code of the Azerbaijan Republic). According to this article, espionage is transfer, as well as kidnapping, collecting or storage with the purpose of transfer to the foreign state, foreign organization or their representatives of a data which are a state secrets, and also transfer, kidnapping with a purpose of transfer or collecting by orders of special services of the foreign states of other data for their use to detriment safety of the Azerbaijan Republic, if espionage is committed by a foreigner or person without citizenship.

As it is stated in the verdict, both of the accused were collecting the information about the number and location of the Azerbaijani army and the presence of heavy military equipment. However, the verdict does not specify how the information was obtained by the accused, what channels were used to transmit it to the Armenian special services and whether it constituted a State Secret.

The criminal case does not contain any expert evidence as to whether the information in question is a State Secret. It is also not clear how the accused received the secret information. According to the testimonies given by the accused during the investigation, as well as the testimonies of witnesses, the Azerbaijani military discovered them in Shusha and immediately detained them. It is also unclear how long the transmission of secret information took place. There was not enough evidence for such a serious accusation by the State Prosecution. However, the Court decided in favor of the evidence presented by the investigative bodies and issued a guilty verdict under the Article 276 of the Criminal Code of the Azerbaijan Republicю

Was the detention in accordance with the Law?

Article 147.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that detention shall be applied in the following circumstances:

  • if there is a suspicion that the person concerned committed an offence;
  • if there is an appropriate decision by the prosecuting authority about a person covered by Article 147.1.2;
  • if there is a court decision on the detention of a sentenced person pending settlement of the question of forcibly sending him to the place where the sentence or other final court decision is to be executed, replacing the penalty given to him with another or repealing his suspended sentence or conditional release.

Furthermore, a detention record must be drawn up at the place of detention and signed by the official who drew it up, the detainee, and the lawyer invited as a defender and participated in submitting the detainee to sign the record of detention.

In accordance with the Article 153.1 of the Code of Criminal Procedure of the Azerbaijan Republic, when detaining any individual, the prosecution authority is obliged to ensure his rights under this Code, as well as the Law of the Republic of Azerbaijan “On ensuring the rights and freedoms of individuals held in places of detention” for the suspect or accused, depending on his legal status.

In the Article 153.2 of the Code of Criminal Procedure of the Azerbaijan Republic, there is a list of the authority representative’s duties to ensure the rights of the detainee by the body conducting the criminal proceedings and by the temporary detention facilities:

  • 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;
  • take the detainee without delay to the police or other preliminary investigating authority’s temporary detention facility, register the detention, draw up a record and show him the detention record;
  • report each instance of detention, immediately after registration in the temporary detention facility, to the head of the appropriate preliminary investigating authority and to the prosecutor in charge of the procedural aspects of the investigation (this information shall be given in writing within 12 hours of detention);
  • 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);
  • secure the right of any person who does not know the language of the criminal proceedings to use the services of an interpreter free of charge;
  • 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;
  • take the restrictive measure of arrest in respect of the detainee, and bring him to court in good time in order to ensure that the question of forcibly sending him to the place where the sentence or other final court decision is to be executed, replacing the penalty given to him with another or repealing his suspended sentence or conditional release is settled within the time limits provided for in Articles 148 and 150-152 of this Code;
  • to immediately release the detained person in the cases stipulated by the Article 153.3 of the present Code.

As can be seen, these duties were not exercised by the body conducting the criminal proceedings.

In this case, as in the other trials without exception, the defendants’ trial testimonies were not considered by the Court as being true and faithful. The Court interpreted them as being in the nature of a defence. However, the testimony in the course of the investigation was assessed by the court as irrefutable. The contradictions in the testimonies were not settled. The Court did not even have any initiative to do so.

In this case, as in the others, the question of sufficiency of the evidence is of great importance. The evidentiary basis of the case includes: testimonies of the accused provided during the investigation and at the trial, two witnesses’ testimonies, the results of forensic medical and forensic psychological examinations, the various certificates and letters of the Azerbaijani State Security Service, the inspection and detention reports, as well as the court orders on the imposition of a preventive measure.

As indicated above, the Court evaluated the defendants’ testimonies in the course of investigation as true and accurate, but did not justify its conclusion in any way. Therefore, there are objective doubts about the truthfulness of other evidence in the case. Here, the written evidence was provided by the law enforcement authorities, and the expertise was conducted by the only forensic examination body in the country, the Center for Forensic Examinations and Pathological Anatomy. There are no alternative forensic expertise institutions in the country. The Center’s conclusions are accepted by the courts as irrefutable in most cases. Although, the Article 127.3 of the Code of Criminal Procedure of the Azerbaijan Republic states that the expert’ s conclusion is not obligatory for the investigator, prosecutor or court, it, like any other evidence, must be verified and evaluated by the authority conducting the criminal proceedings, in view of all the case circumstances.

According to the Article 124.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

Reliable evidence (information, documents, other items) obtained by the court or the parties to criminal proceedings shall be considered as prosecution evidence.

The Article 125.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

If there is no doubt as to the accuracy and source of the information, documents and other items and as to the circumstances in which they were obtained, they may be accepted as evidence.

The Court failed to clarify the reasons for the testimonies’ inconsistency, therefore, a third-party observer has a legitimate objective doubt regarding their lawful receipt.

In addition, the defendants testified against themselves at the investigation. It is not clear whether they were explained their right to silence, which is essentially enshrined in the Article 66 of the Azerbaijani Constitution. This article 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 Right to silence is also enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1). Although this right is not explicitly stated in the Article itself, the case law of the European Court of Human Rights (ECHR) has enshrined it in its precedents, which are an integral part of the right to a fair trial.

It was written in the judgment of the European Court of Human Rights in the case of John Murray v. the United Kingdom from February 8, 1996: “Although not specifically mentioned in Article 6 (art. 6) of the Convention, there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (art. 6) … By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6 (art. 6).”

https://hudoc.echr.coe.int/eng#{“fulltext”:[“\”CASE%20OF%20JOHN%20MURRAY%20v.%20THE%20UNITED%20KINGDOM\””],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57980”]}

There are written evidences (references, letters) provided by the State Security Service of Azerbaijan in the case file. According to the Article 137-1.1 of the Criminal Procedural Code of the Azerbaijan Republic, all kind of information, documents and other items obtained in the course of intelligence and counter-intelligence activity can be considered as evidence in a criminal case, if it is obtained in accordance with the Azerbaijani Law “On Operative-Investigative Activity” and submitted and verified in accordance with the requirements of this Code. We do not know whether those evidences have been obtained in accordance with the Law. The court did not take them objectively and accepted them as true.

According to the Article 138.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

The prosecutor shall be responsible for proving the grounds for the criminal responsibility of the accused and whether or not he is guilty. 

The Prosecutor was unable to prove the defendants’ guilt because he failed to submit irrefutable evidence to the Court.

The bias of judges is obvious. Even though, it is written in the Article 33.4 of the Azerbaijan Republic Code of Criminal Procedure that there shall be no judicial bias regarding the evidence and other materials, but judges and jurors may not regard evidence or other materials unfavourably, or attach more importance to one piece of evidence or other item than to another, until they are examined under the statutory procedure.

There is a court requirement in the Article 3 “On Courts and Judges” of the Law of the Republic of Azerbaijan.

According to the Law of the Azerbaijan Republic “On Courts and Judges”,

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.

The Article 8 of the Law of the Azerbaijan Republic “On Courts and Judges” states,

Justice is administered in compliance with the principle of ensuring independence of judges without any restrictions, and in a fact based, impartial, just and lawful manner.

In this trial, as in other trials concerning Armenian prisoners of war, the principle of transparency was violated. Despite the fact that the verdict said that the case was being considered at an open trial, in fact the trial was held behind closed doors, without the presence of independent journalists, human rights defenders and members of the public. In the light of the 44-day war between Azerbaijan and Armenia, this trial, as all other trials against the Armenian prisoners of war, was of great interest to the public. The transparency of the trial would have confirmed that the criminal case was being handled according to the letter of the Law. Yet, the closed nature of the trial led to the assumption of an unfair trial.

Violation of the substantive and procedural legal Norms, the Constitution of Azerbaijan, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the precedents of the European Court of Human Rights was a violation of the defendants’ right to a fair trial.

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The trials against the armenian prisoners of war have been on-going behind closed doors

THE TRIALS AGAINST THE ARMENIAN PRISONERS OF WAR HAVE BEEN ON-GOING BEHIND CLOSED DOORS

Armenian prisoners of war

Analysis of violation of law during 13 Armenian prisoners of war judicial proceedings

Baku Grave Crimes Court

Case №1(101)-1256/2021 

23 July 2021

Presiding judge: Azad Madjidov

Judges: Zeynal Agayev, Sabuhi Huseynov

Defendants: Andranik Mikayelyan, Setrak Soghomonyan, Rafik Karapetyan, Felix Grigoryan, Mels Ambardanyan, Manuk Martoyan, Arsen Vardanyan, Arman Dilanyan, Hrayr Tadevosyan, Vahagen Bahrikyan, Qurqen Goloyan, Vagarshak Maloyan, Sasun Yeghiazaryan

Defenders: Elkhan Khudaverdiyev, Nazrin Sultanova, Nariman Aliyev, Elman Agayev, Rasim Ahmadov, Shohrat Allahmanov, Geybulla Javadov, Vugar Huseynzade, Ramin Sadikhzade, Radmila Abilova, Fizuli Huseynov, Jabbar Bayramov, Vugar Mammadov

Public prosecutors: Prosecutors of the Division for the Defense of Public Prosecutions in Grave Crimes Courts of the Department for the Protection of Public Prosecutions of the Prosecutor General’s Office of the Republic of Azerbaijan Parviz Mirhashimov and Babakhan Hasanaliyev

In September 2020, there were intense hostilities between Azerbaijan and Armenia in the Karabakh region and its surroundings. As a result of the 44-day war, Azerbaijani soldiers liberated several towns and many Karabakh villages as well as the surrounding territories.   Dozens of Armenian soldiers were captured in the course of military operations and were convicted and sentenced to the various terms of imprisonment.

Andranik Mikayelyan, born on 20 April 1998, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 214.2.1 (Terrorism, committed on preliminary arrangement by group of persons, by organized group or criminal community), 214.2.3. (Terrorism, committed with application of fire-arms or subjects used as a weapon), 228.3 (Illegal purchase, transfer, selling, storage, transportation and carrying of fire-arms, accessories to it, supplies or explosives, committed by organized group), 279.2. (The attack on enterprises, establishments, and organizations or on separate persons by structure of formations or groups which is provided by articles 279.1 and 279.1-1 of the present Code) and 318.2 (Crossing of protected frontier of the Azerbaijan Republic, committed on preliminary arrangement by group of persons or organized group either with application of violence or with threat of its application) of the Criminal Code of the Azerbaijan Republic.

Setrak Soghomonyan, born on 30 August 1995, a citizen of the Republic of Armenia, a military serviceman who is currently detained in the Baku Detention Center of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Rafik Karapetyan, born on 11 July 1992, a citizen of the Republic of Armenia, a military serviceman who is currently detained in the Baku Detention Center of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Felix Grigoryan, born on 23 December 1996, a citizen of the Republic of Armenia, a military serviceman who is currently detained in the Baku Detention Center of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Mels Ambardanyan, born on 21 January 1997, a citizen of the Republic of Armenia, a military serviceman who is currently detained in the Baku Detention Center of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic

Manuk Martoyan, born on 1 April 1999, a citizen of the Republic of Armenia, a military serviceman who is currently detained in the Baku Detention Center of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Arsen Vardanyan, born on 30 January 1998, a citizen of the Republic of Armenia, a military serviceman who is currently detained in the Baku Detention Center of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Arman Dilanyan, born on 24 May 1989, a citizen of the Republic of Armenia, a military serviceman who is currently detained in the Baku Detention Center of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Hrayr Tadevosyan, born on 16 April 1996, a citizen of the Republic of Armenia, a military serviceman who is currently detained in the Baku Detention Center of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Vahagen Bahrikyan, born on 11 May 1983, a citizen of the Republic of Armenia, a military serviceman who is currently detained in the Baku Detention Center of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Qurqen Goloyan, born on 30 January 1998, a citizen of the Republic of Armenia, a military serviceman who is currently detained in the Baku Detention Center of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Vagarshak Maloyan, born on 6 December 1992, a citizen of the Republic of Armenia, a military serviceman who is currently detained in the Baku Detention Center of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Sasun Yeghiazaryan, born on 22 July 1991, a citizen of the Republic of Armenia, a military serviceman who is currently detained in the Baku Detention Center of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

According to the investigation, on 27 November 2020, the accused, not having the appropriate documents on them, illegally crossed the border of the Azerbaijan Republic as part of an organized criminal group. The accused had illegally purchased, carried and stored weapons, ammunition, explosive devices and military equipment until the 13th of December 2020.

The defendant Andranik Mikayelyan, who was interrogated in the course of the investigation, pleaded not guilty to the charges brought against him and testified that from 2017 to 2019 he had been serving in the Armed Forces of the Republic of Armenia. During the war between Azerbaijan and Armenia he was called up for military service and sent to Jabrayil City. During the war from, he was in Jabrayil from the October 3 to 15, 2020.  On 15 October 2020, Azerbaijani military opened fire on the Armenian military positions forcing the Armenians to return to Armenia. For some time, A. Mikayelyan was in hiding; however, the military police found and brought him back. On 27 November 2020, Andranik Mikayelyan, as a citizen of the Republic of Armenia, was sent to the front to defend the Armenian border. Then they were brought to Karabakh. In addition to the local military, there were Russian peacekeeping forces. He testified that they had legally obtained their weapons to defend Armenian territory, and they had been told that they were on the territory of Armenia. Some 13 days later, they were said that they had finished their service and had to return home. Mikayelyan testified that when the soldiers had been returning, no Armenian military personnel had been found on the spot. Then, they had been encountering with the personnel of the special unit of the Azerbaijani Armed Forces named “Yashma”. A. Mikayelyan testified that they even could not think of meeting up with them. The “Yashma” servicemen told them not to open fire. So, they surrendered their weapons, and the Azerbaijani soldiers brought them to Baku.

Answering the questions of the trial participants, A. Mikayelyan said that he had not been to the front line in Azerbaijan at all after 27 November 2020, he had been serving in Jabrayil and unaware of the war between Azerbaijan and Armenia. When the war ended, they were told that if they ever were approached and tried to escape, they would face up to 12 years imprisonment. So, to avoid being arrested, they agreed to go to defend Armenia’s borders on 27 November. A. Mikayelyan also testified that they had been said that Jabrayil was an Armenian territory, and that in case the Azerbaijani military intervened, they should open fire on them.

The defendant, Setrak Soghomonyan, who was interrogated in the course of the trial, pleaded not guilty to the charges and testified that he had been serving his military duty in the Goris region of Armenia from 2013 to 2015. On 3 October 2020, in connection with the war between Azerbaijan and Armenia, he was summoned to the military commissariat of Armenia and sent to serve in Jabrayil. They were given machine guns. At that time, there was a fierce battle on the territory of Jabrayil, in which the Armenian military personnel took part. They were led by the Lieutenant Colonels Arsen Ghazaryan and Artur Muradyan. The Azerbaijani soldiers started firing from the air then. Due to that reason the Armenian servicemen scattered in different directions. On 13-14 October 2020, a few Armenian soldiers escaped from the territory of military actions. After that, they were searched by the Armenian law enforcement bodies. When the war was already over, on 27 November 2020, the military police came to S. Soghomonyan’s house informing him that a criminal case had been opened against him and he had to turn himself in to a military unit in Gyumri. They also told him that if he did not come, he would be arrested. Thus, he went to the front, in order not to be arrested. After that he along with other soldiers were driven to Karabakh. Setrak Soghomonyan had not known where they were until they were told that it was Lachin. S. Soghomonyan testified that he had known that Lachin was Azerbaijani territory, and not the Armenian one. Thirteen days later, they were told that they had completed their assignment and should return home. When they were returning, they did not see any Armenian military personnel on the spot. The Azerbaijani Armed Forces’ “Yashma” special unit unexpectedly encountered them. The “Yashma” personnel told them not to open fire. They surrendered their weapons, and were driven to Baku.

The defendant, Rafik Karapetyan, who was interrogated in the course of the trial, pleaded not guilty to the charges and testified that he had been serving his military duty in the Oktemberyan region of Armenia from 2010 to 2012. On 3 October 2020 in connection with the war between Azerbaijan and Armenia R. Karapetyan was called up for military service. At that time, he was given weapons and brought to Jabrayil. Many Armenian soldiers took part in the military actions. After the end of hostilities, R. Karapetyan returned home. On 27 November 2020, the military police came to his house and told him to go to Gyumri, otherwise he would be arrested. In order to avoid arrest, R. Karapetyan went to Gyumri, where he saw that besides him about 360 other Armenian citizens, conscripted for the service there.

All those people were led by Lieutenant Colonels Arsen Ghazaryan and Artur Muradyan. They had not been told that they would go to Karabakh. They were said that they were going to Goris. Thus, the soldiers ended up in Lachin. Some 13 days later, the soldiers were told that they had finished their service and could go home. The soldiers were instructed to go to the place where the food was served. There, however, they did not see any Armenian soldiers. But later, they encountered a special unit of the Azerbaijani Armed Forces called “Yashma.” The “Yashma” officers told them not to open fire. They surrendered their weapons, the “Yashma” officers brought them to Baku.

The defendant, Felix Grigoryan, who was interrogated in the course of the trial, pleaded not guilty to the charges and testified that he had been serving his military duty near the Sugovushan region of Armenia from 2001 to 2002. On 4 October 2020, in connection with the war between Azerbaijan and Armenia, Grigoryan was conscripted by the military commissariat of Armenia to serve in Jabrayil. Further, Grigoryan’s testimony was similar to that of the previous defendants.

  1. Grigoryan answering the questions of the process participants said that he had known about the conclusion of the trilateral agreement and the end of the war. Although the war had already ended, they were told that they were going to the Armenian border. There are contradictions between the testimony provided by F.Grigoryan during the investigation and at the trial. In his testimony given by him during the investigation, he testified that the purpose of the military personnel had been to attack the Azerbaijani military, as well as to stand on guard. However, at the trial, Felix Grigoryan testified that his testimony at the investigation stage had been written inaccurately, as at that time he did not understand the provisions of the Azerbaijani criminal legislation. He did not approve the testimony given by him during the investigation, although it was exactly him who signed it.

The defendant, Mels Ambardanyan, who was interrogated in the course of the trial, pleaded not guilty to the charges and testified that he had been serving his military duty in the Sugovushan region of Armenia from 2015 to 2017. During the war between Azerbaijan and Armenia, which started on September 27, 2020, M. Ambardanyan did not take part in the military operations due to his coronavirus illness. However, at the end of the war, on November 27, 2020, he got a summons from the military commissariat, in which he was called to the military commissariat in Gyumri. There, he saw about 300 Armenian citizens, also conscripted for the military service. They were given their weapons and military uniforms. Arsen Ghazaryan and Artur Muradyan were the leaders. They said to the soldiers that they were going to Goris and not to Karabakh. Then, they were taken to Lachin, of which the soldiers learned only on the road there. Further, M. Ambardanyan’s testimony was similar to that of the previous defendants.

Answering the questions of the trial participants, M. Ambardanyan said that they had been told that they would only replace the soldiers on the border, and that they would be on the Armenian border. The defendant also said that he had not participated in the military actions, they had not had the goal in attacking the Azerbaijani military, and they had not been given an order to open fire.

In the testimony provided by the accused M. Ambardanyan at the investigation, he pleaded guilty to the charges against him. His testimony during the investigation contradicted his testimony at the trial, therefore M. Ambardanyan’s earlier testimony was read out in the course of the trial. The defendant, Manuk Martoyan, who was interrogated in the course of the trial, pleaded not guilty to the charges and testified that he had been serving his military duty in Yerevan City of Armenia from 2017 to 2019.

During the war between Azerbaijan and Armenia on 3 October 2020, Manuk Martoyan was brought to Jabrayil. He was given a machine gun. At the time when he was in Jabrayil, there was a fierce fighting, about 200 Armenian military men had been fighting there. Lieutenant Colonels Arsen Ghazaryan and Artur Muradyan headed it. The Azerbaijani army was opening an artillery fire on the territory where they were located. Because of that, the Armenian military were forced to flee in different directions. In about 10 days, Manuk Martoyan made a decision to escape. On 13 October 2020, he and five Armenian soldiers escaped to Goris, Republic of Armenia. Having been hiding there for several days, he arrived to the village of Lanchik with the help of a friend. At that time, he was already being searched by the law enforcement bodies due to his escape. On 27 November 2020, the military policemen came to M. Martoyan’s house, but the war had already ended by that time. The police officers told him that criminal charges had been brought against him. They demanded that M. Martoyan head to a military unit in Gyumri. He consented, in order not to be arrested, even though he knew that the war had ended. There were about 360 Armenian soldiers in the military unit in Gyumri. Although they were told there that they had been going to Goris and not to Karabakh, as a result they were brought to Lachin where they were given automatic rifles. From Lachin, where the Russian peacekeeping forces were stationed, they were brought to the territory between Lachin and Hadrut. Then, together with Arsen Ghazaryan, they climbed up to the mountain and went down the hill. Their goal was to stand on guard and not let anyone pass through. On December 13, 2020, Arsen Ghazaryan, via a telephone call, ordered the soldiers to return and explained how to do it. As they were returning, they ran into the Azerbaijani military. By that time some 40 Armenian soldiers had managed to escape. A total of about 60 soldiers were detained and later brought to Baku

Answering the questions of the trial participants, Manuk Martoyan said that he had not come to Karabakh voluntarily, his task had been to stand on guard at the border and not to let anyone through. M. Martoyan testified that after the end of the war, the people had been sent to Karabakh from military commissariats, they had not been given the order to open fire, on the contrary, they had been ordered not to fire. Despite the fact that they were armed, they did not participate in the military operations. M. Martoyan stated that no psychological or physical pressure was exerted upon him during his arrest. He explained the contradictions between the testimony provided during the investigation and before the court by the fact that at the time he had not understood the provisions of the criminal legislation of Azerbaijan, so he pleaded guilty. For that reason, he did not support that part of the testimony in court.

The defendant, Arsen Vardanyan, who was interrogated in the course of the trial, pleaded not guilty to the charges and testified that he had been serving his military duty in the Oktemberyan region of Armenia from 2010 to 2012. On 3 October 2020, during the war between Azerbaijan and Armenia, Arsen Vardanyan was brought to the mountainous area of Jabrayil. Further, A. Vardanyan’s testimony did not differ from the testimony of other defendants sent to Jabrayil. Answering the questions of the trial participants, Arsen Vardanyan said that no measures of psychological and physical pressure had been exercised against him.

The defendant, Arman Dilanyan, who was interrogated in the course of the trial, pleaded not guilty to the charges and testified that he had been serving his military duty in Lusakert City of Armenia from 2007 to 2009. Due to being sick with a coronavirus, he did not participate in the war, which began on 27 September 2020. Upon signing a cessation of hostilities agreement on 10 November 2020, he received a call from the military commissariat and was summoned to the military unit in Gyumri. When he arrived in Gyumri, there were already about 360 military personnel there. The leaders were the Lieutenant Colonels Arsen Ghazaryan and Artur Muradyan. The soldiers had been given automatic rifles. Then, they were brought to Lachin. Further, Arman Dilanyan’s testimony did not differ from that of the other defendants brought to Lachin from the military commissariat.

Answering the questions of the trial participants, A. Dilanyan said that he had seen the Russian peacekeepers when they were loaded into the trucks, the Russians had had machine guns, and they had not either said anything or given any order to shoot. Despite the fact that they were armed, they did not take part in the military actions. The Armenian military thought they happened to be on the Armenian border. They were not aware that this was the Azerbaijani territory. Upon being asked about the contradictions in the testimony provided by A. Dilanyan during the investigation and in the court, he replied that he had not been familiar with the provisions of the criminal legislation of Azerbaijan at the time of the investigation. He had not been given an order to shoot at the Azerbaijani military. His words were wrongly recorded in his testimonial in the course of investigation.

The defendant, Hrayr Tadevosyan, who was interrogated in the course of the trial, pleaded not guilty to the charges and testified that he had been serving his military duty in Khankendi City of Karabakh from 2014 to 2016. On 27 September 2020, during the war between Azerbaijan and Armenia, H. Tadevosyan was brought to Jabrayil as a soldier. He was given a machine gun. At that time, fierce fighting involving many soldiers from his military unit was going on in Jabrayil. The commanders were Arsen Ghazaryan and Artur Muradyan. While fighting, the Azerbaijani military fired artillery at the territory where they were stationed. Due to that reason, the soldiers started running away. He, also frightened, made a decision to run away. On 17 October 2020, about 20 Armenian soldiers managed to run away to the town of Sisiyan within the territory of Goris region of the Republic of Armenia. Having been hiding there for some days, they made it with the help of a relative of one of the servicemen to Gyumri. Because of their escape, they were sought out by the Armenian law enforcement bodies. Then the war came to an end. But despite that, on 25 November 2020, the military police called H. Tadevosyan informing him about the criminal charges against him and demanding him to appear in the military unit in Gyumri. Being afraid of the arrest, H. Tadevosyan arrived to the military unit in the village of Voskehaskhsk of the Republic of Armenia. There were about 100 servicemen, led by Arsen Ghazaryan and Artur Muradyan. They were given machine guns and told they would go to Goris. However, on the way, they were told that they would be taken to Lachin. When they reached Lachin, they had been asleep in the truck for several hours. There they were seen by the Russian peacekeepers, but the officers did not say anything to them. Then the soldiers along with Lieutenant Colonel Arsen Ghazaryan climbed up the mountain and stayed there until 13 December 2020. On 13 December 2020, Ghazaryan ordered them to return. By that time, about 40 soldiers had already fled. A soldier named Kamo said that the Azerbaijani military men had been standing up ahead. When they were detained, they were asked to surrender their weapons, and they obeyed the order. About 60 soldiers were detained, and taken to Baku by trucks.

Answering the questions of the trial participants, H. Tadevosyan said that he had pleaded guilty in the course of the investigation, as at that time he had not been familiar with the provisions of the criminal legislation of Azerbaijan. He also testified that during his arrest and detention, no psychological or physical pressure measures had been applied on him. They were not ordered to shoot or attack the Azerbaijani military. Their task was to stand on guard. G. Tadevosyan said that he had not known that it was the territory of Azerbaijan.

The defendant, Vahagen Bahrikyan, interrogated in the court testified that he was on full-time military service in a unit near Sugovushan from 2001 to 2003. On 4 October 2020, during the war between Azerbaijan and Armenia, he was summoned to the military commissariat of Armenia, and from there he was sent to Jabrayil. V. Bahrikyan, as well as other soldiers, was issued a machine gun. At that time, there were fierce battles in Jabrayil, and many soldiers from his military unit had been fighting there. They were led by the Lieutenant Colonels Arsen Ghazaryan and Artur Muradyan. The Azerbaijani soldiers opened fire from the air. Because of that Armenian soldier started to disperse in different directions. On 14 October 2020, V. Bahrikyan and others fled from the combat zone and hid in Goris. Having hid for several days, he then reached his house in the village of Azatan. There, he found out that he had been sought by the Armenian law enforcement authorities. On November 27, 2020, when the war had already been over, the military police came to his residence to inform him about the criminal charges against him and demanded his presence at the military unit in the village of Voskeask (Armenia). While there, Vahagen Bahrikyan saw many Armenian citizens called up for the military duty. The soldiers were told that they would be taken to Goris and not to Karabakh. They were given military uniforms and machine guns. Afterwards, the soldiers were brought to Lachin. Furthermore, V. Bahrikyan’s testimony does not differ from the testimony of other defendants.

In response to the process participants’ questions, V. Bahrikyan replied that they had had no intention to commit an armed attack on the Azerbaijani military, they only had been obliged to carry out their service at the post. The defendant also said that his testimony during the investigation had been recorded incorrectly, at the time he was not familiar with the provisions of the Azerbaijani criminal legislation and did not know that he had been on the Azerbaijani territory.

The defendant, Qurqen Goloyan, who was interrogated in the course of the trial, pleaded not guilty to the charges and testified that he had been serving his military duty in the Shamshadin region of Armenia from 2016 to 2018. During the war between Azerbaijan and Armenia on 27 September 2020, Q. Goloyan was summoned to the military commissariat of Armenia, and from there he was sent to Jabrayil. Further, the testimony of G. Goloyan does not differ from the testimonies of other defendants.

To the questions of the process participants Qurqen Goloyan answered that he had not participated in any military actions from 27 November 2020, during his arrest no psychological or physical pressure measures had been applied towards him, either they had not intended an armed attack on the Azerbaijani military and such an order had not been given to them. G. Goloyan has testified that during the investigation he pleaded guilty due to his ignorance of the provisions of the Azerbaijani criminal legislation. He did not know that he had been on the territory of Azerbaijan.

The defendant Vagarshak Maloyan, interrogated in the course of the trial did not plead guilty and testified that he had been serving at the military unit in Agdere (occupied Azerbaijani territory by Armenia) from 2010 to 2012. On 3 October 2020, the military registration and enlistment office called his father and demanded his presence there. His father said his son was not at home. After that, they disconnected the phones and V. Maloyan started hiding. On 25 November 2020, following the end of the war, the military police came to his house and informed him about the criminal charges against him, stating that if he refused to show up at the military registration and enlistment office, he would be arrested. On 27 November 2020, V. Maloyan arrived to the military unit in the village of Voskeask. He along with the other soldiers were given military uniforms and machine guns. They were brought to Lachin but they were not aware of it. Further, the testimony of Vagarshak Maloyan does not differ from the testimonies of the other defendants.

In response to questions posed by the trial participants, Maloyan replied that their goal had been to serve at the post in the Hadrut settlement in Khojavand district. Their mission was not to attack the Azerbaijani military. While detained, no psychological or physical pressure was applied on him. The accused also explained that he pleaded guilty during the investigation because of his ignorance of the Azerbaijani criminal law. The testimony regarding the attack on the Azerbaijani military had been recorded incorrectly. V. Maloyan also testified that even after the end of the war, the Armenian military commissariats kept conscripting people and sending them to Karabakh.

The defendant, Sasun Yeghiazaryan, who was interrogated in the course of the trial, pleaded not guilty to the charges and testified that he had been serving his military duty in Pushkin village of the Goris region of Armenia from 2009 to 2011.

On November 27, 2020, the military police came to Sasun Yeghiazaryan’s residence and demanded him to go to the military unit in Gyumri. If he refused, he would be sentenced to 9 or 10 years imprisonment. At the military commissariat, Sasun Yeghiazaryan saw many Armenian citizens conscripted for military service. He, along with the other soldiers, was brought to Lachin. Lieutenant Colonels Arsen Ghazaryan and Artur Muradyan were in charge. Further, S. Yeghiazaryan’s testimony did not differ from the others’ testimonies. On 13 December 2020, Sasun Yeghiazaryan along with other soldiers were detained by the Azerbaijani military and brought to Baku.

When asked by the trial participants, S. Yeghiazaryan answered that the military commissariats in various cities of Armenia were calling to the citizens, who were drafted to serve in Karabakh. He testified that no psychological or physical pressure had been applied on them during their detention. No orders had been given to them to carry out an armed attack on the Azerbaijani military. They supposed to stand at the post, S. Yeghiazaryan indicated that he had not participated in any military actions.

However, throughout the investigation period, Sasun Yeghiazaryan testified that they had been ordered to shoot at anyone who would attempt to cross the border, that Lieutenant Colonel Arsen Ghazaryan had told them that it was the Armenian territory, but the soldiers understood that it was not theirs. At the court, S. Yeghiazaryan refuted those testimonies saying that they had been recorded incorrectly, they did not want to attack the Azerbaijani military and did not know at that time that it was the Azerbaijani territory.

In the course of the trial, Anar Abdullayev and Sadig Huseynov, the employees of the Main Department of Special Operation of the State Security Service of Azerbaijan were interrogated as witnesses.

The State Prosecutor, having addressed to the court, asked the court to exclude charges under the Articles 214.2.1, 214.2.3 and 279.2 of the Criminal Code of the Azerbaijan Republic. He also asked the court to provide information to the relevant structures concerning the initiation of criminal proceedings against the Armenian officials exerting political pressure on the citizens.

The court regarded the request for exclusion of the mentioned articles as a waiver of the state charges under those Articles and terminated the trial on them. The Court found that the charges against all defendants under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic had been fully substantiated and well-founded. The Court also stated that the illegal border crossing by the accused occurred as a result of their official and political dependence, which was a mitigating circumstance. The court did not find any aggravating circumstances in the cases.

On 23 July 2021, the Baku Court of Serious Crimes issued a verdict against the Armenian military servicemen: all the accused were found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic. And they were sentenced:

  • Andranik Mikayelyan to 6 years of imprisonment in a penal regime colony;
  • Setrak Soghomonyan to 6 years of imprisonment in a penal regime colony;
  • Rafik Karapetyan to 6 years of imprisonment in a penal regime colony;
  • Felix Grigoryan to 6 years of imprisonment in a penal regime colony;
  • Mels Ambardanyan to 6 years of imprisonment in a penal regime colony;
  • Manuk Martoyan to 6 years of imprisonment in a penal regime colony;
  • Arsen Vardanyan to 6 years of imprisonment in a penal regime colony;
  • Arman Dilanyan to 6 years of imprisonment in a penal regime colony;
  • Hrayr Tadevosyan to 6 years of imprisonment in a penal regime colony;
  • Vahagen Bahrikyan to 6 years of imprisonment in a penal regime colony;
  • Qurqen Goloyan to 6 years of imprisonment in a penal regime colony;
  • Vagarshak Maloyan to 6 years of imprisonment in a penal regime colony;
  • Sasun Yeghiazaryan to 6 years of imprisonment in a penal regime colony.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. One of the most important principles of criminal proceedings is legitimacy, according to which the courts and participants of criminal proceedings must strictly observe the provisions of the Azerbaijan Republic Constitution, the Criminal Procedure Code of the Azerbaijan Republic, other laws of the Azerbaijan Republic, as well as the International Agreements with the Azerbaijan Republic (Article 10.1 of the Criminal Procedure Code of the Azerbaijan Republic. Procedural actions and judgments taken in violation of the requirements specified in this article of the Criminal Procedure Code of the Azerbaijan Republic are invalid (Article 10.5 of the Criminal Procedure Code of the Azerbaijan Republic). The obligation to ensure the observance of human and civil rights and freedoms enshrined in the AR Constitution for all individuals taking part in the criminal proceedings is imposed on the bodies conducting the criminal proceedings (Article 12.1 of the Criminal Procedure Code of the Azerbaijan Republic).

According to the presumption of innocence enshrined in the Article 21.3. of the Criminal Procedure Code of the Azerbaijan Republic, an individual accused of committing an offence is not obliged to prove his innocence. The obligation to prove the accusation, to refute the arguments made in defence of the accused, lies on the prosecution.

In view of the above criminal procedure principles, we should consider the evidence that has been submitted to the court by the investigative body. Thus, in addition to the accused’s testimonies, the case contains the testimony of witnesses – two employees of the Main Directorate of the State Security Service’s Special Operations. Their testimonies neither mentioned any of the defendant’s names, nor their involvement in any of the episodes incriminated crimes. The witnesses say “Armenians” or “Armenian terrorists” in a broad description, and there is no indication of the accused’s names in this criminal case.

Another type of evidence is documents from the various Azerbaijani government structures. Yet, even these documents do not contain any mention of the accused’s names or evidence of the crimes they were incriminated to commit. The court verdict is based only on the accused’s own testimonies, which in its turn were inconsistent. The inconsistency of their testimonies the accused explained by their lack of knowledge of the Azerbaijani criminal legislation at the investigation stage, which is a procedural violation on the part of the investigating body.

The rights of the accused are outlined in the Article 91.5 of the Code of Criminal Procedure of the Azerbaijan Republic. In accordance with this Article, the accused has the right to know what he is being charged for (the content of the charge-factuality and the legal qualification of the charge), at the time of the accusation, and immediately upon being taken into custody or a ruling on a preventive measure being announced against him, to receive a copy of the relevant ruling.

According to Article 6 para 3 (a) of the European Convention on Human Rights,

  1. 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;

In this particular case, the investigative body neglected its duties mandated under the criminal procedural law.

As stated above, the Court excluded charges under the Articles 214.2.1, 214.2.3 and 279.2 of the Criminal Code of the Azerbaijan Republic and retained the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic. The existence or lack of these or those Articles was not substantiated or proven in the Court either. They only referred to the accused’s testimonies who testified that the military groups had been led by the Lieutenant Colonels Arsen Ghazaryan and Artur Muradyan. The Court took that into account and stated that the accused had been in political and administrative dependence and had been forced to proceed to the Azerbaijani territory in order to set up checkpoints there. The accusations were not supported or complemented with other irrefutable evidence.

The evidence basis was insufficient. According to the Article 124.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

  • statements by the suspect, the accused, the victim and witnesses;
  • the expert’s opinion;
  • material evidence;
  • 2.4. records of investigative and court procedures;
  • other documents.

The Article 138.1 of the Code of Criminal Procedure of the Azerbaijan Republic states:

Proof shall consist in the obtention, verification and assessment of evidence in order to establish facts of importance for the lawful, thorough and equitable determination of the criminal charge.

Evidence collected for the purposes of prosecution shall be verified fully, thoroughly and objectively. As part of the verification process the items of evidence collected shall be analysed and compared with one another, new evidence shall be collected and the reliability of the source of the evidence obtained shall be established (Article 144 of the Code of Criminal Procedure of the Azerbaijan Republic). All evidence shall be assessed as to its relevance, credibility and reliability. The content of all evidence collected for the purposes of prosecution shall be assessed in terms of whether it is sufficient to substantiate the charge (Article 145.1 of the Code of Criminal Procedure of the Azerbaijan Republic). And if suspicions which emerge during the process of proving the charge cannot be removed by other evidence, they shall be interpreted in favour of the suspect or accused (Article 145.3 of the Code of Criminal Procedure of the Azerbaijan Republic).

 

The principle of publicity was violated at the trial. Even though the trials had been conducted in so called ”open”, it was just on paper. The trials against the Armenian servicemen aroused great public interest in the light of the 44-day war.

But neither journalists (except those working for the pro-governmental press), nor the public representatives were allowed into the courtroom. This principle of publicity is stipulated in the Article 27.1 of the Azerbaijan Republic Code of Criminal Procedure, where states:

While safeguarding state, professional, commercial, personal and family secrets in accordance with this Code, court hearings in criminal cases and on other prosecution material shall be held publicly in all courts of the Azerbaijan Republic.

The transparency protects defendants from undisclosed justice, which avoids public scrutiny, and constitutes one of the measures to preserve the court’s credibility.

The principle of publicity is also enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 (1), and is one of the attributes of a fair trial. In this regard, the European Court of Human Rights (ECHR), in its decision in the case of “Werner v. Austria” dated November 24, 1997, states: “The Court recalls that the principles regulating transparency of judicial proceedings also have a value (significance) for the judgments’ public declaration and pursue the same objective: a fair trial, the guarantee of which is one of the fundamental precepts in any democratic society within the meaning of this Convention.”. https://www.menschenrechte.ac.at/orig/97_6/Werner.pdf

The European Court of Human Rights (ECHR), in its decision in Case of Gautrin and others v. France of 20 May 1998, states: “The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6 § 1. This public character protects litigants against the administration of justice without public scrutiny; it is also one of the means whereby people’s confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention.” – https://hudoc.echr.coe.int/eng#{“fulltext”:[“\”CASE%20OF%20GAUTRIN%20AND%20OTHERS%20v.%20FRANCE\””],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-58166”]}

Thus, the investigative body, by failing to provide a sufficient amount of evidence to the court, violated its duties imposed by the legislation of Azerbaijan, and the Court, by recognizing those evidences to be sufficient, issued a groundless and unsubstantiated sentence violating the Norms of the Constitution, Criminal and Procedural Legislation, without referring to the rulings of the European Court of Human Rights and ignoring the Norms of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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At the time of conviction the court disregarded the norms of international law and the precedents of the ECHR

AT THE TIME OF CONVICTION THE COURT DISREGARDED THE NORMS OF INTERNATIONAL LAW AND THE PRECEDENTS OF THE ECHR

                                 Trial of the 13  Armenian prisoners of war

 Analysis of violation of law during 13 Armenian prisoners of war judicial proceedings

Baku Grave Crimes Court

Case №1(101)-1242/2021

22 July 2021

Presiding judge: Eldar Ismayilov

Judges: Javid Huseynov, Samir Aliyev 

Defendants: Haykaz Hovhannisyan, Varazdat Manukyan, David Stepanyan, Levan Tosunyan, Martin Agramyan, Artur Baghdasaryan, Hrayr Herabyan, Jora Manukyan, Ashot Gevorkyan, Varazdat Arutyunyan, Serob Avakyan, Narek Kostanyan, Gregor Kuregyan 

Defenders: Tural Shukurov, Zumrud Samadova, Nigar Mirbabayeva, Telman Abdiyev, Alov Safaraliyev, Elnaz Samadova, Natiq Mustafayev, Fazil Aliyev, Elmira Ismayilova, Javanshir Mammadov, Arzu Javadov, Qadir Rahimov, Tufan Kerim

The State prosecutors: Jeyhun Azadaliyev, a Junior Counsel of Justice, and Orhan Samadov, a Senior-level attorney, at the Department for the Protection of Public Prosecutions in the Serious Crimes Courts of the General Prosecutor’s Office of the Azerbaijan Republic.

In September 2020, there were the violent hostilities between Azerbaijan and Armenia in and around Karabakh. As a result of the 44-day-war, Azerbaijani soldiers liberated several towns and many villages in Karabakh and the territory adjacent to it.  Dozens of Armenian soldiers were captured in the course of military operations and were convicted and sentenced to the various terms of imprisonment.

Haykaz Hovhannisyan, born on 8 May 1992, a citizen of the Republic of Armenia, was prosecuted as an accused on March 17, 2021. He was charged in accordance with the Articles 214.2.1 (Terrorism, committed on preliminary arrangement by group of persons, by organized group or criminal community), 214.2.3. (Terrorism, committed with application of fire-arms or subjects used as a weapon), 228.3 (Illegal purchase, transfer, selling, storage, transportation and carrying of fire-arms, accessories to it, supplies or explosives, committed by organized group), 279.2. (The attack on enterprises, establishments, and organizations or on separate persons by structure of formations or groups which is provided by articles 279.1 and 279.1-1 of the present Code) and 318.2 (Crossing of protected frontier of the Azerbaijan Republic, committed on preliminary arrangement by group of persons or organized group either with application of violence or with threat of its application) of the Criminal Code of the Azerbaijan Republic.

The Baku Sabeel District Court ordered a preventive measure against H. Hovhannisyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service under the Ministry of Justice of the Azerbaijan Republic.

Varazdat Manukyan, born on 7 July 1990, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Varazdat Manukyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

David Stepanyan, born on 27 April 1996, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against David Stepanyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Levan Tosunyan, born on 2 March 1991, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Levan Tosunyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Martin Agramanyan, born on 28 May 1996, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Martin Agramanyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Artur Baghdasaryan, born on 7 February 1998, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Artur Baghdasaryan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Hrayr Herabyan, born on 25 February 1992, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Hrayr Herabyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Jora Manukyan, born on 20 June 1996, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Jora Manukyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Ashot Gevorkyan, born on 30 June 1998, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Ashot Gevorkyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Varazdat Arutyunyan, born on 1 August 1996, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Varazdat Arutyunyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Serob Avakyan, born on 3 May 1984, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Serob Avakyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Narek Kostanyan, born on 19 March 1996, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Narek Kostanyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Gregor Kuregyan, born on 13 March 1998, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Gregor Kuregyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

According to the investigation, the above mentioned accused citizens of the Republic of Armenia, as a part of an organized group, illegally crossed the border of the Azerbaijan Republic on 27 November 2020, and till 13 December 2020, illegally acquired, carried and stored firearms, their spare parts, ammunition, explosives or explosive devices, and committed terrorist acts.

The Baku Court of Serious Crimes, having considered the case, concluded that there were no evidences of terrorism or involvement in illegal armed units in the accused’s actions. Therefore, the proceedings under the Articles 214.2.1, 214.2.3 and 279.2 of the Criminal Code of the Azerbaijan Republic were dismissed.

Haykaz Hovhannisyan, the defendant, being interrogated in the course of the investigation, pleaded not guilty to the accusations and testified that on 26 November 2020, he was summoned to the military registration and commissariat of the city of Gyumri. On 27 November 2020, he was provided with a uniform, an automatic rifle and ammunition. There were a total of about 100 military personnel. On four buses, they illegally crossed the border with Azerbaijan and headed to Lachin. Their commander was Arsen Ghazaryan. In Azerbaijan, A. Ghazaryan along with 40 Armenian military personnel took a position at the foot of the mountain. On 13 December 2020, A. Ghazaryan ordered by the telephone to a group of 60 servicemen to return to Armenia. Upon their return, they were surrounded by the Azerbaijani military. A. Ghazaryan along with 40 Armenian soldiers managed to escape. The Azerbaijani servicemen demanded those Armenians who were left to surrender their weapons. Realizing that the resistance made no sense, the Armenian soldiers surrendered their weapons. The other Armenian soldiers were also detained along with Hovhannisyan.

Varazdat Manukyan, the defendant, interrogated at the trial, pleaded not guilty to the charges and testified that he was summoned to the military commissariat of the city of Gyumri on 27 November 2020. There were about 350 Armenian citizens conscripted to the military service, led by a military officer, Arsen Ghazaryan. Then he was handed a military uniform and automatic rifle. About a hundred military personnel under A. Ghazaryan’s command arrived from Armenia to Azerbaijan, reaching the city of Lachin. Within two hours, they made it to the mountainous area. On 13 December 2020, Arsen Ghazaryan ordered them to return back to Armenia. When the Armenian soldiers were going down the mountain, they got detained by the Azerbaijani military.

The other defendants provided similar testimonies.

According to the Court, it was not the defendants, but other individuals who had been in charge of setting up the military armed formations. Therefore, the court excluded from the charges the Articles 214.2.1, 214.2.3 and 279.2 of the Azerbaijan Republic Criminal Code, having deemed that the defendants’ actions did not constitute an offence under these Articles.

The defendants pointed out that they had committed the illegal deeds under the pressure of the officials in charge of the corresponding state structures, so they asked the court to consider the criminal case against them under the Articles 207 (Rules governing examination of information about an offence committed or planned) and 208 (Discovery by the prosecuting authority of information about an offence committed or planned) of the Criminal Procedural Code of the Azerbaijan Republic.

On 22 July 2021, the Baku Court of Serious Crimes issued a verdict against the Armenian military servicemen: all the accused were found guilty of committing crimes under the Articles 228.3 and 318.2 of the Azerbaijan Republic Criminal Code. And they were sentenced:

  • Haykaz Hovhannisyan to 6 years of imprisonment in a penal regime colony;
  • Varazdat Manukyan to 6 years of imprisonment in a penal regime colony;
  • David Stepanyan to 6 years of imprisonment in a penal regime colony;
  • Levan Tosunyan to 6 years of imprisonment in a penal regime colony;
  • Martin Agramyan to 6 years of imprisonment in a penal regime colony;
  • Artur Baghdasaryan to 6 years of imprisonment in a penal regime colony;
  • Hrayr Herabyan to 6 years of imprisonment in a penal regime colony;
  • Jora Gevorkyan to 6 years of imprisonment in a penal regime colony;
  • Ashot Gevorkyan to 6 years of imprisonment in a penal regime colony;
  • Varazdat Arutyunyan to 6 years of imprisonment in a penal regime colony;
  • Serob Avakyan to 6 years of imprisonment in a penal regime colony;
  • Narek Kostanyan to 6 years of imprisonment in a penal regime colony;
  • Gregor Kuregyan to 6 years of imprisonment in a penal regime colony;

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. As it is seen from the verdict, the Court excluded the charges under the Articles 214.2.1, 214.2.3 and 279.2 of the Azerbaijan Republic Criminal Code, justifying it by the fact that the unlawful actions indicated in the Articles had been committed not by the accused but by others. Why the Court came to this conclusion is not clear in the verdict. It was voiced by the accused in the course of the investigation and trial. However, it is not clear either why the Court retained the charges under the Articles 228.3 and 318.2 of the Criminal Code, with no evidence other than the defendants’ testimonies.

The principle of publicity was violated at the trial, as neither journalists (except those working for the pro-governmental press), nor the public representatives were allowed into the courtroom. This principle of publicity is stipulated in the Article 27.1 of the Azerbaijan Republic Code of Criminal Procedure, where states: .

While safeguarding state, professional, commercial, personal and family secrets in accordance with this Code, court hearings in criminal cases and on other prosecution material shall be held publicly in all courts of the Azerbaijan Republic.

The principle of publicity is also enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1), and is one of the attributes of a fair trial. The transparency of the trial is one of the essential guarantees of the justice of the process. It protects the defendants from a tacit justice that eludes the public eye, and is one of the means of preserving the credibility of the tribunal. However, the rule of publicity of the trial may also derogate from requirements intended to protect the public order and interest of the parties in order to protect their right to privacy. A court of last resort is entitled to determine, having considered all the circumstances at its disposal, whether it is appropriate to waive the rule of publicity, taking into account, as an exception, the point of view of the accused and the interests of justice. In this case, there was no ruling by the court stating that the trial should be closed. In fact, though, the trial was conducted behind closed doors.

“The public nature of judicial proceedings, as referred in the Article 6(1), protects litigants from the tacit pursuit of justice outside the control of the public; it serves as a means of ensuring confidence and trust to the courts, both superior and subordinate. By making the course of justice transparent it contributes to the achievement of the objectives set out in the Article 6 § 1, namely the fairness of the proceedings, the guarantee of which is one of the fundamental principles of any democratic society in the sense of this Convention” (judgment of the European Court of Human Rights in Pretto and Others v. Italy, 8 December 1993).

In respect to the defendants, the presumption of innocence was also violated. According to the Article 63 of the Azerbaijan Republic Constitution,

  1. 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.

According to the Article 21.2 of the Criminal Procedure Code of the Azerbaijan Republic, the presumption of innocence is regulated as follows:

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.

All of the defendants’ testimonies are identical, written word by word, and unsupported by any evidence. Since the verdict was baseless, there are serious doubts about the defendants’ culpabilities, which have not been interpreted in their favour.

The presumption of innocence is also embodied in the European Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 6, para. 2), the International Covenant on Civil and Political Rights (Art. 14, para. 2), and the Universal Declaration of Human Rights (Art. 11, para. 1).

It is a very important question concerning the court’s assessment of the evidence. The court must consider the evidence as a whole. In this case, the evidence was half-hearted, not irrefutable, and not supported by one another. The court issues a conviction if the totality of the evidence examined during the proceedings determines the guilt of the accused in the crime (Article 44.1 of the Azerbaijan Republic Code of Criminal Procedure).

In criminal cases, besides the assessment, there is a requirement for the adequacy of the evidence.

According to the Article 146.1 of the Azerbaijan Republic Code of Criminal Procedure,

The notion that sufficient evidence has been collected for the prosecution means that the amount of evidence on the facts to be determined is such as to allow a reliable and final conclusion to be reached on the case.

The Article 146.2 of the Azerbaijan Republic Code of Criminal Procedure states, that the sufficiency of evidence for the prosecution shall help to achieve the following:

  • the investigation and the court proceedings to be carried out purposefully;
  • the court’s perspective on the prosecution to be determined in good time;
  • a correct and well-founded decision to be taken on the prosecution.

Moreover, the court did not fulfill the obligations imposed on it by the legislation. According to the Article 3 of the Court and Judges Act of the Azerbaijan Republic, 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, fulfill other objectives provided for in Constitution of the Republic of Azerbaijan and this Act.

According to the Article 7 of the Court and Judges Act of the Azerbaijan Republic, As set down in Article 25 of the Constitution of the Republic of Azerbaijan, justice in the Republic of Azerbaijan is administered on the bases principle of equality of everyone before law and court, irrespective of race, nationality, religion, language, sex, origin, proprietary status, public rank, conscience, membership in political parties, trade unions or other civil organizations.

The Article 8 of the Court and Judges Act of the Azerbaijan Republic Justice is administered in compliance with the principle of ensuring independence of judges without any restrictions, and in a fact based, impartial, just and lawful manner.

In addition, at the time of rendering the verdict, the court did not discuss the issues in the consultative room in the specific sequence, in which it should have done so according to the Article 346 of the Azerbaijan Republic Code of Criminal Procedure. In this article noted:

346.1. The following matters relating to the results of the court’s examination of the case shall be discussed by the court (or examined by the judge) in the deliberation room:

  • whether the criminal act is proved;
  • whether it is proved that the act committed by the accused has a criminal content;
  • whether it is proved that the accused was connected with the commission of the offence;
  • whether the accused is proved guilty of committing the offence;
  • whether the act committed by the accused corresponds to the ingredients of the offence with which the accused is charged under the relevant provision of criminal law;
  • whether there are circumstances that preclude the act being an offence;
  • whether there are circumstances aggravating or mitigating the criminal responsibility of the accused;
  • whether there are grounds for exonerating the accused from criminal responsibility;
  • whether the accused should be punished for the act committed;
  • whether there are grounds for punishing the accused for reoffending;
  • which punishment to impose on the accused (including consideration of previous offences, the total number of offences, the total length of sentences, the combination of penalties, calculation of the length of sentences, an alternative penalty, reduction of sentence, the jurors’ recommendation of a lighter sentence instead of the statutory penalty provided for in respect of this offence, and the possibility of imposing a conditional sentence);
  • whether the accused should serve the sentence;
  • if the accused is sentenced to deprivation of liberty, to which penal or corrective institution he should be committed;
  • whether it is necessary to impose additional penalties on the person found guilty of the offence, and if so, which penalty;
  • whether it is possible to apply compulsory corrective training measures to an under-age accused and, if so, which measures;
  • whether it is possible to apply compulsory measures of a medical nature to the accused and, if so, which measures;
  • in whose interest and for what amount the civil claim should be secured;
  • whether the attachment of property, either for the purpose of confiscation or to pay for the damage caused by the offence, should be rescinded;
  • how to decide the matter of the material evidence;
  • whether to annul, modify or adopt a restrictive measure (and if so, which measure), including how to resolve the matter of bail;
  • whom to charge with the court expenses, and their amount;
  • when the sentence is to start;
  • whether there are grounds for giving a special decision; if so, about whom it will be given and what its content will be.

In imposing the conviction the court did not comply with the requirements of the verdict. Thus, in accordance with the Article 349.3 of the of the Azerbaijan Republic Code of Criminal Procedure, the court verdict must be lawful and well-reasoned.

According to the Article 349.4 of the of the Azerbaijan Republic Code of Criminal Procedure, the court judgment shall be considered lawful if it fulfils the requirements of the Constitution of the Azerbaijan Republic, this Code and the criminal and other legislation of the Azerbaijan Republic.

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

  • if the conclusions at which the court arrives are based only on the evidence
  • examined during the court’s investigation of the case;
  • if the evidence is sufficient to assess the charge;
  • if the facts established by the court are consistent with the evidence investigated.

Even though the text of the Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms does not contain an exact reference to the judicial reasoning, the right to a fair trial enshrined in the Article obliges the courts to issue a motivated judgment.

The European Court of Human Rights (ECHR), in its decision in Helle v. Finland of 19 September 1997, states: “The notion of a fair trial requires that the domestic court, which has only briefly motivated its decision, whether this is only by incorporating the reasons provided by the first-instance court or in other ways, should really consider the substantive issues that have been brought to its attention and that it should not be merely content to affirm without qualification the conclusions of the first-instance court.”. https://www.legal-tools.org/doc/d04a4d/pdf/

In formulating the courts’ duty to issue grounded judgments, the ECHR pointed out that one of the goals of a reasoned judgment is to demonstrate to the parties that their claims have been adequately examined.

In the judgment of the European Court of Human Rights (ECHR) in the case of Tatishvili vs. Russia from 9 July 2007, states: “58. The Court reiterates that, according to its established case-law, which reflects a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. A further function of a reasoned decision is to demonstrate to the parties that they have been heard. Moreover, a reasoned decision affords a party the possibility to appeal against it, as well as the possibility of having the decision reviewed by an appellate body. It is only by giving a reasoned decision that there can be public scrutiny of the administration of justice.”

In the ECHR judgment in the case of Kuznetsov and Others v. Russian Federation from 11 January 2007, it is stated that a violation of the right to a fair trial may be recognized when a national court ignores the arguments submitted by one of the parties while adopting a judicial act. In the case in question, it was disputed that the applicants’ main argument was left beyond the scope of judicial review and, therefore, was not considered on the merits. The European Court of Human Rights assessed this situation as a failure of the domestic court to justify its ruling and ensure compliance with the principles of justice and equality of the parties, which resulted in a violation of the Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Thus, in issuing a guilty verdict, the Court neglected its legal competence and responsibilities, violating in respect of the defendants the relevant norms of both substantive and procedural law, and failed to take into account the provisions of the International Law and the precedents of the European Court of Human Rights.

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