Category: Courts

Tofig Yagublu, an opposition activist is been regularly arrested

TOFIG YAGUBLU, AN OPPOSITION ACTIVIST IS BEEN REGULARLY ARRESTED

Tofiq Yaqublu

Analysis of violation of law during Tofiq Yaqublu’s judicial proceedings

Baku City Narimanov District Court

Case № 4(005)-1701/2023 15 December 2023

Presiding judge: Gultakin Asadova

Defendant: Tofiq Yaqublu

Defender: Aqil Lahidj, Nemat Karimli

With participation of the Prosecutor’s Assistant of Narimanov district, Hamlet Huseynov, and Abdulla Jalili, an senior investigator at the Investigation Department of the Narimanov District Police Department

Tofiq Yaqublu, a well-known political figure in the country, joined the “Musavat” party in 1992. He was the first Deputy Head of the Executive Power of the Baku Binagadi district. He is also a veteran of the first Karabakh war.

  1. Yaqublu was arrested for the first time in 1998 and sentenced to 2 years imprisonment.

On February 4, 2013, he and Ilqar Mammadov, the Chairman of “REAL” party, were arrested in the course of local social disturbances in Ismayilli district of Azerbaijan. I. Mammadov was sentenced to 5 years imprisonment but on 17 March 2016, he was released according to an act of pardon.

In October 2020, T. Yaqublu was detained on an administrative case for malicious disobedience to the official request of the police officer, and sentenced to 30 days of administrative arrest.

Another criminal case against Yaqublu was initiated in 2020 under the Article “Hooliganism”, and on 3 September 2020, the Baku City Nizami District Court found T. Yaqublu guilty in committing the incriminated crime and sentenced him to 4 years of imprisonment. In his final speech, Tofig Yagublu called his case politically motivated. As a sign of protest against the verdict, he went on hunger strike. On 12 September 2020, T. Yaqublu was transferred from the detention center to the hospital due to his poor health condition. On 17th day of his hunger strike, the Baku City Court of Appeal changed Yagublu’s preventive measure to a house arrest. T. Yaqublu ceased his hunger strike, left the hospital and left to home following the Court’s ruling.

On 14 December 2023, T. Yaqublu was charged as a suspect in a criminal case initiated under the Articles 178.3.2 (Swindle, that is maintaining another persons property or buying another persons property by a deceit or breach of confidence, committed by organized group), 320.1 (Fake of certificate or other official document giving the rights or releasing from duties, with a view of its use or selling of such document, as well as manufacturing in same purposes or selling of counterfeit state awards of the Azerbaijan Republic, stamps, seals, forms) and 320.2 (Use of obviously counterfeit documents) of the Criminal Code of the Azerbaijan Republic.

The Senior Investigator of the Baku City Narimanov District Police Station Investigation Department applied to the court with a motion to apply a preventive measure in the form of detention in respect of T. Yaqublu. The Prosecutor’s Office supported the investigator’s motion and also asked the court to remand T. Yaqublu in custody.

On 15 December 2023, the Baku City Narimanov District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Tofiq Yaqublu in the form of detention for a period of 4 months.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The ruling stated that the grounds for the application of a preventive measure in the form of detention are:

  • concealment from the body conducting the criminal proceedings;
  • unlawful pressure on individuals involved in the criminal proceedings;
  • obstruction to the normal course of the preliminary investigation by concealing the significant documents for criminal prosecution;
  • committing again an act stipulated by the Criminal Law and posing a danger to the society;
  • evasion from summoning the investigative body without valid reasons.

The Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic stipulates the grounds for applying a preventive measure.  The list of grounds is rather limited and consists of the following provisions:

  • hidden from the prosecuting authority;
  • obstructed the normal course of the investigation or court proceedings by illegally influencing parties to the criminal proceedings, hiding material significant to the prosecution or engaging in falsification;
  • committed a further act provided for in criminal law or created a public threat;
  • failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;
  • prevented execution of a court judgment.

As one can see, the grounds listed in the judgment and the grounds listed in the Law are identical. They are simply derived from the Law.

However, there is no indication in the ruling as to what facts, arguments or evidence the investigating authority possessed in order to justify the request for a preventive measure in the form of arrest.

In order to be in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1), there are two conditions: lawfulness and legality. Legality means that it must be provided for in the National Law, and lawfulness means that it must be in accordance with the objectives provided for in the exhaustive list of cases contained in the Article 5(1) of the European Convention.

The judgment of the European Court of Human Rights (ECHR) in the case of Aksoy v. Turkey of 18 December 1996, states:

“The Court emphasizes the importance of the Article 5 of the Convention system: it enshrines a fundamental human right, namely the protection of individuals against arbitrary interference with their right to liberty by the State. The judicial monitoring over the executive’s interference in everyone’s right to liberty is an essential feature of the guarantees embodied in the Article 5 par 3, which are designed to minimize the risk of arbitrariness and guarantee the predominance of rights (…). Moreover, a prompt judicial intervention may lead to the detection and prevention of ill-treatment, which (…) is absolutely prohibited by the Convention and is non-derogable”.- https://hudoc.echr.coe.int/?i=001-58003

Thus, based on the example of this precedent, we can conclude that the Court is obliged to issue a lawful and legitimate ruling, rather than facilitate the investigative authorities in arresting the defendant, without indicating the arguments and evidence that are the grounds for the adoption of the strictest measure of restraint. In this case, as well as in 99% of similar cases, the Court did not fulfill its main obligation, namely, it did not demonstrate an individualized approach to a particular case and did not justify its conclusion on the application of arrest.

The commented ruling was not issued in compliance with the principles of legality and lawfulness, it did not comply with the provisions of the national substantive and procedural law, nor with the regulations of the international conventions binding on the Council of Europe member states which had ratified those conventions.

Furthermore, the investigating body did not have any arguments or circumstances that would have been sufficient for reasonable suspicion. The existence of reasonable suspicion requires the existence of facts or information that would convince an objective observer that a person may have committed the offense. What may be considered reasonable depends on the totality of the circumstances.

An interesting point in the Court’s ruling is that the investigating body, and subsequently the Court, indicated the re-offense and presenting a danger to society as grounds for arrest.

The European Court of Human Rights categorizes mentally ill individuals, alcoholics and drug addicts as those who may pose a danger to society. However, even in this case, the Court points out the following:

“Although the Convention allows the deprivation of liberty for these socially maladapted individuals: it should not be the only ground for considering them a threat to public safety; their own interest may require them to be confined in a psychiatric hospital. IIt doesn’t follow from the authorization of the detention of vagrants stipulated in the Article 5 that the same grounds, even better ones, could be applied to any one who might be considered even more dangerous” (Guzzardi v. Italy judgment of 6 November 1980). – https://hudoc.echr.coe.int/?i=001-57498

This precedent suggests that the Court’s ruling that T. Yaqublu left at large, might pose a danger to the society, is at least illogical and does not have even the slightest relevance to him.

The Court was also obliged to consider alternative preventive measures other than arrest, but it seems that it was not done. The arrest is such a strict measure that it can be justified only when other measures, less severe, have been regarded as insufficient to protect the personal or public interest demanding the remand in custody. It is not enough that the arrest be in accordance with the National Law; it is also essential that it be justified by the circumstances of the case.

In addition to the above, the Courts are also required to provide reasons for their judgments. It means that the Courts should comprehensively, fully and objectively consider the pros and cons of the case circumstances, correctly assess them and refer to the law provisions accurately. As seen, the Court did not fulfill its legal obligation in the present case. The biased attitude towards T. Yaqublu once again violated the fundamental rights of any individual, especially such an important right as the Right to Liberty and Personal Inviolability.

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Membership in the opposition is once again become a basis for arrest

AFFILIATION WITH THE OPPOSITION IS ONCE AGAIN A GROUND TO BE ARRESTED

Elbayi Karimli

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

Baku City Nasimi District Court

Case № 4(006)-418/2023

18 August 2023

Presiding judge: Jeyhun Taqiyev

Defendant: Elbayi Karimli 

Defender: Elman Agayev 

With participation of the Prosecutor’s Assistant of Nasimis district, Khanum Ashrafova, and Subkhan Zeynalov, an senior investigator at the Investigation Department of the Nasimi District Police Department

Elbayi Karimli, born in 2001, a member of the Popular Front Party of Azerbaijan (PFAP), was detained in August 2023. Yet, the party members managed to obtain the information on his arrest only two months later.

  1. Karimli was detained in Baku while he was drawing graffiti on the monument of ex-president, Heydar Aliyev, and shooting it on video.

He was charged with committing an offence under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic

According to the investigation, on 18 August 2023, E. Karimli was detained by the police on one of the Baku streets and brought to the Nasimi District Police Department, where he was subjected to personal search, and as a result it was found a heroin substance weighing 30.135 grams, which was produced by artisanal method.

One of the investigators from the Investigation Division within the Baku Nasimi District Police Department petitioned the Court to impose a preventive measure in the form of detention on the accused. The motion was also supported by the Prosecutor’s Assistant with a request to satisfy it.

 

On 18 August 2023, the Baku City Nasimi District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Elbayi Karimli in the form of detention for a period of 4 months.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

According to the Article 154.1 of the Code of Criminal Procedure of the Azerbaijan Republic, a restrictive measure is a coercive procedural measure intended to prevent unlawful behaviour by the suspect or accused during criminal proceedings and to ensure the execution of the sentence; it shall be applied in the cases described in Article 155.1 of this Code.

The Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic stipulates the grounds for applying a preventive measure.  The list of grounds is rather limited and consists of the following provisions:

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

So, it is clear that the Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic has imposed the strictest measure of restraint, an arrest, whereas the Law strictly controls its application.

Besides the Code of Criminal Procedure of the Azerbaijan Republic, the application of preventive measure in the form of arrest is also regulated by the numerous resolutions of the AR Supreme Court Plenum, the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the case law of the European Court of Human Rights (ECHR).

One of the important points in the application of preventive measure in the form of arrest is its grounds. The list of these grounds is enumerated in the Code of Criminal Procedure of the Azerbaijan Republic and it is clearly defined. Each ground requires specific arguments and evidence justifying the use of such a harsh preventive measure. Moreover, even if at the beginning of the investigation the arrest may be justified, later on the grounds for the application of arrest may be dropped. Each ground invoked by the investigating authority must be clearly substantiated, otherwise it will lead to a violation of the right to liberty and inviolability of individuals.

There are the following grounds specified in the court order to impose a measure of restraint in the form of arrest:

  • the gravity of the charge;
  • the nature and danger of the offence to the public;
  • potential to abscond from the authority conducting the criminal proceedings;
  • unlawful pressure on the trial participants;
  • committing another criminal offence and posing a danger to the community;
  • committing an offence punishable by a sentence of more than 2 years.

The judgment also contains numerous references to ECHR judgements. However, as noted above, there is not a single fact or piece of evidence in the judgment that could justify the arrest imposition.

Furthermore, the Court did not demonstrate a case-specific approach to the matter, it merely listed procedural rules and ECHR precedents irrelevant to the case.

An unjustified and unlawful order of arrest leads to a gross violation of the Right to Liberty guaranteed by the Constitution of the Azerbaijan Republic, Article 28, as well as Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

According to the Article 5(1) para c) of the European Convention for the Protection of Human Rights and Fundamental Freedoms,

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 deprivation of personal liberty prior to conviction should be used in exceptional cases, whereas the Liberty must be the rule. According to the ECHR precedents, detention is justified only if specific indications reveal a public interest which overrides the presumption of innocence. It means that pre-trial detention must be of such significance that the public security or public interest may be jeopardised by the accused’s freedom. The domestic judiciary should examine all the circumstances to ascertain whether a public interest would justify exceptions to the general rule of respect for individual liberty.

With regard to the violation of public order, certain offences, by their particular gravity and public reaction to their commission, may cause public disturbance which may justify pre-trial detention. However, this ground may be deemed relevant and sufficient only if it is founded on the facts that could indicate that release of a detainee in custody might actually disturb public order.

According to the case law, a threat of absconding does not derive from the mere possibility or ease for the accused to cross the border. In order to appear credible, it is necessary that all other factors concerning the characteristic of the accused, his moral character, his place of residence, his profession, his resources, his family ties, his connections of whatever nature to the country in which he is being prosecuted, should either confirm the existence of a fleeing threat or reduce it to such an extent that pre-trial detention is not justified.

As it is stated in the ruling, the search of the defendant’s personal possession resulted in the finding of a narcotic drug. That fact was the ground for the indictment. However, the Court did not consider the relevance of the drugs to the particular suspect.

“The existence of compelling grounds to suspect the individual under arrest of having committed an offence is a sine qua non (necessary condition) for the legality of detention (…), but after a while it is no longer sufficient; then the Court must ascertain whether the remaining judicial motives justify the deprivation of liberty (…). If those reasons prove to be ‘relevant’ and ‘sufficient’, the Court takes into account, furthermore, whether the competent national authorities have exercised ‘due diligence’ during the procedure” (judgment of the European Court of Human Rights (ECHR) in Letellier v. France of 29 June 1991). – https://hudoc.echr.coe.int/?i=001-57678

The Court refer to the gravity of the imputed offence, even though it is stipulated in the Code of Criminal Procedure of the Azerbaijan Republic, as a rule it could violate the principle of presumption of innocence which is guaranteed by the Article 63 of the Constitution of the Azerbaijan Republic, Article 21 of the Code of Criminal Procedure of the Azerbaijan Republic and Article 6(2) of the European Convention. The European Court’s case law in this regard is as follows:

“The mere existence of a serious suspicion of being involved in serious offences, being a factor relevant to the case, does not justify such a lengthy pre-trial detention” (judgment of the European Court of Justice in the case of Scott v. Spain of 18 December 1996). – https://hudoc.echr.coe.int/?i=001-58010

Thus, we have reviewed the Court ruling in the case of E. Karimli, charged with the commission of an offence under the Article 234.4.3 of the Criminal Code of the Azerbaijan Republic, and in respect of whom the Court had imposed a preventive measure in accordance with the investigator’s motion and prosecutor’s submission. However, there are no specific facts or evidence in the judgement that would justify the imposition of such a strict preventive measure. Nevertheless, the defendant remains in custody to this very day, which in fact legally violates his right to liberty, the most fundamental Right in a democratic society.

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The courts in Azerbaijan easily and quickly issue unjustified sentences to dissidents

THE COURTS IN AZERBAIJAN EASILY AND QUICKLY ISSUE UNJUSTIFIED SENTENCES TO DISSIDENTS

Samir Ashurov

Analysis of violation of law during Samir Ashurov’s judicial proceedings

Baku City Grave Crimes Court

Case № 1(101)-224/2023

18 December 2023

Presiding judge: Faiq Qaniyev

Judges: Mahmud Agalarov, Samir Aliyev

Defendant: Samir Ashurov

Defender: Elchin Sadiqov

Complainant: Elshan Nabiyev

Representative of complainant: Nazim Mehdiyev

The State Prosecutor: Babakhan Hasanaliyev, a Prosecutor of the Prosecution Support Department within the Serious Crimes Courts at the State Prosecution Support Directorate under the General Prosecutor’s Office of the Azerbaijan Republic

Samir Ashurov, born in 1984, was previously a member of the REAL political party. The political activist was first put under administrative arrest on 13 March 2018, when the Baku City Sabayil District Court issued a ruling on the administrative case against S. Ashurov. At that time, he was found guilty of committing offenses under the Articles 521 (Violation of regulations regarding the control of household noise) and 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic and sentenced to 30 days of administrative arrest.

On 28 April 2018, just two weeks later after his release, Samir Ashurov was detained for the second time and on the very same day he was found guilty of committing an administrative offense under the Article 206 (Illegal consumption of narcotic drugs, psychotropic substances, manufacturing, acquisition, storage, transportation or shipping, not for the purpose of sale, in the amount necessary for personal consumption) of the Code of Administrative Offenses of the Azerbaijan Republic. He was sentenced to another 60 days of administrative detention by the ruling of the Baku City Sabunchi District Court, and sentenced to another 60 days of administrative arrest.

Following his release in 2018, S. Ashurov along with his family emigrated to Germany, where he participated in a number of protests against the policy of the Azerbaijani authorities and the German authorities actions.  In 2020, S. Ashurov quit the REAL party. On 29 March 2022, S.Ashurov together with his wife and two young children were deported to Azerbaijan.

It should be reminded that in recent years, Ziya Ibrahimli, Jafar Mirzoyev, Punkhan Karimli, Mutallim Orujev and Malik Rzayev had been deported from Germany to Azerbaijan where they were later convicted. – https://jam-news.net/az/almaniyadan-deportasiya-olunanlar-az%C9%99rbaycanda-h%C9%99bs-edilir/

On 19 April 2022, Mr. Ashurov was detained 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 (hereinafter CC). On 20 April 2022, Mr. Ashurov was brought as a suspect, on 21 April he was charged as an accused and a preventive measure in the form of remand in custody was imposed on him.

In July 2022, S. Ashurov was charged with another offence under the Article 221.3 (The hooliganism committed with application of a weapon or subjects, used as the weapon)of the AR Criminal Code.

According to the investigation, on 19 April 2022, at about 21:15, Samir Ashurov was walking along one of Baku streets. A certain Elshan Nabiyev was walking towards him, and an argument arose between him and Mr Ashurov. S.Ashurov allegedly pushed Nabiyev with his shoulder, thereby committing an act of bullying. A fight broke out between the two men, following which Ashurov pulled out a household knife and inflicted two wounds in Nabiev’s abdomen that were dangerous to his health and penetrated his small intestine.

Samir Ashurov, who was interrogated in the Court as a defendant, did not plead guilty to the charges brought against him and testified that, knowing in advance about the planned arrest against him, he had been living in a rented flat rather than his own. Having returned from Germany to Azerbaijan and knowing about the imminent arrest, Samir Ashurov had been trying to protect himself from arrest for 21 days.

On 19 April 2022, while talking to his wife on the phone, he saw a man who attacked him shouting. At that point, Ashurov realised that it was a provocation that would lead to his further arrest. The man knocked Ashurov to the ground, at the same time he covered his face with his left hand to avoid being hit on the pavement. The man fell on top of him. There was not even any dialogue between them. Then, the man ran shouting “Police, police!”. Immediately, 5-6 unfamiliar men emerged and grabbed Ashurov. One of them placed a knife in his pocket with the words “This is your knife”. After that, Ashurov was brought to the 24th Baku city Nizami District Police Department of the Ministry of Internal Affairs, where he was subjected to physical violence. He was beaten with fists and feet. S.Ashurov told the police officers who were beating him that he had never carried a knife and inflicted any injuries on anyone, he had been frankly given a knife. But he couldn’t stand brutal beatings any longer and confessed that the knife was his.

Elshan Nabiyev, questioned as a victim at the trial, testified that on 19 April 2022, it happened that he and S. Ashurov got into a dispute, and the latter stabbed him. Nabiyev ran and felt that he was bleeding. There, he got down next to a tree and called an ambulance and the police. Then, he lost consciousness and woke up only in the hospital.

The wife of the defendant, Nurana Ashurova, questioned as a witness at the trial, testified that her family had been deported from Germany to Azerbaijan on 29 March 2022. A surveillance on her husband has been organised since that day. When they visited Samir’s father, they noticed a car with a licence plate 90-SC-318 next to the house, later seen near the clinic where the incident took place. Samir knew in advance about his imminent arrest; he said goodbye to his family even when he went out to throw out the trash. On 31 March, 2022, Ashurov was summoned to the General Prosecutor’s Office. At that time, he told the media that he could be arrested at any moment as four political activists had already been arrested earlier. Furthermore, Nurana Ashurova revealed that on 20 April, 2022, when Samir had already been arrested, she met with the investigator Rufat Ibayev. Ashurova asked Ibayev to provide her an information about the person who had allegedly been injured by her husband in order to visit him at the hospital. The investigator said that the man was at the Clinic No. 3. She went there. However, she did not manage to see Nabiyev, as outside the room there were the policemen who did not allow her to go in. N.Ashurova considers her husband innocent.

Nazar Yolchuyev, questioned as a witness at the trial, testified that he was a district police officer at the 24th Police Station. He also has a flat in the vicinity of the station. On 19 April 2022, together with another colleague, he was walking in the area around the Baku Nizami district when he heard a noise. They saw two men fighting and rushed straight to them. Samir Ashurov tried to run away but they managed to catch him. While holding his stomach, the second man started to call the ambulance. S.Ashurov was taken to the 24th Police Department. Afterwards, the appropriate investigative actions were carried out involving the forensic experts.

Questioned as a witness at the trial, Tariel Aliyev, a duty officer from the 24th Police Department, testified similarly to the testimony given by N. Yolchuyev.

Namig Shikhaliyev, a district police officer from the 24th Police Station, also questioned as a witness at the Court, testified that on 19 April 2022, he saw how one man was injured and the other was detained. S.Ashurov was brought to the police station and a knife was found in his possession.

Joshgun Qadimaliyev, an officer from the 24th Police Department, testified as a witness at the trial, and provided the similar to N. Shikhaliyev’s testimony. Other witnesses, Nariman Azizov, a senior interrogator from the 24th Department, and Jalal Aliyev, an operative from the 43rd Police Department, also testified as witnesses at the trial, confirming the investigation version of the story.

An eyewitness, Yusif Shirinli, testified that he lived in the vicinity of the 24th Police Station, and on 19 April 2022, he heard a noise and saw four people holding someone by the arms while the latter was trying to get away from them. He did not see any arms but noticed some blood stains on the pavement.

The record of the scene examination and seizure dated 19 April 2022, clearly indicated that drops of blood had been found at the site of the incident. The victim E. Nabiyev’s saliva samples were taken to determine his blood.

The forensic medical examination report from 20 April 2022, concluded that there had been found injuries on S. Ashurov’s body, the time of which coincided with 19 April 2022. These injuries were inflicted with a blunt object.

According to the forensic dactyloscopic examination dated 4 May 2022, the fingerprints on the knife matched Samir Ashurov’s fingerprints.

A forensic biological examination dated 30 June 2022, determined that the blood drops on the knife matched with the victim Elshan Nabiyev’s own blood type.

The Court considered S. Ashurov’s testimony to be in the nature of defence and evasion of criminal responsibility. The Court did not find any aggravating circumstances in the case.

On 18 December 2023, the Baku Court on Serious Crimes issued a verdict against Samir Ashurov. He was found guilty on the charges and sentenced to 6 years and 6 months imprisonment to be served in a penal colony of general regime.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

There are basic principles for the criminal proceedings listed in the Article 9 of the Criminal Procedure Code of the Republic of Azerbaijan. Among them are:

  • to establish rules as a basis for criminal prosecution;
  • to ensure a defence against restrictions on human and civil rights and liberties;
  • to determine the legality and grounds of every criminal prosecution.

The Article 9.2 of the Criminal Procedure Code of the Republic of Azerbaijan states,

Under the circumstances provided for in this Code, violation of the principles or conditions governing criminal proceedings may render the completed criminal proceedings invalid, cause the decisions taken during them to be annulled and deprive the evidence collected of its value.

The Law obliges the Courts and participants in criminal proceedings to comply with the Constitution of Azerbaijan and other provisions of the National and International Legislation.

Moreover, the Constitution of Azerbaijan stipulates the principle of separation of powers into executive, legislative and judicial ones. The Courts, as it is known, belong to the judicial power.

According to the Article 9 of the Courts and Judges ACT, direct or indirect restricting, undue influencing, threatening or interfering with court proceedings or acting in disrespect of the court and explicit disobedience by any person for any reason is inadmissible and shall entails liability provided by the legislation of the Republic of Azerbaijan.

Equally important is the observance of the presumption of innocence principle enshrined in the Article 63 of the Constitution of the Azerbaijan Republic and Article 21 of the Code of Criminal Procedure of the Azerbaijan Republic.

So, the above listed Norms and Principles of Judicial Proceedings that should be observed by the courts and judges. Now let us see what principles of legal proceedings have been observed in the criminal case against Samir Ashurov.

The evidentiary base is of fundamental importance in any criminal case. In order to establish the truth, it is necessary to comprehensively, fully and objectively examine all the evidence and give them a legal assessment in totality.

According to the Article 139 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.

In this context, the Court failed to establish at least three facts: the existence of the criminal incident, the defendant’s connection to the criminal incident, mitigating and aggravating circumstances. While analysing the verdict, there are questions that remain unanswered: whether the instrument of crime (knife) belongs to Samir Ashurov, whether the crime was actually committed. Although the Court indicated that the presence of two young children as mitigating circumstances, but did not take it into account when imposing the punishment.

There are the following evidence in S. Ashurov’s case:

  • defendant’s testimony;
  • eyewitnesses’ testimonies;
  • victim’s testimony;
  • forensic examinations;
  • records of examinations, confrontations, etc.

As stated above, the witnesses in the case are the police officers and only one witness, Yusif Shirinli, who lived near the scene of the incident. The eyewitness did not testify that he had seen how Ashurov stabbed Nabiyev. Nor did he testify that he had seen a fight between Ashurov and Nabiyev. Shirinli had only seen the police officers seizing Ashurov.

The police officers usually testify favourable to the prosecution and support the accusation. The case was not an exception either. All the policemen’s testimonies were against the accused, as they had a direct interest in the outcome of the case. Their testimonies should not be taken as irrefutable.

The defendant’s testimony was not examined by the Court but was merely regarded as being in the nature of a defence.

As for the conclusions of forensic medical expertise, then a judge may take them into account but, in any case, should evaluate them in conjunction with other pieces of evidence.

According to the Article 25.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

Judges and jurors shall not be bound by the conclusions reached the prosecuting authorities during the investigation.

However, we see quite the opposite in practice. The conclusions reached by the investigative body constitute the grounds for the indictment. The verdicts contain arguments similar to the investigation version. One-sided and biased assessment of evidence leads to violation of the accused’s right to liberty.

In the commented case, the presumption of innocence principle enshrined in the Article 63 of the Constitution of the Azerbaijan Republic and Article 21 of the Code of Criminal Procedure of the Azerbaijan Republic was violated. According to Article 21 of the Code of Criminal Procedure of the Azerbaijan Republic,

  • Any person suspected of committing an offence shall be found innocent if his guilt is not proven in accordance with this Code and if the court has not delivered a final judgment to that effect.
  • 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;
  • The accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defence of the suspect or the accused.

The Article 21.2. of the Code of Criminal Procedure of the Azerbaijan Republic is rather important, since an individual can be considered guilty only if there are “grounded suspicions”. There are many doubts in the criminal case against S. Ashurov, none of which were interpreted in his favour.

The Article 21.3 of the Code of Criminal Procedure of the Azerbaijan Republic imposes the obligation on the investigating body to prove the accusation. It means that the investigative body must submit to the Court as much irrefutable evidence as it is necessary for the conviction and sentencing. We have reviewed above evidences that became the grounds for conviction.

They all raise serious doubts regarding their conclusiveness and legitimate acquisition.

There is another equally important point, which was also supported by the forensic medical examination report from 20 April 2022. The forensic medical examination reveals that there were injuries on S. Ashurov’s body, the time of infliction coinciding with 19 April 2022. The injuries had been inflicted with a blunt object. The injuries were found under his eye, on his left knee, right arm and in the chest area.

In the course of the trial S.Ashurov testified that he had been subjected to physical pressure at the 24th Police Department. His words were supported by the above-mentioned expert examination report.

Despite the totality of evidence confirming his words, the Court did not investigate that fact, did not evaluate the defendant’s testimony and the corresponding expertise report.

He further testified that he had been forced to take the knife out of his pocket himself, thus showing that it belonged to him. According to the Article 66 of the Azerbaijani Constitution, no one may be forced to testify against himself, his spouse, children, parents, brother or sister. “The right to silence” is also granted to the accused by the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1). Though it is not specifically stated in the Article 6 of the Convention, there is ample case law of the European Court of Human Rights that enshrines this right for the accused.

“The Court turns to its long-standing practice that, even if the Article 6 of the Convention is not directly referred to, the rights invoked by the applicants, namely the right to remain silent and the right not to testify against oneself, are universally recognised under international law, which constitute the essence of the notion of a fair trial enshrined in the above-mentioned Article. Their main purpose is, inter alia, to protect the accused against malicious coercion by the authorities, thereby helping to avoid judicial errors and achieving the Article 6 objectives. In particular, the right not to facilitate his/her own prosecution presupposes that in a criminal case the prosecution seeks to establish its case without having recourse to the means of proof obtained by compulsion or pressure, contrary to the will of the accused. In this respect, the right is closely linked to the principle of the presumption of innocence enshrined in Convention Article 6 para. 2″ (judgment of the European Court of Human Rights in the case of Heaney et McGuinness v. Ireland judgment of 21 December 2000)

https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-59097%22]}

The Court did not examine the fact that S. Ashurov might have been subjected to physical violence while in the police custody, although the Convention, Article 3, prohibits ill-treatment and inhuman treatment. It is important that there are no exceptions in this Article and it applies in all cases.

Finally, the criminal procedure legislation imposes requirements on the verdict. According to the Article 349.3 of the Code of Criminal Procedure of the Azerbaijan Republic, the Court’s judgement must be lawful and substantiated.

The Article 349.4 of the Code of Criminal Procedure of the Azerbaijan Republic states,

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.

A judgement of the Court shall be recognised as substantiated in the following cases:

  • if the conclusions drawn by the Court are based only on the evidence examined at the trial;
  • if such evidences are sufficient for the prosecution assessment;
  • if the circumstances determined by the Court are in accordance with the examined evidence (Article 349.5 of the Code of Criminal Procedure of the Azerbaijan Republic).

As we can see, the Court did not take into account the above-mentioned procedural law norms, thereby violating in respect of S. Ashurov a number of fundamental rights, namely the right not to be subjected to ill-treatment and torture (Article 3), the right to liberty and security of person (Article 5(1), the right to a fair trial (Article 6 (paragraphs 1 and 2) and other similarly important rights enshrined in the European Convention.

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There is no freedom of speech in Azerbaijan

THERE IS NO FREEDOM OF SPEECH IN AZERBAIJAN

Logo of the Internet Channel Kanal-13

Analysis of violation of law during Internet Channel Kanal-13’s judicial proceedings

Baku City Sabayil District Court

Case № 2(009)-2521/2023

11 December 2023

Presiding judge: Ilkin Rustamli

Applicant: Ministry of Internal Affairs of the Azerbaijan Republic

The Lawsuit against the Internet Channel Kanal-13

In December 2023, the Ministry of Internal Affairs of the Azerbaijan Republic (hereinafter referred to as MIA) filed a lawsuit to restrict the broadcasting of Kanal-13, the executive director is Aziz Orujev, who was arrested on 27 November 2023, on the charge of unauthorized construction or installation works on the land plot not having the legal right of ownership under the Criminal Code of the Azerbaijan Republic (hereinafter referred to as CC AR).

On 19 December, 2023, Aziz Orujev was brought another charge of smuggling carried out by a group of individuals upon prior conspiracy.

It should be reminded that in November-December 2023 a number of journalists was arrested on the abovementioned charges (smuggling): the employees of the Internet portal “Abzac Media” – Ulvi Hasanli, Sevinj Vaqifqizi, Nargiz Absalamova, and Hafiz Babaly. Also, it was arrested Teymur Karimov, an employee of the Kanal-11 Internet channel.

The claim for the broadcasting restriction was justified by the fact that a warning that the information spread on the channel should be withdrawn as it violated the Article 13-3.1 of the Azerbaijani Law “On Information, Computerization and Protection of Information”. That claim had been sent to the domain owner and provider. However, that information was not deleted, so the complainant appealed with a similar request to the Court.

On 11 December 2023, the Baku City Sabayil District Court issued a ruling: to satisfy the application and restrict the broadcasting of Kanal-13.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The Court refers in its ruling to the Article 13-3.1 “On Information, Computerization and Protection of Information” of the Azerbaijan Republic Law. According to this Article, when “relevant executive authorities discover information prohibited by the Law, spread throughout any information resource, or on the basis of substantiated reports received from individuals, legal entities or state structures, a written warning shall be sent to such an information resource and domain owner, as well as to the host provider…”. According to the Complainant, a similar warning was sent to the channel owner, but the requirement to remove that information was not complied with.

Despite the Court’s reference to the aforementioned Article, there is no indication in the ruling what information caused the warning, whether that information was actually prohibited, when it was published, what was the audience and, consequently, the number of views, whose rights were violated; and whether there was any complaint at all about that information. In such a case, the Court’s judgment cannot be considered justified.

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

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

III. Propaganda provoking racial, national, religious and social discord and animosity is prohibited.

There is another Article in the Constitution that regulates freedom of information. The Article 50 of the Constitution of the Republic of Azerbaijan states,

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

III. Everyone’s right to refute or react to the information published in the media and violating his or her rights or damaging his or her reputation shall be guaranteed.

 

Apart from the national legal norms, there are also provisions of the International Conventions ratified by a member country of the Council of Europe. According to the Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms,

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.

As in all Articles of the Convention (except the Article on the prohibition of torture), there is also a list of restrictions that apply in certain cases (Article 10(2)). These restrictions are as follows:

  • if are prescribed by law,
  • and are necessary in a democratic society,
  • in the interests of national security, territorial integrity or public safety,
  • for the prevention of disorder or crime,
  • for the protection of health or morals,
  • for the protection of the reputation or rights of others,
  • for preventing the disclosure of information received in confidence,
  • for maintaining the authority and impartiality of the judiciary.

So, the list is exhaustive and limited. It means that any other ground not listed shall be considered illegitimate and, therefore, as having a purpose other than a legitimate one.

Any interference in the right to freedom of expression must be determined in a compelling manner. The Convention (Article 10) is intended to guarantee freedom of expression of opinion and ideas, as well as information, freely, through a variety of technical support, traditional or modern. Freedom of the press is fundamental in a democratic society.

The ruling of the European Court of Human Rights (ECHR) in the case of Handyside v. the United Kingdom of 7 December 1976, is said,

“Freedom of expression, as defined in Article 10(1), is one of the supporting pillars of a democratic society, a fundamental condition for its progress and the self-realization of each of its members. Subject to the requirements of para. 2, freedom of speech encompasses not only “information” or “ideas” that come across favorably or are regarded as harmless or neutral, but also those that offend, shock or disturb. These are the requirements of pluralism, tolerance and liberalism, without which there is no ‘democratic society’. – https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-57499%22]}

The ruling of the European Court of Justice in case of Radio ABC v. Austria of 20 October 1997, on the necessity of interference with the right to freedom of expression states:

“In order to judge whether intervention is necessary, the Contracting States enjoy a margin of appreciation, but the latter is inextricably linked to European control. If it is a question of (…) interference with the exercise of the rights and freedoms guaranteed by para. 1 of Article 10, that control must be strict due to their importance, as repeatedly emphasized by the Court. The need to restrict them must be established in a convincing manner”. – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22Radio%20ABC%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58104%22]}

The right to freedom of expression is closely linked to the right to obtain information that society enjoys. Thus, in the case of Leander v. Sweden of 26 March 1987, it is said:

“The right to freely obtain information fundamentally prohibits the State from restricting a citizen from acquiring information that others wish or may wish to convey to him”. – https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-57519%22]}

It is known that Kanal-13 is the first Internet TV channel in Azerbaijan, the programs related to the political and public problems of Azerbaijan. In light of state and pro-government TV channels, the public has an urgent need to see an alternative information flow. Restriction of the channel’s broadcasting leads to limitation of the public’s right to be informed, especially since there are 1.59 million subscribers to the channel.

“Article 10 ‘ covers freedom of artistic expression, in particular, the freedom to transmit information and ideas, which allows participation in the public exchange of information and cultural, political, social and other ideas'” (Muller et al, 27).

“While it (freedom of the press – note of ed.) should not transgress the boundaries set out, inter alia, “in the interests of national security” or “for the securing of justice”, it nevertheless has a duty to impart information and ideas on matters of public interest. Not only does the press have the duty to communicate such information or ideas: the public also has a right to obtain it. If it were otherwise, the press would not be able to fulfill its primary role of ‘public watchdog’ (Observer & Guardian, 59).

As we can see, the press has a very important role to play in a democratic society. Restrictions imposed on the press must be concrete, clear and fall within the list set out in Convention, Article 10, paragraph 2. Furthermore, the restriction should inquire:

  • whether there was state intervention,
  • whether the intervention was legitimate.

“Subject to the requirements of Article 10, the freedom of speech embraces not only ‘information’ or ‘ideas’ that come across favorably or are regarded as innocuous or neutral, but also those that offend, shock or alarm the State or a particular group of people. Furthermore, while the media should not exceed some limits, particularly when it comes to the reputation of individuals, it is necessary to distribute the information and ideas about any matter of public interest” (Bladet Tromso et Stensaas, 62).

Thus, the authority of the media is much broader than it may appear to be under the Article 10(2) of the Convention. It means that the restrictions imposed on the media must be clear and lawful.

The Court ruling to restrict an internet channel broadcasting from Sweden is at least illogical, as the Azerbaijani authorities do not have the technical means to do that. In the current case, there is an interference by the State, which does not pursue a legitimate objective.

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In Azerbaijan there is no guarantee for anyone’s right to freedom

IN AZERBAIJAN THERE IS NO GUARANTEE FOR ANYONE’S RIGHT TO FREEDOM

Hafiz Babaly

Analysis of violation of law during Hafiz Babaly’s judicial proceedings

Baku City Khatai District Court

Case № 4(001)-767/2023 

14 December 2023

Presiding judge: Sulkhana Hajiyeva

Defendant: Hafiz Babaly

Defender: Rasul Jafarov

With the participation of Togrul Huseynov, a Senior Investigator at the Investigation Division for Serious Crimes within the Investigation and Inquiry Department of the Baku City Police Headquarters, and Abulfaz Huseynov, a Prosecutor at the Department for Supervision over the Execution of Laws in the Investigation, Inquiry and Investigative Activity of the Baku Internal Affairs Bodies Prosecutor’s Office.

Hafiz Babaly, born in 1971, a journalist, was the Editor of Economics Department of the “Turan” News Agency. He was involved in journalistic investigations concerning the corruption in the country and cooperated with the “Abzas Media” resource.

It should be reminded that earlier the managers of “Abzas Media” website Ulvi Hasanli and Sevinj Vaqifqizi, as well as the website employees, Muhammad Kekalov and Nargiz Absalamova were arrested. About five website employees were questioned as witnesses in the criminal case against them.

On 13 December 2023, Hafiz Babaly was detained as a suspect in the case of “Absaz Media”.  He was charged under the Article 206.3.2 (Smuggling, is moving large amount through customs border of the Republic of Azerbaijan of goods or other subjects, committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic (CC AR). The same Article was previously brought against Ulvi Hasanli, Sevinj Vaqifqizi, Muhammad Kekalov, and Nargiz Absalamova.

In the investigator’s petition and the prosecutor’s submission it was stated that Hafiz Babaly had refused to cooperate with the investigative authorities to identify other participants in the crime, and therefore, being at large, could contact them, thereby enabling them to evade the investigation. The request to apply a measure of restraint to H. Babaly in the form of detention for 3 months and 7 days was indicated in the document.

The defendant, Hafiz Babaly, married and had a disability of the 3rd group, was interrogated in the course of the trial, testified that since 1997 he had been working as a journalist at “Turan” News Agency. He collaborated with “Abzas Media” for only one year and wrote 6 articles for them. Throughout the whole period of his cooperation he had been to the website office just 4 times.

His lawyer revealed that there had been no substantive and procedural grounds for imposing a measure of restraint on his client. The defendant was not in the website office and only wrote articles for them. H. Babaly does not plead guilty. The procedural grounds referred to by the investigative bodies were only based on assumptions. The defense counsel asked the Court to elect a measure of restraint against the journalist in the form of house arrest.

On 14 December 2023, the Baku City Khatai District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Hafiz Babaly in the form of detention for a period of 3 months.

On the same day, the U.S. Embassy in Azerbaijan issued a statement regarding the arrest of Hafiz Babaly. It said:

“We call on the Azerbaijani authorities to respect everyone’s fundamental freedoms, including the right to freedom of the press and expression.” – https://www.azadliq.org/a/hafiz-babali-saxlanib/32729187.html

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

It is well known that the Courts are supposed to carry out the justice. This is the last instance where the citizens apply for protection of their violated rights. According to the Article 3 Law “Courts 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.

The role of the courts is particularly important when they consider investigators’ petitions to apply preventive measures in the form of remand in custody. In this regard, the Courts must be mindful respecting human rights, as it is a citizen’s right to liberty.

According to the Article 9.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

Under the circumstances provided for in this Code, violation of the principles or conditions governing criminal proceedings may render the completed criminal proceedings invalid, cause the decisions taken during them to be annulled and deprive the evidence collected of its value.

The Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic states, that restrictive measures may be applied by the relevant preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court when the material in the prosecution file gives sufficient grounds to suppose that the suspect or accused has:

  • hidden from the prosecuting authority;
  • obstructed the normal course of the investigation or court proceedings by illegally influencing parties to the criminal proceedings, hiding material significant to the prosecution or engaging in falsification;
  • committed a further act provided for in criminal law or created a public threat;
  • failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;
  • prevented execution of a court judgment

The court ruling on the election of a preventive measure states that H. Babaly’s refusal to assist the investigation to expose other participants in the criminal offense made it reasonable to believe that, being at large, he could get in touch with them and create circumstances for their evasion from the investigation.

It further states that “H. Babaly is accused of committing a crime, for which the punishment is up to 8 years. The fact presumably provides grounds for committing a new crime or may pose a danger to the public” (!).” How the one is related to the other is absolutely incomprehensible.

Besides the mentioned grounds, the ruling also states that a preventive measure of arrest should be imposed on Hafiz Babaly as he could:

  • abscond from the body conducting the criminal proceedings;
  • leave the country;
  • obstruct the normal course of the preliminary investigation or trial by exerting unlawful pressure on individuals involved in the criminal proceedings;
  • commit another criminal act or pose a danger to the society.

It should be noted that no arguments in favor of the stated grounds in the ruling were indicated.

According to the Constitution of the Azerbaijan Republic, Article 28, as well as Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, each person has the right to liberty and security. The Article implies physical freedom of an individual.

“First and foremost, it is incumbent on the national authorities, namely the Courts, to interpret and apply domestic law. According to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1), failure to observe domestic law entails a violation of the Convention; the Court is able to and must examine whether the domestic law has been duly observed” (the judgment of the European Court of Human Rights (ECHR) in the case of Banham v. the United Kingdom of 10 June 1996).

https://hudoc.echr.coe.int/#%7B%22itemid%22:[%22001-57990%22]%7D

 

According to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1)(c), everyone has the right to liberty and security. No one shall be deprived of his liberty except in the following cases and in accordance with the procedure prescribed by the Law: (c) lawful arrest or detention of a person lawfully brought before a competent authority on reasonable suspicion of having committed an offence or when there are substantial grounds to believe that it is necessary to prevent him from committing an offence or from absconding after having done so.

“Reasonableness” of the suspicion on which the detention is to be grounded constitutes an essential element of the protection afforded by the Article 5(1)(c) against arbitrary deprivation of liberty. (…) Having a reasonable suspicion presupposes in advance the presence of facts or information that would convince an objective observer that an individual would be capable to commit such an offense. What may be regarded as justified depends, however, on the totality of the circumstances” (the judgment of the European Court of Justice in the case of Fox, Campbell and Hartley v. the United Kingdom of August 30, 1990). – https://hudoc.echr.coe.int/#%7B%22itemid%22:[%22001-57721%22]%7D

As stated above, the ruling on the imposition of the preventive measure stated that H. Babaly would pose a danger to society if he were at large. A detention is only justified if particular grounds disclose the existence of a public interest that overrides a respect for individual liberty. The Courts must consider all the circumstances to establish a public interest that would justify an exception to the general rule of respect for individual liberty.

With regard to the seriousness of the punishment, the European Court recalls,

“The sole existence of a substantial suspicion of involvement in serious offenses, being a relevant factor, does not justify such a lengthy pre-trial detention” (Scott, 78).

The mere abstract phrase about disturbing the public order is not enough to justify arrest. Thus, the ruling of the European Court of Justice in the case of Tomasi v. France of 27 August, 1992, states:

“The Court recognizes that the particular gravity of certain crimes may provoke a public reaction and social consequences that make pre-trial detention justified, at least for a certain time. Under exceptional circumstances, this point may be taken into account in the light of the Convention, at least in so far as domestic law (…) accepts the notion of a breach of public order due to an offence. However, it may only be considered justified and necessary if there are reasons to believe that releasing a detainee would actually violate public order or if that order is in fact threatened. A pre-trial detention should not be anticipated by a custodial sentence.”  https://hudoc.echr.coe.int/#%7B%22fulltext%22:[%22tomasi%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57796%22]%7D

The ruling does not contain a single argument that H. Babaly’s release would violate a public order or pose a threat to the society.

The Court’s assertion that the journalist could leave the country is also abstract, because to exclude such a possibility, it would be enough to seize Hafiz Babaly’s passport and restrict mobility. No one can leave the country unless he has a proper passport. Therefore, this argument also does not apply to a particular defendant, as it is not supported by a reasonable argument or evidence.

Apart from the above, the investigative body and Court did not take into account the accused’s personality, his medical condition (group 3 disability), moral image, impeccable reputation, permanent residence and place of work in a prestigious news agency that is known both within and outside the country.

Thus, the Court approached the case rather objectively, incompletely, abstractly, did not comprehensively examine all the circumstances, and as a result violated one of the fundamental human rights – the right to liberty and security.

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Neither freedom nor observance of the law are guaranteed to any independent journalist

NEITHER FREEDOM NOR OBSERVANCE OF THE LAW ARE GUARANTEED TO ANY INDEPENDENT JOURNALIST

Aziz Orujev

Analysis of violation of law during Aziz Orujev’s judicial proceedings

Baku City Sabayil District Court

Case № 4(009)-812/2023

27 November 2023

Presiding judge: Ulviya Shukurova

Defendant: Aziz Orujev

Defender: Bahruz Bayramov

 

With participation of the Prosecutor’s Assistant of Sabayil district, Azar Abdulov, and Elshan Badatzade, an investigator at the Investigation Division of the Sabayil District Police Department

Aziz Orujev has been practising journalism for many years and was the Executive Director of the Internet resource chanel Kanal-13.

In 2017, it was initiated a criminal case under the Articles 192 (Illegal business) and 308 (Abusing official powers) of the Criminal Code of the Azerbaijan Republic (CC AR) against A. Orujev. On 15 December 2017, the Baku Court for Serious Crimes issued a verdict against Aziz Orujev: he was found guilty on the charges and sentenced to 6 years in jail. The additional penalty was a ban on holding certain positions for a period of 2 years. According to the Court’s order, he was released on 5 April 2018.

At the end of 2023, in Azerbaijan, there were launched a series of journalists’ arrests. For instance, there were previously arrested Ulvi Hasanli, Sevinj Vaqifqizi, Muhammad Kekalov, Nargiz Absalamova, the management and employees of Absaz Media. Then, they arested a number of other political and social activists as well as the journalists: Teymur Karimov and Hafiz Babaly.

On 26 November 2023, late in the evening, the police came to Aziz Orujev’s house and asked him to follow them. He had beforehand said goodbye to his family members, including his small children of 1 and 3 years old, being aware of his imminent arrest.

  1. Orujev was charged with an offence under the Article 188.2 (Unauthorized implementation of construction and installation work on the land without the legal right of ownership, use or lease) of the AR Criminal Code.

An investigator of the Baku Sabayil District Police Department’s Investigation Division and the Sabayil District Prosecutor applied to the Court with a petition and submission to elect a preventive measure in the form of detention against the journalist.

On 27 November 2023, the Baku City Sabayil District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Aziz Orujev in the form of detention for a period of 3 months.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

According to the Article 155.1 of the Code of Criminal Procedure of the Azerbaijan Republic, restrictive measures may be applied by the relevant preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court when the material in the prosecution file gives sufficient grounds to suppose that the suspect or accused has certain actions.

In Azerbaijan, the application of preventive measures by the national courts is a very problematic issue. The practice of Courts on application of preventive measures is still so far from the legal norms (in particular from the international standards) that, as a rule, the arrest rulings do not differ from each other. They consist of abstract phrases, formal conclusions, and are also full of references to the legal norms. The rulings do not contain any particular arguments that would justify the use of the strictest preventive measure.

There is no difference between the ruling on the journalist’s arrest, we are considering now, and any others we have previously reviewed. As mentioned above, Aziz Orujev was accused of having committed a non-dangerous offence. According to the Article 15.3 of the AR Criminal Code, this offence falls into the category of less serious and does not pose any threat to the public. The application of preventive measure in the form of arrest is not legitimate in this case, the arrest is aimed at something not provided by the Law.

In addition to the above, the detention must be based on reasonable suspicions, which should be specified and relevant to the defendant.

“The Court must ascertain whether the other judicial reasons justify the deprivation of liberty (…). If those reasons are found to be ‘relevant’ and ‘sufficient’, the Court takes into account, furthermore, whether the competent domestic authorities have exercised the ‘due diligence’ in the procedure” (the judgment of the European Court of Human Rights in the case of Tomasi v. France of 27 August, 1992).- https://hudoc.echr.coe.int/#{%22fulltext%22:[%22Tomasi%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57796%22]}

 

Such general and abstract phrases as “the likelihood of absconding from the trial and investigation”, “interfere with the normal course of the investigation”, “exert unlawful pressure on those involved in the criminal proceedings”, as well as the likelihood of a harsh sentence in the case, alone may not be grounds for the imposition of a preventive measure in the form of arrest. Even though they are listed in the legislation, they must be supported with the concrete arguments, justifications and proofs. What makes the investigators and courts believe that this or that defendant may abscond from the investigation or influence other parties involved in the criminal proceedings? The answers to these questions should be precise and not cause doubts among outside observers.

However, as a ground, the arrest order stated the risk of absconding from the investigation. The European Court of Human Rights (ECHR) provides the following in such cases:

“If detention in custody is maintained solely because of a fear that an accused will abscond from justice, nevertheless he or she should be released from custody if provided with relevant assurances” (Wemhoff v. Germany, 27 June, 1968).

https://hudoc.echr.coe.int/#{%22fulltext%22:[%22wemhoff%20v%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57595%22]}

In determining the measure of restraint in the form of arrest, the following should also be taken into account:

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

As can be concluded, none of the above grounds had been taken into account by the Court when imposing a preventive measure against A. Orujev.

The Plenum of the AR Supreme Court, in its Resolution No. 2, paragraph 3, of 3 November 2009, “On the practice of legislation application by the Courts in considering applications related to the imposition of preventive measures in the form of arrest on the accused”, stated that, according to the Law, there must be substantive and procedural legal grounds for the imposition of a preventive measure on an accused individual. The substantive grounds are the evidence proving the defendant’s involvement in the incriminating offence set out in the criminal law. The procedural grounds consist of the totality of grounds determined by the Court, which confirm the legality and necessity of the preventive measure in the form of arrest, stipulated in the Article 155 of the AR Code of Criminal Procedure.

The above Resolution of the Supreme Court Plenum states that the Courts, while applying the legislation in this area, make a number of mistakes, in particular, they do not comprehensively examine the submissions made by the pretrial investigation bodies, they do not comment on the grounds for the strictest measure of restraint such as arrest, they just use broad terms like hiding from the body conducting the criminal proceedings, obstructing the normal investigation, failure to attend when summoned by the authority conducting the criminal proceedings, and the Courts do not rely on the grounds for arrest.

The AR Supreme Court Plenum has stipulated that the Courts should not tolerate a formalistic approach to the case and, furthermore, when imposing a preventive measure, they should verify the validity and legality of arrest submissions. It must be taken into account that “reasonable suspicions” must include the existence of sufficient evidences that a defendant has committed an offence. The Resolution also states that Courts should consider the possibility of applying an alternative preventive measure other than arrest when considering an imposition of punishment.

Despite the fact that the AR Supreme Court Plenum Resolution was issued in 2009, 14 years later, the current situation in this area has remained the same. Moreover, it tends to worsen every year. The Courts, as in the past, make the same number of mistakes and do not respect the practice of the European Court of Human Rights (ECHR), as well as the Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Non-compliance with the National Procedural Norms, the Resolution of the Supreme Court Plenum of 3 November 2009, the Article 5 (Right to liberty and security of person) of the European Convention, as well as the precedents of the European Court has once again resulted in a gross violation of Aziz Orujev’s right to freedom. His release would not have caused any public discontent or concern. As we conclude, the arrest of Mr. Orujev does not comply with the Law and, therefore, is not legitimate.

 

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The son of the opposition leader is definitely going to be imprisoned

THE SON OF THE OPPOSITION LEADER IS DEFINITELY GOING TO BE IMPRISONED

Orkhan Hajili

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

Baku City Yasamal District Court

Case № 4(004)-858/2023

2 November 2023

Presiding judge: Rashad Javadzade

Defendant: Orkhan Hajili

Defender: Neimat Karimli

With participation of the Prosecutor’s Assistant of Yasamal district, Mail Valiyev, and Punkhan Abilov, an investigator at the Investigation Division of the Yasamal District Police Department

Orkhan Hajili, born in 1991, the son of Arif Hajili, the Chairman of the opposition “Musavat” Party, is a member of the youth organization of the “Musavat“ Party.

On 11 October 2023, it was a traffic accident involving a car of Orkhan Hajili. Right after, on the Internet it was circulating a video of that accident. On 31 October 2023, Orkhan Hajili was charged as a suspect in a criminal case.

On 2 November 2023, Orkhan Hajili was brought to the Baku Yasamal district Prosecutor’s Office, where he was charged with committing crimes under the Articles 263.1 (Infringement by the person managing automobile, tram or other mechanical vehicle, rules of traffic or operation of vehicles, committed on imprudence entailed causing of less serious or minor serious harm to health of a victim) and 264 (Leaving a places of road and transport incident) of the Criminal Code of the Azerbaijan Republic.

The Chairman of the Musavat Party, Orkhan’s father, Arif Hajili told the media that his son was a driver of the car collided with another one, however the driver  of which had no complaints. He said that the investigation’s attempts to formalize the injuries of the driver of the collided car has failed, so a new “victim” was found 20 days later. According to the investigators’ version, the injuries were sustained by a passerby who was on the sidewalk.  Arif Hajili also said that the video footage, which was distributed by the investigative body clearly showed that there hadn’t been anyone at the place. – https://www.azadliq.org/a/orxan-hacili-qeza/32663560.html

The Chairman of the Musavat Party stated that his son’s arrest was related to his political activities and it was of a revenge nature, but he would not intend to stop his struggle for democracy and would keep going. – https://www.amerikaninsesi.org/a/7338409.html

 

Orkhan Hajili’s lawyer pointed out that his client had not pleaded guilty, he was not responsible for the accident, and the accusations that he had hit and run from the scene of the accident were false.

 

On 2 November 2023, the Baku City Yasamal District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Orkhan Hajili in the form of detention for a period of 2 months.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

According to the Article 154 of the Code of Criminal Procedure of the Azerbaijan Republic, a restrictive measure is a coercive procedural measure intended to prevent unlawful behaviour by the suspect or accused during criminal proceedings and to ensure the execution of the sentence; it shall be applied in the cases described in Article 155.1 of this Code.

The Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic stipulates the grounds for applying a preventive measure.  The list of grounds is rather limited and consists of the following provisions:

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

On this list, arrest is the strictest measure of restraint that should be applied only in extreme cases specified in the law.

The Article 157.1 of the Code of Criminal Procedure of the Azerbaijan Republic states, that in accordance with the principle of the presumption of innocence, if the connection of the person to the offence committed is not proven, he may not be arrested or unnecessarily detained on remand.

According to the Article 155.2 of the Code of Criminal Procedure of the Azerbaijan Republic, in resolving the question of the necessity for a restrictive measure and which of

them to apply to the specific suspect or accused, the preliminary investigator,

investigator, prosecutor in charge of the procedural aspects of the investigation or court shall bear in mind:

  • the seriousness and nature of the offence with which the suspect or accused is charged and the conditions in which it was committed;
  • his personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence;
  • whether he has committed a previous offence, the previous choice of restrictive measure and other significant facts.

The Article 263 of the Criminal Code of the Azerbaijan Republic, under which Orkhan Hajili was charged, is included in the category of crimes committed not intentionally but by negligence. In addition, the practice is that a measure of restraint not involving arrest is selected as a preventive measure under this article. However, in this case, the investigative authorities applied to the Court with a request to impose a preventive measure in the form of detention some 20 days later.

As grounds for the application of the arrest, the investigation and Court stated:

  • nature of the offense;
  • the offence circumstances;
  • potential to exert unlawful pressure on those involved in the criminal proceedings,
  • potential to interfere with the normal course of the preliminary investigation, possible hiding from the body carrying out the criminal proceedings.

Despite the enumeration of the above-mentioned grounds, there is no any evidence or arguments proving each of these grounds in the court ruling. They are simply coppied-pasted from the Law. A formal approach to the case is evident as well, since the judgment does not refer to the relevance of each ground to a particular defendant.

As stated above, the defendant is accused of charges that fall under the category of crimes of negligence. There was no deliberate or criminal intent in Orkhan Hajili’s conduct. Moreover, prior to his arrest, he had repeatedly turned up at the summons of the investigative body and personally submitted his documents. There was nothing in Orkhan Hajili’s deeds that could raise doubts on the part of the investigative body. He is not a recidivist, had not committed any dangerous acts, does not have a negative characteristic, and his release would not have caused any discontent to the public. In this case, it should be pointed out that Orkhan Hajili’s arrest could have been justified if his release would have caused shock, fear or public discontent.

The Court did not take into account the positive facts that O. Hajili did not drive while under the influence of alcohol or drugs, did not escape from the investigation, did not hit a pedestrian, which would have led to his death. All these serious consequences are not found in a particular criminal case. For this reason, it is not legitimate for a Court to apply the strictest measure of restraint on charges that do not fall into the category of premeditated and serious.

 

The investigation and Court had enough solid grounds to apply a preventive measure alternative to arrest  to Orhan Hajili.

 

The numerous judicial precedents of the European Court of Human Rights indicate that the Right to Liberty primarily refers to the physical freedom of an individual and authorizes arrest only in the cases specified in the Law.

The judgment of the European Court of Human Rights in the case of Kurt v. Turkey of 25 May 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”. –  https://hudoc.echr.coe.int/#{“fulltext”:[“kurt%20v.%20turkey”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-58198”]}

The unlawful application of a preventive measure in the form of arrest of Orkhan Hajili led to the violation of a fundamental right in a democratic society – the Right to Freedom, which is guaranteed under the Article 28 of the Constitution of the Azerbaijan Republic and Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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Being in the opposition in Azerbaijan means being deprived of freedom

BEING IN THE OPPOSITION IN AZERBAIJAN MEANS BEING DEPRIVED OF FREEDOM

Kanan Zeynalov

Analysis of violation of law during Kanan Zeynalov’s judicial proceedings

Baku City Surakhani District Court

Case № 3(010)-4826/2023

5 October 2023

Presiding judge: Elnur Nuriyev

The person against whom an administrative record was issued: Kanan Zeynalov

Defender: Afgan Kazimov

The administrative report was drawn up by: Natiq Ismayilov, a District policeman at the 33rd Police Station within the Surakhani District Police Department

In September 2023, there were multiple arrests of the public and political activists as well as journalists right after the anti-terrorist operation in Nagorno-Karabakh. Among others, there have been arrested five activists of the Popular Front Party of Azerbaijan (PFPA) including the PFPA Chairman’s bodyguard, Kanan Zeynalov. In the past, Zeynalov was a bodyguard of the late ex-President, Abulfaz Elchibey, and he is a veteran of the first Karabakh war, in the course of which he was severely wounded.

On 5 October 2023, Kanan Zeynalov was detained by the people in civilian clothes and brought to the 33rd Police Department of the Baku Surakhani District Police Department; where an administrative report against him was drawn up, under which he was charged with an offence under the Article 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic.

  1. Zeynalov, interrogated in the course of the trial, did not plead guilty to the offence and testified that on 5 October 2023, he went to the store to buy bread, he was approached by the police officers and taken to the police station. He, having neither resisted in any way nor committed any offence, followed them to the car. Kanan Zeynalov linked his arrest to his political activity and asked the Court to exempt him from administrative responsibility.

The district police officer who drew up the administrative report against K. Zeynalov testified at the trial that on 5 October 2023, he addressed the Chief of the police station with a report in which he indicated that a certain Kanan Zeynalov had maliciously disobeyed to the police officers’ demands. For this reason, he was brought to the police station where it was drawn up an administrative protocol against the above individual.

Questioned in court as a witness, a Major Nurlan Abdullaev, the operative commissioner of the 33rd Police Department, testified that on 5 October 2023, at about 17.10 he had noticed a man who had been loudly shouting obscene words not particularly addressed to anyone. Approaching him he asked not to violate a public order. However, the man didn’t stop screaming and rudely pushed away the police officers who tried to calm him down. Then, the man started a fight with them. The policemen took the man to the station, where it was found out that his name was Kanan Zeynalov. It was drawn up an administrative protocol for violation of Article 535.1 of the Administrative Offences Code of the Azerbaijan Republic against K. Zeynalov.

An operative of the 33rd Police Department, a lieutenant, Alovsat Alizade who was questioned as a witness at the trial, provided the testimony similar to that of Nurlan Abdullayev.

The Court did not find any mitigating or aggravating circumstances in the administrative case.

On 5 October 2023, the Baku City Surakhani District Court issued a ruling: to find Qiyas Ibrahimov guilty on the charges and sentence him to 25 days of administrative arrest.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

According to the Article 535.1 of the Administrative Offences Code of the Azerbaijan Republic, malicious disobedience to the lawful request of a police officer or military man  while on duties to protect a public order shall entail a fine of two hundred manat for individuals, and if, under the certain circumstances and taking into account  an offender’s personality, the application of these measures is deemed insufficient, it should be applied an administrative arrest for the period up to a month.

As it appears, the Article stipulates an alternative punishment to arrest in the form of a fine. In order to be able to apply an arrest to offender, it is necessary to have a condition of insufficiency of such a measure as a fine.

The judgement on the arrest of K. Zeynalov there is nothing said about the fact that the imposition of a fine would not be sufficient. The Court, by virtue of its legal duties, should consider alternative measures of punishment other than arrest, particularly since the Article under which K. Zeynalov was charged provided an alternative punishment in the form of a fine. Moreover, the charge was brought under the Code of Administrative Offences rather than the Criminal one. To deprive a person of liberty, even for 25 days, without respecting the principles of presumption of innocence, legality and equality of all before the law, it means at least to violate his right to freedom and personal inviolability.

The principle of respect for human and civil rights, and freedoms is one of the first principles in the Code of Criminal Procedure.

According to the Article 5.1 of the Administrative Offences Code of the Azerbaijan Republic,

The rights and freedom of human and citizens are of great value. All the state authorities (officials) having committed violation of these rights and freedom shall be responsible in the order provided by legislation of the Azerbaijan Republic.

Despite the existence of this legal Norm, this Norm is almost never applied, especially in such cases as prosecution of political and public activists and opposition-minded citizens.

According to the Article 8.2 and 8.3 of the Administrative Offences Code of the Azerbaijan Republic, the person being called to account for administrative violation has not to prove his guiltlessness. Doubts regarding the guiltiness of the person called to account for administrative violation shall be resolved in his favour.

There are a number of contradictions in this case, doubts about the guilt of K. Zeynalov, however none of them were interpreted in his favour.

Thus, the witnesses in the case are only the police officers who brought him to administrative responsibility. They were concerned in the outcome of the case, and therefore, the Court should have been alert and assessed their testimony in conjunction with the other evidence.

According to the Article 67.2 of the Administrative Offences Code of the Azerbaijan Republic, any witnesses are obliged to provide just truthful testimonies. Otherwise, a witness may be held administratively liable, of which he/she is warned before testifying.

Apart from the police testimony, there was no any other evidence of Kanan Zeynalov’s guilt in the case.

According to the Article 75 of the Administrative Offences Code of the Azerbaijan Republic, the following circumstances must be determined in the case:

  • the occurrence of an administrative offence (whether an administrative offence has taken place);
  • a individual who has committed an administrative offence;
  • guilt of an individual in commission of an administrative offence;
  • the circumstances aggravating and mitigating administrative responsibility;
  • the nature and extent of the damage caused by the administrative offence;
  • circumstances precluding proceedings on cases of administrative offences;
  • other circumstances significant for the proper determination of the case, as well as the causes and conditions that contributed to the occurrence of an administrative offence.

As evident from the ruling, the circumstances that would exclude administrative responsibility, as well as other circumstances, were not considered by the Court.

One of the proofs for administrative offences is a testimony of a person brought to responsibility (Article 78.1 of the Administrative Offences Code of the Azerbaijan Republic). Despite the fact that K. Zeynalov clarified to the Court that he had not committed any offence, not disobeyed the police and linked his arrest to some political activity, the Court did not respond to that testimony in any way and failed to provide any legal assessment.

The evidences in the case were obviously insufficient, as stated above, the Court considered only the testimony given by the police officers who had been directly involved in the case.

In such a case, the Judge, an authorized body (official), whose proceedings a case of administrative misconduct is under consideration, may adopt a ruling on requesting additional information necessary for the case settlement (Article 83.1 of the Administrative Offences Code of the Azerbaijan Republic).

The assessment of evidence is carried out in this way: a judge, an authorized body (official), examining a case on administrative misconduct, shall assess the evidence upon his internal conviction, based on a comprehensive, exhaustive and objective examination of all the circumstances relevant to the case in its totality.

As we can see, the lack of evidence in the case put under question the legality and validity of the Court ruling, which is based just on the police officers’ testimonies.

It is an interesting fact that in the summary of the ruling it was written that the arrest of Khayam Aliyev (!) began at 5.15 p.m. on 5 October 2023. The wrong spelling of the detainee’s name and surname indicates that that ruling was just copied from some other order, which the Court did not even bother to modify.

As per the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5, “everyone has the right to liberty and security of person. No one shall be deprived of his liberty except in such cases and in such manner as may be prescribed by the law.” The Article further lists those exhaustive examples of cases in which arrest may be lawful.

For a deprivation of liberty to be in conformity with the European Convention, it must fulfil two conditions: legality and lawfulness. The deprivation of liberty must be in accordance with a domestic law; in this respect, it is incumbent on national judicial authorities to interpret domestic law in a particular area.

The domestic proceedings must be fair and appropriate. The deprivation of liberty must also be legitimate, i.e. it must correspond to the purpose provided for in one of the cases from the comprehensive list set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5.

In the case of Kanan Zeynalov, the legality and lawfulness were not respected, as the arrest did not have a legitimate ground but fulfilled other goals not specified in the Law.

The judgment of the European Court of Human Rights (ECHR) in the case of Guzzardi v. Italy of 6 November, 1980, it is said,

“In proclaiming the ‘right to liberty’, Article 5(1) indicates a personal liberty in its classical sense, i.e. an individual’s physical liberty. Its purpose is to ensure that no one could be arbitrarily deprived of that freedom” –

https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-57498%22]}

Thus, it can be concluded that Kenan Zeynalov had been unlawfully detained, the Court violated his right to freedom issuing its ruling; the Right to Freedom is enshrined in the Article 28 of the Azerbaijani Constitution, as well as in the Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the precedents of the European Court of Human Rights.

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The court violated Rashad Aliyev’s right to freedom

THE COURT VIOLATES RASHAD ALIYEV’S RIGHT TO FREEDOM

Rashad Aliyev

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

Collegium for Criminal Cases of the Shirvan Court of Appeal

Case № 4(106)-60/2023

8 June 2023

Presiding judge: Mahammad Bagirov

Judges: Ismayil Ahmadov, Elshad Aliyev

Defendant: Rashad Aliyev

Defender: Rasul Jafarov

With the participation of Elton Agayev, a Senior Investigator of the Investigation Department of the Jalilabad District Police Department

Rashad Aliyev was born in 1997 in Jalilabad City of Azerbaijan, is a Shiite believer, previously convicted, and has a permanent place of residence in Jalilabad.

In early 2023, the Azerbaijani Embassy in the Islamic Republic of Iran was attacked. The wave of repression against Shiite believers, which began long ago, got more intense following the attack on the Embassy. In 2023, more than 500 people were arrested, all of whom were prosecuted for the illegal drug distribution on a large scale.

Rashad Aliyev was detained on 31 January 2023 in Jalilabad.

According to the investigation, a cellophane bag with the narcotic drug, methamphetamine, weighing 38.043 grams was found in his possession. Rashad Aliyev was charged with 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.

On 1 February 2023, the Jalilabad District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Rashad Aliyev in the form of detention for a period of 4 months. On 25 May 2023, the Jalilabad District Court extended the term of his arrest for another two months until 31 July 2023. The defence asked to revoke the Court ruling of 25 May 2023 and release Rashad Aliyev.

In the course of the trial it was questioned a Senior Investigator of the Investigation Department of the Jalilabad District Police Department who said that R. Aliyev could hide from the investigation and trial, put illegal pressure on the people involved in the criminal procedures, interfere with the normal course of the investigation, so he asked the Court to leave the ruling of 25 May 2023 unchanged.

On 8 June 2023, a Collegium for Criminal Cases of the Shirvan Court of Appeal issued a ruling: to reject the appeal of R. Aliyev’s defense lawyer and leave the ruling of the Jalilabad District Court of 25 May 2023, unchanged.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

According to the Article 159.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

At the pre-trial stage of criminal proceedings, the period of detention on remand of the accused may be prolonged by a court, depending on the complexity of the case: for those offences which do not pose a major public threat, for no longer than 1 (one) month; for minor offences, for no longer than 2 (two) months; for very offences, for no longer than 3 (three) months, and for very serious offences, for no longer than 4 (four) months.

As said above, the initial imprisonment term of R. Aliyev was 4 months due to the serious offence incriminated by the investigating authorities. Further, the Prosecutor and investigator requested to extend the term of imprisonment for another 2 months.

In the Article 159.1 of the Code of Criminal Procedure of the Azerbaijan Republic it is mentioned a “motivated motion” of the investigator and the prosecutor’s submission. However, the investigating authorities did not provide to the Court any arguments and justifications that would give grounds for the detention term extension. The investigator’s reason voiced out at the trial was not based on any evidence. As in other cases, in the case of R. Aliyev, the investigative body formally indicated, as a reason, the probability of concealment from the investigation and Court as well as exerting unlawful pressure on the criminal procedures parties.

Moreover, there was not a single argument related to the fact that the interests of society exceed the right to freedom of R. Aliyev, and the gravity of the incriminated offence cannot be sufficient for the selection of the strictest preventive measure.

In the Article 159.4 of the Code of Criminal Procedure of the Azerbaijan Republic states,

When deciding whether to prolong the remand period, the court shall have the right to substitute house arrest for detention on remand or to release the accused by granting bail and determining the amount of bail.

The Court did not exercise the legal power and failed to consider the option of changing an arrest to alternative types of preventive measures.

The present criminal case is not complicated from the point of view of participants in the proceedings, in terms of episodes, etc. There are not a large number of defendants and other participants, i.e. all this suggests that there is no need for a large amount of time to investigate the case. For the first 4 months of the investigation, it was carried out almost all investigative activities: interrogations, examinations, etc. In fact, during the next 2 months the defendant was kept in custody only on the basis of formal arguments, general phrases and an unfounded investigator’s petition.

 

The Right to Liberty and Personal Inviolability, apart from the Constitution of Azerbaijan, Article 28, is guaranteed by Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

According to the ECHR  on the matter of the cases concerning the terrorist offences investigation:

“The Court has reiterated on several occasions in the past that the investigation of terrorist offences is undoubtedly caused for the authorities particular difficulties. However, it does not mean that the investigating bodies have carte blanche under the Article 5 to arrest and detain individuals suspected in terrorism for interrogation outside the effective control of the domestic Courts or the Convention authorities. The point is the importance of Article 5 in the Convention system: it refers to a fundamental human right, namely the protection of the individual against the State arbitrary interference on his or her liberty. The judicial control of such interference on the part of the executive power is an important element in the Article 5(3) that is intended to minimise the danger of arbitrariness and ensure respect of the Law, which is one of the ‘basic principles of a democratic society’ referred to in the Preamble of the Convention” (Sakik et al. v. Turkey). – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22sakik%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58117%22]}

Equally important is the ECHR judgment in the case of Van Der Tang v. Spain of 13 July 1995, in which it is written about the reasonableness of the accused detention:

“The reasonableness of the detention of the accused must be assessed in each case in accordance to eace case particularity. (…) Detention can be justified, in a given case, only if certain indications reveal a genuine requirement of public interest overriding, notwithstanding the presumption of innocence, respect for individual liberty”.

https://hudoc.echr.coe.int/#{%22fulltext%22:[%22\%22CASE%20OF%20VAN%20DER%20TANG%20v.%20SPAIN\%22%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57946%22]}

As is evident from the European Court of Human Rights (ECHR) case law, the issuance of arrest orders must be clearly and fully justified, and an investigator’s petition for arrest must contain detailed arguments to prove each of the grounds given by the investigating authority to justify the arrest. The personal freedom of each individual is so essential in democratic societies that even in dealing with such serious and complicated offences as terrorism, the investigating authorities and Courts are obliged to consider a defendant’s liberty prior to sentencing. This ensures not only the legal right to liberty for a defendant, but also his/her presumption of innocence, to which investigative and judicial bodies must be governed at all stages of criminal proceedings.

The unjustified extension of Rashad Aliyev’s detention violated his right to liberty, presumption of innocence and a number of other related rights.

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The court in Azerbaijan once again violated the right of a citizen of the republic to freedom

THE COURT IN AZERBAIJAN HAS ONCE AGAIN VIOLATED THE RIGHT TO FREEDOM OF AN AZERBAIJANI CITIZEN

Jeyhun Balashov

Analysis of violation of law during Jeyhun Balashov’s judicial proceedings

Beylaqan District Court

Case № 4(020)-07/2023

3 February 2023

Presiding judge: Ramiz Nurullayev

Defendant: Jeyhun Balashov

Defender: Farhad Humbatov

With the participation of: Elkhan Azimli, a Senior Deputy Prosecutor at the Beylaqan District Prosecutor’s Office, and Rashad Novruzov, a Senior Police Lieutenant, investigator at the Investigation Division of the Beylaqan District Police Department

Jeyhun Balashov was born in 1977 in Beylaqan district of Azerbaijan; permanent resident in Beylaqan district married, obtained secondary education, a Shiite believer and member of the “Muslim Unity” Movement.

On 27 January 2023, the Embassy of Azerbaijan in the Islamic Republic of Iran was attacked. The wave of repression against Shiite believers, which had begun earlier, became more intense after the attack on the Embassy. In total, there were arrested about 500 believers in the first six months of 2023, and almost all of them were prosecuted for drugs smuggling on a large scale.

Jeyhun Balashov was detained on 2 February 2023, in Beylaqan district. According to the investigation, he had in his position 7 plastic bags and one of them contained the narcotic drug methamphetamine of 0.955 grams, the second — 1.019 grams, the third —1.016 grams, the fourth—1.061 grams, the fifth — 0.959 grams, the sixth — 0.976 gram and the seventh —1.094 grams, in total — 7.08 grams.

Jeyhun Balashov was charged with committing an offence under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic.

In the course of the trial it was questioned an investigator of the Beylaqan District Police Department’s Investigation Unit. His testimony was related to the preventive measure against J. Balashov, and it was in accordance to the indictment. He also required the Court to issue a preventive measure in the form of remand in custody for the period of 4 months.

Also, during the trial, a defendant, Jeyhun Balashov, testified that he hadn’t going to hide from the investigative body, had a permanent place of residence, and undertook to come when summoned by the investigative body. He asked the Court to reject the investigator’s motion for arrest.

The Senior prosecutor assistant of Beylaqan district who was interrogated at the trial testified that the accused had committed an act falling into the category of particularly serious ones and he was a person prone to crime,  so there were chances of another crime being committed. In addition, according to the Senior prosecutor assistant, the accused might hide from the investigative body, would fail to appear when summoned and try to avoid punishment evading criminal responsibility. He may also exert unlawful pressure on the others involved in the trial. Thus, the Assistant prosecutor asked the Court to satisfy the submission of the Prosecutor’s Office in order to apply to J. Balashov a measure of restraint in the form of arrest.

On 3 February 2023, the Beylaqan District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Jeyhun Balashov in the form of detention for a period of 4 months.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

According to the Article 154 of the Code of Criminal Procedure of the Azerbaijan Republic, a restrictive measure is a coercive procedural measure intended to prevent unlawful behaviour by the suspect or accused during criminal proceedings and to ensure the execution of the sentence; it shall be applied in the cases described in Article 155.1 of this Code.

There are several types of preventive measures listed in the Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic, the strictest one is detention (arrest).

The Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic stipulates the grounds for applying a preventive measure.  The list of grounds is rather limited and consists of the following provisions:

  • hidden from the prosecuting authority;
  • obstructed the normal course of the investigation or court proceedings by illegally influencing parties to the criminal proceedings, hiding material significant to the prosecution or engaging in falsification;
  • committed a further act provided for in criminal law or created a public threat;
  • failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;
  • prevented execution of a court judgment.

Now, let’s examine which of the above-mentioned grounds the Court pointed out in the ruling to justify the imposition of a preventive measure in the form of arrest:

  • exerting unlawful pressure on those involved in the criminal proceedings;
  • obstructing the normal course of the preliminary investigation and judicial proceedings;
  • re-committing an offence under the criminal law;
  • pose a danger to the public;
  • failure without a valid reason to appear at the summons of the body conducting the criminal proceedings;
  • evading from criminal liability and serving punishment;
  • the seriousness of the accusation.

As we can see, the Court stated almost all the grounds listed in the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic. However, the ruling does not contain a single fact or argument proving any of the above grounds. Plus, the ruling does not specify whether any ground has been applicable to a particular person, or directly related to the accused.

It is odd that the Court, in its ruling, referred to the decision of the European Court of Human Rights (ECHR), the case of Lukanov v. Bulgaria, in which it was listed three conditions in order to impose an arrest: first, the arrest must be required by the domestic Law, second, the detainee must be brought before a competent court, and third, there must be reasonable suspicion of the commission of an offence.

Despite the reference to the ECHR judgment in this case, the domestic Court did not verify whether such conditions could be met in the present case. Even if the arrest was foreseen by the National Law, in this case it was imposed in violation of the procedural regulations. Furthermore, there was no clarity from the judgment regarding the defendant’s involvement in the drugs possession. It was testified only by the police officers who had detained Mr. Balashov.

The following is what the European Court of Human Rights said about “reasonable suspicion” in its judgment in the case of Fox, Campbell and Hartley v. the United Kingdom of 30 August 1990,

“The ‘reasonableness’ of the suspicion on which detention must be founded is an essential element of the protection afforded by subparagraph (c)(1) of the Article 5, against an arbitrary deprivation of liberty. (…) The existence of a reasonable suspicion presupposes beforehand the existence of facts or information that could convince an objective observer that an individual could have committed the offence. Whatever might be considered as reasonable depends, however, on the set of circumstances”. – https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-57721%22]}

Unfortunately, taking into account the current situation and practice of the police, the investigators’ testimonies who detained the defendant, as well as the results of the drugs chemical examination, all above are rather doubtful to convince an objective observer that J. Balashov had committed that crime.

It is repeatedly stated in the arrest ruling that the accused was a person prone to committing a crime. It is unclear on what facts and arguments the police and Court reached such an assessment. It should also bear in mind that the ruling does not contain any facts about the crime previously committed by J. Balashov.

The Court justifies the application of the strictest preventive measure for a rather long period of time (initially it was for 4 months but later the term of imprisonment was repeatedly extended) by the fact that the defendant was accused of committing a serious crime. In this regard, the ECHR issued a ruling in the case of Scott v. Spain of 18 December 1996, which states,

“The mere existence of a credible suspicion of being involved in serious offences, being a relevant factor, does not justify such a lengthy pre-trial detention”. – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22scott%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58010%22]}

Thus, the lack of particular arguments and justifications on the part of the Court, that could justify the imposition of preventive measure in the form of arrest, the general statements such as the risk of escape, hiding from the court and investigation, exerting illegal pressure on the parties involved in the process, etc., the absence of reasonable suspicion in the commission of a criminal offense on the part of the accused led to a gross violation of his Right to Freedom enshrined in the Article 28 of the Azerbaijani Constitution, Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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