Category: Courts

The trial against 11 individuals in the so-called “Terter case”

The trial against 11 individuals in the so-called “Terter case”

One of the most top-secret and bloody crimes of the Aliyev regime

Turan Ibrahimli
Mushfiq Ahmadli
Nasif Aliyev
Faiq Ahmadov Atabey Rahimov

Analysis of violation of law during the next “Terter case”  judicial proceedings

 

Terter City Military Court

Case №1 (098)-91/2018

14 June 2018

Presiding judge: Ilqar Quliyev

Judges: Ahmad Sariyev, Vidadi Nasirov

The State Prosecutors: Mr. Ismayil Aliyev, the Senior Prosecutor of the Defence of Public Prosecutions Department at the Azerbaijan Republic Military Prosecutor’s Office; Ismail Aliyev, Justice Advisor; Lieutenant-Colonel Javid Jumshudov, the Prosecutor of the Public Defence Prosecutions Department at the Azerbaijan Republic Public Prosecution Office; Nijat Huseynli, a first-rank lawyer of the Azerbaijan Republic Public Prosecution Office

Defendants: Sultan Zeydullayev, Rauf Orujev, Atabey Rahimov, Emin Adilzade, Faiq Ahmadov, Nasif Aliyev, Majid Qasimov, Mushfiq Ahmadli, Alizamin Quliyev, Turan Ibrahimli, Mirpasha Mehdiyev

Defenders: Tofiq Allahverdiyev, Telman Suleymanov, Fuad Iskandarov, Humbat Salahov, Ramiz Abdullayev, Jafar Hajiyev, Zabil Qahramanov, Seymur Zeynalov, Shamsaddin Quliyev, Yusif Seyidov, Islam Teymurov, Fuzuli Nabiyev

Victims: Agasif Safarov, Tehran Alizamanli, Bahaddin Nuruzade, Vasif Mammadaliyev, Aqil Shafiyev, Elmaddin Jafarov, Qurban Ahmadov, Ulvin Talybov, Kamran Humbatov, Shaban Quziyev, Nazir Qudratov, Izzat Suleymanov, Zaur Mammadov, Fariz Farzaliyev, Orkhan Afqanli, Joshqun Abbasov, Nadjmaddin Karimov, Farzali Jakhangirov, Namiq Farkhadov, Elmir Bagirov, Dursun Alili, Elnur Hajiyev, Ramin Isayev, Tahir Mahmudov, Nemat Maharramov, Elshan Quliyev, Aga Shahpelengov, Ibrahim Ibadly, Talat Khankishizade, Nurlan Jabrayilzade, Bakhlul Mammadagazade, Ilkin Julmaliyev, Vusal Ibrahimov, Safarali Nabiyev, Kerim Yaserli, Shariyar Agayev

Representatives of victims: Adalat Hajiyev, Teymur Mammadov, Jamil Hasanov

Legal successor of the victim: Rahib Abbasov

Sultan Zeydullayev, born in 1989, a native of Baku City, an Azerbaijani Armed Forces lieutenant, was charged with committing crimes under the Articles:
• 134. (Threat to murder or causing of serious harm to health),
• 150.2.1. (Buggery or other actions of sexual nature, committed by a group of persons, by a group with a premeditated conspiracy or by an organized group),
• 150.2.4. (Buggery actions of sexual nature, carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 150.2.5. (Buggery actions of sexual nature, committed repeatedly),
• 151. (Coercion into actions of sexual nature),
• 274. (State betray),
• 329.3. (Resistance to a chief, as well as to other person, implementing duties of military service assigned to him, or his compulsion to infringement of these duties, connected with violence or with threat of its application, committed in wartime or fighting conditions),
• 330.3. (Causing easy harm to health of the chief or causing to him injuries in connection with execution of duties by him on military service, committed in wartime or fighting conditions),
• 331.2. (The insult by chief of subordinate, as well as by subordinate of chief during performance or in connection with performance of duties on military service),
• 331.3. (Causing injuries or tortures by chief of subordinate during performance or in connection with performance of duties on military services),
• 332.3. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed entailed to heavy consequences),
• 338.1. (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state),
• 338.2. (The same act which harmed interests of state safety or has entailed to other heavy consequences),
• 341.3 (Complicity in abuse of authority or official position committed in wartime or during combat),
• 349.2.1. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed repeatedly),
• 349.2.2. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed by group of persons),
• 349.2.3. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, entailed to heavy consequences),
• 349.2.4. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed in wartime or in fighting conditions), of the Criminal Code of the Azerbaijan Republic.

Rauf Orujev, born in 1984, a native of Sumqayit City, an Azerbaijani Armed Forces soldier, was charged with committing crimes under the Articles:
• 274. (State betray),
• 338.1. (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state),
• 338.2. (The same act which harmed interests of state safety or has entailed to other heavy consequences),
• 341.3 (Complicity in abuse of authority or official position committed in wartime or during combat) of the Criminal Code of the Azerbaijan Republic.

Atabey Rahimov, born in 1994, a native of Lerik District, an Azerbaijani Armed Forces lieutenant, was charged with committing crimes under the Articles:
• 134. (Threat to murder or causing of serious harm to health),
• 150.2.1. (Buggery or other actions of sexual nature, committed by a group of persons, by a group with a premeditated conspiracy or by an organized group),
• 150.2.4. (Buggery actions of sexual nature, carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 150.2.5. (Buggery actions of sexual nature, committed repeatedly),
• 151. (Coercion into actions of sexual nature),
• 274. (State betray),
• 329.3. (Resistance to a chief, as well as to other person, implementing duties of military service assigned to him, or his compulsion to infringement of these duties, connected with violence or with threat of its application, committed in wartime or fighting conditions),
• 331.2. (The insult by chief of subordinate, as well as by subordinate of chief during performance or in connection with performance of duties on military service),
• 338.1. (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state),
• 338.2. (The same act which harmed interests of state safety or has entailed to other heavy consequences),
• 341.3 (Complicity in abuse of authority or official position committed in wartime or during combat) of the Criminal Code of the Azerbaijan Republic.

Emin Adilzade, born in 1993, a native of Beylaqan District, an Azerbaijani Armed Forces soldier, was charged with committing crimes under the Articles:
• 274. (State betray),
• 331.2. (The insult by chief of subordinate, as well as by subordinate of chief during performance or in connection with performance of duties on military service),
• 331.3. (Causing injuries or tortures by chief of subordinate during performance or in connection with performance of duties on military services),
• 338.1. (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state),
• 338.2. (The same act which harmed interests of state safety or has entailed to other heavy consequences),
• 341.3 (Complicity in abuse of authority or official position committed in wartime or during combat) of the Criminal Code of the Azerbaijan Republic.

Mirpasha Mehdiyev, born in 1995, a native of Agdjabedi District, an Azerbaijani Armed Forces soldier, was charged with committing crimes under the Articles:
• 134. (Threat to murder or causing of serious harm to health),
• 150.2.1. (Buggery or other actions of sexual nature, committed by a group of persons, by a group with a premeditated conspiracy or by an organized group),
• 150.2.4. (Buggery actions of sexual nature, carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 151. (Coercion into actions of sexual nature),
• 228.1. (Illegal purchase, transfer, selling, storage, transportation or carrying of fire-arms, accessories to it, supplies (except for the smooth-bore hunting weapon and ammunition to it), explosives),
• 274. (State betray),
• 331.2. (The insult by chief of subordinate, as well as by subordinate of chief during performance or in connection with performance of duties on military service),
• 331.3. (Causing injuries or tortures by chief of subordinate during performance or in connection with performance of duties on military services),
• 338.1. (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state),
• 338.2. (The same act which harmed interests of state safety or has entailed to other heavy consequences),
• 341.3 (Complicity in abuse of authority or official position committed in wartime or during combat) of the Criminal Code of the Azerbaijan Republic.

Faiq Ahmadov, born in 1990, a native of Neftchala District, an Azerbaijani Armed Forces soldier, was charged with committing crimes under the Articles:
• 120.2.1. (Deliberate murder, committed by group of persons, on preliminary arrangement by group of persons, by organized group or criminal community (organization);
• 120.2.4. (Deliberate murder, committed with special cruelty or in publicly dangers way);
• 120.2.12. (Deliberate murder, committed on motive of national, racial, religious hatred or enmity);
• 134. (Threat to murder or causing of serious harm to health),
• 150.2.4. (Buggery actions of sexual nature, carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 150.2.5. (Buggery actions of sexual nature, committed repeatedly),
• 151. (Coercion into actions of sexual nature),
• 274. (State betray),
• 329.3. (Resistance to a chief, as well as to other person, implementing duties of military service assigned to him, or his compulsion to infringement of these duties, connected with violence or with threat of its application, committed in wartime or fighting conditions),
• 331.2. (The insult by chief of subordinate, as well as by subordinate of chief during performance or in connection with performance of duties on military service),
• 331.3. (Causing injuries or tortures by chief of subordinate during performance or in connection with performance of duties on military services),
• 338.1. (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state),
• 338.2. (The same act which harmed interests of state safety or has entailed to other heavy consequences),
• 341.3 (Complicity in abuse of authority or official position committed in wartime or during combat),
• 349.2.1. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed repeatedly),
• 349.2.2. ((Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed by group of persons),
• 349.2.3. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, entailed to heavy consequences),
• 349.2.4. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed in wartime or in fighting conditions) of the Criminal Code of the Azerbaijan Republic.

Nasif Aliyev, born in 1993, a native of Baku City, an Azerbaijani Armed Forces soldier, was charged with committing crimes under the Articles:
• 134. (Threat to murder or causing of serious harm to health),
• 150.2.1. (Buggery or other actions of sexual nature, committed by a group of persons, by a group with a premeditated conspiracy or by an organized group),
• 150.2.4. (Buggery actions of sexual nature, carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 150.2.5. (Buggery actions of sexual nature, committed repeatedly),
• 151. (Coercion into actions of sexual nature),
• 274. (State betray),
• 329.3. (Resistance to a chief, as well as to other person, implementing duties of military service assigned to him, or his compulsion to infringement of these duties, connected with violence or with threat of its application, committed in wartime or fighting conditions),
• 349.2.1. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed repeatedly),
• 349.2.2. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed by group of persons),
• 349.2.3. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, entailed to heavy consequences),
• 349.2.4. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed in wartime or in fighting conditions) of the Criminal Code of the Azerbaijan Republic.

Majid Qasimov, born in 1987, a native of Qazakh District, an Azerbaijani Armed Forces soldier, was charged with committing crimes under the Articles:
• 134. (Threat to murder or causing of serious harm to health),
• 150.2.1. (Buggery or other actions of sexual nature, committed by a group of persons, by a group with a premeditated conspiracy or by an organized group),
• 150.2.4. (Buggery actions of sexual nature, carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 150.2.5. (Buggery actions of sexual nature, committed repeatedly),
• 151. (Coercion into actions of sexual nature),
• 274. (State betray),
• 329.3. (Resistance to a chief, as well as to other person, implementing duties of military service assigned to him, or his compulsion to infringement of these duties, connected with violence or with threat of its application, committed in wartime or fighting conditions),
• 331.2. (The insult by chief of subordinate, as well as by subordinate of chief during performance or in connection with performance of duties on military service),
• 331.3. (Causing injuries or tortures by chief of subordinate during performance or in connection with performance of duties on military services),
• 332.2.1. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed repeatedly),
• 332.2.2. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed two or more persons),
• 332.2.3. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed by group of persons, on preliminary arrangement by group of persons or by organized group),
• 332.2.4. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed with application of a weapon),
• 332.3. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed entailed to heavy consequences),
• 338.1. (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state),
• 338.2. (The same act which harmed interests of state safety or has entailed to other heavy consequences),
• 341.3 (Complicity in abuse of authority or official position committed in wartime or during combat),
• 349.2.1. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed repeatedly),
• 349.2.2. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed by group of persons),
• 349.2.3. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, entailed to heavy consequences),
• 349.2.4. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed in wartime or in fighting conditions) of the Criminal Code of the Azerbaijan Republic.

Mushfiq Ahmadli, born in 1990, a native of Barda City, an Azerbaijani Armed Forces soldier, was charged with committing crimes under the Articles:
• 134. (Threat to murder or causing of serious harm to health),
• 150.2.1. (Buggery or other actions of sexual nature, committed by a group of persons, by a group with a premeditated conspiracy or by an organized group),
• 150.2.4. (Buggery actions of sexual nature, carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 150.2.5. (Buggery actions of sexual nature, committed repeatedly),
• 151. (Coercion into actions of sexual nature),
• 274. (State betray),
• 329.3. (Resistance to a chief, as well as to other person, implementing duties of military service assigned to him, or his compulsion to infringement of these duties, connected with violence or with threat of its application, committed in wartime or fighting conditions),
• 331.3. (Causing injuries or tortures by chief of subordinate during performance or in connection with performance of duties on military services),
• 338.1. (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state),
• 338.2. (The same act which harmed interests of state safety or has entailed to other heavy consequences),
• 341.3 (Complicity in abuse of authority or official position committed in wartime or during combat),
• 349.2.1. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed repeatedly),
• 349.2.2. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed by group of persons),
• 349.2.3. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, entailed to heavy consequences),
• 349.2.4. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed in wartime or in fighting conditions) of the Criminal Code of the Azerbaijan Republic.

Alizamin Quliyev, born in 1990, a native of Terter District, an Azerbaijani Armed Forces soldier, was charged with committing crimes under the Articles:
• 274. (State betray) of the Criminal Code of the Azerbaijan Republic.

Turan Ibrahimli, born in 1998, a native of Ismayilli District, an Azerbaijani Armed Forces soldier, was charged with committing crimes under the Articles:
• 134. (Threat to murder or causing of serious harm to health),
• 150.2.1. (Buggery or other actions of sexual nature, committed by a group of persons, by a group with a premeditated conspiracy or by an organized group),
• 150.2.4. (Buggery actions of sexual nature, carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 150.2.5. (Buggery actions of sexual nature, committed repeatedly),
• 151. (Coercion into actions of sexual nature),
• 274. (State betray),
• 331.2. (The insult by chief of subordinate, as well as by subordinate of chief during performance or in connection with performance of duties on military service),
• 331.3. (Causing injuries or tortures by chief of subordinate during performance or in connection with performance of duties on military services),
• 332.2.1. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed repeatedly),
• 332.2.2. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed two or more persons),
• 332.2.3. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed by group of persons, on preliminary arrangement by group of persons or by organized group),
• 332.2.4. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed with application of a weapon),
• 332.3. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed entailed to heavy consequences),
• 338.1. (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state),
• 338.2. (The same act which harmed interests of state safety or has entailed to other heavy consequences),
• 341.3 (Complicity in abuse of authority or official position committed in wartime or during combat),
• 349.2.1. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed repeatedly),
• 349.2.2. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed by group of persons),
• 349.2.3. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, entailed to heavy consequences),
• 349.2.4. (Deliberate destruction or damage of a weapon, supplies, military engineering or other military property, at absence of attributes of other crime, committed in wartime or in fighting conditions) of the Criminal Code of the Azerbaijan Republic.

Sultan Zeydullayev

On May 2017, Sultan Zeydullayev was detained. On 3 May 2017 by a court order against him it was chosen a preventive measure in the form of custody.
According to the investigation, on 26 April 2013, Sultan Zeydullayev, while serving as a company commander of a military unit on the territory of the Agdam District, being in the rank of lieutenant, established a secret connection with some members of the illegal armed groups and Special Services of the Republic of Armenia. He attracted other military men under his authority to this cooperation and also turned over the commanding officers to the Armenian military in order to commit sexual violent acts against them. In addition, he enabled the enemy to enter and leave the combat positions freely. S. Zeydullayev also set up conditions for the gathering and transferring of secret information for the benefit of the Armenian military by undertaking upon himself obligations of the criminal group active member.

In 2013-2017, within the framework of secret cooperation with the Armenian Armed Forces and special services, S. Zeydullayev conveyed to them secret information constituting military secrets. On 25 August 2016, S. Zeydullayev attacked and beat the soldier Qurban Ahmadov, who was under his command.

In September 2016, Zeydullayev lured a Lt. Atabey Rahimov to the Armenian territory where there were the Armenian soldiers in masks and black clothes. He turned the lieutenant over to those three Armenians, who, in their turn, committed violent acts of sexual nature (sodomy) against A. Rahimov in order to make him dependent on them and force him to cooperate with them. On 9 September 2016, S. Zeydullayev beat severely the soldiers Elchin Namazov and Elvin Talybov. In October-November 2016, he also beat the soldier Agasif Safarov.

On 4 August 2017, Sultan Zeydullayev was examined by a forensic medical expert, who did not find any injuries on his body. The examination also established that no typical lesions had been found on the military man’s anus. However, the expert pointed out that recurrent intercourse through the anus might not leave any distinctive lesions. Thus, whether or not there was intercourse is to be determined by the investigation.

On 3 November 2017, another forensic medical examination concerning S. Zeydullayev was carried out; as a result, it determined that there were no injuries, anomalies, or diseases on his genitals that would have prevented sexual intercourse.

On 23 May 2018, in connection with his torture, there was appointed a new forensic medical examination. That time the examination revealed the absence of the 6th and 7th teeth on the left lower jaw, as well as the defect of the upper portion of the 1st tooth on the upper jaw. Due to the lack of medical records, it was impossible to determine a cause of the damage, since a certain amount of time had already elapsed. The examination also failed to establish that the above injuries occurred as of May 2017. To establish the nature, origin, cause of occurrence, and timing of the stains found on the chest as on its upper and lower areas was not possible by the expert examination. The forensic examination experts stated that it was impractical to take blood samples for the presence of any chemical substance after the lapse of time (since May 2017).

On 6 October 2017, the conducted forensic psychiatric and forensic psychological examinations revealed that S. Zeydullayev hadn’t had signs of any mental illness.

Sultan Zeydullayev did not plead guilty to the charges during the court hearing. He testified that he had been a Company Commander since 26 April 2013, and was appointed a Senior Company Commander in the rank of Lieutenant since 26 April 2016. On 4 May 2017, he was interrogated by the military command authorities regarding his secret connection with the Armenian special services. He said that he had not collaborated with the Armenian special services, but he had not been believed and the command authorities ordered ten unknown intelligence officers covered with masks on their heads to interrogate him. Those men tortured him demanding him to confirm his secrete cooperation and reveal the names of those who had cooperated along with him. Sultan Zeydullayev, unable to withstand the torture, deliberately named random officers and confessed that he had given out secret information to the Armenian side, but in reality he had never cooperated with Armenians and never witnessed the cooperation of any of the military personnel of the Azerbaijani Armed Forces.

Rauf Orujev

On May 2017, Rauf Orujev was detained. On 8 May 2017 by a court order against him it was chosen a preventive measure in the form of custody.

According to the investigation, R. Orujev, having been engaged in criminal collusion with the military of the Armenian Armed Forces and Special Services, executed their instructions, engaging other military personnel of the Azerbaijani Armed Forces to cooperate. Orujev has repeatedly committed sexual assaults against soldiers and involved them in collaboration with the enemy on the territory of Agdam district starting from 25 April 2013.

In the period when S. Zeydullayev was the company commander, on 18 April 2017, R. Orujev announced over the mobile phone that he had noticed the distribution of notices related to violation of the confidential character of the company. S. Zeydullayev was instructed to disarm R. Orujev. S. Zeydullayev made R. Orujev dependent by involving him in criminal activity. As part of his collaboration with the enemy, R. Orujev also transferred to the Armenian military the classified information constituting military secrets. Rauf Orujev was promised to pay a certain amount of money for his cooperation.

During the confrontation between R. Orujev and S. Zeydullayev on 20 May and 16 August 2017, as well as at the trial, R. Orujev confirmed that S. Zeydullayev deceived and lured him to the other territory where he sexually assaulted him in April 2017, and then turned him in to the Armenian military.

In the course of the forensic medical examination performed on 7 June 2017, there were no detected any visible injuries on R. Orujev’s body, according to the written conclusion. But the expertise found lesions in R. Orujev’s anus, typical for sexual intercourse between men. The time of the injuries could not be determined. Findings of the forensic medical examination from 23 June 2017, once again confirmed the presence of characteristic lesions in R. Orujev’s anal orifice.

On 6 October 2017, the conducted forensic psychiatric and forensic psychological examinations revealed that R. Orujev hadn’t had signs of any mental illness.

In the course of the trial, Rauf Orujev pleaded guilty to the charges and testified that his earlier testimony concerning the torture was false. His testimony about torture and violent actions was influenced by the statements of S. Zeydullayev, A. Rahimov, E. Adilzade, F. Ahmadov, N. Aliyev and M. Ahmadli. No one used torture and other violent actions against him throughout the investigation.

Atabey Rahimov

On May 2017, Atabey Orujev was detained. On 15 May 2017 by a court order against him it was chosen a preventive measure in the form of custody.

According to the investigation, A. Rahimov caused great damage to the health of the victims, using violence against them, exploited their state of helplessness, committed violent acts of a sexual nature (sodomy), forced the victims to commit sodomy and other acts of a sexual nature. A. Rahimov, being a citizen of the Azerbaijan Republic, deliberately went over to the side of the Armenian Armed Forces, provided the Armenian military with the information constituting a military secret, thereby causing damage to the sovereignty, territorial integrity, state security and defence capacity of Azerbaijan.

On 26 August 2017, during a confrontation between the accused Mirpasha Mehdiyev and Atabey Rahimov, M. Mehdiyev confirmed that A. Rahimov had turned him in to the Armenian military.

On 20 May 2017, during a confrontation between the accused Sultan Zeydullayev and Atabey Rahimov, both defendants accused each other.

On 12 May 2017, following a forensic examination, it was determined that A. Rahimov’s anus had been injured in a manner typical for lesions inflicted by the male genital organ’s insertion. The same was confirmed by the forensic examination on 23 June 2017.

On 23 May 2018, the forensic medical examination found a single pigmented stain on the upper left side of the elbow, the nature, origin, time, and cause of occurrence were not established. Therefore, the expert could not provide his professional opinion on the matter.

On 23 September 2017, the conducted forensic psychiatric examinations revealed that A. Rahimov hadn’t had signs of any mental illness.
On 11 October 2017, the conducted forensic psychological examinations revealed that A. Rahimov hadn’t had signs of any mental illness.

An additional forensic medical examination, dated 20 October 2017, did not detect any disease of the immunodeficiency virus, and established that A. Rahimov’s genitals had no abnormalities or anomalies.

During the investigation, Atabey Rahimov did not plead guilty to the charges and testified that he had been appointed to the position of the Brigade Commander since 2 July 2016. Due to the fact that he was subjected to the physical assault, torture, he made a confession in the course of the investigation, but what he confessed was not true.

Emin Adilzade

On May 2017, Emin Adilzade was detained. On 3 May 2017 by a court order against him it was chosen a preventive measure in the form of custody.

According to the investigation, E. Adilzade, being a citizen of the Azerbaijan Republic, deliberately defected to the side of the Armenian Armed Forces at the expense of the sovereignty, territorial integrity, state security and defence of Azerbaijan. He conveyed the information constituting a military secret to the Armenian military, committed treason against the state by his hostile activities, as well as insulted, beat and tortured his subordinates, thereby exceeding the boundaries of his authority.

On 5 June and 26 October 2017, E. Adilzade confirmed his testimony during the preliminary investigation.

On 20 May 2017, both defendants, Faiq Ahmadov and Emin Adilzade, made incriminating statements about each other during a face-to-face confrontation.

The forensic medical examination in respect of E. Adilzade determined that there had not been any injuries on his body. It was conducted on 3 May 2017. As a result of the examination of E. Adilzade’s anus, there were detected signs typical for the male genital organ insertion.

The forensic medical examination in respect of E. Adilzade determined on 23 May 2018, that he had had pigment spots on his body, but their origin, nature, cause and time of occurrence had not been determined.

On 6 October 2017, the conducted forensic psychiatric and forensic psychological examinations revealed that E. Adilzade hadn’t had signs of any mental illness.

At the trial, Emin Adilzade partially pleaded guilty to the commission of offenses under the Articles 331.2, 331.3, 338.1, 338.2 and 341.3 of the Azerbaijan Republic Criminal Code, and testified that, while in the Terter district, he had given false testimony subjected to torture.

He also testified that he had no knowledge of the reasons why F. Ahmadov had testified against him. At the trial, Emin Adilzade said that he had not turned F. Ahmadov over to the Armenian soldiers, and they, in turn, had not committed any violent sexual acts against him.

Faiq Ahmadov

On May 2017, Faiq Ahmadov was detained. On 3 May 2017 by a court order against him it was chosen a preventive measure in the form of custody.

According to the investigation, F. Ahmadov was involved in a criminal conspiracy with the Armenian personnel to eliminate the Azerbaijani soldiers; he passed them the information classified as a military secret. F. Ahmadov also caused harm to the health of victims taking advantage of their helpless condition. As a citizen of the Azerbaijan Republic, he deliberately defied the sovereignty, territorial integrity, state security and defence security of Azerbaijan by crossing over to the Armenian Armed Forces.

The forensic medical examination in respect of F. Ahmadov determined that there have not been any injuries on his body. It was conducted on 3 May 2017. However, there were found injuries on F. Ahmadov’s anus, which are characteristic of the male reproductive organ penetration.

On 23 May 2018, a forensic medical examination found some pigment spots and scars on his right thigh, but their origin, cause, and time of occurrence could not be determined over time.

On 6 October 2017, the conducted forensic psychiatric and forensic psychological examinations revealed that F. Ahmadov hadn’t had signs of any mental illness.

In the course of the trial, Faiq Ahmadov did not plead guilty to the charges and indicated that he had been appointed a Brigade Commander at the rank of Lieutenant in the Agdam District since 23 April 2013. On 1 May 2017, the High Command questioned F. Ahmadov with regard to his cooperation with the Armenian Special Services, but he had replied by saying that no such thing had taken place. At that time, he was not believed. Then, some unidentified intelligence officers covered with black masks tortured him forcing to admit their cooperation and revealed their names of the soldiers. Not being able to stand the torture, he was forced to deliver the evidence they required. However, Faiq Ahmadov testified that he had never cooperated with the Armenian Special Services and had not witnessed the cooperation of other Azerbaijani military personnel.

Nasif Aliyev

On May 2017, Nasif Aliyev was detained. On 8 May 2017 by a court order against him it was chosen a preventive measure in the form of custody.

According to the investigation, in order to destroy the Azerbaijani military, Nasif Aliyev colluded with the Armenian military and passed them information constituting a military secret. Being a citizen of the Azerbaijan Republic, he intentionally sided with the Armenian armed forces to the prejudice of sovereignty, territorial integrity, state security and defence capacity of Azerbaijan. N. Aliyev also caused harm to the health of the victims, taking advantage of their helpless state by committing sodomy and other violent acts of a sexual nature against them, as well as by insulting, beating and torturing his subordinates.

On 3 May 2017, a forensic medical examination in respect of N. Aliyev found no injuries on his body. In mean time, the examination revealed the injuries on N. Aliyev’s anus typical for the penetration of a male genital organ. On 23 May 2018, a forensic medical examination also proved that fact and also found the presence of pigment spots on his chest, however, their origin, cause and time of occurrence had not been established.

On 21 September 2017, the conducted forensic psychiatric examinations revealed that N. Aliyev hadn’t had signs of any mental illness.

On 13 October 2017, the conducted forensic psychological examinations revealed that N. Aliyev hadn’t had signs of any mental illness.

At the trial, Nasif Aliyev did not plead guilty to the charges and said that he had become acquainted with Faiq Ahmadov, Majid Qasimov, Elkhan Agazade, Mehman Huseynov, Mushfiq Ahmadli, Turan Ibrahimli and others through his service. He testified that he had not witnessed any of the servicemen cooperating with the Armenian Special Services.

Majid Qasimov

On May 2017, Majid Qasimov was detained. On 8 May 2017 by a court order against him it was chosen a preventive measure in the form of custody.

According to the investigation, Majid Qasimov colluded with the Armenian military in order to eliminate the Azerbaijani soldiers and passed them information constituting a military secret. He, as a citizen of the Azerbaijan Republic, deliberately took the side of the Armenian armed forces to the prejudice of the sovereignty, territorial integrity, state security and defence capacity of Azerbaijan. M. Qasimov also caused harm to the victims’ health taking advantage of their helpless state, committing sodomy and other violent acts of a sexual nature against them.

A forensic medical examination in respect of M. Qasimov, on 3 May 2017, found that there were injuries on his anal orifice typical for a male genital organ penetration. On 23 May 2017, the forensic examination panel confirmed that fact.

In the course of the court hearing, Majid Qasimov did not plead guilty to the charges. However, later at the trial. he admitted his guilt, repented of what he had done and confirmed the testimony provided at the preliminary investigation.

Mushfiq Ahmadli

On May 2017, Atabey Orujev was detained. On 18 May 2017 by a court order against him it was chosen a preventive measure in the form of custody.

According to the investigation, Mushfiq Ahmadli, in order to eliminate the Azerbaijani soldiers, colluded with the Armenian military, handed over to them the information constituting a military secret. Being a citizen of the Azerbaijani Republic, he deliberately passed to the side of the Armenian Armed Forces to the prejudice of the sovereignty, territorial integrity, state security and defence capacity of Azerbaijan. M. Qasimov also caused injuries to the victims taking advantage of their helpless state he committed sodomy and other violent acts of a sexual nature against them.

On 3 May 2017, a forensic medical examination in respect of M. Ahmadli found some injuries on his anus indicating the penetration of the male genitals, although the timing of the injuries had not been established. According to M. Ahmadli, the Armenian soldiers inflicted those injuries on him in April 2017. On 23 May 2017, a forensic medical examination confirmed that fact.

At the hearing, Mushfiq Ahmadli did not plead guilty to the charges, however later at the trial, he fully admitted his guilt, repented of what he had done and confirmed the testimony he had provided at the preliminary investigation.

Alizamin Quliyev

On May 2017, Atabey Orujev was detained. On 8 May 2017 by a court order against him it was chosen a preventive measure in the form of custody.

According to the investigation, Alizamin Guliyev, in order to eliminate the Azerbaijani soldiers, was in a criminal arrangement with the Armenian soldiers, passed them the information constituting a military secret. He, as a citizen of the Azerbaijan Republic, deliberately took the side of the Armenian Armed Forces to the prejudice of the sovereignty, territorial integrity, state security and national defence capacity of Azerbaijan.

On 3 May 3, 2017, a forensic medical examination found no injuries on Quliev’s body. The experts though detected some injuries on his anus that were typical for the penetration of male genitals, however, the time occurrence of those injuries had not been determined.

On 18 August 2017, and 23 May 2018, both the commission forensic examination and the additional forensic examination did not find any injuries on A. Quliyev’s body, or on his anal orifice.

On 20 September 2017, the conducted forensic psychiatric examinations revealed that A. Quliyev hadn’t had signs of any mental illness.

On 20 October 2017, the conducted forensic psychological examinations revealed that A. Quliyev hadn’t had signs of any mental illness.

Despite the fact that at the beginning of the court hearing Alizamin Quliyev did not plead guilty to the charge under the Article 274 of the Azerbaijan Republic Criminal Code, later in the course of the trial he pleaded guilty, repented of what he had done and confirmed the evidence he had provided at the preliminary investigation.

Turan Ibrahimli

On May 2017, Turan Ibrahimli was detained. On 7 May 2017 by a court order against him it was chosen a preventive measure in the form of custody to 4 months.

According to the investigation, in order to destroy the Azerbaijani military positions, Turan Ibrahimli colluded with the Armenian servicemen and transferred to them the information constituting a military secret. Being a citizen of the Azerbaijan Republic, he deliberately took the side of the Armenian Armed Forces to the prejudice of the sovereignty, territorial integrity, state security and defence capacity of Azerbaijan. T. Ibrahimli also caused harm to the victims’ health by taking advantage of their helpless stat he committed sodomy and other violent acts of a sexual nature against them, and also insulted, beat and tortured his subordinates.

On 3 May 2017, a forensic medical examination found no injuries on T. Ibrahimli’s body. Though the forensic examination determined that there had been injuries on his anus typical for male genital penetration but the time of the inflicted injuries had not been determined.

The forensic examination, conducted on 23 May 2018, did not find any bodily injury either; but they found some pigmentation spot on his leg, the origin, time and cause of which was unknown. In the course of this examination, it was also established that the occurred injuries on the anus hadn’t been caused with a glass bottle, but by the

On 10 October 2017, the conducted forensic psychiatric and forensic psychological examinations revealed that T.Ibrahimli hadn’t had signs of any mental illness.

In the course of the trial, Turan Ibrahimli did not plead guilty to the charges, but later he did, repented of what he had done and confirmed the testimony he had given at the preliminary investigation.

Mirpasha Mehdiyev

On May 2017, Turan Ibrahimli was detained. On 16 May 2017 by a court order against him it was chosen a preventive measure in the form of custody to 4 months.
According to the investigation, Mirpasha Mehdiyev colluded with the Armenian servicemen in order to eliminate the Azerbaijani military and passed them the information constituting a military secret. Being a citizen of the Azerbaijan Republic, he deliberately took the side of the Armenian Armed Forces to the prejudice of the sovereignty, territorial integrity, state security and defence capacity of Azerbaijan. M. Mehdiyev also caused harm to the health of the victims taking advantage of their helpless state, he committed sodomy and other violent acts of a sexual nature against them, also he insulted, beat and tortured his subordinates.

On 12 May 2017, a forensic medical examination concluded that there had been no injuries on M. Mehdiyev’s body. The forensic examination though, found that there had been injuries on his anus typical for penetration of the male genitals. On 23 May 2018, a forensic medical examination conducted by the commission found no bodily injuries either.

On 2 October 2017, the conducted forensic psychiatric examinations revealed that M. Mehdiyev hadn’t had signs of any mental illness.

On 16 October 2017, a forensic psychological examination established certain psychological signs characteristic for M. Mehdiyev: adaptability, plasticity, sociability, disrespect for himself.

At the trial, M. Mehdiyev did not plead guilty to the charges, but later he fully admitted his guilt, repented of what he had done and confirmed the testimony he had provided at the preliminary investigation.

The court, having considered the criminal case in private, issued a verdict:

• Sultan Zeydullayev was found guilty of the charges and sentenced to a 20-year imprisonment. According to the verdict, S. Zeydullayev must spend the first 5 years in the Gobustan closed prison, and the rest of his imprisonment in a high-security institution;
• Rauf Orujev was found guilty of the charges and sentenced to a 7-year prison term. According to the verdict, he must serve his sentence in a high-security institution.
• Atabey Rahimov was found guilty of the charges and sentenced to a 20-year imprisonment. According to the verdict, A. Rahimov must spend the first 5 years in the Gobustan closed prison, and the rest of his imprisonment in a high-security institution;
• Emin Adilzade was found guilty of the charges and sentenced to a 16-year prison term. According to the verdict, he must serve his sentence in a high-security institution.
• Faiq Ahmadov was found guilty of the charges and sentenced to a 20-year imprisonment. According to the verdict, A. Rahimov must spend the first 5 years in the Gobustan closed prison, and the rest of his imprisonment in a high-security institution;
• Nasif Aliyev was found guilty of the charges and sentenced to a 20-year imprisonment. According to the verdict, A. Rahimov must spend the first 5 years in the Gobustan closed prison, and the rest of his imprisonment in a high-security institution;
• Majid Qasimov was found guilty of the charges and sentenced to a 10-year prison term. According to the verdict, he must serve his sentence in a high-security institution.
• Mushfiq Ahmadli was found guilty of the charges and sentenced to a 16-year prison term. According to the verdict, he must serve his sentence in a high-security institution.
• Alizamin Quliyev was found guilty of the charges and sentenced to a 7-year prison term. According to the verdict, he must serve his sentence in a high-security institution.
• Turan Ibrahimli was found guilty of the charges and sentenced to a 9-year prison term. According to the verdict, he must serve his sentence in a high-security institution.
• Mirpasha Mehdiyev was found guilty of the charges and sentenced to a 8-year prison term. According to the verdict, he must serve his sentence in a high-security institution.

Commentary by expert lawyer:

A court decision is illegal and unjustified. There are tasks of criminal proceedings listed in the Article 9 of the Code of Criminal Procedure of the Azerbaijan Republic:
• 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 bodies conducting criminal proceedings are obliged to ensure the observance of constitutionally enshrined human and civil rights and freedoms for all persons participating in criminal proceedings (Article 12.1 of the Code of Criminal Procedure of the Azerbaijan Republic).
The Article 13.1 of the Code of Criminal Procedure of the Azerbaijan Republic binds the state bodies to observe the principle of respect for a person’s honour and dignity. It shall be prohibited to take decisions or allow acts during the criminal prosecution which debase the honour and dignity of the person or may threaten the life and health of the participants in the proceedings.
According to the Article 13.2. of the Code of Criminal Procedure of the Azerbaijan Republic, during a criminal prosecution nobody shall:

• be subjected to treatment or punishment that debases human dignity;
• be held in conditions that debase human dignity;
• be forced to participate in carrying out procedures that debase human dignity.

The defendants repeatedly claimed the use of torture and inhuman treatment by the investigating body. The court was skeptical about the defendants’ testimony without exception in all cases and considered the testimonies provided at trial to be of a defensive nature. The court paid no attention to these testimonies and referred only to the results of the examination conducted a year later after the preliminary investigation. By that time the signs of beatings had already disappeared. The defendants were forced through torture to testify against themselves.
According to the Article 66 of the Constitution of Azerbaijan Republic, nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister. Complete list of relations against whom testifying is not obligatory is specified by law.

The prohibition of torture and inhuman treatment is regulated by the International Norms. According to the Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, no one shall be subjected to torture or to inhuman or degrading treatment or punishment.

The Article 7 of the International Covenant on Civil and Political Rights states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

According to the Article 5 of the Universal Declaration of Human Rights, no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
As it can be seen from the dispositions of the above articles, there are no exceptions in any of them. According to the precedents of the European Court of Human Rights (ECHR), it is prohibited to use torture, ill-treatment and cruelty even in the fight against terrorism, the Mafia, and in times of war.
“The Article 3 (…) is to protect one of the basic values of a democratic society. Even in the most difficult circumstances, such as the fight against terrorism and organized crime, the Convention categorically prohibits torture or inhuman or degrading treatment or punishment. Unlike most Articles of the Convention and Protocols Nos. 1 and 4, the Article 3 does not provide any exception and under the Article 15 para. 2 there can be no derogation from the Article 3 even in a case of emergency threatening the existence of the nation” (judgment of the European Court of Human Rights in Aksoy v. Turkey of 18 December 1996 – https://www.dipublico.org/1563/case-of-aksoy-v-turkey-application-no-2198793-european-court-of-human-rights/).

The United Nations Standard Minimum Rules for the Treatment of Prisoners (known as the Mandela Rules, named after South African President Nelson Mandela) were adopted by the United Nations General Assembly on 17 December 2015. Under Rule 1, all prisoners are to be treated with respect because of their inherent dignity and value as human beings. No prisoner shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment, all prisoners shall be protected from it, and no circumstances whatsoever may be invoked as a justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times.

The decision of the European Court of Human Rights in the case of Selcuk and Asker v. Turkey on 24 April 1998, states: “The Court recalls that for ill-treatment to constitute a violation of Article 3, it must attain a minimum level of severity. The assessment of this minimum level is inherently relative; it depends on all the circumstances of the case, in particular its duration, its impact on the physical or mental condition and, in some cases, the sex, age and state of health of the victim affected by such treatment.” –
file:///C:/Users/User/Downloads/001-58162.pdf
The UN Human Rights Committee decision in the case of Prashantoj Kumar Pandeyem v. Nepal on 30 October 2018 stated: “The Committee reiterates that persons deprived of their liberty may not be subjected to any hardship or suffering other than that which results from the deprivation of liberty and that they must be treated with humanity and respect for their dignity.” – file:///C:/Users/User/Downloads/G1835144.pdf

The commented sentence does not provide any statutory basis. Furthermore, the length of the sentenced terms of the defendants in the verdict is not justified. The evidentiary basis is insufficient for a conviction. All the witnesses and victims were members of the Azerbaijani Armed Forces.

The experts who provided forensic expertise are employees of the Forensic Center. The Center is subordinate to the Ministry of Justice of the Azerbaijan Republic. It is well known that the judicial system in Azerbaijan is not separated from the Executive and depends on it.

Moreover, according to the law, the forensic results are not sufficient evidence for the court. They must be supported by other incontrovertible evidences and considered in conjunction as a whole. The verdict lacked motivation. All doubts that arose in the course of the trial were not treated in favor of the defendants by the court. The court played the role of the prosecutor.

The commented verdict was rendered without complying with the legal Norms of National and International Laws, and therefore is unlawful and unreasonable.

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The trial against four individuals in the so-called “Terter case”

The trial against four individuals in the so-called “Terter case”

One of the most top-secret and bloody crimes of the Aliyev regime

 

 Vagif Aliyev Nusrat Qurbanov

Analysis of violation of law during “Terter case” judicial proceedings

Ganja City Military Court

Case № 1-1 (095)-115/2018

8 October 2018

Presiding judge: Vugar Mammadov  

Judges: Vidadi Nasirov, Salman Huseynov

Defendants: Vagif Aliyev, Nusrat Qurbanov, Suleyman Hajiyev, Seymur Hasanov

Defendants: Vagif Aliyev, Nusrat Qurbanov, Suleyman Hajiyev, Seymur Hasanov

Defenders: Tunzalya Valiyeva, Jafar Hajiyev, Ramiz Abdullayev, Khalida Isayeva

The State Prosecutor: Javid Jumshudov, the Prosecutor of the Public Prosecution Department of the Military Prosecutor’s Office of the Azerbaijan Republic

 

Victims: Elkhan Niftaliyev, Murad Mammadzade, Agasamid Muradov, Adil Nasirov, Rovshan Agayev, Pasha Ordukhanov, Mushfiq Eyvazov, Farid Jabrayilli

 

Suleyman Hajiyev, born in 1997, a native of Agdjabedi District, an Azerbaijani Armed Forces soldier, was charged with committing crimes under the Articles:

• 134. (Threat to murder or causing of serious harm to health),
• 150.1. (Buggery or other actions of sexual nature),
• 150.2.4. (Buggery actions carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 274. (State betray),
• 338.1. (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state),
· 338.2. (The same act which harmed interests of state safety or has entailed to other heavy consequences) of the Criminal Code of the Azerbaijan Republic.

Seymur Hasanov, born in 1997, a native of Barda district, an Azerbaijani Armed Forces soldier, was charged with committing crimes under the Articles:

• 134. (Threat to murder or causing of serious harm to health),
• 29, 150.1 (Attempt to commit violent acts of a sexual nature),
• 150.2.1. (Buggery or other actions of sexual nature, committed by a group of persons, by a group with a premeditated conspiracy or by an organized group),
• 150.2.4. (Buggery actions of sexual nature, carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 150.2.5. (Buggery actions of sexual nature, committed repeatedly),
• 182.2.1. (Extortion, committed on preliminary arrangement by group of persons),
• 182.2.2. (Extortion, committed repeatedly),
• 228.2.1. (Illegal purchase, transfer, selling, storage, transportation and carrying of fire-arms, accessories to it, supplies, explosives, committed on preliminary arrangement by group of persons),
• 274. (State betray)
• 332.2.1. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed repeatedly),
• 332.2.2. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed concerning two or more persons),
• 332.2.3. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed by group of persons, on preliminary arrangement by group of persons or by organized group),
• 332.2.4. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed with application of a weapon),
• 332.3. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed entailed to heavy consequences),
• 333.6. (Autocratic leaving of military unit or place of service committed in wartime or fighting conditions),
• 338.1. (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state),
• 338.2. (The same act which harmed interests of state safety or has entailed to other heavy consequences),
• 32.5, 341.3 (Complicity in abuse of authority or official position committed in wartime or during combat) of the Criminal Code of the Azerbaijan Republic.

Vagif Aliyev, born in 1997, a native of Baku City, an Azerbaijani Armed Forces soldier, was charged with committing crimes under the Articles:

• 29, 150.1 (Attempt to commit violent acts of a sexual nature),
• 150.2.1. (Buggery or other actions of sexual nature, committed by a group of persons, by a group with a premeditated conspiracy or by an organized group),
• 150.2.4. (Buggery actions of sexual nature, carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 150.2.5. (Buggery actions of sexual nature, committed repeatedly),
• 182.2.1. (Extortion, committed on preliminary arrangement by group of persons),
• 182.2.2. (Extortion, committed repeatedly),
• 182.2.3. (Extortion, committed with application of violence),
• 274. (State betray),
• 332.2.1. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed repeatedly),
• 332.2.3. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed by group of persons, on preliminary arrangement by group of persons or by organized group),
• 332.2.4. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed with application of a weapon),
• 332.3. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed entailed to heavy consequences),
• 338.2. (The same act which harmed interests of state safety or has entailed to other heavy consequences),
• 32.5, 341.3 (Complicity in abuse of authority or official position committed in wartime or during combat) of the Criminal Code of the Azerbaijan Republic.

Nusrat Qurbanov, born in 1993, a native of Agstafa District, an Azerbaijani Armed Forces junior sergeant, was charged with committing crimes under the Articles:

• 134. (Threat to murder or causing of serious harm to health)
• 150.2.1. (Buggery or other actions of sexual nature, committed by a group of persons, by a group with a premeditated conspiracy or by an organized group),
• 150.2.4. (Buggery actions of sexual nature, carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 228.2.1. (Illegal purchase, transfer, selling, storage, transportation and carrying of fire-arms, accessories to it, supplies, explosives, committed on preliminary arrangement by group of persons),
• 228.2.2 (Illegal purchase, transfer, selling, storage, transportation and carrying of fire-arms, accessories to it, supplies, explosives, committed repeatedly),
• 232.2.2. (Plunder or extortion of fire-arms, accessories to it, supplies or explosives, committed repeatedly),
• 232.2.3. (Plunder or extortion of fire-arms, accessories to it, supplies or explosives, committed on preliminary arrangement by group of persons),
• 274. (State betray),
• 338.1. (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state),
• 32.5, 341.3 (Complicity in abuse of authority or official position committed in wartime or during combat) of the Criminal Code of the Azerbaijan Republic.

Suleyman Hajiyev

On 10 June 2017, Suleyman Hajiyev was detained by a court order, against him it was chosen a preventive measure in the form of custody. According to the investigation, in May 2017, some Armenian Armed Forces and Intelligence Services representatives, along with the Azerbaijani Armed Forces servicemen, Suleyman Hajiyev and Vagif Aliyev, committed sexual assaults against the junior sergeant Nusrat Qurbanov. It has been video footage capturing those violations. By blackmailing three Azerbaijani servicemen with the publication of those videos on social networks, the Armenians forced the Azerbaijani servicemen for cooperation.

Moreover, the indictment stated that Suleyman Hajiyev had passed information comprising military secrets to the Armenian side.

On 10 June 2017, a forensic medical examination was conducted with regard to Suleyman Hajiyev, which revealed no traces of bodily injuries. In the course of the examination, the typical injuries on S. Hajiyev’s anus testifying evidence of sexual violence were found. On 25 June 2017, as a result of the second forensic examination, it was concluded that S. Hajiyev had not suffered from any venereal disease or immunodeficiency virus.

On 12 June 2017, Suleyman Hajiyev pleaded guilty during the preliminary investigation. However, in the course of the trial he did not plead guilty under the Articles 134, 150.2.1, 150.2.4, 274, 332.3, 338.2 of the AR Criminal Code, and testified that he had pleaded guilty only under the Article 338.1 (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state)
of the AR Criminal Code as he had fallen asleep at the guard post when the Lt. Huseyn Akbarli found him sleeping at 3 AM at the post. While answering the prosecution and defence parties’ questions at the trial, Suleyman Hajiyev said that he had had no contact with the enemy side throughout his service and he had not handed over Seymur Hasanov to the Armenian soldiers. Suleiman Hajiyev also testified that he had been subjected to torture by the investigating body and forced to provide false confessions under the torture on 12 June 2017.

Seymur Hasanov

Seymur Hasanov was detained on 10 June 2017. According to a court order, a measure of restraint in the form of detention was applied to Mr. Hasanov. The investigators believed that Seymur Hasanov colluded with the Armenian Intelligence officers from mid-April to mid-May 2017, and committed violent acts of a sexual nature against the Azerbaijani soldiers; he had also provided the Armenian side with the Azerbaijani military secrets, thereby inflicting damage to the territorial integrity and sovereignty of the Azerbaijan Republic.

According to the investigation, the soldier Suleyman Hajiyev escorted Seymur Hasanov to the toilet where he put a gun to Seymur’s head. At that moment, three men dressed in black, the soldiers of the Armenian army, whose identities have not been established, approached Hasanov and led him blindfolded to a neutral territory. There, Seymur Hasanov saw about 10 Armenian soldiers, one of whom committed violent acts of a sexual nature against S. Hasanov. The violence was captured on video. He was threatened with the distribution of the video on social networks, after which he agreed to cooperate with the Armenian Intelligence services. Seymur Hasanov was assigned to engage other Azerbaijani soldiers for cooperation. He managed to do it. The same way, the soldier Vagif Aliyev was involved in cooperation with the Armenians.

On 10 June 2017, Seymur Hasanov was undergoing a forensic medical examination, as a result of which, it was not found any injuries on Hasanov’s body. But in the course of the examination, it was determined that S. Hasanov’s anus revealed distinctive injuries indicating sexual assault.

A second forensic medical examination conducted on July 20, 2017, did not determine either any skin and venereal diseases or immunodeficiency virus on Hasanov’s body.

At the trial, Seymur Hasanov did not plead guilty to the crimes under the Articles 134, 29,150.1, 150.2.1, 150.2.4, 150.2.5, 182.2.1, 182.2.2, 182.2.3, 228.2.1, 274, 332.2.1, 332.2.2, 332.2.3, 332.2.4, 332.3, 333.6, 338.2 and 341 of the Criminal Code. S. Hasanov just pleaded guilty to committing the deed under the Article 338.1. of the AR Criminal Code. He testified that he had fallen asleep at the post in April 2017 and had been awakened by mad dogs that he had been forced to kill with his own weapon. He did not plead to the rest of the charges.

At the court interrogation, Seymur Hasanov testified that he was subjected to violence by the investigating officers during the preliminary investigation; he had been severely beaten following which he admitted guilt on 12 June 2017.

Vagif Aliyev

Vagif Aliyev was detained on 7 June 2017. According to a court order, he was placed in custody as a preventive measure. According to the investigation, V. Aliyev entered into a criminal conspiracy with the Intelligence officers and soldiers of the Armenian Armed Forces from mid-April to mid-May 2017. He made a commitment to engage other soldiers as collaborators. V. Aliyev also transmitted information constituting the military secrets to the Armenian Special services, thereby harming the territorial integrity and sovereignty of the Azerbaijan Republic.

In May 2017, the commander ordered Vagif Aliyev along with Seymur Hasanov to a combat post to cut grass. S. Hasanov, who had already been cooperating with the Armenian Special Services, handed V. Aliyev over to the enemy. S. Hasanov tricked V. Aliyev into the neutral ground, then he pressured V. Aliyev to surrender his weapons, but V. Aliyev refused to do so. S. Hasanov forcefully took away V. Aliyev’s weapon and made him go further. On neutral territory, Seymur Hasanov pointed a gun at Vagif Aliyev and said that if Aliyev would not collaborate with the Armenian Services, he would kill him and all members of Vagif’s family. V. Aliyev agreed.

С. Hasanov and V. Aliyev left the combat post and went to the territory located near the enemy’s posts. There, S. Hasanov surrendered V. Aliyev to four Armenian soldiers. In order to break V. Aliyev’s will, Armenian soldiers pushed him down on the ground, pointed weapons at him and threatened to rape his sister and kill all members of his family. One of the Armenian soldiers raped V. Aliyev in his mouth. It was videotaped. V. Aliyev was told that if he was not going to cooperate with the Armenian Special Services, the video would be spread on social networks. В. Aliyev agreed to, and provided the Armenian side with the information constituting a military secret causing thereby damage to the territorial integrity and sovereignty of the Azerbaijan Republic.

On 10 June 2017, in relation to Vagif Aliyev, it was carried out a forensic medical examination, which did not detect any lesions on V. Aliyev’s body.

The second forensic medical examination on 21 July 2017, found neither pathologies on the male genitals, nor skin, venereal diseases nor immunodeficiency virus.

At the trial, Vagif Aliyev did not plead guilty to the crimes under the Articles 29,150.1, 150.2.1, 150.2.5, 182.2.1, 182.2.2, 182.2.3, 274, 332.2.1, 332.2.2, 332.2.3, 332.2.4, 332.3, 333.6, 338.2 and 341 of the Criminal Code of the Azerbaijan Republic. He pleaded guilty to committing an offence under the Article 338.1 of the Criminal Code of the Azerbaijan Republic, and testified that he had fallen asleep while on combat duty in April 2017, but, in May 2017, he did not commit the crimes incriminated against him.

At the interrogation in the course of the judicial investigation, V. Aliyev testified that he had been subjected to forced actions by the investigating officers; a taser had been applied to his legs, after such a torture he was forced to testify against himself on 9 June 2017.

Nusrat Qurbanov

Nusrat Qurbanov was detained on 7 June 2017. The court ordered a preventive measure in the form of custody. According to the investigation, Nusrat Qurbanov entered into criminal agreement with the employees of the Armenian Special Services and Armed Forces. In May 2017, the soldiers Seymur Hasanov and Vagif Aliyev decided to hand him over to the enemy in order to engage him in cooperation with the Armenian Special Services. S. Hasanov and V. Aliyev, being aware of N. Qurbanov’s difficult financial situation, offered him to collaborate with the Armenians for money. Nusrat Qurbanov accepted their offer. He passed the Armenians the military information constituting secrets, therefore damaging the territorial integrity and sovereignty of the Azerbaijan Republic.

N. Qurbanov became a member of the criminal group. In May 2017, Seymur Hasanov and Vagif Aliyev took N. Qurbanov to the neutral territory and handed him over to the Armenian soldiers. There, four military men dressed in black, whose identities have not been established by the investigation, picked up Nusrat Qurbanov from S. Hasanov and V. Aliyev. In order to maintain N. Qurbanov in a dependent position, one of the Armenian military committed sexual assault against N. Qurbanov by penetrating into his anus. It were videotaped. The Armenian military paid to S. Hasanov $500 for engaging N. Qurbanov in cooperation.

On 2 July 2017, there was a forensic medical examination carried out on N. Qurbanov, which revealed no injuries on his body. A forensic medical examination conducted on 25 December 2017, concluded that there were not detected any skin, venereal diseases and immunodeficiency virus affecting N. Qurbanov.
At the trial, Nusrat Qurbanov did not plead guilty to the crimes under the Articles 134, 150.2.1, 150.2.4, 274, 332.2.3, 338.2 and 341 of the Criminal Code of the Azerbaijan Republic.

He pleaded guilty to committing acts under the Articles 228.2.1, 228.2.2, 232.2.2 and 232.2.3 of the Criminal Code of the Azerbaijan Republic, and testified that he had left a few Armenian bullets in his possession but had not informed the Azerbaijani superiors. In April 2017, together with Seymur Hasanov, they put these bullets in a box and buried them in the ground. The aim was to use the bullets against the Armenian military.

When answering questions at the judicial investigation, N. Qurbanov testified that his confession had been obtained by the investigating body through the use of torture on 9 June 2017. He also indicated that he had not committed the incriminated crimes.

In the course of the trial, the following victims were questioned: Rovshan Agayev, Farid Jabrayilli, Pasha Ordukhanov, Agasemid Muradov, Mushfiq Eyvazov, Murad Mammadzade, Aqil Nasirov and Elkhan Niftaliyev. Also witnesses: Khalid Valiyev, Ahmad Ahmadzade, Kamaladdin Hasanli, Elchin Aslanzade, Kamil Aliyev, Fazil Mirzoyev, Jalal Shahverdiyev, Anar Sadiqov, Natiq Israfilov, Aqshin Jafarov, Ismikhan Madatov, Mirsultan Zahidov and Tarlan Mammadov.

Assessment of the court

The court considered the witnesses’ testimonies provided to the prosecution as irrefutable, whereas the testimonies given by the witnesses in defence of the accused were regarded as defensive statements with respect to the fellow servicemen. Thus, the witness, Ismikhan Madatov, did not provide accusatory testimony, and the court assessed his testimony as having the nature of protection, since the accused and Madatov were serving together.

In accordance with the ruling of the Ganja Military Court on 8 October 2018, the State Prosecutor dropped the charges against Vagif Aliyev under the Article 134 of the AR Criminal Code, therefore, the court did not consider the case with regard to that Article.

The State Prosecutor suggested the court to reclassify some Articles incriminated to the accused. In his speech, he demanded: in respect of Seymur Hasanov and Vagif Aliyev, the Articles 150.2.1 and 150.2.4 to the Articles 32.3, 150.2.1, 32.3, 150.2.4 of the AR Criminal Code. In respect of Suleyman Hajiyev, the Articles 150.2.1 to Articles 32.3, 150.2.4 of the Criminal Code of the Azerbaijan Republic; the charges against Suleyman Hajiyev under the Article 150.2.1 – to the Article 32.3,150.2.1 and the Article 150.2.4 to Article 32.3,150.2.4 of the Criminal Code of the Azerbaijan Republic; in respect of Nusrat Qurbanov – the Article 150.2.1 to the Article 32.3,150.2.1 and the Article 150.2.4 to the Article 32.3,150.2.4. The court approved the Prosecutor’s suggestion and reclassified the Articles.

The court pointed out that it takes into account the nature of the criminal offenses, aggravating circumstances, as well as the lack of mitigating evidence in imposing punishment. The Court concluded that the accused must be isolated from the society. In imposing punishment, the Court also considered the impact of the accused punishments on their families.

On 8 October 2018, the Ganja City Military Court issued a verdict against four soldiers of the Azerbaijani Armed Forces:

• Suleyman Hajiyev was found guilty of committing crimes under the Articles 134, 32.3,150.2.1, 32.3,150.2.4, 274, 332.3, 338.1 and 338.2 of the Criminal Code of the Azerbaijan Republic and was sentenced to 14 years of imprisonment. According to the verdict, the first 5 years, he should spend in an indoor prison (in Gobustan), and the rest of the sentence he would be sent to a high-security institution;
• Seymur Hasanov was found guilty of committing crimes under the Articles 134, 29,150.1, 32.3,150.2.1, 150.2.4, 150.2.5, 182.2.1, 182.2.2, 182.2.3, 228.1.1, 274, 332.2.1, 332.2.2, 332.2.3, 332.2.4, 332.3, 333.6, 338.1, 338.2 and 341.3 of the Criminal Code of the Azerbaijan Republic and was sentenced to 15 years of imprisonment. According to the verdict, the first 5 years, he should spend in an indoor prison (in Gobustan), and the rest of the sentence he would be sent to a high-security institution;
• Vagif Aliyev was found guilty of committing crimes under the Articles 32.3,150.2.1, 150.2.4, 150.2.5, 182.2.1, 182.2.2, 182.2.3, 274, 332.2.1, 332.2.2, 332.2.3, 332.2.4, 332.3, 333.6, 338.1, 338.2 and 341.3 of the Criminal Code of the Azerbaijan Republic and was sentenced to 16 years of imprisonment. According to the verdict, the first 5 years, he should spend in an indoor prison (in Gobustan), and the rest of the sentence he would be sent to a high-security institution;
• Nusrat Qurbanov was found guilty of committing crimes under the Articles 134, 32.3,150.2.1, 32.3,150.2.4, 228.2.1, 228.2.2, 232.2.2, 232.2.3, 274, 32.5,332.3, 338.1, 338.2 and 341.3 of the Criminal Code of the Azerbaijan Republic and was sentenced to 16 years of imprisonment. According to the verdict, the first 5 years, he should spend in an indoor prison (in Gobustan), and the rest of the sentence he would be sent to a high-security institution;

Commentary by expert lawyer:
A court decision is illegal and unjustified. The evidentiary basis of the criminal case consists of the victims’ and witnesses’ testimonies, a number of forensic medical examinations and various certificates of the State structures. A number of victims and witnesses were servicemen of the Azerbaijani Armed Forces. The forensic medical examinations were conducted within the same institution that has the right to conduct such examinations, the Center for Forensic Examinations of the AR Ministry of Justice. All the incriminating testimonies of the victims and witnesses were recognized by the Court as irrefutable, although the victims and witnesses, all without exception, were servicemen, who were subordinated to the command, which means that all of them depended on the command. As for the Center for Forensic Examinations, it is the only structure authorized to conduct expertise, the results of which are approved by the local courts. By law, there is no any other entity in the country conducting an independent expertise, the results of which could be approved by the court. As mentioned above, the Center of Forensic Expertise is subordinated by the Ministry of Justice of the Azerbaijan Republic. The testimony of one witness in favor of the accused was regarded by the court as having the nature of protection of his fellow serviceman. That testimony was not taken into account by the court.
Also, the Court did not consider the defendants’ testimonies about the tortures and inhuman treatment they had been subjected to. The Court took into account the testimonies of the defendants given under torture during the investigation period. The Court did not specify in the verdict why they accepted as irrefutable the testimonies given during the pre-trial investigation rather than the testimonies given at the trial.
One of the principles of criminal procedure is the principle of respect for a person’s dignity and honour. According to the Article 13 of the Code of Criminal Procedure of the Azerbaijan Republic,

13.1. It shall be prohibited to take decisions or allow acts during the criminal
prosecution which debase the honour and dignity of the person or may threaten the life
and health of the participants in the proceedings.
13.2. During a criminal prosecution nobody shall:
13.2.1. be subjected to treatment or punishment that debases human dignity;
13.2.2. be held in conditions that debase human dignity;
13.2.3. be forced to participate in carrying out procedures that debase human dignity.

The defendants were detained in June 2017, whereas the forensic medical examinations to determine the presence or absence of injuries related to torture claims were conducted only in December 2017. This is a sufficient period of time for disappearing or becoming unnoticeable traces of torture.
Besides, the Court did not explain the reason why the accused pleaded guilty to the charges during the pre-trial investigation, but withdrew their confessions at the trial.

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

15.2. During the criminal prosecution the following shall be prohibited:
15.2.1. the use of torture and physical and psychological force, including the use of
medication, withdrawal of food, hypnosis, deprivation of medical aid and the use of
other cruel, inhuman or degrading treatment and punishment;
15.2.2. the imposition of long-term or severe physical pain or acts which are detrimental
to health, or any similar ill-treatment;
15.2.3. taking evidence from victims, suspects or accused persons or from other
participants in the criminal proceedings using violence, threats, deceit or by other
unlawful acts which violate their rights.

The Article 33.4 of the Code of Criminal Procedure of the Azerbaijan Republic states:

Judges and jurors may not regard evidence or other materials unfavourably, or
attach more importance to one piece of evidence or other item than to another, until
they are examined under the statutory procedure.

In the course of the trial, the involvement of each defendant in the criminal activity was not proved. The evidences were oblique and did not indicate the actual perpetration of the criminal deeds by each of the defendants.
According to the Article 124 of the Code of Criminal Procedure of the Azerbaijan Republic,

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

124.1.1. shall be obtained in accordance with the requirements of the Code of Criminal Procedure, without restriction of constitutional human and civil rights and liberties or with restrictions on the grounds of a court decision (on the basis of the investigator‘s decision in the urgent cases described in this Code);
124.1.2. shall be produced in order to show whether or not the act was a criminal one, whether or not the act committed had the ingredients of an offence, whether or not the act was committed by the accused, whether or not.

In criminal proceedings, it shall be unlawful to accept as evidence any information, documents and things that have been obtained:
· with deprivation or restriction of the rights of the participants in criminal proceedings guaranteed by Law, or in violation of constitutional rights and freedoms of man and citizen as well as other requirements of the present Code, which shall or may affect the validity of this evidence;
· with the use of violence, threat, deception, torture and other cruel, inhuman or dignified actions (Article 125.2, 125.2.1, 125.2.2. of the Code of Criminal Procedure of the Azerbaijan Republic).

However, the court paid more attention to the defendants’ testimonies taken in the course of the investigation rather than during the trial. The testimonies received during the investigation match the indictment and are automatically rewritten down from it. The testimonies given before the court are brief and vague.
According to the European Prison Rules, adopted by the Committee of Ministers of the Council of Europe on 12 February 1987, there are fundamental principles of the detention of prisoners. Paragraph 1 of the Rules states, “Deprivation of liberty shall be in conditions of detention and in an atmosphere of morality, which ensure respect for human dignity and are consistent with these Rules.”

According to the UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), all prisoners should be treated with respect for their inherent dignity and value as human beings. No prisoner shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment, all prisoners shall be protected against it, and no circumstances whatsoever may be invoked as justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times.

The use of torture and inhuman treatment is also prohibited by the Article 46 of the Azerbaijan Republic Constitution,

III. Nobody must be subject to tortures and torment, treatment or punishment humiliating the dignity of human beings.

The prohibition of torture and inhuman treatment is regulated by the International Norms. For example, the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 3) prohibits torture. This Article is always in force, even during the fight against the Mafia, organized crime or in times of war.

The absolute nature of the guarantees is strengthened by the fact that actions reproached against the victim, no matter how unacceptable or dangerous they may be, cannot in any way justify any infringement. In short, it is dignity and physical integrity of the individual that this rule sought to protect. In order for mistreatment of a person constitutes a violation of the Article 3, it must meet the minimum level of severity… Thus, if an individual alleges in his defense that he has been subjected to the treatment provided under the norm in question, an effective official investigation must be carried out in order to identify those responsible and punish them. – (Precedents of the European Court of Human Rights, Michele de Salvia, St. Petersburg, 2004).
Torture is also prohibited by the Article 5 of the Universal Declaration of Human Rights and the Article 7 of the International Covenant on Civil and Political Rights.
One of the most serious charges brought against the military is the charge of treason, the Article 274 of the Criminal Code of the Azerbaijan Republic. It is contained in the charges against all four defendants.
State betray, that is deliberately action committed by a citizen of the Azerbaijan Republic to detriment of the sovereignty, territorial integrity, state security or defensibility of the Azerbaijan Republic: changeover to enemy side, espionage, distribution of the state secret to foreign state, rendering assistance to a foreign state, foreign organization or their representatives in realization of hostile activity against the Azerbaijan Republic.
In order to comprehend what constitutes state treason, it is necessary to examine the corpus delicti. The subject of high treason is the information that constitutes a state secret.
The objective side consists of high treason that includes the following alternative actions:
– espionage is the collection, transfer, theft or storage of information constituting a state secret in order to transmit it to a foreign state, organization or their representatives, as well as the transfer or gathering of other information on behalf of foreign intelligence for its use to the disadvantage of the country’s national security;
– disclosure of a state secret – the intentional transfer to a foreign state, organization or their representatives of the data protected by the state in the area of its military, foreign policy, economic, intelligence, counterintelligence and investigative activities, the spread of which could harm the security of the country;
– any other assistance to a foreign state, organization or their representatives in carrying out any hostile activities to the disadvantage of the external security of the country – committing any actions that harm the external security of the country, but which do not fall under the concept of the disclosure of state secrets or espionage.
Subjective side is deliberate direct intent.
The subject of the crime is a citizen of the Azerbaijan Republic who has reached the age of 16.
As it is shown in the Article 274 of the Criminal Code of the Azerbaijan Republic, it contains several attributes. The court verdict does not specify what particular attribute occurs in the action of this or that defendant. For instance:
▪ Whether the act was committed at the expense of sovereignty,
▪ Territorial integrity,
▪ National security or
▪ Defence capacity of the Azerbaijan Republic,
▪ Whether there has been a defection to the enemy side,
▪ Espionage,
▪ Release of a State secret to a foreign State,
▪ Assisting a foreign state, organization or their representatives in carrying out hostile activities against the Azerbaijan Republic

What exactly is the guilt of each defendant accused of committing a crime under the Article 274 of the Criminal Code, namely, whether the person committed treason, espionage, or disclosed the State secrets to a foreign State, the sentence does not specify. The verdict is based on all the listed attributes, which raises doubts about the accusations legitimacy.
The verdict states that the accused handed over to the Armenian military the data constituting a military secret. Let us examine what data constitute military secrets according to the law.
In the Article 5.1 of the Law of the Azerbaijan Republic “On State Secrets” states:
5.1. The State secrets in the military sector are as follows:
5.1.1. the content of strategic and operational plans, the documents of operational department on preparation and conduct of military operations, strategic, operational and mobilization deployment of the Armed Forces of the Azerbaijan Republic, other armed formations, other troops stipulated by the legislation, their combat and mobilization readiness, creation and use of mobilization resources;
5.1.2. on the plans for the construction of the armed forces and other armed formations provided for in the legislation of the Azerbaijan Republic, on directions for the development of armaments and military equipment, on the content and results of the implementation of targeted programmes, and on research and development work to create and modernize the patterns of armaments and military equipment;
5.1.3. the tactical and technical characteristics, and combat capabilities of weapons and military equipment, properties, the formulas or technologies, and production of new types of the military purpose;
5.1.4. the location, designation, degree of readiness, security of the facilities of particular national security and defensibility, their construction and operation, as well as the allocation of land, resources and coastal and offshore areas for these facilities;
5.1.5. the location, the effective renaming, the organizational structure, the number of personnel and their combat support, as well as the military, political or operational situation;
5.1.6. the coordinates of geodetic points and geographical targets of the significant defense and economic importance within the territory of Azerbaijan.
Based on the verdict, it is not clear to whom, how, when and where the confidential information had been transferred, whether the accused possessed the kind of secret information which he allegedly shared with the military personnel of a foreign country, and whether that information was subject to classification, and if so, who ordered its disclosure, etc. There are many questions, but the verdict does not provide any answers. There is no motivated indictment, which is necessary for the verdict to be acknowledged as legitimate and well-founded. The indictments in the verdict are listed by default and consist of formal expressions used in the criminal law.
The right to freedom is a fundamental right in a democratic society. According to the Article 28 of the Constitution of the Azerbaijan Republic,

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

The right to freedom is one of the fundamental human rights guaranteed also by the international law provisions. According to the Article 5 (1) of the European Convention on Human Rights,
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
This list of restrictions is exhaustive. The deprivation of liberty must also be lawful, i.e. it must correspond to the purpose provided for by one of the instances on this list. This Article’s essence is the individual’s physical freedom. It enshrines a basic human right, namely, the protection of everyone from arbitrary interference of the State in his right to liberty.
The European Convention for the Protection of Human Rights and Fundamental Freedoms stipulates, in Article 5 (1), that only a reasonable suspicion of a person having committed a criminal offence can justify deprivation of liberty. Therefore, the existence of a reasonable suspicion is an essential element of the protection against arbitrary deprivation of liberty. The existence of a reasonable suspicion presupposes the existence of facts or information that could persuade an objective observer that a person could have committed the offence. What counts as justified depends on the set of circumstances.

The Universal Declaration of Human Rights also protects the right to freedom. According to the Article 9 of the Universal Declaration of Human Rights, no one shall be subjected to arbitrary arrest, detention or exile.

In the case Wloch v. Poland of May 10, 2011, the European Court of Human Rights (ECHR), the paragraph 109, it is said “Apart from the factual aspect, the existence of a ‘reasonable suspicion’ within the meaning of Article 5 § 1 (c) is required for the sufficient amount of facts in order to refer to one of the sections of the Criminal Code concerning the criminal conduct. Thus, it is obvious that suspicion is not justified if actions or facts alleged to a prisoner in custody were not constituting an offence at the time they were committed. In the case in question, it must be established whether the detention was “lawful” within the meaning of Article 5 § 1 (c) of the Convention. The Convention refers mainly to the National Law, but, moreover, it requires any measure of deprivation of liberty to be compatible with the purpose of Article 5 – protection of the individual against arbitrariness”.
https://www.menschenrechte.ac.at/orig/11_3/Wloch.pdf
https://www.echr.coe.int/documents/guide_art_5_eng.pdf

The absence of the evidence basis for the accusation, insufficient amount of the proofs, lack of the direct and clear-cut evidence against the accused, and the failure of the court considering the criminal case have resulted in the gross violation of the serviceman’s right to freedom guaranteed by the Constitution of the Azerbaijan Republic, and by other national laws, as well as by the norms of the International Law, International Treaties and Practice of the European Court of Human Rights.

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Even for journalists working for a state-run news agency are restricted in their freedom of speech

Even for journalists working for a state-run news agency are restricted in their freedom of speech

Aygun Aliyeva

Analysis of violation of law during Aygun Aliyeva’s judicial proceedings

Baku City Nasimi District Court

Case №2(006)-1158/2021

11 March 2021

Judge:  Natavan Taqiyeva

Plaintiff: Aygun Aliyeva

Plaintiff’s representatives: Teymur Aliyev, Bahruz Bayramov

Plaintiff’s lawyer: Bahruz Bayramov

Defendant: Azerbaijan State News Agency “Azertaj”

Defendant’s representative and attorney: Mazahir Aliyev

The journalist Aygun Aliyeva had worked at the Azerbaijani state news agency ” Azertaj” for 21 years. She was fired on 19 September 2020.

  1. Aliyeva described her dismissal as the following,

“At first, I was told that the State Security Service (SSS) had allegedly filed a complaint against me and initiated a case specifically against me. However, when the SSS denied that information, they said that I had been fired by Vugar Aliyev who worked at the Presidential Administration”.

Aygun Aliyeva also says that besides her and two other employees, 22 employees of the agency are relatives of Ali Hasanov and Ramiz Mehdiyev (Ali Hasanov is the President’s former assistant on social and political issues, Ramiz Mehdiyev is the ex-head of the Presidential Administration).

Aygun Aliyeva had been an editor in charge of news for more than three years, she edited and produced news content. She graduated with a master’s degree in journalism from Baku State University, edited news on economic topics, accompanied the president and his wife to official events, and worked as a correspondent in Bosnia and Herzegovina, Malta, Italy, Serbia, and Montenegro.

The journalist was seeking an answer to the question,

“Why now, have I become an incompetent journalist over the years of work and having such an experience?”

It should be noted that the official reason for her dismissal was Aliyeva’s professional incompetence. The journalist said that the real reason for her discharge was her critical publications in Facebook.

According to her, the problems arose after her posting criticizing the municipalities’ activities. Aygun Aliyeva told the Turan Agency that she wrote the following phrase in connection with the municipal elections on her Facebook page, “Why do I have to go to vote? They haven’t even set up a single trash can”.   After that, she was demanded to write an explanatory letter.

“I replied that even the Head of the State criticizes the municipalities, what’s the big deal here? But I was informed that it was a requirement of the Presidential Administration”. – http://turan.az/ext/news/2021/3/free/Social/en/2501.htm

Aygun Aliyeva revealed that she was also reprimanded at “Azertaj” in connection with her other post. “On 3 August I was told, ” You wrote “I gave birth to two children”, aren’t you ashamed, your behavior does not conform to an Azerbaijani woman’s image”. – http://turan.az/ext/news/2021/3/free/Social/en/2501.htm

She was asked to write a voluntary letter of resignation, but disagreeing to do so, she filed a lawsuit against the “Azertaj” agency.

“If I bring up the fact that the municipality has not placed the garbage container and I complain about it, should I be fired due to that? Right now, in my department, they are saying that I am an oppositionist, urging people to boycott elections. What I really want to say is, a person expressing dissatisfaction about something is not an oppositionist. He is just a citizen,” said Aliyeva.

Aliyeva’s lawyer requested the court to cancel the order of dismissal dated on 19 September  2020, restore her client at work and pay her salary for the months during which she was not allowed working.

On 11 March 2021, the Baku Nasimi District Court dismissed Aygun Aliyeva’s appeal.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. In the judgment, there are listed the defendant’s representative’s and lawyer’s arguments. According to these arguments, Aygun Aliyeva, being on a business trip to Barcelona, doubted the activities of the Azerbaijani Embassy in Spain in the area of national interest protection that she expressed in her statements, also, she “teased” over the decisions of the Operational Staff at the Cabinet of Ministers regarding the pandemic, and opposed these decisions. The court’s decision states that Aliyeva published the posts on Facebook that “violate the journalistic ethics”.

Based on the case records, Aygun Aliyeva was given a warning concerning her FB posts and on 26 April 2019, she wrote an explanatory letter, accepting the remarks about the posts and promising not to repeat this kind of thing again.

The protocol of the “Azertaj” Board meeting on 16 March 2019, states that A. Aliyeva often gets into “verbal altercations,” uses expressions “unacceptable for journalistic ethics,” and tries to evade responsibility in addition to her professional unfitness.

In an explanatory letter dated on 14 January 2020, Aliyeva pointed out that, in connection to her Facebook posts, she had asked for apologies from the “Azertaj” Board Chairman and promised it would not happen again. These posts allegedly contained sarcastic remarks about the Parliamentary elections in Azerbaijan on 9 February 2020.

In the course of the trial, the defendant’s representative and lawyer also confirmed that A. Aliyeva had published the posts “politically harmful” for the parliamentary elections.

As confirmed by the representative’s and defendant’s lawyer’s testimonies as well as the case materials, the dismissal of the journalist with a 21-year-long work experience took place due to her post, in which she was expressing her own opinion on a social network. In addition, it is also stated in the case materials that Aliyeva repeatedly provided explanations for her criticism, as well as asked the Chairman of the Board for apologies and promised that it would not happen again.

According to the Article 47 of the Azerbaijan Republic Constitution,

  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.

The Law of the Azerbaijan Republic, the Article 7 “On Mass Media” states that no censorship is permitted. The social networks are also one of the types of media. It should be noted that A. Aliyeva expressed her opinions on topics that are of great concern to society.

In the case of Aygun Aliyeva, there was a violation of the Article 47 of the Constitution of the Azerbaijan Republic and the Article 10 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to the Article 10 (1) of the European Convention on Human Rights,

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

Along with the European Convention for the Protection of Human Rights and Fundamental Freedoms, the right to freedom of expression is guaranteed by the Article 19 of the International Covenant on Civil and Political Rights, as well as by the Article 19 of the Universal Declaration of Human Rights.

Freedom of expression constitutes one of the supporting pillars of a democratic society, a fundamental condition for its progress and the self-fulfillment of each of its members. Freedom of expression encompasses not only “information” or “ideas” that come across favorably or are regarded as innocuous or neutral, but also those that offend, shock or disturb. Such are the demands of pluralism, tolerance and liberalism, without which there is no “democratic society”. Thus, the exceptions to its implementation call for a restrictive interpretation, and any interference must be established in a convincing manner. This is the practice developed by the European Court of Human Rights (ECHR) in its decisions on violations of the right to freedom of expression.

“This freedom is almost sacred in jurisprudence, and especially in the context of the political nature. A press owns the right to control, on behalf of and at the expense of the citizens, the custom that politicians make of the powers entrusted to them. Therefore, the journalist happens to be vested with a mission representing the public interest, since the right to spread information and ideas, and the public’s right to receive it, are two sides of the same coin” (Precedents of the European Court of Human Rights, Michele de Salvia, St. Petersburg, 2004).

“Freedom of expression, as enshrined in the Article 10 of the Convention, is subject to a number of exceptions, which must, however, be construed narrowly and the necessity of any restriction of which must be convincingly established” (decision of the European Court of Human Rights incase of Sandy Times v. United Kingdom on 26 April 1979). – https://www.bailii.org/eu/cases/ECHR/1979/1.html

The interference to the journalist’s right to freedom of expression did not have any legitimate purpose and was not essential in a democratic society. The list of restrictions on the right to freedom of expression is very straightforward. The restrictions are listed in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10 (2).

 

They are as follows:

  1. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as
  • are prescribed by law
  • are necessary in a democratic society, in the interests of national security, territorial integrity or public safety,
  • for the prevention of disorder or crime,
  • for the protection of health or morals, for the protection of the reputation or rights of others,
  • for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In this particular case, none of the restrictions took place. The journalist, exercising the right to freedom of expression, published the posts on social networks that were disapproved by the information agency’s management, which was confirmed in the case report. This was the real reason behind the journalist’s dismissal despite her 21-year experience.

The judgment of the European Court of Human Rights concerning the case of Khalid Bagirov v. Azerbaijan (dated on 25 June 2020) said that Khalid Bagirov, as a member of the Azerbaijan Bar Association, spoke about the court verdict at one of the political trials, “In such a state there will be the same court… If there had been justice in Azerbaijan, the judge R.G. would not have given an unfair and biased sentence, sine he would not have worked as a judge to begin with”. For these very expressions, H.Bagirov was expelled from the Bar Association. Having used all domestic legal means of protection, Khalid Bagirov appealed to the European Court of Human Rights.

It is written in the paragraph 81 of the ECHR judgment,

“Moreover, the applicant’s comments about the first-instance court may have been offensive, but those comments were mainly a protest against the applicant’s objections to the decisions in the case of Ilqar Mamedov in the criminal proceedings of the local courts. In this connection, the Court draws attention to the fact that when making those statements before the Sheki Court of Appeal, the judgment in the case of Ilqar Mamedov v. Azerbaijan (no. 15172/13, 22 May 2014) had already been issued. The Court established that the Articles 5 and 18 of the Convention had been violated and Ilqar Mamedov’s restriction of freedom had been unjustified in accordance with the Convention. Furthermore, the Court determined that there had been a number of serious omissions in the criminal case against Ilqar Mamedov (see Ilqar Mamedov v. Azerbaijan (no. 2), no. 919/15, 16 November 2017).

It is also stated in the paragraph 82 of the ECHR judgment,

“The Court also notes that attention should be drawn to the use of the expressions made by the Nizami District Court such as “abuse this right (freedom of expression) in order to tarnish our State and our nationhood is absolutely unacceptable”.

The Court considers that the local court’s reasons for terminating the applicant’s legal practice are incompatible with the objectives of the Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and must not be used as a ground for restricting freedom of expression in a Democratic society requiring pluralism, tolerance and open-mindedness.

According to the ECHR ruling on 25 June 2020, the lawyer’s, Khalid Bagirov, right to freedom of expression (Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) was violated.

This case is an indication that whether a case concerned a lawyer or a journalist, they have the right to express their opinion without violating the ethics of these professions. This principle is also true in the case of the Azerbaijan State News Agency “Azertaj” v. Ms. Aygun Aliyeva, an employee of the agency.

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There should be no political prisoners’ defenders in the Bar Association of the Azerbaijan Republic

There should be no political prisoners’ defenders in the Bar Association of the Azerbaijan Republic

Shahla Humbatova

Analysis of violation of law during Shahla Humbatova’s judicial proceedings

Baku City Administrative Court 

Case №2-1 (112)-620/2021

5 March 2021  

Judge:  Aytan Orujzade

Plaintiff: the Azerbaijan Republic Bar Association 

Representative of the plaintiff: Ilhama Hasanova

Defendant: Shahla Humbatova

Defendant’s representative and attorney: Elchin Sadigov 

Shahla Humbatova, who previously worked for various international organizations, has been a member of the Azerbaijan Republic Bar Association since 2014. Humbatova has defended many public and political figures, as well as journalists. Sh.Humbatova had been an attorney of a well-known human rights activist Intiqam Aliyev, the chairman of the “ReAl” Party Ilqar Mammadov, also a journalist Seymur Hazi. She had participated in the defence of those arrested in the so-called “Nardaran” and “Ganja” cases, and defended a famous blogger Mehman Huseynov, the civil society activists who had been arrested on charges of administrative offenses, as well as the LGBT representatives, women from the Feminist Movement and many other opposition activists arrested on political grounds. She had also been a representative of citizens whose homes had been illegally demolished on Sovetskaya street in Baku downtown. As a lawyer, Shahla Humbatova has participated in numerous international conferences on the protection of human rights. As a lawyer, Shahla Humbatova has participated in numerous international conferences on the protection of human rights.

The Bar Association of the Azerbaijan Republic’s biased attitude towards her was manifested in 2018, when she defended the well-known blogger Mehman Huseynov. In December 2018, two months prior to the end of M. Huseynov’s sentence, a new criminal case was initiated against the blogger, regarding an attack on the penal institution employee, in which he had been held. Then M. Huseynov went on a hunger strike, and the lawyer had a meeting with her client in the colony. The Ministry of Justice’s official statement with regard to the blogger’s good health did not correspond to reality. During the meeting the lawyer stated that his health had deteriorated, the veins on his legs had ruptured and some other complications had been arisen and noticed. On the day of their meeting in the colony, M. Huseynov asked Sh. Humbatova to inform the public of his real state of health, which the lawyer did by posting the content on the social network Facebook. Thereafter, Sh. Humbatova faced pressure from the authorities. She was summoned by the Chairman of the Bar Association, Anar Bagirov, who demanded Sh. Humbatova to report to the press only those information that the state structures had previously provided. The Chairman also warned Sh. Humbatova that if she continued to act as she did before, she would be subjected to appropriate measures.

In January 2019, the European Parliament demanded the release of Mehman Huseynov from the Azerbaijani authorities, and in Baku, there was a rally demanding the blogger’s freedom on 19 January 2019. In late January 2019, during the Winter Session of the Parliamentary Assembly of the Council of Europe (PACE), Humbatova was called to an event related to the protection of human rights, at which the members of the event were discussing the case of the arrested blogger Mehman Huseynov. As a result of both domestic and international pressure, the second criminal case against M. Huseynov was discontinued. On 2 March 2019, M. Huseynov was released upon completion of his first sentence.

Right after that, Shahla Humbatova has been facing many obstacles, when visiting places of detention.

In April 2019, Sh. Humbatova addressed with an official letter to the Bar Association, in which she pointed out at the fact that she had been prevented from visiting her clients in the detention facilities. In her letter, Sh. Humbatova asked the Chairman of Association to help her and assist in resolving this issue. However, the lawyer did not receive any response to her request.

Next, Shahla Humbatova wrote a crucial post on Facebook regarding the created obstacles to visiting her defendants, after which she received a call from the Bar Association Chairman, Anar Bagirov, who accused her in rude manner (shouting) of lying. On the following day, she received a phone call from the Bar Association informing her that the disciplinary proceedings against her had been initiated. Later, it became known that the complaint was related to the case of Mehman Huseynov. It caused a firestorm of discussion on social networks. The International organizations made strong statements concerning the initiated harassment against the lawyer and pointed out the previous expulsions of lawyers from the Bar, who defended the rights of political prisoners: Alaif Hasanov, Khalid Bagirov, Yalchin Imanov and some others.

On 27 November 2019, the Presidium of the Bar Association, following the complaint of the citizen R. Qurbanova, considered the decision of the Disciplinary Commission and made a decision to apply to the court requesting the termination of Shahla Humbatova’s lawyer’s practice. According to the complaint against Sh. Humbatova, she submitted false documents to the court, obtained money from applicants in public catering places, failed to attend the trial without a valid reason, and has not paid her membership fee to the Bar Association for the past 6 months. In accordance with the Bar Association’s statement, the citizen R. Qurbanova paid 1.300 manat to Sh. Humbatova to attend the trial and submit requests, but the lawyer failed to give R. Qurbanova a corresponding payment receipt, and also asked her to sign a blank form. Furthermore, R. Qurbanova stated that the lawyer had submitted to the court documents about the fee in the amount of 3,000 manat.

The Bar Association appealed to the Anti-Corruption Department of the General Prosecutor’s Office of the Azerbaijan Republic to investigate that complaint. Shahla Humbatova announced that she had not received any official notification from the Department. The only call from the Department she received was to inform her that they had received some material, which was being investigated. Sh. Humbatova refused to testify. On 28 November 2019, the Bar Association made a decision to suspend Sh. Humbatova’s lawyer practice.

Shahla Humbatova commented on the Bar Association’s statement as,

“I signed a contract with this citizen for 3,000 manats, the receipt for the same amount was given to her, but that woman, having cheated me, paid only 1,000 manats. No one suffered any kind of loss but me. They are trying to fabricate a case on such an absurd issue”.

On 5 March 2021 the Baku City Administrative Court ruled to expel the lawyer Shahla Humbatova from the Azerbaijan Bar Association.

It should be noted that on 4 March 2020, Sh. Humbatova was awarded the “Brave Women” International award on behalf of the U.S. Secretary of State Mike Pompeo.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. The Bar Association’s lawsuit against Shahla Humbatova there are two grounds on which the Bar Association made a decision to expel S. Humbatova from the Bar Association:

  • failure to pay membership fees for a period of 6 months;
  • unethical lawyer’s conduct based on a citizen’s complaint and it may undermine the lawyer’s reputation.

Sh. Humbatova found out about the membership fee arrears only through the complaint. In the complaint, it was stated that she had familiarized herself with the materials of the disciplinary proceedings and that they allegedly contained the financial department’s request for arrears on membership fees. But in reality, Sh. Humbatova has read the disciplinary materials including only Rukhsara Qurbanova’s complaint (it was handwritten in Russian) and the Baku City Yasamal District Court materials, and there was no information on the arrears on membership fees. She was not informed about the arrears of membership fees by the representative of Bar Association, Ilhama Hasanova, with whom she repeatedly spoke over the phone. The issue of arrears was not a subject of discussion between Sh. Humbatova and the Bar Association. Sh. Humbatova was not informed about the arrears till the expiration of six months. On 29 November 2019, all arrears of membership fees were paid by Sh. Humbatova, and there is a corresponding receipt from the bank.

According to the Law of the Republic of Azerbaijan On lawyers and legal practice,

“I. Advocacy in the Azerbaijan Republic is an independent legal institution that professionally carries out legal defense practice.”

According to the Article 3 of the above mentioned Law,

“The main objectives of advocacy are the protection of rights, freedoms and legally protected interests of individuals and legal entities and the provision of high quality legal aid to them”.

It is known, that Shahla Humbatova defended many political prisoners, “prisoners of conscience”, she is reputable among the international attorneys, she defended her clients in good faith and competently and never had to face such problems.

The Article 5 of the Law of the Azerbaijan Republic On lawyers and legal practice states,

“Advocacy shall be carried out on the basis of the priority of human and civil rights and freedoms, the rule of law, independence of lawyers, voluntary relations between lawyers and persons seeking their legal assistance, regardless of their race, nationality, religion, language, gender, origin, property status, official position, beliefs, political parties, trade unions and other public associations membership, and in compliance with legal ethics.”

There are disciplinary measures that can be imposed on lawyers enumerated in the Article 22 of the Law On lawyers and legal practice,

  • notice;
  • reprimand;
  • prohibition to practice law for a period from three months to one year;
  • exclusion from the Bar.

The court did not clarify the reason why the plaintiff (the Bar Association) had requested the court to impose the harshest disciplinary measure against the lawyer, namely expulsion from the Bar.

According to the Article 2 of the Regulation on Advocates’ Conduct, the advocates are independent and subject to the requirements of the law only. The main requirement is a lawyer being fully independent with regard to his/her conduct.

Under the Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Shahla Humbatova was entitled to a fair trial. However, she was deprived of that right, the trial was conducted in a biased manner. In this case, as in many others related to the lawyers’ human rights exclusion from the Azerbaijan Republic Bar Association, the independence of the court could only be questioned. It can be demonstrated even by the outward signs of the trial.

Furthermore, along with a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 13 (Right to an effective remedy) was also violated.

As to the effectiveness of a remedy, the European Court of Human Rights (ECHR) jurisprudence has clarified that it does not depend, in terms of the purposes of the Article 13, on an unambiguous predetermination of a favorable outcome. The European Convention stipulates that remedies should generally be effective, both in practice and in law, in particular that their use should not be unreasonably hindered by the acts or, on the contrary, by the omissions of the national authorities. The European Court of Human Rights stated this principle in its judgment of 25 May 1998 in the case of Kurt v. Turkey. http://www.echr.ru/documents/doc/2461485/2461485.htm

Considering all of the above, we can come to the conclusion that the pressure on human rights lawyers in Azerbaijan has still not stopped. The European Court of Human Rights is currently hearing more than one complaint by human rights lawyers who have been expelled from the Bar Association for their practice. Moreover, there are already ECHR decisions on similar cases (decisions on the following lawyers complaints – Intiqam Aliyev, Annagi Hajibeyli, Khalid Bagirov and some others). Despite this, the Azerbaijani National courts are neither guided in their practice by the National Law, nor by the Norms of International Law, nor by the recommendations of International bodies. They also do not follow the precedents of the European Court of Human Rights, which are recommendatory for the Council of Europe member states.

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Azerbaijan is imprisoned for criticizing President Ilham Aliyev….

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

Elmir Abbasov

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

Sumgayit City Court

Case №3 (060)-664/2021

20 February 2021

Judge: Parviz Hajiyev

Elmir Abbasov: a defendant subjected to an administrative case

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

Defender: Rabbil Aliyev

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

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

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

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

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

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

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

 

Commentary by expert lawyer:

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

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

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

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

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

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

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

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

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

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

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

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

Rule 20 of the Nelson Mandela Rules states,

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

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

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

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

In the segment of “Personal hygiene” note:

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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There is no freedom of speech in Azerbaijan …

There is no freedom of speech in Azerbaijan …

Elchin Hasanzade

Ibrahim Salamov

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

Mingachevir City Court

Case №1 (051)-77/2020

16 November 2020

Judge: Huseyn Mirzaliyev

 The State Prosecutor: Shahriyar Mustafayev

Defendants: Elchin Hasanzade, Ibrahim Salamov

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

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

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

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

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

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

Commentary by expert lawyer:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1) to protect a life of an individual;

2) in order to prevent a serious crime;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Article 151 of the Azerbaijan Republic Constitution states:

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

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

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The courts in Azerbaijan support the police officers’ unlawful activities

The courts in Azerbaijan support the police officers’ unlawful activities

Mustafa Hajily

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

Baku City Binagadi District Court

Case №6 (001)-5/2021

5 February 2021

Judge: Elchin Agayev

Complainant: Mustafa Hajily

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

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

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

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

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

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

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

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

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

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

 

Commentary by expert lawyer:

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

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

 

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

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

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

 

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

 

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

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

Aqil Maharramov

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

Baku City Khazar District Court

Case №7 (003)-13/2021

13 January 2021

Judge: Tarlan Akbarov

Defendant: Aqil Maharramov

Defender:  Aqil Lahij

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

 

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

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

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

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

See:

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

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

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

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

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

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

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

 

Commentary by an expert lawyer:

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

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

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

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

These conditions are:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

The trial analysis

Baku City Sabayil District Court

Case №1 (009)-162/2020

7 December 2020

Judge: Agamali Qafarov

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

 

In the courtroom there were also attending lawyers

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

 

The defendants participating at the trial by video conference:

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

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

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

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

▪ 32.3, 32.4, 233 (organization and incitement to activities that facilitate public order violation)
▪ 32.3, 34.2, 315 (organization and participation in resistance or use of violence against a state official)
▪ 32.3, 34.2, 186.2.1. (organization and participation in intentional destruction or damage of property)
▪ 32.3, 34.2, 127.2.1. (organization and participation in intentional infliction causing of a less serious harm to health) of the Criminal Code of the Azerbaijan Republic.

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

· 334.2, 233 (committing actions facilitating violation of public order or active participation in such actions by a group of individuals upon prior conspiracy)
· 34.2, 315 (resistance or use of violence against a state authority by a group of individuals upon prior conspiracy)
· 34.2, 186.2.1 (intentional destruction or damage of property by a group of individuals upon prior conspiracy in order to cause significant property damage)
· 34.2, 127.2.1 (intentional infliction causing a less serious harm to health by a group of individuals upon prior conspiracy) Criminal Code of Azerbaijan Republic.

From 17 to 28 July 2020, almost daily, there were trials in the Nasimi District Court of Baku, in the course of which the above 36 defendants were sentenced to a 3-month detention measure.

In October 2020, the Prosecutor’s Office filed a motion to change the preventive measure in the form of house arrest for 21 defendants:

1. Shamsi Rahimli
2. Ayaz Maharramov
3. Seymur Ahmadov
4. Jeyhun Novruzov
5. Mushfiq Quliyev
6. Kamil Mahmudov
7. Vusal Quliyev
8. Fuad Qahramanli
9. Elchin Mehdiyev
10. Fariz Mammadov
11. Telman Seyfullayev
12. Bakhtiyar Imanov
13. Ismayil Hasanov
14. Baba Suleymanov
15. Mammad Ibrahim
16. Mahabbat Naqiyev
17. Emin Huseynzade
18. Tural Valiyev
19. Ariz Safarli
20. Asif Yusifli
21. Jeyhun Mammadov

The trial to consider the Prosecutor’s Office’s submission was scheduled at 11.00 on 27 October 2020. Due to the worsening of the Covid-19 epidemic situation, the preliminary hearing was postponed. On 16 November 2020, taking into account the epidemic situation in the country, the court, on its own initiative, decided to hold the trial by means of video conference. Thus, the defendants participated in the court hearing via Skype. The Prosecutors requested the court to satisfy the submitted motion. All the defendants and their lawyers also asked the court to replace the preventive measure by house arrest.

On 17 November 2020, the Sabayil District Court of Baku city issued a ruling to change the preventive measure to house arrest in respect of all 21 defendants, with the condition not to leave the place of residence from 11.00 p.m. to 07.00 a.m., to wear an electronic means of supervision, keep it in good condition and not to change the place of residence without the court notifying.

Commentary by expert lawyer:
A court ruling is partly lawful and partly justified.
There are several basic principles in criminal proceedings: to determine the rules that constitute the core of criminal prosecution; to ensure the protection of an individual and a citizen against cases of illegitimate restriction of their rights and freedoms; to determine the legality and validity of each criminal prosecution. Violation of the criminal procedure principles or conditions in the cases stipulated by this Code may lead to the invalidity of the criminal prosecution proceedings, or to the annulment of the rulings adopted in the course of the proceedings or to the conclusion that the gathered materials have no evidentiary value (the Article 9.2. of Criminal Procedural Code of the Azerbaijan Republic). In this case, the court respected all principles, in accordance with the Criminal Procedural Law.
According to the Article 163.1 of Criminal Procedural Code of the Azerbaijan Republic, the house arrest is a restrictive measure which restricts a person’s liberties and some other rights by a court decision, without the accused being detained on remand and isolated completely from society.

According to the Article 163.3 of Criminal Procedural Code of the Azerbaijan Republic, house arrest may be accompanied by application of the following measures, separately or where possible jointly:

163.3.1. prohibition of leaving one’s home at any time or at certain times;
163.3.2. prohibition of speaking on the telephone, sending mail or using other means of communication;
163.3.3. prohibition of contact with certain people and of receiving visits from anyone at home;
163.3.4. application of electronic monitoring devices and obligation to wear them and operate them;
163.3.6. placing under observation of the accused or his home, as well as a police guard on his house, flat or other accommodation given to him.

Apparently, when changing the preventive measure, the court imposed on the accused all the conditions listed in the Article 163.3. of Criminal Procedural Code of the Azerbaijan Republic that must be observed in the case of house arrest.
The Resolution of the Azerbaijan Republic Supreme Court Plenum “On Application of the Provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Cases of the European Court of Human Rights in the Administration of Justice” adopted on 30 March 2006, states in the paragraph 13 “It is recommended that the courts should not allow the use of preventive measure in the form of arrest as a usual practice, referring to the paragraph 3 of the Article 9 of the International Covenant on Civil and Political Rights, to which the Azerbaijan Republic is a party. It is preferable to keep an individual free if there is a guarantee that the entity appears in the court. A measure of restraint in the form of arrest should be regarded as exceptional and applied only in case of absolute necessity, when another measure of restraint cannot be applied.
The Paragraph 16 of the Supreme Court Plenum’s Resolution states “It should be emphasized that a reasonable suspicion that a person has committed a crime is a prerequisite for his detention. However, such suspicions are not sufficient for the continued detention. Apart from reasonable suspicion, there should be other grounds to justify an individual’s detention. Hiding from the prosecutor’s office some actions, obstructing the normal course of the preliminary investigation or the court proceedings through concealment or falsification of criminal matters through illegal influence on the people involved in the criminal proceedings, multiple offences or committing an act stipulated by the criminal legislation; for example, endangering society. However, these grounds must be feasible, i.e. confirmed by the reliable information. The courts, while extending the preventive measure in the form of arrest, should indicate the grounds for such a measure in their rulings and prove them”.
The court properly applied the Azerbaijan Republic Supreme Court resolution.

The directions of the Azerbaijan Republic Supreme Court Plenum “On the practice of application of the legislation by the courts while considering the requests on the choice of preventive measure against the accused” dated on 03 November 2009, were also fully observed by the court.

The Paragraph 10 of this Resolution states “It should be clarified to the courts that in accordance with the requirements of the Articles 157.5 and 448.1.3 of Criminal Procedure Code of the Azerbaijan Republic, if the court determines that the individual’s isolation from the society is unnecessary when considering applications for preliminary detention or prolongation of the detention period, instead of the detention measure it may be chosen house arrest as the measure of restraint. The Court of Appeal shall also be entitled to adopt a decision of similar detention (on the choice of a preventive measure in the form of house arrest in respect of the accused) when considering an appeal or objection. When choosing a measure of restraint in the form of house arrest, the courts shall take into account the accused’s age, health condition, family status and other circumstances. All or a part of restrictions stipulated by the Article 163.3 of Criminal Procedure Code of the Azerbaijan Republic can be applied to the accused placed under the house arrest according to the crime gravity. Application of these restrictions must be included in the court ruling”.

Unfortunately, the court ruling contains one “but”. The Article 163.3 of Criminal Procedure Code of the Azerbaijan Republic lists the restrictions applied to the accused during the period of house arrest. The court applied all the listed restrictions to the accused, but it did not justify why instead of one or two restrictions they imposed to apply all at once. Moreover, the same restrictions were used towards all 21 defendants. Here, the court did not treat each defendant individually.

In addition to the Norms of the National Criminal Procedure Law, the Norms of the International Law prescribe the maximum limitation of the preventive measure in the form of arrest, and consider any alternative measure in order to keep the accused person at liberty before the trial.

Thus, the Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 9 of the International Covenant on Civil and Political Rights, the Article 9 of the Universal Declaration of Human Rights prohibit arbitrary arrests and indicate that a person’s physical freedom must be protected. While the court ruling protected the accusers’ right to liberty, however, all the restrictions imposed on them raised questions about their full legality and justification.

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

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

Muhammad Imanly

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

Baku City Sabunchi District Court

Case №1 (008)-400/2020

1 December 2020

Judge: Mirheydar Zeynalov

Defendant: Muhammad Imanly

Defender: Asabali Mustafayev

The State Prosecutor: Amin Shakaraliyev

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Commentary by an expert lawyer:

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

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

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

158.2.1. the period of detention and remand;

158.2.2. the period of house arrest;

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

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

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

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

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

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

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

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

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

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

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

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

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

59.1. Circumstances softening punishment shall be following:

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

59.1.2. commitment of a crime by the minor;

59.1.3. commitment of a crime by the pregnant woman;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The right to a fair trial is guaranteed by the Article 6 paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to this article, in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

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

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

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

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

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