HAFIZ BABALY HAS ONCE AGAIN BEEN IMPRISONED WITHOUT A VALID REASON
Khafiz Babaly
Analysis of violation of law during Khafiz Babaly’s judicial proceedings
Baku City Khatai District Court
Case № 4(011)-180/2024
7 March 2024
Presiding judge: Sulkhana Hajiyeva
Defendant: Khafiz Babaly
Defender: Rasul Jafarov
With the participation of Togrul Huseynov, a Senior Investigator at the Investigation Division for Serious Crimes within the Investigation and Inquiry Department of the Baku City Police Headquarters, and Abulfaz Huseynov, a Prosecutor at the Department for Supervision over the Execution of Laws in the Investigation, Inquiry and Investigative Activity of the Baku Internal Affairs Bodies Prosecutor’s Office.
Hafiz Babaly, born in 1971, a journalist, was the Editor of Economics Department of the “Turan” News Agency. He was involved in journalistic investigations concerning the corruption in the country and cooperated with the “Abzas Media” resource.
It should be reminded that earlier the managers of “Abzas Media” website Ulvi Hasanli and Sevinj Vaqifqizi, as well as the website employees, Muhammad Kekalov and Nargiz Absalamova were arrested. About five website employees were questioned as witnesses in the criminal case against them.
On 13 December 2023, Hafiz Babaly was detained as a suspect in the case of “Absaz Media”. He was charged under the Article 206.3.2 (Smuggling, is moving large amount through customs border of the Republic of Azerbaijan of goods or other subjects, committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic (CC AR). The same Article was previously brought against Ulvi Hasanli, Sevinj Vaqifqizi, Muhammad Kekalov, Nargiz Absalamova and Elnara Qasimova
On 14 December 2023, the Baku City Khatai District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Hafiz Babaly in the form of detention for a period of 3 months.
In March 2024, a senior investigator from the Serious Crimes Investigation Division within the Baku Main Police Investigation and Inquiry Headquarters and the Baku Deputy Prosecutor applied to the Baku City Khatai District Court with a petition and submission respectively requesting the Court to extend the term of preventive measure against the journalist until 13 June.
In the course of the trial, the defendant testified that he had nothing to do with the charge and his arrest appeared to be of a political nature.
The journalist’s defence lawyer said that the chosen preventive measure against his client hadn’t had any substantive or procedural grounds. He also pointed out that during the past three months of detention there had been no investigative actions with the participation of his client, therefore the lawyer asked the Court to reject the investigator’s and the prosecutor’s petition and replace the measure of restraint in the form of arrest on the house arrest.
On 7 March 2024, the Baku City Khatai District Court issued a ruling: to satisfy the investigator’s petition and prosecutor’s submission to extend the preventive measure against H. Babaly and extend it until 13 June 2024. The Court also denied the defence’s motion to replace the preventive measure of restraint in the form of arrest on the house arrest.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified. According to the Article 158.1 of the Code of Criminal Procedure of the Azerbaijan Republic,
At the pre-trial stage of the criminal case, when it chooses arrest as a restrictive measure, the court shall specify a remand period of up to 2 (two) months in respect of offences which do not pose a major public threat or minor offences and of up to 3 (three) months in respect of serious and very serious offences.
The Article 158.3 of the Code of Criminal Procedure of the Azerbaijan Republic states,
At the pre-trial stage of the criminal case, the remand period, other than in cases of prolongation of the period as prescribed by Article 159 of this Code, may not exceed the above-mentioned periods.
According to the Article 159.1 of the Code of Criminal Procedure of the Azerbaijan Republic,
At the pre-trial stage of criminal proceedings, the period of detention on remand
of the accused may be prolonged by a court, depending on the complexity of the case: for those offences which do not pose a major public threat, for no longer than 1 (one) month; for minor offences, for no longer than 2 (two) months; for very offences, for no longer than 3 (three) months, and for very serious offences, for no longer than 4 (four) months.
At the same time, the Article 158.3 of the Code of Criminal Procedure of the Azerbaijan Republic states,
At the pre-trial stage, in an exceptionally complicated case, the remand period
may again be prolonged by the court: for minor offences, for no longer than 2 (two) months; for serious offences, for no longer than 3 (three months), and for very serious offences, for no longer than 5 (five) months.
Thus, summarising the above mentioned articles, we can conclude that the extension of a preventive measure shall be granted only in case of exceptional complexity of the matter and upon a motivated petition of an investigator and prosecutor’s submission.
According to the Supreme Court plenum decision ‘On the practice of the courts in considering applications in connection with preventive measures in the form of arrest and house arrest’ issued on 3 November 2009, when considering applications to extend the period of pretrial detention the Courts must comprehensively verify the arguments of the submission that it was not possible to complete the preliminary investigation within the period of time set earlier.
In the judicial order to extend the term of arrest in respect of H. Babaly, the grounds were stated as:
- concealment from the authority conducting the criminal proceedings;
- the chance of fleeing the country;
- obstruction to the normal course of the preliminary investigation or judicial proceedings with the exertion of unlawful pressure on those involved in the criminal proceedings;
- re-committing an act under the criminal law or presenting a danger to society;
- committing a criminal offence punishable with more than 2 years deprivation of liberty.
If we compare the Baku City Khatai District Court’s ruling issued on 14 December 2023, on the imposition of a preventive measure in the form of arrest and the commented judgment issued on 7 March 2024, on the extension of the term of arrest, we shall see that the grounds specified by the Court in the first ruling do not differ at all from the grounds of the second ruling. Thereby, in both cases, the Court proceeded formally, having noted the abstract wording enumerated in the Criminal Procedure Legislation.
However, there are no reasons, specific arguments justifying the extension of the arrest period for another 3 months in the commented judgment, as well as in the ruling on the selection of a preventive measure.
The Court issued the ruling pursuant to the investigator’s unmotivated request and the prosecutor’s submission. It is precisely the lack of reasons behind the judgement that reveals its illegality and unlawfulness.
The Court unreasonably dismissed the defence motion to replace the preventive measure of arrest with house arrest. The Court considered that the previous grounds for arrest had not been resolved yet, and that, due to the complexity of the case, it was impossible to finalise the preliminary investigation.
At this point, the Court should have indicated what investigative actions would be conducted in the next 3 months, and what arguments indicate that the previously asserted grounds have not currently been eliminated.
It should be noted that the measure of restraint in the form of arrest against the journalist has been chosen by the Baku Khatai District Court Judge, Sulkhana Hajiyeva. The prolongation of the chosen preventive measure was also assigned to the same Judge, Hajiyeva. That fact can be considered as partiality, bias and violation of the right to a fair trial guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1).
The European Convention, Article 5(1), enshrines the right of everyone to liberty and personal inviolability.
The judgment of the European Court of Human Rights (ECHR) in the case of Smirnov v. Russia dated 24 June 2003, said,
‘In considering the length of detention following the date of the Convention’s application, the Court takes into account the stage reached by the proceedings. It may therefore, within those limits, take into account the previous period of detention”.
It further says,
“A charged with an offence should always be released prior to a trial, unless the State is able to present “relevant and sufficient” grounds to justify extended detention”.
With regard to the risk of absconding, the European Court observes in the judgment,
‘The risk of absconding cannot be assessed solely on the severity of the eventual sentence; it must be judged with regard to a number of other relevant factors that might either confirm the existence of fugitivity or render it so insubstantial that it would not justify a pre-trial detention. In this regard, it should focus particularly on the individual involved, his or her character, morals, assets, international contacts, affiliations with the State where the person is being prosecuted “.
The judgment further provides,
“The question whether a period of detention is reasonable and it cannot be viewed in the abstract. Whether it is reasonable to remand an accused person in custody must be determined in each case individually in accordance with his or her individual characteristics. Extended detention may be justified in a particular case only if there are definite signs that it is genuinely required by a public interest which, notwithstanding the presumption of innocence, overrides the principle respecting the liberty of individuals”.
There is the following in the ECHR judgment,
“62. First and foremost, it falls to the domestic judicial authorities to ensure that the pre-trial detention of an individual charged in a given case does not exceed a reasonable time. In that regard, it must be considered all the facts pro and con as to whether there is a genuine public interest justification, taking into account the principle of the presumption of innocence, for disregarding the principle of individual liberty in order to direct decision-making with respect to the petitions requesting release. It is largely on the basis of the grounds set out in those judgments and actual circumstances referred to by the applicant in his motions that the Court must decide whether there has been a violation of the Convention, Article 5 § 3.
- The arguments pro and con regarding a release should not be either ‘general or abstract’..
- If a suspect is taken into custody, he is entitled to have priority to his case be conducted with the utmost diligence”. – https://hudoc.echr.coe.int/?i=001-61262
Thus, the European Court of Human Rights, the precedents of which are mandatory for the States members of the CoE, imposes an obligation on the national judicial authorities to respect the principle of keeping an accused or suspected individual at liberty prior to the trial.
The judicial authorities, in depriving an individual of his or her right to liberty during pre-trial proceedings, must provide concrete and relevant arguments that would justify the application of the strictest preventive measure in the form of arrest and, subsequently, its extension.
In case of lack of the definite arguments, a deprivation to the right to freedom and individual inviolability should be considered as a gross violation, which is guaranteed by the Azerbaijani Constitution, Article 28, the AR Criminal Procedure Code, Article 14, and Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the precedents of the European Court of Human Rights.
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