THE COURT’S RULING IS UNJUSTIFIED AND CONTRADICTS TO THE LAW AND PUBLIC INTEREST

Gubad Ibadoglu

Analysis of violation of law during Gubad Ibadoglu’s judicial proceedings

Baku City Narimanov District Court

Case № 4(005)-1112/2023

24 July 2023

Presiding judge: Vusal Qurbanov

Defender: Zubeida Sadiqova

Defendant: Gubad Ibadoglu

Attended by: Yusif Yusifov, a Chief Investigator of the Investigation Department for Combating Organised Crime within the Ministry of Internal Affairs of the Azerbaijan Republic, and Jafar Hasanov, a Prosecutor of the Department of Supervision over Execution of Legislation in Investigation, Inquiry and Operative Investigation Activities within the Internal Affairs Bodies of the Azerbaijan Republic

Gubad Ibadoglu was born in 1971 in Fuzuli district of Azerbaijan. He obtained the secondary school education at a boarding school with a physics and mathematics bias, and he graduated from the State Economic University of Azerbaijan in 1992, then in 1996 he accomplished the postgraduate studies. In 1999-2000 he carried out scientific researches in different European universities. G. Ibadoglu was a member of the “Musavat” party, in 2014, he was nominee for the party chairmanship in the elections, but lost it to Arif Hajili, another party member. On 6 February 2015, he was expelled from the party. On 21 February 2016, he was elected Chairman of the Azerbaijan Democracy and Prosperity Movement.

1. Ibadoglu was a lecturer at the University of London, as well as the author and co-author of many publications in the field of physics and economics.

On 20 July 2023, a criminal case under the Articles 204.1 (Manufacturing with a view of selling, and also buying or selling of counterfeit money, state securities either foreign currency, or securities in foreign currency) and 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) of the Criminal Code of the Azerbaijan Republic was brought against a certain A.A. at the Department for Combating Organised Crime within the Ministry of Internal Affairs of Azerbaijan.

On 24 July 2023, Gubad Ibadoglu was brought to that criminal case under the Article 204.3.1 (Manufacturing with a view of selling, and also buying or selling of counterfeit money, state securities either foreign currency, or securities in foreign currency committed by organized group) of the Criminal Code of the Azerbaijan Republic.

The Baku City Narimanov District Court, considering the imposition of a preventive measure against G. Ibadoglu, ruled to impose a preventive measure in the form of arrest in view of the fact that the accused could escape from the authority in charge of the criminal proceedings, illegally exert influence on the criminal proceedings parties, obstruct the normal pre-trial investigation by withholding the materials relevant to the criminal prosecution, re-commit the criminal offence, pose a danger to the society, and fail to appear at the trial. The Court also pointed out that, in issuing the judgement, it was taking into account the gravity and nature of the offence incriminated against the accused person.

On 24 July 2023, the Baku City Narimanov District Court issued a ruling: to grant the investigator’s petition and Prosecutor’s submission on arrest and elect a preventive measure against G.Ibadoglu in the form of arrest for a period of 4 months, i.e. until 20 November 2023.

 

Commentary by expert lawyer:

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

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

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

The Article 155.1 of the AR CPC enumerates the grounds for applying a preventive measure. This is:

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

The Court imposed the harshest preventive measure of arrest against G. Ibadoglu, while stating the following grounds: absconding from the authority conducting the criminal proceedings, exerting illegal pressure on the parties involved in the criminal proceedings, obstructing the preliminary investigation normal course by concealing the materials relevant to the criminal proceedings, repeated perpetration of an offence under the criminal law, endangering society, failure to appear without a valid reason when summoned by the authority conducting the investigation.

Apparently, the Court simply listed the grounds set out in the legislation. However, it failed either to consider each ground separately, or provide arguments justifying the imposition of a preventive measure in the form of arrest, and also the relevance of each ground to a particular individual. There is no information in the judgement that would prove the necessity of isolating the defendant from the society.

As mentioned above, G.Ibadoglu is a scientist physicist, author and co-author of many works on physics and economics, has experience and authority in the political life of the country. The Court, having chosen an arrest, did not take into account Gubad Ibadoglu’s personality, his authority, various regalia, his renown reputation as a scientist inside and outside the country.

In the court ruling, the Court referred to the Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms that protects an individual’s right to liberty and security. However, as usual, the Court interpreted the Article in its own way, without taking into account the case law of the European Court of Human Rights (ECHR). The ECHR stated that the use of a preventive measure in the form of arrest is admissible  if the interests of society outweigh an accused’s right to liberty i.e. if a person remains at liberty, it will cause negative emotions in public and create a danger for society.

In the case of G. Ibadoglu, it happened the opposite. His arrest led to a negative reaction in the civil society as well as international structures. Moreover, the incriminated against G.Ibadoglu Article, by and large, may harm the economic interests of the country but not the society as a whole.

According to the case law of the European Court of Human Rights (ECtHR), it must be reasonable suspicions for an arrest:

“Reasonable suspicion justifying detention is an essential element of the protection against arbitrary deprivation of liberty afforded by Article 5(1)(c). The existence of reasonable suspicion presupposes in advance the existence of facts or information that could convince an objective observer that an individual may have committed the offence. In addition, a constellation of factors will not be sufficient to ground reasonable suspicion where it amounts to only a generalized suspicion”.

The judgment of the European Court of Justice in the case of Letellier v. France of 26 June 1991 states:

“…by reason of their particular gravity and public reaction to them, certain offences may give rise to a social disturbance capable of justifying pre-trial detention, at least for a time – factor which might therefore, in exceptional circumstances, be taken into account for the purposes of the Convention, in any event in so far as domestic law recognises the notion of disturbance to public order caused by an offence – however, this ground can be regarded as relevant and sufficient provided only that it is based upon facts capable of showing that detainee’s release would actually disturb public order – in addition detention continues to be legitimate only if public order remains actually threatened – indictments divisions assessed need to continue the deprivation of liberty from purely abstract point of view, taking into consideration only gravity of offence.” – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22Letellier%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57678%22]}

Thus, the Court’s reference to the precedents of the European Court of Human Rights (ECHR) on the prevalence of public interest over an individual’s right to liberty in this particular case has no grounds.

The Court was not guided by the principles of independence and impartiality and issued an order of arrest to satisfy the investigative authorities, failing to provide any arguments and grounds for the imposition of a preventive measure in the form of confinement in custody. The arrest of G. Ibadoglu is illegitimate; his arrest clearly pursues other goals not stipulated by the law. The illegitimate arrest has led to the violation of a fundamental right : the Right to Liberty, enshrined in the Article 28 of the Constitution of Azerbaijan, Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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QIYAS IBRAHIMOV HAS BEEN SUBJECTED TO PERSECUTION AND ARRESTS SINCE 2016

Qiyas Ibrahimova

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

Baku City Nizami District Court

Case № 3(007)-3474/2023

24 June 2023

Presiding judge: Niqar Qadirli

The person against whom an administrative record was issued: Qiyas Ibrahimov

Defender: Elchin Sadigov

On 10 May 2016, Qiyas Ibrahimov, a young activist, was arrested for the first time for graffiti on the monument of ex-president Heydar Aliyev. The graffiti was done together with his friend Bayram Mamedov. On 10 May, Heydar Aliyev’s birthday, they wrote on the monument “Happy Slaves’ Day!”.

Following that, and especially after their arrest, Qiyas Ibrahimov and Bayram Mammadov, his friend and associate, became widely known to the public of the country. Although they were arrested for the graffiti on the monument dedicated to Heydar Aliyev, officially they were formally charged with fraudulent accusations of illegal drug trafficking on a large scale. The Court sentenced both of them to 10 years imprisonment. In the Court of Appeal, Qiyas Ibrahimov faced a new charge of “Contempt of Court” for a phrase he addressed to the judges: “You are puppets in robes”.

Qiyas Ibrahimov and Bayram Mammadov were recognized as “prisoners of conscience” by the local and international Human Rights organizations. In March 2019, due to an act of pardon, the two activists were released.

On 2 May 2021, Bayram Mammadov perished under unclear circumstances in Turkey. The official Turkish authorities’ version was considered to be an accident. His body was found in the sea.

Qiyas Ibrahimov has continued his activity. He had been organizing a number of protests, for which he was repeatedly brought to the administrative charges.

On 20 June 2023, the residents of Soyudlu village in the Gadabay region took to the streets to protest against the contamination of water and soil caused by the industrial waste at the gold mines, which are dangerous to their life and health. As a result, 5 residents as well as activists who expressed their protest on the social networks were arrested. In addition, the journalists who came to the village to cover the events were subjected to physical harassment by the police officers. During the rally, the police used physical force and tear gas against the protesters.

On 22 June 2023, on his Facebook page, Qiyas Ibrahimov published a post expressing his extremely negative opinion regarding the occurred events. He sharply criticized the authorities’ conduct.

On the very same day, a District Police Officer and others came to the Qiyas Ibrahimov’s house while Qiyas’ mother was at home. The policemen detained the activist and demanded to remove the FB post. But Qiyas Ibrahimov refused to do it.

Qiyas Ibrahimov was charged with administrative offence under the Article 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic. On 22 June 2023, the Baku City Nizami District Court issued a ruling against Qiyas Ibrahimov on the basis of which he was found guilty of committing an administrative offense under the same Article 535.1 of the Administrative Offences Code of the Azerbaijan Republic and sentenced to 30 days of administrative detention.

On 24 June 2023, Qiyas Ibrahimov was again brought to the Court.  In this case, he was charged with another Article 388-1.1.1 “Publication of the prohibited information on the Internet resource or telecommunication network, as well as failure to prevent the placement of such an information” of the Administrative Offences Code of the Azerbaijan Republic.

On 24 June 2023, the Baku City Nizami District Court issued a ruling: to find Qiyas Ibrahimov guilty on the charges and sentence him to 32 days of administrative arrest.

From the first day of his arrest Qiyas Ibrahimov announced the beginning of a “dry” hunger strike in protest against the Soyudlu events. As he was very weak due to the hunger strike, Qiyas Ibrahimov was physically brought to the trial at the Court of Appeal. He felt ill and lost consciousness in the courtroom. Then, Shura Amiraslanova, Ibrahimov’s mother, who was in the courtroom, also got unwell. Giyas Ibrahimov remained collapsed for about an hour until the ambulance arrived. He was given medical assistance, and shortly afterwards Ibrahimov stopped his hunger strike.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The above case is a typical example of the right to freedom of expression violation. But this time the Azerbaijani authorities demonstrated “creativity” by charging Qiyas Ibrahimov for publishing prohibited information on the Internet or telecommunication network.

Thus, in the court ruling, there was provided the entire text of Qiyas Ibrahimov’s post, followed by the links to the Law of the Azerbaijan Republic “On Information, Computerization and Protection of Information” and the Code of Administrative Offences of the Azerbaijan Republic.

There is no evidence of Qiyas Ibrahimov’s guilt in the ruling. The Law Enforcement Authorities did not submit any expert opinion that would have evaluated the published post. The Court refers to the Article 13-2.3 of the Azerbaijan Republic Law “On Information, Computerization and Protection of Information”, where listed the examples of prohibited information, as:

• financing and propaganda of terrorism, methods and means of its implementation, organization and carrying out of events for the purpose of terrorism, as well as open calls to terrorism;
• propaganda of violence and religious extremism, open calls for national, racial or religious enmity, violent amendment of the constitutional state order, violation of territorial integrity, violent seizure and retention of power, and mass riots;
• state confidentiality;
• rules or procedures for the manufacturing of firearms, component parts, ammunition, or explosives;
• regulations for the manufacturing of narcotic, psychotropic substances and their precursors, places of their illegal acquisition, as well as locations and methods of cultivating plants containing narcotic substances;
• pornographic material, including those relating to child pornography;
• inciting the organization and participation in gambling and other illegal games;
• advertising suicide as a means for solving problems, advocating, justifying, and inciting suicide, describing methods of committing suicide, and organizing suicide by a group of people;
• movies, television and videos which specify the age requirement in accordance with the Law of the Azerbaijan Republic “On Child Protection from Harmful Information”, including animation movies, computer or other electronic games (except for those in the category of “universal”);
• offensive or defamatory, including those violating an individual’s right to personal privacy;
• false statements damaging to human life and health, property, mass disruption of public safety, vital facilities, financial, transportation, communications, industrial, energy infrastructure activities or statements that create a threat that could have potentially jeopardizing socially harmful consequences;
• information prohibited by the laws of the Azerbaijan Republic.

As can be seen, the Law contains a list of prohibited for publication information. In the Court ruling, there is no reference to any of the above-mentioned provisions, the court did not indicate what kind of prohibited information Qiyas Ibrahimov spread in his posting, what exactly violated his post, whose interests or rights were affected or violated. The ruling contains nothing but broad, formal sentences and superficial references to the law without a relevant interpretation.

The Right to Freedom of Expression is enshrined in both National and International laws. 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.

The International Juridical Norms also point to the Right to Liberty. 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.

This provision also contains limitations. Thus, the European Convention states (art. 10, para. 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.

First of all, it is necessary to conduct a test to determine whether there has been interference by the authorities in respect of the right to freedom of expression and whether this interference was legitimate (lawful). The answer to the first question in the present case is “yes, there was”. The answer to the second question can be provided by referring to the national and international legal norms. As mentioned above, the Court did not provide a direct answer to this question in its judgment, as it did not indicate any specific provision that was violated by Qiyas Ibrahimov and which became the reason for his long-term arrest.

If Qiyas Ibrahimov’s post failed to contain anything that violated the Law, it means that his arrest was not legitimate, therefore the Right to his Liberty was also violated. We will discuss it below.

An important aspect of the case is that Qiyas Ibrahimov’s posting did not contain any information but rather his assessments of the events that took place in the village of Soyudlu.

The judgment of the European Court of Human Rights (ECHR) in the case of De Haes et Gijsels v. Belgiumfrom February 24, 1997, it was written,

“The Court reiterates that a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof”. –  https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-58015%22]}

“As regards value-judgments this requirement is impossible of fulfilment and it infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (art. 10) of the Convention.” (Judgment of the European Court of Justice in Lingens v. Austria of July 8, 1986). – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22lingens%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57523%22]}

The arrest of Qiyas Ibrahimov has an intimidating nature for all those who are willing to publicly express their negative opinion on the events taking place in the country.

In this regard, the judgment of the European Court of Justice in the case of Barfod v. Denmark of February 22, 1989 said,

“In the present case proportionality implies that the pursuit of the aims mentioned in Article 10 para. 2 has to be weighed against the value of open discussion of topics of public concern (…). When striking a fair balance between these interests, the Court cannot overlook(…), the great importance of not discouraging members of the public, for fear of criminal or other sanctions, from voicing their opinions on issues of public concern.” – https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-57430%22]}

The European Court “recalls that the dominant position exercised by the State authorities requires it to show restraint when it comes to criminal prosecutions. The authorities of a democratic State must be tolerant towards criticism, even if it may be regarded as provocative or offensive” (judgment of the European Court of Justice in Ozgur Gundem v. Turkey of 16 March 2000). – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22Ozgur%20Gundem%20v.%20turkey%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58508%22]}

In the judgment in the case of Oberschlick v. Austria on 23 May 1991, the European Court recalled “that, subject to the requirements of Article 10 para. 2 of the Convention, freedom of expression covers not only ‘information’ or ‘ideas’ which are regarded as favorable or regarded as harmless or neutral, but also those which offend, shock or cause alarm”.

As you can see, it is not for the first time that the law enforcement and judicial bodies violated the Right to Freedom of Expression. This time it was in relation to Mr. Ibrahimov. The illegitimate arrest also violated the fundamental Right in any democratic society – the Right to Freedom guaranteed by Article 28 of the Constitution of Azerbaijan, as well as Article 5(1) of the European Convention on Human Rights.

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THE JUDGES KEEP ISSUING UNJUSTIFIED VERDICTS AGAINST ABBAS HUSEYNOV

Abbas Huseynov

Analysis of violation of law during Abbas Huseynov’s judicial proceedings

Baku City Nizami District Court

Case № 7(007)-184/2023

27 April 2023

Presiding judge: Nariman Mehdiyev

Defender: Mina Mahmudova

A Prosecutor of the Non-Criminal Prosecution Department at the General Prosecutor’s Office of the Azerbaijan Republic, Huseyn Rustamli

A representative of the Penitentiary Institution No. 1, Vasif Safarov

A detainee, whose transfer was requested by the Penitentiary Institution No. 1 management, Abbas Huseynov

 

Abbas Huseynov was arrested during the events in the Nardaran settlement outside Baku: the events took place on 26 November 2015. At that time, during the clash between the police and settlement residents seven people were killed, four were wounded, and dozens were arrested. The majority of those arrested were members of the opposition “Muslim Unity” Movement. Their Chairman, Tale Bagirzade, was detained in 2015 and sentenced to 20 years imprisonment in 2017. The others arrested were mostly sentenced to 10 to 15 years in jail. According to human rights activists, all of them are on the list of political prisoners.

Along with T.Bagirzade, it was arrested his close friend and fellow member of the “Muslim Unity” Movement, Abbas Huseynov, who was also sentenced to a 20-year-period of imprisonment. While in prison Huseynov suffered numerous incidents of ill-treatment and beatings.

In April 2023, the management of the Penitentiary Institution № 1 addressed to the court with a submission to transfer Abbas Huseynov to the closed-type Gobustan prison. The submission indicated that Abbas Huseynov had committed illegal actions against the order in the courts on several occasions. Also, the inmate was characterized as a person prone to riotous behavior. We recall that the trials in the case took place in 2017. The colony management requested the Court to place that inmate in the closed-type (known as a “roof”) Gobustan prison for a period of 3 years.

On 27 April 2023, the Baku City Nizami District Court issued a ruling: to satisfy the Penitentiary management Institution No. 1 submission and transfer Abbas Huseynov to the Gobustan closed-type prison for a 1-year-period.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. As indicated above, it was written in the submission that A.Huseynov committed illegal deeds in the Court of Serious Crimes and the Court of Appeal in the course of consideration of his case in 2017. Such behaviors were, for example, when A.Huseynov threw his shoes in the direction of a witness or wrote something on the glass wall inside the cage in the courtroom as an act of protest in the Serious Crimes and Appeals Courts. As we can see, there is not a single word in the submission that A.Huseynov should be transferred from the Penitentiary Institution № 1 to Gobustan prison for the actions committed inside the Penitentiary Institution № 1.

The document of the Internal Order in Detention Centers, Paragraph 8, approved by the Decree of the Cabinet of Ministers dated on 26 February 2014, there is a list of the inmates’ duties in places of detention.

The submission states that on 13 August 2017, A.Huseynov was placed in the penalty zone for 3 days since he physically assaulted an institution employee, while banging his head against the wall. However, it does not indicate the employee’s exact name and whether he or Abbas Huseynov suffered any injuries. There was neither any expert opinion on the matter. There was no any evidence submitted to the Court.

The submission also stated that on 4 October 2017, A.Huseynov held radical Shiite discussions among the prisoners, incited them to disobey the staff of the institution demands. As for this ground, there is no information about who these prisoners were, whether they provided any explanations, what kind of pressure A. Huseynov exerted on other inmates.

The institution’s submission also states that on 14 May 2020,  A.Huseynov was placed for 5 days in the penalty area for breaking a telephone set and other equipment, on 15 May 2020, he broke a lamp and tore a towel, on 21 May 2020, he was placed for 7 days in the penalty area for damaging things in the cell. It should be pointed out that no evidences of the above-mentioned actions were submitted to the Court, there were neither any photos of the broken items, nor any acts that should had been drawn up on that occasion.

As it is stated in the Plenum Decision on the Supreme Court of the Azerbaijan Republic, paragraph 12, from 8 October 2010, “On the court practice in regard to release on parole, commutation of the outstanding part of sentence to a milder one, modification of the type of institution to serve the sentence and release on illness”:

“Deliberate violation of the regime is determined by a well-grounded ruling of the prison management simultaneously with the application of penalties to the prisoner”.

Based on the Court’s ruling, it is clear that the judge did not investigate objectively the submission, and the trial was held in a formal manner.

In the course of the trial, the defence argued that A.Huseynov’s forced multiple changes of place detention infringed his right not to be subjected to torture, as provided by the Article 3 of the European Convention on Human Rights and Fundamental Freedoms. It is clearly indicated in the decisions that A.Huseynov was placed in the penalty area more than once, while he was not given an opportunity to appeal against those rulings. It should be underlined that in 2017, when Huseynov was transferred from the Baku Investigative Isolator to the Gobustan prison, he had been beaten by the prison staff and left crucified for hours outside in the cold.

On 26 October, 2000, the European Court of Human Rights judgment in the case of Kudla v. Poland states,

“In order for ill-treatment to constitute a violation of the Article 3, it must attain a minimum level of severity. The assessment of this minimum level is inherently relative: it depends on all the case circumstances such as the nature and context of the treatment, the way in which the treatment is performed and the methods used, its duration, its effect on the physical or mental well-being and, in some cases, the sex, age and medical condition of the victim concerned.” – –  https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22kudla%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58920%22]

As it is said in the Paragraph 1 of the European Prison Rules, all persons deprived of their liberty should be treated in a manner that observes their human rights.

According to the Article 3 of the European Prison Rules,

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

The Article 59 of the European Prison Rules states:

• Prisoners charged with disciplinary offences shall:
• be informed promptly, in a language which they understand and in detail,
• of the nature of the accusations against them;
• have adequate time and facilities for the preparation of their defence;
• be allowed to defend themselves in person or through legal assistance when
• the interests of justice so require;
• be allowed to request the attendance of witnesses and to examine them or
• to have them examined on their behalf;
• have the free assistance of an interpreter if they cannot understand or speak
• the language used at the hearing.

According to the Article 60 of the European Prison Rules,

 

• Any punishment imposed after conviction of a disciplinary offence shall be
• in accordance with national law;
• The severity of any punishment shall be proportionate to the offence;
• Collective punishments and corporal punishment, punishment by placing in a dark cell, and all other forms of inhuman or degrading punishment shall be prohibited;
• Punishment shall not include a total prohibition on family contact;
• Solitary confinement shall be imposed as a punishment only in exceptional cases and for a specified period of time, which shall be as short as possible;
• Instruments of restraint shall never be applied as a punishment.

At last, the Article 64 of the European Prison Rules states,

Prison staff shall not use force against prisoners except in self-defence or in

cases of attempted escape or active or passive physical resistance to a lawful order and always as a last resort.

It has been said above that coercive measures, such as crucifixion, had been used against A.Huseynov. In this regard, as it is stated in Paragraph 68 of the European Penitentiary Rules, the use of chains and shackles is strictly prohibited.

In view of the above, we can conclude that the biased attitude of the penitentiary institution management and further the Court one resulted in a violation of the prisoner Abbas Huseynov’s fundamental rights, norms of the European Convention on Human Rights and Fundamental Freedoms, precedents of the European Court of Human Rights, and the European Prison Rules, approved by the Committee of Ministers of the Council of Europe.

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THE COURT FOUND THE OPPOSITION ACTIVIST GUILTY AND SENTENCED HIM TO IMPRISONMENT

Zamin Salayev

Analysis of violation of law during Zamin Salayev’s judicial proceedings

Baku City Qaradag District Court

Case № 1(002)-181/2023

22 May 2023 

Presiding judge: Rufan Mursalov

Defendant: Zamin Salayev

Defender: Nemat Karimli, Fakhraddin Mehdiyev

The State Prosecutor: an advisor of justice Seymur Mahmudov, Prosecutor at the Department of Public Prosecution Support in the Courts of Baku City under the General Prosecutor’s Office of the Azerbaijan Republic

Zamin Salayev, the Chairman of the People’s Front Party Salyan branch, has repeatedly been brought to criminal and administrative charges for being active in the opposition party, his participation in various rallies, and for harshly criticizing the authorities on social networks.

 

Z.Salayev’s administrative arrests were mainly related to the Article 535.1 (Failure to obey the legitimate demands of a policeman) of the Administrative Code of the Azerbaijan Republic.

 

In 2020, the Salyan District Court sentenced Zamin Salayev to 2 years and 3 months of imprisonment having found him guilty of committing a crime under the Articles 147.2 (The slander, which is connected with accusation of committing serious or especially serious crime) and 148 (The Insult) of the Criminal Code of the Azerbaijan Republic. On 19 January 2022, Zamin Salayev was released in accordance with an Act of amnesty.

On 7 February 2023, Zamin Salayev was detained by the police on suspicion of committing a crime under the Article 221.3 (The hooliganism committed with application of a weapon or subjects, used as the weapon) of the Criminal Code of the Azerbaijan Republic. As written in the case file, Zamin Salayev inflicted with a knife physical injury to Natiq Suleymanov

In the course of the trial, Zamin Salayev testified that the charges brought against him had been fabricated. Besides, Zamin Salayev testified that on the evening of February 7, 2023, he had been in the outskirts of Baku, at Logbatan circle in order to return home to the Salyan district. Then suddenly a man was heading in his direction shouting obscene language. According to Zamin Salayev, the man abruptly pulled out a knife from his pocket. At that moment he realized that it was a provocation and pushed him away. When he tried to move away, many people gathered around him. He understood that the whole action was planned in advance in order to arrest him. Zamin Salayev considers his arrest as politically motivated.

The Ministry of Internal Affairs of Azerbaijan has spread the information that at night, on 7 February 2023, Zamin Salayev had been detained for inflicting physical injuries to Natiq Suleymanov. – https://www.xural.com/zamin-salayev-haqda-h%C9%99bs-q%C9%99rari-verildi/

On 8 February 2023, the Baku City Qaradag District Court issued a ruling: to satisfy the motion and request, and apply a preventive measure in the form of detention for a period of 3 months to Zamin Salayev

Immediately after his arrest, Zamin Salayev announced a hunger strike protesting against his arbitrary arrest that lasted 112 days. According to his lawyers, Zamin Salayev lost 47 kilos; his weight from 118 dropped to 71 kilos, there were wounds on his body, he had a fever of 33 degrees, his blood pressure was 60/40, and he had difficulties to move.

On 12 May 2023, the U.S. Embassy in Azerbaijan commented on the arrest of Zamin Salayev. An Embassy representative told the “Turan” News Agency:

The United States continues to call on Azerbaijani authorities to release all individuals unjustly or arbitrarily detained for exercising their human rights and fundamental freedoms. –

https://www.amerikaninsesi.org/a/7090232.html

On 2 May 2023, in the Baku City Qaradag District Court there was a preliminary hearing on the case of Zamin Salayev. When testifying at the trial, he could not stand on his feet and was allowed to talk while seated. The wounds on his body were demonstrated to all those at the trial.

At the trial, Mr. Salayev did not plead guilty to the charge brought against him and testified that the case had been premeditated against him, as he was a political activist and chairman of the Salyan branch of the People’s Front Party of Azerbaijan. Zamin Salayev also indicated that he had been with his friend, the lawyer Nemat Karimli, on the day of his arrest. Then, he called for a car in order to go to the Logbatan circle. The victim and witnesses in the case mentioned different time of the event. According to Zamin Salayev, everything happened at 22:30 on 7 February 2023. He was walking along the narrow sidewalk and the victim, Natiq Suleymanov, came down toward him. The latter deliberately stepped on his foot and then started swearing. Suleymanov was holding something shiny in his hands. Having realized that it was a provocation, Z.Salayev pushed N.Suleymanov aside. After that Salayev tried to run away but 10-15 policemen in civilian clothes turned up. They knocked Salayev to the ground and handcuffed him. The policemen took away his phone and bag. Then, he was placed in a Jeep and taken to the 10th police station. There, he was said that the man with whom he had the incident died. Z.Salayev explained that he had not committed a crime, that day he had been drinking wine with friends but he was not drunk and could control himself.

Natiq Suleymanov, who was recognized as a victim, reaffirmed his testimony provided during the investigation and testified that on 7 February 2023, at about 00.30, a man in a black jacket, burly, under alcoholic intoxication, approached him. An argument broke out between them, in the course of which the man pulled out a knife and headed towards him. Upon seeing many people around, the man threw the knife onto the ground. The police officers showed up and grabbed him.

Semral Hamidli and the police officer Emin Mamedov, who were questioned during the trial as witnesses, testified saying that the incident took place at 00:40 on 7 February 2023. They also testified that they saw a well-built man shouting profanities and beating N. Suleymanov. E.Mammadov insisted that there was a knife next to Suleymanov, and there were blood-like drops on the ground. He wanted to call the ambulance service 103, but Natiq Suleymanov said that he would not be able to wait. He got into an unidentified car and, according to him, drove off to the hospital.

The police officers, Afgan Aliyev and Etibar Eyvazov, who were also questioned as witnesses, provided similar testimonies. Bilal Mirzoyev, a witness summoned to the trial, did not appear in the courtroom. He confirmed the testimony provided during the investigation sent by telegram.

According to the conclusion of the forensic medical examination dated 6 March 2023, N. Suleymanov had injuries such as bruises under the eye in the form of hematoma, a cut of the third finger phalanx of his right hand, and two superficial sores on the left side of the abdomen. The bruises under the eye could have been caused as a result of a blow with a blunt object, and the incised wounds could have been caused with a sharp object (perhaps a knife). The date of the injuries matches 7 February 2023.

Based on the results of the forensic medical examination of 10 March 2023, the victim N. Suleymanov’s blood group and that of Z. Salayev, as well as the blood on the victim’s clothes are identical.

The results of forensic dactyloscopy dated 3 April 2023, indicated that the fingerprints found on the knife seized at the scene of the incident, as well as those of Z. Salayev, available in the database, are identical.

The alcohol intoxication examination of 7 February 2023, revealed that Z. Salayev had been slightly intoxicated.

 

The Court considered the recidivism of the committed crime as an aggravating circumstance, and the availability of Salayev’s young daughter as a mitigating one.

On 22 May 2023, in the Baku City Qaradag District Court issued a verdict against Zamin Salayev. He was found guilty on the charges and sentenced to 4 years imprisonment in a strict regime colony.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The Criminal Procedure Code of the Azerbaijan Republic establishes the principles of criminal proceedings. These principles apply from the very beginning to the end of criminal proceedings including trials.

The fundamental ones are legality, equality of all before the law, the Constitutional guarantee of civil Rights and Freedoms, respect of a person’s dignity and integrity, the Right to liberty, inviolability of private life, residence, property, the presumption of innocence, and other related rights.

The participants of the judicial process, including judges, are obliged to protect citizens and society as a whole from arbitrary arrests. Unfortunately, arbitrary arrests are rather the rule than the exception in Azerbaijan. Especially when it comes to political and public activists, journalists, human rights defenders, and simply active members of civil society. In these types of cases, the Courts openly depend on the executive authorities.

The examples of criminal cases monitored by the human rights defenders demonstrate all kinds of gross violations of substantive and procedural laws, the European Convention for the Protection of Human Rights and Fundamental Freedoms Norms, as well as the inconsistency of the judgments issued with the precedents of the European Court of Human Rights, that are mandatory.

The commented criminal case brought against a political activist, member of the opposition Popular Front Party of Azerbaijan, is no different from other “sensitive” cases.

Even if it is written in the Article 10.1 of the Criminal Procedure Code of the Azerbaijan Republic that the Courts and all participants of criminal proceedings must strictly observe the provisions of the Constitution of the Azerbaijan Republic, the Criminal Procedure Code of the Azerbaijan Republic and other legislations of the Azerbaijan Republic, as well as other international agreements involving the Azerbaijan Republic, in practice it does not comply.

In the case there are many nuances, issues that have not been examined and clarified by the Court. The gathered by the pre-trial investigation body evidences, on which the Court has relied in issuing a verdict, to say the least, are untrustworthy.

 

Thus, if we examine the witnesses’ identities called upon by the investigators, we’ll see that among them are mostly the police officers who have a direct interest in the case outcome. Their testimonies are literally indistinguishable from one another and copied from the indictment by the Court. Despite the fact that the police officers’ testimonies are not the only ones in this criminal case, however, they are crucial.

There is no indication of the position and arguments of the defence in the verdict, other than the defendant’s testimony considered to be of the “nature of defence” by the Court. It is indeed the phrase employed in all “sensitive” cases with political connotations.

Moreover, the authorities in charge of criminal proceedings are not allowed to grant anyone involved in criminal proceedings preferential treatment based on citizenship, social, sexual, racial, national, political or religious affiliation, language, origin, wealth or occupational status, beliefs, place of residence, location or other grounds not justified by the law. Discrimination is prohibited in any form.

The statement of the Ministry of Internal Affairs, which referred to the hooliganism committed by Z.Salayev, also confirms the political nature of this criminal case. As a rule, such statements are made by the Azerbaijani Ministry of Internal Affairs in connection to criminal cases initiated against the political activists. The purpose is to introduce the detainee as a criminal to the society prior to the court verdict, which grossly violates the presumption of innocence, enshrined in the Article 63 of the Azerbaijani Constitution, Article 21 of the Criminal Procedure Code of the Azerbaijan Republic and Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

In the judgment of the European Court of Human Rights in the case Allene de Ribemont v. France from 10 February 1995, it is written,

“Freedom of expression as guaranteed by the Article 10 of the Convention applies also to the freedom both to receive and distribute information. Consequently, the Article 6 para. 2 cannot prevent the authorities from informing the public about ongoing criminal investigations but it requires that the authorities exercise their discretion and sensitivity, as required with respect to the presumption of innocence.”

https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Allenet%20de%20Ribemont%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57914%22]}

Despite the fact that the results of the examination confirmed that there were the defendant’s fingerprints on the handle of the knife, it does not indicate the attribution of the knife to Salayev in particular. In this case, all the circumstances of the case should be clearly defined, i.e., by whom this or that act was committed.

As mentioned above, a prosecution witness, Semral Hamidli, testified that he had seen blood-like stains on the ground. It should be recalled here that the event took place at night when it is not easy to distinguish not only who is who but also to see drops of blood on the ground in the darkness. The Court did not establish at what distance from the participants in the event the witness was, what his eyesight was, or whether he could theoretically and practically see what had happened in order to provide such a clear statement. The partiality of the Court is also demonstrated by the fact that the testimonies of the prosecution witnesses were found to be irrefutable by the Court.

These serious violations, mentioned above, led to the fundamental right violation in relation to Zamin Salayev, the Right to Freedom guaranteed by the Article 28 of the Azerbaijani Constitution, Article 14 of the Code of Criminal Procedure of the Azerbaijan Republic as well as by the Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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FOR AN OPPOSITIONAL ACTIVIST IN AZERBAIJAN THERE IS NO ASSURANCE OF LIBERTY OR PERSONAL SECURITY

Zamin Salayev

Analysis of violation of law during Zamin Salayev’s judicial proceedings

Baku City Qaradag District Court

Case № 4(002)-26/2023

8 February 2023

Presiding judge: Teymur Qurbanov

Defendant: Zamin Salayev

Defender: Nemat Karimli

The plaintiff: Farid Seyfalov, an investigator of the Investigative Unit at the Qaradag District Police Department

The applicant: Zafar Ahmadov, the Prosecutor of the Qaradag District

A representative of the Qaradag District Prosecutor’s Office: Medina Pashayeva

Zamin Salayev, the Chairman of the People’s Front Party (PFPA) Salyan branch, has repeatedly been brought to criminal and administrative charges for being active in the opposition party, his participation in various rallies, and for harshly criticizing the authorities on social networks.

Z.Salayev’s administrative arrests were mainly related to the Article 535.1 (Failure to obey the legitimate demands of a policeman) of the Administrative Code of the Azerbaijan Republic. This Article is the most frequently applied to political and public activists in Azerbaijan.

In 2020, the Salyan District Court sentenced Zamin Salayev to 2 years and 3 months of imprisonment having found him guilty of committing a crime under the Articles 147.2 (The slander, which is connected with accusation of committing serious or especially serious crime) and 148 (The Insult) of the Criminal Code of the Azerbaijan Republic. On 19 January 2022, Zamin Salayev was released in accordance with an Act of amnesty.

On 7 February 2023, Zamin Salayev was detained by the police on suspicion of committing a crime under the Article 221.3 (The hooliganism committed with application of a weapon or subjects, used as the weapon) of the Criminal Code of the Azerbaijan Republic. As written in the case file, Zamin Salayev inflicted with a knife physical injury to Natiq Suleymanov.

In the course of the trial, Zamin Salayev testified that the charges brought against him had been fabricated. Besides, Zamin Salayev testified that on the evening of February 7, 2023, he had been in the outskirts of Baku, at Logbatan circle in order to return home to the Salyan district. Then suddenly a man was heading in his direction shouting obscene language. According to Zamin Salayev, the man abruptly pulled out a knife from his pocket. At that moment he realized that it was a provocation and pushed him away. When he tried to move away, many people gathered around him. He understood that the whole action was planned in advance in order to arrest him. Zamin Salayev considers his arrest as politically motivated.

The Ministry of Internal Affairs of Azerbaijan has spread the information that at night, on 7 February 2023, Zamin Salayev had been detained for inflicting physical injuries to Natiq Suleymanov. – https://www.xural.com/zamin-salayev-haqda-h%C9%99bs-q%C9%99rari-verildi/

The investigator and Prosecutor who appealed to the Court with a motion and request for arrest, asked the Court to issue an order for the arrest of Zamin Salayev for a period of 3 months on the evidence of the criminal case.

On 8 February 2023, the Baku City Qaradag District Court issued a ruling: to satisfy the motion and request, and apply a preventive measure in the form of detention for a period of 3 months to Zamin Salayev.

 

Immediately after his arrest, Zamin Salayev announced a hunger strike protesting against his arbitrary arrest that lasted 94 days. According to his lawyers, Zamin Salayev lost 47 kilos; his weight from 118 dropped to 71 kilos, there were wounds on his body, he had a fever of 33 degrees, his blood pressure was 60/40, and he had difficulties to move.

On 12 May 2023, the U.S. Embassy in Azerbaijan commented on the arrest of Zamin Salayev. An Embassy representative told the “Turan” News Agency:

The United States continues to call on Azerbaijani authorities to release all individuals unjustly or arbitrarily detained for exercising their human rights and fundamental freedoms. –

https://www.amerikaninsesi.org/a/7090232.html

On 2 May 2023, in the Baku City Qaradag District Court there was a preliminary hearing on the case of Zamin Salayev. When testifying at the trial, he could not stand on his feet and was allowed to talk while seated. The wounds on his body were demonstrated to all those at the trial. The hearing of the case is continuing.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The Article 155 of the Criminal Procedure Code of the Azerbaijan Republic specifies the grounds for application of such a preventive measure as arrest. They are as follows:

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

 

According to the Article 155.2 of the Code of Criminal Procedure of the Azerbaijan Republic, in resolving the question of the necessity for a restrictive measure and which of them to apply to the specific suspect or accused, the preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court shall bear in mind:

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

 

The following grounds for arrest are specified in the Court Order:

• social dangerousness of the committed act,
• previous convictions,
• unexpunged sentence,
• probability of influencing the participants of criminal proceedings,
• presumed punishment for a period of more than 2 years.

The Article 155.3 of the Code of Criminal Procedure of the Azerbaijan Republic states, that arrest, or restrictive measures as an alternative to it, may be applied only as follows:

• to a person charged with an offence punishable by deprivation of liberty for a period of more than two years;
• in order to prevent the acts provided for in Article 155.1.1. and 155.1.2., to a person charged with an offence punishable by deprivation of liberty for a period of less than two years.

Even though the Article refers to an eventual punishment, this Article of the Code of Criminal Procedure theoretically contradicts the Presumption of Innocence.

Yet, another fact can be regarded as a violation of the Presumption of Innocence.

As mentioned above, the Ministry of Internal Affairs released a statement that Zamin Salayev injured Natiq Suleymanov, deliberately introducing Zamin Salayev as a criminal to the public.

It should be noted that the presumption of innocence is stipulated by the Article 63 of the Azerbaijan Republic Constitution, as well as by the Article 21 of the Azerbaijan Republic Criminal Procedure Code and the Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The judgment of the European Court of Human Rights (ECHR) in the case of Barberà, Messegué and Jabardo v. Spain, of June 13, 1994, states,

“The Article 6(2) ” furthermore it requires that in exercising their functions the judges shall abandon the preconceived notion that a defendant has committed a criminal act as the burden of proof is upon the prosecution and any doubt shall be construed for the benefit of the defendant. In addition, it is incumbent upon the prosecution to indicate to the defendant in question what charge he is being subjected to in order to give him an opportunity to be prepared to defend himself, and to offer sufficient evidence to substantiate a plea of guilt” –

https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Barbera,%20Messegue%20et%20Jabardo%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57876%22]}

As it is written in the paragraph 3 of the Decision of the Plenum of the Supreme Court of the Azerbaijan Republic “On the Practice of the Courts Considering Applications for Precautionary Measures of Arrest and House Arrest” dated on 3 November 2009,

“According to the legislation, there must be substantive and procedural legal grounds in order to apply a measure of restraint in the form of arrest against an accused person. The substantive grounds refer to the evidence confirming the attributability of the committed act under the Criminal Code. The procedural grounds consist of the totality of the circumstances set forth in the Article 155 of the Code of Criminal Procedure”.

In Zamin Salayev’s case, there is neither substantive nor procedural grounds provided to the Court.

 

In the paragraph 1 of the Decision of the Plenum of the Supreme Court of the Azerbaijan Republic, it is stated,

 

“While considering the submissions related to the procedural compulsory measures against the defendants, the attention of the Courts should be drawn to the fulfillment of the Article 28 of the AR Constitution, Articles 5 and 6 of the European Convention on Human Rights and Fundamental Freedoms, the requirements of the Criminal Procedure Law, and the practice of the European Court of Human Rights in a timely and qualified manner”.

And yet, another no less significant issue covered in the Resolution of the AR Plenum of the Supreme Court is the issue of alternative measures of restraint. Thus, paragraph 4 says,

“To clarify to the Courts that while considering applications for a preventive measure in the form of arrest, they shall consider the option of other preventive measures provided in the Article 154 of the Azerbaijan Republic Criminal Code, and while satisfying the applications it shall be possible to justify the impossibility of choosing a preventive measure not related to the arrest”.

Whereas in the Court ruling regarding the arrest of Zamin Salayev there is no information on the consideration of alternative preventive measures by the Judge. Moreover, there are no grounds to justify the selected preventive measure in the judgment.

The Court violated the Norms of substantive and procedural laws and as a result Z. Salayev’s right to liberty and security guaranteed by the Article 28 of the Constitution of Azerbaijan Republic and the Article 5(1) of European Convention for the Protection of Human Rights and Fundamental Freedoms.

 

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BEING PUBLICLY CRITICAL ABOUT THE GOVERNMENT ON THE SOCIAL MEDIA HAS ALSO LED THE DETENTION

Elvin Mustafayev

Analysis of violation of law during Elvin Mustafayev’s judicial proceedings

Saatly City Court

Case № 3(055)-361/2023

17 March 2023

Presiding judge: Mirlatif Sadigov

The person against whom an administrative record was issued: Elvin Mustafayev

The administrative protocol was drawn up by Rovshan Huseynov

Defender: Vusal Abbasov

On 17 March 2023, Elvin Mustafayev, born in 1996, was charged with committing administrative offenses under the Articles 510 (Failure to obey the legitimate demands of a policeman) and 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic (hereinafter the Code).

According to the investigation, at about 4 p.m. on 17 March 2023, Elvin Mustafayev was using obscene language out loud in the Saatly City of Azerbaijan, and was maliciously disobeying the police lawful demands that called him to order.

It should be noted that Elvin Mustafayev was active on the social networks criticizing the political and public processes in the country. According to Elvin Mustafayev’s relatives he openly condemned the police for using brutal force against the residents of Saatly who held a rally on 13 March 2023. During the protest, the participants were beaten with truncheons and injured with rubber bullets. Two of the protesters were given medical treatment, after which they were released home, however the third one was seriously wounded and remained hospitalized. In this regard, Elvin Mustafayev was summoned to the Saatly District Police Department on 17 March 2023. Rovshan Huseynov, who drew up an administrative report against Elvin Mustafayev, was questioned during the trial and testified that he has been working as a district inspector. Further, his testimony corresponded to the protocol. – https://www.meydan.tv/az/article/saatlida-su-etirazindaki-zorakiliqlari-pisleyen-ictimai-feal-hebs-edildi/

 

In the course of the trial, Elvin Mustafayev did not plead guilty and testified that about 4 p.m. on 17 March 2023, while he had been talking over the phone, the police officers approached him and there was a small dispute between them. Elvin Mustafayev also testified that during his telephone conversation he had not used any foul language and obeyed the police demands.

Imran Agayev, a police officer, who was questioned as a witness at the trial, testified that at about 4 p.m. on 17 March 2023, while he had been on duty along with another colleague, Mirjalal Qiyasov, he saw a man shouting out uncensored obscene expressions. At that point, the police officers called him to order but the offender maliciously expressed his disobedience to their demands. For this reason, I. Agayev filed a report with the Saatly District Police Department, and as a result of which it was drawn up an administrative protocol for violation of the Articles 510 and 535.1 of the Code.

The Court did not find any aggravating or mitigating circumstances in Elvin Mustafayev’s case.

On 17 March 2023, the Saatly City Court issued a verdict: to convict Elvin Mustafayev for administrative offenses under the Articles 510 and 535.1 of the Administrative Offences Code of the Azerbaijan Republic and sentenced him to 25 days of administrative detention.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

In accordance with the Article 3.1 of the Code, only a person who has been found guilty of committing administrative offences under this Code and has committed a deed (action or non-action) that has all the other attributes of an administrative offence shall be brought to administrative responsibility and penalized.

In this case, we should define what exactly an administrative offense or misconduct is. Hence, an administrative offense (“misconduct”) is an illegal, wrongful act or omission that infringes on public order, citizens’ rights and freedoms, on the established system of governance, which is subject to administrative penalties.

– https://dic.academic.ru/dic.nsf/enc3p/48342

Based on the Article 5.1 of the Code, the individual and citizen’s rights and freedoms have the highest priority. All the State bodies, structures and officials that allowed the violation of such rights and freedoms are to be held liability.

In the given case the Court should have ascertained the following facts:

• a perpetrator of an administrative misdemeanor;
• вculpability of the person in committing an administrative offence;
• the circumstances aggravating and mitigating an administrative responsibility;
• the nature and extent of the damage caused by an administrative offence;
• the circumstances precluding proceedings related to administrative offences;
• other circumstances relevant to the accurate determination of the case, as well as the causes and conditions that led to the commission of an administrative offence (the Article 75 of the Code).

According to the police officers, Elvin Mustafayev was detained for using obscene language and malicious disobedience to their legitimate demands. However, in the case, there is not a single witness complaining about the violation of public order by Elvin Mustafayev.

At this point, let us turn to one of the Articles under which Elvin Mustafayev was convicted, it is the Article 510 of the Code. Thus, according to that Article, hooliganism is actions that violate public order but are not accompanied by the application or threat of violence against individuals, or destruction/damage of other people’s property. In its turn, the public order is a system of rules accepted in society, the attitude between people, established by the law, as well as the customs, traditions and ethical norms. –

https://ukodeksrf.ru/ch-2/rzd-9/gl-24/st-213-uk-rf

There was no evidence in the case that directly indicated that an offence had been committed. As a proof, the Court accepted the submitted administrative report, the police testimony, and E. Mustafayev’s testimony.

According to the Article 76.1 of the Code, it is recognized as proofs of administrative offence proceedings any factual information, on the basis of which the judge, authorized body (official) determines the presence or absence of misconduct, culpability of the person who committed an administrative offence, and other relevant circumstances relevant to the appropriate adjudication of the case. This data is ascertained according to the material clues, testimony of an individual, in respect of whom the proceedings have been conducted on administrative offence, victim’s and witnesses’ testimonies, other documents, testimony of special technical means, expert’s opinion, the protocol on administrative offence, and other protocols defined in this Code.

A Judge, an authorized body (official) examining a case of administrative misconduct assesses the evidence based on their internal belief, which is based on a complete, comprehensive and objective consideration of all case circumstances in their totality (the Article 84 of the Code).

It should be also recalled that the Courts operate in a typical way in such cases, i.e. they issue rulings on arrests without even considering or applying alternative measures of punishment (such as fines, community service, and so on). Moreover, the rulings are literally copied-pasted from the other administrative reports (in some cases, the same grammatical lapses are made), thus, the Courts show their dependence on the Executive authorities.

Otherwise, what else could we say about the fact that the Court acknowledged the police officers’ testimony and the report they drew up as absolute and irrefutable evidences, but failed to accept and consider the detainee’s testimony?

As stated above, at the trial, Elvin Mustafayev testified that he had been talking on the phone when the police officers approached him. It would not be difficult to check, at what time interval the phone conversation had taken place, what its content was, whether Elvin Mustafayev had used obscene language, and if he had, how loud it was and who could be disturbed at that moment. Furthermore, if we take into account the fact that Elvin Mustafayev did use abusive language, then, as the case law of the European Court of Human Rights (ECHR) states, an abusive language is one of the forms of self-expression. If it is so, then the police officers’ interference into the right to freedom of expression had no legal basis. Consequently, the police officers’ demands were not legitimate either.

Another important point is that the Court imposed the most severe administrative punishment, a 25-day detention. The Court was to consider an alternative penalty, as both Articles of the Code provide an alternative punishment in the form of a fine.

Thus, the unlawful and unjustified administrative detention has violated Elvin Mustafayev’s Right to Freedom and Security of the Individual, as guaranteed by the Article 28 of the Azerbaijani Constitution, as well as the Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Also, as a member of the Council of Europe, Azerbaijan is under an obligation to comply with the Judgments of the European Court of Human Rights (ECHR) as well as take into account its practice.

 

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THERE IS NO FREEDOM OF ASSEMBLY IN AZERBAIJAN, AS DEMONSTRATED BY A COURT RULING

Samir Sultanov

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

Baku City Yasamal District Court

Case № 3 (004)-1025/2023

21 February 2023

Presiding judge: Rashad Javadzade

The person against whom an administrative record was issued: Samir Sultanov

Defender: Zubeida Sadigova

On 20 February 2023, Samir Sultanov, a 23-year-old member of the “Democracy 1918” Movement (“D-18”) was detained by the police outside the administrative building of the Baku Court of Appeal. That day a court hearing was held on the case of Bakhtiyar Hajiyev, arrested in December 2022 and being on hunger strike (which lasted for more than 50 days). The representatives of opposition organizations, human rights defenders and journalists were waiting for the court’s decision.

At the end of the trial, the attendees began shouting out slogans protesting against the unlawful court ruling. The police detained the activists: Nemat Abbasov, Narmin Shahmarzade and Ali Malikov, later they were released, as well as Afiaddin Mammadov, Samir Sultanov’s fellow organization member, who was arrested the same day and sentenced to 30 days of administrative detention.

Samir Sultanov had been shouting and making noise outside the courthouse, thereby violating the public order as it was stated in the administrative report. The police officers urged him to order, but he did not obey their legal demands, thereby violating the Articles 510 (Failure to obey the legitimate demands of a policeman) and 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic.

Samir Sultanov, interrogated in the course of the trial, did not plead guilty to the charges and testified that he either had not made noise or violated the public order, but had used his constitutional right to freedom of assembly as a citizen and protested against the unlawful court ruling.

Nurlan Hajiyev, the 27th Police Department of the Baku Yasamal District inspector, who was questioned by the Court, testified that it had been him who had drawn up the administrative report concerning S. Sultanov.

Zubeida Sadigova, the defender of Samir Sultanov, said at the trial that on 20 February 2023, the Court dealt with the issue of house arrest of the public activist Bakhtiyar Hajiyev. Samir Sultanov is also a social activist. There were about 30-40 activists standing outside the courthouse that day. The young people, exercising the right to freedom of assembly, shouted out the slogans “Freedom to Bakhtiyar” and “Let Bakhtiyar go”. They did not either insult or disturb anyone, or violate public order.

Interrogated as a witness at the trial, Isa Qurbanaliev, an officer of the post-patrol service of the Baku Yasamal District Police Department, testified that on 20 February 2023, on the territory of Yasamal District there were several people loudly shouting and expressing disobedience to the police, when the officers demanded to respect the public order.

On 21 February 2023, the Baku Yasamal District Court convicted Samir Sultanov on administrative offence under the Articles 510 and 535.1 of the Administrative Offences Code of the Azerbaijan Republic and sentenced him to 30 days of administrative detention.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The court’s one-sided attitude is expressed in the fact that in making the ruling they took into account only the police officers’ testimonies, the very same officers who had detained Samir Sultanov. There is no any other evidence in the case besides these testimonies, reports and the administrative report. It should be noted that there were other activists alongside Samir Sultanov on the day of his detention, the activists who could confirm the absence of any Samir’s wrongdoing.

The defence stated that Samir Sultanov and other activists used their constitutional right to freedom of assembly and protested against the unlawful judicial ruling while demanding freedom for Bakhtiyar Hajiyev.

It should be pointed out that the Right to Freedom of Assembly is enshrined in the Article 49 of the Azerbaijan Republic Constitution, where states:

 

1. Everyone has the right for meetings.

This right is enshrined both in the norms of National law and in international treaties. For example, the Article 11 of the European Convention on Human Rights states:

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

First of all, we should determine whether the police intervention was lawful. The activists’ short-term action was peaceful, non-violent in nature. It means that the protesters’ behavior did not annoy or offend others. It could even temporarily hinder, impede or interfere with the actions of the third parties.

 

There is a so-called presumption in favor of freedom of assembly.

“Since the Right to Freedom of Peaceful Assembly is a fundamental right, it should, insofar as possible, be exercised without any regulation. Whatever is not clearly prohibited by the law should be considered as permitted, and those wishing to assemble should not be required to obtain authorization in order to hold an assembly. There should be a clear and unambiguous legal presumption in favor of the freedom of assembly… The assemblies are held to express the general opinion of their participants and to convey certain ideas and messages to the public. Imposing restrictions on the visual or audible content of their messages should be considerably hampered, and they should be applied only under imminent threat of violence.” (Guidelines on Freedom of Assembly. Edition 2, OSCE, Warsaw-Strasbourg, 2010).

The Court in its ruling refers to the Law “On the Police”, in which one of the police functions is the public order protection. In this case, it should be emphasized that the police officers failed to fulfill their legal obligations, as they should have ensured the participants’ safety, rather than create noise, commotion, and unlawful detention of peaceful demonstrators. The law-enforcement bodies should also protect the peaceful participants from any person or group of people (including provocateurs and anti-assembly participants) who attempt to disrupt or obstruct the gathering by any means.

“Freedom of peaceful assemblies is recognized as one of the pillars of a real democracy. Encouraging participation in peaceful assemblies ensures all members of a society to express their viewpoints that they share with others” (Guidelines on Freedom of Assembly. 2nd edition, OSCE, Warsaw-Strasbourg, 2010).

Legality means that any restrictions must be based on the law and must comply with the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as other international human rights treaties. The domestic law must comply with the international legal norms.

The European Court of Human Rights (ECHR) has found a violation of Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in a large number of precedents in cases against Azerbaijan.

However, the legislation in this area in Azerbaijan is yet failing to meet the International Conventions and Standards.

Given the violation of the Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the violation of the Article 5(1)(c) of the European Convention, which stipulates the right to liberty and security of person, seems also “natural”:

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

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

The right to freedom is enshrined in the Article 28 of the Constitution of Azerbaijan Republic, where states:

• Everyone has the right for freedom.
• Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.
• Everyone legally being on the territory of the Azerbaijan Republic may travel without restrictions, choose the place of residence and travel abroad.
• Any citizen of the Azerbaijan Republic has the right to return to his/her country whenever he/she so desires.

The arrest of Samir Sultanov and his “D-18” colleague Afiaddin Mammadov lacked a legitimate and lawful basis, as their actions did not constitute any administrative offence. Consequently, the police officers’ demands and their interference cannot be considered to be legitimate. Moreover, such an interference had not been in the nature of the public order protection, as the order was not violated with the spontaneous peaceful action. On the contrary, the interference violated the Rights enshrined in the National and International laws, the detainees’ Right to Liberty, the Right to Freedom of Assembly, as well as their Right to Freedom of Expression.

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EVERY YEAR AFIADDIN MAMMADOV IS DEPRIVED OF HIS LIBERTY FOR 30 DAYS

Afiaddin Mammadov

Analysis of violation of law during Afiaddin Mammadov’s judicial proceedings

Baku City Yasamal District Court

Case №3(004)-1024/2023

21 February 2023 

Presiding judge: Huseyn Safarov

The person against whom an administrative record was issued: Afiaddin Mammadov

Defenders: Zubeyda Sadiqova

 

On 20 February 2023, the Baku Court of Appeal was hearing the case of Bakhtiyar Hajiyev, an arrested public activist. That day the members of opposition parties and organizations, journalists and public representatives gathered near the administrative courthouse. Afiaddin Mammadov, a member of the opposition Movement “Democracy 1918” (“D18”), was also outside the courthouse awaiting a verdict. At the end of the trial, young people, including Mammadov and his colleague from “D-18” Samir Sultanov, started shouting out against the unlawful decision of the court. At the end of the trial, young people, including Mammadov and his colleague from “D-18” Samir Sultanov, started shouting out the protest slogans against an illegal court ruling. Both were detained by the police. The following activists, Ali Malikov, Narmin Shahmarzade, and Nemat Abbasov had also been detained but they were event released. Yet, the administrative protocols were drawn up against A. Mamedov and S. Sultanov.

Afiaddin Mammadov was charged with administrative offence under the Articles 510 (Failure to obey the legitimate demands of a policeman) and 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic.

It should be pointed out that Afiaddin Mammadov had been previously brought to the administrative charge. Thus, on 12 November 2022, the Baku Khatai District Court issued a ruling against Mamedov on the basis of which he was found guilty of committing an administrative offense under the same Article 535.1 of the Administrative Offences Code of the Azerbaijan Republic and sentenced to 30 days of administrative detention. See: https://www.ipd-az.org/ru/freedom-of-speech-and-thought-is-also-punishable-in-azerbaijan/

According to A. Mammadov, during his detention he was subjected to mistreatment by the police. – https://www.azadliq.org/a/d18-afiyeddin-memmedov/32145580.html

According to the police report dated 20 February 2023, A. Mammadov, being near the Baku Court of Appeal, was loudly yelling thereby disturbing the people around him. The police officers urged him to be quiet but he did not obey them. Then, A. Mammadov was detained and brought to the 27th Police Department of the Baku Yasamal district. As it was also stated in the report, he continued his illegal actions and used insulting language addressed to the police officers even on the way as well as at the police station.

Afiaddin Mammadov, interrogated during the trial, pleaded not guilty to the charges and testified that outside the Baku Court of Appeal, he protested and shouted slogans against the illegal court ruling along with his friends, thus exercising his right to freedom of assembly. The police intervened, detained him by force and took him to the police station. He also testified that he either did not insult anyone or did not commit any illegal actions.

Isa Qurbanaliev, an officer of the Post Patrol Service of the Baku Yasamal District Police Station, questioned as a witness at the trial testified in a similar manner to the administrative protocol.

Kenan Mammadov, a district inspector of the Baku Yasamal District Police 27th Station, who drew up an administrative protocol, said that on 20 February 2023, Afiaddin Mamedov together with Samir Sultanov shouted loudly near the Courthouse, thereby they disturbed people around and violated the public order. He also testified that A. Mammadov and S. Sultanov behaved aggressively, used foul language and showed disobedience to the legitimate police officers’ demands. Therefore, they were brought to the police station.

On 21 February 2023, the Baku City Yasamal District Court issued a verdict: to convict Afiaddin Mammadov for administrative offenses under the Articles 510 and 535.1 of the Administrative Offences Code of the Azerbaijan Republic and sentenced him to 30 days of administrative detention.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

In the Court ruling, it is stated that Afiaddin Mammadov was detained near the Baku Court of Appeal building, he was shouting slogans alongside with other like-minded people. A.Mammadov was charged under the Article 510 ( hooliganism) of the Administrative Offences Code of the Azerbaijan Republic.

The subjective side of hooliganism is characterized as guilt in the form of direct intent and special motives. The hooligan motive is manifested through the desire of the guilty person to oppose himself to others, demonstrate a disdainful attitude towards them. The perpetrator should realize that he grossly violates the public order and demonstrates a clear disrespect to the society. An important role is assigned to the motive of the offense, hooligan impulses. Without such motives, the actions that violate public order do not constitute hooliganism as a crime.

Afiaddin Mammadov’s motive was to protest against the unlawful judicial ruling. It is also confirmed by the fact that his like-minded supporters standing next to him also expressed their protest and demanded the release of the detainee. Neither A. Mamedov, nor others had a motive to violate public order, they had no hooligan motives. Furthermore, there is not a single witness in the case (other than the police officers directly involved in the case) or any victim who would confirm or complain about Afiaddin Mammadov’s unlawful actions. Yelling slogans that do not call upon the violence, war, and so on are not unlawful offenses. Consequently, the police officers’ appeals to stop these actions are not lawful. Therefore, A. Mamedov’s actions do not constitute administrative offences defined by the Articles 510 and 535.1 of the Administrative Offences Code of the Azerbaijan Republic.

The qualification of the activists’ lawful practices as an administrative offense has cost them their freedom. The Right to Freedom is guaranteed by the Constitution of Azerbaijan Republic. According to the Article 28 of the Constitution of the Republic of Azerbaijan,

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

The Article 5 of the Administrative Offences Code of the Azerbaijan Republic states:

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

5.2. This Code provides prevention by the state authorities (officials) violation of rights and freedoms of human and citizen and respect for these rights and freedoms.

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

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

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

In the judgment of the European Court of Human Rights (ECHR) in the case of Fox, Campbell and Hartley v. the United Kingdom of 27 March 1991, it stated,

“Reasonableness” of the suspicion upon which the detention must be based is an essential element of the protection afforded by the Article 5 para. 1 (c) against arbitrary deprivation of liberty. (…) The existence of a reasonable suspicion presupposes the existence of facts or information which could convince an objective observer to believe that a person could have committed the offence. What may be considered reasonable depends, however, on the combination of circumstances”. https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22fox%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57722%22]}

Besides the violation of the right to liberty, there was an unjustified interference in the right to freedom of expression committed by the police. As mentioned above, the activists held a spontaneous demonstration following the ruling near the courthouse. The slogans did not violate the law or urge for violence or war. They were related to the demand to release the detainee.

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

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

According to the Article 10 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms,

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.

“According to the Court’s well-known established jurisprudence, freedom of expression constitutes one of the supporting pillars of a democratic society, a fundamental condition for its progress and self-fulfillment of each of its members. 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. Hence, exceptions to its exercise call for a restrictive interpretation, and any interference must be ascertained in a convincing manner” (Precedents of the European Court of Human Rights, Michele de Salvia, St. Petersburg, 2004).

The ruling of the European Court (ECHR) in the case of Ozgur Gundem v. Turkey dated on 16 March 2000, stated,

“The Court recalls the importance of freedom of expression, as a precondition for the well functioning of democracy. The real and effective exercise of this freedom depends not only on the duty of the State to refrain from all interference but may require positive measures of protection, even in the interpersonal relations of individuals. In order to determine whether there is a positive undertaking, one must consider; the principle at the core of the entire Convention, the fair balance to be struck between the common interest and the individual’s. The scope of this obligation inevitably varies according to the diversity of situations in the Contracting States, the difficulties encountered by the police in carrying out their functions in modern society, and the choices to be made in regard to priorities and means. This obligation must no longer be interpreted in a manner that would impose an unbearable and excessive burden upon the authorities.” –

https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22ozgur%20gundem%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58508%22]}

The Court’s biased attitude to Afiaddin Mammadov was demonstrated by the fact that the Court did not take into account the lack of sufficient evidence of his guilt; as usual, the Court only referred to the police officer’s testimony who actually drew up the report. Apart from these testimonies, the Court had no other evidence of A.Mammadov’s guilt. The Court ruling also states that the Court referred only to the administrative report, the report and A.Mammadov’s testimony in the case. But despite that, the Court accepted only the police officers’ testimonies and their documents. One-sided, biased consideration of the case! And as a result the Court deprived Afiaddin Mammadov of the Right to Freedom and Freedom of Expression.

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YET, ANOTHER POLITICAL ACTIVIST IS DEPORTED FROM GERMANY AND CONVICTED

Malik Rzayev

Analysis of violation of law during Malik Rzayev’s judicial proceedings

Sumgayit City Court on Serious Crimes

Case № 1(124)-292/2022

28 September 2022

Presiding judge: Hafiz Aliyev

Judges: Fikrat Aliyev, Fahmin Humbatov

Defendant: Malik Rzayev

Defender: Nemat Karimli

The State Prosecutor: Orhan Rustamov, a Junior Counselor of Justice, Prosecutor of Support of Public Prosecution Department at the Serious Crimes Courts within the General Prosecutor’s Office of the Azerbaijan Republic

In 2014, Malik Rzayev left Azerbaijan to Germany due to his political views. After having moved to Germany, Rzayev continued sharply criticizing the actions of Azerbaijani officials and leadership, participating in rallies against the Azerbaijani authorities, and publishing his critical articles on the social media. However, despite all that, he was not granted a residency permit in Germany.

At the end of July 2021, Malik Rzayev was deported to Azerbaijan in accordance with a readmission agreement concluded between Germany and Azerbaijan.

On 25 October 2021, at around 10 a.m., he was detained by the police and brought to the 2nd station of the Sumgayit City Police Department.

Malik Rzayev was detained on charges related to a crime under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic.

On 24 October 2021, the Sumgayit City Court issued, in respect of M. Rzayev, an order in the form of detention for a period of 4 months.

Interrogated at the court, Malik Rzayev did not plead guilty to the charges and testified that on 25 October 2021, in the morning, he went out to the nearest store to upload money to his gas card and notices a white Prado car next to the store. When he was coming out of the store, several police officers approached and forced him into a police car. He was then brought to the 2nd station of the Sumgayit City Police Department.

At the station, he was beaten by about 7-8 policemen, one of whom put a plastic bag in his pocket. Then Malik Rzayev was taken to the Police Department Deputy Head office, Tural Huseynov. There, he was again subjected to beatings. Some time later he was forced to admit to what the police officers demanded. He was required to say that he had bought the drugs for 150 manats from a certain Rauf, and to sign the relevant documents. His “confessions” were recorded on a video camera. M.Rzayev once again emphasized that he had only “confessed” because of being severely beaten. He also testified that he had never consumed drugs and had no connection whatsoever.

On 11 November 2021, Malik Rzayev’s lawyer told the press that his client had been subjected to beatings, forced to do the leg-split, and threatened with rape using an object. In addition, the lawyer said that he could not meet with his client until 10 November 2021. At the same time, M.Rzayev was twice illegally transferred from the pre-trial detention facility to the temporary detention center of the Sumgayit City Police Department, of which he, as a lawyer, was not informed. The lawyer filed a complaint to the Prosecutor’s Office of the city of Sumgayit in connection with his client’s mistreatment. See:

https://www.amerikaninsesi.org/a/i%CC%87ctimai-f%C9%99al-i%C5%9Fg%C9%99nc%C9%99y%C9%99-m%C9%99ruz-qal%C4%B1d%C4%B1%C4%9F%C4%B1n%C4%B1-bildirib-r%C9%99smi-qurum-t%C9%99kzib-edib-/6309264.html

Questioned as a witness at the trial, the detective officer of the 2nd Station of the Sumgayit City Police Department, Major Ismail Ismayilov, testified he got information on 25 October 2021, concerning someone named Malik who was illegally keeping, selling and consuming drugs in the city of Sumgayit. That man was detained near the store at around 10:50 a.m. on 25 October 2021. Subsequently, he was requested to surrender the illegal items out of his pockets. M. Rzayev pulled out rolls of drugs from his jacket pocket. I. Ismayilov also testified that Rzayev was not subjected to any kind of pressure. In the course of the trial, there were also questioned the following witnesses: a Junior Inspector of the Criminal Investigation Unit within the Sumgayit City Police Department, First Lieutenant Elnur Mamedov; Eldaniz Mehdiyev, a Senior Operative Officer of the Criminal Investigation Unit and Shahbaz Shahbazov, the Deputy Head of the 3rd Station of the Sumgayit City Police Department, all of them provided the testimonies similar to Ismayil Ismayilov’s ones.

Also, at the trial, it was questioned the Senior Interrogator of the 2nd Station, a Major Matlab Abbasov, who testified that those activities had been carried out by the 2nd Station and Criminal Investigation Unit of the Sumgayit City Police Department. He also testified that a lawyer and a forensic expert had been invited to the station. The search was carried out with their participation and the following drugs, methamphetamine, heroin and methadone had been found in M.Rzayev’s possession.

According to the forensic narcological examination report from 18 December 2021, M.Rzayev had no signs of drug addiction, therefore there was no need in his compulsory treatment.

In accordance with the criminal case materials, Malik Rzayev’s son, Mikayil Rzazade, was born in 2015.

Based on the Sumgayit City Prosecutor’s Office resolution from 25 February 2022, it was conducted an investigation on the cruel treatment of M.Rzayev, but due to the absence of criminal elements in the police actions, it was not initiated a criminal case.

The Court considered Malik Rzayev’s testimony at the trial as having the nature of a defense in order to avoid the punishment. The Court assessed M.Rzayev’s testimony given in the course of preliminary investigation as a true one. As a mitigating circumstance, the Court recognized the fact that M.Rzayev has one minor child and a good characteristic from his place of residence.

On the 8th page of the Court verdict there is a sentence:

“In accordance with the Article 61 of the Criminal Code of the Azerbaijan Republic there are no circumstances aggravating the guilt of the accused Salamov Bahruz Bahram oglu (!)”. (The name of the accused is given incorrectly).

On 28 September 2022, the Sumgayit City Grave Crimes Court issued a verdict against Malik Rzayev: he was found guilty of committing a crime under the Article 234.4.3 of the Criminal Code of Azerbaijan Republic and sentenced to 7-year- imprisonment in the penal colony of general regime.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

According to the defendant, in the course of investigation the police officers coerced him to provide the testimony they wanted. The supportive argument is the contradiction between the testimony during the investigation and at the trial. As stated above, the Court considered the testimony provided at the trial to be of a defensive nature and for the purpose of avoiding further punishment, whereas the testimony at the investigation had been accepted as truthful. The Court did not examine the reason of such a contradiction between his testimony at the trial and that one at the investigation.

Thus, the biased attitude of the Court, and blind confidence to the investigation bodies led to a violation of the Article 66 of the Azerbaijani Constitution. In accordance with the Constitution of Azerbaijan, Article 66, no one shall be forced to testify against himself/herself, his/her spouse, children, parents, brother or sister.

Besides, the same principle is enshrined in the Article 20.2 of the Criminal Procedure Code of the Azerbaijan Republic. In this Article states,

During the investigation or court hearing, a person asked to give information which may incriminate him and his close relatives in respect of an offence shall have the right to refuse to incriminate them without fear of negative legal consequences for himself.

In this case, everything happened to be turned out the other way around. The testimony that M. Rzayev was forced to make became the main piece of evidence for his “guilt” and was manipulated into a conviction with a rather long sentence.

Apart from the above Constitutional provisions, there is also the Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Although the text of the Article does not explicitly refer to the so-called “right to remain silent”.

In the judgment of the European Court of Human Rights (ECHR) in the case of John Murray v. the United Kingdom of February, 8, 1996 it is stated:

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

https://www.legal-tools.org/doc/bd8dfc/pdf

The judgment of the ECHR in the case of Saunders v. the United Kingdom dated 17 December, 1996, noted,

“The Court recalls that although the right to silence and right not to be self-incriminating are not specifically mentioned in the Convention text (Article 6), these two Rights are nonetheless internationally recognized standard-setting rules that form the core of the fair trial concept of the Article 6.

Their justification is, inter alia, rooted in the protection of the accused against unlawful coercion by the authorities, thereby helping to avoid judicial errors and achieve the objectives set out in the Article 6 (…). In particular, the right not to self-incriminate contributes to ensuring that the prosecution side has an obligation to prove the guilt of the accused without having to rely on evidence obtained against the defendant’s will, by means of coercion or pressure. In this respect, the right is strongly linked to the presumption of innocence enshrined in the Article 6 § 2 of the Convention. –

https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Saunders%20v.%20the%20United%20Kingdom%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58009%22]}

Another important point in this case is the factual basis, which consists of contradictory testimony of the defendant during the investigation and in the court, the witnesses’ testimonies, e.g. the law enforcement officers involved directly in the process, and the experts’ conclusions. As mentioned above, the Court did not detect (or did not want to detect) the cause of the defendant’s contradictory testimonies. The police officers’ testimonies can be treated with skepticism, since all of them are employees of the Ministry of Internal Affairs. The results of the forensic examination merely indicated the drug’s chemical composition, the defendant’s psychological state, and the absence of his drug addiction.

All this means that the evidence is more circumstantial than factual. Moreover, there is great doubt as to whether the drugs belonged to the defendant.

According to the Article 138.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

Proof shall consist in the obtention, verification and assessment of evidence in

order to establish facts of importance for the lawful, thorough and equitable determination of the criminal charge.

The Article 145 of the Code of Criminal Procedure of the Azerbaijan Republic states,

• All evidence shall be assessed as to its relevance, credibility and reliability. The content of all evidence collected for the purposes of prosecution shall be assessed in terms of whether it is sufficient to substantiate the charge.
• The preliminary investigator, investigator, prosecutor, judge and jury shall assess the evidence according to their personal conviction on the basis of a thorough, full and objective examination of its content, guided by the law and their conscience.
• If suspicions which emerge during the process of proving the charge cannot be removed by other evidence, they shall be interpreted in favour of the suspect or accused.

Unfortunately, as we can perceive, the doubts have not been interpreted in favor of the defendant but on the contrary against him.

And the most important point: the sufficiency of evidence. The Article 146.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

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

All the evidence in the case was not sufficient for a solid final judgment. An outside observer is left with lots of questions concerning the case, on which the court did not provide any answers in its verdict.

It should be underlined that all political and public activists deported from Germany, were arrested upon their arrival to Azerbaijan, all of them faced the same accusations. All of them (except Samir Ashurov) were charged under the CC Article 234.4.3. The sentences of all the arrested are very similar in both technical and substantive terms, as if they were written off from one another. This is confirmed by the fact mentioned above on the page 8 of the verdict that contains the following sentence:

“In accordance with the Article 61 of the Criminal Code of the Azerbaijan Republic there are no circumstances aggravating the guilt of the accused Salamov Bahruz Bahram oglu (!)”. (The name of the accused is given incorrectly).

Writing off this statement from another verdict, the court did not even bother to change the name to the correct one, keeping the name of another accused. Even though we may speak about a technical error but it is said us a lot, namely, the Court doesn’t care to treat each case individually instead they used the same method and sentences and in the best case scenario change only the defendant’s initials.

In this case, the main violation of the Law Norms is a violation of the right to prohibit tortures.

The Article 15.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that during the criminal prosecution the following shall be prohibited:

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

The Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms strictly prohibits torture, degrading and inhuman treatment. It should be noted that this Article does not contain any exceptions. It is always activated, as on time of the fight against the mafia and terrorism, as during the armed conflicts.

Unfortunately, it is not a secret to anyone that Azerbaijani are subjected to degrading and inhuman treatment used by the law enforcement authorities. Those facts have been proved in numerous judgments of the ECHR against Azerbaijan as well as in many reports provided by the local and international human rights organizations on the human rights situation in the country.

The Court partial attitude towards Malik Rzayev, the issuance of a guilty verdict with

A 7-year-imprisonment punishment without sufficient proven evidence, the failure to eliminate contradictions in the case, the doubts interpretation in against the accused, all the above violated his right to Freedom enshrined in the Article 28 of the Azerbaijani Constitution, as well as in the Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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BEING DEPORTED FROM GERMANY THEY ARE ALMOST IMMEDIATELY JAILED IN AZERBAIJAN

Jafar Mirzoyev

Analysis of violation of law during Jafar Mirzoyev’s judicial proceedings

Baku City Court on Serious Crimes

Case №1(101)-135/2023

16 January 2023 

Presiding judge: Javid Huseynov

Judges: Eldar Ismayilov, Samir Aliyev

Defendant: Jafar Mirzoyev

Defender: Nemat Karimli

The State Prosecutors: the prosecutors of the Public Prosecution Department within the Baku Court of Serious Crimes at the Prosecutor General’s Office of the Azerbaijan Republic, and the Legal Advisors, Fuad Musayev and Orkhan Mehdiyev, as well Vusal Mehraliyev, a Juris Doctor.

Jafar Mirzoyev, born in 1985, had been living in Germany from 2014 to 2021, where he had been trying to obtain a residence permit as a political emigrant. Two children of his were born in Germany. However, having failed to obtain a residency, on the basis of a readmission agreement between Germany and Azerbaijan, Mirzoyev and his family were deported to Azerbaijan on 25 November 2021.

On 27 January 2022, Jafar Mirzoyev was detained and charged with crimes under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic (AR Criminal Code). On 28 January 2022, D. Mirzoyev was charged under the above mentioned Article, and in his regard it was chosen a measure of restraint in the form of detention.

Interrogated in the course of the trial, Jafar Mirzoyev did not plead guilty to the charges and testified that prior to his journey to Germany he had not been involved in any political or social activities. But having moved to Germany, he voiced critical views about the authorities on the social networks, as well as participated in the rallies in Munich and Düsseldorf. He testified that upon his arrival in Azerbaijan he and his family had been placed in quarantine at the “Olympic Village” directly from the Baku airport, the place in which the foreigners previously arrived from abroad had been held in the time of pandemic. At that time, two officers of the Prosecutor General’s Department came to visit him and interrogated all those who had arrived from Germany. These two officers told Jafar Mirzoyev that he would soon be summoned to the Prosecutor General’s Office. Due to the fact that J. Mirzoyev hardly knew Baku, he asked them to notify him 2-3 days in advance. Following the quarantine, J. Mirzoyev went to his mother in the city of Jalilabad.

On 26 January 2022, Jafar Mirzoyev together with his family came to Baku to visit his younger brother. On 27 January 2022, he drove in his cousin’s car to a hardware store. When he entered the store, two unknown men took him under the arms, forcibly led him out of the store, handcuffed him and put in the car. Another man was waiting for them outside. J. Mirzoyev’s hands were tied behind his back, they pulled the hood of his jacket over his eyes and started beating him saying “you are speaking against the state”. According to Mirzoyev, they placed the drugs in his pocket at that very moment. The unknown offenders told him that if he agreed with what they wanted, then they would let him go. Then he was brought to the 12th Police Station of the Baku Sabunchi district. At the Station, the drugs mentioned in the indictment were taken out of his pocket. During his conversation with the Police Chief, Jafar was said that his arrest had been ordered by “the superiors”. At that moment, one of the unknown individuals said: “The boss, can bring the electrical wire?” Another asked: “How about pliers?”, and the third one suggested: “Should we take him to the basement?” Those remarks were measures of psychological pressure. Then, he was threatened with his family. The psychological pressure lasted about six or seven hours. Jafar Mirzoyev was forced to agree with their demands. Next, they caught him on a video where J. Mirzoyev said that he had found the drugs on the street but he had never used them, never sold and his only request to the Court was to restore the justice.

Questioned as a witness at the trial, Natig Isbatov, a senior operative of the Main Anti-Drug Department within the Ministry of Internal Affairs, testified that Jafar Mirzoyev had bought the drugs in Jalilabad on 27  January 2022, and then carried them on in order to sell them in Baku. Therefore, the authorities decided to create an operative-investigative group consisting of Isbatov himself, an operative Shirali Babayev and senior operative Elmir Huseynov. They were the ones who detained Jafar Mirzoyev, in whose possession they found the drugs. The witness also testified that he hadn’t had any information about J.Mirzoyev’s political activity and residence in a European country.

Elmir Huseynov, a senior operative of the Main Anti-Drug Department within the  Ministry of Internal Affairs of the Azerbaijan Republic, questioned in the court as a witness, provided the same testimony.

According to the report of the forensic narcological examination from 20 April 2022, it is clear that Mr. Mirzoyev does not suffer from drug addiction, and therefore there is no need to impose on him a compulsory treatment.

The conclusion of a complex forensic-psychological and -psychiatric examinations from 25 April 2022, reveals that Jafar Mirzoyev does not suffer from any mental illness and does not have any psychological problems.

The Court considered Jafar Mirzoyev’s testimony that he had been subjected to psychological pressure and arrested because of his political views as being of a self-defence nature

The Court did not detect any aggravating circumstances in the case, and the fact that Jafar Mirzoyev has two minor children was accepted as mitigating grounds.

On 16 January 2022, the Baku Court on Serious Crimes issued a verdict against Jafar Mirzoyev. He was found guilty on the charges and sentenced to 6 years imprisonment to be served in a penal colony of general regime.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

One of the purposes of criminal proceedings are to defend individuals, society and the state against criminal attempts (Article 8.0.1 of the Code of Criminal Procedure of the Azerbaijan Republic). The other, not less important purposes are to defend individuals against abuse of power in connection with the commission of a real or possible offence (Article 8.0.2 of the Code of Criminal Procedure of the Azerbaijan Republic).

At the same time, it is necessary to ensure a defence against restrictions on human and civil rights and liberties (Article 9.1.2 of the Code of Criminal Procedure of the Azerbaijan Republic).

And most important: under the circumstances provided for in this Code, violation of the principles or conditions governing criminal proceedings may render the completed criminal proceedings invalid, cause the decisions taken during them to be annulled and deprive the evidence collected of its value (Article 9.2 of the Code of Criminal Procedure of the Azerbaijan Republic).

Despite the existence of this Norm, it is, unfortunately, a “dead” or theoretical one. The law enforcement and judicial officials, who commit numerous violations of the substantive and procedural law, often remain unpunished.

The case of Jafar Mirzoyev will not be an exception. Since 2021, eight political activists have been deported from Germany, and criminal cases have been initiated against them immediately upon their return to the country. Most of them have been already sentenced to the long-term imprisonment.

There are a lot of inconsistencies, contradictions and questions in the verdict against Jafar Mirzoyev.

According to the Article 21.3 of the Code of Criminal Procedure of the Azerbaijan Republic,

The accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defence of the suspect or the accused.

In any criminal case, an important aspect of guilt proving is an evidentiary element of the case. The evidence is recognized as credible data (information, documents, things) obtained by the court or parties involved in the criminal proceedings.

In the commented case, the evidentiary basis consists of: two witnesses’ testimonies (members of the operational-search group), the defendant’s testimony at the preliminary and court investigations, the results of forensic narcological, psychiatric and other examinations. The testimony of the accused during the preliminary investigation was that he had found the drugs in the street in Jalilabad and brought them to Baku. His testimony at the trial dramatically changes, when he says that he testified “confessionally” as a result of psychological pressure, fearing for his family as a result of real threats.

In this case, it should be noted that even if, according to the official version, Mr. Mirzoyev found the drugs somewhere, it does not indicate his involvement in the incriminated crime. In addition, Mirzoyev was deported in November 2021, and arrested two months later, in January 2022. A logical question arises – how could a man who had just arrived from Germany and received a warning from the officers of the Prosecutor General’s Office while he had been kept in quarantine ward, could have committed a criminal offence?

The most serious aspect of the criminal act under the Article 234.4.3 of Azerbaijan Republic Criminal Code is the intent to distribute. The investigative authorities could not provide the Court with sufficient evidence indicating the defendant’s intention was to sell the drugs. The investigative bodies did not establish a connection between the drugs and Jafar Mirzoyev. There is no a single word, fact, argument confirming the intention of sale in the verdict. The case proofs are so insufficient that to convict on their basis is a mere violence against the law and all its canons.

Besides, the forensic narcological examination confirmed that Jafar Mirzoyev had not been addicted to drugs.

According to the Article 124.1 of the Code of Criminal Procedure of the Azerbaijan Republic, reliable evidence obtained by the court. Such evidence:

• 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);
• 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 he is guilty, and other circumstances essential to determining the charge correctly.

In 2001, Azerbaijan ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. Since then, the obligation to respect human rights the High Contracting Parties ensure that everyone under their jurisdiction is entitled to the rights and freedoms defined in the Convention (Article 1 of the European Convention).

However, despite the ratification of such an important document, Azerbaijan still violates the principles enshrined in the aforementioned European Convention. Thus, there were methods of psychological pressure in Jafar Mirzoyev’s case. They were so powerful that they forced Mirzoyev to make a “confession”. The use of physical and psychological coercion methods on detainees in Azerbaijan is no longer a secret to anyone. It is confirmed by the numerous decisions of the European Court of Human Rights (ECHR) against Azerbaijan on violation of the European Convention, Article 3 (prohibition of torture). Sometimes the detainees say that it is easier to endure the most brutal physical torture than when they are intimidated by the use of illegal means of physical violence against their family members, children, wives, parents, brothers, or sisters.

This very fact was the reason for Jafar Mirzoyev to change his testimony during the trial. But, despite this, the Court did not find the alteration of the testimony to be strange, in order to eliminate the contradictions or find the real reason behind it. On the contrary, the defendant’s testimony at the investigation was accepted as irrefutable, and the testimony at trial was admitted as self-protective. This is not surprising, since the practice shows that the courts do not exercise a different assessment of the change of testimony.

Jafar Mirzoyev’s accusation in the crime was not substantiated. The investigating authorities did not have sufficient evidence, and the Court, as a whole, considered the case to the extent that it was submitted by the investigators. The court verdict lacked motivation. The verdict cannot convince an outside observer that Mr. Mirzoyev really committed the incriminated crime.

In respect of Jafar Mirzoyev, it was a violation of the fundamental right in any democratic society – the Right to Freedom guaranteed by the Constitution of Azerbaijan, Article 28, as well as by the Article 5 (1) (c) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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