Category: Courts

The court in Azerbaijan violated the Azerbaijani citizen’s right to freedom

THE COURT HAS ONCE AGAIN VIOLATED THE RIGHT TO LIBERTY OF AN AZERBAIJANI CITIZEN

Ali Zeynalov

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

Baku City Khatai District Court

Case № 4(011)-194/2024

8 March 2024

Presiding judge: Sulkhana Hajiyeva

Defendant: Ali Zeynalov

Defender: Fariz Namazly

With the participation of Alibaba Hajiyev, a Senior Investigator from the Investigation Division within the Baku City Investigation and Inquiry Police Department, and Abulfaz Huseynov, a Prosecutor from the Supervision of Execution of Laws in Investigation, Inquiry and Operative Investigation Activity Department within the Baku City Internal Affairs Prosecutor Office.

Ali Zeynalov, born in 1996, was previously a member of the N!DA Civic Movement; recently worked as coordinator at the Institute for Democratic Initiatives.

On 6 March 2024, the Head of the mentioned Institute, Akif Gurbanov, as well as employees Ramil Babayev, Ilkin Amrakhov, and journalists of the internet resource Toplum TV Mushfiq Jabbar, Farid Ismayilov, and a member of the Board of the Civil Movement N!DA, Elmir Abbasov, were detained in the Toplum TV office. Other employees of the Internet network were also detained but released a few hours later.

There were searches in the office as well as in the detainees’ residences, as a result of which they seized various amounts of currency. At Ali Zeynalov’s house, it was seized a number of banknotes for a total of EUR 10,150 and USD 9,060.

The following day, the Baku City Khatai District Court imposed a non-arrest preventive measure on the previously detained Farid Ismayilov and Elmir Abbasov. They were placed under the police supervision.

On 6 March 2024, Ali Zeynalov was identified as a suspect.

Soon all detainees, including Ali Zeynalov, were charged with committing an offence under the Article 206.3.2 (Smuggling committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic (AR CC ).

The Baku City Police Department investigator and Prosecutor applied to the Court with a petition and submission to impose against Ali Zeynalov a measure of restraint in the form of detention for a 4-month period.

On 8 March 2024, the Baku City Khatai District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Ali Zeynalov in the form of detention for a period of 4 months.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The Court specified the following as grounds for imposing a preventive measure in the form of a remand in custody:

  • concealment from the authority conducting the criminal proceedings;
  • unlawful pressure on those involved in criminal proceedings;
  • obstruction of the normal course of the preliminary investigation through the concealment of relevant materials related to the criminal prosecution;
  • re-committing an offence defined in the Criminal Code and posing a danger to society.

It should be recalled that a large number of orders to impose a measure of restraint in the form of arrest are usually granted by the Court in the interests of the investigating authorities. Ali Zeynalov’s case was not an exception.

 

Despite the fact that there are the above-mentioned grounds listed in the Court ruling, yet, it does not provide any substantial evidence that could justify the imposition of such a harsh preventive measure.

 

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

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

As can be seen, the Court merely limited to rewriting almost all the grounds from the Code of Criminal Procedure of the Azerbaijan Republic, however, none of them was substantiated by any evidence.

Apart from the above-mentioned grounds, the Court, in accordance with the Criminal Code of the Azerbaijan Republic, Article 155.2, shall take into account the following characteristics of the accused in selecting a preventive measure:

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

 

Ali Zeynalov, highly educated well-known activist in the civil society, has a permanent place of residence and work, has not been previously convicted. The defendant’s positive characteristic was not taken into account by the Court. The seizure of currency in Zeynalov’s house is not a justified ground for suspicion, as it has not yet been determined his connection with the found currency, neither whether the money was actually smuggled across the Azerbaijani border nor whether it belonged to Zeynalov. The existence of the money is not an indication of its criminal acquisition.

All these suspicions had to be investigated and determined by the Court. It means that the investigating authority had an obligation to submit to the Court such evidences that explicitly proved the criminal acquisition of the found currency and its attributability to the accused.

Grounded suspicion is an essential element of the legitimate defence to an arbitrary deprivation of liberty. As stated above, the existence of reasonable suspicion presupposes the availability of facts or information that would convince an objective observer of whether a person could have committed that offence. What may be considered justified depends on the totality of the circumstances.

With regard to the suspicion authorising detention or temporary custody, the European Convention for the Protection of Human Rights and Fundamental Freedoms provides three elements:

  • commission of the offence;
  • reasonable grounds to assume that it is necessary to prevent the offence from being committed;
  • a threat that the person alleged to have committed an offence may flee or threat to attempt a criminal offence.

If the court fails to take an individualised approach to the case and instead adopts a general attitude, which merely recites the rules of law and lacks motivation, it violates a fundamental right of a democratic society – the right to liberty guaranteed by the Convention, Article 5(1). Thus, the deprivation of liberty must first and foremost be lawful in terms of national law; in this respect, it is incumbent on the national courts to interpret domestic law in a concrete area and the deprivation of liberty must also fulfil the objectives of the Convention, Article 5(1).

Among the grounds mentioned by the Court as justification for the imposition of a measure of restraint in the form of arrest was a danger to the public. As stated above, Ali Zeynalov has a stable character, never previously committed any criminal offences, is engaged in useful social and political activities and, in view of his personal qualities, is not predisposed to committing offences. All these facts indicate that the court’s indication of such a ground is not based on any reasoning that the accused, being at liberty, would pose a danger to the society.

It is worth pointing out that the European Court of Human Rights (ECHR) has stated in numerous judgements that even a certain category of “inadequate” individuals (such as the mentally ill, alcoholics or drug addicts) cannot be detained solely on the grounds of their health condition or use of harmful drugs. Any detention must have substantial grounds that would justify a detention. Thus, the “danger to society” in A. Zeynalov’s case, as stated by the Court, has no substantiated ground.

 

So, a detention in custody shall be justified only if the particular indications reveal a genuine public interest requirement that prevails, notwithstanding the presumption of innocence, over a consideration of individual liberty.

 

A particularly important point is the term of the preventive measure. According to the Article 158.1 of the Code of Criminal Procedure of the Azerbaijan Republic, at the pre-trial stage of the criminal case, when it chooses arrest as a restrictive measure, the court shall specify a remand period of up to 2 (two) months in respect of offences which do not pose a major public threat, up to 3 (three) months in respect of minor offences and up to 4 (four) months in respect of serious and very serious offences

Although the Article 158.1 of the Code of Criminal Procedure of the Azerbaijan Republic stipulates the application of a preventive measure in the form of arrest for a certain period of time according to different categories of offences, however, a mere indication of the term is not considered sufficient. In this case, the Court imposed a preventive measure for a maximum term of 4 months, which was precisely requested by the investigative body. Neither the prosecution nor the Court justified the reason for the 4-month term. As a rule, the term of arrest for such kind of offences is 4 months, but in no case (in view of the arrest orders) the Court justified the imposition of a preventive measure for such a long term, which in this case was also irrational.

The judgement of the European Court of Human Rights in the case of Contrada v. Italy of 28 August 1998 says

“According to the Court’s practice, the reasonable time limit is not subject to an abstract assessment. The reasonableness of an accused person’s detention must be analysed on a case-by-case basis in accordance with the case specifics. Detention may be justified only if specific indications reveal the actual existence of public interest overriding, notwithstanding the presumption of innocence, that of respect for one’s personal liberty. It is primarily incumbent on the judicial authorities to investigate all the facts that would confirm the existence of a public interest justifying exceptions to the general rule respecting individual liberty and take them into account in their rulings on requests for release…The existence of a reasonable suspicion that the detainee has committed an offence is a precondition for lawful detention but, after a certain period of time, it can no longer be sufficient; in this case, the Court must determine whether the other arguments taken into account by the trial authorities justify the deprivation of liberty. If these arguments are found to be ‘relevant’ and ‘sufficient’, the Court must ascertain whether the competent domestic authorities have exercised ‘particular diligence’ in the course of the investigation”. – https://hudoc.echr.coe.int/?i=001-58217

It is also stated in the court ruling on the imposition of a measure of restraint against the defendant in the form of arrest that A. Zeynalov is accused of committing a serious offence punishable with up to 8 years’ imprisonment, therefore it is reasonable to believe that he may re-commit a criminal deed causing a danger to society. We have already mentioned above “the danger to society”. However, the main point in this judgment is the alleged commission of a serious criminal act punishable by up to 8 years’ imprisonment. In the ruling, the above conclusion is marked in bold italics, which highlights its importance to the judgement. Although it is stipulated in the Code of Criminal Procedure of the Azerbaijan Republic, Article 155.3.1, stating that arrest may be applied to a person accused of committing an offence for which a sentence of imprisonment of more than 2 years may be imposed, the precedents of the European Court of Justice point out the insufficiency of this conclusion.

 

Thus, the judgment of the European Court in the case of Scott v. Spain dated 18 December 1996 states,

 

“The mere existence of a serious suspicion of involvement in the commission of an offence, being a relevant factor in the case, does not justify such prolonged pretrial detention”. – https://hudoc.echr.coe.int/?i=001-58010

Also, the judgment of the European Court of Justice in the case of Tomasi v. France dated 27 August 1992 states

“The Court acknowledges that the particular gravity of certain crimes may provoke a public reaction and social repercussions that make it justified to be remanded in custody, at least for a certain period of time. In exceptional cases, this point may be taken into account in the light of the Convention, at least to the extent that domestic law (…) admits the notion of a breach of public order as a consequence of the offence. However, this may only be considered justified and necessary if there are reasons to assume that a detainee’s release would genuinely violate public order or if that order is genuinely threatened. Pre-trial detention should not be a precursor to a custodial sentence.”- https://hudoc.echr.coe.int/?i=001-57796

To summarise what has been said above, we can conclude that the preventive measure chosen by the Court does not comply with the national law, the Articles of the European Convention on Human Rights, the precedents of the European Court of Human Rights, has no legitimate objective, and therefore, grossly violates the fundamental right, the Right to Liberty.

 

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Azerbaijan authorities arrested believers as drug addicators

THE AZERBAIJANI AUTHORITIES ARREST THE BELIEVERS UNDER THE PRETEXT THAT THEY ARE DRUG ADDICTS

Subhi Aliyev

Analysis of violation of law during Subhi Aliyev’s judicial proceeding Collegium for Criminal Cases of the Baku City of Appeal

Case № 1(103)-1951/2023

19 October 2023

Presiding judge: Qadim Babayev

Judges: Ilqar Murguzov, Anar Tanriverdiyev

Defendant: Sunhi Aliyev

Defender: Fuad Quliyev

With participation of Tural Qahramanov, a Prosecutor from the Protection of State Prosecution in Courts of Appeal Department within the General Prosecutor’s Office of the Azerbaijan Republic

Subhi Aliyev, a 53-year-old believer, was detained on 10 December 2022. He was arrested at a time when the Azerbaijani-Iranian relations had deteriorated and Shia Muslims were being subjected to mass arbitrary arrests in the country. Officially, they were being detained on charges of illegal drug trafficking, but the state propaganda machine portrayed them as “agents of Iran” in the media and on TV channels, accusing them of working for Iran’s intelligence services. But despite these accusations, none of the detainees have been charged with treason or espionage.

Subhi Aliyev also became one of the arrested individuals accused of illegal drug trafficking. He was charged with committing an offence under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed on preliminary arrangement by group of persons or organized group) of the Criminal Code of the Azerbaijan Republic.

According to the investigation, on 10 December 2022, Subhi Aliyev illegally purchased and possessed 9.473 grams of methamphetamine. He was detained by the officers from the Main Department in charge of Combating Organised Crime within the Ministry of Internal Affairs of Azerbaijan in the course of their operational-search activities and brought to the Department.

During the proceedings at the Court of First Instance, the Court reclassified the charge from the Article 234.4.3 to 234.1-1 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic.

Subhi Aliyev, interrogated at the first instance Court, did not plead guilty to the charge and made a disagreeing statement. Subhi Aliyev testified that three unknown people approached him when he left a fitness center on 9 December 2022. They twisted his hands, forcibly put him in a car and brought him to the Department in charge of Combating Organised Crime at the Ministry of Internal Affairs.

While in the car, Subhi Aliyev was beaten with fists and asked what religious group he belonged to. Subhi Aliyev replied that he had not been a member of any religious organisation. Then he was asked about his practice of namaz (prayer) and whether he had ever met Tale Bagirzade (a political prisoner sentenced to 20 years in prison). S. Aliyev answered that he had been practising namaz for a long time, and he had never known or connected to Tale Bagirzade. Nonetheless, he was handed a bag with drugs that he should pretend as his own one. S. Aliyev did not accept it, and as a result he was beaten by the officers of the Department.

He suffered from bruises on his abdomen and a swelling in the area of his ribs due to the brutal beatings. After that, they made a video recording, during which he had been given a bag with drugs. Unable to withstand the torture, Subhi Aliyev admitted it as his own.

Some 2-3 days after his detention in the Department, he was taken to a narcological examination, where he was given a cup of tea. Subhi Aliyev claimed that the tea was spiked with drugs in order to find traces of narcotic drug in his blood. Indeed, a trace of opioids and psychostimulants was detected in his blood following consumption of that tea. He was registered as a drug-dependent individual. Subhi Aliyev testified that he was a religious person, had never used drugs and practised sports. He asked the Court to take into account his statement.

Elvin Hasanov, an operative officer from the Department in charge of combating organised crime at the Ministry of Internal Affairs, questioned at trial as a witness, testified that on 10 December 2022, together with his colleague, he had been informed about illegal drug trafficking in the city of Baku. In order to detain Subhi Aliyev, it was created a task force group that included his colleagues, Tunar Allahverdiyev and Emre Shikhaliyev, as well as him.

On 10 December 2022, Subhi Aliyev was detained and it was conducted a personal examination and seizure of the drugs. According to the video recording, Subhi Aliyev voluntarily provided the bag with drugs. There was no physical or psychological pressure against Subhi Aliyev, he was explained about all his rights and liabilities.

Emre Shikhaliyev and Tunar Allahverdiyev, the operatives from the Department in charge of combating Organised Crime within the Ministry of Internal Affairs, questioned as witnesses in the first instance Court, provided testimony similar to Elvin Hasanov’s.

The conclusion report of the forensic chemical examination dated 10 December 2022, confirmed that the detected drug methamphetamine was a psychotropic drug produced artisanally.

Another conclusion of forensic narcological examination dated 13 December 2022, also confirmed the existence of opioids and psychostimulants in Subhi Aliyev’s blood, which had been identified as his drug addiction.

On 25 July 2023, the Baku Court of Serious Crimes issued a verdict against S. Aliyev: he was found guilty of committing a crime under the Article 234.1-1 of the AR Criminal Code of the Azerbaijan Republic and sentenced him to a 4-year imprisonment term to be served in a general regime correctional institution.

Not accepting the judicial verdict, his defence appealed to the Court. The appeal sought to cancel the verdict of the first instance Court dated 25 July 2023, and render an acquittal verdict .

On 19 October 2023, the Criminal Collegium of the Baku Court of Appeal issued a ruling: to dismiss the defence’s appeal and leave the sentence of the Baku Court of Serious Crimes from 25 July 2023 intact.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

As stated above, in his testimony, Subhi Aliyev described the inhuman treatment he had been subjected to at the Department in charge of combating organised crime within the Ministry of Internal Affairs of the Azerbaijan Republic. As he said, he had experienced both physical and psychological cruelty. The police tried to obtain his “confession”.

The officers interrogated as witnesses in the Court of First Instance rejected the accused’ s words and stated that S. Aliyev had not been beaten by anyone.

It should be noted here that, as a rule, all those who end up in the above-mentioned department face physical or psychological torture. Such evidences have been repeatedly confirmed by the judgments of the European Court of Human Rights, as well as numerous reports of the International Organisations dealing with the problems of torture. However, the National Courts have never carried out a proper and effective investigation of the accused’s testimonies, and not a single law enforcement officer of the Azerbaijan Republic responsible for torture and similar offences has been brought to justice. The practice of the investigative bodies is still not satisfactory.

Subhi Aliyev’s case was no exception either. He described in detail everything that had happened to him at the department. As a result of torture and inhuman treatment, he was forced to accept the possession of drugs.

According to the Article 46 (III) of the Constitution of the Republic of Azerbaijan,

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

The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3, also prohibits cruel and inhuman treatment and torture. Also, it is prohibited under the International Covenant on Civil and Political Rights, Article 7.

The evidentiary record in the case is based on the testimonies provided by the officers from the Department in charge of Combating Organised Crime, who had a direct interest in the outcome of that case. There are other evidence in the case concerning an expertise on drugs and defendant’s medical examination.

At the trial of the first instance Court, Subhi Aliyev stated that he had never consumed any drugs, and that the result of the expertise concerning the presence of opioids in his blood was a consequence of the drunk tea. It was quite a serious argument that should have been checked by the Court and a determination should have been made in order to conduct an official investigation concerning an individual in question — who had given the tea containing narcotics to Mr Aliyev. However, the Court accepted the policemen’s words and did not take any initiative to investigate such a serious allegation. The Court took measures in accordance to the investigative bodies.

According to the Article 8 of the  Law of the Azerbaijan Republic On Courts and Judges,

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

The Article 9 of the Law of the Azerbaijan Republic On Courts and Judges states,

Direct or indirect restricting, undue influencing, threatening or interfering with court proceedings or acting in disrespect of the court and explicit disobedience by any person for any reason is inadmissible and shall entails liability provided by the legislation of the Republic of Azerbaijan.

There is reasonable doubts in the defendant’s accusation as the evidentiary grounds of the case has not been proved.

The presumption of innocence is particularly important principle in criminal cases. The Article 21.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that any person suspected of committing an offence shall be found innocent if his guilt is not proven in accordance with this Code and if the court has not delivered a final judgment to that effect.

According tot he Article 21.2 oof the Code of Criminal Procedure of the Azerbaijan Republic,

The accused (the suspect) shall receive the benefit of any doubts which cannot be removed in the process of proving the charge in accordance with the provisions of this Code, within the appropriate legal proceedings. He shall likewise receive the benefit of any doubts which are not removed in the application of criminal law and criminal procedure legislation.

The investigating authority did not provide the Court with sufficient evidence to convict the accused. The Article 21.3 of the Code of Criminal Procedure of the Azerbaijan Republic states,

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

Thus, if the prosecution had failed to provide irrefutable evidence, the Court would have obliged to terminate the criminal prosecution against the accused or issued a verdict of acquittal.

If the Court, pursuant to the Code of Criminal Procedure of the Azerbaijan Republic, Article 350, issues a verdict of acquittal, they must invoke the Article 42 of the Code of Criminal Procedure of the Azerbaijan Republic, in which the grounds for acquittal are enumerated. They are as follows:

  • if no criminal act has been committed;
  • if the act has no criminal content;
  • if there is no link with the offence committed;
  • if guilt is not proven.

Moreover, if the Court issues a guilty verdict, as it did in respect to Subhi Aliyev, it must:

  • proceed on the basis of the presumption of innocence;
  • rely on the results of consideration of the charges in the course of the trial within the rules stipulated by the CPC;
  • proceed on the basis of strong and potential evidence examined at the trial;
  • interpret the irremovable doubts regarding the guilt of the accused in his favor.

Кроме того, если суд и выносит обвинительный приговор, как в отношении С.Алиева, то он должен:

  • исходить из презумпции невиновности;
  • основываться на результатах рассмотрения обвинения в ходе судебного разбирательства в пределах правил, предусмотренных УПК;
  • основываться на веских и возможных доказательствах, исследованных на судебном следствии;
  • истолковать в пользу обвиняемого неустранимые сомнения относительно его виновности.

Also, according to the Article 351.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

A conviction by the court may not be based on assumptions and shall be handed down only where guilt of the accused is proved during the court’s examination of the case.

The Courts have referred to the illegally obtained evidence, although it is strictly prohibited by the Article 125.2 of the Code of Criminal Procedure of the Azerbaijan Republic. In this article written, that

Information, documents and other items shall not be accepted as evidence in a criminal case if they are obtained in the following circumstances:

  • if the accuracy of the evidence is or may be affected by the fact that the parties to the criminal proceedings are deprived of their lawful rights, or those rights are restricted, through violation of their constitutional human and civil rights and liberties or other requirements of this Code;
  • through the use of violence, threats, deceit, torture or other cruel, inhuman or degrading acts.

We should note once again that the Courts did not pay attention to the serious procedural violations committed by the investigative body conducting the preliminary investigation.

Obtaining a “confession” testimony from a defendant is another important violation. This procedural violation is committed in every second case of arrest, in particular on charges of possession and sale of narcotic drugs.

It contradicts to the Constitution of Azerbaijan, Article 66.

Nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister.

The same provision is set out in the European Convention, Article 6(1). While the text of the Article is not explicitly referred to, but there is ample case law of the European Court of Human Rights, which has referred to this right as the “right to silence”.

Thus, the judgment of the European Court of Justice in the case of Servais v. France from 20 October, 1997, states:

“The Court recalls that the right of any defendant to remain silent and not to testify against himself are recognized as a part of international norms that are the essence of the notion of a fair trial enshrined in the Article 6 of the Convention. Their basis for being aimed, in particular, at protecting an accused against abusive violence on the part of the authorities, which helps to avoid judicial errors and makes it possible to achieve the objective of the Article 6. Notably, the right not to contribute to one’s own prosecution presupposes that, within a criminal case, the prosecution seeks a means of creating its case without having recourse to means of proof obtained by coercion or pressure, contrary to the will of the accused”. – https://hudoc.echr.coe.int/?i=001-58103

Both the Court of First and Appeal instances committed the same violations.

All the above-mentioned violations led to the infringement of the fundamental right of a democratic society – the Right to Freedom guaranteed by the Article 28 of the Constitution of the Azerbaijan Republic, Article 14 of the Code of Criminal Procedure of the Azerbaijan Republic, Article 5 (1) of the European Convention, supported by the numerous precedents of the European Court of Human Rights, which are mandatory for the Council of Europe member stat

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The court violated Elvin’s Mustafayevs fundamental right – right to liberty

THE COURT VIOLATED ELVIN MUSTAFAYEV’S FUNDAMENTAL RIGHT – THE RIGHT TO LIBERTY

Elvin Mustafayev

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

Baku City Court on Serious Crimes

Case № 1(101)-906/2024

31 January 2024

Presiding judge: Faiq Qaniyev

Judges: Mahmud Agalarov, Samir Aliyev

Defendant: Elvin Mustafayev

Defender: Zubeyda Sadiqova

State Prosecutor: Mr. Babakhan Hasanaliyev, a Prosecutor at the Division on Protection of State Prosecution in the Courts on Serious Crimes within the Department on Protection of State Prosecution at the General Prosecutor’s Office of the Azerbaijan Republic

  1. Mustafayev, born in 1996, was a member of the Trade Union Confederation Work Table. He along with the other activists (Afiyaddin Mammadov and Aykhan Israfilov who are currently imprisoned and considered political prisoners) were engaged in the protection of citizens’ labor rights, particularly the rights of couriers.

Previously, E. Mustafayev had been arrested following a summer 2023 rally organized in Baku. He was arrested together with Afiyaddin Mammadov, the Head of the Work Table. Both of them were detained on charges of committing 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

and sentenced to 30 days under administrative arrest.

 

On 4 August 2023, E. Mustafayev was detained on charges related to committing crimes under the Articles 234.4.1 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed on preliminary arrangement by group of persons or organized group) and 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic.

According to the conviction, on 4 August 2023, it was found 3.471 grams of narcotic drug heroin in E.Mustafayev’s possession. Then, he was brought to the Binagadi District Police Department’s administrative building, where he voluntarily handed over the drugs to the investigating authority.

  1. Mustafayev, interrogated in the course of the trial, did not plead guilty to the charges and called his arrest as politically motivated. He testified that he had been engaged in social and political activities protesting against injustice in the country. On 4 August 2023, while leaving a convenience store in his neighborhood, four strangers attacked him, then approached four others. The individuals, who did not introduce themselves, forcibly put him into a car and seized his cell phone.
  2. Mustafayev also revealed that despite the fact that he had moved to the Baku Nizami district a few months prior to the incident, he still had been controlled by the police in the Binagadi district in which his previous residence was located. He was detained by the officers from the Binagadi District Police Department, instead of being detained by the Nizami District police. He explained that the police officers’ route could be traced through the cameras installed on the roads.

He was first threatened and then beaten with fists and feet at the Police Department. However, E. Mustafayev told them that even if they broke his bones, he would not agree to their demands. After that, they continued beating him, and dragging him from one floor to another. Afterwards, they told him that they would put one gram of drugs, and that it was not so much, but Elvin Mustafayev did not accept it either. He was also threatened with bringing some woman who would falsely testify to be raped by him, that they would bring some witnesses working for the police, as well as “drug addicts” who would confirm everything the police told them. Other threats were that the charges could be linked to Iran and the fact that he had been an agent of that state. E. Mustafayev told the Court that he always campaigned against the people who consumed drugs, since it was harmful to the State. He was not allowed to study numerous investigative papers and was forced to sign them without reading it. The lawyer who attended the investigation did not say anything, because he had been ordered to do so. Mustafayev asked the Court to find him innocent of the incriminated crimes.

 

Hikmat Mutallimov, a senior operative of the Binagadi District Criminal Investigation Department, was questioned as a witness during the trial and testified that on 4 August 2023, he had received an operational information on illegal drug trade. As a result of operative investigation measures, E. Mustafayev was detained and drugs were found in his possession. A report on the fact was drawn up and signed.

Ramil Guliyev, an operative of the Binagadi district Criminal Investigation Department, provided testimony similar to Hikmat Mutallimov’s ones.

As it is described in the protocol of personal search from 4 August 2023, E. Mustafayev was offered a chance to voluntarily disclose a narcotic drug, and he did it. The above words were confirmed on the video footage.

The forensic chemical examination from 5 August 2023, proved the fact that the drug, heroin, manufactured by artisanal means, weighing 3.471 grams, had been found in E. Mustafayev’s possession.

According to the conclusion of the medical outpatient compulsory narcological examination dated 19 August 2023, it was clear that E. Mustafayev had not detected any signs of a narcological addictive disease.

The outpatient forensic psychiatric examination from 21 August 2023, confirmed that E. Mustafayev did not suffer from any mental illness at the time of the crime, and therefore could be considered to be sane.

On 23 September 2023, an investigative body ruling refused to initiate criminal proceedings on the fact that there were signs of a violent attack on E. Mustafayev’s body.

The Court came to the conclusion that the investigating authority hadn’t been provided with any irrefutable evidence of the acquisition of drugs for the purpose of sale. Nor was there any evidence that the crime had been committed by a group of persons on prior conspiracy. Therefore, the Court reached the following verdict: the acts should be reclassified from the Articles 234.4.1 and 234.4.3 to the Article 234.1-1 (Illegal acquisition, storage, manufacture, processing, transportation without purpose of sale of narcotic drugs or psychotropic substances in significant quantities, committed in large amounts) of the Criminal Code of the Azerbaijan Republic.

On 31 January 2024, the Baku City Court on Serious Crimes issued a verdict against Elvin Mustafayev. He was found guilty on the charges and sentenced to 3 years imprisonment to be served in a penal colony of general regime.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The Court reclassified the charge from the Articles 234.4.1 and 234.4.3 to 234.1-1 of the Criminal Code of the Azerbaijan Republic, which omits the provision of sale of a narcotic drug. The Court’s judgment could have been correct if it had passed an acquittal verdict against E. Mustafayev. However, in the current case, when the Court issued a guilty verdict, it is not possible to call the judicial verdict lawful and well-founded.

In the course of the trial E. Mustafayev described in detail the pressure he had faced at the police department. However, the Court did not pay attention to that testimony. There is only a note in the verdict that his words about physical and psychological pressure had not been recorded in the criminal case file. The Court found his testimony to be untrue. The Court should have taken them seriously and initiated all necessary steps to reveal the truth in the present case. It is worth pointing out that the accused described in every possible detail (quoting verbatim the words of the police officers) the rough treatment inflicted by the police officers.

In relation to ill-treatment, there are a number of domestic and international legal provisions on the subject. According to the Article 46 (III) of the Constitution of the Republic of Azerbaijan,

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

The Article 13.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

It shall be prohibited to take decisions or allow acts during the criminal prosecution which debase the honour and dignity of the person or may threaten the life and health of the participants in the proceedings.

Besides the provisions of national law, there are Norms of International Treaties. For example, the European Convention for the Protection of Rights and Fundamental Freedoms, Article 3, also prohibits the use of torture, as well as ill and inhuman treatment. There are no exceptions in the Article, it is in force everywhere and always, even in the fight against terrorism or mafia. The Convention Article 3 protects an individual’s dignity and physical inviolability.

In this particular case, it should be considered a violation of the Article 3 in conjunction with Article 13 (Right to an effective remedy) of the European Convention. There are precedents of the European Court of Human Rights in this regard.

Thus, the judgment of the European Court in the case of Ilhan v. Turkey from June 27, 2000, it is said:

“…the Court considers that the requirement of the Convention, Article 13, that an effective remedy be provided to a person who claims a violation of the Convention, Article 3, will in most cases afford both compensation to the applicant and the necessary procedural protection against violations by a State’s representatives. The Court has found in its precedential judgments that the concept of an effective remedy in this context includes the obligation to carry out a full and effective investigation, the purpose of which is to determine and penalize those responsible for the ill-treatment and to grant an applicant free access to the investigation process. Thus, whether it is permissible or necessary to recognize a procedural violation of the Convention’s Article 3 will depend on the particular circumstances of the individual case in question”. – https://hudoc.echr.coe.int/?i=001-58734

So, it is obvious that the investigative bodies and court did not conduct a proper investigation concerning the ill-treatment, therefore, we can speak about violation of the European Convention, Articles 3 and 13.

As stated above, E. Mustafayev was demanded to testify against himself. Therefore, according to the accused, there were certain unlawful demands, including both physical and psychological pressure applied. It contradicts to the Constitution of Azerbaijan, Article 66.

Nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister.

The same provision is set out in the European Convention, Article 6(1). While the text of the Article is not explicitly referred to, but there is ample case law of the European Court of Human Rights, which has referred to this right as the “right to silence”.

One of the important points in every criminal case is the evidence compiled by the investigative body and submitted to the Court. There were the following evidence in the case of E. Mustafayev: the accused’s testimony, testimonies of two police witnesses, the results of forensic chemical and psychiatric examinations, the first one was assigned to determine the origin of the narcotic drug, while the second was to determine the accused’s mental state at the time of committing the alleged crime.

Moreover, the Court did not verify the relevance of the drug to accused.

The testimonies of two policemen were also considered as irrefutable by the Court, although, in fact, those testimonies should have been regarded as suspicious, since the policemen had an interest in the outcome of the case.

The Article 124.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

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

As we see, there is no proof in the commented case eveidence that should have feature specified in the Article 124.1 of the Code of Criminal Procedure of the Azerbaijan Republic. All these evidences can be simply questioned and refuted. It is not a secret how investigative bodies frequently obtain evidence, especially testimonies of the accused people. In Azerbaijan, for over a decade, there has been a bad practice. In this regard, the European Court of Human Rights has issued dozens of rulings on violation of the Convention, Article 3, where it was said that in order to obtain incriminating testimony the accused had been subjected to ill-treatment, torture, and as an outcome the authority had obtained their desirable results. The illegally obtained evidences subsequently became the proof that formed the basis for a conviction.

In this particular case, along with the above-mentioned Articles of the European Convention, we can really refer to a violation of the European Convention Article 18. According to this article,

The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.

It means that if the authorities illegally restrict the rights specified in the Convention, there is another motive (illegitimate). As mentioned above, E. Mustafayev had been engaged in socio-political activities and previously been charged with administrative offenses along with his adherents (A. Mammadov and A. Israfilov, both are under arrest).

The illegal restriction of the defendant’s rights as specified in the Convention has resulted in the violation of his fundamental right, the Right to Liberty, guaranteed under the Article 28 of the Azerbaijani Constitution and Article 5 (1) of the Convention. Even though the Court mitigated the charges by reclassifying the primary Articles to a more lenient one, the conviction of E. Mustafayev has violated the right to a fair trial, guaranteed by the European Convention Article 6 (1).

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Tofig Yagublu, an opposition activist is been regularly arrested

TOFIG YAGUBLU, AN OPPOSITION ACTIVIST IS BEEN REGULARLY ARRESTED

Tofiq Yaqublu

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

Baku City Narimanov District Court

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

Presiding judge: Gultakin Asadova

Defendant: Tofiq Yaqublu

Defender: Aqil Lahidj, Nemat Karimli

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

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

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

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

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

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

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

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

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

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Elbayi Karimli

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

Baku City Nasimi District Court

Case № 4(006)-418/2023

18 August 2023

Presiding judge: Jeyhun Taqiyev

Defendant: Elbayi Karimli 

Defender: Elman Agayev 

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

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

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

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

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

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

 

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

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) the lawful arrest or detention of a person effected for the purpose of bringing him

before the competent legal authority on reasonable suspicion of having committed an

offence or when it is reasonably considered necessary to prevent his committing an

offence or fleeing after having done so;

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

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

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

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

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

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

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

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

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

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

Samir Ashurov

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

Baku City Grave Crimes Court

Case № 1(101)-224/2023

18 December 2023

Presiding judge: Faiq Qaniyev

Judges: Mahmud Agalarov, Samir Aliyev

Defendant: Samir Ashurov

Defender: Elchin Sadiqov

Complainant: Elshan Nabiyev

Representative of complainant: Nazim Mehdiyev

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

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

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

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

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

On 19 April 2022, Mr. Ashurov was detained under the Article 126.2.4 (Deliberate causing of serious harm to health, committed publicly dangers a way, from hooligan prompting) of the Criminal Code of the Azerbaijan Republic (hereinafter CC). On 20 April 2022, Mr. Ashurov was brought as a suspect, on 21 April he was charged as an accused and a preventive measure in the form of remand in custody was imposed on him.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

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

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

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

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

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

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

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

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

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

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

According to the Article 139 of the Code of Criminal Procedure of the Azerbaijan Republic,

during prosecution, the following may be determined only on the basis of evidence:

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

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

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

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

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

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

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

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

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

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

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

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

  • Any person suspected of committing an offence shall be found innocent if his guilt is not proven in accordance with this Code and if the court has not delivered a final judgment to that effect.
  • Even if there are reasonable suspicions as to the guilt of the person, this shall not cause the latter to be found guilty. The accused (the suspect) shall receive the benefit of any doubts which cannot be removed in the process of proving the charge in accordance with the provisions of this Code, within the appropriate legal proceedings. He shall likewise receive the benefit of any doubts which are not removed in the application of criminal law and criminal procedure legislation;
  • The accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defence of the suspect or the accused.

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

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

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

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

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

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

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

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

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

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

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

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

The court judgment shall be considered lawful if it fulfils the requirements of the Constitution of the Azerbaijan Republic, this Code and the criminal and other legislation of the Azerbaijan Republic.

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

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

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

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There is no freedom of speech in Azerbaijan

THERE IS NO FREEDOM OF SPEECH IN AZERBAIJAN

Logo of the Internet Channel Kanal-13

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

Baku City Sabayil District Court

Case № 2(009)-2521/2023

11 December 2023

Presiding judge: Ilkin Rustamli

Applicant: Ministry of Internal Affairs of the Azerbaijan Republic

The Lawsuit against the Internet Channel Kanal-13

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

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

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

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

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

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

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

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

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

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

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

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

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

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

 

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

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hafiz Babaly

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

Baku City Khatai District Court

Case № 4(001)-767/2023 

14 December 2023

Presiding judge: Sulkhana Hajiyeva

Defendant: Hafiz Babaly

Defender: Rasul Jafarov

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

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

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

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

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

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

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

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

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

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

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

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

Activity of the courts of the Republic of Azerbaijan is aimed solely at the administration of justice and, in cases and order provided by legislation. … at the enforcement of judicial supervision. While administering justice, courts protect rights and freedoms of person and citizen, rights and lawful interests of all enterprises, establishments and organizations irrespective of the form of property, political parties, civil associations, other legal persons, from any encroachments and law violations, fulfill other objectives provided for in Constitution of the Republic of Azerbaijan.

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

Aziz Orujev

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

Baku City Sabayil District Court

Case № 4(009)-812/2023

27 November 2023

Presiding judge: Ulviya Shukurova

Defendant: Aziz Orujev

Defender: Bahruz Bayramov

 

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

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

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

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

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

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

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

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

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

Orkhan Hajili

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

Baku City Yasamal District Court

Case № 4(004)-858/2023

2 November 2023

Presiding judge: Rashad Javadzade

Defendant: Orkhan Hajili

Defender: Neimat Karimli

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

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

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

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

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

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

 

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

 

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

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

The judgment of the European Court of Human Rights in the case of Kurt v. Turkey of 25 May 1998 states:

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

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

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