The deported individuals from Germany are sentenced to long terms of imprisonment

THE DEPORTED INDIVIDUALS FROM GERMANY ARE SENTENCED TO LONG TERMS OF IMPRISONMENT

Mutallim Orujev

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

Sumgayit City Grave Crimes Court

Case №1(124)-324/2022

21 October 2022

Presiding judge: Fahmin Qurbanov

Judges: Fikrat Aliyev, Hafiz Aliyev

Defendant: Mutallim Orujev

Defender: Nemat Karimli

The State Prosecutor: Samir Mammadov, a Junior Counsellor of Justice, Prosecutor of the Support to Public Prosecutions Department affiliated with the Serious Crimes Courts at the General Prosecution Authority of the Azerbaijan Republic

Several years ago, Mutallim Orujev, a member of the opposition Popular Front Party of Azerbaijan (PFPA), emigrated to Germany. However, he was not granted a permanent residency by the German authorities. While in Germany, Orujev together with other compatriots, took part in the rallies in defence of political prisoners in Azerbaijan.

On 1 June 2021, M. Orujev was deported to Azerbaijan. On arrival he went to the town of Quba, Azerbaijan.

On 22 October 2021, he was summoned to the General Prosecutor’s Office of Azerbaijan. There, he was kept from 6 a.m. to 11 p.m. On 23 October 2021, he was at home when he got a call from the Head of the Municipality who invited him to come over. His family did not know anything about his whereabouts for several days.

Mutallim Orujev has been charged with 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 Azerbaijan Republic. The Baku Narimanov District Court has selected a preventive measure in the form of detention in respect of Mr. Orujev. – https://www.ipd-az.org/ru/oppositionist-deported-from-germany-to-azerbaijan-arrested/

According to the investigation, around 11:30 a.m. on 23 October 2021, as a result of search operations in Quba district of Azerbaijan, Mutallim Orujev was detained while having in his possession 7.812 grams of the heroin drug.

The defendant M. Orujev who was interrogated at the trial testified that he had been summoned by the Mayor. In the morning of 23 October 2021, he was told that the police were to search his flat. On his way to the Municipal building, M. Orujev noticed that a car, the “Hyundai”, was following him. Two men got out of that car, handcuffed him and took him to the Quba District Police Station. A man sitting on his right searched M. Orujev’s pockets. At the police station he was told that he should admit a drug charge and that the charge would be a light one, under the Article 234.1 of the Criminal Code, and then he would be released in two days.

  1. Orujev consented to the condition thinking of his daughter’s birthday on 27 October. Further, M. Orujev testified that a bit later his lawyer came in, then officers of the Department for Combating Organised Crime of the Azerbaijani Ministry of the Interior Affairs handed him over to the Guba District Police Department. Moreover, M. Orujev testified that he was brought to the Chief’s office in the Department, where he was subjected to insults. Mr. Orujev was stripped naked, filmed and threatened with that video being circulated on social sites. Then the Chief of the department came in, beat him, put a bottle of champagne in front of him (threatening to rape him) and requested him to give up his political activities.

At the trial, the following witnesses were questioned: Elman Quliyev, an officer of the Main Anti-Drug Department from the Interior Ministry; Rovshan Mammadaliyev and Seymur Shabanov, both the operative officers from the Department; Tural Hajiyev, a representative of the Head of Quba District Executive Authority; Bahruz Badalov, the Deputy Head of the Quba District Police Department.

According to a forensic drug examination of 26 October 2021, M. Orujev had no signs of drug addiction and therefore did not require compulsory medical treatment.

The Court assessed M. Orujev’s testimony as “an attempt to avoid punishment or facilitate it”. However, the Court considered M. Orujev’s testimony given by him in the course of investigation as the true one.  Similarly, the Court did not find any aggravating or mitigating circumstances in the case.

On 21 October 2022, the Sumgayit City Grave Crimes Court issued a verdict against Mutallim Orujev: he was found guilty of committing a crime under the Article 234.4.3 of the Criminal Code of Azerbaijan Republic and sentenced to 7-year- imprisonment in the penal colony of general regime.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. First of all, we would like to recall some general requirements of the Criminal Procedural Legislation. According to the Article 6 of the Code of Criminal Procedure of the Azerbaijan Republic, the provisions of the legislation on criminal procedure of the Azerbaijan Republic shall be binding on all individuals and legal entities in the territory of the Azerbaijan Republic. Failure to comply with the requirements of the legislation on criminal procedure of the Azerbaijan Republic shall entail liability in the cases determined by the legislation of the Azerbaijan Republic.

There are essential principles of criminal proceedings that define the rules forming the basis of criminal proceedings, ensuring the protection of the individual and the citizen against unlawful restrictions to his/her rights and freedoms, and establishing the legality and justification of each criminal prosecution.

The principle of equality before the Law means that the authorities conducting criminal proceedings shall not grant to any person involved in criminal proceedings advantages on the grounds of nationality, social, sexual, racial, national, political or religious affiliation, languages, origin, financial or professional status, beliefs, place of residence, or any other considerations not justified by the Law.

As mentioned above, M. Orujev provided self-incriminating testimony at the pre-trial investigation. In the course of the trial, M. Orujev made a free statement outlining what happened to him at the time of his detention and explaining the reasons for self-incriminating testimony. According to him, he had been beaten, threatened with rape and distributing the video on social networks, being frightened of all that, he had provided the testimony that the law enforcement officers required. Regrettably, the Court assessed the inconsistency of the defendant’s confession as “an attempt to avoid punishment, or facilitate it”.

In accordance with the Constitution of Azerbaijan, Article 66, no one shall be forced to testify against himself/herself, his/her spouse, children, parents, brother or sister.

The Article 20 of the Code of Criminal Procedure of the Azerbaijan Republic states,

20.1. Nobody may be forced to testify against himself or his close relatives, or be prosecuted on this basis.

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

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

In the judgment of the European Court of Human Rights in the case of Saunders v. the United Kingdom dated 17 December, 1996, said,

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

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

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

According to the Article 138.1 and 138.2 of the Code of Criminal Procedure of the Azerbaijan Republic, proof shall consist in the obtention, verification and assessment of evidence in order to establish facts of importance for the lawful, thorough and equitable determination of the criminal charge. The prosecutor shall be responsible for proving the grounds for the criminal responsibility of the accused and whether or not he is guilty.

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 (Article 139 of the Code of Criminal Procedure of the Azerbaijan Republic).

The following are considered to be sufficient evidence in this criminal case:

  • the defendant’s testimony in the pre-trial investigation;
  • the testimonies provided by the police officers who detained M. Orujev;
  • a forensic drug examination report concerning the nature of the drugs found: the fact that the defendant was not suffering from drug addiction and therefore did not require a compulsory medical treatment.

As it can be clearly seen, the evidences in the case are rather one-sided, they are highly questionable and do not fully prove the guilt of the defendant.

The court did not take into account M. Orujev’s testimony concerning the use of physical pressure and blackmail against him. While in this case the Court should have asked the investigative authorities to examine the statement and make a legal assessment of the police officers’ actions.

The Article 146.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

That the notion that sufficient evidence has been collected for the prosecution means that the amount of evidence on the facts to be determined is such as to allow a reliable

and final conclusion to be reached on the case.

However, based on the evidence gathered in M. Orujev’s case, an outside observer can easily come to the conclusion that the evidentiary data in the criminal case is one-sided, incomplete, biased, and contradictory and does not prove the involvement of the accused individual in the found drugs in any way.

Hundreds of people have been deported from Germany to Azerbaijan over the past year and a half, eight of them were political activists. They all have been detained upon their arrival in Azerbaijan, subjected to physical pressure, and at least three of them have been charged under the Article 234.4.3 of the Azerbaijani Criminal Code. In all the cases, without any exceptions, the charges were based on prejudice, lack of conclusive evidence, inconsistent and superficial judicial conclusions.

The commented case of Mutallim Orujev was not an exception either. Like others, it lacks an evidentiary basis, the Court’s verdict lacks clear motivation, and the judgement lacks the proper legal assessment of the Court.

The most important point is that with regard to M. Orujev, a fundamental right of any democratic society – the Right to Freedom guaranteed under the Article 28 of the Azerbaijani Constitution, Article 14 of the AR Code of Criminal Procedure and Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms – has been violated.

The Right to Freedom, as a fundamental right that should be upheld in democratic societies, is also clearly regulated by the case law of the European Court of Human Rights. There have been many rulings against Azerbaijan, on the basis of which Azerbaijan pays compensation to applicants due to a gross violation of the Right to Freedom.