ELKHAN ALIYEV WAS REPEATEDLY ARRESTED UNDER ADMINISTRATIVE PROCEDURE, BUT NOW THEY HAVE INITIATED CRIMINAL PROCEEDINGS
Analysis of violation of law during Elkhan Aliyev’s judicial proceedings
Baku City Sabunchi District Court
Case № 4(008)-595/2023
27 July 2023
Presiding judge: Mirheydar Zeynalov
Defender: Neimat Karimli
Defendant: Elkhan Aliyev
Javid Ahmadov — an investigator at the Sabunchi District Police Department Investigation Unit
The petition for arrest was filed by Ibrahim Lemberanskiy, a Sabunchi district Prosecutor
Elkhan Aliyev, a member of the Popular Front Party of Azerbaijan (PFA) participated in many rallies and actively expressed his position against the authorities on social networks, has been repeatedly arrested under administrative order.
On 26 July 2023, it was initiated a criminal case against E. Aliyev. He was charged with committing offences 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) 320.2 (Use of obviously counterfeit documents) of the Criminal Code of the Azerbaijan Republic.
The Press Service of Azerbaijani Ministry of Internal Affairs informed that Elkhan Aliyev, Yusif Aliyev and Vafadar Akhundov were detained in the course of investigative operations following a complaint. According to the Ministry of Internal Affairs information, the three aforementioned individuals sold a land plot in the settlement of Nardaran for AZN 57,000 to some civilian with forged documents.
It should be pointed out that a few days prior to his arrest, Elkhan Aliyev posted a video on his Facebook page saying that the authorities had been preparing a provocation against him. However, the Ministry of Internal Affairs claimed that his video was intended to insure his safety in advance.
E.Aliyev said on the video:
“I used to be engaged in buying and selling flats. But I haven’t been doing it for a few months. Then, a man called me and said that he was allegedly looking for a house to buy. I hesitated but showed him a few houses. The man has been following me for 10 days so far. He calls me every day and asks me to find him a house or a summer cottage. Today I also showed him one house that he didn’t like either. Now he has called me for a lunch to get to know me better. I have my suspicions. I’m telling it to let you know. I’m going to meet him now. I believe it’s a game. Yet I am still going to meet him.”
Asif Yusifli, a senior advisor to the PFA Chairman, attributes Elkhan Aliyev’s arrest to his harsh criticism of the authorities on the social networks, as well as to his active work as an organiser within the party, including his efforts in regard to the party’s state registration at the Ministry of Justice of Azerbaijan. See: https://www.amerikaninsesi.org/a/7200559.html
In the course of the trial E. Aliyev did not plead guilty and testified that he had not committed any crime and his actions do not constitute a corpus delicti. Also, Elkhan Aliyev indicated that he had a permanent place of residence and did not intend to hide from either the investigators or the court. He asked the Court to dismiss the arrest petition.
On 27 July 2023, the Sabunchi District Court of Baku City issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against E.Aliyev in the form of detention for a period of 3 months.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The Criminal Procedure Code of the Azerbaijan Republic, the Article 8, enumerates the criminal procedure objectives. This is:
- to defend individuals, society and the state against criminal attempts;
- to defend individuals against abuse of power in connection with the commission
- of a real or possible offence;
- to detect offences as early as possible, to investigate all the circumstances
- thoroughly, completely and objectively;
- to prosecute and to incriminate those who have committed offences;
- to conduct judicial proceedings in order to punish persons found guilty of
- committing offences and to acquit those who are not guilty.
We draw the reader’s attention primarily to the objectives of criminal proceedings mainly for the reason that this legal norm should be an essential basis for the law enforcement officers who carry out legal proceedings. Besides, all these objectives are important not only for them but also for the courts that hear the cases upon completion of the preliminary investigation.
The case of Elkhan Aliyev is no exception to the rule, it fully complies with the rules. Upon examination of the order on arrest it is obvious that the Court has used formal, abstract sentences. The ruling does not contain any facts or arguments to confirm the judgement.
The ruling lists the paragraphs of the Criminal Procedure Code of the Azerbaijan Republic Article 155, which provide the grounds for the application of preventive measures. According to this article, 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.
In their judgements, the Courts must clearly specify the particular grounds that justify the use of the harshest preventive measure. In the particular case, the Court merely listed those grounds.
It is significant that the Court also referred to the Article 155.3.1 of the Criminal Procedure Code of the Azerbaijan Republic, according to which the arrest and alternative measures of restraint may be applied to a defendant accused of committing an offence punishable by deprivation of liberty for a term exceeding 2 years. Although this provision is stipulated in the AR CPC, it contradicts to the International Norms, in particular to the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as to the precedents of the European Court of Human Rights (ECHR). It clearly violates the principle of presumption of innocence.
The Article 151 of the Constitution of the Azerbaijan Republic states:
“Whenever there is disagreement between normative-legal acts in legislative system of the Azerbaijan Republic (except Constitution of the Azerbaijan Republic and acts accepted by way of referendum) and international agreements wherein the Azerbaijan Republic is one of the parties, provisions of international agreements shall dominate”.
However, what we see in practice, as a general rule, is completely opposite. Although the law enforcement and judicial authorities refer to the norms of procedural legislation, they are totally forgetful about the Fundamental Law (Constitution), the obligation to comply with the provisions of International Law and the ECHR precedents mandatory for the Council of Europe member states.
Thus, in the case of Baranowski v. Poland judgment from 28 March 2000, the ECHR states,
“The ‘lawfulness’ of the detention from the point of view of the domestic law is an essential element but not a crucial one. The Court must be further convinced that detention during the period in question fulfils the objective of Article 5 para. 1 of the European Convention, in order to protect the individual from arbitrary deprivation of liberty. Therefore, the Court must be satisfied that the domestic law is in conformity with the Convention, including the principles enshrined or implied therein”.
As mentioned above, Elkhan Aliyev had published a video on Facebook in which he expressed his concerns about a dubious call and an equally dubious request from a stranger. Elkhan Aliyev anticipated his arrest, since he was engaged in active political activity. He had a permanent place of residence and a good record. These and some other arguments could have been the basis for choosing a preventive measure against him not involving an arrest.
According to the Decision of the Supreme Court Plenum of the Azerbaijan Republic issued on 3 November 2009 “On the Court’s Practice on Consideration of Applications Related to Precautionary Measures in the Form of Arrest and House Arrest”, the courts were advised to apply a preventive measure in the form of arrest only if the interests of society outweigh an individual’s right to freedom, i.e. if a person remains at large, this will cause adverse emotions in the society and cause danger to the public.
According to the Resolution of the Azerbaijan Republic Supreme Court Plenum, paragraph 3, it is stated that, in compliance with the legislation, there must be substantive and procedural legal grounds for imposing a preventive measure in the form of arrest against an accused individual. Also, according to the Resolution of the AR Supreme Court Plenum, the Courts should not be limited solely to the formal grounds specified in the Article 155 of the Criminal Procedure Code of the Azerbaijan Republic, whereas each ground must be verified in regard to a particular defendant. It should be taken into account the nature of the committed crime, its gravity, information concerning him/her, including age, marital status, kind of activity, and other circumstances.
The Plenum of the Supreme Court of the Azerbaijan Republic, in the Resolution, paragraph 8, states that the investigation in the above-mentioned procedure does not include the determination of a person’s culpability but rather the verification of the preliminary evidences indicated in the petition and the submission of those evidences indicating that the accused has committed an act stipulated by the criminal law, as well as the existence of procedural grounds for the imposition of a preventive measure. The Courts have also been ordered to pay particular attention to the completion and quality of the documents submitted to the Court by the pre-trial investigation body. As shown, the unjustified imposition of a preventive measure in the form of arrest results in a violation of the right to liberty in particular and of human rights in general.
The Right to Freedom is guaranteed under the norms of National and International Laws. Thus, the Right to Liberty is enshrined in the Constitution, Article 28, and in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5.
“This Norm refers to deprivation of liberty determined in the criminal context. It is clear that there is a close link between this form of deprivation of liberty and the guarantees that must be accompanied it. It is a corollary to this that any individual detained or imprisoned must be brought before a court, either for the purpose of considering deprivation of liberty or for a judgement on the merits. Nevertheless, there must be substantial grounds to justify the deprivation of liberty. The Convention stipulates that only a well-founded reasonable suspicion that an individual has committed a criminal offence shall justify deprivation of liberty. Therefore, the reasonable suspicion is an essential requirement under the Convention protection against an arbitrary deprivation of liberty. The existence of reasonable suspicion entails, in advance, the availability of facts or information that would convince an objective observer that a particular individual might have committed an offence. What qualifies as reasonable, however, depends on the totality of the circumstances” (“Precedents of the European Court of Human Rights”, Michele de Salvia, St. Petersburg, 2004).
Thus, as indicated above, the imposition of a preventive measure in the form of imprisonment in respect of Elkhan Aliyev was not legitimate, did not comply with the Norms of the Basic Law (Constitution), other laws and by-laws of Azerbaijan, the Norms of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the precedents of the European Court of Human Rights.