Even having evidence and witnessesconfirming innocence will not help the opposition member at trial


Shahin Hajiyev

Analysis of violation of law during Shahin Hajiyev’s judicial proceedings

Ganja Grave Crimes Court

Case №1(100)-168/2022

31 March 2022

Presiding judge: Khagani Samadov

Judges: Nural Aliyev, Dadash Imanov

Defendant: Shahin Hajiyev

Defender: Zabil Qahramanov

State Prosecutor: Zaur Qasymov, a Junior Counsellor of Justice, Prosecutor of the Department of State Prosecution Support at the Serious Crimes Courts under the Department of State Prosecution Support of the General Prosecutor’s Office of Azerbaijan Republic

Shahin Hajiyev, a member of the Popular Front Party of Azerbaijan (PFPA), was detained on November 26, 2021. A few days prior to his arrest, Hajiyev wrote on his Facebook page a post in which he compared the Azerbaijani President Ilham Aliyev to former Libyan dictator Muammar Gaddafi. According to the official information, they found 13 grams of drugs in his possession at the time of detention. Hajiyev, as well as his party associates, attributed his arrest to his strong political views, given that he had sharply condemned the actions of President Ilham Aliyev.

On the day of Shahin Hajiyev’s detention the Head of the Press Secretary of Azerbaijani Ministry of Internal Affairs, Elshad Hajiyev, declared that Shahin Hajiyev had been detained in connection with a specific incident and that his arrest had nothing to do with his political activities.

It is worth noting that Shahin Hajiyev is a chess teacher in the city of Ganja.

Shahin Hajiyev was 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 the Azerbaijan Republic. In the course of the trial, Shahin Hajiyev testified that the drugs had been put into his possession by the police and that the police officers had confiscated his computer during the search of his house.

Also, Sh. Hajiyev’s lawyer pointed out that the order on the special operation indicated a different name: instead of Shahin Hajiyev, it said the name “Mushfiq Isayev”. The investigative authority justified it as a “technical error”. However, this “mistake” occurs more than once in other documents.

During his detention in custody, Shahin Hajiyev was subjected to torture and ill-treatment, which was confirmed with a report issued at the detention centre. According to the report, there were injuries on Shahin Hajiyev’s calf and the knee area.

At the trial, Shahin Hajiyev testified that the police broke into his house forcing him out to the police station on November 26, 2021. The police officers slipped the drugs into his jacket pocket. While in the police department of the Ganja City Kyapaz district, he was tortured and forced to make a “confession”. Then, a lawyer by the name of Khatira was invited. Sh. Hajiyev told her about the torture that he had been subjected to. When she learned about the torture, she immediately left the department. As soon as the lawyer left, the police officers started beating him again. Approximately half an hour later, another lawyer, Ayaz Hasanov, turned up. Afterwards, a video of his “confession” was made. The police officers who had come from Baku forced him to admit that the drugs belonged to him. They also threatened to plant 1 kg of drugs if he refused to comply with their demands.

In a temporary detention centre, on November 27, 2021, he was once again beaten. Afterwards, Sh. Hajiyev was brought to his residence for a search. However, no drugs were found in the house. Videotaping was conducted throughout the search, however it was repeatedly stopped. Hajiyev testified that the drugs had not belonged to him, he had never used them and had never had a clue about any drugs at all. He does not consume alcohol or cigarettes, and leads a healthy lifestyle. The protocols available in the case file were signed under torture and he did not plead guilty either during the investigation or in the trial.

Elman Guliyev, Elmaddin Pashayev, Seymur Shabanov, Khasrat Askerov and Mehman Qurbanov, the police officers, were questioned as witnesses in the course of the trial.

Bakhtiyar Yusubov, a witness, testified that he had been in Shahin Hajiyev’s house on the day when the police broke in. The police officers stormed into the house, twisted Shahin Hajiyev’s hands and handcuffed him. Elmaddin Pashayev, who happened to be there, introduced himself as Elchin Mammadov. B. Yusubov asked the police officers to uncuff Hajiyev, but the officer in charge did not allow to do so. The police commander who also came there forbade him to say anything about what had happened in the house. Razi Alyshev was also at the time in the house, called 102 service and informed them of what had happened. The witness Razi Alyshev confirmed B. Yusubov’s testimony. It should be noted that on May 28, 2022, Razi Alyshev was also arrested on charges of illegal possession and distribution of drugs.

The testimonies provided by Bakhtiyar Yusubov and Razi Alyshev had not been taken as credible and assessed as having defensive nature.

On 31 March 2022, the Ganja Court on Grave Crimes issued a sentence to Shahin Hajiyev according to which he had been found guilty of committing crimes stipulated by the Article 234.4.3 of the Criminal Code of the Azerbaijan Republic and sentenced him to 6 years of imprisonment in a general regime colony.

Commentary by an expert lawyer:

The court verdict is illegal and unjustified. Keeping in mind that for many years the political and civil activists have been prosecuted under the Article 234 of the Criminal Code, the commented criminal case was not an exception. Practically in all cases, the defendants were able to prove the activists’ innocence in court, however, the Court convicted all of them without exception and sentenced to lengthy terms, while the charges were usually under the Article 234 with an aggravating clause “4”, i.e. Article 234.4 of the Criminal Code of the Azerbaijan Republic.

This case was no exception in terms of procedural irregularities either.

As stated above, Shahin Hajiyev had been beaten, what had been proved with the injuries on the detainee’s body by a certificate issued at the detention centre. That fact was not investigated at the trial, the judge did not take into account the defendant’s testimony and did not issue a ruling ordering the law enforcement authorities to investigate the allegation.

Torture and ill-treatment are well known to be prohibited by both domestic laws and international conventions. According to the Article 13 of the Code of Criminal Procedure of the Azerbaijan Republic, 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. And during a criminal prosecution nobody shall:

⦁ be subjected to treatment or punishment that debases human dignity;

⦁ be held in conditions that debase human dignity;

⦁ be forced to participate in carrying out procedures that debase human dignity.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3, prohibits torture and ill-treatment:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Neither the Article 5 of the Universal Declaration of Human Rights nor the Article 7 of the International Covenant on Civil and Political Rights have exceptions and specifically prohibit torture and inhuman treatment. There are no exceptions to these legal provisions.

Apart from the prohibition of torture, the domestic law forbids obtaining testimonies by means of torture and other unlawful measures.

According to the Article 15.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

⦁ the imposition of long-term or severe physical pain or acts which are detrimental to health, or any similar ill-treatment;

⦁ taking evidence from victims, suspects or accused persons or from other participants in the criminal proceedings using violence, threats, deceit or by other unlawful acts which violate their rights.

In the course of the trial, Sh. Hajiyev testified that the torture and inhuman treatment he had suffered was to obtain his “confessions” that were later used against him.

The law enforcement officers who carried out the investigation fully disregarded the existence of the Article 66 of the Constitution of the Azerbaijan Republic, which states as:

Nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister. Complete list of relations against whom testifying is not obligatory is specified by law.

The International Instruments refer to this Right as the “right to silence”. While the Right to silence is not explicitly stated in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article 6(1), the case law of the European Court of Human Rights (ECHR) nevertheless entails this right.

The Judgment of the European Court in the case of John Murray v. the United Kingdom from February 8, 1998, it stated in this respect, “On the matter of whether the drawing of adverse inferences from the Applicant’s silence infringed Article 6, the Court reasoned that it ought to be determined in the light of all the circumstances of the case. The Chamber determined that the Applicant had not been compelled to testify and the essence of the privilege against self-incrimination had not been destroyed. The Chamber therefore concluded that it should concentrate on the role the inferences played in the proceedings and conviction against the applicant. Concentrating on the role the inferences played, the Chamber cited the existence of the safeguards designed to respect the rights of the defence and to limit the extent to which inferences can be relied upon. Due to these safeguards and the strength of the evidence against Murray the Chamber found that the drawing of adverse inferences from Murray’s silence did not violate Article 6”. The Judgment also states that this Right is absolute (paragraph 47 of the Judgment). – https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22\%22CASE%20OF%20JOHN%20MURRAY%20v.%20THE%20UNITED%20KINGDOM\%22%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57980%22]}

The proper assessment of the case evidences by the court is an essential point in the judicial proceedings. As mentioned above, in the course of the trial, the police officers who testified against the accused and two witnesses (B.Yusubov and R.Alyshev) who testified in defence of Sh. Hajiyev had been questioned as witnesses. The Court’s attitude and assessment in respect to this set of evidence was to accept the police officers’ witness statements as irrefutable, and the testimonies provided by B.Yusubov and R.Alyshev as of a defence nature. Even though the witness B. Yusubov testified that he had been in Hajiev’s house when the police officers had broken in, and detained Shahin Hajiyev. He also described in detail what had happened there and how the detention had been carried out. Regrettably, the court did not take his testimony seriously and did not explain the reason for such an assessment.

In the Judgment of the European Court of Human Rights in the case of Khan v. Germany of 21 September 2016, it was written, “The Court reiterates that its task, under Article 19 of the Convention, is to ensure that the Contracting States respect the obligations deriving from the Convention. In particular, it must have no knowledge of legal or factual irregularities committed by a domestic court unless they would infringe the rights and freedoms protected by the Convention. While the Article 6 of the Convention guarantees the right to a fair trial, it does not set out any rules on the admissibility of evidence as such; that is the task of domestic law. The Court should not comment as a matter of principle on the admissibility of certain kinds of evidence, such as evidence obtained by unlawful means, or on the culpability of the applicant. It must ascertain whether the proceedings as a whole were fair, including both how the evidence was obtained, which implies an examination of the ‘illegality’ in question and, if another right protected by the Convention is affected, an examination of that violation.” – https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Khan%20%20v%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-166853%22]}

The presumption of innocence has also been violated. According to the Article 63 of the Constitution of the Republic of Azerbaijan,

I. Everyone is entitled for presumption of innocence. Everyone who is accused of crime shall be considered innocent until his guilt is proved legally and if no verdict of law court has been brought into force.

II. A person under suspicion of crime must not be considered guilty.

III. A person accused of crime does not need to prove his/her innocence.

IV. Proofs received against the law must not be used when administering justice.

V. Nobody may be accused of crime without the verdict of law court.

Article 21 of the Code of Criminal Procedure of the Azerbaijan Republic states,

21.1. 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.

21.2. 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;

21.3 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 presumption of innocence is also guaranteed by the Article 6 (2) of the European Convention and the case law of the European Court. The presumption of innocence seeks, above all, to protect the accused against a conviction unless the latter is found to be lawfully guilty. The presumption of innocence applies throughout criminal proceedings, regardless of the outcome of the investigation, and not only when considering the validity of the charge. Moreover, in exercising their powers, the judges must abandon the preconceived notion that the defendant has committed a criminal act, as the burden of proof lies upon the prosecution and any doubt is construed in favour of the defendant.

The European Court of Human Rights Judgment in the case of Allene de Ribemont v. France from August 7, 1996 states, “The presumption of innocence enshrined in Article 6 § 2 is one of the elements of a fair trial referred to in paragraph 1 of the same Article. This principle is violated if the Court convicts an accused while his guilt has not been initially proven. If there is no formal evidence to support that, the judge’s motivation must be such as to suggest that he presumed the accused to be guilty”.. – https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22\%22CASE%20OF%20ALLENET%20DE%20RIBEMONT%20v.%20FRANCE\%22%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57987%22]}

In the context of the violations of the rights listed above, there is a manifestation of discrimination against the defendant due to his political views. Discrimination is prohibited by the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 14, a violation of which is considered by the European Court in conjunction with its substantive articles. Thus, the Right to Freedom, the Prohibition of Torture, the Right to a Fair Trial (including the Right to Silence, the Right to Presumption of Innocence, etc.) must be considered in the context of the Article 14 of the European Convention, which once again confirms that Shahin Hajiyev was arrested on political grounds.