FREEDOM IS NOT GUARANTEED TO A FREE-THINKING CITIZEN IN AZERBAIJAN
Elshan Alakbarov
Analysis of violation of law during Elshan Alakbarov’s judicial proceedings
Ganja City Grave Crimes Court
Case № 1(100)-290/2024
21 October 2024
Presiding judge: Natiq Aliyev
Judges: Mikayil Mammadzade, Dadash Imanov
Defendant: Elshan Alakbarov
Defender: Nadim Heydarov
The State Prosecutor: Zaur Qasimov, a Prosecutor from the Division for Support of the State Prosecution in Courts on Grave Crimes within the Support of State Prosecution Department at the General Prosecutor’s Office of the Azerbaijan Republic
On 21 October 2023, Elshan Alakbarov (born in 1978) was detained on 21 October 2023. He was charged under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic.
On 23 October 2023, the Ganja City District Court issued a ruling against Elshan Alakbarov in the form of detention for a period of 2 months in a pre-trial detention center.
According to the investigation, on 21 October 2023, at about 17.45, Elshan Alakbarov was detained during the operative-search measures in Ganja city. In the time of personal search it was found 10.154 grams of artisanal heroin wrapped in a cellophane bag in his trouser pocket.
The accused E. Alakbarov, interrogated at the trial, did not plead guilty to the charge and testified that on 21 October 2023, three police officers detained him at his workplace and brought to the police department. As they had put a shirt over his face, he could not see their faces. At the police station, he was taken from the back door straight to the Police Head. In the room there was a man who told him that he had been ordered to come from Baku. He took a package placed on the top of cabinet, put it in front of Elshan and said, “It is yours, take it and put in your pocket.” On which E. Alakbarov replied, “If it is mine, why it is in your office. The Head by the name Shahin hit him on his right ear and said, “I’m telling you once again, put it in your pocket and then you will serve just a year or a year and 6 months, after which you be free.”
- Alakbarov replied that he had never taken drugs and had nothing to do with it. Then Shahin said that if he would not do so, three policemen standing there would come to his house and place the drugs there. E. Alakbarov agreed to do what he was demanded. About an hour and a half later, a personal examination was carried out and videotaped. The video was interrupted several times at the moments when Shahin threatened E. Alakbarov.
At the last shooting, E. Alakbarov was forced to admit that he had been using drugs, that he had found them on the roadside, and when he wanted to throw it away, he was detained by the police officers. During the detention, his student, Emin Makhmudov, was next to him.
The police officer Orkhan Agazade, questioned as a witness at the trial, testified that on 21 October 2023, it was created an operational-investigation group on the basis of operational information. E. Alakbarov was detained on one of the avenues of Ganja city and brought to the Ganja Police Department. A narcotic drug weighing about 10 grams was found in the detainee’s pocket, it was packed and sent for expertise.
Further, the witness testified that in the course the detention E. Alakbarov was alone, no physical or psychological pressure had been applied to. Apart from him, the detention had been carried out by another police officer A.Khokmaliyev who also was questioned as a witness and confirmed Orkhan Agazadeh’s testimony at the trial.
Emin Makhmudov testified that he was next to E. Alakbarov at the time of detention. He was detained while leaving the shop. Two police officers, without identifying themselves, took him under the arms in their car. The third policeman was in the car and forced E. Alakbarov inside.
The conclusion of the Ganja City Necrological Dispensary from 31 October 2023 is proved that E. Alakbarov periodically took the drugs but he was not a drug addicted. Therefore, he was not required any compulsory medical treatment. E. Alakbarov was not registered in the mentioned dispensary.
There are the documents in the criminal case file confirming that E. Alakbarov has three young children, and also medical epicrises, which reveal that E. Alakbarov has an oncological disease, i.e. soft tissue sarcoma (soft tissue tumour of the frontal bone). As a result of the disease, he has the second disability group.
It is also revealed that E. Alakbarov’s son, Murtaza Alakbarov, suffers from a serious illness and needs other people for care and support.
The Court treated the defendant’s given at the trial testimony critically and considered it as the nature of defence, not supported by other evidence. At the same time, the Court noted that the accusation concerning the sale purpose had not been proved by the investigative body. There were no evidences that E. Alakbarov had engaged in a criminal conspiracy with anyone in order to sell the drugs.
In view of this, the trial substituted the previous Article of the Prosecution with a new one, 234.1-1 (Illegal acquisition or storage of drugs or psychotropic substances without the purpose of sale in an amount exceeding the amount necessary for personal consumption, committed in a large amount) of the Criminal Code of the Azerbaijan Republic.
On 21 October 2024, the Ganja City Grave Crimes Court issued a verdict against Elshan Alakbarov: he was found guilty of committing a crime under the Criminal Code, Article 234.1-1 and sentenced him to 3 years and 6 months of imprisonment in a general regime penal institution.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
No one doubts that the main principle of criminal proceedings is the principle of lawfulness enshrined in the Criminal Procedure Code of the Azerbaijan Republic (CPC AR), Article 10.
According to the Article 10.1 of the Code of Criminal Procedure of the Azerbaijan Republic, the courts and participants in criminal proceedings shall conform to the Constitution of the Azerbaijan Republic, this Code, other laws of the Azerbaijan Republic as well as provisions of the international agreements to which Azerbaijan is a signatory.
It means that all participants in the process should act only within the framework of the established law. Furthermore, they must comply not only with the provisions of national legislation but also those of the international laws, namely the Conventions and Covenants ratified by Azerbaijan.
The laws of the Azerbaijan Republic must comply with the international norms. According to the Article 151 of the Constitution of the Republic of Azerbaijan, if a conflict arises between normative legal acts of the legislative system of the Republic of Azerbaijan (with the exception of the Constitution of the Republic of Azerbaijan and acts adopted by referendum) and inter-state treaties to which the Republic of Azerbaijan is a party, the international treaties shall apply.
Despite the substantive norms mentioned above, the Courts are evasive, as can be seen in the case discussed below.
In any criminal case, one of the most important points is the evidence in the case.
As stated in the Article 124.1 of the AR Code of Criminal Procedure, the evidence in a criminal prosecution shall be credible proofs (information, documents, items) obtained by the Court or participants of the criminal proceedings.
The Article 124.1 of the Code of Criminal Procedure of the Azerbaijan Republic states, that 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.
According to the Article 125.1 of the Code of Criminal Procedure of the Azerbaijan Republic, if there is no doubt as to the accuracy and source of the information, documents and other items and as to the circumstances in which they were obtained, they may be accepted as evidence.
The Article 125.2 of the Code of Criminal Procedure of the Azerbaijan Republic indicated, 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;
- where the rules governing investigative or other procedures are seriously violated.
The following evidences are submitted as proof in the criminal case: the defendant’s testimony during investigation and at the court, the policemen’s testimonies, the forensic chemical and necrological expertise results, the reports of an investigation-operative group, the protocols of detention, personal examination, seizure of documents and etc.
The defendant described in detail everything that had happened since his arrest and named those who had been around him at the time. It is logical that other than his words there was no any other proof provided as he was in custody. However, the fact that the accused has described the threatening in detail, and testified freely before the Court, indicates that the pressure from the police officers took place. Again, in view of the poor practice of law enforcement agencies, and in particular in cases of drug offences, it is highly credible.
Despite the contradictions in the defendant’s testimonies, the Court did not take initiative to verify any, identify the perpetrators and bring them to justice. The Court only assessed the testimonies as being in the nature of a defence. The defendant’s testimony concerning the presence of another person at the time of his arrest was confirmed by a witness who was with him.
The Court preferred to believe the police officers’ testimonies, the ones who denied that the presence of another person at the time of arrest, although the interest of the police in the outcome of the case was obvious.
The Court also referred in its conclusion to the forensic necrological examination, which revealed the presence of narcotic substances in the defendant’s blood. If approaching the issue theoretically, it is certainly feasible. But the accusation was about the possession of a large-scale drugs, and it was directly linked to the discovered narcotics. Explaining that, the defendant testified he had nothing to do with the drugs. In this case, the Court was obliged to establish the attributability of drugs to the accused.
According to the Article 127.3 of the Code of Criminal Procedure of the Azerbaijan Republic, the expert’s opinion shall not be binding on the preliminary investigator, investigator, prosecutor or court; it shall be checked by the prosecuting authority in the
same way as any other evidence and evaluated in the light of all the relevant facts. If the opinion is not approved, a reasoned decision to that effect shall be given.
The Court’s tendency to believe the prosecution’s arguments and deny any of the defence’s is a sign of bias and partiality on its part.
According to the para 2 of the Article 127 of the Constitution of the Republic of Azerbaijan, judges shall consider cases impartially and fairly, observing equality between the parties, on the basis of facts and in conformity with the law.
The Court’s partiality can also be determined by violations of the presumption of innocence. The presumption of innocence is enshrined both in the Constitution, Article 63 and Article 21 of the AR Code of Criminal Procedure, as well as in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(2).
The Article 21.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that 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 Court did not construe the doubts and contradictions in favour of the accused. It rendered an improper legal assessment.
The judgment of the European Court of Human Rights in the case of Minelli v. Switzerland dated 25 March 1983, said,
“The presumption of innocence enshrined in paragraph 2 of Article 6 is one of the fair trial elements referred to the same Article, paragraph 1. This principle is violated if the court declares a defendant guilty while his guilt has not been proved beforehand. If there is no formal proof of guilt, the judge’s motivation should be given reasons to assume a defendant’s guilt.”- https://hudoc.echr.coe.int/?i=001-57540
The issues that judges discuss at the end of the trial, among others, also concern the imposition of punishment.
Thus, the AR Code of Criminal Procedures, Article 346.1, provides a complete list of issues. We shall examine those that the courts must consider in connection with imposing a punishment.
They are as follows:
- whether the accused should be punished for the act committed;
- whether there are grounds for punishing the accused for reoffending;
- which punishment to impose on the accused;
- whether the accused should serve the sentence;
- if the accused is sentenced to deprivation of liberty, to which penal or corrective institution he should be committed;
- whether it is necessary to impose additional penalties on the person found guilty of the offence, and if so, which penalty.
As indicated above, the defendant suffers from a cancerous disease and has a second disability group. He also has three children in his care, one of whom has a serious illness and needs constant assistance. However, the Court accepted only the presence of his children as mitigating circumstances in its judgement. But the defendant’s oncological disease and disability group were not taken into account. If a preventive measure in the form of arrest had been chosen prior to the trial, then the court was obliged to consider the necessity of such a measure during the proceedings. At the trial, all the evidence in the case had been compiled, examinations had been carried out and witnesses had been questioned. In such a case, given the defendant’s serious health problems, the Court was under an obligation to change the preventive measure to an alternative one not related to detention.
Thus, the AR CPC, Articles 155.2 to 155.2.2.2, provide that when considering the appropriateness of a preventive measure and the type of one to be applied to a particular suspect or defendant, the investigator, inquirer, prosecutor supervising the preliminary investigation or Court shall take into account the personality, age and health of a suspect or defendant, his/her occupation, family, material and social status, including the presence of dependents and permanent place of residence.
The Article 157.8.1 of the Code of Criminal Procedure of the Azerbaijan Republic states, according to medical opinion, the seriousness of the accused person’s illness makes it impossible to detain him on remand.
Thus, the biased and one-sided approach of the Court, its acceptance of the Prosecution’s evidence as irrefutable, its disregard of the defence’s arguments, its failure to investigate contradictions in the defendant’s testimonies and other procedural irregularities have led to the violation of the fundamental rights of the individual accused, i.e. the Right to Liberty and Personal Inviolability, the Right to Presumption of Innocence, the Right to a Fair Trial, the Right to Prohibition of Torture and Ill-treatment and other related rights enshrined in the National and International Norms.