Ganja City Court on Grave Crimes passed a sentence on 11 defendants on so called “Ganja Case”
Ganja City Court on Grave Crimes
Court hearing was held at Baku City
Sabunchi District Court
February 22, 2019
Presiding judge: Natik Aliyev
Judges: Faiq Mahmudov
(speaker), Xaqani Samadov
Defendants: Maarif Hajiyev, Shahlar Rzayev Ruslan Hasanov, Tural Bayramov, Nizami Akperov, Kamal Magerramov, Araz Hasanov, Togrul Verdiyev, Orhan Yanqaliyev, Seymur Aliyev, Vagif Ashrafov
Public Prosecutor: Fuad MusayevDefenders: Aydin Kerimov, Jafar Jafarli, Ilgar Gadirov, Vugar Ahmedov, Elnur Nabiyev, Teyar Talibov, Teyar Mirzoyev, Samad Aliyev, Kamandar Huseynov, Orhan Yusubov, Zabil Qahramanov
Victims: Afgan Ismayilov, Tural Akperov, Vusal Safarov, Sarhan Nagiyev, Nijat Allahverdiyev, Sabuhi Jafarov, Samir Bayramov, Elnur Mammadov, Vugar Huseynov, Rashid Kazimov, Emin Hasanov, Asiman Mammadov, Asif Damirov, Ziyafat Hasanov, Medjid Qurbanov, Tural Qarayev, Nijat Hojayev
Legal heir of a victim: Leyli Abbasova (wife of a murdered Samad Abbasov);
lawyer: Rustam Zulfugarov
On July 3, 2018, around 20:30 (8:30 pm), the armed attempt was perpetrated, in Ganja city, on a Chief of the Executive Power of the city Elmar Veliyev. At crime scene, Police arrested the suspect Yunis Safarov, Russian citizen, who seriously wounded the Chief of the Executive Power, and his bodyguard. On July 4, 2018, Yunis Safarov’s photos with the traces of tortures and beatings were disseminated in Mass Media. The origin of these photos is still unknown. Investigation bodies deny any involvement with them, and unofficial sources bring various versions in regards of the origin of these photos. According to first version, while Yunis Safarov was at Police Department, he was beaten there by a son of the Chief of Executive Power Elmir Veliyev. According to second version, Yunis Safarov was beaten and tortured by the Head of the Criminal Investigation Department colonel – lieutenant Sarxan Ismayilov and the Chief Investigative Officer of Ganja City Main Police Department Qorxmaz Ibrahimov. After capturing the beating to his phone, Sarxan Ismayilov sent these photos to Elmir Veliyev – a son of Elmar Veliyev. Then, Elmir Veliyev disseminated photos in social networks for intimidation purpose. On July 10, 2018, a protest action took place in the center of Ganja, during which a Deputy Chief of Ganja City Main Police Department colonel Ilgar Balakishiyev and a Deputy Chief of Ganja City Nizami District Police Department colonel – lieutenant Samad Abbasov were killed. Immediately, the arrests of Ganja residents began. Farukh Qasimov was among the first detainees. Already on July 13, 2018, as a result of carried out operation by officers of law enforcement agencies in Shamkir city, Rishad Boyukkishiyev was murdered. He was accused in killing of the colonel Ilgar Balakishiyev. On July 21, 2018, Press Office of the State Security Service informed that during “armed resistance” previously convicted and wanted Anar Bagirov was killed in Khodjasan village of Binagadi District.
On July 25, 2018, a resident of Ganja city and a member of “Muslim Unity” movement Ali Huseyn oglu Sarhani was shot dead, according to law-enforcement agencies also during “armed resistance”. State Security Service also disseminated his photo, whereon Sarhani is lying with a gun in his hand.
It is interesting, how a person who was shot dead, managed to keep a gun in his hand, while falling down? And why would Aga Sarhani hold a gun in his right hand, when he is left handed? “Muslim unity” movement came forward with a statement, in which it clearly indicated “Under false accusations in organizing disorders in Ganja, innocent religious people are being murdered in Ganja, the members of the movement are chosen as targets, authority is trying to create fear in a society”
On July 28, 2018, during special operation of the State Security Service, Fuad Tofiq oglu Samadov was shot dead in Samukh city. According to State Security Service, F. Samadov was also killed during “armed resistance”, and that he was one of the active members “of the radical religious group” and participant of Ganja disorders.
On August 10, 2018, Muraz Rahimov was murdered by police during special operation in Sumqayit. According to law-enforcement agencies, he was also a member of the radical religious group and was killed during “armed resistance”. In the first half of August, due to events in Ganja, General Prosecutor of AR held a meeting whereat he informed that 77 persons involved in Ganja events were brought to justice, 13 were declared wanted, and 5 were killed. However, murders continued. On August 28, 2018, during special operation of State Security Service in Khachmaz district, accused in religious extremism and terrorism Niyazi Nadjafov was murdered during “armed resistance”. He was the 6th citizen of Azerbaijan, who was murdered in the period of July-August 2018, under murky circumstances…
All detainees on “Ganja case” were divided into groups. We will be describing below, the judicial proceedings on one of these groups.
Detainees were not provided with lawyers. After preliminary investigation ended, the case was transferred for a review to Ganja City Court on Grave Crimes. Despite the fact, that according to jurisdiction, the court had to be held in Ganja, the judges of Ganja Court on Grave Crimes were travelling to Baku, and the trial itself was held at Baku City Sabunchi District Court.
The indictment that was presented during the trial stated that on July 10, 2018, all of 11 accused participated in an unauthorized action, were involved in armed attack on police, and caused them physical injuries. During trial, accused persons said following:
Accused Shahlar Rzayev testified that he does not use any social networks, he has never been abroad, and that he joined action on July 10, because of a ban on Azan (call to prayer at mosques). He was not aware of the exact time of the action, and he found out about it through unknown people. Sh. Rzayev testified that he did not invite anyone to the action, during the action he expressed his protest by only shouting several times the slogans in support of Аzan. Police requested to stop the action. Police seized him, when he was shouting the slogans. Sh. Rzayev testified that he saw a man of medium height with a dagger in his hands, however he did not see anyone attacking police.
Accused Maarif Hajiyev testified that on July 10, 2018, he came to “Ganjlik Mall” in order to pay his phone’s loan, and he saw people near the office of the executive power. Suddenly, M. Hajiyev noticed a man who had a knife in his hand. This man approached a policeman (Samad Abbasov) and hit him from behind. It caused a stir, this man run away, while saying “We avenged Ali’s blood”.
Accused Tural Bayramov also did not plead guilty. He told that he found out about attempt on a chief of the executive power of Ganja City via social networks. On July 10, 2018, while in Baku, he also found out about the action via social networks. He returned from Baku to Ganja on July 10, around 20:00 (8 pm). On his way, he entered the mosque “Shah Abbas”, and then he went towards a square, whereat he was seized by police. He testified, that he did not cause anyone physical injuries, he is not acquainted with victims and those who were at the square.
Accused Nizami Akperov did not plead guilty and testified that he approached the square on July 10, 2018 around 20:00 (8 pm). There were a lot of people in civilian clothes and policemen. Then, he heard someone’s whistle, and the collision between people in civilian clothes and police began. Police applied tear-gas. The participants of the actions were forced to move away. N. Akperov said that he did not throw stones at anyone. It was done by men to whom he was not acquainted with. Police seized him, on Sabir street, nearby the mausoleum of Javad Khan.
Kamal Maharramov testified that he was working at clothing store. On July 10, 2018, around 20:00 (8 pm) the worker of the shop closed the store, and he went towards mosque “Shah Abbas”. When K. Maharramov was passing by the office of the executive power, he saw a crowd of people there, and his neighbor Sevil was among them. She was having an argument with a police regarding the closure of the roads. K. Maharramov also asked police about it and at that moment he was detained by police. When he was brought to police department, he found out about the murder of two policemen. He also testified that he did not throw stones on anyone, he does not use any social networks and he did not see under what circumstances the policemen were murdered.
Accused Araz Hasanov also did not plead guilty and told that, in 2009, together with his friends, he visited Iran and since then he started doing namaz (a prayer). He has account in Instagram. On July 3, 2018, he saw Yunis Safarov’s photo on Instagram, and “liked” it, but he did not share it. Araz said that he did not participate in the protest action on July 10, 2018, but together with his friends, he was at 20.30 (8.30 pm) in cafe, watching football. Then, he got into his car, drove through Ataturk avenue, in Ganja. When he drove up to his house, he saw several police cars, and police informed him that action is taking place. He also testified that he is not acquainted with Rashad Boyukkishiyev (who was killed, on suspicion of terrorism, during operation by the officers of the law enforcement agencies), he did not participate in action, and he did not cause anyone physical injuries.
During court, accused Togrul Verdiyev also did not plead guilty. He said that on July 10, 2018, approximately at 18:00 (6:00 pm) he left his office, and went to have a tea with his friends. Then, together with his friends, he went towards the square, where they sat under TV, which was placed at the square. Their acquaintance Turgut came there. There were a lot of police around the square. Suddenly, he saw a person with a dragger in his hand hitting a policeman. When they saw arrived officers of special division of the police, they run towards the market. There, he met with his acquaintance Ali, and they went home together. T. Verdiyev testified that he did not shout any slogans and did not cause anyone physical damage.
Accused Orhan Yanqaliyev, also did not plead guilty. He testified that on July 10, 2018 he was on commemoration of his relative, and around 14:00 (2 pm) together with his cousin, he went to his uncle. Approximately at 20:00 (8 pm) they passed near Ganja City Nasimi District Court, and policemen approached to his cousin Vugar and asked him to go with them to police department. Orhan Yanqaliyev approached to police and told a police that Vugar has diseased heart. After that policemen took them both. O. Yanqaliyev stated that he did not participate in the action, he did not cause anyone physical injuries, and during investigation, he gave his testimonies under tortures, and because of this he does not confirm this testimonies.
Accused Seymur Aliyev also did not plead guilty. He testified that he was not acquainted with Yunis Safarov. On July 8, 2018, he received a message on WhatsApp from unknown number about the intention to hold protest action on July 10, with a demand to expatriate a Chief of Executive Power of Ganja city Elmar Veliyev and his family from the city. That day, he went to the mosque to do namaz and was seized by police. He did not cause police any physical injuries.
Accused Vagif Ashrafov also did not plead guilty. He testified that he uses social networks and on July 3, 2018, he found out about the attempt on Elmar Veliyev from social networks. He saw a page in support of Yunis Safarov on Instagram. There was information about July 10th action on this page. Together with his friend, he went to the square, to observe the action. Approximately at 14:00 (2pm) V. Ashrafov went to the cafe to drink a tea, then together with his friend, they went to the club to play computer games and about 19:50 (7:50pm) they went to the square. There, they saw a public gathering, policemen were running towards people. He heard slogans and saw how young man in black shirt with dragger in his hand attacked police. Later on, he found out that the person’s name was Rashad Boyukkishiyev. After seeing all of these, together with his friend, he left this location. He said that he did not cause anyone physical injures and did not shout any slogans.
Accused Ruslan Hasanov also did not plead guilty. He testified that he is a believer, that is why he was visiting holy places. He found out about the attempt on the Chief of the Executive Power and planned July 10th action from social networks. On July 10, 2018, approximately at 19:00 (7 pm), together with his friend, he went to the tea club. Then they went to buy food in the nearest shop, because they started feeling hungry. After that they came to cafe to smoke narghile. At the same time they heard a noise, which was coming from the square. Hasanov’s friend stayed inside the cafe, but he went towards the square. There, Hasanov saw people who ran back and forth. He understood that something was wrong and went back. Police stopped him near the passage and asked for his phone. Then, they seized him, put him in the car and took him to the police department. He did not witness any violence by people, he did not participate in the action, he did not shout slogans, he did not see the murder of the policeman and he did not know anyone participating in the action. All the victims on a given case are policemen. All of them testified that accused participated in an unauthorized action, which according to investigation was organized by “radical powers”.
The majority of the witnesses are also the officers of the law-enforcement agencies. One of the witnesses Rufan Farzaliyev, who is not a police, testified that he was not far from the location whereat the action was held. He saw that unknown man in black shirt with a dragger in his hand hit the policeman. In his testimonies, he indicated that he does not know anyone who participated in the action, and among his friend no-one participated in the action.
Witness Vugar Allahverdiyev is a cousin of accused Orhan Yanqaliyev. He confirmed O. Yanqaliyev’s testimonies. He also added that when Orhan and he was detained, and taken to police department, the administrative protocol was made against them. Both of them were accused in committing of offence, and Ganja City Nizami District Court sentenced him to 20 days and Orhan to 15 days of administrative arrest. During court proceedings, both of them stated that they did not shout any slogans and did not show any resistance to police.
On February 22, 2019, after reviewing a case at the location of Baku City Sabunchi District Court, Ganja City Court on Grave Crimes, passed a guilty verdict towards all accused in committing crimes under Articles 220.1 (mass disorders) and 315.2 (resistance or application of violence concerning the representative of authority, dangerous to life and health) of the Criminal Code of the AR : 1 Maarif Hajiyev to 9 years in prison;
2 Shahlar Rzayev to 8 years and 6 months in prison;
3 Ruslan Hasanov to 8 years in prison;
4 Tural Bayramov to 8 years in prison;
5 Nizami Akperov to 8 years in prison;
6 Kamal Maharramov to 8 years and 6 months in prison;
7 Araz Hasanov to 7 years and 6 months in prison;
8 Togrul Verdiyev to 8 years in prison;
9 Orhan Yanqaliyev to 8 years and 6 months in prison;
10 Seymur Aliyev to 8 years in prison;
11 Vagif Ashrafov to 7 years and 6 months in prison;
Commentary by an expert lawyer:
The court decision is unlawful and groundless. According to criminal legislation, criminal proceedings are based on certain principles. One of the principles is the principle of validity. Punishment and other measures of criminal – legal nature instituted to the person, who has committed a crime, shall be fair, and shall correspond to nature and a degree of public danger of a crime, circumstances of committing it and nature of a guilty person. One of the most important things here is the circumstances under which a crime was committed In a reviewed case, the court did not consider all the circumstances. Court’s findings did not correspond to the circumstances of the case. Another affected principle of the same importance is a principle of humanism. This principle of humanism lays at the core of the infliction of penalty. A preliminary and court investigation should be based on this principle. During judicial sitting, almost all accused spoke about tortures and inhuman treatments, and giving evidences under tortures. However, this serious circumstance – forcing giving evidence under tortures, was not investigated by court. Court did not even show any initiative towards starting investigation of the fact of tortures. As can be seen from the verdict, all accused received long prison terms. However, there was not any clear and irrefutable evidence proving their guilt. One of the fundamental principles of the democratic society is the principle of presumption of innocence. According to Article 21.2 of the Code of Criminal Procedure of the AR, even if there are reasonable suspicions as to the guilt of the person, this shall not cause the latter to be found guilty. According to current Code of Criminal Procedure, 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; Given principle is also prescribed by Article 6 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms : “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” In given case, investigation did not introduce to the court any reasonable and irrefutable proves of the guilt of accused, and their guilt was not proved by court. The right to freedom was also violated towards accused. This right is prescribed by Article 28 of the Constitution of the AR: I. Everyone has the right for freedom. II. Right for freedom might be re stricter only as specified by law, by way of detention, arrest or imprisonment. This norm is also prescribed by Article 5 (1) of European Convention, which prohibits arbitrary arrests. Precedents of European Court on Human Rights, which are obligatory in nature for Member States of Council of Europe, also secure the right for freedom. Precedents of ECHR repeatedly underline the fact that for a detention of a person, the reasonable suspicions are necessary, which could convince wing side spectator that a given person has committed a crime. During detention, almost all accused were deprived of the possibility to inform their families and friends about the arrest and their whereabouts. This violation continued for several months, although Article 91.5.6 of Code of Criminal Procedure of the AR states: · to inform his family, relatives, home, workplace or place of study immediately after detention, by telephone or other means; · if a detainee is a foreigner or a stateless person, a diplomatic mission or consulate of the country to which a person is a national or a permanent resident, is immediately informed about it, in Azerbaijan Republic, or a national or international organization which took guardianship over him; The defendants spoke about the tortures to which they were subjected by law enforcement agencies. Many of them gave confessing testimonies under tortures. From the testimony of one of accused: “My hands, legs, and mouth were sealed with a tape and I was laid on the floor. They beat me in such position, and mocked me”. Another defendant told: “The period from July 11 till 20, I was kept with my eyes tied, I was beaten with a bludgeon on my feet, I was thrown on the ground and the heaviest person was seated on me they pulled out hair in a beard, used a current ”. Despite the fact that enough time had passed from the beginning of the trial, many defendants still had traces of handcuffs and tortures on their bodies. How does national and international legislation regulate the application of tortures and inhuman treatment? According to Article 46 of the Constitution of the AR: “Nobody must be subject to tortures and torment, treatment or punishment humiliating the dignity of human beings.” According to Article 9.2 of the Criminal Code of the AR, “Punishment and other measures of criminal – le gal nature applied to the person, who has committed a crime, shall not have the purposes causing physical” Criminal Procedure Legislation also prohibits the application of tortures and inhuman treatment. Article 13, of the Code of Criminal Procedure of the Azerbaijan Republic states: 13.1. It shall be prohibited to take decisions or allow acts during the criminal prosecution which debase the honor and dignity of the person or may threaten the life and health of the participants in the proceedings.13.2. During a criminal prosecution nobody shall:13.2.1. be subjected to treatment or punishment that debases human dignity;13.2.2. be held in conditions that debase human dignity;13.2.3. be forced to participate in carrying out procedures that debase human dignity. International law categorically prohibits tortures: Article 3 of European Convention, Article 5 of the Universal Declaration of Human Rights, as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 1 of the Convention against Torture defines “torture” in such way: ”the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public of official or other person acting in an official capacity.” Item 2 of the Article 2 of the Convention against Torture states that, tortures cannot be justified in no circumstances: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Even an order from a superior officer or a public authority may not be invoked as a justification of torture (Item 3 of Article 2 of European Convention against Torture). In cases, if there is information about the use of torture, state authority should put all effort to conduct full and objective investigation, to determine the circle of culprit and to call them to account. Article 12 of Convention against Torture states: “Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” Article 15 of Convention against Torture states following about the evidences received under tortures: “Each State Party shall ensure that any statement which is established to have been made as result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidenced that the statement was made.’ Despite of the fact, that there were many complaints by defendants on application of tortures and getting confessing testimonies from them under tortures, the court did not show any initiative to investigate these complaints. Since April 2002 (the date of ratification of AR – the European Convention for the Protection of Human Rights and Fundamental Freedoms) European Court on Human Rights adopted 18 decisions against Azerbaijan in regards of violation of Article 3 of European Convention. The bad practice of law enforcement agencies, whose officers apply torture, is repeatedly pointed out in the decisions of ECHR. But Azerbaijan does not implement these decisions. One of the conditions of implementation of the decisions is the adaptation of the individual and common measures, which means, that State, as Member Party of Council of Europe, must either change its laws in regards of prohibition of tortures or the bad practice. Despite of the fact, that sufficient time has passed, the practice of the application of tortures by law enforcement agencies not only remains unchanged, but also develops and widens.