IF YOU ARE AN OPPOSITION MEMBER,
THEN YOU ARE GUILTY
Analysis of violation of law during Tazakhan Miralamly’s judicial proceedings
Baku City Khatai District Court
Case № 1 (011)-139/2020
19 June 2020
Judge: Farid Yaqubov
Defendant: Tazakhan Miralamly
Defenders: Sara Aliyeva, Bahruz Bayramov
The State Prosecutor: Sadiq Akbarov, a prosecutor of the Baku Office within the State Prosecution Support Department of the General Prosecutor’s Office of the Azerbaijan Republic
Victim: Ata Abdullayev
Victim’s defender: Telman Talybov
On 26 February 2020, on the day of the Khojaly tragedy, Tazakhan Miralamly, a journalist and APF member, along with other members of the Popular Front of Azerbaijan, attended a ceremony that took place in front of the monument commemorating the victims of the horrible massacre in Khojaly. Ata Abdullayev, a pro-government blogger known as a provocateur in opposition circles, was also there at the mourning ceremony.
Later, Abdullayev claimed that on that day, T. Miralamly slapped him in his face, leaving traces and bruises on the impact. T. Miralamly, in his turn, stated that he had never inflicted any bodily injuries to Abdullayev.
In March 2020, A. Abdullayev posted on his Facebook page the investigator’s initiating order, however the defendant’s name was not disclosed. T. Miralamly denied that he had been informed about the initiation of criminal proceedings against him, although the investigator’s order was dated 11 March 2020.
The Criminal case against Tazakhan Miralamly was initiated under the Article 221.1 (Hooliganism) of the Criminal Code of Azerbaijan Republic.
According to the investigation version, on 26 February 2020, at about 2 p.m., T. Miralamly, a journalist, violated public order by striking Ata Abdullayev in the face without any reason, inflicting injuries that did not affect his health.
- Miralamly did not plead guilty to the charges, and testified that he, as a reporter in the newspaper “Azadliq” (“Freedom”), was filming the politicians who came to the monument of the victims of Khojaly, “Mother’s Suffering”, at about 13.00 on 26 February 2020. People who came to the memorial were allowed to visit just a few at a time. Ali Karimli, the leader of the Popular Front of Azerbaijan, was also among those who came to the monument. Ata Abdullayev abusively addressed A. Karimli and other people, which is seen in the video recording. Despite the requests of other journalists attending the ceremony to stop, Ata Abdullayev, paying no attention to anyone, continued loudly insulting Ali Karimli and other people. At some point when A. Abdullayev shouted “Ali Karimli, you committed the tragedy in Khojaly”, T. Miralamly approached A. Abdullayev and pushed him away. After that, T. Miralamly continued shooting or filming.
Т. Miralamly also indicated that after this incident he had had no relations, had not seen A. Abdullayev. In addition, he testified that he had not committed any criminal actions specified in the Article 221.1. of the Criminal Code of the Azerbaijan Republic.
On 19 June 2020, the Baku Khatai District Court ruled against the journalist: find Tazakhan Miralamly guilty of committing a crime under the Article 221.1 of the Criminal Code of Azerbaijan Republic and sentence him to 1 year of freedom restriction. The Court upheld the preventive measure against the journalist that had been previously chosen in the form of a abstaining from travelling. According to the sentence, the restriction of freedom was as follows: not to leave the place of residence from 23.00 to 07.00; to wear the electronic device and keep it in good condition; not to leave the boundaries of Baku city; not to change the place of residence without the court order as well as notify in advance about the change of the place of work or place of study.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified. As mentioned above, T. Miralamly was not informed about the initiation of criminal proceedings; he learned about it from Ata Abdullayev’s Facebook posting. However, the Article 224 of the Criminal Procedure Code of the Azerbaijan Republic stipulates the following procedure for bringing charges:
- Within 48 hours of the investigator’s decision to prefer charges, and, in any case, not later than the day when the accused gives himself up or is forcibly brought before the prosecuting authority, he shall be formally charged.
- After verifying the identity of the accused, the investigator shall inform him of the decision to prefer charges and explain the nature of the charges. The investigator and the accused shall sign the decision as confirmation of the formal announcement of the charges and its date and time. Defence counsel shall be entitled to attend the formal announcement of the charges.
- After announcing the charges, the investigator shall explain to the accused his rights and duties under Article 91 of this Code. The accused shall be given a copy of the decision to prefer charges and written notification of his rights and duties. The investigator shall draw up a record of the formal announcement of charges, explanation of the accused’s rights and duties and transmittal of a copy of the decision. This record shall be signed by the investigator, the accused and defence counsel (if present).
- If the accused or defence counsel refuses to sign the decision or the record, the investigator shall note this in the record, stating the reasons for it, and shall inform the prosecutor in charge of the procedural aspects of the investigation within 24 hours.
Having carefully read the verdict, it becomes clear that there is no further evidence of T. Miralamly’s guilt other than the testimony of two witnesses of the prosecution, or forensic medical examination of physical injuries. The testimony of prosecution were provided by Vadat Ismayilov, an acquaintance of Ata Abdullayev, and Rashad Borchaliyev, an employee of the agency www.xeber.az.
Forensic medical examination indicated that A. Abdullayev had blunt-force trauma on his jaw, and the injury could take place on 26 February 2020.
If we pay attention to the Article 124.1 of the of the Criminal Procedure Code of the Azerbaijan Republic, we will learn what evidence is. Thus, evidences in criminal proceedings are credible elements (information, documents, things) obtained by the court or parties of the criminal proceedings. Whereas in this case there are the following discrepancy:
124.1.1. 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);
124.1.2. 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.
Witnesses’ testimonies are not supported by any other proof, except for the forensic medical report from 29 February 2020. It is known that the expert opinion is not binding for an investigator, prosecutor or court; it, like any other evidence, must be checked and evaluated by the body conducting the criminal proceedings in connection with all the circumstances of the case.
In this case, the court accepted the statement as the principal evidence without supporting it with other reliable evidence. As mentioned above, the physical examination was carried out on 29 February three days after the incident.
Besides, the video where T. Miralamly ran up to A. Abdullayev was circulated in the social networks and sites, yet, the punch itself was not captured.
- Miralamly was accused of committing a crime under the Article 221.1. of the Criminal Code (Hooliganism). In order to incriminate this Article, a specific should be a crime, in this case hooliganism, with the following features:
- violation of public order;
- open manifestation of disrespect to society;
- use or threat or use of force;
- damage or destruction of someone else’s property.
The Decision of the Plenum of the Constitutional Court “On Interpretation of Article 221 of the Criminal Code of the Azerbaijan Republic” dated 20 May 2011, states that hooliganism is referred to the category of the crimes with regard to public order. The primary object of this crime is public order. A subsidiary object is human health, honour and dignity, as well as his/her property. Despite the fact that the wording of the Article 221 of the Criminal Code of the Azerbaijan Republic specifies different actions, they all have three essential features:
- these actions are supposed to violate the public order;
- they should be expressed in open manifestation of disrespect to society;
- the use or threat of force, including damage to or destruction of property.
There was no combination of all these three features in the journalist’s actions, which means that there was no criminal act.
In the criminal law, public order is understood as the combination of interpersonal relationships in society that ensure public order, individual and property inviolability, and the normal functioning of state and public institutions.
Actions that roughly violate public order are those that cause significant damage to public or private interests or the ones that are expressed in a biased violation of the rules of coexistence and etiquette established in society.
Gross violation of public order, manifested in flagrant disrespect for society are the actions of the violator threatening the normal life and activities of citizens, departments, enterprises and other organizations, and arousing fear and anxiety.
The term “use of force” should be interpreted as beating, harm to health, and other forms of violence that have a physical impact on the victim. The phenomenon of hooliganism violence is an expression of the intent to use physical force by means of words or actions. The liability for the threat arises when there are real grounds for implementation of the threat.
The total loss of the economic and historical value of other people’ property means that the property is completely lost, whereas the damage means that the property is not fully or partially fulfilled as intended, but damaged to the extent that it can be restored.
This refers to the definition of the characteristics of hooliganism specified in the Resolution of the Plenum of the Constitutional Court dated 20 May 2011.
According to the Article 87.1. of the Code of Criminal Procedure of the Azerbaijan Republic, if there are sufficient grounds to show that the individual suffered direct nonmaterial, physical or material damage as a result of the act provided for in criminal law, he shall be referred to as a victim.
Taking into account the lack of crime elements, A. Abdullayev could not be considered a victim, since there were not sufficient grounds in the case to assume that he had suffered from the physical harm caused to him by the offender.
The lack of criminal elements indicates the absence of the crime, i. e. the court issued a biased, one-sided, unmotivated sentence against the journalist.
According to the Article 349.5 of the Code of Criminal Procedure of the Azerbaijan Republic, in the following cases the court judgment shall be considered well-founded:
349.5.1. if the conclusions at which the court arrives are based only on the evidence
examined during the court’s investigation of the case;
349.5.2. if the evidence is sufficient to assess the charge;
349.5.3. if the facts established by the court are consistent with the evidence
Article 351.2. of the Code of Criminal Procedure of the Azerbaijan Republic states, that a conviction by the court may not be based on assumptions and shall be handed down only where guilt of the accused is proved during the court’s examination of the case.
This verdict is based on assumptions rather than on a set of concrete evidences and arguments. The motivation of the sentence is also provided by the Article 6 (1) of the European Convention on Human Rights and Fundamental Freedoms. Whilst this Article does not stipulate it, the numerous case law of the European Court of Human Rights has developed a practice whereby domestic courts are obliged to motivate the sentences handed down.