IF YOU ARE OPPOSITION MEMBER, YOU’RE GUILTY OF SPREADING COVID-19
Analysis of violation of law during Mahammad Imanly’s judicial proceedings
Baku City Sabunchi District Court
Case №1 (008)-400/2020
1 December 2020
Judge: Mirheydar Zeynalov
Defendant: Muhammad Imanly
Defender: Asabali Mustafayev
The State Prosecutor: Amin Shakaraliyev
On 16 July 2020, Muhammad Imanly, a member of the People Front Party of Azerbaijan (PFPA) at Sabunchi district was arrested by the police officers from the 13th Department of the Baku Sabunchi district.
A day prior his arrest, on 13-14 July, there were intense clashes in Tovuz district on the Azerbaijani-Armenian border. As a result of those fights eleven Azerbaijani militaries were killed including the general Polad Hashimov and colonel Ilqar Mirzoyev.
On 15 July 2020, a large rally and demonstration in support of the Azerbaijani army was held in Azerbaijan. A large number of people were marching a long way from the city of Sumgait to the center of the capital of Baku. The protesters passed by the President administrative building and approached the Parliament. According to eyewitnesses, a small group of strangers burst into the Parliament building and damaged the state property. The rally participants said that those people had been provocateurs who had been sent to break the law. On the photos made during the rally, there were captured some employees of the State Security Service.
After 15 July, there were arrests of PFPA functionaries who were accused of premeditated destruction or large-scale property damage, organization of actions facilitating violation of public order or active participation in such actions, as well as resistance or use of violence against the authorities.
Having participated in the rally Muhammad Imanly marched only up to the “Koroglu” metro station that was a 20-minute walking distance away from the city center, after which he returned home.
Next morning the district policeman came up to M. Imanly’s apartment and asked to follow him to the 13th police station of the Baku City Sabunchi District Police Department. Muhammad Imanly spent there for 4 days, and during that time his family was not informed about the reasons of his detention.
A few days later Muhammad Imanly was brought to the trial. He was prosecuted for the crime commission in the crimes under the Article 139-1.1 (Violation of the anti-epidemic regime, sanitary and hygienic or quarantine procedures) of Criminal Code of the Azerbaijan Republic.
On 22 July 2020, the Baku City Sabunchi District Court issued a ruling to impose a preventive punishment measure against M. Imanly in the form of 3-month detention. Taking into account M. Imanly’s health conditions, he was placed into the Penitentiary Service Specialized Medical Institution #3. During the whole period of his arrest M. Imanly was not allowed to communicate with his immediate family members, relatives or friends. The family was not informed about his condition and the reasons for his arrest. Imanly’s lawyer wasn’t allowed to see him either.
- Imanly’s defence filled an appeal against the Sabunchi ruling issued on 22 July 2020 to the Baku Appeal Court, however it was denied and M. Imanly was left under the arrest.
In September 2020, the defense filed a petition to replace the detention measure with a house arrest.
On 19 September 2020, the Baku City Sabunchi District Court rejected the defense’s petition and remanded M. Imanly in custody.
Upon the completion of the preliminary investigation, the criminal case was submitted to the Baku City Sabunchi District Court. A pre-trial hearing was scheduled on 29 October 2020, in the course of which M. Imanly’s lawyer appealed to the court with the following motions: on interrogation of additional witnesses, exclusion of some pieces of evidence from the list of evidences, and carrying out a press audio recording in the courtroom. The judge called for a case postponement due to some technical issues. At the hearing on 12 November the court again failed to provide the technical aspect of the petition.
On 30 November 2020, after having heard the several witnesses’ testimonies, the court announced the completion of the judicial investigation. Imanly’s lawyer objected to that, insisting to ask the court for questioning the accused’s family members and neighbors as witnesses, since the three police officers who were questioned at the trial claimed that M. Imanly had been detained on 20 July 2020. However, according to M. Imanly’s statement, he was detained by the district police at his home on 16 July 2020, whereas his family members and neighbors had been witnessing it. In the course of the trial, M. Imanly testified that he neither had known two of the police officers who appeared before the court, nor they had been engaged in his detention. The policemen testified that after having detained M. Imanly, they brought him to the Baku City Sabunchi District Police Department. In his turn, M. Imanly claimed that he had been brought to the 13th Division of the Sabunchi District Police Department and held over there for 4 days. M.Imanly testified that he had not had COVID-19, and at the time of the trial he had not either. He emphasized that during the detention for four-day-period at the 13th Division the Prosecutor’s Office interrogated him in connection with the demonstration in support of the army, which took place on 15 July 2020. He had been taken for questioning to the General Prosecutor’s Office Investigation Department, then brought back to the 13th Police Department of the Baku City Sabunchi District.
It was not until 20 July 2020, that he was transferred to the Baku City Sabunchi District Police Department, where a criminal case was opened against him based on the Article 139-1.1 of the Criminal Code of the Azerbaijan Republic. M.Imanly claims that he could not be a carrier of the infection.
According to his words, he was detained by the police officers who did not wear a protective suit. This once again confirms that he was not a carrier of the coronavirus infection. M. Imanly also testified that despite the fact that he had been placed in the Medical Institution, he was not administered any treatment there as he was not contagious.
- Imanly’s lawyer submitted the relevant authorization to the court (that was sent via SMS in Baku), according to which his client left his home on the day of detention, which was also an indication that M. Imanly did not have a disease.
In Azerbaijan, those, infected with the coronavirus are restricted in their movement, and the people living together with an ill person are immediately subjected to control. If M. Imanly had been a virus carrier, he would have been prohibited to leave his home (a prohibition sent via the same SMS). However, it did not happen, nor his family members were placed under monitoring. The lawyer asked the judge to pay attention to those undeniable facts.
The police, interrogated during the trial, testified that they carried out the operation in order to determine whether M. Imanly had been infected. The defense lawyer stated that according to the law, it was not within the authority of the police officers, thus they exceeded their authority. Therefore, the lawyer asked the court to exclude their testimony from the evidence. The court dismissed the lawyer’s petition.
The judge, announcing the completion of the judicial investigation, called on the parties to proceed with their statements. The State Prosecutor, making an accusatory speech, asked the court to find M. Imanly guilty of committing the alleged crime and sentenced him to 1 year 6 months of imprisonment. M. Imanly’s lawyer, making a defensive speech, asked the court to acquit the defendant.
On 1 December 2020, the Baku City Sabunchi District Court of issued a verdict against an opposition party (APFP) activist. The court found M. Imanly guilty of the charges and sentenced him to a-year-imprisonment at the general regime penal colony.
Commentary by an expert lawyer:
The court verdict is illegal and unjustified. M. Imanly was charged in accordance with the Article 139-1.1 of the Criminal Code of the Azerbaijan Republic. Criminal Code of the Republic of Azerbaijan. According to this Article, violation of the anti-epidemic regime, sanitary – hygienic or quarantine regime leads to the disease spread or poses a real threat of the disease spread, and it is punishable by a fine in the amount of two thousand five hundred to five thousand manats or restraint of freedom for up to three years, or imprisonment for a term of up to three years.
One of the striking violations in that case was the date on which the sentence should be calculated. As mentioned above, in the course of the trial M. Imanly testified that the district police officers arrived at his home and asked him to go to the Sabunchi district 13th Police Department on 16 July 2020, where he had been held for 4 days. The court did not verify M. Imanly’s testimony and did not take the initiative to establish the truth. It was enough to capture the video footage from the surveillance cameras installed outside the 13th Police Department, as well as inside its administrative building.
According to the Article 158.2 of the Azerbaijan Republic Criminal Procedure Code, the term of detention is to be calculated starting from the factual moment of the accused detention or, if he is not held, at the time of the implementation of the court decision on arrest as a restrictive measure. The following shall be included in the period for which the suspect or accused is detained on remand:
158.2.1. the period of detention and remand;
158.2.2. the period of house arrest;
158.2.3. the period during which he was detained in a medical establishment for an inpatient medical report under coercive procedural measures or on account of temporary illness.
The Article 158.2.4. states that the accusal sentence should be counted from the moment of detention outside the Azerbaijan Republic until the transfer to the body carrying out the criminal proceedings on the territory of the Azerbaijan Republic.
The actual detention of M. Imanly was dated on 16 July 2020, and in the sentence the effective date of the punishment was indicated as 21 July 2020. M. Imanly was illegally detained for extra 5 days.
The Article 148.6 of the Azerbaijan Republic Criminal Procedure Code states: “The detention of a person on the basis of suspicion of having committed a crime cannot last more than 48 hours, with the exception of the case stipulated by the Article 148.7 of the present Code. The detainee shall be informed of the charges prior to the expiration of the above-mentioned period, and, if the public prosecutor has submitted a request for detention, the detainee shall be brought before a court, in its turn the court shall consider the case without delay in order to rule on the choice of a preventive measure of detention against the person or on his/her release”.
According to the Article 5 paragraph 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
M.Imanly was detained with the violations of the specified criminal procedural norms.
The verdict stated that M. Imanly walked out of the house without authorization in the form of an SMS. However, in the course of the trial, M. Imanly’s lawyer submitted such a permission to the court, and indicated that his client had not been restricted in any way to leave the house. The court, distorting the case evidence in favour of the accused, issued an unlawful verdict.
At the trial, M. Imanly testified, but the court interpreted his testimony as a defensive one. However, in the verdict there were no reasons for such a conclusion.
There is also an objective suspicion with respect to the imposition of the sentence. In accordance with the Article 41.2 of the Azerbaijan Republic Criminal Code, punishment is applied with a view of restoration of social justice, correction of condemned and prevention of committing new crimes by condemned and other persons. According to the Article 58.1 of the Azerbaijan Republic Criminal Code, to the person, which is recognized as guilty in commitment of a crime, shall be appointed fair punishment in the limits provided by appropriate articles of the Especial part of the present Code, and in view of positions of the General part of the present Code. More strict kind of punishment from among provided for a crime shall be appointed only in case, if less strict kind of punishment cannot provide achievement of the purposes of punishment.
In accordance with the paragraph 2 of the Supreme Court Plenum Resolution “On the Practice of Criminal Sanctioning Impositions by the Courts” from 25 June 2003, “if the sanction of the article according to which an individual was found guilty provides for the imposition of lighter penalties in addition to the imprisonment, it should be considered as the basis of the sentence upon imposition of the punishment”.
The Article incriminated to M. Imanly stipulates penalties not related to imprisonment. Thus, the Article specifies the following penalties: a fine in the amount ranging from two thousand five hundred to five thousand manats, or the deprivation of freedom for up to three years, or imprisonment for up to three years. The Court did not specify in the verdict the reasons for imposing the most severe punishment in the form of imprisonment. Besides, there were no any negative consequences of the incriminated crime.
In imposing the punishment, the court should always take into account mitigating and aggravating circumstances. The court did not identify any aggravating circumstances in M. Imanly’s case. However, it did not take into account the mitigating circumstances.
According to the Article 59.1 of the Azerbaijan Republic Criminal Code, the mitigating circumstances are:
59.1. Circumstances softening punishment shall be following:
59.1.1. commitment for the first time, owing casual coincidence of circumstances, a crime which are not representing big public danger or less serious crimes;
59.1.2. commitment of a crime by the minor;
59.1.3. commitment of a crime by the pregnant woman;
59.1.4. presence of dependent on the person, who have committed a crime, of a juvenile child;
59.1.5. commitment of a crime by virtue of confluence at heavy vital circumstances or on motive of compassion;
59.1.6. commitment of a crime as a result of physical or mental compulsion or by virtue of material, service or other dependence;
59.1.7. commitment of a crime at infringement of conditions on legitimacy of necessary defense, detention of the person who has made socially dangerous act, emergency, proved risk, execution of the order or instructions;
59.1.8. commitment of a crime owing to illegal or immoral actions of the victim or in a condition of suddenly arisen strong emotional excitement (affect) caused by such actions;
59.1.9. to give himself up and to confess, active actions on disclosing of a crime, exposure of other accomplices of a crime, to search and detection of the property extracted as a result of a crime;
59.1.10. rendering of medical and other help to the victim after direct r commitment of a crime, voluntary compensation or elimination of the material and moral harm, caused as a result of a crime, attempt to come to consent with the victim, other actions directed on smoothing down of harm, caused to the victim.
59.1.11. a minimizing of harm to the victim’s life and health by providing medical or other assistance immediately after the commission of the crime;
59.1.12. reconciliation with the victim or the legal successor that is his close relative;
59.1.13. full, voluntary compensation or elimination of the harm caused by the crime;
59.1.14. partial compensation of the harm, inflicted as a result of a crime, or performance of other actions, entailing the reduction of the harm.
In the case of M. Imanly, there were mitigating circumstances (his guilt was not proven), such as the fact that he had two young children, one of which was one and a half years old and the other was just 4 months old (born one and a half months after the arrest of his father on 27 August 2020). Also, the court did not take into account the defendant’s first criminal record and his personality (his university education, young age, and good reputation).
The witnesses’ testimonies are crucial to the case. It is known that three police officers testified as witnesses in the case. The court interpreted their testimony as truthful and irrefutable, while the defendant’s testimony was not examined by the court. And the lawyer’s request to call up M. Imanly’s neighbours and family members to testify as witnesses was denied.
In this case, the court breached the principle of a fair trial. The trial dynamics suggest that fairness of a trial can solely depend on a full consideration of all the actions taken in those proceedings. There are two aspects upon which the jurisprudence focuses that concern mainly the evidence and observance of a defender’s rights. The witness’ testimony falls within the realm of evidence. It was mentioned above that the defence requested to question additional witnesses, the defendant’s family members as well as his neighbours. However, the court unreasonably denied the motion, thereby failing the initiative to establish the truth of the criminal case. Thus, the principle of adversarial nature and equality of the parties has been violated.
The necessity to avoid the parties’ inequality and ensure their equality has been repeatedly demonstrated within the practice of International courts. The equality of arms is intended to prevent, especially in the criminal proceedings, a defendant from being disadvantaged vis-à-vis the prosecution. Unfortunately, the denial of essential motions submitted by the defence and acceptance of the police testimonies as truthful and irrefutable led to M. Imanly’s unjustified conviction and a rather long imprisonment term.
The right to a fair trial is guaranteed by the Article 6 paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to this article, in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
“…The principle of equality of arms is part of the broader notion of a fair trial, which also includes the fundamental principle of the adversarial nature of the criminal process. The right to an adversarial criminal trial means, as for the prosecution and as for the defence, an opportunity to examine and respond to the observations and evidence submitted by the other party. The National legislation may fulfil this requirement differently but the legal procedure must guarantee that the adverse party will be aware of the comments and able to comment on them” (the Judgment of the European Court of Human Rights in the case of Belziuk v. Poland of March 25, 1998) – file:///C:/Users/User/Downloads/001-58145.pdf
An Article 6, paragraph 3 (d) states: “Everyone charged with a criminal offence has the following minimum rights to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
Unfortunately, the court did not grant the defence’s request to interrogate the other witnesses, thus violating the above-mentioned Norm of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Therefore, the state bodies, including the court, violated Muhammad Imanly’s right to freedom, guaranteed by the Article 28 (items I and II) of the Constitution of the Azerbaijan Republic, by the Article 14 of the Azerbaijan Republic Criminal Procedure Code, by the Article 5 Paragraph 1 of the European Convention on Human Rights, by the Article 9 Paragraph 1 of the International Covenant on Civil and Political Rights, by the Article 9 Paragraph 1 of the Universal Declaration of Human Rights, and by the numerous precedents of the European Court of Human Rights, rulings of which comprise recommendations