Rasi Humbatov “Unlawful imprisonment”
Analysis of violation of law during Razi Humbatov’s judicial proceedings
Baku City Narimanov District Court
Case № 4(005)-684/2021
8 Juky 2021
Judge: Vusal Qurbanov
Defendant: Razi Humbatov
Defenders: Azizaga Aliyev, Javad Javadov
State Prosecutor: Ahad Najafov, a prosecutor of the Investigation Unit of the Department Combating Organized Crime of the Ministry of Internal Affairs of the Azerbaijan Republic
Razi Humbatov, a member of the political opposition “Muslim Unity” organisation, was detained in the village of Jeyranbatan in the Absheron district on 7 July 2021. He had been fighting against narco-addiction and campaigning for a healthy lifestyle for young people within the framework of his political and public activities. It is worth recalling that the police detained the Chairman of “Muslim Unity”, Taleh Bagirov, as well as all the members of the “Muslim Unity” Board and about 70 residents of the Nardaran settlement, 40 km from Baku, in the course of the police operation on 26 November 2015. Presently, Taleh Bagirov and several members of the organisation, sentenced to long terms of imprisonment (from 14 to 20 years), are being held in the Gobustan maximum security prison. T.Bagirov has been sentenced to 20 years imprisonment.
While Razi Humbatov was in the Interior Ministry’s Department for Combating Organized Crime, his own chosen lawyer, Javad Javadov, was not allowed to see him. In an interview with “Voice of America” on the radio, the lawyer said,
“In spite of my request to meet with my client, I did not receive q permission to see him. I plan to prepare a complaint for judicial review, as well as an appeal against the restraint order”. – https://www.amerikaninsesi.org/a/müsəlman-birliyi-hərəkatının-üzvü-saxlanılıb-/5959473.html
Razi Humbatov was charged with an offence under the Article 234.4.3 (Large-scale drug trafficking) of the Criminal Code of the Azerbaijan Republic.
On 8 July 2021, at the closed court proceedings, the Baku City Narimanov District Court, having considered the matter of application of a preventive measure, ordered that R. Humbatov be detained in custody for a period of four months.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified. According to the Article 28 of the Constitution of the Azerbaijan Republic,
- Everyone has the right for freedom
- Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.
This right is enshrined in both National Law and International Treaties. For example, the European Convention for the Protection of Human Rights and Fundamental Freedoms states in the Article 5:
- Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.
According to the Article 9 of the International Covenant on Civil and Political Rights,
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
The Article 9 of the Universal Declaration of Human Rights also prohibits arbitrary arrest.
In the Article 153 of the Code of Criminal Procedure of the Azerbaijan Republic states:
153.1. Upon apprehension of any person, the prosecuting authority shall be obliged to ensure his rights under this Code, as well as under the Law of the Azerbaijan Republic “On ensuring the rights and freedoms of persons held in places of detention” for suspects or accused persons, depending on their legal status.
Under the Article 153.2 of the Code of Criminal Procedure of the Azerbaijan Republic, the rights of the detainee, that the personnel of the body conducting the criminal proceedings and the temporary detention facilities are obliged to ensure, and they are:
153.2.1. inform the detainee immediately after detaining him of the grounds for detention, and explain to him his right not to testify against himself and his close relatives as well as his right to the assistance of defence counsel;
153.2.2. take the detainee without delay to the police or other preliminary investigating authority’s temporary detention facility, register the detention, draw up a record and show him the detention record;
153.2.3. report each instance of detention, immediately after registration in the temporary detention facility, to the head of the appropriate preliminary investigating authority and to the prosecutor in charge of the procedural aspects of the investigation (this information shall be given in writing within 12 hours of detention);
153.2.4. secure the right of the person to inform others of his detention immediately after detention (the authority in charge of the temporary detention facility, on his own initiative, shall inform the family members of any detainees who are elderly, under age or unable to do so themselves because of their mental state);
153.2.5. provide opportunities for the person, from the moment of detention, to meet in private and in confidence with his lawyer and legal representative under decent conditions and under supervision;
153.2.6. if the detainee does not have a lawyer of his own, present him with a list of lawyers from the bar association offices in the vicinity of the temporary detention facility, contact the chosen lawyer and create an opportunity for the detainee to meet him;
153.2.7. if the financial position of the detainee does not enable him to retain a lawyer at his own expense, create an opportunity for him to meet the duty lawyer from one of the bar association offices in the vicinity of the temporary detention facility, at the state’s expense;
153.2.8. if the detainee refuses the services of a lawyer, receive his written request to that effect (if he evades writing the request, a record to that effect shall be drawn up between the lawyer and the representative of the temporary detention facility);
153.2.9. secure the right of any person who does not know the language of the criminal proceedings to use the services of an interpreter free of charge;
153.2.10. not treat the detainee in a way that fails to respect his personality or dignity, and pay special attention to women and persons who are under age, elderly, ill or disabled;
153.2.11. take the restrictive measure of arrest in respect of the detainee, and bring him to court in good time in order to ensure that the question of forcibly sending him to the place where the sentence or other final court decision is to be executed, replacing the penalty given to him with another or repealing his suspended sentence or conditional release is settled within the time limits provided for in Articles 148 and 150-152 of this Code.
Razi Humbatov was deprived of a number of his aforementioned rights. He was not informed at the time of his arrest of the reasons for his detention, his relatives were not made aware of his arrest, and the lawyer of his choice was not allowed to meet him.
There were no specific grounds in the court order that would justify the application of the most rigorous preventive measure, such as arrest.
The grounds justifying a preventive measure in the form of arrest could only be those set out in the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic, namely:
- hidden from the prosecuting authority;
- obstructed the normal course of the investigation or court proceedings by illegally influencing parties to the criminal proceedings, hiding material significant to the prosecution or engaging in falsification;
- committed a further act provided for in criminal law or created a public threat;
- failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;
- prevented execution of a court judgment.
The court order states the following grounds regarding the detention: hiding from the body conducting the criminal proceedings, obstructing the normal course of the preliminary investigation or court proceedings by means of illegal pressure on persons involved in criminal proceedings, concealing or falsifying materials relevant to criminal proceedings, recommitting an offence punishable by the criminal law or representing a danger to society, failure to attend without a valid excuse when summoned by the body conducting the criminal proceedings or otherwise evading criminal responsibility and serving the sentence, the identity of the accused, the nature and gravity of the incriminated offence, the intended sentence of more than 2 years.
Apparently, the court cited all the grounds set out in the Code of Criminal Procedure of the Azerbaijan Republic Articles, but it did not provide reasons or evidence that these grounds actually occurred in Razi Humbatov’s case.
In proclaiming the right to liberty, this Article refers to personal freedom in its classical sense, that is, the physical freedom of the individual. In order to determine whether a person is deprived of his or her liberty, it is necessary to take into account his or her specific situation and all the criteria, such as the type of offence, the length of imprisonment, the consequences and detention conditions of the measure in question. By virtue of the principle of an exhaustive list of cases in which a person may be deprived of liberty, detention is in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms only if this measure is applicable to one of the 5 cases listed exhaustively in the Article 5 of the European Convention. The list provided in this article cannot be interpreted in a broad manner, which greatly limits States’ flexibility.
Further, for deprivation of liberty to be compatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms, it must meet two conditions: lawfulness and legitimacy. Thus, the deprivation of liberty must first and foremost be lawful in terms of domestic law; in this respect, it is incumbent on the national judicial authorities to interpret domestic law in a particular area. That law must nevertheless be in conformity with the European Convention and the general principles enshrined in the European Convention must be respected. In particular, the domestic process must be fair and appropriate. The deprivation of liberty must also be justified, i.e. it must be in line with the purpose of one of the cases included in the exhaustive list contained in the article in question (European Court of Human Rights case law, Michele da Silva, 2004, St. Petersburg).
Razi Humbatov’s disappearance and the lack of any information concerning his whereabouts within 24 hours is in violation of the Article 5 of the European Convention, which is the responsibility of the state authorities.
In the judgment of the European Court of Human Rights (ECHR) in the case of Kurt v. Turkey, dated on 25 May 1998, the ECHR assessed the applicant’s disappearance as follows, “121. The Commission believes that the disappearance of the applicant’s son raises fundamental and very serious concerns in the light of the Article 5. The guarantees provided by this Article are essential to ensure the human rights set out in the Articles 2 and 3. If it is established that Yüzeyir Kurt was detained by the security forces on 25 November 1993, the responsibility for the subsequent fate of the applicant’s son lies within the Turkish authorities. The Government could rebut the presumption by providing a credible and substantiated explanation for Eüzeyir Kurt’s disappearance and evidence that the authorities had taken effective steps to investigate the reasons for his disappearance and their subsequent fate. Комиссия пришла к выводу о том, что ни одно из этих требований не выполнено. For this reason, the Commission concludes that the unconfirmed fact of Yüzeyir Kurt’s detention by the security forces and his subsequent disappearance is a clear violation of the human rights provided for in the Article 5 of the Convention.” –
In the paragraph 122 of the European Court of Human Rights judgment it is written, “The Court underlines the fundamental significance of the human rights protections, contained in the Article 5, against unlawful arrest or detention by the authorities in a democratic society. It is for that reason that the Court has repeatedly emphasized in its judgments that any deprivation of liberty must not only be in accordance with the substantive procedural rules of National Law but also meet the purposes of the Article 5, i.e. to protect the individual from arbitrariness on the part of the State authorities. This imperative requirement to protect an individual against any kind of abuse by the authorities is confirmed by the fact that Article 5(1) confines the circumstances under which a person may be lawfully deprived of his liberty, although these grounds cannot be interpreted vaguely, since they are exemptions from the fundamental human freedom guarantees”.
In view of the above, we conclude that the arrest of Razi Humbatov lacked any legitimate intention, did not comply with the requirements of National and International Laws, and also contradicted the European Court of Human Rights precedents, which are of a recommendatory nature for the Council of Europe member states.