THE COURT HAS GROSSLY VIOLATED IMRAN ALIYEV’S PHYSICAL AND PSYCHOLOGICAL INVIOLABILITY, AS WELL AS HIS RIGHT TO LIBERTY
Imran Aliyev
Analysis of violation of law during Imran Aliyev’s judicial proceedings
Baku City Khatai District Court
Case № 4(011)-293/2024
19 April 2024
Presiding judge: Fuad Akhundov
Defendant: Imran Aliyev
Defender: Qanqa Ibrahimov
With the participation of Samir Ismayilov, a major of police and Senior Investigator at the Investigation Division for Serious Crimes within the Investigation and Inquiry Department of the Baku City Police Headquarters, and Abulfaz Huseynov, a Prosecutor at the Department for Supervision over the Execution of Laws in the Investigation, Inquiry and Investigative Activity of the Baku Internal Affairs Bodies Prosecutor’s Office.
On 18 April 2024, Imran Aliyev, the site www.meclis.info manager, was detained at Baku International Airport. While being detained, he recorded a video message saying that he had been about to leave the country for Istanbul, but he was detained by the border police. Following his detention, he was taken to the Baku City Police Department. The police officers searched Imran Aliyev’s house the same night.
Imran Aliyev became yet another journalist who was detained within the criminal case against Abzas Media under the Article 206.3.2 (Smuggling, is moving large amount through customs border of the Republic of Azerbaijan of goods or other subjects, committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic (CC AR) launched on 20 November 2023.
Both, the investigator and Prosecutor, applied to the Court with a request to choose a preventive measure against Iran Aliyev in the form of arrest for a period of 2 months and 1 day.
In the course of trial, I.Aliyev did not plead guilty to the charges and testified that the police officers had exerted on him psychological and physical pressure. He also stated that he had undertaken to appear upon the investigation and judicial summons and would not influence either parties in any way, and therefore asked the Court to dismiss the investigator’s petition and Prosecutor’s submission. The defendant’s lawyer also urged the Court to reject the above-mentioned petition and submission.
It should be noted that Imran Aliyev had visible bruises and hematomas under his eyes when he was brought to the Khatai District Court on 19 April 2024.
On 19 April 2024, the Khatai District Court issued a ruling against Imran Aliyev to satisfy the investigator’s petition and Prosecutor’s submission to impose a measure of restraint in the form of arrest for a period of 2 months and 1 day. It is also stated in the given ruling that it should be an investigation concerning Aliyev’s beating that is entrusted to the Baku City Prosecutor’s Office that carries out the procedural supervision.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified. According to the Article 12.1 of the Code of Criminal Procedure of the Azerbaijan Republic,
The judicial authorities shall observe the human and civil rights and liberties afforded by the Constitution to all participants in criminal proceedings.
This norm is designed to ensure the rights and freedoms, including those of detainees.
The Article 13.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that during a criminal prosecution nobody shall:
- be subjected to treatment or punishment that debases human dignity;
- be held in conditions that debase human dignity;
- be forced to participate in carrying out procedures that debase human dignity.
As stated above, at the trial, I.Aliyev voiced out his concerns about the use of physical and psychological pressure on the part of the police officers. The defendant recorded a video message taken at the airport prior to his detention, showing no injuries on Imran Aliyev’s face. After being detained, he was taken to the Baku City Police Department and then to the Khatai District Court; the photo is clearly demonstrated the hematomas on his face. During the period of time while I. Aliyev was under the investigation bodies’ surveillance on the way from the airport to the Court, therefore, his testimony and bodily injuries has been proving the evidence of ill-treatment he encountered while in the Baku City Police Department.
According to the Article 15.2 of the Code of Criminal Procedure of the Azerbaijan Republic, during the criminal prosecution the following shall be prohibited:
- the use of torture and physical and psychological force, including the use of medication, withdrawal of food, hypnosis, deprivation of medical aid and the use of other cruel, inhuman or degrading treatment and punishment;
- the imposition of long-term or severe physical pain or acts which are detrimental to health, or any similar ill-treatment;
- taking evidence from victims, suspects or accused persons or from other participants in the criminal proceedings using violence, threats, deceit or by other unlawful acts which violate their rights.
Besides, the right to be protected from arbitrariness and be treated with dignity is guaranteed by the Article 68 of the Azerbaijan Republic Constitution, stating that:
- Everyone has the right to the conscientious treatment that excludes arbitrariness by state bodies.
- The rights of a person who has been a victim of a crime and abuse of power shall be protected by the law. A victim has the right to take part in administration of justice and demand for compensation of losses.
- The state, together with civil servants, shall bear civil liability for damage caused to human rights and liberties and for the violation of their guarantees as a result of unlawful actions and inaction of public servants.
In 2002, Azerbaijan signed the European Convention for the Protection of Human Rights and Fundamental Freedoms and guarantees the rights of its citizens. The country is required not only to comply with the Convention norms, but also to change existing legislation and practices if they do not meet the Convention norms requirements.
Despite the existing norms prohibiting ill-treatment and abusive treatment in the Azerbaijani legislation, the practice during pre-trial investigation still remains rather disappointing. The torture and ill-treatment committed by the investigative bodies and police have been repeatedly described in the judicial precedents against Azerbaijan issued by the European Court of Human Rights.
Thus, the European Convention states in its Article 3 that no one shall be subjected to cruel, inhuman treatment, torture or punishment. This provision does not have any exceptions and is valid in all cases, even in such areas as the fight against terrorism and mafia, and also during the military operations. The purpose of the Article 3 is to protect an individual’s mental and physical integrity.
Accordingly, all the States have acknowledged the responsibility for their officials’ actions. If an individual claims in his/her own defence that he/she has been subjected to the treatment provided for in the Article 3 of the European Convention, there must be an effective formal investigation in order to determine the identity of those responsible and their punishment.
With regard to the visible injuries on Imran Aliyev’s face, the State authorities must therefore be able to establish the signs of ill-treatment occurring after a punch inflicted on the individual concerned and that the punch did not take place while the person had been deprived of liberty.
The judgment of the European Court of Human Rights (ECHR) in the case of Dikme v. Turkey dated 11 July, 2000, states,
“The Court recalls that if a detainee has been brought to the police station in good health and, by the time of his release, he has injuries, the State has an obligation to provide a reasonable explanation of the injuries origin, and if it fails to do so, then the Convention’s Article 3 should be applicable”. – https://hudoc.echr.coe.int/?i=001-58751
The ECHR also points out that the conduct prohibited by the European Convention, Article 3, is subject to the State party’s liability only if it is committed by those exercising public authority; moreover, it must be assumed that these practices are in breach of domestic law in all signatory countries. Consequently, the Article 3 violations are inherently unlawful and abnormal government practices.
The Paragraph 101 of the judgment of the European Court of Human Rights (ECHR) in the case of Dikme v. Turkey dated 11 July, 2000, states,
“The Court has previously held that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in … [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity”. – https://hudoc.echr.coe.int/?i=001-58751
Thus, we have examined the actions Illegality committed against Imran Aliyev while he was placed under the investigation bodies’ custody.
The Court, by issuing a ruling on a preventive measure for a period of 2 months and 1 day, also violated the provisions of the National Criminal Procedure Law, as well as the European Convention.
The grounds for the measure of restraint in the form of arrest are as set out in the ruling as:
- hiding from the body conducting the criminal proceedings;
- unlawful pressure on the parties involved in criminal proceedings;
- obstruction to the preliminary investigation by withholding the information relevant to the criminal prosecution;
- re- committing an act under the criminal law and posing a danger to the society, as well as
- the presumptive sentence for the offence that is punishable beyond 5 years.
It should be remarked that the commented judgement is practically identical to the other judgments on the imposition of preventive measures. The grounds listed above, as in the other cases, are not supported with any particular arguments or justifications that could legitimate the application of the strictest preventive measure. There are neither substantive nor procedural justifications in the ruling.
The substantive justifications mean the initial evidence confirming the accused’s involvement in the incriminated offence. The procedural grounds shall mean the grounds confirming legitimacy of a preventive measure impositions in the form of arrest and the totality of circumstances stipulated under the the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic.
Pursuant to the Supreme Court plenum Decision, paragraph 3, on “Judicial practice in cases involving applications concerning the imposition of measures of restraint in the form of arrest or house arrest” dated 3 November, 2009, the courts, in imposing a measure of restraint in the form of arrest, must not be limited to a formal enumeration of the grounds set out in the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic, they must verify the nature of each ground relating to a particular individual and whether it is confirmed by the evidence in the criminal case file. In this case, the nature as well as danger to the public posed by the accused person’s offence and information characterising his or her personality, including age, marital status, type of activity, state of health and other similar circumstances, must be taken into account.
There is the most important paragraph 4 of the above-mentioned Decision, which states that the Courts are to check the feasibility of applying a preventive measure other than arrest as provided for in the Article 154 of the Code of Criminal Procedure of the Azerbaijan Republic, and in granting applications for arrest, the inadmissibility of applying a preventive measure other than arrest must be substantiated.
In respect of Imran Aliyev, as stated above, there has been a gross violation of the fundamental right guaranteed by the Azerbaijani Constitution, Article 28, and Article 5(1) of the European Convention, as well as the right not to be subjected to cruel and inhuman treatment, guaranteed by the Constitution, Article 68, and Article 3 of the European Convention. In a broad sense, the violation of the above-mentioned Articles resulted in a failure to comply with an important right, the Right to a Fair Trial, enshrined in the European Convention, Article 6(1). The Court also failed to respect the judgements of the European Court of Human Rights (ECHR), stipulating the Right of the individual to Liberty and physical and psychological integrity.