IN AZERBAIJAN, NOT ONLY THE AZERBAIJANI CITIZENS BUT ALSO THE EUROPEANS HAVE BEEN ILLEGALLY ARRESTED
Hamza Mammadli
Analysis of violation of law during Hamza Mammadli’s judicial proceedings
Baku City Court of Appeal trial, Criminal Collegium
Case № 4(103)-83/2024
6 February 2024
Presiding judge: Ziya Shirinov
Judges: Ibrahim Ibrahimli, Vahid Sadiqov
Defendant: Hamza Mammadli
Defender: Aytan Aliyeva
With the participation of Turgay Nabiyev, an investigator of the 2nd Division of the Preliminary Investigation Department within the AR State Security Service Main Investigation Department
On 11 July 2018, it was initiated a criminal case under the Article 214-2 (Public calls for terrorism) of the Azerbaijan Republic Criminal Code (AR CC) on the fact of information distribution disturbing the public security, provoking chaos and potentially leading to fatalities or harming people’s health. The information was published on the Facebook page under the name of ‘Kamil Akhundov’ with the purpose of pressurising the State authorities in their decision-making process.
On 18 July 2018, Hamza Mammadli (born in 1991) was brought to that criminal case as an accused by the State Security Service. He was charged with the committing offences under the Articles 214-2 and 281.2 (Public appeals directed against the state, committed repeatedly or by group of persons) of the AR CC. Since H. Mammadli had been residing in Germany from 2015, he was just declared wanted in Azerbaijan.
It should be noted that the publications that triggered the investigative body’s suspicion concerned Yunis Safarov. In July 2018, in the city of Ganja, Yunis Safarov committed an armed attack on the Head of the city’s executive power, as a result of which the latter became incapacitated. Shortly after, the protests broke out in the city’s central square, there was an attack on high-ranking police officers. As a result, Yunis Safarov and many others were detained.
During the trials, all detainees were condemned to long-term sentences. The convicted who had nothing to do with those events were recognised by the human rights activists as political prisoners.
On 15 September 2018, the criminal case against H. Mammadli was suspended. But on 1 June 2023, when H. Mammadli returned from Germany to Azerbaijan, he was detained at the airport and the suspended criminal case was resumed.
By the decision of the Baku City Sabayil District Court, it was chosen a preventive measure against H. Mammadli for a period of 28 days. Then the term of the preventive measure was extended for another 4 months, and then until 28 January 2024.
In order to carry out an investigation, an investigator applied to the Court with a motion for another extension (3 months) of the preventive measure. On 23 January 2024, the Baku City Sabayil District Court issued a ruling to satisfy the investigator’s petition and extend the term for another 2 months, i.e. until 28 March 2024.
The defence, disagreeing with the ruling, appealed to the Court, requesting to quash the ruling of 23 January 2024 and dismiss the investigator’s motion.
The appeal was justified by the fact that H. Mammadli, while in Germany, obtained a medical diploma and worked as a doctor’s assistant in various clinics in Germany before returning to Azerbaijan. In February 2023, he applied to the German authorities in order to obtain citizenship. Having passed all the exams, Mammadli was issued German citizenship. He did not have any information concerning an investigation, opened criminal case against him, or an issued arrest order.
Furthermore, Mammadli’s family in Azerbaijan had not been informed about the criminal case investigation.
It was also noted in the complaint that he had not been engaged in any political activity in Germany and had no opposition views to the current government. The defence considered the investigation organ conclusions about supporting the events that had taken place in Ganja during 2018 to be incorrect, as Hamza Mammadli had not even known anything about the crimes incriminated against him. Moreover, Hamza Mammadli had not been a member of the ‘Council of the National Association of Azerbaijanis in Europe’, as stated in the indictment, and had no information whatsoever about the existence and activities of that organisation. Mammadli had never created the fake Facebook profiles mentioned in the indictment nor made any publications supporting the actions of Yunis Safarov. The defence also noted that it would not be possible to obstruct the investigation, conceal the case file or influence the investigative bodies in any way on the part of H. Mammadli. Besides, H.Mammadli’s family has a permanent place of residence, and they are unable to leave Azerbaijan due to the restriction of the right to movement. He has his own interest in the investigation of the criminal case, so he is committed to appear in a timely manner when summoned by the investigative body.
The investigator of the 2nd Division of the Preliminary Investigation Department within the Main Investigation Department under the State Security Service of the Azerbaijan Republic, who attended the trial, objected to the arguments of the appeal and asked the Court to dismiss the appeal and leave the ruling of the first instance Court unchanged.
On 6 February 2024, the Baku City Court of Appeal Criminal Collegium made a decision to satisfy the investigator’s petition to extend the term of the preventive measure in the form of arrest for 2 months and leave the first instance ruling of 23 January 2024 intact.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
According to the Article 154.1 of the Code of Criminal Procedure of the Azerbaijan Republic, a restrictive measure is a coercive procedural measure intended to prevent unlawful behavior by the suspect or accused during criminal proceedings and to ensure the execution of the sentence; it shall be applied in the cases described in Article 155.1 of this Code.
As can be seen from this Article, the main purpose of it is to suppress an unlawful behavior of a suspect or an accused.
According to the Criminal Procedure Law, unlawful behavior of a suspect or accused consists of the following:
- Committing an offence (the defendant may be directly involved in the criminal act);
- Concealment of evidence (destruction or concealment of evidence that can be used against him);
- Violation of the preliminary investigation conditions (e.g. failure to appear when summoned, breach of a non-departure undertaking, attempting to influence witnesses);
- Committing new offences (if the defendant commits a crime or offence while under investigation, this aggravates his or her situation);
- Obstruction of justice (the defendant tries to influence the course of the investigation, for example, by giving false testimony, falsifying documents or threatening witnesses).
All of the above can be used as evidence at the trial to prove the accused’s guilt or to assess behavior prior to trial.
In respect of H. Mammadli, it was initially chosen a preventive measure in the form of remand in custody, which was subsequently repeatedly and unreasonably extended. There is not a single fact or argument proving the likelihood of the accused’s unlawful behavior in the court ruling.
The election of the harshest preventive measure of arrest, specified in the Article 154.2.1 of the AR CCP, was not justified by comprehensible or specific arguments. Everything the Court noted in the judgement was abstract and formal.
According to the Article 155.1 of the AR CC, preventive measures may be applied in such cases when the data collected in the criminal prosecution provide sufficient grounds to believe that the suspect or accused has committed unlawful acts.
In the criminal case against H. Mammadli there were no any materials that provide sufficient grounds to believe that he had committed unlawful or criminal acts. Therefore, the use of a preventive measure in the form of arrest, and, most importantly, its repeated prolongation, is not legitimate and is outlawed.
What does it mean probability of absconding from investigation? The probability of absconding from investigation means there is a possibility that a person suspected or accused of an offence may evade investigation or justice. It includes such actions as:
- evading communication with law enforcement authorities,
- concealment or destruction of evidence,
- use of false documents or false alibis,
- fleeing or hiding from the investigation (e.g., leaving the place of residence, change of identity).
At the time of detention, it was taken H. Mammadli’s ID documents.
According to the 3rd paragraph of the AR Law ‘On Passports’, the passport is the only document that certifies the person’s identity and gives him/her the right to leave and enter the country. To cross the border, it is necessary to have the following documents: passport, printout of e-ticket, health insurance policy and other documents.
The Article 155.6 of the Code of Criminal Procedure of the Azerbaijan Republic states,
In all cases where a restrictive measure is applied, the passport or other document confirming the identity of the suspect or accused shall be taken from him and added to the prosecution file until the final resolution of the suspicion or charge.
Thus, the preparation of the above documents is impossible without notifying the appropriate institutions. H. Mammadli had no chance to leave Azerbaijan without a passport. Therefore, we conclude that the court’s argument that the accused may abscond from the investigation is only a mere suggestion copied from the Article of the AR Code of Criminal Procedure.
According to the Article 157.1 of the Code of Criminal Procedure of the Azerbaijan Republic,
In accordance with the principle of the presumption of innocence, if the connection of the person to the offence committed is not proven, he may not be arrested or unnecessarily detained on remand.
The Article 157.5 of the Code of Criminal Procedure of the Azerbaijan Republic states,
When examining the question of arrest as a restrictive measure, the court, if it decides that there is no need to isolate the accused from society by detaining him on remand, shall have the right to substitute house arrest for arrest. The court may simultaneously make its decision about arrest and resolve the matter of releasing the accused from arrest by granting bail, and if this release is considered possible, it shall determine the amount of bail. The court may review its decision about the inadmissibility of bail and the amount of bail at the request of the defence.
The Court did not consider whether alternative preventive measures other than arrest could be applied, nor did it consider the provision of guarantees by the defence. Furthermore, if the Court initially considered that there were grounds for believing that the defendant would commit an unlawful act prior to the trial, then those grounds were insufficient to extend the preventive measure.
The judgment of the European Court of Human Rights (ECHR) in the case of Smirnova v. Russia dated 24 July, 2003, states,
- The issue of whether a period of detention is reasonable cannot be assessed in abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. – https://hudoc.echr.coe.int/?i=001-61262
In view of the above, it should be pointed out that the Courts by issuing against Mr Mammadli unlawful and unjustified orders of arrest and extension of his detention violated the right of a citizen of the Federal Republic of Germany to liberty and security of person and the right to a fair trial, as enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1) and Article 6(1), respectively.