Afghan Sadigov, a journalist, went on a hunger strike immediately after being illegally convicted and in 82 days he fell into coma…
Analysis of violation of law during Afgan Sadigov and Sakit Muradov’s judicial proceedings
Baku Court on Serious Crimes
Case № 1 (101)-876/2020
3 November 2020
Presiding judge: Ilham Mahmudov
Defendants: Afgan Sadigov, Sakit Muradov
Defenders: Shahin Dadashev, Elchin Sadigov
The State Prosecutor: Jeyhun Azadaliyev, a prosecutor of the Prosecution Department of the AR General Prosecutor’s Office
Defendant’s representative: Laiga Hidayatova
Afgan Sadigov is a journalist, founder and editor of the Azel.TV website. Sadigov had previously been prosecuted, and human rights activists added him to the list of political prisoners. Thus, for the first time he was detained on 22 November 2016, on charges of committing a crime under the Article 127.2.2 (Deliberate causing of less serious harm to the health which was not dangerous to life of a victim and did not bring to any consequences, committed with special cruelty, tortures to a victim) of the Criminal Code of the Azerbaijan Republic. On 12 January 2017, the Jalilabad District Court issued a verdict against the journalist: he was found guilty of the incriminated crime and sentenced to 2.5 years of imprisonment. The Supreme Court of the Azerbaijan Republic changed that sentence to one year and six months. On 23 May 2018, Afgan Sadigov was released.
On 27 November 2018, the journalist was charged with an administrative offense under the Article 535.1. (persistent insubordination of legal request of policeman) of the Administrative Code of the Azerbaijan Republic and sentenced to 30 days of administrative detention.
On 13 May 2020, Afgan Sadigov was detained by the officers of the Main Department on Combating Corruption within the Azerbaijan Republic General Prosecutor’s Office. His lawyer, Elchin Sadigov, communicated with the Department, but he was not told what his client had been accused of. Following the arrest, Sadigov’s house was searched. His wife, Sevinj Sadigov, wrote on her Facebook profile, “My phone and computer were illegally confiscated. Yes, I consider it illegal. Afghan is accused of corruption, but they found only 30 manats at home. This arrest is not accidental and the customers are known. Then they took away manuscripts that belonged to Afgan. A writer or journalist has to write, what’s so surprising? Afghan has always been a target for his articles and remarks”.
Along with Afgan Sadigov, they also detained Sakit Muradov, the editor-in-chief of the website Xeberfakt.az.
Muratov was charged with the same charges that were brought against A. Sadigov.
On 13 May 2020, the Baku Binagadi District Court issued a preventive measure against Sadigov and Muradov: Sadigov was placed in custody for 4 months, Muradov was placed under the police supervision.
On 14 May 2020, the State central TV channel AzTV broadcasted a video allegedly proving Afgan Sadigov’s guilt in its “News” program, and also played a WhatsApp audio recording. On AzTV’s Youtube channel, the video appeared under the following title “Two journalists detained while soliciting and obtaining 10 thousand manats”.
The same day, the Head of the Press Service of the Azerbaijan Republic General Prosecutor’s Office, Eldar Sultanov, made a statement regarding the criminal case against the journalists. He said that the criminal case was initiated following a complaint submitted to the Main Anti-Corruption Department. ” The necessary investigative actions and operative-investigative measures have been carried out with regard to the case. Afghan Sadigov is detained under suspicion of committing criminal acts under the relevant articles of the Criminal Code. We will provide more information to the public later,” said Eldar Sultanov.
Sadigov was accused of committing crimes under the Articles 182.2.1 (Extortion committed on preliminary arrangement by group of persons) and 182.2.4 (Extortion committed with causing damage to a victim in significant size) of the Criminal Code of the Azerbaijan Republic. The other defendant in the case, Sakit Muradov, was also charged under these articles.
According to the investigation version, Afgan Sadigov, having colluded with his colleague, Sakit Muradov, the chief editor of the website Xeberfakt.az, threatened respectively Gunduz Aliyev on 9 May 2020 and Adil Khudadatov on 13 May 2020, to spread the evidence of their malfeasance. The journalists demanded 15 thousand manat cash from each, Gunduz Aliyev and Adil Khudadatov, in exchange for their silence.
On 29 June 2020, A. Sadigov’s wife, Sevinj Sadigova, held a protest in front of the building of the Prosecutor General’s Office’s Main Anti-Corruption Department. She stated that her husband’s case investigation was going wrong and that he was arrested for his critical articles. “Let my husband be released since they illegally arrested him. Release my husband from captivity. He is a prisoner in his own country. The charges against Afgan are very serious. How can it be that the journalist’s wife, the journalist who has bribed officials, couldn’t find enough money to visit him in prison. Have them come and see how we live. I’m left with two young children and I can’t support them. They should look at the livelihood of the officials who gave the order. Then they will see who is really corrupt”, said Sevinj Sadigova at the rally. The Deputy Head of the Department, Anar Mammadov, listened to S.Sadigova who told him about her husband’s unlawful detention.
At the end of the preliminary investigation, the case was referred to the Baku Court of Serious Crimes.
A preliminary hearing was scheduled on 10 August 2020. During the preliminary hearing, the defence filed a number of motions with the court, but the court denied them. A trial on the merits was scheduled on 1 September 2020. The journalist’s wife, as well as human rights activists and journalists, were not allowed into the courtroom. The reason given by the bailiff was that the coronavirus pandemic in the country was rampant, and therefore the courtroom could not accommodate more than 10 people. However, he did not explain to A. Sadigov’s wife who those 10 people were.
During the trial, the accused, Afgan Sadigov pleaded not guilty to the charges and testified that on 7 May 2020, Sakit Muradov called him from an unknown number and proposed to meet. S. Muradov said that it was a serious matter. The same day, they met in S.Muradov’s car parked not far from the “Baku” cinema. During the meeting, S.Muradov informed A. Sadigov that he could befriend the head of the Sumgayit City Executive Authority, Zakir Farajev and requested not to write any more critical articles about him. He also offered, just for the sake of friendship, to take money from an employee of the Sumgayit City Executive Authority, by the name of Gunduz, in the amount of 15 thousand manat. A. Sadigov asked S.Muradov what was his goal and interest in this case, to which S.Muradov replied that Gunduz was his relative. Later, A. Sadigov repeatedly tried to contact S. Muradov, but he failed. On 13 May 2020, S.Muradov called again to A.Sadygov and proposed to meet at the same place, in his car. During the meeting, S. Muradov handed Afghan Sadigov 10 thousand manats.
- Sadigov received the money, however, he returned 1 thousand to S.Muradov, and the rest he left in Muratov’s car.
During the trial, the accused Sakit Muradov pleaded not guilty to the charges and indicated that he had been the editor-in-chief of Xeberfakt.az since 2015. On 10 May 2020, Gunduz Aliyev, an employee of the Sumgayit City Executive Authority, called Sakit Muradov and said that Afghan Sadigov constantly wrote critical articles concerning the management of the mentioned structure. G.Aliyev also said that it bothered his organization, so they should meet to resolve the issue. Muradov agreed to meet and next day they met on the boulevard in Sumgayit. Gunduz Aliyev asked S.Muradov to talk to A.Sadigov in order to suspend publication of the critical articles regarding the management of the above-mentioned structure. In his turn Aliyev also offered money. A.Sadigov agreed to accept 15 thousand manat and promised to remove the published material from the website.
S.Muradov passed A. Sadigov’s consent to Gunduz Aliyev. Two days later, Gunduz Aliyev called S. Muradov and said that 15 thousand manats would be divided in two parts: at the beginning, it would be paid 10 thousand, and 5 thousand would be given within the next two months. Afghan Sadigov accepted. Having met with A. Sadigov, Muradov handed him 10 thousand manat, of which he received 1 thousand manat as a gestur of gratitude from A. Sadigov. As they were leaving the car, they were approached by the employees of the Anti-Corruption Department of the AR General Prosecutor’s Office. Then, he realized that it was an operational-search activity. Sakit Muradov stated that he repented of what he had done.
Laig Hidayatov’s representative testified in the court that Afghan Sadigov and Sakit Muradov had demanded 15 thousand manats in exchange for not spreading the evidence of the Sumgayit City Executive Authority malfeasance. She requested the court to sentence Afgan Sadigov to imprisonment and Sakit Muradov to a non-custodial punishment.
Gunduz Aliyev, interrogated as a witness at the trial, confirmed the testimony of the representative and added that he had not been aware of A.Sadigov’s and S.Muradov’s previous convictions. He also testified that two months prior to the operation, A. Sadigov stated that if he had not been paid, he would not have removed the discrediting information from the site and would have spread more facts of malfeasance concerning the Sumgayit City Executive Authority. This was said by Afgan Sadigov to Gunduz Aliyev.
The interrogated during the trial, Adil Khudadatov, testified that he was the Head of the Architecture and Construction Department at the Sumgayit City Executive Authority. In 2018-2019, Afgan Sadigov constantly published information discrediting his Department. The information concerned the embezzlement of public money, non-compliance with quarantine regulations, illegal deforestation on the territory and other illegal things. He also testified that in March 2020, Sadigov had been warned and asked to stop his publications. Further, his testimony was similar to that of Gunduz Aliyev.
On 11 June 2020, during the forensic examination it was found that the confiscated banknotes had been made with special protection in a typography and were identical to the real ones. Based on the report, “Nazarat 2020” (“Control 2020”) was inscribed on all the banknotes.
By the forensic audio expertise dated 30 June 2020, it was determined that audio files registered the voices of Afgan Sadigov, Sakit Muradov, Gunduz Aliyev and Adil Khudadatov and have been attached to the case file. Also, the expertise confirmed that the voices on the files had belonged to the above-mentioned persons.
The case file also contained a note that on 31 July 2014 Sakit Muradov had been found guilty of committing a crime under the Article 178.2.4. of the Azerbaijan Republic Criminal Code (Fraud causing significant damage) and fined with 2 thousand manats by the verdict issued by the Zaqatala District Court. On 4 July 2016, given the Amnesty Act, he was exempted from punishment in the form of a fine.
The court concluded that there were no grounds to exclude Afgan Sadigov and Sakit Muradov from the criminal liability.
On 3 November 2020, the Baku Court of Serious Crimes convicted the accused: Afgan Sadigov and Sakit Muradov had been found guilty of the incriminated crimes and sentenced: Afghan Sadigov to 7 years in a general regime colony, and Sakit Muradov to 4 years 11 months 29 days in a penitentiary with probation.
It should be noted that Afgan Sadigov had been on hunger strike since 4 November 2020. As a result of the hunger strike, the journalist’s health condition dramatically deteriorated. In January 2021, he was transferred to the Medical Institution of the Penitentiary Service within the Ministry of Justice of the Azerbaijan Republic. According to the journalist’s wife, he had lost weight, from 95 kg to 57 kg and had suffered with serious kidney, liver, and heart problems. According to the doctor, A.Sadigov’s condition was considered to be critical.
On 24 January 2021, Afgan Sadigov fell into a coma following 82-day-hunger strike.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified. Both defendants were charged with committing crimes under the Articles 182.2.1. and 182.2.4 of the Azerbaijan Republic Criminal Code. According to the Article 182, extortion, is requirement to transfer another’s property or right on property or commitment of other actions which is admitted as in property nature under threat of application of violence, distribution of data, dishonoring a victim or his close relatives, as well as by threat of destruction of property belonging to them is punished by restriction of freedom for the term up to three years or imprisonment for the term from three up to five years.
The Article 182.2 of the Criminal Code of the Azerbaijan Republic states:
182.2. The same act committed:
182.2.1. on preliminary arrangement by group of persons;
182.2.4. with causing damage to a victim in significant size – is punished by imprisonment for the term from five up to ten years with confiscation of property or without it.
The incriminated articles do not provide any alternative forms of punishment not involving arrest. However, the court may, at its own discretion, impose a suspended sentence. Both accused have the same charges under the same Azerbaijan Republic Criminal Code articles, but the imposed sentences are absolutely different. The court didn’t clarify the reasons why Afgan Sadigov had been sentenced to 7 years of imprisonment whereas Sakit Muradov got only 4 years 11 months and 29 days of suspended sentence. Both of them have small children, both had been previously convicted, though their convictions had been cleared so far.
Moreover, as mentioned above, both Afgan Sadigov and Sakit Muradov had been detained at the same time, on 13 May 2020. Yet, on 14 May 2020, Sakit Muradov was taken into police custody as a preventive measure, while Afgan Sadigov was subjected to the harshest measure, an arrest.
The text of the incriminated Article contains the phrase “spreading the information disgracing the victim or his/her close relatives”. According to the verdict, the interrogated in the course of the judicial investigation Adil Khudadatov testified what kind of information they considered to be discrediting and disgracing the Sumgayit City Executive Authority: the embezzlement of public money, non-compliance with quarantine regulations, illegal deforestation on the territory and others. As we can see, the above-mentioned facts relate to the functioning of this state structure, and the journalist’s duty is to inform the public about the obtained information and share his thoughts and ideas, including the critical ones. If this information was related to the illegal activities of the officials, there are no insults or slander in it, so it cannot be considered to be a disgrace aimed against someone’s dignity and reputation.
In the course of trial, Afgan Sadigov did not plead guilty and testified that he had first taken the money but then rejected it. This testimony was not verified by the court. Besides, the court neither did comment at all upon that testimony and nor gave any legal assessment of it.
Taking into account the testimony of the other defendant, Sakit Muradov, at first he stated his innocence, but then he said that he repented of what he had done. That was the reason for S. Muradov’s suspended sentence.
During the trial the court grossly violated the principle of the trial transparency. Neither the journalists nor human rights activists were allowed into the courtroom, even the journalist’s wife was not allowed into the courtroom. There was a video showing Afgan Sadigov’s wife talking to a court officer who did not let her in the courtroom. That video was broadcasted in the media. The prohibition was justified by the fact of the pandemic in the country. During the coronavirus pandemic, the principle of transparence was particularly grossly violated at all trials in Azerbaijan without exception.
According to the Article 127, paragraph V of the Constitution of the Azerbaijan Republic, in all law courts hearing of legal cases shall be open. It is allowed to have closed hearing of legal cases only if the law court decides that open hearings may result in disclosure of state, professional or commercial secrets, or that it is necessary to keep confidentiality with respect to personal or family life.
The Article 27.1 of the Criminal Procedure Code of the Azerbaijan Republic states: “While safeguarding state, professional, commercial, personal and family secrets in accordance with this Code, court hearings in criminal cases and on other prosecution material shall be held publicly in all courts of the Azerbaijan Republic.”
The court, not allowing those wishing to attend, explained the reason for the denial by the coronavirus pandemic, as well as the existence of the relevant informative recommendation issued by the Supreme Court of the Azerbaijan Republic on 15 May 2020.
According to the Paragraph 1.1.3. of the above recommendation, it is prohibited to gather more than 10 people at a single place in the courtrooms, including the administrative court buildings. Even this Supreme Court of the Azerbaijan Republic recommendation was violated. First of all, there were the defendants, defense attorneys, the prosecutor, the judge, and the secretary of the court session in the courtroom. It means that at least the journalist’s spouse could have been admitted into the courtroom. Secondly, according to the Paragraph 2.2.2 of the Decrees signed by the President of the Azerbaijan Republic “On Creation of Electronic Court Information System” from 13 February 2014, the court proceedings on criminal, civil, commercial, administrative and administrative offences can be conducted electronically. Despite the fact that the decree was adopted back to 2014, it was not implemented during the pandemic. Instead of ensuring the openness of the judicial process and providing the technical facility for online broadcasting to the parties, the courts preferred to carry out the trials behind closed doors. It is known that in Russia, for example, this is the practice during the new coronavirus pandemic. Trials in “sensitive cases” are broadcast via Youtube channels or the social network Facebook. There is another possibility to keep court proceedings open: by providing technical support services to the courts, i.e. putting a monitor in a place where it will be available for people who want to watch the trial. All of the above indicates that the Azerbaijani courts were not intended to carry out trials openly, that is why none of the opportunities provided by the legislation has been used.
The principle of transparency is protected by the norms of the International Law, in particular by the Article 6, paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, by the Article 14, Paragraph 1 of the International Covenant on Civil and Political Rights, as well as by the Article 11, paragraph 1 of the Universal Declaration of Human Rights.
Thus, one of the fundamental fair trial principles, the principle of transparency, was grossly violated by the Baku Court of Serious Crimes.
The National and International laws are protecting the presumption of innocence. In this case, the media released a video made during the operational activities, in which it was shown Afgan Sadigov’s detention by the officers of the Anti-Corruption Department of the Azerbaijan Republic General Prosecutor’s Office that took place in S. Muradov’s car. The purpose of the video broadcast was to portray the journalist as an extortionist.
According to the Article 21 of the Constitution of the Azerbaijan Republic:
21.1. Any person suspected of committing an offence shall be found innocent if his guilt is not proven in accordance with this Code and if the court has not delivered a final judgment to that effect.
21.2. Even if there are reasonable suspicions as to the guilt of the person, this shall not cause the latter to be found guilty. The accused (the suspect) shall receive the benefit of any doubts which cannot be removed in the process of proving the charge in accordance with the provisions of this Code, within the appropriate legal proceedings. He shall likewise receive the benefit of any doubts which are not removed in the application of criminal law and criminal procedure legislation;
21.3 The accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defence of the suspect or the accused.
The presumption of innocence principle is enshrined in the Article 6, Paragraph 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It states, “Everyone accused of a criminal offence shall be presumed innocent until his guilt has been proved in accordance with a lawful procedure”.
Similarly, the Article 14, Paragraph 2 of the International Covenant on Civil and Political Rights and the Article 11, Paragraph 1 of the Universal Declaration of Human Rights protect the presumption of innocence.
It is forbidden to violate the principle “the presumption of innocence” by the European Court of Human Rights for the member countries of the Council of Europe. However, there are multiple precedents. Thus, in the judgment of the European Court in the case of Salabiacou v. France issued on October 7,1988, it is written, “Any legal system recognizes presumptions based on facts or Law; The Convention does not, in principle, create any obstacle to this, but it obliges the Contracting States, within the realm of criminal law, not to exceed a certain limit in this respect.
There is no reasoning in the court verdict. According to the Article 349.3 of the Criminal Procedure Code of the Azerbaijan Republic, the court judgment shall be lawful and well-founded.
The Article 349.5 of the Criminal Procedure Code of the Azerbaijan Republic states:
349.5. 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 investigated.
As it is clear in the verdict, there was insufficient evidence in the criminal case to determine the charge. In addition, the court’s finding was based solely on the evidence gathered during the investigation. The justified motions submitted by the defense were unreasonably denied by the court, which prevented the determination of the truth in the case as well as a comprehensive, complete and objective examination.
The illegal, groundless and unsubstantiated verdict actually cost the journalist his life. Afghan Sadigov, who began a hunger strike immediately following the verdict, and who did not receive the necessary medical care, fell into a coma on 24 January 2021…