THE LEGAL RIGHT NORMS WERE VIOLATED IN RESPECT OF TWO MORE ARMENIAN PRISONERS OF WAR
David Davtyan and Gevorg Sujyan
Analysis of violation of law during 2 Armenian prisoners of war judicial proceedings
Baku Grave Crimes Court
Case № 1(101)-1390/2021
July 28, 2021
Presiding judge: Ali Mammadov
Defendants: David Davtyan, Gevorg Sujyan
Defenders: Elnur Salmanov, Khanlar Qafarov
The State Prosecutor: Jovdat Mehraliyev, a prosecutor of the Division for Support of Public Prosecution at the Serious Crimes Courts under the Department for Support of Public Prosecution within the General Prosecutor’s Office of the Azerbaijan Republic
In September 2020, there were the violent hostilities between Azerbaijan and Armenia in and around Karabakh. As a result of the 44-day-war, Azerbaijani soldiers liberated several towns and many villages in Karabakh and the territory adjacent to it. Dozens of Armenian soldiers were captured in the course of military operations and were convicted and sentenced to the various terms of imprisonment.
Gevorg Sujyan, born on 1989, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 228.2.1 (Illegal purchase, transfer, selling, storage, transportation or carrying of fire-arms, accessories to it, supplies (except for the smooth-bore hunting weapon and ammunition to it), explosives committed on preliminary arrangement by group of persons), 276 (Espionage), 279.1 (Creation of armed formations or groups, which are not provided by the legislation of the Azerbaijan Republic, and also participation in their creation and activity, supplying them by weapon, ammunition, explosives, military engineering or military equipment) and 318.2 (Crossing of protected frontier of the Azerbaijan Republic, committed on preliminary arrangement by group of persons or organized group either with application of violence or with threat of its application) of the Criminal Code of the Azerbaijan Republic.
On 18 March 2021, the Baku City Sabayil District Court issued, in respect of Gevorg Sujyan, an order in the form of detention for a period of 4 months.
David Davtyan, born on 1993, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was charged under the Articles 228.2.1, 279.1 and 318.2 of the Criminal Code of the Azerbaijan Republic.
On 18 March 2021, the Baku City Sabayil District Court issued, in respect of David Davtyan, an order in the form of detention for a period of 4 months.
According to the investigation, the accused Gevorg Sujyan and David Davtyan, within a criminal group that took part in the conspiracy with the purpose of causing damage to the security of the Azerbaijan Republic, obtained the information constituting the State Secret of Azerbaijan and transferred it to the law enforcement bodies of the Republic of Armenia, thereby committing espionage. In addition, the accused had illegally acquired, carried and stored firearms, component parts thereof, ammunition, explosives, and explosive devices, as well as illegally crossed the State border of the Azerbaijan Republic.
At the trial, the accused Gevorg Sujyan has partially pleaded guilty, namely of committing a crime under the Article 318.2 of the Criminal Code of the Azerbaijan Republic.
Gevorg Sujyan revealed that he had been the founder of the “Charity” organization and distributed clothes to the refugees from Karabakh and soldiers who had fought there. Some of those people were in Khankendi and he also sent the charity aid to them. He was made by those people to announce it on his Facebook page. He used to bring the aid to the town of Goris and it was handed out to the soldiers. In order to show the aid-givers that he was really passing it on to the soldiers, G. Sujyan took pictures with the soldiers and mailed them to those people. He came to Shusha to pray in one of the churches following his visit to Goris, where he was interviewed by the media. Then, arriving in Khankendi, he made a video recording the situation of the people there, which he published on his Facebook page. G. Sujyan was in Khankendi two weeks prior to the end of the war. In Khankendi he approached two families in order to transfer them to Armenia. On the way out of Khankendi, his car was stopped by the Russian military, to whom he asked if he could continue on. The military replied he could. Having driven another 2 km in the direction of the Lachin corridor, he saw the Azerbaijani flag. The Azerbaijani servicemen that approached him, arrested him. The accused Sujyan asked the court to acquit him under the Articles 228.2.1, 276 and 279.1, and to impose a light sentence under the Article 318.2 of the Criminal Code of the Azerbaijan Republic.
At the trial, the accused David Davtyan has partially pleaded guilty, namely of committing a crime under the Article 318.2. of the AR Criminal Code, and testified that he had met Gevorg Sujyan in 2020. Having found out about G. Sujyan’s charitable organization, he expressed a wish to help. When the war started, he called Gevorg Sujyan and offered to bring clothes and food. After that, he constantly delivered the humanitarian aid to Khankendi. D. Davtyan testified that they had not participated in any military operations, but were only engaged in the charity work. On November 10, 2020, G. Sujyan called him to say that he needed help in Khankendi. On November 11, 2020, they passed through the town of Goris in Armenia and drove on down the Lachin corridor where the Russian military officers stopped them. The military let them drive on. Having driven about a kilometer along the Lachin corridor, they saw the Azerbaijani flag. The Azerbaijani military approached and arrested them. D. Davtyan testified that he had not committed any crimes against the Azerbaijan Republic and had only been engaged in a charity work. The accused also asked the court to acquit him under the Articles 228.2.1, 276 and 279.1, and to assign a light sentence under the Article 318.2 of the Criminal Code of the Azerbaijan Republic.
In the course of the preliminary investigation, the accused Gevorg Sujyan and David Davtyan provided incriminating testimonies and testified that they had really participated in the military actions against the Azerbaijani soldiers, had been armed with Kalashnikovs and by request of the Armenian National Security Service they had provided them with the information concerning the number, location of the Azerbaijani military and availability thereof with heavy military equipment. They also testified that when they had entered the city of Shusha, they had been aware that this territory was under the Azerbaijani military’s control. It was exactly there they were stopped by the soldiers of the Azerbaijani Armed Forces who asked them what they had been doing there. Confused, the accused were unable to answer the questions. They were detained due to their dubious behavior and illegal invasion into Azerbaijani territory.
It should be pointed out that the testimony provided during the preliminary investigation differed from the testimony at trial. The Court regarded their testimony at the trial as untruthful and having the nature of self- defense.
At the court, the soldiers of the Armed Forces of Azerbaijan Vidadi Orujaliyev and Vugar Abdullayev were questioned as witnesses and testified that on November 11, 2020, while serving in the Armed Forces of Azerbaijan in Shusha, they had spotted and approached two men to ask who they were. The soldiers saw that they were trying to escape. Then, the Azerbaijani soldiers came up closer and asked them to show their passports. They were the Armenian citizens, Gevorg Sujyan and David Davtyan. The soldiers asked them why they were there. They could not provide an intelligible answer. The questionable behaviour of the Armenian citizens and their illegal crossing of the Azerbaijani border caused their detention. They were then handed over to the relevant authorities for further investigation.
The results of forensic examinations carried out on May 16, 2021, confirmed that there were no any injuries on the bodies of both Armenians, Gevorg Sujyan and David Davtyan.
According to the letter of the Azerbaijani State Security Service dated March 17, 2021, the citizens of the Republic of Armenia, Gevorg Sujyan and David Davtyan, took part in military operations in Nagorno-Karabakh against the Armed Forces of Azerbaijan and on November 11, 2020, they were detained on the territory controlled by the Armed Forces of the Azerbaijan Republic.
An inspection of social networks on March 17, 2021, revealed that Gevorg Sujyan and David Davtyan distributed on Gevorg Sujyan’s profile their photos in the military uniform with automatic weapons in their hands and on the background there were seen the “Smerch” rockets.
The Court concluded that the accused actually committed the alleged crimes under all the Articles of the indictment. The Court considered the defendants’ testimonies during the investigation to be truthful. The Court also pointed out that there had been no stamps in the accused’s passports indicating that they had legally crossed the Azerbaijani border.
On July 28, 2021, the Baku Court of Serious Crimes issued a verdict against Gevorg Sujyan and David Davtyan:
- Gevorg Sujyan was found guilty of committing crimes under the Articles 228.2.1, 276, 279.1, and 318.2 of the AR Criminal Code and sentenced him to 15 years imprisonment to serve the first 5 years in the Gobustan closed prison, and the rest 10 years in a strict regime colony.
- David Davtyan was found guilty of committing crimes under the Articles 228.2.1, 276, 279.1, and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced him to 15 years imprisonment to serve the first 5 years in the Gobustan closed prison, and the rest 10 years in a strict regime colony.
The verdict also stipulated that both men were to be forcibly deported from Azerbaijan once they had served the bulk of their sentences.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified. The most bizarre is the accusation of espionage (the Article 276 of the Criminal Code of the Azerbaijan Republic). According to this article, espionage is transfer, as well as kidnapping, collecting or storage with the purpose of transfer to the foreign state, foreign organization or their representatives of a data which are a state secrets, and also transfer, kidnapping with a purpose of transfer or collecting by orders of special services of the foreign states of other data for their use to detriment safety of the Azerbaijan Republic, if espionage is committed by a foreigner or person without citizenship.
As it is stated in the verdict, both of the accused were collecting the information about the number and location of the Azerbaijani army and the presence of heavy military equipment. However, the verdict does not specify how the information was obtained by the accused, what channels were used to transmit it to the Armenian special services and whether it constituted a State Secret.
The criminal case does not contain any expert evidence as to whether the information in question is a State Secret. It is also not clear how the accused received the secret information. According to the testimonies given by the accused during the investigation, as well as the testimonies of witnesses, the Azerbaijani military discovered them in Shusha and immediately detained them. It is also unclear how long the transmission of secret information took place. There was not enough evidence for such a serious accusation by the State Prosecution. However, the Court decided in favor of the evidence presented by the investigative bodies and issued a guilty verdict under the Article 276 of the Criminal Code of the Azerbaijan Republicю
Was the detention in accordance with the Law?
Article 147.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that detention shall be applied in the following circumstances:
- if there is a suspicion that the person concerned committed an offence;
- if there is an appropriate decision by the prosecuting authority about a person covered by Article 147.1.2;
- if there is a court decision on the detention of a sentenced person pending settlement of 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.
Furthermore, a detention record must be drawn up at the place of detention and signed by the official who drew it up, the detainee, and the lawyer invited as a defender and participated in submitting the detainee to sign the record of detention.
In accordance with the Article 153.1 of the Code of Criminal Procedure of the Azerbaijan Republic, when detaining any individual, the prosecution authority is obliged to ensure his rights under this Code, as well as the Law of the Republic of Azerbaijan “On ensuring the rights and freedoms of individuals held in places of detention” for the suspect or accused, depending on his legal status.
In the Article 153.2 of the Code of Criminal Procedure of the Azerbaijan Republic, there is a list of the authority representative’s duties to ensure the rights of the detainee by the body conducting the criminal proceedings and by the temporary detention facilities:
- 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;
- 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;
- 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);
- 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);
- 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;
- 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;
- 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;
- 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);
- 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;
- 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;
- 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;
- to immediately release the detained person in the cases stipulated by the Article 153.3 of the present Code.
As can be seen, these duties were not exercised by the body conducting the criminal proceedings.
In this case, as in the other trials without exception, the defendants’ trial testimonies were not considered by the Court as being true and faithful. The Court interpreted them as being in the nature of a defence. However, the testimony in the course of the investigation was assessed by the court as irrefutable. The contradictions in the testimonies were not settled. The Court did not even have any initiative to do so.
In this case, as in the others, the question of sufficiency of the evidence is of great importance. The evidentiary basis of the case includes: testimonies of the accused provided during the investigation and at the trial, two witnesses’ testimonies, the results of forensic medical and forensic psychological examinations, the various certificates and letters of the Azerbaijani State Security Service, the inspection and detention reports, as well as the court orders on the imposition of a preventive measure.
As indicated above, the Court evaluated the defendants’ testimonies in the course of investigation as true and accurate, but did not justify its conclusion in any way. Therefore, there are objective doubts about the truthfulness of other evidence in the case. Here, the written evidence was provided by the law enforcement authorities, and the expertise was conducted by the only forensic examination body in the country, the Center for Forensic Examinations and Pathological Anatomy. There are no alternative forensic expertise institutions in the country. The Center’s conclusions are accepted by the courts as irrefutable in most cases. Although, the Article 127.3 of the Code of Criminal Procedure of the Azerbaijan Republic states that the expert’ s conclusion is not obligatory for the investigator, prosecutor or court, it, like any other evidence, must be verified and evaluated by the authority conducting the criminal proceedings, in view of all the case circumstances.
According to the Article 124.1 of the Code of Criminal Procedure of the Azerbaijan Republic,
Reliable evidence (information, documents, other items) obtained by the court or the parties to criminal proceedings shall be considered as prosecution evidence.
The Article 125.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,
If there is no doubt as to the accuracy and source of the information, documents and other items and as to the circumstances in which they were obtained, they may be accepted as evidence.
The Court failed to clarify the reasons for the testimonies’ inconsistency, therefore, a third-party observer has a legitimate objective doubt regarding their lawful receipt.
In addition, the defendants testified against themselves at the investigation. It is not clear whether they were explained their right to silence, which is essentially enshrined in the Article 66 of the Azerbaijani Constitution. This article states,
Nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister. Complete list of relations against whom testifying is not obligatory is specified by law.
The Right to silence is also enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1). Although this right is not explicitly stated in the Article itself, the case law of the European Court of Human Rights (ECHR) has enshrined it in its precedents, which are an integral part of the right to a fair trial.
It was written in the judgment of the European Court of Human Rights in the case of John Murray v. the United Kingdom from February 8, 1996: “Although not specifically mentioned in Article 6 (art. 6) of the Convention, there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (art. 6) … By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6 (art. 6).”
There are written evidences (references, letters) provided by the State Security Service of Azerbaijan in the case file. According to the Article 137-1.1 of the Criminal Procedural Code of the Azerbaijan Republic, all kind of information, documents and other items obtained in the course of intelligence and counter-intelligence activity can be considered as evidence in a criminal case, if it is obtained in accordance with the Azerbaijani Law “On Operative-Investigative Activity” and submitted and verified in accordance with the requirements of this Code. We do not know whether those evidences have been obtained in accordance with the Law. The court did not take them objectively and accepted them as true.
According to the Article 138.2 of the Code of Criminal Procedure of the Azerbaijan Republic,
The prosecutor shall be responsible for proving the grounds for the criminal responsibility of the accused and whether or not he is guilty.
The Prosecutor was unable to prove the defendants’ guilt because he failed to submit irrefutable evidence to the Court.
The bias of judges is obvious. Even though, it is written in the Article 33.4 of the Azerbaijan Republic Code of Criminal Procedure that there shall be no judicial bias regarding the evidence and other materials, but judges and jurors may not regard evidence or other materials unfavourably, or attach more importance to one piece of evidence or other item than to another, until they are examined under the statutory procedure.
There is a court requirement in the Article 3 “On Courts and Judges” of the Law of the Republic of Azerbaijan.
According to the Law of the Azerbaijan Republic “On Courts and Judges”,
Activity of the courts of the Republic of Azerbaijan is aimed solely at the administration of justice and, in cases and order provided by legislation, at the enforcement of judicial supervision.
While administering justice, courts protect rights and freedoms of person and citizen, rights and lawful interests of all enterprises, establishments and organizations irrespective of the form of property, political parties, civil associations, other legal persons, from any encroachments and law violations, fulfil other objectives provided for in Constitution of the Republic of Azerbaijan and this Law. Vesting of other objectives on courts is inadmissible.
The Article 8 of the Law of the Azerbaijan Republic “On Courts and Judges” states,
Justice is administered in compliance with the principle of ensuring independence of judges without any restrictions, and in a fact based, impartial, just and lawful manner.
In this trial, as in other trials concerning Armenian prisoners of war, the principle of transparency was violated. Despite the fact that the verdict said that the case was being considered at an open trial, in fact the trial was held behind closed doors, without the presence of independent journalists, human rights defenders and members of the public. In the light of the 44-day war between Azerbaijan and Armenia, this trial, as all other trials against the Armenian prisoners of war, was of great interest to the public. The transparency of the trial would have confirmed that the criminal case was being handled according to the letter of the Law. Yet, the closed nature of the trial led to the assumption of an unfair trial.
Violation of the substantive and procedural legal Norms, the Constitution of Azerbaijan, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the precedents of the European Court of Human Rights was a violation of the defendants’ right to a fair trial.