Once again the court violated the defendant’s right to liberty and personal inviolability


Agalar Agayev

Analysis of violation of law during Agalar Agayev’s judicial proceedings

Baku City Grave Crimes Court

Case № 1(101)-927/2024

9 February 2024 

Presiding judge: Anar Sadiqov

Judges: Fakhri Mammadov, Mahira Karimova

Defendant: Agalar Agayev

Defender: Fariz Namazly

The State Prosecutor: Ergin Qafarov, a prosecutor from the Department supporting the State Prosecution in the Serious Crimes Courts within the Serious Crimes Administrative Division at the General Prosecutor’s Office of the Azerbaijan Republic

Agalar Agayev, a 45-year-old Shiite believer and veteran of the Karabakh war, previously affiliated to the Muslim Unity Movement, but had resigned from the movement. On 31 January 2023, he was detained on charges of committing crimes under the Articles 167-3.1 (Manufacture, storage or distribution of religious extremist materials, i.e. materials calling for the implementation of religious extremist activities or justifying such activity, either justifying the need for such activities) and 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic.

On 2 February 2023, the Baku City Binagadi District Court issued a preventive measure in the form of detention against A. Agayev, which was then subsequently extended for several times.

According to the investigation, on 31 January 2023, Agalar Agayev was detained in the course of operative search activities, brought to the 43rd police station, and searched. In the course of the search, the drug methamphetamine weighing 19.104 grams has been found in his possession. Also, while searching Agalar Agayev’s apartment, the police seized some religious literature and CDs with a extremist tendency.

The defendant, Agalar Agayev, interrogated during the trial, did not plead guilty to the charges and testified that the police detained him in a store and immediately brought him to the Chief of the Baku City 43rd Police Department.

The Chief asked him two questions: whether he performed namaz (prayer) and if he had been to Iran. In response to these questions, Agalar Agayev said that in 2018, he traveled with a group of 55 people to Mashhad, a holy place for all Shiite and the second largest city in Iran, where there is located one of their most important sanctuary, the mausoleum of Imam Reza. Then, the Chief of the 43rd police station insisted that he would detain Agaev on charges of drug trafficking. At that moment, one of the policemen, Naheed, took the drugs out of the secure place and put it on the table asking Agalar Agayev to take it. As Agayev stated at the trial, he had had nothing in his pocket but his cell phone. However, he did as he was told. Two days after his arrest, his house was searched without his presence. The police found in his house: a disk, flag with the name of one of the prophets and religious books. A. Agayev explained that he had nothing to do with the found disk and drugs. He also noted that the walking distance between the place where he was detained and the police station was just 5 minutes, but the personal search was conducted in almost 4 hours. Before he was brought to the police station, his cell phone was in his pocket. It was seized only at the police station. A. Agayev also testified that he had been subjected to psychological pressure.

Tural Asqarov, a police officer, questioned at the trial as a witness, testified that he received an information relating to the illegal trafficking of drugs. Agalar Agayev was detained and brought to the police station in the course of that search operation. Tural Asqarov also testified that he hadn’t apply any physical or psychological pressure to the detainee who was not caught in the store but on the street.

Another police officer, Ilkin Shakhverdiyev, questioned as a witness at the trial, provided similar to Tural Asqarov’s testimony.

The witness Eltun Isayev, questioned at the trial, testified that he had been an invited witness during the search at A. Agayev’s apartment. At that time Agayev’s wife was at home, she was explained her rights and obligations, the police provided to her the Baku City Binagadi District Court order to conduct the search. She did not express any objection. The search was conducted in Agalar Agayev’s private one-storey house, as well as on a small plot adjacent to the house. 3 disks, 12 flags, 8 religious books, 6 photos and other items with inscriptions in Azerbaijani and some foreign languages were found on the place. Then, the protocol was drawn up and signed; all the found items were packed.

Mirrasul Mahmudov, an invited witness and Muhammadali Tahirzade, a witness provided testimonies similar to Eltun Isayev’s one.

A forensic chemical examination from 1 February, 2023, confirmed the origin of the found drug, methamphetamine.

The forensic narcological examination conducted on 3 April 2023, determined that A. Agayev had not suffered from drug addiction, not required any compulsory treatment.

A forensic-religious examination dated 23 May 2023, confirmed that the registered information on three disks found in Agalar Agayev’s house should be considered as an extremist that spreading religious hatred and enmity.

The Court pointed out as mitigating circumstances the existence of the defendant’s three minor children. The Court did not reveal any aggravating circumstances.

On 9 February 2024, the Baku Court for Serious Crimes issued a verdict: to find Agalar Agayev guilty on all charges and sentenced him to 3 years and 6 months’ imprisonment with serving the sentence in a general regime penal institution.


Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

There are the same evidences in Agalar Agayev’s case as in similar cases that involve other Shiite believers arrested in the last two years. The police officers’ testimonies are unconditionally accepted by the Court as irrefutable ones, whereas the defendants’ testimonies are perceived as having the character of defense. There is also an identical set of forensic examinations, protocols of confrontations and interrogations.

The investigation scenarios in these kinds of cases are the same. The same pattern of finding drugs, as well as the types of those drugs. Also, the police officers’ behaviors are similar in all cases.

The defendant was ordered to identify the drugs as his own, thereby testifying against himself. It should be noted that the Constitution of the Azerbaijan Republic primarily prohibits testifying against oneself and close relatives. According to the Constitution of the Republic of Azerbaijan,

Nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister.

The Article 20 of the Code of Criminal Procedure of the Azerbaijan Republic states,

  • Nobody may be forced to testify against himself or his close relatives, or be prosecuted on this basis.
  • During the investigation or court hearing, a person asked to give information which may incriminate him and his close relatives in respect of an offence shall have the right to refuse to incriminate them without fear of negative legal consequences for himself.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1), also contains a protection of the right to avoid being obliged to testify against oneself. Though it is not clearly articulated in the text of the Article itself, it has been emphasized in numerous judgments of the European Court of Human Rights (ECHR) and represents one of the pillars of the right to a fair trial. It is also stated that a silence should not be used against a defendant.

The judgment of the European Court of Justice (ECHR) in the case of Sanders v. the United Kingdom dated December 17, 1999, said,

“The right not to testify against oneself is primarily related to demonstrating respect for the defendant’s wish to remain silent. As recognized in the legal systems of the Convention States Parties and other countries, this right shall not apply in criminal proceedings to materials that may be obtained from the defendant through the exercise of coercive powers by the authorities but that exist regardless of the suspect’s will, such as, inter alia: the papers to be seized under a warrant, samples of a human being’s breath, blood, urine or tissue for DNA analysis”. Also, the ruling states that “in particular, the right not to testify against oneself contributes to the prosecution to prove the guilt of a suspect in a criminal case without recourse to evidence obtained against the defendant’s will, through coercion or pressure. In this respect, the right is closely linked to the principle of the presumption of innocence enshrined in Article 6(2) of the Convention”. – https://hudoc.echr.coe.int/?i=001-58009

Speaking of the presumption of innocence, the Article 21.3 of the Code of Criminal Procedure of the Azerbaijan Republic, where it is stated that a person accused of committing a crime shall not be obliged to prove his innocence, while the obligation to prove accusation, refuting the arguments brought up by the defense shall be upon the party of the prosecution.

In order to render fair rulings, the judges must be independent and obey only the Law (Article 25.1 of the Code of Criminal Procedure of the Azerbaijan Republic). As a rule, the judges tend to be bound by the conclusions drawn by the authorities conducting criminal proceedings in the course of preliminary investigation. However, it is prohibited under the Article 25.2 of the Code of Criminal Procedure of the Azerbaijan Republic.

According the Article 28.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

Courts shall hear criminal cases and other prosecution matters in accordance with the legal procedures established by this Code, on the basis of the facts and of impartiality and justice.

Another side, the Article 28.2 of the Code of Criminal Procedure of the Azerbaijan Republic states,

In the course of the proceedings, judges may not express interests other than those of the law.

In the Article 28.4 of Code of Criminal Procedure of the Azerbaijan Republic lists the tasks that during the criminal proceedings courts shall perform the following functions:

  • ensure that the parties to the proceedings are able to examine thoroughly, fully and objectively all the circumstances relating to the prosecution;
  • take into consideration circumstances which incriminate or exonerate the suspect or accused as well as circumstances which mitigate or aggravate his criminal responsibility;
  • examine applications presented by the suspect or the accused or by their counsel for the defence concerning their innocence or minimal guilt and the availability of evidence which exonerates them or mitigates their responsibility;
  • examine complaints alleging breach of law during the criminal proceedings;
  • guarantee the right of the parties to criminal proceedings to participate.

As it appears, the Court shirked its statutory duty and examined the case in a lopsided and biased manner.

in the defendant’s house and his small land plot adjacent to the house was carried out without his presence. During the search, his wife was the only family member.

The Article 244.4 of the Code of Criminal Procedure of the Azerbaijan Republic states,

Steps shall be taken to guarantee the presence of the person concerning whom the search and seizure is being conducted, adult members of his family or those who represent his legal interests. If it is impossible to secure the participation of the abovementioned people, a representative of the relevant housing organisation or local

authority shall be asked to participate.

So, the investigating authority violated the procedure of the search, not ensuring the defendant’s participation, not providing any justification of his absence.

In the course of the trial, the defendant testified that he faced psychological pressure on the part of the police officers, whom, he said, forced him to accept drugs as his own.

According to the Article 13.2 of the Code of Criminal Procedure of the Azerbaijan Republic, in such cases the Law prohibits the following:

  • be subjected to treatment or punishment that debases human dignity;
  • be held in conditions that debase human dignity;
  • forced to participate in carrying out procedures that debase human dignity.

The Court also failed to determine the relevance of the found items to the defendant, who denied that the seized disks and drugs had ever belonged to him.

The Article 351.2 of the Code of Criminal Procedure of the Azerbaijan Republic states,

A conviction by the court may not be based on assumptions and shall be handed down only where guilt of the accused is proved during the court’s examination of the case.

According the Article 351.3 of the Code of Criminal Procedure of the Azerbaijan Republic,

  • bearing in mind the presumption of innocence;
  • on the basis of the results of the court’s examination of the charge in accordance with the rules set out in this Code;
  • on the basis of the reliable and admissible evidence examined during the court’s investigation of the case;
  • interpreting in his favour any doubts as to the guilt of the accused which cannot be removed.

All of the above points were not respected by the Court.

All the above-mentioned factors indicate that the investigative body, and subsequently the Court, refusing to comply with the provisions of substantive and procedural law, violated the fundamental right in any democratic society – the right to liberty and inviolability of individuals, guaranteed by the Article 28 of the Azerbaijani Constitution, Article 14 of the Code of Criminal Procedure of the Azerbaijan Republic, Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as numerous precedents of the European Court of Human Rights in respect of Mr. Agalar Agayev.