PASHA UMUDOV IS YET NOTHER VICTIM OF 2020 SEVERE REPRESSIONS
Analysis of violation of law during Pasha Umudov’s judicial proceedings
Baku City Narimanov District Court
Case № 1 (005)-116/2020
07 August 2020
Judge: Vusal Gurbanov
Defendant: Pasha Umudov
Defender: Zubeida Sadigova
The State Prosecutor: Tural Qahramanov, the Prosecutor of the Department on Support of Public Prosecutions of Baku City Courts of the General Prosecutor’s Office of the Azerbaijan Republic
Pasha Umudov is the Nizami branch at Chairman of the Popular Front Party of Azerbaijan (PFPA), and also a personal driver of PFPA leader Ali Karimli. On 16 October 2019, Pasha Umudov was arrested prior to the meeting scheduled by the National Council of Democratic Forces on 19 October 2019. For several days his place was unknown. During these days dozens of PFPA members were arrested, and some of them were brought to administrative charges from 15 to 60 days of administrative arrest.
Then, it became known that Pasha Umudov was charged with criminal charges under the Article 234.2 (Illegal purchase or storage with a view of selling, manufacturing, processing, transportation, transfer or selling of narcotics or psychotropic substances)
of the Criminal Code of the Azerbaijan Republic. A preventive measure in the form of arrest has been selected against P. Umudov, which subsequently was extended.
On 24 October 2019, a video recording was shown on the state TV channels and the Internet resources, where four men (Pasha Umudov, Bayram Heydarov, Rauf Quliyev, Mais Mammadov) confessed that they had been using and selling drugs. – https://apa.az/az/hadise/axcp-sedrinin-surucusu-narkotik-madde-satdigini-etiraf-edib-556250
After the completion of the preliminary investigation, the case was transferred for hearing to the Baku City Narimanov District Court. On 16 March 2020, the Public Prosecutor announced an accusation act stating that employees of the Department on combating against organized crime of the Azerbaijani Ministry of Internal Affairs found three parcels with narcotic substance in Pasha Umudov’s pocket. In the course of the trial Pasha Umudov did not plead guilty and stated that the found drugs were thrown to him by the employees of the Department, and everything written in the indictment was a lie. The PFPA stated that Umudov’s arrest had been related to his political activities, and also to the fact that he was Ali Karimli’s driver.
During the trial Pasha Umudov testified that 6 times he had been forced to incriminate himself and his “confessions” had been recorder on video. The policemen insisted that P. Umudov emphasized that he had been Ali Karimli’s driver.
At the trial, Pasha Umudov also said that when he found the drugs, he pulled them out and threw them on the floor, but the Department officials once again put the drug in his pocket.
On 7 August 2020, the Baku City Narimanov District Court ruled a verdict against Pasha Umudov. He was found guilty in committing a crime under the Article 234.2 of the Criminal Code and sentenced to 4 years and 6 months of imprisonment.
It is worth noting that neither media representatives, nor civil society representatives, nor friends and relatives of the defendant were allowed into the courtroom during the hearing.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified. As mentioned above, Pasha Umudov was forced to admit his guilt publicly. According to the Article 66 of the Constitution of the Azerbaijan Republic, 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.
However, this is prohibited according to the Article 20 of the AR Criminal Procedure Code of the Azerbaijan Republic. According to the Article 20.1 of the Code of Criminal Procedure of the Azerbaijan Republic, nobody may be forced to testify against himself or his close relatives, or be prosecuted on this basis.
Apart from the participants of the trial, no one else was admitted to the courtroom. According to the Article 127 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.
According to the Article 27.1 of the Criminal Procedure Code of the Azerbaijan Republic, 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.
Those, wishing to attend the trial, were not allowed into the courtroom. The reason for refusal was explained by the coronavirus pandemic, as well as by the relevant informative recommendation of the Supreme Court of the Azerbaijan Republic from 15 May 2020.
According to the recommendation paragraph 1.1.3, it is prohibited to gather more than 10 people at one place in the court halls, including the court administrative buildings. Yet, this recommendation of the Azerbaijan Republic Supreme Court was violated. Firstly, there were: the accused, the defence counsel, the prosecutor, the judge, the secretary of the court session, all together 4 people, which means another 4 or 5 could have been allowed into the courtroom.
Secondly, according to the paragraph 2.2.2. of the Decree of the President of the Azerbaijan Republic on “Creation of the informative “Electronic Court” system” from 13 February 2014, on criminal, civil, commercial, administrative cases and cases on administrative violations, the court proceedings can be conducted in electronic mode. Although, this decree was adopted back in 2014, it was not implemented during the pandemic. Rather than ensuring the openness of the judicial process and providing the technical facilities for parties to stream online, the courts chose to carry out the trials entirely behind closed doors.
It is known that in Russia, for example, the trials are held openly during the pandemic, taking into account the above mentioned practice. The trials on “sensitive cases” are conducted through Youtube broadcasts, or through the social network Facebook. Using another option to arrange court hearings openly by means of the technical court procurement, i.e. to set up a monitor in a place where it will be accessible for people willing to watch the trial. All of the above indicates that the open trial was not considered by the Baku City Narimanov District Court. That’s why none of the options provided by the legislation for holding open hearings has been used.
The principle of transparency is protected by the International Legislation Norma, in particular by the Article 6 Paragraph 1 of the European Convention on Human Rights Protection and Fundamental Freedoms, the Article 14 Paragraph 1 of the International Covenant on Civil and Political Rights and the Article 11 paragraph 1 of the Universal Declaration of Human Rights.
Thus, one of the fundamental principles of fair trial was grossly violated by the Narimanov District Court of Baku City.
As it was mentioned above, Pasha Umudov revealed in the course of the trial that he had been forced to stipulate himself 6 times and his “confessions” had been recorded on video in the” Department for the fight against organized crime” of the Ministry of Internal Affairs of the Azerbaijan Republic. This video recording, showing Pasha Umudov and three others “confessing” to what they had done, was broadcasted on the state TV channels and spread on the Internet long before the trial-itself.
The indicated distribution of the video recording with “confessions” violated the Article 66 of the Azerbaijan Republic Constitution and grossly violated the principle “presumption of innocence”. The distribution of the recorded video on local central TV channels, as well as on news feeds of pro-government websites, was intended to show the society the accused’s ” guilt ” prior the court verdict against him.
According to the Article 63 of the Constitution of the Azerbaijan Republic, (1) Everyone is entitled for presumption of innocence. Everyone who is accused of crime shall be considered innocent until his guilt is proved legally and if no verdict of law court has been brought into force. And (5) nobody may be accused of crime without the verdict of law court.
Article 21 of the Criminal Procedure Code of the Azerbaijan Republic states:
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;
The International Legislation ratified by the Azerbaijan Republic also protects the principle of the presumption of innocence.
Thus, the Article 6 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms states “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.
The Article 14, Paragraph 2, of the International Covenant on Civil and Political Rights as well as the Article 11 of the Universal Declaration of Human Rights also require observance of the principle of the presumption of innocence.
The investigation, and subsequently the court, could not prove that the bundle found in Pasha Umudov’s pocket belonged to the accused or he had been aware of it. The investigation had no irrefutable evidence of P. Umudov’s guilt.
The investigation and court’s conclusions were based on unconfirmed suspicions. In this case, the defendant should have been acquitted.
According to the Article 21 of the Criminal Procedure Code of the Azerbaijan Republic, acquittal shall be ordered in the following circumstances:
42.2.1. on the grounds of Article 42.1.1. of this Code if it is proven that the act did not take place or the act was not shown to be a criminal act;
42.2.2. on the grounds of Article 42.1.2. of this Code if there is no criminal content in the act of the accused or if there are circumstances which show that the act was not an offence;
42.2.3. on the grounds of Article 42.1.3. of this Code if the person is proven not to have any link with the offence of which he is accused or if that link is not proven;
42.2.4. on the grounds of Article 42.1.4. of this Code if there is not sufficient evidence to prove guilt or if the evidence collected proves the accused’s innocence.
Taking into account all the above, it is obvious that the conviction of Pasha Umudov violated a number of National and International legal Norms, primarily the right to liberty and security of person, the right to the presumption of innocence, the right to a fair trial and other equally important rights enshrined in the International Law.