Qaradag District Court passed a sentence on Abulfaz Sadiqbeyli, Asif Sadiqbeyli and Kamran Abbasov
Baku City Qaradag District Court
Case #1(002)-50/2019
March 6, 2019
Judge: Fuad Aliyev
Public Prosecutor: Suradj Salmanov
Defendants: Abulfaz Sadiqbeyli, Asif Sadiqov, Kamran Abbasov
Defenders: Osman Kazimov, Mirismayil Hadi, Alisafa Aliyev
Complainant: Alakpar Bayramov
In 2018, Main Criminal Investigation Department of the Ministry of Internal Affairs of the AR instituted criminal case on swindle and document counterfeiting. Abulfaz Sadiqbeyli, his relative Asif Sadiqov and the worker of Nikoil bank Kamran Abbasov were attracted to the case as suspects. Abulfaz Sadiqbeyli was accused in committing crimes prescribed by following Articles of the Criminal Code of the AR: · 178.2.1. (swindle, on preliminary arrangement by group of persons)
· 178.2.4. (swindle, with causing damage in the significant size) · 320.1. (fake, manufacturing or selling of official documents, state awards, seals, stamps, forms or use of counterfeit documents ) · 320.2 (use of obviously counterfeit documents provided of the present Code)
Asif Sadiqov was accused in committing crimes prescribed by following Articles of the Criminal Code of the AR: · 178.2.1. (swindle, on preliminary arrangement by group of persons) · 178.2.4. (swindle, with causing damage in the significant size) · 320.1. (fake, manufacturing or selling of official documents, state awards, seals, stamps, forms or use of counterfeit documents ) Kamran Abbasov was accused in committing crimes prescribed by following Articles of the Criminal Code of the AR: · 178.2.1. (swindle, on preliminary arrangement by group of persons) · 178.2.3. (swindle, by person with use of service position) · 178.2.4. (swindle, with causing damage in the significant size) · 320.1. (fake, manufacturing or selling of official documents, state awards, seals, stamps, forms or use of counterfeit documents )
On November 21, 2018 Baku City Sabail District Court ruled on the choice of the restrictive measure towards the Head of the Youth Organisation of the Opposition Musavat Party Abulfaz Sadiqbeyli in form of arrest for the period of 3 months. The restrictive measure not related to arrest was chosen towards other defendants. According to investigation, on June 21, 2015, Abulfaz Sadiqbeyli entered into loan agreement with Nikoil Bank and bought a car VAZ-21214. It is stated in indictment that A. Sadiqbeyli has entered into a criminal conspiracy with a bank lawyer Kamran Abbasov, and his relative A. Sadiqov- who was representative from bank side by proxy. According to loan agreement, the car should’ve come under full disposal of A. Sadiqbeyli only after its total cost is fully paid. Investigation claimed that three defendants counterfeited the receipt, which showed that the total amount was paid. In the course of the court, the representative of a civil complainant on Alakpar Bayramov’s case stated that defendants have caused the damage in amount of 6251 manat as interests. During court proceedings this amount was fully paid by defendants. In result, the damage was recouped. The representative of a complainant stated that he does not have any complaints and claims towards defendants, and because of that he withdraws his suit and asks the court to take it into account.
It is necessary to mention here, that during judicial investigation, it came to light that Abulfaz Sadiqbeyli was not reckoned as a debtor in bank’s electronic system, and his debt was deleted from computer system. On March 6, 2019 Baku City Qaradag District Court passed a sentence on a given criminal case. Thus, Abulfaz Sadiqbeyli was found guilty in committing crimes under Articles 178.2.1 and 178.2.4 of the Criminal Code of the AR and sentenced to restraint of liberty for the period of 1 year and 6 months. The restrictive measure in form of arrest, elected earlier, was changed to travel ban. Court also imposed restrictions of movement within the bounds of Baku and obliged A. Sadiqbeyli to wear electronic bracelet that would identify his location. It also ordered A. Sadiqbeyli to remain at home from 23.00 (11pm) to 07:00 (7am). He was released from the court room. With aforesaid verdict, Asif Sadiqov was found guilty in committing crimes under Articles 178.2.1 and 178.2.4. of the Criminal Code of the AR and sentenced to the restraint of liberty for the period of 1 year and 6 months. He was also found guilty in committing crime prescribed by Article 320.1. of the Criminal Code of the AR, but, since the period of limitation of this Article has passed, he was not punished for it. Court kept the restrictive measure in form of travel ban in power and imposed on A. Sadiqov restrictions of movement within the bounds of Baku, and also ordered him to remain at home from 23.00 (11pm) to 07:00 (7am). Court decided to stop criminal prosecution towards Kamran Abbasov under Articles 178.2.1, 178.2.3 and 178.2.4 of the Criminal Code of the AR. Court also found Kamran Abbasov guilty in committing crime under Article 320.1. of the Criminal Code of the AR, but, since the period of limitation of this Article has passed, he was not punished for it. Commentary by an expert lawyer:
The court decision is unlawful and groundless. As can be seen, only one of the defendants was arrested under the court order on choosing restrictive measure in form of custodial placement. According to Article 14.1 of the Code of Criminal Procedure of Azerbaijan Republic, the right to liberty may be limited only in cases of detention, detention on remand or imprisonment in accordance with the law. 14.2 states «nobody may be detained or arrested other than on the grounds provided for in the Code and other laws of the Azerbaijan Republic.» Prosecution did not present any sufficient grounds to the court that would provide to a winged spectator a complete picture of the primary evidences of A. Sadiqbeyli’s arrest.
During trial, it came to light that loan agreement and other documents of a given case, somehow vanished from the bank. Bank representative testified that the cost of the car in amount of 10 thousands 800 manat was paid, however the total which is due to payment with interest is much higher. He was not able to explain to the court, whereto the papers vanished. Thus, bank representative who spoke about the damage and filed a suit against defendants was not able to provide necessary documents, and in such way could not prove his claims. A. Sadiqbeyli’s interrogation by investigator raises interest. At the court, A. Sadiqbeyli testified that only 10 minutes of the interrogation by investigator were dedicated to the debt, and the rest of the time was devoted to his political activity. A. Sadiqbeyli testified that investigator only asked questions about the number of members of the organisation he headed, the reasons behind his frequent visits to Georgia, about the events they are holding and etc. This interrogation and also the fact of choosing preventive measure against A. Sadiqbeyli in form of arrest speak about the political nature of a given case, a punishment of the member of opposition party. The court did not take into consideration those circumstances that were in favor to A. Sadiqbeyli (the payment of the cost of the car, absence of the documents in the bank and etc.). Article 28.4.2 of the of Criminal Procedure of the AR directs courts to take into consideration circumstances which incriminate or exonerate the suspect or accused as well as circumstances which mitigate or aggravate his criminal responsibility. According to Article 28.4.3 of the Code of Criminal Procedure of the AR court should also “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”. According to Article 28.5 of the Code of Criminal Procedure of AR « the court decision regarding the guilt of the person charged may not be based on opinion but shall be supported by all the reliable evidence concerning the case».
A. Sadiqbeyli’s arrest shows that the conviction was not based on the cumulative evidences, since they did not exist in the case.
In 2002 Azerbaijan signed European Convention for the Protection of Human Rights and Fundamental Freedoms. According to Article 1 of European Convention, the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
This norm specifies that the rights and freedoms, protected by European Convention shall be fully provided from the moment of ratification of this document with a corresponding State.
It sets the scope of European Convention in respect to the holders of rights, the object of protection, the bounds and effectiveness of the jurisdiction exercised by State.
Article 1 of Protocol № 4 European Convention for the Protection of Human Rights and Fundamental Freedoms states: “No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.” Given case concerns the debt to the bank on the loan agreement, however, despite of above mentioned norm, the restrictive measure in form of arrest was applied towards Abulfaz Sadiqbeyli. Despite the fact that national criminal law provides a punishment in form of deprivation of liberty under pressed Articles, international law prohibits deprivation of liberty for contractual obligations. According to Article 151 of the Constitution of AR, “Whenever there is disagreement between normative-legal acts in legislative system of the Azerbaijan Republic (except Constitution of the Azerbaijan Republic and acts accepted by way of referendum) and international agreements wherein the Azerbaijan Republic is one of the parties, provisions of international agreements shall dominate. “ The norms of the legislation on criminal procedure of the AR, above mentioned Constitutional norm of the AR, the norms of European Convention for the Protection of Human Rights and Fundamental Freedoms and Protocol 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms were violated in a given case.