Sheki Grave Crimes Court pronounced the verdict for Elchin Ismayilli

Sheki Grave Crimes Court pronounced the verdict for Elchin Ismayilli

Analysis of violation of law during Elchin Ismayilli’s judicial proceedings

Sheki City Grave Crimes Court
Criminal case no.1(091)-154/2017
September 18, 2017
Chairman: Rashid Huseynov
Judges: Elmin Rustamov, Khagani Samedov
Prosecutor: Anar MirkishiyevAccused: Elchin Ismayilli
Defenders: Elchin Sadyqov, Islam Ismaylov
Complainants: Azer Abbasov, Barat Shahaliyev, Ilqar Garibov
Elchin Ismayilli – journalist, the editor- in – chief of the “kend.info” website, the regional reporter of Azadlig newspaper, member of the Popular’s Front Party of Azerbaijan – was detained on February 17, 2017. Articles 182.2.2 (Extortion, committed repeatedly), 308.2 (Abusing official powers, entailed heavy consequences), 311.3.2 (Reception of a bribe, committed repeatedly) and 311.3.4 (Reception with application of threats) of the Criminal Code of the Azerbaijan Republic (CC AR) were brought against him. The case was led by the Department for Investigation of Grave Crimes of the Prosecutor General’s Office of the Republic of Azerbaijan.

 

On February 18, 2017 Baku City Nasimi District Court chose for E. Ismayilli preventive measure in form of arrest for the period of 24 days. He was brought to Baku Pretrial Detention Facility #1. On March 3, 2017 the period of his preventive measure was extended up to 3 months. On May 26, 2017 this term was prolonged once more up to September 12, 2017.

 

According to indictment, E. Ismayilli extorted money from Azer Abbasov –  the worker of the Culture and Tourism Department by the Executive power of Ismayilli region. The case was initiated on the grounds of the official appeal by A. Abbasov to the State Security Service. The defence and journalist himself consider accusation to be falsified and politically motivated.

 

E. Ismayilli stated that he has known this worker since 2003, and they were in good relations. A. Abbasov borrowed 1000 manat from the journalist. Two days prior to the arrest of journalist, he called to E. Ismayilli and said that money were ready. They met, and during money receipt, journalist was detained.
Two days prior to his arrest, E. Ismayilli published investigation on his website kend.info  about illegal lease order of the Head of the Executive authority of the region of 199 hectares of land. (http://kend.info/mirdam%c9%99d-sadiqovun-kadri-sozun%c9%99-%c9%99m%c9%99l-etdi-daha-bir-s%c9%99r%c9%99ncami-kiv-%c9%99-t%c9%99qdim-etdi-foto-video/).

 

E. Ismayilli regularly wrote about the problems of the residents of Ismayilli region, and due to this, he was repeatedly subjected to attacks; bringing to police. A few months prior to his arrest, the representatives of the Executive authority of the region have appealed to the court with the request to punish journalist administratively.  E. Ismayilli covered widely the meetings of the protest at Ismayilli region of January 2013, which were followed by the arrest of the activists of opposition parties and local residents. E. Ismayilli brother, who was absent during that period, was arrested for allegedly participation in the actions of the protest and sentenced to two years of imprisonment.

 

On September 18, 2017 Shaki City Court on Grave Crimes found journalist guilty on all accusations that were brought against him, and sentenced him to 9 years imprisonment with the further ban to hold any responsible positions in local governmental bodies and administration.

 

Commentary by an expert lawyer:

The court decision is unlawful and groundless. Violations during the court proceedings already began in the period of the preparatory meeting, in which the right to defend was violated. Journalist and his defence was not informed promptly about the time and the location of the preparatory meeting. They learned about the meeting few hours before it started. Defence filed motion  requesting  additional time for preparation of defence. The court declined the motion and held the meeting. Defence was deprived from the possibility to file the motion during preparatory meeting.

 

According to defence, the arrest of journalist was planned in advance. A few months prior to  his arrest, on November 8, 2016, Sabayil District Court decided on carrying out the operational activities (wiretapping surveillance and etc.) against E. Ismayilli.

 

According to defence, A. Abbasov – the worker of the Culture and Tourism department of the Executive power of Ismayilli region- by the direction of the workers of the special services, provoked journalist and gave false testimonies against him. According to the testimonies of A. Abbasov, Elchin Ismayilli did not lend him any money, but instead he demanded money from him, by blackmailing and threatening him, placed slanderous material about A. Abbasov on his website. A. Abbasov had to refer to the security services and at the moment of passing so called |bribe to E. Ismayilli, the  later was arrested by police. This was recorded by the special service. At the trial, E. Ismayilli insisted that he lent money to A. Abbasov, and he did not request on February 2017, to return them to him, but instead Abbasov insisted on the soonest return of the money. And during money receiving, E. Ismayilli was arrested.

 

The operational activities, and detention of E. Ismayilli was video recorded. From video recording, it is apparent that Elchin Ismayilli was not informed about his rights not to testify. It is also clearly shown that the representatives of state service demanded  insistently from him to acknowledge the receipt of bribe.
The European Court of Human Rights (ECHR) specifies how it is necessary to use special investigative methods: “The Court shall have to the need of authorities to use of special investigative methods, particularly in tackling organised crime and corruption. That being so, the use of special investigative methods – inter alia, the hidden methods – cannot in itself infringe the right to a fair trial. However, when using by such methods, their use must be kept within clear limits (decision of the ECHR on the case of Ramanauskas v. Lithuania) (http://en.tm.lt/dok/Ramanauskas_v__Lithuania_JUDG.pdf; https://roseurosud.org/r/st-6/st-6a-2/postanovlenie-espch-ramanauskas-protiv-litvy)

 

The caution in the use of special methods by law enforcement also involves in other decision of ECHR. Thus, in the decision of Khudobin v. Russia (paragraph 128) states: “At the outset, the Court would like to stress that it is not blind to the difficulties encountered by the authorities in combating serious crimes and the need for more sophisticated methods of investigation sometimes required in this context. In principle, the Court’s case-law does not preclude reliance, at the investigation stage of criminal proceedings and where the nature of the offence so warrants, on evidence obtained as a result of an undercover police operation. However, the use of undercover agents must be restricted; the police may act undercover but not incite” (https://ru.scribd.com/document/144144390/Case-of-Khudobin-v-Russia;
http://docs.cntd.ru/document/902115046;
http://www.globalhealthrights.org/wp-content/uploads/2013/02/ECtHR-2007-Khudobin-v-Russia.pdf)

 

Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms states:  “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

 

In cases, where incitement takes place, Article 6 of the European Convention is not violated only if the applicant has the possibility in the period of trial proceedings to raise the issue of incitement through the motion.

 

Adherence of such general guarantees, as the equality of the both parties or right for protection, is not in itself sufficient. The court states that responsibility to prove the fact that incitements wasn’t rest with the prosecution on condition that the defendant’s statements are not unreasonable.

 

Unfortunately, the court of first instance failed to draw any attention and to provide legal assessment to the statements of defence and accused regarding the fact of incitement and has passed severe sentence.
Article 18 of European Convention was violated towards the journalist. According to the Article 18 of European Convention, the restrictions permitted under current Convention to the said rights and freedoms shall not be applied for any purpose other than those which they have been prescribed. Considering the fact that the prosecution was not able to prove the guilt of the defendant, and concluding from it, it is more likely that the goal of the limitation of his rights, was in fact the termination of his activities