The Baku City Sabail District Court chose preventive measure against Abulfaz Sadiqbeyli

The Baku City Sabail District Court chose preventive measure against Abulfaz Sadiqbeyli

The analysis of violation of the law during Abulfaz Sadiqbeyli’s judicial proceedings

Baku City Sabail District Court

Criminal case № 4(009)- 691/2018                                     
November 21, 2018
Judge:
Shahin Abdullayev
Accused: Abulfaz  Sadigbeyli
Defender: Mirismayil  Khadi
Investigator: Osman Mammadov

On November 21, 2018, the Chairman of the Youth organization of Musavat Party Abulfaz Sadiqbeyli was detained on accusation of committing crimes prescribed by Articles 178.2.1 (Swindle, is maintaining another persons property or buying another persons property by a deceit or breach of confidence committed on preliminary arrangement by group of persons), 178.2.4 (Swindle, is maintaining another persons property or buying another persons property by a deceit or breach of confidence committed with causing damage in the significant size) and 320.2 (Use of obviously counterfeit documents) of the Criminal Code of the Azerbaijan Republic.


Abulfaz Sadiqbeyli claims that in 2016 he bought a car “Niva” on a loan through intermediation of Nikoil Bank.

On the same year, he paid half the cost of the car. On January 2017, the Bank’s employees informed him that he still owes 8100 manat to the bank. Later, he was informed, in the bank, that he does not have to pay any penal interest and that his debt is 5100 manat.

After paying off this debt, Bank provided A. Sadiqbeyli with a document certifying the absence of debt and the full closing of the loans.

After 3-4 months he sold this car, and formalized the sale in traffic police. When the Ministry of Internal Affairs discovered the facts of appropriation of money at Nikoil Bank, A. Sadiqbeyli was summoned several times for questioning. He was attracted to the case in capacity of the witness and he was questioned 5 times.

On November 21, 2018, Abulfaz Sadiqbeyli was summoned for interrogation once again, where he was questioned not as a witness, but as a defendant. The accusations under Articles 178.2.1 (Swindle, is maintaining another persons property or buying another persons property by a deceit or breach of confidence committed on preliminary arrangement by group of persons), 178.2.4 (Swindle, is maintaining another persons property or buying another persons property by a deceit or breach of confidence committed with causing damage in the significant size) and 320.2 (Use of obviously counterfeit documents) of the Criminal Code of the Azerbaijan Republic were brought against him.

In the presence of his lawyer, A. Sadiqbeyli presented to the investigation all documents on paying off the debt. It should be indicated that carried out handwriting examination confirmed the authenticity of the signature and stamp on the document -certifying the discharge of a debt- and established its affiliation to the Bank.

However, several hours later, A. Sadiqbeyli was brought to Baku City Sabail District Court for selection of the preventive measure.

Investigator’s application was filed on the basis of the statement of the First Deputy of General Prosecutor of the AR Rustam Usubov.

At the court hearing, A. Sadiqbeyli stated that he did not commit any crime, that he paid off the loan fully, and that he received a document certifying the full discharge of the debt, of which the authenticity was established by the respective examination.

On November 21, 2018, Baku City Sabail District Court decided to choose preventive measure against A. Sadiqbeyli in form of arrest for the period of 3 months.


Commentary by an expert lawyer:

The court decision is unlawful and groundless. According to the Article 28 of Constitution of Azerbaijan Republic,

– I. Everyone has the right for freedom.
– II. Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.

The right to freedom is one of the fundamental rights in a democratic society, enshrined in both national and international law. As prescribed by Article 5 (1) of the European Convention for  Protection of Human Rights and Fundamental Freedoms, everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

Article 155.2 of the Code of Criminal Procedure of the Azerbaijan Republic regulates the question of the necessity for choosing a restrictive measure and which of them should be applied to the specific suspect or accused. In resolving the question of the necessity for a restrictive measure and which of them to apply to the specific suspect or accused, the preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court shall bear in mind:

155.2.1. the seriousness and nature of the offence with which the suspect or accused is charged and the conditions in which it was committed;

155.2.2. his personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence;

155.2.3. whether he has committed a previous offence, the previous choice of restrictive measure and other significant fact;.

155.2.4. the presence or absence of reconciliation between the suspect or accused and the victim or his legal successor, who is a close relative, compensation for damage caused by the crime, and other significant circumstances.

As grounds, that justify the necessity for application of the preventive measure in form of arrest against A. Sadiqbeyli are indicated in the Court decision:

–        possibility to abscond from the investigation and the court;

–        likelihood of repetition of the crime;

–        illegally influencing parties to the criminal proceedings;

–       obstruction of the normal course of the investigation;

–        the seriousness, nature and public threat of the alleged crimes;

–        the existence of sanctions involving the punishment  for a period of more than 2 years
              

The Court showed as the first ground “the possibility to abscond from the investigation and the court”.  As can be seen from above mentioned Articles, for the arrest, “there should be enough sufficient grounds to suppose” that a person may abscond from the investigation and the court.

No grounds are indicated in given court decision. The decision solely consists of the standard expressions and extracts from the law, and does not differ from any other court decisions on arrest, only the facts of the case and details of detainees are changed.

A. Sadiqbeyli always arrived, when summoned by the investigation body, to testify. Exactly, because of  this reason, this argument is not supported by any serious grounds.

The next argument of the court is “likelihood of repetition of the crime” by the accused. A. Sadiqbeyli never committed a crime before. This argument is also not proved by any facts.

The argument about “illegally influencing parties to the criminal proceedings” does not have any right to exist at all. Even though investigation body brought the accusation under Article 178.2.1 (Swindle, is maintaining another persons property or buying another persons property by a deceit or breach of confidence committed on preliminary arrangement by group of persons) of Criminal Code of Azerbaijan Republic, no one except A. Sadiqbeyli was attract to the investigation.

Another argument related to “obstruction of the normal course of the investigation” also does not have any grounds. A. Sadiqbeyli presented to the investigation all the documents available, helped the investigation in establishing the truth and did not interfere with the normal course of the investigation.

There is no need to speak about “the seriousness, nature and public threat of the alleged crimes”. In its decision, the court speaks about the lesser nature of the charge, but at the same time refers to the seriousness of the crime and the public threat to the society.

Concerning preventive measure, in any case, the court had to consider the question of application of  restrictive measure, other than arrest. Besides, the court had to present the sufficient grounds, reasoning, why in this case, alternative measure cannot be chosen.
In the decision of the Plenum of the Supreme Court of Azerbaijan Republic “About the practice of the application by courts of the jurisdiction when considering the cases about the selection of the measure of restraint such as taking the accused into custody” from November 3, 2009, states that courts, when choosing the preventive measure should not restrict themselves to only formal procedural grounds, prescribed by the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic.

The courts must examine, if there are sufficient grounds related to a particular accused, and if they are proven by case materials. In given case, court did not only ignore laws, but also the direct instructions of the Plenum of the Supreme Court of Azerbaijan.

The above-mentioned Article 5 “The Right to liberty and security” of the European   Convention for the Protection of Human Rights and Fundamental Freedoms in the paragraph 1 speaks about the physical freedom of  person; its aim is to ensure that no one shall be deprived of his liberty. An exhaustive list of the cases established by Article 5, paragraph 1 of the European Convention could not be interpreted more broadly. This list is quite sufficient  and restricted.

“It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with.” (Judgment of the European Court of Human Rights in Scott v. Spain,  from December 18, 1999) – https://www.refworld.org/cases,ECHR,3ae6b68620.html


The arrest of A. Sadiqbeyli is unlawful and groundless, because it violates the norms of the criminal procedural law and by-laws, norms of international agreements and precedents of the European Court of Human Rights, which carry the recommendations of the mandatory nature  for member states of the Council Europe.

A. Sadiqbeyli’s brother Vasif Sadiqbeyli calls this arrest politically motivated. He views this arrest as the punishment for active political role in the opposition party “Musavat”