The Baku City Sabail District Court sentenced Rza Safarsoy to 2 years in prison
The analysis of violation of the law during Rza Safarsoy’s judicial proceedings
Baku City Sabail District Court
Criminal case № 1(009)-199/2018
November 7, 2018
Judge: Anar Tanriverdiyev
Accused: Rza Safarsoy
Defenders: Fariz Namazly, Sahib Guliyev
Prosecutor: Jeyhun Mirzoyev
Rza Safarsoy is the Chairman of the Opposition Party Alov (Fire), the veteran of Karabakh war, and person with the disability of 2nd category.
At the night on July 3rd, 2018 there was no electricity almost all over Azerbaijan. In this connection, Rza Safarsoy spoke with sharp criticism, accusations towards authorities on his Facebook page.
On July 3, 2018 there was an assassination attempt on the Chief of the Executive Power of Ganja city Elmar Valiyev, who is known for his severity and violation of rights of the residents of Ganja. Yunis Safarov who shot E. Valiyev was arrested at the crime scene and subjected to severe tortures at the Police Department. Photos of the beaten and lying in the blood Yunis Safarov were posted at social networks. Rza Safarsoy condemned the tortures of Yunis Safarov and criticized the policy of the authorities at social networks.
Rza Safarsoy was writing on his Facebook page that the authorities, which are not able to control the situation in the country, and are tolerating such crimes, must resign and pass the power to the provisional government; and they should stand before the court themselves.
On June 9, 2018 Rza Safarov was arrested on charges of committing crimes under Articles 281.1 (Public appeals to violent capture of authority, violent deduction of authority or violent change constitutional grounds or infringement of territorial integrity of the Azerbaijan Republic) and 214-2 (Public calls for terrorism) of the Criminal Code of the Azerbaijan Republic. The investigation drew attention to the following statements of R. Safarsoy at social networks: “My Turkic people, Wake up!”, “Support Yunis Safarov”, “Rise, Azerbaijan!”, “Don’t be silent this time, but support Yunis”.
During the trial, R. Safarsoy testified that he was always the defender of the country, he participated in Karabakh war, he could not remain indifferent to the fate of Azerbaijan. Rza Safarsoy indicated that, by publishing given statements, he did not mean to call for the violent actions against anyone. His words carried symbolic character. However, he, as the majority of the residents of Ganja city, did not like the Chief of the Executive Power of Ganja Elmar Valiyev, as this official tormented the residents of Ganja, and treated his people with the disparage and humiliated them. R. Safarsoy was not able to bear this. But despite of anything, there was no direct intent in his publications.
On November 7, 2018, Baku City Sabail District Court found Rza Safarsoy guilty of the charges and sentenced him to 2 years in prison.
Commentary by an expert lawyer:
The court decision is unlawful and groundless. The call for the violent actions must foresee the direct intention. This means that the person realises the nature and focus of his public calls for violence and deliberately acts in such way. The compulsory requirement of the calls is its publicity, which suggests that the calls are addressed to wide range of people. The most typical examples of publicity are speeches at the meetings, pickets, and etc. In each concrete case, the issue of the publicity of the calls is solved by considering all the circumstances of the case. It should also be established that public apprehended the calls. During the preliminary and judicial investigation, it was not established how R. Safarsoy’s calls were apprehended by public, and if there was a serious reaction to them.
At the court hearing, persons who were not acquainted personally with R. Safarsoy and only read his statements at social networks were questioned as the witnesses. One of the witnesses Xeyraddin Aslanov stated that he does not consider R. Safarov’s publications to be rightful, he believes that they are directed against government. It is important to indicate here, that according to the Article 95 of the Code of Criminal Procedure of AR, a witness must inform about any known circumstances that are carrying importance for the case. As can be seen from the testimonies of the witness, he tries to express his opinion towards the publications of R. Safarov, which is not acceptable.
Another evidence that is accepted by the court as the conclusive proof of the guilt of the accused, is the conclusion of the forensic linguistic examination. In the conclusion of the examination from July 19, 2018, the expert states that there are elements in Rza Safarsoy’s publications that contain the calls for violent overthrow of the constitutional system, including the calls to disruption of public order, spreading panic among the population, the death of people with the aim to influence on the decisions of the governmental bodies and etc.
The expert, who is in fact, either linguist or philologist, gives the legal assessment of the publications of R. Safarsoy and evaluates his actions as the call for terrorism. This oversteps the limits of the mandate of an expert. According to Article 97.1 of the Code of Criminal Procedure of the Azerbaijan Republic, an expert shall be a person who is competent to give an opinion based on his special knowledge of science, technology, the arts and other professional fields, who has no personal interest in the proceedings and is appointed by the prosecuting authority or, at its request, by the head of his professional association, with his consent, for the examination of the case file.
The court accepted the expert’s opinion as the ground, without establishing, that the expert went beyond the limits of his power as indicated in the Code of Criminal Procedure of the AR. According to Article 127.3 of the Code of Criminal Procedure of the Azerbaijan Republic, the expert’s opinion shall not be binding on the preliminary investigator, investigator, prosecutor or court; it shall be checked by the prosecuting authority in the same way as any other evidence and evaluated in the light of all the relevant facts. If the opinion is not approved, a reasoned decision to that effect shall be given.
The evidences of the prosecution end here. In this case, there was not enough sufficient evidences to prove the guilt of the accused. According to the Article 146.1 of the Code of Criminal Procedure of the Azerbaijan Republic, the notion that sufficient evidence has been collected for the prosecution means that the amount of evidence on the facts to be determined is such as to allow a reliable and final conclusion to be reached on the case.
Another important aspect in this case was the court’s decision to leave the previously chosen by the investigative body preventive measure in form of arrest without change. In the verdict itself, there are not any grounds that explain the necessity to keep the accused behind the bars. It is also stated in the verdict, that the accused is the person with disability of the 2nd category, he has two young children, he participated in Karabakh war and he has serious health problems, especially with heart, and there are medical documents proving this in the case files. However, despite of this, the court kept the sharp preventive measure against Rza Safarsoy in power. If earlier, the investigation body applied for his arrest, and the court issued the order for the arrest before the trial, then after the final verdict there was no necessity to keep R. Safarsoy behind bars. Remaining in prison, causes R. Safarsoy additional sufferings, which is prohibited by Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The court verdict towards Rza Safarsoy violated norms of both national and international law.