THE COURT HAS GROSSLY VIOLATED THE RIGHTS OF AZER QASIMLY
Azer Qasimly
Analysis of violation of law during Azer Qasimly’s judicial proceedings
Baku City Yasamal District Court
Case № 4(004)-1087/2024
9 December 2024
Presiding judge: Orkhan Mammadli
Defendant: Azer Qasimly
Defenders: Aqil Layij, Rovshana Rahimli
With the participation of Jeyhun Mirjavadli from the Baku City Yasamal District Police Station Investigation Department
Azer Qasimly (born in 1975) a political scientist and Head of the Institute of Political has been a participant of many political conferences. In 1997 he took part in the conference of young sociologists and political scientists in Kiev, his analysis was published in the collection of articles concerning the conference resolutions.
In 2008-2009, the journal ‘Policy’ published A.Qasimly’s series of articles. In the period from 2005 to 2010 he participated in business projects in Germany, Estonia and Russia. However, Qasimly decided to return to Azerbaijan to be engaged in political activity. Starting from 2011 and up to 2019, he held various managerial positions in the ReAl political movement in Azerbaijan. In 2019, Gasymly left ReAl and started his political science career creating the Institute of Political Management, the Head of which he had been until his arrest.
On 8 December 2024, he was detained and charged with committing a crime under the Article 182.3.2 (Extortion, committed with a purpose of occupying large scale of property) of the Criminal Code of the Azerbaijan Republic.
According to the investigation, in 2022-2023, A.Qasimly extorted a large sum of money from his acquaintance, Qurbanali Yusifov. The investigator appealed to the Court with a motion to select a preventive measure in the form of arrest for the period of 4 months against A. Qasimly.
At the trial, Mr Qasimly pleaded not guilty to the charges and asked the Court to dismiss the investigator’s motion.
The defence indicated that there was a civil dispute between A.Qasimly and Q.Yusifov, a complaint concerning that dispute has been sent to the Sheki Court of Appeal. His lawyer also clarified that in the civil case there had been a receipt signed by Yusifov obliging him to return Qasimly’s money that Yusifov had borrowed. Qasimly was forcibly detained in front of his young son.
On 9 December 2024, the Baku City Yasamal District Court granted the investigator’s petition to impose a measure of restraint in the form of detention in custody for a period of 4 months against A. Qasimly.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
According to the Article 148.3 of the Code of Criminal Procedure of the Azerbaijan Republic,
if there is other information giving grounds to suspect a person of committing an act provided for in criminal law, he may be detained by the preliminary investigator, another official of the investigating authority, the investigator or the prosecutor in the following cases:
- if he tries to escape from the crime scene into hiding, or to hide from the prosecuting authority;
- if he has no permanent home or lives in another area;
- if his identity cannot be established.
As stated above, A.Qasimly was detained in a rough manner in front of his minor son, without any reason to do so, as there were no grounds on which a particular person could be detained by the law enforcement officers in such a manner.
The Article 155 of the Criminal Procedure Code of the Azerbaijan Republic lists the grounds on which the Court may impose a preventive measure on the accused:
- hidden from the prosecuting authority;
- obstructed the normal course of the investigation or court proceedings by illegally influencing parties to the criminal proceedings, hiding material significant to the prosecution or engaging in falsification;
- committed a further act provided for in criminal law or created a public threat;
- failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;
- prevented execution of a court judgment.
In that case, the Court indicated the following grounds in its ruling:
- hiding from the body conducting the criminal proceedings;
- recommitting an act stipulated by the criminal law;
- obstructing the normal course of the preliminary investigation or Court proceedings with unlawful pressure on the individuals engaged in the criminal proceedings;
- committing a particularly grave offence by the accused.
Interestingly, the Court justified the likelihood of hiding from the investigating authority by the severity of the presumed punishment without indicating any valuable arguments proving that assumption.
According tot he Para. 3 of the Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms,
Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
The judgment of the European Court of Human Rights (ECHR) in the case of Aguilina v. Malta dated 29 April 1999 states,
“…His counsel drew the court’s attention to Article 5 § 3 of the Convention which, according to him, obliged the court to examine of its own motion whether the circumstances of the case justified his continued detention. The Court of Magistrates ruled as follows: According to the constant practice of this Court and according to the Criminal Code, this Court cannot consider any circumstances at this stage and has to regulate itself according to the charges brought forward by the prosecution. The Court, furthermore, cannot enter into any question to consider ex officio the release from arrest, but first an application has to be filed which has to be notified to the Attorney-General, and after his reply or failing such a reply after the time set by law, it may decide on release under guarantees. Therefore what the defence is requesting is outside the functions of this Court.” – https://hudoc.echr.coe.int/?i=001-58239
The judgment of the ECHR in the case of Asenov and Others v. Bulgaria dated 28 October, 1998, states,
“…preliminary inquiries regarding alleged police misconduct should include the examination of independent witnesses, and that further investigations should therefore be carried out. Thus, the “officer” must be independent of the executive and the parties (ibid.). In this respect, objective appearances at the time of the decision on detention are material: if it appears at that time that the “officer” may later intervene in subsequent criminal proceedings on behalf of the prosecuting authority, his independence and impartiality may be open to doubt. The “officer” must hear the individual brought before him in person and review, by reference to legal criteria, whether or not the detention is justified. If it is not so justified, the “officer” must have the power to make a binding order for the detainee’s release.” – https://www.srji.org/resources/search/33/
In the particular case, the ‘official’ should be understood as the court that considered the application of a preventive measure against Mr Qasimly. It is evident from the judgement that the Court stated only that a measure of restraint in the form of arrest could be applied to Qasimly, without indicating the specific circumstances and arguments justifying the imposition of the harshest measure of restraint.
Moreover, the Court didn’t consider either a detainee’s or defence’s testimonies. At this stage of the case, the Court took into account only the testimony of the person recognised by the investigating authority as a victim.
The Article 155.2 of the Code of Criminal Procedure of the Azerbaijan Republic states,
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:
- the seriousness and nature of the offence with which the suspect or accused is charged and the conditions in which it was committed;
- his personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence;
- whether he has committed a previous offence, the previous choice of restrictive measure and other significant facts.
The moral character of the accused, his impeccable authority within and outside the country, his level of education and upbringing, his permanent place of residence, place of work, marital status, custody of minor children, absence of any offences in the past were ignored by the Court.
As the lawyer pointed out at the trial, there had been a civil dispute between the defendant and victim, which was currently pending before the National Courts. There was no corpus delicti in the actions of the accused. The prosecution was based just on the victim’s testimony.
The Court justified the imposition of a preventive measure in the form of arrest by recalling the gravity of the charge, according to which there is a punishment of more than 10 years. Despite the fact that the Article 155.3.1 of the Code of Criminal Procedure of the Azerbaijan Republic states that arrest may be applied to the individuals accused of committing an offence, for which a punishment of imprisonment for a term exceeding 2 years may be imposed, however, this Norm violates the principle of presumption of innocence enshrined in the Article 63 of the Constitution of the Azerbaijan Republic and Article 6.2 of the European Convention.
Furthermore, the Constitution of the Azerbaijan Republic stipulates in its Article 151 that in the event of contradiction between the legal acts within the legislative system of the Azerbaijan Republic and the inter-State treaties of which the Azerbaijan Republic is a party, the international instruments shall be applied.
In this case compliance with the Article 6.2 of the European Convention would be more appropriate rather than invoking the Code of Criminal Procedure of the Azerbaijan Republic Article 155.3.1.
In addition, the ECHR case laws also enshrine the principle of presumption of innocence as one of the most important elements of a fair trial.
Thus, the ECtHR judgment in the case of Van der Tang v. Spain of 13 July 1996 states,
“The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices: the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty.” – https://hudoc.echr.coe.int/?i=001-57946
The Court did not consider any alternative preventive measures other than arrest. There was no need to isolate Mr Qasimly from the society in the pre-trial period, there were no grounds or evidence and arguments for imposing a preventive measure in the form of arrest. The arrest of Qasimly is not legitimate. It is unlawful and illegal. The Court should have applied a different preventive measure not related to arrest, as the defence was willing to provide the guarantees established by Law.
The ECHR judgment in Wemhoff v. Germany dated 27 June 1968, states that if a detention in custody is maintained only because of a fear that the accused would abscond from the justice system, he should nevertheless be released from the detention if he provided appropriate guarantees. – https://hudoc.echr.coe.int/?i=001-57595
The violations of the substantive and procedural norms committed by the Court in the application of the preventive measure adopted by the European Convention, ratified by the Azerbaijan Republic, as well as the ECHR precedents, resulted in a gross violation of A.Qasimly’s fundamental rights, e.g. the Right to Liberty and Personal Inviolability as well as the Right to Presumption of Innocence.