The court in Azerbaijan once again violated the right of a citizen of the republic to freedom


Jeyhun Balashov

Analysis of violation of law during Jeyhun Balashov’s judicial proceedings

Beylaqan District Court

Case № 4(020)-07/2023

3 February 2023

Presiding judge: Ramiz Nurullayev

Defendant: Jeyhun Balashov

Defender: Farhad Humbatov

With the participation of: Elkhan Azimli, a Senior Deputy Prosecutor at the Beylaqan District Prosecutor’s Office, and Rashad Novruzov, a Senior Police Lieutenant, investigator at the Investigation Division of the Beylaqan District Police Department

Jeyhun Balashov was born in 1977 in Beylaqan district of Azerbaijan; permanent resident in Beylaqan district married, obtained secondary education, a Shiite believer and member of the “Muslim Unity” Movement.

On 27 January 2023, the Embassy of Azerbaijan in the Islamic Republic of Iran was attacked. The wave of repression against Shiite believers, which had begun earlier, became more intense after the attack on the Embassy. In total, there were arrested about 500 believers in the first six months of 2023, and almost all of them were prosecuted for drugs smuggling on a large scale.

Jeyhun Balashov was detained on 2 February 2023, in Beylaqan district. According to the investigation, he had in his position 7 plastic bags and one of them contained the narcotic drug methamphetamine of 0.955 grams, the second — 1.019 grams, the third —1.016 grams, the fourth—1.061 grams, the fifth — 0.959 grams, the sixth — 0.976 gram and the seventh —1.094 grams, in total — 7.08 grams.

Jeyhun Balashov was charged with committing an offence under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic.

In the course of the trial it was questioned an investigator of the Beylaqan District Police Department’s Investigation Unit. His testimony was related to the preventive measure against J. Balashov, and it was in accordance to the indictment. He also required the Court to issue a preventive measure in the form of remand in custody for the period of 4 months.

Also, during the trial, a defendant, Jeyhun Balashov, testified that he hadn’t going to hide from the investigative body, had a permanent place of residence, and undertook to come when summoned by the investigative body. He asked the Court to reject the investigator’s motion for arrest.

The Senior prosecutor assistant of Beylaqan district who was interrogated at the trial testified that the accused had committed an act falling into the category of particularly serious ones and he was a person prone to crime,  so there were chances of another crime being committed. In addition, according to the Senior prosecutor assistant, the accused might hide from the investigative body, would fail to appear when summoned and try to avoid punishment evading criminal responsibility. He may also exert unlawful pressure on the others involved in the trial. Thus, the Assistant prosecutor asked the Court to satisfy the submission of the Prosecutor’s Office in order to apply to J. Balashov a measure of restraint in the form of arrest.

On 3 February 2023, the Beylaqan District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Jeyhun Balashov in the form of detention for a period of 4 months.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

According to the Article 154 of the Code of Criminal Procedure of the Azerbaijan Republic, a restrictive measure is a coercive procedural measure intended to prevent unlawful behaviour by the suspect or accused during criminal proceedings and to ensure the execution of the sentence; it shall be applied in the cases described in Article 155.1 of this Code.

There are several types of preventive measures listed in the Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic, the strictest one is detention (arrest).

The Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic stipulates the grounds for applying a preventive measure.  The list of grounds is rather limited and consists of the following provisions:

  • 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.

Now, let’s examine which of the above-mentioned grounds the Court pointed out in the ruling to justify the imposition of a preventive measure in the form of arrest:

  • exerting unlawful pressure on those involved in the criminal proceedings;
  • obstructing the normal course of the preliminary investigation and judicial proceedings;
  • re-committing an offence under the criminal law;
  • pose a danger to the public;
  • failure without a valid reason to appear at the summons of the body conducting the criminal proceedings;
  • evading from criminal liability and serving punishment;
  • the seriousness of the accusation.

As we can see, the Court stated almost all the grounds listed in the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic. However, the ruling does not contain a single fact or argument proving any of the above grounds. Plus, the ruling does not specify whether any ground has been applicable to a particular person, or directly related to the accused.

It is odd that the Court, in its ruling, referred to the decision of the European Court of Human Rights (ECHR), the case of Lukanov v. Bulgaria, in which it was listed three conditions in order to impose an arrest: first, the arrest must be required by the domestic Law, second, the detainee must be brought before a competent court, and third, there must be reasonable suspicion of the commission of an offence.

Despite the reference to the ECHR judgment in this case, the domestic Court did not verify whether such conditions could be met in the present case. Even if the arrest was foreseen by the National Law, in this case it was imposed in violation of the procedural regulations. Furthermore, there was no clarity from the judgment regarding the defendant’s involvement in the drugs possession. It was testified only by the police officers who had detained Mr. Balashov.

The following is what the European Court of Human Rights said about “reasonable suspicion” in its judgment in the case of Fox, Campbell and Hartley v. the United Kingdom of 30 August 1990,

“The ‘reasonableness’ of the suspicion on which detention must be founded is an essential element of the protection afforded by subparagraph (c)(1) of the Article 5, against an arbitrary deprivation of liberty. (…) The existence of a reasonable suspicion presupposes beforehand the existence of facts or information that could convince an objective observer that an individual could have committed the offence. Whatever might be considered as reasonable depends, however, on the set of circumstances”. –{%22itemid%22:[%22001-57721%22]}

Unfortunately, taking into account the current situation and practice of the police, the investigators’ testimonies who detained the defendant, as well as the results of the drugs chemical examination, all above are rather doubtful to convince an objective observer that J. Balashov had committed that crime.

It is repeatedly stated in the arrest ruling that the accused was a person prone to committing a crime. It is unclear on what facts and arguments the police and Court reached such an assessment. It should also bear in mind that the ruling does not contain any facts about the crime previously committed by J. Balashov.

The Court justifies the application of the strictest preventive measure for a rather long period of time (initially it was for 4 months but later the term of imprisonment was repeatedly extended) by the fact that the defendant was accused of committing a serious crime. In this regard, the ECHR issued a ruling in the case of Scott v. Spain of 18 December 1996, which states,

“The mere existence of a credible suspicion of being involved in serious offences, being a relevant factor, does not justify such a lengthy pre-trial detention”. –{%22fulltext%22:[%22scott%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58010%22]}

Thus, the lack of particular arguments and justifications on the part of the Court, that could justify the imposition of preventive measure in the form of arrest, the general statements such as the risk of escape, hiding from the court and investigation, exerting illegal pressure on the parties involved in the process, etc., the absence of reasonable suspicion in the commission of a criminal offense on the part of the accused led to a gross violation of his Right to Freedom enshrined in the Article 28 of the Azerbaijani Constitution, Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.