The court in Azerbaijan violated the Azerbaijani citizen’s right to freedom


Ali Zeynalov

Analysis of violation of law during Ali Zeynalov’s judicial proceedings

Baku City Khatai District Court

Case № 4(011)-194/2024

8 March 2024

Presiding judge: Sulkhana Hajiyeva

Defendant: Ali Zeynalov

Defender: Fariz Namazly

With the participation of Alibaba Hajiyev, a Senior Investigator from the Investigation Division within the Baku City Investigation and Inquiry Police Department, and Abulfaz Huseynov, a Prosecutor from the Supervision of Execution of Laws in Investigation, Inquiry and Operative Investigation Activity Department within the Baku City Internal Affairs Prosecutor Office.

Ali Zeynalov, born in 1996, was previously a member of the N!DA Civic Movement; recently worked as coordinator at the Institute for Democratic Initiatives.

On 6 March 2024, the Head of the mentioned Institute, Akif Gurbanov, as well as employees Ramil Babayev, Ilkin Amrakhov, and journalists of the internet resource Toplum TV Mushfiq Jabbar, Farid Ismayilov, and a member of the Board of the Civil Movement N!DA, Elmir Abbasov, were detained in the Toplum TV office. Other employees of the Internet network were also detained but released a few hours later.

There were searches in the office as well as in the detainees’ residences, as a result of which they seized various amounts of currency. At Ali Zeynalov’s house, it was seized a number of banknotes for a total of EUR 10,150 and USD 9,060.

The following day, the Baku City Khatai District Court imposed a non-arrest preventive measure on the previously detained Farid Ismayilov and Elmir Abbasov. They were placed under the police supervision.

On 6 March 2024, Ali Zeynalov was identified as a suspect.

Soon all detainees, including Ali Zeynalov, were charged with committing an offence under the Article 206.3.2 (Smuggling committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic (AR CC ).

The Baku City Police Department investigator and Prosecutor applied to the Court with a petition and submission to impose against Ali Zeynalov a measure of restraint in the form of detention for a 4-month period.

On 8 March 2024, the Baku City Khatai District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Ali Zeynalov in the form of detention for a period of 4 months.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The Court specified the following as grounds for imposing a preventive measure in the form of a remand in custody:

  • concealment from the authority conducting the criminal proceedings;
  • unlawful pressure on those involved in criminal proceedings;
  • obstruction of the normal course of the preliminary investigation through the concealment of relevant materials related to the criminal prosecution;
  • re-committing an offence defined in the Criminal Code and posing a danger to society.

It should be recalled that a large number of orders to impose a measure of restraint in the form of arrest are usually granted by the Court in the interests of the investigating authorities. Ali Zeynalov’s case was not an exception.


Despite the fact that there are the above-mentioned grounds listed in the Court ruling, yet, it does not provide any substantial evidence that could justify the imposition of such a harsh preventive measure.


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.

As can be seen, the Court merely limited to rewriting almost all the grounds from the Code of Criminal Procedure of the Azerbaijan Republic, however, none of them was substantiated by any evidence.

Apart from the above-mentioned grounds, the Court, in accordance with the Criminal Code of the Azerbaijan Republic, Article 155.2, shall take into account the following characteristics of the accused in selecting a preventive measure:

  • 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 presence or absence of reconciliation between the suspect/accused and victim or his/her legal assignee being a close relative, compensation for the damage caused in the result of an offence, and other significant circumstances.


Ali Zeynalov, highly educated well-known activist in the civil society, has a permanent place of residence and work, has not been previously convicted. The defendant’s positive characteristic was not taken into account by the Court. The seizure of currency in Zeynalov’s house is not a justified ground for suspicion, as it has not yet been determined his connection with the found currency, neither whether the money was actually smuggled across the Azerbaijani border nor whether it belonged to Zeynalov. The existence of the money is not an indication of its criminal acquisition.

All these suspicions had to be investigated and determined by the Court. It means that the investigating authority had an obligation to submit to the Court such evidences that explicitly proved the criminal acquisition of the found currency and its attributability to the accused.

Grounded suspicion is an essential element of the legitimate defence to an arbitrary deprivation of liberty. As stated above, the existence of reasonable suspicion presupposes the availability of facts or information that would convince an objective observer of whether a person could have committed that offence. What may be considered justified depends on the totality of the circumstances.

With regard to the suspicion authorising detention or temporary custody, the European Convention for the Protection of Human Rights and Fundamental Freedoms provides three elements:

  • commission of the offence;
  • reasonable grounds to assume that it is necessary to prevent the offence from being committed;
  • a threat that the person alleged to have committed an offence may flee or threat to attempt a criminal offence.

If the court fails to take an individualised approach to the case and instead adopts a general attitude, which merely recites the rules of law and lacks motivation, it violates a fundamental right of a democratic society – the right to liberty guaranteed by the Convention, Article 5(1). Thus, the deprivation of liberty must first and foremost be lawful in terms of national law; in this respect, it is incumbent on the national courts to interpret domestic law in a concrete area and the deprivation of liberty must also fulfil the objectives of the Convention, Article 5(1).

Among the grounds mentioned by the Court as justification for the imposition of a measure of restraint in the form of arrest was a danger to the public. As stated above, Ali Zeynalov has a stable character, never previously committed any criminal offences, is engaged in useful social and political activities and, in view of his personal qualities, is not predisposed to committing offences. All these facts indicate that the court’s indication of such a ground is not based on any reasoning that the accused, being at liberty, would pose a danger to the society.

It is worth pointing out that the European Court of Human Rights (ECHR) has stated in numerous judgements that even a certain category of “inadequate” individuals (such as the mentally ill, alcoholics or drug addicts) cannot be detained solely on the grounds of their health condition or use of harmful drugs. Any detention must have substantial grounds that would justify a detention. Thus, the “danger to society” in A. Zeynalov’s case, as stated by the Court, has no substantiated ground.


So, a detention in custody shall be justified only if the particular indications reveal a genuine public interest requirement that prevails, notwithstanding the presumption of innocence, over a consideration of individual liberty.


A particularly important point is the term of the preventive measure. According to the Article 158.1 of the Code of Criminal Procedure of the Azerbaijan Republic, at the pre-trial stage of the criminal case, when it chooses arrest as a restrictive measure, the court shall specify a remand period of up to 2 (two) months in respect of offences which do not pose a major public threat, up to 3 (three) months in respect of minor offences and up to 4 (four) months in respect of serious and very serious offences

Although the Article 158.1 of the Code of Criminal Procedure of the Azerbaijan Republic stipulates the application of a preventive measure in the form of arrest for a certain period of time according to different categories of offences, however, a mere indication of the term is not considered sufficient. In this case, the Court imposed a preventive measure for a maximum term of 4 months, which was precisely requested by the investigative body. Neither the prosecution nor the Court justified the reason for the 4-month term. As a rule, the term of arrest for such kind of offences is 4 months, but in no case (in view of the arrest orders) the Court justified the imposition of a preventive measure for such a long term, which in this case was also irrational.

The judgement of the European Court of Human Rights in the case of Contrada v. Italy of 28 August 1998 says

“According to the Court’s practice, the reasonable time limit is not subject to an abstract assessment. The reasonableness of an accused person’s detention must be analysed on a case-by-case basis in accordance with the case specifics. Detention may be justified only if specific indications reveal the actual existence of public interest overriding, notwithstanding the presumption of innocence, that of respect for one’s personal liberty. It is primarily incumbent on the judicial authorities to investigate all the facts that would confirm the existence of a public interest justifying exceptions to the general rule respecting individual liberty and take them into account in their rulings on requests for release…The existence of a reasonable suspicion that the detainee has committed an offence is a precondition for lawful detention but, after a certain period of time, it can no longer be sufficient; in this case, the Court must determine whether the other arguments taken into account by the trial authorities justify the deprivation of liberty. If these arguments are found to be ‘relevant’ and ‘sufficient’, the Court must ascertain whether the competent domestic authorities have exercised ‘particular diligence’ in the course of the investigation”. –

It is also stated in the court ruling on the imposition of a measure of restraint against the defendant in the form of arrest that A. Zeynalov is accused of committing a serious offence punishable with up to 8 years’ imprisonment, therefore it is reasonable to believe that he may re-commit a criminal deed causing a danger to society. We have already mentioned above “the danger to society”. However, the main point in this judgment is the alleged commission of a serious criminal act punishable by up to 8 years’ imprisonment. In the ruling, the above conclusion is marked in bold italics, which highlights its importance to the judgement. Although it is stipulated in the Code of Criminal Procedure of the Azerbaijan Republic, Article 155.3.1, stating that arrest may be applied to a person accused of committing an offence for which a sentence of imprisonment of more than 2 years may be imposed, the precedents of the European Court of Justice point out the insufficiency of this conclusion.


Thus, the judgment of the European Court in the case of Scott v. Spain dated 18 December 1996 states,


“The mere existence of a serious suspicion of involvement in the commission of an offence, being a relevant factor in the case, does not justify such prolonged pretrial detention”. –

Also, the judgment of the European Court of Justice in the case of Tomasi v. France dated 27 August 1992 states

“The Court acknowledges that the particular gravity of certain crimes may provoke a public reaction and social repercussions that make it justified to be remanded in custody, at least for a certain period of time. In exceptional cases, this point may be taken into account in the light of the Convention, at least to the extent that domestic law (…) admits the notion of a breach of public order as a consequence of the offence. However, this may only be considered justified and necessary if there are reasons to assume that a detainee’s release would genuinely violate public order or if that order is genuinely threatened. Pre-trial detention should not be a precursor to a custodial sentence.”-

To summarise what has been said above, we can conclude that the preventive measure chosen by the Court does not comply with the national law, the Articles of the European Convention on Human Rights, the precedents of the European Court of Human Rights, has no legitimate objective, and therefore, grossly violates the fundamental right, the Right to Liberty.