The court issued the order on the application of a measure of restriction in respect of Mehman Aliyev
Baku City YasamalDistrict Court
August 26, 2017
Presiding Judge: Azer Tagiyev
Public Prosecutor: Gadir Mammadov
Investigator of the Ministry of Taxes of the Azerbaijan Republic: Vusal Ibadov
Accused: Mehman Aliyev
Defender: Fuad Agaev
The Department of Preliminary Investigation of Tax Crimes under the Ministry of Taxes of the Azerbaijan Republic had initiated a criminal case under Article 213.1 (evasion from payment of taxes) of the Criminal Code of the Azerbaijan Republic (CC of AR) against the Turan Information Agency. On August 7, 2017 a tax audit of Agency’s activities was started. The decision on the tax audit was based on the decision of the Local Income Department of Baku, in which the agency’s indebtedness was indicated – more than 37,000 manats. The department considered that the agency hides its real incomes. Both departments demanded all tax documents of the Agency. The managers of the Agency filed a complaint against the audit decision to the Baku Administrative Economic Court no. 1. The complaint referred to the illegality of the tax audit, and there was a request to annul this decision.
On August 16, 2017 on the basis of the decision of the Baku city Nasimi District Court a search was carried out in the office of Turan Agency, which lasted about 3 hours. As a result of the search, numerous documents were seized. Director of the agency Mehman Aliyev said that the tax authorities had quickly withdrawn the documents, as well as the accountant’s computer. Mehman Aliyev said: “We were given a deadline to provide all the documents. We copied all of the documents and were going to submit them to the Ministry of Taxes. But for some reason they did not wait and they quickly came and confiscated our documents.” He also said that the results of the check should be learned from those who ordered it. “There are no problems in our documents. It does not depend on us what decision will be taken,” Mehman Aliyev said.
On August 24, 2017 Mehman Aliyev was detained as a suspect in the commission of a crime under Article 213.1 of CC of AR. On August 25, 2017 new charges were brought against M.Aliyev under Articles 192.2.2 (illegal business with the extraction of large income) and 308.1. (abuse of official powers) of the CC of the AR.
On August 25, 2017 the Baku city Yasamal District Court issued a ruling on the application of a measure of restraint in respect of Mehman Aliyev in the form of imprisonment for a period of 3 months.
Commentary of an expert lawyer:
The decision is illegal and unreasonable.
Immediately after the journalist’s arrest the defender of M.Aliyev Fuad Agaev stated: “They (the investigative bodies) think about this case as if this case is the same as it was with a number of NGOs that started 3 years ago. Many people were arrested then. But Turan News Agency is not an NGO. Mehman Aliyev does not hide the fact that he was engaged in entrepreneurial activity. The agency has a registration. In addition, the agency does not need licensing. This means that it is impossible to talk about criminal composition, which was fully proved in court. On the other hand, let’s consider the tax charges, that is, the resolution of the Ministry of Taxes for 2016. Additional taxes are charged now for this period. We asked, how is this possible? They replied that a private tax audit was conducted. But is there any report of private verification? No. If there is no any audit report, how can such an accusation be made? “
According to the lawyer, “in this case, the investigative body was obliged at least to suspend the proceedings on the basis of the petition.” Fuad Aghayev said that the charge under Article 308.1 (abuse of official powers) of the CC of RA is also illegal, it was proved in court. There was not a single legal basis for arrest.” The events that preceded the arrest show that the arrest of Mehman Aliyev was pre-planned and sponsored. So, let’s consider them.
On August 24, 2017, at 10.40 am, the Criminal Board of the Baku Court of Appeal under the chairmanship of Faig Gasimov was to consider a complaint against the decision of the Baku city Nasimi District Court dated August 15, 2017 to conduct a search in the office of the Turan Agency. Mehman Aliyev and his representative were in court at the appointed time, but due to the absence of the investigator and the prosecutor, the hearing was adjourned until 14.40. The process started at the specified time and lasted 30 minutes. The complaint was rejected. After this, investigator Vusal Ibadov and prosecutor Gail Mammadov invited Mehman Aliyev to state evidences, as they said, for 30-40 minutes. Although this invitation did not comply with the norms of the criminal procedure legislation, Aliyev and his representative Fuad Agaev went to the Department for Preliminary Investigation of Tax Crimes under the Ministry of Taxes.
M.Aliyev and his representative entered the building of the Department at about 15.20. Literally in an hour and a half, at 16.45 the information portal www.haqqin.az, referring to the information of law enforcement bodies, spread information that Mehman Aliyev was detained by employees of the investigation department of the Ministry of Taxes. At the time this information was distributed, M.Aliyev and his representative (from 15.20 to 18.00) were sitting and waiting for the admission by the Department of Preliminary Investigation of Tax Crimes. Only at 18.00 they were invited to the office of investigator Vusal Ibadov.
The investigator, having learned that the representative of Aliyev does not have a warrant, but only a Power of Attorney, asked him to leave the building of the Department. We have to clarify that for the representative of the witness there is no warrant, it is enough to present the relative Power of Attorney. Fuad Agaev, the representative of M.Aliyev, had such Power of Attorney. Approximately at 18.20 M.Aliyev was announced the decision to detain him as a suspect. Thus, only after 1 hour and 35 minutes after the www.haqqin.az website spread information about the arrest of Mehman Aliyev, M.Aliyev was really detained. The detention order stated that M.Aliyev should be detained, as he might abscond from the investigation.
Information about the detention, which was distributed in advance, indicates that the detention of Mehman Aliyev was planned and politically ordered.
It was said in the arrest order dated August 25, 2017, that if M.Aliyev remained at large, he could escape from the investigation and the court, interfere with the course of the investigation, given the nature of the criminal act and the degree of public danger, the likelihood of illegal influence on the participants in the process and re-commission of criminal acts in the future.
Although the court referred in its decision to Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, it did not apply it and grossly violated it. According to Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms : “Everyone has the right to freedom and personal inviolability. No one shall be deprived of the liberty save in the cases and in the manner prescribed by law.”
The resolution also refers to Resolution no. 3 of the Plenum of the Supreme Court of the Azerbaijan Republic dated November 3, 2009 “On Practice of Application of Legislation by Courts when Considering Motions for Election of Measure of Restraint in the Form of Arrest against Accused”. Pursuant to clause 8 of the Resolution, when examining applications, courts should check primary evidence that would prove the likelihood of committing crimes under the criminal code, including the existence of procedural grounds for choosing a measure of restraint in the form of arrest. However, the court did not observe what it referred to. The court did not verify any evidence supporting the charge. The court accepted the procedural documents presented by the prosecution as true and aggravating the guilt of Mehman Aliyev.
The ruling of the European Court of Human Rights (ECHR) in the case of Ilgar Mammadov versus Azerbaijan on May 22, 2014 shows a violation of Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The ECHR’s ruling states that official documents of the prosecutor’s office have no witness testimony and any other information allowing suspecting the applicant in the described actions and having grounds for charging him with these criminal acts. Courts considering the election of a measure of restraint against the applicant did not submit such testimony or other information.
Neither the prosecution nor the judge could substantiate their arguments that Mehman Aliyev may abscond from the investigation and the court. During the trial, the investigator acknowledged the fact that M.Aliyev always appeared in the investigation bodies when he was invited by telephone and testified. Thus, the investigator confirmed the absolute unreasonableness of the assumption that M.Aliyev may be hiding from the investigation.
Prosecutor Gail Mammadov participated in the trial. His participation was illegal, since the presentation to the court of M. Aliyev’s arrest was filed not by G. Mamedov, but by prosecutor Rustam Usubov.
Gail Mammadov justified the idea of the arrest by the fact that M.Aliyev often travels outside the country, cooperates with foreign structures, receives grants from them. But neither the investigator nor the prosecutor could refute the fact that M.Aliyev always came to the interrogations on the call and could not present any argument confirming the fears that he might abscond from the investigation and the court. In each specific case, the court must establish the degree of danger that the accused may abscond from the investigation. If there is information about plans of the accused to escape, or the evasion of the investigation the court can justify the choice of a measure of restraint in the form of arrest. In the case of Mehman Aliyev, none of the above arguments existed.
In addition, there were no grounds for deprivation of liberty specified in Article 155.1 (grounds for application of preventive measures) of the Criminal Procedural Code of the Azerbaijan Republic (CPC of AR).
Article 156.1 of the CPC of AR specifies that the decision on the choice of the measure of restraint must specify the crimes committed by the suspect or the accused and the grounds for the necessity of choosing a preventive measure with reference to preliminary evidence. The judge did not refer to any preliminary evidence or to the record.
The arrest of M.Aliyev also contradicted a number of articles of the Constitution of the AR:
– Article 12 of the Constitution of the AR, which reads:
I. Ensuring the rights and freedoms of a person and citizen, a decent standard of living for citizens of the Republic of Azerbaijan is the highest goal of the state.
II. The human and civil rights and freedoms listed in this Constitution are applied in accordance with international treaties to which the Republic of Azerbaijan is a party.
– Article 28 of the Constitution of the AR, which reads:
I. Everyone has the right to freedom.
II. The right to freedom can be restricted only in the manner prescribed by law through detention, imprisonment or incarceration.
– Article 151 of the Constitution of the Azerbaijan Republic, according to which,
When there is a contradiction between the normative legal acts included in the system of legislation of the Republic of Azerbaijan (excluding the Constitution of the Republic of Azerbaijan and acts adopted by referendum), and international treaties to which the Republic of Azerbaijan is a party, international treaties are applied.
If there are contradictions between the norms of the country’s criminal procedural legislation and the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the International Covenant on Political Rights, the norms of international treaties are in force.
Thus, with respect to Mehman Aliyev, there have been violated at least Article 5(1) (the right to liberty and security of person), Article 6(1) (the right to a fair trial), Article 6(2) (the right to the presumption of innocence), Article 7 (punishment solely on the basis of the law), Article 10 (freedom of expression), Article 14 (prohibition of discrimination) and Article 18 (limits on the use of restrictions on rights) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
P.S. On September 11, 2017 the Baku City Yasamal District Court changed the measure of restraint in respect of Mehman Aliyev on a recognizance not to leave.