THE COURT VIOLATED ELVIN MUSTAFAYEV’S FUNDAMENTAL RIGHT – THE RIGHT TO LIBERTY
Elvin Mustafayev
Analysis of violation of law during Elvin Mustafayev’s judicial proceedings
Baku City Court on Serious Crimes
Case № 1(101)-906/2024
31 January 2024
Presiding judge: Faiq Qaniyev
Judges: Mahmud Agalarov, Samir Aliyev
Defendant: Elvin Mustafayev
Defender: Zubeyda Sadiqova
State Prosecutor: Mr. Babakhan Hasanaliyev, a Prosecutor at the Division on Protection of State Prosecution in the Courts on Serious Crimes within the Department on Protection of State Prosecution at the General Prosecutor’s Office of the Azerbaijan Republic
- Mustafayev, born in 1996, was a member of the Trade Union Confederation Work Table. He along with the other activists (Afiyaddin Mammadov and Aykhan Israfilov who are currently imprisoned and considered political prisoners) were engaged in the protection of citizens’ labor rights, particularly the rights of couriers.
Previously, E. Mustafayev had been arrested following a summer 2023 rally organized in Baku. He was arrested together with Afiyaddin Mammadov, the Head of the Work Table. Both of them were detained on charges of committing offenses under the Articles 510 (Failure to obey the legitimate demands of a policeman) and 535.1 (Disorderly Conduct) of the Administrative Offences Code of the Azerbaijan Republic
and sentenced to 30 days under administrative arrest.
On 4 August 2023, E. Mustafayev was detained on charges related to committing crimes under the Articles 234.4.1 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed on preliminary arrangement by group of persons or organized group) and 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.
According to the conviction, on 4 August 2023, it was found 3.471 grams of narcotic drug heroin in E.Mustafayev’s possession. Then, he was brought to the Binagadi District Police Department’s administrative building, where he voluntarily handed over the drugs to the investigating authority.
- Mustafayev, interrogated in the course of the trial, did not plead guilty to the charges and called his arrest as politically motivated. He testified that he had been engaged in social and political activities protesting against injustice in the country. On 4 August 2023, while leaving a convenience store in his neighborhood, four strangers attacked him, then approached four others. The individuals, who did not introduce themselves, forcibly put him into a car and seized his cell phone.
- Mustafayev also revealed that despite the fact that he had moved to the Baku Nizami district a few months prior to the incident, he still had been controlled by the police in the Binagadi district in which his previous residence was located. He was detained by the officers from the Binagadi District Police Department, instead of being detained by the Nizami District police. He explained that the police officers’ route could be traced through the cameras installed on the roads.
He was first threatened and then beaten with fists and feet at the Police Department. However, E. Mustafayev told them that even if they broke his bones, he would not agree to their demands. After that, they continued beating him, and dragging him from one floor to another. Afterwards, they told him that they would put one gram of drugs, and that it was not so much, but Elvin Mustafayev did not accept it either. He was also threatened with bringing some woman who would falsely testify to be raped by him, that they would bring some witnesses working for the police, as well as “drug addicts” who would confirm everything the police told them. Other threats were that the charges could be linked to Iran and the fact that he had been an agent of that state. E. Mustafayev told the Court that he always campaigned against the people who consumed drugs, since it was harmful to the State. He was not allowed to study numerous investigative papers and was forced to sign them without reading it. The lawyer who attended the investigation did not say anything, because he had been ordered to do so. Mustafayev asked the Court to find him innocent of the incriminated crimes.
Hikmat Mutallimov, a senior operative of the Binagadi District Criminal Investigation Department, was questioned as a witness during the trial and testified that on 4 August 2023, he had received an operational information on illegal drug trade. As a result of operative investigation measures, E. Mustafayev was detained and drugs were found in his possession. A report on the fact was drawn up and signed.
Ramil Guliyev, an operative of the Binagadi district Criminal Investigation Department, provided testimony similar to Hikmat Mutallimov’s ones.
As it is described in the protocol of personal search from 4 August 2023, E. Mustafayev was offered a chance to voluntarily disclose a narcotic drug, and he did it. The above words were confirmed on the video footage.
The forensic chemical examination from 5 August 2023, proved the fact that the drug, heroin, manufactured by artisanal means, weighing 3.471 grams, had been found in E. Mustafayev’s possession.
According to the conclusion of the medical outpatient compulsory narcological examination dated 19 August 2023, it was clear that E. Mustafayev had not detected any signs of a narcological addictive disease.
The outpatient forensic psychiatric examination from 21 August 2023, confirmed that E. Mustafayev did not suffer from any mental illness at the time of the crime, and therefore could be considered to be sane.
On 23 September 2023, an investigative body ruling refused to initiate criminal proceedings on the fact that there were signs of a violent attack on E. Mustafayev’s body.
The Court came to the conclusion that the investigating authority hadn’t been provided with any irrefutable evidence of the acquisition of drugs for the purpose of sale. Nor was there any evidence that the crime had been committed by a group of persons on prior conspiracy. Therefore, the Court reached the following verdict: the acts should be reclassified from the Articles 234.4.1 and 234.4.3 to the Article 234.1-1 (Illegal acquisition, storage, manufacture, processing, transportation without purpose of sale of narcotic drugs or psychotropic substances in significant quantities, committed in large amounts) of the Criminal Code of the Azerbaijan Republic.
On 31 January 2024, the Baku City Court on Serious Crimes issued a verdict against Elvin Mustafayev. He was found guilty on the charges and sentenced to 3 years imprisonment to be served in a penal colony of general regime.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The Court reclassified the charge from the Articles 234.4.1 and 234.4.3 to 234.1-1 of the Criminal Code of the Azerbaijan Republic, which omits the provision of sale of a narcotic drug. The Court’s judgment could have been correct if it had passed an acquittal verdict against E. Mustafayev. However, in the current case, when the Court issued a guilty verdict, it is not possible to call the judicial verdict lawful and well-founded.
In the course of the trial E. Mustafayev described in detail the pressure he had faced at the police department. However, the Court did not pay attention to that testimony. There is only a note in the verdict that his words about physical and psychological pressure had not been recorded in the criminal case file. The Court found his testimony to be untrue. The Court should have taken them seriously and initiated all necessary steps to reveal the truth in the present case. It is worth pointing out that the accused described in every possible detail (quoting verbatim the words of the police officers) the rough treatment inflicted by the police officers.
In relation to ill-treatment, there are a number of domestic and international legal provisions on the subject. According to the Article 46 (III) of the Constitution of the Republic of Azerbaijan,
Nobody must be subject to tortures and torment, treatment or punishment humiliating the dignity of human beings.
The Article 13.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,
It shall be prohibited to take decisions or allow acts during the criminal prosecution which debase the honour and dignity of the person or may threaten the life and health of the participants in the proceedings.
Besides the provisions of national law, there are Norms of International Treaties. For example, the European Convention for the Protection of Rights and Fundamental Freedoms, Article 3, also prohibits the use of torture, as well as ill and inhuman treatment. There are no exceptions in the Article, it is in force everywhere and always, even in the fight against terrorism or mafia. The Convention Article 3 protects an individual’s dignity and physical inviolability.
In this particular case, it should be considered a violation of the Article 3 in conjunction with Article 13 (Right to an effective remedy) of the European Convention. There are precedents of the European Court of Human Rights in this regard.
Thus, the judgment of the European Court in the case of Ilhan v. Turkey from June 27, 2000, it is said:
“…the Court considers that the requirement of the Convention, Article 13, that an effective remedy be provided to a person who claims a violation of the Convention, Article 3, will in most cases afford both compensation to the applicant and the necessary procedural protection against violations by a State’s representatives. The Court has found in its precedential judgments that the concept of an effective remedy in this context includes the obligation to carry out a full and effective investigation, the purpose of which is to determine and penalize those responsible for the ill-treatment and to grant an applicant free access to the investigation process. Thus, whether it is permissible or necessary to recognize a procedural violation of the Convention’s Article 3 will depend on the particular circumstances of the individual case in question”. – https://hudoc.echr.coe.int/?i=001-58734
So, it is obvious that the investigative bodies and court did not conduct a proper investigation concerning the ill-treatment, therefore, we can speak about violation of the European Convention, Articles 3 and 13.
As stated above, E. Mustafayev was demanded to testify against himself. Therefore, according to the accused, there were certain unlawful demands, including both physical and psychological pressure applied. It contradicts to the Constitution of Azerbaijan, Article 66.
Nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister.
The same provision is set out in the European Convention, Article 6(1). While the text of the Article is not explicitly referred to, but there is ample case law of the European Court of Human Rights, which has referred to this right as the “right to silence”.
One of the important points in every criminal case is the evidence compiled by the investigative body and submitted to the Court. There were the following evidence in the case of E. Mustafayev: the accused’s testimony, testimonies of two police witnesses, the results of forensic chemical and psychiatric examinations, the first one was assigned to determine the origin of the narcotic drug, while the second was to determine the accused’s mental state at the time of committing the alleged crime.
Moreover, the Court did not verify the relevance of the drug to accused.
The testimonies of two policemen were also considered as irrefutable by the Court, although, in fact, those testimonies should have been regarded as suspicious, since the policemen had an interest in the outcome of the case.
The Article 124.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,
Reliable evidence (information, documents, other items) obtained by the court or the parties to criminal proceedings shall be considered as prosecution evidence. Such evidence:
- shall be obtained in accordance with the requirements of the Code of Criminal Procedure, without restriction of constitutional human and civil rights and liberties or with restrictions on the grounds of a court decision (on the basis of the investigator‘s decision in the urgent cases described in this Code);
- shall be produced in order to show whether or not the act was a criminal one, whether or not the act committed had the ingredients of an offence, whether or not the act was committed by the accused, whether or not he is guilty, and other circumstances essential to determining the charge correctly.
As we see, there is no proof in the commented case eveidence that should have feature specified in the Article 124.1 of the Code of Criminal Procedure of the Azerbaijan Republic. All these evidences can be simply questioned and refuted. It is not a secret how investigative bodies frequently obtain evidence, especially testimonies of the accused people. In Azerbaijan, for over a decade, there has been a bad practice. In this regard, the European Court of Human Rights has issued dozens of rulings on violation of the Convention, Article 3, where it was said that in order to obtain incriminating testimony the accused had been subjected to ill-treatment, torture, and as an outcome the authority had obtained their desirable results. The illegally obtained evidences subsequently became the proof that formed the basis for a conviction.
In this particular case, along with the above-mentioned Articles of the European Convention, we can really refer to a violation of the European Convention Article 18. According to this article,
The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.
It means that if the authorities illegally restrict the rights specified in the Convention, there is another motive (illegitimate). As mentioned above, E. Mustafayev had been engaged in socio-political activities and previously been charged with administrative offenses along with his adherents (A. Mammadov and A. Israfilov, both are under arrest).
The illegal restriction of the defendant’s rights as specified in the Convention has resulted in the violation of his fundamental right, the Right to Liberty, guaranteed under the Article 28 of the Azerbaijani Constitution and Article 5 (1) of the Convention. Even though the Court mitigated the charges by reclassifying the primary Articles to a more lenient one, the conviction of E. Mustafayev has violated the right to a fair trial, guaranteed by the European Convention Article 6 (1).