THE COURT VIOLATED M. HUSEYNZADE’S FUNDAMENTAL RIGHTS TO LIBERTY
Mirjafar Huseynzade
Analysis of violation of law during Mirjafar Huseynzade’s judicial proceedings
Ganja City Court of Appeal trial, Criminal Collegium
Case № 4(104)-129/2024
26 July 2024
Presiding judge: Nural Aliyev
Judges: Rafiq Jafarov, Rashad Mamedov
Defendant: Mirjafar Huseynzade
Defender: Zabil Qahramanov
With the participation of Elvin Iskandarov, a captain -investigator from the Qazakh District Police Station Investigation Department
Mirjafar Huseynzade (born in 1976), a resident of Qazakh district, was charged with committing an offence under the Article 234.1-1 (Illegal acquisition or storage of drugs or psychotropic substances without the purpose of sale in an amount exceeding the amount necessary for personal consumption, committed in a large amount) of the Criminal Code of the Azerbaijan Republic.
On 12 July 2024, the Qazakh District Court ruled to impose a measure of restraint on M. Huseynzade in the form of detention for 3 months, i.e. until 17 October 2024. By the same ruling, the Court rejected the defence’s appeal to replace the preventive measure of restraint in the form of arrest on house arrest.
The defence, having disagreed with the above ruling, appealed to the Court. The defence appeal was justified by the fact that the investigation had failed to obtain any physical proof that would confirm whether the found drugs belonged to the defendant. The defence also pointed out that the only investigation proof was the police officers’ testimony, whereas the operative-investigative activities had been carried out without a relevant judicial order. Therefore, the defence requested the Court to annul the judgment of the first instance court due to the lack of any circumstances required for the extension of the preventive measure in the form of arrest.
On 26 July 2024, the Criminal Board of Ganja Court of Appeal issued a ruling: to partially satisfy the investigator’s motion and the prosecutor’s submission on the extension of the measure of restraint in the form of arrest, to amend the first instance court ruling and extend the term of arrest for another month.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic states,
Restrictive measures may be applied by the relevant preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court when the material in the prosecution file gives sufficient grounds to suppose that the suspect or accused has:
- 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.
The following grounds were specified in the judgement:
- the identity and nature of the committed act;
- the likelihood of absconding from the investigative body carrying out criminal prosecution;
- preventing the normal course of the preliminary investigation or court proceedings.
It was also stated in the ruling that there were no grounds to change the measure of restraint in the form of arrest on house arrest. The Court noted that the investigation still should conduct one confrontation, familiarise the accused with the final case materials and indictment. For that reason, the Court made a decision to extend the preventive measure for one month.
As stated above, one of the grounds is the identity of the accused. In spite of that remark, the Court did not take into account the personality of M. Husenzade. It was stated that the accused had the second disability group and was receiving a pension on this basis, as said in the Court ruling.
Let’s examine the other grounds stated by the Court:
- There was a likelihood of absconding from the investigative body conducting the criminal prosecution. It was not a risk that the defendant would abscond from the justice system. He had only one place of residence. Besides, the accused was suffering from a serious illness, as a result of which he had received the second disability group. He had never previously absconded from justice.
- Obstruction of the normal course of the preliminary investigation or trial. There was no risk that the accused interfered with the course of legal procedure. He either did not destroy any documents, any evidences, or was unable to exert pressure on the witnesses who were in reality the police officers. There was no other strong evidential material cited by the Court.
The Articler 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms states,
- Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
…
- 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 Smirnova v. Russia dated 24 July 2003 states,
- A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention.
- The danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre-trial detention. In this context regard must be had in particular to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts.
- The issue of whether a period of detention is reasonable cannot be assessed in abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty.
- It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention.
- Arguments for and against release must not be “general and abstract”.
- Where a suspect is on remand, he is entitled to have his case given priority and conducted with special diligence. – https://hudoc.echr.coe.int/?i=001-61262
Thus, we clearly observe that the Court’s ruling on the extension of the preventive measure does not contain any legal grounds, it consists only of formal and abstract expressions, extracts from the legislation, and unfounded assumptions. The ruling was unlawful and illegitimate, in other words, it was issued in breach of the norms of procedural law, the Azerbaijani Constitution, the provisions of the European Convention and the precedents of the European Court of Human Rights.
It resulted in a serious violation of M. Huseynzade’s right to liberty and personal inviolability, which is one of the fundamental rights of any democratic society that protects the physical freedom of individuals and is guaranteed by the AR Constitution, Article 28, Article 5(1) of the European Convention, and also the Article 9 of the International Covenant on Civil and Political Rights.