The court violated Anar Mammadli’s right to liberty


Anar Mammadli

Analysis of violation of law during Anar Mammadli’s judicial proceedings

Baku City Khatai District Court

Case № 4(011)-328/2024

30 April 2024

Presiding judge: Sulhana Hajiyeva

Defendant: Anar Mammadli

Defenders: Javad Javadov, Elmar Suleymanov

With the participation of Togrul Huseynov, a Senior Investigator at the Investigation Division for Serious Crimes within the Investigation and Inquiry Department of the Baku City Police Headquarters, and Abulfaz Huseynov, a Prosecutor at the Department for Supervision over the Execution of Laws in the Investigation, Inquiry and Investigative Activity of the Baku Internal Affairs Bodies Prosecutor’s Office

In 1999 Anar Mammadli (born in 1978) graduated from the Azerbaijan University of Foreign Languages, majoring in German language and Philology.

In 2000, while in the USA he graduated from the Maxwell School of Syracuse University with a degree in public administration. Also, A. Mammadli has worked as a reporter and editor in several newspapers.

In 2001, A. Mammadli founded the human rights organisation ” Monitoring Election and Democracy Training Centre”. In 2008, the licence of the organisation was cancelled upon the claim of the AR Ministry of Justice.

In 2013, the organisation monitored the elections and was the first to circulate an independent report on the violations in the election process, which resulted in strong objections from the authorities.

On 27 October 2013, the Azerbaijani General Prosecutor’s Office initiated a criminal case against the organisation. On 16 December 2013, Anar Mammadli was arrested. On 26 May 2014, the Baku Court for Serious Crimes found A. Mammadli guilty and sentenced him to 5 years and 6 months incarceration. He was recognised as a political prisoner by the domestic and international human rights organisations.

On 17 March 2016, A. Mammadli was released following a grant of pardon. A. Mammadli was a participant in a number of international events.

On 29 April 2024, Anar Mammadli was detained as a suspect in the case of “Absaz Media”.  He was charged under the Article 206.3.2 (Smuggling, is moving large amount through customs border of the Republic of Azerbaijan of goods or other subjects, committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic.

On 30 April, 2024, he was found guilty under the above-mentioned article. The investigator and prosecutor filed an appropriate application and submission to the Court requesting a preventive measure of 3 months 28 days’ remand in custody.

In the course of trial, the investigator and the prosecutor supported the application and submission, whereas A. Mammadli argued that his arrest was of political nature.

On 30 April 2024, the Baku City Khatai District Court issued a ruling: to satisfy the investigator’s petition and prosecutor’s submission to extend the preventive measure against Anar Mammadli for the period of 3 months and 28 days.


Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

In this ruling, the Court stated the following grounds:

  • hiding from the body conducting the criminal proceedings;
  • unlawful pressure on those involved in criminal proceedings;
  • obstruction to the pre-trial investigation by concealing materials of significance for criminal prosecution;
  • committing once again an act under the criminal law and posing a danger to the public.

In addition, the ruling stated that the fact of being charged under an article punishable by up to 8 years of imprisonment raised reasonable ground to believe that the commission of an act provided for by the criminal law could be considered as a new offence and pose a danger to the society.

In the Article 155.1 of the Criminal Procedure Code of the Azerbaijan Republic, there are enumerated the grounds for imposing a preventive measure:

  • 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 cited almost all the grounds listed in the Article 155.1 of the Criminal Procedure Code of the Azerbaijan Republic, while not referring to any arguments justifying the measure of restraint in the form of arrest.

According to the Decision of the Plenum of the Azerbaijani Supreme Court from 3 November 2009, “On judicial practice in cases involving implementation of preventive measures in the form of arrest or house arrest”, paragraph 1, said:

“It should be brought to the Courts attention that, in accordance with the case law of the European Court of Human Rights, the application of a preventive measure in the form of arrest is generally admissible when the right to liberty of a person overrides the interests of society, i.e. when an individual’s freedom poses negative emotion and danger to the society”.

Furthermore, it is stated in the Decision, paragraph 2, that there must be substantive and procedural grounds for the imposition of a preventive measure in the form of arrest.

The ruling on the arrest of A. Mammadli fails to provide any substantive and procedural grounds. The Courts are required in such orders to indicate specific arguments and justifications concerning a particular defendant.

The Courts are also obliged to consider the possibility of imposing alternative preventive measures other than arrest.

The primary pieces of evidence brought by the investigating authority as justification for a preventive measure in the form of arrest must persuade an outside observer that a defendant may indeed have committed a criminal act. The Courts are to pay their attention to the comprehensiveness and accuracy of the materials submitted by the investigating authorities to the Court.

Apart from the primary evidence, there is a lack of logical and individualised approach in the commented case. It is not permissible to use broad and abstract phrases in such cases.

As it is stated in the above-mentioned Decision, paragraph 4, the Courts are to verify whether it is feasible to apply a measure of restraint not related to arrest provided for in the Article 154 of the Criminal Procedure Code of the Azerbaijan Republic, when approving submissions on arrest, the inadmissibility of applying a measure of restraint not related to arrest must be substantiated.

There are no explanations in the commented ruling that alternative preventive measures other than arrest were considered in the course of the trial.

It is completely illogical the Court’s conclusion that A. Mammadli could re-commit an offence and that the alleged punishment for the incriminated Article stipulates a sentence of up to 8 years’ imprisonment.

The right to freedom is enshrined in the Article 14 of the Criminal Procedure Code of the Azerbaijan Republic, where it is written:

  • The right to liberty may be limited only in cases of detention, detention on remand or imprisonment in accordance with the law.
  • Nobody may be detained or arrested other than on the grounds provided for in the Code and other laws of the Azerbaijan Republic.

This right must be effectively implemented and it should not be delusive.

The Article 5 (1) oft he 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.

The European Court of Human Rights (ECHR) has noted:

“Reasonable suspicion justifying detention is an essential element in the protection against arbitrary deprivation of liberty provided by Article 5(1)(c). The existence of well-founded suspicion suggests in advance the availability of facts or information which would convince an objective observer that an individual may have committed the offence. Nevertheless, the alleged facts have not yet reached the level of suspicion necessary for a conviction or even indictment, which occurs at the next stage of the criminal proceedings” (K.-F. c. A1-lemagne, 57).

The judgment of the ECHR in the case of  Labita v. Italy dated 6 April 2000, it is stated,

«…to be reasonable suspicion there must be facts or information which would satisfy an objective observer that the person concerned may have committed an offence ». –

In another judgment of the ECHR in the case of Wloch v. Poland dated 19 October 2000, it says:

“Thus, it is obvious that suspicion cannot be justified if the acts or facts imputed to the detainee did not constitute an offence at the time when they were committed. In the present case, it must be ascertained whether the applicant’s detention was ‘lawful’ within the meaning of the Article 5 § 1 (c). The Convention mainly refers to the national legislation, but in addition it requires that any measure of deprivation of liberty must be compatible with the purpose of the Article 5: to protect an individual from arbitrary deprivation of liberty”. –

The paragraph 58 of judgment of the ECHR in the case of Smirnova v. Russia dated 24 July 2003, stated:

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 Court did not have any relevant and sufficient grounds to impose a measure of restraint in the form of arrest in the case of Anar Mammadli.

As to the severity of sentence, paragraph 60, of the judgement in the case of Smirnov v. Russia stated:

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 Court did not take into account either reputation or moral profile, in particular the human rights defender’s reputation and intellectual level; Mr. Mammadli is well known as inside as outside the country. Moreover, as mentioned above, A. Mammadli was first detained in 2013; at that time he was also placed under restraint in the form of arrest, however, while in detention he had never violated the established legal order and defended himself by all means allowed by law.

Crossing the Azerbaijani State border if the passport necessary for that purpose is confiscated. Therefore, the argument made by the Court that he could abscond from the trial and investigation has no valid grounds, as well as all other judge’s arguments.

Thus, the Court, failing to demonstrate an individual approach to the case, not requiring sufficient primary evidence from the investigative body, not observing the Constitutional norms and norms of other domestic and international provisions, as well as the precedents of the European Court of Human Rights, violated in respect of Anar Mammadli the fundamental right to freedom guaranteed by the Article 28 of the Azerbaijani Constitution, Article 14 of the Criminal Procedure Code of the Azerbaijan Republic and Article 5(1) of the European Convention.