THE COURTS IN AZERBAIJAN IMPOSE UNJUSTIFIED AND CRUEL SENTENCES
Zahir Asgarov
Analysis of violation of law during Zahir Asgarov’s judicial proceedings
Baku City Court of Serious Crimes
Case № 1(101)-166/2024
3 July 2024
Presiding Judge: Siyavush Hajiyev
Judges: Aytan Aliyeva, Vugar Quliyev
Defendant: Zahir Asgarov
Defender: Abil Hasanov
The State Prosecutor: Jovdat Mehraliyev, a Prosecutor at the Department for Support of the State Prosecution in the Courts on Serious Crimes within the Office for the State Prosecution Support at the General Prosecutor’s Office of the Azerbaijan Republic
Zahir Asgarov (born in 1982) was prosecuted for committing a criminal offence under the Article 274 (Treason against the State) of the Criminal Code of the Azerbaijan Republic.
According to the prosecution, in 2012, Zahir Asgarov went to the city of Qom City in Iran to study where he met a certain Ali who was a secret service officer. Subsequently, Zahir Asgarov fulfilled the instructions of the intelligence officers up to 2022, thus causing harm to the security and sovereignty of the Azerbaijan. He passed on the information about employees working in the oil sector, as well as opposition citizens. Besides, there were also transferred the general information on the structure and activity of the Caspian Sea Shipping Company, the telephone numbers of individuals trained in the city of Qom City, military training on the Caspian Sea, etc.
- Asgarov, interrogated at the trial, did not plead guilty to the charges and testified that as a journalist and online employee of the ‘IRNA News’ agency covering the South Caucasus, he sent the agency not only information about social, political, military and economic processes taking place in Azerbaijan but also about events taking place in Russia and Armenia. It was his journalistic work.
He pointed out that the individuals whose names had been listed in the indictment, calling them special services officers, in reality had not been as such, since no evidence had been provided in the criminal case to support that assumption.
The defendant also testified that the dates indicated in the indictment and in the criminal case file concerning the forensic psychiatric examination had been completely different. Moreover, he had never met the expert Qubad Rasulzadeh, who had allegedly conducted the examination. Having not met the defendant, the expert would not have been able to provide an opinion on his psychological state, which casts doubt on the validity of the expert examination itself.
Zahir Asgarov testified that he had not committed any offence against Azerbaijan but was only engaged in journalistic activities. The information he sent to the news agency was taken from various publicly available websites. Zahir Asgarov denied that he had passed information about the steamer to anyone, and that he had photographed it.
Further, he indicated that he had been in Qom City for only four months. Yet, he was called an ‘Azerbaijani and Israeli spy’ there, and was expelled from Iran afterwards. Z. Asgarov also emphasised that in his messages there was no information about the Azerbaijani military bases and he had never been a military serviceman.
The defendant testified that he had been arrested on the 2 June 2022, and the confession he made during the preliminary investigation had been signed by him unread.
The defendant’s mother, Esmira Asgarova, questioned at the trial, revealed that there were many people in their family with psychological health problems. Zahir, according to his mother, also had health issues such as internal gastric bleeding. His psychological state was not good either, so he had to take sedatives. She testified that her son had been engaged in religious studies while the Iranians had falsely accused him. E. Asgarova also stressed that Zahir always loved his country and could not cause any damage to Azerbaijan.
Zaur Asgarov, the defendant’s brother, questioned as a witness at the trial, indicated that his brother had travelled to Iran on several occasions to visit holy places. He noted that the testimony he had given during the preliminary investigation was not accurately recorded. For instance, he allegedly suspected of treason against the state on the part of Zahir, but in fact he had never said such a thing. Zahir only attended a school in Iran and was later expelled.
Zahir’s goal was to visit the Holy Places in Iran. Zaur Asgarov testified that he had not said at the preliminary investigation what stated in the indictment and had signed the protocol without reading it.
From the protocol dated 3 June 2022, it is clear that Zahir Asgarov was brought as a suspect in the criminal case.
The next day, 4 June 2022, he was brought as an accused and charged with committing an offence under the Article 274 of the Azerbaijan Republic. On the very same day, the Sabayil District Court issued a ruling to impose a preventive measure in the form of remand in custody for 4 months against Z. Asgarov.
While searching Z. Asgarov’s house, a number of technical means such as computer, mobile phone and discs were seized. A file called ‘Harbi saytlar’ (‘Military websites’) was found stored in his computer.
The defendant specified that the phone numbers in his notebook belonged to the Caspian Oil Fleet employees, his colleagues, as he had worked in this structure. As for the file entitled ‘Harbi saytlar’, he explained that he had created it in ordere to collect various information regarding the military sphere from sites as part of his journalistic activities.
From the document classified as ‘Top Secret’ dated 21 November 2022, it can be seen that in 2017, Zahir Asgarov arrived to Iran and asked the Head of the Mecca Mosque for accommodation.
The letter of the Azerbaijani State Security Service dated 13 September 2022, reveals that in the course of operational-search activities it has been identified that the individuals: Ali, Yunus Saberi, Huseynaga and Jalali were employees of the Iranian Ministry of Information and Security who engaged the Azerbaijani citizens visiting Iran in collaboration.
A forensic phonoscopic examination dated 18 November 2022, established that the voice on the seized disc identified as the accused’s.
A forensic psychiatric examination dated 10 August 2022, did not determine that Z. Asgarov had any disorders or abnormalities. It is also said that at the time of the offence Mr. Asgarov had been fully aware of his actions.
The Court considered that the information transmitted by Z. Asgarov to the Iranian intelligence services was detrimental to the security and sovereignty of the Azerbaijan Republic and intended to compromise its national defence system.
The Court also considered that Z. Asgarov’s objective was motivated by self-interest.
The Court admitted the fact that the accused had three young children as mitigating circumstances.
It was also noted in the verdict that Z. Asgarov committed the crime on the grounds of religious fanaticism and personal motivation; he also used his official position and the trust granted to him in accordance with his employment contract, which were circumstances aggravating his guilt.
On 3 July 2024, the Baku City Court of Serious Crimes issued a verdict against Zahir Asgarov: he was found guilty of committing a crime under the Criminal Code, Article 274 of the Criminal Code of the Azerbaijan Republic and sentenced him to 16 years imprisonment to be served in a strict regime colony.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The Article 274 of the Criminal Code of the Azerbaijan Republic, charged against Z. Asgarov, is part of the category of offences against the constitutional foundation and security of the state. In this Article states, that high treason, that is deliberately action committed by a citizen of the Republic of Azerbaijan to detriment of the sovereignty, territorial integrity, state security or defensibility of the Republic of Azerbaijan: changeover to enemy side, espionage, distribution of the state secret to foreign state, rendering assistance to a foreign state, foreign organization or their representatives in realization of hostile activity against the Republic of Azerbaijan.
The motives and objectives of treason may be diverse (‘mercenary’, political, nationalistic, cowardice and weak-willedness, etc.). They do not affect the definition, but must be ascertained, as they are important for determining the measure of the offender’s responsibility and penalisation.
In the criminal case against Z. Asgarov, the Court indicated the following motives:
- mercenary
- religious fanaticism.
The specified motives, according to the Articles 61.1.6 and 61.1.13 of the Criminal Procedure Code of the Republic of Azerbaijan, are considered as aggravating circumstances. They were taken into account while imposing the sentence. However, the verdict did not indicate what Z. Asgarov mercenary motive was.
It was stated in the verdict that Z. Asgarov transferred the secret information to the employees of Iran’s intelligence services. However, in the course of the trial, he testified that he had only used information from different websites, which concerned not only Azerbaijan but also Russia and Armenia. In this regard there are logical questions: if the information was published on websites, could it be considered secret? If he was transferring the classified information, who could have possessed it and transferred it to him?
The investigation assumed that Z. Asgarov had transferred the Caspian Oil Fleet employees’ personal data to the Iranian intelligence service. However, at the trial, the defendant explained it by the fact that he had previously been a Fleet employee, and it was logical that the numbers of his colleagues had been found in his mobile.
Moreover, in the case, there is no evidence that he had in any way shared any colleagues’ phone numbers in the media, to the public, which could have breached the privacy protections.
The investigation pointed out that the disclosure of information about social and political processes in Azerbaijan transferred by Z. Asgarov, that concerned an explosion at the plant located in the city of Shirvan and affiliated with the Azerbaijan Ministry of Industrial Defence, as well as information about the companies and representatives of the USA and Israel on the territory of Azerbaijan, would constitute an offence under the Article 274 of the Criminal Code of the Azerbaijan Republic.
However, the above-mentioned information should not be considered classified, as there was no classification stamp on it; it is being published on daily basis on the Internet, in various news sites, and practically every Azerbaijani resident is aware of it.
There is another significant point in the case. It concerns the identity of individuals described as Iranian intelligence officers by the investigation. However, there is not a single piece of evidence in the case file to confirm it. It is not known who those people really were, whether they were ordinary Iranians or not, or whether they even existed in reality. That fact was not proven at the trial. The investigation did not provide any evidence to prove it.
In addition to the above violations of substantive law, there are obvious violations of procedural law in the case.
Thus, the defendant’s testimony given at the investigation and provided at the trial, there were obvious contradictions. The testimony given in the course of the investigation was incriminating, while the testimony at the trial was completely opposite.
It may indicate that the defendant was not warned about the right not to testify against himself and had the right to silence.
In accordance with the Article 66 of the Constitution of Azerbaijan Rerpublic, no one should be forced to testify against himself, his spouse, children, parents, brother, or sister.
The Right to Silence is enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1). Though it is not explicitly stated in the text of the Article 6(1), the practice of the European Court of Human Rights (ECHR) reinforces it.
The judgment of the ECHR in the case of Saunders v. United Kingdom from 17 December 1996 states,
The Court recalls that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6 para. 2 of the Convention. – https://hudoc.echr.coe.int/eng?i=001-58009
Thd only witnesses brought to the case were the defendant’s mother and brother.
Besides, the defendant testified before the court that the forensic psychiatric examination was conducted in absentia. He never saw the expert who had rendered an opinion on his psychological state. Assessment of the psychological state is allowed only upon a direct contact with an individual. All living individuals should be examined face-to-face. – https://esin-expert.ru/expertiza/stati-po-teme/psikhologicheskaya-ekspertiza-psikhologicheskoe-issledovanie
Therefore, not only the forensic psychiatric expertise, but also all other expertise and conclusions in this criminal case, and consequently, the entire evidentiary base, are questionable.
According to the Article 125.2 of the Code of Criminal Procedure of the Azerbaijan Republic, information, documents and other items shall not be accepted as evidence in a criminal case if they are obtained in the following circumstances:
- if the accuracy of the evidence is or may be affected by the fact that the parties to the criminal proceedings are deprived of their lawful rights, or those rights are restricted, through violation of their constitutional human and civil rights and liberties or other requirements of this Code;
- through the use of violence, threats, deceit, torture or other cruel, inhuman or degrading acts;
- where the rights and duties of a party to the criminal proceedings are not explained, or not explained fully and accurately and, as a result, he exercises them wrongly;
- where the rules governing investigative or other procedures are seriously violated;
- where the document or other item is taken from a person unable to recognise it or who cannot confirm its accuracy, its source and the circumstances of its acquisition.
Hence, within the framework of the Article 125.3 of the Code of Criminal Procedure of the Azerbaijan Republic, the information, documents and goods obtained in cases stipulated by the Article 125.2 of the Code of Criminal Procedure of the Azerbaijan Republic are considered to have no legal validity and shall not be accepted in proving any circumstances for the legal accusation.
The Article 145.1 of the Code of Criminal Procedure of the Azerbaijan Republic states, that all evidence shall be assessed as to its relevance, credibility and reliability. The content of all evidence collected for the purposes of prosecution shall be assessed in terms of whether it is sufficient to substantiate the charge.
If doubts arising in proving a charge are impossible to eliminate by other evidences, they shall be interpreted in favour of the suspect or defendant (Article 145. of the Code of Criminal Procedure of the Azerbaijan Republic).
It is also stipulated by the principle of presumption of innocence enshrined in the Constitution of Azerbaijan, Article 63, and Article 6 (2) of the European Convention.
The guilt of the defendant was not fully proved at the trial. The legal investigation was not fully, objectively and comprehensively conducted. The evidentiary basis was insufficient and incomplete to pronounce an individual guilty. All evidences had been collected in breach of the norms of the criminal procedural legislation.
As a result, the following rights in respect of Z. Asgarov were violated: the Right to Presumption of Innocence, the Right to Silence, the Right to a Fair Trial and the fundamental right in any democratic State e.g. the Right to Liberty and Personal Inviolability.