The Grave Crimes Court sentenced paralyzed Abulfaz Bunyadov to 15 years of imprisonment

The Grave Crimes Court sentenced paralyzed Abulfaz Bunyadov to 15 years of imprisonment

The Analysis of violation of law during Elkhan Iskandarov and

Abulfaz Bunyadov’s judicial proceedings

The Baku Grave Crimes CourtCase No.  №1 (101)-103/2018
July 11, 2018
Presiding Judge: Afgan Hajiyev
Judges: Rasim Sadigov,  Fikrat Garibov
Accused: Elkhan Iskandarov, Abulfaz Bunyadov
Defenders:  Fariz Namazly, Nardana Farzaliyeva
Public Prosecutor:  Farid Nagiyev
Victim’s: Elchin Tagiyev, Elman Bayramov, Firuz Mehdiyev, Hikmat Aliyev, Ibrahim Kazimov, Kamil Mammadov, Kanan Heybatov, Mehman Teymurov, Muslim Tarverdiyev, Nadir Novruzov and etc. 
Nardaran village which is located 40 km from Baku, has low standards of living and acute unemployment problem. One of the most respected by Shiites mosques, founded in the 8th century, is located in Nardaran. Nardaran differs from other Baku villages with its religiosity. In 2000, 2002, and 2006, the residents of Nardaran held peaceful protests with socio- economic demands. In June 2002, police carried out military operation in the village, as a result of which 28 people were injured, one died. 23 people were sentenced to various terms of imprisonment on falsified charges; in espionage in favour of Iran, in attempt of violent change of power, and etc. However, as a result of the active work of human rights defenders, none of them remained in the custody after 2005.
On November 26, 2015, there was another police operation  in Nardaran. Armed with automatic weapons, the police entered the village and opened heavy fire. As a result, 6 people were killed, including two police officers. Dozens of citizens were arrested. The Ministry of Internal Affairs and General Prosecutor’s Office issued the joint statement, in which they explained the use of firearms against the villagers as an operation necessary to neutralise a criminal armed group that functioned under a religious cover, which planned mass riots, terrorist acts and destabilisation of the socio- political situation in the republic.
People in detention under the Nardaran case are divided into 4 groups: 
· the first group Nardaran 1, which included the chairman of the movement Muslim Unity Taleh Baghirov and 17 other people, who were sentenced to long terms of imprisonment on July 20, 2017 – were included;  · – the second group Nardaran 2, which included the chairman of the Board of the Muslim Unity movement Elchin Qasimov and 11 others, who were sentenced to long terms of imprisonment on December 28, 2017;  · the third group Nardaran 3, which included a scholar-theologian Zulfuqar Mikayilov and 11 people, sentence was passed on December 6, 2017.  · in the fourth group Nardaran 4, which included the members of the movement Muslim Unity  Elkhan Iskandarov and Abulfaz Bunyadov.
One of the founders of the “Muslim Unity” movement Elkhan Iskandarov was for the first time detained on November 5, 2015 during collision between the believers with the police near the Police Department of Sabunchi District of Baku City. By the decision of Sabunchi District Court of Baku City Elkhan Iskandarov was prosecuted by administrative offences under article 310 Persistent insubordination of legal request of policeman) of the Code On Administrative Violations and sentenced to 15 days of arrest. After 15 days of detention, he was released. Soon the decision of the Sabunchi District Court was revoked on the basis of the complaint of Prosecutor’s Office of Sabunchi District, and all materials of the case were sent to institute criminal proceedings. On March 15, 2017 men in masks broke into the house of E. Iskandarov through the window. He was detained on a charge of serious crimes: weapon possession, terrorism, preparation of a coup d’etat and etc. The Nasimi District Court of Baku City chose against E. Iskandarov preventive measure in the form of imprisonment for a period of 3 months, which was repeatedly extended. Since 2004 the resident of Nardaran, the member of the “Muslim Unity” movement Abulfaz Bunyadov worked as a journalist for newspaper The Truth of Islam. He often wrote analytical articles on socio-political, historical and religious topics. Before his arrest, he collaborated with the Internet-newspaper Islamazeri.az. In 2012 A. Bunyadov was convicted of drug use and released on parole  after 1 year and 6 months. 
On November 26, 2015 the joint operation of the Ministry of Internal Affairs, the Prosecutor General’s Office and State Security Service was carried out exactly in the house of Abulfaz Bunyadov, where the chairman of the “Muslim Unity” Taleh Bagirov was praying (namaz) together with other believers. As a result of the police shooting A. Bunyadov was wounded. This injury has caused him full  paralysis, and A. Bunyadov became bedridden. However, despite his paralysis, A. Bunyadov was sent to Baku Pre-trial Detention Centre No. 1 on a stretcher. Then the measure of restraint in the form of detention was changed to police supervision. A. Bunyadov was sent home.
On August 17, 2017 Baku Grave Crimes Court started  the process of E. Iskandarov and A. Bunyadov. The trial was repeatedly postponed, because A. Bunyadov was confined to the bed and was not able to appear in court. Six months later, on February 20, 2018, he was brought to the court on a stretcher. Prior to the trial, the health condition of A. Bunyadov sharply deteriorated. Ambulance was called to the court. However, the judge Afgan Hajiyev said that doctors do not have any objection of A. Bunyadov presence at the court, lying on a stretcher…
Both defendants pleaded not guilty. A. Bunyadov refused to testify for health reasons. E. Iskandarov said that he worked as a guard at the State Oil Company, he is professional athlete, and he repeatedly participated in sporting events. E. Iskandarov also testified that he never  heard  any statements from Taleh Bagirov against statehood and the desire to change the constitutional system by violence. He said that if such case occurred, he would have refused to participate in the “Muslim Unity” movement.
During the trial, on March 16, 2018, testimonies of the employees of the Office for Combating Organised Crime of the Ministry of Internal Affairs of Azerbaijan Jeyhun Imamverdiyev, Kamil Mammadov, Elchin Tagiyev, Khamza Tagiyev and another two employees – were heard. They were brought to the court in capacity of victims. They confirmed that they participated in operation in Nardaran. While operation, some of them entered the house through the windows, and others through the doors. They also showed that they did not receive any physical damage themselves, but their colleagues were injured.
On July 11, 2018 the Baku Grave Crimes Court under the chairmanship of the judge Afgan Hajiyev found E. Iskandarov guilty, in committing the crimes of the following articles of the Criminal Code of the Azerbaijan Republic (CC AR):
· 214.2.1. Preparation of terrorism, committed on preliminary arrangement by group of persons, by organized group or criminal community (criminal organization); · 214.2.3. Preparation of terrorism, committed with application of fire-arms or subjects used as a weapon; · 214-2  Public calls for terrorism; · 220.2. Appeals to active insubordination to legal requirements of representatives of authority and to mass disorders, as well as appeals to violence above citizens;  · 228.3. Illegal purchase, transfer, selling, storage, transportation and carrying of fire-arms, accessories to it, supplies or explosives, committed by organized group;  · 228.4. Illegal acquisition, selling or carrying of gas weapon, cold steel, including throwing weapon, except for districts where carrying of a cold steel is an accessory of a national suit or connected to hunting; · 233. Organization of actions promoting infringement of a social order or active participation in such actions; · 278. Violent capture power or violent deduction power; · 279.1. Creation of armed formations or groups, which are not provided by the legislation of the Azerbaijan Republic, and also participation in their creation and activity, supplying them by weapon, ammunition, explosives, military engineering or military equipment; · 281.2. Public appeals directed against the state, committed repeatedly or by group of persons;  · 283.2.3. Excitation of national, racial or religious hostility and enmity, committed by an organized group; · 315.2 – Resistance or application of violence concerning the representative of authority, committed with violence dangerous to life or health.
On July 11, 2018 the Baku  Grave Crimes Court found A. Bunyadov guilty, in committing of the crimes of the following articles of the Criminal Code of the Azerbaijan Republic (CC AR):
· 120.2.1. Deliberate murder, committed by group of persons, on preliminary arrangement by group of persons, by organized group or criminal community (organization); · 120.2.3. Deliberate murder of victims or his close relatives in connection with implementation of a given person of service activity or performance of public debt; · 120.2.4. Deliberate murder, committed with special cruelty or in publicly dangers way; · 120.2.7. Deliberate murder of two or more persons; · 120.2.12. Deliberate murder on motive of national, racial, religious hatred or enmity; · 214.2.1. Preparation of terrorism, committed on preliminary arrangement by group of persons, by organized group or criminal community (criminal organization); · 214.2.3. Preparation of terrorism, committed with application of fire-arms or subjects used as a weapon; · 220.2. Appeals to active insubordination to legal requirements of representatives of authority and to mass disorders, as well as appeals to violence above citizens;  · 228.3. Illegal purchase, transfer, selling, storage, transportation and carrying of fire-arms, accessories to it, supplies or explosives, committed by organized group;  · 228.4. Illegal acquisition, selling or carrying of gas weapon, cold steel, including throwing weapon, except for districts where carrying of a cold steel is an accessory of a national suit or connected to hunting; · 278. Violent capture power or violent deduction power; · 279.1. Creation of armed formations or groups, which are not provided by the legislation of the Azerbaijan Republic, and also participation in their creation and activity, supplying them by weapon, ammunition, explosives, military engineering or military equipment; · 281.2. Public appeals directed against the state, committed repeatedly or by group of persons;  · 283.2.3. Excitation of national, racial or religious hostility and enmity, committed by an organized group; · 315.2 – Resistance or application of violence concerning the representative of authority, committed with violence dangerous to life or health;  · 320.1. Fake of certificate or other official document giving the rights or releasing from duties, with a view of its use or selling of such document, as well as manufacturing in same purposes or selling of counterfeit state awards of the Azerbaijan Republic, stamps, seals, forms;  · 320.2. Use of obviously counterfeit documents.
And sentenced:
· Elkhan Iskandarov to 14 years of imprisonment, to be served in high security prison; · Abulfaz Bunyadov to 15 years of imprisonment, 3 years of which he will be in closed-type Gobustan prison. At the same time, it is indicated in his sentence, that the preventive measure chosen earlier in form of taking him under police supervision is replaced by the arrest.  From the courtroom A. Bunyadov was taken to Gobustan prison on a stretcher.

Commentary by an expert lawyer:
The court decision is unlawful and groundless. As mentioned above, Elkhan Iskandarov was first detained on November 5, 2015 during the collision between believers with the police near the Police Department of Sabunchi District. He was prosecuted to administrative responsibility under article 310 (Persistent insubordination of legal request of policeman) of the Code On Administrative Violations and he was sentenced to 15 days of arrest. After 15 days of detention, he was released.
The administrative detention order of Sabunchi District court was revoked on the basis of a complaint of Prosecutor’s Office of Sabunchi District, and all materials of case were sent to institute criminal proceedings. Further, E. Iskandarov was convicted and sentenced to 14 years of imprisonment. Thus, in fact he was punished twice for the same act. According to article 64 of the Constitution of the Azerbaijan Republic, nobody may be repeatedly sentenced for one and the same crime. The same principle is recorded in article 4 (1) of the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms. It said: “No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State”.
According to the paragraph 78 of the Judgment of the European Court of Human Rights in the case of (ECtHR) “Sergey Zolotukhin v. Russia” from February 10, 2009, the ECtHR considers that the existence of a variety of approaches to ascertain whether the offence for which an applicant has been prosecuted is indeed the same as the one of which he or she was already finally convicted or acquitted engenders legal uncertainty incompatible with a fundamental right, namely the right not to be prosecuted twice for the same offence. It is against this background that the Court is now called upon to provide a harmonised interpretation of the notion of the “same offence” – the idem element of the non bis in idem principle – for the purposes of Article 4 of Protocol No. 7. While it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents laid down in previous cases, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement – https://hudoc.echr.coe.int/eng#{“itemid”:[“001-91222”]}
A court verdict  did not to consistent with article 401 (Inconsistencies between the first instance court’s conclusions and the facts of the case) Code of Criminal Procedure of the Azerbaijan Republic (CCP AR). Namely: The court’s conclusions shall be considered inconsistent with the facts of the case in the following circumstances:  – if the conclusions of the court of first instance set out in the court judgment or decision are not corroborated by the evidence examined at the court hearing(article 401.2.1. CCP AR);   – if the court of first instance did not take account of evidence which was examined at the court hearing and significantly affected the accuracy of its conclusions(article 401.2.2. CCP AR);  – if the court of first instance does not give a reason for accepting some evidence and refusing other evidence in its judgment or decision, and if there is conflicting evidence which is of importance for the court’s conclusions (article 401.2.3. CCP AR);  – if the facts of importance for the examination of the charge are not corroborated by the evidence required by law in the judgment or decision of the court of first instance(article 402.0.1. CCP AR). 
If the above-mentioned conditions are met the judgment of the court of first instance should be cancelled and the accused acquitted. 
However, despite this, the court sentenced the defendants to lengthy prison terms and paralysed and bedridden Abulfaz Bunyadov was sent to closed-type Gobustan prison, by changing the previously chosen preventive measure in the form of taking him under the police supervision to the arrest.
In itself, election the most severe preventive measure is inhumane and violates human rights. According to the article 155 (Grounds for the application of restrictive measures) of the CCP AR: – 155.1. 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: – 155.1.1. hidden from the prosecuting authority; – 155.1.2. 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; – 155.1.3. committed a further act provided for in criminal law or created a public threat; – 155.1.4. failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment; – 155.1.5. prevented execution of a court judgment.
As can be seen, none of the above-mentioned conditions took place in connection with A. Bunyadov. Earlier, when A. Bunyadov was under the police supervision, he did not commit any illegal acts, that could influence on the  replacement of preventive measure to more rigorous one.
According to the paragraph 102.2. of the European Prison Rules, imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.
Such treatment is prohibited by article 3 of the European Convention. According to this article, no one shall be subjected to torture or to inhuman or degrading treatment or punishment.

In the paragraph 149 of the judgment of the European Court of Justice in the case of Polufakin and Chernyshev v. Russia from September 25, 2008 says: “The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour. However, in order to fall under Article 3, ill-treatment must attain a minimum level of severity. The Court observes that, according to its constant case-law, measures depriving a person of his liberty may often involve an inevitable element of suffering or humiliation. Nevertheless, it is incumbent on the State to ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured. – https://hudoc.echr.coe.int/eng#{“fulltext”:[“Polufakin%20and%20Chernyshev”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-88482″]}
In the case was violation article 6 (2) of the European Convention which states: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.
In connection with the events on November 26, 2015 in Nardaran, the Ministry of Internal Affairs and the Prosecutor General’s Office of Azerbaijan issued the joint statement. In this statement , ” Muslim unity” movement was presented as the radical religious terrorist organisation, of which aim is the violent change of the constitutional order, destabilisation of the socio-political situation in the country and terrorism.
On December 1, 2015 another joint statement of the Ministry of Internal Affairs, Prosecutor General’s Office and State Security Service of Azerbaijan was disseminated. In this statement, all arrestees of “Nardaran case” were presented as the members of the criminal group of the “Muslim Unity” movement.

Both statements violated the right of the accused to be presumed innocent. This right is secured both in article 63 of the Constitution of Azerbaijan and in judgments of the European Court of Human Rights.
In the case of Allenet de Ribemont v. France from February 10, 1995 stated: “Freedom of expression, guaranteed by Article 10 (art. 10) of the Convention, includes the freedom to receive and impart information. Article 6 para. 2 (art. 6-2) cannot therefore prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected (paragraph 38). – https://hudoc.echr.coe.int/eng#{“fulltext”:[“Case%20of%20Allenet%20de%20Ribemont%20v.%20France”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57914”]} In addition, there had been a violation of the right of the accused on article 5 (1) (Right to liberty and security), article 6 (1) (Right to a fair trial), article 6 (3) (Right to examination of  additional witnesses) article 9 (Freedom of thought, conscience and religion) and article 18 (Limitation on use of restrictions on rights) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
As can be seen from the analysis of trial of Elkhan Iskandarov and Abulfaz Bunyadov, they are not the subjects of the articles which were incriminated against them. The court issued illegal and unreasonable sentence and has violated the number of norms of national and international law.