FOR AN OPPOSITIONAL ACTIVIST IN AZERBAIJAN THERE IS NO ASSURANCE OF LIBERTY OR PERSONAL SECURITY
Analysis of violation of law during Zamin Salayev’s judicial proceedings
Baku City Qaradag District Court
Case № 4(002)-26/2023
8 February 2023
Presiding judge: Teymur Qurbanov
Defendant: Zamin Salayev
Defender: Nemat Karimli
The plaintiff: Farid Seyfalov, an investigator of the Investigative Unit at the Qaradag District Police Department
The applicant: Zafar Ahmadov, the Prosecutor of the Qaradag District
A representative of the Qaradag District Prosecutor’s Office: Medina Pashayeva
Zamin Salayev, the Chairman of the People’s Front Party (PFPA) Salyan branch, has repeatedly been brought to criminal and administrative charges for being active in the opposition party, his participation in various rallies, and for harshly criticizing the authorities on social networks.
Z.Salayev’s administrative arrests were mainly related to the Article 535.1 (Failure to obey the legitimate demands of a policeman) of the Administrative Code of the Azerbaijan Republic. This Article is the most frequently applied to political and public activists in Azerbaijan.
In 2020, the Salyan District Court sentenced Zamin Salayev to 2 years and 3 months of imprisonment having found him guilty of committing a crime under the Articles 147.2 (The slander, which is connected with accusation of committing serious or especially serious crime) and 148 (The Insult) of the Criminal Code of the Azerbaijan Republic. On 19 January 2022, Zamin Salayev was released in accordance with an Act of amnesty.
On 7 February 2023, Zamin Salayev was detained by the police on suspicion of committing a crime under the Article 221.3 (The hooliganism committed with application of a weapon or subjects, used as the weapon) of the Criminal Code of the Azerbaijan Republic. As written in the case file, Zamin Salayev inflicted with a knife physical injury to Natiq Suleymanov.
In the course of the trial, Zamin Salayev testified that the charges brought against him had been fabricated. Besides, Zamin Salayev testified that on the evening of February 7, 2023, he had been in the outskirts of Baku, at Logbatan circle in order to return home to the Salyan district. Then suddenly a man was heading in his direction shouting obscene language. According to Zamin Salayev, the man abruptly pulled out a knife from his pocket. At that moment he realized that it was a provocation and pushed him away. When he tried to move away, many people gathered around him. He understood that the whole action was planned in advance in order to arrest him. Zamin Salayev considers his arrest as politically motivated.
The Ministry of Internal Affairs of Azerbaijan has spread the information that at night, on 7 February 2023, Zamin Salayev had been detained for inflicting physical injuries to Natiq Suleymanov. – https://www.xural.com/zamin-salayev-haqda-h%C9%99bs-q%C9%99rari-verildi/
The investigator and Prosecutor who appealed to the Court with a motion and request for arrest, asked the Court to issue an order for the arrest of Zamin Salayev for a period of 3 months on the evidence of the criminal case.
On 8 February 2023, the Baku City Qaradag District Court issued a ruling: to satisfy the motion and request, and apply a preventive measure in the form of detention for a period of 3 months to Zamin Salayev.
Immediately after his arrest, Zamin Salayev announced a hunger strike protesting against his arbitrary arrest that lasted 94 days. According to his lawyers, Zamin Salayev lost 47 kilos; his weight from 118 dropped to 71 kilos, there were wounds on his body, he had a fever of 33 degrees, his blood pressure was 60/40, and he had difficulties to move.
On 12 May 2023, the U.S. Embassy in Azerbaijan commented on the arrest of Zamin Salayev. An Embassy representative told the “Turan” News Agency:
The United States continues to call on Azerbaijani authorities to release all individuals unjustly or arbitrarily detained for exercising their human rights and fundamental freedoms. –
On 2 May 2023, in the Baku City Qaradag District Court there was a preliminary hearing on the case of Zamin Salayev. When testifying at the trial, he could not stand on his feet and was allowed to talk while seated. The wounds on his body were demonstrated to all those at the trial. The hearing of the case is continuing.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The Article 155 of the Criminal Procedure Code of the Azerbaijan Republic specifies the grounds for application of such a preventive measure as arrest. They are as follows:
- 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.
According to the Article 155.2 of the Code of Criminal Procedure of the Azerbaijan Republic, in resolving the question of the necessity for a restrictive measure and which of them to apply to the specific suspect or accused, the preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court shall bear in mind:
- the seriousness and nature of the offence with which the suspect or accused is charged and the conditions in which it was committed;
- his personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence;
- whether he has committed a previous offence, the previous choice of restrictive measure and other significant facts.
The following grounds for arrest are specified in the Court Order:
- social dangerousness of the committed act,
- previous convictions,
- unexpunged sentence,
- probability of influencing the participants of criminal proceedings,
- presumed punishment for a period of more than 2 years.
The Article 155.3 of the Code of Criminal Procedure of the Azerbaijan Republic states, that arrest, or restrictive measures as an alternative to it, may be applied only as follows:
- to a person charged with an offence punishable by deprivation of liberty for a period of more than two years;
- in order to prevent the acts provided for in Article 155.1.1. and 155.1.2., to a person charged with an offence punishable by deprivation of liberty for a period of less than two years.
Even though the Article refers to an eventual punishment, this Article of the Code of Criminal Procedure theoretically contradicts the Presumption of Innocence.
Yet, another fact can be regarded as a violation of the Presumption of Innocence.
As mentioned above, the Ministry of Internal Affairs released a statement that Zamin Salayev injured Natiq Suleymanov, deliberately introducing Zamin Salayev as a criminal to the public.
It should be noted that the presumption of innocence is stipulated by the Article 63 of the Azerbaijan Republic Constitution, as well as by the Article 21 of the Azerbaijan Republic Criminal Procedure Code and the Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The judgment of the European Court of Human Rights (ECHR) in the case of Barberà, Messegué and Jabardo v. Spain, of June 13, 1994, states,
“The Article 6(2) ” furthermore it requires that in exercising their functions the judges shall abandon the preconceived notion that a defendant has committed a criminal act as the burden of proof is upon the prosecution and any doubt shall be construed for the benefit of the defendant. In addition, it is incumbent upon the prosecution to indicate to the defendant in question what charge he is being subjected to in order to give him an opportunity to be prepared to defend himself, and to offer sufficient evidence to substantiate a plea of guilt” –
As it is written in the paragraph 3 of the Decision of the Plenum of the Supreme Court of the Azerbaijan Republic “On the Practice of the Courts Considering Applications for Precautionary Measures of Arrest and House Arrest” dated on 3 November 2009,
“According to the legislation, there must be substantive and procedural legal grounds in order to apply a measure of restraint in the form of arrest against an accused person. The substantive grounds refer to the evidence confirming the attributability of the committed act under the Criminal Code. The procedural grounds consist of the totality of the circumstances set forth in the Article 155 of the Code of Criminal Procedure”.
In Zamin Salayev’s case, there is neither substantive nor procedural grounds provided to the Court.
In the paragraph 1 of the Decision of the Plenum of the Supreme Court of the Azerbaijan Republic, it is stated,
“While considering the submissions related to the procedural compulsory measures against the defendants, the attention of the Courts should be drawn to the fulfillment of the Article 28 of the AR Constitution, Articles 5 and 6 of the European Convention on Human Rights and Fundamental Freedoms, the requirements of the Criminal Procedure Law, and the practice of the European Court of Human Rights in a timely and qualified manner”.
And yet, another no less significant issue covered in the Resolution of the AR Plenum of the Supreme Court is the issue of alternative measures of restraint. Thus, paragraph 4 says,
“To clarify to the Courts that while considering applications for a preventive measure in the form of arrest, they shall consider the option of other preventive measures provided in the Article 154 of the Azerbaijan Republic Criminal Code, and while satisfying the applications it shall be possible to justify the impossibility of choosing a preventive measure not related to the arrest”.
Whereas in the Court ruling regarding the arrest of Zamin Salayev there is no information on the consideration of alternative preventive measures by the Judge. Moreover, there are no grounds to justify the selected preventive measure in the judgment.
The Court violated the Norms of substantive and procedural laws and as a result Z. Salayev’s right to liberty and security guaranteed by the Article 28 of the Constitution of Azerbaijan Republic and the Article 5(1) of European Convention for the Protection of Human Rights and Fundamental Freedoms.