Yasamal District Court chose against Mammad Ibrahim a preventive measure in form of arrest for the period of 2 months

Yasamal District Court chose against Mammad Ibrahim a preventive measure in form of arrest for the period of 2 months

 

The Analysis of violation of law during Mammad Ibrahim’s judicial proceedings 

 

Baku City Yasamal District Court
Criminal case № 04 (004)-686/2018

September 28, 2018

Judge: Huseyn Safarov

Accused: Mammad Ibrahim

Defender: Ragif Mustafayev

The person who filed application: investigator of the Investigation Department of the Ministry of Justice of AR
Mammad Ibrahim is the advisor to the chairman of the opposition party Popular Front of AR. He is known for his sharp criticism towards Azerbaijan authorities. On September 29, 2015 Mammad Ibrahim was detained on trumped up charge hooliganism.    On March 15, 2016, Baku City Narimanov District Court sentenced Mammad Ibrahim to 3 years in prison under Article 221.2.2 (Hooliganism,committed with resistance to representative of the authority, acting as on protection of a social order or stopping infringement of a social order or with resistance to other person) of the Criminal Code of Azerbaijan Republic.   During Mammad Ibrahim’s detention, his lawyer repeatedly appealed to the court on conditional discharge (early parole), but this appeal was not satisfied. While serving sentence at penal colony # 16, Ibrahim started having serious problems with vision. In summer of 2018, he had operation on his eye in the medical unit by the Ministry of Justice. However, it was not possible to completely solve his problems with vision via above mentioned operation, and M. Ibrahim continues to suffer from the pain in his eyes. 
On 27 September 2018, two days before the termination of his sentence and the release date, he informed his family, that there was a search in his cell, and the knife was found under his pillow. Mammad Ibrahim did not know who planted the knife under his pillow. M. Ibrahim stated that he was not privy to this, and that the knife was intentionally planted to him, so he would not be released. On the same day, the members of M. Ibrahim family and his party colleagues went to the Colony #16, where he was serving his sentence. They demanded to see Mammad Ibrahim. However, police brutally dispersed them. Then M. Ibrahim’s son Turan Ibrahim met with the chief of the colony. He assured Turan Ibrahim that on September 29, in the afternoon, his father will be at home. On September 29, 2018, Turan Ibrahim and his party colleagues went again to the colony. There they found out, that the new criminal case is opened against Mammad Ibrahim, and that he, himself, for the period of the preliminary investigation, is transferred to Baku Pretrial Detention Facility #1.
Application with the request for the arrest was submitted by the Investigator of the Investigation Department by the Ministry of Justice of Azerbaijan Republic to Baku City Yasamal District Court on the grounds of the initiation of the criminal case under Article 317-2.1. (Production, storage, concealment, transportation or usage of the prohibited items by the individuals held in the penal colonies or pretrial detention facilities) of the Criminal Code of Azerbaijan Republic. 
On September 28, 2018, Baku City Yasamal District Court chose against Mammad Ibrahim preventive measure in form of arrest for the period of 2 months.   Commentary by an expert lawyer:   The court decision is unlawful and groundless. According to Article 154.2 of the Criminal Procedure Code of Azerbaijan Republic, preventive measures are:    154.2.1. Arrest; 154.2.2. House arrest; 154.2.3. Bail; 154.2.4. Restraining order; 154.2.5. Personal surety; 154.2.6. Surety offered by an organisation; 154.2.7. Police supervision; 154.2.8. Supervision; 154.2.9. Military observation;154.2.10. Removal from office or position.   As can be seen from this article, the most severe preventive measure is the arrest. The Article 155.2 of the Criminal Procedure Code of Azerbaijan Republic states that 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:155.2.1. The seriousness and nature of the offence with which the suspect or accused is charged and the conditions in which it was committed;155.2.2. His personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence;155.2.3. Whether he has committed a previous offence, the previous choice of restrictive measure and other significant facts.   While choosing against M. Ibrahim preventive measure in form of arrest, the court did not consider the nature of alleged crime. The fact is that the term of punishment under Article 317-2.1 of the Criminal Code of Azerbaijan Republic is from 2 to 6 months. This means that this type of crime falls under category of crimes that do not carry great social danger. This is stated in the Article 15.2 of the Criminal Code of Azerbaijan Republic: ”Crimes which do not represent big public danger shall be deliberate and careless actions for committing of which by the present Code, admitted punishment, but not connected to imprisonment, and also deliberate and careless actions for committing of which the maximal punishment provided by the present Code, shall not exceed two years of imprisonment”. Reminder: the punishment under Article 317-2.1 of the Criminal Code of Azerbaijan Republic is from 2 to 6 months.
Also according to Article 157.1 of the Criminal Procedure Code of Azerbaijan Republic, “in accordance with the principle of the presumption of innocence, if the connection of the person to the offence committed is not proven, he may not be arrested or unnecessarily detained on remand”. The court did not examine the circumstances that were necessary for M. Ibrahim arrest, did not indicate the reasons, why, in this case, the alternative preventive measures apart from arrest cannot be chosen. The court also did not consider the personality and the state of health of the detainee.
In this case, the court had to apply the alternative preventive measure, not the arrest, for example: either bail or house arrest. Besides, the concrete reasons behind the arrest in the given case must’ve been listed in the ruling. The right to liberty and security of person was violated towards Mammad Ibrahim. This rights is enshrined in the Article 28 paragraph 1 of the Constitution of AR. It states “Everyone has the right for freedom.” This right is also enshrined in Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to Article 5, paragraph 1, of the European Convention, “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”.   In accordance with paragraph 60 of the decision of the European Court of Human Rights (ECtHR) in the case Smirnova V. Russia from 24 July 2003, “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”. Also: Arguments for and against release must not be “general and abstract” (paragraph 63 of the decision). – http://sutyajnik.ru/rus/echr/judgments/smirnova_eng.htm
By arresting Mammad Ibrahim, the court has violated one of the fundamental human rights – the right to liberty, which is provided in the norms of the Constitution of Azerbaijan Republic, Criminal Procedure and Criminal Codes of Azerbaijan Republic, and also in the norms of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 
At the same time, the numerous resolutions of the ECtHR which are mandatory for the member state at Council of Europe and ratifies European Convention for Protection of Human Rights and Fundamental Freedoms were not considered.