Yasamal District Court elected against O. Bakhyshly arrest as a preventive measure for the period of 4 months

Yasamal District Court elected against O. Bakhyshly arrest as a preventive measure for the period of 4 months

The Analysis of violation of law during Orkhan Bakhyshly’s judicial proceedings

The Yasamal District Court, Baku

Criminal case № №4 (004)-282/2018

May 09, 2018

Judge:
Fuad Babayev

Investigator of the Investigation Division of the Police Department of Yasamal district of Baku: Ali Babayev

Defender: Elchin Sadygov

Accused: Orhan Bakhyshly

Orhan Bakhyshly is a member of Youth Committee of the Popular Front Party of Azerbaijan (PFPA) and Vice-Chairman of Khatai branch of Youth Committee of PFPA. The chairman of the Khatai Branch of the Youth Committee Fuad Ahmedli is a political prisoner at present. (FuadAhmedli was arrested on December 25, 2015. On June 16, 2017, Baku Grave Crimes Court sentenced Fuad Ahmedli to 4 years of imprisonment). Orhan Bakhyshly was engaged in the political and public activities. He often and sharply criticized the policy of the authorities, both at various events and in social networks. He was also responsible for the organization of various actions of PFPA.

On the eve of the rally on March 31, 2018 organized by the National Council of Democratic Forces, several members of PFPA were brought to administrative responsibility: Abdullah Mahmudov for 30 days (March 26, 2018), Ayaz Qasimov for 15 days (March 29, 2018) and Orhan Bakhyshly for 30 days (March 27, 2018). All the detainees were accused with an offence in accordance with the article 535.1. (insubordination to legal demands of police) of the Code of Administrative Offences of the Azerbaijan Republic. Organizers of the rally, young activists were arrested on the eve of the rally on March 31.

Once again O. Bakhyshly was detained by unknown men in civil on May 7, 2018 in a park near the Elmlyar Akademiyasi subway and brought to Police Department of Yasamal district of Baku City. This time against Orhan Bakhyshly was opened a criminal case under article 234.4.3 (manufacturing, purchase, storage, transfer, transportation or selling drug with a view of illegal manufacturing and processing of narcotics or psychotropic substances in large amount) of the Criminal Code of Azerbaijan Republic (CC AR).

On May 9, 2018, Baku City Yasamal District Court elected against O. Bakhyshly arrest as a preventive measure for the period of 4 months.

Commentary by an expert lawyer:

The court decision is unlawful and groundless. According to Article 5, Paragraph 1 of European Convention for the Protection of Human Rights and Fundamental Freedoms, “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”.

The mandatory requirement of article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is the presumption of liberty. Thus, persons who deprives another of his liberty must not only prove that powers of arrest fall under one of the bases referred in article 5, but also to prove that these powers can be applied to the concrete case. In any case, when it concern the right of freedom, essential first of all it is very important that the judge considered the possibility of the release of a detainee. Therefore, the judge should not wait and require only the submission of evidence to arrest of the person. He must carefully investigate this evidence to justify the measures. In the event that the judge would come to the opposite conclusion, the arrest must be annulled. This is the opinion of the European Court of Human Rights (ECHR) concerning the most stringent measure. The right to freedom is also established in article 28 of the Constitution of Azerbaijan.

In commented resolution the court not only does consider release of O. Bakhyshly to pending trial, which will considered a criminal case against him on the charges, but was never able to clearly and truly justify preventive measure is applied. The grounds that the court ruling were:
• Commission of a serious crime;
• Nature of the crime;
• Degree of public danger;
• Possible escape from the investigation and judicial authorities.

The Resolution of the Plenum of Supreme Court of the Azerbaijan Republic on November 03, 2009 “About practice of application of the legislation by the court in consideration of submissions, elected-related of preventive measure in the form of detention concerning the accused persons” was accepted because when applying the legislation by the courts allowed a number of mistakes:

      –  not tested comprehensively the validity of specific submissions;
      – resolutions are not commented basis for application of the most strict preventive measures in the form of detention, provided by the article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic;
      – as a bases for preventive measure in the form of arrest uses such general phrases as probability of escape from the body conducting criminal proceedings, interference in the normal course of investigation, evasion when summoned by the body conducting criminal proceedings;
       – there is no references to any factual circumstances confirming suspicions.

It is because of violations of the law by the courts, the Plenum of the Supreme Court of Azerbaijan was given clarifications, which were the courts checked the validity and legitimacy of the use of preventive measures in the form of arrest. However, despite the fact that since adoption of the said resolution has gone 9 years, it is still performed by the courts.

The court also did not given the concrete evidence in support of his conclusion that the defendant could abscond, interfere in the investigation or continue criminal activity. The court has not stated exactly what circumstances provide the ability to infer that O. Bakhyshly may avoid trial. This risk does not arise solely because the defendant can easily cross the border. There should be a all set of circumstances conducive to it. The court did not state to such circumstances in its resolution and does not specify any particular character of the defendant or his behavior that would justify the conclusion that he could escape.

For crossing the border of the Azerbaijan Republic the citizen of Azerbaijan must present the foreign passport. The foreign passport of the defendant may be seized by court, the prosecutor or the officer of law-enforcement bodies until the completion of criminal proceedings, so the  risk of escaping from the country has no basis in reality.

In the resolution on application of a preventive measure against Orhan Bakhyshly the court violated not only the Constitutions of the Azerbaijan Republic, the Code of Criminal Procedure of the country, the Resolution of the Plenum of the Supreme Court of Azerbaijan Republic, but also precedent decisions of the European Court of Human Rights (ECHR).

Thus, according to paragraph 52 of the resolution of ECHR in the case of Erkalo against the Netherlands on September 2, 1998 stated: “the Convention states the obligation to conform to the substantive and procedural rules thereof; but it requires in addition that any deprivation of liberty should be in conformity with the purpose of Article 5 which is to prevent persons from being deprived of their liberty in an arbitrary fashion”.

The Resolution of Baku City Yasamal District Court  not protected Orhan Bakhyshly from an arbitrariness and illegally placed him under arrest for 4 months.