THE COURT VIOLATED ANAR MAMMADLI’S RIGHT TO LIBERTY AND PERSONAL INVIOLABILITY
Anar Mammadli
Analysis of violation of law during Anar Mammadli’s judicial proceedings
Baku City Khatai District Court
Case № 4(011)-570/2024
22 August 2024
Presiding judge: Bakhtiyar Mammadov
Defendant: Anar Mammadli
Defenders: Javad Javadov, Elchin Sadigov
With the participation of Togrul Huseynov, a Senior Investigator from the Division for Investigation and Inquiry of Special Cases within the Baku Police Headquarter, and Heydar Yusifzade, a Prosecutor from the Department for Supervision over the Execution of Laws in Investigative, Inquiring and Operative Activities of Internal Affairs Bodies within the Baku City Prosecutor’s Office.
In 1999, Anar Mammadli (born in 1978) graduated from the Azerbaijan Foreign Languages University, specialising in German and philology.
In 2000, he graduated from the Maxwell School of Syracuse University in the USA, Faculty of Public Administration. Anar Mammadli has also worked as a reporter and editor for several newspapers.
In 2001, A. Mammadli founded a human rights organisation “Training Centre for Monitoring Elections and Democracy”. In 2008, the organisation’s registration was annulled upon the claim of the Azerbaijan Republic Ministry of Justice.
In 2013, the organisation monitored the elections and was the first one to circulate a report in which stated that there were violations in the election process, thus causing strong objections from the authorities.
On 27 October 2013, the General Prosecutor’s Office of the Azerbaijan Republic initiated a criminal case against the organisation. On 16 December 2013, Anar Mammadli was arrested. On 26 May, 2014, the Baku Court for Serious Crimes found Mr Mammadli guilty and sentenced him to 5 and a half years imprisonment. He was recognised as a political prisoner by both local and international human rights organisations.
On 17 March 2016, A. Mammadli was released in accordance with the decree on pardon. A. Mammadli was a participant of a number of international events.
On 29 April 2024, Anar Mammadli was detained as a suspect in a criminal case under the Article 206.3.2 (Smuggling, is moving large amount through customs border of the Republic of Azerbaijan of goods or other subjects, committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic.
On 30 April, 2024, he was found to be guilty under the above article.
In connection with the charge, an investigator and Prosecutor filed an appropriate petition and submission to the Court with a request to choose a preventive measure in the form of remand in custody for 3 months and 28 days against the accused. In the course of trial, the investigator and Prosecutor upheld the motion and submission, while A. Mammadli stated that his arrest appeared to be of a political nature. On 30 April, 2024, the Baku City Khatai District Court ordered a preventive measure to remand A. Mammadli in custody for the period of 3 months and 28 days.
On 27 August 2024, the chosen preventive measure was about to expire. In this regard, the representatives of the investigative body applied to the Court with a request to extend the preventive measure term for another 3 months. The indicated reason was the case complexity and vast amount of case files.
On 22 August 2024, the Baku City Khatai District Court issued an order: to satisfy the investigator’s petition and Prosecutor’s submission to extend the term of preventive measure in the form of remand in custody against A. Mammadli until 27 November 2024.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The Baku City Khatai District Court ordered a measure of restraint in the form of remand in custody in respect of A. Mammadli on 30 April 2024. There were the following grounds in the Court’s ruling:
- concealment from the body carrying out the criminal proceedings;
- unlawful pressure on those involved in the criminal process;
- obstruction to the normal course of the preliminary investigation by concealing the materials relevant to the criminal prosecution;
- re-committing an act provided for by the Criminal Law and posing a danger to the society.
In addition, the Court referred to the gravity of the alleged sentence.
In the commented judgement, the Court indicated as grounds for extending the term of the preventive measure: the case complexity, the large number of criminal case files, necessity to conduct expert examinations, as well as the waiting period for responses to enquiries sent to certain governmental structures inside and outside the country.
It should be noted that there are the detailed arguments and reasons given by the investigating authority, while the arguments and reasons provided by the defence are not mentioned at all in the ruling.
The Article 155.2 of the Code of Criminal Procedure of the Azerbaijan Republic states,
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 Court, both in imposing the preventive measure and extending its term, failed to take into account the personality, credibility of the accused whether inside or outside the country, ignoring his occupation and marital status.
When imposing a preventive measure or extending its duration, it is necessary to adopt an individualised approach to the case. The judgements should not contain formal and abstract expressions. Each argument must be supported by particular and irrefutable evidence. However, in the case of A. Mammadli, the Court did not demonstrate such an approach.
The Court did not specify why it was necessary to isolate the accused from the society, what danger to the public his freedom posed, and what kind of mass disturbances or public discontent might occur if A. Mammadli were released, for example, on house arrest or bail.
According to the Article 159.2 of the Code of Criminal Procedure of the Azerbaijan Republic,
At the pre-trial stage, in an exceptionally complicated case, the remand period may again be prolonged by the court: for minor offences, for no longer than 2 (two) months; for serious offences, for no longer than 3 (three months), and for very serious offences, for no longer than 5 (five) months.
The Article 159.4 of the Code of Criminal Procedure of the Azerbaijan Republic states,
When deciding whether to prolong the remand period, the court shall have the right to substitute house arrest for detention on remand or to release the accused by granting bail and determining the amount of bail.
Despite the indicated in the Code of Criminal Procedure of the Azerbaijan Republic Article 159.4, powers the Court did not exercise them and issued a ruling in favour of the investigative body.
The judgment of the European Court of Human Rights (ECHR) in the case of Smirnova v. Russia dated 24 July, 2003 states,
“61. The matter of whether a period of detention is reasonable should not be assessed in the abstract. It must be assessed on a case-by-case basis in accordance with the individual characteristics of the accused. An extended detention may be justified in this case only if there are particular indications that it is genuinely required by a public interest which, notwithstanding the presumption of innocence, outweighs the principle of respect for individual liberty”. – https://hudoc.echr.coe.int/?i=001-61262
The ECHR judgment in the case of Labita v. Italy dated 6 July, 2000, stated,
“According to the Court’s practice, a reasonable term is not subject to an abstract assessment. The reasonableness of an accused’s detention must be analysed on a case-by-case basis in accordance with the particularities of the case. The detention in custody could be justified in a given case only if the specific grounds disclose a public interest prevailing, notwithstanding the presumption of innocence, over respect for individual liberty. It is primarily incumbent on the national judicial authorities to ensure that the period of temporary detention of the accused does not exceed a reasonable limit. To that end, they must consider, taking into account the principle of the presumption of innocence, all the circumstances that enable them to ascertain whether there is a public interest which would justify exceptions to the general rule of respect for individual liberty and take them into account in their judgements on requests for release”. – https://hudoc.echr.coe.int/?i=001-58559
The unreasonableness, one-sidedness, partiality, lack of motivation and arguments in the court ruling to extend the preventive measure in the form of remand in custody led to a gross violation of the right to liberty and inviolability of A. Mammadli, which is guaranteed by the Constitution of the Azerbaijan Republic, Article 28, and the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1).