THE COURT DECLARED A JOURNALIST POLAD ASLANOV TO BE “A NATIONAL TRAITOR”
Polad Aslanov
Analysis of violation of law during Polad Aslanov’s judicial proceedings
Baku Court on Grave Crimes
Case №1 (101)-369/2020
16 November 2020
Presiding judge: Faiq Qaniyev
Judges: Mirza Khankishiyev, Ilham Mahmudov
Defendant: Polad Aslanov
Defenders: Elchin Sadigov, Kamran Musayev
The state prosecutors: Ali Aliyev, the prosecutor of the Baku section of the Public Prosecution Department at the General Prosecution Office of the Azerbaijan Republic; Seyhun Azadaliyev, the prosecutor of the Department for Public Prosecution at Serious Crimes Courts of the Azerbaijan Republic Public Prosecution Office; Eldar Hamza, the Senior prosecutor of the above-mentioned section.
Victim: Dayanat Babayev
Polad Aslanov, a journalist, the founder and editor-in-chief of www.xeberman.org and www.press-az.com, was detained at the border with Iran, at the Bilasuvar border checkpoint, on 12 June 2019.
The journalist’s wife describes his detention as follows:
“On 12 June 2019, at about 10:30 in the morning, Polad Aslanov, our daughter Fatima, and I were detained at the Bilasuvar border checkpoint. We were told there was a problem in the system. A few minutes later, we were brought into the investigation room again. The phones were forcibly taken away. We asked the reason for the detention, but they brutally dragged our daughter and me out of the room, and left Polad for the interrogation. In about an hour and a half, three officers of the State Security Service (SSS) of the Bilasuvar District Branch arrived on the spot. First, they interrogated Polad separately, then they brought us to the SSB of the Bilasuvar District Branch. The Department Head told us that he should take us to Baku and hand over to a certain person. I argued a lot with him demanding my phone back. They said that they would take us to Baku in separate cars: Polad would be taken in one car but our out daughter and I would be transported in the other. I did not agree. Then they set the condition that if I refused to obey, they would handcuff Polad. I told them to put one of the handcuffs on my hand, and that if they transported us in separate cars, I would kill myself. So, we all were sitting together in one car and brought to Baku to the State Security Department. Then they took Polad away. In about 2 hours they brought my daughter and me to the house where we lived. They searched the house by a court order. They confiscated the computer, USB flash drives, documents, and Polad’s photo and video cameras. They even searched Polad’s mother’s house. They also confiscated a book that didn’t belong to Polad, and an old phone card that belonged to Polad’s mother. After that they took us back to the SSS. I was interrogated for about 4-5 hours, and released at 01:30. At the moment, Polad is being held at the SSS”.
On 13 June 2019, the State Security Service of the Azerbaijan Republic spread the information about Polad Aslanov’s detention. It was stated,
“It was established that Polad Aslanov had held secret meetings with foreign intelligence services outside the country, signed receipts for the received amount of money and participated in the secret cooperation in exchange for a material interest on condition of a regular payment. Based on the instructions, received from the foreign intelligence services, he transmitted the information that he had assembled for the purpose of using it to the detriment of Azerbaijan’s state security and defense capabilities. Polad Aslanov introduced the journalists, whose names were not disclosed due to the confidentiality of the investigation, to the intelligence officials in a foreign country for further cooperation. During the investigation, there were obtained numerous documents concerning Polad Aslanov’s cooperation with the representatives of foreign secret services that were aimed against the interests of the Azerbaijani state security. Based on the instructions, received from the foreign intelligence services, he transmitted the information that he had assembled for the purpose of using it to the detriment of Azerbaijan’s state security and defense capabilities. Polad Aslanov introduced the journalists, whose names were not disclosed due to the confidentiality of the investigation, to the intelligence officials in a foreign country for further cooperation. During the investigation, there were obtained numerous documents concerning Polad Aslanov’s cooperation with the representatives of foreign secret services that were aimed against the interests of the Azerbaijani state security. Polad Aslanov rendered a detailed information about his criminal activity”.
Polad Aslanov was charged with committing crimes under the Articles 274 (Treason) and 134 (Threatening to kill or cause serious harm to health) of the Criminal Code of the Azerbaijan Republic.
On 14 June 2019, the Baku Sabayil District Court issued a ruling on imposing a preventive measure against Polad Aslanov in the form of 4-month detention.
That day, Polad Aslanov’s wife Gulmira Aslanova wrote on her Facebook page:
“In the course of the trial, Polad Aslanov pleaded not guilty and said that the charges against him had been in connection with the conspiracy as well as with his journalistic activities. For instance, Polad Aslanov had written a number of articles describing how the SSS officers, who subsequently arrested him, had been taking the bribes of every pilgrim going to Mashhad and Karbala. Polad Aslanov and we, his family, hereby declare that his arrest is solely and only related to those articles”.
It should be pointed out that the principal witness in the criminal case against Polad Aslanov had been the founder of the website www.bakunews.az, Mirkanan Seyidov, who got arrested in the courtroom on 6 August 2019, on the charge of blackmailing some money. The Baku Court of Serious Crimes found Mirkanan Seyidov guilty and sentenced him to 4 years 11 months and 28 days imprisonment. According to Polad Aslanov’s wife. Gulmira Aslanova, M. Seyidov attempted to engage her husband in cooperation with the SSS, he demanded to halt writing the critics against the SSS structure. But Polad Aslanov refused to do that. Later, according to her, M. Seyidov testified against her husband.
Upon the completion of the preliminary investigation, the case was transferred for consideration by the Baku Court of Serious Crimes.
A preliminary hearing was scheduled for 3 February 2020. The defendant’s lawyer applied to the court with two motions: to modify the preventive measure, and let P. Aslanov sitting next to his lawyer at the trial. Both motions were denied by the court. The Court also ruled to hold a partially closed hearing.
The hearing on the merits of the case was scheduled for 10 February 2020. On 10 February 2020, it was invited to the Court for interrogation a victim, Dayanat Babayev, who claimed about threatening to his life, the Article 134 (Threatening to kill or cause serious harm to health) of the Criminal Code of the Azerbaijan Republic. However, he expressed his desire to be reconciled with the defendant and stated that he had not had any complaints or grievances against P. Aslanov.
At the hearing on 17 February 2020, the State prosecutor asked the defendant whether he had been in charge of the website during his military service, which, according to the Aslanov’s wife and himself, he had been illegally drafted to, despite his poor health. The defendant’s wife told the media that the question should have been addressed not to Polad, but to her. At the trial, Aslanov demanded to let the human rights activists and journalists enter into the courtroom. The judge explained that only the defendant’s family would be allowed to attend, to which Aslanov expressed his displeasure. Finally, a few human rights defenders were also allowed to enter.
At the trial on 5 March 2020, the presiding judge Faiq Qaniyev revealed that the criminal case had also been initiated against the journalist’s wife, Gulmira Aslanova. That was the reason upon which the court issued a search order in respect of Gulmira Aslanova.
In the course of the trial, the journalists, Rovshan Kananoglu and Miralam Khashimov were questioned as witnesses. Both journalists asked the court to exclude some of the misinterpreted testimonies given by them during the preliminary investigation. However, the court left them untouched and included their misinterpreted words in the verdict.
On 22 October 2020, the prosecutor delivered an indictment, asking the court to find Polad Aslanov guilty on the charges and sentence him to a 17-year imprisonment. On 5 November 2020, the trial continued, as Aslanov’s defense attorney said that Polad Aslanov’s guilt had not been proven in the court and he should be given an acquittal verdict.
On 16 November 2020, the Baku Court of Serious Crimes issued a verdict against Polad Aslanov: he was found guilty of committing a crime under the Article 274 (Treason) of the Azerbaijan Republic Criminal Code and sentenced him to serve 16 years strict regime penal colony. Though, P. Aslanov was acquitted by the court verdict under the Article 134 (Threatening to kill or cause serious harm to health) of the Criminal Code of the Azerbaijan Republic.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified. Above, it was described the detention of Polad Aslanov that was carried out violating the norms of national criminal-procedural legislation. According to the Article 150.1 of the Criminal Procedure Code of the Azerbaijan Republic, if the evidence collected on a criminal case gives grounds to suppose that a person has committed an act provided for in criminal law, and if this person lives in another area or if his abode is not known, the investigator or prosecutor may decide to detain him. If a person hides from the prosecuting authority or intentionally fails to comply with a summons, and it is decided to detain him in order to charge him, the investigator or prosecutor shall at the same time announce a search for him.
The Article 153.2 of the Criminal Procedure Code of the Azerbaijan Republic states: “To secure the rights of the detainee, the officials of the prosecuting authority and those in charge of the temporary detention facility shall:
153.2.1. inform the detainee immediately after detaining him of the grounds for detention, and explain to him his right not to testify against himself and his close relatives as well as his right to the assistance of defense counsel;
153.2.2. take the detainee without delay to the police or other preliminary investigating authority’s temporary detention facility, register the detention, draw up a record and show him the detention record;
153.2.3. report each instance of detention, immediately after registration in the temporary detention facility, to the head of the appropriate preliminary investigating authority and to the prosecutor in charge of the procedural aspects of the investigation (this information shall be given in writing within 12 hours of detention);
153.2.4. secure the right of the person to inform others of his detention immediately after detention (the authority in charge of the temporary detention facility, on his own initiative, shall inform the family members of any detainees who are elderly, under age or unable to do so themselves because of their mental state);
153.2.5. provide opportunities for the person, from the moment of detention, to meet in private and in confidence with his lawyer and legal representative under decent conditions and under supervision;
153.2.6. if the detainee does not have a lawyer of his own, present him with a list of lawyers from the bar association offices in the vicinity of the temporary detention facility, contact the chosen lawyer and create an opportunity for the detainee to meet him;
153.2.7. if the financial position of the detainee does not enable him to retain a lawyer at his own expense, create an opportunity for him to meet the duty lawyer from one of the bar association offices in the vicinity of the temporary detention facility, at the state’s expense;
153.2.8. if the detainee refuses the services of a lawyer, receive his written request to that effect (if he evades writing the request, a record to that effect shall be drawn up between the lawyer and the representative of the temporary detention facility);
153.2.9. secure the right of any person who does not know the language of the criminal proceedings to use the services of an interpreter free of charge;
153.2.10. not treat the detainee in a way that fails to respect his personality or dignity, and pay special attention to women and persons who are under age, elderly, ill or disabled;
153.2.11. take the restrictive measure of arrest in respect of the detainee, and bring him to court in good time in order to ensure that the question of forcibly sending him to the place where the sentence or other final court decision is to be executed, replacing the penalty given to him with another or repealing his suspended sentence or conditional release is settled within the time limits provided for in Articles 148 and 150-152 of this Code;
153.2.12. perform the duties prescribed in Article 161.0.1-161.0.8 and 161.0.10 of this Code.”
Below, there are the following rights violations in respect of Polad Aslanov: he was not informed about the reasons of detention at the time of detention, he and his family members were mistreated, he was not provided a lawyer upon the indictment (only an attorney appointed by the state, and whom he did not independently choose), his right to be defended was violated in appointing a state lawyer since his financial situation was not verified in order to make sure that he had funds to pay for the lawyer of his choice. P. Aslanov was deprived of the opportunity to choose a lawyer from the list of those who work on the territory.
According to the Article 5 paragraph 3 of the European Convention on Human Rights, everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
The Article 5 paragraph 3 of the European Convention on Human Rights states, that everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
The case of Polad Aslanov, who was detained at 10.30 on 12 June 2019, and brought before the court on 14 June 2019, when the Baku City Sabayil District Court selected a preventive measure of detention for a period of 4 months, the defendant was not brought to court “immediately”, and without delay. That is another right violation. (https://ru.wiktionary.org/wiki/незамедлительно).
According to the Article 5 paragraph 4 of the European Convention on Human Rights, everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
With regard to Polad Aslanov, the right to the presumption of innocence has been also violated. As mentioned above, on 13 June 2019, the State Security Service issued a statement on the detention of Polad Aslanov on the grounds of his cooperation with some foreign intelligence services. It is worth pointing out that the measure of restraint in the form of arrest was selected by the court only on 14 June 2019. Such a statement seriously violated the principle of presumption of innocence, as it was intended to portray the journalist as a traitor and a criminal who collaborated with the intelligence services of a foreign state. The statement itself had an impact on the court’s ruling concerning the measure of restraint in the form of detention right after its publication.
According to the Article 63 of the Constitution of the Azerbaijan Republic, everyone is entitled for presumption of innocence. Everyone who is accused of crime shall be considered innocent until his guilt is proved legally and if no verdict of law court has been brought into force.
Article 21.1 of the Criminal Procedure Code of the Azerbaijan Republic states, that any person suspected of committing an offence shall be found innocent if his guilt is not proven in accordance with this Code and if the court has not delivered a final judgment to that effect.
The same principle is enshrined in the Article 6 paragraph 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in the Article 14 paragraph 2 of the International Covenant on Civil and Political Rights, and in the Article 11 para. 1 of the Universal Declaration of Human Rights.
The principle enshrined in any legal system based on the Rule of Law, that is the presumption of innocence, which means that the one who is suspected or formally accused of a criminal offense has the right to an independent and impartial justice, the essential feature of which must be a tolerant state of mind. The presumption of innocence applies throughout the criminal proceedings, regardless of the investigation result, and not just when considering the charges legitimacy. Moreover, it requires that the judges, in exercising their functions, abandon the preconceived notion that a defendant has committed a criminal act, since the burden of proving is upon the prosecution, and any doubt is to be interpreted in favor of the defendant. The authorities should not prevent a public awareness of the criminal investigation process. However, the European Convention, the Article 6 paragraph 2, states that they must do so with sensitivity and caution, in accordance with the respect to the presumption of innocence.
“Freedom of expression, as guaranteed by the Article 10 of the Convention, extends to the freedom of receiving and imparting the information. Consequently, the Article 6 (2) cannot prevent the authorities from informing the public about the ongoing criminal investigations, but it requires the authorities to do so with discretion and sensitivity, in accordance with mutual respect for the presumption of innocence” (Judgment of the European Court of Human Rights in the case of Allen de Ribemont v. France, February 10, 1995). –
https://europeancourt.ru/uploads/ECHR_Allenet_De_Ribemont_v_France_10_02_1995.pdf http://echr.ketse.com/doc/15175.89-en-19950210/view/
As it was mentioned above, the journalist’s wife was questioned as a witness in the criminal case. Moreover, the court issued an order to search the house where Aslanov’s mother lived. According to Gulmira Aslanova, Polad Aslanov’s wife, when she was summoned to testify, the investigator did not warn her that she could refuse to testify against her husband, as it was stipulated by the constitutional norm. European legal standards refer to this right as the “right to silence”. The Article 66 of the Azerbaijan Republic Constitution states, “No one shall be compelled to testify against himself, his wife (husband), children, parents, brother, or sister. The complete list of relatives against whom testifying shall not be compulsory is defined by the law”. According to the Article 95.6.4 of the Criminal Procedure Code of the Azerbaijan Republic, a witness has the right to refuse testifying, providing materials and information about himself/herself and his/her close relatives. This right has not been clarified to the journalist’s wife.
The right to silence was violated in the case of Polad Aslanov, who was forced to testify against himself. “Although it is not specifically invoked under the Article 6 of the Convention, there is no doubt that the right to silence in the course of the police interrogation and the privilege not to self-incriminate are recognized by the International Standards that underpin the notion of a fair trial under the Article 6 (…). By protecting the accused against unfair coercion by the authorities, these privileges contribute to avoiding injustices and guaranteeing the Article 6 objectives stipulated in the Convention” (Judgment of the European Court of Human Rights in John Murray v. the United Kingdom, February 8, 1996). –
https://hudoc.echr.coe.int/eng#{“dmdocnumber”:[“695857″],”itemid”:[“001-57980”]}
One of the most important detainee’s rights is the right to a defense. According to the Article 91.5.7 of the of the Criminal Procedure Code of the Azerbaijan Republic, accused shall exercise to choose his defense counsel independently, to dismiss counsel and to conduct his own defense if he waives the right to defense counsel. P. Aslanov was deprived of the right to choose his own lawyer at the beginning of his arrest. Instead, he was assigned a state lawyer. He was deprived of the right to have a qualified legal assistance either to have sufficient time to prepare his defense.
“The Court recalls that the Convention is not intended to guarantee theoretical or illusory rights but their practical and effective exercise, and that the appointed lawyer does not mean that he would ensure the effectiveness of a juridical assistance that should be offered to the accused.” (Judgment of the European Court of Human Rights in case of Daoud v. Portugal, April 21, 1998). – file:///C:/Users/User/Downloads/001-58154.pdf
Apart from the above-mentioned violations, the unmotivated nature of the judicial verdict is noteworthy. According to the Article 349.3 of the Criminal Procedure Code of the Azerbaijan Republic, the court judgment shall be lawful and well-founded.
According to the Article 349.4 of the Criminal Procedure Code of the Azerbaijan Republic, the court judgment shall be considered lawful if it fulfils the requirements of the
Constitution of the Azerbaijan Republic, this Code and the criminal and other legislation of the Azerbaijan Republic.
The Article 349.5 of the Criminal Procedure Code of the Azerbaijan Republic states: “In the following cases the court judgment shall be considered well-founded:
349.5.1. if the conclusions at which the court arrives are based only on the evidence
examined during the court’s investigation of the case;
349.5.2. if the evidence is sufficient to assess the charge;
349.5.3. if the facts established by the court are consistent with the evidence investigated”.
“The Contracting States enjoy a large degree of freedom in the choice of the means to enable their judicial system to comply with the mandatory requirements of the Article 6. However, the judges must indicate the grounds upon which they have based their verdicts reasonably well. Thus, the accused may advantageously apply the existing legal defence” (the Judgment of the European Court of Human Rights in the case of Hadjianastassiou v. Greece, Judgment of 16 December 1992). –
file:///C:/Users/User/Downloads/001-57779.pdf
http://www.consultant.ru/cons/cgi/online.cgi?req=doc&base=ARB&n=464330#025679170829552733
Taking into account the above violations of the Azerbaijani legislation and the International law, we come to the conclusion that in respect to Polad Aslanov there was an illegal, unjustified and unmotivated sentence, which violated Aslanov’s right to freedom.