The law can guarantee freedom, but the courts will not set an opposition activist free

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The law can guarantee freedom, but the courts will not set an opposition activist free

Aqil Maharramov

Analysis of violation of law during Aqil Maharramov’s judicial proceedings

Baku City Khazar District Court

Case №7 (003)-13/2021

13 January 2021

Judge: Tarlan Akbarov

Defendant: Aqil Maharramov

Defender:  Aqil Lahij

Zamir Pashayev, the Prosecutor at the Department of Extrajudicial Prosecution under the General Prosecutor’s Office of the Azerbaijan Republic

 

On 25 May 2018, a member of the Board of the Supreme Majlis of the Popular Front Party of Azerbaijan (PFPA), Aqil Maharramov was arrested.   He was charged under the Articles 193.3.2 (Illegal entrepreneurship on a particularly large scale), 193-1.3.1 (Legalization of funds or other property obtained by criminal means, committed by an organized group or criminal organization (criminal network), and 193-1.3.2 (Legalization of funds or other property obtained by criminal means, committed on a large scale) of the Azerbaijan Republic Criminal Code.

Together with Aqil Maharramov, Ruslan Nasirli, a PFPA member and the Chairman of the PFPA Youth Committee Supreme Majlis, also Babek Hasanov, an PFPA member and participant of the first Karabakh war, as well as a Russian citizen Saleh Rustamov, a businessman, a former head of the Gadabay District Executive Power, and his nephew, Vidadi Rustamov, all of them have been charged under the above-mentioned Articles.

All defendants were subjected to torture and inhuman treatment during the preliminary investigation, which they revealed to the Baku Court of Serious Crimes in the course of their trial.  On 27 February 2019, the Baku Court of Serious Crimes found the defendants guilty of the charges and sentenced Saleh Rustamov to 7 years 3 months, Aqil Maharramov to 4 years, Babek Hasanov to 3 years imprisonment, and Ruslan Nasirli as well as Vidadi Rustamov to a suspended sentence. On the same day, Ruslan Nasirli and Vidadi Rustamov were released at the courtroom.

Both Azerbaijani and international human rights organizations have recognized Aqil Maharramov and Saleh Rustamov as political prisoners and demanded the Azerbaijani authorities to release them from jail.

See:

https://www.amnesty.org/en/countries/europe-and-central-asia/azerbaijan/report-azerbaijan/

https://www.hrw.org/news/2020/03/25/azerbaijan-opposition-leader-arrested#

https://www.state.gov/wp-content/uploads/2020/02/AZERBAIJAN-2019-HUMAN-RIGHTS-REPORT.pdf

https://www.state.gov/report/custom/346c351ea5/

Aqil Maharramov is serving his sentence at Penitentiary Institution #2 under the Ministry of Justice Penitentiary Service of the Azerbaijan Republic.

In January 2021, Aqil Lahij, Aqil Maharramov’s defender appealed to the Baku Khazar District Court (Correctional Institution #2 is located on the territory of Khazar District) and asked the court to implement the amendments to his client, which were adopted into the Azerbaijan Republic Criminal Code on 1 May 2020, and to release A. Maharramov.

On 13 January 2021, the Baku Khazar District Court ruled that the amendments made to the Azerbaijan Republic Criminal Code did not apply to the criminal case against Aqil Maharramov and denied the lawyer’s appeal; Aqil Maharramov remained in custody.

 

Commentary by an expert lawyer:

The court verdict is illegal and unjustified. The Law on Amendments to the Azerbaijan Republic Criminal Code (No. 68-VIQD) dated on 1 May 2020, entered into force on 1 June 2020. The objective of this law is to humanize, liberalize, modify the punishments related to economic crimes and mitigate the penalty policy. The Article 193 of the Azerbaijan Republic Criminal Code, under which Aqil Maharramov was convicted, is exactly the one that fell within the scope of this law.

The Chapter 11 of the Azerbaijan Republic Criminal Code provides the conditions that constitute the basis for the exemption from prosecution of those convicted of the economic crimes.

According to the new law wording, in force since 1 June 2020, the person who has committed the act (actions) provided by the Articles 209 and 213 of the Azerbaijan Republic Criminal Code, shall be released from criminal liability, if the person fully compensates the damage caused by the crime (the Article 73-2.1). This provision is extended to the Articles 192, 192-1, 193, 195, 195-1, 196, 197, 198, 202-2, 203, 203-1.1, 205-2, 209.2.1, 209.3, 210, 211, 212 and 213-2 of the Criminal Code of the Azerbaijan Republic. The person who has committed the act (actions) provided by the Articles 1 and 3, and who has fully compensated the damage caused by the crime or has transferred the profits gained through the crime to the State budget, shall be exempted from the criminal liability (the Article 73-2.1).

If we take a look at the set of conditions stipulated by the new law with regard to the Article 193 of the Azerbaijan Republic Criminal Code, their cumulative effect is the basis for exemption from criminal responsibility.

These conditions are:

  • A person who has fully repaid the damage caused by a criminal action.

According to the sentence that entered into legal effect, there was no material damage found in the criminal case. Moreover, there were no victims who suffered as a result of the criminal acts in the case. Aqil Maharramov was convicted for passing the funds that had been allocated for the party’s needs, to certain individuals as a kind of assistance. The criminal case failed to establish damage by even 1 penny.

  • If the damage caused by the crime is fully compensated.

It was determined through the materials of the criminal case and the verdict itself that Saleh Rustamov, a businessman, was engaged in entrepreneurial activities in Russia. He financially assisted the party members, as well as the political prisoners’ families. Aqil Maharramov was one of those who transported the financial aid to the recipients. Saleh Rustamov had no criminally earned income, he was engaged in entrepreneurship in Russia and did not violate the laws of Russia. Aqil Maharramov did not own a penny of the donations intended for the part needs or the political prisoners’ families. He was only an intermediary in transferring money to the beneficiaries. A. Maharramov’s financial situation has not been improved in any way. It should also be taken into account that, according to the verdict, the money had been transferred in the period of 2010-2018, while A. Maharramov became a member of the PFPA only in 2013, and he could not take part in any activities related to the PFPA prior to 2013.

  • A person who has paid to the state budget an income, as well as a respective interest, received as a result of criminal activity.

This law condition is generalized and subject to the presence of the two previous conditions. This condition is not alternative to the two previous conditions. Aqil Maharramov has not made any profit, has not caused any financial damage to anyone, has not embezzled the state budget, and has not caused damage to the state budget. The case did not define either the victims, the civil plaintiff, or the criteria of damage done to the state budget.

According to the Article 65 of the Azerbaijan Republic Constitution, every person convicted by the law court has the right to appeal, as specified by the law, to the higher law court asking for reconsideration of the verdict and also for pardon and mitigation of the sentence.

The Article 71 para. VIII of the Azerbaijan Republic Constitution states: “No one will be responsible for acts which were not considered criminal at the moment of their implementation. If after the crime new law was introduced envisaging no responsibility or mitigation of responsibility, said new law shall apply”.

Transitional provisions of the Law of the Azerbaijan Republic on amendments to the Criminal Code from 1 May 2020, (the Article 2.2.) stipulate that the persons condemned prior to this Law entering into force and serving their sentences at the moment, shall be released from serving their sentences. These persons’ criminal records shall be expunged and they shall be deemed not convicted (the Article 2.3 of the Azerbaijan Republic Law).

If the situation of the condemned who were sentenced prior to entry into force of the present Law, and who are serving or had served is improved by the present Law, these questions, as well as the questions provided by the Article 2.2 of the present Law, shall be resolved by the court or the court at the location where the sentence is served, on submission of the institution or body executing the sentence, or the condemner’s application, in the order provided by the Criminal Procedure Code of the Azerbaijan Republic (the Article 2.4.).

According to the Article 15 para. 1 of the International Covenant on Civil and Political Rights, no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

The Article 7 para. 1 of the European Convention on Human Rights states: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The ruling of the European Court of Human Rights (ECHR) in the case Scoppola v. Italy from 17 September 2009, states that the Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, while prohibiting retroactive effect in criminal legislation on serious grounds, at the same time guarantees the retroactive effect of easier sentences, although the legislation in force at the time of the criminal act provides a harsher penalty, that is, under the new law a lighter punishment must be applied to the offender.

See: https://hudoc.echr.coe.int/fre#{“itemid”:[“001-111044”]}

Summarizing aforesaid, we can conclude that the court violated Aqil Maharramov’s right to freedom that is guaranteed by the Article 28 of the Azerbaijan Republic Constitution, the Article 5(1) of the European Convention on Human Rights, the Article 9(1) of the International Covenant on Civil and Political Rights and numerous precedents of the European Court of Human Rights, which are binding for the Council of Europe member states. The court violated new law provisions by not fulfilling the requirements of international legal norms, as well as the right to freedom.