At the time of conviction the court disregarded the norms of international law and the precedents of the ECHR

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AT THE TIME OF CONVICTION THE COURT DISREGARDED THE NORMS OF INTERNATIONAL LAW AND THE PRECEDENTS OF THE ECHR

                                 Trial of the 13  Armenian prisoners of war

 Analysis of violation of law during 13 Armenian prisoners of war judicial proceedings

Baku Grave Crimes Court

Case №1(101)-1242/2021

22 July 2021

Presiding judge: Eldar Ismayilov

Judges: Javid Huseynov, Samir Aliyev 

Defendants: Haykaz Hovhannisyan, Varazdat Manukyan, David Stepanyan, Levan Tosunyan, Martin Agramyan, Artur Baghdasaryan, Hrayr Herabyan, Jora Manukyan, Ashot Gevorkyan, Varazdat Arutyunyan, Serob Avakyan, Narek Kostanyan, Gregor Kuregyan 

Defenders: Tural Shukurov, Zumrud Samadova, Nigar Mirbabayeva, Telman Abdiyev, Alov Safaraliyev, Elnaz Samadova, Natiq Mustafayev, Fazil Aliyev, Elmira Ismayilova, Javanshir Mammadov, Arzu Javadov, Qadir Rahimov, Tufan Kerim

The State prosecutors: Jeyhun Azadaliyev, a Junior Counsel of Justice, and Orhan Samadov, a Senior-level attorney, at the Department for the Protection of Public Prosecutions in the Serious Crimes Courts of the General Prosecutor’s Office of the Azerbaijan Republic.

In September 2020, there were the violent hostilities between Azerbaijan and Armenia in and around Karabakh. As a result of the 44-day-war, Azerbaijani soldiers liberated several towns and many villages in Karabakh and the territory adjacent to it.  Dozens of Armenian soldiers were captured in the course of military operations and were convicted and sentenced to the various terms of imprisonment.

Haykaz Hovhannisyan, born on 8 May 1992, a citizen of the Republic of Armenia, was prosecuted as an accused on March 17, 2021. He was charged in accordance with the Articles 214.2.1 (Terrorism, committed on preliminary arrangement by group of persons, by organized group or criminal community), 214.2.3. (Terrorism, committed with application of fire-arms or subjects used as a weapon), 228.3 (Illegal purchase, transfer, selling, storage, transportation and carrying of fire-arms, accessories to it, supplies or explosives, committed by organized group), 279.2. (The attack on enterprises, establishments, and organizations or on separate persons by structure of formations or groups which is provided by articles 279.1 and 279.1-1 of the present Code) and 318.2 (Crossing of protected frontier of the Azerbaijan Republic, committed on preliminary arrangement by group of persons or organized group either with application of violence or with threat of its application) of the Criminal Code of the Azerbaijan Republic.

The Baku Sabeel District Court ordered a preventive measure against H. Hovhannisyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service under the Ministry of Justice of the Azerbaijan Republic.

Varazdat Manukyan, born on 7 July 1990, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Varazdat Manukyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

David Stepanyan, born on 27 April 1996, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against David Stepanyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Levan Tosunyan, born on 2 March 1991, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Levan Tosunyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Martin Agramanyan, born on 28 May 1996, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Martin Agramanyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Artur Baghdasaryan, born on 7 February 1998, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Artur Baghdasaryan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Hrayr Herabyan, born on 25 February 1992, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Hrayr Herabyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Jora Manukyan, born on 20 June 1996, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Jora Manukyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Ashot Gevorkyan, born on 30 June 1998, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Ashot Gevorkyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Varazdat Arutyunyan, born on 1 August 1996, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Varazdat Arutyunyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Serob Avakyan, born on 3 May 1984, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Serob Avakyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Narek Kostanyan, born on 19 March 1996, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Narek Kostanyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

Gregor Kuregyan, born on 13 March 1998, a citizen of the Republic of Armenia, was prosecuted as an accused on 18 March 2021.  He was charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code.

The Baku Sabayil District Court ordered a preventive measure against Gregor Kuregyan in the form of detention. He was transferred to the Baku Investigative Isolator of the Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic.

According to the investigation, the above mentioned accused citizens of the Republic of Armenia, as a part of an organized group, illegally crossed the border of the Azerbaijan Republic on 27 November 2020, and till 13 December 2020, illegally acquired, carried and stored firearms, their spare parts, ammunition, explosives or explosive devices, and committed terrorist acts.

The Baku Court of Serious Crimes, having considered the case, concluded that there were no evidences of terrorism or involvement in illegal armed units in the accused’s actions. Therefore, the proceedings under the Articles 214.2.1, 214.2.3 and 279.2 of the Criminal Code of the Azerbaijan Republic were dismissed.

Haykaz Hovhannisyan, the defendant, being interrogated in the course of the investigation, pleaded not guilty to the accusations and testified that on 26 November 2020, he was summoned to the military registration and commissariat of the city of Gyumri. On 27 November 2020, he was provided with a uniform, an automatic rifle and ammunition. There were a total of about 100 military personnel. On four buses, they illegally crossed the border with Azerbaijan and headed to Lachin. Their commander was Arsen Ghazaryan. In Azerbaijan, A. Ghazaryan along with 40 Armenian military personnel took a position at the foot of the mountain. On 13 December 2020, A. Ghazaryan ordered by the telephone to a group of 60 servicemen to return to Armenia. Upon their return, they were surrounded by the Azerbaijani military. A. Ghazaryan along with 40 Armenian soldiers managed to escape. The Azerbaijani servicemen demanded those Armenians who were left to surrender their weapons. Realizing that the resistance made no sense, the Armenian soldiers surrendered their weapons. The other Armenian soldiers were also detained along with Hovhannisyan.

Varazdat Manukyan, the defendant, interrogated at the trial, pleaded not guilty to the charges and testified that he was summoned to the military commissariat of the city of Gyumri on 27 November 2020. There were about 350 Armenian citizens conscripted to the military service, led by a military officer, Arsen Ghazaryan. Then he was handed a military uniform and automatic rifle. About a hundred military personnel under A. Ghazaryan’s command arrived from Armenia to Azerbaijan, reaching the city of Lachin. Within two hours, they made it to the mountainous area. On 13 December 2020, Arsen Ghazaryan ordered them to return back to Armenia. When the Armenian soldiers were going down the mountain, they got detained by the Azerbaijani military.

The other defendants provided similar testimonies.

According to the Court, it was not the defendants, but other individuals who had been in charge of setting up the military armed formations. Therefore, the court excluded from the charges the Articles 214.2.1, 214.2.3 and 279.2 of the Azerbaijan Republic Criminal Code, having deemed that the defendants’ actions did not constitute an offence under these Articles.

The defendants pointed out that they had committed the illegal deeds under the pressure of the officials in charge of the corresponding state structures, so they asked the court to consider the criminal case against them under the Articles 207 (Rules governing examination of information about an offence committed or planned) and 208 (Discovery by the prosecuting authority of information about an offence committed or planned) of the Criminal Procedural Code of the Azerbaijan Republic.

On 22 July 2021, the Baku Court of Serious Crimes issued a verdict against the Armenian military servicemen: all the accused were found guilty of committing crimes under the Articles 228.3 and 318.2 of the Azerbaijan Republic Criminal Code. And they were sentenced:

  • Haykaz Hovhannisyan to 6 years of imprisonment in a penal regime colony;
  • Varazdat Manukyan to 6 years of imprisonment in a penal regime colony;
  • David Stepanyan to 6 years of imprisonment in a penal regime colony;
  • Levan Tosunyan to 6 years of imprisonment in a penal regime colony;
  • Martin Agramyan to 6 years of imprisonment in a penal regime colony;
  • Artur Baghdasaryan to 6 years of imprisonment in a penal regime colony;
  • Hrayr Herabyan to 6 years of imprisonment in a penal regime colony;
  • Jora Gevorkyan to 6 years of imprisonment in a penal regime colony;
  • Ashot Gevorkyan to 6 years of imprisonment in a penal regime colony;
  • Varazdat Arutyunyan to 6 years of imprisonment in a penal regime colony;
  • Serob Avakyan to 6 years of imprisonment in a penal regime colony;
  • Narek Kostanyan to 6 years of imprisonment in a penal regime colony;
  • Gregor Kuregyan to 6 years of imprisonment in a penal regime colony;

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. As it is seen from the verdict, the Court excluded the charges under the Articles 214.2.1, 214.2.3 and 279.2 of the Azerbaijan Republic Criminal Code, justifying it by the fact that the unlawful actions indicated in the Articles had been committed not by the accused but by others. Why the Court came to this conclusion is not clear in the verdict. It was voiced by the accused in the course of the investigation and trial. However, it is not clear either why the Court retained the charges under the Articles 228.3 and 318.2 of the Criminal Code, with no evidence other than the defendants’ testimonies.

The principle of publicity was violated at the trial, as neither journalists (except those working for the pro-governmental press), nor the public representatives were allowed into the courtroom. This principle of publicity is stipulated in the Article 27.1 of the Azerbaijan Republic Code of Criminal Procedure, where states: .

While safeguarding state, professional, commercial, personal and family secrets in accordance with this Code, court hearings in criminal cases and on other prosecution material shall be held publicly in all courts of the Azerbaijan Republic.

The principle of publicity is also enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1), and is one of the attributes of a fair trial. The transparency of the trial is one of the essential guarantees of the justice of the process. It protects the defendants from a tacit justice that eludes the public eye, and is one of the means of preserving the credibility of the tribunal. However, the rule of publicity of the trial may also derogate from requirements intended to protect the public order and interest of the parties in order to protect their right to privacy. A court of last resort is entitled to determine, having considered all the circumstances at its disposal, whether it is appropriate to waive the rule of publicity, taking into account, as an exception, the point of view of the accused and the interests of justice. In this case, there was no ruling by the court stating that the trial should be closed. In fact, though, the trial was conducted behind closed doors.

“The public nature of judicial proceedings, as referred in the Article 6(1), protects litigants from the tacit pursuit of justice outside the control of the public; it serves as a means of ensuring confidence and trust to the courts, both superior and subordinate. By making the course of justice transparent it contributes to the achievement of the objectives set out in the Article 6 § 1, namely the fairness of the proceedings, the guarantee of which is one of the fundamental principles of any democratic society in the sense of this Convention” (judgment of the European Court of Human Rights in Pretto and Others v. Italy, 8 December 1993).

In respect to the defendants, the presumption of innocence was also violated. According to the Article 63 of the Azerbaijan Republic Constitution,

  1. A person under suspicion of crime must not be considered guilty.

III. A person accused of crime does not need to prove his/her innocence.

According to the Article 21.2 of the Criminal Procedure Code of the Azerbaijan Republic, the presumption of innocence is regulated as follows:

Even if there are reasonable suspicions as to the guilt of the person, this shall not cause the latter to be found guilty. The accused (the suspect) shall receive the benefit of any doubts which cannot be removed in the process of proving the charge in accordance with the provisions of this Code, within the appropriate legal proceedings. He shall likewise receive the benefit of any doubts which are not removed in the application of criminal law and criminal procedure legislation.

All of the defendants’ testimonies are identical, written word by word, and unsupported by any evidence. Since the verdict was baseless, there are serious doubts about the defendants’ culpabilities, which have not been interpreted in their favour.

The presumption of innocence is also embodied in the European Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 6, para. 2), the International Covenant on Civil and Political Rights (Art. 14, para. 2), and the Universal Declaration of Human Rights (Art. 11, para. 1).

It is a very important question concerning the court’s assessment of the evidence. The court must consider the evidence as a whole. In this case, the evidence was half-hearted, not irrefutable, and not supported by one another. The court issues a conviction if the totality of the evidence examined during the proceedings determines the guilt of the accused in the crime (Article 44.1 of the Azerbaijan Republic Code of Criminal Procedure).

In criminal cases, besides the assessment, there is a requirement for the adequacy of the evidence.

According to the Article 146.1 of the Azerbaijan Republic Code of Criminal Procedure,

The notion that sufficient evidence has been collected for the prosecution means that the amount of evidence on the facts to be determined is such as to allow a reliable and final conclusion to be reached on the case.

The Article 146.2 of the Azerbaijan Republic Code of Criminal Procedure states, that the sufficiency of evidence for the prosecution shall help to achieve the following:

  • the investigation and the court proceedings to be carried out purposefully;
  • the court’s perspective on the prosecution to be determined in good time;
  • a correct and well-founded decision to be taken on the prosecution.

Moreover, the court did not fulfill the obligations imposed on it by the legislation. According to the Article 3 of the Court and Judges Act of the Azerbaijan Republic, Activity of the courts of the Republic of Azerbaijan is aimed solely at the administration of justice and, in cases and order provided by legislation, at the enforcement of judicial supervision. While administering justice, courts protect rights and freedoms of person and citizen, rights and lawful interests of all enterprises, establishments and organizations irrespective of the form of property, political parties, civil associations, other legal persons, from any encroachments and law violations, fulfill other objectives provided for in Constitution of the Republic of Azerbaijan and this Act.

According to the Article 7 of the Court and Judges Act of the Azerbaijan Republic, As set down in Article 25 of the Constitution of the Republic of Azerbaijan, justice in the Republic of Azerbaijan is administered on the bases principle of equality of everyone before law and court, irrespective of race, nationality, religion, language, sex, origin, proprietary status, public rank, conscience, membership in political parties, trade unions or other civil organizations.

The Article 8 of the Court and Judges Act of the Azerbaijan Republic Justice is administered in compliance with the principle of ensuring independence of judges without any restrictions, and in a fact based, impartial, just and lawful manner.

In addition, at the time of rendering the verdict, the court did not discuss the issues in the consultative room in the specific sequence, in which it should have done so according to the Article 346 of the Azerbaijan Republic Code of Criminal Procedure. In this article noted:

346.1. The following matters relating to the results of the court’s examination of the case shall be discussed by the court (or examined by the judge) in the deliberation room:

  • whether the criminal act is proved;
  • whether it is proved that the act committed by the accused has a criminal content;
  • whether it is proved that the accused was connected with the commission of the offence;
  • whether the accused is proved guilty of committing the offence;
  • whether the act committed by the accused corresponds to the ingredients of the offence with which the accused is charged under the relevant provision of criminal law;
  • whether there are circumstances that preclude the act being an offence;
  • whether there are circumstances aggravating or mitigating the criminal responsibility of the accused;
  • whether there are grounds for exonerating the accused from criminal responsibility;
  • whether the accused should be punished for the act committed;
  • whether there are grounds for punishing the accused for reoffending;
  • which punishment to impose on the accused (including consideration of previous offences, the total number of offences, the total length of sentences, the combination of penalties, calculation of the length of sentences, an alternative penalty, reduction of sentence, the jurors’ recommendation of a lighter sentence instead of the statutory penalty provided for in respect of this offence, and the possibility of imposing a conditional sentence);
  • whether the accused should serve the sentence;
  • if the accused is sentenced to deprivation of liberty, to which penal or corrective institution he should be committed;
  • whether it is necessary to impose additional penalties on the person found guilty of the offence, and if so, which penalty;
  • whether it is possible to apply compulsory corrective training measures to an under-age accused and, if so, which measures;
  • whether it is possible to apply compulsory measures of a medical nature to the accused and, if so, which measures;
  • in whose interest and for what amount the civil claim should be secured;
  • whether the attachment of property, either for the purpose of confiscation or to pay for the damage caused by the offence, should be rescinded;
  • how to decide the matter of the material evidence;
  • whether to annul, modify or adopt a restrictive measure (and if so, which measure), including how to resolve the matter of bail;
  • whom to charge with the court expenses, and their amount;
  • when the sentence is to start;
  • whether there are grounds for giving a special decision; if so, about whom it will be given and what its content will be.

In imposing the conviction the court did not comply with the requirements of the verdict. Thus, in accordance with the Article 349.3 of the of the Azerbaijan Republic Code of Criminal Procedure, the court verdict must be lawful and well-reasoned.

According to the Article 349.4 of the of the Azerbaijan Republic Code of Criminal Procedure, 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 of the Azerbaijan Republic Code of Criminal Procedure states, in the following cases the court judgment shall be considered well-founded:

  • if the conclusions at which the court arrives are based only on the evidence
  • examined during the court’s investigation of the case;
  • if the evidence is sufficient to assess the charge;
  • if the facts established by the court are consistent with the evidence investigated.

Even though the text of the Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms does not contain an exact reference to the judicial reasoning, the right to a fair trial enshrined in the Article obliges the courts to issue a motivated judgment.

The European Court of Human Rights (ECHR), in its decision in Helle v. Finland of 19 September 1997, states: “The notion of a fair trial requires that the domestic court, which has only briefly motivated its decision, whether this is only by incorporating the reasons provided by the first-instance court or in other ways, should really consider the substantive issues that have been brought to its attention and that it should not be merely content to affirm without qualification the conclusions of the first-instance court.”. https://www.legal-tools.org/doc/d04a4d/pdf/

In formulating the courts’ duty to issue grounded judgments, the ECHR pointed out that one of the goals of a reasoned judgment is to demonstrate to the parties that their claims have been adequately examined.

In the judgment of the European Court of Human Rights (ECHR) in the case of Tatishvili vs. Russia from 9 July 2007, states: “58. The Court reiterates that, according to its established case-law, which reflects a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. A further function of a reasoned decision is to demonstrate to the parties that they have been heard. Moreover, a reasoned decision affords a party the possibility to appeal against it, as well as the possibility of having the decision reviewed by an appellate body. It is only by giving a reasoned decision that there can be public scrutiny of the administration of justice.”

In the ECHR judgment in the case of Kuznetsov and Others v. Russian Federation from 11 January 2007, it is stated that a violation of the right to a fair trial may be recognized when a national court ignores the arguments submitted by one of the parties while adopting a judicial act. In the case in question, it was disputed that the applicants’ main argument was left beyond the scope of judicial review and, therefore, was not considered on the merits. The European Court of Human Rights assessed this situation as a failure of the domestic court to justify its ruling and ensure compliance with the principles of justice and equality of the parties, which resulted in a violation of the Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Thus, in issuing a guilty verdict, the Court neglected its legal competence and responsibilities, violating in respect of the defendants the relevant norms of both substantive and procedural law, and failed to take into account the provisions of the International Law and the precedents of the European Court of Human Rights.