Baku City Surakhany District Court found Mammad Ibrahim guilty
The analysis of violation of the law Mammad Ibrahim’s judicial proceedings
Baku City Surakhany District Court
Case #01-198/2018
January 10, 2019
Judge: Jeyhun Qadimov
Accused: Mammad Ibrahim
Defenders: Nazim Musayev, Javad Javadov
Public Prosecutor: Elshan Mamedov
Mammad Ibrahim is the advisor to the chairman of the opposition party Popular Front of AR. He is known for his sharp criticism towards Azerbaijan authorities. On September 29, 2015 Mammad Ibrahim was detained on trumped up charge hooliganism.
On March 15, 2016, Baku City Narimanov District Court sentenced Mammad Ibrahim to 3 years in prison under Article 221.2.2 (Hooliganism,committed with resistance to representative of the authority, acting as on protection of a social order or stopping infringement of a social order or with resistance to other person) of the Criminal Code of Azerbaijan Republic.
During Mammad Ibrahim’s detention, his lawyer repeatedly appealed to the court on conditional discharge (early parole), but this appeal was not satisfied. While serving sentence at penal colony #16, Ibrahim started having serious problems with vision. In summer of 2018, he had operation on his eye in the medical unit by the Ministry of Justice. However, it was not possible to completely solve his problems with vision via above mentioned operation, and M. Ibrahim continues to suffer from the pain in his eyes.
On 27 September 2018, two days before the termination of his sentence and the release date, he informed his family, that there was a search in his cell, and the knife was found under his pillow. Mammad Ibrahim did not know who planted the knife under his pillow. M. Ibrahim stated that he was not privy to this, and that the knife was intentionally planted to him, so he would not be released. On the same day, the members of M. Ibrahim family and his party colleagues went to the Colony #16, where he was serving his sentence. They demanded to see Mammad Ibrahim. However, police brutally dispersed them. Then M. Ibrahim’s son Turan Ibrahim met with the chief of the colony. He assured Turan Ibrahim that on September 29, in the afternoon, his father will be at home. On September 29, 2018, Turan Ibrahim and his party colleagues went again to the colony. There they found out, that the new criminal case is opened against Mammad Ibrahim, and that he, himself, for the period of the preliminary investigation, is transferred to Baku Pretrial Detention Facility #1.
Application with the request for the arrest was submitted by the Investigator of the Investigation Department by the Ministry of Justice of Azerbaijan Republic to Baku City Yasamal District Court on the grounds of the initiation of the criminal case under Article 317-2.1. (Production, storage, concealment, transportation or usage of the prohibited items by the individuals held in the penal colonies or pretrial detention facilities) of the Criminal Code of Azerbaijan Republic.
On November 19, 2018, the trial process on new charge against Mammad Ibrahim began at Baku City Surakhany District Court.
Persons wishing to attend the trial, gathered near the court. However, security let persons in selectively. The court room could fit around 10-15 persons. And despite of empty places, only 10 persons were allowed inside the court room. There, the trial warders asked from the attendants to turn off their phones; and took them away.
The Leader of Azerbaijan Popular Front Party Ali Karimli who wished to attend the trial was not allowed twice into the courtroom. Mammad Ibrahim and his son expressed their protest against it. However, the judge responded with the phrase “So it should be”.
During preparatory meeting, the defence submitted several applications. Lawyer asked from the court, to remove M. Ibrahim from the metal cage, whereat he was placed during the court proceedings and to allow him to sit by his lawyers. The application was based on that the act in which M. Ibrahim was accused in, is not grave in nature and is not committed against personality and does not represent any public threat. Further, defence submitted to the court the request to change the preventive measure, and to dismiss the criminal case. Court did not satisfy any of submitted applications.
On December 4, 2018, four witnesses, who are the workers of the Prison #16 – Tadjaddin Mansimov, Kamil Mamedov, Mehman Ahmedov, Ramin Xalilov and Farid Jafarov were questioned. They testified that the search was conducted by the order of the Chief of the Prison #16. Mammad Ibrahim refused to ask any questions to witnesses, by highlighting that they were forced to give false testimonies, and explained that with his questions he may harm them, and cause them feeling shameful. One more witness – the worker of the facility, and three prisoners who were also witnesses did not come to the court.
On December 25, 2018, the witnesses did not come to the court hearing again. Judge stated that two of the witnesses are released, and the third one is transferred to the settlement colony (a type of establishment to serve a sentence) in Quba (region in Azerbaijan).
According to the judge, despite the fact that the court sent the notices to the witnesses to their registration addresses, it became known, that they do not live at those addresses. During the trial, defence applied to the court with the request to invite to the trial and to question the Chief of the Operation Department of the Prison #16 Emil Shihaliyev, who signed M. Ibrahim’s characterization. It is written in the characterization that Mammad Ibrahim is the аdvisor to the Chairman of Azerbaijan Popular Front Party and has “propensity for” Wahhabism. The lawyers based their application on the fact that these details are intentionally included to the characteristics, and this shows the discrimination towards M. Ibrahim. Lawyers’ application was rejected by the court.
During the trial, Mammad Ibrahimov’s lawyer also indicated that the act of which Mammad Ibrahimov is being accused of, falls under the category of intended crime, and that is why, the motive of its perpetration should be provided in the indictment. However, nothing about it is mentioned in the indictment.
On January 8, 2019, one of the three witnesses Mirza Iskenderov was questioned. After signing search protocol, this witness M.Iskenderov was transferred to the settlement colony. At the trial, he stated that the only thing that he saw, was the moment when the knife was taken out from the pillow. He does not know who put this knife there, and if M. Ibrahim has used it earlier. Mammad Ibrahim did not ask questions to M. Iskenderov. He based his refusal to that this questioning may cause harm to Iskenderov and he might be returned to the prison again.
After M. Iskenderov was questioned, the judge read out the evidences of the case (witnesses’ testimonies, the results of examinations and etc.), then he announced about the end of the judicial investigation. After the judge, Public Prosecutor took the floor. He supported the accusation, and asked from the court to find Mammad Ibrahim guilty in committing of the presented crime and to sentence him to 6 months and 2 days in prison. Legal process ended, and the defence speech and the last statement of the accuse was postponed to January 10, 2019.
On January 10, 2019, the trial began with the lawyer’s Nazim Musayev’s speech, who in details described all inconsistencies in the criminal case, the absence of the motive of the crime,
indicating that the knife does not belong to Mammad Ibrahim. The lawyer also stated about the absence of internal investigation to find who could’ve brought the knife to the closed facility and planted it under M. Ibrahimov’s pillow. He asked from the court to pass verdict of not guilty, and to pass the ruling towards the officials who are participating in the falsification of the criminal case.
Lawyer Javad Javadov supported his colleague’s speech, and also added that M. Ibrahimov was subjected to discrimination due to his political persuasion, his arrest and charges against him are connected to his political activity. Lawyer also asked from the court to pass verdict of not guilty, and to pass the ruling towards the officials who are participating in the falsification of the criminal case.
At the end, the last statement of the accuse was heard. M. Ibrahim said: “We are in the place, where the words are not necessary. If you want to punish me, do it with dignity. I am not speaking about you (does not mean a judge), I am speaking about the one who gave the order. I want to tell few words about the characterization. Yes, I am the аdvisor to the Chairman of Azerbaijan Popular Front Party, and that is why I am arrested. Everything that happened to me is political order. The officials testified against me.
I can say many things about their job, but then they will be fired. They are not guilty in anything. They were ordered. My arrest is connected to my political activity, I was organizer of many protest actions, I was actively and openly criticizing authority. In my characterization, it is written that I practice Salafizm (Wahhabism). I am Sunni and I do namaz as Sunni. They don’t even know what Salafizm is.
When I was doing namaz, the Chief of Department Kamil muellim called me in and asked: “Does the prison governor knows about this?” I said yes. I wonder, why when we are doing namaz as Sunni, we are being accused in Wahhabism, and when we are doing namaz as Shia, we are being called spies of Iran? So how should we do namaz? Authorities are building mosques, but we cannot do namaz. Prosecutor said that I was respected in the prison. But, if I was really respected, why the knife was planted to me? I am not feeling hurt by the people, they were forced to do this.
The heroism should not be expected from everyone. Not everyone is capable for it, and this is normal. To tell the truth is the crime. And this is our crime. I know wherefrom the order is coming. But I do not know, what will happened after 6 months. The culprit of all is the current regime. I am innocent, and in your heart, you know this.”
After defendant’s last statement, the judge left to the retiring room, and 10 minutes after, he came back to announce the verdict. He had already pre-typed verdict in his hands, which he read out. On January 10, 2019 Baku City Surakhany District Court found Mammad Ibrahim guilty in presented crime and sentenced him to 5 months and 22 days in prison.
Commentary by an expert -lawyer:
The court decision is unlawful and groundless. Let’s view some requests (applications), which were submitted to the court by the defence. The request on removing defendant from the metal cage and seating him by his lawyers was not satisfied by the court. Keeping defendant in the cage, violates the presumption of innocence. Besides, the crime that M. Ibrahim is accused of does not represent any public threat, and the sanction (punishment) to this crime provided by Article, is from 2 to 6 months. In 2014, the reforms were made to judicial system. One of the introductions was the replacement of the metal cages to the glass boxes, in the courtrooms. However, despite of the fact that 4 years passed, some courts still have cages.
Placing the defendant in the cage violates Article 3 (no one shall be subjected to torture or to inhuman or degrading treatment or punishment) of European Convention for the Protection of Human Rights and Fundamental Freedoms. Besides Article 3, in this case, Article 6 (2) (right to presumption of innocence) of European Convention is violated. There is Article 21 in the Code of Criminal Procedure of the AR, which also secures the right of the defendant to presumption of innocence. It is indicated in Article 21 item 3 of the Code of Criminal Procedure of the AR “The accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defence of the suspect or the accused.” Placing someone in the cage unambiguously indicates that the defendant is guilty.
In this case, none of the evidences presented by the prosecution were irrefutable. It is enough just to look at the conclusion of the examination. In the conclusion of the examination, it is indicated that M. Ibrahimov’s fingerprints were not found on the knife (which was found under his pillow). This means that M. Ibrahim has nothing to do with the knife. As for the witnesses testimonies, it is important to indicate here, that all the witnesses testified that they only saw the moment when the knife was taken out from Ibrahimov’s pillow. None of the witnesses ascertained the fact that the knife belongs to M. Ibrahimov.
As for lawyers’ request to change the preventive measure, the court did not have any legal grounds to keep the arrest as a preventive measure in power. It was not indicated why alternative preventive measures, not related to the arrest – were not applied, and if there was a need to preserve the preventive measure in form of arrest.
One of the principles of the justice is the principle of the legality, provided by the Article 10 of the Code of Criminal Procedure of the AR . According to Article 10.1:“Courts and participants in criminal proceedings shall conform to the Constitution of the Azerbaijan Republic, this Code, other laws of the Azerbaijan Republic as well as provisions of the international agreements to which Azerbaijan is a signatory.”
Equality of each before the law and the court is also the fundamental principle of the legal system. The right to prohibit discrimination is provided by the Article 14 of European Convention for the Protection of Human Rights and Fundamental Freedoms. However, given right and the principle of equality were also violated towards Mammad Ibrahim. In order to understand this, it is enough to pay attention at the characterization, which was issued by Prison #16. It solely stresses on the matter of his belonging to political party and to his religious views, which are in fact, not prohibited by law.
According to Article 121.2 of the Code of Criminal Procedure of the AR the obligation to consider applications and requests are regulated in such way: “Reasons shall be given for the decision taken on an application or request, together with an assessment of the applicant’s arguments. Applications and requests for any matters connected with the prosecution to be examined thoroughly, fully and objectively under the required legal procedure, and for the violated rights and legal interests of the parties to the criminal proceedings and of other participants in the proceedings to be restored, may not be rejected. “
According to Article 323.5 of the Code of Criminal Procedure of the AR, “the court shall allow applications submitted under Article 323.1 of this Code in the following circumstances:
323.5.1. if the purpose of the application is the examination of all circumstances that may be of significance for a thorough, full and objective investigation of all matters connected with the criminal prosecution;
323.5.2. if information and documents whose evidential value is in dispute were obtained by significantly violating requirements of this Code and other laws of the Azerbaijan Republic.”
All the applications which were submitted to the court by Mammad Ibrahim’s lawyers, were directly related to the case and should’ve been satisfied. However, court dismissed all of them.
As indicated above, the trial was held in half-closed regime; while the courtroom could fit from 10 to 15 persons, no more than 10 persons were allowed to enter. They were selectively chosen for entering, and that was violating the principle of openness and transparency. Article 127 (V) of the Constitution of the AR provides for the principle of openness and transparency: “In all law courts hearing of legal cases shall be open. It is allowed to have closed hearing of legal cases only if the law court decides that open hearings may result in disclosure of state, professional or commercial secrets, or that it is necessary to keep confidentiality with respect to personal or family life. “ Mammad Ibrahim’s case does not fall under indicated criteria.
During Mammad Ibrahim’s trial proceeding, the verdict of “not guilty” should’ve been passed.
The Article 42.1 of the Code of Criminal Procedure of the AR indicates that: ”An accused person may be declare innocent of the offence and acquitted by the court in the following circumstances:
42.1.3. if there is no link with the offence committed;
42.1.4. if guilt is not proven”
The analysis of the case concludes that during the trial proceeding, Mammad Ibrahim’s involvement in the crime and his guilt were not proven; both the norms of national and international law towards him were violated