There is no fair trial even for the state officials in Azerbaijan

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THERE IS NO FAIR TRIAL EVEN FOR THE STATE OFFICIALS IN AZERBAIJAN

Eldar Hasanov 

Analysis of violation of law during Eldar Hasanov’s judicial proceedings

Baku Grave Crimes Court

Case №1(101)-178/2022

January 21, 2022 

Presiding judge: Afgan Hajiyev

Judges: Ahmad Quliyev, Zeynal Agayev

Defendant: Eldar Hasanov

Defenders: Javad Javadov, Adam Mammadov, Jalil Mirzoyev, Valeh Mehraliyev

State prosecutors: Anar Yusifov, the Deputy Head of the Department of Public Prosecutions at the Prosecutor General’s Office of the Azerbaijan Republic, and Zafar Ramazanov, the Department Prosecutor

 

Victim and civil plaintiff: Rashad Abdullayev, representative of the Ministry of Foreign Affairs of the Azerbaijan Republic

Representatives of the accused, a representative of the Ministry of Finance of the Azerbaijan Republic: Rovshan Yusifov, Malik Balakishiyev

Eldar Hasanov was born in 1955 in Lachin village of Kelbadjar district of the Azerbaijan Republic. In 1983, he graduated from the Faculty of Law of the Academy of the Ministry of Internal Affairs. He has been working in law enforcement bodies of Azerbaijan for many years. From 1995 to 2000, he served as the Prosecutor General of the Azerbaijan Republic, from 2001 to 2013, he was the Envoy Extraordinary and Plenipotentiary to Romania, and from 2013 to 2020, to the Republic of Serbia, Montenegro, and Bosnia and Herzegovina. He is married, has three children, and he is a Phd in Law.

On August 13, 2020, Eldar Hasanov was arrested on charges of committing offences under the Articles: 

  • 179.3.2 Assignment or waste, that is plunder of property entrusted to guilty by another person, committed in large scale;
  • 193-1.3.2 Legalization of money or other property obtained by crime, committed in large scale;
  • 308.2 Abusing official powers, entailed heavy consequences;
  • 308-1.1. Failure to use the state budget funds, target budget funds and extra-budgetary state funds for its intended purpose if this offense is committed in significant amount;
  • 313 Official forgery of the Criminal Code of the Azerbaijan Republic.

Following his arrest on August 17, 2020, Eldar Hasanov was withdrawn and dismissed from his post as ambassador.

 

Investigation

According to the investigation, Eldar Hasanov, as part of a criminal group, used his official position to cause damage to the property entrusted to him, embezzled and squandered it in a large scale. Along with a group of individuals, by prior conspiracy, he used his official status to receipt money, being aware that it had been obtained by criminal activity. Then E. Hasanov together with other entities used this money to conceal its true source, as well as legalized it through conversion, transfers and other financial transactions. The funds allocated from the budget were being spent for other purposes than intended. According to the prosecution, E. Hasanov applied to the Ministry of Foreign Affairs and the Ministry of Finance of Azerbaijan in order to misappropriate and embezzle funds from the state budget. Thus, while serving as Ambassador Extraordinary and Plenipotentiary in Romania, Republic of Serbia, Montenegro, Bosnia and Herzegovina, from 2010 to 2020, E.Hasanov misappropriated and embezzled funds in total amount of 16.893.868,89 EUR, reappropriated and embezzled 17.931.316,09 AZN (11.156.716,69 EUR) at the then exchange rate, repeatedly committed official forgery by entering deliberately false data in the official documents.

The defendant’s testimony

The defendant, Eldar Hasanov, interrogated in the course of the trial, pleaded not guilty to the charges and testified that he had been charged with 15 episodes, three of which related to the purchase of administrative buildings for the Embassy, while the remaining episodes had been related to carrying out construction and renovation work in connection with various humanitarian projects, new construction of the Embassy fence, upgrading the surveillance cameras, as well as providing assistance.

Between 2009 and 2014, Azerbaijan bought buildings to be used as Azerbaijani embassies in 28 countries. E. Hasanov revealed that if you compared the table of prices for purchasing buildings in different countries, the embassy building he had worked in was by far the cheapest. For this purpose the government had drawn up relevant regulations and a commission was set up. In order to collect the necessary information, this commission visited the sites, checked the data, compiled acts which were submitted to the Ministry of Foreign Affairs (hereinafter referred to as MFA), and the latter, in its turn, submitted it to the Cabinet of Ministers. However, the Embassy was responsible for the accommodation, leisure, meetings and the provision of transport for the visiting commission.

Eldar Hasanov also said that in order to buy or rent a property for the embassy, it was necessary beforehand to apply to the Ministry of Foreign Affairs, issuing a relevant permit to do so. Afterwards, a pertinent agreement is signed and then Azerbaijan decides whether to purchase this or that property, in particular a building, for the embassy’s operations. He also added that there were testimonies of the property owner, with whom several people had met, including a lawyer, the Embassy officials, as well as a large delegation from Baku. There is no information in any of the testimonies that discussions about the purchase of the property were held together with the Ambassador.

In 2004, the Embassy team, under the leadership of E. Hasanov, began work on establishing a monument to the former president of Azerbaijan, Heydar Aliyev, in Bucharest. Only 9 months later they managed to get approval to do it. Another year and a half they dedicated to the project of the monument, in which E.Hasanov was helped by his son, Anar Hasanov, and his daughter, Sabina Huseynova, as well as his two brothers, Shahin Hasanov and Alaskar Hasanov. In connection with the monument installation the relevant documents were signed, the permission of the Ministry of Foreign Affairs was given, which approved two designs and appointed Natiq Aliyev as the sculptor. In its turn, the Ministry of Foreign Affairs applied to the Cabinet of Ministers of the Azerbaijan Republic to obtain the final authorization. The Azerbaijani side sent their employee Eldar Huseynov, who dealt with tenders. All contracts were submitted indeed to E. Huseynov. The Embassy did not take any official measures in relation to this project, it only acted as an implementer and carried out the work efficiently and on time.

Regarding the accusation of embezzlement of the state funds, Hasanov revealed that the budget of the Embassy is sent to the Ministry of Foreign Affairs, which considers it for 3-6 months, then the budget is submitted to the Cabinet of Ministers for approval. E.Hasanov indicated that the money which was not allocated by the Embassy, has been returned back. It is confirmed with the materials of the criminal case. Thus, in 2015, 40.710 EUR were returned, in 2016 – 12.145 EUR, in 2017. – 32.944 EUR, in 2018 – 13.340 EUR, and in 2019 4.957 EUR.

Eldar Hasanov said his actions were unjustifiably regarded as abusing his duties and embezzlement of funds out of the state budget for purposes other than those for which they were intended.

He also added that the charges of official forgery and public funds embezzlement were not covered in the criminal case file. The charges against him were brought with serious violations of the law on the basis of inaccurate and disputed evidence, information and assumptions. E.Hasanov pointed out that the criminal law provisions had been implemented inappropriately. And the charges against him were not based on specific evidence but rather on the investigator’s subjective assumptions.

 

The testimonies of the victim’s and civil plaintiff’s representatives

Rovshan Yusifov, the representative of the victim of the Ministry of Finance of Azerbaijan, who was questioned in the court, testified that, in accordance with the directive of the Azerbaijani State Security Service Main Department, the Ministry of Finance started an inspection of the business activities of the Ministry of Foreign Affairs. The inspection covered the period from January 2015 to July 3, 2020. Based on the results of the inspection, an act was drawn up and submitted to the investigative body. According to the ruling of the investigative body, an audit of the economic activities of the Azerbaijani embassy in Serbia has also been carried out. Rovshan Yusifov testified that he had been familiar with the inspection report and confirmed it. He said that the person responsible for handling the spending of the funds was the Ambassador. The remaining money had to be returned to the State Treasury and the transfer of this amount to any other account had been prohibited. R.Yusifov also explained that the law stipulates that in case of a shortage of money destined to pay a freelancer’s salary, the employment contract with this person must be either terminated or the salary must be reduced.

Rashad Abdullayev, a representative of the victim and the civil plaintiff of the Foreign Ministry, testified that the Ministry had sustained significant damage, the amount of which was specified in the indictment. The damage caused by the accused is proved by the criminal case records. He also testified that the Ministry had filed a civil suit and requested to fulfil the claim.

The witnesses’ testimonies

As part of the investigation and trial, 51 witnesses were interrogated, 17 of whom were foreign citizens.

Gabil Kocharli, interrogated as a witness at the trial, testified that he had held the position of Advisor at the Azerbaijani Embassy in Serbia. He had been working in a rented building for several months, and then he had been informed that Azerbaijan wanted to purchase that building. On that occasion, a commission arrived from Azerbaijan. The commission got acquainted with the building and informed the Azerbaijani government regarding the acquaintance and the choice of the building. A few months later, they were informed that Azerbaijan had chosen one of the buildings. G.Kocharli testified that he had participated as a financial representative and a superintendent at the time of the buy-sale transaction. Upon completion, an act was drawn up and sent to the Ministry of Foreign Affairs. It was signed by the embassy staff. He had no authority to suggest the price of the building. The commission dealt with the issues of selection. The witness testified that he had not participated in the funds transfer, he had just signed the documents delivered to him by the accountant. G.Kocharli also confirmed the testimony he had given in the course of the investigation.

 Azer Shamilzade, interrogated as a witness at the trial, testified that from 2010 to 2013 and then from August 2020 he held the position of Attaché at the Embassy of Azerbaijan in the Republic of Serbia. He prepared and signed the payment authorisation on behalf of Eldar Hasanov. Araz Agalarov performed these duties while he was on holiday. His main duty as an accountant was to draw up statements. Nobody, including Eldar Hasanov, had interfered in his activities while he was working at the Embassy. The witness testified that a commission headed by the Deputy Minister of Foreign Affairs, Vagif Sadigov, had arrived from Baku with regard to the purchase of the building for the Embassy and had drawn up the relevant act. Then, the funds in the amount of 3.205.800 EUR were allocated for that purpose. However, he does not know how much the building really cost.

Vagif Sadigov, a witness, testified that he had served as the Deputy Minister of Foreign Affairs from 2004 to 2010. He confirmed his testimony that he had visited Serbia as part of the commission. Out of 6 buildings, the commission selected 3. An act was drawn up in this regard and all the commission members signed it. Eldar Hasanov was acquainted with the act. The cost of the building was approximately 3 million euro. Sadygov clarified that Eldar Hasanov had not come to Serbia in connection with the Embassy’s activities, but rather with the installation of a monument to Heydar Aliyev.

Araz Agalarov witnessed at the trial and testified that his father Alovsat Agalarov used to be a friend of Eldar Hasanov. In 2010, he applied to the Ministry of Foreign Affairs under the instruction of E.Hasanov, applying for the post of Head of Housekeeping at the Azerbaijani Embassy in Serbia. Araz Agalarov remained in that position until 2013. He testified that a new building had been bought for the Embassy and they had moved there. He withdrew 270.000 EUR transferred into his name for the renovation of the Embassy building, and handed that amount to the building owner and got a receipt confirming the payment.

The witness, Farkhad Mollazade, interrogated at the trial, testified that he had served as the Head Office of the Ministry of Foreign Affairs. He confirmed the witnesses’ previous testimonies concerning the arrival of the commission, selection of the building, drawing up a report, and addressing to the Cabinet of Ministers in that regard. At the time when Eldar Hasanov was Ambassador, F. Mollazade was involved as the Chairman of the commission buying buildings for the Embassies in Serbia and Montenegro, as well as Bosnia and Herzegovina. The money was transferred to the Embassy’s account in order to purchase the buildings. The amount stated in the deed was the price quoted by the firm. They were told the price of the buildings two months in advance. The amount quoted by Eldar Hasanov and the amount in the deed/act matched each other.

The witness, Aghasalim Azizov, who was interrogated at the trial, testified that he had worked for the State Construction and Architecture Committee, he had also been a member of the commission, and inspected the building as an architect. It was shown to him by the Embassy staff, and whether Eldar Hasanov had been involved, he could not remember.

Ismayil Hasanly, who held the post of the Head of the Real Estate Registry section of the Property Committee, was interrogated at the trial. He was also a member of the commission. His duty was to provide an expertise on the property inspection. Out of three possible options one had been chosen. An act was drawn upon the result. Although the price was mentioned in the act, I. Hasanly did not negotiate about it.

Rufat Agazade, a witness, testified at the trial that he had been a commission member on behalf of the Ministry of Emergency Situations. He had been unaware of the building price. Eldar Hasanov had been involved in the building inspection in Serbia and Montenegro, but he had not been in Bosnia.

In the course of the trial, the following witnesses were also interrogated: Gayum Farzullayev, Vakil Islamov, Fuad Azizov, Seyran Mirzazade, Ashraf Guliyev, Anar Dunyamalyev, Ashur Ibadov, Yusif Vezirov, Farid Aydinbekov, Rabil Huseynov, Haji Hajibeyli, Araz Aliyev (this witness testified that he personally handed Eldar Hasanov 298. 000 euro), Javanshir Madjidov, Shahin Hajiyev, Shamil Hajibeyli, and others. Besides the Azerbaijani citizens, there were also the foreign citizens as witnesses, whose testimonies had been given at the investigation and confirmed at the trial. They did not attend the trial.

Thus, one of the witnesses, Jasmina Radžić, testified that two Serbian citizens approached her with a request to help them sell their property, while at the same time the Embassy of the Azerbaijan Republic approached her with a request to purchase the property. In this connection, she met with Eldar Hasanov on several occasions. Two interpreters also attended the meetings. Eldar Hasanov said that he would like to buy the property after paying 1.350.000 EUR. Then, the Azerbaijani delegation arrived and, following approval of the property, the owners agreed to sell it for 1.350.000 EUR. Due to the fact that the building was subject to a mortgage, the purchase and sale contract was concluded in the Belgrade City Court. The contract was drafted in two languages, printed on letterhead with the organization’s logo, and an electronic version was sent to the lawyers of both parties.

The witness testified that she had no idea why the amount of 3.020.000 EUR had been indicated in the agreement submitted to her. She believes that this amount, mentioned in the agreement, is not correct, the property in the area in question is not worth that much, the amount of 1.350.000 EUR was indicated in the agreements sent to the parties by e-mail. The witness also believes that it is possible that the agreement may have been subsequently modified by someone.

 

Other evidences

According to the official documents requested from the Azerbaijani Foreign Ministry and the Azerbaijani Embassy in Serbia, the Ambassador to the Republic of Serbia, Eldar Hasanov, applied to the Cabinet of Ministers and the Foreign Ministry (both letters dated July 22, 2010) to allocate money for the purchase of the Embassy building.

A letter from the MFA to the Deputy Prime Minister of Azerbaijan, dated August 20, 2010, reveals that a commission has been set up to carry out the decision of the Cabinet of Ministers.

According to the commission’s act from August 18, 2010, they were shown three buildings. One of them was selected for the Embassy and the price of the building was 3.020.000 EUR (plus taxes, translation and legal services, the total of 3.205.800 EUR).

The case file contains a contract dated September 22, 2010, obtained from the Belgrade City Court, in paragraph 2.1 – the value of the property is not 3.020.000 EUR but 1.350.000 EUR, whereas 675.000 EUR were transferred to the accounts of the two owners.

The Embassy’s account statement from the bank in Serbia indicates that 675.000 EUR were transferred on September 22, 2010, and another 675,000 EUR, a total of 1.470.000 EUR, while 270.000 EUR were cashed by the Head of the Business Department, Araz Agalarov, of the Embassy. On September 23, 2010, 70.000 EUR were cashed, then 20.000 EUR, and 9.750 EUR were transferred, and 270.000 EUR were paid for the banking services.

Eldar Hasanov’s letters to former Deputy Prime Minister of Azerbaijan, Abid Sharifov, dated from October 5, 2010, and November 2, 2010, it can be seen that 3.203.531,91 EUR designated for the building purchase 2.268.09 EUR of that amount were returned to the State Budget.

Although, 2.268.09 EUR was refunded to the State budget on November 2, 2010, but the very same amount was again transferred to the Embassy’s bank account on November 22, 2010. All this have been stated in the case file. as well.

The case file contains an expertise report, dated May 16, 2021, on the authenticity of the signatures of two Serbian citizens who signed the agreement of September 22, 2010. The expertise determined that the signatures of those individuals were falsified.

Based on the letter dated September 28, 2012, of the Azerbaijan Republic Ministry of Foreign Affairs, it has been transferred 4.227.920 EUR to the account of the Embassy in Serbia, 4.227.900 EUR to the account of the Embassy in Romania, and 4.219.287,20 EUR to the account of the Embassy in Montenegro.The case file reveals that the building for the Embassy in Montenegro was purchased for 1.400.000 EUR. A bank statement in Montenegro indicates that Seyran Mirzazade, an Embassy Advisor, cashed out 250.000 EUR on October 10, 2012, and 2.250.000 EUR on October 12, 2012. Then, 1.400.000 EUR were transferred to the accounts of three different banks, 150.000 EUR were cashed on October 17, 2012, and 90.000 EUR were cashed on October 22, 2012, as well on October 26, 2012 – 90.000 EUR, on October 26, 2012 – 2.699.31 EUR. All documents were signed by Seyran Mirzazade.

Based on the payment records, 1.339.060 EUR were transferred to the Embassy’s account between September 3, 2010, and July 5, 2011, and on June 30, 2011, the amount of 175.681.44 EUR were returned to the account of the Ministry of Foreign Affairs of the Azerbaijan Republic.

There is a document dated September 22, 2011, indicating that 450.000 EUR were allocated for the reconstruction of the Tashmaidan Park, where a monument to the former President of Azerbaijan, Heydar Aliyev, was placed.

Besides these documents, a number of financial statements and bank documents for various sums, as well as forensic reports, are attached to the criminal case.

 

Judicial review 

The Court assessed Eldar Hasanov’s testimony regarding the fact that the late Eldar Huseynov had been responsible for all proceedings, as well as for the expenditure of financial resources, as groundless. The Court pointed out that if Eldar Huseynov had been a responsible figure, the funds would have been transferred to his bank account and he would have been responsible for all financial issues as well. However, according to the case file, it was the Embassy’s responsibility. In this regard, the Court refers to the testimony of Elvin Alizadeh, a witness, who said that Eldar Huseynov had been a very poor man, his situation had particularly worsened since he had quite his post and he lived in a poor area of Serbia where he died as a result of a heart attack. The Court also points out that the responsibility for all of Eldar Hasanov’s activities has been confirmed by the witnesses’ testimonies.

Further, the Court also referred to Eldar Hasanov’s testimony with regard to the fact that the reason for the underpricing indicated in the contracts and payment documents was the avoidance of taxes by the sellers or firms. The Court indicates that the property owners testified in this regard that they had just indicated the real amounts in the contracts, and that they had been unaware of the other amounts. Moreover, there is no a single document in the case file to prove the matter.

Further, it was criticized the testimony of Eldar Hasanov concerning the lack of his signature on the documents, while on the other hand he testified that due to the large volume of work he had not had time to sign all the documents and therefore entrusted it to his councillors. The counsellors interrogated at the trial said that they had signed the documents on Eldar Hasanov’s instructions and with his consent.

In the verdict, the Court stressed that although Eldar Hasanov had not pleaded guilty to the charges, there were numerous documents, forensic reports, and the witnesses’ testimonies proving his guilt, whereas the Court could not accept his own testimony as the evidence.

The Court also considered that Eldar Hasanov’s crimes had been correctly qualified by the investigating authority. In addition, the Court specified that in view of the fact that the charges under the Article 313 of the Azerbaijan Republic Criminal Code did not constitute a great public danger, and two years had passed since the commission of this crime (the statute of limitations for the crime), and also the failure of E.Hasanov to plead guilty under this Article, excludes criminal prosecution under the Article 313 of the Azerbaijan Republic Criminal Code. Therefore, the Court does not impose a sentence under this Article.

The Court did not find any circumstances precluding the commission of the offences or the exemption from criminal liability.

The fact that Eldar Hasanov had no previous criminal record and had been awarded the Order of the “Flag of Azerbaijan” by the President of Azerbaijan on December 24, 1998, were mitigating circumstances.

The fact that E. Hasanov had repeatedly committed the crime, and had also committed it as part of a criminal group, was an aggravating circumstance.

The Azerbaijani Ministry of Foreign Affairs brought a civil claim for damages caused by Mr. Hasanov, in the amount of 18.258.689,92 AZN. The Court considers that the claim of the Ministry of Foreign Affairs is legitimate and must be upheld in full.

Moreover, Eldar Hasanov has a deposit in the amount of 50.217,16 AZN, as well as a dacha in Nardaran village, an apartment in the Baku Nasimi district, non-residential premises and two shops in the Baku Narimanov district, a land plot in Nardaran village, a flat in the Baku Yasamal district, a land plot in Absheron district, a cottage in the Baku Khatai district, and a flat in Montenegro that were to be seized, confiscated and used to ensure a civil claim.

The costs of the expertise in the amount of 723,04 AZN have also been imposed on Eldar Hasanov.

 

The Court verdict

The Court, having heard the criminal case as an open-label trial, issued its verdict:

  • To find Eldar Hasanov guilty of committing offences under the above Articles and to sentence him to 10 years imprisonment in a general regime penal colony. The Court also imposed an additional sentencing under all the articles, namely a ban on holding senior and responsible positions within the state and self-governing bodies for a period of 2 to 4 years (depending on the article).

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. It is well known that the basic principles of criminal proceedings are to define the regulations that form the basis of criminal prosecutions, ensuring the protection of the individual and citizen against unlawful restrictions to his rights and freedoms, and establishing the legality and validity of each criminal procedure. All these principles are mandatory in administering fair justice.

Furthermore, it is incumbent on the Courts and other participants in proceedings to strictly comply with the provisions of the Constitution of the Azerbaijan Republic, the Criminal Code, and other laws of the Azerbaijan Republic, as well as the International Treaties to which the Azerbaijan Republic is a party.

The charges brought against Eldar Hasanov consist of 15 episodes, which involve a substantial sum of money.

It should be recalled that upon the accusations against 67-year-old Eldar Hasanov, a preventive measure in the form of detention has been selected, but it was subsequently extended a number of times. Once the preliminary investigation was completed, the case was transferred to the Baku Court of Serious Crimes.

A preparatory hearing is held when the case is brought before the Court. In each case at the preparatory hearing with the parties the following are among the matters to be considered:

  • whether the requirements of the Criminal Code were violated in the course of the pre-trial investigation;
  • whether there are grounds for suspending or terminating criminal proceedings;
  • whether there are grounds for imposing, modifying or revoking a preventive measure in a criminal case.

This means that the Court considering the case also examines the grounds on which the precautionary measure was imposed. In this case, the arrest was not only imposed as a preventive measure for a certain period of time (before the hearing the case by the court), but was also extended several times by the court order. When choosing a preventive measure, the court, in addition to other circumstances, must take into account the state of health, the personality of the accused, etc. The 67-year-old accused, Eldar Hasanov, has serious health problems and his medical condition has drastically deteriorated since his arrest. Also, he is quite a well-known personality in Azerbaijan, and for many years had held leading positions in the law enforcement system of the country, as well as being a Professor and Doctor of Laws. However, in this case the Court did not explore an alternative measure of restraint other than arrest. There were always problems with restraint orders in the Azerbaijani judicial system. The arrest orders appealed to the Courts of Appeal are not upheld in 90% of cases.

Right to liberty and security

Right to a fair trial

On November 3, 2009, the Courts have been advised to strictly comply with the Article 28 (Right for freedom) of the Constitution of Azerbaijan, Articles 5 (Right to liberty and security) and 6 (Right to a fair trial) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the decisions of the European Court of Human Rights (ECHR)in accordance with a decision of the Plenum of the Supreme Court on the practice of the courts in considering applications related to the imposition of preventive measures in the form of arrest on accused persons. The Plenum of the Supreme Court of Azerbaijan recalled that when imposing a preventive measure in the form of arrest the Courts should not limit themselves to a formal listing of the procedural grounds set out in the Article 155 of the Code of Criminal Procedure (CPC). They should verify whether each ground is relevant to a particular defendant and whether it is supported by the evidence in the criminal case file. In this case, the nature and degree of public danger of the act committed by the accused, information characterizing his/her personality, including age, marital status, occupation, health and other circumstances should be taken into account.

The Article 320 of the Code of Criminal Procedure of the Azerbaijan Republic states:

 

During its examination of a case, the court may alter or annul any restrictive measure applied to the accused after hearing the submissions of the accused and his representative and the opinions of the public prosecutor and the victim (or victim bringing a private prosecution).

Thirteen years have passed since the above-mentioned resolution of the Supreme Court Plenum was adopted, but it remains only on paper. The rulings on arrest, generally contain standard formulations, are formal in nature. The Courts do not adopt an individual approach in each particular case.

In this criminal case neither the court considering the legality of the preventive measure, nor the court examining the merits of the criminal case demonstrated an individual approach, grossly violated the constitutional provisions, criminal procedural law, International Treaties and decisions of the European Court on Human Rights.

The detention of the 67-year-old defendant, who has a number of medical conditions, inflicts additional physical and mental suffering on him. Such a treatment indicates a bias against the accused.

The defendant’s testimony, which the court regarded as of a defensive nature, is particularly important. E.Hasanov and his lawyer have logical questions to which the investigation did not provide any answers. Thus, on one of the 15 incidents, the lawyer asks, “Did Eldar Hasanov sign the contract for the Embassy property purchase? Was Eldar Hasanov in a particular city when the contract was being signed? Is there any evidence that he received at least one cent from the funds acquired from the property, is there anyone’s testimony, a bank receipt? Is there any evidence of criminal conspiracy? E. Hasanov testified that the firm, for example, takes 10 manats for the case, and for 8 manats, it rents out, 2 manats remains as a profit. They pay taxes based on these 2 manats. The investigation considered this difference as a damage.”

As can be seen, the investigation did not respond to these and other questions, thereby leaving gaps in the criminal case.

The court verdict is more similar to an indictment than a conviction. It does not reflect the defence position, it does not mention any evidence or circumstance in favour of the defendant. The verdict does not contain the defence’s objections to the prosecution’s charges. It starts with accusations and ends with severe sentencing.

The Court did not adequately examine the evidence in defence of the defendant, and all doubts that the Court failed to resolve during the trial were not interpreted in favour of the defendant.

The Law of Criminal Procedure sets out a number of requirements for a court verdict. According to the Article 349.3 of the Code of Criminal Procedure of the Azerbaijan Republic, the court judgment shall be lawful and well-founded.

According to the Article 349.4 of the Code of Criminal Procedure 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.

 

According to the Article 349.5 of the Code of Criminal Procedure of the Azerbaijan Republic, 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.

As we noted above, the court verdict appeared to be more like an indictment than a judicial verdict. The provisions of the Articles 349.4 and 349.5 of the Azerbaijan Republic Code of Criminal Procedure were grossly violated by the Court. There was no reasoning, no defence argument, no assessment or verification of the defendant’s testimony, no elimination of doubts that should be interpreted in the defendant’s favour.

According to the Article 351.2 of the Code of Criminal Procedure of the Azerbaijan Republic, a conviction by the court may not be based on assumptions and shall be handed

down only where guilt of the accused is proved during the court’s examination of the

case.

According to the Article 351.3 of the Code of Criminal Procedure of the Azerbaijan Republic, the guilt of the accused may be regarded as proven, as follows:

  • bearing in mind the presumption of innocence;
  • on the basis of the results of the court’s examination of the charge in accordance with the rules set out in this Code;
  • on the basis of the reliable and admissible evidence examined during the court’s investigation of the case;
  • interpreting in his favour any doubts as to the guilt of the accused which cannot be removed.

Also, the Article 353.2.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that the evidence on the basis of which the court came to its conclusions, and its reasons for not accepting other evidence.

The commented judgment contains no grounds upon which the court disproved the other evidence or the evidence of the defence.

The defendant was deprived of the right to a fair trial as set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1). According to that provision, everyone is entitled, if his civil rights and obligations are in dispute, or if any criminal charge is brought against him, to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by the Law.

In the judgment of the European Court of Human Rights (ECHR) in the case of Edwards v. United Kingdom of December, 16, 1992 it is stated,

Among the indispensable requirements of fairness required by the Article 6 paragraph 1 (…) is the obligation of the prosecuting authorities to communicate to the defence all relevant evidence, whether accusatory or exculpatory. –  https://hudoc.echr.coe.int/eng#{“fulltext”:[“edwards%20v.united%20kingdom”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57775”]}

As it follows from the judgment, the litigants (prosecution and defence) were not on an equal footing because, as discussed above, the judgment did not include the defence’s reasoning, arguments, and evidence. Thus, the Court only assessed the Prosecution’s evidence. On this point we refer again to the case law of the ECHR.

Thus, the ECHR judgment in the case of Dombo Beheer v. the Netherlands of October 27, 1993, states:

In litigation where there are competing private interests, this ‘equality of arms’ implies that each party must have a reasonable opportunity to present its case, including evidences, in circumstances where neither party has a clear advantage. – https://hudoc.echr.coe.int/eng#{“fulltext”:[“dombo%20beheer%20v.netherlands”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57850”]}

In the judgment of the ECHR in the case of Vidal v. Belgium of April 22, 1992 it is stated,

As a basic rule, the National Courts must assess the evidence brought before that court and the relevance of the evidence provided by the defendants. – https://hudoc.echr.coe.int/eng#{“fulltext”:[“vidal%20v.belgium”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57799”]}

Although it is not explicitly stated within the text of the Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the practice of the ECHR suggests that one element of the right to a fair trial is the reasoning behind decisions. Thus, in the ECHR judgment of January 12, 1999, in the case of Garcia Ruiz v. Spain, the Court stated “The Court recalls that, in accordance with its constant practice reflecting the principle linked to the effective implementation of justice, the judicial rulings must indicate in sufficient proportion the reasons on which they are based.” – https://hudoc.echr.coe.int/eng#{“fulltext”:[“garcia%20ruiz%20v.”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-58907”]}

As can be seen from the above, the Court grossly violated the provisions of the Azerbaijani Constitution, Criminal and Penal Procedure Laws, subordinate legislation, as well as the Norms of the European Convention for the Protection of Human Rights and Fundamental Freedoms in relation to the former Ambassador Eldar Hasanov. The Court was failing to follow the decisions of the European Court of Human Rights, which are advisory in nature for the member states of the Council of Europe, in passing the judgement.