THE NUMBER OF ARRESTED WOMEN JOURNALISTS HAS DRASTICALLY INCREASED
Elnara Qasimova
Analysis of violation of law during Elnara Qasimova’s judicial proceeding
Collegium for Criminal Cases of the Baku City of Appeal
Case № 4(103)-90/2024
2 February 2024
Presiding Judge: Anar Ibrahimov
Judges: Mirzali Abbasov, Ramin Qaraqurbanli
Defendant: Elnara Qasimova
Defenders: Aisha Abdel Qadir, Bahruz Bayramov
With participation of Abulfaz Huseynov, a Prosecutor at the Investigation Department within the Baku City Prosecutor’s Office, Division for Supervision over Execution of Laws on Inquiry and Investigative Activity; and Togrul Huseynov, a Senior Investigator from the Investigation Department on Serious Crimes within the Baku City Police Main Office
Elnara Qasimova, born in 1996, was previously a member of the N!DA Civic Movement and then became a journalist. She has been recently cooperating with the Internet site Abzas Media.
In November 2023, there were arrested: the website Director, Ulvi Hasanli; an editor-in-chief Sevinj Vaqifqizi; the employees Nargiz Absalamova, Mohammad Kekalov; also, an employee from the Turan News Agency, Hafiz Babaly. In a short time, there were arrests of the following people: Aziz Orujev, an Executive director from Kanal-13, Teymur Karimov and other employees from Kanal-11.
On 13 January 2024 Elnara Qasimova was brought as a suspect to the criminal case initiated against journalists.
On 15 January 2024, she was charged for committing a crime under the Article 206.3.2
(Smuggling committed on preliminary arrangement by group of persons) of the Criminal Code of Azerbaijan Republic (CC AR). On the same day, the Baku City Khatai District Court imposed a measure of restraint on Elnara Qasimova in the form of detention for a period of 2 months.
- Qasimova was sent to the Pre-Trial Detention Centre No.1 in the settlement of Kyurdakhani, outskirts of Baku.
The defence, having applied to the Baku City Khatai District Court, sought to replace the previously elected measure of restraint in the form of arrest with a house arrest. On 25 January, 2024, the Baku City Khatai District Court issued a ruling declining to replace the arrest with a house arrest. The defence, being disagree with the ruling, filed an appeal.
On 2 February 2024, the Collegium for Criminal Cases of the Baku City of Appeal issued a ruling: to decline the defence’s appeal and leave the Baku City Khatai District Court ruling from 25 January 2024, unchanged.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
According to the Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic, restrictive measures may be the following:
- arrest;
- house arrest;
- bail;
- restraining order;
- personal surety;
- surety offered by an organisation;
- police supervision;
- supervision;
- military observation;
- removal from office or position.
As stated above, the Court chose a preventive measure in the form of detention for 2 months against the detained journalist Elnara Qasimova. The Court did not consider any alternative preventive measures other than arrest. Despite the existence of nine preventive measures, the Courts always issue the strictest one by default— an arrest in “sensitive cases”. Moreover, the Courts do not provide any justification or reasoning for the rulings on arrest.
The Court of Appeals ruling issued on 2 February 2024, is also lacking any argument.
Thus, it states that the use of arrest as a preventive measure against E. Qasimova is justified by the public danger, seriousness and nature of the committed offence, probability of concealment from the authority carrying out the criminal proceedings and exerting an illegitimate influence on the parties involved in the trial, and interference in the normal course of the preliminary investigation as well as exposing other members of the group.
It is further stated in the ruling that at present, the listed grounds have not been eliminated, so the defence motion to change the measure of restraint from arrest to the house arrest is inappropriate.
According to the Article 156.1 of the Code of Criminal Procedure of the Azerbaijan Republic,
The offence committed by the suspect or accused and the grounds for the need to apply a restrictive measure based on the preliminary evidence shall be indicated in the decision on the choice of restrictive measure.
At the same time, the Article 163.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,
House arrest is a restrictive measure which restricts a person’s liberties and some other rights by a court decision, without the accused being detained on remand and isolated completely from society.
A preventive measure in the form of house arrest is not applied if the accused does not have a permanent place of residence in Azerbaijan (Article 163.3-3 of the Code of Criminal Procedure of the Azerbaijan Republic). In the case of E. Qasimova, the Article 163.3-3 of the Code of Criminal Procedure of the Azerbaijan Republic is not applicable, as she has a permanent place of residence in Azerbaijan.
In the court’s judgement, the Court points out the necessity of restricting the journalist’s right to freedom, but does not provide any arguments to prove such a serious statement. The Court merely limits itself to the pre-trial investigation request.
In order for a deprivation of liberty to be in line with the European Convention for the Protection of Human Rights and Fundamental Freedoms, it must fulfil two conditions: legitimacy and lawfulness. The deprivation of liberty must first and foremost be legitimate in terms of domestic law. This right must be in conformity with the European Convention and general principles enshrined in that Convention must be respected. In particular, the domestic procedure must be fair and proper.
The deprivation of liberty must also be lawful, i.e. it must be in conformity with a purpose prescribed by any of the exhaustive list of cases contained in the Article 5(1) of the Convention which guarantees the right to liberty and security of person.
“…Deprivation of liberty is a measure of such severity that it can be justified only when other less severe measures have been considered insufficient to protect the personal or public interest that requires the deprivation of liberty. It is insufficient that the deprivation of liberty is in accordance with domestic law; it must also be compulsory in view of the particular case”. (WitoldLitwa, 78).
The European Court of Human Rights (ECHR) judgment, paragraph 58, in the case of Smirnova v. Russia dated 24 July 2003, it stated:
“An individual charged with an offence must always be released prior to his or her trial, unless the State could present ‘appropriate and sufficient’ grounds to justify prolonged detention”. It has been noted above that the Court has referred to the risk of absconding from justice due to the severity of the impending sentence as a ground for acquittal in refusing a change of preventive measure. In that case, the European Court in the case of Smirnova v. Russia emphasised: “The risk of absconding cannot be assessed solely on the basis of the severity of the sentence to be imposed; it must be considered with regard to a number of other relevant factors which may either confirm the risk of absconding or make it so insignificant that it cannot justify a pre-trial detention. In this respect, attention must be paid to, in particular, the individual’s character, his or her morals, assets, association with the State, in which he or she is being prosecuted and international contacts.” “Arguments pro and con for release must not be “general and abstract” (paragraph 60 of the above-mentioned judgment). – https://hudoc.echr.coe.int/?i=001-61262
The Court of First Instance, and subsequently the Court of Appeal, did not provide any solid evidence or arguments for denying the application of the defense, did not substantiate its ruling, did not demonstrate an individual approach to the case, in fact, failed to comply with the provisions of substantive and procedural law, including the Norms of International Conventions, as well as the precedents of the European Court of Human Rights, when imposing the measure of restraint in the form of arrest, further replacing the arrest with house arrest. Such a judicial approach violated E. Gasymova’s right to freedom and personal inviolability guaranteed by the Constitution of the Azerbaijan Republic, Article 28, and the European Convention, Article 5 (1).