The right of a citizen to a fair trial has once again been violated in Azerbaijan

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THE RIGHT OF A CITIZEN TO A FAIR TRIAL HAS ONCE AGAIN BEEN VIOLATED IN AZERBAIJAN

Bahruz Karimov

Analysis of violation of law during Bahruz Karimov’s judicial proceedings

Baku City Grave Crimes Court

Case № 1(101)-387/2024

20 February 2024

Presiding judge: Samir Aliyev

Judges: Faiq Qaniyev, Mahmud Agalarov

Defendant: Bahruz Karimov

Defender: Elkhan Khudaverdiyev

The State Prosecutor: Orkhan Mehdiyev, a prosecutor from the Department supporting the State Prosecution in the Serious Crimes Courts within the Serious Crimes Administrative Division at the General Prosecutor’s Office of the Azerbaijan Republic

Bahruz Kerimov, born in 1984, is a Shia believer, married and has two young children.

On 9 March 2023, he was detained on charges of committing crimes under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic.

Bahruz Karimov’s arrest occurred at a time when the Azerbaijani-Iranian relations had escalated, and there were mass arrests of Shiite believers in Azerbaijan. The state TV channels and newspapers launched a propaganda campaign against the arrested Shiite believers, labelling them as “agents of Iran” and accusing of working for Iran’s special services. At the same time, by labelling the arrested Shiites as “agents of Iran”, the investigation and subsequent trials accused them of illegal use or drug trafficking. None of the detainees were charged with treason or espionage.

According to the investigation, B. Karimov was detained in one of the capital’s streets on 9 March 2023, and brought to the 20th Police Department of the Baku City Nasimi District Police Department. In the course of personal inspection, a bag with the narcotic drug heroin with a total weight of 19.603 grammes has been found in his possession.

On 11 March 2023, the Baku City Nasimi District Court chose a preventive measure in the form of detention for the period of 4 months against B. Karimov.

Bahruz Karimov, interrogated as a defendant at the trial, did not plead guilty to the charge and testified that he had been working as a kebab man in one of the capital’s restaurants, where two men had entered one day in early March 2023. They ordered a kebab. Once Bahruz Karimov had prepared their order and a waiter had served it to the customers, the later left. The men, after having dinner, approached B. Karimov and said that there had been a complaint against him. They and demanded Karimov to follow them. In the car, where Karimov was taken there were four men. He was brought to the police station; there he saw a baseball bat. They threatened to beat him with the bat if he would not agree to undertake the drugs. After that, all those policemen left the room and the one who stayed there told him that his arrest had been ordered. Further, the interrogator, Najaf, forced him to accept the drugs, but Bahruz did not agree. Seeing that Karimov did not co-operate, they threatened that in this case they would accuse his wife of doing so: the drugs would be plant in their house. His wife was pregnant at the time. Being afraid for her, B. Karimov had to accept it. Then the investigator called a lawyer into the room. Once there, Karimov saw that the lawyer had headphones in his ears and was not listening to him or anyone else in the room. At that point, B. Karimov refused to talk to that particular lawyer. The defendant also testified that he had been detained because he was a believer. He had never used drugs and did not drink alcohol.

Vasif Badalov, an operative commissioner from the Main Department for Combating Drugs within the Ministry of Internal Affairs of Azerbaijan, who, as a witness, was questioned at the trial, confirmed the investigation’s version. Ariz Amirov, another witness, also testified in a similar manner as V. Badalov.

The Court reached the conclusion that the offence should be reclassified from the Article 234.4.3 to Article 234.1-1 (Illegal acquisition or storage of drugs or psychotropic substances without the purpose of sale in an amount exceeding the amount necessary for personal consumption, committed in a large amount) of the AR Criminal Code.

  1. Karimov’s testimony was assessed by the Court as the one intended to mitigate the punishment.

 

The forensic medical examination dated 10 March 2023, indicated that the found narcotic drug was homemade heroin.

 

The forensic narcological examination conducted on 20 May 2023, determined that B. Karimov had not suffered from drug addiction, not required any compulsory treatment.

The report provided by the Society of Forensic Medical and Pathological Expertise under the Azerbaijan Republic Ministry of Health that carried out on 17 March 2023, concluded that no injuries had been found on Karimov’s body.

On 20 February 2024, the Baku City Court for Serious Crimes issued a verdict: Bahruz Karimov was found guilty of committing an offence under the Article 234.1-1 of the  Criminal Code of the Azerbaijan Republic and sentenced him to 3-years- imprisonment to be served in a general regime penal institution.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

As in any other criminal case, the most important factor in this case must be the issue of adequacy and incontrovertibility of evidence. According to the Article 146.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

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 evidence base submitted by the investigating authority to the Court, considered sufficient for the indictment and further arrest of an individual, consisted of the defendant’s testimony, statements provided by two police officers who supported the prosecution’s version as well as several formal forensic expertises. None of the submitted pieces of information prove the defendant’s involvement in the found drugs.

At the trial, the defendant testified that he had been detained by two individuals had been having dinner at the restaurant where he worked as a kebab man. However, the police officers claimed that they had detained him in one of the streets. The Court did not take any initiative to resolve the contradictions between the given testimonies.

It appears that the final Court’s judgement concerning the defendant’s guilt was based upon the police officers’ testimony and investigation’s version. Despite the existence of the Norm in the Criminal Procedure Law, the Court evaded its observance and did not interpret the contradictions in favour of the defendant, but rather, everything was interpreted to his disadvantage.

According to the Article 145.1 of the Code of Criminal Procedure of the Azerbaijan Republic,

All evidence shall be assessed as to its relevance, credibility and reliability. The content of all evidence collected for the purposes of prosecution shall be assessed in terms of whether it is sufficient to substantiate the charge.

The Article 145.3 of the Code of Criminal Procedure of the Azerbaijan Republic states,

If suspicions which emerge during the process of proving the charge cannot be removed by other evidence, they shall be interpreted in favour of the suspect or accused.

According to the Article 144 of the Code of Criminal Procedure of the Azerbaijan Republic,

Evidence collected for the purposes of prosecution shall be verified fully, thoroughly and objectively. As part of the verification process the items of evidence collected shall be analysed and compared with one another, new evidence shall be collected and the reliability of the source of the evidence obtained shall be established.

The Article 139 of the Code of Criminal Procedure of the Azerbaijan Republic states, that during prosecution, the following may be determined only on the basis of evidence:

 

  • the facts and circumstances of the criminal act;
  • the connection of the suspect or accused with the criminal act;
  • the criminal ingredients of the act provided for in criminal law;
  • the guilt of the person in committing the act provided for in criminal law;
  • the circumstances which mitigate or aggravate the punishment for which criminal law provides;
  • if there is no other circumstance covered by this Code, the grounds for a request by a party to the criminal proceedings or another participant in the proceedings.

As we can see, the Court did not take into account the above-mentioned legal provision, and the circumstances that should have been determined from the evidence; due to its lack and irrefutability. The connection between the defendant and found drugs has not been proved by the Court, as it happens in all similar cases without exception.

Here, it should be recalled the Article 10 of the Code of Criminal Procedure of the Azerbaijan Republic, stipulating that the Courts and participants of criminal proceedings shall strictly observe the provisions of the Constitution, Code of Criminal Procedure and other laws of Azerbaijan, as well as the International Treaties with the participation of the Azerbaijan Republic.

  1. Karimov was deprived of the right to a fair trial guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1). According to this Article, everyone in the event of a dispute concerning his/her civil rights and obligations or in the determination of any criminal charge against him/her shall be entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by Law.

As the defendant testified before the Court, the police threatened him and forced to admit his possession of the drugs. The threats were also made against his pregnant wife. Having feared that the police officers might hurt her, he agreed to their demands.

Unfortunately, those testimonies of his have not been verified either. The defendant even mentioned the name of the one who forced him to do so: the inquirer Najaf. In order to clear all doubts, the Court should take an initiative but it didn’t. The Court was not either proactive in summoning that person for questioning.

According to the Article 125.2 of the Code of Criminal Procedure of the Azerbaijan Republic states,

 

Information, documents and other items shall not be accepted as evidence in a criminal case if they are obtained in the following circumstances through the use of violence, threats, deceit, torture or other cruel, inhuman or degrading acts.

The Article 13.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

It shall be prohibited to take decisions or allow acts during the criminal prosecution which debase the honour and dignity of the person or may threaten the life and health of the participants in the proceedings.

Moreover, the Article 66 of the Constitution of the Azerbaijan Republic states

Nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister. Complete list of relations against whom testifying is not obligatory is specified by law.

The right to silence, though not explicitly stated in the European Convention, Article 6(1), the case law of the European Court of Human Rights (ECHR) enshrines this right in the above-mentioned Article.

Thus, the judgment of the European Court of Justice in the case of John Murray v. the United Kingdom dated 8 February 1996 says:

“Though it is not explicitly mentioned in the Article 6 of the Convention, there is no doubt that the right to silence during the police interrogation and privilege not to testify against yourself are recognised by the International Standards which are at the heart of the notion of fair trial under the Article 6 (…). By protecting a defendant from unfair coercion by the authorities, these privileges contribute to avoiding errors in the administration of justice and guarantee the fulfilment of the objectives set out in the Convention, Article 6.” – https://hudoc.echr.coe.int/?i=001-57980

Lack of sufficient evidence, bias on the part of the investigative and judicial bodies, failure to comply with the norms of both National and International Laws, lack of the judicial system to act independently have led to the violation of B. Karimov’s fundamental rights, i.e. the right to liberty and inviolability of a person, the right prohibiting torture and inhuman treatment, the right to a fair trial in general and right to silence in particular, as well as other related rights enshrined in the National Legislation, the European Convention on Human Rights, the European Convention for the Protection of Human Rights and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.