The unlawful and unjustified verdict against Rashad Ramazanov

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THE UNLAWFUL AND UNJUSTIFIED VERDICT AGAINST RASHAD RAMAZANOV

Rashad Ramazanov

Analysis of violation of law during Rashad Ramazanov’s judicial proceeding

Baku City Grave Crimes CourtCase

Case № 1 (101)-89/2024

5 February 2024

Presiding judge: Azer Taqiyev

Judges: Elnur Nuriyev, Kamran Mukhtarov

Defendant: Rashad Ramazanov

Defender: Elchin Sadiqov

The State Prosecutor: Rauf Malyshov, a prosecutor at the Department for Support of the State Prosecution in the Serious Crimes Courts within the State Prosecution Support Division of the General Prosecutor’s Office of the Azerbaijan Republic

A blogger, Rashad Ramazanov, born in 1982, was first arrested on charges of large-scale drug trafficking in 2013 and sentenced to 9 years imprisonment. He was recognised by the human rights activists as a “prisoner of conscience” and included on the list of political prisoners.

In March 2019, he, along with other political prisoners, was released on the basis of a pardon decree.

Afterwards, Ramazanov left the country and settled in Georgia. But soon he returned to Azerbaijan.

On 20 May 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.

  1. Ramazanov, interrogated at the trial, did not plead guilty to the charges and testified that he had neither used nor sold the drugs. The blogger also claimed that the drugs found by the police officers on 20 May had not belonged to him, they had been planted by the officers themselves, who had also subjected him to physical and psychological pressure. It had been done in order to extort his “confession”. R.Ramazanov could not withstand the police pressure and did what had been asked. While answering the questions at the trial, the blogger specified that he had applied to the Baku City Sabunchi District Prosecutor’s Office following the police officers’ unlawful actions. Having emphasised that he was innocent, R.Ramazanov asked the Court to issue an acquittal verdict.

 

Elshad Qafarov, a Senior operative commissioner of the Main Department for Combating Drugs within the Azerbaijani Interior Ministry, questioned as a witness at the court, had testified that on 20 May 2022, it had been arranged an operational group by the officers of the 14th Baku City Sabunchi District Police Department. Then it was known that Rashad Ramazanov was detained and brought to the 14th police station at about 2.00 p.m. on 20 May 2022. He also testified that at that time R.Ramazanov had been brought in as a suspect and a lawyer had been called in. In the right pocket of Rashad’s jacket the police had found a narcotic drug heroin weighing 10.830 grams, packed in accordance with the law. Answering the questions, E. Qafarov testified that he had not obtained any supporting information on the drug purchase with the purpose of selling it.

Miryusif Seyidov, an operative of the Main Department for Combating Drugs, and Elchin Qahramanov and Tariel Rzaquliev, operatives of the 14th Sabunchi District Police Station, were also questioned as witnesses and provided the similar testimonies. They also affirmed that they had not possessed any information that would confirm the existence of any arrangement to purchase or sell the drugs.

The witness, Najaf Aburshu, a Senior Inquirer of the Inquiry Group within the Main Department for Combating Drugs, summoned at the request of the defence, testified that he neither had acquainted with R. Ramazanov, nor seen him, nor had any confrontation with him, and he did not know the reasons for summoning him to the Court. The fact that he was found on the territory of the Sabunchi district on 20 May 2022, could have been due to various reasons.

The results of the expert assessment dated 20 May 2022, reveal that the detected drug is heroin, made in an artisanal way.

According to the results of the forensic narcological examination dated 7 June 2022, it is clear that R. Ramazanov is not a drug addict and does not need to undergo compulsory medical treatment.

According to a forensic psychiatric examination from 13 June 2022, R. Ramazanov was not suffering from any mental or psychological disorder.

Based on the Baku City Sabunchi District Prosecutor’s Office resolution from 20 June 2022, we can see that the complaint about physical pressure on R. Ramazanov was investigated, and as a result of the investigation it was declined to initiate a criminal case.

In the course of the trial it was determined that there had been no evidence in the case file that would confirm any evidence supporting the intent to sell. That’s why the c 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.

It should be noted that during the Prosecutor’s speech at the trial, R.Ramazanov tried to swallow “the battery”  as a sign of protest.

On 5 February 2024, the Baku City Court for Serious Crimes issued a verdict: Rashad Ramazanov 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 5 years and 4 months imprisonment to be served in a general regime penal institution.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The recent practice has shown that in the course of trial the criminal cases initiated under the Article 234.4.3 are reclassified to the Article 234.1-1 of the AR Criminal Code. In spite of the re-classification from the more serious Article to the less severe one, the efficiency of the proceedings remains rather poor.

Thus, in accordance with the criminal procedure legislation, the investigative body shall submit the case file to the Court upon the investigation completion. The Court must consider whether the submitted evidences are sufficient for a fair trial.

The verification and evaluation of evidences should be the main focus of the judicial proceedings.

The Article 138.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

Proof shall consist in the obtention, verification and assessment of evidence in

order to establish facts of importance for the lawful, thorough and equitable determination of the criminal charge.

At the same time, according to the Article 138.2 of the Code of Criminal Procedure of the Azerbaijan Republic,

The prosecutor shall be responsible for proving the grounds for the criminal responsibility of the accused and whether or not he is guilty.

It means that the Prosecution must provide sufficient irrefutable evidence to the Court to convince an outside observer that a defendant is indeed guilty.

The Article 139.1 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.

In the present case, the Court did not determine the connection between a defendant and the found drugs. Even the fact that the drugs had been found in the defendant’s pocket did not indicate that they belonged to him. The totality of the collected evidences in the case doesn’t prove that R. Ramazanov had committed a criminal offence either, as none of it proved his culpability.

The case evidence includes: the defendant’s testimony before and throughout the judicial investigation, witnesses’ testimonies, and a number of forensic examinations.

In the course of the trial, the defendant testified that he had been subjected to physical pressure on the part of the police officers and had been forced to denounce himself. The Court did not resolve the contradictions between the defendant’s testimony at the investigation and the ones he had given at the trial. Neither did the Court clarify the reasons why those testimonies drastically differed from each other. As the evidence allegedly proving the defendant’s guilt, the Court adopted his testimony given during the investigation. In addition, the police officers’ testimonies were taken as irrefutable, despite the fact that they had a direct interest in the case outcome.

The Article 145.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,

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.

According to the Article 145.3 of the Code of Criminal Procedure of the Azerbaijan Republic,

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.

At the trial, the defendant claimed that he had been subjected to physical and psychological abuse. According to Ramazanov’s lawyer, an expertise confirmed the signs of physical injury on his body, which coincided with the time when he was under arrest. See: https://turan.az/az/siyaset/mehkeme-dini-bloger-resad-ramazanovu-5-il-4-ay-muddetine-azadliqdan-mehrum-edib

However, the Baku City Sabunchi District Prosecutor’s Office ruled against the initiation of criminal proceedings on the facts of ill-treatment.

According to the Article 15.2 of the Code of Criminal Procedure of the Azerbaijan Republic, during the criminal prosecution the following shall be prohibited:

  • the use of torture and physical and psychological force, including the use of medication, withdrawal of food, hypnosis, deprivation of medical aid and the use of other cruel, inhuman or degrading treatment and punishment;
  • the imposition of long-term or severe physical pain or acts which are detrimental to health, or any similar ill-treatment;
  • taking evidence from victims, suspects or accused persons or from other participants in the criminal proceedings using violence, threats, deceit or by other unlawful acts which violate their rights.

According tot he Article 46 (III) of the Constitution of the Republic of Azerbaijan,

Nobody must be subject to tortures and torment, treatment or punishment humiliating the dignity of human beings. Medical, scientific and other experiments must not be carried out on any person without his/her consent.

Apart from the National Legislation, the provisions of International Conventions also prohibit torture and abuse. The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3, states,

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

Such a treatment is illegal and abnormal. Even in the most serious cases, such as the fight against terrorism and organised crime, the authorities must refrain from any action that could be considered as treatment prohibited by this provision. No such treatment shall ever be tolerated, whatever its intimidating consequences, real or perceived, upon the effective fight against criminal offences. In addition, the State has a mandatory duty to ensure that no one should be subjected to unlawful ill-treatment.

The judgment of the European Court of Human Rights (ECHR) in the case of Tomasi v. France dated 27 August 1992, stipulates,

‘The Convention categorically forbids inhuman or degrading treatment, torture or punishment, regardless of a victim’s conduct”.- https://hudoc.echr.coe.int/?i=001-57796

Apart from the Article 3, it was in breach of the Article 13 (right to an efficient legal defence) of the European Convention.

The judgment of the European Court of Justice (ECHR) in the case of Ilhan v. Turkey dated 27 June 2000, it is stated,

“The Court takes the view that the requirement of the Convention, Article 13, that an individual who claims a violation of the Convention, Article 3, be provided with an effective legal remedy, in most cases will provide both compensation to the applicant and the necessary procedural safeguards against breaches by the State officials. In its case-law, the Court has held that the notion of an effective remedy in this context includes the duty to carry out a full and effective investigation, the purpose of which is to identify and sanction those responsible for the ill-treatment and to grant the applicant free access to the investigation process. Thus, whether it is possible or necessary to recognise procedural violations of the Convention, Article 3, will depend on the particular characteristics of each case”. – https://hudoc.echr.coe.int/?i=001-58734

 

According tot he Article 66 of the Constitution of the Republic of Azerbaijan,

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 same right is granted to each person under the European Convention, Article 6(1), which refers to this right as the “right to silence”. Although this is not specified in the text of Article 6(1), it is however stipulated in the judgements of the European Court of Human Rights.

The law of criminal procedure sets out the prerequisites for a conviction. Thus, 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.

The Article 351.3 of the Code of Criminal Procedure of the Azerbaijan Republic states, that 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.

None of the above points were observed by the Court. Thus, the verdict of conviction was not in accordance with the Law.

The illegitimate and unjustified verdict violated the fundamental right of the blogger R. Ramazanov: the right to freedom and personal inviolability, as well as the right to silence, fair trial, presumption of innocence, prohibition of torture and inhuman treatment, etc.