THE PROHIBITION ON INHUMAN TREATMENT AND FREEDOM OF A DISABLED INDIVIDUAL HAS BEEN VIOLATED
Famil Khalilov
Analysis of violation of law during Famil Khalilov’s judicial proceedings
Baku City Court of Appeal trial, Criminal Collegium
Case № 1(103)-510/2024
22 May 2024
Presiding judge: Farid Eyyubov
Judges: Emin Mehdiyev, Elmar Rahimov
Defendant: Famil Khalilov
Defenders: Fahraddin Mehdiyev, Bahruz Bayramov
With the participation of Shovgi Asgarov, a Major from the Investigation Unit within the Investigative Department at Binagadi District Police Headquarters
Famil Khalilov had been living with his family in Sweden for 8 years. However, having failed to obtain a residency in that country, in October 2023, he and his family were deported to Azerbaijan. On 2 May 2024, some unidentified individuals in civilian clothes broke into their house.
According to Khalilov’s wife, her husband’s hands are paralysed, and having the 1st group of disability he cannot do anything on his own. When the unknown people broke into the house, she was bathing her spouse so the door was opened by her daughter. When Khalilov’s wife came out of the bathroom in response to the noise, the men introduced themselves as policemen. They dragged Famil Khalilov out of the bathroom into the backyard of the house.
After that, they brought him back into the house and started shooting video. The police officers demanded F. Khalilov to go up on the second floor but he replied that he had never done so, as he had medical issues. Then they pulled F. Khalilov upstairs, where one of the policemen, without touching anything else opened a cupboard, pull out a blue napkin and said that there was something white in it. F. Khalilov’s wife said that the package had nothing to do with them. Then, the officers brought her and their three young children, one of whom also has a disability, to the 40th Police Station of the Baku Binagadi District Police Department. She and the children were waiting in the courtyard, while the police officers demanded the password for Khalilov’s computer. Afterwards, Khalilov’s wife and children were released, but the information about Famil had been unknown for his family for 24 hours. See: https://www.azadliq.org/a/famil-xelilov/32934923.html
Famil Khalilov was a public activist and has strongly criticised the authorities on the social media.
On 4 May 2024, he was charged with committing a crime 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.
On 4 May 2024, the Baku City Binagadi District Court issued a verdict against F. Khalilov and chose a preventive measure in the form of detention for a period of 4 months. The defence appealed to the Court to annul the order of arrest.
On 6 May 2024, F. Khalilov’s health conditions deteriorated and he was sent to the sanitary unit of the Baku City Pre-trial Detention Centre.
On 10 May 2024, the Baku City Court of Appeal issued a ruling declining to satisfy the appeal against the imposition of the arrest and upheld the ruling of 4 May 2024.
On 22 May 2024, F. Khalilov called home and informed his wife that he was going on hunger strike as a sign of protest.
The defence once more appealed to the Court with an appeal to replace the preventive measure of restraint in the form of arrest to house arrest. On 14 May 2024, the Baku City Binagadi District Court rejected the appeal. Not accepting the Court’s ruling, the defence filed an appeal.
On 22 May 2024, the Baku City Court of Appeal issued a ruling to dismiss the appeal and uphold the Court’s ruling from 14 May 2024.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
According to the Article 154.1 of the of the Criminal Procedure Code of the Azerbaijan Republic, a restrictive measure is a coercive procedural measure intended to prevent unlawful behaviour by the suspect or accused during criminal proceedings and to ensure the execution of the sentence; it shall be applied in the other cases.
The Article 154.2 of the Criminal Procedure Code of the Azerbaijan Republic states, that 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.
Also, in Article 154.3 of the Criminal Procedure Code of the Azerbaijan Republic indicated, that arrest, house arrest or bail may be applied only to an accused person.
The above Articles indicate that arrest is the strictest preventive measure, while the house arrest can be imposed on a defendant in the status of the accused.
As mentioned above, Famil Khalilov has a first-group of disability and three young children, one of whom has also congenital disorders. He is unable to manage without external assistance, in this case, provided by his spouse.
Despite that, the Court initially imposed a measure of restraint in the form of arrest for a period of 4 months in respect of the handicapped individual.
According to the Article 155.1 of the Criminal Procedure Code of the Azerbaijan Republic, restrictive measures may be applied by the relevant preliminary investigator,
investigator, prosecutor in charge of the procedural aspects of the investigation or court when the material in the prosecution file gives sufficient grounds to suppose that the suspect or accused has:
- hidden from the prosecuting authority;
- obstructed the normal course of the investigation or court proceedings by illegally influencing parties to the criminal proceedings, hiding material significant to the prosecution or engaging in falsification;
- committed a further act provided for in criminal law or created a public threat;
- failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;
- prevented execution of a court judgment.
There, arises a logical question: how could Famil Khalilov, having serious health issues, could violate criminal procedure or public order or commit an offence? It would have been quite sufficient to apply to the accused some kind of technical device that would control him and that he would be obliged to keep on his body.
Neither the Court nor the Court of Appeal provided any answer on the above questions and failed any reasoning to justify the order of arrest.
A valid appeal filed by the lawyers to replace the arrest for house arrest remained unsatisfied.
The Courts did not take into account the grounds specified in the Article 155.2 of the Criminal Procedure Code of the Azerbaijan Republic, i.e.: his personality, serious health issues, marital, material and social status, including the dependency of three young children, one of whom is also handicapped.
According to the defendant’s wife, he was unable to climb to the upper floor of the house on his own, his hands had begun to rot since he had been in prison. Due to his poor health condition, Famil Khalilov was placed in the sanitary unit of the detention centre.
The Constitution of the Azerbaijan Republic, Article 24, highlights the fundamental principle of the individual’s and citizen’s rights and freedoms. Thus, it states:
- Human dignity is protected and respected.
- Everyone, as from the moment of birth, enjoys inviolable and inalienable rights and freedoms.
III. Rights and freedoms shall also include the responsibilities and duties of everyone to the society and to other persons. Abuse of rights is not allowed.
Moreover, the state is a guarantor to protect the rights and freedoms of each and every citizen.
In the case of the arrest of Famil Khalilov, the Courts have actually issued the rulings jeopardising his health and as a whole his life, though it is prohibited by the Article 13.1 of the Criminal Procedure Code of the Azerbaijan Republic.
Therefore, the Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits torture, ill-treatment and other inhuman treatment, is applicable to the case. The arrest of F. Khalilov is illegitimate and unlawful. It is intended to inflict even greater suffering on the accused.
The judgment of the European Court of Human Rights (ECHR) in the case of Soring v. the United Kingdom dated 7 July, 1989, is written,
“… ill-treatment, including punishment, must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim.” – https://hudoc.echr.coe.int/?i=001-57619
The judgment of the ECHR in the case of Kudla v. Poland of 26 October 2000 is written,
“Nevertheless, under this provision (Article 3) the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance.” – https://hudoc.echr.coe.int/?i=001-58920
The Courts, in failing to satisfy the defence’s appeal to substitute a preventive measure, were not guided by the principle of humanism at the very least. Thus, the Article 9 of the Criminal Code of the Republic of Azerbaijan states,
- The Criminal Code shall provide safety of people.
- Penalties and other measures of criminal-legal nature, applicable to a person who has committed a crime, shall not have the character or purpose of torture or other cruel, inhuman or degrading treatment.
The Court did not evaluate the arguments of the defence; it limited itself to writing off the ruling from the investigator’s petition and prosecutor’s submission. When imposing a preventive measure in the form of arrest, the Courts not only failed to consider the possibility of applying other forms of preventive measures, but also dismissed the defence’s complaint to replace the chosen preventive measure with house arrest, which, in accordance with the law, also has certain restrictions. In that case, the accused, though, would have been at his place of residence and could have been assisted by his wife, thereby limiting his physical and moral suffering.
Even in such cases in which a sentence of life imprisonment is prescribed for the presumed commission of the offence, the Courts have a duty to clearly justify the imposition of a preventive measure prior to trial. They are also obliged to take into account that an arrest should be considered as an exception, rather than the rule.
The arrest of Famil Khalilov clearly demonstrates how unlawful and unreasonable are the court rulings on choosing measures of restraint in the form of arrest, which, as a rule, are drawn up in accordance with an investigator’s petition and prosecutor’s submission. The Courts do not exercise an individualised approach, limit themselves to formal and abstract arguments, and there are the same injustified arguments in all arrest rulings. There is no a single word concerning F. Khalilov’s health condition in the court’s judgement, neither there are the arguments of the defence evaluation in any way, and they are groundlessly denied.
By violating the principle of humanism, the Courts violated the fundamental rights of Famil Khalilov, i.e. the right to liberty and security of person and right to the prohibition of severe and inhuman treatment.