THE COURT VIOLATED THE PROHIBITION TO TORTURE, INHUMAN TREATMENT, THE RIGHT TO DEFENCE AND SILENCE IN RESPECT OF HIKMAT AGAYEV
Hikmat Agayev
Analysis of violation of law during Hikmat Agayev’s judicial proceedings
Baku City Court for Serious Crimes
Case № 1(101)-1983/2024
10 September 2024
Presiding Judge: Rasim Sadigov
Judges: Novruz Karimov, Leyla Asgarova-Mammadova
Defendant: Hikmat Agayev
Defenders: Aydin Hajiyev, Javad Javadov
The State Prosecutor: Rauf Malyshev, a prosecutor from the State Prosecution Defence Division of the Serious Crimes Courts within the State Prosecution Defence Department of the General Prosecutor’s Office of the Azerbaijan Republic
Hikmat Agayev (born in 1985) was a Shiite believer, an active public and philanthropic activist, who sharply criticised the current authorities via social media. He had previously been a member of the opposition movements “D18” and the “Muslim Unity Movement”, but later left the both organisations.
On 6 April 2024, Hikmat Agayev was detained on charges of committing an offence under the Article 234.4.3 (Illegal drugs large-scale distribution) of the Criminal Code of the Azerbaijan Republic.
Agayev’s arrest came at a time when relations between Azerbaijan and Iran had deteriorated, and there were mass arrests of believers in the country. The believers were officially accused of illegal drug trafficking and unofficially labelled as agents of Iran. The state television broadcast open propaganda against Shiite believers, accusing them of working for Iran’s intelligence services. However, despite those accusations, none of the detainees had been charged with treason or espionage.
According to the investigation, H.Agayev was detained at a street in Baku on 6 April 2024, and brought to the AR Ministry of Internal Affairs Head Department on Combating Organised Crime. Upon personal examination, it was found two bags with the psychotropic drug methamphetamine, one of which weighed 3.909 grams, the other 3.098 grams, with a total weight of 7.007 grams.
The defendant, Hikmat Agayev, interrogated at the trial pleaded not guilty to the charge and testified that he was a believer, did not consume alcohol or drugs but did smoke cigarettes. He was detained while leaving the ‘Oba’ shop carrying a persimmon in his hand. At that time he was fasting. The police officers who detained H. Agayev stated that they had been instructed to bring him to the police department. There, having imposed physical and psychological pressure on him, they ordered him to accept two bags of drugs as their own. He was threatened that in case of refusal, his mother and wife would be prosecuted. Therefore, Hikmat Agayev was forced to fulfil their demands. Due to the injuries inflicted by the police officers, the marks were left on his face, the police reauested Agayev to justify his injuries by saying that he had collapsed while working at the factory.
Anar Shamiyev, the Chief operative commissioner for very important cases from the Main Department for Combating Organised Crime within the Azerbaijani Ministry of Internal Affairs, who was questioned as a witness at the trial testified that the accused Hikmat Agayev had been engaged in the drugs illegal trafficking. In this regard, on 6 April 2024, an operative-search action was conducted, during which Hikmat Agayev was detained at one of the factories. In the course of personal search by the interrogator, it was found two bags with methamphetamine in Agayev’s possession. Answering the inquirer’s questions, Hikmat Agayev testified that he had found those packages in the workshop sanitary unit where he had been working. The witness also said that his colleagues and he had detained Agaev and the detainee hadn’t been subjected to physical or psychological pressure.
The Court pointed out that during the trial the accusation under the Criminal Code Article 234.4.3 against Hikmat Agayev had not been proved, therefore, the Court reclassified it to the Article 234.1-1 (Illegal acquisition, storage, manufacture, processing, transportation without purpose of sale of narcotic drugs or psychotropic substances in significant quantities, committed in large amounts) of the Criminal Code.
Forensic medical examination of 7 April 2024, revealed the presence of a substance methamphetamine in Agayev’s t blood and urine.
The conclusion of the forensic narcological expertise of 8 April 2024, confirmed that Hikmat Agayev had not been addicted to drugs, so there was no need for his compulsory treatment.
There were not found any contacts or correspondence relevant to the case in Hikmat Agayev’s mobile phone.
The Court recognized Agayev’s four minor children as a mitigating circumstance. The Court did not find any aggravating circumstances in the case.
On 10 September 2024, the Baku City Court of Serious Crimes issued a verdict against Hikmat Agayev: he was found guilty of committing a crime under the Criminal Code, Article 234.1-1, and sentenced him to 3 years and 6 months’ imprisonment in a general regime penal institution.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The criminal proceedings are based on the following principles:
- defining the rules that form the framework for the prosecution of criminal offences;
- ensuring the protection of individual and citizen against the cases of unlawful restriction of his/her rights and freedoms;
- ascertaining the legality and validity of each criminal prosecution.
It’s very important that according to the Article 9.2 of the Code of Criminal Procedure of the Azerbaijan Republic,
Under the circumstances provided for in this Code, violation of the principles or conditions governing criminal proceedings may render the completed criminal proceedings invalid, cause the decisions taken during them to be annulled and deprive the evidence collected of its value.
At the same time, the Article 12.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,
The judicial authorities shall observe the human and civil rights and liberties afforded by the Constitution to all participants in criminal proceedings.
In the case of Hikmat Agayev, there were violated a number of norms of substantive and procedural law.
The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 (3), lists the following rights of the accused, namely:
- to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
- to have adequate time and facilities for the preparation of his defence;
- to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
- to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
- to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Hikmat Agayev was denied the right to a defence, e.g. he did not have enough time to prepare for his defence. As the defendant testified at the trial, the police officers who detained and brought him to the Department for Combating Organised Crime demanding to admit the charges while threatening him with ill-treatment against his mother and wife, and subjecting him to physical pressure. Thus, he had no choice but to do what had been demanded without consulting his lawyer.
In this connection, it will be appropriate to mention the judgment of the European Court of Human Rights in the case of Artico v. Italy dated 13 May 1980, where it states,
“The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective; this is particularly so of the rights of the defence in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive.” https://hudoc.echr.coe.int/?i=001-57424
The ill treatment violated the CPC Article 13.2 where states:
During a criminal prosecution nobody shall:
- be subjected to treatment or punishment that debases human dignity;
- be held in conditions that debase human dignity;
- be forced to participate in carrying out procedures that debase human dignity.
According to the Article 9 of the Criminal Code of the Azerbaijan Republic,
- 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 prohibition of torture and inhumane treatment is enshrined in the European Convention, Article 3, stating:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
It is the State’s duty to ensure that no one is subjected to any prohibited form of ill-treatment. If a detainee claims in his or her defence that he or she has been subjected to ill- or inhuman treatment, there must be an effective official investigation to identify those responsible in order to prosecute them.
As stated above, Hikmat Agayev got injuries on his face as a consequence of being caught in the police custody. In order to prove that fact, it would have been enough to inspect the video surveillance cameras.
The State authorities must prove that the origin of any possible marks of ill-treatment on the individual face were not caused by a punch, and that it did not take place while a detainee was deprived of his or her liberty. In this case, the burden of proof is not on the victim but on the investigating authorities. Disappointingly, the investigative authority did not take any initiative to prove that the traces of ill-treatment had not been inflicted by them while Hikmat Agayev was being held in the police custody. The Court unreasonably trusted the police officers’ testimonies and ignored the defendant’s one. Meanwhile, the Court should always take into account the investigation bodies’ malpractice that many detainees repeatedly appeal and report at the trial.
The judgment of the European Court of Justice in the case of Soering v. the United Kingdom dated 7 July 1989, states,
“Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) in time of war or other national emergency. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 (art. 3) enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also to be found in similar terms in other international instruments such as the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights and is generally recognised as an internationally accepted standard.”-
https://hudoc.echr.coe.int/?i=001-57619
In the Selmoni v. France judgment of 28 July1999, the European Court specified,
“The Court considers that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention.”- https://hudoc.echr.coe.int/?i=001-58287
The investigating authorities committed another violation when they required the accused to provide the necessary for them testimony, e.g., the incriminating one. In this case, the investigative body had been obliged to recall the existence of the AR Constitution, Article 66, where states:
Nobody may be forced to testify against himself/herself, wife (husband), children, parents, or siblings. The full list of relatives against whom testifying is not obligatory is prescribed by law.
As the European Court refers to such a right of the accused as the ‘right to silence’. Even though this right is not explicitly stated in the text of Article 6(3) of the European Convention, yet, the Court’s case-law enshrines it precisely as part of this legal provision.
Thus, the judgment of the European Court of Justice in Servais v. France dated 20 October, 1997, state:
“The Court found that there was no doubt that “the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 … By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6… in particular, it had to be determined whether the applicant had been subjected to compulsion to give evidence and whether the use made of the resulting testimony offended the basic principles of a fair procedure under Article 6 § 1.” – https://hudoc.echr.coe.int/?i=001-58103
Thus, the investigation and Court, having infringer the norms of substantive and procedural law, as well as the international treaty provisions, violated in respect of Hikmat Agayev, his right to at least not to be subjected to torture, cruel and inhuman treatment, as well as his right to defence and silence. Overall, in that case there were violated the fundamental rights of any democratic society such as the rights to liberty and fair trial and also the right to an efficient legal defence.