EVEN IF YOU ARE A CITIZEN OF ANOTHER COUNTRY YOU COULD BE ARRESTED FOR CRITICISING ILHAM ALIYEV
Mirhafiz Jafarzade
Analysis of violation of law during Mirhafiz Jafarzade’s judicial proceedings
Baku City Grave Crimes Court
Case № 1(101)-427/2024 10 October 2024
Presiding Judge: Sabina Mammadzade
Judges: Ali Mammadov, Azad Madjidov
Defendant: Mirhafiz Jafarzade
Defender: Akif Aliyev
The State Prosecutor: Ziya Mansurov, a Prosecutor from the Division for Support of the State Prosecution in Courts on Grave Crimes within the Support of State Prosecution Department at the General Prosecutor’s Office of the Azerbaijan Republic
Mirhafiz Jafarzade (born in 1966), a citizen of the Azerbaijan Republic and, since 2009, also a Russian Federation citizen, has been engaged in private different countries trades. While studying he had been actively participating in the social and political life of the country, on 20 January, 1990, he along with other society representatives came out to protest against the Soviet troops intrusion into Azerbaijan. After becoming a Russian citizen in 2009, he had not visited Azerbaijan for a long time. In February 2020, M. Jafarzadeh came over in Azerbaijan for a short time and then returned back to Russia. However, in July 2021, he again came to Azerbaijan.
On 24 September 2021, M. Jafarzade was detained by the State Security Service of Azerbaijan at the Baku airport. A few hours later he was released, but on 11 November 2022, M. Jafarzadeh was again detained by the State Security Service officers near Koroglu metro station in Baku.
He was charged with committing offences under the Articles 274 (High treason) and 283.1 (The actions directed on excitation of national, racial, social or religious hate and hostility, humiliation of national advantage, as well as actions directed on restriction of citizens rights, or establishment of the superiority of citizens on the basis of their national or racial, social belonging, creeds committed publicly, including with use of mass media) of the Criminal Code of the Azerbaijan Republic. M. Jafarzade was taken into custody for the period of 4 months that was subsequently extended.
The detainee, M. Jafarzade, who was interrogated at the trial, did not plead guilty to the charges and called it ‘absurd’. He also proved that the facts of the case were fabricated by the body conducting the criminal proceedings. In addition, he testified that he had never used a profile called ‘Rost Merd’ on Facebook but used another name — ‘Hafiz Jafar’. In his opinion the investigating authority first detained him and then ‘invented’ the charges. In the course of his detention, he was asked about Talyshs living in the Russian Federation.
Javid Aliyev, questioned as a witness at the trial, said that the accused used to publish the posts against the state on Facebook, under which M. Jafarzade expressed his discontent and called for solidarity with everyone. The witness soon blocked his account and currently does not use any social networks.
Yunus Gulamov, questioned as a witness at the trial, testified that he has been using the social network Facebook since 2010. He was questioned in connection with his comment written 3-4 years ago. In 2020, during the second Karabakh war, it was created a Facebook page where he left a comment. However, he does not remember what exactly he wrote then. The witness though remembered that his comment was an objection on the words that the fighters in Karabakh war had been representatives of other nationalities.
Another witness, Ilqar Safarov, also testified about the written FB posts.
Bahruz Gasymov, yet, another witness, said that he had received a phone call from the State Security Service of Azerbaijan. His father answered the phone call and was informed that Gasymov should urgently come to the State Security Service Department of Lankaran district. There he was given a summons to go to Baku. He was also asked why he had put a ‘heart’ and written a comment under the ‘Rost Merd’ post, under which, according to the investigation body, M. Jafarzade had been hiding. The witness explained that the ‘Rost Merd’ had criticised the disrespect for Azerbaijani Shehids (Martyrs), and he agreed and supported it with a comment. In the course of interrogation at the department, he was shown a several photographs, on one of which he recognised M. Jafarzade; they used to live in the same neighbourhood and had the same teachers at school. When B. Gasymov was told that M. Jafarzade had been hiding under the name ‘Rost Merd’, he was sincerely surprised.
Azer Ahadov and Anar Heydarov were also questioned as witnesses, and commented the posts published on the page of ‘Rost Merd’ on Facebook.
The testimonies of other witnesses were only voiced at the trial.
According to the forensic phonoscopic examination dated 6 January 2023, the voice and speech recorded on the optical disc was attributed to M. Jafarzade.
The forensic linguistic examination report from 1 April 2023, stated that the ‘Rost Merd’ post on the Facebook had contained expressions inciting national, racial, social or religious hatred and enmity.
The testimony of the accused M. Jafarzade the Court considered as irrelevant and having a defence nature. The Court didn’t find either mitigating or aggravating guilt evedences in the criminal case.
On 10 October 2024, the Baku City Court Grave Crimes, having considered the criminal case in closed proceedings, passed a verdict against M. Jafarzade: guilty of the charges and sentence him to 16-year-period of imprisonment to be served in a high-security penal institution.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
One of the charges brought against M. Jafarzade is the state treason. The Article 274 of the Criminal Code of the Azerbaijan Republic discloses what it is meant:
High treason, that is deliberately action committed by a citizen of the Republic of Azerbaijan to detriment of the sovereignty, territorial integrity, state security or defensibility of the Republic of Azerbaijan: changeover to enemy side, espionage, distribution of the state secret to foreign state, rendering assistance to a foreign state, foreign organization or their representatives in realization of hostile activity against the Republic of Azerbaijan.
The signs of committing this offence are those specified in the Article 274 of the Criminal Code of the Azerbaijan Republic, e.g.:
- acts committed to the detriment of the sovereignty, territorial integrity, state security or defence of the Azerbaijan Republic
- defecting to the enemy
- espionage
- the disclosure of state secrets to a foreign state
- assisting a foreign State, or foreign organisation, or their representatives in carrying out a hostile activity against the Azerbaijan Republic.
What are the listed points?
Espionage means: a foreign citizen collects the information that constitutes state secrets or any other data, steals or hides it in order to transfer this date to a foreign state or its representatives in purpose to use it against the republic security.
A state secret is any information in the field of military, foreign policy, economic, scientific and technological, intelligence, counterintelligence and investigative activities, the disclosure of which may cause damage to the national security. The list of such information is determined by the state, and the state also determines the secrecy level to be assigned to the data. Prior to issuing state secrets, it is necessary to obtain them. To get access to it, you can either by means of work or duty. At that time, a person who passes such information to a foreign state, clearly understands that this information is indeed state secrets. It is almost impossible to mix it up with publicly available information since the secret documents are transmitted only upon signature, and they are labelled as confidential.
Assisting a foreign state in activities that are directed against the country security. Such assistance might be: financial, logistical, advisory, or other kind. Or defection to the side of the enemy, when a citizen participates in an armed conflict or other activities with the use of weapons and military equipment on the side of the enemy. It is not an offence when a citizen accidentally or deliberately finds himself in a state that is engaged in hostilities against his country. The most important thing is that this individual does not take up a weapon to help the enemy’s armed formations. The corpus delicti will emerge when a citizen begins to provide active assistance to the opposing side. For example, he/she starts to operate a combat vehicle – https://journal.tinkoff.ru/guide/izmena/
So, we have analysed the features of the criminal activities called ‘high treason’. It is clear that in order to bring this charge, it is required a strong and irrefutable evidentiary basis. Moreover, the investigative body should prove each of the feature that takes place in a particular criminal case.
What evidences do we have in the case on the charges against M. Jafarzade?
The investigating authority refers to a correspondence allegedly between M. Jafarzade and a certain O.M on the Telegram mobile application group. In the course of the trial, the accused testified that he hadn’t ever met that man, who, according to the investigation, had emigrated to the Iranian Islamic Republic. In the conversation between M. Jafarzade and O.M., it was mentioned a certain military warehouse, which had once been seized by Aliakram Humbatov, who in 1993 was arrested in Azerbaijan, but a year later managed to escape from the detention centre, in 1995, he was arrested again, and in 1996, he was sentenced to death; two years later, the death penalty was replaced with a life sentence; on 3 September 2004, he was granted a pardon by the Presidential Decree, deprived of Azerbaijani citizenship and deported to Holland, where he died on 22 December 2022.
Even if we take into account the fact that, according to the investigation and Court, M. Jafarzade transferred the secret information concerning the location of the warehouse, the Court was obliged to indicate whether that information had been really confidential? If so, it should have investigated how the information had been passed to M. Jafarzade, and who had been responsible for its leaking? What is meant by the concept of ‘switching to the side of the enemy’? Who is the ‘enemy of the country’? Did the accused provide any assistance (financial, logistical, counselling or other) to the enemy? Is Iran a country that can be considered hostile to Azerbaijan?
Unfortunately, all those questions have not been answered either by the investigative body (no evidence or proof) or by the Court that considered the criminal case.
At the trial, the defendant argued that the evidences presented by the investigation were falsified. Despite that objection, the Court did not take any steps to eliminate the contradictions.
The second charge is of incitement to national, racial, social or religious hatred and enmity. In this particular case, it is a national one.
The objective side of the crime is characterised by the actions aimed at inciting hatred or enmity, as well as at humiliating an individual’s or group of people dignity on the grounds of sex, race, nationality, language, origin, attitude to religion, or association to a social group. Incitement to such hatred or enmity means an attempt to create conflicts between citizens of different ethnicities, races, confessions (their religious affiliation) or social groups, committed publicly or with the use of the mass media or information and telecommunications networks, including the Internet. The subjective side is characterised by an intent to incite hatred or enmity or humiliate the dignity of an individual (or group of individuals) on the basis of the above-mentioned characteristics. The statements or expressions of judgement that exploit facts of inter-ethnic, inter-confessional or other social attitudes in scientific or political discussions and texts that do not seek to achieve these goals do not fall under the scope of criminal law. – https://www.ugolkod.ru/statya-282
Thus, in order to constitute an offence under the Article 283.1 of the Criminal Code of the Azerbaijan Republic, there must be a direct intent to incite interethnic hatred in a particular case. Was there such an intent in M. Jafarzadeh’s actions and what did this intent consist of? The investigation did not provide irrefutable evidence in that regard.
As it is said in the verdict: M. Jafarzade stated that the Facebook profile under the name ‘Rost Merd’, attributed to the accused by the investigation, had not actually belonged to him. It should be taken into account the miserable practice of the AR investigative authorities is to create and manage fake social profiles by themselves in order to prove their case or accusation. It has often happened in various criminal cases.
In order to support its position and eliminate doubts, the investigating authority should have presented a sufficient amount of evidence supporting one another.
In addition to the violation of the substantive law norms, the norms of procedural law were also violated in respect of M. Jafarzade. Thus, the State Security Service press service tried to create an image of a criminal out of Jafarzade by spreading biased information in media resources regarding the case in the absence of a guilty verdict. The circulated information led to the negative portrayal of M. Jafarzade among the people he acquainted with. According to the accused, it was done in order to prevent anyone from daring to defend him.
The principle of presumption of innocence is enshrined in the Article 63 of the Azerbaijani Constitution. It says:
- Everyone has the right to presumption of innocence. Everyone who is accused of crime shall be considered innocent until his/her guilt has been proven according to law and verdict of law court has been brought into force.
Besides the provisions of domestic law, the principle of presumption of innocence is also enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(2). It says:
Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
The judgment of the European Court of Human Rights (ECHR) in the case of Allenet de Ribemont v. France dated 10 February1995, said,
‘The freedom of expression as guaranteed by the Convention, Article 10, extends to the freedom to receive and impart information. Consequently, under the Article 6 para. 2, the authorities cannot be prevented from informing the public about ongoing criminal investigations, but they must do so with restraint and sensitivity, as required in accordance with the respect for the presumption of innocence.” – – https://hudoc.echr.coe.int/?i=001-57914
The above mentioned enables us to conclude that the biased and prejudiced attitude of the investigative body and Court led to the violation of a number of fundamental rights in a democratic society, namely the right to a high quality legal defence, the right to presumption of innocence, the right to liberty and personal inviolability and, in general, the right to a fair trial in respect of M. Jafarzade.