ANOTHER VIOLATION OF THE BELIEVERS’ FUNDAMENTAL RIGHTS
Agaali Yahyayev
Analysis of violation of law during Agaali Yakhyayev’s judicial proceedings
Sumqayit City Grave Crimes Court
Case № 1(124)-457/2024
20 September 2024
Presiding Judge: Elchin Mammadov
Judges: Nuraddin Huseynli, Nahid Mirzayev
Defendant: Agaali Yahyayev
Defender: Zubeida Sadiqova
State Prosecutor: Samir Mammadov, a Prosecutor from the Support of State Prosecution in Grave Crimes Courts Division within the Support of State Prosecution Department of the AR General Prosecutor’s Office
Agaali Yahyaev (born in 1983) is a member of the “Muslim Unity” Movement. In 2016, he was arrested in the course of the events that took place in the Baku suburb village of Nardaran. In 2017, the Baku City Grave Crimes Court found him guilty on the charges and sentenced him to 15-years imprisonment.
On 18 March 2021, Agaali Yahyaev was released according to the presidential pardon decree.
Following his release, he kept being engaged in public activities, spoke sharply against the authorities and provided assistance to the Karabakh war veterans, as well as to the shahid families. As a result, he was often summoned to various state bodies where he was asked to stop his activities.
On 31 August 2023, Agaali Yahyaev was detained by the officers from the Drug Control Department withing the AR Ministry of Internal Affairs.
According to the investigation, Agaali Yahyaev possessed a package containing 21.289 grams of heroin, a homemade narcotic drug. He was charged under the Article 234.4.3 (Illegal drugs large-scale distribution) of the Criminal Code of the Azerbaijan Republic.
The defendant, Agaali Yahyaev, interrogated at the trial, pleaded not guilty to the charge and testified that his arrest had been related to his public activities and active position against the authorities. He also testified that his detention had taken place by 7-8 police officers in Mehdiabad village. The officers first told him that he had a fine of 18 manat and asked him to approach their vehicle. As soon as he obeyed, the police officers seized his hands from behind, forcibly put him into the car and brought to the Mehdiabad Police Station. There, he had been beaten and ill-treated until 2 a.m. He was beaten and ill-treated. Besides being subjected to physical abuse, it was psychological pressure, namely, the threats against his family. The police officers demanded him to accept the drugs possession. In order to protect his family, he was forced to agree with their demand.
Answering the questions at the trial, Agaali Yahyaev testified that the date and address indicated in the indictment had been correct, however, the time of his detention hadn’t been falsified. He also testified that everything had been prepared in advance and then videotaping. Despite he hires a lawyer, it was another lawyer assisting the videotaping. Agaali Yahyaev provided the name of one of the policemen involved in his beating, Anar. The whole operation was led by the policeman Alakbar. Yahyaev’s lawyer was only able to meet with him a few hours later. No one was informed of Agaali’s detention. 15 days later, Yahyaev’s wife applied to the Azerbaijani Ministry of Internal Affairs, where she was informed about her husband detention and his placement in the Baku Detention center No. 1.
Roman Hasanov, an employee of the Drug Control Department within the Azerbaijani Ministry of Internal Affairs, questioned as a witness at the trial, testified that on 31 August 2023, Agaali Yahyaev was detained in Mehdiabad settlement on the basis of received operational information. He said that they found a package with narcotic drug heroin in the detainee’s possession. Also, he testified that Agaali Yahyaev accepted the drugs as his own and said that he had found it on the same day. Roman Khasanov noted that neither he nor any of other police officers had applied physical or psychological pressure on Yahyaev.
The police officers, Elmaddin Pashayev and Arif Aliyev, questioned as witnesses at the trial, provided similar to Roman Hasanov’s testimonies.
The results of the forensic narcological examination dated 4 December 2023, revealed that Agaali Yahyaev was not addicted to drugs and did not need any compulsory medical treatment.
An outpatient forensic psychiatric examination dated 4 December 2023, confirmed that Agaali Yahyaev hadn’t been suffering any mental illness or psychological problems.
The Court assessed Agaali Yahyaev’s unexpunged criminal record and his commission of a new offence as a particularly dangerous recidivism.
The Court also noted that the purpose of selling the narcotic drug was not proved, therefore, the primary chosen Article 234.4.3 of the Criminal Code of the Azerbaijan Republic was replaced to the 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 Criminal Code of the Azerbaijan Republic.
The Court didn’t accept the defendant’s testimony and pointed out that his testimony was not either supported by any other testimonies, or the criminal case materials.
On 20 September 2024, the Sumqayit City Grave Crimes Court issued a verdict against Agaali Yayhyayev: he was found guilty of committing a crime under the Criminal Code, Article 234.1-1 and sentenced him to 7 years imprisonment in a general regime penal institution.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The Article 90.7 of the Criminal Code of the Azerbaijan Republic lists a suspect’s rights from the moment of his/her detention, such as:
- to know the grounds for detention, if detained, to receive legal aid from the defence counsel from the outset of detention, and to receive written notification of his rights from the person who detained him or the preliminary investigator, investigator or prosecutor;
- to have access to defence counsel from the time of the decision on detention or on the choice of restrictive measure;
- to inform his family, relatives, home or workplace (or place of study) immediately after he is detained, by telephone or other means;
- to choose his defence counsel independently, to dismiss him and to conduct his own defence if he waives the right to defence counsel;
- to have unlimited opportunity and time to meet his defence counsel in private and in confidence;
- to give statements, not to incriminate himself or his relatives and in general to refuse to give a statement.
As stated in this Article, a suspect has the right to have a lawyer from the beginning of detention, also immediately inform his/her relatives about the detention, and also a right to refuse to testify against oneself. All the above rights were violated by the investigative body. Agaali Yahyaev was not explained that he had a right to refuse to testify against himself in accordance with the Article 66 of the Constitution of the Azerbaijan Republic, Article 20 of the Code of Criminal Procedure of the Azerbaijan Republic, as well as the Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The investigative body obtained the accused “confession” by means of physical and psychological pressure, even though it is prohibited by the Article 15.2 of the Code of Criminal Procedure of the Azerbaijan Republic.
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.
Also, according to the Article 13.2 of the Code of Criminal Procedure of the Azerbaijan Republic, 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.
These legal norms are closely intertwined with the Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, according to which ‘no one shall be subjected to torture, or inhuman or degrading treatment, or punishment’.
Such a treatment is illegal and abnormal. Even in the most serious cases, such as fighting against terrorism and organised crime, the State authorities must refrain from any action that could be considered to be treatment prohibited by this provision. If a detainee claims that he or she has been subjected to ill-treatment, an effective official investigation must be carried out to identify and punish those responsible. The burden of proof in this regard is upon the investigating authorities. It is for them to prove that the ill-treatment did not take place. In the case under comment, no initiative was taken by the investigating authorities to prove it and the Court found the defendant’s evidence concerning the ill-treatment to be inadmissible and dubious. The Court did not initiate an effective investigation to identify the perpetrators and their subsequent punishment. The Court demonstrated unacceptable passivity in this matter, as well as in other similar cases of allegations of ill-treatment by the police.
The judgement of the European Court of Human Rights (ECHR) in the case of Caloc v. France dated 20 July 2000 states,
“The Court holds that if a detainee alleges, by making a claim, that he has been subjected to any form of treatment in violation of the Conventio, Article 3, by the police or other State services, that norm, viewed in conjunction with the common duty of all States, pursuant to Article 1, “to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention”, requires, according to its meaning, that some form of formal enquiry be undertaken.”
This investigation – such as that required by the Article 2 – should effectively examine, identify and punish those who were responsible. If it were not, the general legal ban on torture and inhuman or degrading treatment, despite its substantial value, would be ineffective in practice, and in some cases the State officials might disregard it, in a quasi-unpunitive manner, in favour of those whose rights are under their control. – https://hudoc.echr.coe.int/?i=001-58758
As indicated above, he has been prosecuted more than once. In the sentence, the Court pointed out the fact that after his release in 2021, Yahyaev still had an unsettled criminal record, thus causing a particularly dangerous recidivism. Therefore, the Court violated the presumption of innocence in respect of the defendant. Both Article 21 of the AR CPC and Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms enshrine that principle.
The violation of this fundamental principle is the fact that doubts that could not have been resolved by the relevant legal procedure in proving the charge have not been resolved in favour of the accused. Moreover, any doubts not eliminated by the application of the criminal law and criminal procedural law have not been resolved in his favour.
According to the Article 21.3 of the Code of Criminal Procedure of the Azerbaijan Republic, the accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defence of the suspect or the accused.
Thus, the judgment of the European Court of Justice in the case of Minelli v. Switzerland dated 25 March 1983, said,
“The presumption of innocence enshrined in paragraph 2 of Article 6 (art. 6-2) is one of the elements of the fair criminal trial that is required by paragraph 1 (art. 6-1) This principal is violated if, without the accused’s having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty.”
The guilt of the accused was not proved in the course the trial, as the investigating authority submitted evidence to the court that could not be considered sufficient for a conviction. The evidence consisted of formal forensic examinations, and the testimonies of three police officers who had a direct interest in the case outcome. It should be also noted that the accused’s testimony, his reasoning and the defence’s arguments, the Court either did not take into account or did not give the correct legal assessment.
Thus, the Article 138.1 of the Code of Criminal Procedure of the Azerbaijan Republic states, that 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.
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 Court verdict in the case of Agaali Yahyaev was neither lawful nor motivated as stated in the Article 349.3 of the Code of Criminal Procedure of the Azerbaijan Republic. According to the Article 349.5 of the Code of Criminal Procedure of the Azerbaijan Republic, in the following cases the court judgment shall be considered well-founded:
- if the conclusions at which the court arrives are based only on the evidence examined during the court’s investigation of the case;
- if the evidence is sufficient to assess the charge;
- if the facts established by the court are consistent with the evidence investigated.
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.
All of the above terms of conviction were violated by the Court. Therefore, the violation of the above-mentioned norms of substantive and procedural law led to the violation of the fundamental rights of Agaali Yahyaev, e.g. the right to liberty and personal inviolability, the right to a fair trial, the right to the prohibition of torture and ill-treatment, the right to defence and presumption of innocence.