Baku City Nizami District Court found Fatima Movlamova guilty

The analysis of violation of the Law during Fatima Movlamova’s

judicial proceedings

Baku City Nizami District Court
Case #3 (007)-28/2019
January 4, 2019
Judge: Babek Qasimov
A person against whom a protocol on an administrative violation was drawn up: Fatima Movlamova.
A person who drew up a protocol on an administrative violation: district police officer of Baku City Nizami District Police Department #24- Ilham Mamedov
Defender: Ismail Abishev 


On December 26, 2018, new charge against imprisoned blogger Mehman Huseynov was brought. He was accused in committing crime under Article 317.2 (threat on application of violence concerning employees of criminal – executive establishments or investigator isolators, and also concerning condemned with a purpose to prevent his correction or from revenge for execution of public duties by him with application of violence not dangerous to life or health) of the Criminal Code of AR. Lieutenant Ali Abdalov testified against M. Huseynov.
M. Huseynov was already convicted on the basis of the complaint lodged by the Head of Baku City Nasimi District Police Department Musa Musayev, in the course of the private prosecution. On March 3, 2017, Baku City Surakhani District Court found blogger guilty in slander and sentenced him to 2 years in prison. M. Huseynov was taken into custody inside court.
On December 26, 2018, M. Huseynov, who is serving his sentence at Prison #14, started dry hunger -strike to protest new charge.  He developed problems with his health very soon, and after 10 days, he started drinking only milk and other watery dairy products.
The peaceful demonstration to support Mehman Huseynov and to demand the release of all political prisoners -was organized near Neftchilar metro station, in Baku. The participants of a peaceful demonstration, in majority, were women, who were holding the portraits of M. Huseynov and other political prisoners. Several minutes after, police officers brutally intervened, and started dispersing demonstrators. Almost everyone was forced into police cars and taken to police department.
According to the detainees, they were ill-treated by the police officers, on the way to the police department, who used physical force against them and insulted them.  At the police department, the protocols on an administrative violations were drawn up against detainees. A protocol on an administrative violation was drawn up towards Fatima Movlamova, in which, it was indicated that she participated in an unauthorized demonstration, and in such way, violated the Law of the AR “On Freedom of Assembly”.
Then, the detainees were brought to Baku City Nizami District Court. Fatima Movlamova was accused in committing administrative violation under Article 513.2 (participation in unauthorized demonstrations, rallies) of the Code on Administrative Violations  of Azerbaijan Republic. Baku City Nizami District Court found Fatima Movlamova guilty and convicted to fine for amount of 300 manat.
Commentary by an expert lawyer:

The court decision is unlawful and groundless.  Freedom of assembly is the constitutional right of citizens of Azerbaijan. As prescribed by Article 49 (1) of the Constitution of AR:  “Everyone has the right for meetings”.
The right to assemble peacefully is an essential condition for the exercise of other human rights such as the freedom of expression. As a true foundation of democracy, the right to assemble is guaranteed by major human rights treaties and by a commitment made by OSCE participating States in 1990, in Copenhagen. Note that only  peaceful assemblies are protected.
In international practice, there are several principles on freedom of assembly: the presumption in favor of holding assemblies, the state’s duty to protect peaceful assembly, legality, proportionality, good administration, and non-discrimination. https://www.osce.org/ru/odihr/24524?download=true
However, Law of AR, “On Freedom of Assembly” not only contradicts the Constitution of AR, but  it also contradicts the European Convention for the Protection of Human Rights and Fundamental Freedoms.
It is the responsibility of the state to put in place adequate mechanisms and procedures to ensure that the freedom of assembly is enjoyed in practice and is not subject to unduly bureaucratic regulation. However, the application procedure, provided by the Law “On Freedom of Assembly” of the AR, for permission on holding rallies, demonstrations, and etc., is very complicated, lengthy  and bureaucratic. 
Any restrictions imposed must have a formal basis in law. The law itself must be compatible with international human rights law, and it must be sufficiently precise to enable an individual to assess whether or not his or her conduct would be in breach of the law, and what the consequences of such breaches would likely be. The  Law “On Freedom of Assembly” of the AR   completely contradicts international norms and standards.  In addition, the law is not written clearly and is contradicting. It is not accessible to the understanding of a general public.
Any restrictions imposed on freedom of assembly must be proportional. The dispersal of assemblies may only be a measure of last resort. Police officers in Azerbaijan use last resort measure to disperse peaceful assemblies: inadequate physical force towards demonstrators, special means, insults. The demonstration in support of Mehman Huseynov was no exception.  Police actions while brutally dispersing this peaceful demonstration was not any different from their actions during other demonstrations.
General public should be aware of what regulatory body is responsible for the decision makings in regards of regulation of the peaceful assemblies, and this should be clearly secured by law. It is not stated clearly in Azerbaijan legislation, what exact regulatory body participates in decision makings on holding assemblies.
In regulating freedom of assembly, the relevant authorities must not discriminate against any individual or group on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.
However, since 2003, all peaceful demonstrations in Azerbaijan, which were held with the aim to criticize the policy of government, were brutally dispersed by the police with application of force. 
Legitimate grounds for restriction on freedom of assembly are prescribed in international law on human rights.
Article 11 (1) of European Convention for the Protection of Human Rights and Fundamental Freedoms  ensures everyone’s right to freedom of assembly. Item 2 of the article 11 of European Convention consists of the list of restrictions, under which this right may be restricted. This list of restrictions is final and clear and may not be interpreted otherwise. The restrictions  are  as following: · if these restrictionsare prescribed by law, · are necessary in a democratic society, · are in the interest of national security or public safety, · for the prevention of disorder or crime, · for the protection of the rights and freedoms of others
According to Article 7 of the Law of AR “On Freedom of Assembly”, no restrictions shall be placed on the exercise of the right to freedom of assembly other than: 1. for protection of public interest and interests of national security;2. for the prevention of public disorder;3. for the prevention of disorders and crimes;4. for the protection of health;5. for the protection of norms of conduct and spirituality;6. for the protections of the rights and freedoms of others.
Article 8 of the Law of AR “On Freedom of Assembly”lists the circumstances, when the assemblies may be prohibited or suspended: – Assemblies accompanied by calls to discrimination, hostility, violence, propagandizing national, racial or religious discord shall be prohibited. – Assemblies propagandizing war shall be prohibited.– Also holding peaceful assembly with political goals shall be prohibited in the cases prescribed by law. Demonstrations must be held in a visual and audible range, to which given demonstration is addressed. The demonstration with a demand to release Mehman Huseynov was held at the location, close-by to a place where Lieutenant Ali Abdalov lives. The participants of the demonstration have not violated public order, did not cause any damage, did not disturb the movement of the cars and people. They had portraits of Mehman Huseynov and other political prisoners in their hands.
Even if the participants of the demonstration did not refer to a regulatory body with a notification of holding the demonstration, the authorities should still protect and facilitate any spontaneous assembly so long as it is peaceful in nature. Besides national legislation and European Convention for the Protection of Human Rights and Fundamental Freedoms, freedom of assembly is also secured by Article 20 (1) of Universal Declaration of Human Rights, which had its 70th anniversary on December 2018, and also Article 21 of  International Covenant on Civil and Political Rights

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The Baku City Sabail District Court chose preventive measure against Abulfaz Sadiqbeyli

 

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The Baku City Sabail District Court sentenced Rza Safarsoy to 2 years in prison

The analysis of violation of the law during Rza Safarsoy’s judicial proceedings

Baku City Sabail District Court

Criminal case № 1(009)-199/2018
November 7, 2018

Judge: Anar Tanriverdiyev
Accused: Rza Safarsoy

Defenders: Fariz Namazly, Sahib Guliyev

Prosecutor: Jeyhun Mirzoyev

Rza Safarsoy is the Chairman of the Opposition Party Alov (Fire), the veteran of Karabakh war, and person with the disability of 2nd category.

At the night on July 3rd, 2018 there was no electricity almost all over Azerbaijan. In this connection, Rza Safarsoy spoke with sharp criticism, accusations towards authorities on his Facebook page.

On July 3, 2018 there was an assassination attempt on the Chief of the Executive Power of Ganja city Elmar Valiyev, who is known for his severity and violation of rights of the residents of Ganja. Yunis Safarov who shot E. Valiyev was arrested at the crime scene and subjected to severe tortures at the Police Department. Photos of the beaten and lying in the blood Yunis Safarov were posted at social networks. Rza Safarsoy condemned the tortures of Yunis Safarov and criticized the policy of the authorities at social networks.
Rza Safarsoy was writing on his Facebook page that the authorities, which are not able to control the situation in the country, and are tolerating such crimes, must resign and pass the power to the provisional government; and they should stand before the court themselves.
On June 9, 2018 Rza Safarov was arrested on charges of committing crimes under Articles 281.1 (Public appeals to violent capture of authority, violent deduction of authority or violent change constitutional grounds or infringement of territorial integrity of the Azerbaijan Republic) and 214-2 (Public calls for terrorism) of the Criminal Code of the Azerbaijan Republic. The investigation drew attention to the following statements of R. Safarsoy at social networks: “My Turkic people, Wake up!”, “Support Yunis Safarov”, “Rise, Azerbaijan!”, “Don’t be silent this time, but support Yunis”.

During the trial, R. Safarsoy testified that he was always the defender of the country, he participated in Karabakh war, he could not remain indifferent to the fate of Azerbaijan. Rza Safarsoy indicated that, by publishing given statements, he did not mean to call for the violent actions against anyone. His words carried symbolic character. However, he, as the majority of the residents of Ganja city, did not like the Chief of the Executive Power of Ganja Elmar Valiyev, as this official tormented the residents of Ganja, and treated his people with the disparage and humiliated them. R. Safarsoy was not able to bear this. But despite of anything, there was no direct intent in his publications.
On November 7, 2018, Baku City Sabail District Court found Rza Safarsoy guilty of the charges and sentenced him to 2 years in prison.

Commentary by an expert lawyer:

The court decision is unlawful and groundless. The call for the violent actions must foresee the direct intention. This means that the person realises the nature and focus of his public calls for violence and deliberately acts in such way. The compulsory requirement of the calls is its publicity, which suggests that the calls are addressed to wide range of people. The most typical examples of publicity are speeches at the meetings, pickets, and etc. In each concrete case, the issue of the publicity of the calls is solved by considering all the circumstances of the case. It should also be established that public apprehended the calls. During the preliminary and judicial investigation, it was not established how R. Safarsoy’s calls were apprehended by public, and if there was a serious reaction to them.
At the court hearing, persons who were not acquainted personally with R. Safarsoy and only read his statements at social networks were questioned as the witnesses. One of the witnesses Xeyraddin Aslanov stated that he does not consider R. Safarov’s publications to be rightful, he believes that they are directed against government. It is important to indicate here, that according to the Article 95 of the Code of Criminal Procedure of AR, a witness must inform about any known circumstances that are carrying importance for the case. As can be seen from the testimonies of the witness, he tries to express his opinion towards the publications of R. Safarov, which is not acceptable.
Another evidence that is accepted by the court as the conclusive proof of the guilt of the accused, is the conclusion of the forensic linguistic examination. In the conclusion of the examination from July 19, 2018, the expert states that there are elements in Rza Safarsoy’s publications that contain the calls for violent overthrow of the constitutional system, including the calls to disruption of public order, spreading panic among the population, the death of people with the aim to influence on the decisions of the governmental bodies and etc.
The expert, who is in fact, either linguist or philologist, gives the legal assessment of the publications of R. Safarsoy and evaluates his actions as the call for terrorism. This oversteps the limits of the mandate of an expert. According to Article 97.1 of the Code of Criminal Procedure of the Azerbaijan Republic, an expert shall be a person who is competent to give an opinion based on his special knowledge of science, technology, the arts and other professional fields, who has no personal interest in the proceedings and is appointed by the prosecuting authority or, at its request, by the head of his professional association, with his consent, for the examination of the case file.
The court accepted the expert’s opinion as the ground, without establishing, that the expert went beyond the limits of his power as indicated in the Code of Criminal Procedure of the AR. According to Article 127.3 of the Code of Criminal Procedure of the Azerbaijan Republic, the expert’s opinion shall not be binding on the preliminary investigator, investigator, prosecutor or court; it shall be checked by the prosecuting authority in the same way as any other evidence and evaluated in the light of all the relevant facts. If the opinion is not approved, a reasoned decision to that effect shall be given.
The evidences of the prosecution end here. In this case, there was not enough sufficient evidences to prove the guilt of the accused. According to the Article 146.1 of the Code of Criminal Procedure of the Azerbaijan Republic, the notion that sufficient evidence has been collected for the prosecution means that the amount of evidence on the facts to be determined is such as to allow a reliable and final conclusion to be reached on the case.
Another important aspect in this case was the court’s decision to leave the previously chosen by the investigative body preventive measure in form of arrest without change. In the verdict itself, there are not any grounds that explain the necessity to keep the accused behind the bars. It is also stated in the verdict, that the accused is the person with disability of the 2nd category, he has two young children, he participated in Karabakh war and he has serious health problems, especially with heart, and there are medical documents proving this in the case files. However, despite of this, the court kept the sharp preventive measure against Rza Safarsoy in power. If earlier, the investigation body applied for his arrest, and the court issued the order for the arrest before the trial, then after the final verdict there was no necessity to keep R. Safarsoy behind bars. Remaining in prison, causes R. Safarsoy additional sufferings, which is prohibited by Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The court verdict towards Rza Safarsoy violated norms of both national and international law.

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The Baku Court of Appeal keeps Fuad Ahmadli in custody

The Analysis of violation of law during Fuad Ahmadli’s judicialproceeding

The Baku Court of Appeal, Criminal Chamber

Criminal case: №7 (103)-1655/2018
October 04, 2018

Presiding Judge: Sahibkhan Mirzoyev
Judges: Faiq Gasymov, Elshad Shamayev
Accused: Fuad Ahmadli

Defender: Muhammad Mammadov

Representative of the penal institution No. 16: Emin Abdurahmanov

Prosecutor: Anar Mammadov

Fuad Ahmadli – the chairman of the Khatai branch of the Youth Committee of opposition Popular Front Party. On December 25, 2015, F. Ahmedli was detained by the police officers at his workplace. On the same day, at 8 p.m., Baku City Khatai District Court made a decision to arrest F. Ahmedli for the period of 10 days. The Article 310.1 (Persistent insubordination of legal request of policeman or military man at execution by them of duties on protection of public order) of the Code of the Azerbaijan Republic on Administrative violations. According to F. Ahmedli, on December 23, 2015, he wrote status, at social network, where he criticised the government and he is punished for this status.

On August 18, 2016, Fuad Ahmedli was detained at his workplace at Azerfon LLC again, where he worked as operator. The search at his home already started.  According to investigation, during the search, the books of Fatullah Gulen, CDs, religious literature, including the documents which have affiliation with the persons who are referred as “Servants of Imams” (“Hizmət imamları”) were found.  The defence claims that everything that was seized from Ahmedli apartment, was planted inside the apartment by the officers of the investigation body. Fuad Ahmedli was accused in committing crimes under the article 302 (Infringement of the legislation on operative – search activity), and Article 308(abusing official powers) of the Criminal Code of Azerbaijan Republic. After his arrest, State Security Service of the Republic of Azerbaijan and Prosecution General’s office issued the joint statement. It stated that F. Ahmedli, who worked as operator at call centre of mobile company “Azerfon” LLC, was transferring personal data and location of certain persons to the third parties.

At the court, Fuad Ahmedli pleaded not guilty, called his arrest politically motivated, since he is one of the well known activists of the opposition party, he always openly expresses his civic stand, and he sharply criticises the policy of authorities.

On June 16, 2017, Baku City Court on Grave Crimes reclassified Article 308.2 (Abusing official powers entailed heavy consequences) to Article 308.1 (Abusing official powers without aggravating circumstances) of the Criminal Code of Azerbaijan Republic and sentenced Fuad Ahmedli to 4 years in prison.
The term of serving sentence counts from August 18, 2016, since the day of detention of F. Ahmedli and ends on August 18, 2020. Thus, by August 2018, Fuad Ahmedli served more than 1/3 of his term. Based on the law, Fuad Ahmedli appealed to Baku City Sabayil District Court with the request to be transferred from the penal colony #16 to settlement colony. On July 19, 2018 Baku City Surakhany District Court passed the decision not to satisfy F. Ahmedli application. F. Ahmedli disagreed with the decision, and filed the appeal.
On October 4, 2018, Collegium on Criminal Cases at Baku Court of Appeal made the decision not to satisfy F. Ahmedli appeal and kept the decision of Baku City Surakhany District Court from July 19, 2018 in power.

Commentary by an expert lawyer:
The court decision is unlawful and groundless. The decision of the Court of Appeal is by no means different from the decision of the court of the first instance. It is just formal, and does not reflect the facts of the case. The same arguments are present in the decision of the Court of Appeal, that were indicated in the characterisation provided by the penal colony, in particular,  that Fuad Ahmedli does not participate in the social work, does not regret of the committed crime, and acts towards other prisoners insincerely.

Regarding the first argument, according to Paragraph 206 of the Internal Regulations of the penal facility setting, each prisoner must engage in labor activity at locations determined by the governing body of the facility. The prison administration must attract prisoners to useful work, by taking into account the age, the ability to work, the health condition and the profession of each prisoner. Prisoners are usually enlisted to work under supervision guard, and in isolation in established order, at production locations inside and outside the facility.Prisoners may occupy themselves with individual work with the permission of the governing body of the facility. As can be seen from above mentioned norms, the governing body of the facility attracts prisoners to work in accordance with their individual characteristics. It should be indicated, that the representative of the facility whereat F. Ahmedli serves his sentence, was claiming that F. Ahmedli does not participate in the social work. In response, F. Ahmedli said that he started working since he was 14 years old, that he contains his family, and prior to arrest he worked as operator at the company “Nar Mobile”. Besides, the governing body of the facility, did not enlist him to the work due to his age, health and abilities. F. Ahmedli has higher degree, he knows Russian and English languages fluently, but at the same time he has some problems with his health.

The European Prison Rules also enshrine the principle, indicated in the Internal Regulations of the Prison Setting. According to the paragraph 26.1 of the European Prison Rules, in the detention facilities, prison work shall be approached as a positive element of the prison regime and shall never be used as a punishment. According to paragraph 26.5 work that encompasses vocational training shall be provided for prisoners also to benefit from it and especially for young prisoners.

As mentioned above, in F. Ahmedli case, the governing body of the penal colony #16 used his attitude towards the work, as the ground to reject to satisfy of  his application.

The next ground for rejection was that he did not regret of his deed. In this regards, it should be indicated that during all the stages of the legal investigation F. Ahmedli did not plead guilty to the charges and called his arrest politically motivated. Therefore, to expect from him remorse is at least illogical. Besides, according to the Article 10 (1) of the European Convention for the protection of human rights and fundamental freedoms, everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Thus, he has the right to hold his own opinion and not to change it. In this case, the requirement of the governing body of the penal colony #16 is unlawful. Fuad Ahmedli was deprived from liberty by court sentence, but not from his right to hold his own opinion.
The court decree also indicates that Ahmedli does not acts towards other prisoners sincerely. This argument is not considered by any regulatory enactment or law. Therefore, the claim is groundless and unlawful.
Thus, the norms of the national and international law are violated in the decision of the Collegium on criminal cases of Baku City Court of Appeal

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The Court chose preventive measure against Azad Hasanov

The analysis of violation of the law during Azad Hasanov’s judicial proceedings

The Baku City Khatai District Court

Criminal case №4 (011)-489/18

October 12, 2018
Judge: Ibrahim Ibrahimli

Accused: Azad Hasanov

Defender: Bilal Bagirov

Prosecutor of Baku City Prosecutor’s office: Vugar Alakbarov
Investigator of Baku City Police Department: Vusal Maharramov

Prosecutor who filed the application: Mehman Gojayev

On October 11, 2018, the Chairman of the Surakhany branch of Musavat party Azad Hasanov was detained. Since 2003, Azad Hasanov is the member of the opposition party Musavat. In 2014, he emigrated with his family to Lithuania, where he received political asylum. On October 10, 2018 he arrived to Baku. Hasanov’s visit to Baku was related to the serious state of his father’s health. According to Azad Hasanov’s wife Tarana Hasanova, upon his arrival at Baku airport, he did not face with any obstacles. On the day of his arrival, in the afternoon, he saw his father, and then together with his brother he went to the mosque to pray. Hyundai car with plate number 662 stopped near the mosque, and several men in civil clothes stepped out from the car, and grabbed A. Hasanov and pushed him into the car .
Azad Hasanov’s brother, who was near him at that moment, he tried to help him, but men in civil clothes pushed him away. They told him, that they were from the police. His brother says that the men in civil clothes did not show any documents. Then, he called to 102 service (Ministry of Internal Affairs of Azerbaijan Republic) and reported about the detention of his brother. During several days, neither his family nor the lawyers had any information about the whereabouts of Azad Hasanov.
Azad Hasanov was charged under article 234.4.3 (Manufacture, acquisition, storage, shipment, transportation or sale of precursors for the purpose of illicit manufacture and processing of narcotic drugs or psychotropic substances on a large scale) of the Criminal Code of Azerbaijan Republic.
On October 12, 2018, Baku City Khatai District Court chose preventive measure against Azad Hasanov in form of arrest for the period of 4 months.
Commentary by an expert lawyer:
The court decision is unlawful and groundless. When Azad Hasanov was detained, he was not informed about his rights and obligations, the Article 153 of the Criminal Procedure Code of Azerbaijan Republic “Safeguarding of detainees’ rights”. According to the Article 153.2 of the Code of Criminal Procedure, “To secure the rights of the detainee, the officials of the prosecuting authority and those in charge of the temporary detention facility shall: 153.2.1. inform the detainee immediately after detaining him of the grounds for detention, and explain to him his right not to testify against himself and his close relatives as well as his right to the assistance of defence counsel;153.2.4. secure the right of the person to inform others of his detention immediately after detention (the authority in charge of the temporary detention facility, on his own initiative, shall inform the family members of any detainees who are elderly, under age or unable to do so themselves because of their mental state)”. According to the Article 28 of the Constitution of AR, (II) the right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment”.
The right to liberty is also guaranteed by article 5 (1) of the European Convention for the protection of human rights and fundamental freedoms. According to this article, “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
In the court decision on preventive measure, it is indicated that 3 packages with narcotic – tiryaki weighting in total 3,508 grams were found inside the pocket of Azad Hasanov’s trousers.
Besides, in the court decision, it is stated that one of the reasons of choosing preventive measure is the likelihood to abscond from the investigation and the court. As seen from the above mentioned articles, for the arrest, there should be “enough sufficient grounds to believe” that the person might abscond from the investigation and the court. The give decision does not specify any reasons behind the arrest. It fully consists of the formulaic expressions and extracts from the law. It is not different from any other decisions on arrest, only the date of the detention and the details of the detainee are changed.
In the decision of the Plenum of Azerbaijan Republic Supreme Court “On the practice of the courts on applications to apply arrest as a restrictive measure against accused” from November 03, 2009 indicates that when ordering restrictive measure of arrest, the courts shall not confine themselves to formally mentioning the procedural grounds specified in the Article 155 of the Criminal Procedure Code of Azerbaijan Republic. They shall specifically examine and confirm each ground in respect to accused and whether the evidential materials in the criminal case support them”.
In indicated decision of the Plenum of the Supreme Court of Azerbaijan Republic, the courts shall primarily examine the possibilities of ordering other restrictive measures as specified by the Article 154 of the Criminal Procedure Code of Azerbaijan Republic, and when the submission is granted they shall justify why it is not possible to apply another restrictive measure but arrest.”
In the decision of the Plenum of the Constitutional Court of Azerbaijan Republic on ‘Interpretation of Article 157.5 of the Criminal Procedure Code of the Republic of Azerbaijan” from July 9, 2010, it is indicated  that everyone has right to liberty and security of person enshrined in International instruments on human rights and liberty including Article 3 of the Universal Declaration of Human Rights, Article 9 of the International Covenant on Civil and Political Rights, Article 5 of European Convention for the Protection of Human Rights and Fundamental Freedoms.
This right must be protected. This means that everyone’s right to liberty, except the cases specified in article 5, paragraph 1, of the European Convention for the protection of human rights and fundamental freedoms, must not be restricted. The list of exceptions indicated in article 5, paragraph 1, of the European Convention is restrictive and only the narrow interpretation of these restrictions is consistent with the purpose of indicated provisions.
In the decision of the Plenum of the Supreme Court of Azerbaijan Republic “On application of the precedents of the European Court of Human Rights and Fundamental freedoms” from March 30, 2009 states: in the case of the presence of the guaranty that the person will appear at the court, it is recommended to the court not to choose the preventive measure in form of arrest; to consider the preventive measure in form of arrest as a last resort measure;  while choosing the preventive measure in form of arrest not to limit only to formal citation of the grounds provided by law, but to examine and confirm each ground in respect to the accused and whether the evidential materials in the case support them;
Numerous judicial precedents of the European Court of human rights (ECHR), in particular the case of Kurt V. Turkey from May 25, 1998, speak about the importance of the right to freedom. In Paragraph 122 of the ECHR decision in Kurt V. Turkey States: “The Court notes at the outset the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is precisely for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness.”http://echr.ru/documents/doc/2461485/2461485.htmhttps://www.legal-tools.org/doc/4fbf92/pdf/
As mentioned above, the decision on Azad Hasanov’s case points out on the likelihood of accused to abscond from the investigation and the court, but does not provide any specific supporting grounds. To ensure that accused won’t be able to cross the border, it is enough to take his passport away from him.
The ECHR decision in the case of Smirnov against Russia stated: “The danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre- trial detention. In this context regard must be had in particular to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts(paragraph 60 of the Smirnov V. Russia decision of 24 July 2003) . The issue of whether a period of detention is reasonable cannot be assessed in abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features.(paragraph 61 of the judgment in Smirnov V. Russia of 24 July 2003). http://echr.ru/documents/doc/new/004.htmhttp://sutyajnik.ru/rus/echr/judgments/smirnova_eng.htm The decision of Baku City Khatai District Court against Azad Hasanov on application of preventive measure in form of arrest for the period of 4 months, is unlawful and groundless, since it violated the norms of criminal procedure legislation, a number of by-laws, norms of international law, including the precedents of the European Court of Human Rights that contain mandatory recommendations for the participating countries of Council of Europe.

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Baku City Court on Grave Crimes sentenced Emin Sagiyev to 7 years in prison

The analysis of violation of the law during Emin Sagiyev’s judicial proceedings

The Baku City Court on Grave Crimes

Criminal case №1 (101)-813/2018

October 02, 2018

Presiding judge: Eldar Ismayilov

Judges: Samir Aliyev, Sabuhi Huseynov

Accused: Emin Sagiyev

Defenders: Bahruz Bayramov, Altay Muradov

Prosecutor: Vugar Aliyev

On November 14, 2017, Emin Sagiyev – the brother-in-law of political emigrant Turkel Alisoy, was detained by the employees of the Main Department for Combating Organised Crime of the Ministry of Internal Affairs of the Republic of Azerbaijan. The preventive measure in form of arrest for the period of 6 months was chosen against him. On March 15, 2018, earlier chosen preventive measure against Sagiyev was extended for 2 months and later was again extended. 

After the end of the preliminary investigation, the criminal case was transferred to Baku Court on Grave Crimes. A preparatory meeting was held on August 07, 2018.

From the testimonies of Emin Sagiyev during the court proceedings: “On November 14, 2017, around 11 o’clock, I went together with my father and friend to the service centre at Bakikhanov district of Baku City.  On our way, my dad left us and we continued together with a friend our way to the service. At the service centre, my friend Ali Aliyev met with the repairman. While he was talking to him, I stood near the bus. At this moment, suddenly, police approached to me and forced me inside the black car (Hyundai), and drove me to the Police Department.

At that moment, I did not know who these people were. On our way, they handcuffed me and ordered me not to raise my head. The policeman, who sat at my right, hit me several times on my head. Later, at police department, I found out that his name was Shahlar. When I was brought to the Police Department, policeman whose name was Rashad put his hand inside my pocket and  pulled 10 packages out from it. He said that it was heroin and that it belonged to me. I objected and said that I have two little kids, and asked them not to do this. Rashad told me that if I don’t admit that the drugs belong to me, they would plant weapon and drugs into my house. Rashad warned me to behave myself well, otherwise he has his own people at Kyurdakhani (the settlement, where Baku city Pretrial Detention #1 is located, and whereat detainees are placed) who can harm me while I am there. While I was at Police Department, someone hit me several times from behind, however I was not able to see person’s face. I was scared of Shahlar’s and Rashad’s threats, and signed testimony that the drugs belonged to me.

Emin Sagiyev also stated that he worked in the security service at one of the shopping centres in Baku, that he was doing sports, was married and had two young children. In the court, he said that the response of the police to his question about the reasons behind his arrest, was that he was punished because of his brother-in-law, political emigrant Turkel Alisoy. Turkel Alisoy is the member of opposition party Popular Front Party of AR. In Azerbaijan, Turkel Alisoy was repeatedly attracted to administrative arrests and punishments for his political activity. Since 2014, he and his wife live in Netherlands, where he continues to criticise Ilham Aliyev’s policy, where he works as presenter of the program “There are news” on the independent Internet Channel Turan TV.

On February 5, 2018, Emin Sagiyev told his lawyer Altay Muradov about the beatings, to which police officers subjected him, and testified about this during the investigation. Further, he testified about the beatings to the employee of the Prosecutor’s Office.

During the sitting of the court, employees of the Main Department for Combating Organised Crime of the Ministry of Internal Affairs of the Republic of Azerbaijan Rashad Verdiyev and the head of the investigation group Shahlar Jafarov, and father of accused Shahlar Sagiyev were questioned as witnesses. 

On October 2, 2018, Baku City Court on Grave Crimes found Emin Sagiyev guilty of committing crime under Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances, committed on preliminary arrangement by group of persons or organised group in large amount) of the Criminal Code of the Azerbaijan Republic and sentenced him to 7 years in prison.

Commentary by an expert lawyer:

The court decision is unlawful and groundless. By speaking about legal proceedings, we must remember about the main purposes of criminal proceedings and towards what it is directed. The purposes of the criminal proceedings  are to ensure peace and security of the society, protection of human and civil rights and freedoms, property, economic activity, public order and public security, the environment, the constitutional system of AR from the criminal infringements, as well as prevention of crimes. 

The Code of Criminal Procedure of Azerbaijan Republic also aims to “ensure a defence against restrictions on human and civil rights and liberties” (Article 9.1.2).

However, law enforcement agencies in Azerbaijan do not operate in accordance with the provisions of the Criminal and Code on Criminal Procedure of the Republic of Azerbaijan.  This is also proven by the case of Emin Sagiyev.

During the preliminary and judicial investigation E. Sagiyev stated that he was detained with numerous violations of criminal procedure law. His detailed description of beatings by the employees of the Main Department for Combating Organised Crime of the Ministry of Internal Affairs of the Republic of Azerbaijan do not leave any doubts in the honesty of his words. During his testimonies at the court, E. Sagiyev uncovered the real reasons behind his arrest, especially about being relative of Turkel Alisoy,  who as a journalist of the independent Internet channel Turan TV – harshly criticises the policy of the Azerbaijani authorities and in particular Ilham Aliyev’s policy.

The arrests and convictions for the long term sentences on bogus charges of the relatives of the regime critics who live in political emigration are widely used, especially during the last 5 years, by the ruling regime.  Moreover, the number of relatives of the critics of the regime who live in exile  were forced to make public statements via Media and on State TV, where they renounced themselves from their relatives (brothers, sons) in order to protect themselves from the arbitrariness of law enforcement agencies. 

Emin Sagiyev explained to the court the real reasons behind his arrest. However, the court which was supposed to investigate all the arguments, did not consider these testimonies and even regarded them as “being of protective nature”. During sentencing Court ignored the Article 126.6 of the Code of Criminal Procedure of Azerbaijan Republic, according to which “The accused person’s confession of guilt may be accepted as grounds for the charge against him only if confirmed by the contents of all the evidence on the case”.

The verdict of the court was only based on the confession of the accused, the detection of drug packages on him, and the testimonies of policemen, which could not be regarded as irrefutable.

Emin Sagiyev’s testimonies on beatings did not become the basis for the investigation of those facts, that he was testifying about. There is a violation of the Article 12 of the Code of Criminal Procedure of Azerbaijan Republic. According to the Article 12.5: “It shall be prohibited to use methods and means that may threaten life and health or the environment during criminal prosecution”. Another Article 12.6 of the Code of Criminal Procedure of Azerbaijan Republic states: “The judicial authorities shall not conceal facts that threaten life, health or the environment”.

The court took  E. Sagiyev’s testimonies about that he was allegedly selling drugs, which he gave under pressure during the preliminary investigation – as the basis. The court clearly violated  Article 25 of the Code of Criminal Procedure of Azerbaijan Republic on the independence of judges. According to Article 25.2 of the Code of Criminal Procedure “Judges and jurors shall not be bound by the conclusions reached the prosecuting authorities during the investigation». The Article 25.3 of the Code of Criminal Procedure states: “Judges and jurors shall decide criminal cases and other prosecution matters in accordance with their conscience and legal opinions, on the basis of their examination of the evidence adduced by the parties to the criminal proceedings”. The Court had to examine Emin Sagiyev’s testimonies during the trial proceedings. The Court should’ve not referred to Emin Sagiyev’s testimonies that were given during preliminary investigation. The Article 125.2.2 of the Code of Criminal Procedure of Azerbaijan Republic states that “Information, documents and other items shall not be accepted as evidence in a criminal case if they are obtained in the following circumstances through the use of violence, threats, deceit, torture or other cruel, inhuman or degrading acts”.

The court did not examine discrepancies between Emin Sagiyev’s testimonies during the preliminary and judicial investigations. Besides, the court did not interpret them in favour of the accused, as stated in the Article 145.3 of the Code of Criminal Procedure: “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”. Also, under Article 63 (II) of the Constitution of the Azerbaijan Republic, if there is a grounds of suspicion of the person’s guilt, then the person must not be considered guilty. It is called the presumption of innocence, which is enshrined in Article 63 of the Constitution and in Article 6 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

E. Sagiyev’s guilt was not proved at the court, because investigation was not able to provide enough sufficient evidences to the court. According to the Article 146.1 of the Code of Criminal Procedure of Azerbaijan Republic, “The notion that sufficient evidence has been collected for the prosecution means that the amount of evidence on the facts to be determined is such as to allow a reliable and final conclusion to be reached on the case”.

E. Sagiyev’s detention, arrest and further extension of his term of the preventive measure are the violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to the Article 5 (1), “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”.

As mentioned above, the law enforcement agencies did not provide the court with the enough sufficient grounds for the arrest of E. Sagiyev.

The beating of Emin Sagiyev during detention, subjecting him to psychological and physical pressures is the violation of the Article 3 of European Convention for the Protection of Human Rights and Fundamental Freedoms, that prohibits tortures, inhuman or degrading treatment or punishment.

Biased and one sided judicial investigation, failure to consider the arguments provided by the defence during the court proceedings, prejudged attitude towards the case, discrepancy of the results of the judicial sitting to factual circumstances of the case, innocence of Sagiyev in trumped up charge are also evidencing of the violation of the Article 6 of European Convention “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”

The purpose of the punishment of Emin Sagiyev was to silence residing in exile political emigrant Turkel Alisoy, who continues being politically active, works as journalist at the independent Internet Channel  Turan TV and who on daily basis unmasks the dictatorial nature of the ruling regime in Azerbaijan.

As can be seen from the analysis of the court proceedings, it was carried out with numerous violations of national and international law, and the sentence was of political nature.

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Yasamal District Court chose against Mammad Ibrahim a preventive measure in form of arrest for the period of 2 months

 

The Analysis of violation of law during Mammad Ibrahim’s judicial proceedings 

 

Baku City Yasamal District Court
Criminal case № 04 (004)-686/2018

September 28, 2018

Judge: Huseyn Safarov

Accused: Mammad Ibrahim

Defender: Ragif Mustafayev

The person who filed application: investigator of the Investigation Department of the Ministry of Justice of AR
Mammad Ibrahim is the advisor to the chairman of the opposition party Popular Front of AR. He is known for his sharp criticism towards Azerbaijan authorities. On September 29, 2015 Mammad Ibrahim was detained on trumped up charge hooliganism.    On March 15, 2016, Baku City Narimanov District Court sentenced Mammad Ibrahim to 3 years in prison under Article 221.2.2 (Hooliganism,committed with resistance to representative of the authority, acting as on protection of a social order or stopping infringement of a social order or with resistance to other person) of the Criminal Code of Azerbaijan Republic.   During Mammad Ibrahim’s detention, his lawyer repeatedly appealed to the court on conditional discharge (early parole), but this appeal was not satisfied. While serving sentence at penal colony # 16, Ibrahim started having serious problems with vision. In summer of 2018, he had operation on his eye in the medical unit by the Ministry of Justice. However, it was not possible to completely solve his problems with vision via above mentioned operation, and M. Ibrahim continues to suffer from the pain in his eyes. 
On 27 September 2018, two days before the termination of his sentence and the release date, he informed his family, that there was a search in his cell, and the knife was found under his pillow. Mammad Ibrahim did not know who planted the knife under his pillow. M. Ibrahim stated that he was not privy to this, and that the knife was intentionally planted to him, so he would not be released. On the same day, the members of M. Ibrahim family and his party colleagues went to the Colony #16, where he was serving his sentence. They demanded to see Mammad Ibrahim. However, police brutally dispersed them. Then M. Ibrahim’s son Turan Ibrahim met with the chief of the colony. He assured Turan Ibrahim that on September 29, in the afternoon, his father will be at home. On September 29, 2018, Turan Ibrahim and his party colleagues went again to the colony. There they found out, that the new criminal case is opened against Mammad Ibrahim, and that he, himself, for the period of the preliminary investigation, is transferred to Baku Pretrial Detention Facility #1.
Application with the request for the arrest was submitted by the Investigator of the Investigation Department by the Ministry of Justice of Azerbaijan Republic to Baku City Yasamal District Court on the grounds of the initiation of the criminal case under Article 317-2.1. (Production, storage, concealment, transportation or usage of the prohibited items by the individuals held in the penal colonies or pretrial detention facilities) of the Criminal Code of Azerbaijan Republic. 
On September 28, 2018, Baku City Yasamal District Court chose against Mammad Ibrahim preventive measure in form of arrest for the period of 2 months.   Commentary by an expert lawyer:   The court decision is unlawful and groundless. According to Article 154.2 of the Criminal Procedure Code of Azerbaijan Republic, preventive measures are:    154.2.1. Arrest; 154.2.2. House arrest; 154.2.3. Bail; 154.2.4. Restraining order; 154.2.5. Personal surety; 154.2.6. Surety offered by an organisation; 154.2.7. Police supervision; 154.2.8. Supervision; 154.2.9. Military observation;154.2.10. Removal from office or position.   As can be seen from this article, the most severe preventive measure is the arrest. The Article 155.2 of the Criminal Procedure Code of Azerbaijan Republic states that in resolving the question of the necessity for a restrictive measure and which of them to apply to the specific suspect or accused, the preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court shall bear in mind:155.2.1. The seriousness and nature of the offence with which the suspect or accused is charged and the conditions in which it was committed;155.2.2. His personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence;155.2.3. Whether he has committed a previous offence, the previous choice of restrictive measure and other significant facts.   While choosing against M. Ibrahim preventive measure in form of arrest, the court did not consider the nature of alleged crime. The fact is that the term of punishment under Article 317-2.1 of the Criminal Code of Azerbaijan Republic is from 2 to 6 months. This means that this type of crime falls under category of crimes that do not carry great social danger. This is stated in the Article 15.2 of the Criminal Code of Azerbaijan Republic: ”Crimes which do not represent big public danger shall be deliberate and careless actions for committing of which by the present Code, admitted punishment, but not connected to imprisonment, and also deliberate and careless actions for committing of which the maximal punishment provided by the present Code, shall not exceed two years of imprisonment”. Reminder: the punishment under Article 317-2.1 of the Criminal Code of Azerbaijan Republic is from 2 to 6 months.
Also according to Article 157.1 of the Criminal Procedure Code of Azerbaijan Republic, “in accordance with the principle of the presumption of innocence, if the connection of the person to the offence committed is not proven, he may not be arrested or unnecessarily detained on remand”. The court did not examine the circumstances that were necessary for M. Ibrahim arrest, did not indicate the reasons, why, in this case, the alternative preventive measures apart from arrest cannot be chosen. The court also did not consider the personality and the state of health of the detainee.
In this case, the court had to apply the alternative preventive measure, not the arrest, for example: either bail or house arrest. Besides, the concrete reasons behind the arrest in the given case must’ve been listed in the ruling. The right to liberty and security of person was violated towards Mammad Ibrahim. This rights is enshrined in the Article 28 paragraph 1 of the Constitution of AR. It states “Everyone has the right for freedom.” This right is also enshrined in Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to Article 5, paragraph 1, of the European Convention, “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law”.   In accordance with paragraph 60 of the decision of the European Court of Human Rights (ECtHR) in the case Smirnova V. Russia from 24 July 2003, “The danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre-trial detention. In this context regard must be had in particular to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts”. Also: Arguments for and against release must not be “general and abstract” (paragraph 63 of the decision). – http://sutyajnik.ru/rus/echr/judgments/smirnova_eng.htm
By arresting Mammad Ibrahim, the court has violated one of the fundamental human rights – the right to liberty, which is provided in the norms of the Constitution of Azerbaijan Republic, Criminal Procedure and Criminal Codes of Azerbaijan Republic, and also in the norms of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 
At the same time, the numerous resolutions of the ECtHR which are mandatory for the member state at Council of Europe and ratifies European Convention for Protection of Human Rights and Fundamental Freedoms were not considered.

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Baku Grave Crimes Court sentenced Orhan Bakhyshly to 6 years in prison

The analysis of violation of the law during Orhan Bakhyshly’s judicial proceedings

The Baku Grave Crimes Court
Criminal case № 1(101)-820/2018
September 18, 2018
Chairman: Mahmud Agalarov
Judges: Eldar Mikayilov, Alovsat Abbasov
Prosecutor: Jeyhun Budagov
Accused: Orhan Bakhyshly
Defender: Elchin Sadigov

Orhan Bakhyshly is a member of the Youth Committee of the Popular Front Party of Azerbaijan (PFPA) and Vice-Chairman of Khatai branch of Youth Committee of PFPA. The chairman of the Khatai branch of the Youth Committee Fuad Ahmedli is currently a political prisoner. (FuadAhmedli was arrested on December 25, 2015. On June 16, 2017, Baku Grave Crimes Court sentenced Fuad Ahmedli to 4 years of imprisonment). Orhan Bakhyshly was politically and publicly active. He often and sharply criticised the policy of the authorities, both at various events and in social networks. He was also responsible for the organisation of various actions of PFPA.
On March 31, 2018, on the eve of the rally organised by the National Council of Democratic Forces, several members of PFPA were brought to administrative responsibility: Abdullah Mahmudov for 30 days (March 26, 2018), Ayaz Qasimov for 15 days (March 29, 2018) and Orhan Bakhyshly for 30 days (March 27, 2018). All the detainees were accused with an offence in accordance with the article 535.1. (insubordination to legal demands of police) of the Code of Administrative Offences of the Azerbaijan Republic. Organisers of the rally, young activists were arrested on the eve of the rally on March 31. 
On May 7, 2018, O. Bakhyshly was again detained by unknown men in civil clothes in the park close by Elmar Akademiyasi metro station and he was brought to the Baku City Yasamal District Police Department. This time the criminal case against Orhan Bakhyshly was opened under the article 234.4.3 (manufacturing, purchase, storage, transfer, transportation or selling drug with a view of illegal manufacturing and processing of narcotics or psychotropic substances in large amount) of the Criminal Code of Azerbaijan Republic.
On May 9, 2018 Baku city Yasamal District Court chose preventive measure against O. Bakhyshly in form of arrest for the period of 4 months.
On August 14, 2018, the trial on case of O. Bakhyshly started. The trial took place at Baku City court on Grave Crimes.
Despite the fact that the trial was open to public and that there were a lot of people who were wiling to support Bakhyshly (party friends, family members, public and political activists, journalists), no one was allowed to the preliminary meeting. The trial officers did not even allow his mother to enter the courtroom. During the preliminary meeting the lawyer submitted several applications: to dismiss the criminal case against O. Bakhyshly; to change the preventive measure to house arrest; to invite additional witnesses for questioning; to release the defendant from the iron cage, whereat he was kept inside the courtroom and to let him sit near his lawyer. All of the applications were rejected by the court. 
The lawyer submitted the documents to court evidencing that the witnesses who were attracted to the case, had criminal records and had participated in capacity of witness in the number of drug related cases (in this particular case, the lawyer indicated that the witnesses cooperate with law enforcement authorities who attract them to such cases, and they testify in accordance with law enforcement authorities).
During the investigation, Orhan Bakhyshly pleaded not guilty, and stated that his arrest is political order, because of his political and social activities. After indictment reading, he protested and refused to testify; he turned his back to panel of judges. Then the court heard the testimony of witnesses, who were police officers, testifying against O. Bakhyshly. 
All trial proceedings were held semi-closed; journalists, public and political activists were not allowed to enter the courtroom.
On September 7, 2018 two police officers – Naib Omarov and Nasimi Ismayilov were questioned at the trial. During questioning, the defence established that Naib Omarov detained another “prisoner of conscience” Bayram Mamedov in 2016. On May 10, 2016, Bayram Mammadov together with his friend Qiyas Ibrahim drew graffiti on the monument of former President Heydar Aliyev. They wrote in Azerbaijan language “Qul bayramınız mübarək” (“Happy Slave Day”). They were detained on the same day under charge of selling drugs in large scale and each of them were sentenced to 10 years in prison. Witnesses stated that there was not any information about the identity of O. Bakhyshly in the operative data. In response, lawyer indicated that there was information on the identity of Bakhyshly in case materials, and operation was carried out without decision of court or investigative body. 
Then, witnesses Mahir Iskandarov and Nijat Narimanov gave their testimonies. During the questioning, the defence stated that on October 31, 2013 Nijat Narimanov was convicted by Baku City Khatai District Court for drug use and that he was released in 2015 in connection with the pardon decree.
On September 13, 2017, the judicial investigation on Bakhyshly case ended. The Public Prosecutor read the indictment and asked court to find O. Bakhyshly guilty and sentence him to 7 years in prison. On September 18, 2018, the defence made his speech at the court. In his speech, defence asked the court acquit his client. 
The trial ended with the last words of Orhan Bakhyshly. He said that the criminal case against him is totally falsified. 
Bakhyshly said that he is happy to be on the same dock, where his party colleagues, well-known journalists and bloggers were at, for their sharp criticism towards the government. He stated that he had to decide between his girlfriend and his political activities, and he chose the latter. He expressed that his choice was rightful, and that he will never refuse from it, and that he is willing to sacrifice not only his freedom, but also his life for the sake of freedom and democracy. 
The panel board left to the retiring room. During announcement of the verdict O. Bakhyshly was handcuffed. On September 18, 2017, Baku Court on Grave Crimes found O. Bakhyshly guilty and sentenced him to 6 years in prison.
Commentary by an expert lawyer:
The court decision is unlawful and groundless. According to article 349.3 of the Code of Criminal Procedure of the Azerbaijan Republic, the court judgment shall be lawful and well-founded. The court judgment shall be considered lawful in the following cases:
· if the conclusions at which the court arrives are based only on the evidence examined during the court’s investigation of the case (Article 349.5.1 of the Code of Criminal Procedure of the Azerbaijan Republic); · if the facts established by the court are consistent with the evidence investigated (Article 349.5.3 of the Code of Criminal Procedure of the Azerbaijan Republic).

It is necessary to indicate that the court did not examine all of the evidences submitted to the court, did not give a legal assessment and did not eliminate the contradictions between the testimony of the accused and witnesses, did not take the initiative to verify the testimony of the accused. The evidence provided by the investigative body were not sufficient for a conviction.
One of the issues that judges must decide on, in the retiring room, is about the involvement of accused in the trumped up charge that was incriminated against him. According to the police, the heroines packages were found inside the pocket of his jacket. During the preliminary and court investigation Bakhyshly denied any affiliation to the drugs. He stated that the drugs were planted to him by the police. It was not difficult to determine whose fingerprints were on the drug packages; it was only necessary to conduct fingerprint examination. However, neither the investigative body nor the court took any initiative. 
The next, and equally important issue is related to the applications filed by the defence. As mentioned above, the defence filed several motions in the case: to dismiss the criminal case against O. Bakhyshly; to change the preventive measure to house arrest; to invite additional witnesses for questioning; to release the defendant from the iron cage, where he was kept inside the courtroom and to let him sit near his lawyer. None of the applications were satisfied. According to article 323 of the Code of Criminal Procedure of the Azerbaijan Republic, the court grants applications in the following cases:
· if the purpose of the application is the examination of all circumstances that may be of significance for a thorough, full and objective investigation of all matters connected with the criminal prosecution (Article 323.5.1 of the Code of Criminal Procedure of the Azerbaijan Republic);
· if information and documents whose evidential value is in dispute were obtained by significantly violating requirements of this Code and other laws of the Azerbaijan Republic (Article 323.5.2 of the Code of Criminal Procedure of the Azerbaijan Republic). 

The satisfaction of the defence’s motions would’ve lead to a comprehensive, complete and objective study of all the aspects in the case. The court did not hear the witnesses of the defence and passed a sentence based solely on the indictment.
Violation of national law lead to the violation of the norms of international law, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Prison Rules and others.
According to Article 6 Right to a fair trial of the European Convention for the Protection of Human Rights and Fundamental Freedoms, paragraph 1: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. 
As can be seen from this article, the case at the court should be viewed publicly, thus openly. According to Article 27.1 of the Code of Criminal Procedure of the Azerbaijan Republic, while safeguarding state, professional, commercial, personal and family secrets in accordance with this Code, court hearings in criminal cases and on other prosecution material shall be held publicly in all courts of the Azerbaijan Republic. 
There was not any information in relation to above mentioned secrets in the case of O. Bakhyshly and due to this, there was no court decision on holding proceedings behind the closed doors. However, despite of this, friends, colleagues of the party, representatives of public and political organisations, as well as journalists were not allowed in the courtroom. This shows that the court hearings were carried out behind closed doors.
There is one more fact that attracts attention. During announcement of verdict, the hands of Orhan Bakhyshly were handcuffed. According to the paragraph 68.1 of The European Prison Rules, the use of chains and irons shall be prohibited. Handcuffs, restraint jackets and other body restraints shall not be used. They can be used only in the following cases: 
a) if necessary, as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise;
b) for medical reasons by direction of and under the supervision of a doctor;
(c) by order of the director, if other methods of control fail, in order to protect a prisoner from self- injury, injury to others or to prevent serious damage to property, provided that in such instances the director shall immediately inform the medical practitioner and report to the higher prison authority.
Thus, in subparagraph (a) of paragraph 68.2 of the European Prison Rules states that once a prisoner is brought to the courtroom, the handcuffs and chains must be removed. 
Judicial supervision did not take into account the rules prohibiting the handcuffs inside the courtroom, and the court did not point out about the violation of given norms. The handcuffs limits the movement of the prisoner, and therefore cause him suffering. These sufferings achieve a minimum level of cruel and inhuman treatment, which leads to violation of the Article 3 of the European Convention: “Prohibition of torture”. Article 3 of the European Convention prohibits torture or to inhuman or degrading treatment or punishment. It does not have any restrictions. This means that such treatment is prohibited in all situations, even in the fight against terrorism, organised crime and the mafia.
Orhan Bakhyshly considers his arrest to be a political order, that is related to his political and social activities. 
The evidences of the unlawfulness of the indictment are: · contradictions in the inculpatory evidence  · biased attitude of the judicial panel  · testimonies by the accused himself
In the case of Orhan Bakhyshly, as in dozens of other cases of political prisoners, the Article 18 of the European Convention, Limitation on use of restrictions on rights. – was also violated. According to Article 18, “The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed”.
Numerous violations of national legislation and international law during the trial proceedings of Orhan Bakhyshly have the political nature and aim to punish the citizen for his active civil position, criticism towards the policy of the authorities.

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Prosecutor General’s Office of Azerbaijan left Yunis Safarov without a lawyer

 

On September 5, 2018 Prosecutor General’s office of Azerbaijan. Republic made the decision to remove Yunis Safarov’s lawyer Elchin Sadigov from his case

 

First Deputy Prosecutor General of Azerbaijan Republic: Rustam Usubov
Defender: Elchin Sadigov
On July 3, 2018, there was an assassination attempt, in Ganja (the second biggest city in AR), on the head of the local executive power Elmar Valiyev. While shooting, Yunis Safarov wounded Elmar Veliyev and his body guard Qasim Ashbazov. The name Yunis Safarov became widely known in the Republic, after his photos were circulated at social networks on July 3-4. On the photos, Yunis Safarov was lying on the floor, there was a lot of blood near him and on him; there were traces of violence on him. The photos were the evidences that Safarov was beaten and severely tortured at Ganja city Main Police Department, whereto he was immediately taken after his detention on July 3.See: https://www.ipd-az.org/ru/prosecutor-generals-office-of-azerbaijan-left-yunis-safarov-without-a-lawyer/
Born in Ganja in 1983, Yunis Safarov was Russian citizen, and he lived in Moscow, where he received higher legal education.
Already, in the first half of July, the mass arrests took place in the country. On July 30, 2018, during the meeting dedicated to the results of the first half of the year, the Prosecutor General of Azerbaijan Republic Zakir Garalov claimed that in the connection with Ganja events, there were 61 people arrested and brought to criminal responsibilities. “They were the representatives of the radical religious groups” – underlined Z. Garalov, referring to 4 person, who were killed by special services during armed resistance. All arrested were accused under several Articles of Criminal Code of AR, including in terrorism, possession of guns, and coups d’etat attempt and etc.
By the end of the summer, the number of arrested were 62 persons, and according to law enforcement agencies 6 persons were killed due “to armed resistance”. See: https://www.ipd-az.org/ru/prosecutor-generals-office-of-azerbaijan-left-yunis-safarov-without-a-lawyer/
Yunis Safarov was charged under following articles 120.2.1 (Deliberate murder, committed by group of persons, on preliminary arrangement by group of persons, by organized group or criminal community (organization);  214 (Terrorism); 277 (Attempt on life of the state or public authority (act of terrorism); 278.2 (Violent capture power or violent deduction power in infringement of the Constitution of the Azerbaijan Republic, as well as directed on violent change of constitutional grounds of the states); 279.1 (Creation of armed formations or groups, which are not provided by the legislation of the Azerbaijan Republic, and also participation in their creation and activity, supplying them by weapon, ammunition, explosives, military engineering or military equipment); 281.2 (281.2. Public appeals directed against the state, committed repeatedly or by group of persons) and other articles of the Criminal Code of the Azerbaijan Republic.
Appointed by law enforcement agencies, the lawyer of the 14th legal consultation – Elman Agayev stated in the press that Y. Safarov was not subjected to tortures and inhuman treatment, and that he did not find any traces of violence on his body. On August 2018, Safarov family signed the contract on the provision of legal defence with the lawyer Elchin Sadigov. On August 14, 17, and 21 lawyer met with his client at Baku Pretrial Detention Facility #1 (Kyurdakhani), whereat Yunis Safarov is held.
Already in the beginning of September, the Director of the Department for Investigation of Grave Crimes of AR – Eldar Ahmadov filed application on the removal of Elchin Sadigov from the criminal case. The application was submitted to the First Deputy Prosecutor General of Azerbaijan Republic – Rustam Usubov. R. Usubov referred to the Presidium of the Bar Association in order to receive the legal assessment to the lawyer’s actions.  In result of the decree of R. Usubov from September 05, 2018, Elchin Sadigov was removed from Yunis Safarov case.
It is specified in the commentary to decree that Elchin Sadigov has violated lawyer ethics by forcing Yunis Safarov to reject from the lawyer appointed to him by the state, not to deny the fact of tortures; and was pressuring psychologically on his client and etc; Law enforcement agencies listened to the entire conversation between lawyer and his client, since the given conversation was described word for word in the decree.  
Commentary by an expert lawyer: The court decision is unlawful and groundless. According to the Article 92.9.2 of the Code of Criminal Procedure of Azerbaijan Republic, the defender counsel has right for unlimited opportunities and time to meet his client in private and in confidence.
In his turn, the accused has right to have unlimited opportunities and time to meet his defence counsel in private and in confidence (Article 91.5.8 of the Code of Criminal Procedure of Azerbaijan Republic);
The same norm is provided by the European Prison Rules, which were approved by the Committee of Ministers of Council of Europe on February 12, 1997. According to item 93, of European Prison Rules, untried prisoners shall be entitled, as soon as imprisoned, to choose a legal representative, or shall be allowed to apply for free legal aid where such aid is available and to receive visits from that legal adviser with a view to their defence and to prepare and hand to the legal adviser, and to receive, confidential instructions. On request, they shall be given all necessary facilities for this purpose. In particular, they shall be given the free assistance of an interpreter for all essential contacts with the administration and for their defence. Interviews between prisoners and their legal advisers may be within sight but not within hearing, either direct or indirect, of the police or institution staff.
As can be seen from the above mentioned national and international norms, the defender and his client have a common right: the right for confidential communication. By setting up illegal listening, the Prosecutor General’s Office has violated both the right of the defender and his client.
The basic principles of activities of Prosecutor’s Office are specified in the Article of the Law of Azerbaijan Republic  “about the prosecutor’s office”.The basic principles of the prosecutor’s office are:
· legality;
· equality of all before the law;
· observance and respect of the rights and freedoms of physical persons, rights of legal entities;
· objectivity, impartiality and reference to facts;
· unity and centralisation, subordination of territorial and specialised prosecutors to the Attorney – General of the Azerbaijan Republic;
       •      political independence
Evidently, legality is the main and the most important principle of the Prosecutor’s office.  The Prosecutor’s Office decree also contradicts the Law of Azerbaijan Republic “about operational search activity”.  Article 3 of the Law specifies the principles of operational search activities. Operational search activities are based on the principles of the legality, humanity, respect of human rights and freedoms, conspiracy, combinations of public and secret methods of work. The law guarantees the rights and freedoms of a man and citizen. The temporary restriction of rights and freedoms of man and citizen in connection with application of operational search measures can be allowed only in the procedure established by this Law in case of control of offences, their disclosure, search of persons disappearing from the judicial, investigating authorities or bodies of inquiry evading from serving sentence, missing persons (Article 4 item 2 of the Law). This means that only those cases that are listed in the Article 4 of the Law may be applied to the restriction of the rights and freedoms of the man and citizen.
The Prosecutor’s office abused its authority. The Law prohibits:
· to allow actions that threaten the life, health, property and legitimate interests of people;
· to incite any person to commit an offence;
· to use force, threaten and blackmail, as well as to resort to other unlawful measures that restrict the rights and freedoms of citizens that are protected by law
· to implement measures beyond their authority.
The subjects of the operational search activity, which, in this case, is the prosecutor’s office, are allowed  to listen to conversations only in the presence of the valid court decision (article 10, paragraph III of the Law “about the prosecutor’s office”).  There are cases, when the listening is also allowed without court decision: to prevent grave crimes against the individual or particular grave state crimes; to detain persons who are preparing the crime, who committed the crime or those who escaped from imprisonment; to prevent fire, explosions in the residential buildings, construction sites and etc (article 10, paragraph IV of the Law “about Prosecutor’s office”).
If we pay attention to the above mentioned norms, we will see that in the given case, there was no legal basis for listening to the conversation between the lawyer and his client inside the institution for serving of sentence. Information, obtained illegally cannot be used by law enforcement agencies. Such information can only be used, if obtained legally. 
Illegal listening is prohibited by article 8 (1) of the European Convention on human rights and fundamental freedoms. Under this article, everyone has the right to respect for his private and family life, his home and his correspondence. The concept of “correspondence” includes both telephone conversations and other negotiations of a confidential nature that take place between two persons. Article 8, paragraph 2, of the European Convention provides a complete and exhaustive list of restrictions that a state may apply to citizens.
There shall be no interference by a public authority with the exercise of this right except:
· when such interference is in accordance with the law
· necessary in a democratic society in the interests of national security and public safety,
· economic well-being of the country
· for prevention of disorder or crime
· for the protection of health or morals
· protection of the rights and freedoms of others 
In the ECtHR  Class and others V. Federal Republic of Germany case, there is a violation of the Article 8 of the European Convention. Although telephone conversations are not expressly mentioned in paragraph 1 of Article 8 (art. 8-1), the Court considers, as did the Commission, that such conversations are covered by the notions of “private life” and “correspondence” referred to by this provision. 
In its report, the Commission expressed the opinion that the secret surveillance provided for under the German legislation amounted to an interference with the exercise of the right set forth in Article 8 para. 1 (art. 8-1). Neither before the Commission nor before the Court did the Government contest this issue. Clearly, any of the permitted surveillance measures, once applied to a given individual, would result in an interference by a public authority with the exercise of that individual’s right to respect for his private and family life and his correspondence. Furthermore, in the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menace of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an “interference by a public authority” with the exercise of the applicants’ right to respect for private and family life and for correspondence. 
(Judgment of the European Court of human rights (ECtHR) on Class and others V. Federal Republic of Germany of  September 6, 1978).
In order for the “interference” established above not to infringe Article 8 (art. 8), it must, according to paragraph 2 (art. 8-2), first of all have been “in accordance with the law”. (paragraph 43). http://echr.ru/documents/doc/2461406/2461406.htmhttps://stewartroom.co.uk/wp-content/uploads/2014/07/Cases-ECHR-Klass.pdf

Thus, the Prosecutor’s office did not have a court decision for listening, nor it had grounds for listening, for which court decision is not required. By establishing the listening, the Prosecutor’s office abused its authority, violated the number of national and international norms that resulted in gross violation of the principle of the legality and violation of the rights and freedoms of the man and citizen.

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The Sabayil District Court made decision to block website www.xural.com

 

The analysis of violation of the law during legal proceedings on

 

blockage of the website www.xural.com

 

The Baku City Sabayil District Court
Case # (009)-2858/2018
August 08, 2018
Presiding Judge: Shahin Abdullayev
Applicant: The Ministry of Transport, Communications and High Technologies of the AR
Party in interest: Avaz Zeynally 
Defender: Zibeyda Sadyqova 

In recent years, the pressure of Azerbaijani authorities on the freedom of speech increased even greater. Journalists, bloggers, writers and publicists who criticise the policy of government are arrested. Many of them are not able to withstand the pressure and have to leave the country. The websites, internet portals are also put under pressure; some of them are blocked without any court decision (www.abzas.net, www.islamazeri.az, www.islaminsesi.az, www.nur-az.com, www.criminal.az, www.gununsesi.info, www.realliq.info, www.realliq.az, www.politika.az, www.nia.az, www.neytral.az, www.vediinfo.az, www.obyektiv.org, www.sonolay.az, www.ulus.az, www.qanunxeber.az, www.infoaz.org, www.xalqinsesi.com, www.aztoday.az, www.bastainfo.com), others are blocked through the appeal of the Ministry of Transport, Communications and High Technologies of AR – to the court.
In 2017, above mentioned Ministry appealed to Sabail District Court with the request to block following websites: www.meydan.tv, www.turan.tv, www.azerbaycansaati.tv, www.azadliq.org (official site of Radio Azadliq (Freedom), www.azadliq.info (official website of the newspaper Azadliq). In 2018, same Ministry appealed to the court with the request to block following websites: www.xural.com, www.monitortv.info, www.anaxeber.az, www.24saat.org, www.arqument.az. In all cases, the Sabayil District Court made the decision to block websites.
Among blocked websites, there is a website – www.xural.com, which is led by the former prisoner of conscience, journalist Avaz Zeynally.
In its application, the Ministry of Transport, Communications and High Technology indicated that there were articles published on www.xural.com, which contained information of slanderous nature. However, above mentioned articles touched upon the actual, everyday problems, including political issues:
• articles on the Ganja events (on July 3, 2018, there was an assassination attempt against the Head of the Executive Power of Ganja city – Elmar Valiyev. On July 10, 2018, the Deputy Chief of Ganja City Main Police Department Colonel Ilqar Balakishiyev and the Deputy Chief of Ganja city Nizami District Police Department Lieutenant Colonel Samad Abbasov were murdered);
• article on the former political prisoner Ilqar Mammadov (he was detained during social protests in Ismayilli district in 2013 and released on August 13, 2018);
• article on political prisoner, a well-known blogger Mehman Huseynov who is serving a sentence; including other articles of a political nature. In its complaint, the Ministry asked the court to limit the access to the website www.xural.com

Commentary by an expert lawyer:
The court decision is unlawful and groundless. While filing the complaint, the Ministry of Transportation, Communications and High Technologies referred to the article 13-2.3.9 of the Law of AR “On information, informatisation and protection of information”. This Article states: 
“13-2.3. The proprietor or owner of the informational Internet resource and its domain should not allow distribution of the following data in given Internet resource: 13-2.3.9. the information containing offensive and slanderous nature and violating immunity of private life; 13-2.3.11. other information prohibited by the laws of the Azerbaijan Republic”.
According to the article 13-3.2 of the Law, “in case, when banned information is not removed from the informational internet resource within 8 hours after notice, the corresponding body of the executive power may refer to the district court connected to its address, with the request to limit the access to the informational internet resource”.
During the trial proceedings, the head and founder of the website www.xural.com Avaz Zeynally showed to the court the corresponding notices, which he received from the Ministry about the removal of three articles from his website. However, he has not received any notice in relation to the fourth article. He also indicated that all the articles were taken from other websites and they do not contain any information of an offensive and slanderous nature.
It is necessary to underline here, that the Ministry did not refer to the Law of the Azerbaijan Republic “About mass media” in its statement. The Ministry indicated in its statement that the officers of electronic security service established that the articles published on the website contained the slander and insult. In such case, it is important indicate that the electronic security service officers of the Ministry do not have any authorisation to determine the slanderous or insulting nature of the articles. 
If the articles published in mass media discredit the honour and dignity of a person, and contain insulting and slanderous data, then the affected person may apply to the court with the private prosecution and request from the court to institute criminal proceedings against the person responsible in accordance with articles 147 and 148 of the Criminal Code of the Azerbaijan Republic.
According to the Article 147 of the Criminal Code of the Azerbaijan Republic, the slander is distribution of obviously false information which discredit honour and dignity of any person or undermining his reputation in public statement, publicly or in mass media shown products or in mass dissemination of the information on Internet. Article 148 Criminal Code of the Azerbaijan Republic states: “The Insult is deliberate humiliation of honour and dignity of a person, expressed in the indecent form in the public statement, publicly or in mass media shown product or, in mass distribution on Internet”.
Only a natural person may act as the subject in given crime category, since the honour and dignity are the concepts related to the natural persons. In given case, the Ministry cannot indicate on the matter whose honour and dignity is affected and offended. This is purely subjective evaluation. 
The Criminal Code of the Azerbaijan Republic comments on the objective side of the given crimes in such a way: “The objective side of the slander reflects itself in the distribution of obviously false information which discredit honour and dignity of any person or undermining his reputation. Distribution itself is reflected as the dissemination of information to any person, the information that is not valid and carries the humiliating character. 

Slander should not be considered in cases, when a person gives evaluation of any individual, of his acts, works written by him, or job done. If this evaluation is conducted in indecent way, it may be viewed as insult. In other cases, it does not contain any corpus delicti, even if this evaluation is negative and offensive to a person” (http://jurisprudence.club/ugolovnoe-pravo- uchebnik/statya-129-klevetakommentariy-state43553.html). 
According to the Code of Criminal Procedure of the Azerbaijan Republic, the following persons shall be recognised as victims bringing a private prosecution (Article 88.1):
• 88.1.1. a person who applies before, during or after the preparatory court hearing on semi-public criminal prosecution, but before the court starts examining the case, to be allowed to appear in court as a victim bringing a private investigation: as from the receipt of the application (article 88.1.1. Code of Criminal Procedure of the Azerbaijan Republic);
88.1.2. in a semi-public criminal prosecution, a person who has suffered damage as a result of the offence and asks the prosecuting authority for proceedings to be instituted, for an investigation to be carried out and for recognition as victim: from the moment when he is recognised as victim in the ongoing case (article 88.1.2. Code of Criminal Procedure of the Azerbaijan Republic);
• 88.1.3. a victim of an offence who lodges a complaint with the court with a view to a private prosecution: from the moment when the court decides that the complaint falls within its jurisdiction or schedules it for consideration by the court. (article 88.1.3. Code of Criminal Procedure of the Azerbaijan Republic).
According to the materials from the court hearings on the case of the blockage of the website, no one (not a single person) applied to the court as a private prosecution. Therefore, no one was recognised in capacity of a private prosecutor and victim. The linguistic examinations – in order to establish which words (expressions) in published articles had affected and offended the honour and dignity – were not appointed. The court did not investigate, which facts published in the articles were a slander and which represented actual facts.
Without investigating and establishing the true reasons behind the complaints of the Ministry of Transport, Communication and High Technology, the court only listened to its arguments. Even if we assume that the articles published on the website contained offensive and slanderous nature, then the Ministry could’ve asked from the court, to block only these articles, but not the entire website. The request for full blockage of the website is unacceptable.
According to article 50 (Freedom of information) of the Constitution of the Azerbaijan Republic:
I. Everyone is free to look for, acquire, transfer, prepare and distribute information.  II. Freedom of mass media is guaranteed. State censorship in mass media, including press is prohibited. In accordance with article 50 of the Constitution of the Azerbaijan Republic, Article 1 of the Freedom of Information Act states: “Everyone is free to look for, acquire, transfer, prepare and distribute information”. According to current legislation, the information means data, regardless of a form of their representation, on the events proceeding in the nature, society and the state; on processes, and also on facts and persons. The right to freedom of speech (expression) and dissemination of information is also guaranteed by Article 10 of the European Convention on Protection of Human Rights and Fundamental Freedoms. According to this article:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
As we see, Article 10 of the European Convention provides certain restrictions. The accurate list of restrictions contains in paragraph 2 of the Article 10. Freedom of speech can be limited for “for the protection of the reputation or rights of others”. During the trial on the complaint of the Ministry of Transport, Communication and High Technologies, it was not established whose reputation was affected due to published articles on the website www.xural.com. In order to establish the violation of the Article 10 of the European Convention on Freedom of speech (expression) and dissemination of the information, the European Court of Human Rights (ECtHR) answers to several test questions on each particular case:
· if agencies intervened to this right · if the intervention was provided by law; · if the intervention had lawful purpose in accordance with Article 10, Paragraph 2; • if the intervention was “necessary in a democratic society”. If we can answer positively to the first question, the answers to all other questions will be negative. The ECtHT indicates that two requirements arise from the expression “provided by law”. First, the law must accessible to everyone. Secondly, law must be clear, transparent and predictable to everyone. 
Concerning third question on the legality of the intervention, the Ministry tried to justify its complaint by stating that the articles contained the slanderous and offensive expressions. However, in this case, there are no victims, as provided by the criminal legislation. Thus, it is impossible to speak about the lawfulness of the intervention. And the last. Was the intervention “necessary in democratic society?”. There is no doubt that all articles that were indicated by the Ministry of Transport, Communications and High Technology provoked public interest. And in democratic society, the intervention in the publication of such articles is simply unacceptable. 
“As the Court had already noted, Article 10 guarantees not only freedom of press to inform society, but also the right of the society to be informed properly” (statement of the ECtHR in the case the Sunday Times V. United Kingdom on April 26, 1979). See: http://echr.ru/documents/doc/2461498/2461498.htmhttps://www.eui.eu/Projects/CentreForJudicialCooperation/Documents/2011-10-28-29/ECtHRSundayTimesvUK.pdf
The application of the Ministry of Transport, Communications and High Technologies to the court contradicted the right of the society to receive information. The decision of the Sabayil District Court contradicted the right to freedom of speech (expression), violated the legislation of AR and International Law. 

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