Appeals Court keeps Gezel Bayramly in custody

 

Baku Court of Appeal, the Criminal Collegiums
Case number № 4(103)-298/2017
June 2, 2017
Presiding judge: Abid Abdinbeyov
Judges: Rizvan Safarov, Qail Magerramov
Investigators of the State Border  Service of the AR:  Ramiz Alverdiyev,  Mubariz Mamedov
Accused: Gozel Bayramli
Defenders: Elchin Sadiqov, Bahruz Bayramov, Asabali Mustafayev

On May 25, 2017 Deputy Chairwoman of the opposition Popular Front Party, member of the National Council of Democratic Forces – Gozel Bayramli was detained on her way crossing Georgian – Azerbaijan border, at Azerbaijan Republic “Shixli” passport control checkpoint located  at Qazax region by the employees of State Border Service of AR.

As per Gozel Bayramli testimony, around 8:40 pm, she approached the passport control checkpoint on Azerbaijan border. There she was informed that the system to check identification was not working. Later the system started working. After G. Bayramli passport details were entered into the system, she was asked to follow into the inspection room.

Escorted by the employees of the State Border Services of AR and before reaching the customs supervision zone, she was brought with all her belongings inside the inspection room. According to Gozel Bayramli, she felt that something was put stealthily in her bag while she was passing through non illuminated part of the route. Afterwards, during the search the plastic bag with 12 thousands U.S. dollars was found in her bag. Gozel Bayramli claimed that those were not her money. But she was detained.
On the following day, on May 26, 2017, she was brought to Baku around 6 pm, where she was interrogated at the administrative building of the State Border Service of AR. After interrogation, she was accused in the execution of crime under Article 206.1(smuggling) of the Criminal Code of the Republic of Azerbaijan.
Attorneys did not agree with the accusation and filed the motion on carrying out dactyloscopic forensic expertise on the presence of Gozel Bayramli fingerprints on the plastic bag and on the cash; and the motion on the seizure of the videos from the surveillance cameras at  “Shixli” checkpoint.

Without examining these motions, Investigative Body of the State Border Service applied to the court with the request of  issuance of the arrest warrant for Gozel Bayramli.

On May 26, 2017 around 11.30 pm Baku City Sabail District Court examined the request of Investigative Body to issue the arrest warrant. The attorneys filed again the motions on assignment of dactyloscopic forensic expertise and on seizure of the video from the surveillance cameras, but the court declined these motions. Baku City Sabail District court granted the request of the State Border Service on issuance of the arrest warrant and made the decision on application of the restrictive measures against Gozel Bayramli in form of imprisonment for the period of three months.

Not agreeing with the given decision, the attorneys filed the appeal. On June 2nd, 2017, Baku Court of Appeal rejected the appeal and left the decision of Baku City Sabail District court from May 26, 2017 unchanged.

Reviews of expert-lawyer

The decision of Baku Court of Appeal is wrongful and groundless. Since September 1, 2000, the issues of criminal procedure are regulated by Code of Criminal Procedure of the Republic of Azerbaijan (CPC AR). “Preventive measures” or “restrictive measures” include house arrest; bail; a written obligation not to leave a place; personal surety/guarantee; surety offered by an organization; police supervision; supervision of commander; removal from office or position and the most strict measure – arrest (Article 154 CPC AR).

While deciding on application of restrictive measure, the competent authority must consider whether there are “enough sufficient grounds” that the suspect will hide during the investigation or court; will proceed with criminal activity or obstruct the normal course of the investigation or court proceedings in establishing the truth (Article 155.1 CPC AR); at the same time court must consider the seriousness and the nature of the offence, the suspect’s personality details, occupation, age, health condition, family and other positions (Articles 155.2.1., 155.2.2 CPC AR). Arrest should not be abstract. Decision on arrest should be clearly regulated.

The court ruling to arrest Gozel Bayramli indicate the following grounds:
– hiding from the body, conducting criminal proceedings;
– committing further act provided for in criminal law or creating a public threat;
– failure to comply with a summons from the prosecuting authority, without good reason, or otherwise ending criminal responsibility or punishment.

It is also indicated in the court ruling, that the decision of the Court of First Instance is based on the  category of the offence Gozel Bayramli is accused of, which falls under hard crimes and considers the punitive sanctions in form of the deprivation of freedom for more than two years.

According to Article 28 of the Constitution of the Republic of Azerbaijan:
“I. Everyone has the right for freedom.
II. Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment”

According to the Article 5.1 of  European Convention on Human Rights and Fundamental Freedoms
“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”.

The imperative requirement of Article 5 of European Convention on Human Rights and Fundamental Freedoms  is the presumption of innocence.

European Court of Human Rights (ECHR) in its final judgment on the case of “Pshevecherski against Russian Federation” (Application no. 28957/02 http://hudoc.echr.coe.int/eng) from May 24, 2007 stresses that the possibility of the accused hiding or continuing with criminal activity… “cannot be assessed from a purely abstract point of view”. “It must be examined with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding and re-offending or make it appear so slight that it cannot justify detention pending trial.” (point 67)

“Shifting the burden of proof to the detained persion in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty” (point 66).

In judgment of ECHR on case of “Labita v. Italy” Application no. 26772/95 from April 6, 2000, it is said that “in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release.”

Courts were liable to analyze the personal situation of the accused thoroughly and bring the special reasons for keeping her in custody. But, evidently, the courts restricted  themselves to the general and abstract phrases in court ruling on choosing restrictive measure.

In the decision of the Plenum of the Azerbaijani Supreme Court on “ The practice of the application of the law by courts when submissions to order the restrictive measures of arrest in respect of the accused are considered” from November 3, 2009, there are recommendations in taking into the account all circumstances of the case, including the identity of the accused.

The decision of the court on choosing the restrictive measure in form of arrest against Gozel Bayramli is not based on facts and concrete circumstances of the case, but only on assumptions.

In summary, the courts’ decision on the application of the restrictive measure in form of arrest against Gozel Bayramli violates the norms of the Constitution of Azerbaijan Republic, the Code of  Criminal Procedure of the Republic of Azerbaijan, the Article 5.1 (on the right to liberty and security of person) of European Convention on Human Rights and Fundamental Freedoms; does not consider the obligation of the decision of ECHR

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Court issued decree on application of restrictive measure against Afghan Muxtarli in form of deprivation of freedom for the period of 3 months

Analysis of the law violation at  Afghan Muxtarli trial

Baku City Sabail District Court

Case #4(009)-417/2017

May 31, 2017
Chairman : Rauf Ahmedov

Prosecutor of Department for Supervision over execution of laws in investigation, inquiry and  operational-search activities of General Prosecution, State Border Service and State Security Service of AR: Orxan Zeynalov.

Accused: Afghan Muxtarli

Defender: Elchin Sadiqov

 

Azerbaijani journalist and activist of civil society – Afghan Muxtarli was living in Georgia for two years. Afghan Muxtarli is well-known as journalist, who criticizes the ruling regime. He is the
author of the range of journalistic investigations on corruption, on offshore properties that belong to  Aliyevs – the ruling family in Azerbaijan.

 

In 2015, after the repressions towards tenths of activists of civil society in Azerbaijan, Afghan
Muxtarli, feared from the possibility of arrest, left together with his family to Georgia.

 

While living in Georgia, Afghan Muxtarli, continued criticizing authority, participating in public meetings/rallies – in front of the Azerbaijan Embassy in Tbilisi – opposing the policy of Ilham Aliyev. According to him, he has noticed the surveillance after him. Afghan Muxtarli reported this  to the corresponding agencies of Georgian Government and asked to secure his safety.  But he did not get an answer.

 

In spring 2017, the new wave of repressions towards the dissidents began in Azerbaijan. The eye of repression was also concentrated on the activists of civil society who have immigrated to Georgia.  On May 4, 2017, the well-known for his ties with law enforcement agencies of Azerbaijan, Eynulla Fatullayev wrote article “Anti-Azerbaijan underground in Tbilisi…” about azerbaijan dissidents, who periodically visit Georgia and those who live there, including Afghan Muxtarli and his wife Leyla Mustafayeva.  https://haqqin.az/comics/99120
On May 22, 2017, well-known for his support to Opposition Parties  in Azerbaijan, surgeon, Farman Jeyranov was arrested in Georgia. On May 25, 2017, Gozel Bayramli – the Deputy Chairman of the Opposition Popular Front Party of Azerbaijan, who was on medical treatments in Georgia – was arrested. She was detained at Georgian-Azerbaijan border and was accused in the execution of the crime, under the article 206.1 (smuggling) of the Criminal Code of the Republic of Azerbaijan.  She was brought to Baku, by the employees of State Border Service, where the restrictive measure in form of imprisonment for the period of three months was applied towards her.

 

Post Gozel Bayramli arrest, the surveillance after Afghan Muxtarli intensified. He informed about this to the representatives of the Mass Media.

 

On May 29, 2017, after meeting with his friends, around 18:00 hours, Afghan Muxtarli was returning to his rented apartment. Within 100 meters from his house, he alighted from the bus.  Three men got off the car that was parked not far from the bus stop. Attacking Afghan Muxtarli, they beat him,  and forcibly pushed him inside the car. In car, his hands were twisted and tied from behind; and the beatings continued. According to A. Muxtarli, the car’s engine was working, and persons who kidnapped him were wearing the uniform of criminal police of Georgia.

 

From the place he was kidnapped , Afghan Muxtarli was taken towards the airport, by car, and black sack was put on his head. Afghan Muxtarli told his kidnappers, that he has problems with his heart and that he can die. They noticed that Afghan Muxtarli started feeling bad, so they removed the sack from his head. He saw that he was taken towards the Sagarejo region. After removing the sack from his head, they tied t-shirt around his head, using sticky tape to tape the sides. In such way, Afghan Muxtarli could not see anything again. After some period of time, the car stopped at the side of the road. Afghan Muxtarli was dragged into another car.

 

He was taken by the same persons who spoke Georgian. After driving short distance, the car stopped for 8-10 minutes. Soon afterwards, another car drove to this car, and Afghan Muxtarli was forcibly pushed into it. Azerbaijan song was playing in the car, and Afghan Muxtarli realized that he was passed over to Azerbaijan side.  Every 5-7 minutes one of the persons who was inside the car, spoke to some general (he was referring to him in such way) on the phone.  After some time, this person called again and said: ”Mr. General, we have brought mullah, you may come to the commemoration”.

 

Afghan Muxtarli was taken out from the car, and brought inside the room. There, his eyes were untied. When he saw the pictures displaying the special uniforms of the Azerbaijan State Border Service on the walls, he realized that he was brought to the military unit of SBS of Azerbaijan. There  he was informed that he crossed illegally Azerbaijan – Georgian border, and that inside his pockets, 10.000 USD  (20 x $500 notes) were found and he beat a soldier  of SBS . Afghan Muxtarli claims that he never saw this money, and that he had on him only 1 lari and 25 tetri (Georgian coins), including bank card, on which there was only 3 lari. Afghan Muxtarli claims that his kidnap was coordinated with Georgian authorities, and this is why Georgia has shut its eyes to it. He also claims, that he was not crossing the border, he did not have any USD dollars and he did not beat up anyone.

 

On May 31, 2017, Afghan Muxtarli was brought to Baku, where he was interrogated at the administrative building of the State Border Service of AR.  After the interrogation the employees of the SBS brought A. Muxtarli to Baku City Sabail District Court. The charges under Articles 318.1. (illegal crossing border of the Azerbaijan Republic), 206.1.(smuggling) and 315.2. (resistance or application of violence concerning the representative authority) of the Criminal Code of Azerbaijan Republic – were incriminated against him.

 

On May 31, 2017, Baku City Sabail District Court ruled on the application of restrictive measure towards Afghan Muxtarli in form of deprivation from freedom for the period of 3 months.

 

Commentary by an expert lawyer:

 

The court ruling was wrongful and groundless. According to the Article 5.1 of European Convention on Human Rights and Fundamental Freedoms “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”.
The imperative requirement of Article 5 of European Convention is the presumption of innocence. Persons, who have deprived anyone of his liberty, must not only prove that the exercised power on the implementation of arrest falls under one of the grounds indicated under Article 5, but also prove that these grounds can be applicable in this specific case. In any case, when it comes to the right to liberty, first of all, it is important that the judge considers the possibility of releasing the detainee. Therefore, the judge, must not wait and request only the presentation of sufficient grounds on arrest, but he must also carefully investigate these grounds in order to justify applied restrictive measures. In case, if judge arrives at the controversial conclusion, the arrest must be canceled. This is the opinion of European Court of Human Rights (ECHR) on the strictest preventive measure. The right to liberty is also stated under the Article 28 of the Constitution of Azerbaijan Republic.

 

In this particular ruling, the court neither considered the possibility of releasing A. Muxtarli before the trial, nor it was able to clearly and precisely justify applied preventive measure. The court justified its ruling with the following grounds:
• Execution of grave crime;
• The seriousness and nature of the offence;
• The degree of social danger;
• The possibility of hiding from the investigation and judicial bodies.

 

Resolution of the Plenum of Supreme Court of Azerbaijan Republic “ On the practice of courts applying legislation when considering submissions related to the selection of a preventive measure in the form of detention in respect of accused persons ” from November 3, 2009 was adopted because of  the errors that are made by courts during the application of the legislation; because the validity of all special presentations is not verified; the rulings do not clarify on the grounds on application of the strictest restrictive measure in form of imprisonment, foreseen by the Article 154.2 of the Criminal Procedure Code of the Republic of Azerbaijan; the following common phrases are used as the grounds on choosing the restrictive measures in the form of arrest, as the potential to hide from the body, conducting criminal proceedings, obstruct the normal course of the investigation, failure to comply with a summons from the prosecuting authority; non availability of any links on any concrete factual situations supporting the suspicion.
Namely because of the courts’ violations of the legislation, the Plenum of the Supreme Court of Azerbaijan has provided them with the interpretation of the law, which consisted in ensuring that the courts verify the validity and lawfulness of application of restrictive measure in form of arrest towards an accused person. Despite of above mentioned interpretation of law, in Afghan Muxtarli ruling, the court has not only violated the provisions of the Constitution of Azerbaijan Republic, Criminal Procedure Code of AR, the Plenum desigion  of the Supreme Court of AR, but has also violated the decision on all fours of the  European Court of Human Rights.
The court had to establish the existence of the concrete facts relevant to arrest. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the European Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases. Courts must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release.(See: Final Judgment of ECHR: Lind v. Russia (Application no. 25664/05)from December 6, 2007.)
The court did not present any concrete facts in support of its conclusion that accused person might abscond, intervene into the normal course of investigation or proceed with the criminal activity. The court did not demonstrate any concrete circumstances that allow to conclude on Afghan Muxtarli’s potential to abscond from the court and investigation. Stated risk does not solely occur, because the accused person may or can easily cross the state border: the existence of all circumstances in aggregate leading to this must take place. Court did not indicate such circumstances in its decision and did not demonstrate on any personal characteristics of an accused person or his behavior,  that would justify the conclusion that the  accused person might abscond. Afghan Muxtarli could only cross the border, if he had his passport with him. However, Afghan Muxtarli passport, prior to his kidnap by Georgian law enforcement agencies and after – remained with his wife, who stay in Georgia. Immediately, she informed about this to Mass Media. And Mass Media disseminated the photo of his passport widely.
According to Article 155.2. of Criminal Procedure Code of  Azerbaijan Republic, 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.

When issuing the ruling on application of restrictive measure towards Afghan Muxtarli in form of arrest for the period of 3 months, the court completely ignored above indicated Article of Criminal Procedure Code of  Azerbaijan Republic.

 

The court did not justify the strict measure applied towards Afghan Muxtarli. The court ruling  is illegal, wrongful and groundless.

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Appeals Court kept Mehman Guseynov’s verdict unchanged

Analysis of the law violation at Mehman Huseynov’s trial

 
The Baku Court of Appeal, the Criminal Collegium
Case no. 1(103)-674/17
April12, 2017
Chairman: Vagif Mursagulov
Judges: Faig Gasimov, Hasan Ahmadov
Accused: Mehman Huseynov
Defenders: Elchin Sadighov, Shakhla Humbatova, Fuad Aghayev
The private prosecutor: The head of the Nasimi District Police Department Musa Musayev
Representative and advocate of the prosecutor: Alirza Khabilov
Famous blogger Mehman Huseynov, chairman of the Institute for Reporters’ Freedom and Safety, was repeatedly subjected to surveillance. As far back as in December 2016, specially trained people tried to provoke a fight with him. But he, having understood this, was able to avoid it. On January 9, 2017 in the centre of Baku, saying goodbye to his friends, Huseynov went to a meeting with a colleague. However, he was abducted by five unknown persons in a civilian. He was forcibly put in a car, they put a bag over his head, twisted his arms and took him away. The car drove for a long time, although the distance from the place where he was kidnapped to the nearest police station is a maximum of 10 minutes. Finally, he was brought to the Nasimi District Police Department.

The next day, M.Huseynov was taken to the Nasimi District Court, where he was found guilty under Article 535.1. (Malicious disobedience to the lawful demand of a police officer) of the Criminal Code of the Republic of Azerbaijan and fined 200 manats ($118). After leaving the court, M. Huseynov told reporters how he was kidnapped on January 9, and described in detail how he was tortured in the Police Department of Nasimi district.

 It was his story of beatings and torture in the police that led him to be accused of libel. The complaint was filed by the head of the Nasimi District Police Department Musa Musayev to the Surakhani District Court. It should be pointed out that when talking about torture and inhuman treatment, Mehman Huseynov did not name anyone. In the complaint of police chief M.Musayev it was stated that M.Huseynov slandered the police, accused the police of committing a serious crime, that his actions fall under Article 147.2. CC RA. According to this article: ‘Defamation combined with the accusation of a person for committing a grave or especially grave crime is punishable by correctional labor for up to two years, or by restraint of liberty for up to two years, or by imprisonment for up to three years”.

On February 10, 2017, the first hearing was held in the Surakhani District Court, chaired by Judge Jeyhun Gadimov. It should be noted that the meeting was held in a small room, friends and the press were not admitted to the process. At this meeting, lawyer Elchin Sadigov asked to give time to get acquainted with the complaint. The judge, having satisfied the lawyer’s petition, appointed the meeting on February 17. Twice the trial was postponed. All the motions submitted by the lawyer were rejected by the court.

On March 3, 2017, the Surakhani District Court found M.Huseynov guilty of committing a crime under Article 147.2. of Criminal Code of the Republic of Azerbaijan and sentenced him to 2-year imprisonment.

Mehman Huseynov’s lawyers filed an appeal against the verdict of the court of first instance. At the preparatory meeting, the judicial board of the Court of Appeal decided that the trial would be conducted without judicial investigation. The defendant was placed in a glass enclosure installed in the hall with a fully enclosed top. The microphone was attached to the camera, the microphone control button (on/off) was located on the spot where the judicial board was located.

The lawyers appealed to the college with several petitions. One of the first motions was to release M. Huseynov from the glass chamber and allow him to sit next to the lawyers for more effective protection. However, this petition was rejected. Further, the following petitions were filed: getting video records of the registrar from the patrol car, in which M.Huseynov was brought to the police on January 9; records of video cameras located near the Nasimi District Police Department; to summon and interrogate as witnesses Huseynov’s 4 friends (with whom he was on January 9 on the day he was kidnapped); to summon to the court and interrogate the head of the Department, accusing the blogger of slander. All the filed petitions were rejected by the court.

During the trial M. Huseynov told in detail about the torture in the police, having demonstrated the places on his body where the electric shock was applied.

The defense speech was based on the violations committed in the course of the judicial investigation in the court of first instance. The defense asked to justify Huseynov for the absence of corpus delicti.

On April 12, 2017, the Criminal Collegium of the Baku Court of Appeal ruled to refuse satisfaction the appeal and left the verdict of the first instance court of March 3, 2017 unchanged.

Commentary by an expert lawyer:

The judgment is illegal and unreasonable. As indicated above, the defense filed a large number of motions, which related directly to the defendant’s rights and freedoms, but none of them was satisfied. In this regard, it is worth recalling the norm of the criminal procedure legislation. Thus, in accordance with Article 299.7.1. of the Criminal Procedure Code of the Republic of Azerbaijan (CCP) ‘the court shall be entitled to reject only such applications that are irrelevant or related to the presentation of evidence in the event that it is deemed inadmissible.’ If the petitions of the defense party were satisfied, the matter would be clarified.

The defense pointed out that violations in the court of first instance were already admitted at the primary meeting. According to Article 298.3 of the Code of Criminal Procedure: ‘The court notifies the accused, his/her counsel, as well as the public prosecutor (if the prosecution is carried out by public or public-private accusation), the victim, the private prosecutor (if prosecuted in private prosecution), civil plaintiff, civil defendant or their representatives on the admission the materials of simplified pre-trial proceedings or a complaint in the private charges to the judicial proceedings of the relevant criminal case, and on the conduct of a preparatory hearing of the court, in the following terms:
(Article 298.3.2) no later than 3 (three) days prior to the preparatory hearing of the court on the basis of simplified pre-trial proceedings or a complaint in the form of a private prosecution.’
Despite the availability of these procedural rules, the court of first instance rendered the verdict without providing the resolution of the primary meeting.

The only evidence presented by the prosecution was a videotape, in which M.Huseynov speaks of torture and ill-treatment.

During the consideration of the case, the court of first instance violated the jurisdiction. The place of commission of the crime provided for in Article 147.2. CC RA, is the place where defamatory information was distributed. We recall that M.Huseynov spoke about torture and ill-treatment, leaving the building of the Nasimi District Court. The complaint was filed with the Surakhani District Court, at the place where Huseynov was registered.

During the trial, M.Huseynov’s lawyer stated that the head of the Nasimi District Police Department Musa Musayev had no right to file a complaint as a private charge, since M.Huseynov, speaking of torture, did not name anyone, and, therefore, did not cause any damage specifically to this person.

As it is known, the trial must proceed on the basis of the principle of competitiveness and equality of parties. As stated above, the defense appeal to summon to the court and interrogate as witnesses the 4 persons who could testify in favour of the accused, as well as private prosecutor Musa Musaev himself was rejected. Other defense petitions directly related to the case were also not satisfied. Thus, the principle of adversarial character and equality of parties was violated.
During the trial, the defense also recalled the torture to Emin Huseynov, Mehman Huseynov’s own brother, in the Nasimi District Police Department. On June 14, 2008, torture and ill-treatment were applied to him in the Nasimi District Police Department. This fact was confirmed by the decision of the European Court of Human Rights in the case of E.Huseynov v. Azerbaijan of May 7, 2015.

In M.Huseynov’s case, besides the material and procedural norms of national legislation, the norms of international law were violated. Thus, according to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ‘No one shall be subjected to torture or inhuman or degrading treatment or punishment.’

The following indicates the use of torture and ill-treatment to M.Huseynov:
·         On January 9, 2017, an ambulance was called to M.Huseynov in the Nasimi District Police Department, which was there from 10.28 p.m. to 10.47 p.m. He was diagnosed with lower varix dilatation, an injection was made from a mixture of analgin and dimedrol;
·         According to the conclusion of the forensic medical examination conducted on January 13, 2017, abrasions were found on M. Huseynov’s right arm and behind the right knee;
·         These damages refer to January 9, 2017.

Examination showed that traces of the use of an electric shocker on M.Huseynov’s body were not detected. In this case, it should be noted that the traces of the electric shock remain on the body for several hours, in some cases for one day. Examination was conducted 4 days after the incident.

It should also be noted the video recording attached to the case file by a private prosecutor. The source and origin of this video (by whom, when and how it was produced) was not established either by the private prosecutor or during the judicial investigation.  

In addition to Article 3 of the European Convention (Prohibition of torture and inhuman treatment), the court violated the following articles of the EC:
·         Article 5 (Right to person’s liberty and security),
·         Article 6 (Right to a fair trial),
·         Article 7 (Punishment solely on the basis of the law),
·         Article 10 (Freedom of expression of opinion),
·         Article 13 (Right to an effective remedy),
·         Article 14 (Prohibition of discrimination),
·         Article 17 (Prohibition of abuse of rights),
·         Article 18 (Limits on the use of restrictions on rights).

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Court dismissed Mehman Guseynov’s torture complaint

Analysis of violations upon consideration of the complaint regarding Mehman Huseynov’s tortures 

Sabail District Court, Baku
Case No. 6 (009) -24/2017
March 28, 2017
Presiding Judge: Ayten Aliyeva
Investigator of the Prosecutor’s Office of Baku: Hafiz Aliyev
Prosecutor of the Prosecutor’s Office of Baku: Rovshan Allahverdiyev
Complainant: Mehman Huseynov
Defenders: Elchin Sadygov, Shahla Gumbatova, Fuad Agayev

On January 9, 2017, around 19.40-19.45, Mehman Huseynov, the chairman of the Institute for Reporters’ Freedom and Safety, and his four friends Samir Asadli, Ulvi Hasanli, Mesud Asker, Elchin Sharifzade were in the center of Baku, at the intersection of Azi Aslanov and the Mardanovs streets. Mehman Huseynov left his friends to talk on his mobile phone. Suddenly, he saw a high-ranking official, an employee of the General Police Department of Baku, who recently summoned M.Huseynov to the General Police Department and required Huseynov to stop his journalistic investigations. At this time he was attacked by 5-6 people in civilian uniform. He started screaming and calling for help. At that moment an electroshock was applied to his vein, M.Huseynov fell to the ground, injuring his hands and knees. After that, he was closed his mouth and eyes with a rag, put a bag on his head and put him in the car. About an hour the police car was on the road. Although the distance to the nearest police department of Nasimi district, Baku is no more than 10 minutes. In the car, he was carried with his mouth tied, his eyes closed, his head lowered. This position made his breathing difficult. According to M.Huseynov, people who were with him in the car, discussed and decided where to take him: to the Office for Combating Organized Crime or to Baku Police Department. The car stopped several times.

At the end, M. Huseynov was brought to Nasimi District Police Department, where he was kept upside down with his mouth closed for a long time. He was brought to the office of the deputy head of the department, where he was opened his eyes and pulled a rag from his mouth. However, M.Huseynov lost consciousness, he was taken to another office, brought to life and returned to the office to the deputy chief. When Huseynov lost consciousness again, they gave the order to call an ambulance. The First Aid doctorsarrived at the place of the call, gave two sleeping pills to Huseynov, under the influence of which he slept until morning. Since his detention/ abduction on January 9, 2017, to his transfer to Nasimi District Court on January 10, 2017, neither his parents nor his lawyer were given any information about Huseynov at all.
M. Huseynov’s friends reported on his disappearance to 102 service (police call-up service), filed an application at the 22nd police station of Nasimi district, Baku. Mehman was at the District Police Department, but the police said they did not have information about him.
On January 10, Huseynov’s lawyers were informed that he was at Nasimi District Police Department. M.Huseynov was brought to Nasimi district court, where he was found guilty of committing an administrative offense under the article disobeying the lawful demand of police officers and fined for 200 manats. In court, M.Huseynov spoke about torture and ill-treatment.
On January 12, 2017, a judge of Nasimi District Court, Babek Panakhov, sent a letter to the Prosecutor’s Office of Baku to verify information stated in the complaint about torture and ill-treatment against M. Huseynov.
The investigation was entrusted to Hafiz Aliyev, and investigator of the Investigation Department of Baku Prosecutor’s Office. On January 19, 2017, H. Aliyev issued a resolution refusing to open a criminal case in the absence of a criminal incident.
M.Huseynov’s lawyers appealed to Sabail District Court with a complaint in the order of judicial supervision and tried to appeal against the unjustified resolution of Baku city prosecutor’s office dated on January 19, 2017. Mehman Huseynov told about the torture and ill treatment during a closed court session, clearly demonstrating his varicose veins and places of application of electric shock.
On March 28, 2017, Sabail District Court decided to refuse to satisfy the complaint and annulled the decision of the Prosecutor’s Office dated on January 19, 2017.

The comment by an expert lawyer:

Sabail District Court’s decision is illegal and unreasonable. The resolution of Baku prosecutor’s office states that there were traces of injuries on M. Huseynov’s body, blood on his clothes and that an “ambulance” was called to the Nasimi district police department to provide medical assistance to Huseynov. The doctors, who were summoned to the Office, confirmed Mehman’s diagnosis (varicosity) in their conclsion. In the conclusion of the forensic medical examination dated on January 13, 2017, it is said that there were indeed injuries on M. Huseynov’s body. However, it is noted that he could get such injuries as a result of the fall. M.Huseynov argues that when 5-6 people attacked him, they dumped him on the ground, put a bag on his head and took him away. He  got injuries at the time of falling to the ground.

It should be noted that neither Baku prosecutor’s office nor the court investigated the state of health of M. Huseynov before his arrest, and the witnesses who saw him on the eve of his detention were not questioned.

According to Article 12 of the Constitution of Azerbaijan “I. Ensuring the rights and freedoms of a person and citizen, a decent standard of living for the citizens of the Republic of Azerbaijan is the supreme goal of the state.” Article 25 of the Constitution states that “All are equal before the law and the court”. Article 26 of the Constitution states that “I. Everyone has the right to protect his/her rights and freedoms in ways and by means not prohibited by the law. II. The state guarantees the protection of the rights and freedoms of everyone. “

According to Article 41 of the Constitution “I. Everyone has the right to health care and medical care. III. Officials who hide facts and incidents that pose a threat to life and health of people shall be held accountable in accordance with the law. “

In addition to the constitutional norms, torture and ill-treatment are prohibited by Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to Article 3 of the Convention, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” This rule has no exceptions, which means that under no circumstances (war, fight against terrorism, etc.) can torture and ill-treatment be appliedagainst detainees.

In the case of M. Huseynov, he became a victim of ill-treatment, which led to a deterioration in his health. In addition, public authorities (the prosecutor’s office, courts) did not investigate the facts of torture. M.Huseynov and his defense associate a bad treatment with his blogging activities. In this case, it should be noted that police often use electric shocks to dissent journalists and bloggers.

It should be noted that Azerbaijani citizens regularly die during the last 22 years as a result of torture and beatings by law enforcement officials. At the same time, despite the corresponding obligation taken by Azerbaijan upon joining to the Council of Europe in 2001, none of the law enforcement officers was prosecuted for the use of torture.

The facts of torture in the country were investigated by the European Court of Human Rights (ECHR), which issued more than one decision on the prohibition of torture and ill-treatment against Azerbaijan:
-Mamedov v. Azerbaijan (dated on 11 January 2007)
– M. Muradova v. Azerbaijan (dated on April 2, 2009),
-Laijev v. Azerbaijan (dated on April 10, 2014)

In the decision of the European Court of Human Rights, Laidjev v. Azerbaijan (paragraph 39) it is stated: “The Court reiterates that Article 3 governs one of the basic values ​​of a democratic society. Torture and ill-treatment are prohibited upon the most difficult circumstances, even in the fight against terrorism and organized crime … In order to fall under article 3, ill-treatment must achieve at least a minimum level of cruelty. The assessment of this minimum level of cruelty depends on the general circumstances of the case, including the length of the treatment, the physical and mental consequences that resulted in ill-treatment, and in some cases it depends on the sex, age and state of health of the victim. “

The ECHR is principled in all its decisions regarding application of tortures and ill-treatment. We quote the decision of the European Court of Human Rights in the case of a French citizen: “… in the event that the body that was detained by the police in sound condition was found to be injured, the government must provide irrefutable explanations for the origin of such injuries. And if the government cannot explain such facts, then the issue of violation of Article 3 of the Convention arises “(according to the ECHR judgment under the case of Tomasi v. France, August 27, 1992
HYPERLINK “http://hudoc.echr.coe.int/eng”http://hudoc.echr.coe.int/eng#{“appno”:[“12850/87″],”itemid”:[“001-57796”]})“Although bodily injuries may seem easy quite, they are evidence of the use of physical force against a person deprived of liberty, which is therefore in an unequal position; Such treatment is at the same time an inhuman and degrading action”(clause 113, ECHR judgments”Tomasi v. France “, August 27, 1992
HYPERLINK “http://hudoc.echr.coe.int/eng” \\\\l “{\\\\”appno\\\\”:[\\\\”12850/87\\\\”],\\\\”itemid\\\\”:[\\\\”001-57796\\\\”]}” http://hudoc.echr.coe.int/eng#{“appno”:[“12850/87″],”itemid”:[“001-57796”]} )

The case of Mehman Huseynov regarding application of tortures and ill-treatment there are all the signs mentioned above.
Thus, the court rejecting the complaint of M. Huseynov on the investigation of torture and ill-treatment issued a decision unjustified by the law. It can be seen from the circumstances of the case that the police and, later, the courts, did not investigate the facts mentioned, and rejected the complaint without specifying irrefutable explanations and evidence, even though the burden of proof was laied precisely on them.

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The Baku Grave Crimes Court has pronounced the verdict for Leyla and Arif Yunusov

The analysis of the law violations during Leyla and Arif Yunusov’s judicial proceedings

The Baku  Grave Crimes Court

Criminal case no.1(101)-819/2015
August 13, 2015
Chairman: Afgan Hajiyev
Judges: Rasim Sadikhov, Fikrat Garibov
Prosecutor: Farid Naghiyev
Accused: Leyla Yunus, Arif Yunus
Defenders: Ramiz Mammadov, Elchin Gambarov, Afgan Mammadov, Elchin Sadighov
Victim’s representative: Shohrat Allahmanov
 On April 19, 2014, a journalist Rauf Mirgardirov was deported from Turkey. He was involved in the criminal case as a suspect. On April 21, 2014 he was charged with committing a crime under Article 274 (Treason against the state) of the Criminal Code of the Republic of Azerbaijan. On April 28, 2014, approximately at 11 p.m., Leyla and Arif Yunusov were detained at the Heydar Aliyev International Airport. Around at 6 a.m. they were brought to the Grave Crimes Department of the General Prosecutor’s Office and interrogated as witnesses in Rauf Mirgardirov’s case.

On July 30, 2014, Leyla Yunusova was charged with committing crimes under Article 274 (Treason against the state), and on June 22, 2015, she was charged again with crimes under Articles 178.3.2. (Fraud in a particularly large amount), 192.2.2.(Illegal business with the extraction of income in a large amount), 213.2.2.(Evasion from paying taxes in a large amount), 320.1.(Forgery, illegal manufacture or sale of official documents, state awards, seals, stamps, and forms or use of forged documents), 320.2.(Use of forged documents). On the same day, by order of the Nasimi District Court, a measure of restraint in the form of detention was imposed against L.Yunusova. On October 24, 2014 and on February 18, 2015, her detention was extended until July 28, 2015.
On July 30, 2014, Arif Yunusov was brought on trial as a defendant under Articles 274 and 178.3.2. of the Criminal Code of the Republic of Azerbaijan. With respect to him, a measure of restraint in the form of transfer to the supervision of the police was chosen. On August 5, 2014, this measure of restraint was changed to imprisonment. By the decisions of the Nasimi District Court of October 29, 2014 and February 23, 2015, the term of detention was extended until August 5, 2015. On June 22, 2015 A.Yunusov was charged under Article 178.3.2. of the Criminal Code of the Republic of Azerbaijan.
The trial of the married couple Yunusov began on July 15, 2015. The couple was placed in a glass aquarium. Opposite the aquarium was a table, behind which sat lawyers, the prosecutor and the representative of the organization Women of Azerbaijan for Peace and Democracy in Transcaucasia, recognized by the investigative body as the injured party. At the preparatory meeting, the lawyers appealed to the court with petitions for the termination of the criminal case, changing the measures of restraint in view of the state of health of both accused. They also asked the court to allow the accused to move from the glass aquarium to the table where lawyers were located for effective consultations. The prosecutor, expressing his opinion, said that these applications are unreasonable and should be rejected by the court. He also pointed out that lawyers have the opportunity to approach the aquarium and advise their clients without any restrictions. The representative of the injured party expressed solidarity with the prosecutor and asked the court to reject the petitions. When the judges retired to the meeting, Leyla Yunusova appealed to the representatives of the press and embassies present. She reported that on September 11, 2014, December 23, 2014 and May 20, 2015, while in the Baku Investigative Isolation Ward, she was beaten by the employees of the isolation ward. As a result, her left eye became to see hard.
Returning from the advisory room, the judicial board announced the decision concerning the petitions submitted. All defence pleas were rejected.
The trial continued on July 27, 2015. The defence filed an application to remove from the case a Rena Safaraliyeva’s representative who was recognized a victim. Arif Yunusov’s lawyer appealed to the court with another petition to change the measure of restraint against his client. However, the court rejected both of these motions. Then the court proceeded to a judicial investigation, and the prosecutor read out the indictment in the criminal case. Leyla and Arif Yunusov  refused to testify.
On July 27, Rena Safaraliyeva, speaking at the trial, stated that she had not been the chairman of the Society practically for more than 10 years.
At the court session on July 28, 2015, the witnesses of the case began to be questioned. The trial was held in a semi-closed mode, as representatives of the public, politicians and activists, journalists and observers from international organizations were deprived of the opportunity to attend the court session. Those who remained outside the courtroom protested to the court staff and stated that the openness of court session was violated. At the beginning of the meeting Leyla Yunusova stated that the hall was filled with unauthorized persons (most likely by law enforcement officers) who had nothing to do with the accused. Among the interrogated was the journalist Rauf Mirgadirov, arrested in this case, who is charged with Article 274 (Treason against the state) of the Criminal Code. Adila Manafova interrogated in court as a witness, was one of the co-founders of Women of Azerbaijan for Peace and Democracy in Transcaucasia organization. She showed that Leyla Yunusova was deputy chairman of the organization and was engaged in the resolution of the Karabakh issue. The Armenian side was wary of her arguments and could not imagine anything as a counterbalance. At this point, the prosecutor intervened in the testimony of the witness and said that this had nothing to do with the case.
The next meeting was scheduled for August 3, 2015. On this day, before the beginning of the process, Arif Yunusov’s health deteriorated sharply. The pressure increased to 220/160. But, despite this, before the ambulance arrived, he, along with Leyla Yunusova, were in the glass aquarium. All those gathered around the courthouse were informed about the postponement of the meeting for another day, but the process continued soon.
The trial continued on August 4, 2015, where witnesses, journalists Anna Bartulashvili and Akbar Hasanov, chairman of the Oilmen’s Rights Protection Committee Mirvari Gahramanli, were questioned, and the testimony of the chairman of the Women’s Crisis Centre, Matanat Azizova, was read out.
At the court session on August 5, 2015, the court conducted an analysis of the materials of the criminal case. Arif Yunusov’s lawyer, Afgan Mammadov, filed a petition with the court to challenge the judicial board and demanded the replacement of judges. However, the public prosecutor called this application groundless from a legal point of view and asked the court to dismiss it. Then L.Yunusova’s lawyer Ramiz Mammadov applied for the court to annul the status of the head of the organization Women of Azerbaijan for Peace and Democracy in Transcaucasia Rena Safaraliyeva as a victim. He also submitted to court the book published by L.Yunusova at the expense of the grant from the Marshall Fund, and asked to attach it to the materials of the criminal case. In addition, the lawyer asked the court to invite a representative of the fund as a witness. He stated that the means under the grant of the Marshall Fund were spent on publishing this book. The fund did not have any complaints about this. The court partially accepted this petition and attached the book to the case materials. During the trial, L.Yunusova said that she cannot participate on a daily basis due to the state of health. However, the state prosecutor stated that L.Yunusova is under constant medical control and there are no problems with her bringing to court.
During the trial, Arif Yunusov was regularly injected by a doctor from the Ministry of National Security. Under the influence of these injections, Arif Yunusov was sleeping on the dock all the time, laying his head on his wife’s knees. He did not hear anything on the court at all.
On August 6, 2015, the judicial investigation was completed. The prosecutor, speaking with the accusatory speech, supported the state accusation, asked the court to convict the defendants of all the charges, and to sentence Leyla Yunusova to 11 years, and Arif  Yunusov  to 9 years in prison.
On August 13, 2015, the Baku Grave Crimes Court found Leyla and Arif Yunus guilty of committing the accusations and sentenced L.Yunusova to 8.5, and A.Yunusov to 7 years of imprisonment with confiscation of property.

Commentary by an expert lawyer:

The sentence is illegal, unreasonable, unfair and inhumane. The Criminal Code of the Republic of Azerbaijan contains a number of principles, according to which criminal prosecution and punishment must be conducted: the principle of legality, equality before the law, responsibility for guilt, justice, and finally, the principle of humanism.
The findings of the court are recognized as not in accordance with the facts of the case, if: · The conclusions of the court of first instance reflected in the verdict or resolution are not supported by the evidences examined in the court session (Article 401.2.1 of the Code of Criminal Procedure);
·     The court of first instance did not take into account the evidences examined in the court session, which significantly influenced the correctness of its conclusions (Article 401.2.2 of the Code of Criminal Procedure);
·     Insufficient clarity of information about the identity of the convicted or acquitted, against whom compulsory measures of an educational or medical nature are applied (Article 400.2.3 of the Code of Criminal Procedure);
·     Circumstances that are essential for the consideration of the charge are not confirmed in the verdict or the decision of the court of first instance with the evidence specified in the law (Article 402.0.1., CCP).

The charge for fraud in a particularly large amount
 
It should be noted that all projects on grants were prepared and executed by L.Yunusova. The organization Women of Azerbaijan for Peace and Democracy in Transcaucasia did not have any rights of property and disposal for grants received. Donor organizations accepted reports, they had no claims and complaints about Leila and Arif Yunusov, as well as about the organization Women of Azerbaijan for Peace and Democracy in Transcaucasia.
The Power of Attorney for Shohrat Allahmanov, who participated in the court, was issued not by the organization Women of Azerbaijan for Peace and Democracy in Transcaucasia, but personally by Rena Safaraliyeva, who had not managed the organization for a long time. The organization was liquidated in May 2014. In the court R.Safalaliyeva stated that she had not suffered any material damage from L.Yunusova. If there is no material damage, the crime under article 178 of the Criminal Code is not formed. If a charge for fraud is filed, then a source of money must be found. In this case, the funds are the funds of donor organizations, which, moreover, do not have any complaints and claims against the accused.

Charge of illegal entrepreneurship

One of the charges against Leyla Yunusova is the charge provided for in Article 192.1. of the Criminal Code of the Republic of Azerbaijan. According to this article, illegal entrepreneurship is the implementation of entrepreneurial activity without state registration in the manner prescribed by the legislation of the Republic of Azerbaijan, or without special permission (license) in cases when such permission (license) is mandatory, or with violation of licensing terms or using subjects without special permission, civil circulation of which is limited, if this act caused large damage to citizens, organizations or the state, and to obtain a yield to a considerable extent.
The concept of ‘illegal entrepreneurship’ is also given in the Civil Code and Entrepreneurial Activity Act: ‘Entrepreneurial 4activity (entrepreneurship) is an independent initiative activity of individuals, their associations, as well as legal entities for profit or personal income, in the form of all types of economic activities not prohibited by law, including production, marketing of products and rendering services at their own risk and under their property responsibility or on behalf of other legal entities or individuals.’
If we summarize the content of the charges, we can come to the conclusion that, according to the accusation, Leyla Yunusova carried out projects without state registration, which is prohibited by law.
In this regard, it should be noted that, in accordance with Article 1 of the Grants Act, the grant is assistance provided in the manner prescribed by this Act for the preparation and implementation of humanitarian, social and environmental projects, rehabilitation of destroyed facilities and infrastructure of industrial and social appointment in the territories affected by the war and natural disaster, programs in the fields of education, health, culture, consulting, information, publishing and sports, scientific, research, project, and other programs important for the state and society.

Paragraph 3 of this article states that material assistance used for direct profit extraction is not recognize as a grant. Any financial and/or other material resources remaining at grantee’s disposal after the completion of the project constituting the subject of the grant, unless otherwise provided by the grant agreement (resolution), at the discretion of that person, should be spent on the implementation of projects and programs, which may be the subject of the grant.

Apparently, the state registration of grant contracts does not affect their essence and does not change it. The concept of ‘entrepreneurship, as indicated above, consists of completely different signs. The state registration of grant of contracts is only an administrative action.

The accusation of tax evasion

 

The analysis of the law violations at the trial versus Leyla and Arif Yunusov 

The Baku  Grave Crimes Court

 

According to Article 1 of the Agreement on Cooperation between the Governments of the Republic of Azerbaijan and the United States of America on Simplification of Mutual Assistance, goods, stationery, equipment, materials, machinery, specialized courses, services and other property acquired in connection with the United States assistance program, including money imported or exported to the country, are exempt from all kinds of taxes, property tax rates, customs duties, import taxes. On the legal essence, grant contract is assistance.

 

Violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms

 

According to Article 3 of the European Convention, no one shall be subjected to torture or to inhuman or degrading treatment or punishment. 60-year-old spouses, suffering from numerous chronic diseases, daily, at the hottest time of the year, were brought to court in a closed, iron car. Practically every meeting began with the deterioration of the health of the spouses, in particular Arif Yunus. Leyla Yunus noticeably lost weight, her complexion was yellow, excessive sweating due to weakness was observed. According to the basic principles of the European Penitentiary Rules, life in places of deprivation of liberty should be as close as possible to positive aspects of life in society. Paragraph 32 (2) of the Rules stipulates that the transportation of prisoners in insufficiently ventilated and illuminated vehicles, or in conditions creating unnecessary inconveniences for them or insulting their dignity. The Rules contain a separate chapter on female prisoners. According to paragraph 34 (1) of the Rules, in addition to complying with the provisions of these Rules directly relating to female prisoners, the administration must pay attention to the needs of women, in particular their physical, professional, social and psychological needs in making any decisions that affect certain aspects of their imprisonment.
The administration of penitentiary institutions ensures the health protection of all prisoners of these institutions (Paragraph 39 of the Rules). Each penitentiary institution must have at least one appropriately qualified general practitioner. In a particular case, the examination is limited to taking blood. No proper treatment of L.Yunusova is carried out. In addition, there are serious contradictions in the findings of the local doctor, examining L.Yunusova, and his German counterpart. The opinion of local doctors indicates the absence of any serious illness in L.Yunusova, while the German doctor’s conclusion mentions hepatitis C and a number of other serious diseases that cannot be effectively treated in penitentiary settings. In addition, there are no specialized doctors in the penitentiary service hospital.
According to paragraph 46 (1) of the Rules, sick prisoners requiring specialized treatment are transferred to specialized institutions or civil hospitals, if such treatment is impossible in the penitentiary institution.
In addition to the foregoing, L.Yunusova repeatedly declared physical violence against her in the course of the judicial investigation. This information was widely covered in the local and international press. However, the court did not take into account these statements and did not properly investigate these statements.
Arif Yunusov was brought to court in handcuffs, which were removed after he was placed in the glass aquarium. According to the Rules, handcuffs, straitjackets and other means of restraint of movement are not applied, except if necessary in case of prisoner escaping and if a prisoner can injure himself, others, or to prevent property damage. These cases are not applicable to Arif Yunusov  because the prisoner suffers from a severe form of hypertension and repeatedly suffered a hypertensive crisis in prison. Detention with imprisonment is a punishment in itself, and therefore, the regime for convicted prisoners should not exacerbate the suffering associated with imprisonment (paragraph 102 (2) of the Rules).
Article 5 (1) of the European Convention was also violated in respect of the Yunus spouses. According to this article (paragraph (c)), everyone has the right to freedom and personal inviolability. No one can be deprived of liberty except in the following cases and in the manner prescribed by law: (c) the lawful detention or taking into custody of a person, to make him/her appear before the competent authority on reasonable suspicion of committing an offense or in the event that there are sufficient grounds to believe that it is necessary to prevent the commission of an offense or to prevent him/her from escaping after the commission of an offense. In accordance with the precedents of the European Court of Human Rights, the right to liberty and inviolability of person is one of the fundamental rights provided for in the Convention. With regard to the Yunusovs’ spouses, a decision was adopted to select a measure of restraint in the form of detention, the term of which was repeatedly extended. In addition, at first, a measure of restraint was chosen with respect to ArifYunusov that was not related to arrest, namely, transfer to police supervision. Subsequently this measure of restraint was changed to arrest. The decisions contained general, abstract concepts used in the criminal procedure legislation. According to the judgment of the European Court in the Smirnov v. Russia case of July 24, 2003, a person charged with an offense must always be released pending trial, except in cases where a state can produce ‘relevant and sufficient’ grounds to justify prolonged detention (paragraph 58). In this case, the decisions on the selection of the measure of restraint and the time of its extension were of a general nature. Courts did not approach this issue individually, did not take into account the person, age, professional activity and health of the accused.
In addition to the above-mentioned norms of the Convention, there is obviously a violation of Article 6(1) (The principle of publicity). Article 6(1) reads: ‘Everyone is entitled to a fair and public hearing in the determination of civil rights and obligations or of any criminal charge against him/her within a reasonable time by an independent and impartial tribunal established by law. The judgment is announced publicly, however, the press and the public may not be admitted to court sessions throughout the whole process or part thereof for reasons of morality, public order or national security in a democratic society, and when the interests of minors so require or to protect the privacy of the parties, or, in so far as it is strictly necessary in the opinion of the court, under special circumstances, when publicity would violate the interests of justice.’In this case, the principle of publicity was violated especially vividly. Representatives of the public and the media (Azadlig Radio, BBC, Voice of America, Azadlig newspapers, etc.) were not allowed into the meeting hall. The hall was filled with strangers who entered through another door. The doors of the reception room, through which the entrance to the meeting hall was located, were locked up, which caused indignation and discontent of those wishing to attend the trial. In addition, the court supervisors behaved extremely disrespectfully and rudely against visitors and used physical force more than once.
The European Court repeatedly stated in its decisions that ‘the purpose of publicity of the trial is to protect the parties involved in the case from the secret administration of justice. This is one of the ways to ensure trust in the courts of the lower and higher levels. At a minimum, in some cases, a refusal of a public hearing is permissible, provided that the refusal proceeds from the interested person according to his/her own free will, without exerting pressure on him/her, and in an unambiguous form. The requirement that a judgment be pronounced publicly is not conditioned by any implied limitations and acts even in the case of a closed nature of the hearing itself.’ Despite the norms of domestic and international law, which also enshrined the principle of publicity, the trial of the couple Yunus and the announcement of the verdict was held in a semi-closed regime.
It follows from the foregoing that the investigation in the criminal case was conducted one-sidedly, superficially and biased, and the court of first instance rendered the verdict, having taken into account only the arguments of the prosecution, the arguments and reasons of the defense were not investigated

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