10 more Armenian prisoners of war were convicted with the International Law violations

10 MORE ARMENIAN PRISONERS OF WAR WERE CONVICTED WITH THE INTERNATIONAL LAW VIOLATIONS

Armenian prisoners of war

Analysis of violation of law during 10 Armenian prisoners of war judicial proceedings

Baku Grave Crimes Court

Case №1(101)-1258/2021

July 29, 2021

Presiding judge: Faiq Qaniyev

Judges: Mirza Khankishiyev, Ilham Mahmudov

Defendants: Robert Gevorkyan, Karen Aramyan, Andranik Sukiasyan, Eduard, Giragosyan, Gevorg Martirosyan, Volodya Hakobyan, Tigran Avakyan, Ovsep Manukyan, Grigor Saqatelyan, Vagarshak Avetisyan.

Defenders: Parviz Musayev, Emin Babayev, Faiq Dunyamaliyev, Guldisar Karimova, Togrul Mammadov, Nardana Farzaliyeva, Musa Hasanov, Aqil Nuriyev, Soyankhan Mustafayev, Ayazbey Ahmadov.

State prosecutors: Vugar Guliyev, the Senior Prosecutor-Methodist of the State Prosecution Support Department  in Serious Crimes Courts of the General Prosecutor’s Office of the Azerbaijan Republic, and Ziya Mansurov, the prosecutor of the same Department.

In September 2020, there were the violent hostilities between Azerbaijan and Armenia in and around Karabakh. As a result of the 44-day-war, Azerbaijani soldiers liberated several towns and many villages in Karabakh and the territory adjacent to it.  Dozens of Armenian soldiers were captured in the course of military operations and were convicted and sentenced to the various terms of imprisonment.

Robert Gevorkyan, born on 1998, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1 (Terrorism, committed on preliminary arrangement by group of persons, by organized group or criminal community), 214.2.3 (Terrorism, committed with application of fire-arms or subjects used as a weapon), 228.3 (Illegal purchase, transfer, selling, storage, transportation and carrying of fire-arms, accessories to it, supplies or explosives, committed by organized group), 279.2 (The attack on enterprises, establishments, and organizations or on separate persons by structure of formations or groups which is provided by articles 279.1 and 279.1-1 of the present Code) and 318.2 (Crossing of protected frontier of the Azerbaijan Republic, committed on preliminary arrangement by group of persons or organized group either with application of violence or with threat of its application) of the Criminal Code of the Azerbaijan Republic.

Karen Aramyan, born on 1995, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Andranik Sukiasyan, born on 1997, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Eduard Giragosyan, born on 1992, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Gevorg Martirosyan, born on 1999, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Volodya Hakobyan, born on 1999, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Tigran Avakyan, born on 1998, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Ovsep Manukyan, born on 1993, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Grigor Saqatelyan, born on 1992, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

Vagarshak Avetisyan, born on 1996, a citizen of the Republic of Armenia, a military serviceman, who is currently detained in the Baku Investigative Isolator of the Penitentiary Service of the Azerbaijani Ministry of Justice, was prosecuted as an accused on December 13, 2021 and charged under the Articles 214.2.1, 214.2.3, 228.3, 279.2 and 318.2 of the Criminal Code of the Azerbaijan Republic.

According to the investigation, Robert Gevorkyan, Karen Aramyan, Andranik Sukiasyan, Eduard Giragosyan, Gevorg Martirosyan, Volodya Hakobyan, Tigran Avakyan, Ovsep Manukyan, Grigor Saqatelyan and Vagarshak Avetisyan and some others, all citizens of the Republic of Armenia, as part of an organized criminal group, have illegally crossed the State border of the Azerbaijan Republic, and acquired, stored, and carried the firearms, as well as its accessories, ammunition and explosives. Thus, the aforesaid Armenian citizens had been committing the mentioned crimes from November 27, 2020, till December 13, 2020.

The defendant, Robert Gevorkyan, interrogated in the course of the trial, did not plead guilty to the incriminated crimes and declared his disagreement with the charges at all. He revealed that he received a phone call on November 26, 2020, and was summoned to the military base. On November 27, 2020, R. Gevorkyan went there in Voskeask village. At the place, he was given a military uniform and a Kalashnikov automatic rifle. He explained that the provided weapons were not issued illegally, it had its own registration number, and the soldier signed the document upon receiving it. In addition to weapons, he was also given a helmet, 120 bullets and four magazines with ammunition. Once the soldiers had been issued their weapons, they were told to go to the town of Kajaran in Armenia, in order to replace other soldiers at the posts, and then should return. There had been about 100 servicemen on the bus who had not been aware of the fact that the bus had been going to Lachin. They only understood it when the bus stopped. They arrived at the location between the cities of Lachin and Hadrut. Then, for about 3-4 hours, they climbed up the mountain. At the summit they were ordered to stop. Once they were up, other Armenian soldiers went down. Their commander was the Lieutenant Colonel Arsen Ghazaryan. The soldiers were ordered not to open fire. Due to the fog on the top of the mountain while they had been there for 16 days they couldn’t see anything.  Ghazaryan was given provisions by the Russian peacekeepers, who brought the food to the tent located down the hill, and then he collected it there. Gevorkyan testified that he had never been to Lachin before and knew that it was Azerbaijani territory. On December 13, 2020, the military was ordered to go down. They were to be taken to Armenia. Once down, the Armenian military encountered the Azerbaijani soldiers of the “Yashma” military unit. The Azerbaijani commander ordered them to hand over their weapons, and although promised to pass them to the Russian peacekeepers but he did not.

In response to questions posed by the participants of the trial, the accused Robert Gevorkyan said that during his arrest he had not been given the opportunity to contact his family. The last time he spoke to his family was on December 10, 2020. He did not confirm the part of his testimony provided during the investigation, in which he spoke about the order of using the weapon.

Karen Aramyan, who was interrogated as a defendant, pleaded not guilty to the charges and testified that he received a summons from the military commissariat of the city of Gyumri in November 2020. On November 27, 2020, he went directly there. Along with other soldiers they were brought on a bus to a military unit in Gyumri. There, they were given military uniforms and a Kalashnikov automatic rifle. Further, Karen Aramyan’s testimony did not differ from Robert Gevorkyan’s one.

The defendant Andranik Sukiasyan interrogated at the trial, pleaded not guilty to the charges and testified that on November 27, 2020, in accordance with the summons, he had gone to the military registration and enlistment office in Gyumri. Further, Sukiasyan’s testimony did not differ from the testimonies of the previously interrogated defendants. A. Sukiasyan answered to the questions of the trial participants that he had not participated in any military operations. Their commander, Colonel Lieutenant Arsen Ghazaryan did not order to carry out any explosions, they were ordered not to use weapons, and he did not provide testimony on the use of weapons within the investigation.

The defendant, Eduard Giragosyan, interrogated at the trial, pleaded not guilty to the accusations and testified that on November 26, 2020, he was summoned to the military commissariat in Gyumri together with the other defendants. Arsen Ghazaryan, a Lt-Colonel, was in charge of the soldiers. The soldiers were given military uniforms and Kalashnikov automatic rifles. Their goal was to replace the Armenian military personnel on duty. Further, E. Giragosyan’s testimony did not differ from that of the previously interrogated defendants. On December 13, 2020, the Armenian soldiers were detained by the Azerbaijani military unit “Yashma”.

Answering the trial participants’ questions, E. Giragosyan replied that he could not refuse and could not go to the military unit, otherwise a criminal case would have been initiated against him. There were drones flying over there, but they were told that those drones were the ones of Russian peacekeepers in order not to be afraid of. He contacted his family only once through an Armenian mobile operator throughout the period of his arrest. The defendant also testified that they had not been ordered to carry out any explosions. He did not confirm his testimony provided at the inquiry related to this part. The defendant did not know that he had been on the territory of Azerbaijan.

The defendant Gevorg Martirosyan interrogated at the trial didn’t plead guilty to the charges and testified that on November 27, 2020, having received a summons, headed to the military unit in Gyumri. Martirosyan’s testimony was similar to those of the previously interrogated defendants.

In response to the participants of the trial questions, G. Martirosyan replied that he had been unaware that the territory belonged to Azerbaijan, they just had fulfilled their duty. There had been no people in that area, they had only eaten their food for a period of 13-14 days. No orders to carry out explosions had been given to them. Although they were aware of the end of the war but they were told that these territories belonged to Armenia.

The defendant Volodya Hakobyan, interrogated in the court, pleaded not guilty to the charges and testified that on November 26, 2020, he received a call from the military registration and enlistment office, and on November 27, 2020, he arrived at the military unit. They were given the military uniforms and Kalashnikov automatic rifles. Further, the testimony of the defendant V. Hakobyan did not differ from the testimonies provided by the previously interrogated defendants.

Answering the trial participants’ questions, Volodya Hakobyan replied that if he had not gone to the military unit, he would have been arrested. His task was to guard and observe. He also testified that at the time of his testimony under investigation he remembered the number of his weapon, but at the trial he had forgotten it. They were not ordered to open fire or carry out explosions, on the contrary, they were ordered not to use weapons.

The defendant Tigran Avakyan interrogated at the trial pleaded not guilty to the charges and testified that on November 26, 2020, he received a phone call from the military registration and enlistment office. On November 27, 2020, he went to the military unit where he was given a military uniform, a helmet and a Kalashnikov automatic rifle. Further, Tigran Avagyan’s testimony did not differ from the testimonies provided by the other defendants.

In response to the trial participants’ questions, T. Avakyan replied that due to the end of the war they would not have been able to open fire on the Azerbaijani soldiers. They were not given an order to commit any explosions. He testified that he had not given such testimony in the course of the investigation. The defendant signed the testimony without understanding its meaning at the investigation, therefore he did not confirm that part of his testimony before the court.

The defendant Ovsep Manukyan interrogated by the court pleaded not guilty to the charges and testified that on November 25, 2020, he received a phone call from the military enlistment office and was summoned to the military unit. On November 27, 2020, he went down there. There were about 100 soldiers. All of them were given their military uniforms and Kalashnikov automatic rifles. Their commander was Arsen Ghazaryan, a Lt. Colonel who forbade them to use their firearms. O.Manukyan’s testimony was similar to those of the other defendants. He testified that their task had just been to stand on guard.

The defendant explained that he had been previously called up for the military service, it was four years ago, but he had not gone because he had an exemption from the military service due to his work. However, it was impossible not to go that time, as he would have been threatened with arrest. If he had known that the post he was on did not belong to Armenia, he would have objected and would not have been there. H. Manukyan testified that he had not been to Jabrayil, and he did not provide such statements within the investigation. He was married and had one child. While on duty, he had no opportunity to contact his family.

The defendant Grigor Saqatelyan interrogated in the court did not plead guilty to the charges and testified that, similarly to the other defendants that on November 27, 2020, he went to the military unit upon receiving a summons from the military registration and enlistment office. Further, G. Saqatelyan’s testimony was similar to the testimonies provided by the other defendants.

Answering to the questions posed by the trial participants, the defendant G. Saqatelyan replied that he had known that Karabakh belonged to Azerbaijan, but then they were told that some part of it had been surrendered. However, G. Saqatelyan did not know that he had been on the Azerbaijani territory. The Lieutenant Colonel Arsen Ghazaryan did not issue an order to shoot or carry out explosions. G. Saqatelyan did not provide such a testimony in the course of the investigation. The defendant regretted that he had gone there following a summons from the military commissariat.

The defendant Vagarshak Avetisyan interrogated by the court didn’t plead guilty to the charges and testified that on November 26, 2020, he received a phone call from the military registration and enlistment office and, on November 27, 2020, he went there where he was given his military uniform and other accessories having signed a document upon their receipt. Further, V. Avetisyan’s testimony was similar to the testimonies provided by the other defendants. On December 13, 2020, they were encountered with the Azerbaijani soldiers who ordered them to surrender their weapons. So, they obeyed the order, their hands got tied, and they were made walk for a whole day until reached up some unfamiliar place, a building.

When questioned by the trial participants, the defendant V. Avetisyan answered that he had not participated in any military operations. Even though he had been on duty at the time, he was not sent to the combat. Neither he nor the other soldiers were ordered to shoot or carry out explosions. V. Avetisyan  did not confirm his testimony concerning this part that he gave during the investigation.

In the course of the trial, it was interrogated Anar Abdullayev as a witness who testified that following the act of Armenia’s capitulation from November 9, 2020, they received information about the presence of the Armenian terrorists, diversionists on the liberated territories. The information consisted of the fact that in November and December 2020, a group of armed Armenian terrorists illegally crossed the border at Lachin in order to commit terrorist acts and provocations on the territory of Azerbaijan and, having fortified their positions, settled in the Hadrut district. The Armenian terrorists attacked a base of the mobile operator station belonging to Azerbaijan in Hadrut, as well as several Azerbaijani citizens and servicemen. On December 12, 2020, the alarm sounded in the military base where Anar Abdullayev was serving. The troops were ordered to conduct an anti-terrorist operation in Hadrut. They located the Armenian armed groups. A plan was elaborated to neutralize those groups. Having stayed for a day in the village of Domu, the soldiers headed towards the Armenian fortified positions. They saw about 60 Armenian terrorists between Khojavand and Lachin. The Azerbaijani servicemen suggested that they surrender and lay down their arms. The Armenian terrorists, having realized that resistance was impossible, surrendered. As a result of the antiterrorist operation, 62 Armenian were detained. They were handed over to the relevant bodies, as well as their weapons. A day later, the Azerbaijani authorities continued their anti-terrorist operation searching for the hidden Armenian terrorists in the villages surrounding Khojavand. As a result of that operation, two more Armenian terrorists, Argan Unanyan and David Voskanyan, who were heading towards Lachin, were detained on the territory of Khojavand. They were also handed over to the appropriate authorities for an investigation. Another witness in the case, Sadiq Huseynov, provided the similar testimony to the one given by Anar Abdullayev, which substantiated the testimony of the latter.

According to the reference document issued by the State Security Service of Azerbaijan from December 16, 2020, following the agreement signed between Azerbaijan, Armenia and Russia on November 9, 2020, there were some Armenian armed groups operating in the woodland northwest of Hadrut in the Khojavand region. In this regard, they were created conditions for their elimination. The Russian peacekeepers used a sound amplifier addressed from the air, in harsh weather conditions, and informed them of measures to be taken to eliminate them from the territory. Despite that, the Armenian military have neither liberated the territory, but on the contrary, they set up their positions and committed provocations and sabotage against the military personnel and civilians of Azerbaijan. On December 13, 2020, the Azerbaijani State Security Service carried out an anti-terrorist operation resulting in the detention of 62 Armenian terrorists. Then on December 14, 2020, two more Armenian terrorists, Argan Unanyan and David Voskanyan, were detained.

The results of the forensic ballistic examination, conducted on April 15, 2021, indicated that the weapons seized from the detainees had been suitable for use.

The Criminal case files also reveal that a criminal case was launched against the commander, Lieutenant-Colonel Arsen Ghazaryan, under the Articles 214. 2.1, 214.2.2, 214.2.3, 228.3, 279.2, and 318.2 of the Criminal Code, and with regard to Argan Unanyan and David Voskanyan, it was filed a criminal case under the Articles 214.2.1, 214.2.3, 228.3, 279.2, and 318.2 of the Criminal Code. These criminal cases were allocated to separate proceedings.

In assessing the defendants’ guilts, the Court determined that their dependence on the authorities, both on the official and political sides, and the fact that Eduard Giragosyan has two minor children, and Ovsep Manukyan has one minor child, constituted softening circumstances. The Court did not find any aggravating circumstances in the case.

According to the criminal case records, despite the fact that the defendants were detained on December 13, 2020. Robert Gevorkyan, Karen Aramyan, Andranik Sukiasyan, Eduard Giragosyan, Gevorg Martirosyan, and Volodya Hakobyan were charged on March 26, 2021; Tigran Avagyan, Ovsep Manukyan, Grigor Saqatelyan, and Vagarshak Avetisyan were charged on March 27, 2021. The Court considers that, although the defendants were ordered to be restrained at different times, their freedom was actually limited on December 13, 2020. That is why the term of the sentence will be determined from that date.

On July 29, 2021, the Baku Court of Serious Crimes issued a verdict:

• Robert Gevorkyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
• Karen Aramyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
• Andranik Sukiasyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
• Eduard Giragosyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
• Gevorg Martirosyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
• Volodya Hakobyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
• Tigran Avakyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
• Ovsep Manukyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
• Grigor Saqatelyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.
• Vagarshak Avetisyan was found guilty of committing crimes under the Articles 228.3 and 318.2 of the Criminal Code of the Azerbaijan Republic and sentenced to 6 years of imprisonment to be served in a general regime penal colony. The criminal prosecution under the Articles 214.2.1, 214.2.3, and 279.2 of the AR Criminal Code was dismissed.

The verdict also stated that all the accused, once served, were to be forcibly deported from the Azerbaijan Republic.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. The most important principle applying to such criminal cases is the equality of all before the Court and the Law, without any discrimination. Therefore, every detail is very meaningful to an outside observer.

According to the Article 25 of the Azerbaijan Republic Constitution,

1. All people are equal with respect to the law and law court.

III. The state guarantees equality of rights and liberties of everyone, irrespective of race, nationality, religion, language, sex, origin, financial position, occupation, political convictions, membership in political parties, trade unions and other public organizations. Rights and liberties of a person, citizen cannot be restricted due to race, nationality, religion, language, sex, origin, conviction, political and social belonging.

In the Article 7 of the Law of the Azerbaijan Republic On Courts and Judges states:

As set down in Article 25 of the Constitution of the Republic of Azerbaijan, justice in the Republic of Azerbaijan is administered on the bases principle of equality of everyone before law and court, irrespective of race, nationality, religion, language, sex, origin, proprietary status, public rank, conscience, membership in political parties, trade unions or other civil organizations.

The prohibition of discrimination is also enshrined in the International Legal Norms. The Article 14 of the European Convention on Human Rights states:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

This Principle is also enshrined in the Article 26 of the International Covenant on Civil and Political Rights, as well as in the Article 2 of the Universal Declaration of Human Rights.

The European Court of Human Rights (ECHR) observes this principle in the light of the other Articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

According to the Article 25 of the Azerbaijan Republic Constitution,

1. Foreign citizens and stateless persons staying in the Azerbaijan Republic may enjoy all rights and must fulfil all obligations like citizens of the Azerbaijan Republic if not specified by legislation or international agreement in which the Azerbaijan Republic is one of the parties.

Let us examine whether this Principle was respected in this criminal case.

The key question for the Court to determine is whether the defendants committed the incriminated crimes. As mentioned above, the witnesses did not identify any specific names in their testimonies. They only testified that 62 Armenian military personnel had been arrested. Whether the accused were among them and, if so, how the witnesses recognized them among the 62 other servicemen remains unclear. Perhaps, their faces were identified in photographs but how accurate the identification of each defendant was, it is not disclosed either.

The judges did not take into account the fact that in each case it was necessary to examine the reasonableness of the suspicion of a person’s involvement in the committed crime. It should be borne in mind, however, that a reasonable suspicion presupposes the existence of sufficient evidence that the person in question could have committed that crime.

According to the Article 139.0 of the Code of Criminal Procedure of the Azerbaijan Republic, during prosecution, the following may be determined only on the basis of evidence:

• the facts and circumstances of the criminal act;
• the connection of the suspect or accused with the criminal act;
• the criminal ingredients of the act provided for in criminal law;
• the guilt of the person in committing the act provided for in criminal law;
• the circumstances which mitigate or aggravate the punishment for which
• criminal law provides;
• if there is no other circumstance covered by this Code, the grounds for a
• request by a party to the criminal proceedings or another participant in the proceedings.

The Court considering the criminal case, was unable to provide answers to the above questions due to the insufficiency of the evidence submitted by the investigating body.

In the course of court hearings, several defendants stated that they had not been able to contact their families for the period of their arrest. This is a violation, which is constantly committed by the investigating authorities in the course of criminal proceedings. Thus, the monitoring of “sensitive cases” reveals that in the majority of cases, the authorities of investigation denied the defendants’ right to do so.

Here, it is worth recalling the duties of the investigator. The Article 85.2.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that the investigator shall to inform the suspect from the moment of detention and the accused from the time when he is charged or arrested about their rights, and to explain the reasons for detention, charges or detention on remand, as the case may be.

The detainee, in his turn, has the right to immediately inform his close relatives or other persons, whose relations are of legal interest to him, about his detention or custody, place of custody either by telephone or other means; if the detainee is a foreigner or an individual with no citizenship, he shall immediately inform of his detention or custody the diplomatic mission or consulate of the state of his nationality or habitual residence, or the national or inter-country diplomatic mission of the state of his nationality, which is on the Azerbaijani territory or a national or international organization that took over his or her custody (Article 91.5.6 of the Code of Criminal Procedure of the Azerbaijan Republic).

The Article 84 of the Penalty Execution Code of the Azerbaijan Republic regulates the procedure of detainees’ telephone conversations. Thus, the persons sentenced to imprisonment for a certain period of time are entitled to speak twice a week, and those sentenced to life imprisonment once a week, each time for fifteen minutes. Long-distance telephone calls are paid for from the convict’s personal funds or by his or her close relatives (Article 84.1 of the Code of Criminal Procedure of the Azerbaijan Republic). Upon the inmate’s request, when arriving at a new penal institution, and in exceptional cases, the administration of the institution may allow additional telephone calls (Article 84.2 of the Code of Criminal Procedure of the Azerbaijan Republic).

In addition, the Ministerial Committee of the Council of Europe adopted a Recommendation that updates the European Prison Rules from 2006. These rules include basic legal standards and principles on the management of penitentiary facilities, its staff and the treatment of prisoners. These Principles are the global standard bearer in this field and guide the 47 member States of the Council of Europe in their legislation, policy and practice.

The recommendation regulates in more detail the use of solitary confinement (detention for more than 22 hours a day with no meaningful human contact). This measure should only be used as a last resort and should be used in consideration of a prisoner’s state of health. Since solitary confinement can have very negative effects on a person’s physical and mental health, it must be used within a strictly defined period of time, for as short a period of time as possible.

The Article 2 of the European Prison Rules states, that persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.

The Article 24.1 of the European Prison Rules states, that prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.

As mentioned above, even in the case of solitary confinement, where there is no outside contact, this period should not exceed 22 hours. Otherwise, it may have a negative effect on the prisoner’s condition. However, despite the existence of the National and International Procedural Law, this right was not secured by the investigative body.

In this criminal case, as in most “sensitive cases,” the transparency principle was violated. While the verdict says that the case was heard in open court, in fact the trial was held behind the closed doors, with no presence of any independent journalists, human rights defenders or members of the public. In the light of the 44-day war between Azerbaijan and Armenia, this trial, as all other trials against the Armenian prisoners of war, was of great interest to the public. Its publicity would have confirmed that the criminal case was being handled according to the Law. However, the closed nature of the proceedings resulted in the belief that the trial was unfair.

The transparency of the criminal proceedings is regulated by the Article 27 of the Code of Criminal Procedure of the Azerbaijan Republic, as well as by the Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Article 14 of the International Covenant on Civil and Political Rights.

There is another very important point, which was not taken into account by the Court. There are only the defendants’ testimonies provided at the court hearing and included in the verdict. However, some of the defendants testified that they had not given any testimony at the investigation, that their words had been written down inaccurately. The Court did not react in any way to those statements of the defendants, did not clarify whether the testimonies had been falsified, who had fabricated them, and did not properly evaluate the testimonies given in the course of the trial. The Court also failed to eliminate the contradictions in their testimonies. The objectiveness, impartiality and fairness of the criminal procedure are important principles in the justice administrating.  The courts should examine the criminal cases and other submissions related to criminal prosecution only on the basis of facts, impartially and fairly, in accordance with the Legal Procedures established in accordance with the criminal Procedure Law.

According to the Article 28.4 of the Code of Criminal Procedure of the Azerbaijan Republic, during the criminal proceedings, courts shall perform the following functions:

• ensure that the parties to the proceedings are able to examine thoroughly, fully and objectively all the circumstances relating to the prosecution;
• take into consideration circumstances which incriminate or exonerate the suspect or accused as well as circumstances which mitigate or aggravate his criminal responsibility;
• examine applications presented by the suspect or the accused or by their counsel for the defence concerning their innocence or minimal guilt and the availability of evidence which exonerates them or mitigates their responsibility;
• examine complaints alleging breach of law during the criminal proceedings;
• guarantee the right of the parties to criminal proceedings to participate.

The Article 28.6 of the Code of Criminal Procedure of the Azerbaijan Republic states, that the rules concerning the administration of justice may not be unilaterally altered for different cases and persons or in particular circumstances or at given times.

Taking into account all the above, we shall come to the conclusion that the proceedings in this criminal case were not conducted in an objective, impartial and fair manner. Numerous procedural violations and failure to ensure the rights of the accused, regulated by the Constitution of the Azerbaijan Republic, the National substantive and Procedural Law, International Treaties (the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, Recommendations of the Committee of Ministers of the Council of Europe, the European Prison Rules), confirm such a conclusion.