Appeals Court keeps Ruslan Nasirov in custody
The Analysis of violation of law during Ruslan Nasirov’s judicial proceedings
The Baku Court of Appeal, the Criminal Collegiums
May 31, 2018
Presiding Judge: Ilqar Murguzov
Judges: Mirzali Abbasov, Gadim Babayev
Accused: Ruslan NasirovDefenders: Fariz Namazly
The person who filed an application for arrest: the Prosecutor General’s Office investigator for particularly important issues Safar Rzayev
The chairman of the Supreme Board (Majlis) of the Youth Committee of the opposition Party People’s Front of Azerbaijan (PPFA) Ruslan Nasirov repeatedly exposed to administrative arrests for his political activity. So, on August 2, 2014 Nasirov was detained for the protest action against the death of soldiers on the front line of Azerbaijan with Armenia, organized on social network Facebook. The action was called “Answer to the people, the Commander-in-chief”. On this day also was detained the father of Ruslan Nasirov. And Ruslan Nasirov was traveling from Saatly to Baku to see his father. Together with him was a member of the Presidium of PPFA Asif Yusifli who later in 2015 was arrested and sentenced to 6 years and 6 months of imprisonment, his name is on the list of political prisoners. However, near the subway of N. Narimanov they were detained by persons in civil. Later Asif Yusifli was released. Soon, the lawyer said that Ruslan Nasirov is brought to administrative responsibility for disorderly conduct and resisting to the police officer. On August 5, 2014 the Yasamal District Court of Baku City recognized R. Nasirov guilty of administrative offense and sentenced to 30 days of arrest.
On April 7, 2015 R. Nasirov was once again detained and brought to administrative responsibility for its active political position. The Yasamal District court of Baku City found R. Nasirov guilty on offence under article 310 (Persistent insubordination of legal request of policeman) the Code of Administrative Violations of the Azerbaijan Republic, and sentenced him to 20 days of administrative detention.
R. Nasirov again was detained on the eve of the rally of the National Council of Democratic Forces planned for October 7, 2017. Together with Ruslan Nasirov were arrested other members of PPFA, actively involved in the promotion of the authorized rally. Were arrested Ramid Nagiyev, Yalchin Abdullayev, Maharram Rzayev, Fuzuli Huseynov. All those arrested were kept in a temporary isolation center in Binagadi District of Baku City. R. Nasirov and other detainees were charged with minor hooliganism – all allegedly loudly talked on the phone and at the same time used foul language. All five were found guilty and sentenced to 10 days of administrative arrest.
On May 25, 2018 in Ganja City Ruslan Nasirov had been abducted by unknown. For several days neither parents, nor friends, nor the lawyer didn’t know about his whereabouts. Besides R. Nasirov, were abducted a member of PPFA Aqil Maharramov and the veteran of the Karabakh war Babak Hasanov. Just before their abduction were arrested a Russian citizen Sahib Rustamov and his nephew Vidadi Rustamov (the member of PPFA), involved in a small business in Russia. In Azerbaijani Mass Media appeared information that all detainees are kept in the Department for Combating Organized Crime of the Ministry of Internal Affairs of Azerbaijan, known in society as “Bandotdel” (“Criminal Department”) and that all of them are cruel tortures of psychological and physical character.
On May 26, 2018 the Prosecutor General’s Office and the Ministry of Internal Affairs of Azerbaijan issued a joint statement on the detainees. It stated that “members of PPFA Ali Kerimli, Ganimat Zahidov, Saleh Rustamov, Vidadi Rustamly, Aqil Maharramov, Ruslan Nasirov, Babak Hasanov as well as residents of Baku City Jeyhun Huseynov, Rauf Iskandarov, Heydar Ahmadov, Tural Mekhdikhanov funded actions in the republic and outside, which would be contrary state and national interests. Actions should have been carried out at the expense of a large amount of the dirty money derived from illegal business activity”.
All of them were charged with offences under the articles 192.3.2 (Illegal business with extraction of income in a large size), 193-1.3.1 (Legalization of money or other property obtained illegally, committed by organized group or criminal organization) and 193-1.3.2 (Legalization of money or other property obtained illegally in a large size) of the Criminal Code of Azerbaijan Republic (CC AR).
On May 26, 2018 Ruslan Nasirov was taken to Nasimi District court of Baku City for election of a measure of restraint against him. On May 26, 2018 the Nasimi District court of Baku City elected against R. Nasirov a measure of restraint – arrest for a period of 4 months.
Defense lawyer did not agree with the decision of the court of first instance from May 26, 2018 and filed an appeal.
On May 31, 2018 the Criminal Collegium of the Baku Court of Appeal has decided to dismiss the appeal and upheld the judgment of the court of first instance without change.
Commentary by an expert lawyer:
The court decision is unlawful and groundless. There had been a violation of article 5, point 1 the subparagraph c), point 3 and paragraph 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the judgment of the court. This article states:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”.
In order to that the warrant of arrest meets the requirements of legality, it must be made “in the manner set by law”. However, it has not been substantiated as specified in articles 155 (Grounds for the application of restrictive measures), 156 (General rules governing the choice of restrictive measure), 157 (Arrest) and 447 (Rules governing the court’s examination of applications on matters concerning the compulsory conduct of investigative procedures, the application of coercive procedural measures or the conduct of search operations) of the Code of Criminal Procedure of the Azerbaijan Republic (CCP AR).
According to the Article 156.1 of CCP AR, restrictive measures shall be decided by the preliminary investigator, the investigator, the prosecutor in charge of the procedural aspects of the investigation or the court. The offence committed by the suspect or accused and the grounds for the need to apply a restrictive measure based on the preliminary evidence shall be indicated in the decision on the choice of restrictive measure.
According to the law the decision to be rendered in compliance with standards of the European Convention for the Protection of Human Rights and Fundamental Freedoms, precedents of the European Court of Human Rights (ECtHR), the rule of law, proportionality and protection against an arbitrariness.
The decision on the deprivation of freedom for 4 months R. Nasirov is formal and formulaic nature. It is completely rewritten from the petition of investigative body.
The court shall be obliged to provide the concrete reasons for the application of a preventive measure of restraint in the arrest form. Besides, the court should had to consider the use of the alternative measures of restraint. And also indicate why these measures are not applicable in this case. The court also had to pay attention to the quality and validity of primary evidence submitted by the investigative body and check whether these somehow the evidence against the accused.
The court shall state the grounds for preventive measure of restraint in the form of arrest (probability of escape from investigation, exert pressure on witnesses, etc.). In the article 157.1. of CCP AR stated that in accordance with the principle of the presumption of innocence, if the connection of the person to the offence committed is not proven, he may not be arrested or unnecessarily detained on remand.
The ECtHR has repeatedly affirmed in its decisions the same principle: the main objective of article 5 of the European Convention for Protection of Human Rights and Fundamental Freedoms is protection everyone from spontaneous and unjustified arrest.
In the judgment of the ECtHR in the case Sakit Zahidov v. Azerbaijan (from November 12, 2015) says that grounds for arrest are specified in decisions of domestic courts in the general form, there is nothing concrete, the court did not give exact answers to the arguments of the defence. https://hudoc.echr.coe.int/eng#{“itemid”:[“001-158490”]}
In addition to article 5 of the European Convention, in R. Nasirov’s trial was broken also article 6 (2) of the European Convention. It stated: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.
The joint statement of the Prosecutor General’s Office and Ministry of Internal Affairs of Azerbaijan in rough share has violated the principle of a presumption of innocence. The Judgments of the ECtHR have confirmed that government institutions can inform the public criminal cases. However, paragraph 2 of article 6 requires that they did so with caution, respecting the principle of the presumption of innocence (case Allenet de Ribemont v. France – http://europeancourt.ru/uploads/ECHR_Allenet_De_Ribemont_v_France_10_02_1995.pdfhttp://factcheck.ge/wp-content/uploads/2017/02/pdf-1.pdf).
In the judgment of the ECtHR (case Farkhad Aliyev against Azerbaijan (of November 9, 2010) the European Court of Justice has specified in the decision of ECHR that distribution of the statement of authorized judicial authorities which force the public to believe in guilt of those whose names are mentioned in the statement break a presumption of innocence. – https://hudoc.echr.coe.int/eng#{“itemid”:[“001-101682”]}
From this joint statement of the Prosecutor General’s Office and the Ministry of Internal Affairs shows that Ruslan Nasirov and others are accused of concrete crimes. It stated that his guilt was proved completely, although the investigation has so far been and R. Nasirov’s guilt isn’t proved by court.
Thus, the arrest of Ruslan Nasirov was not justified and lawful, was not a legitimate purpose and violated a legal norms enshrined in the national and international legislation.