Appeals Court kept Fikret Faramazoglu’s verdict unchanged
Analysis of the law violations at the Appeal trial of Fikret Faramazoglu
The Baku Court of Appeal, the Criminal Collegiums
Case no. 1(103)-1414/ 2017
September 18, 2017
Presiding Judge: Namiq Mammadov
Judges: Gadim Babayev, Mirzali Abbasov
Prosecutor : Rasul Abbasli
Accused: Fikret Ibishbeyli ( Faramazoglu)
Defenders: Elchin Sadiqov, Javad Javadov, Nemet Keremli
On June 30, 2016 the journalist, the editor-in-chief of the website jam.az, Fikret Faramazoglu was abducted by unknown persons in civilian clothes. Within 5 days no any information of him. Neither his family nor his lawyers don’t knows about his whereabouts. Later journalist told how after the abduction he was taken to the Department for Combating Organized Crime (DCOC) of Ministry of Internal Affairs (MIA), how tortured him out there and as a result of tortures he lost front teeth. He was beaten over the head and a jaw, never took handcuffs neither in the afternoon, nor at night within 12 days.
Within five days in the absence of all of the information on the whereabouts of F.Faramazoglu, his family and friends have repeatedly requested to the Ministry of Internal Affairs and Prosecutor General’s Office, but didn’t get any information about him. Five days after adduction unknown persons visited to home where the journalist were staying with the family, and without requiring documents and search warrant, took his computer. His wife asked them that what’s happens. And informed the arrest F.Faramazoglu. However she was not informed of the reasons for his arrest.
Subsequently, it came to notice that the journalist was kept in the DCOC of MIA. Articles 182.1 (Extortion) of the Criminal Code of the Azerbaijan Republic (CC AR) were brought against him. Later, in 19 October 2016 new more serious charges were brought against him: article 182.2.1
(Extortion on preliminary arrangement by group of persons; 182.2.2 (Extortion, committed repeatedly) and 182.2.4 (Extortion with causing damage to a victim in significant size) of the CC AR.
On July 4, 2016 Baku City Nasimi District Court chose for F.Faramazoglu preventive measure in form of arrest for the period of 3 months. In the future, duration of preventive measures was repeatedly extended. It should be noted that in 2006 Fikret Faramazoglu has already once been in contact with the criminal law. He worked as the editor-in-chief of the 24 saat newspaper (“24 hours”) at the time. Minister of Interior of Azerbaijan Ramil Usubov had appealed to the court in defamation case, allegedly touched in the publication of the newspaper. The court sentenced of journalist to 1 year of conditional imprisonment.
In 2016 during the period of investigation F. Faramazoglu’s lawyer said that the prosecution’s case was based on the critical publications of the journalist: “The commercial property owners applied to the law enforcement agencies brought a complaint and indicated that the publications of Fikret Faramazoglu is biased, false and affect their honor and dignity. And that the alleged journalist had written those articles to extort money from them. However, no any evidence of extort money”. Under the version of investigators, in April, 2016 F.Faramazoglu demanded 1.000 manat from businessmen that the critiques about their dubious business (maintaining premises under the guise of massage parlor) will not be published on the website. In the indictment also mentions that in order to achieve those materials were not published in the further, businessmen have been required to pay F. Faramazoglu on 5.000 manat monthly. In its statement of July 4, 2016, the Ministry of Interior it was stated that journalist was detained at the 3.000 manat drop to him.
At the end of preliminary investigation a criminal case against journalist was referred to the Baku City Court on Grave Crimes. On November 22, 2016 was held a preparatory trial meeting, during which the defence filed two applications: to change the preventive measure – replacing
An examination of the case on the merits was scheduled for December 6, 2016. The defence had requested motion for the graphological test of F. Faramazoglu’s signature on the arrest protocol and confiscation of objects. We shall note, that journalist refutes the validity of the signature. In those protocol recorded seizure of money from F.Faramazoglu during detention. The time of his arrest was captured on video, but was not recorded the fact of receiving money on it video. Also no evidence of fingerprints of journalist on banknotes, have no other evidence against him. The defence motion on designate an expert were rejected by court.
On the final statement to the court F. Faramazoglu told pleaded quilty once again and political motive behind his arrest.
On June 14, 2017 Baku City Court on Grave Crimes found journalist guilty on all accusations that were brought against him, and sentenced him to 7 years imprisonment and a 2 year ban on working as a journalist. The defence has found this verdict illegal and unjustified and appealed against the decision to the higher authority. The defence also claimed in the appeal acquittals of of F. Faramazoglu.
During trial at the Baku Appeal Court F. Faramazoglu once again said that charges against him are fabricated and he did not know the victims. He knows only victim Mekhman Gasanov. He met with him once, and between them never had any talk of money. Journalist declared that the money were placed from police. Otherwise, it would be video shooting about transfer of money or audio recording on extortion. But none of this happened.
On September 18, 2017 the Criminal Collegium of the Baku Appeal Court decided to refuse the appeal and confirmed the verdict of the first instance court from July 14, 2017 without amendments.
Commentary of an expert lawyer:
The court decision is unlawful and groundless. As mention above, a journalist was kidnapped and did not know anything about him in the next few days. As the seller he informed to the wife and lawyer, he was beaten on his head and jaw within 4 days, stomped 2 teeth and handcuffed for all 24 hours a day. After being transferred to the detention facility, F.Faramazoglu’s torment had continued. In the court journalist told that grinded his teeth in the night from the pain and the other prisoners complained about grinds their teeth at night. He was not allowed to shower, which left red spots and the rash on his body.
Article 26 (II) of the Constitution of the Azerbaijan Republic states: “The state guarantees protection of rights and liberties of all people”. Article 68 of the Constitution of the Azerbaijan Republic guaranteed the right of protection against the arbitrariness and decent treatment: “I. Rights of the person suffered from crime and also from usurpation of power are protected by law. Suffered person has the right to take part in administration of justice and demand for compensation of losses. II. Everyone has the right for compensation by the state of losses borne as a result of illegal actions or non-action of state bodies or their officials”.
The ill-treatment of accused person to violate principles of humanity guaranteed by Article 9 of the Code of Criminal Procedure of the Azerbaijan Republic (CCP AR). According to this article:
9.1. The Criminal Code guarantees security of person.
9.2. The penalties and other measures of criminal law provided for the Criminal Code, applicable to person, who has committed a crime are not to be a purpose of torture or other cruel, inhuman and degrading treatment.
In article 12.5. CCP AR states: “It shall be prohibited to use methods and means that may threaten life and health or the environment during criminal prosecution”. Under article 13.1 of the CCP AR it shall be prohibited to take decisions or allow acts during the criminal prosecution which debase the honour and dignity of the person or may threaten the life and health of the participants in the proceedings. According to article 13.2.1. “During a criminal prosecution nobody shall be subjected to treatment or punishment that debases human dignity”.
All this articles of the CCP AR have been severely violated during detainees’, investigation and the trial.
During detainees’ and the preliminary investigation was violated the principle of security of the person. Thus article 15.2 of the CCP AR during the criminal prosecution the following shall be prohibited:
15.2.1. the use of torture and physical and psychological force, including the use of medication, withdrawal of food, hypnosis, deprivation of medical aid and the use of other cruel, inhuman or degrading treatment and punishment.
Inhuman treatment and tortures are prohibited under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This article was not limitations and exceptions. This means that under no circumstances and in no case (war, fight against terrorism, etc.) cannot be justified the practice of torture. Numerous judicial precedents of the European Court of Human Rights (ECHR) show that to reach a minimum level of severity to recognize of violation Article 3 of the European Convention. The ECHR considered that State was responsible for each person in custody, as the latter, was vulnerable because at the mercy of public officials. Therefore, the authorities must protect him
as the last, being in power of public servants, is vulnerable and the authorities have to protect him (Judgments of the ECHR on the case “Gorodnichev v. Russia” from May 24, 2007):
http://echr.ru/documents/doc/2465023/2465023-001.htm
http://www.bailii.org/eu/cases/ECHR/2007/1210.html
The reason for the arrest of Fikret Faramazoglu was his journalistic activities. And for that, he has already once been in contact with the law in 2006. Article 47 of the Constitution of the Azerbaijan Republic guarantees freedom of thought and expression:
“I. Everyone may enjoy freedom of thought and speech.
II. Nobody should be forced to promulgate his/her thoughts and convictions or to renounce his/her thoughts and convictions”.
Under article 10 of the European Convention:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”.
As seen from the above, during arrest, investigate and trial of Fikrtet Faramazoglu have been violated the most basic fundamental principles and rule of law, both republican, and international.