No azerbaijani citizens are protected against falsified accusations

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NO AZERBAIJANI CITIZENS ARE PROTECTED AGAINST FALSIFIED ACCUSATIONS

Baku Court of Appeal

Analysis of violation of law at the trial of the Azerbaijan citizens accused of terrorist offences

Baku Court of Appeal

Case №1(103)-1112/2021

9 August 2021

Presiding judge: Ilqar Murguzov

Judges: Habil Mammadov, Hasan Ahmadov

 

Defendants: Samir Qurbanov, Amin Hasanov, Aflatun Bayramov, Babak Mammadli, Tehran Qasimov, Elgun Ismayilov, Aladdin Ibishev, Yusif Imanov, Orkhan Qurbanov, Shahriyar Jabbarov, Javid Amanov

Defenders: Babak Hamidov, Elchin Sadiqov, Eynulla Valiyev, Sudaba Aliyeva, Vali Valiyev, Azer Naqiyev 

The Public Prosecutor: Emil Mirzoyev, a prosecutor of the Support Public Prosecution Department at the Courts of Appeal under the AR Prosecutor General’s Office

 

A citizen of the Azerbaijan Republic, born in 1988 in the Qazakh district of Azerbaijan, Samir Qurbanov,previously not convicted, against whom a preventive measure of custody had been imposed as of 9 May 2019, was arrested on charges of committing offences under the following Articles of the Criminal Code of the Azerbaijan Republic:

  • 167-2.2.1 (Production, import with the purpose of sale or distribution, sale or distribution of literature, religious objects and other informational materials of religious content without relevant permission, committed by a group of persons upon a preliminary conspiracy or by an organized group);
  • 167-2.2.2 (Production, import with the purpose of sale or distribution, sale or distribution of literature, religious objects and other informational materials of religious content without relevant permission, committed more than once);
  • 167-3.1 (Manufacture, storage or distribution of religious extremist materials, i.e. materials calling for the implementation of religious extremist activities or justifying such activity, either justifying the need for such activities);
  • 28,214.2.1 (Preparation for terrorism committed by an organized criminal group);
  • 28, 214.2.6 (Preparation of terrorism committed on the base of religious enmity, religious radicalism or religious fanaticism);
  • 214-1 (Financing of terrorism);
  • 1 (Creation of criminal community (criminal organization) for commitment minor serious or serious crimes);
  • 283-1.1 (Involvement of citizens of the Republic of Azerbaijan or stateless persons permanently residing in the Republic of Azerbaijan, to armed conflicts outside the Republic of Azerbaijan with a purpose to disseminate religious teachings, under the pretence of performing religious rites, or due to religious animosity, religious radicalism and religious fanaticism or conducting military exercises for this purpose, or creation of stable group for this purpose and management of such group).

Amin Hasanov, born in 1993 in the Tovuz district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 9 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-2.2.1, 167-2.2.2, 167-3.1, 28,214.2.1, 28,214.2.6, 214-1 and 218.2 (Participation in criminal community (criminal organization) or in association of organizers, heads or other representatives of the organized groups) of the Criminal Code of the Azerbaijan Republic.

Aflatun Bayramov, born in 1993 in the Tovuz district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 9 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1, 28,214.2.1, 28,214.2.6 and 218.2 of the Criminal Code of the Azerbaijan Republic.

Babak Mammadli, born in 1980 in Fuzuli City of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 9 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1, 214-1 and 218.2 (Participation in criminal community (criminal organization) or in association of organizers, heads or other representatives of the organized groups) of the Criminal Code of the Azerbaijan Republic.

Tehran Qasimov, born in 1991 in the Tovuz district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 9 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-2.2.1, 167-2.2.2, 167-3.1, 214.1 and 218.2 of the Criminal Code of the Azerbaijan Republic.

Elgun Ismayilov, born in 1995 in the Tovuz district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 8 June 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1, 218.2 and 28,283-1.3 (Involvement of citizens of the Republic of Azerbaijan or stateless persons permanently residing in the Republic of Azerbaijan, to armed conflicts outside the Republic of Azerbaijan with a purpose to disseminate religious teachings, under the pretence of performing religious rites, or due to religious animosity, religious radicalism and religious fanaticism or conducting military exercises for this purpose, or creation of stable group for this purpose and management of such group) of the Criminal Code of the Azerbaijan Republic.

Aladdin Ibishev, born in 1993 in the Tovuz district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 16 September 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 218.2 and 28,283-1.3 of the Criminal Code of the Azerbaijan Republic.

Yusif Imanov, born in 1985 in the Nakhchivan Autonomous Republic of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 10 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1 and 218.2 of the Criminal Code of the Azerbaijan Republic.

Orkhan Qurbanov, born in 1987 in Baku City, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 9 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1 and 218.2 of the Criminal Code of the Azerbaijan Republic.

Shariyar Jabbarov, born in 1996 in the Khanlar district of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 20 August 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 218.2 and 218-1.3 of the Criminal Code of the Azerbaijan Republic.

Javad Amanov, born in 1977 in Ali-Bayramly City (today – Shirvan City) of Azerbaijan, a citizen of the Azerbaijan Republic, previously not convicted, against whom, on 4 May 2019, it was imposed a preventive measure of detention, was arrested on charges of committing offences under the Articles 167-3.1, 214-1 and 218.2 of the Criminal Code of the Azerbaijan Republic.

According to the investigation, Samir Qurbanov formed a criminal group, which included the accused, and headed it in order to attract Azerbaijani citizens outside the Republic to the armed conflicts on the grounds of religious radicalism, enmity and fanaticism. The aim of the criminal group was to commit terrorist acts in order to cause harm to people and spread panic and terror among them. Some of their crimes could not be accomplished due to the reasons beyond their control.

On 4 May 2021, the Baku Court of Serious Crimes issued a verdict against the defendants. All of them were declared guilty of the charges brought against them and sentenced:

  • Samir Qurbanov to a period of 8 years’ imprisonment with serving his sentence in a strict regime colony;
  • Amin Hasanov to a period of 7 years’ imprisonment with serving his sentence in a strict regime colony;
  • Aflatun Bayramov to a period of 7 years’ imprisonment with serving his sentence in a strict regime colony;
  • Babak Mammadli to a period of 7 years’ imprisonment with serving his sentence in a strict regime colony;
  • Tehran Qasimov to a period of 5 years’ imprisonment with serving his sentence in a strict regime colony;
  • Elgun Ismayilov to a period of 2 years and 6 months’ imprisonment with serving his sentence in a strict regime colony;
  • Aladdin Ibishev to a period of 2 years and 6 months’ imprisonment with serving his sentence in a strict regime colony;
  • Yusif Imanov to a period of 2 years and 6 months’ imprisonment with serving his sentence in a strict regime colony;
  • Orkhan Qurbanov to a period of 2 years and 6 months’ imprisonment with serving his sentence in a strict regime colony;
  • Shahriyar Jabbarov to a period of 2 years and 6 months’ imprisonment with serving his sentence in a strict regime colony;
  • Javid Amanov to a period of 2 years and 6 months’ imprisonment with serving his sentence in a strict regime colony.

The lawyers of Samir Qurbanov, Amin Hasanov, Aflatun Bayramov, Tehran Qasimov, Elgun Ismayilov, Aladdin Ibishev and Babak Mammadli have appealed against the verdict.

On 9 August 2021, the Baku Court of Appeal ruled on the case: the defence lawyers’ complaints were not granted by the court and the sentence of the Baku Court of Serious Crimes imposed on 4 May 2021, was not altered.

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. In the course of the investigation and trials, Samir Qurbanov’s testimonies were inconsistent. While he admitted the responsibility for the offence during the investigation, he retracted this testimony at the trial. The trial and appeal courts regarded his contradictory testimonies as defensive in nature. The court ruling stated that the defendant’s intent was to avoid responsibility. The same happened with the testimony of some witness. Thus, the witnesses Shakhmar Salimov, Elchin Jafarov, Qabil Qasimov, Ali Aliyev, Rahil Nasirli, Tural Abdiyev and some others testified both at the investigation and the trial. However, their testimonies during the investigation and in the curse of trial were dramatically differed. The courts interpreted the witnesses’ testimonies as follows: the testimony provided during the investigation was credible, and the ones delivered at trial were of a defensive nature. These witnesses testified in a manner identical to that of the defendants. The courts did not explain the reasoning behind such a conclusion. It was explained by the lawyers that the witnesses and defendants had been in a freer and more independent position at the trial and therefore their testimonies were also free and independent than those given at the investigation, where they could presumably have been under pressure and control of the law-enforcement officers, i.e. the prosecution.

The irrefutability of the evidence must not be questioned, the different pieces of evidence for the same episode must validate and complement one another, and must be considered as a whole. The court did not examine the criminal case in a comprehensive, complete and objective manner.

Throughout the trial, the defendants’ lawyers filed various motions with the court in order to establish the accuracy and truth in the case. However, none of the submittes motions were satisfied by the court or they were abandoned without consideration.

According to the Article 121.2 of the Criminal Procedure Code of the Azerbaijan Republic, reasons shall be given for the decision taken on an application or request, together with an assessment of the applicant’s arguments. Applications and requests for any matters connected with the prosecution to be examined thoroughly, fully and objectively under the required legal procedure, and for the violated rights and legal interests of the parties to the criminal proceedings and of other participants in the proceedings to be restored, may not be rejected.

The question of motions is also regulated by the Articles 323.5 and 323.6 of the Criminal Procedure Code of the Azerbaijan Republic. According to the Article 323.5, the court shall allow applications submitted under Article 323.1 of this Code in the following circumstances:

  • 5.1. if the purpose of the application is the examination of all circumstances that may be of significance for a thorough, full and objective investigation of all matters connected with the criminal prosecution;
  • 5.2. if information and documents whose evidential value is in dispute were obtained by significantly violating requirements of this Code and other laws of the Azerbaijan Republic.

According to the Article 323.6 of the Criminal Procedure Code of the Azerbaijan Republic, if the court dismisses an application, it shall give a reasoned decision on this matter. Applications that have been dismissed may be resubmitted depending on the further examination of the case.

The verdict states that the defendants have cooperated with the terrorist organizations but there are no documents signed by the defendants that can prove such cooperation. Not a single one in the case file.

According to the Article 21.2 of the Criminal Procedure Code of the Azerbaijan Republic, even if there are reasonable suspicions as to the guilt of the person, this shall not cause the latter to be found guilty. The accused (the suspect) shall receive the benefit of any doubts which cannot be removed in the process of proving the charge in accordance with the provisions of this Code, within the appropriate legal proceedings. He shall likewise receive the benefit of any doubts which are not removed in the application of criminal law and criminal procedure legislation.

 

The Article 145.3 of the Criminal Procedure Code of the Azerbaijan Republic states, that if suspicions which emerge during the process of proving the charge cannot be removed by other evidence, they shall be interpreted in favour of the suspect or accused. The credibility of the charges is in doubt, and these doubts must be determined in the defendants’ favour. The defense lawyers repeatedly demanded proof of the defendants’ guilt, but they were unable to obtain any.

If the prosecution has failed to prove the defendants’ guilt, the court must grant the acquittal and release the defendants.

In the Article 42 of the Criminal Procedure Code of the Azerbaijan Republic noted grounds for acquittal:

  • if no criminal act has been committed;
  • if the act has no criminal content;
  • if there is no link with the offence committed;
  • if guilt is not proven;
  • if the jury delivers a verdict of not guilty.

The Article 41.4 of the Criminal Procedure Code of the Azerbaijan Republic states:

If the court finds circumstances which preclude criminal prosecution before the beginning of the court hearing, it shall suggest that the public prosecutor decide on the question of withdrawing the prosecution of the accused.

The Article 326.1 of the Criminal Procedure Code of the Azerbaijan Republic states:

When starting the questioning, the president shall propose that the accused give evidence on the charge brought against him and on other circumstances of significance for the thorough, full and objective examination of the charge.

The court, in the commented criminal case, offered the defendants to testify, but they refused to do so at the initial stage and stated that they would testify after the evidence examination. In the verdict, the court specified that the defendants had refused to testify at all. After examining the evidence, the court concluded proceedings and asked the parties to proceed to closing arguments, thereby depriving the defendants of the opportunity to testify. The denial of testimony at the initial stage was interpreted to the defendants’ disadvantage. Though, according to the Article 324.3.6 of the Criminal Procedure Code of the Azerbaijan Republic, such a refusal of the accused cannot be interpreted to their detriment.

The prosecution and the verdict stated that the accused allegedly used a secret software Theema ID while communicating with members of terrorist organizations. However, an expertise found that no such a software was detected on the mobile phones they owned.

The court also referred to various certificates issued by the AR State Security Service, which did not have any relevant sources. These certificates were accepted as evidence in the case by the court.

Partiality, bias of the court violated the right to a fair trial guaranteed by the Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to this article, in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The court violated the principle of a fair trial by an independent and impartial tribunal

In the judgment of the European Court of Human Rights (ECHR) in the case of Ferrantelli and Santangelo vs Italy on 7 August 1996, it is stated “… What is at stake is the confidence which the courts in a democratic society must inspire in the public. This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the perception of the accused is important but not decisive. What is decisive is whether this fear can be held to be objectively justified”. See: https://www.bailii.org/eu/cases/ECHR/1996/29.html

The court, by failing to examine the criminal case thoroughly, comprehensively and objectively, violated one of the fundamental human rights, the right to a fair trial.