Balakan District Court sentenced Afghan Mukhtarli
Analysis of the law violation at Afghan Muxtarli trial
Balakan City District Court
Case № 4 (019)-07/2018
January 12, 2018
Judge: Qumbat Salimov
Public Prosecutor: Gurbat Mamedov
Accused: Afghan Muxtarli
Defender: Elchin Sadiqov, Nemat Kerimli
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 Sabayil 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 Sabayil District Court ruled on the application of restrictive measure towards Afghan Muxtarli in form of deprivation from freedom for the period of 3 months.
Subsequently, the measure was extended. After completion of the preliminary investigation, the case was referred to the Balakan District Court. The defense filed a motion to change the preventive measure on house arrest. However, the court dismissed a petition.
In addition, was subject to a motions to dismiss a criminal case, delisting evidence protocols of search and seizure, as well as deleted from the list evidence obtained by illegal means and the to call witnesses who testified in favor of A. Mukhtarli. The court granted only one petition of the defense: allowed to release of a journalist from the cage in the courtroom and to sit with lawyers.
During the trial, witnesses were questioned. The testimony of three witnesses (Goshgar Muradov, Azer Bayramov, Dovlat Khanbabaev) did not coincide and contradicted. In one of witnesses A. Mukhtarli recognized person who had picked him up in last car. Mr. Mukhtarli showed that then this man called his authorities and said: “General, Sir, we brought mullah, you can come to the wake”.
Afgan Mukhtarli petitioned the court for bringing this witness to criminal liability for kidnapping. However, the court dismissed the motion. Other witnesses confirmed the seizure of money from A. Mukhtarli, but could not say in what currency was banknotes. These witnesses could not even to answer the question about the color of banknotes and signs on them.
At the trial, Afghan Mukhtarli said that the customer of his abduction and arrest is the President of the country.
On January 12, 2018, the Prosecutor delivered a speech in which he requested the court to convicted A. Mukhtarli as charged and sentenced him to 8 years imprisonment. The defence insisted on his client’s innocence and asked the court to acquit on all charges. On the same day A. Mukhtarli made a final statement. He said that from 15 years of age he participates in the democratic movement and fought on Karabakh front since 17 years. Then A. Mukhtarli spoke about his journalistic investigations that denounced corruption in government bodies.
Afghan Mukhtarli said: “Your killed Elmar Huseynov, but we still write. Your killed Rafiq Tagi, but we still write. Your killed Rasim Aliyev, my friend blogger Mehman Galandarov, but we still write. Killings and our arrests your can not make us to silence. Even if you put me in a closed prison, I will continue my activities”. The judge repeatedly tried to interrupt the last word of journalist. Finally, interrupting the last word of defendant, the judge retired to the consultative room for sentencing.
On January 12, 2018 Balakan District Court found A. Mukhtarli guilty on all accusations that were brought against him and sentenced him to 6 years imprisonment.
Commentary by an expert lawyer:
The court decision is unlawful and groundless. According to the articles 10.1. and 349.4. of Codeof Criminal Procedure of the Azerbaijan Republic (CCP AR), the court judgment shall be considered lawful if it fulfils the requirements of the Constitution of the Azerbaijan Republic, this Code and the criminal and other legislation of the Azerbaijan Republic. The court sentences shall be lawful when it is both form and content consistent with the Constitution and other laws of the Republic of Azerbaijan.
According to the article 349.5. of the CCP AR in the following cases the court judgment shall be considered well-founded:
349.5.1. if the conclusions at which the court arrives are based only on the evidence examined during the court’s investigation of the case; 349.5.2. if the evidence is sufficient to assess the charge; 349.5.3. if the facts established by the court are consistent with the evidence investigated.
According to the article 351.3. of the CCP AR, if the court gives an affirmative answer on the matters set out in Article 346.1.1-346.1.6 of this Code, the guilt of the accused may be regarded as proven, as follows: 351.3.1. bearing in mind the presumption of innocence; 351.3.2. on the basis of the results of the court’s examination of the charge in accordance with the rules set out in this Code; 351.3.3. on the basis of the reliable and admissible evidence examined during the court’s investigation of the case; 351.3.4. interpreting in his favour any doubts as to the guilt of the accused which cannot be removed.
As can be seen from this article, the courts must take into account the presumption of innocence. In this regard, HYPERLINK “http://context.reverso.net/%D0%BF%D0%B5%D1%80%D0%B5%D0%B2%D0%BE%D0%B4/%D0%B0%D0%BD%D0%B3%D0%BB%D0%B8%D0%B9%D1%81%D0%BA%D0%B8%D0%B9-%D1%80%D1%83%D1%81%D1%81%D0%BA%D0%B8%D0%B9/In+this+regard%2C+it+should+be+recalled” it should be recalled the statement made by the General Prosecutor’s Office of the Azerbaijan Republic on June 13, 2017. The statement reported that all the rumors about the abduction and transfer across the border of Afghan Mukhtarli are untrue. The statement also refers that on May 29, 2017 A. Mukhtarli without an identity document, illegally crossed the border, where was arrested by the officers of the State Border Service.
The principle of presumption of innocence was guaranteed by article 21 of the CCP. It states,
”21.1. Any person suspected of committing an offence shall be found innocent if his guilt is not proven in accordance with this Code and if the court has not delivered a final judgment to that effect. 21.2. 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; 21.3 The accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defence of the suspect or the accused”.
As mentioned above, the prosecution evidence was contradictory, was questioned only prosecution witnesses, but reasonable defence motions were denied by the court. The doubts that had arisen during the legal procedure could be addressed if the court granted the defence’s motions. However, this was not done. As a result, the court don’t interpreted these doubts in favor of the accused, while the law imposes this duty on the court.
Regarding the violation of the presumption of innocence enshrined in article 6 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights (ECHR) in paragraph 159 of judgment in the case of Fatullayev v. Azerbaijan on 22 April 2010 stated the following:
”The Court reiterates that Article 6 § 2, in its relevant aspect, is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings. The presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1 (see Allenet de Ribemont, cited above, § 35). It not only prohibits the premature expression by the tribunal itself of the opinion that the person “charged with a criminal offence” is guilty before he has been so proved according to law (see Minelli v. Switzerland, 25 March 1983, § 38, Series A no. 62), but also covers statements made by other public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge the assessment of the facts by the competent judicial authority (see Allenet de Ribemont, cited above, § 41, and Daktaras v. Lithuania, no. 42095/98, §§ 41-43, ECHR 2000-X). The Court stresses that Article 6 § 2 cannot prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected (see Allenet de Ribemont, cited above, § 38)”. See:
http://mmdc.ru/praktika_evropejskogo_suda/praktika_po_st10_evropejskoj_konvencii/europ_practice6/ and https://dejure.az/en/court-acts/fatullayev-v-azerbaijan
The principle of equality of parties and the principle of adversarial proceedings were flagrantly violated by the court. The defence had not opportunity to gather the necessary evidence to prove the defendant’s innocence. The timely submission of reasonable requests by the defense and an unjustified refusal of the court to satisfy them revealed of bias, bias of trial.
Unequal conditions that have been established for the defence clearly demonstrated the non- compliance of principle adversarial proceedings between the defence and the prosecution. Meanwhile, this is one of the element of the right to a fair trial guaranteed by article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.