The Grave Crimes Court sentenced paralyzed Abulfaz Bunyadov to 15 years of imprisonment

The Analysis of violation of law during Elkhan Iskandarov and

Abulfaz Bunyadov’s judicial proceedings

The Baku Grave Crimes Court

Case No.  №1 (101)-103/2018
July 11, 2018
Presiding Judge: Afgan Hajiyev
Judges: Rasim Sadigov,  Fikrat Garibov
Accused: Elkhan Iskandarov, Abulfaz Bunyadov
Defenders:  Fariz Namazly, Nardana Farzaliyeva
Public Prosecutor:  Farid Nagiyev
Victim’s: Elchin Tagiyev, Elman Bayramov, Firuz Mehdiyev, Hikmat Aliyev, Ibrahim Kazimov, Kamil Mammadov, Kanan Heybatov, Mehman Teymurov, Muslim Tarverdiyev, Nadir Novruzov and etc. 
Nardaran village which is located 40 km from Baku, has low standards of living and acute unemployment problem. One of the most respected by Shiites mosques, founded in the 8th century, is located in Nardaran. Nardaran differs from other Baku villages with its religiosity. In 2000, 2002, and 2006, the residents of Nardaran held peaceful protests with socio- economic demands. In June 2002, police carried out military operation in the village, as a result of which 28 people were injured, one died. 23 people were sentenced to various terms of imprisonment on falsified charges; in espionage in favour of Iran, in attempt of violent change of power, and etc. However, as a result of the active work of human rights defenders, none of them remained in the custody after 2005.
On November 26, 2015, there was another police operation  in Nardaran. Armed with automatic weapons, the police entered the village and opened heavy fire. As a result, 6 people were killed, including two police officers. Dozens of citizens were arrested. The Ministry of Internal Affairs and General Prosecutor’s Office issued the joint statement, in which they explained the use of firearms against the villagers as an operation necessary to neutralise a criminal armed group that functioned under a religious cover, which planned mass riots, terrorist acts and destabilisation of the socio- political situation in the republic.
People in detention under the Nardaran case are divided into 4 groups: 
· the first group Nardaran 1, which included the chairman of the movement Muslim Unity Taleh Baghirov and 17 other people, who were sentenced to long terms of imprisonment on July 20, 2017 – were included;  · – the second group Nardaran 2, which included the chairman of the Board of the Muslim Unity movement Elchin Qasimov and 11 others, who were sentenced to long terms of imprisonment on December 28, 2017;  · the third group Nardaran 3, which included a scholar-theologian Zulfuqar Mikayilov and 11 people, sentence was passed on December 6, 2017.  · in the fourth group Nardaran 4, which included the members of the movement Muslim Unity  Elkhan Iskandarov and Abulfaz Bunyadov.
One of the founders of the “Muslim Unity” movement Elkhan Iskandarov was for the first time detained on November 5, 2015 during collision between the believers with the police near the Police Department of Sabunchi District of Baku City. By the decision of Sabunchi District Court of Baku City Elkhan Iskandarov was prosecuted by administrative offences under article 310 Persistent insubordination of legal request of policeman) of the Code On Administrative Violations and sentenced to 15 days of arrest. After 15 days of detention, he was released. Soon the decision of the Sabunchi District Court was revoked on the basis of the complaint of Prosecutor’s Office of Sabunchi District, and all materials of the case were sent to institute criminal proceedings. On March 15, 2017 men in masks broke into the house of E. Iskandarov through the window. He was detained on a charge of serious crimes: weapon possession, terrorism, preparation of a coup d’etat and etc. The Nasimi District Court of Baku City chose against E. Iskandarov preventive measure in the form of imprisonment for a period of 3 months, which was repeatedly extended. Since 2004 the resident of Nardaran, the member of the “Muslim Unity” movement Abulfaz Bunyadov worked as a journalist for newspaper The Truth of Islam. He often wrote analytical articles on socio-political, historical and religious topics. Before his arrest, he collaborated with the Internet-newspaper Islamazeri.az. In 2012 A. Bunyadov was convicted of drug use and released on parole  after 1 year and 6 months. 
On November 26, 2015 the joint operation of the Ministry of Internal Affairs, the Prosecutor General’s Office and State Security Service was carried out exactly in the house of Abulfaz Bunyadov, where the chairman of the “Muslim Unity” Taleh Bagirov was praying (namaz) together with other believers. As a result of the police shooting A. Bunyadov was wounded. This injury has caused him full  paralysis, and A. Bunyadov became bedridden. However, despite his paralysis, A. Bunyadov was sent to Baku Pre-trial Detention Centre No. 1 on a stretcher. Then the measure of restraint in the form of detention was changed to police supervision. A. Bunyadov was sent home.
On August 17, 2017 Baku Grave Crimes Court started  the process of E. Iskandarov and A. Bunyadov. The trial was repeatedly postponed, because A. Bunyadov was confined to the bed and was not able to appear in court. Six months later, on February 20, 2018, he was brought to the court on a stretcher. Prior to the trial, the health condition of A. Bunyadov sharply deteriorated. Ambulance was called to the court. However, the judge Afgan Hajiyev said that doctors do not have any objection of A. Bunyadov presence at the court, lying on a stretcher…
Both defendants pleaded not guilty. A. Bunyadov refused to testify for health reasons. E. Iskandarov said that he worked as a guard at the State Oil Company, he is professional athlete, and he repeatedly participated in sporting events. E. Iskandarov also testified that he never  heard  any statements from Taleh Bagirov against statehood and the desire to change the constitutional system by violence. He said that if such case occurred, he would have refused to participate in the “Muslim Unity” movement.
During the trial, on March 16, 2018, testimonies of the employees of the Office for Combating Organised Crime of the Ministry of Internal Affairs of Azerbaijan Jeyhun Imamverdiyev, Kamil Mammadov, Elchin Tagiyev, Khamza Tagiyev and another two employees – were heard. They were brought to the court in capacity of victims. They confirmed that they participated in operation in Nardaran. While operation, some of them entered the house through the windows, and others through the doors. They also showed that they did not receive any physical damage themselves, but their colleagues were injured.
On July 11, 2018 the Baku Grave Crimes Court under the chairmanship of the judge Afgan Hajiyev found E. Iskandarov guilty, in committing the crimes of the following articles of the Criminal Code of the Azerbaijan Republic (CC AR):
· 214.2.1. Preparation of terrorism, committed on preliminary arrangement by group of persons, by organized group or criminal community (criminal organization); · 214.2.3. Preparation of terrorism, committed with application of fire-arms or subjects used as a weapon; · 214-2  Public calls for terrorism; · 220.2. Appeals to active insubordination to legal requirements of representatives of authority and to mass disorders, as well as appeals to violence above citizens;  · 228.3. Illegal purchase, transfer, selling, storage, transportation and carrying of fire-arms, accessories to it, supplies or explosives, committed by organized group;  · 228.4. Illegal acquisition, selling or carrying of gas weapon, cold steel, including throwing weapon, except for districts where carrying of a cold steel is an accessory of a national suit or connected to hunting; · 233. Organization of actions promoting infringement of a social order or active participation in such actions; · 278. Violent capture power or violent deduction power; · 279.1. Creation of armed formations or groups, which are not provided by the legislation of the Azerbaijan Republic, and also participation in their creation and activity, supplying them by weapon, ammunition, explosives, military engineering or military equipment; · 281.2. Public appeals directed against the state, committed repeatedly or by group of persons;  · 283.2.3. Excitation of national, racial or religious hostility and enmity, committed by an organized group; · 315.2 – Resistance or application of violence concerning the representative of authority, committed with violence dangerous to life or health.
On July 11, 2018 the Baku  Grave Crimes Court found A. Bunyadov guilty, in committing of the crimes of the following articles of the Criminal Code of the Azerbaijan Republic (CC AR):
· 120.2.1. Deliberate murder, committed by group of persons, on preliminary arrangement by group of persons, by organized group or criminal community (organization); · 120.2.3. Deliberate murder of victims or his close relatives in connection with implementation of a given person of service activity or performance of public debt; · 120.2.4. Deliberate murder, committed with special cruelty or in publicly dangers way; · 120.2.7. Deliberate murder of two or more persons; · 120.2.12. Deliberate murder on motive of national, racial, religious hatred or enmity; · 214.2.1. Preparation of terrorism, committed on preliminary arrangement by group of persons, by organized group or criminal community (criminal organization); · 214.2.3. Preparation of terrorism, committed with application of fire-arms or subjects used as a weapon; · 220.2. Appeals to active insubordination to legal requirements of representatives of authority and to mass disorders, as well as appeals to violence above citizens;  · 228.3. Illegal purchase, transfer, selling, storage, transportation and carrying of fire-arms, accessories to it, supplies or explosives, committed by organized group;  · 228.4. Illegal acquisition, selling or carrying of gas weapon, cold steel, including throwing weapon, except for districts where carrying of a cold steel is an accessory of a national suit or connected to hunting; · 278. Violent capture power or violent deduction power; · 279.1. Creation of armed formations or groups, which are not provided by the legislation of the Azerbaijan Republic, and also participation in their creation and activity, supplying them by weapon, ammunition, explosives, military engineering or military equipment; · 281.2. Public appeals directed against the state, committed repeatedly or by group of persons;  · 283.2.3. Excitation of national, racial or religious hostility and enmity, committed by an organized group; · 315.2 – Resistance or application of violence concerning the representative of authority, committed with violence dangerous to life or health;  · 320.1. Fake of certificate or other official document giving the rights or releasing from duties, with a view of its use or selling of such document, as well as manufacturing in same purposes or selling of counterfeit state awards of the Azerbaijan Republic, stamps, seals, forms;  · 320.2. Use of obviously counterfeit documents.
And sentenced:
· Elkhan Iskandarov to 14 years of imprisonment, to be served in high security prison; · Abulfaz Bunyadov to 15 years of imprisonment, 3 years of which he will be in closed-type Gobustan prison. At the same time, it is indicated in his sentence, that the preventive measure chosen earlier in form of taking him under police supervision is replaced by the arrest.  From the courtroom A. Bunyadov was taken to Gobustan prison on a stretcher.

Commentary by an expert lawyer:
The court decision is unlawful and groundless. As mentioned above, Elkhan Iskandarov was first detained on November 5, 2015 during the collision between believers with the police near the Police Department of Sabunchi District. He was prosecuted to administrative responsibility under article 310 (Persistent insubordination of legal request of policeman) of the Code On Administrative Violations and he was sentenced to 15 days of arrest. After 15 days of detention, he was released.
The administrative detention order of Sabunchi District court was revoked on the basis of a complaint of Prosecutor’s Office of Sabunchi District, and all materials of case were sent to institute criminal proceedings. Further, E. Iskandarov was convicted and sentenced to 14 years of imprisonment. Thus, in fact he was punished twice for the same act. According to article 64 of the Constitution of the Azerbaijan Republic, nobody may be repeatedly sentenced for one and the same crime. The same principle is recorded in article 4 (1) of the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms. It said: “No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State”.
According to the paragraph 78 of the Judgment of the European Court of Human Rights in the case of (ECtHR) “Sergey Zolotukhin v. Russia” from February 10, 2009, the ECtHR considers that the existence of a variety of approaches to ascertain whether the offence for which an applicant has been prosecuted is indeed the same as the one of which he or she was already finally convicted or acquitted engenders legal uncertainty incompatible with a fundamental right, namely the right not to be prosecuted twice for the same offence. It is against this background that the Court is now called upon to provide a harmonised interpretation of the notion of the “same offence” – the idem element of the non bis in idem principle – for the purposes of Article 4 of Protocol No. 7. While it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents laid down in previous cases, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement – https://hudoc.echr.coe.int/eng#{“itemid”:[“001-91222”]}
A court verdict  did not to consistent with article 401 (Inconsistencies between the first instance court’s conclusions and the facts of the case) Code of Criminal Procedure of the Azerbaijan Republic (CCP AR). Namely: The court’s conclusions shall be considered inconsistent with the facts of the case in the following circumstances:  – if the conclusions of the court of first instance set out in the court judgment or decision are not corroborated by the evidence examined at the court hearing(article 401.2.1. CCP AR);   – if the court of first instance did not take account of evidence which was examined at the court hearing and significantly affected the accuracy of its conclusions(article 401.2.2. CCP AR);  – if the court of first instance does not give a reason for accepting some evidence and refusing other evidence in its judgment or decision, and if there is conflicting evidence which is of importance for the court’s conclusions (article 401.2.3. CCP AR);  – if the facts of importance for the examination of the charge are not corroborated by the evidence required by law in the judgment or decision of the court of first instance(article 402.0.1. CCP AR). 
If the above-mentioned conditions are met the judgment of the court of first instance should be cancelled and the accused acquitted. 
However, despite this, the court sentenced the defendants to lengthy prison terms and paralysed and bedridden Abulfaz Bunyadov was sent to closed-type Gobustan prison, by changing the previously chosen preventive measure in the form of taking him under the police supervision to the arrest.
In itself, election the most severe preventive measure is inhumane and violates human rights. According to the article 155 (Grounds for the application of restrictive measures) of the CCP AR: – 155.1. Restrictive measures may be applied by the relevant preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court when the material in the prosecution file gives sufficient grounds to suppose that the suspect or accused has: – 155.1.1. hidden from the prosecuting authority; – 155.1.2. obstructed the normal course of the investigation or court proceedings by illegally influencing parties to the criminal proceedings, hiding material significant to the prosecution or engaging in falsification; – 155.1.3. committed a further act provided for in criminal law or created a public threat; – 155.1.4. failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment; – 155.1.5. prevented execution of a court judgment.
As can be seen, none of the above-mentioned conditions took place in connection with A. Bunyadov. Earlier, when A. Bunyadov was under the police supervision, he did not commit any illegal acts, that could influence on the  replacement of preventive measure to more rigorous one.
According to the paragraph 102.2. of the European Prison Rules, imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.
Such treatment is prohibited by article 3 of the European Convention. According to this article, no one shall be subjected to torture or to inhuman or degrading treatment or punishment.

In the paragraph 149 of the judgment of the European Court of Justice in the case of Polufakin and Chernyshev v. Russia from September 25, 2008 says: “The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour. However, in order to fall under Article 3, ill-treatment must attain a minimum level of severity. The Court observes that, according to its constant case-law, measures depriving a person of his liberty may often involve an inevitable element of suffering or humiliation. Nevertheless, it is incumbent on the State to ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured. – https://hudoc.echr.coe.int/eng#{“fulltext”:[“Polufakin%20and%20Chernyshev”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-88482″]}
In the case was violation article 6 (2) of the European Convention which states: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.
In connection with the events on November 26, 2015 in Nardaran, the Ministry of Internal Affairs and the Prosecutor General’s Office of Azerbaijan issued the joint statement. In this statement , ” Muslim unity” movement was presented as the radical religious terrorist organisation, of which aim is the violent change of the constitutional order, destabilisation of the socio-political situation in the country and terrorism.
On December 1, 2015 another joint statement of the Ministry of Internal Affairs, Prosecutor General’s Office and State Security Service of Azerbaijan was disseminated. In this statement, all arrestees of “Nardaran case” were presented as the members of the criminal group of the “Muslim Unity” movement.

Both statements violated the right of the accused to be presumed innocent. This right is secured both in article 63 of the Constitution of Azerbaijan and in judgments of the European Court of Human Rights.
In the case of Allenet de Ribemont v. France from February 10, 1995 stated: “Freedom of expression, guaranteed by Article 10 (art. 10) of the Convention, includes the freedom to receive and impart information. Article 6 para. 2 (art. 6-2) cannot therefore 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 (paragraph 38). – https://hudoc.echr.coe.int/eng#{“fulltext”:[“Case%20of%20Allenet%20de%20Ribemont%20v.%20France”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57914”]} In addition, there had been a violation of the right of the accused on article 5 (1) (Right to liberty and security), article 6 (1) (Right to a fair trial), article 6 (3) (Right to examination of  additional witnesses) article 9 (Freedom of thought, conscience and religion) and article 18 (Limitation on use of restrictions on rights) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
As can be seen from the analysis of trial of Elkhan Iskandarov and Abulfaz Bunyadov, they are not the subjects of the articles which were incriminated against them. The court issued illegal and unreasonable sentence and has violated the number of norms of national and international law.

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Yasamal District Court Found Guilty of Azer Gasymly

The Analysis of violation of law during Azer Gasymly’s judicial proceedings

The Yasamal District Court, Baku

Criminal case № № 3(004)-842/2018
May 29, 2018

Judge: Azer Tagiyev

The person whoever made the administrative report: community police officer from 26  Police Department of Yasamal District of Baku City Vusal Kerimov

The person against whom the administrative report was drawn up: Azer Gasymly

Defender: Elchin Sadigov

On May 28, 1918 the Interim National Council of Muslims of Transcaucasia (National Council of Azerbaijan) proclaimed the foundation of the independent Azerbaijan Democratic Republic (ADR). On April 27, 1920 the units of the 11th Red Army crossed the border of ADR and entered Baku on April 28. The newly created Azerbaijan Democratic Republic existed only 23 months and was occupied by troops of the Soviet Russia. The Azerbaijan Democratic Republic was the first secular democratic state of the Islamic world, as well as the first state in the Islamic world and in the East where granted women the right to elect and be elected. 

In 2018 in Azerbaijan celebrated the 100-year anniversary of the ADR. The opposition parties and members of civil society paid more attention to the celebration of the 100 anniversary of the first republic. The authorities were annoyed by the attention of the civil society to the heroic past of the Azerbaijani people, prevented rallies and processions of citizens to the monuments of leaders of the ADR, prevented even singing hymn and the raising of national flag of Azerbaijan.

On May 28, 2018 on day of proclamation of ADR opposition “Real Alternatives” (ReAl) Party and a number of representatives of civil society decided to hold in Baku a solemn procession from the underground station Ichari Shahar to the monument of Independence on the central Istiglal Street. Distance from the underground station to a monument no more than 700 meters.
On social network Facebook were actively calls to participation in the event dedicated to the 100 anniversary of the republic.
On May 28, 2018 at 12:00 participants of the procession gathered near the underground station Icheri Shaher and moved down the Istiglal Street to the monument. Laying flowers, participants of the action sang the national anthem and began to the central street. On M. Rasulzade Street (M. Rasulzade – one of the founders of the first republic) in the center of Baku to the participants of procession approached the police officers. One of the leaders of the ReAl Party Azer Gasymly explained to the police officers that the procession is organized in honor of the 100-year anniversary of ADR and the demonstrators did not violate the law. The police officer demanded to bring down national flags. In response A. Gasymly said that he can not appeal to pull national flags in the 100th day anniversary of the raising of this flag. The police officers blocked the way and prevented participants of the action to the boulevard. After that, participants of the action dispersed.
On May 29, 2018 one of the organizers of the rally Azer Gasymly was summoned to the Prosecutor General’s Office, and then was brought to the Police Department of Yasamal District of the Baku City, where he was kept about an hour. All the questions raised by law enforcement officials to A. Gasymly concerned only the procession on May 28, 2018.
Azer Gasymly was brought from Police Department to Yasamal District Court. During the trial, Azer Gasymly made the political statement and expressed his attitude to the regime in Azerbaijan with one sentence: “This is Gestapo’s regime”.
Consideration of the case of Azeri Gasymly was requested to the judge of Yasamal District Court Azer Tagiyev. It should be noted that judge A. Tagiyev previously dismissed the complaint of the head of the Azerbaijan Branch of the radio Voice of America, photographing an action of students near the Baku State University in 2014 earlier; elected arrest as a preventive measure against head of the news agency TURAN Mehman Aliyev in 2017; rejected the appeal of the journalist Fargana Novruzova who filmed the demolition of Haji Javad mosque in the center of Baku City and faced with brutality of the ex-Chief Executive Power of Yasamal District in 2017; but considered the complaint by way of private prosecution of the deputy dean of the Faculty of Theology of the Baku State University Nigyar Ismaylova against the student of this faculty Zeki Miragayev who through the mass media accused dean’s office of corruption and taking  bribes from students.
On May 30, 2018 judge Azer Tagiyev based just only testimony of the police officers and found Azer Gasymly guilty of an offence under the Article 535.1 (insubordination of legal request of policeman) the Code on Administrative Violations of Azerbaijan Republic, and sentenced to 30 days of administrative detention.

Commentary by an expert lawyer:
The court decision is unlawful and groundless. The right to freedom of Assembly citizens of the Azerbaijan Republic guarantees the article 49 of the Constitution of Azerbaijan. According to this article:
I. Everyone has the right for meetings.
II. Everyone has the right, having notified respective governmental bodies in advance, peacefully and without arms, meet with other people, organize meetings, demonstrations, processions, place pickets.
The same standards exist in international legislation. In April, 2002 Azerbaijan ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. Since then, Azerbaijan was committed to obligations to respect the rights and freedoms provided by the European Convention.
According to the article 11 (1) of the European Convention, everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

Paragraph 2 of this article provides a clear list of restrictions on the right to freedom of assembly. The right to freedom of assembly may be restricted in the following cases: 

            · no restrictions shall be placed on the exercise of these rights other than such as are  
              prescribed by law and are necessary in a democratic society
  · in the interests of national security or public safety, 
  · for the prevention of disorder or crime, 
  · for the protection of health or morals 
  · for the protection of the rights and freedoms of other

The right to freedom of assembly is a fundamental right in a democratic society and, along with the right to freedom of thought, conscience and religion, one of the bases of a democratic society. 

Meetings, rallies, processions and demonstrations of citizens are forms of direct democracy. They can be carried out on purpose: public discussion and expression their views to the actions or inaction of public authorities and local government; in connection with the events in socio-political and socio-economic life of the state, society and world at large; to draw attention to the decision of pressing socio-economic and other problems of the state, society, local territorial community; a public protest against the decisions and actions carried out by the central executive and local authorities against individual events of life of the state or the world at large or on the contrary – their support.

In the judgments of European Court of Human Rights (ECtHR) it was repeatedly stated that democracy is the only basis of a democratic society. The European Convention for the Protection of Human Rights and Fundamental Freedoms has been designed for development and maintain of ideals and values of a democratic society. The ECHR has repeatedly stressed that democracy is the only political model under the European Convention and compatible with it.       

Despite the fact that article 535.1. The Code of the Administrative Offences contains alternative sanctions such as fine in 200 AZN, the court did not consider these measures and adopted a decision on the maximum duration of the arrest, not taking into account personality of A. Gasymly. It should be noted that Azer Gasymly is a doctor of political sciences, married, has the care three young children and positive reputation in society.

In addition, the court issued an order on the maximum duration of the arrest based just only testimony of the police officers. At the time of conversation A. Gasymly with a police there were participants of the rally, who could be called as witnesses in the case. However, they did not call as witnesses. The court also did not take into account the testimony of the Azer Gasymly.

According to the Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in cases and in accordance with a procedure prescribed by law. Purpose of the administrative arrest of Azer Gasymly was punish for participations in the rally dedicated to the 100-year anniversary of ADR, punishment for his political activity. The arrest has not pursued a legitimate aim under national and international law

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Shirvan City Court pronounced the verdict for Aliakram Khurshudov

Analysis of violation of law during Aliakram Khurshudov’s judicial proceedings

The Shirvan City Court
Criminal case № 1 (032)-20/2018
May 04, 2018
Judge: Elchin Gurbanov
Accused:  Aliakram Khurshudov
Defenders:  Nemat Kerimli, Osman Kazymov
Prosecutor: Shakir Samedov
Complainants:  Niyamaddin Aliyarov, Elchin Talybov, Yunus Abyshov, Yaser Melikov

On November 22, 2017 the chairman of Shirvan branch of the oppositional Musavat Party Aliakram Khurshudov was detained. He was charged of committing the offences under articles 221.2.2 (The hooliganism committed with resistance to representative of the authority, acting as on protection of a social order or stopping infringement of a social order or with resistance to other person) and 221.3 (The hooliganism committed with application of a weapon or subjects, used as the weapon) of the Criminal Code of Azerbaijan Republic. On November 24, 2017 Shirvan City Court ordered detention against A. Khurshudov preventive measure in the form of arrest for a period of 3 months. Subsequently, the duration of preventive measure was extended.

On January 8, 2018 the article 221.2.2 of the Criminal Code of Azerbaijan Republic was excluded from the charge against A. Khurshudov. But, instead was added the article 315.2 (Resistance or application of violence concerning the representative of authority with violence dangerous to life or health) of the Criminal Code of Azerbaijan Republic.

After the end of the preliminary investigation of this criminal case it was referred to the Shirvan City Court. During the trial A. Khurshudov pleaded not guilty and testified that he worked as a repairman of apartments.

A month before the event, an unknown person called him and has invited to work at home of his relatives.  After 15 days A. Khurshudov started working in the house, where he was invited. On November 22, 2017 in the house where Khurshudov worked, was a spouse of the owner of the house. In the evening, after work, he went to the bathroom to change clothes. At this point the doors of the house knocked. It was the owner of the house Niyamaddin Aliyarov. With a cry of breaking into the house, he became to expel his wife with the words “You cheating on me, get out of here”. Then he came to Khurshudov, dragged him into the yard and removed from him a pullover. At this point, Elnara Karimova, the wife of Aliyarov started to beat Khurshudov all over his body.

Furthermore, two strangers (he later learned that it was Svetlana Jafarova and Elvin Misirkhanov) entered into the yard and tried to resolve the conflict. In 15-20 minutes to place came three police officers, two of whom were in a police uniform, and one in civilian. The police officers immediately grabbed A. Khurshudov and one of them said: “You hurt my leg» and another: “You ripped from me shoulder straps”. Then police put A. Khurshudov in a car and took him away to the Police Department of Shirvan City. In department the police reported Aliakram Khurshudov that they have a complaint against him. In response he stated that never hit anyone, did not offend and did not resistance to police officers.

During the pre-trial investigation and the trial were heard testimony from the police officers, owner of the house Niyamaddin Aliyarov and his spouse Elnara Karimova, as well as Svetlana Jafarova and Elchin Misirkhanov included in the courtyard of the house.

On May 4, 2018 after completion of judicial investigation the Shirvan City Court found A. Khurshudov guilty of the charges and sentenced to 5 years of imprisonment.

Commentary by an expert lawyer:

The court decision is unlawful and groundless. In any cases must be met objectivity, the impartiality and justice of criminal legal proceedings set forth in the criminal procedure legislation. Thus, according to the article 28.1 of the Code of Criminal Procedure of the Azerbaijan Republic, “courts shall hear criminal cases and other prosecution matters in accordance with the legal procedures established by this Code, on the basis of the facts and of impartiality and justice”.

As can be seen from materials of the case, the testimonies of the police officers contradict not only to testimony of the defendant, but also each other. Thus, there is a contradiction in the testimony of the police officer Elchin Talybov. During the preliminary investigation he showed that, despite injuries, he continued to perform his duty. But during the trial E. Talybov has shown due to injury he couldn’t walk for several days.

In this regard, the defence filed a motion requesting to provide a certificate of passing Elchin Talybov of physical therapy due to injury. The court granted the petition, and its execution was entrusted to E. Talybov. However, this certificate was not provided to court. But E. Talybov unpunished and did not suffer any liability for failure to execute a court decision.

During judicial examination A. Khurshudov showed that did not know where and why suddenly appeared in the house N. Aliyarov Svetlana Jafarova and Elchin Misirkhanov, what they are doing there and how did know about the conflict. As is well known, testimonies in trial are one of types of evidence. According to the article 125.1 of the Code of Criminal Procedure of the Azerbaijan Republic, if there is no doubt as to the accuracy and source of the information, documents and other items and as to the circumstances in which they were obtained, they may be accepted as evidence. However, the court did not attach any attention to the testimonies of the accused and didn’t investigate them. As a rule, the judge sentences indicate that the testimonies of the accused are “protective nature”, and did not give them a legal assessment. This is contrary to the criminal procedure legislation.

Thus, according to the article 126.4 of the Code of Criminal Procedure of the Azerbaijan Republic, the value of evidence may not be assigned to statements given in the following situations:

126.4.1 when a person is agreed to be unable to comprehend or describe matters significant to the prosecution at the appropriate time;
126.4.2  when a person refuses to undergo an examination by experts of his ability to comprehend or describe matters significant to the prosecution.

Furthermore, according to the article 126.3, information given to the prosecuting authority by the suspect, accused, victim or witnesses on the basis of hearsay may not be used as evidence.

As can be seen, the court had no legitimate reasons not to give a legal evaluation of the testimonies of the accused, who pleaded not guilty.

In criminal cases, the law imposes a duty of proving and responsibility for demonstrating guilt falls and his guilt on the prosecution. According to the article 144 of the Code of Criminal Procedure of the Azerbaijan Republic, evidence collected for the purposes of prosecution shall be verified fully, thoroughly and objectively. As part of the verification process the items of evidence collected shall be analysed and compared with one another, new evidence shall be collected and the reliability of the source of the evidence obtained shall be established.

In the case of Aliakram Khurshudov the court did not take the initiative to check the irrefutability of evidence, had taken all the proofs as they were presented to investigating assessing and not given a legal assessment of the arguments of the defence.

The accused himself and his defenders during court stated that they did not see any logic in the charge, and his arrest is a customized character and is connected with his political activity in oppositional Musavat Party.

The analyzing the evidence of prosecution and arguments of the defence, it becomes clear how illogical indictment was drawn up, one proof of charge contradicts the other.

This has been illustrated on the example of the police officer Elchin Talybov’s testimony who wrote the official report. He showed that the dispute in Aliyarov’s house took about 10-15 minutes and in a few minutes later the police officers were already in place. A simple mathematical calculation will tell a lot: Elnara Karimova reported about the conflict in service 102 at 17:57. This takes a maximum 1-2 minutes. The service 102 during the next 1-2 minutes transmits the information to the Police Department of Shirvan City. The duty officer Hikmat Ismayilov accepted the official report and reported it to the Department. The official report is compiled and reported what had happened. It takes 10 minutes. Further, the investigation team receives information about incident and it takes 2-3 minutes. According to the information of the members of the investigation team, they arrive at the scene within 15-20 minutes. Thus, all this process takes about 60 minutes (1 hour).

How can it be that the police arrived much earlier in N. Aliyarov’s house?

Despite the fact that the testimony of E. Talybov is not accurate, the court hasn’t shown any initiative in a full and objective investigation of other circumstances of the case.

According to article 346.1 of the Code of Criminal Procedure of the Azerbaijan Republic, following matters relating to the results of the court’s examination of the case shall be discussed by the court (or examined by the judge) in the deliberation room:

346.1.1. whether the criminal act is proved;
346.1.2. whether it is proved that the act committed by the accused has a criminal
content;
346.1.3. whether it is proved that the accused was connected with the commission of the
offence;
346.1.4. whether the accused is proved guilty of committing the offence;
346.1.5. whether the act committed by the accused corresponds to the ingredients of the
offence with which the accused is charged under the relevant provision of criminal law;
346.1.6. whether there are circumstances that preclude the act being an offence;
346.1.7. whether there are circumstances aggravating or mitigating the criminal
responsibility of the accused;
346.1.8. whether there are grounds for exonerating the accused from criminal
responsibility;
346.1.9. whether the accused should be punished for the act committed;
346.1.10. whether there are grounds for punishing the accused for reoffending;
346.1.11. which punishment to impose on the accused (including consideration of
previous offences, the total number of offences, the total length of sentences, the
combination of penalties, calculation of the length of sentences, an alternative penalty,
reduction of sentence, the jurors’ recommendation of a lighter sentence instead of the
statutory penalty provided for in respect of this offence, and the possibility of imposing
a conditional sentence);
346.1.12. whether the accused should serve the sentence;
346.1.13. if the accused is sentenced to deprivation of liberty, to which penal or
corrective institution he should be committed;
346.1.14. whether it is necessary to impose additional penalties on the person found
guilty of the offence, and if so, which penalty;
346.1.15. whether it is possible to apply compulsory corrective training measures to an
under-age accused and, if so, which measures;
346.1.16. whether it is possible to apply compulsory measures of a medical nature to the
accused and, if so, which measures;
346.1.17. in whose interest and for what amount the civil claim should be secured;
346.1.18. whether the attachment of property, either for the purpose of confiscation or
to pay for the damage caused by the offence, should be rescinded;
346.1.19. how to decide the matter of the material evidence;
346.1.20. whether to annul, modify or adopt a restrictive measure (and if so, which
measure), including how to resolve the matter of bail;
346.1.21. whom to charge with the court expenses, and their amount;
346.1.22. when the sentence is to start;
346.1.23. whether there are grounds for giving a special decision; if so, about whom it
will be given and what its content will be.

It is clear from the judgment that all of this issues have not been resolved by the court. The sentence is not motivated. The main object of hooliganism is a public order, additional objects – human health, honor and dignity of individuals. The objective aspect of hooliganism is in gross violation of public order which expressed in obvious disrespect for society and is committed with use of weapons or the objects used as weapon. A flagrant violation of public order is such acts of the person that cause essential harm to an order, undermine of public tranquility, etc. Obvious disrespect for society means open manifestation of negligence of the person to the rule of conduct, to the identity of the person, his/her honor, dignity.
Extreme contempt of

None of the above-mentioned has nothing to do with Aliakram Khurshudov and in his actions no crime was committed. According to article 351.2 of the Code of Criminal Procedure of the Azerbaijan Republic, a conviction by the court may not be based on assumptions and shall be handed down only where guilt of the accused is proved during the court’s examination of the case. As we can see, the guilt of Aliakram Khurshudov was not proven in the court

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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.

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Binaqadi District Court Found Guilty of Elmin Khamzayev

The Analysis of violation of law during Elmin Khamzayev’s judicial proceedings

The Binagadi District Court, Baku

Criminal case № 3(001)1528/2018

May 30, 2018

Judge:Mirheydar Zeynalov

The person whoever made the administrative report: Bahruz Ismayilzade

The person against whom the administrative report was drawn up: Elmin Khamzayev

Defender: Samir Abdullayev, Elchin Sadigov

On May 28, 1918 the Interim National Council of Muslims of Transcaucasia (National Council of Azerbaijan) proclaimed the foundation of the independent Azerbaijan Democratic Republic (ADR). On April 27, 1920 the units of the 11th Red Army crossed the border of ADR and entered Baku on April 28. The newly created Azerbaijan Democratic Republic existed only 23 months and was occupied by troops of the Soviet Russia. The Azerbaijan Democratic Republic was the first secular democratic state of the Islamic world, as well as the first state in the Islamic world and in the East where granted women the right to elect and be elected.

In 2018 in Azerbaijan celebrated the 100-year anniversary of the ADR. The opposition parties and members of civil society paid more attention to the celebration of the 100 anniversary of the first republic. The authorities were annoyed by the attention of the civil society to the heroic past of the Azerbaijani people, prevented rallies and processions of citizens to the monuments of leaders of the ADR, prevented even singing hymn and the raising of national flag of Azerbaijan.

On May 28, 2018 on day of proclamation of ADR opposition party “Real Alternatives” (ReAl) and a number of representatives of civil society organized and held in Baku a solemn procession from the underground station Ichari Shahar to the monument of Independence on the central Istiglal Street. Distance from the underground station to a monument no more than 700 meters.
On May 28 at 12:00 participants of a procession gathered near the underground of the Ichari Shahar and moved down to the monument. Citizens walked on the sidewalk, without interfering traffic, carried state flags. Laying flowers to the Monument of Independence, the citizens sang a hymn of the Azerbaijan and went down the Istiglal street to the street, bearing a name of the founder of the Azerbaijan Democratic Republic Mammad Emin Rasulzade. On this street, which the protesters planned to go to the Sea boulevard, the police blocked their way.
One of leaders of the ReAl Party Azer Gasymly explained to the police officers that the procession was organized in honor of the 100-year anniversary of the first Azerbaijan Republic, in honor of the holiday. Police demanded to lower of state flags. A. Gasymly countered that cannot encourage their adherents to lower the national flag raised 100 years ago, especially in such a solemn, in such a momentous day. The police officers blocked the way and not allowed the participants of the rally on the boulevard. Then participants of the rally dispersed.
On May 29, 2018 one of leaders of ReAl Party and organizers of the rally Azer Gasymly was summoned to the General Prosecutor’s Office, and then was brought to the Police Department of Baku City Yasamal District where he was kept about an hour. Then A. Gasymly was brought to the Baku City Yasamal District Court which found him guilty of disobeying of the police officer and sentenced to 30 days of administrative arrest.
In the same day was arrested one of the organizers and active participants of the rally, a member of the ReAl Party Elmin Khamzayev. Against him an administrative report was also drawn up. The official version of detention was that on-street E. Khamzayev used foul language. The police officers demanded to stop it, but E. Khamzaev did not pay attention to their requirements and ignored them.
The next day, E. Khamzayev was taken to the Binagadi District Court of Baku City. On May 30, 2018 Binagadi District Court found E. Khamzayev guilty of an offence under the Article 535.1 (insubordination of legal request of policeman) the Code on Administrative Violations of Azerbaijan Republic, and sentenced to 25 days of administrative detention.

Commentary by an expert lawyer:

The court decision is unlawful and groundless. The court did not clarify what kind of demands made by the police, were legitimate and which are not. The court ruled only on the basis of a report and protocol of the police officers. 
According to the article 49 of the Constitution of Azerbaijan:
     I.  Everyone has the right for meetings.
     II. Everyone has the right, having notified respective governmental bodies in advance, peacefully and without arms, meet with other people, organize meetings, demonstrations, processions, place pickets.

 

In April, 2002 Azerbaijan ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. Since then, Azerbaijan was committed to obligations to respect  the rights and freedoms provided by the European Convention.
According to the Article 11 (1) of the European Convention, everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

 

          Paragraph 2 of this article provides a clear list of restrictions on the right to freedom of assembly. The right to freedom of assembly may be restricted in the following cases:

· no restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society
· in the interests of national security or public safety,
· for the prevention of disorder or crime,
· for the protection of health or morals
· for the protection of the rights and freedoms of others.

The right to freedom of assembly is a fundamental right in a democratic society and, along with the right to freedom of thought, conscience and religion, one of the bases of a democratic society. In the judgments of European Court of Human Rights (ECHR) it was repeatedly stated that democracy is the only basis of a democratic society. The European Convention for the Protection of Human Rights and Fundamental Freedoms has been designed for development and maintain of ideals and values of a democratic society. The ECHR has repeatedly stressed that democracy is the only political model under the European Convention and compatible with it.      

In the judgment of the ECHR in the case of Barankevich v. Russia (para. 25) from July 26, 2007 states: “The right to freedom of assembly covers both private meetings and meetings in public thoroughfares as well as static meetings and public processions; in addition, it can be exercised by individuals participants of the assembly and by those organising it (see Adalı v. Turkey, no. 38187/97, § 266, 31 March 2005). States must refrain from applying arbitrary measures capable of interfering with the right to assemble peacefully. In view of the essential nature of freedom of assembly and association and its close relationship with democracy there must be convincing and compelling reasons to justify an interference with this right (see Ouranio Toxo v. Greece, no. 74989/01, § 36, 20 October 2005, with further references)”. See:  https://hudoc.echr.coe.int/eng#{“appno”:[“10519/03″],”itemid”:[“001-81950”]};
http://freecases.eu/Doc/CourtAct/4528891

Elmin Khamzayev participated in the peaceful rally dedicated to the 100-year anniversary of the Azerbaijan Democratic Republic, did not disturb the public order and had not committed any offenses. Furthermore, no one was detained by the police officers at the time of the rally on account of any criminal offence. As can be seen from the list of restrictions, none of them did not exist in this case. That’s why, Elmin Khamzayev was detained under far-fetched charge of committing an administrative offence which he did not commit.

According to the Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in cases and in accordance with a procedure prescribed by law. Purpose of the administrative arrest ofElmin Khamzayev for 25 days was punish for participations in the rally dedicated to the 100-year anniversary of ADR, punishment for active work on the organization of the rally. The arrest has not pursued a legitimate aim under national and international law. A number of organizers of the rally were subjected to administrative detention.

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Yasamal District Court elected against O. Bakhyshly arrest as a preventive measure for the period of 4 months

The Analysis of violation of law during Orkhan Bakhyshly’s judicial proceedings

The Yasamal District Court, Baku

Criminal case № №4 (004)-282/2018

May 09, 2018

Judge: Fuad Babayev

Investigator of the Investigation Division of the Police Department of Yasamal district of Baku: Ali Babayev

Defender: Elchin Sadygov

Accused: Orhan Bakhyshly

Orhan Bakhyshly is a member of Youth Committee of the Popular Front Party of Azerbaijan (PFPA) and Vice-Chairman of Khatai branch of Youth Committee of PFPA. The chairman of the Khatai Branch of the Youth Committee Fuad Ahmedli is a political prisoner at present. (FuadAhmedli was arrested on December 25, 2015. On June 16, 2017, Baku Grave Crimes Court sentenced Fuad Ahmedli to 4 years of imprisonment). Orhan Bakhyshly was engaged in the political and public activities. He often and sharply criticized the policy of the authorities, both at various events and in social networks. He was also responsible for the organization of various actions of PFPA.

On the eve of the rally on March 31, 2018 organized by the National Council of Democratic Forces, several members of PFPA were brought to administrative responsibility: Abdullah Mahmudov for 30 days (March 26, 2018), Ayaz Qasimov for 15 days (March 29, 2018) and Orhan Bakhyshly for 30 days (March 27, 2018). All the detainees were accused with an offence in accordance with the article 535.1. (insubordination to legal demands of police) of the Code of Administrative Offences of the Azerbaijan Republic. Organizers of the rally, young activists were arrested on the eve of the rally on March 31.

Once again O. Bakhyshly was detained by unknown men in civil on May 7, 2018 in a park near the Elmlyar Akademiyasi subway and brought to Police Department of Yasamal district of Baku City. This time against Orhan Bakhyshly was opened a criminal case under article 234.4.3 (manufacturing, purchase, storage, transfer, transportation or selling drug with a view of illegal manufacturing and processing of narcotics or psychotropic substances in large amount) of the Criminal Code of Azerbaijan Republic (CC AR).

On May 9, 2018, Baku City Yasamal District Court elected against O. Bakhyshly arrest as a preventive measure for the period of 4 months.

Commentary by an expert lawyer:

The court decision is unlawful and groundless. According to Article 5, Paragraph 1 of European Convention for the Protection of Human Rights and Fundamental Freedoms, “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”.

The mandatory requirement of article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is the presumption of liberty. Thus, persons who deprives another of his liberty must not only prove that powers of arrest fall under one of the bases referred in article 5, but also to prove that these powers can be applied to the concrete case. In any case, when it concern the right of freedom, essential first of all it is very important that the judge considered the possibility of the release of a detainee. Therefore, the judge should not wait and require only the submission of evidence to arrest of the person. He must carefully investigate this evidence to justify the measures. In the event that the judge would come to the opposite conclusion, the arrest must be annulled. This is the opinion of the European Court of Human Rights (ECHR) concerning the most stringent measure. The right to freedom is also established in article 28 of the Constitution of Azerbaijan.

In commented resolution the court not only does consider release of O. Bakhyshly to pending trial, which will considered a criminal case against him on the charges, but was never able to clearly and truly justify preventive measure is applied. The grounds that the court ruling were:
• Commission of a serious crime;
• Nature of the crime;
• Degree of public danger;
• Possible escape from the investigation and judicial authorities.

The Resolution of the Plenum of Supreme Court of the Azerbaijan Republic on November 03, 2009 “About practice of application of the legislation by the court in consideration of submissions, elected-related of preventive measure in the form of detention concerning the accused persons” was accepted because when applying the legislation by the courts allowed a number of mistakes:

      –  not tested comprehensively the validity of specific submissions;
      – resolutions are not commented basis for application of the most strict preventive measures in the form of detention, provided by the article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic;
      – as a bases for preventive measure in the form of arrest uses such general phrases as probability of escape from the body conducting criminal proceedings, interference in the normal course of investigation, evasion when summoned by the body conducting criminal proceedings;
       – there is no references to any factual circumstances confirming suspicions.

It is because of violations of the law by the courts, the Plenum of the Supreme Court of Azerbaijan was given clarifications, which were the courts checked the validity and legitimacy of the use of preventive measures in the form of arrest. However, despite the fact that since adoption of the said resolution has gone 9 years, it is still performed by the courts.

The court also did not given the concrete evidence in support of his conclusion that the defendant could abscond, interfere in the investigation or continue criminal activity. The court has not stated exactly what circumstances provide the ability to infer that O. Bakhyshly may avoid trial. This risk does not arise solely because the defendant can easily cross the border. There should be a all set of circumstances conducive to it. The court did not state to such circumstances in its resolution and does not specify any particular character of the defendant or his behavior that would justify the conclusion that he could escape.

For crossing the border of the Azerbaijan Republic the citizen of Azerbaijan must present the foreign passport. The foreign passport of the defendant may be seized by court, the prosecutor or the officer of law-enforcement bodies until the completion of criminal proceedings, so the  risk of escaping from the country has no basis in reality.

In the resolution on application of a preventive measure against Orhan Bakhyshly the court violated not only the Constitutions of the Azerbaijan Republic, the Code of Criminal Procedure of the country, the Resolution of the Plenum of the Supreme Court of Azerbaijan Republic, but also precedent decisions of the European Court of Human Rights (ECHR).

Thus, according to paragraph 52 of the resolution of ECHR in the case of Erkalo against the Netherlands on September 2, 1998 stated: “the Convention states the obligation to conform to the substantive and procedural rules thereof; but it requires in addition that any deprivation of liberty should be in conformity with the purpose of Article 5 which is to prevent persons from being deprived of their liberty in an arbitrary fashion”.

The Resolution of Baku City Yasamal District Court  not protected Orhan Bakhyshly from an arbitrariness and illegally placed him under arrest for 4 months.

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Ganja Appeal Court rejected the complaint of the lawyer Yalchin Imanov

The Analysis of violation of law during the lawyer Yalchin Imanov’s judicial proceedings

Ganja Appeal Court, Administrative-Economic College

Criminal case № 2-1(104)-281/2018

April 17, 2018

Chairman: Rakhman Muradov
Judges: Adil Mamedov, Chingiz Mamedov

Claimant: The Presidium of the Bar Association of the Azerbaijan Republic
Defendant: Yalchin Imanov

Since 2007 Yalchin Imanov was a member of Bar Association of the Azerbaijan Republic and as the lawyer defended many activists of political parties, civil society, journalists, as well as believers who strongly criticized the government.

In August 2017, one of Imanov’s client’s, political prisoner Abbas Huseynov who is passing in the case of “Nardaran-1” and sentenced by the court to 20 years of imprisonment, was severely tortured in close-type prison Gobustan. The lawyer gave testified injures on his body and officially applied to the court with complaints and requests for investigation of the facts of tortures. At the same time, the lawyer reported about this in the media. The press highlighted everything he said, because the trials of so-called “Nardaran cases” (they were four) generating great public interest. The lawyer described in detail the methods of tortures and also has told about the appeals to the court which sent in connection with the facts of tortures.

On August 6, 2017 in protest against the torture relatives of political prisoners gathered near the building of Gobustan prison and demanded a meeting with the chief of prison colonel Aftandil Agayev. However, during this period A. Agayev was on vacation, and the acting was colonel of justice Ogtay Mammadov. After a long period of waiting the relatives of prisoners met with O. Mamedov and expressed his concern. Shortly thereafter, three of the relatives came to the building of Penitentiary Service of the Ministry of Justice of the Azerbaijan Republic, where also demanded a meeting with the leadership of structure.

However, O. Mamedov failed a complaint to the Disciplinary Commission of Bar Association that information about tortures, which distributed the lawyer are untrue. And these actions of the lawyer are aimed “to destabilization of a situation in the country and to incite his clients to dissemination of false information”. O. Mamedov also accused the lawyer that he was an initiator of the protest action of relatives of prisoners. In his statement, he asked to take action against “objectionable” lawyer.

Also the Head of Penitentiary Service of the Ministry of Justice, major-general of justice Jeyhun Hasanov requested to Bar Association and had called to punish lawyer Yalchin Imanov, accusing him “of violating of public stability”.

On November 20, 2017 the Disciplinary Commission of Bar Association decided on suspension of legal activity of Yalchin Imanov.

The presidium of Bar Association appealed to the court with statement of claim about an exception of the lawyer Y. Imanov from the Bar. In turn Y. Imanov filed a counterclaim against revocation of the Bar Association’s decision to suspend of his activity. Yalchin Imanov also requested the court with the petition that the Bar Association filed is submitted with violation of the law.

According to the decision of the Ganja Administrative and Economic Court under the number 2-1 (83)-339/2017 from February 21, 2018 Yalchin Imanov’s request had not been granted. The lawyer did not agree with this decision and appeal to the court with a request for revocation of this decision.

But the Ganja Appeal Court had ruled the decision under the number 2-1 (104)-281/2018 from April 17, 2018 on rejecting of the appeal and upheld the decision of the court of first instance.

Commentary by an expert lawyer:

The court decision is unlawful and groundless. The appellate court hasn’t expressed its attitude to the arguments of the complaint of Yalchin Imanov. The court called these arguments “the groundless and formal assumptions”. It should be noted that in connection with such cases there is no unified court practice. A few such disputes connected with an exception of members of Bar Association have been considered by the courts of general jurisdiction, that is district courts, and the administrative courts rejected consideration.

One of examples can be provided the decision of the Baku Administrative and Economic Court No. 1 from January 22, 2018 concerning the exclusion from Bar Association the lawyer Fakhraddin Mekhdiyev. In that decision stated that the Bar isn’t an administrative body and the claim was declared inadmissible, because this is an issue of the general orientation and therefore has to be considered by court of general jurisdiction.

In accordance with article 22 (VIII) of the Law of the Azerbaijan Republic “Act on Lawyers and Advocacy” the Bar Association could not stop an activity of the lawyer on their own. For this purpose it is necessary to appeal to court. This procedure says about equality of both parties.

If the Bar Association can’t independently stop activity of the lawyer, this means that the relationship between the Board and the lawyer are of a relations of a personal nature, which the court decide.

In paragraph 4 of Order No. 4 of the Plenum of the Supreme Court of the Azerbaijan Republic “On the judicial jurisdiction of the disputes arising from the administrative and civil-legal relations” stated that in addressing such disputes must be taken into account whether the administrative body of the party to the dispute.

According to the article 2.0.1. the Law of the Azerbaijan Republic “Act on Administrative Procedure”, the administrative authorities are relevant body of executive branch of the Azerbaijan Republic, their local and other structures, municipalities, as well as any natural or legal person having authority to make administrative act.

Article 2.0.2. of the Law states: “An administrative act – a decision, the order or the imperious measure of other character adopted by the administrative body in order to resolve or the solution of a certain (concrete) question in the overall legal (public) sphere and creating specific legal consequences for the physical or legal person (s) which it is addressed”.

In the article 2.0.6 of the Law states that “administrative proceeding is acceptance, performance, change or cancellation of an administrative act on the basis of the appeal of physical or legal persons or on its own initiative of the administrative authorities, as well as administrative complaints, carried out by the relevant administrative bodies within the procedural rules established by the present Law.”

In the article 3.1. of the Law states: “The provisions of this Law shall apply to the activities of bodies defined (classified) by the legislation of the Azerbaijan Republic as administrative bodies”.

In the resolution of the Cabinet of Ministers of the Azerbaijan Republic No. 136 from August 28, 2007 in which the alleged classification of administrative bodies, the Bar Association does not.

In the article 9 (I) of the Law “On advocates and advocacy” indicate that the Bar Association is a non-governmental structure.

Also, according to the article 2 of the Administrative and Procedural Code of the Azerbaijan Republic are considered administratively following disputes:

· 2.2.1. action on disputing (liquidation or alteration) the administrative act adopted
by administrative body with regard to a person’s rights and responsibilities;
· 2.2.2. actions on imposition of relevant liability on administrative body concerning the adoption of an administrative act or petitions on defence against the inactivity of administrative bodies (action on compulsion);
· 2.2.3. action on committing certain actions not related to adoption of an administrative act by administrative body (action on implementation of commitment);
· 2.2.4. иски о защите от незаконного вмешательства, не связанного с вынесением административного акта административным органом и непосредственно нарушающего права и свободы лица (иски о воздержании от совершения определенных действий);
· 2.2.4. actions on illegal intervention by administrative body, that is not related to adoption of an administrative act or directly violates a person’s rights and freedoms (action on refraining from doing certain actions);
· 2.2.5. actions on existence or non-existence of administrative legal relationship, or consideration of an administrative act as invalid (actions on identification or recognition);
· 2.2.6. actions on verifying the legality of acts of normative nature, with exception of the issues under competence of the Constitutional Court of the Republic of Azerbaijan (action on legality);
· 2.2.7. actions on reimbursement for property claims related to settlement of administrative disputes, as well as for damages caused by illegal decisions (administrative acts) or actions (inaction) of administrative bodies;
· 2.2.8. counter-actions by municipalities and administrative supervisory bodies against the actions of each other.

As shown from the paragraphs of the article mentioned, the dispute between the Bar Association and lawyer can not be classified to any of the listed points.

Even if we consider the claim of the Bar Association as an administrative, it at least must be filed in the defendant’s place of residence, i.e. in Sumgayit Administrative Court, but not in Ganja in any way.

Such claims are considered by court at the location of the administrative body which has adopted the contested administrative act. If the administrative act imposed by administrative body whose powers cover the territory under the jurisdiction of more than one court, lawsuits against these administrative acts are considered by court at the place of residence or location of the person, the right (legally protected interests) is affected.

Thus, if to consider the claim administrative, it must have been to be submitted either on the Bar Association location, i.e. in Baku Administrative and Economic Court No. 1, or at the place of residence of the defendant, namely to the Sumgayit Administrative Court.

As shown from the above, the Bar Association incorrectly filed a lawsuit, violating the rules governing jurisdiction.

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In Azerbaijan the Rights of Citizens to Property are not Protected

	The demolition of the house-office of the Institute for Peace and Democracy on August 11, 2011
The houses on 12 streets in the center of the Baku City were destroyed in 2016-2017

The Baku Administrative and Economical Court No. 1

Criminal case № 2-1(81) 201/2018

January 26, 2018

Judge:  Tahira Asadova

Applicants: Vasif Guliyev, Solmaz Guliyeva, Viktor Sapkunov, Maxim Tyshin, Bahruz Agalarov, Kamala Mustafayeva, Matanat Abdulrahmanov, Mirzali Suleymanov, Shirmai Amirkhanova, Islam Huseynov, Mansur Alekperov, Saringul Agalarov, Zumrud Balakishiyeva and her representative Afiyaddin Balakishiyev

Respondent: Nasimi District Executive Authority

Representative of defendant: Khafiz Aberkarov

Stranger to the litigation: Gloria Palas Housing Cooperative

Mass demolition of houses and non-residential premises, a violation of the property rights of citizens of the Azerbaijan started in Baku from 2010 onwards. In the city center houses were destroyed on Fizuli, Shamsi Badalbeyli, Rasul Rza, A. Topchubashev, Mirza-aga Aliyeva, N. Yusifbeyli, Vidadi, Abbas Sahhat and other streets. More than 60 thousand citizens were unlawfully deprived of their property (apartments, houses) in the center of Baku in 2010-2011. On the site of the demolished houses the authorities laid out parks or built shopping centers. For example, the so-called “Winter Park” was built in 2012 on the territory of Fizuli, Sh. Badalbeyli, Mirza-aga Aliyev streets, etc.

The citizens did not want to leave their homes, in which they and their parents had lived for decades and to which they had legal title according to the legislation of Azerbaijan. Especially, when the public authorities paid (sometimes refused to pay) scanty compensations – 1.500 manat per square meter. People who had no place to go remained in their apartments. Then, under the leadership of the police (sometimes even led by the police chiefs of the central districts of Baku) workers with bulldozers and construction cranes demolished houses and inhabitants of the houses were literally being thrown on the street with their personal possessions.  Often, personal possessions of inhabitants were looted or broke.

How single women were thrown from their apartments, how they were beaten, whole units of the police invaded into apartments of inhabitants and demolished houses of citizens together with their property, you can see in this video: Property Right Goes Unprotected in Azerbaijan. – http://www.publicdialogues.info/en/node/356
The demolitions were carried out by the decision of Executive power of Baku. During the period 2015-2017 more than 300 thousand inhabitants of Baku were unlawfully deprived of their property. From 2015 on the territory of the demolished houses the authorities stopped laying out parks but started a construction of new buildings. At the same time, the executive authorities signed contracts with various construction cooperatives on construction of new buildings.

 

On February 25, 2016, the Azerbaijani Cabinet of Ministers adopted the Resolution on additional action to facilitate the socio-economic development of Surakhany, Nasimi, Khatai, Narimanov, Sabayil, Yasamal, Khazar districts of Baku and Pirallahi peninsula adjacent to the mainland of Azerbaijan. According to the paragraph 1.1. of this Resolution, 226 of residential buildings located on N. Yusifbeyli and Abbas Sahhat streets in Nasimi district of Baku were subject to demolition. According to the paragraph 1.3. of this Resolution, the houses in a dangerous condition should be destroyed. And inhabitants who had been relocated from these houses are to be given financial compensation for temporary rent of apartments and will later be provided with apartments in the new houses in place of the old. On June 19, 2017, the State Agency for Safety Control of Construction of the Ministry of Emergency Situations approved the conclusion that 226 houses on those streets are in an emergency condition.

 

On October 21, 2017, the Nasimi District Executive Authority of Baku issued a directive instruction that the houses through the streets of Han Shushinski, Abbas Sahhat and on the crossing of N. Yusifbeyli Street and Azadlyg Avenue should be demolished due to their bad condition. The lands under these houses should be leased to Gloria Palas Housing Cooperative and on the site of old houses new buildings should be built. Gloria Palas Housing Cooperative was responsible for the contract with residents. According to this contract, residents had to be given financial compensation for temporary rent of apartments and after completing of new buildings to be relocated to a new apartment.

 

It should be noted that the resolution of the Cabinet of Ministers did not include private houses. However, all houses started to be demolished. Inhabitants from a number of houses on N. Yusifbeyli and Abbas Sahhat streets had the serious reasons of grievances with the specified normative acts of government institutions. For protection of their property rights inhabitants have appealed to court with the claim for annulment of the resolution of the Nasimi District Executive Authority of Baku from October 21, 2017.

 

During the trial, it turned out that the Nasimi District Executive Authority (head Asif Askerov) without notifying the owners of the property, to lease the land plot of 1,2 hectares on which these houses are located to Gloria Palas Housing Cooperative. On May 16, 2016, the Nasimi District Executive Authority unilaterally entered into the lease of the land with Gloria Palas Housing Cooperative. However, the inhabitants found out about this contract only on January 12, 2018. The claimants considered this land lease illegal, because such a contract should be signed by owners of the houses and must be registered in the Joint Property Committee. The Nasimi District Executive Authority had no right to enter into agreement with the stranger to the litigation (Gloria Palas Housing Cooperative) because it did not own the land plot on which the property of claimants is located. The applicants claim that the above-stated Gloria Palas Housing Cooperative put pressure on the owners of the apartments in the houses on Abbas Sahhat, N. Yusifbeyli and H. Shushinskiy streets, threatening with demolitions without the consent of residents. As a result of strict pressure some residents had serious stress and got cardiovascular diseases, diabetes. One of the applicants Khalsa Osmanova had a stroke after the meeting with officials of the Nasimi District Executive Authority after which she died. Further, her daughter Shirmai Amirkhanova acted as the right successor of H. Osmanova.

 

On January 26, 2018, the Baku Administrative and Economical Court No. 1 had issued an order for dismissal of the claim for compensation.

 

Commentary by an expert lawyer:

The court decision is unlawful and groundless. According to the article 13 (I) of the Constitution of the Azerbaijan Republic, “the property in the Azerbaijan Republic is inviolable and is protected by state”. Article 29 (I) of the Constitution states that everyone has the right to own property.

 

In the Civil Code of the Azerbaijan Republic there are articles that regulates the buy-out of property for public use. Thus, according to the article 157.9. of the Civil Code, “private property may be alienated by the State if required for State needs only in the cases provided for by the Law of the Azerbaijan Republic “On the Expropriation of Land for State Needs”, for the purposes of building and installing roads or other communication lines, ensuring the reliable protection of the State border within the border strip, constructing defence and security facilities, or constructing mining-industry facilities of State importance.”

According to the article 152 of the Civil Code of Azerbaijan Republic, “The right of ownership is legally recognized and protected by the State, use and dispose of property (thing) at one’s discretion. An owner may freely possess, use and dispose of property (thing) within the limits set by legislation or otherwise. In particular, by contractual restrictions an owner can use and dispose of them, can allow possession of this property by others, make at discretion any actions concerning the property belonging to them, if such actions do not violate the rights of neighbors or the third parties or there is no abuse of the right”.

During the trial it was revealed that the Gloria Palas Housing Cooperative had provided to the court the Act of accident of buildings prepared by the Central State Inspectorate of the State Construction Control Agency under the Ministry of Emergency Situations. In this Act, the Ministry does not indicate what standards had been followed during the preparation of the Act. According to the “Rules for monitoring of buildings and constructions” the accident rate of buildings and constructions occurs in 3 stages:

          • the preparation for the survey;
          • a preliminary (visual) survey;
          • detailed (instrumental) survey.

In addition, either the owner of the building and a construction or public authority of executive power must apply for determination of accident rate of the building if this building or a construction is owned by the state. The court adopted the Act of accident rate of buildings as “the report of accident rate”, which is incorrect. The court considered the conclusion of the Ministry of Fire Protection as “the conclusion creating the right for demolition”, which is also incorrect.

It should be noted that the Gloria Palas Housing Cooperative did not provided to the court the main conclusion on building permission from the Ministry approved by the Committee of Architecture and Urban Planning. The court ignored the lack of this important document.
According to the Law of the Azerbaijan Republic “On the State Registry for Immovable Property”, “in the Azerbaijan Republic lands can be leased directly by the decision (consent) of owners or by their authorized bodies through land tenders or auction. Direct transfer of private leased lands, which is based on treaty, concluded between lessor and lessee and approved by a notary”. As mentioned above, the contract was not concluded between owners or their authorized bodies, but between the Nasimi District Executive Authority of Baku who did not have property rights of these land plots and Gloria Palas Housing Cooperative.
In Order of the Nasimi District Executive Authority of Baku from October 21, 2017  mentioned the document of Committee of Architecture and Urban Planning of the Azerbaijan Republic from October 12, 2016 which allegedly gives grounds for demolition of the hazardous houses and building new ones in its place. However, this document was not provided to the court. Instead of this document, the letter from October 12, 2016 was provided to the court. In this letter, the chairman of Committee of Architecture and Urban Planning of the Azerbaijan Republic Abbas Aleskerov reported to the chief the Nasimi District Executive Authority Asif Askerov that “the draft of project is being approved”. As we can see, the building permit was not granted.
The violation of the national legislation led to violation of the Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus, according to the article 1 of the Protocol No. 1 to the European Convention, “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”.

The seizure of property must be allowed by the law. Above we have listed the violations of national legislation which the court ignored. The owners were deprived of their property rights, which was not in their interest. Therefore, a fair balance between private and state interests was absent.

It in turn didnot correspond to decisions of the European Court of Human Rights (ECHR). In the judgement of ECHR in the case of Akhverdiyev v. Azerbaijan on January 29, 2015 is said: “Article 1 of Protocol No. 1 contains three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest. These rules are not, however, unconnected: the second and third rules are concerned with particular instances of interference with the right to the peaceful enjoyment of possessions and are therefore to be construed in the light of the principle laid down in the first rule” – https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-150772%22]}In the judgment of ECHR in the case of Khalikova v. Azerbaijan on October 22, 2015 is said: “As to the first condition, the Court reiterates that Article 1 of Protocol No. 1 requires that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph of that Article authorises the deprivation of possessions “subject to the conditions provided for by law”. The law upon which the interference is based should be in accordance with the domestic law of the Contracting State, including the relevant provisions of the Constitution. Moreover, the rule of law, one of the fundamental principles of a democratic society, is a notion inherent in all the Articles of the Convention”. – https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-157964%22]}The Illegal actions of executive authorities have caused gross violation of the property rights of the inhabitants of the demolished houses who appealed to the court for protection of their rights. But the judge Tahira Asadova issued the illegal and unreasonable ruling, thereby supporting and acquitting the illegal actions of executive authorities.
The mass demolition of houses, architectural and historical monuments which began in Baku in 2010, continues today and with it the extensive violations of fundamental human rights continue

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Binaqadi District Court Issued Guilty Verdict of Hikmat Aliyev

The Analysis of violation of law during Hikmat Aliyev’s judicial proceedings

 

The Binagadi District Court,  Baku

Criminal case № 3 (001)-832/

2018 March 08, 2018

Judge: Vugar Mammadov

The Representative of Prosecutor’s Office of Binagadi District: Mobil Shafiyev

The Representative of the 6th station of the Police Department of Binagadi District: Vusal Novruzov

The person against whom the administrative case report was drawn up: Hikmat Aliyev

Defender: Elnura Zeynalova
Oppositional National Council of Democratic Forces, Popular Front Party of Azerbaijan and Musavat Party declared the date of the protest rally in Baku at Mahsul stadium regarding the early elections of the president in Azerbaijan on April 11, 2018. The rally was set for March 10, 2018. In order to obtain the permission to hold the rally, the organizers sent a written appeal to the Baku Executive Power in accordance with the law. Having received a positive response, the activists of the National Council of Democratic Forces and the parties of the Popular Front of Azerbaijan and Musavat began to campaign in social networks.
A few days before the rally, the activists of the Popular Front Party of Azerbaijan, National Council of Democratic Forces and Musavat party were summoned to the police stations. According to these activists, the police officers demanded from them not to go to the rally, not to agitate other people and not to write statuses on social networks about the meeting. This tactic was used by the authorities in 2017 when the National Council of Democratic Forces has organized a number of rallies with slogans “No monarchy”, “No corruption”, “Freedom for political prisoners”, etc. According to the newspaper Azadliq, before the rally on 10 March 2018, 104 members of the Popular Front Party of Azerbaijan were summoned to the police stations and 7 of them were arrested: Aqil Maharramov – for 15 days, Yalchin Abdullayev – for 15 days, Faiq Nagiyev – for 20 days, Tahir Agayev – for 15 days, Bashir Tarverdiyev – for 20 days, Hikmat Aliyev – for 15 days, Shahin Aliyev was fined 200 manat (AZN).
Attention should be paid to the dates of arrests: members of the Popular Front Party of Azerbaijan were arrested from 7 to 10 March, 2018, i.e., before the rally. All of them were held administratively responsibility in accordance with the article 535.1. (insubordination to legal demands of police) of the Code of Administrative Offences of the Azerbaijan Republic and sentenced to 15-20 days of administrative arrest.
According to the police report, Hikmat Aliyev was detained on March 7, 2018 approximately at 19:30 near the administrative building of the 6th station of the police. Furthermore, according to the report, he loudly swore and violated public order near the building of the police station.  And the police officers tried to call him to order and asked to get to the office. But H. Aliyev disobeyed their legal demands, made a scandal within the station, thereby violating the working mode of the station.
Hikmat Aliyev is an activist of the Popular Front Party of Azerbaijan, one of the oppositional parties that are members of the National Council of Democratic Forces.
During the trial the police officers only testified.
On March 08, 2018 the judge of Binagadi District Court of Baku City Vugar Mammadovhad found Aqil Maharramov guilty of an offence under the article 510 (disorderly conduct) and the article 535.1. (insubordination to legal demands of the police) of the Code of Administrative Offences of the Azerbaijan Republic and sentenced him to 15 days of administrative arrest.
Commentary by an expert lawyer:
The court decision is unlawful and groundless. The judgement shows that, except the police officers who have made the report, there weren’t any witnesses. No one testified in favor of Hikmat Aliyev. The resolution is based only on the report of the police officer and H. Aliyev’s confession. There is no other evidence against the detained person.
The legislation of the Azerbaijan Republic on administrative offenses has the task to protect human rights and freedoms of a person and a citizen, health care, sanitary and epidemiologic welfare of the population, protection of public morality, personal property and personal economic interests, public order and public security, environment and to establish arrangements of management, strengthening of the law and prevention of administrative offenses (article 2 of the Code). If we read this article carefully, we will see that protection of human rights and freedoms of the person was the first and then all other goals followed. In this case, the protection of the rights and freedom of H. Aliyev did not happen. The court issued an unmotivated resolution, did not provide reasons for its rule of the most severe punishment – administrative detention.
The article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms requires that judgments are motivated. In the judgement of the European Court of Human Rights (ECHR) in the case García Ruiz v. Spain on January 21, 1999 states, “The Court reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case”. 
https://hudoc.echr.coe.int/tur#{%22itemid%22:[%22001-58907%22]}
According to the article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty except in the cases and in the manner prescribed by law In the case of H. Aliyev, the fundamental principles of administrative proceedings were also violated. Thus, administrative proceedings should be based on the principles of respect for human rights and freedoms of a person and a citizen, legality, equality and the rule of law, the presumption of innocence, justice and prevention of administrative offenses.
Given the circumstances of H. Aliyev’s arrest: his membership in the oppositional party, his activity to call citizens for participation in the rally on March 10, 2018, as well as the absence of any legal basis for his arrest. It should be noted that the arrest of the party member and his politically- motivated persecution led to discrimination, which is prohibited by national and international law.
Regarding the detained activist, the article 25 of the Constitution of Azerbaijan Republic was violated. According to this article:
        I. 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. The article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms prohibits discrimination on all grounds. It 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”.
The article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms does not have independent meaning, it only supplements other articles of the European Convention and the Protocols thereto. In the case of H. Aliyev, this article should be considered in the light of the article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It means that a violation of the right to freedom was discrimination of the detainee for political motives because of his political beliefs.
Hikmat Aliyev was condemned for political motives as well as other members of oppositional parties on the eve of the oppositional rally on March 10, 2018.

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Baku Grave Crimes Court pronounced the verdict for Ahsan Nuruzade

Analysis of violation of law during Ahsan Nuruzade’s judicial proceedings

The Baku Grave Crimes Court

Criminal case № 1(101)-339/2018

March 6, 2018

Chairman: Sabuhi Huseynov

Judges: Zeynal Agayev, Azad Madjidov

Prosecutor: Orkhan Damirli

Accused: Ahsan Nuruzade

Defender: Fariz Namazli Ahsan Nuruzade is a coordinator of the movement “Muslim Unity”. The chairman of the movement Tale Bagirov and all members of the Board were convicted for a long time of imprisonment terms on the so-called “Nardaran case”. Security personal have repeatedlyabducted Ahsan Nuruzade. After every abduction his family immediately contacted the police by calling number 102. And also contacted his lawyer. A few days after the abduction Ahsan Nuruzade released but do not always drew up a report on the reasons of detention. But from the beginning of 2017 police always watched A. Nuruzade.
On January 24, 2017 A. Nuruzade was abducted again near the house by unknown. Until January 30, 2017 police given no news of his whereabouts to his relatives and the lawyer. Finally, on January 30, 2017 the lawyer Yalchin Imanov had received a telephone call from the General Directorate for Combating Organized Crime of the Ministry of Internal Affairs of Azerbaijan and reported that A. Nuruzade is at them. When the lawyer to come to General Directorate for Combating Organized Crime he was told that A. Nuruzade were sent to the administrative detention center of the Baku Police Headquarters. Subsequently it became known that A. Nuruzade was prosecuted on a charge of insubordination to the police and sentenced by Narimanov District Court of Baku City to 10 days’ administrative detention.
On September 19, 2017 his family informed to the lawyer about yet another abduction. By day, A. Nuruzade was not far from home in sportswear and house-shoes. He was confronted by four unknown men who forced him into the car and drove to an unknown direction. Neighbors confirmed that they had watched as Nuruzade was abducted. It’s been five hours, but his whereabouts was not known to his family members and lawyer. On the same day the lawyer requested to all relevant structures but did not found any information about it. After a while A. Nuruzade was released.
As noted above, A. Nuruzade was a coordinator of the movement “Muslim Unity”, was actively involved in all trials over believers, helped families of the detainees and criticized policy of the authorities in social networks.
The National Council of the Democratic Forces of Azerbaijan appointed rally on October 7, 2017. A day before, on October 6 A. Nuruzade on social network called to citizens come to the rally. The same day he was detained by the officers of General Directorate for Combating Organized Crime of the Ministry of Internal Affairs.
On October 6, 2017 the chief Department for Combating against religious extremism of General Directorate for Combating Organized Crime of the Ministry of Internal Affairs Iftikhar Rustamov has compiled a protocol for detention of A. Nuruzade.
Concerning A. Nuruzade were initiated a criminal case under article 234.4.3 (manufacturing, purchase, storage, transfer, transportation or selling drug with a view of illegal
manufacturing and processing of narcotics or psychotropic substances in large amount) of the Criminal Code of the Azerbaijan Republic (CC AR). At the end of investigation the case was transferred to the Baku Grave Crimes Court. On March 6, 2018 the Baku Grave Crimes Court found A. Nuruzade guilty of committing accusations and sentenced to 7 years of imprisonment.
Commentary by an expert lawyer: A court verdict is illegal and unreasonable. According to article 10.1. и 349.4. of the Code of Criminal Procedure of the Azerbaijan Republic (CCP AR), a court verdict is lawful if it was pronounced in accordance with the requirements of the Constitution, CCP AR and other laws of the Azerbaijan Republic. A court verdict is lawful when it both in form and content is consistent with the Constitution and other laws of Azerbaijan.
According to article 349.5. of the CCP, 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 article 351.3 of 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
The criminal trial against Ahsan Nuruzade was conducted with total procedural violations. Let’s look at them in detail.
In the report of detention from October 6, 2017 indicated that A. Nuruzade was detained and brought to General Directorate for Combating Organized Crime of the Ministry of Internal Affairs and only after 3 hours and 5 minutes a report of detention was drawn up. In article 153.2. of CCP AR stated: “To secure the rights of the detainee, the officials of the prosecuting authority and those in charge of the temporary detention facility shall:
        153.2.1. inform the detainee immediately after detaining him of the grounds for
detention, and explain to him his right not to testify against himself and his close
relatives as well as his right to the assistance of defence counsel; 153.2.2. take the detainee without delay to the police or other preliminary investigating
authority’s temporary detention facility, register the detention, draw up a record and
show him the detention record; 153.2.3. report each instance of detention, immediately after registration in the
temporary detention facility, to the head of the appropriate preliminary investigating
authority and to the prosecutor in charge of the procedural aspects of the investigation
(this information shall be given in writing within 12 hours of detention); 153.2.4. secure the right of the person to inform others of his detention immediately
after detention (the authority in charge of the temporary detention facility, on his own
initiative, shall inform the family members of any detainees who are elderly, under age
or unable to do so themselves because of their mental state); 153.2.5. provide opportunities for the person, from the moment of detention, to meet in
private and in confidence with his lawyer and legal representative under decent
conditions and under supervision.”
As it will be seen in text of the article 153.2.2. of CCP AR, the fact of detention must be recorded immediately, not some three hours after as was done during A. Nuruzade’s detention. According to article 147.5. of CCP AR in the detention report indicate following:
147.5.1. place, date and time of report.
As mentioned above, head Department for Combating against religious extremism of General Directorate for Combating Organized Crime of the Ministry of Internal Affairs Iftikhar Rustamov has compiled a report for detention of A. Nuruzade. But according to the charge on drugs, this report must be drawn up setting out by the employee from the Department for Fighting Against Drug Trafficking.
In article 153.2.4. of CCP AR states about the right of the person to inform members of family of his detention immediately after detention. In the report indicated that the family members had been reported about A. Nuruzade’s detention, however did not stated – in what form this information was provided (by fax, phone, telegram etc.).
According to the personal search and seizure report on October 6, 2017, A. Nuruzade had three sachets with heroin. Each of sachets was packed and put in envelopes in the presence of three witnesses. In report indicated that Nuruzade did not answered the questions, where in his pocket drugs, from whom he purchased them and under what conditions.
A. Nuruzade was abducted at 13:00, according to the report inspection started at 14:10 and was completed at 14:40. This means that inspection was not carried out immediately after detention, but only 1 hour 40 minutes later.
It is unknown where he was held all this time and why inspection was not conducted during detention. A personal survey of A. Nuruzade was carried out without a court order. Inspection was carried out before attraction him as the suspect, which is illegal. In paragraph 28 of the Plenum’s Decision of the Supreme Court of Azerbaijan on May 4, 2011 “About court practice in criminal cases on illicit drug traffic in narcotic and psychotropic drugs or their precursors” stated: “… in establishment of the fact of carrying out personal inspection  before drawing up the report of detention as a suspect (without a court order on personal inspection) the court must be express his attitude and resolve an issue of the admissibility of the obtained evidence according to articles 125.1., 125.2.1. and 125.2.7. of CCP AR”.
It is evident from the protocol of survey on October 6, 2017 that personal inspection was conducted by the Head Department on fight against organized crime of the Ministry of Internal Affairs Iftikhar Rustamov. According to article 246.3. of CCP AR, a body search and seizure shall be conducted by the investigator in the presence of a specialist and at least two circumstantial witnesses who are of the same sex as the person on whom the body search is being conducted. That is, this investigative action (without a court order or with him) are only by the investigator.  Mr Rustamov is not an investigator that is why he did not have the legal authority to conduct a search. As can be seen, detention, body search and seizure were conducted with serious procedural violations.
The court didn’t investigate and have not checked question of legitimacy of prosecution evidence. Also, the court did not consider the lack of plenitude of evidence. According to article 145.1. of CCP AR, all evidence shall be assessed as to its relevance, credibility and reliability.
The defence has provided to the court all violations above-stated during the investigation. However, the court didn’t react to it, not expressed his views and not presented counterarguments to those arguments that were presented by defence. According to article 145.1. By the Code of Criminal Procedure ARE, 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.
In judgements of the European Court of Human Rights (ECHR) in case of Layijov v. Azerbaijan on April 10, 2014 the ECHR especially noted and recognized as a violation that complainant raised the issue of laws of Azerbaijan before the national courts. However, courts did not respond and have not given a legal assessment in their decisions. – HYPERLINK “https://hudoc.echr.coe.int/eng”https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-142306%22]}During sentenced Ahsan Nurizade not only national law was violated, but also the norms of the international legislation, in particular articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms: – article 3 “Prohibition of tortures”, – article 5 (1) “Right to liberty and security of person”, – article 6 (1) “Right to a fair trial”, – article 6 (3) (d) “to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on
his behalf under the same conditions as witnesses against
him”, – article 18 “Limitation on use of restrictions on rights”.
All the above shows that the court and A. Nuruzade’s sentence were politically motivated.

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