Baku Grave Crimes Court passed sentence for the 12 accused on so-called Nardaran-3

 

Elman Aghayev	Jabir Aliyev	Elkhan Hasanov
Mubariz Ibrahimov	Ruzi Ismayilov	Eldar Bunyadov
Zulfugar Mikayilov	Ramil Seyfullayev	+ 4 more man

Analysis of offenses at the trial of case “Nardaran-3”

Baku Grave Crimes Court

Case 1(101)-247/2017December 6, 2017

Presiding Judge:Zeynal Aghayev

Judges: Azad Majidov, Sabuhi Huseynov

Public Prosecutors: Ali Aliyev, Orkhan Kangarli

Accused: Zulfugar Mikayilov, Faig Allahverdiyev, Ali Huseynov, Mehman Guliyev, Mehman Mammadov, Eldar Bunyadov, Elman Aghayev, Elkhan Hasanov, Ramil Seyfullayev, Mubariz Ibrahimov, Ruzi Ismayilov, Jabir Aliyev

Defenders: Ramiz Mammadov, Zibeyda Sadighova, Rashad Jabrayilov, Elkhan Shukurov, Asli Mammadova, Khavar Ismayilova, Reyhan Amirova, Rustam Zulfugarov, Akif Aliyev, Shahla Humbatova, Bahruz Bayramov

Victim: Ogtay Orujev
The settlement of Nardaran, located 40km from Baku, has a low standard of living and an acute unemployment problem. At the same time it is in Nardaran that one of the most revered by the Shiites mosques, founded in the VIII century, is located. Nardaran differs from other Baku villages by its religiosity. In 2000, 2002 and 2006, the villagers conducted peaceful protests with socio- economic demands. In June of 2002 the police conducted a military operation in the settlement as a result of which 28 people were injured, one died. 23 people were sentenced to various terms of imprisonment on falsified charges of espionage in favour of Iran, an attempt to forcefully change the government, etc. However, as a result of the active work of human rights defenders, none of the convicts remained in custody after 2005.
On November 26, 2015 another police operation was held in Nardaran. The police armed with automatic weapons, entered the settlement 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 (MIA) and the Prosecutor General’s Office issued a joint statement explaining the use of firearms against villagers as an operation necessary to neutralize a criminal armed group that functioned under a religious cover and planned mass riots, terrorist acts and destabilization of the socio-political situation in the country.
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; the second group Nardaran 2, which included the chairman of the Board of the Muslim Unity movement Elchin Gasimov 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 Zulfugar Mikayilov and 11 people, sentence was passed on December 6, 2017. It should be noted that the trial of the fourth Nardaran 4 group is still ongoing in the Baku Grave Crimes Court (accused under the case are Elkhan Isgandarov and Abulfaz Bunyadov). The trial of the group Nardaran 3 lasted from January 17, 2017 to December 6, 2017. Among the accused are a theological scholar Zulfugar Mikayilov and 11 others. According to the indictment, since 2015 the accused, in particular Zulfugar Mikayilov, as part of the unregistered organization Muslim Unity under the leadership of Taleh Baghirov (accused in the Nardaran 1), committed acts aimed at forcible change of the state system, an attempt to create a religious state managed by Shariah, made public calls for terrorism and mass riots, as well as committed other serious crimes.
At the preparatory meeting, the lawyers appealed to the court with motions to dismiss the criminal case against their clients and change the preventive measures in the form of arrest for an alternative measure not related to the arrest. The motions were rejected. During the trial on the merits, the defendants told about the tortures in custody during the investigation, how they were forced to confess to the incriminated crimes under tortures, how the police operation in Nardaran was conducted on November 26 2015, how the policemen shot 6 people, including two police officers. In the course of the trial, the witnesses of the prosecution’s side were officers of the Main Department for Combating Organized Crime of the Azerbaijan MIA Emin Safarov, Khatam Aliyev and Elshan Jamalov. They testified on the episode of Zulfugar Mikayilov’s arrest. Emin Safarov testified that during the detention of Z.Mikayilov, weapons were found with him. He also showed that during the search in the Mikailov’s house 2 explosives, 2 explosive igniters and a book of treatment by Taleh Baghirov were discovered.
Z.Mikayilov completely refuted these testimonies and said that he had no explosives in his house. At the next court hearing, lawyer Akif Aliyev appealed to the court with a motion to call and interrogate as witnesses a chief of Lankaran Region Executive Power Taleh Garashev, former chief of Police Department of Lankaran region (PDLR) Mohabbat Huseynov, the former deputy of former chief of PDLR Elchin Safarov, an employee of the PDLR Huseyn Huseynov as well as witnesses, all those who conducted the detention and search of Z.Mikayilov’s apartment. The lawyer also asked for a handwriting examination. Also the lawyer asked to invite Taleh Baghirov, arrested in Nardaran 1, as a witness. The prosecutor considered the lawyer’s petitions unreasonable and asked the court not to satisfy them. The court decided to deny satisfaction.
The lawyer made another motion to summon as a witness Rahim Gurbanov, a lawyer appointed at the expense of the state, who signed protocols and other documents in a way that was beneficial to the investigation. The lawyer also asked to appoint a handwriting examination to verify the authenticity of his signatures, to check whether Rahim Gurbanov was in Lankaran on November 29, 2015, to request the mobile operator to check the antenna data of the number in his use, as well as other motions. These motions were also rejected by the court.
On March 12, 2017 Mubariz Ibrahimov, Jabir Aliyev and Ruzi Ismayilov, arrested in Ganja, made speeches during the trial. They gave evidence that although they were presented in the case files as members of the Muslim Unity movement, in fact they were never members of this movement and did not have any connections with Taleh Baghirov. M.Ibrahimov testified that he has performed a prayer since 17 years, and on November 30, 2015 he was detained at an automobile filling station. From the testimony by M.Ibrahimov: ‘They suddenly attacked me, opened the car door from the driver’s side, and dragged me from another door and took me away. They did it as if they were taking Bin Laden away, beating and insulting me, handcuffed. M.Ibrahimov also testified that he was brought to the Ganja Main Police Department, where he was tortured: ‘One of them beat me and demanded confession. I did not even know what I should confess. Then they took me to the office of the police chief Rasim Gurbanov. He told me that I should choose between drugs and explosives. As if I was buying potatoes at the market. I saw both drugs and explosives there for the first time. I did not agree. The chief began to beat me and insult me, spat the water out of his mouth directly into my face. They told me that they would make me feel ashamed.’ From the testimony of the accused Jabir Aliyev: ‘I together with my father was detained in the workplace and brought to the Ganja Main Police Department. There, 8-9 people attacked us and beat up to 4 o’clock in the morning. I do not want to talk in detail what tortures consisted of. They pulled out one hair after another from my face, then stacked them in one heap, brought and put in front of me. I was handcuffed and put on my knees. I had broken teeth, blood poured into my face. Bu tortures, accordingly, they made me give false testimonies. I never saw Taleh Baghirov in person, and I heard the name of the organization Muslim Unity only at the time of arrest.
From the testimony of the accused Ruzi Ismayilov: ‘The charges against me are falsified. We were not only beaten, they also called us terrorists. When I was taken to the Ganja Main Police Department, they pulled off of my pants and threatened that they would commit unworthy actions against me and spread it. An attack was committed against our honour and dignity. It’s good that the people know that we are not terrorists. My father passed away, my mother was threatened in the police. I want to know why were we arrested and brought here? I am sure that Allah will punish those who did it.’ R.Ismaylov testified that drugs and explosives were planted on him by the police chief. ‘The official version says that I found an explosive in a public toilet when I went to the store to buy an iron. Do you mean that I have not an iron at my house? I was beaten so much that my legs were blue. For four months I was kept in Ganja Isolation Ward. During this time, I was not allowed to see my family and keep contact with my family by phone. On September 18, 2017, the prosecutor, having issued an accusatory speech, asked the court to convict all the accused of guilty of the brought charges and sentence: Zulfugar Mikayilov to 18 years, Faig Allahverdiyev to 15 years, Ali Huseynov to 14 years, Mehman Guliyev to 15 years, Mehman Mammadov to 14 years, Eldar Bunyatov to 14 years, Elman Aghayev to 15 years, Elkhan Hasanov to 14 years, Ramil Seyfullayev to 15 years, Mubariz Ibrahimov to 15 years, Ruzi Ismayilov and Jabir Aliyev to 16 years of imprisonment.
On October 2, 2017, the judge announced the appearance of lawyers. The lawyers of Faig Allahverdiyev, Ruzi Ismayilov and Ramil Seyfullayev were heard. The defenders stated about the falsification of the charges, and that the public prosecutor, not having irrefutable evidence, asked to condemn their clients for a long time. Lawyer of Faig Allahverdiyev said that only the police were interrogated in court, the defence did not have the opportunity to interrogate the witnesses who testified against the accused. The lawyer asked the court to pass an acquittal on his client.
Lawyer of Zulfugar Mikayilov, Ruzi Ismayilov, Mehman Mammadov and Ramil Seyfullayev Shahla Humbatova stressed in her speech that all the accused were represented by the prosecution as a criminal grouping called Muslim Unity. She said that this organization was established in 2015 in accordance with the law, as a non-governmental organization, its activity was carried out within the framework of the law. On January 11, 2015, the organization was established, and on January 13 a constituent conference was held, at which the charter was adopted and the members of the Management Board were elected. The lawyer stated that in order to understand that the organization Muslim Unity was not a criminal group, it is enough to look at its charter. The first paragraph of the statute states that ‘this organization is independent and is an organization that unites free-thinking people who want the development of Azerbaijan.’ S.Gumbatova stated that the fault of her clients was not proved in court, and she asked the court to pass an acquittal. The speech of the remaining lawyers continued on October 4, 2017, lawyers asked the court to acquit their clients. At the court session on October 30, 2017, the accused Zulfugar Mikayilov made his last statement. He said: ‘We are not supporters of feuds, we are supporters of justice (in the Azerbaijani language ‘adavat’ means feud, ‘adalat’ is justice). We are charged with an article for storing weapons, but they do not provide any evidence. In the case there are multi-storey falsifications. We were able to prove that the weapon was planted on us. The second lie was that we were members of a criminal group. In order to prove this, you can listen to our telephone conversations. For 10 months we asked the court to provide telephone prints, but this was not done. The third lie was the accusation of terrorism. In order to prove this, additional proofs are needed. Why are these accusations made just against believers? In Las Vegas, one person killed 58 people, but no one called him a terrorist. The fourth lie is a revolution. In order for this accusation to become a reality, we need 3 features: a source of financing, weapons and equipment. For a coup, political ambitions and goals are needed. In our case, nothing of this happened. Most of the accused do not even know the word ‘ambition’, they are not represented in any party. I’m not Mikhaylo from the work On the Far Shores, I’m Mikayilov. This case will go to the European Court, how will they answer then? You arrest believers, people lose faith in the court, the police, the Prosecutor’s Office. Then the judge interrupted Mikayilov’s speech and demanded to speak on the merits. Mikayilov continued his speech: ‘The spoiled relations between the state and religion are treason to the state. The judge’s weapon is justice. In Azerbaijan, an acquittal is equivalent to obtaining a Nobel Prize.’ From the testimony of the accused Mubariz Ibrahimov: ‘We did not commit any crimes, did not change the state. Since the day of my arrest, I have not seen my relatives. We have been detained for 2 years, is this not enough? We will not change our convictions, even if we are sentenced to life imprisonment. Lapshin was released, but we are still being held. Accused Jabir Aliyev: ‘We have been imprisoned for nothing for 2 years already. The most terrible tortures were applied to us. However, we could not prove our guilt. There is no terror in our beliefs. All that is written in the indictment, all is lie. I was kidnapped straight from the workplace. I was tortured. But I hope for justice.’ The remaining defendants also claimed that they had no involvement in the charges and asked the court to pass an acquittal.
On December 6, 2017, the Baku Grave Crimes Court sentenced 12 defendants under so called case “ Nardaran 3.”
Accused Zulfugar Mikayilov was found guilty of the commission of the crimes provided for in the following articles of the Criminal Code of the Republic of Azerbaijan: · 28,214.2.1 (Preparation for terrorism committed by an organized criminal group), · 28,214.2.3 (Preparation for the commission of terrorism with the use of firearms) · 214-2 (Public calls for terrorism) · 220.2 (Calls for active disobedience to legitimate demands of government officials and to riots, as well as calls for violence against citizens) · 228.3 (Illegal acquisition, transfer, sale, storage, transportation or carrying of weapons, component parts, ammunition, explosives and explosive devices committed by an organized criminal group) · 228.4 (Illegal acquisition, sale or carrying of gas weapons, cold steel, including cold throwing weapons) · 278 (Forcible seizure of power or forcible retention of power) · 279.1 (Creation of armed units or groups not provided for by law) · 281.2 (Public appeals directed against the state committed repeatedly or by a group of persons) · 283.2.3 (Incitement of national, racial, social or religious hatred and enmity committed by an organized group). Zulfugar Mikayilov was sentenced to 17 years of imprisonment with serving his sentence in a tight institution.
Accused FaigAllahverdiyev was found guilty of committing crimes under Articles 28,214.2.1, 28,214.2.3, 214-2, 220.2, 228.3, 228.4, 278, 279.1, 281.2, 283.2.3 of the Criminal Code of the Republic of Azerbaijan and sentenced to 13 years of imprisonment with serving his sentence in a tight institution.
Accused Ali Huseynov was found guilty of committing crimes under Articles 28,214.2.1, 28,214.2.3, 214-2, 220.2, 228.3, 228.4, 278, 279.1, 281.2, 283.2.3 of the Criminal Code of the Republic of Azerbaijan and sentenced to 12 years of imprisonment with serving his sentence in a tight institution.
Accused Mehman Guliyev was found guilty of committing crimes under Articles 28,214.2.1, 28,214.2.3, 214-2, 220.2, 228.3, 228.4, 278, 279.1, 281.2, 283.2.3 of the Criminal Code of the Republic of Azerbaijan and sentenced to 13 years in prison with the serving of punishment in a tight institution.
Accused Mehman Mammadov was found guilty of committing crimes under Articles 28,214.2.1, 28,214.2.3, 214-2, 220.2, 228.3, 228.4, 278, 279.1, 281.2, 283.2.3 of the Criminal Code of the Republic of Azerbaijan and sentenced to 12 years and 3 months of imprisonment with serving a sentence in a tight institution.
Accused Eldar Bunyatov was found guilty of committing crimes under Articles 28,214.2.1, 28,214.2.3, 214-2, 220.2, 228.3, 228.4, 278, 279.1, 281.2, 283.2.3 of the Criminal Code of the Republic of Azerbaijan and sentenced to 12 years and 3 months of imprisonment with serving a sentence in a tight institution.
Accused Elman Aghayev was found guilty of committing crimes under Articles 28,214.2.1, 28,214.2.3, 214-2, 220.2, 228.3, 228.4, 278, 279.1, 281.2, 283.2.3 of the Criminal Code of the Republic of Azerbaijan and sentenced to 13 years of imprisonment with serving a sentence in a tight institution.
Accused Elkhan Hasanov was found guilty of committing crimes under Articles 28,214.2.1, 28,214.2.3, 214-2, 220.2, 228.3, 228.4, 278, 279.1, 281.2, 283.2.3 of the Criminal Code of the Republic of Azerbaijan and sentenced to 12 years and 3 months of imprisonment with serving a sentence in a tight institution.
Accused Ramil Seyfullayev was found guilty of committing crimes under Articles 28,214.2.1, 28,214.2.3, 214-2, 220.2, 228.3, 228.4, 278, 279.1, 281.2, 283.2.3 of the Criminal Code of the Republic of Azerbaijan and sentenced to 13 years of imprisonment with serving a sentence in a tight institution.
Accused Mubariz Ibrahimov was found guilty of committing crimes under Articles 28,214.2.1, 28,214.2.3, 214-2, 220.2, 228.3, 228.4, 278, 279.1, 281.2, 283.2.3 of the Criminal Code of the Republic of Azerbaijan and sentenced to 13 years of imprisonment with serving a sentence in a tight institution.
Accused Ruzi Ismayilov was found guilty of committing crimes under Articles 28,214.2.1, 28,214.2.3, 214-2, 220.2, 228.3, 228.4, 234.4.3 (Illegal acquisition or storage for sale, manufacture, production, processing, transportation, forwarding or sale of grand drugs or psychotropic matters), 278, 279.1, 281.2, 283.2.3, 315.2 (Resistance or use of violence against a representative of the government with the use of violence dangerous to life or health) of the Criminal Code of the Azerbaijan Republic and sentenced to 15 years of imprisonment with serving a sentence in a tight institution.
Accused Jabir Aliyev was found guilty of committing crimes under Articles 28,214.2.1, 28,214.2.3, 214-2, 220.2, 228.3, 228.4, 234.4.3, 278, 279.1, 281.2, 283.2.3 of the Criminal Code of the Republic of Azerbaijan and sentenced to 14 years of imprisonment with serving a sentence in a tight institution.
Commentary by an expert lawyer:
The judicial sentence is illegal, unreasonable and inhumane. It is not clear from the sentence what evidence the court referred to, passing a conviction. Instead of justifying the sentence, the court completely rewrote the text of the indictment. The court actually substantiated the verdict with one sentence: ‘The guilt of the accused Mikayilov Zulfugar Sadraddin, Guliyev Mehman Abulfaz, Mammadov Mehman Sudef, Bunyatov Eldar Ali Aga, Aghayev Elman Seydamir, Hasanov Elkhan Heydar, Seyfullayev Ramil Suliddin, Ibrahimov Mubariz Eyyub, Ismayilov Ruzi Khalig, Aliyev Jabir Sabir was fully proved by the testimony of injured persons and witnesses, as well as other evidences confirmed in court.
The defendants were represented by the investigation as an organized criminal group. However, none of the accused was a member of the movement Muslim Unity, some of them heard the name of Taleh Baghirov first after imprisonment. Membership in the organization was possible only after a corresponding decision of the members of the Board. During the search of the office, all documents relating to the organization were confiscated, but none of them related to the accused was found. During the search of houses in which the accused lived, no membership cards were found. Witnesses who testified at the trial confirmed the fact that the accused were not members of the organization. The investigation did not provide any evidence proving their membership in the Muslim Unity.
According to Article 34.2 of Criminal Code of the Republic of Azerbaijan (RA CC), a crime is recognized as committed by a group of persons by a previous concert, if two or more persons who previously agreed on a joint commission of a crime participated in its commission jointly. Article 34.3 of RA CC states: “A crime is recognized as a committed by an organized group if it is committed by a stable group consisting of two or more persons who have previously united to commit one or more crimes.” The charge refers to “a group of persons on a previous concert” and an “organized group.” The resolution of the Plenum of the Constitutional Court of the Republic of Azerbaijan dated April 20, 1999 gives an interpretation of the concept of “organized group.” The Criminal Code of the Republic of Azerbaijan provides for several types of criminal group: “group of persons”, “group of persons by previous concert” and “organized group”.
In the decision of the Plenum of the Constitutional Court of the Republic of Azerbaijan it is said that the ‘group of persons by previous concert’ and the ‘organized group’ is distinguished from a simple group of persons by the presence of a sign of previous concert with the aim of committing a crime. Muslim Unity does not fit to those signs, specified in the norms of the RA CC and in the decision of the Plenum of the Constitutional Court. The movement Muslim Unity officially applied to the Ministry of Justice for registration, but they were repeatedly denied, without giving any reasons. Naturally, no criminal group will apply to the Ministry for registration. The materials of the case contain a letter from the head of the State Security Service of the RA Madat Guliyev that citizens had to fill out forms in order to become a member of the organization. The question arises: why you need to fill in the printed forms in order to become a member of a criminal group?
This weak argument of the prosecution, not proved by the materials of the case was adopted by the court. On the other hand, if the investigative body and the court agree that the Muslim Unity movement is a terrorist organization, then why only some members of the movement, and not all 600-700 people were arrested.
From the materials of the case and the testimony of the accused, it can be seen that the investigation was conducted with total, gross violations of the law. The detailed description of torture and inhuman treatment by the accused indicates that Article 9.2 of RA CC was violated according to which ‘punishments and other criminal-law measures applied to the perpetrator of the crime cannot have the nature or purpose of torture or other cruel, inhuman or degrading treatment.’ Article 3 of the European Convention on Protection of Human Rights and Fundamental Freedoms also prohibits tortures and inhuman treatment. All articles of the European Convention have exceptions and limitations, except for Article 3. The use of torture can be justified under no circumstances.
For bad treatment to constitute a violation of Article 3, it must reach a minimum level of severity. Article 3 of the European Convention contains various concepts: inhuman, degrading treatment; inhuman, degrading punishment. With regard to tortures, they constitute an aggravated form of inhuman treatment. ‘The Court recalls that the obligation imposed on domestic authorities by virtue of the Convention to provide an effective remedy to a person who claims a violation of Article 3 does not mean that sanctions should be imposed at all costs on officials involved in the ill-treatment alleged by the person. The Convention requires only ‘an investigation capable of leading to the identification and punishment of responsible persons”. In this sense, the Court considers that the competent authorities (…) would fulfil their obligations under the Convention by commencing criminal proceedings against the police officers whom the mediator described in his/her report, whatever the outcome of this process will be’ (from the ECHR Judgment in the case Egmes v. Cyprus, para. 70). https://www.legal-tools.org/en/browse/record/d3a3c5/
During the trial, the defendants repeatedly told about the terrible tortures that were applied to them by the investigators. However, the judges did not take the initiative to investigate the tortures. The accused were tortured in the Sabunchu Police Department, Baku, in the Main Department for Combating Organized Crime of the Ministry of Internal Affairs of Azerbaijan and the Ganja Main Police Department.
Confessions were obtained through tortures and inhuman treatment. All the evidence gathered and presented by the prosecution raised deep doubts about their authenticity. Article 124 of the Code of Criminal Procedure of the Republic of Azerbaijan (RA CCP) provides for the requirements for evidence. Thus, credible evidence (information, documents, things) received by the court or parties to criminal proceedings are recognized as evidence of criminal prosecution. These proofs: 124.1.1. Must be obtained in compliance with the requirements of the criminal procedure legislation without restriction of constitutional rights and freedoms of a person and citizen or with restriction on the order of the court (and in cases that cannot be delayed, provided by this Code – by the investigator’s decision); 124.1.2. Must show whether the crime event took place, whether there were signs of a crime in the committed act, whether the act was committed by the accused, his/her guilt or innocence, as well as other circumstances important for the correct resolution of the charge. In addition, the criminal procedure law regulates the admissibility of evidence. According to Article 125.1 of RA CCP, information, documents and other things can be accepted as evidence in the absence of doubt about their validity, source of occurrence and circumstances of receipt. Article 125.2 of RA CCP specifies in which cases the evidences are inadmissible: · Received with the deprivation or restriction of participants in the criminal process of their rights guaranteed by law, in violation of the constitutional rights and freedoms of a person and citizen or other requirements of this Code, which should or may affect the validity of these evidences; (Article 125.2.1 of RA CCP) · With the use of violence, threat, deception, tortures and other cruel, inhuman or degrading acts; (Article 125.2.2 of RA CCP).
All the accused confessed that during the investigation they gave confessions under tortures. On this issue, there is a decision of the European Court of Human Rights (ECHR) against Azerbaijan. Thus, the ECHR decision in the case of Panah Huseyn and Others v. Azerbaijan dated July 26, 2011 states: ‘The principle of fairness and competitiveness requires that the national courts pay more attention to the testimony given by witnesses in court than to the testimony given during the investigation, because their testimony given during the investigation cannot be recognized as reliable. http://echr.ketse.com/doc/35485.05-35680.05-36085.05-45553.05-en-20110726/view/
The course of the trial showed that, in addition to the above international norms, the following articles of the European Convention were also violated: Article 5(1) (Right to liberty and security of the person), Article 6(1) (Right to a fair trial), Article 6(2) (Presumption of innocence), Article 6(3) (b) (To have sufficient time to prepare his/her defence), (c) (To defend himself/herself in person or through counsel chosen by him/her), (d) (To interrogate witnesses against him/her or have the right to make these witnesses been questioned and have the right to call and examine witnesses in his/her favour under the same conditions as witnesses against him/her).
According to Article 21.2. RA CCP, the conviction of a person is inadmissible even if there are substantial suspicions of his/her guilt. In accordance with the provisions of this RA CCP, doubts that cannot be eliminated in the course of proving a charge within the framework of the relevant legal procedure are resolved in favour of the accused (suspect). Similarly, doubts that are not eliminated in the application of criminal and criminal procedural laws should be resolved in his/her favour.
Obvious doubts that arose during the trial were not resolved in favour of the accused. In addition, numerous, directly relevant motions of the defence were not satisfied by the court. Although in accordance with Article 121.2 RA CCP, the decision taken on the motion or request should be motivated and contain an assessment of the applicant’s arguments. Applications and requests aimed at comprehensive, full and objective clarification of all circumstances connected with criminal prosecution within the framework of due process of law, restoration of violated rights and legitimate interests of participants in criminal proceedings and other persons participating in criminal proceedings cannot be rejected.
Taking into account the abovementioned, it is clear that when considering this criminal case, the court violated a number of very important material and procedural norms provided for by national legislation, the fundamental norms of the European Convention and did not take into account the precedents of European Court that are binding for the member-countries of the Council of Europe

 

 

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Appeals Court kept Fikret Faramazoglu’s verdict unchanged

Analysis of the law violations at the Appeal trial of Fikret Faramazoglu

The Baku Court of Appeal, the Criminal Collegiums
Case no. 1(103)-1414/ 2017
September 18, 2017
Presiding Judge: Namiq Mammadov
Judges: Gadim Babayev, Mirzali Abbasov

Prosecutor : Rasul Abbasli
Accused: Fikret Ibishbeyli ( Faramazoglu)
Defenders: Elchin Sadiqov, Javad Javadov, Nemet Keremli

On June 30, 2016 the journalist, the editor-in-chief of the website jam.az, Fikret Faramazoglu was abducted by unknown persons in civilian clothes. Within 5 days no any information of him. Neither his family nor his lawyers don’t knows about  his whereabouts. Later journalist told how after the abduction he was taken to the Department for Combating Organized Crime (DCOC) of Ministry of Internal Affairs (MIA), how tortured him out there and as a result of tortures he lost front teeth. He was beaten over the head and a jaw, never took handcuffs neither in the afternoon, nor at night within 12 days.

Within five days in the absence of all of the information on the whereabouts of F.Faramazoglu, his family and friends have repeatedly requested to the Ministry of Internal Affairs and Prosecutor General’s Office, but didn’t get any information about him. Five days after adduction unknown persons visited to home where the journalist were staying with the family, and without requiring documents and search warrant, took his computer. His wife asked them that what’s happens. And informed the arrest F.Faramazoglu. However she was not informed of the reasons for his arrest.

Subsequently, it came to notice that the journalist was kept in the DCOC of MIA. Articles 182.1 (Extortion) of the Criminal Code of the Azerbaijan Republic (CC AR) were brought against him. Later, in 19 October 2016 new more serious charges were brought against him: article 182.2.1
(Extortion on preliminary arrangement by group of persons; 182.2.2 (Extortion, committed repeatedly) and 182.2.4 (Extortion with causing damage to a victim in significant size) of the CC AR.

On July 4, 2016 Baku City Nasimi District Court chose for F.Faramazoglu preventive measure in form of arrest for the period of 3 months. In the future, duration of preventive measures was repeatedly extended. It should be noted that in 2006 Fikret Faramazoglu has already once been in contact with the criminal law. He worked as the editor-in-chief of the 24 saat newspaper (“24 hours”) at the time. Minister of Interior of Azerbaijan Ramil Usubov had appealed to the court in defamation case, allegedly touched in the publication of the newspaper. The court sentenced of journalist to 1 year of conditional imprisonment.

In 2016 during the period of investigation F. Faramazoglu’s lawyer said that the prosecution’s case was based on the critical publications of the journalist: “The commercial property owners applied to the law enforcement agencies brought a complaint and indicated that the publications of Fikret Faramazoglu is biased, false and affect their honor and dignity. And that the alleged journalist had written those articles to extort money from them. However, no any evidence of extort money”. Under the version of investigators, in April, 2016 F.Faramazoglu demanded 1.000 manat from businessmen that the critiques about their dubious business (maintaining premises under the guise of massage parlor) will not be published on the website. In the indictment also mentions that in order to achieve those materials were not published in the further, businessmen have been required to pay F. Faramazoglu on 5.000 manat monthly. In its statement of July 4, 2016, the Ministry of Interior it was stated that journalist was detained at the 3.000 manat drop to him.

At the end of preliminary investigation a criminal case against journalist was referred to the Baku City Court on Grave Crimes. On November 22, 2016 was held a preparatory trial meeting, during which the defence filed two applications: to change the preventive measure – replacing

An examination of the case on the merits was scheduled for December 6, 2016. The defence had requested motion for the graphological test of F. Faramazoglu’s signature on the arrest protocol and confiscation of objects. We shall note, that journalist refutes the validity of the signature. In those protocol recorded seizure of money from F.Faramazoglu during detention. The time of his arrest was captured on video, but was not recorded the fact of receiving money on it video. Also no evidence of fingerprints of journalist on banknotes, have no other evidence against him. The defence motion on designate an expert were rejected by court.

On the final statement to the court F. Faramazoglu told pleaded quilty once again and political motive behind his arrest.

On June 14, 2017 Baku City Court on Grave Crimes found journalist guilty on all accusations that were brought against him, and sentenced him to 7 years imprisonment and a 2 year ban on working as a journalist. The defence has found this verdict illegal and unjustified and appealed against the decision to the higher authority. The defence also claimed in the appeal acquittals of of F. Faramazoglu.

During trial at the Baku Appeal Court F. Faramazoglu once again said that charges against him are fabricated and he did not know the victims. He knows only victim Mekhman Gasanov. He met with him once, and between them never had any talk of money. Journalist declared that the money were placed from police. Otherwise, it would be video shooting about transfer of money or audio recording on extortion. But none of this happened.

On September 18, 2017 the Criminal Collegium of the Baku Appeal Court decided to refuse the appeal and confirmed the verdict of the first instance court from July 14, 2017 without amendments.

Commentary of an expert lawyer:

The court decision is unlawful and groundless. As mention above, a journalist was kidnapped and did not know anything about him in the next few days. As the seller he informed to the wife and lawyer, he was beaten on his head and jaw within 4 days, stomped 2 teeth and handcuffed for all 24 hours a day. After being transferred to the detention facility, F.Faramazoglu’s torment had continued. In the court journalist told that grinded his teeth in the night from the pain and  the other prisoners complained about grinds their teeth at night. He was not allowed to shower, which left red spots and the rash on his body.

Article 26 (II) of the Constitution of the Azerbaijan Republic states: “The state guarantees protection of rights and liberties of all people”. Article 68 of the Constitution of the Azerbaijan Republic guaranteed the right of protection against the arbitrariness and decent treatment: “I. Rights of the person suffered from crime and also from usurpation of power are protected by law. Suffered person has the right to take part in administration of justice and demand for compensation of losses. II. Everyone has the right for compensation by the state of losses borne as a result of illegal actions or non-action of state bodies or their officials”.

The ill-treatment of accused person to violate principles of humanity guaranteed by Article 9 of the Code of Criminal Procedure of the Azerbaijan Republic (CCP AR). According to this article:
9.1. The Criminal Code guarantees security of person.
9.2. The penalties and other measures of criminal law provided for the Criminal Code, applicable to person, who has committed a crime are not to be a purpose of torture or other cruel, inhuman and degrading treatment.

In article 12.5. CCP AR states: “It shall be prohibited to use methods and means that may threaten life and health or the environment during criminal prosecution”. Under article 13.1 of the CCP AR it shall be prohibited to take decisions or allow acts during the criminal prosecution which debase the honour and dignity of the person or may threaten the life and health of the participants in the proceedings. According to article 13.2.1. “During a criminal prosecution nobody shall be subjected to treatment or punishment that debases human dignity”.

All this articles of the CCP AR have been severely violated during detainees’, investigation and the trial.

During detainees’ and the preliminary investigation was violated the principle of security of the person. Thus article 15.2 of the CCP AR during the criminal prosecution the following shall be prohibited:
15.2.1. the use of torture and physical and psychological force, including the use of medication, withdrawal of food, hypnosis, deprivation of medical aid and the use of other cruel, inhuman or degrading treatment and punishment.

Inhuman treatment and tortures are prohibited under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This article was not limitations and exceptions. This means that under no circumstances and in no case (war, fight against terrorism, etc.) cannot be justified the practice of torture. Numerous judicial precedents of the European Court of Human Rights (ECHR) show that to reach a minimum level of severity to recognize of violation Article 3 of the European Convention. The ECHR considered that State was responsible for each person in custody, as the latter, was vulnerable because at the mercy of public officials. Therefore, the authorities must protect him
as the last, being in power of public servants, is vulnerable and the authorities have to protect him (Judgments of the ECHR on the case “Gorodnichev v. Russia” from May 24, 2007):
http://echr.ru/documents/doc/2465023/2465023-001.htm
http://www.bailii.org/eu/cases/ECHR/2007/1210.html

The reason for the arrest of Fikret Faramazoglu was his journalistic activities. And for that, he has already once been in contact with the law in 2006. Article 47 of the Constitution of the Azerbaijan Republic guarantees freedom of thought and expression:
“I. Everyone may enjoy freedom of thought and speech.
II. Nobody should be forced to promulgate his/her thoughts and convictions or to renounce his/her thoughts and convictions”.

Under article 10 of the European Convention:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”.

As seen from the above, during arrest, investigate and trial of Fikrtet Faramazoglu have been violated the most basic fundamental principles and rule of law, both republican, and international.

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Sheki Grave Crimes Court pronounced the verdict for Elchin Ismayilli

Analysis of violation of law during Elchin Ismayilli’s judicial proceedings

Sheki City Grave Crimes Court
Criminal case no.1(091)-154/2017
September 18, 2017
Chairman: Rashid Huseynov
Judges: Elmin Rustamov, Khagani Samedov
Prosecutor: Anar MirkishiyevAccused: Elchin Ismayilli
Defenders: Elchin Sadyqov, Islam Ismaylov
Complainants: Azer Abbasov, Barat Shahaliyev, Ilqar Garibov
Elchin Ismayilli – journalist, the editor- in – chief of the “kend.info” website, the regional reporter of Azadlig newspaper, member of the Popular’s Front Party of Azerbaijan – was detained on February 17, 2017. Articles 182.2.2 (Extortion, committed repeatedly), 308.2 (Abusing official powers, entailed heavy consequences), 311.3.2 (Reception of a bribe, committed repeatedly) and 311.3.4 (Reception with application of threats) of the Criminal Code of the Azerbaijan Republic (CC AR) were brought against him. The case was led by the Department for Investigation of Grave Crimes of the Prosecutor General’s Office of the Republic of Azerbaijan.

 

On February 18, 2017 Baku City Nasimi District Court chose for E. Ismayilli preventive measure in form of arrest for the period of 24 days. He was brought to Baku Pretrial Detention Facility #1. On March 3, 2017 the period of his preventive measure was extended up to 3 months. On May 26, 2017 this term was prolonged once more up to September 12, 2017.

 

According to indictment, E. Ismayilli extorted money from Azer Abbasov –  the worker of the Culture and Tourism Department by the Executive power of Ismayilli region. The case was initiated on the grounds of the official appeal by A. Abbasov to the State Security Service. The defence and journalist himself consider accusation to be falsified and politically motivated.

 

E. Ismayilli stated that he has known this worker since 2003, and they were in good relations. A. Abbasov borrowed 1000 manat from the journalist. Two days prior to the arrest of journalist, he called to E. Ismayilli and said that money were ready. They met, and during money receipt, journalist was detained.
Two days prior to his arrest, E. Ismayilli published investigation on his website kend.info  about illegal lease order of the Head of the Executive authority of the region of 199 hectares of land. (http://kend.info/mirdam%c9%99d-sadiqovun-kadri-sozun%c9%99-%c9%99m%c9%99l-etdi-daha-bir-s%c9%99r%c9%99ncami-kiv-%c9%99-t%c9%99qdim-etdi-foto-video/).

 

E. Ismayilli regularly wrote about the problems of the residents of Ismayilli region, and due to this, he was repeatedly subjected to attacks; bringing to police. A few months prior to his arrest, the representatives of the Executive authority of the region have appealed to the court with the request to punish journalist administratively.  E. Ismayilli covered widely the meetings of the protest at Ismayilli region of January 2013, which were followed by the arrest of the activists of opposition parties and local residents. E. Ismayilli brother, who was absent during that period, was arrested for allegedly participation in the actions of the protest and sentenced to two years of imprisonment.

 

On September 18, 2017 Shaki City Court on Grave Crimes found journalist guilty on all accusations that were brought against him, and sentenced him to 9 years imprisonment with the further ban to hold any responsible positions in local governmental bodies and administration.

 

Commentary by an expert lawyer:

The court decision is unlawful and groundless. Violations during the court proceedings already began in the period of the preparatory meeting, in which the right to defend was violated. Journalist and his defence was not informed promptly about the time and the location of the preparatory meeting. They learned about the meeting few hours before it started. Defence filed motion  requesting  additional time for preparation of defence. The court declined the motion and held the meeting. Defence was deprived from the possibility to file the motion during preparatory meeting.

 

According to defence, the arrest of journalist was planned in advance. A few months prior to  his arrest, on November 8, 2016, Sabayil District Court decided on carrying out the operational activities (wiretapping surveillance and etc.) against E. Ismayilli.

 

According to defence, A. Abbasov – the worker of the Culture and Tourism department of the Executive power of Ismayilli region- by the direction of the workers of the special services, provoked journalist and gave false testimonies against him. According to the testimonies of A. Abbasov, Elchin Ismayilli did not lend him any money, but instead he demanded money from him, by blackmailing and threatening him, placed slanderous material about A. Abbasov on his website. A. Abbasov had to refer to the security services and at the moment of passing so called |bribe to E. Ismayilli, the  later was arrested by police. This was recorded by the special service. At the trial, E. Ismayilli insisted that he lent money to A. Abbasov, and he did not request on February 2017, to return them to him, but instead Abbasov insisted on the soonest return of the money. And during money receiving, E. Ismayilli was arrested.

 

The operational activities, and detention of E. Ismayilli was video recorded. From video recording, it is apparent that Elchin Ismayilli was not informed about his rights not to testify. It is also clearly shown that the representatives of state service demanded  insistently from him to acknowledge the receipt of bribe.
The European Court of Human Rights (ECHR) specifies how it is necessary to use special investigative methods: “The Court shall have to the need of authorities to use of special investigative methods, particularly in tackling organised crime and corruption. That being so, the use of special investigative methods – inter alia, the hidden methods – cannot in itself infringe the right to a fair trial. However, when using by such methods, their use must be kept within clear limits (decision of the ECHR on the case of Ramanauskas v. Lithuania) (http://en.tm.lt/dok/Ramanauskas_v__Lithuania_JUDG.pdf; https://roseurosud.org/r/st-6/st-6a-2/postanovlenie-espch-ramanauskas-protiv-litvy)

 

The caution in the use of special methods by law enforcement also involves in other decision of ECHR. Thus, in the decision of Khudobin v. Russia (paragraph 128) states: “At the outset, the Court would like to stress that it is not blind to the difficulties encountered by the authorities in combating serious crimes and the need for more sophisticated methods of investigation sometimes required in this context. In principle, the Court’s case-law does not preclude reliance, at the investigation stage of criminal proceedings and where the nature of the offence so warrants, on evidence obtained as a result of an undercover police operation. However, the use of undercover agents must be restricted; the police may act undercover but not incite” (https://ru.scribd.com/document/144144390/Case-of-Khudobin-v-Russia;
http://docs.cntd.ru/document/902115046;
http://www.globalhealthrights.org/wp-content/uploads/2013/02/ECtHR-2007-Khudobin-v-Russia.pdf)

 

Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms states:  “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

 

In cases, where incitement takes place, Article 6 of the European Convention is not violated only if the applicant has the possibility in the period of trial proceedings to raise the issue of incitement through the motion.

 

Adherence of such general guarantees, as the equality of the both parties or right for protection, is not in itself sufficient. The court states that responsibility to prove the fact that incitements wasn’t rest with the prosecution on condition that the defendant’s statements are not unreasonable.

 

Unfortunately, the court of first instance failed to draw any attention and to provide legal assessment to the statements of defence and accused regarding the fact of incitement and has passed severe sentence.
Article 18 of European Convention was violated towards the journalist. According to the Article 18 of European Convention, the restrictions permitted under current Convention to the said rights and freedoms shall not be applied for any purpose other than those which they have been prescribed. Considering the fact that the prosecution was not able to prove the guilt of the defendant, and concluding from it, it is more likely that the goal of the limitation of his rights, was in fact the termination of his activities

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The court issued the order on the application of a measure of restriction in respect of Mehman Aliyev

Baku City YasamalDistrict Court
Caseno.4(004)-656/2017
August 26, 2017
Presiding Judge: Azer Tagiyev
Public Prosecutor: Gadir Mammadov
Investigator of the Ministry of Taxes of the Azerbaijan Republic: Vusal Ibadov
Accused: Mehman Aliyev
Defender: Fuad Agaev

The Department of Preliminary Investigation of Tax Crimes under the Ministry of Taxes of the   Azerbaijan Republic had initiated a criminal case under Article 213.1 (evasion from payment of taxes) of the Criminal Code of the Azerbaijan Republic  (CC of AR) against the Turan Information Agency. On August 7, 2017 a tax audit  of Agency’s activities was started. The decision on the tax audit was based on the decision of the Local Income Department of Baku, in which the agency’s indebtedness was indicated – more than 37,000 manats. The department considered that the agency hides its real incomes. Both departments demanded all tax documents of the Agency. The managers of the Agency filed a complaint against the audit decision to the Baku Administrative Economic Court no. 1. The complaint referred to the illegality of the tax audit, and there was a request to annul this decision.

 

On August 16, 2017 on the basis of the decision of the Baku city Nasimi District Court  a search was carried out in the office of Turan Agency, which lasted about 3 hours. As a result of the search, numerous documents were seized. Director of the agency Mehman Aliyev said that the tax authorities had quickly withdrawn the documents, as well as the accountant’s computer. Mehman Aliyev said: “We were given a deadline to provide all the documents. We copied all of the documents and were going to submit them to the Ministry of Taxes. But for some reason they did not wait and they quickly came and confiscated our documents.” He also said that the results of the check should be learned from those who ordered it. “There are no problems in our documents. It does not depend on us what decision will be taken,” Mehman Aliyev said.

 

On August 24, 2017 Mehman Aliyev was detained as a suspect in the commission of a crime under Article 213.1 of CC of AR. On August 25, 2017 new charges were brought against M.Aliyev under Articles 192.2.2 (illegal business with the extraction of large income) and 308.1. (abuse of official powers) of the CC of the AR.

 

On August 25, 2017 the Baku city Yasamal District Court  issued a ruling on the application of a measure of restraint in respect of Mehman Aliyev in the form of imprisonment for a period of 3 months.

 

Commentary of an expert lawyer:

The decision is illegal and unreasonable.

 

Immediately after the journalist’s arrest the defender of M.Aliyev Fuad Agaev stated: “They (the investigative bodies) think about this case as if this case is the same as it was with a number of NGOs that started 3 years ago. Many people were arrested then. But Turan News Agency is not an NGO. Mehman Aliyev does not hide the fact that he was engaged in entrepreneurial activity. The agency has a registration. In addition, the agency does not need licensing. This means that it is impossible to talk about criminal composition, which was fully proved in court. On the other hand, let’s consider the tax charges, that is, the resolution of the Ministry of Taxes for 2016. Additional taxes are charged now for this period. We asked, how is this possible? They replied that a private tax audit was conducted. But is there any report of private verification? No. If there is no any audit report, how can such an accusation be made? “

 

According to the lawyer, “in this case, the investigative body was obliged at least to suspend the proceedings on the basis of the petition.” Fuad Aghayev said that the charge under Article 308.1 (abuse of official powers) of the CC of RA is also illegal, it was proved in court. There was not a single legal basis for arrest.” The events that preceded the arrest show that the arrest of Mehman Aliyev was pre-planned and sponsored. So, let’s consider them.

 

On August 24, 2017, at 10.40 am, the Criminal Board of the Baku Court of Appeal under the chairmanship of Faig Gasimov was to consider a complaint against the decision of the Baku city Nasimi District Court dated August 15, 2017 to conduct a search in the office of the Turan Agency. Mehman Aliyev and his representative were in court at the appointed time, but due to the absence of the investigator and the prosecutor, the hearing was adjourned until 14.40. The process started at the specified time and lasted 30 minutes. The complaint was rejected. After this, investigator Vusal Ibadov and prosecutor Gail Mammadov invited Mehman Aliyev to state evidences, as they said, for 30-40 minutes. Although this invitation did not comply with the norms of the criminal procedure legislation, Aliyev and his representative Fuad Agaev went to the Department for Preliminary Investigation of Tax Crimes under the Ministry of Taxes.

 

M.Aliyev and his representative entered the building of the Department at about 15.20. Literally in an hour and a half, at 16.45 the information portal www.haqqin.az, referring to the information of law enforcement bodies, spread information that Mehman Aliyev was detained by employees of the investigation department of the Ministry of Taxes. At the time this information was distributed, M.Aliyev and his representative (from 15.20 to 18.00) were sitting and waiting for the admission by the Department of Preliminary Investigation of Tax Crimes. Only at 18.00 they were invited to the office of investigator Vusal Ibadov. 

 

The investigator, having learned that the representative of Aliyev does not have a warrant, but only a Power of Attorney, asked him to leave the building of the Department. We have to clarify that for the representative of the witness there is no warrant, it is enough to present the relative Power of Attorney. Fuad Agaev, the representative of M.Aliyev, had such Power of Attorney. Approximately at 18.20 M.Aliyev was announced the decision to detain him as a suspect. Thus, only after 1 hour and 35 minutes after the www.haqqin.az website spread information about the arrest of Mehman Aliyev, M.Aliyev was really detained. The detention order stated that M.Aliyev should be detained, as he might abscond from the investigation.

 

Information about the detention, which was distributed in advance, indicates that the detention of Mehman Aliyev was planned and politically ordered.

 

It was said in the arrest order dated August 25, 2017, that if M.Aliyev remained at large, he could escape from the investigation and the court, interfere with the course of the investigation, given the nature of the criminal act and the degree of public danger, the likelihood of illegal influence on the participants in the process and re-commission of criminal acts in the future.

Although the court referred in its decision to Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, it did not apply it and grossly violated it. According to Article 5 (1) of the  European Convention for the Protection of Human Rights and Fundamental Freedoms : “Everyone has the right to freedom and personal inviolability. No one shall be deprived of the liberty save in the cases and in the manner prescribed by law.”

 

The resolution also refers to Resolution no. 3 of the Plenum of the Supreme Court of the Azerbaijan Republic dated November 3, 2009 “On Practice of Application of Legislation by Courts when Considering Motions for Election of Measure of Restraint in the Form of Arrest against Accused”. Pursuant to clause 8 of the Resolution, when examining applications, courts should check primary evidence that would prove the likelihood of committing crimes under the criminal code, including the existence of procedural grounds for choosing a measure of restraint in the form of arrest. However, the court did not observe what it referred to. The court did not verify any evidence supporting the charge. The court accepted the procedural documents presented by the prosecution as true and aggravating the guilt of Mehman Aliyev.  

 

The ruling of the European Court of Human Rights (ECHR) in the case of Ilgar Mammadov versus Azerbaijan on May 22, 2014 shows a violation of Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The ECHR’s ruling states that official documents of the prosecutor’s office have no witness testimony and any other information allowing suspecting the applicant in the described actions and having grounds for charging him with these criminal acts. Courts considering the election of a measure of restraint against the applicant did not submit such testimony or other information.

 

https://hudoc.echr.coe.int/eng#{“appno”:[“15172/13”]}

 

Neither the prosecution nor the judge could substantiate their arguments that Mehman Aliyev may abscond from the investigation and the court. During the trial, the investigator acknowledged the fact that M.Aliyev always appeared in the investigation bodies when he was invited by telephone and testified. Thus, the investigator confirmed the absolute unreasonableness of the assumption that M.Aliyev may be hiding from the investigation.

 

Prosecutor Gail Mammadov participated in the trial. His participation was illegal, since the presentation to the court of M. Aliyev’s arrest was filed not by G. Mamedov, but by prosecutor Rustam Usubov.

 

Gail Mammadov justified the idea of ​​the arrest by the fact that M.Aliyev often travels outside the country, cooperates with foreign structures, receives grants from them. But neither the investigator nor the prosecutor could refute the fact that M.Aliyev always came to the interrogations on the call and could not present any argument confirming the fears that he might abscond from the investigation and the court. In each specific case, the court must establish the degree of danger that the accused may abscond from the investigation. If there is information about plans of the accused to escape, or the evasion of the investigation the court can justify the choice of a measure of restraint in the form of arrest. In the case of Mehman Aliyev, none of the above arguments existed.

 

In addition, there were no grounds for deprivation of liberty specified in Article 155.1 (grounds for application of preventive measures) of the Criminal Procedural Code of the  Azerbaijan Republic  (CPC of AR).

 

Article 156.1 of the CPC of AR specifies that the decision on the choice of the measure of restraint must specify the crimes committed by the suspect or the accused and the grounds for the necessity of choosing a preventive measure with reference to preliminary evidence. The judge did not refer to any preliminary evidence or to the record.
The arrest of M.Aliyev also contradicted a number of articles of the Constitution of the AR:

 

– Article 12 of the Constitution of the AR, which reads:
I. Ensuring the rights and freedoms of a person and citizen, a decent standard of living for citizens of the Republic of Azerbaijan is the highest goal of the state.
II. The human and civil rights and freedoms listed in this Constitution are applied in accordance with international treaties to which the Republic of Azerbaijan is a party.

 

– Article 28 of the Constitution of the AR, which reads:
I. Everyone has the right to freedom.
II. The right to freedom can be restricted only in the manner prescribed by law through detention, imprisonment or incarceration.

 

– Article 151 of the Constitution of the  Azerbaijan Republic, according to which,
When there is a contradiction between the normative legal acts included in the system of legislation of the Republic of Azerbaijan (excluding the Constitution of the Republic of Azerbaijan and acts adopted by referendum), and international treaties to which the Republic of Azerbaijan is a party, international treaties are applied.
If there are contradictions between the norms of the country’s criminal procedural legislation and the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the International Covenant on Political Rights, the norms of international treaties are in force.

 

Thus, with respect to Mehman Aliyev, there have been violated at least Article 5(1) (the right to liberty and security of person), Article 6(1) (the right to a fair trial), Article 6(2) (the right to the presumption of innocence), Article 7 (punishment solely on the basis of the law), Article 10 (freedom of expression), Article 14 (prohibition of discrimination) and Article 18 (limits on the use of restrictions on rights) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

 

P.S. On September 11, 2017 the Baku City Yasamal District Court  changed the measure of restraint in respect of Mehman Aliyev on a recognizance not to leave.

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The court rejected the complaint of Abbas Huseynov about torture

 

Baku City Garadagh District Court
Case No. 6 (002) -05 / 17
August 10, 2017
Judge: Fuad Huseynov
Filed a complaint: Abbas Huseynov
Defender: Yalchin Imanov

 

Abbas Huseynov, was born in the city of Baku on March 3, 1987, was detained during a joint operation on November 26, 2015 in the settlement of Nardaran, Baku, by the Ministry of Internal Affairs and the State Security Service of Azerbaijan. He was charged with committing crimes under 22 articles of the Criminal Code of the Azerbaijan Republic ( СС AR). On January 25, 2017, the Baku Grave Crimes Court found him and 17 more guilty and sentenced to various terms of imprisonment. Abbas Huseynov was sentenced to 20 years in prison, 7 years of which he must be held in Gobustan closed prison, the rest of the punishment in a strict-regime prison. Until the verdict, accused of the so-called “Nardaran case” Taleh Bagirov, Abbas Huseynov and other 16 people were held in the Baku Investigative Isolator No. 1. After the Baku Court of Appeal on July 20, 2017, within one day, decided not to satisfy the appeal and upheld the verdict of the Baku Grave Crimes Court of January 25, 2017, Abbas Huseynov was transferred to the Gobustan prison.

Lawyer Yalchin Imanov was able to meet with Abbas Huseynov only on August 8, 2017.Abbas Huseynov passed through his lawyer Yalchin Imanov the following information about torture in Gobustan prison.

On July 22, 2017, he and another convicted Jabbar Jabbarov were taken to Gobustan prison. As soon as they were brought, they immediately handcuffed and dragged along the asphalt. Huseynov, Jabbarov and another prisoner were put face to face with a wall, kept under the scorching sun. When Huseynov announced his rights, he was told that “here is Gobustan.”

An employee named Rovshan, pointing at Huseynov, said: “This one says a lot, explain to him” – after that he was beaten with a truncheon by ensign Ilkin Akhundov. Then Huseynov was thrown into the punishment cell.

Despite the fact that the period of detention in the punishment cell expired on July 29, Huseynov was kept there until August 5.

In the punishment cell the situation is terrible, everywhere worms run, they even in the toilet from top to bottom, there is a terrible unsanitary condition, the sheet is black from dirt.

On July 25, Major Namig Guliyev began to beat Huseynov with his fists in the stomach and in the face, threatening to throw a current into him, and mockingly pointed out: “cudgel” – inseparable friend of the prisoner “. When Huseynov said that he would complain, the major said that “complain where you want”. Moreover, an act was drawn up about the alleged insult of Huseynov’s staff of the colony.

For 17 days in Gobustan prison Huseynov was given 4 reprimands. On July 26, he was taken out of the punishment cell under the pretext of meeting with the chief. However, in the courtyard of the prison, he was tied to an iron post and held for 3 hours under the scorching sun, handcuffed.

On July 29, despite the completion of the detention in the punishment cell, Huseynov was returned to the punishment cell, under the pretext that there are no places on the “quarantine”.

Abbas Huseynov said that on July 29, the leader of the Movement “Muslim Unity” Taleh Bagirov was brought to Gobustan prison. He was kept in the next cell, and A.Huseynov heard Bagirov become ill. When Bagirov asked the warder Ilkin Akhundov to call a doctor, the guard began insulting the convict.

In response, Huseynov and Jabbarov began to protest, other prisoners joined in their protests, demanding that the warden be punished. Huseynov was threatened with sending to the so-called “tubzone” (a colony for tuberculosis patients).

August 5 Huseynov in connection with the expiration of the “quarantine” met with the chief of the Gobustan prison Aftandil Agayev. When Huseynov began to talk about lawlessness in prison, A.Agayev interrupted him, stating: “here is Gobustan, it is a place where rights end.”

After that Huseynov was pushed to the floor, and the chief began to beat him with a club. A.Agayev struck him 30-35 strokes, including on the head. After this, Huseynov was again put in a punishment cell for eight days.
In the punishment cell he was knocked down, handcuffed on his arms and legs (actually crucified) and in this condition he was kept in a punishment cell for two days.
According to the lawyer, there are many injuries and bruises on Huseynov’s body – back, legs, lower back, knees. On the wrists and legs, there are traces of handcuffs. Huseynov with difficulty moves, limps on one leg and can not sit.

So, the chief of the Gobustan prison Aftandil Agayev, his deputy Emin Jafarov, the employees Ilkin Akhundov, Namig Agayev and the workers named Rovshan, Igbal personally took part in torturing the convicted under the so-called “Nardaran case” to the Gobustan prison: Abbas Huseynov, Taleh Bagirov, Jabbar Jabbarov and others.

In this regard, the lawyer of Abbas Huseynov appealed to the Garadagh District Court with a complaint about violation of Article 3 (prohibition of torture and inhuman treatment) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The complaint was filed on August 10, 2017. On August 14, the lawyer called the court to ask about the fate of the complaint. He was informed that the complaint was examined by Judge Fuad Huseynov, who decided that the complaint was unacceptable for reasons the judge indicated in the case. On August 14, the lawyer withdrew the complaint with all the enclosed documents, including the decision to refuse a complaint, signed by Judge Fuad Huseynov.

Commentary of an expert lawyer:

The judicial definition is illegal and unreasonable. The Garadagh District Court, having refused to consider the complaint, referred to Articles 442, 442.2.2. and 449.3 of the Criminal Procedural Code of the Azerbaijan Republic (CPC AR) and pointed out that a complaint filed in the course of judicial supervision should be related to the decision or procedural actions of the body conducting the criminal process.

The court considered that this complaint was not related to the circumstances provided for in Article 449.3. CCP AR, therefore, can not be subject to review.

Article 442 of the CPC AR provides general provisions on the implementation of judicial supervision. In Article 442.2.2 of the CPC AR specifies that, in the procedure of judicial supervision, the court reviews complaints on procedural actions or decisions of the body that is carrying out the criminal procedure.

Article 449.3 of the CPC AR states that the persons specified in Article 449.2. of this Code, have the right to appeal to the court procedural actions or decisions of the body that is carrying out the criminal process in connection with the following:

449.3.1. refusal to accept an application for a crime;
449.3.2. arrest and detention;
449.3.3.violation of the rights of a detainee or a prisoner;
449.3.3-1.transfer of a detained person from a remand center to a temporary detention center;
449.3.4. the use of torture or other ill-treatment of a person in custody;
449.3.5. the rejection of the institution of a criminal case, the suspension of proceedings in a criminal case or the termination of proceedings by the proceedings;
449.3.6.compulsory conduct of an investigative action, the application of a procedural coercive measure or the implementation of an operative-investigative measure without a court order;
449.3.7. the removal from the criminal trial of the defender of the accused (suspect);
449.3.8. in other cases provided for by this Code. (1)

As seen from the content of Article 449.3. The Criminal Procedure Code of Azerbaijan Republic, the court examines complaints concerning violation of the rights of the prisoner. In Article 449.3.4. of the CPC AR refers directly to complaints about the use of torture or other ill-treatment of a person in custody.

With regard to Abbas Huseynov, Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms was violated. According to Article 3 no one should be subjected to torture or inhuman or degrading treatment or punishment.

In this regard, a complaint in the form of judicial supervision can not be limited only to a procedural order or to the action of the body conducting the trial (Article 449.3 of the CPC AR). The complaint stated that on 9 August 2017 the defense applied to the Prosecutor General’s Office in writing form, but received no reply. While in cases involving torture or inhuman treatment, speed plays an important role. The slowness of the General Prosecutor’s Office contributed to the disappearance of traces of torture on the body of A. Huseynov.

In the decision of the Plenum of the Constitutional Court of Azerbaijan Republic on August 5, 2009 on the interpretation of Article 449.2.3. of the Criminal Procedure Code of the Azerbaijan Republic states, the right to appeal, being an integral part of the rights and obligations constituting the legal status of the individual, should not be limited and should be provided for every person entering into relations with public authorities or their officials.

This complaint must be filed precisely as a matter of judicial supervision, as it proceeds from criminal procedural activity. It can not be considered either in civil or in administrative proceedings. The complaint was filed with the Garadagh District Court. However, the court, violating the procedural norms, refused to consider the complaint on the merits, thereby violating the convict’s right to appeal. This right is not explicitly provided for in Article 6 (1) by the European Convention (the right to a fair trial), but it includes the right to access to court.

This is confirmed by the precedents of the European Court of Human Rights.

So, in the resolution “Golder against The United Kingdom” states:”The right to a fair trial includes the right to apply to a court. There should be no unreasonable obstacles to going to court, which are not provided for by law. “
http://europeancourt.ru/uploads/ECHR_Golder_v_the_United_Kingdom_21_02_1975.pdf
https://ru.scribd.com/document/268725159/Case-of-Golder-v-the-United-Kingdom

It follows from the above that the Garadagh District Court violated Abbas Huseynov’s right to appeal to the court and did not consider the merits of the complaint, which concerned torture.

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The Court of Appeal left 18 innocent people in custody

 

Analysis of offenses at the trial of the Nardaran case.

 

The Baku Court of Appeal, the Criminal Collegium
Case No. 1 (101) -102/2017
July 20, 2017
Presiding Judge: Amir Bayramov
Judges: Vugar Mammadov, Aflatun Gasimov
Public Prosecutor: Jeyhun Budagov
Accused: Taleh Bagirov, Abbas Huseynov, Fuad Gahramanly,
Jabbar Jabbarov, Rasim Dzhabrailov, Shamil Abdulaliyev, Zakir Mustafayev,
Jahad Babakishizade, Abbas Guliyev, Ibrahim Khudaverdiyev, Etibar Ismayilov,
Bahruz Guliyev, Ali Nuriyev, Alibala Veliyev, Farhad Balaev, Abbas Tagiyev, Ramin Yaryev, Agil Guliyev

Defenders: Yalchin Imanov, Zibaida Sadigova, Elchin Sadygov, Fariz Namazly, Fakhraddin Mehdiyev, Javad Javadov, Nemet Kerimli
The settlement of Nardaran, which is located 40 km from Baku, has a low standard of living and an acute unemployment problem. One of the mosques revered by the Shiites, founded in the VIII century, is located in Nardaran. Nardaran differs from other Baku villages in its religiosity. In 2000, 2002 and 2006, the villagers conducted peaceful protests with socio-economic demands.

In June 2002, police conducted a 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 of espionage in favor of Iran, an attempt at violent change of power, etc. However, as a result of the active work of human rights defenders, none of the convicts remained in custody after 2005.

November 26, 2015 in Nardaran was another police operation. 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 the General Prosecutor’s Office issued a joint statement, in which they explained the use of firearms against villagers as an operation necessary to neutralize a criminal armed group that functioned under a religious cover, planned mass riots, terrorist acts and destabilization of the socio-political situation in the republic.

From July 19, 2016 until January 25, 2017, the trial of 18 accused in the “Nardaran case” was held in the Baku Grave Crimes Court. Among them, the leader of the movement “Muslim Unity” Taleh Bagirov, members of the movement Abbas Huseynov, Rasim Dzhabrailov and others, as well as deputy chairman of the opposition party of the FFA, Fuad Gahramanli, who was accused of anti-state appeals, in calls for mass riots.

During the trial in the court of first instance, all the accused testified that both the policemen and four residents of Nardaran were killed by police officers. Moreover, the inhabitants of the village were crammed to death by the police already after detention.

Seven defendants said that on November 26, 2015, they were injured, and the bullets are still in their bodies….
Members of the movement “Muslim Unity” talked about the cruelest tortures that they were subjected to in the Main Directorate for Combating Organized Crime (GUBOP) of the Ministry of Internal Affairs, gave convincing evidence of gross violation of the legislation of the Azerbaijan Republic, the norms of international law by police officers.

Taleh Bagirov testified that he was beaten and forced to testify against leader of the opposition Popular Front Party of Azerbaijan Ali Keremli and chairman of the National Council of Democratic Forces Jamil Hasanli.
The accused named the names of MIA officers who tortured them.
Among them – the senior operative inspector for especially important cases of the MDCOC Ministry of Internal Affairs Islam Agabekov,the chief of the MDCOC, Major-General Seyfulla Azimov, the operational officer Shahlar Jafarov (this name was called by all the accused), the head of the anti-terrorist center MDCOC Kerim Alimardanov (this name was also called by all the accused).

 

During the trial in the Baku Grave Crimes Court, the accused refused the primary testimony given during the investigation, indicating that they had testified under torture.
Accused Abbas Guliyev in the court of first instance showed that he was systematically beaten by the employees of the MDCOC, he twice tried to commit suicide: the first time was an attempt to hang himself, the second one was to open his veins.
Etibar Huseynov as a result of beatings broke three teeth. Ibrahim Khudaverdiyev showed that he does not know how to read and write in Latin script, he confessed the confessions by deceit.
Jabbar Jabbarov showed that MDCOC employees Kerim Alimardanov, Shahlar Jafarov and Ibrahim Kazimov, nicknamed “Shrek”, tortured him. He showed that in his house, in which the police broke in, there was no weapon, no one fired from the house. Only the police shot.
Agil Ismaylov showed that he suffers from astigmatism and cranial-cerebral pressure, for this reason he did not serve in the ranks of the national army, he never saw weapons and does not know how to use it. Worked as a barber. On Internet he saw Taleh Bagirov’s speeches and wanted to see him personally. Therefore, he came to Nardaran for an event in which Bagirov participated.
Separately, it is necessary to describe the hall of the meeting in which the trial took place in the Baku Grave Crimes Court.
In the hall, approximately 50-60 people were always attended by members of the special task force and the entire staff of the court supervisors. Before the beginning of the process, all visitors were carefully examined by a metal detector, the contents of ladies’ bags, identity cards of those present were checked, and the phones were withdrawn. Similarly, a trial was organized in the Baku Court of Appeal.
On January 25, 2017, the Baku Grave Crimes Court (presiding Alovsat Abbasov, judges Eldar Mikailov, Mahmud Agalarov) recognized all the accused as guilty of committing the following crimes:
· Taleh Bagirov: Article 120.2.1 – murder committed by a group of persons, by a group of persons by prior conspiracy, by an organized group or criminal community (criminal organization); 120.2.3 – killing of the victim or his relatives in connection with the performance of this person’s official activity or public duty; 120.2.4 – murder committed with special cruelty or in a generally dangerous manner; 120.2.7 – killing of two or more persons; 120.2.12 – murder by motive of national, racial, religious hatred or enmity;
29, 120.2.3 – an attempt to kill the victim or his relatives in connection with the performance of this person’s official activity or the performance of public debt; 29, 120.2.4 – attempted murder committed with particular cruelty or in a generally dangerous manner;29, 120.2.7 – attempted murder of two or more persons; 29, 120.2.12 – attempted murder based on the motive of national, racial, religious hatred or enmity;28, 214.2.1 – the preparation of terrorism by a group of persons by prior agreement, an organized group or a criminal association (criminal organization); 28, 214.2.3 – an attempt of terrorism with the use of firearms and items used as weapons;
214-2 – public calls for terrorism; 220.2 – calls for active disobedience to legitimate demands of government officials and to riots, as well as calls for violence against citizens; 228.3 – illegal acquisition, transfer, sale, storage, transportation or carrying of firearms, accessories to it, ammunition (except smooth-bore hunting weapons and ammunition), explosives or explosive devices committed by an organized group;
228.4 – illegal acquisition, sale or carrying of gas weapons, cold steel, including cold throwing weapons, with the exception of those areas where the wearing of cold steel is part of the national costume or associated with hunting;
278 – forcible seizure of power or forcible retention of power;

279.1 – creation of armed groups or groups not provided for by the legislation of the Azerbaijan Republic, as well as participation in their creation and activities, supplying them with weapons, ammunition, explosives, military equipment;

281.2 – public appeals directed against the state, committed repeatedly or by a group of persons;

283.2.3 – actions aimed at inciting national, racial, social or religious hatred and enmity, humiliation of national dignity, as well as actions aimed at limiting the rights of citizens, or the establishment of superiority of citizens on the basis of their national or racial, social belonging, attitude to religion, if these acts were committed publicly, including using the media, committed by an organized group ;

315.2 – resistance to the representative of the authority performing his official duties, with the use of violence of the Criminal Code of the Azerbaijan Republic (CC AR );

· Abbas Huseynov – 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 233; 278; 279.1; 281.2; 283.2.3 и 315.2 CC АR;
· Jabbar Jabbarov – 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 278; 279.1; 281.2; 283.2.3 и 315.2 CC АR;
· Rasim Dzhabrailov– 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 278; 279.1; 281.2; 283.2.3 и 315.2 CC АR;
· Agil Ismayilov – 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 278; 279.1; 281.2; 283.2.3 и 315.2 CC АR;
· Bahruz Askerov – 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 278; 279.1; 281.2; 283.2.3 и 315.2 CC АR;
· Ali Nuriyev – 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 278; 279.1; 281.2; 283.2.3 и 315.2 CC AR;
· Alibaba Veliyev – 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 278; 279.1; 281.2; 283.2.3 и 315.2 CC AR;
·Etibar Ismayilov – 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 278; 279.1; 281.2; 283.2.3 и 315.2 CC AR;
· Shamil Abdulaliyev – 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 278; 279.1; 281.2; 283.2.3 и 315.2 CC AR;
· Jahad Babakishizadeh– 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 278; 279.1; 281.2; 283.2.3 и 315.2 CC AR;
· Abbas Guliyev – 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 278; 279.1; 281.2; 283.2.3 и 315.2 CC AR;
· Abbas Tagizadeh – 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 278; 279.1; 281.2; 283.2.3 и 315.2 CC AR;
· Farhad Balaev– 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 278; 279.1; 281.2; 283.2.3 и 315.2 CC AR;
· Zakir Mustafayev – 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 278; 279.1; 281.2; 283.2.3 и 315.2 CC AR;
· Ibrahim Khudaverdiyev –120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 278; 279.1; 281.2; 283.2.3 и 315.2 CC AR;
· Ramin Yaryev – 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12; 29, 120.2.1; 29, 120.2.3; 29, 120.2.4; 29, 120.2.7; 29, 120.2.12; 28, 214.2.1; 28, 214.2.3; 214-2; 220.2; 228.3; 228.4; 278; 279.1; 281.2; 283.2.3 и 315.2 CC AR;
· Fuad Gahramanli – articles 220.2; 281.2 and 283.2.1 (actions aimed at inciting national, racial, social or religious hatred and enmity, humiliation of national dignity, as well as actions aimed at limiting the rights of citizens, or the establishment of superiority of citizens on the basis of their national or racial, social belonging, attitude to religion, if these acts are committed in public, including using the media) CC AR.On January 25, 2017 the Baku Grave Crimes Court sentenced the defendants to the following terms of imprisonment:
–Taleh Bagirov – to 20 years of imprisonment, 7 years from which he will hold in Gobustan closed prison, the rest of the punishment in a strict regime colony;
– Abbas Huseynov – to 20 years of imprisonment, 7 years of which he will hold in Gobustan closed prison, the rest of the punishment in a strict regime colony;
– Jabbar Jabbarov – to 19 years of imprisonment, 5 years of which he will hold in Gobustan closed prison, the rest of the punishment in a strict regime colony;
– Rasim Dzhabrailov – to 17 years imprisonment in a strict regime colony;
– Agil Ismayilov – to 14 years and 6 months imprisonment in a strict regime colony;
– Bakhraz Askerov – to 14 years and 6 months imprisonment in a strict regime colony;
– Ali Nuriyev – to 14 years and 6 months imprisonment in a strict regime colony;
– Alibaba Veliyev – to 14 years of imprisonment in a strict regime colony;
– Etibar Ismayilov – to 14 years and 6 months of imprisonment in a strict regime colony;
– Shamil Abdulaliyev – to 14 years and 6 months imprisonment in a strict regime colony;
– Jahad Babakishizadeh – to 14 years of imprisonment in a strict regime colony;
– Abbas Guliyev – to 14 years and 6 months of imprisonment in a strict regime colony;
– Abbas Tagizade – to 14 years and 6 months imprisonment in a strict regime colony;
– Farhad Balaev – at 14 years and 6 months in prison in a strict regime prison;
– Zakir Mustafayev – to 14 years of imprisonment in a strict regime colony;
– Ibrahim Khudaverdiev – to 14 years and 6 months imprisonment in a strict regime colony;
– Ramin Yaryev – to 10 years of imprisonment in a general regime colony;
– Fuad Gahramanly – to 10 years in prison in a general regime colony.
The defense and the defendants did not agree with the verdict and filed an appeal. In the appeal, the defense asked the court: to make an acquittal in respect of all the accused. In the appeal, the defense also asked for a specific definition to the employees of the MDCOC Ministry of Internal Affairs Kerim Alimardanov, Shahlar Jafarov, Islam Agabekov, Ibrahim Kazimov, who tortured the accused; to recognize the violation of article 3 (prohibition of torture and inhuman treatment) and article 6 (2) (right to presumption of innocence) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and also to make a special definition in respect of persons who physically and psychologically exerted pressure on witnesses – the head of the MDCOC department  of the Ministry of Internal Affairs – Kerim Alimardanov, the operative of the MDCOC Islam Agabekov, the head of the Police Department of Sabunchu district of Baku, Eldar Ilyasov, his deputy Shaig Aliyev, the head of the 42nd police department of the Sabunchu district police department Tarhan Akhmedov. In the appeal, the defense also asked for a special ruling regarding the head of the press service of the General Prosecutor’s Office Eldar Sultanov, former head of the Ministry of Internal Affairs  press service Sadik Gezalov for violating the presumption of innocence in a joint statement of the General Prosecutor’s Office and the Ministry of Internal Affairs about the operation in the settlement of Nardaran, in which the accused were called criminals before the sentencing.

At the preparatory meeting in the Baku Court of Appeal, lawyers stated that they filed observations on the protocols of the court of first instance. For this reason, the meeting was postponed. The next meeting began with the filing of motions of the defense. The first petition concerned changing the measure of restraint in the form of arrest on alternative measures not related to the arrest. Then the defense appealed to the court with a request that the defendants be seated next to lawyers for more effective exercise of the right to defense. However, both applications were rejected by the court.

The judicial board examined the case without conducting a judicial investigation. The defense made a speech in which it pointed out the massive violations of national and international legislation. Then the accused was given the floor.

The presiding judge told the accused that they can only supplement the speeches of their lawyers, speak only in essence and nothing superfluous. This caused outrage and stormy protest of the accused. They asked for time for speeches. The presiding judge agreed. However, as soon as Taleh Bagirov and other accused in their speeches touched upon the political side of the matter, the judge stopped the speech. Defendant Fuad Gahramanli said that the law does not limit the accused in the speech. Despite protests from the accused, the judge did not give them the opportunity to speak out. As a token of protest, the defendants cast a plastic bottle and bottled water from the judicial board and the prosecutor. The room included employees of the special forces.

The presiding judge suspended the meeting. All those present were urgently removed from the hall.
On the same day, July 20, 2017, without the presence of the accused and lawyers, a court decision was announced. The Judicial Board did not satisfy appeal appeals and upheld the verdict of the Baku Grave Crimes Court of January 25, 2017.

Before the transfer of Taleh Bagirov and Abbas Huseynov to the Gobustan prison, they were placed in a punishment cell in the Baku Investigative Isolator.

After their transfer to the Gobustan prison, they were both immediately put in a punishment cell for 7 days, where they were beaten by prison officers. They were not allowed to meet with lawyers and  family members. They were not allowed to use the phone. Relatives of beaten convicts told the press that the condition of T. Bagirov and A. Huseynov was serious. On the morning of August 6, 2017, relatives and friends of beaten convicts held a protest near Gobustan prison.They met with the head of the Penitentiary Service of the Ministry of Justice, Jeyhun Hasanov, who promised that T. Bagirov would call home in the evening. On August 7, Bagirov’s wife Leyla Ismailzade confirmed that her husband had actually called home that evening and said that now his condition was satisfactory, and Abbas Huseynov’s condition was grave.

The lawyer was able to meet with Abbas Huseynov only on August 8, 2017, a few days after the beating. Huseynov told a lawyer that he was beaten and tortured personally by the head of the Gobustan prison Aftandil Agayev, his deputy Emin Jafarov, employees of prison Ilkin Akhundov, Namig Agayev, and Rovshan and Igbal, whose surnames he does not know.

He said that he was placed for 7 days in a punishment cell in the Baku Investigative Isolator after the incident in the Baku Appeals Court on July 20, 2017. Two days later, on July 22, 2017, he was transferred to the Gobustan prison together with another convicted Jabbar Jabbarov: “After the day’s prayer, we were brought to Gobustan. Before I could say hello, Jabbar and I were handcuffed by handcuffs from the back and, laying down on the floor, they began to drag on the floor. Me, Jabbar and some other prisoner was there. We were put face to the wall and on such a hot day we held our face to the wall. When I announced our rights, they answered “This is Gobustan”. Then a prison officer named Rovshan said: “This one says a lot, explain to him.” Another officer Akhundov Ilvin Ruslan oglu struck me with blows on his back with a truncheon. After being beaten with a truncheon, I was put in a punishment cell. “

According to A.Huseynov, despite the fact that the term of his stay in the punishment cell ended on July 25, he was held there until July 29. “There are terrible conditions in the punishment cell, everywhere worms run, they even in the toilet from top to bottom, there is a terrible unsanitary condition, the sheet is black from dirt. I asked the supervisor to bring a small piece of clean paper for prayer, but they refused me. ” Abbas Huseynov told a lawyer that on July 25, Major Namig Guliyev, a prison officer, beat him with his fists in the abdomen and jaw: “… the truncheon is an inseparable friend of the prisoner,”- said major  . As Huseynov said, he told the major that he would complain about his illegal actions, to which major N. Guliyev replied: “Wherever you want, go and complain.” “They drafted an act that I allegedly insulted the prison staff,”- Huseynov told a lawyer.

Commentary of an expert lawyer:

The judgment of the Baku Court of Appeal is illegal and unreasonable. Preliminary and judicial investigation was conducted with total gross violations of national and international legislation. All the accused were subjected to psychological and physical torture. At the time of detention, Ramin Yaryev was a minor. During his interrogation, his legal representatives were not present, which contradicts the relevant norm of the Criminal Procedural Code   of  the Azerbaijan Republic (CPC AR).

In accordance with the requirements of Article 432.5 of CPC AR, in interrogation of a minor suspect, an accused who has not reached the age of sixteen years or who has reached this age but who suffers from a mental disorder or is lagging behind in mental development, the participation of a teacher or psychologist is compulsory.

The teacher or psychologist has the right, with the permission of the prosecutor, the investigator, the inquirer, to ask questions to the minor suspect, the accused, and upon completion of the interrogation, to get acquainted with the protocol of interrogation and make written comments on the correctness and completeness of the records made in it. In some cases, without the invitation of a specialist, the investigator will not be able to choose the right tactics for interrogation. Wrongly chosen depending on the type of personality of a teenager, a hard or complacent tone can have a negative impact on the whole process of investigation in the future, since the first contact is often the basis for future interaction with the adolescent.

Article 429 of the CPC AR  specifies the circumstances to be determined at the time of proceedings against juveniles:
429.0. During the proceedings against juveniles, in addition to the circumstances to be determined for the committed crime, the following shall be established:
429.0.1. the age of the minor (year, month, date of birth);
429.0.2. conditions of life and upbringing of a minor;
429.0.3. level of physical, intellectual and mental development of a minor;
429.0.4. in the presence of other participants in a crime committed by a minor, the possibility of separating the proceedings in a criminal case against him.
R. Yaryev in the court showed that he was tortured to obtain confessions, although according to Article 432.4.2.  CPC AR  a minor suspect or accused has the right to refuse to testify.

Ramin Yaryev could not read and write, his family was not informed about his detention for several days, he was chosen by a lawyer at the expense of the state, whose participation in investigative actions was of a formal nature.

All the accused gave testimony during the investigation under torture. The courts took into account the confessions of the defendants given during the investigation. They did not investigate the reasons for the contradiction in the testimonies of the accused at the investigation and at the court and took as a basis the primary testimony.

According to Article 33.1. CPC AR, “judges in the implementation of criminal proceedings assess the evidence collected in a criminal case, on the basis of the requirements of this Code.” Article 125 of the CPC : “125.2. It is inadmissible to accept in the form of evidence in the criminal case information, documents and things received:

125.2.1. with the deprivation or restriction of participants in the criminal process of their rights guaranteed by law, in violation of the constitutional rights and freedoms of a person and citizen or other requirements of this Code, which should or may affect the validity of these evidence;

125.2.2. with the use of violence, threat, deceit, torture and other cruel, inhuman or degrading acts. “
In relation to Fuad Gahramanly, the deputy of the chairman of the Popular Front Party of Azerbaijan, article 10 (1) of the European Convention on the Protection of Human Rights and Fundamental Freedoms was violated, according to which everyone has the right to freely express their opinion. This right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers. Recall that Fuad Gahramanli was arrested because of the status published in the social network Facebook, in which he expressed his attitude to the events in Nardaran. He is a politician and political scientist and regularly expresses his opinion in connection with the events taking place in the country.

Article 10.1. of the CPC AR  say: “Courts and participants in criminal proceedings must strictly observe the provisions of the Constitution of the Republic of Azerbaijan, this Code, other laws of the Republic of Azerbaijan, as well as international treaties with the participation of the Republic of Azerbaijan”.

Wounded during a police operation on November 26, 2015, Bahruz Asgarov, Jahad Babakishizade, Shamil Abdulaliyev were not provided with medical assistance, bullets were left in their bodies during the investigation, during the trials, and after. No medical assistance was provided after torture to all those under investigation. Only Fuad Gahramanli was not subjected to physical torture. He was subjected to psychological pressure.

The European Prison Rules say that the supervision of the physical and mental health of prisoners is entrusted to a doctor who examines all sick prisoners in conditions and with the frequency prescribed by hospital norms, also examines all those who claim a disease or injury and those who require special attention (paragraph 30.1.).

In the case of the persons under investigation in the “Nardaran case”, all of them were injured during detention. This is confirmed by the findings of forensic medical examination. So, on the basis of the expert’s opinion of December 14, 2015, Taleh Bagirov had injuries on the forehead, left temple, bruises under both eyes, broken bleeding upper lip, swelling of the nose, neck, back shoulder, left leg, left wrist bruising and others.

According to the conclusion of the forensic medical examination of November 30, 2015, damages were confirmed on the body of Abbas Huseynov. According to the November 27, 2015 report, damages were confirmed on the body of Rasim Dzhabrailov, Bakhruz Askerov, Jahad Babakishizadeh, Shamil Abdullayev. According to the conclusion of November 30, 2015 – damage to the body of Alibaba Veliyev, Ali Nuriyev, Agil Ismayilov, Abbas Guliyev. According to the conclusion of December 8, 2015 – damage to the body of Jabbar Jabbarov, minor Ramin Yaryev, Etibar Ismayilov. According to the conclusion of 10 December 2015 – damage to the body of Ibrahim Khudaverdiyev, according to the conclusion of December 11, 2015 – injuries on the body of Abbas Tagizade, Farhad Balaev. During the trial in the court of first instance, the defense filed a second petition that all the defendants during the detention in the MDCOC of the MIA were tortured, which was satisfied by the court.

The right of the defense and the statements of the defendants was confirmed by the forensic report of August 26, 2016, which also listed the injuries of the defendants who were inflicted during their detention.

All detainees in the village of Nardaran on November 26, 2015 were thrown into trucks to transport furniture. Those who died from bullet wounds or from beatings remained in cars along with the wounded. The corpses and wounded lay on top of each other, their blood mixed, which was confirmed by the conclusion of a comprehensive forensic examination of May 3, 2016.

According to Article 12.1. of  CPC AR, the bodies conducting the criminal process are obliged to ensure observance of the rights and freedoms of a person and citizen enshrined in the Constitution for all persons participating in the criminal process. In Article 12.5. of CPC AR says: “It is prohibited to use in the course of criminal prosecution ways and means that endanger the life and health of people or the environment.” According to Article 13.1. of CPC AR prohibits the adoption of decisions or the admission of actions that affect the honor and dignity of a person, humiliate or insult him or may endanger the life and health of persons participating in criminal proceedings. According to Article 13.2.1. of CPC ARan: “In the course of criminal proceedings no one shall be subjected to treatment and punishment that degrades human dignity”.
All the listed articles of the Criminal Procedure  Code were grossly violated during the detention, during the investigation and the trial of the Nardaran case. During the detention and preliminary investigation, the principle of inviolability of the person was violated. So, according to Article 15.2. of CPC AR prohibits:
15.2.1. torture, the use of physical and mental violence, including medical drugs, exposure to hunger, hypnosis, denial of medical care, the use of other cruel, inhuman or degrading treatment or punishment;
……
15.2.3. receipt of testimony from the victim, suspect or accused, as well as other persons participating in the criminal proceedings by means of violence, threat, deception and with the use of other unlawful actions that violate their rights.

Torture and inhuman treatment are prohibited by Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The article says: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

All articles of the European Convention have exceptions and limitations, except for Article 3. Under no circumstances the use of torture can be justified.

Numerous precedents of the European Court of Human Rights prohibit torture and inhuman treatment and blame the state for this. The Court considers it necessary to emphasize that the State is responsible for every person in custody, since the latter, being in the hands of public servants, is vulnerable, and the authorities must protect it (Judgment of the European Court in the case of Gorodnichev against Russia of May 24, 2007).

http://echr.ru/documents/doc/2465023/2465023-001.htmhttp://www.bailii.org/eu/cases/ECHR/2007/1210.html

An analysis of the trial showed that neither during the trial in the Baku Grave Crimes Court nor in the Baku Court of Appeal, which lasted only one day-July 20, 2017 and conducted without judicial investigation, was not proved the guilt of the accused in those grave crimes that they were presented and for which they were given such long terms of imprisonment.

In the trials of Taleh Bagirov and other 17 defendants, numerous evidence was given of the use of torture and inhuman treatment against all defendants who were and are systematic character, and continue after sentencing in custody

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The Sabayil District Court issued a verdict against Faig Amirov

Analysis of violation of law during Faig Amirov ’s judicial proceedings

Baku City Sabail District Court

Case no. 1(009)-122/2017
July 24, 2017
Presiding Judge: Aytan Aliyeva
Public Prosecutor: Vusal Abdullayev
Accused: Faig Amirov
Defenders: Fahraddin Mehdiyev, Agil Laijev
Representative of the Ministry of Taxes of Azerbaijan: Elchin Rzayev

Faig Amirov was the Distribution Director of the Azadlig (Freedom) opposition newspaper, a member of the opposition Popular Front Party and an assistant to the chairman of the Popular Front Party. In July 2016, he told the press that he was being pursued by unknown persons and he appealed to the police in this regard.

 

On August 20, 2016 he was detained on charges of inciting ethnic, racial, social or religious hatred and enmity while using official powers – Article 283.2.2 of the Criminal Code of the Azerbaijan Republic (CC of AR ). According to the defence and Amirov himself, the employees of the investigation body took away the keys from his car and searched it. According to the investigation, Fatullah Gulen’s books (the theologian and founder of Hizmet religious movement, since 1999 he lives in the US and declared on the wanted list by Turkish President R. Erdogan for attempted coup d’etat) were found in a car belonging to Faig Amirov.

 

On August 22, 2016 F.Amirov was charged with another accusation of infringement on the rights of citizens under the pretext of performing religious rituals (Article 168.1 CC of AR). On August 22, 2016 Shalala Hasanova, a judge of the Nasimi District Court of Baku, issued a resolution on the arrest of F.Amirov for a period of 3 months. On November 11, 2016 the arrest was extended for another two months until January 12, 2017. On January 6, 2017 the arrest was again extended until March 12, 2017. On March 3, 2017 the Nasimi District Court reviewed again the petition of the investigative body and extended the preventive punishment for another 3 months.
After the arrest of Faig Amirov, the Azadlig Newspaper ceased publication. On April 17, 2017 F.Amirov was charged with new charges under Articles 213.1. (evasion from paying taxes) and 308 (abuse of official powers) of the Criminal Code of the Azerbaijan Republic. F.Amirov did not accept the accusations against him and refused to give evidence.

 

Faig Amirov believes that his arrest is a political order. However, initially, under the influence of an attempted coup in Turkey, the investigation tried to present him as a supporter and envoy of Fatullah Gulen, and later charges were brought forward under Articles 213.1. and 308 of the Criminal Code of Azerbaijan Republic. These charges showed that the purpose of his arrest is to put pressure on the Azadlig Opposition Newspaper and stop the release of the newspaper. It was this goal that was achieved.

 

The defence stated that during the investigation period no investigative actions were carried out, for this reason the repeated extension of the period of stay under arrest is illegal and unreasonable.

 

The criminal case against Faig Amirov was sent to the Sabayil District Court and charged to judge Aytan Aliyeva. The preparatory meeting was scheduled for May 19, 2017.

 

At the preparatory meeting on May 19, 2017 F.Amirov was placed in a glass chamber. The defence made two motions: on changing the measure of restraint in the form of arrest to the measure of restraint in the form of house arrest (taking into account the health problems of F.Amirov) and on the termination of the criminal case. The court refused to satisfy both motions.
The hearing was scheduled for June 1, 2017. Amirov’s lawyer Fakhraddin Mehdiyev appealed to the court with a request that the accused be released from the glass chamber and placed next to lawyers. The petition was justified by the fact that location of the accused near his lawyers will enable to hold defence better and more efficient, to consult with each other without limits. The lawyer also pointed out Amirov’s state of health. The judge granted this petition, but the officers of the Penitentiary Service did not immediately agree to comply with the judge’s instructions. They justified their refusal by the rules on keeping prisoners, but, nevertheless, the judge’s decision was executed. Another lawyer of Amirov, Agil Laijev, appealed to the court with another petition: he asked to bring the books found in Amirov’s car to court. He stated that the author of one of the books is the uncle of the current Prosecutor General of the Republic of Zakir Garalov, Zakhid Garalov, and the author of the opening speech in the other is the representative of President Ilham Aliyev, Rashad Majid. The defence also asked the court to invite witnesses involved in the search of the house and the car for questioning.

 

Then the state prosecutor read out the indictment, according to which Faig Amirov, in order to spread the ideas of Fatullah Gulen, purchased and stored his discs, and also propagated his ideas in the Azadlig Newspaper. The prosecutor also stated that Amirov, having indicated the understated sale of the newspaper, evaded paying taxes in the amount of 39 thousand manats.

 

During the trial Amirov declared his innocence and did not recognize the charge. He showed: “All charges against me are falsified. On August 20, when I left the house, 6 people approached me. They introduced themselves, but did not show any IDs. These people said that they are employees of the State Security Service and the Ministry of Internal Affairs. I confess, they treated politely. They asked for the car keys and the phone. When they asked for the keys to the car, I realized that they would plant something. I thought that it would be most likely either drugs or weapons. I was seated in another car, three of them went with me, and three others stayed near my car. About 45 minutes I was taken around the city, and then brought to the Investigation Department for Serious Crimes of the General Prosecutor’s Office. They calculated so that during this time they will be able to put something into the car. The keys were brought to the prosecutor’s office. Subsequently, I learned that Fatullah Gulen’s books and CDs were put in my car. I do not read books at all. I even raised the question of having an examination of the availability of fingerprints on these books. However, they did not do it. I was imprisoned for 10 months because of these charges, but no one asked anything. I first heard the name of Fatullah Gulen during the events in Turkey.”

 

The case was continued on July 6, 2017. The prosecutor appealed to the court with a motion to announce the testimony of witnesses who did not come to court. The defence protested and asked to bring witnesses forcibly. The judge decided to dismiss the prosecutor’s petition and granted the defence’s motion. Witness Rena Afandiyeva showed in court that she applied to the Azadlig Newspaper for giving an announcement about lost documents and paid 2 manats at the same time. She does not know Faig Amirov at all.

 

On July 12, 2017 the defence found a false testimony of the witness Sultan Ismayilov. S.Ismayilov stated at the investigation that he had been advertising in the Azadlig Newspaper for several years. He confirmed these testimonies during the trial. He said that from 2010 to 2015 he paid 6-7 manats monthly for ads, he paid personally to the office of the newspaper located near the Sahil Subway Station. The defence found false information in the witness’s testimony: since 2006 the Azadlig Newspaper left the office next to the Sahil Subway Station and moved to the Publishing House building on Matbuat Avenue.

 

The defence asked the court to exclude from the list of evidence the testimonies of the editor of the Azadlig Newspaper Rahim Hajiyev and the employee of the newspaper Khayal Babaev. During the trial Rahim Hajiyev was already in emigration. He left the country immediately after the interrogation in F.Amirov’s case. Both witnesses filed a lawsuit with the court that they had been testified by the investigators under pressure and that they refused the testimonies. The editor-in-chief of the newspaper Ganimat Zahid sent a statement to the court stating that Faig Amirov did not have the authority to make decisions on organizational and financial matters.

 

At the court session on July 14, 2017, two witnesses showed that they did not know F.Amirov, and two – that they saw him in the publishing house. All of them stated that they placed ads in the Azadlig Newspaper for free. Despite the court’s decision to force witnesses to appear to the court, almost half of them did not appear.

 

On July 17, 2017 the lawyer of F.Amirov told the court that such intensive conduct of the process in abnormally hot weather badly affects Amirov’s poor health. The accused agreed with the lawyer and said that he was experiencing great difficulties with such frequent transportation from the investigation isolation ward to the court.

 

The defence appealed to the court with another petition for interrogation of witnesses who were present during the search of the car. They were Samira Mammadova and Tazakhan Miralamli. The lawyers stated that both witnesses had not been questioned during the investigation, and therefore their interrogation in court was considered expedient. The court rejected the application.

 

On July 19, 2017, the defence filed another petition for bringing to court and interrogating of Fuad Ahmadli, member of the Youth Committee of the PFA Party (also imprisoned). There was stated in the indictment, that during the search of F.Ahmedli’s apartment, there had found a notebook where the phone number of Faig Amirov was indicated, and next to the number it was written: “Imam Faig.” To clarify this point, the defence asked to bring Fuad Ahmadli to court and interrogate him. The court rejected the motion. After that, the defence protested to the judge, but the protest was also not accepted.

 

The process continued with a speech of public prosecutor. He supported all the charges against Amirov, stated that Amirov’s guilt had been fully proved, asked the court to convict him and sentenced him for 4 years and 6 months’ imprisonment. After the speech of the prosecutor, a representative of the Ministry of Taxes asked the court to give F.Amirov an additional penalty in the form of paying taxes in the amount of 39,000 manats.

 

On July 24, 2017 lawyers issued a defensive speech, pointing out Amirov’s innocence, and asked the court to pass an acquittal. Amirov himself also spoke. Then the judge retired to the advisory room for sentencing. The court found Faig Amirov guilty of committing crimes under Articles 213.1 and 283.2.2 of CC of AR, and sentenced him to 3 years and 3 months of imprisonment with payment of taxes in the amount of 39 thousand manats. Production on previously charged Articles 168.1 and 308 of the CC of AR was terminated.

 

Commentary of an expert lawyer:

The sentence is illegal and unreasonable. According to Article 351.2 of the Code of Criminal Procedure of the Azerbaijan Republic (CCP of AR), the court’s conviction cannot be based on assumptions and is made only if during the trial the guilt of the accused has been proved. During the trial, the guilt of the accused was not proven. The verdict was pronounced with irregularities.
According to Article 283 of the Criminal Code of AR, incitement to national, racial, social or religious hatred and enmity when using official powers are actions aimed at inciting national, racial, social or religious hatred and enmity, humiliation of national dignity, as well as actions aimed at limiting the rights of citizens, or the establishment of superiority of citizens on the basis of their national or racial, social belonging, attitude to religion, if these acts were committed publicly, including using the media.

 

From the text of the article it is clear that one of the important signs of the availability of this crime is the way of committing a crime. One of the indispensable conditions of the crime is the dissemination of information and appeals in the media. This condition was not in Faig Amirov’s case. The disks seized in F.Amirov’s car also do not contain any information about actions aimed at inciting any enmity.

 

As to Article 213 of the CC of AR, it should be noted that the conclusions of the court are inconsistent with the actual circumstances of the case. Faig Amirov worked as a Distribution Director of the Azadlig Newspaper. It is clear from the labour contract concluded with F.Amirov that he did not have any administrative, organizational and financial functions. The editor-in-chief of the newspaper Ganimat Zahid and editor Rahim Hajiyev showed in their official appeals to the court that Faig Amirov did not have any authority to pay taxes, and therefore cannot be held responsible for paying taxes. There were also contradictions in the calculation of tax arrears. The distribution staff of the newspaper questioned in court as witnesses showed that, according to the service agreement, they left at their disposal 30-35% of the newspaper’s sales. However, this fact was not taken into account when checking and calculating tax debts. The debt included those 30-35%, which the sellers kept to themselves. Thus, there is neither a crime nor a criminal act in the actions of Faig Amirov.

 

During the judicial examination, the defence repeatedly drew attention to the health condition of Faig Amirov. As mentioned above, the trial was very intensive and was at the hottest time of the year. The condition of the accused worsened more and more each time because of the stuffiness in the car for the transportation of prisoners. According to Clause 50.2 of European Penal Procedures, transportation of prisoners in poorly ventilated and illuminating vehicles or conditions that cause them unnecessary physical suffering or degrading them is prohibited.

 

There is also a violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, according to which “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The European Court of Human Rights (ECHR) argues that ill-treatment must reach a minimum level of severity. The assessment of this minimum level of cruelty depends on all the circumstances of the case (Paragraph 100 of the judgment in the case of Gorodnichev v. Russia, May 24, 2007).

 

http://echr.ru/documents/doc/2465023/2465023-001.htm (in Russian)
http://hudoc.echr.coe.int/eng#{“itemid”:[“001-80611”]} (in French)

 

In the case of Faig Amirov, there is also a violation of Article 6, Clause 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Pursuant to this clause, “In the event of a dispute over civil rights and obligations or in the presentation of any criminal charge, everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The consideration of the criminal case was not impartial, independent and fair.

 

In addition, there was a gross violation of Article 6, Clause 2 of the European Convention. This paragraph reads: “Everyone charged with a criminal offense is presumed innocent until the guilt is established by law.”

 

On August 20, 2016, the Ministry of Internal Affairs, the Prosecutor General’s Office and the State Security Service issued a joint statement stating that Faig Amirov was charged with committing a crime under Article 283.2.2 CC of RA and have relations with Fatullah Gulen. It should be noted that on July 15, 2016 there was an attempt of coup d’etat in Turkey in which the Turkish authorities accused Fatullah Gulen. The Azerbaijani authorities accordingly began to accuse the opposition representatives of relations with F. Gulen.

 

According to Clause 35 of the ECHR Decree “Allenet De Ribemont v. France” of February 10, 1995: “The presumption of innocence enshrined in Article 6, Clause 2 is one of the elements of a fair trial referred to in Clause 1 of the same article (see, in particular, the ruling in the case of Deweer v. Belgium of February 27, 1980. Series A, vol. 35, p. 30, Clause 56). This principle is violated if the court declares the accused guilty, while the guilt has not been previously proven (see the above-mentioned case “Allenet De Ribemont v. France”, p. 18, Clause 37).”

 

http://europeancourt.ru/uploads/ECHR_Allenet_De_Ribemont_v_France_10_02_1995.pdf (in Russian)
http://factcheck.ge/wp-content/uploads/2017/02/pdf-1.pdf (in English)

 

Paragraph 38 of the ECHR Decree also states: “Freedom of expression, guaranteed by Article 10 of the Convention, extends to the freedom to receive and disseminate information. Consequently, Article 6, Clause 2 cannot prevent the authorities from informing the public about ongoing criminal investigations, but it requires the authorities to do so with restraint and delicacy, as required by the respect for the presumption of innocence.”

 

It follows from the abovementioned that when considering the criminal case of Faig Amirov, the norms of national and international law, as well as the precedents of the European Court of Human Rights were grossly violated

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Appeals Court keeps Aziz Orujev in custody

 

The Baku Court of Appeal, the Criminal Collegiums
Case No. 4 (103) 344/17
June 29, 2017
Presiding Judge: Faig Gasymov
Judges: Sahibkhan Mirzoev, Jamal Ramazanov
Investigator of the Investigation Department of Grave Crimes of the Prosecutor General’s Office of Azerbaijan: Ramig Babayev
Accused: Aziz Orujev
Defenders: Javad Javadov, Elchin Sadygov
Aziz Orujev, the head of Internet television “Channel 13”, a journalist, was detained on May 2, 2017 on charges of committing an administrative offense under Article 535.1. (non-compliance with the lawful requirement of a police officer) of the Code of Administrative Offenses of Azerbaijan Republic. The Nasimi District Court of Baku found him guilty and sentenced him to 30 days’ imprisonment.

The term of imprisonment expired on June 1, 2017. On the same day he was charged with committing crimes under articles 192.2.2. (illegal business with a large amount of income) and 308.1 (abuse of official powers) of the Criminal Code of Azerbaijan Republic (CC AR) . On June 1, 2017, the Nasimi District Court of Baku issued a ruling on the election of a preventive measure to Aziz Orujov for a period of 4 months. A.Orujev was placed in the Baku Investigation Isolator No. 1.

Lawyers of A. Orudzhev appealed to the Nasimi District Court with a petition to replace the detention in jail for house arrest or release on bail. On June 15, 2017, the Nasimi District Court of Baku (Judge Babek Panakhov) ruled that the petition was refused.

Disagreeing with this decision, the defenders filed an appeal.
On June 29, 2017, the Baku Appeal Court ruled to refuse to satisfy the appeal and left the judgment of the first instance court of June 15, 2017 in force.

Commentary of an expert lawyer:

The judicial decision is illegal and unreasonable. According to Article 163.1 of the Code of Criminal Procedure of Azerbaijan Republic (CCP AR), home arrest as a measure of restraint, consists in imposition of restrictions on freedom and a number of other rights of the accused without restraint and without complete isolation from society established by a judicial decision. Article 163.2. of CCP AR states: “The issue on choosing a preventive measure in the form of house arrest can be considered by the court on the petition of the defense party only as a replacement of the adopted resolution on the choice of a preventive measure in the form of arrest.”
The above restrictions may be as follows: the prohibition of leaving the place of residence completely or at a certain time (article 163.3.1 of the CCP AR ), prohibition of telephone conversations, mailings and other means of communication (article 163.3.2 of the CCP AR), prohibition of communication with certain (Article 163.3.3 of the CCP AR), the assignment of the duty to use electronic monitoring tools, their wearing and maintenance of the work of these means (Article 163.3.4 of the CCP AR), the assignment of the responsibility to respond to control telephones calls or other tell-tale signals, call, or appear personally to the body supervising the conduct of the accused (article 163.3.5 of the CCP AR), taking under the supervision of the accused or his place of residence, as well as police protection of his house, apartment or other assigned to him (Article 163.3.6 of the CCP AR), the adoption of other measures to ensure the proper behavior of the accused and his partial isolation from society (Article 163.3.7 of the CCP AR).
Home arrest is a physically-compulsory measure of restraint, which involves the forcible stay of an accused person suspected of a limited space, with isolation from society, the termination of work or other duties, the inability to freely move and communicate with an unlimited number of persons. At home arrest, the freedom of movement of the accused (suspect) is limited more than when signing for non-exit. It may be forbidden to leave permanently or at a certain time a dwelling, a building, a site of territory (cottages, hotels); to visit certain places (the district of the settlement, entertainment institutions); leave the premises unaccompanied. Because of the difference in house arrest from taking into custody, the accused (suspect) can not be forcibly placed in a specialized room (closed type). At home arrest there is no “detention”. At home arrest, the accused (the suspect) is not isolated from the people living with him (Source: http://upkod.ru/chast-1/razdel-4/glava-13/st-107-upk-rf/kommentarii ).
The decision of the Baku Court of Appeal of June 29, 2017 stated that A. Orujev is accused of serious crimes, so he can not be released under house arrest. The resolution does not say a word about the restrictions set forth in Article 163 of the CCP AR, and why they are not applicable to Aziz Orujev.

In Article 157.1 of the Code of Criminal Procedure of Azerbaijan Republic states: “In accordance with the presumption of innocence, a person can not be detained or held without custody if his involvement in the commission of an act provided for in criminal law has not been proven.” There were no concrete proofs of his involvement in the criminal case in the judicial decisions on the arrest of A. Orujev. The courts did not even consider alternative preventive measures, not related to the arrest. The courts had to argue why a preventive measure that was not related to the arrest could not be applied to the accused.

According to Article 28 (1) of the Constitution of the Azerbaijan Republic “everyone has the right to freedom”. Paragraph 2 of this article states that this right may be restricted only in the manner prescribed by law, by detention, arrest, etc. In addition to the constitutional norm, this right is also enshrined in Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

According to this article “everyone has the right to freedom and personal inviolability. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure established by law: c) the lawful detention or imprisonment of a person made so that it is brought before the competent authority for reasonable suspicion of the commission of an offense or, there are sufficient grounds to believe that it is necessary to prevent him from committing an offense or to prevent him from hiding after his commission. “

On November 3, 2009, the Plenum of the Supreme Court of the Azerbaijan Republic adopted the Resolution “On the Practice of Legislation Applied by the Courts in Considering Submissions Relating to the Election of Preventive Measures – Arrest of Accused Persons”.

This Resolution states: “It became known that when applying the law, courts allow for a number of violations, in particular, the validity of submitted submissions is not verified, the grounds on which the strictest measure of restraint is selected – arrest, as provided for in Article 154.2, is not commented on in the decisions. CCP; in the resolutions, general phrases are used regarding the concealment of the accused from the criminal investigative body, interfering with the normal course of the investigation, failure to appear in the body that is carrying out the criminal process; There is no reference to any factual circumstances supporting these assumptions. “

As we see, the Plenum of the Supreme Court of Azerbaijan witnessed a violation of the legislation on this issue and the groundlessness of the decisions passed. The Resolution states that the courts do not take into account the practice of the European Court (ECHR). In order for the courts to correctly apply the law and justify their decisions, the courts were instructed to check the possibility of choosing various preventive measures, and if the idea of choosing a preventive measure in the form of deprivation of liberty is satisfied, it must specify the reasons why it is impossible the application of a preventive measure not related to arrest.
The decision of the Baku Court of Appeal of June 29, 2017 testifies: after years the situation in the courts has not changed and the courts, as before, satisfy unfounded petitions of the investigating authorities to select the most stringent measure of restraint and refuse to satisfy the defense’s petitions to change the preventive measure, not related to arrest.

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Garadagh court sent Movsum Samadov to Gobustan prison

Analysis of the law violations at the trial of Movsum Samadov

Baku City Garadagh District Court

Case no. 7(002)-481/2017

June 14,2017

Judge: Rashad Mammadov

Accused: Movsum Samadov

Defender: Yalcin Imanov

Movsum Samadov, born on September 4, 1965 in the town of Guba, the Azerbaijan Republic, participated in the National Liberation Movement of Azerbaijan in the late 80s; he was a member of the Movement Popular Front of Azerbaijan (PFA). In 1993, he left the PFA and became a member of the Islamic Party of Azerbaijan. In 2007, M.Samadov was elected chairman of the Islamic Party.

On January 2, 2011, at a meeting of the party, he sharply criticized the policy of President Ilham Aliyev, pointing out gross violations of human rights, political repression, and corruption. Five days after this speech, he was detained and arrested. On October 7, 2011, the Baku Grave Crimes Court found M.Samadov guilty of committing crimes under Articles 214.2.1. (Terrorism committed by a group of persons by prior agreement), 214.2.3 (Terrorism committed with the use of weapons), 228.3. (Illegal acquisition, transfer, sale, storage, transportation or carrying of weapons, component parts, ammunition, explosives and explosive devices committed by an organized group) and 278 (Forcible seizure of power or forcible forfeiture of power) of the Criminal Code of the Azerbaijan Republic and sentenced to 12 years of imprisonment in a general regime colony.

However, already on October 9, 2014, Baku City Garadagh District Court ruled that Movsum Samadov should be transferred from a general regime colony to a closed-type Gobustan prison.

Based on this decision, M.Samadov spent 2 years in Gobustan prison. On November 26, 2016 he was transferred to Colony No. 12 of the general regime.

In the summer of 2017, the chief of the Colony No. 12 appealed again to Garadagh District Court with the application on ​​the transfer of M.Samadov to Gobustan prison of a closed type.

On June 14, 2017, Baku City Garadagh District Court ruled to satisfy this application and transfer Movsum Samadov to the Gobustan closed prison. The decision of court was justified by information from the chief of Colony No. 12 on the violation of rules of conduct in the colony by Movsum Samadov for the period from 2011 to 2014.

Commentary of an expert lawyer:

The judicial decision is illegal and unreasonable. As indicated, the court referred to information from the chief of the Colony No. 12 on the violation of rules of conduct in the colony by Movsum Samadov for the period from 2011 to 2014.

This became the basis for the transfer of M.Samadov to Gobustan closed prison for the second time. In the application of the chief of the Colony No. 12 there are no facts about Samadov’s violation of the rules of conduct after returning from Gobustan prison to the Colony No.12 on November 26, 2016.

In Clause 1 of the Resolution of the Plenum of the Supreme Court of the Azerbaijan Republic No. 02/2010 dated October 8, 2010 “On judicial practice related to parole, replacement of the unserved part of the sentence with a milder form of punishment, changing the type of institution for serving punishment and for illness” states : ‘Regardless of the positive or negative characteristics, courts should investigate the relationship between the validity of the characteristic and the personal case of the prisoner, the explanations of the participants in the process, and other documents, and appropriate decision must be taken depending on the result… In addition, when applying any material and procedural legal norms, the nature, essence, influence on public and individual interests, the legality of each case must be investigated… During this period, courts should not be limited to the arguments advanced in the characterization, should not be based on general and template phrases, all legal means should be used for full, comprehensive and objective verification.”

The defence claims that the various types of punishment in Colony No. 12 against Movsum Samadov were used unlawfully and unreasonably.

The decision of the chief of the Colony No. 12 of March 20, 2017 “ On the malicious violation of the procedure for the execution of penalties”, states that “During the period of serving the sentence Samadov Movsum Mardan oglu purposefully conducted anti-state conversations, conducted educational “legal” conversations among prisoners on the performance of religious rites in places not provided for by internal regulations. He was repeatedly invited to educational talks, but this did not bring a positive result.” For this, M.Samadov was 8 times subjected to different penalties by the chief of the Colony No. 12.

During the court session Movsum Samadov showed that he did not violate the established procedure, the decision to send him to Gobustan is custom-made with the aim to punish him once again for criticizing President Aliyev’s policy.

The decision of Garadagh District Court also refers to the application of the chief of the Gobustan prison of September 1, 2016 (the period when M.Samadov was serving his first term in Gobustan prison) which states that “On August 31, 2016, about 10.55 a.m. Samadov Movsum Mardan oglu walking around the place for a walk, spoke out against the state, agitating the prisoners not to vote in the referendum and launch a mass hunger strike.” This reference in the decision of the Garadagh Court is another evidence of a biased judgment.

According to Clause 12 of the abovementioned Resolution of the Plenum of the Supreme Court of the Azerbaijan Republic of October 8, 2010 “a malicious violation of the regime along with the use of measures of a censorial nature should be established by a justified decision of the management of institution on serving sentence.”

Baku City Garadagh District Court did not investigate the application of the chief of Colony No. 12 fully and objectively, and the trial was formal.

The defence asked to summon to the court and interrogate the inspectors Agshin Ismayilov and Bakhtiyar Guliyev, whose signatures were under the negative characterization of the prisoner. However, the court did not grant this petition. Thus, the court did not investigate how and why the negative characterization of M.Samadov was made.

According to Clause 2 of the abovementioned Resolution of the Plenum of the Supreme Court of the Azerbaijan Republic: “Courts in considering such applications, along with serious compliance with the requirements of the law, should approach the case individually, taking into account the personality of the prisoner. At the same time, courts should take into account the nature of criminal acts provided for by criminal and criminal procedural legislation, the degree of public danger, non-payment of damage caused as a result of a crime, the existence of an early conviction, non-recognition of guilt and other circumstances that are not an obstacle to parole, replacement of unserved part of the punishment by a milder form of punishment and the replacement of the type of institution to serve a sentence.”

It should be noted that M.Samadov suffers from a number of diseases, including varix (vein dilatation) and liver disease. His immune system is very weak. One of the ways to treat these diseases is constant exposure to fresh air and physical activity. His transfer to a closed prison will lead to deterioration in his health.

The main principle of the European Penitentiary Rules is the observance of the rights and freedoms of prisoners. Clause 5 of the Rules says: “life in places of deprivation of liberty should be as close as possible to positive aspects of life in society.”

During distribution of prisoners to various penitentiary institutions or the choice of the regime of detention, the legal status of the prisoner determined by the court or law (the person under investigation or convicted, convicted for the first time or a recidivist sentenced to a short or long term of imprisonment), special requirements for corrective action, health, gender and age are taken into account (Clause 11.1 of the European Penitentiary Rules).

Making a decision to transfer M.Samadov to Gobustan prison, Garadagh District Court ignored the European Penitentiary Rules.

According to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, no one shall be subjected to torture or to inhuman or degrading treatment or punishment. The detention of M.Samadov in conditions under which his physical and mental health will be damaged is contrary to Article 3 of the European Convention.

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Baku Grave Crimes Court pronounced the verdict for Fuad Ahmedli

The Baku Grave Crimes Court
Case no. 1(101)-680/2017
June 16, 2017
Chairman: Fikrat Qaribov
Judges: Rasim Sadiqov, Afghan Hajiyev
Prosecutor: Anar Tarverdiyev
Accused: Fuad Ahmedli
Defender: Asabali Mustayfayev
Complainants: Muhammad Quliyev, Samir Xalilov, Aynur Aliyeva

Fuad Ahmedli – chairman of the Khatai Branch of the Youth Committee of the opposition party Azerbaijan Popular Front Party (APFP). On December 25, 2015 Fuad Ahmedli was detained by police at his workplace. On the same day, at 20.00h, Baku City Khatai District Court
passed the decision to arrest F. Ahmedli for the period of ten days. Article 310.1 (persistent insubordination of legal request of policemen or military man at execution by them of duties on protection of public order) of the Code on Administrative violations of the Azerbaijan Republic
was brought against him. According to Fuad Ahmedli, on December 23, 2015 he wrote the status criticizing authorities at social networks and because of this he is being punished.
On August 18, 2016 Fuad Ahmedli was detained again at his workplace at LLC “Azerfon”, where he worked as operator. At the moment of his arrest, the search inside his apartment has already began. According to investigation, during the search, the books of Fethullah Gulen, cd’s, religious literature, including documents related to communication with persons, referred to as “Servants of Imams” (“Hizmət imamları”) were found.

 

Defence claims that everything that was seized from F. Ahmedli apartment was placed stealthily by the employees of investigative agency inside his apartment. Fuad Ahmedli was accused in committing of crimes under Article 302 (infringement of the legislation on operative – search activity) and Article 308 (abusing official powers) of the Criminal Code of the Azerbaijan Republic.

 

The investigation on this case was carried out by Mehti Mirzoyev, the investigator of the Investigation Department on Grave Crimes of the Prosecutor’s Office. After the arrest, State Security Service and General Prosecution Office disseminated their joint statement that F. Ahmedli, who worked as operator at the call centre at mobile LLC “Azerfon”, passed over personal dates and places of location of the certain individuals. On August 18, 2016 Baku City Nasimi District Court ruled on the application of restrictive measure towards F. Ahmedli in form of deprivation from liberty for the period of 4 months.
On January 6 and March 3, 2017 Baku City Nasimi District court has twice extended the period of the restrictive measure, and each time for the period of three months.

 

Immediately after his arrest, F. Ahmedli was placed to Investigative prison under State Security Service. On March 6, 2017 he was transferred to Baku Detention Centre under the Penitentiary Service of the Ministry of Justice, where he was interrogated for the second time (first time he was interrogated during his arrest).

 

On April 13, 2017, lawsuit on the case of Fuad Ahmedli began. F. Ahmedli was placed inside the glass cage at the courtroom. Defender claimed that it was only notified of the date of the preparatory meeting one day before. Neither defender, nor accused have received any notification of the date of the meeting.

 

Judicial Collegiums announced the composition of the court and read out the personal details of the accused, and then appointed the preparatory hearing to April 25, 2017. During the meeting, defender applied to the court with two motions, one of which was to terminate the criminal case; and second one on the change of the restrictive measure and application of the restrictive measure other than arrest. The court declined both motions. During the investigation in court, Attorney applied with the motion on carrying out video and audio recordings, on vindication of additional proofs and interrogation of additional witnesses, including chief executive of LLC “Azerfon” Kent Macknelli. All motions were declined.

 

During investigation in court, Attorney stated that the complainants to the case, appeared and became acknowledged only from April 2017, which means that during the period of 8 months, while investigation was carried out, there were no complainants. Complainant Muhammed Quliyev stated that he is not acquainted with accused and he does not have any pretension or complaints against him. M. Quliyev was wanted in the case of fraud. Complainant Samir Xalilov also referred to the court orally and in writing with the request to be removed from the list of complainants, since he did not bear any loss and does not have any complaints and pretension against F. Ahmedli. Both complainants stated that they became aware of that they were attracted to the case of F. Ahmedli as complainants, only after they were called to investigative agencies.

 

Complainant Aynur Aliyeva, currently residing in Turkey, was not questioned at the court. Her testimony was read out by presiding judge. Defnder complained about this, and asked the court to exclude testimony of A. Aliyeva from the list of proofs reasoning that neither defence nor prosecution was able to question her, and that violates adversarial principle.

 

At the meeting on June 6, 2017, the defender applied with a request that the request to Azerfon LLC about whether F.Akhmadli fulfilled the powers having legal consequences was sent.

 

Fuad Ahmedli did not plead guilty to the facing charges. He called his arrest to be politically motivated, since he is one of the prominent activists of the opposition party, he always openly expresses his civic position and sharply criticizes the policy of the government.

 

Prosecutor addressed to the court with the speech and asked from court to find Fuad Ahmedli guilty to the charges, and to sentence him to 7 years in prison. Defender denied all accusations, and called arrest to be politically motivated, and the criminal case – completely falsified.
On June 16, 2017, Baku Grave Crimes Court re-qualified Article 308.2 (abusing official powers, which entailed heavy consequences) to Article 308.1 (abusing official powers without aggravating circumstances) of the Criminal Code of Azerbaijan Republic and sentenced Fuad Ahmedli to 4 years in prison.

 

Commentary by an expert lawyer:
The court ruling is unlawful and groundless. The court restricted itself only to re-qualifying Article 308.2 to Article 308.1 of the Criminal Code of Azerbaijan Republic. According to verdicts, by using his official powers, Fuad Ahmedli, gathered secretly personal data of several clients using the technical means, and passed them over to unauthorised persons – outsiders. In such way, Fuad Ahmedli carried out unlawful operative search activities causing essential harm to rights of three citizens.
For example, assuming, that Fuad Ahmedli passed over the telephone numbers of several clients to unauthorized persons, by using his official position, this fact is still not enough to incriminate Articles 302.2 and 308.2 of the Criminal Code of Azerbaijan Republic against him.

 

In order to bring to account under above mentioned Articles of the Criminal Code, the following actions of Fuad Ahmedli should’ve been detected:
• conducting illegal operatively-search activities;
• obtaining confidential personal data of the victims;
• gathering of the confidential data by using technical means, asgd to receive information in latent form;
• passing over these datas to unauthorized persons and violation of the rights and interests of the victims, causing essential harm to victims.

 

• The subject must be an official.

 

In this connection, it is important to highlight that Fuad Ahmedli’s activity, by no means, should be viewed as operative-search activity, since the service of rendering information to the clients was included in his duties. He did not have any need to illegally use any kind of technology to pass data over to the clients. On daily and hourly basis operators have gathered information and forwarded it to the necessary addressees. This service is included to all operators’ duties. Based on the logic of investigation, all operators should’ve been brought to criminal accountability. Fuad Ahmedli actions do not fall under the nature of operative-search activity.

 

According to Article 5.3 of the Law on “Personal Data”, publicly available personal data refers to the personal data of “data subject”, depersonalised in the established order, the data that was made publicly available by individual concerned, or was entered on his or her given consent to the information system created for public use. The last name, name, and patronymic name refers to permanently open data. Securing the confidentiality of personal data which is publicly available is not required.” From the materials of the criminal case, it is evident that Azerfon LLC makes contracts with its client; clients provide personal data to the organization, and in such way, they give their consent to use these datas.

 

According to Article 38.2 of the Law on “Receiving information”, personal information is the aggregate of datas related on personal and family life. Restrictions on obtaining information are specified in the article itself. Name, last name, patronymic name and also address of person is not included to the list. There were no proofs in the criminal case that the data that Fuad Ahmedli was passing over, was confidential. Thus, one cannot be held criminal liable for transferring their information.
In this connection, it should be indicated that even if the case of data transfer occurred, it would‘ve lead to the application of disciplinary measures by LLC Azerfon towards the violator. Interrogated in the capacity of the witness, the responsible person of the company – Shain Efendiyev, gave the evidence that such cases have occurred on repeated occasions and the violators were subjected to disciplinary measures. This fact once again proves that there is no components of the crime in Fuad Ahmedli actions.
Highly important element is related to the application of the technical means, which were, as if, used to obtain personal details. F. Ahmedli used equipment (computers), which is used as well by other operators. This equipment is especially designed to store information. It is not designed for searching purposes. The court, without having any evidences, or grounds acknowledged equipment (computers), that was used by dozens of operators, as the equipment, designed to search information.
Attorney told to the court about the violation of Article 6 (2) of the European Convention on protection of human rights and fundamental freedoms, which states that;” Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” On August 19, 2016 State Security Service and General’s Prosecutor’s Office disseminated the statement relying on the official version of investigation, where F. Ahmedli name was mentioned, and where he was accused in committing the crime.
In such way, the Presumption of Innocence was violated in accordance with the Article 23 of the Constitution of the Republic of Azerbaijan and Article 21 of the Code of Criminal Procedure of the Azerbaijan Republic.
In decision of European Court of Human Rights (ECHR) on the case of Fatullayev v. Azerbaijan from April 22, 2010 was recognized the violation of the Article 6 (2) of the European Convention on protection of human rights and fundamental freedoms. This is what indicated in item 159 of the decision of ECHR: “ The Court reiterates that Article 6 § 2, in its relevant aspect, is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings. The presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1 (see Allenet de Ribemont, §35).
It not only prohibits the premature expression by the tribunal itself of the opinion that the person “charged with a criminal offence” is guilty before he has been so proved according to law (see Minelli v. Switzerland, 25 March 1983, § 38, Series A no. 62), but also covers statements made by other public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge the assessment of the facts by the competent judicial authority (see Allenet de Ribemont, cited above, § 41, and Daktaras v. Lithuania, no. 42095/98, §§ 41-43, ECHR 2000-X). The Court stresses that Article 6 § 2 cannot prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected (see Allenet de Ribemont, cited above, § 38).
(http://www.mmdc.ru/praktika_evropejskogo_suda/praktika_po_st10_evropejskoj_konvencii/europ_practice6/)
http://hudoc.echr.coe.int/eng#{“dmdocnumber”:[“866824″],”itemid”:[“001-98401”]}
And the last thing to mention is whether F. Ahmedli was an official, since he was charged under article 308.2 of the Criminal Code of Azerbaijan Republic and under this article subject must be an official.
The objective aspect of abusing official powers is characterized by a set of essential factors:
• contrary to interests of service, use by the official service powers from self-interest and other personal interests;
• causing essential harm to rights and legitimate interests of citizens or organisations or protected by law interests of a society or state;
• causal conjunction between act and consequence.
In the criminal case there is no evidence confirming that F. Ahmedli was an official.
Evidently, from the analysis of the criminal case, F. Ahmedli is not the subject of the articles, that were incriminated against him; court of first instance, issued unlawful and groundless verdict, and violated several norms of national and international law, including precedents of European Court on Human Rights

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