AFFILIATION WITH THE OPPOSITION IS ONCE AGAIN A GROUND TO BE ARRESTED
Elbayi Karimli
Analysis of violation of law during Elbayi Karimli’s judicial proceedings
Baku City Nasimi District Court
Case № 4(006)-418/2023
18 August 2023
Presiding judge: Jeyhun Taqiyev
Defendant: Elbayi Karimli
Defender: Elman Agayev
With participation of the Prosecutor’s Assistant of Nasimis district, Khanum Ashrafova, and Subkhan Zeynalov, an senior investigator at the Investigation Department of the Nasimi District Police Department
Elbayi Karimli, born in 2001, a member of the Popular Front Party of Azerbaijan (PFAP), was detained in August 2023. Yet, the party members managed to obtain the information on his arrest only two months later.
- Karimli was detained in Baku while he was drawing graffiti on the monument of ex-president, Heydar Aliyev, and shooting it on video.
He was charged with committing an offence under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic
According to the investigation, on 18 August 2023, E. Karimli was detained by the police on one of the Baku streets and brought to the Nasimi District Police Department, where he was subjected to personal search, and as a result it was found a heroin substance weighing 30.135 grams, which was produced by artisanal method.
One of the investigators from the Investigation Division within the Baku Nasimi District Police Department petitioned the Court to impose a preventive measure in the form of detention on the accused. The motion was also supported by the Prosecutor’s Assistant with a request to satisfy it.
On 18 August 2023, the Baku City Nasimi District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Elbayi Karimli in the form of detention for a period of 4 months.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
According to the Article 154.1 of the Code of Criminal Procedure of the Azerbaijan Republic, a restrictive measure is a coercive procedural measure intended to prevent unlawful behaviour by the suspect or accused during criminal proceedings and to ensure the execution of the sentence; it shall be applied in the cases described in Article 155.1 of this Code.
The Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic stipulates the grounds for applying a preventive measure. The list of grounds is rather limited and consists of the following provisions:
- arrest;
- house arrest;
- bail;
- restraining order;
- personal surety;
- surety offered by an organisation;
- police supervision;
- supervision;
- military observation;
- removal from office or position.
So, it is clear that the Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic has imposed the strictest measure of restraint, an arrest, whereas the Law strictly controls its application.
Besides the Code of Criminal Procedure of the Azerbaijan Republic, the application of preventive measure in the form of arrest is also regulated by the numerous resolutions of the AR Supreme Court Plenum, the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the case law of the European Court of Human Rights (ECHR).
One of the important points in the application of preventive measure in the form of arrest is its grounds. The list of these grounds is enumerated in the Code of Criminal Procedure of the Azerbaijan Republic and it is clearly defined. Each ground requires specific arguments and evidence justifying the use of such a harsh preventive measure. Moreover, even if at the beginning of the investigation the arrest may be justified, later on the grounds for the application of arrest may be dropped. Each ground invoked by the investigating authority must be clearly substantiated, otherwise it will lead to a violation of the right to liberty and inviolability of individuals.
There are the following grounds specified in the court order to impose a measure of restraint in the form of arrest:
- the gravity of the charge;
- the nature and danger of the offence to the public;
- potential to abscond from the authority conducting the criminal proceedings;
- unlawful pressure on the trial participants;
- committing another criminal offence and posing a danger to the community;
- committing an offence punishable by a sentence of more than 2 years.
The judgment also contains numerous references to ECHR judgements. However, as noted above, there is not a single fact or piece of evidence in the judgment that could justify the arrest imposition.
Furthermore, the Court did not demonstrate a case-specific approach to the matter, it merely listed procedural rules and ECHR precedents irrelevant to the case.
An unjustified and unlawful order of arrest leads to a gross violation of the Right to Liberty guaranteed by the Constitution of the Azerbaijan Republic, Article 28, as well as Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
According to the Article 5(1) para c) of the European Convention for the Protection of Human Rights and Fundamental Freedoms,
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him
before the competent legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so;
The deprivation of personal liberty prior to conviction should be used in exceptional cases, whereas the Liberty must be the rule. According to the ECHR precedents, detention is justified only if specific indications reveal a public interest which overrides the presumption of innocence. It means that pre-trial detention must be of such significance that the public security or public interest may be jeopardised by the accused’s freedom. The domestic judiciary should examine all the circumstances to ascertain whether a public interest would justify exceptions to the general rule of respect for individual liberty.
With regard to the violation of public order, certain offences, by their particular gravity and public reaction to their commission, may cause public disturbance which may justify pre-trial detention. However, this ground may be deemed relevant and sufficient only if it is founded on the facts that could indicate that release of a detainee in custody might actually disturb public order.
According to the case law, a threat of absconding does not derive from the mere possibility or ease for the accused to cross the border. In order to appear credible, it is necessary that all other factors concerning the characteristic of the accused, his moral character, his place of residence, his profession, his resources, his family ties, his connections of whatever nature to the country in which he is being prosecuted, should either confirm the existence of a fleeing threat or reduce it to such an extent that pre-trial detention is not justified.
As it is stated in the ruling, the search of the defendant’s personal possession resulted in the finding of a narcotic drug. That fact was the ground for the indictment. However, the Court did not consider the relevance of the drugs to the particular suspect.
“The existence of compelling grounds to suspect the individual under arrest of having committed an offence is a sine qua non (necessary condition) for the legality of detention (…), but after a while it is no longer sufficient; then the Court must ascertain whether the remaining judicial motives justify the deprivation of liberty (…). If those reasons prove to be ‘relevant’ and ‘sufficient’, the Court takes into account, furthermore, whether the competent national authorities have exercised ‘due diligence’ during the procedure” (judgment of the European Court of Human Rights (ECHR) in Letellier v. France of 29 June 1991). – https://hudoc.echr.coe.int/?i=001-57678
The Court refer to the gravity of the imputed offence, even though it is stipulated in the Code of Criminal Procedure of the Azerbaijan Republic, as a rule it could violate the principle of presumption of innocence which is guaranteed by the Article 63 of the Constitution of the Azerbaijan Republic, Article 21 of the Code of Criminal Procedure of the Azerbaijan Republic and Article 6(2) of the European Convention. The European Court’s case law in this regard is as follows:
“The mere existence of a serious suspicion of being involved in serious offences, being a factor relevant to the case, does not justify such a lengthy pre-trial detention” (judgment of the European Court of Justice in the case of Scott v. Spain of 18 December 1996). – https://hudoc.echr.coe.int/?i=001-58010
Thus, we have reviewed the Court ruling in the case of E. Karimli, charged with the commission of an offence under the Article 234.4.3 of the Criminal Code of the Azerbaijan Republic, and in respect of whom the Court had imposed a preventive measure in accordance with the investigator’s motion and prosecutor’s submission. However, there are no specific facts or evidence in the judgement that would justify the imposition of such a strict preventive measure. Nevertheless, the defendant remains in custody to this very day, which in fact legally violates his right to liberty, the most fundamental Right in a democratic society.