Prosecutor General’s Office of Azerbaijan left Yunis Safarov without a lawyer
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On September 5, 2018 Prosecutor General’s office of Azerbaijan. Republic made the decision to remove Yunis Safarov’s lawyer Elchin Sadigov from his case
First Deputy Prosecutor General of Azerbaijan Republic: Rustam Usubov
Defender: Elchin Sadigov
On July 3, 2018, there was an assassination attempt, in Ganja (the second biggest city in AR), on the head of the local executive power Elmar Valiyev. While shooting, Yunis Safarov wounded Elmar Veliyev and his body guard Qasim Ashbazov. The name Yunis Safarov became widely known in the Republic, after his photos were circulated at social networks on July 3-4. On the photos, Yunis Safarov was lying on the floor, there was a lot of blood near him and on him; there were traces of violence on him. The photos were the evidences that Safarov was beaten and severely tortured at Ganja city Main Police Department, whereto he was immediately taken after his detention on July 3.See: https://www.ipd-az.org/ru/prosecutor-generals-office-of-azerbaijan-left-yunis-safarov-without-a-lawyer/
Born in Ganja in 1983, Yunis Safarov was Russian citizen, and he lived in Moscow, where he received higher legal education.
Already, in the first half of July, the mass arrests took place in the country. On July 30, 2018, during the meeting dedicated to the results of the first half of the year, the Prosecutor General of Azerbaijan Republic Zakir Garalov claimed that in the connection with Ganja events, there were 61 people arrested and brought to criminal responsibilities. “They were the representatives of the radical religious groups” – underlined Z. Garalov, referring to 4 person, who were killed by special services during armed resistance. All arrested were accused under several Articles of Criminal Code of AR, including in terrorism, possession of guns, and coups d’etat attempt and etc.
By the end of the summer, the number of arrested were 62 persons, and according to law enforcement agencies 6 persons were killed due “to armed resistance”. See: https://www.ipd-az.org/ru/prosecutor-generals-office-of-azerbaijan-left-yunis-safarov-without-a-lawyer/
Yunis Safarov was charged under following articles 120.2.1 (Deliberate murder, committed by group of persons, on preliminary arrangement by group of persons, by organized group or criminal community (organization); 214 (Terrorism); 277 (Attempt on life of the state or public authority (act of terrorism); 278.2 (Violent capture power or violent deduction power in infringement of the Constitution of the Azerbaijan Republic, as well as directed on violent change of constitutional grounds of the states); 279.1 (Creation of armed formations or groups, which are not provided by the legislation of the Azerbaijan Republic, and also participation in their creation and activity, supplying them by weapon, ammunition, explosives, military engineering or military equipment); 281.2 (281.2. Public appeals directed against the state, committed repeatedly or by group of persons) and other articles of the Criminal Code of the Azerbaijan Republic.
Appointed by law enforcement agencies, the lawyer of the 14th legal consultation – Elman Agayev stated in the press that Y. Safarov was not subjected to tortures and inhuman treatment, and that he did not find any traces of violence on his body. On August 2018, Safarov family signed the contract on the provision of legal defence with the lawyer Elchin Sadigov. On August 14, 17, and 21 lawyer met with his client at Baku Pretrial Detention Facility #1 (Kyurdakhani), whereat Yunis Safarov is held.
Already in the beginning of September, the Director of the Department for Investigation of Grave Crimes of AR – Eldar Ahmadov filed application on the removal of Elchin Sadigov from the criminal case. The application was submitted to the First Deputy Prosecutor General of Azerbaijan Republic – Rustam Usubov. R. Usubov referred to the Presidium of the Bar Association in order to receive the legal assessment to the lawyer’s actions. In result of the decree of R. Usubov from September 05, 2018, Elchin Sadigov was removed from Yunis Safarov case.
It is specified in the commentary to decree that Elchin Sadigov has violated lawyer ethics by forcing Yunis Safarov to reject from the lawyer appointed to him by the state, not to deny the fact of tortures; and was pressuring psychologically on his client and etc; Law enforcement agencies listened to the entire conversation between lawyer and his client, since the given conversation was described word for word in the decree.
Commentary by an expert lawyer: The court decision is unlawful and groundless. According to the Article 92.9.2 of the Code of Criminal Procedure of Azerbaijan Republic, the defender counsel has right for unlimited opportunities and time to meet his client in private and in confidence.
In his turn, the accused has right to have unlimited opportunities and time to meet his defence counsel in private and in confidence (Article 91.5.8 of the Code of Criminal Procedure of Azerbaijan Republic);
The same norm is provided by the European Prison Rules, which were approved by the Committee of Ministers of Council of Europe on February 12, 1997. According to item 93, of European Prison Rules, untried prisoners shall be entitled, as soon as imprisoned, to choose a legal representative, or shall be allowed to apply for free legal aid where such aid is available and to receive visits from that legal adviser with a view to their defence and to prepare and hand to the legal adviser, and to receive, confidential instructions. On request, they shall be given all necessary facilities for this purpose. In particular, they shall be given the free assistance of an interpreter for all essential contacts with the administration and for their defence. Interviews between prisoners and their legal advisers may be within sight but not within hearing, either direct or indirect, of the police or institution staff.
As can be seen from the above mentioned national and international norms, the defender and his client have a common right: the right for confidential communication. By setting up illegal listening, the Prosecutor General’s Office has violated both the right of the defender and his client.
The basic principles of activities of Prosecutor’s Office are specified in the Article of the Law of Azerbaijan Republic “about the prosecutor’s office”.The basic principles of the prosecutor’s office are:
· legality;
· equality of all before the law;
· observance and respect of the rights and freedoms of physical persons, rights of legal entities;
· objectivity, impartiality and reference to facts;
· unity and centralisation, subordination of territorial and specialised prosecutors to the Attorney – General of the Azerbaijan Republic;
• political independence
Evidently, legality is the main and the most important principle of the Prosecutor’s office. The Prosecutor’s Office decree also contradicts the Law of Azerbaijan Republic “about operational search activity”. Article 3 of the Law specifies the principles of operational search activities. Operational search activities are based on the principles of the legality, humanity, respect of human rights and freedoms, conspiracy, combinations of public and secret methods of work. The law guarantees the rights and freedoms of a man and citizen. The temporary restriction of rights and freedoms of man and citizen in connection with application of operational search measures can be allowed only in the procedure established by this Law in case of control of offences, their disclosure, search of persons disappearing from the judicial, investigating authorities or bodies of inquiry evading from serving sentence, missing persons (Article 4 item 2 of the Law). This means that only those cases that are listed in the Article 4 of the Law may be applied to the restriction of the rights and freedoms of the man and citizen.
The Prosecutor’s office abused its authority. The Law prohibits:
· to allow actions that threaten the life, health, property and legitimate interests of people;
· to incite any person to commit an offence;
· to use force, threaten and blackmail, as well as to resort to other unlawful measures that restrict the rights and freedoms of citizens that are protected by law
· to implement measures beyond their authority.
The subjects of the operational search activity, which, in this case, is the prosecutor’s office, are allowed to listen to conversations only in the presence of the valid court decision (article 10, paragraph III of the Law “about the prosecutor’s office”). There are cases, when the listening is also allowed without court decision: to prevent grave crimes against the individual or particular grave state crimes; to detain persons who are preparing the crime, who committed the crime or those who escaped from imprisonment; to prevent fire, explosions in the residential buildings, construction sites and etc (article 10, paragraph IV of the Law “about Prosecutor’s office”).
If we pay attention to the above mentioned norms, we will see that in the given case, there was no legal basis for listening to the conversation between the lawyer and his client inside the institution for serving of sentence. Information, obtained illegally cannot be used by law enforcement agencies. Such information can only be used, if obtained legally.
Illegal listening is prohibited by article 8 (1) of the European Convention on human rights and fundamental freedoms. Under this article, everyone has the right to respect for his private and family life, his home and his correspondence. The concept of “correspondence” includes both telephone conversations and other negotiations of a confidential nature that take place between two persons. Article 8, paragraph 2, of the European Convention provides a complete and exhaustive list of restrictions that a state may apply to citizens.
There shall be no interference by a public authority with the exercise of this right except:
· when such interference is in accordance with the law
· necessary in a democratic society in the interests of national security and public safety,
· economic well-being of the country
· for prevention of disorder or crime
· for the protection of health or morals
· protection of the rights and freedoms of others
In the ECtHR Class and others V. Federal Republic of Germany case, there is a violation of the Article 8 of the European Convention. Although telephone conversations are not expressly mentioned in paragraph 1 of Article 8 (art. 8-1), the Court considers, as did the Commission, that such conversations are covered by the notions of “private life” and “correspondence” referred to by this provision.
In its report, the Commission expressed the opinion that the secret surveillance provided for under the German legislation amounted to an interference with the exercise of the right set forth in Article 8 para. 1 (art. 8-1). Neither before the Commission nor before the Court did the Government contest this issue. Clearly, any of the permitted surveillance measures, once applied to a given individual, would result in an interference by a public authority with the exercise of that individual’s right to respect for his private and family life and his correspondence. Furthermore, in the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menace of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an “interference by a public authority” with the exercise of the applicants’ right to respect for private and family life and for correspondence.
(Judgment of the European Court of human rights (ECtHR) on Class and others V. Federal Republic of Germany of September 6, 1978).
In order for the “interference” established above not to infringe Article 8 (art. 8), it must, according to paragraph 2 (art. 8-2), first of all have been “in accordance with the law”. (paragraph 43). http://echr.ru/documents/doc/2461406/2461406.htmhttps://stewartroom.co.uk/wp-content/uploads/2014/07/Cases-ECHR-Klass.pdf
Thus, the Prosecutor’s office did not have a court decision for listening, nor it had grounds for listening, for which court decision is not required. By establishing the listening, the Prosecutor’s office abused its authority, violated the number of national and international norms that resulted in gross violation of the principle of the legality and violation of the rights and freedoms of the man and citizen.