The Court chose preventive measure against Azad Hasanov
The analysis of violation of the law during Azad Hasanov’s judicial proceedings
The Baku City Khatai District Court
Criminal case №4 (011)-489/18
October 12, 2018
Judge: Ibrahim Ibrahimli
Accused: Azad Hasanov
Defender: Bilal Bagirov
Prosecutor of Baku City Prosecutor’s office: Vugar Alakbarov
Investigator of Baku City Police Department: Vusal Maharramov
Prosecutor who filed the application: Mehman Gojayev
On October 11, 2018, the Chairman of the Surakhany branch of Musavat party Azad Hasanov was detained. Since 2003, Azad Hasanov is the member of the opposition party Musavat. In 2014, he emigrated with his family to Lithuania, where he received political asylum. On October 10, 2018 he arrived to Baku. Hasanov’s visit to Baku was related to the serious state of his father’s health. According to Azad Hasanov’s wife Tarana Hasanova, upon his arrival at Baku airport, he did not face with any obstacles. On the day of his arrival, in the afternoon, he saw his father, and then together with his brother he went to the mosque to pray. Hyundai car with plate number 662 stopped near the mosque, and several men in civil clothes stepped out from the car, and grabbed A. Hasanov and pushed him into the car .
Azad Hasanov’s brother, who was near him at that moment, he tried to help him, but men in civil clothes pushed him away. They told him, that they were from the police. His brother says that the men in civil clothes did not show any documents. Then, he called to 102 service (Ministry of Internal Affairs of Azerbaijan Republic) and reported about the detention of his brother. During several days, neither his family nor the lawyers had any information about the whereabouts of Azad Hasanov.
Azad Hasanov was charged under article 234.4.3 (Manufacture, acquisition, storage, shipment, transportation or sale of precursors for the purpose of illicit manufacture and processing of narcotic drugs or psychotropic substances on a large scale) of the Criminal Code of Azerbaijan Republic.
On October 12, 2018, Baku City Khatai District Court chose preventive measure against Azad Hasanov in form of arrest for the period of 4 months.
Commentary by an expert lawyer:
The court decision is unlawful and groundless. When Azad Hasanov was detained, he was not informed about his rights and obligations, the Article 153 of the Criminal Procedure Code of Azerbaijan Republic “Safeguarding of detainees’ rights”. According to the Article 153.2 of the Code of Criminal Procedure, “To secure the rights of the detainee, the officials of the prosecuting authority and those in charge of the temporary detention facility shall: 153.2.1. inform the detainee immediately after detaining him of the grounds for detention, and explain to him his right not to testify against himself and his close relatives as well as his right to the assistance of defence counsel;153.2.4. secure the right of the person to inform others of his detention immediately after detention (the authority in charge of the temporary detention facility, on his own initiative, shall inform the family members of any detainees who are elderly, under age or unable to do so themselves because of their mental state)”. According to the Article 28 of the Constitution of AR, (II) the right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment”.
The right to liberty is also guaranteed by 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 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;
In the court decision on preventive measure, it is indicated that 3 packages with narcotic – tiryaki weighting in total 3,508 grams were found inside the pocket of Azad Hasanov’s trousers.
Besides, in the court decision, it is stated that one of the reasons of choosing preventive measure is the likelihood to abscond from the investigation and the court. As seen from the above mentioned articles, for the arrest, there should be “enough sufficient grounds to believe” that the person might abscond from the investigation and the court. The give decision does not specify any reasons behind the arrest. It fully consists of the formulaic expressions and extracts from the law. It is not different from any other decisions on arrest, only the date of the detention and the details of the detainee are changed.
In the decision of the Plenum of Azerbaijan Republic Supreme Court “On the practice of the courts on applications to apply arrest as a restrictive measure against accused” from November 03, 2009 indicates that when ordering restrictive measure of arrest, the courts shall not confine themselves to formally mentioning the procedural grounds specified in the Article 155 of the Criminal Procedure Code of Azerbaijan Republic. They shall specifically examine and confirm each ground in respect to accused and whether the evidential materials in the criminal case support them”.
In indicated decision of the Plenum of the Supreme Court of Azerbaijan Republic, the courts shall primarily examine the possibilities of ordering other restrictive measures as specified by the Article 154 of the Criminal Procedure Code of Azerbaijan Republic, and when the submission is granted they shall justify why it is not possible to apply another restrictive measure but arrest.”
In the decision of the Plenum of the Constitutional Court of Azerbaijan Republic on ‘Interpretation of Article 157.5 of the Criminal Procedure Code of the Republic of Azerbaijan” from July 9, 2010, it is indicated that everyone has right to liberty and security of person enshrined in International instruments on human rights and liberty including Article 3 of the Universal Declaration of Human Rights, Article 9 of the International Covenant on Civil and Political Rights, Article 5 of European Convention for the Protection of Human Rights and Fundamental Freedoms.
This right must be protected. This means that everyone’s right to liberty, except the cases specified in article 5, paragraph 1, of the European Convention for the protection of human rights and fundamental freedoms, must not be restricted. The list of exceptions indicated in article 5, paragraph 1, of the European Convention is restrictive and only the narrow interpretation of these restrictions is consistent with the purpose of indicated provisions.
In the decision of the Plenum of the Supreme Court of Azerbaijan Republic “On application of the precedents of the European Court of Human Rights and Fundamental freedoms” from March 30, 2009 states: in the case of the presence of the guaranty that the person will appear at the court, it is recommended to the court not to choose the preventive measure in form of arrest; to consider the preventive measure in form of arrest as a last resort measure; while choosing the preventive measure in form of arrest not to limit only to formal citation of the grounds provided by law, but to examine and confirm each ground in respect to the accused and whether the evidential materials in the case support them;
Numerous judicial precedents of the European Court of human rights (ECHR), in particular the case of Kurt V. Turkey from May 25, 1998, speak about the importance of the right to freedom. In Paragraph 122 of the ECHR decision in Kurt V. Turkey States: “The Court notes at the outset the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is precisely for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness.”http://echr.ru/documents/doc/2461485/2461485.htmhttps://www.legal-tools.org/doc/4fbf92/pdf/
As mentioned above, the decision on Azad Hasanov’s case points out on the likelihood of accused to abscond from the investigation and the court, but does not provide any specific supporting grounds. To ensure that accused won’t be able to cross the border, it is enough to take his passport away from him.
The ECHR decision in the case of Smirnov against Russia stated: “The danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre- trial detention. In this context regard must be had in particular to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts(paragraph 60 of the Smirnov V. Russia decision of 24 July 2003) . The issue of whether a period of detention is reasonable cannot be assessed in abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features.(paragraph 61 of the judgment in Smirnov V. Russia of 24 July 2003). http://echr.ru/documents/doc/new/004.htmhttp://sutyajnik.ru/rus/echr/judgments/smirnova_eng.htm The decision of Baku City Khatai District Court against Azad Hasanov on application of preventive measure in form of arrest for the period of 4 months, is unlawful and groundless, since it violated the norms of criminal procedure legislation, a number of by-laws, norms of international law, including the precedents of the European Court of Human Rights that contain mandatory recommendations for the participating countries of Council of Europe.