The court rejected the complaint of Abbas Huseynov about torture
by Abbas Huseynov
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.