THE NUMEROUS ARREST OF TOFIQ YAQUBULU PROVES THE COMPLETE LACK OF FREEDOM OF SPEECH IN AZERBAIJAN
Tofiq Yaqublu
Analysis of violation of law during Tofiq Yaqublu’s judicial proceedings
Baku City Narimanov District Court
Case № 4(005)-731/2024
1 June 2024
Presiding judge: Gultakin Asadova
Defendant: Tofiq Yaqublu
Defender: Nemat Karimli
With participation of the Prosecutor’s Assistant of Narimanov district, Hamlet Huseynov
Tofiq Yaqublu, a well-known political figure in the country, joined the “Musavat” party in 1992. He was the first Deputy Head of the Executive Power of the Baku Binagadi district. He is also a veteran of the first Karabakh war.
Tofiq Yaqublu was arrested for the first time in 1998 and sentenced to 2 years imprisonment.
On 4 February 2013, he and Ilqar Mammadov, the Chairman of “REAL” party, were arrested in the course of local social disturbances in Ismayilli district of Azerbaijan. I. Mammadov was sentenced to 5 years imprisonment but on 17 March 2016, he was released according to an act of pardon.
In October 2020, T. Yaqublu was detained on an administrative case for malicious disobedience to the official request of the police officer, and sentenced to 30 days of administrative arrest.
Another criminal case against Yaqublu was initiated in 2020 under the Article “Hooliganism”, and on 3 September 2020, the Baku City Nizami District Court found T. Yaqublu guilty in committing the incriminated crime and sentenced him to 4 years of imprisonment. In his final speech, Tofig Yagublu called his case politically motivated. As a sign of protest against the verdict, he went on hunger strike. On 12 September 2020, T. Yaqublu was transferred from the detention center to the hospital due to his poor health condition. On 17th day of his hunger strike, the Baku City Court of Appeal changed Yagublu’s preventive measure to a house arrest. T. Yaqublu ceased his hunger strike, left the hospital and left to home following the Court’s ruling.
On 14 December 2023, T. Yaqublu was charged as a suspect in a criminal case initiated under the Articles 178.3.2 (Swindle, that is maintaining another persons property or buying another persons property by a deceit or breach of confidence, committed by organized group), 320.1 (Fake of certificate or other official document giving the rights or releasing from duties, with a view of its use or selling of such document, as well as manufacturing in same purposes or selling of counterfeit state awards of the Azerbaijan Republic, stamps, seals, forms) and 320.2 (Use of obviously counterfeit documents) of the Criminal Code of the Azerbaijan Republic.
On 15 December 2023, the Baku City Narimanov District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Tofiq Yaqublu in the form of detention for a period of 4 months.
On 2 April 2024, the Baku City Narimanov District Court, chaired by the Judge Hafiz Kamranov, refused to satisfy the defence’s request to replace the preventive measure of arrest with a house arrest. The term of preliminary investigation of the criminal case was extended by the Prosecutor until 11 June 2024.
On 6 April 2024, the Judge of the Baku City Narimanov District Court extended the term of T. Yaqublu’s detention for the period of investigation, i.e. until 11 June 2024.
Then, the Baku City Narimanov District Court Prosecutor’s Assistant requested the Court to extend the term of arrest until 1 July 2024.The defence in its turn has raised an objection on that point.
On 1 June 2024, the Baku City Narimanov District Court issued a ruling: to satisfy the Prosecutor’s Office submission and extend the term of T. Yaqublu’s arrest until 1 July 2024.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The Article 155 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:
- hidden from the prosecuting authority;
- obstructed the normal course of the investigation or court proceedings by illegally influencing parties to the criminal proceedings, hiding material significant to the prosecution or engaging in falsification;
- committed a further act provided for in criminal law or created a public threat;
- failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;
- prevented execution of a court judgment.
According to the Article 9 of the Code of Criminal Procedure of the Azerbaijan Republic, the basic principles and conditions governing the criminal proceedings are:
- to establish rules as a basis for criminal prosecution;
- to ensure a defence against restrictions on human and civil rights and liberties;
- determine the legality and grounds of every criminal prosecution.
Despite the existence of this provision, in practice, the Azerbaijani Courts are not usually guided by it. To neglect such an important provision leads to gross violations of human rights and fundamental freedoms. The commented case is also no exception.
As indicated above, the defence repeatedly requested the Court to replace the arrest with a house one. However, the Court dismissed the request. The investigator’s petitions and the Prosecutor’s submissions were, in their turn, fully granted by the Court.
When selecting a preventive measure, the Courts should take into account the following:
- the gravity, nature and conditions of the commission of the act imputed to the suspect or accused;
- a suspect’s or accused personality, age and health, his or her occupation, family status, financial and social situation, including the existence of dependents and the availability of a permanent place of residence;
- the commission of an offence and the imposition of a preventive measure and other relevant past circumstances;
- the presence or absence of reconciliation between the suspect or accused and the victim or his/her legal successor who is a close relative, compensation for damage caused as a result of the offence, and other relevant circumstances.
The personality of T.Yaqublu is known both inside and outside the country. He is a person characterised by strong character, indomitable will, and a sharp stance against the current Azerbaijani authorities. He was repeatedly subjected to administrative and criminal persecution, as well as torture and ill-treatment. T. Yaqublu’s personality, age and health allow the Courts to choose a preventive measure against him that is not related to arrest. However, those circumstances were not taken into account by the Courts.
The Article 159.1 of the Criminal Procedure Code of the Azerbaijan Republic states, that
at the pre-trial stage of criminal proceedings, the period of detention on remand of the accused may be prolonged by a court, depending on the complexity of the case: for those offences which do not pose a major public threat, for no longer than 1 (one) month; for minor offences, for no longer than 2 (two) months; for very offences, for no longer than 3 (three) months, and for very serious offences, for no longer than 4 (four) months.
According to the Court’s judgement, the circumstances that were taken as a ground at the time of the detention are still relevant today. The ruling states that while at liberty, T. Yaqublu could:
- to abscond from the body conducting the criminal proceedings;
- to exert unlawful pressure on the individuals involved in criminal proceedings;
- to hinder the preliminary investigation normal course by concealing materials of significance for criminal prosecution;
- to re-commit an act under the criminal Law and pose a danger to the society;
- to evade the summons issued by the investigating authority without a valid reason.
Although the above-mentioned circumstances are mentioned in the commented judgement, the Court neither pointed to any evidence nor cited any compelling arguments that would justify the application of a preventive measure in the form of arrest to T. Yaqublu and a subsequent extension of the term.
In addition, the Court disregarded the Article 159.4 of the Criminal Procedure Code of the Azerbaijan Republic, stating that when issuing an order to extend the period of detention, the Court retains the right to replace the arrest on a house arrest, as well as to consider the defendant’s release on bail and determine the bail amount.
The period of arrest is extended in case of the criminal case complicity, a large number of episodes and accused persons. The defence has repeatedly claimed that at the moment there were no investigative activities underway, which meant that keeping T.Yaqublu in custody had no legitimate objective.
The everyone’s right to liberty and personal security is guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 5(1)). This right is also enshrined in the Article 9 of the International Covenant on Civil and Political Rights.
The numerous case law of the European Court of Human Rights (ECHR) prohibits the violation of an individual’s right to liberty and security without some legal grounds.
Thus, the judgment of the ECHR in the case of Dikme v. Turkey of 11 July 2000, states,
‘The Court has reiterated on several occasions in the past that the investigation of a terrorist crime undoubtedly poses particular difficulties to the authorities. However, that does not mean that the investigative authorities have carte blanche under the Article 5 to arrest and detain suspected terrorists in order to interrogate them outside of any effective monitoring by the National Courts or the Convention authorities’. – https://hudoc.echr.coe.int/?i=001-58751
As can be seen from the ECHR ruling, even in the cases of such dangerous offences as terrorism, the investigating authorities must take into account all the circumstances proving the use of arrest and indicate the specific arguments that justified the detention of accused ones.
The ECHR case precedents indicate that the liberty of an individual should be the rule whilst deprivation of liberty pending a judicial sentence should be an exception.
ECHR case law notes that personal liberty should be the rule and deprivation of liberty pending a judicial sentence the exception.
While the suspicion that prompted the detention is a precondition for the lawfulness of a person’s custody, it is not sufficient for justification, once some time has elapsed, of prolonging this detention.
The European Convention for the Protection of Human Rights and Fundamental Freedoms requires that a pre-trial detention shall not exceed a reasonable period of time. This notion does not lend itself to abstract assessment, as the reasonableness of an accused person’s detention must be determined in each case according to the particularities of the case. The detention is justified only if there are particular grounds that reveal a public interest which, notwithstanding the presumption of innocence, overrides respect for individual liberty.
The Judgment of the ECHR in the case of Smirnov v. Russia dated 24 July 2003, is written,
«A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention». – https://hudoc.echr.coe.int/?i=001-61262
The Paragraph 61 of the same Judgment stipulates:
«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. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty». – https://hudoc.echr.coe.int/?i=001-61262
The extension of the arrest period in the case of T. Yaqublu did not comply with the provisions of both National and International Laws. His detention was unlawful and pursued an illegitimate purpose, violating the fundamental right of everyone: the Right to Liberty and Personal Inviolability, guaranteed by the Constitution of the Republic of Azerbaijan, Article 28, Article 14 of the Criminal Procedure Code of the Azerbaijan Republic, Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 9 of the International Convention on Civil and Political Rights, as well as numerous precedents of the European Court of Human Rights.