BEING DEPORTED FROM GERMANY THEY ARE ALMOST IMMEDIATELY JAILED IN AZERBAIJAN
Jafar Mirzoyev
Analysis of violation of law during Jafar Mirzoyev’s judicial proceedings
Baku City Court on Serious Crimes
Case №1(101)-135/2023
16 January 2023
Presiding judge: Javid Huseynov
Judges: Eldar Ismayilov, Samir Aliyev
Defendant: Jafar Mirzoyev
Defender: Nemat Karimli
The State Prosecutors: the prosecutors of the Public Prosecution Department within the Baku Court of Serious Crimes at the Prosecutor General’s Office of the Azerbaijan Republic, and the Legal Advisors, Fuad Musayev and Orkhan Mehdiyev, as well Vusal Mehraliyev, a Juris Doctor.
Jafar Mirzoyev, born in 1985, had been living in Germany from 2014 to 2021, where he had been trying to obtain a residence permit as a political emigrant. Two children of his were born in Germany. However, having failed to obtain a residency, on the basis of a readmission agreement between Germany and Azerbaijan, Mirzoyev and his family were deported to Azerbaijan on 25 November 2021.
On 27 January 2022, Jafar Mirzoyev was detained and charged with crimes 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 (AR Criminal Code). On 28 January 2022, D. Mirzoyev was charged under the above mentioned Article, and in his regard it was chosen a measure of restraint in the form of detention.
Interrogated in the course of the trial, Jafar Mirzoyev did not plead guilty to the charges and testified that prior to his journey to Germany he had not been involved in any political or social activities. But having moved to Germany, he voiced critical views about the authorities on the social networks, as well as participated in the rallies in Munich and Düsseldorf. He testified that upon his arrival in Azerbaijan he and his family had been placed in quarantine at the “Olympic Village” directly from the Baku airport, the place in which the foreigners previously arrived from abroad had been held in the time of pandemic. At that time, two officers of the Prosecutor General’s Department came to visit him and interrogated all those who had arrived from Germany. These two officers told Jafar Mirzoyev that he would soon be summoned to the Prosecutor General’s Office. Due to the fact that J. Mirzoyev hardly knew Baku, he asked them to notify him 2-3 days in advance. Following the quarantine, J. Mirzoyev went to his mother in the city of Jalilabad.
On 26 January 2022, Jafar Mirzoyev together with his family came to Baku to visit his younger brother. On 27 January 2022, he drove in his cousin’s car to a hardware store. When he entered the store, two unknown men took him under the arms, forcibly led him out of the store, handcuffed him and put in the car. Another man was waiting for them outside. J. Mirzoyev’s hands were tied behind his back, they pulled the hood of his jacket over his eyes and started beating him saying “you are speaking against the state”. According to Mirzoyev, they placed the drugs in his pocket at that very moment. The unknown offenders told him that if he agreed with what they wanted, then they would let him go. Then he was brought to the 12th Police Station of the Baku Sabunchi district. At the Station, the drugs mentioned in the indictment were taken out of his pocket. During his conversation with the Police Chief, Jafar was said that his arrest had been ordered by “the superiors”. At that moment, one of the unknown individuals said: “The boss, can bring the electrical wire?” Another asked: “How about pliers?”, and the third one suggested: “Should we take him to the basement?” Those remarks were measures of psychological pressure. Then, he was threatened with his family. The psychological pressure lasted about six or seven hours. Jafar Mirzoyev was forced to agree with their demands. Next, they caught him on a video where J. Mirzoyev said that he had found the drugs on the street but he had never used them, never sold and his only request to the Court was to restore the justice.
Questioned as a witness at the trial, Natig Isbatov, a senior operative of the Main Anti-Drug Department within the Ministry of Internal Affairs, testified that Jafar Mirzoyev had bought the drugs in Jalilabad on 27 January 2022, and then carried them on in order to sell them in Baku. Therefore, the authorities decided to create an operative-investigative group consisting of Isbatov himself, an operative Shirali Babayev and senior operative Elmir Huseynov. They were the ones who detained Jafar Mirzoyev, in whose possession they found the drugs. The witness also testified that he hadn’t had any information about J.Mirzoyev’s political activity and residence in a European country.
Elmir Huseynov, a senior operative of the Main Anti-Drug Department within the Ministry of Internal Affairs of the Azerbaijan Republic, questioned in the court as a witness, provided the same testimony.
According to the report of the forensic narcological examination from 20 April 2022, it is clear that Mr. Mirzoyev does not suffer from drug addiction, and therefore there is no need to impose on him a compulsory treatment.
The conclusion of a complex forensic-psychological and -psychiatric examinations from 25 April 2022, reveals that Jafar Mirzoyev does not suffer from any mental illness and does not have any psychological problems.
The Court considered Jafar Mirzoyev’s testimony that he had been subjected to psychological pressure and arrested because of his political views as being of a self-defence nature
The Court did not detect any aggravating circumstances in the case, and the fact that Jafar Mirzoyev has two minor children was accepted as mitigating grounds.
On 16 January 2022, the Baku Court on Serious Crimes issued a verdict against Jafar Mirzoyev. He was found guilty on the charges and sentenced to 6 years imprisonment to be served in a penal colony of general regime.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
One of the purposes of criminal proceedings are to defend individuals, society and the state against criminal attempts (Article 8.0.1 of the Code of Criminal Procedure of the Azerbaijan Republic). The other, not less important purposes are to defend individuals against abuse of power in connection with the commission of a real or possible offence (Article 8.0.2 of the Code of Criminal Procedure of the Azerbaijan Republic).
At the same time, it is necessary to ensure a defence against restrictions on human and civil rights and liberties (Article 9.1.2 of the Code of Criminal Procedure of the Azerbaijan Republic).
And most important: under the circumstances provided for in this Code, violation of the principles or conditions governing criminal proceedings may render the completed criminal proceedings invalid, cause the decisions taken during them to be annulled and deprive the evidence collected of its value (Article 9.2 of the Code of Criminal Procedure of the Azerbaijan Republic).
Despite the existence of this Norm, it is, unfortunately, a “dead” or theoretical one. The law enforcement and judicial officials, who commit numerous violations of the substantive and procedural law, often remain unpunished.
The case of Jafar Mirzoyev will not be an exception. Since 2021, eight political activists have been deported from Germany, and criminal cases have been initiated against them immediately upon their return to the country. Most of them have been already sentenced to the long-term imprisonment.
There are a lot of inconsistencies, contradictions and questions in the verdict against Jafar Mirzoyev.
According to the Article 21.3 of the Code of Criminal Procedure of the Azerbaijan Republic,
The accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defence of the suspect or the accused.
In any criminal case, an important aspect of guilt proving is an evidentiary element of the case. The evidence is recognized as credible data (information, documents, things) obtained by the court or parties involved in the criminal proceedings.
In the commented case, the evidentiary basis consists of: two witnesses’ testimonies (members of the operational-search group), the defendant’s testimony at the preliminary and court investigations, the results of forensic narcological, psychiatric and other examinations. The testimony of the accused during the preliminary investigation was that he had found the drugs in the street in Jalilabad and brought them to Baku. His testimony at the trial dramatically changes, when he says that he testified “confessionally” as a result of psychological pressure, fearing for his family as a result of real threats.
In this case, it should be noted that even if, according to the official version, Mr. Mirzoyev found the drugs somewhere, it does not indicate his involvement in the incriminated crime. In addition, Mirzoyev was deported in November 2021, and arrested two months later, in January 2022. A logical question arises – how could a man who had just arrived from Germany and received a warning from the officers of the Prosecutor General’s Office while he had been kept in quarantine ward, could have committed a criminal offence?
The most serious aspect of the criminal act under the Article 234.4.3 of Azerbaijan Republic Criminal Code is the intent to distribute. The investigative authorities could not provide the Court with sufficient evidence indicating the defendant’s intention was to sell the drugs. The investigative bodies did not establish a connection between the drugs and Jafar Mirzoyev. There is no a single word, fact, argument confirming the intention of sale in the verdict. The case proofs are so insufficient that to convict on their basis is a mere violence against the law and all its canons.
Besides, the forensic narcological examination confirmed that Jafar Mirzoyev had not been addicted to drugs.
According to the Article 124.1 of the Code of Criminal Procedure of the Azerbaijan Republic, reliable evidence obtained by the court. Such evidence:
- shall be obtained in accordance with the requirements of the Code of Criminal Procedure, without restriction of constitutional human and civil rights and liberties or with restrictions on the grounds of a court decision (on the basis of the investigator‘s decision in the urgent cases described in this Code);
- shall be produced in order to show whether or not the act was a criminal one, whether or not the act committed had the ingredients of an offence, whether or not the act was committed by the accused, whether or not he is guilty, and other circumstances essential to determining the charge correctly.
In 2001, Azerbaijan ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. Since then, the obligation to respect human rights the High Contracting Parties ensure that everyone under their jurisdiction is entitled to the rights and freedoms defined in the Convention (Article 1 of the European Convention).
However, despite the ratification of such an important document, Azerbaijan still violates the principles enshrined in the aforementioned European Convention. Thus, there were methods of psychological pressure in Jafar Mirzoyev’s case. They were so powerful that they forced Mirzoyev to make a “confession”. The use of physical and psychological coercion methods on detainees in Azerbaijan is no longer a secret to anyone. It is confirmed by the numerous decisions of the European Court of Human Rights (ECHR) against Azerbaijan on violation of the European Convention, Article 3 (prohibition of torture). Sometimes the detainees say that it is easier to endure the most brutal physical torture than when they are intimidated by the use of illegal means of physical violence against their family members, children, wives, parents, brothers, or sisters.
This very fact was the reason for Jafar Mirzoyev to change his testimony during the trial. But, despite this, the Court did not find the alteration of the testimony to be strange, in order to eliminate the contradictions or find the real reason behind it. On the contrary, the defendant’s testimony at the investigation was accepted as irrefutable, and the testimony at trial was admitted as self-protective. This is not surprising, since the practice shows that the courts do not exercise a different assessment of the change of testimony.
Jafar Mirzoyev’s accusation in the crime was not substantiated. The investigating authorities did not have sufficient evidence, and the Court, as a whole, considered the case to the extent that it was submitted by the investigators. The court verdict lacked motivation. The verdict cannot convince an outside observer that Mr. Mirzoyev really committed the incriminated crime.
In respect of Jafar Mirzoyev, it was a violation of the fundamental right in any democratic society – the Right to Freedom guaranteed by the Constitution of Azerbaijan, Article 28, as well as by the Article 5 (1) (c) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.