The trial against four individuals in the so-called “Terter case”

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The trial against four individuals in the so-called “Terter case”

One of the most top-secret and bloody crimes of the Aliyev regime

 

 Vagif Aliyev Nusrat Qurbanov

Analysis of violation of law during “Terter case” judicial proceedings

Ganja City Military Court

Case № 1-1 (095)-115/2018

8 October 2018

Presiding judge: Vugar Mammadov  

Judges: Vidadi Nasirov, Salman Huseynov

Defendants: Vagif Aliyev, Nusrat Qurbanov, Suleyman Hajiyev, Seymur Hasanov

Defenders: Tunzalya Valiyeva, Jafar Hajiyev, Ramiz Abdullayev, Khalida Isayeva

The State Prosecutor: Javid Jumshudov, the Prosecutor of the Public Prosecution Department of the Military Prosecutor’s Office of the Azerbaijan Republic

 

Victims: Elkhan Niftaliyev, Murad Mammadzade, Agasamid Muradov, Adil Nasirov, Rovshan Agayev, Pasha Ordukhanov, Mushfiq Eyvazov, Farid Jabrayilli

 

Suleyman Hajiyev, born in 1997, a native of Agdjabedi District, an Azerbaijani Armed Forces soldier, was charged with committing crimes under the Articles:

• 134. (Threat to murder or causing of serious harm to health),
• 150.1. (Buggery or other actions of sexual nature),
• 150.2.4. (Buggery actions carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 274. (State betray),
• 338.1. (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state),
· 338.2. (The same act which harmed interests of state safety or has entailed to other heavy consequences) of the Criminal Code of the Azerbaijan Republic.

Seymur Hasanov, born in 1997, a native of Barda district, an Azerbaijani Armed Forces soldier, was charged with committing crimes under the Articles:

• 134. (Threat to murder or causing of serious harm to health),
• 29, 150.1 (Attempt to commit violent acts of a sexual nature),
• 150.2.1. (Buggery or other actions of sexual nature, committed by a group of persons, by a group with a premeditated conspiracy or by an organized group),
• 150.2.4. (Buggery actions of sexual nature, carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 150.2.5. (Buggery actions of sexual nature, committed repeatedly),
• 182.2.1. (Extortion, committed on preliminary arrangement by group of persons),
• 182.2.2. (Extortion, committed repeatedly),
• 228.2.1. (Illegal purchase, transfer, selling, storage, transportation and carrying of fire-arms, accessories to it, supplies, explosives, committed on preliminary arrangement by group of persons),
• 274. (State betray)
• 332.2.1. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed repeatedly),
• 332.2.2. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed concerning two or more persons),
• 332.2.3. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed by group of persons, on preliminary arrangement by group of persons or by organized group),
• 332.2.4. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed with application of a weapon),
• 332.3. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed entailed to heavy consequences),
• 333.6. (Autocratic leaving of military unit or place of service committed in wartime or fighting conditions),
• 338.1. (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state),
• 338.2. (The same act which harmed interests of state safety or has entailed to other heavy consequences),
• 32.5, 341.3 (Complicity in abuse of authority or official position committed in wartime or during combat) of the Criminal Code of the Azerbaijan Republic.

Vagif Aliyev, born in 1997, a native of Baku City, an Azerbaijani Armed Forces soldier, was charged with committing crimes under the Articles:

• 29, 150.1 (Attempt to commit violent acts of a sexual nature),
• 150.2.1. (Buggery or other actions of sexual nature, committed by a group of persons, by a group with a premeditated conspiracy or by an organized group),
• 150.2.4. (Buggery actions of sexual nature, carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 150.2.5. (Buggery actions of sexual nature, committed repeatedly),
• 182.2.1. (Extortion, committed on preliminary arrangement by group of persons),
• 182.2.2. (Extortion, committed repeatedly),
• 182.2.3. (Extortion, committed with application of violence),
• 274. (State betray),
• 332.2.1. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed repeatedly),
• 332.2.3. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed by group of persons, on preliminary arrangement by group of persons or by organized group),
• 332.2.4. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed with application of a weapon),
• 332.3. (Infringement of authorized rules on mutual relation between military men at absence of subordination relations, committed entailed to heavy consequences),
• 338.2. (The same act which harmed interests of state safety or has entailed to other heavy consequences),
• 32.5, 341.3 (Complicity in abuse of authority or official position committed in wartime or during combat) of the Criminal Code of the Azerbaijan Republic.

Nusrat Qurbanov, born in 1993, a native of Agstafa District, an Azerbaijani Armed Forces junior sergeant, was charged with committing crimes under the Articles:

• 134. (Threat to murder or causing of serious harm to health)
• 150.2.1. (Buggery or other actions of sexual nature, committed by a group of persons, by a group with a premeditated conspiracy or by an organized group),
• 150.2.4. (Buggery actions of sexual nature, carried out with a particular cruelty against the victim (male, female) or against other individuals),
• 228.2.1. (Illegal purchase, transfer, selling, storage, transportation and carrying of fire-arms, accessories to it, supplies, explosives, committed on preliminary arrangement by group of persons),
• 228.2.2 (Illegal purchase, transfer, selling, storage, transportation and carrying of fire-arms, accessories to it, supplies, explosives, committed repeatedly),
• 232.2.2. (Plunder or extortion of fire-arms, accessories to it, supplies or explosives, committed repeatedly),
• 232.2.3. (Plunder or extortion of fire-arms, accessories to it, supplies or explosives, committed on preliminary arrangement by group of persons),
• 274. (State betray),
• 338.1. (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state),
• 32.5, 341.3 (Complicity in abuse of authority or official position committed in wartime or during combat) of the Criminal Code of the Azerbaijan Republic.

Suleyman Hajiyev

On 10 June 2017, Suleyman Hajiyev was detained by a court order, against him it was chosen a preventive measure in the form of custody. According to the investigation, in May 2017, some Armenian Armed Forces and Intelligence Services representatives, along with the Azerbaijani Armed Forces servicemen, Suleyman Hajiyev and Vagif Aliyev, committed sexual assaults against the junior sergeant Nusrat Qurbanov. It has been video footage capturing those violations. By blackmailing three Azerbaijani servicemen with the publication of those videos on social networks, the Armenians forced the Azerbaijani servicemen for cooperation.

Moreover, the indictment stated that Suleyman Hajiyev had passed information comprising military secrets to the Armenian side.

On 10 June 2017, a forensic medical examination was conducted with regard to Suleyman Hajiyev, which revealed no traces of bodily injuries. In the course of the examination, the typical injuries on S. Hajiyev’s anus testifying evidence of sexual violence were found. On 25 June 2017, as a result of the second forensic examination, it was concluded that S. Hajiyev had not suffered from any venereal disease or immunodeficiency virus.

On 12 June 2017, Suleyman Hajiyev pleaded guilty during the preliminary investigation. However, in the course of the trial he did not plead guilty under the Articles 134, 150.2.1, 150.2.4, 274, 332.3, 338.2 of the AR Criminal Code, and testified that he had pleaded guilty only under the Article 338.1 (Infringement of rules on implementing fighting watch (fighting service) on duly detection and reflection of sudden attack on the Azerbaijan Republic or maintenance of its safety if this act could harm interests of safety of the state)
of the AR Criminal Code as he had fallen asleep at the guard post when the Lt. Huseyn Akbarli found him sleeping at 3 AM at the post. While answering the prosecution and defence parties’ questions at the trial, Suleyman Hajiyev said that he had had no contact with the enemy side throughout his service and he had not handed over Seymur Hasanov to the Armenian soldiers. Suleiman Hajiyev also testified that he had been subjected to torture by the investigating body and forced to provide false confessions under the torture on 12 June 2017.

Seymur Hasanov

Seymur Hasanov was detained on 10 June 2017. According to a court order, a measure of restraint in the form of detention was applied to Mr. Hasanov. The investigators believed that Seymur Hasanov colluded with the Armenian Intelligence officers from mid-April to mid-May 2017, and committed violent acts of a sexual nature against the Azerbaijani soldiers; he had also provided the Armenian side with the Azerbaijani military secrets, thereby inflicting damage to the territorial integrity and sovereignty of the Azerbaijan Republic.

According to the investigation, the soldier Suleyman Hajiyev escorted Seymur Hasanov to the toilet where he put a gun to Seymur’s head. At that moment, three men dressed in black, the soldiers of the Armenian army, whose identities have not been established, approached Hasanov and led him blindfolded to a neutral territory. There, Seymur Hasanov saw about 10 Armenian soldiers, one of whom committed violent acts of a sexual nature against S. Hasanov. The violence was captured on video. He was threatened with the distribution of the video on social networks, after which he agreed to cooperate with the Armenian Intelligence services. Seymur Hasanov was assigned to engage other Azerbaijani soldiers for cooperation. He managed to do it. The same way, the soldier Vagif Aliyev was involved in cooperation with the Armenians.

On 10 June 2017, Seymur Hasanov was undergoing a forensic medical examination, as a result of which, it was not found any injuries on Hasanov’s body. But in the course of the examination, it was determined that S. Hasanov’s anus revealed distinctive injuries indicating sexual assault.

A second forensic medical examination conducted on July 20, 2017, did not determine either any skin and venereal diseases or immunodeficiency virus on Hasanov’s body.

At the trial, Seymur Hasanov did not plead guilty to the crimes under the Articles 134, 29,150.1, 150.2.1, 150.2.4, 150.2.5, 182.2.1, 182.2.2, 182.2.3, 228.2.1, 274, 332.2.1, 332.2.2, 332.2.3, 332.2.4, 332.3, 333.6, 338.2 and 341 of the Criminal Code. S. Hasanov just pleaded guilty to committing the deed under the Article 338.1. of the AR Criminal Code. He testified that he had fallen asleep at the post in April 2017 and had been awakened by mad dogs that he had been forced to kill with his own weapon. He did not plead to the rest of the charges.

At the court interrogation, Seymur Hasanov testified that he was subjected to violence by the investigating officers during the preliminary investigation; he had been severely beaten following which he admitted guilt on 12 June 2017.

Vagif Aliyev

Vagif Aliyev was detained on 7 June 2017. According to a court order, he was placed in custody as a preventive measure. According to the investigation, V. Aliyev entered into a criminal conspiracy with the Intelligence officers and soldiers of the Armenian Armed Forces from mid-April to mid-May 2017. He made a commitment to engage other soldiers as collaborators. V. Aliyev also transmitted information constituting the military secrets to the Armenian Special services, thereby harming the territorial integrity and sovereignty of the Azerbaijan Republic.

In May 2017, the commander ordered Vagif Aliyev along with Seymur Hasanov to a combat post to cut grass. S. Hasanov, who had already been cooperating with the Armenian Special Services, handed V. Aliyev over to the enemy. S. Hasanov tricked V. Aliyev into the neutral ground, then he pressured V. Aliyev to surrender his weapons, but V. Aliyev refused to do so. S. Hasanov forcefully took away V. Aliyev’s weapon and made him go further. On neutral territory, Seymur Hasanov pointed a gun at Vagif Aliyev and said that if Aliyev would not collaborate with the Armenian Services, he would kill him and all members of Vagif’s family. V. Aliyev agreed.

С. Hasanov and V. Aliyev left the combat post and went to the territory located near the enemy’s posts. There, S. Hasanov surrendered V. Aliyev to four Armenian soldiers. In order to break V. Aliyev’s will, Armenian soldiers pushed him down on the ground, pointed weapons at him and threatened to rape his sister and kill all members of his family. One of the Armenian soldiers raped V. Aliyev in his mouth. It was videotaped. V. Aliyev was told that if he was not going to cooperate with the Armenian Special Services, the video would be spread on social networks. В. Aliyev agreed to, and provided the Armenian side with the information constituting a military secret causing thereby damage to the territorial integrity and sovereignty of the Azerbaijan Republic.

On 10 June 2017, in relation to Vagif Aliyev, it was carried out a forensic medical examination, which did not detect any lesions on V. Aliyev’s body.

The second forensic medical examination on 21 July 2017, found neither pathologies on the male genitals, nor skin, venereal diseases nor immunodeficiency virus.

At the trial, Vagif Aliyev did not plead guilty to the crimes under the Articles 29,150.1, 150.2.1, 150.2.5, 182.2.1, 182.2.2, 182.2.3, 274, 332.2.1, 332.2.2, 332.2.3, 332.2.4, 332.3, 333.6, 338.2 and 341 of the Criminal Code of the Azerbaijan Republic. He pleaded guilty to committing an offence under the Article 338.1 of the Criminal Code of the Azerbaijan Republic, and testified that he had fallen asleep while on combat duty in April 2017, but, in May 2017, he did not commit the crimes incriminated against him.

At the interrogation in the course of the judicial investigation, V. Aliyev testified that he had been subjected to forced actions by the investigating officers; a taser had been applied to his legs, after such a torture he was forced to testify against himself on 9 June 2017.

Nusrat Qurbanov

Nusrat Qurbanov was detained on 7 June 2017. The court ordered a preventive measure in the form of custody. According to the investigation, Nusrat Qurbanov entered into criminal agreement with the employees of the Armenian Special Services and Armed Forces. In May 2017, the soldiers Seymur Hasanov and Vagif Aliyev decided to hand him over to the enemy in order to engage him in cooperation with the Armenian Special Services. S. Hasanov and V. Aliyev, being aware of N. Qurbanov’s difficult financial situation, offered him to collaborate with the Armenians for money. Nusrat Qurbanov accepted their offer. He passed the Armenians the military information constituting secrets, therefore damaging the territorial integrity and sovereignty of the Azerbaijan Republic.

N. Qurbanov became a member of the criminal group. In May 2017, Seymur Hasanov and Vagif Aliyev took N. Qurbanov to the neutral territory and handed him over to the Armenian soldiers. There, four military men dressed in black, whose identities have not been established by the investigation, picked up Nusrat Qurbanov from S. Hasanov and V. Aliyev. In order to maintain N. Qurbanov in a dependent position, one of the Armenian military committed sexual assault against N. Qurbanov by penetrating into his anus. It were videotaped. The Armenian military paid to S. Hasanov $500 for engaging N. Qurbanov in cooperation.

On 2 July 2017, there was a forensic medical examination carried out on N. Qurbanov, which revealed no injuries on his body. A forensic medical examination conducted on 25 December 2017, concluded that there were not detected any skin, venereal diseases and immunodeficiency virus affecting N. Qurbanov.
At the trial, Nusrat Qurbanov did not plead guilty to the crimes under the Articles 134, 150.2.1, 150.2.4, 274, 332.2.3, 338.2 and 341 of the Criminal Code of the Azerbaijan Republic.

He pleaded guilty to committing acts under the Articles 228.2.1, 228.2.2, 232.2.2 and 232.2.3 of the Criminal Code of the Azerbaijan Republic, and testified that he had left a few Armenian bullets in his possession but had not informed the Azerbaijani superiors. In April 2017, together with Seymur Hasanov, they put these bullets in a box and buried them in the ground. The aim was to use the bullets against the Armenian military.

When answering questions at the judicial investigation, N. Qurbanov testified that his confession had been obtained by the investigating body through the use of torture on 9 June 2017. He also indicated that he had not committed the incriminated crimes.

In the course of the trial, the following victims were questioned: Rovshan Agayev, Farid Jabrayilli, Pasha Ordukhanov, Agasemid Muradov, Mushfiq Eyvazov, Murad Mammadzade, Aqil Nasirov and Elkhan Niftaliyev. Also witnesses: Khalid Valiyev, Ahmad Ahmadzade, Kamaladdin Hasanli, Elchin Aslanzade, Kamil Aliyev, Fazil Mirzoyev, Jalal Shahverdiyev, Anar Sadiqov, Natiq Israfilov, Aqshin Jafarov, Ismikhan Madatov, Mirsultan Zahidov and Tarlan Mammadov.

Assessment of the court

The court considered the witnesses’ testimonies provided to the prosecution as irrefutable, whereas the testimonies given by the witnesses in defence of the accused were regarded as defensive statements with respect to the fellow servicemen. Thus, the witness, Ismikhan Madatov, did not provide accusatory testimony, and the court assessed his testimony as having the nature of protection, since the accused and Madatov were serving together.

In accordance with the ruling of the Ganja Military Court on 8 October 2018, the State Prosecutor dropped the charges against Vagif Aliyev under the Article 134 of the AR Criminal Code, therefore, the court did not consider the case with regard to that Article.

The State Prosecutor suggested the court to reclassify some Articles incriminated to the accused. In his speech, he demanded: in respect of Seymur Hasanov and Vagif Aliyev, the Articles 150.2.1 and 150.2.4 to the Articles 32.3, 150.2.1, 32.3, 150.2.4 of the AR Criminal Code. In respect of Suleyman Hajiyev, the Articles 150.2.1 to Articles 32.3, 150.2.4 of the Criminal Code of the Azerbaijan Republic; the charges against Suleyman Hajiyev under the Article 150.2.1 – to the Article 32.3,150.2.1 and the Article 150.2.4 to Article 32.3,150.2.4 of the Criminal Code of the Azerbaijan Republic; in respect of Nusrat Qurbanov – the Article 150.2.1 to the Article 32.3,150.2.1 and the Article 150.2.4 to the Article 32.3,150.2.4. The court approved the Prosecutor’s suggestion and reclassified the Articles.

The court pointed out that it takes into account the nature of the criminal offenses, aggravating circumstances, as well as the lack of mitigating evidence in imposing punishment. The Court concluded that the accused must be isolated from the society. In imposing punishment, the Court also considered the impact of the accused punishments on their families.

On 8 October 2018, the Ganja City Military Court issued a verdict against four soldiers of the Azerbaijani Armed Forces:

• Suleyman Hajiyev was found guilty of committing crimes under the Articles 134, 32.3,150.2.1, 32.3,150.2.4, 274, 332.3, 338.1 and 338.2 of the Criminal Code of the Azerbaijan Republic and was sentenced to 14 years of imprisonment. According to the verdict, the first 5 years, he should spend in an indoor prison (in Gobustan), and the rest of the sentence he would be sent to a high-security institution;
• Seymur Hasanov was found guilty of committing crimes under the Articles 134, 29,150.1, 32.3,150.2.1, 150.2.4, 150.2.5, 182.2.1, 182.2.2, 182.2.3, 228.1.1, 274, 332.2.1, 332.2.2, 332.2.3, 332.2.4, 332.3, 333.6, 338.1, 338.2 and 341.3 of the Criminal Code of the Azerbaijan Republic and was sentenced to 15 years of imprisonment. According to the verdict, the first 5 years, he should spend in an indoor prison (in Gobustan), and the rest of the sentence he would be sent to a high-security institution;
• Vagif Aliyev was found guilty of committing crimes under the Articles 32.3,150.2.1, 150.2.4, 150.2.5, 182.2.1, 182.2.2, 182.2.3, 274, 332.2.1, 332.2.2, 332.2.3, 332.2.4, 332.3, 333.6, 338.1, 338.2 and 341.3 of the Criminal Code of the Azerbaijan Republic and was sentenced to 16 years of imprisonment. According to the verdict, the first 5 years, he should spend in an indoor prison (in Gobustan), and the rest of the sentence he would be sent to a high-security institution;
• Nusrat Qurbanov was found guilty of committing crimes under the Articles 134, 32.3,150.2.1, 32.3,150.2.4, 228.2.1, 228.2.2, 232.2.2, 232.2.3, 274, 32.5,332.3, 338.1, 338.2 and 341.3 of the Criminal Code of the Azerbaijan Republic and was sentenced to 16 years of imprisonment. According to the verdict, the first 5 years, he should spend in an indoor prison (in Gobustan), and the rest of the sentence he would be sent to a high-security institution;

Commentary by expert lawyer:
A court decision is illegal and unjustified. The evidentiary basis of the criminal case consists of the victims’ and witnesses’ testimonies, a number of forensic medical examinations and various certificates of the State structures. A number of victims and witnesses were servicemen of the Azerbaijani Armed Forces. The forensic medical examinations were conducted within the same institution that has the right to conduct such examinations, the Center for Forensic Examinations of the AR Ministry of Justice. All the incriminating testimonies of the victims and witnesses were recognized by the Court as irrefutable, although the victims and witnesses, all without exception, were servicemen, who were subordinated to the command, which means that all of them depended on the command. As for the Center for Forensic Examinations, it is the only structure authorized to conduct expertise, the results of which are approved by the local courts. By law, there is no any other entity in the country conducting an independent expertise, the results of which could be approved by the court. As mentioned above, the Center of Forensic Expertise is subordinated by the Ministry of Justice of the Azerbaijan Republic. The testimony of one witness in favor of the accused was regarded by the court as having the nature of protection of his fellow serviceman. That testimony was not taken into account by the court.
Also, the Court did not consider the defendants’ testimonies about the tortures and inhuman treatment they had been subjected to. The Court took into account the testimonies of the defendants given under torture during the investigation period. The Court did not specify in the verdict why they accepted as irrefutable the testimonies given during the pre-trial investigation rather than the testimonies given at the trial.
One of the principles of criminal procedure is the principle of respect for a person’s dignity and honour. According to the Article 13 of the Code of Criminal Procedure of the Azerbaijan Republic,

13.1. It shall be prohibited to take decisions or allow acts during the criminal
prosecution which debase the honour and dignity of the person or may threaten the life
and health of the participants in the proceedings.
13.2. During a criminal prosecution nobody shall:
13.2.1. be subjected to treatment or punishment that debases human dignity;
13.2.2. be held in conditions that debase human dignity;
13.2.3. be forced to participate in carrying out procedures that debase human dignity.

The defendants were detained in June 2017, whereas the forensic medical examinations to determine the presence or absence of injuries related to torture claims were conducted only in December 2017. This is a sufficient period of time for disappearing or becoming unnoticeable traces of torture.
Besides, the Court did not explain the reason why the accused pleaded guilty to the charges during the pre-trial investigation, but withdrew their confessions at the trial.

According to the Article 15 of the Code of Criminal Procedure of the Azerbaijan Republic,

15.2. During the criminal prosecution the following shall be prohibited:
15.2.1. the use of torture and physical and psychological force, including the use of
medication, withdrawal of food, hypnosis, deprivation of medical aid and the use of
other cruel, inhuman or degrading treatment and punishment;
15.2.2. the imposition of long-term or severe physical pain or acts which are detrimental
to health, or any similar ill-treatment;
15.2.3. taking evidence from victims, suspects or accused persons or from other
participants in the criminal proceedings using violence, threats, deceit or by other
unlawful acts which violate their rights.

The Article 33.4 of the Code of Criminal Procedure of the Azerbaijan Republic states:

Judges and jurors may not regard evidence or other materials unfavourably, or
attach more importance to one piece of evidence or other item than to another, until
they are examined under the statutory procedure.

In the course of the trial, the involvement of each defendant in the criminal activity was not proved. The evidences were oblique and did not indicate the actual perpetration of the criminal deeds by each of the defendants.
According to the Article 124 of the Code of Criminal Procedure of the Azerbaijan Republic,

124.1. Reliable evidence (information, documents, other items) obtained by the court or the parties to criminal proceedings shall be considered as prosecution evidence. Such evidence:

124.1.1. 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);
124.1.2. 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.

In criminal proceedings, it shall be unlawful to accept as evidence any information, documents and things that have been obtained:
· with deprivation or restriction of the rights of the participants in criminal proceedings guaranteed by Law, or in violation of constitutional rights and freedoms of man and citizen as well as other requirements of the present Code, which shall or may affect the validity of this evidence;
· with the use of violence, threat, deception, torture and other cruel, inhuman or dignified actions (Article 125.2, 125.2.1, 125.2.2. of the Code of Criminal Procedure of the Azerbaijan Republic).

However, the court paid more attention to the defendants’ testimonies taken in the course of the investigation rather than during the trial. The testimonies received during the investigation match the indictment and are automatically rewritten down from it. The testimonies given before the court are brief and vague.
According to the European Prison Rules, adopted by the Committee of Ministers of the Council of Europe on 12 February 1987, there are fundamental principles of the detention of prisoners. Paragraph 1 of the Rules states, “Deprivation of liberty shall be in conditions of detention and in an atmosphere of morality, which ensure respect for human dignity and are consistent with these Rules.”

According to the UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), all prisoners should be treated with respect for their inherent dignity and value as human beings. No prisoner shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment, all prisoners shall be protected against it, and no circumstances whatsoever may be invoked as justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times.

The use of torture and inhuman treatment is also prohibited by the Article 46 of the Azerbaijan Republic Constitution,

III. Nobody must be subject to tortures and torment, treatment or punishment humiliating the dignity of human beings.

The prohibition of torture and inhuman treatment is regulated by the International Norms. For example, the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 3) prohibits torture. This Article is always in force, even during the fight against the Mafia, organized crime or in times of war.

The absolute nature of the guarantees is strengthened by the fact that actions reproached against the victim, no matter how unacceptable or dangerous they may be, cannot in any way justify any infringement. In short, it is dignity and physical integrity of the individual that this rule sought to protect. In order for mistreatment of a person constitutes a violation of the Article 3, it must meet the minimum level of severity… Thus, if an individual alleges in his defense that he has been subjected to the treatment provided under the norm in question, an effective official investigation must be carried out in order to identify those responsible and punish them. – (Precedents of the European Court of Human Rights, Michele de Salvia, St. Petersburg, 2004).
Torture is also prohibited by the Article 5 of the Universal Declaration of Human Rights and the Article 7 of the International Covenant on Civil and Political Rights.
One of the most serious charges brought against the military is the charge of treason, the Article 274 of the Criminal Code of the Azerbaijan Republic. It is contained in the charges against all four defendants.
State betray, that is deliberately action committed by a citizen of the Azerbaijan Republic to detriment of the sovereignty, territorial integrity, state security or defensibility of the Azerbaijan Republic: changeover to enemy side, espionage, distribution of the state secret to foreign state, rendering assistance to a foreign state, foreign organization or their representatives in realization of hostile activity against the Azerbaijan Republic.
In order to comprehend what constitutes state treason, it is necessary to examine the corpus delicti. The subject of high treason is the information that constitutes a state secret.
The objective side consists of high treason that includes the following alternative actions:
– espionage is the collection, transfer, theft or storage of information constituting a state secret in order to transmit it to a foreign state, organization or their representatives, as well as the transfer or gathering of other information on behalf of foreign intelligence for its use to the disadvantage of the country’s national security;
– disclosure of a state secret – the intentional transfer to a foreign state, organization or their representatives of the data protected by the state in the area of its military, foreign policy, economic, intelligence, counterintelligence and investigative activities, the spread of which could harm the security of the country;
– any other assistance to a foreign state, organization or their representatives in carrying out any hostile activities to the disadvantage of the external security of the country – committing any actions that harm the external security of the country, but which do not fall under the concept of the disclosure of state secrets or espionage.
Subjective side is deliberate direct intent.
The subject of the crime is a citizen of the Azerbaijan Republic who has reached the age of 16.
As it is shown in the Article 274 of the Criminal Code of the Azerbaijan Republic, it contains several attributes. The court verdict does not specify what particular attribute occurs in the action of this or that defendant. For instance:
▪ Whether the act was committed at the expense of sovereignty,
▪ Territorial integrity,
▪ National security or
▪ Defence capacity of the Azerbaijan Republic,
▪ Whether there has been a defection to the enemy side,
▪ Espionage,
▪ Release of a State secret to a foreign State,
▪ Assisting a foreign state, organization or their representatives in carrying out hostile activities against the Azerbaijan Republic

What exactly is the guilt of each defendant accused of committing a crime under the Article 274 of the Criminal Code, namely, whether the person committed treason, espionage, or disclosed the State secrets to a foreign State, the sentence does not specify. The verdict is based on all the listed attributes, which raises doubts about the accusations legitimacy.
The verdict states that the accused handed over to the Armenian military the data constituting a military secret. Let us examine what data constitute military secrets according to the law.
In the Article 5.1 of the Law of the Azerbaijan Republic “On State Secrets” states:
5.1. The State secrets in the military sector are as follows:
5.1.1. the content of strategic and operational plans, the documents of operational department on preparation and conduct of military operations, strategic, operational and mobilization deployment of the Armed Forces of the Azerbaijan Republic, other armed formations, other troops stipulated by the legislation, their combat and mobilization readiness, creation and use of mobilization resources;
5.1.2. on the plans for the construction of the armed forces and other armed formations provided for in the legislation of the Azerbaijan Republic, on directions for the development of armaments and military equipment, on the content and results of the implementation of targeted programmes, and on research and development work to create and modernize the patterns of armaments and military equipment;
5.1.3. the tactical and technical characteristics, and combat capabilities of weapons and military equipment, properties, the formulas or technologies, and production of new types of the military purpose;
5.1.4. the location, designation, degree of readiness, security of the facilities of particular national security and defensibility, their construction and operation, as well as the allocation of land, resources and coastal and offshore areas for these facilities;
5.1.5. the location, the effective renaming, the organizational structure, the number of personnel and their combat support, as well as the military, political or operational situation;
5.1.6. the coordinates of geodetic points and geographical targets of the significant defense and economic importance within the territory of Azerbaijan.
Based on the verdict, it is not clear to whom, how, when and where the confidential information had been transferred, whether the accused possessed the kind of secret information which he allegedly shared with the military personnel of a foreign country, and whether that information was subject to classification, and if so, who ordered its disclosure, etc. There are many questions, but the verdict does not provide any answers. There is no motivated indictment, which is necessary for the verdict to be acknowledged as legitimate and well-founded. The indictments in the verdict are listed by default and consist of formal expressions used in the criminal law.
The right to freedom is a fundamental right in a democratic society. According to the Article 28 of the Constitution of the Azerbaijan Republic,

I. Everyone has the right for freedom.
II. Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.

The right to freedom is one of the fundamental human rights guaranteed also by the international law provisions. According to the Article 5 (1) of the European Convention on Human Rights,
1. 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:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
This list of restrictions is exhaustive. The deprivation of liberty must also be lawful, i.e. it must correspond to the purpose provided for by one of the instances on this list. This Article’s essence is the individual’s physical freedom. It enshrines a basic human right, namely, the protection of everyone from arbitrary interference of the State in his right to liberty.
The European Convention for the Protection of Human Rights and Fundamental Freedoms stipulates, in Article 5 (1), that only a reasonable suspicion of a person having committed a criminal offence can justify deprivation of liberty. Therefore, the existence of a reasonable suspicion is an essential element of the protection against arbitrary deprivation of liberty. The existence of a reasonable suspicion presupposes the existence of facts or information that could persuade an objective observer that a person could have committed the offence. What counts as justified depends on the set of circumstances.

The Universal Declaration of Human Rights also protects the right to freedom. According to the Article 9 of the Universal Declaration of Human Rights, no one shall be subjected to arbitrary arrest, detention or exile.

In the case Wloch v. Poland of May 10, 2011, the European Court of Human Rights (ECHR), the paragraph 109, it is said “Apart from the factual aspect, the existence of a ‘reasonable suspicion’ within the meaning of Article 5 § 1 (c) is required for the sufficient amount of facts in order to refer to one of the sections of the Criminal Code concerning the criminal conduct. Thus, it is obvious that suspicion is not justified if actions or facts alleged to a prisoner in custody were not constituting an offence at the time they were committed. In the case in question, it must be established whether the detention was “lawful” within the meaning of Article 5 § 1 (c) of the Convention. The Convention refers mainly to the National Law, but, moreover, it requires any measure of deprivation of liberty to be compatible with the purpose of Article 5 – protection of the individual against arbitrariness”.
https://www.menschenrechte.ac.at/orig/11_3/Wloch.pdf
https://www.echr.coe.int/documents/guide_art_5_eng.pdf

The absence of the evidence basis for the accusation, insufficient amount of the proofs, lack of the direct and clear-cut evidence against the accused, and the failure of the court considering the criminal case have resulted in the gross violation of the serviceman’s right to freedom guaranteed by the Constitution of the Azerbaijan Republic, and by other national laws, as well as by the norms of the International Law, International Treaties and Practice of the European Court of Human Rights.