IN THE COURSE OF TWO YEARS, THE CHARGES AGAINST BAKHTIYAR HAJIYEV HAVE BEEN INITIATED SIX TIMES AND SUSPENDED FIVE TIMES…
Bakhtiyar Hajiyev
Analysis of violation of law during Bakhtiyar Hajiyev’s judicial proceedings
Baku City Khatai District Court
Case №4(011)-638/2022
9 December 2022
Presiding judge: Fuad Akhundov
Defendant: Bakhtiyar Hajiyev
Defender: Aqil Lahij
With the participation of: Samir Ismayilov, the Police Major, Senior Investigator of the Serious Crimes Investigation Department at the Baku City Police Headquarters and Abulfaz Huseynov, the Prosecutor of the Supervision over the execution of laws relating to investigation, inquiry and operational-investigative activities of the Baku City Prosecutor’s Office.
Bakhtiyar Hajiyev was born in 1982, and he finished the private Turkish lycée with a gold medal in 2000. In 2004, he graduated from the Faculty of Mathematics and Cybernetics of the Baku State University. In 2006, Hajiyev obtained his Master Degree at the Khazar University. In 2009, he completed his Master Degree in Public Policy at Harvard University (USA).
B. Hajiyev was a candidate for the 2010 Parliamentary elections. On 27 January 2011, the General Prosecutor’s Office of the Azerbaijan Republic launched a criminal case against him under the Article 321.1 (Evasion without the lawful grounds from next appeal on military service or from an appeal on mobilization, with a purpose of evasion from serving in military) of the Criminal Code of the Azerbaijan Republic. In May 2011, the Ganja District Court sentenced B. Hajiyev to two-years-imprisonment. In 2012, the Supreme Court of the Azerbaijan Republic ruled to change the actual term of imprisonment to a suspended one, and B. Hajiyev was released.
Bakhtiyar Hajiyev actively participated in the socio-political life of the country, wrote harsh critical posts on social networks, and took part in the protests. He has been repeatedly detained and subjected to physical pressure.
On 9 December 2022, Bakhtiyar Hajiyev was charged under the Articles 221.1 (Hooliganism) and 289.1 (Disrespect to court) of the Criminal Code of the Azerbaijan Republic.
He was accused of having physically assaulted Ulviya Muradova (Alovlu), a journalist, and at the same time disrespecting the Judge, Court Secretary, opposing counsel, and bailiff in the courtroom of the Baku City Yasamal District Court on 15 October 2021.
It should be pointed out that the very same day, the Baku City Yasamal District Court was considering a criminal case against B. Hajiyev upon a complaint filed by Ulviya Huseynova. The case was filed under the Articles 147.2 (The slander, which is connected with accusation of committing serious or especially serious crime) and 148 (Insult) of the Criminal Code of the Azerbaijan Republic. The Court acknowledged the complaint, while a similar complaint by B. Hajiyev against U. Huseynova had been dismissed by the Court.
On 18 October 2021, the Baku Police Headquarters initiated a criminal case against Bakhtiyar Hajiyev under the Articles 221.1 and 289.1 of the Criminal Code of the Azerbaijan Republic. On 1 December 2021, the proceedings against him were suspended, and on 10 February 2022, the case was once again resumed. On 23 February 2022, Ilqar Abbasov, the Prosecutor of Baku City extended the preliminary investigation from 2 to 4 months. On 25 February 2022, the proceedings in the case were again suspended, and resumed on 19 March 2022.
But the same day, on 19 March 2022, the proceedings in the case were once again halted. On 15 July 2022, the Baku City Khatai District Court upheld the ruling on termination of the criminal case dated 19 March 2022. On 19 August 2022, the Baku Court of Appeal issued an order on annulment of the order on termination of the criminal case dated 19 March 2022, and issued an order on assigning the criminal case to the Investigation and Inquiry Department of the Baku City Main Police Department.
On 5 September 2022, the proceedings were suspended once again, and on 24 October 2022, they were resumed but suspended the very same day. On 7 December 2022, the Baku City Prosecutor’s Office annulled the order to suspend the criminal case from 24 October 2022.
On 9 December 2022, the Baku City Khatai District Court issued a ruling: to apply a preventive measure against B. Hajiyev in the form of detention for a period of 1 month and 20 days. The same court decision ordered to place the accused into the Baku Investigative Isolator of the Ministry of Justice Penitentiary Service of the Azerbaijan Republic.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
First, let us review the provisions of the Articles under which B. Hajiyev was accused of the crime.
Thus, the crime specified in the Article 221.1 of the Criminal Code of the Azerbaijan Republic stipulates a penalty in the form of
“a fine at the rate of one thousand to three thousand manats or corrective work for up to one year, or restraint of freedom (see) for the term up to one year, or imprisonment for the term up to one year”.
For the crime specified in the Article 289.1 of the Criminal Code of the Azerbaijan Republic stipulates a penalty in the form of
“from five hundred to one thousand manats or public works for the term of from three hundred twenty up to four hundred hours, or imprisonment for the term about six months”.
According to both Articles, there are alternative punishments instead of arrest. Furthermore, both Articles are not considered to be serious offenses. Yet, despite that, the Court has chosen the harshest measure of restraint in the form of arrest.
The Article 155.1 of the Criminal Procedure Code of the Azerbaijan Republic provides the grounds for choosing such a measure as a detention. This is:
⦁ 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.
In addition, the Article 155.2 of the Criminal Procedure Code of the Azerbaijan Republic states, that in resolving the question of the necessity for a restrictive measure and which of them to apply to the specific suspect or accused, the preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court shall bear in mind:
⦁ the seriousness and nature of the offence with which the suspect or accused is charged and the conditions in which it was committed;
⦁ his personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence;
⦁ whether he has committed a previous offence, the previous choice of restrictive measure and other significant facts.
It is clearly set forth in the aforementioned Articles that a preventive measure may be imposed only if there are sufficient grounds to believe that the suspect or accused has committed the actions described in the Articles.
The Court justified the choice of preventive measure in the form of arrest in its ruling:
⦁ the nature of the committed offence;
⦁ the chance of concealment from the authority conducting the criminal proceedings;
⦁ the probability of evading criminal liability;
⦁ the likelihood of committing a new criminal offence;
⦁ the obstruction of the preliminary investigation or trial normal course of the proceedings, with unlawful pressure on those involved in the criminal procedure, as well as;
⦁ being charged under two other Articles of the Criminal Code.
As an argument, the Court mentioned that in 2010, in order to avoid military service, B. Hajiyev attempted to cross the border of the Azerbaijan Republic to Georgia but he was detained at a border checkpoint.
Further, it is stated that there are real concerns that B. Hajiyev may exert pressure on the officials involved in the criminal proceedings. It should be recalled that the ruling specifically referred to a “suspicion” rather than to particular facts.
Nevertheless, in this case, there is no need to isolate the accused completely from the society or keep him. Especially since the defendant is a public figure, known within and outside the country, well educated, and highly respected.
The Court refers to the Supreme Court Plenum Decision “On the Practice of Applying Legislation by the Courts when Considering Applications for Precautionary Measures against the Accused” dated 3 November 2009, where it is stated in the paragraph 5 that arrest shall be applied to the accused if the charges foresee a punishment exceeding two years of imprisonment.
Then, the Court goes on to note that since B. Hajiyev has been charged under two Articles, it suggests that he has a penchant for crimes (!!!). It is beyond comprehension why the Court points to the Plenum Decision, paragraph 5, and then states the two-article indictment.
The paragraph 5 of the Decision is clearly referring to the punishment in the form of arrest with a potential sentence of more than two-year- imprisonment. But what connection should this Paragraph of the Decision have with the case of B. Hajiyev, if the punishment of any of the Articles brought against him does not include a term of imprisonment of more than two years.
All the above has violated the fundamental right of a democratic society – the right to liberty – in relation to B. Gadjiev. This right is protected by the Article 28 of the Constitution of the Azerbaijan Republic, 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, as well as numerous precedents of the European Court of Human Rights.
Thus, in the judgment in the case of Engel and Others v. the Netherlands dated November 23, 1976, it is written,
“In proclaiming the ‘right to liberty,’ Article 5(1) refers to personal liberty in its classical sense, i.e., the physical freedom of an individual. Its objective is to guarantee that no one may be arbitrarily deprived of this liberty.” – https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22\%22CASE%20OF%20ENGEL%20AND%20OTHERS%20v.%20THE%20NETHERLANDS%20(ARTICLE%2050)\%22%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57478%22]}
The arbitrary and unjustified arrest of Bakhtiyar Hajiyev, a political and social activist, violated all the fundamental principles of criminal and procedural proceedings. Moreover, Azerbaijan, being represented by the investigative authorities and court, has once again failed to fulfill its obligations to the Council of Europe.