Yasamal District Court found father and son Hasan and Giyas Ibrahimovs guilty
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Analysis of violation of law during Hasan and Giyas Ibrahimovs judicial proceedings
Baku city Yasamal District Court
Case no. 1(004)-352/2017
December 18, 2017
Judge: Huseyn Safarov
Public Prosecutor: Vusal Abdullayev
Accused: Giyas Ibrahimov, Hasan Ibrahimov
Defender: Elchin Sadigov
On May 10, 2016 members of NIDA (N!DA) civil movement Giyas Ibrahimov and Bayram Mammadov made protest graffiti on the pedestal of former President Heydar Aliyev in protest against the authoritarian regime, dictatorship of the Aliyevs family established in Azerbaijan. On the same day, both young men were detained and arrested. Both were tortured. Police Major General Mirgafar Seyidov, head of the Baku Main Police Department (BMPD), personally supervised these tortures, beatings of young people. In any other country, the punishment for graffiti on the monument would be a monetary penalty or an administrative punishment of 10-30 days. But not in Azerbaijan.
Criminal cases were initiated against Giyas Ibrahimov and Bayram Mammadov (against each separately), under Articles 234.4.1. (Illegal acquisition or storage for the purpose of marketing, manufacturing, production, processing, transportation, transfer or sale of narcotic drugs or psychotropic substances committed by a group of persons by previous concert or by an organized group) and 234.4.3. (Illegal acquisition or storage for the purpose of marketing, manufacturing, production, processing, transportation, transfer or sale of narcotic drugs or psychotropic substances, on a large scale) of the Criminal Code of the Republic of Azerbaijan (RA CC).
On October 25, 2016, the Baku Grave Crimes Court found Guyas Ibrahimov guilty of the brought charges and sentenced him to 10 years’ imprisonment. On December 8, 2016, the Baku Grave Crimes Court passed a judgment against Bayram Mammadov. The court found him guilty of the brought charges and sentenced him to 10 years in prison.
The lawyer appealed to the court of appeal with a complaint against the judgments. On June 5, 2017, the Baku Court of Appeal did not satisfy the complaint of Giyas Ibrahimov and left the judgment of the first instance court in force. During the trail of the Baku Court of Appeal on June 5, an incident occurred. Giyas Ibrahimov, who was in the glass cell, repeatedly showed the judge with his hands and gestures that he could not hear anything in the cell during the speech of the prosecutor. The judge did not pay attention to the appeals of the accused, ignoring them. Getting angry, Giyas pulled out the microphone installed inside the camera. Judicial warders entered the cell and shackled Ibrahimov in handcuffs, using brute force. Cuts formed on Giyas’ wrist, blood droplets were visible on the dock where he was sitting. Giyas’ mother gave the warders a sterile patch so that they helped put it on her son’s wounds. Giyas’ father Hasan Ibrahimov who was in the hall could not stand it, and protested to the judges: ‘Be afraid of God, the day will come when this will happen to your children.’ When Giyas was let out of the glass chamber in order to be withdrawn from the hall, Hasan Ibrahimov called the judges ‘puppets in robes.’ The court collegium composed of Vugar Mammadov, Aflatun Gasimov and Amir Bayramov saw disrespect for them in this.
On September 27, 2017, on the basis of the appeal of the judges Amir Bayramov, Aflatun Gasimov and Vugar Mammadov, Giyas and Hasan Ibrahimovs were held criminal liable for committing the crime provided for in Article 289.2. (Disrespect towards the judge) of the RA CC. On the investigation, Giyas and Hasan Ibrahimovs did not plead guilty. During the trial, Giyas was in a glass cell, and his father, Hasan Ibrahimov, was in the courtroom.
On December 18, 2017 Baku Yasamal District Court recognized both accused as guilty under Article 289.2 of the RA CC. The court awarded Guyas Ibrahimov a six-month prison sentence. However, partially summarizing this period with the previous punishment of Giyas Ibrahimov, the court established him an aggregate of sentences of 10 years and 3 months of imprisonment. Hasan Ibrahimov was sentenced to 1 year and 6 months of correctional work with a monthly retention of 20 percent of his earnings in favour of the national treasury. Commentary by an expert lawyer:
The judicial sentence is illegal, unreasonable and inhumane. According to Article 289.2 of the RA CC, disrespect to the court, expressed in relation to the court, is punishable by a fine in the amount of three hundred to five hundred manats, or correctional work for up to two years, or imprisonment for up to six months. The objective side of the crime consists in insulting the court. An insult is an assessment of the personal qualities of any of the participants in the trial, expressed in an obscene form not accepted in society. The insult can be expressed in a humiliating indecent statement, for example, about the lack of professionalism of the defender, the partiality of the judge, the rudeness of the prosecutor, etc. (http://www.gk-rf.ru/uk/statia297).
According to Article 26 of the RA Constitution: I. Everyone has the right to protect his/her rights and freedoms in ways and means, not prohibited by law. II. The state guarantees the protection of the rights and freedoms of everyone.
The Code of Criminal Procedure of the Republic of Azerbaijan (RA CPC) makes certain demands on the court’s judgment. Thus, the judgment of the court must be lawful and motivated (Article 349.3 of the RA CPC); the judgment of the court is recognized as lawful if it is passed in compliance with the requirements of the Constitution of the Republic of Azerbaijan, this Code, the Criminal and other laws of the Republic of Azerbaijan (Article 349.4 of the RA CPC).
Article 349.5 of the RA CPC recognizes the judgment motivated only in the following cases: 349.5.1. – If the conclusions made by the court are based only on the evidences examined at the judicial investigation; 349.5.2. – If these evidences are sufficient to assess the charges; 349.5.3. – If the circumstances established by the court correspond to the evidence examined. Now we will consider whether the court judgment was motivated and lawful, whether it conformed with the norms of the Constitution, other laws and international treaties, which Azerbaijan ratified, became a member of the Council of Europe. According to article 47 of the Constitution: (I). Everyone has freedom of thought and speech. (II). No one can be forced to express their thoughts and beliefs or reject them.
The right to freedom of expression is also regulated by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. So, according to this article ‘Everyone has the right to freely express their opinion’ (1). Paragraph 2 of the article lists a specific list of restrictions on the right to freedom of expression. This paragraph contains the following restrictions: · If this is provided for by law and is necessary in a democratic society; · In the interests of national security, territorial integrity or public order; · For the prevention of disorders or crimes; · For health and morals; · For protecting the reputation or rights of others; · For preventing the disclosure of information received in confidence, or · For ensuring the authority and impartiality of justice.
Apparently, the European Convention allows the restriction of the right to freedom of expression. If this right is restricted, the state must be sure that: · There is at least one of the above legitimate goals; · This restriction is clearly expressed in the domestic laws of the country and everyone has the opportunity to know about these laws; · This restriction must be ‘necessary in a democratic society.’ The need for a democratic society must come from a social need. The applied restriction must be adequate to the set goal. The same provision is provided for in the Constitutional Law of the Republic of Azerbaijan on the regulation of the exercise of human rights and freedoms in the Republic of Azerbaijan. According to Article 3.4. of the Constitutional Law, restrictions on human rights and freedoms should be directed to legitimate goals stipulated by the Constitution of Azerbaijan and the Constitutional Law, and should be proportional to these goals.
The European Court of Human Rights distinguishes between facts and value judgments. In the case of the accused, value judgments took place. We recall again that earlier Giyas Ibrahimov was sentenced to 10 years in prison for actually expressing a peaceful protest to the authoritarian system. In the courtroom of the Yasamal court, Giyas’ words were repeatedly interrupted by Judge Huseyn Safarov, as soon as he began talking about the ruling family.
At the same time, all three judges of the Baku Court of Appeal: Amir Bayramov, Aflatun Gasimov and Vugar Mammadov, who took the place of chairman of the Ganja Military Court were not interrogated during the judicial investigation. The defence did not have the opportunity to ask them questions and build a defensive strategy with these indications. In the part of the court judgment, where the participants in the trial are indicated, the judges do not appear as victims, their names are not available at all. The judge of the Yasamal Court Huseyn Safarov made an extremely cruel and unreasonable sentence: the maximum term of imprisonment under Article 289.2 of the RA CC is 6 months, and Guyas Ibrahimov was sentenced to this maximum term . His father Hasan Ibrahimov, having sentenced to 1,5 years of correctional work with a retention of 20% of his salary, was deprived of the opportunity to simply support his son in custody with food parcels… The cruelty of the judgment to the father and son Ibrahimovs was not substantiated by the court.