Garadagh District Court found T. Bagirov guilty

Garadagh District Court found T. Bagirov guilty

Analysis of the law violations at the trial of Taleh Bagirov

 

Baku City Garadagh District Court

Case No.1 (002)-117/2018

February 13, 2018

Judge: Rufan Mursalov

Public Prosecutor: Tahir Veliyev

Accused:  Taleh Bagirov

Defender:  Fariz Namazli

The settlement of Nardaran, which is located 40 km from Baku, has a low standard of living and an acute unemployment problem. One of the mosques revered by the Shiites, founded in the VIII century, is located in Nardaran. Nardaran differs from other Baku villages in its religiosity. In 2000, 2002 and 2006, the villagers conducted peaceful protests with socio-economic demands.
In June 2002, police conducted a military operation in the village, as a result of which 28 people were injured, one died. 23 people were sentenced to various terms of imprisonment on falsified charges of espionage in favor of Iran, an attempt at violent change of power, etc. However, as a result of the active work of human rights defenders, none of the convicts remained in custody after 2005.
November 26, 2015 in Nardaran was another police operation. Armed with automatic weapons, the police entered the village and opened heavy fire. As a result, 6 people were killed, including two police officers. Dozens of citizens were arrested.
The Ministry of Internal Affairs and the General Prosecutor’s Office issued a joint statement, in which they explained the use of firearms against villagers as an operation necessary to neutralize a criminal armed group that functioned under a religious cover, planned mass riots, terrorist acts and destabilization of the socio-political situation in the republic.
From July 19, 2016 until January 25, 2017, the trial of 18 accused in the “Nardaran case” was held in the Baku Grave Crimes Court. Among them, the leader of the movement “Muslim Unity” Taleh Bagirov, members of the movement Abbas Huseynov, Rasim Dzhabrailov and others, as well as deputy chairman of the opposition party of the FFA, Fuad Gahramanli, who was accused of anti-state appeals, in calls for mass riots.

 

All accused were found guilty on charges and sentenced to long prison terms. The Chairman of the movement “Muslim Unity” Taleh Bagirov was sentenced to 20 years inmprisonmeny, 7 years of which he will spend in Gobustan closed-type prison, the rest of the punishment – at hard labor colony.

 

At the end of December 2017 was opened a new criminal case under article 317-2.1. (manufacture, storage, concealment, carrying or using of prohibited items by persons held in penitentiaries or pre-trial detention centres) of the Criminal Code (CC) of Azerbaijan Republic against Taleh Bagirov. According to the prosecution, on 31 July 2017 in the result of x-ray inspection in stomach of T. Bagirov was found 7 microfiches MicroSD type. As a result of the expertise it was found that on these devices recorded verses from Koran and other information in Arabic and Persian languages.

 

During the trial, T. Bagirov said that swallowed this microfiches himself, they hit the stomach naturally. On these microfiches have information and verses from the Koran, as well as information regarding political prisoner Gezal Bayramli. It has also shown that he swallowed microfiches when transported from Baku Pre-trial Detention Centre No. 1 to closed prison in Gobustan, where he was to serve his sentence.

 

During the trial T. Bagirov repeatedly made a political statements, spoke about the upcoming  extraordinary presidential elections in Azerbaijan in

 

He pleaded not guilty in the charges and said that the microfiches had been intended for listening to a special electronic device. Such devices are available in all penal institutions. T. Bagirov said that if the possession of microfiches is a crime, then the presence of these devices in institutions for serving a punishment is a crime. Devices and microfiches should be seen as  integral parts of each other. It should be noted that there was no any criminal information on that microfiches.

 

During trial Rauf Nabiyev, head of the Operational Department of Gobustan prison, was questioned as  a witness and noted that he knows T. Bagirov as a prisoner, who had been found on July 31, 2017 in stomach after x-ray 7 microfiches. Mr. Bagirov confessed that these microfiches were designed for listening on radio-electronic devices. Other witnesses – prison officers – supported the testimony of Rauf Nabiyev.

 

During the preliminary investigation, two prisoners serving sentences in prison were questioned as witnesses. However, nether of them were are not present at the trial. Prisoners Elman Kachaev and Elshad Rustamov applied to the court with statement that confirmed their  confession from preliminary investigation, and in connection with the problems of health asked the court to consider case without their participation.

 

On 13 February 2018, Garadagh District Court found Taleh Bagirov guilty of the charge and sentenced him to 5 months imprisonment.

 

Commentary by an expert lawyer:

 

The court decision is unlawful, groundless and unmotivated.

 

According to the articles 10.1. and 349.4. of Codeof Criminal Procedure of the Azerbaijan Republic  (CCP AR), the court judgment shall be considered lawful if it fulfils the requirements of the Constitution of the Azerbaijan Republic, this Code and the criminal and other legislation of the Azerbaijan Republic. The court sentences shall be lawful when it is both form and content consistent with the Constitution and other laws of the Republic of Azerbaijan.

 

According to the article 349.5. of the CCP AR in the following cases the court judgment shall be considered well-founded:

 

349.5.1. if the conclusions at which the court arrives are based only on the evidence examined during the court’s investigation of the case;
349.5.2. if the evidence is sufficient to assess the charge;
349.5.3. if the facts established by the court are consistent with the evidence investigated.

 

According to the article 351.2. of the CCP AR a conviction by the court may not be based on assumptions and shall be handed down only where guilt of the accused is proved during the court’s examination of the case.
According to the article 351.3. of the CCP AR, if the court gives an affirmative answer on the matters set out in Article 346.1.1-346.1.6 of this Code, the guilt of the accused may be regarded as proven, as follows:
    351.3.1. bearing in mind the presumption of innocence;
    351.3.2. on the basis of the results of the court’s examination of the charge in accordance with the rules set out in this Code;
    351.3.3. on the basis of the reliable and admissible evidence examined during the court’s investigation of the case;
    351.3.4. interpreting in his favour any doubts as to the guilt of the accused which cannot be removed.

 

Those articles of the CCP of AR show clearly that sentence in a case of T.Bagirov do not meet to the above requirements. The sentence to be based that T.Bagirov admitted microfiches him personally. The court did not find out – how and for what purpose these microfiches were designed, did not check and did not investigate the availability of radio in prison, did not take into account the defence filed motions.

 

The court referred to the List of “Items prohibited for issuance, transfer, storage, carrying or use by persons serving sentences in penal institutions, as well as those made by them”. In the list of prohibited items are contained: devices transmitting radio waves (electromagnetic waves), electronic devices and elements, listening devices and hidden camera detectors (detection devices), as well as optical devices, pagers, mobile phones, faxes, computers, means for connecting to the Internet. As can be seen, there are no microfiches as MicroSD type in the list.

 

The court had not substantiate its conclusion why microfiches are elements of radio. Microfiches and radio are totally different subjects. The sentence has been based only an expert opinion. Radio-electronic devices are designed for transmission and reception of radio waves. These devices are often used in the military sphere. Their elements are diodes, transistors, chips, capacitors and etc. Microfiches does not relate to these elements and are not listed of prohibited items.

 

The only evidence introduced by the prosecution is computer-technical expertise. The expert, which has given conclusion did not provided any argument why memory of microfiches are part of radio electronic devices. It was on the basis of only this conclusion T. Bagirov was found guilty under article 317-2.1. of Criminal Code of Azerbaijan.

 

During the trial the defence filed two motions. One concerned the summons of an expert who gave conclusion. The second application concerned request to the Constitutional Court to determine what is a radio-electronic device and its elements, what devices can be called radio-electronic devices. Both motions were wrongly dismissed by the court. It should be noted that if the both motions is granted T. Bagirov’s innocence would be fully proved.

 

Thus, according to the article 121.2. of the CCP AR, Reasons shall be given for the decision taken on an application or request, together with an assessment of the applicant’s arguments. Applications and requests for any matters connected with the prosecution to be examined thoroughly, fully and objectively under the required legal procedure, and for the violated rights and legal interests of the parties to the criminal proceedings and of other participants in the
proceedings to be restored, may not be rejected. Refusal a petitions violated the principle of adversarial and equality of the parties.
In the case of Brandstetter v. Austria (1991, para. 67) the European Court of Human Rights noted that during the investigation of criminal cases the right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party.
https://www.legal-tools.org/doc/deb99c/pdf/

 

However, the case show that the court has not provided accused equal opportunity, none of the defence motions was not considered by the court. The trial of Taleh Bagirov showed biased against him  of the judicial system in general and the Garadagh District Court in particular.