THE JUDGE VUSAL QURBANOV GROSSLY VIOLATED THE RIGHT TO LIBERTY AND PERSONAL SECURITY OF NIJAT ALIYEV
Nijat Aliyev
Analysis of violation of law during Nijat Aliyev’s judicial proceedings
Baku City Narimanov District Court
Case №4(005)-1302/2022
2 December 2022
Presiding judge: Vusal Qurbanov
Defendant: Nijat Aliyev
Defender: Lala Mansurova
With the participation of Huseyn Huseynov, a Prosecutor of the Department on Supervision over the Execution of Laws in Investigation, Inquiry and Operative Investigation Activities of the Internal Affairs Bodies within the General Prosecutor’s Office of the Azerbaijan Republic, and Akif Mejidov, an Investigator at the Department of Investigation and Inquiries within the Department for Combating Organized Crime of the Azerbaijan Ministry of Internal Affairs
Nijat Aliyev, born in 1986 in Jalilabad City of Azerbaijan, a member of the “Muslim Unity” Movement, was charged with committing a crime 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. It should be noted that the Chairman of the “Muslim Unity” Movement, Tale Bagirzade, was arrested in 2015 and sentenced to 20-year-imprisonement in 2017; be now, he has been imprisoned for 7 years in the Gobustan covered prison. Bagirzade has been recognized as a political prisoner.
According to the investigation, Nijat Aliyev illegally acquired from “an unknown investigative source” and “under unspecified conditions” the drug methamphetamine. At the time of his detention, on 1 December 2022, in the settlement in Mashtagha near Baku, he had 11.024 grams of the drug in his possession. On 2 December, 2022, he was charged as a suspect.
According to the Court ruling, Nijat Aliyev partially pleaded guilty, and testified that he had purchased the drugs for personal use. During the trial, N.Aliyev objected to the investigators’ request to apply to him a preventive measure in the form of arrest.
On 2 December 2022, the Baku City Narimanov District Court issued a ruling: to apply a preventive measure against Nijat Aliyev in the form of detention for a period of 4 month.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
One of the main principles of the Criminal Procedure is the principle of legality, according to which “the courts and the participants of the criminal proceedings must strictly observe the provisions of the Azerbaijan Republic Constitution, the present Code, and the other laws of the Azerbaijan”, as well as the Iinternational treaties with the participation of the Azerbaijan Republic, Article 10 of the Criminal Procedure Code of the Azerbaijan Republic.
According to the Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic, restrictive measures may be the following:
- arrest;
- house arrest;
- bail;
- restraining order;
- personal surety;
- surety offered by an organisation;
- police supervision;
- supervision;
- military observation;
- removal from office or position.
As it is known, the toughest form of detention is arrest, as it isolates the accused from society.
According to the Article 155.1 of the Code of Criminal Procedure of the Azerbaijan Republic, restrictive measures may be applied by the relevant preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court when the material in the prosecution file gives sufficient grounds to suppose that the suspect or accused has:
- 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 this case, the Court specified the following grounds upon which a preventive measure in the form of arrest was imposed on N.Aliyev. They are:
- the risk of concealment from the body conducting the criminal proceedings;
- the likelihood of obstructing the normal course of the preliminary investigation or trial while exerting unlawful pressure on those involved in the criminal proceedings, concealing or falsifying information relevant to a criminal prosecution;
- the likelihood of re-committing an offense under the criminal law, or posing a danger to the public.
It should be pointed out that there were no specific facts or evidence that would legally justify the measure of the imposed detention. Everything was based on “probabilities” rather than on particular materials of the case.
There is a reference to the paragraph 5 of the Decision No. 2 “On Practice of Application of Legislation by the Courts During Consideration of Submissions on Detention of the Accused” adopted by the Supreme Court of the Azerbaijan Republic on 3 November 2009, that according to the Article 155.3 of the Code of Criminal Procedure of the Azerbaijan Republic, where it is said that an arrest and imprisonment for over 2-year-period can be applied to an accused charged with the crime. However, there is not a single word in the Court ruling that the above Decision of the Plenum states that the courts, applying the legislation in this area commit a number of mistakes, in particular, they do not thoroughly examine the submissions filed by the investigative bodies; they do not provide any comments on the grounds while imposing the strongest preventive measure, an arrest. They use such general terms as hiding from the body conducting the criminal proceedings, obstructing the normal course of the investigation, failure to appear on summons from the body conducting the investigation, the courts do not justify any grounds while issuing their rulings.
In this regard, the Plenum of the Supreme Court of the Azerbaijan Republic ruled that the courts should not tolerate a formal approach to a case, moreover, when determining a preventive measure, they should determine the validity and legality of submissions of arrest. It should be taken into account that “reasonable suspicion” means the existence of sufficient evidence that a particular individual has committed a criminal offence. The Decision also states that the courts should consider an alternative non-custodial punishment when considering the submission to arrest.
The second, rather crucial point, is the term of restraint. As mentioned above, the Court has ordered a preventive measure in the form of arrest for a period of 4 months. However, there is no indication in the court ruling why and for what specific investigative measures such a period has been required.
Despite the fact that above-mentioned Resolution of the Supreme Court Plenum was adopted more than 13 years ago , the quality of the Courts verdicts has not been improved. The same mistakes continue to be repeated, which lead to violations of the right to liberty guaranteed by the Article 28 of the Constitution of the Azerbaijan Republic, Article 14 of the Code of Criminal Procedure of the Azerbaijan Republic, Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and numerous precedents of the European Court of Human Rights, that are of recommendatory nature for the Council of Europe member-countries.