DUE TO THE LACK OF FAIR TRIAL LED TO THE FIVE-YEAR-IMPRISONEMENT SENTENCE
Elvin Quliyev
Analysis of violation of law during Elvin Quliyev’s judicial proceedings
Lankaran City Grave Crimes Court
Case № 1(099)-85/2024
1 February 2024
Presiding judge: Mushfiq Mammadov
Judges: Jamil Nabiyev, Javid Safarli
Defendant: Elvin Quliyev
Defender: Babak Hamidov
The State Prosecutor: Emin Musayev, a prosecutor from the Department supporting the State Prosecution in the Serious Crimes Courts within the Serious Crimes Administrative Division at the General Prosecutor’s Office of the Azerbaijan Republic
On 10 March 2023, Elvin Quliyev, born in 1988, was detained as a suspect in a criminal case initiated in accordance with 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.
On 11 March 2023, he was accused of a crime under the mentioned above Article. The same day, the Beylaqan District Court issued a sentence against E. Quliyev in the form of detention for the period of 4 months.
It should be noted that E. Quliyev was arrested amid the mass arrests of Shiite believers.
According to the investigation, E. Quliyev was detained in the city of Beylaqan on 10 March 2023; the police found homemade heroin in 8 bags with a total weight of 48.738 grams in the pocket of his jacket.
- Quliyev, interrogated at the trial as an accused, did not plead guilty to the charges brought against him. Further, he testified that at 10:00 a.m. on 10 March 2023, four police officers entered the store of vehicle spare parts, where he had been working, and told him that they were going to take him to the police station. While in the store, E. Quliyev turned his jacket pockets inside out so that they would not put anything illegal in his pocket. On the way to the police station, his hands were handcuffed behind his back. At the police station, a policeman by the name of Kamil planted drugs in Elvin’s pocket and left the room.
Elvin Quliyev also indicated that he had never either used or sold drugs to anyone. The drugs found in his possession did not belong to him.
Answering the trial participants’ questions, E. Quliyev revealed that he often organized charity events and had previously owned a donation store. While at the police station, he had been threatened with the use of force against his family. Kamil, a police officer, had previously often summoned him to the police station saying that he “would have a headache”.
Ziya Hajiyev, an operative officer from the Beylaqan District Police Criminal Investigation Department, questioned before the Court, said that on 10 March 2023, he had received information about illegal drug trafficking by E. Guliyev. In this regard, it was organized a special group and on the same day around 10:00, E. Quliyev was detained on Magistral Street in the town of Beylaqan. Upon the search, the narcotic drug heroin arranged in 8 different bags was found in E. Quliyev’s possession, subsequently packed in accordance with the procedure set by the Law.
When answering the questions of the trial participants, the witness stated that he had not seen that any of the police officers had planted drugs in E. Quliyev’s jacket. Besides, no one threatened him with anything. The police officers Anar Abdullaev, Ilkin Akbarov and Vasif Jafarov, who were also questioned as witnesses at the trial, provided similar to Ziya Hajiyev’s testimony.
Hikmat Jabrayilov, questioned as a witness at the trial, said that, on 10 March 2023, he was involved as a witness in a personal search. He saw how the drugs divided into 8 different bags were confiscated from E. Quliyev’s jacket pocket.
Ismayil Ismayilov, summoned to the Court at the request of the defense and questioned as a witness, said that he worked in a store of car spare parts. He saw how several police officers entered the store on 10 March 2023, and tried to detain the defendant. E. Quliyev turned his jacket pockets inside out to show that there was nothing inside but money. The witness also stated that the police officers had not conducted a personal examination at the place of detention but took Quliyev along with them.
Another witness, Abuzar Ulubekov, called at the request of the defence testified that he had been engaged in the sale of spare car parts. On 10 March 2023, unknown people entered the store and asked Elvin Quliyev to “go outside”. They put him in the car and immediately drove away.
According to the protocol “On confrontation” that took place on June 7, 2023, it was held between E. Quliyev and Ilkin Akbarov, a policeman, in the course of which I. Akbarov once again testified that he had not put drugs to E. Quliyev.
Also, the confrontation was held between E. Quliyev and Vasif Jafarov, a policeman, who testified that he had not planted any drugs to Elvin Quliyev either.
The forensic chemical examination dated 10 March 2023, revealed that the drugs found on E. Quliyev had been homemade heroin.
The forensic narcological examination that took place on 2 June 2023, indicates that E. Quliyev does not suffer from drug addiction and does not need compulsory medical treatment.
The Court stated in the verdict that Elvin Quliyev’s testimony concerning the planted by the police drugs and his detention in his store, rather than on Magistral Street was a self-defense nature.
The Court regarded the witnesses’ testimonies, indicating that Elvin Guliyev had been arrested in the store, as misleading and of a defense nature.
The Court recognized the presence of E. Quliyev’s minor children as mitigating circumstances. The Court did not find any aggravating evidence.
On 1 February 2024, the Lankaran City Grave Crimes Court issued a verdict: to find Elvin Quliyev guilty on all charges and sentenced him to 5 years imprisonment with serving the sentence in a general regime penal institution.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
In any criminal case, the most important is the evidence related to the defendant and submitted by the investigative body to the Court. On the basis of these evidences, which are reviewed and analyzed by the Court, it should be issued a verdict (conviction or acquittal). The evidences provided by the trial participants during the investigation and at the trial shall also be considered as supporting evidence.
As a rule, the testimony provided by the accused in the course of the investigation is not subsequently corroborated during the trial. The reason for contradictions in testimonies is either physical or psychological pressure or various kinds of threats on the part of law enforcement officers.
This fact has been repeatedly confirmed by the judgments of the European Court of Human Rights (ECHR) on complaints against the Azerbaijan Republic.
The Courts fail in almost all such cases to examine the defendants’ testimonies in this regard, do not eliminate the contradictions in testimonies or interpret the existing doubts in the defendants’ favor.
According to E. Quliyev, he was detained by the police officers in the store, whereas based on the police testimony, he was detained on Magistral Street in the city of Beylaqan. E. Quliyev’s testimony was supported by two other witnesses who had been in the store that day.
The Court, having not indicated the reasons and grounds, considered those testimonies as misleading, which, allegedly, had not been confirmed by any other proofs.
Besides, both witnesses, summoned upon the defence motion, testified that E. Quliyev had turned out the pockets of his jacket in order to demonstrate that there had been nothing inside. It means that there was nothing in his jacket pockets when he was brought to the police station.
There were contradictions in the statements that could have caused doubts in guilt of the accused to an outside observer. In fact, it should have been interpreted in the defendant’s favor, as said in the Article 21.2 of the Criminal Procedure Code of the Azerbaijan Republic.
Furthermore, Article 21.3 of the Code of Criminal Procedure of the Azerbaijan Republic stated, that the accused shall not be obliged to prove his innocence. It shall be for the prosecution to prove the charge or to refute the evidence given in defence of the suspect
or the accused.
The defendant provided the specific name of the policeman who, according to him, had planted the drugs in his jacket. However, the police officer denied it. In this case, the Court, nevertheless, did not find the officer’s testimony to be false or self- defensive.
The Court also failed to investigate the most important issue: the attributability of the found drugs to the defendant.
According to the Article 25.2 of the Code of Criminal Procedure of the Azerbaijan Republic, judges and jurors shall not be bound by the conclusions reached the prosecuting authorities during the investigation. In practice, we see just the opposite: the Courts issue verdicts in accordance with the indictments of the investigative bodies.
As a rule, the sentences are prepared by copying the same phrases as those in indictments. This case is no exception. The verdict is in fact copied from the indictment and lacks the defence’s arguments. The Article 125.1 of the Code of Criminal Procedure of the Azerbaijan Republic states, that if there is no doubt as to the accuracy and source of the information, documents and other items and as to the circumstances in which they were obtained, they may be accepted as evidence.
According to the Article 125.2 of the Code of Criminal Procedure of the Azerbaijan Republic, information, documents and other items shall not be accepted as evidence in a criminal case if they are obtained in the following circumstances:
- if the accuracy of the evidence is or may be affected by the fact that the parties to the criminal proceedings are deprived of their lawful rights, or those rights are restricted, through violation of their constitutional human and civil rights and liberties or other requirements of this Code;
- through the use of violence, threats, deceit, torture or other cruel, inhuman or degrading acts;
- through violation of the defence rights of the suspect or accused, or the rights of a person who does not know the language used in the criminal proceedings;
- where the rights and duties of a party to the criminal proceedings are not explained, or not explained fully and accurately and, as a result, he exercises them wrongly;
- where the criminal prosecution and investigative or other procedures are conducted by a person who does not have the right to do so;
- where a person whose participation should be objected to, and who knows or should know the reasons precluding his participation, takes part in the criminal proceedings;
- where the rules governing investigative or other procedures are seriously violated;
- where the document or other item is taken from a person unable to recognise it or who cannot confirm its accuracy, its source and the circumstances of its acquisition;
- where evidence is taken from a person unknown at the trial or from an unknown source;
- where evidence is taken through means conflicting with modern scientific views.
In Elvin Quliyev’s case, at least three provisions specified in the Article 125.2 of the Code of Criminal Procedure of the Azerbaijan Republic have been violated.
Regarding the statements by the accused and witnesses, the Article of the 126.2 of the Code of Criminal Procedure of the Azerbaijan Republic noted, that only statements based on the information or conclusions of a person directly comprehending the act and its causes, character, mechanism or development may be considered as evidence.
Two witnesses were in the store at the moment when police officers came to pick up Elvin Quliyev. They witnessed how E. Quliyev, assuming that drugs could be planted, turned out his pockets and showed that there were empty.
Unfortunately, the Court assessed the testimonies of both witnesses as being false. It is unknown, however, what reason made the Court come to such a conclusion. It is obvious that the Court’s approach to the case was biased and one-sided.
In this case, in order to eliminate contradictions in the witnesses’ testimonies, the Court could have again summoned the police officers and questioned them once more following the witnesses’ testimonies in order to minimize all doubts that arose at that time.
It demonstrates the Court’s partiality and unfairness the right to which everyone has. Thus, the Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms states:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
According to the Article 8 of the Courts and Judges Act of the Azerbaijan Republic,
Justice is administered in compliance with the principle of ensuring independence of judges without any restrictions, and in a fact based, impartial, just and lawful manner.
In accordance with the Article 11 of the above-mentioned Law, the Courts, when implementing the justice, are obliged to be guided by the principle of presumption of innocence, which is also enshrined in the Article 21 of the Code of Criminal Procedure of the Azerbaijan Republic and Article 6(2) of the European Convention.
Unfortunately, in the judicial system of Azerbaijan there are not uncommon cases when the courts ignore such an important principle and carry out legal proceedings in compliance with an investigation body’s opinion and demands. Thus, the courts’ attitude towards the defendants as culpable leads, as a rule, to unjustified and unlawful guilty verdicts.
The judgment of the ECHR in the case of Castillo Algar v. Spain dated 28 October 1998, states,
“As far as objective assessment is concerned, it consists of the issue whether or not certain verifiable facts give rise to doubts as to the impartiality of the judge, irrespective of the latter’s conduct. In this matter, even external indications may acquire significance. Hence, the confidence which courts in a democratic society must inspire in litigants, especially defendants. Any judge whose impartiality is legitimately doubted should withdraw from a case. In determining whether there are legitimate grounds for doubting a judge’s impartiality in a particular case, the defendant’s point of view is taken into account but is not decisive. Crucial is whether the applicant’s concerns can be considered objectively substantiated.” – https://hudoc.echr.coe.int/?i=001-58256
The ECHR judgment in the case of Bernard v. France dated 23 April 1998, it is written,
“The presumption of innocence enshrined in the Article 6(2) figure among the elements of a fair criminal trial under par. 1”. – https://hudoc.echr.coe.int/?i=001-58161
Therefore, the brech of the defendant’s right to a fair trial, guaranteed to everyone in accordance with the norms of both national and international law, led to an unmotivated, unlawful and unjustified conviction, under which Elvin Quliyev was sentenced to deprivation of liberty for a period of 5 years.