IN AZERBAIJAN THERE IS NO GUARANTEE FOR ANYONE’S RIGHT TO FREEDOM
Hafiz Babaly
Analysis of violation of law during Hafiz Babaly’s judicial proceedings
Baku City Khatai District Court
Case № 4(001)-767/2023
14 December 2023
Presiding judge: Sulkhana Hajiyeva
Defendant: Hafiz Babaly
Defender: Rasul Jafarov
With the participation of Togrul Huseynov, a Senior Investigator at the Investigation Division for Serious Crimes within the Investigation and Inquiry Department of the Baku City Police Headquarters, and Abulfaz Huseynov, a Prosecutor at the Department for Supervision over the Execution of Laws in the Investigation, Inquiry and Investigative Activity of the Baku Internal Affairs Bodies Prosecutor’s Office.
Hafiz Babaly, born in 1971, a journalist, was the Editor of Economics Department of the “Turan” News Agency. He was involved in journalistic investigations concerning the corruption in the country and cooperated with the “Abzas Media” resource.
It should be reminded that earlier the managers of “Abzas Media” website Ulvi Hasanli and Sevinj Vaqifqizi, as well as the website employees, Muhammad Kekalov and Nargiz Absalamova were arrested. About five website employees were questioned as witnesses in the criminal case against them.
On 13 December 2023, Hafiz Babaly was detained as a suspect in the case of “Absaz Media”. He was charged under the Article 206.3.2 (Smuggling, is moving large amount through customs border of the Republic of Azerbaijan of goods or other subjects, committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic (CC AR). The same Article was previously brought against Ulvi Hasanli, Sevinj Vaqifqizi, Muhammad Kekalov, and Nargiz Absalamova.
In the investigator’s petition and the prosecutor’s submission it was stated that Hafiz Babaly had refused to cooperate with the investigative authorities to identify other participants in the crime, and therefore, being at large, could contact them, thereby enabling them to evade the investigation. The request to apply a measure of restraint to H. Babaly in the form of detention for 3 months and 7 days was indicated in the document.
The defendant, Hafiz Babaly, married and had a disability of the 3rd group, was interrogated in the course of the trial, testified that since 1997 he had been working as a journalist at “Turan” News Agency. He collaborated with “Abzas Media” for only one year and wrote 6 articles for them. Throughout the whole period of his cooperation he had been to the website office just 4 times.
His lawyer revealed that there had been no substantive and procedural grounds for imposing a measure of restraint on his client. The defendant was not in the website office and only wrote articles for them. H. Babaly does not plead guilty. The procedural grounds referred to by the investigative bodies were only based on assumptions. The defense counsel asked the Court to elect a measure of restraint against the journalist in the form of house arrest.
On 14 December 2023, the Baku City Khatai District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Hafiz Babaly in the form of detention for a period of 3 months.
On the same day, the U.S. Embassy in Azerbaijan issued a statement regarding the arrest of Hafiz Babaly. It said:
“We call on the Azerbaijani authorities to respect everyone’s fundamental freedoms, including the right to freedom of the press and expression.” – https://www.azadliq.org/a/hafiz-babali-saxlanib/32729187.html
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
It is well known that the Courts are supposed to carry out the justice. This is the last instance where the citizens apply for protection of their violated rights. According to the Article 3 Law “Courts and Judges Act” of the Azerbaijan Republic,
Activity of the courts of the Republic of Azerbaijan is aimed solely at the administration of justice and, in cases and order provided by legislation. … at the enforcement of judicial supervision. While administering justice, courts protect rights and freedoms of person and citizen, rights and lawful interests of all enterprises, establishments and organizations irrespective of the form of property, political parties, civil associations, other legal persons, from any encroachments and law violations, fulfill other objectives provided for in Constitution of the Republic of Azerbaijan.
The role of the courts is particularly important when they consider investigators’ petitions to apply preventive measures in the form of remand in custody. In this regard, the Courts must be mindful respecting human rights, as it is a citizen’s right to liberty.
According to the Article 9.2 of the Code of Criminal Procedure of the Azerbaijan Republic,
Under the circumstances provided for in this Code, violation of the principles or conditions governing criminal proceedings may render the completed criminal proceedings invalid, cause the decisions taken during them to be annulled and deprive the evidence collected of its value.
The Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic states, that 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
The court ruling on the election of a preventive measure states that H. Babaly’s refusal to assist the investigation to expose other participants in the criminal offense made it reasonable to believe that, being at large, he could get in touch with them and create circumstances for their evasion from the investigation.
It further states that “H. Babaly is accused of committing a crime, for which the punishment is up to 8 years. The fact presumably provides grounds for committing a new crime or may pose a danger to the public” (!).” How the one is related to the other is absolutely incomprehensible.
Besides the mentioned grounds, the ruling also states that a preventive measure of arrest should be imposed on Hafiz Babaly as he could:
- abscond from the body conducting the criminal proceedings;
- leave the country;
- obstruct the normal course of the preliminary investigation or trial by exerting unlawful pressure on individuals involved in the criminal proceedings;
- commit another criminal act or pose a danger to the society.
It should be noted that no arguments in favor of the stated grounds in the ruling were indicated.
According to the Constitution of the Azerbaijan Republic, Article 28, as well as Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, each person has the right to liberty and security. The Article implies physical freedom of an individual.
“First and foremost, it is incumbent on the national authorities, namely the Courts, to interpret and apply domestic law. According to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1), failure to observe domestic law entails a violation of the Convention; the Court is able to and must examine whether the domestic law has been duly observed” (the judgment of the European Court of Human Rights (ECHR) in the case of Banham v. the United Kingdom of 10 June 1996).
https://hudoc.echr.coe.int/#%7B%22itemid%22:[%22001-57990%22]%7D
According to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1)(c), everyone has the right to liberty and security. No one shall be deprived of his liberty except in the following cases and in accordance with the procedure prescribed by the Law: (c) lawful arrest or detention of a person lawfully brought before a competent authority on reasonable suspicion of having committed an offence or when there are substantial grounds to believe that it is necessary to prevent him from committing an offence or from absconding after having done so.
“Reasonableness” of the suspicion on which the detention is to be grounded constitutes an essential element of the protection afforded by the Article 5(1)(c) against arbitrary deprivation of liberty. (…) Having a reasonable suspicion presupposes in advance the presence of facts or information that would convince an objective observer that an individual would be capable to commit such an offense. What may be regarded as justified depends, however, on the totality of the circumstances” (the judgment of the European Court of Justice in the case of Fox, Campbell and Hartley v. the United Kingdom of August 30, 1990). – https://hudoc.echr.coe.int/#%7B%22itemid%22:[%22001-57721%22]%7D
As stated above, the ruling on the imposition of the preventive measure stated that H. Babaly would pose a danger to society if he were at large. A detention is only justified if particular grounds disclose the existence of a public interest that overrides a respect for individual liberty. The Courts must consider all the circumstances to establish a public interest that would justify an exception to the general rule of respect for individual liberty.
With regard to the seriousness of the punishment, the European Court recalls,
“The sole existence of a substantial suspicion of involvement in serious offenses, being a relevant factor, does not justify such a lengthy pre-trial detention” (Scott, 78).
The mere abstract phrase about disturbing the public order is not enough to justify arrest. Thus, the ruling of the European Court of Justice in the case of Tomasi v. France of 27 August, 1992, states:
“The Court recognizes that the particular gravity of certain crimes may provoke a public reaction and social consequences that make pre-trial detention justified, at least for a certain time. Under exceptional circumstances, this point may be taken into account in the light of the Convention, at least in so far as domestic law (…) accepts the notion of a breach of public order due to an offence. However, it may only be considered justified and necessary if there are reasons to believe that releasing a detainee would actually violate public order or if that order is in fact threatened. A pre-trial detention should not be anticipated by a custodial sentence.” https://hudoc.echr.coe.int/#%7B%22fulltext%22:[%22tomasi%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57796%22]%7D
The ruling does not contain a single argument that H. Babaly’s release would violate a public order or pose a threat to the society.
The Court’s assertion that the journalist could leave the country is also abstract, because to exclude such a possibility, it would be enough to seize Hafiz Babaly’s passport and restrict mobility. No one can leave the country unless he has a proper passport. Therefore, this argument also does not apply to a particular defendant, as it is not supported by a reasonable argument or evidence.
Apart from the above, the investigative body and Court did not take into account the accused’s personality, his medical condition (group 3 disability), moral image, impeccable reputation, permanent residence and place of work in a prestigious news agency that is known both within and outside the country.
Thus, the Court approached the case rather objectively, incompletely, abstractly, did not comprehensively examine all the circumstances, and as a result violated one of the fundamental human rights – the right to liberty and security.