THE CRACKDOWN ON OPPOSITION MEMBERS REMAINS EXCESSIVELY FEROCIOUS
Niyamaddin Ahmadov
Analysis of violation of law during Niyamaddin Ahmadov’s judicial proceedings
Baku Grave Crimes Court
Case №1(101)-819/2021
8 October 2021
Presiding judge: Siyavush Hajiyev
Judges: Rahib Salmanov, Eldar Mikayilov
Defendant: Niyamaddin Ahmadov
Defender: Zubeida Sadigova
The State Prosecutor: Elvin Mirzoyev, a prosecutor of the Division for Support of Public Prosecution at the Serious Crimes Courts under the Department for Support of Public Prosecution within the General Prosecutor’s Office of the Azerbaijan Republic
On 15 May 2020, it was arrested Niyamaddin Ahmadov, a member of the Popular Front Party of Azerbaijan (PFPA) and bodyguard of the party’s Chairman, Ali Karimli. He was charged with committing crimes under the Articles 214-1 (Financing of terrorism), 28,281.2 (Public appeals directed against the state, committed repeatedly or by group of persons) and 233-1.2.1 Illegal manufacture, acquisition, storage, transport, carrying, transfer or sale of objects to another person whose inclusion into civil circulation is not allowed by law, committed by group of persons) of the Criminal Code of the Azerbaijan Republic.
According to the investigation, Niyamaddin Ahmadov, being engaged in criminal conspiracy with the individuals living in Germany, in particular with a blogger, Qabil Mammadov, had been receiving financial support from the blogger in order to commit terrorist attacks, organize attempts threatening the public figures lives; he openly called upon the citizens to disobey the authorities, as well as to forcibly seize power and overthrow the state system. Moreover, Niyamaddin Ahmadov was accused of having possessed a pair of glasses equipped with a hidden camera, whereas such items are illegal under the Civil Law. On 4 May 2020, the State Security Service (SSS) officers found those glasses while conducting a search in the house where Niyamaddin Ahmadov resided.
In the course of the judicial investigation, Niyamaddin Ahmadov did not plead guilty to the charges and claimed that he volunteered to be a bodyguard of Ali Karimli, the Chairman of the PFPA. Niyamaddin Ahmadov revealed to the court that he had been subjected to administrative arrest more than once in connection with his political activities. He also testified that in the course of administrative arrests, he was subjected to inhuman treatment and torture by the SSS officers who forced him to testify against A. Karimli, but he refused to do so.
On 15 April 2020, Niyamaddin Ahmadov was under administrative detention for 30 days. On 15 May 2020, his administrative arrest term was over. He was released. But on the same day, on 15 May 2020, he was summoned for an interrogation to the Investigation Department of the Azerbaijani General Prosecutor’s Office, where he was arrested on a criminal case charges. Despite his requests, he was denied a lawyer of his choice.
Niyamaddin Ahmadov also testified in court that during the preliminary investigation he was subjected to physical pressure and under torture he was forced to give false testimony that he constantly kept in touch with the blogger Qabil Mamedov living in Germany and his wife Aytan Ramazanova; he had been receiving money from both of them. Also, Aytan Ramazanova had allegedly handed him the glasses with a built-in hidden camera, using which N. Ahmadov had to make video recordings of the opposition rallies.
At the trial, N. Ahmadov withdrew his initial testimony provided in the course of the investigation, and said that he had not supported Qabil Mammadov’s political views. As for the glasses, he claimed that such glasses have been bought on the open market. N. Ahmadov, with the help of his lawyer, appealed to the courts with complaints concerning his torture.
On 8 October 2021, the Baku Court on Serious Crimes issued a verdict against Niyamaddin Ahmadov: he was found guilty of all charges and sentenced to 13 years’ imprisonment in a high-security colony.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified. In the course of the preliminary investigation, Niyamaddin Ahmadov provided the testimony that was forced upon him by the investigating body. The testimony was rendered as a result of the use of physical pressure on him. In fact, Niyamaddin Ahmadov testified against himself what is forbidden by the National Legislation.
According to the Article 66 of the Constitution of the Republic of Azerbaijan, nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister.
This Principle is also enshrined in the Article 20 of the Criminal Procedure Code of the Azerbaijan Republic. In particular, it states:
20.1. Nobody may be forced to testify against himself or his close relatives, or be prosecuted on this basis.
20.2. During the investigation or court hearing, a person asked to give information which may incriminate him and his close relatives in respect of an offence shall have the right to refuse to incriminate them without fear of negative legal consequences for himself.
The Court considered N. Ahmadov’s testimony at the preliminary investigation to be true, and at the trial hearing to be of a defensive nature, without having specified any particular grounds.
In this case, the Court had to examine the circumstances that caused his testimony to be altered and the fundamental contradictions therein. The accused had no obligation to prove his innocence before the court, and the doubts that had not been eliminated in the implementation of the criminal and criminal procedure laws were not interpreted in his favour. As a result, it violated the principle of Presumption of Innocence, enshrined in the Article 63 of the Constitution of the Azerbaijan Republic, the Article 21 of the Criminal Procedure Code of the Azerbaijan Republic, as well as the Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
As in all other criminal cases heard at the Baku Court of Serious Crimes, this case was no exception in terms of the evidentiary basis. The evidentiary basis of the case consisted of the witnesses’ testimonies, several results of the expertise, and the defendant’s personal statement. The investigation did not have any solid and irrefutable evidence to support and prove such serious charges.
In the course of criminal proceedings, the following shall be subject to proof:
- the crime occurrence (time, place, manner and other circumstances of committing the crime);
- the individual’s culpability in committing the crime, the form of his/her guilt and motives;
- the circumstances relating to the personality of the accused;
- nature and extend of the damage caused by the crime;
- circumstances excluding the offence and punishable nature of a deed;
- circumstances mitigating and aggravating the punishment;
- circumstances that may result in exemption from criminal prosecution and punishment.
None of these circumstances have been investigated and studied in the course of the preliminary investigation or at the trial.
Furthermore, reliable evidence (e.g. information, documents, items) obtained by the court or other parties involved in criminal proceedings shall be classified as proof in criminal prosecutions. According to the Article 124 of the Criminal Procedure Code of the Azerbaijan Republic, such evidence is:
124.1.1. shall be obtained in accordance with the requirements of the Code of Criminal Procedure, without restriction of constitutional human and civil rights and liberties or with restrictions on the grounds of a court decision (on the basis of the investigator‘s decision in the urgent cases described in this Code);
124.1.2. shall be produced in order to show whether or not the act was a criminal one, whether or not the act committed had the ingredients of an offence, whether or not the act was committed by the accused, whether or not he is guilty, and other circumstances essential to determining the charge correctly.
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:
125.2.1. 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;
125.2.2. through the use of violence, threats, deceit, torture or other cruel, inhuman or degrading acts;
125.2.3. 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;
125.2.4. 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;
125.2.5. where the criminal prosecution and investigative or other procedures are conducted by a person who does not have the right to do so;
125.2.6. 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;
125.2.7. where the rules governing investigative or other procedures are seriously violated;
125.2. 8. 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; 125.2.9. where evidence is taken from a person unknown at the trial or from an unknown source;
125.2.10. where evidence is taken through means conflicting with modern scientific views.
In N. Akhmadov’s criminal case, at least three (1, 2, 3) of the above paragraphs have been violated.
All these norms are meant to protect the defendant from self-incrimination, as well as from admitting his guilt as a result of physical or mental abuse. These provisions prevent from violating the immunity of witnesses, stipulated by the Constitution of Azerbaijan. Meanwhile, the suspect’s or defendant’s testimony taken without a lawyer, including cases of waiver of counsel, is recognized as inadmissible evidence, especially if there are significant contradictions between the testimony obtained during the pre-trial investigation and at trial. The defendant’s testimony taken in the absence of a lawyer shall not be considered and assessed in conjunction with all the other evidences.
The evidence sufficiency is judged according to the requirements that the law imposes on the determination of these or those circumstances.
Whereas some determinations may be made whenever there are sufficient grounds for a presumptive conclusion, the accumulated evidences are sufficient to suggest the occurrence or possibility of any circumstances occurring. Whereas with respect to other determinations, the sufficiency of the evidence is evaluated on the basis whether it leads to a conviction beyond a reasonable doubt as to the factual circumstances. The proof evidence is considered sufficient (not quantitatively, but in terms of its substance) for a conviction when it persuades the court that the defendant’s guilt has been really established.
In Niyamaddin Ahmadov’s case, the prosecution failed to refute the arguments and evidence of the defence, and therefore doubts regarding the defendant’s guilt remained unresolved. If this is the case, there must be either an acquittal verdict or the conviction must be changed in favour of the defendant.
As it is clear from the verdict, the court adopted the evidence provided by the investigative body, even though to any outside observer it is obvious the one-sided, unfair and biased approach towards this case. The court was not interested in determining the truth, and therefore took the side of the prosecution, literally becoming the prosecution itself.
Such a conviction is a breach of the legal norms of the Procedural Law established by the National and International Legislations. The fact is that the investigation authorities did not submit sufficient evidence to the court, which would form the dispositions of the Articles according to which Niyamaddin Ahmadov had been charged. It is also a violation of the substantive norms of the Law (Articles of the Criminal Procedural Code).
The investigation body and the court, violating the procedural and fundamental norms of the Law, therefor infringed Niyamaddin Ahmadov’s right to liberty and sentenced him to 13 years of imprisonment. The Right to Freedom is guaranteed by the Article 28 of the Azerbaijani Constitution, the Article 14 of the Criminal Procedure Code of the Azerbaijan Republic, and the Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
There was a clear violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 3, which prohibits abuse and ill-treatment including torture, in respect of an accused, in this case, Niyamaddin Ahmadov. Unlike any other Norms that foresee the possible intervention, the Article 3 has no exception, and in this sense it enshrines one of the basic values of any democratic society within the Council of Europe.
Inhuman treatment and torture are illegal and abnormal practices. Even in the most complicated cases, such as the fight against terrorism and organized crime, the authorities must withhold any action that could be considered as prohibited by this Norm. This kind of treatment is never tolerated, no matter how intimidating, whether real or perceived, its impact on the effective fight against criminality might be. A violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 3, is not permissible under any circumstances. Moreover, the evidence obtained with the use of physical violence may not be regarded as evidence and must be excluded from the list of proof.
Niyamaddin Ahmadov along with his lawyer appealed to the courts alleging a violation of the Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. However, these complaints had not been considered. It is also obvious violation of the Article 13 (The right to an effective legal defense) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in the case of Niyamaddin Ahmadov.
The breach of the Article 3 in conjunction with the Article 13 of the European Convention is a very serious matter in Niyamaddin Ahmadov ‘s case.
In the judgment of the European Court of Human Rights (ECHR) in the case of Ilhan v. Turkey of 27 June 2000 it is stated, “Article 3 is phrased in substantive terms. Furthermore, although the victim of an alleged breach of this provision may be in a vulnerable position, the practical exigencies of the situation will often differ from cases of use of lethal force or suspicious deaths. The Court considers that the requirement under Article 13 of the Convention that a person with an arguable claim of a violation of Article 3 be provided with an effective remedy will generally provide both redress to the applicant and the necessary procedural safeguards against abuses by State officials. The Court’s case-law establishes that the notion of effective remedy in this context includes the duty to carry out a thorough and effective investigation capable of leading to the identification and punishment of those responsible for any ill-treatment and permitting effective access for the complainant to the investigatory procedure. Whether it is appropriate or necessary to find a procedural breach of Article 3 will therefore depend on the circumstances of the particular case. – https://hudoc.echr.coe.int/Eng#{“itemid”:[“001-58734”]}
The Court verdict regarding Niyamaddin Ahmadov, especially with such a lengthy imprisonment term, is groundless and based not on evidence but on prejudice and bias.