SARDAR BABAYEV’S PRISON TERM CONTINUES TO BE EXTENDED
Sardar Babayev
Analysis of violation of law during Sardar Babayev’s judicial proceedings
Baku City Appeal Court
Case № 4(103)-611/2022
21 September 2022
Presiding judge: Zaki Babayev
Judges: Ibrahim Ibrahimli, Mirzali Abbasov
Defendant: Sardar Babayev
Defender: Javad Javadov
With the participation of: Kenan Aliyev, the Head of Unit at the State Security Service, Main Investigation Department; Ramil Adilov, the Prosecutor at the Department of Control over Execution of Laws in Investigation, Inquiry and Investigation Activities of the Ministry of Emergency Situations, State Security Service and State Border Guard Service of the General Prosecutor’s Office of the Azerbaijan Republic
In February 2017, Sardar Babayev, a theologian from the Masalli district of Azerbaijan and member of the Spiritual Persons Society of Azerbaijan, was prosecuted for an offence under the Article 168.1 (Creation of group which are carrying out activity under pretext of distribution of religious faiths and implementation of religious activities and by this illegally interfere in social order) of the Criminal Code of the Azerbaijan Republic. On 3 July 2017, the Masalli District Court found Babayev guilty and sentenced him to 3 years imprisonment.
On 20 October 2021, Babayev was arrested for the second time. On 21 October 2021, he was charged with an offence under the Article 274 (State betray) of the Criminal Code of the Azerbaijan Republic. Along with him the following individuals were detained: Jalal Safiyev, Qadir Mammadov and Tamkin Jafarov. They were employees of the maide.az website, where Sardar Babayev was the editor. Following searches carried out in their flats, all of them were released except for Sardar Babayev.
A preventive measure in the form of detention for a period of two months has been imposed against him. Babayev is being held in the Investigative Isolator of the State Security Service. His preventive measure was extended by a decision of the Baku Sabayil district court of 14 December 2021, until 19 April 2022, then, by another decision issued on 14 April 2022, until 19 September 2022.
On 16 September 2022, Kenan Aliyev, the Head of Unit at the State Security Service, Main Investigation Department, applied to the Baku Sabayil district court to extend Sardar Babayev’s preventive measure for another 6 months, until 19 March 2023. On 19 September 2022 the Baku Sabayil District Court has issued a decision ordering to extend the term of restraint. The defence appealed against the ruling to the Baku Court of Appeal.
On 21 September 2022, the Criminal Chamber of the Baku Court of Appeal issued a ruling against Sardar Babayev: to uphold the decision of the Baku Sabayil District Court from 19 September 2022, and to extend the period of restraint in the form of detention.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified. According to the Article 154.1 of the Code of Criminal Procedure of the Azerbaijan Republic, a restrictive measure is a coercive procedural measure intended to prevent unlawful behaviour by the suspect or accused during criminal proceedings and to ensure the execution of the sentence; it shall be applied in the cases described in Article 155.1 of this Code.
There are all types of preventive measures listed in the Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic, the toughest of which is detention.
According to the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic, there are grounds on which a preliminary inquirer, investigator, prosecutor in charge of the pre-trial investigation or a judge may impose a measure of restraint:
- 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 grounds listed in the judicial order are:
- a particularly serious offence committed by S. Babayev;
- hiding from the body conducting the criminal proceedings;
- probability of obstructing the normal course of the preliminary investigation or court proceedings.
Furthermore, there is a reason in the ruling indicating that the sanction of the incriminated Article stipulates a punishment of 12 to 20 years’ imprisonment; the offence is classified as a particularly serious one. It also states that the nature and gravity of the offence “gives reason to assume” that the accused may abscond from the investigation or hinder the normal course of the investigation.
According to the Article 28 of the Constitution of the Azerbaijan Republic,
- Everyone has the right for freedom.
- Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.
This right is enshrined both in the norms of National law and in international treaties. For example, the Article 5 (1) of the European Convention on Human Rights states:
- Everyone has the right to liberty and security of person.
According to the Article 157.1 of the Code of Criminal Procedure of the Azerbaijan Republic,
In accordance with the principle of the presumption of innocence, if the
connection of the person to the offence committed is not proven, he may not be arrested or unnecessarily detained on remand.
A person’s detention in custody may be extended by the Court in the pre-trial stages of criminal proceedings on the basis of a reasoned application by the investigator and a submission by the prosecutor in charge of the procedural administration of the pre-trial investigation; for a period not exceeding one month for offences that do not constitute a major public danger, two months for minor offences, three months for serious offences and four months for especially serious crimes (the Article 159.1 of the Code of Criminal Procedure of the Azerbaijan Republic).
As noted above, the Article 159.1 of the Code of Criminal Procedure of the Azerbaijan Republic refers to a “reasoned motion”. It means that the Court shall only grant a motion that is in accordance with the Law and contains a particular reasoning. In other cases, an extension of the preventive measure would be unlawful and unreasonable.
In the Court ruling, it is stated that the investigative body has still to carry out several other investigative steps related to this criminal case (mainly those that are based on the results of forensic examinations).
A close look at the grounds set out in the application for the extension of the detention period indicates that they are similar to the grounds set out in the previous application brought before the Court for the same reason. They are virtually indistinguishable and copied word for word from the previous one. The Court failed to consider the defence’s arguments, didn’t give them a legal assessment and disregarded them while issuing the ruling.
The Judgment of the European Court in the case of Smirnova v. Russia from 24 July 2003, it stated,
- A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (see, as a classic authority, Wemhoff v. Germany, judgment of 27 June 1968; Yagci and Sargin v. Turkey, judgment of 8 June 1995).
- The danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre-trial detention. In this context regard must be had in particular to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts (see W. v. Switzerland, judgment of 26 January 1993, Series A no. 254-A, § 33 with further references).
- The issue of whether a period of detention is reasonable cannot be assessed in abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see W. v. Switzerland, cited above, § 30).
- It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Letellier, cited above, § 35).
- Arguments for and against release must not be “general and abstract” (see Clooth v. Belgium, judgment of 12 December 1991, Series A no. 225, § 44). – http://sutyajnik.ru/rus/echr/judgments/smirnova_eng.htm
The case of Smirnov v. Russia is a typical example of the procedural irregularities that occur in the course of investigations, particularly in the post-Soviet countries, one of which is also Azerbaijan.
Unfortunately, despite the National and International Norms prohibiting the extension of preventive measures unless there are sufficient grounds for it, the investigative authorities are still submitting unmotivated motions and submissions to the courts, and the Courts, in its turn, are still issuing illegal and unfounded rulings that are based only on assumptions rather than on definite evidence.
The case of the second-time arrested Sardar Babayev was no exception either. The unjustified extension of the preventive measure was a violation of his right to liberty.