Shirvan Appeal Court kept Ziya Asadli’s verdict unchanged
Analysis of the law violations at the Shirvan Appeal trial of Ziya Asadli
Shirvan Court of Appeal, the Criminal Collegiums
Case No 1(106) 41/2018
January 09, 2018
Presiding Judge: Rafiq Djafarov
Judges: Alesker Novruzov, Etibar Djamalov
Accused: Ziya Asadli
Defender: Elchin Sadiqov
Prosecutor: Elnar Huseynov
Injured person: Aslan Hasanov
Regional correspondent of the Azadliq newspaper (“Freedom”) in Bilasuvar City Ziya Asadli had been detained in May 2017. He was charged with a crime under article 221.3 (“The hooliganism committed with application of a weapon or subjects, used as the weapon”) of the Criminal Code of the Azerbaijan Republic (CC AR). In respect of journalist the preventive measure of restraint in the form of capture under police surveillance. Under the version of investigation, on April 19, 2017 around 13:00 Z. Asadli blatantly violates public order near the cafe in Bilasuvar City. His actions “were expressed in blatant disrespect for society and were accompanied by violence against cafe manager Aslan Hasanov”. In the indictment noted that Z. Asadli has offended Aslan Hasanov and bit him on the forehead with Samsung mobile phone. Then he had stabbed to shoulder and back. This has resulted temporary health disorder of A. Hasanov. In a counterbalance of version of the investigation the defence submits Z. Asadli’s arrest politically motivated and connected with his professional activity. Z. Asadli own has said that his pursuit was commenced since the day when he took video a social protest of local population in the village of Hyrmandaly from Nefchala district and he reported this information to the general public. In the preliminary investigation stage and in court, the accused said that he didn’t hit A. Hasanov, and on the contrary, itself is attacked from Hasanov’s side. When Z.Asadli was entered into cafe on April 9, 2017, A. Hasanov used the following words: “This is no place for oppositions”. The journalist has not visit café in order to avoid provocations. On April 19, 2017 Z. Asadli walked passed near café. At that moment A. Hasanov attacked him. The journalist has informed it to the Police Service No 102 immediately. Nevertheless, criminal case was opened against Z. Asadli, and Aslan Hasanov hasn’t been held accountable. He was only deemed as victim of this criminal case. During the preliminary investigation and trial were questioned as witnesses only the staff of cafe. On September 5, 2017 Bilasuvar District Court found journalist guilty on all accusations that were brought against him and sentenced him to 3 years imprisonment. On the same day a preventive measure under police surveillance were commuted to arrest. Z. Asadli was detained on the courtroom immediately. The defence and Z. Asadli himself accepted the verdict as illegal and unreasonable and submitted an appeal. In the appeal the defence requested partial judicial investigation, annul the sentence of Bilasuvar District Court from September 5, 2017 and a conviction for an acquittal concerning journalist. On January 8, 2017 Shirvan Baku Appeal Court decided to refuse the appeal and confirmed the verdict of the first instance court from September 5, 2017 without amendments. Commentary by an expert lawyer: The court decision is unlawful and groundless. Under national legislation, the appellate court can might repeal the sentence of the first instance in the following cases: • unclear of the court conclusions all actual circumstances, which are important (article 399.1.1. of the Criminal Procedure Code of the Azerbaijan Republic (CCP of AR);
• the inconsistency between the conclusion of court and factual circumstances of the case (article 399.1.2. CCP of AR);
• lack of proof of the circumstances determined by the court of the first instance that are important for case (article 399.1.3. CCP of AR);
• misuse rules of criminal law (article 399.1.4. CCP of AR); • imposition by the court of a penalty of a severity incommensurate with the defendant’s actions and character (article 399.1.5. CCP of AR).
In the case of Z. Asadli there has been all conditions for the annulment of sentence by the court of first instance.
During the trial accused’s testimony have not been investigated, didn’t check his version, questioned only witnesses from staff of cafe which administrator was a victim, don’t interpreted all contradictions in favor of the defendant as indicated in Criminal Procedure Code. the criminal procedure legislation.
Court violated defendant’s right to liberty and security (article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms), right to a fair trial (article 6 of the European Convention), right to freedom of expression (article 10 of the European Convention), prohibition of abuse of right (article 17 of the European Convention) and limitation on use of restrictions on rights (article 18 of the European Convention).
Will consider this violations.
The court reversed a preventive measure to the accused person detention under the police supervision, but has not substantiated this decision. The court did not provided for its decision – why a preventive measure imposed previously was changed to tougher measure arrest and on what grounds for it. The court also did not considered the personality, marital status of journalist and other circumstances. The court was presented evidence that Z. Asadli was disabled of II group, he suffers from pulmonary disease, are the sole providers for their families and has the care of the two young children.
A preventive measure against the accused and also foresees punishment such as deprivation of liberty violate principle of humanity which guaranteed by article 9 of the Criminal Code of Azerbaijan Republic. According to this article:
9.1. The criminal code guarantees security of person. 9.2. The penalties and other measures applied under criminal law to an offender may not have character or purpose of torture or another cruel and inhuman or degrading treatment. The court showed bias to offender, ignored mitigating factors – family situation, health and the identity of the accused. The court on the Z. Asadli in Shirvan Appeal Court has also illustrated violation of the right to a fair trial. According to numerous reports of authoritative international human rights organizations, the judicial system in Azerbaijan isn’t independent and impartial. That is something that one can discover to observe at first hand politically motivated trials – proceedings against members of opposition parties, activists of civil society, human rights defenders, bloggers, believers and journalists. Usually, in these processes all the basic human rights are violated: right to freedom, right to protection, right to a fair trial, right to freedom of speech, freedom of assembly and associations and also right to freedom of thought, conscience and religion; don’t defence important motion directly related to this case; courts and public authorities breach principle of the presumption of innocence. The case of Z. Asadli was no exception also. Unjustified violation of the above-mentioned rights guaranteed by the European Convention on Human Rights, suggests that restriction on the rights of the accused has a specific objective – punishment of journalist for his professional activity. Although signatory countries of the European Convention which Azerbaijan is member, committed themselves to respecting provided for the European Convention and restrict their if stipulated by law only.
The law of the Courts and Judges Act of Azerbaijan Republic says: “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” (article 8 of the Courts and Judges Act).
Article 99 of the Courts and Judges Act establishes the following duties of judges which are:
• comply with the statutory requirements precisely and implicitly and secure moral and educational impact of judicial activity, and to be just and impartial in the course of administration of justice; • maintain the secrecy of deliberation and of information revealed at the closed court sessions; • refrain from any act harming prestige of justice; good name, honor and dignity of a judge.
However, the legislation of the Azerbaijan Republic itself question the independence of judges and judicial system in general. According to article 94 of the Courts and Judges Act “the president of the Azerbaijan appoints judges of the Republic of Azerbaijan”. That is executive powers. In the performance of their duties, judges are also dependent from the Judicial and Legal Council led by the Minister of Justice. The case of the journalist Z. Asadli was an additional example of gross violation of fundamental human rights and judge’s impartiality against dissent