Shirvan City Court pronounced the verdict for Aliakram Khurshudov
Analysis of violation of law during Aliakram Khurshudov’s judicial proceedings
The Shirvan City Court
Criminal case № 1 (032)-20/2018
May 04, 2018
Judge: Elchin Gurbanov
Accused: Aliakram Khurshudov
Defenders: Nemat Kerimli, Osman Kazymov
Prosecutor: Shakir Samedov
Complainants: Niyamaddin Aliyarov, Elchin Talybov, Yunus Abyshov, Yaser Melikov
On November 22, 2017 the chairman of Shirvan branch of the oppositional Musavat Party Aliakram Khurshudov was detained. He was charged of committing the offences under articles 221.2.2 (The hooliganism committed with resistance to representative of the authority, acting as on protection of a social order or stopping infringement of a social order or with resistance to other person) and 221.3 (The hooliganism committed with application of a weapon or subjects, used as the weapon) of the Criminal Code of Azerbaijan Republic. On November 24, 2017 Shirvan City Court ordered detention against A. Khurshudov preventive measure in the form of arrest for a period of 3 months. Subsequently, the duration of preventive measure was extended.
On January 8, 2018 the article 221.2.2 of the Criminal Code of Azerbaijan Republic was excluded from the charge against A. Khurshudov. But, instead was added the article 315.2 (Resistance or application of violence concerning the representative of authority with violence dangerous to life or health) of the Criminal Code of Azerbaijan Republic.
After the end of the preliminary investigation of this criminal case it was referred to the Shirvan City Court. During the trial A. Khurshudov pleaded not guilty and testified that he worked as a repairman of apartments.
A month before the event, an unknown person called him and has invited to work at home of his relatives. After 15 days A. Khurshudov started working in the house, where he was invited. On November 22, 2017 in the house where Khurshudov worked, was a spouse of the owner of the house. In the evening, after work, he went to the bathroom to change clothes. At this point the doors of the house knocked. It was the owner of the house Niyamaddin Aliyarov. With a cry of breaking into the house, he became to expel his wife with the words “You cheating on me, get out of here”. Then he came to Khurshudov, dragged him into the yard and removed from him a pullover. At this point, Elnara Karimova, the wife of Aliyarov started to beat Khurshudov all over his body.
Furthermore, two strangers (he later learned that it was Svetlana Jafarova and Elvin Misirkhanov) entered into the yard and tried to resolve the conflict. In 15-20 minutes to place came three police officers, two of whom were in a police uniform, and one in civilian. The police officers immediately grabbed A. Khurshudov and one of them said: “You hurt my leg» and another: “You ripped from me shoulder straps”. Then police put A. Khurshudov in a car and took him away to the Police Department of Shirvan City. In department the police reported Aliakram Khurshudov that they have a complaint against him. In response he stated that never hit anyone, did not offend and did not resistance to police officers.
During the pre-trial investigation and the trial were heard testimony from the police officers, owner of the house Niyamaddin Aliyarov and his spouse Elnara Karimova, as well as Svetlana Jafarova and Elchin Misirkhanov included in the courtyard of the house.
On May 4, 2018 after completion of judicial investigation the Shirvan City Court found A. Khurshudov guilty of the charges and sentenced to 5 years of imprisonment.
Commentary by an expert lawyer:
The court decision is unlawful and groundless. In any cases must be met objectivity, the impartiality and justice of criminal legal proceedings set forth in the criminal procedure legislation. Thus, according to the article 28.1 of the Code of Criminal Procedure of the Azerbaijan Republic, “courts shall hear criminal cases and other prosecution matters in accordance with the legal procedures established by this Code, on the basis of the facts and of impartiality and justice”.
As can be seen from materials of the case, the testimonies of the police officers contradict not only to testimony of the defendant, but also each other. Thus, there is a contradiction in the testimony of the police officer Elchin Talybov. During the preliminary investigation he showed that, despite injuries, he continued to perform his duty. But during the trial E. Talybov has shown due to injury he couldn’t walk for several days.
In this regard, the defence filed a motion requesting to provide a certificate of passing Elchin Talybov of physical therapy due to injury. The court granted the petition, and its execution was entrusted to E. Talybov. However, this certificate was not provided to court. But E. Talybov unpunished and did not suffer any liability for failure to execute a court decision.
During judicial examination A. Khurshudov showed that did not know where and why suddenly appeared in the house N. Aliyarov Svetlana Jafarova and Elchin Misirkhanov, what they are doing there and how did know about the conflict. As is well known, testimonies in trial are one of types of evidence. According to the article 125.1 of the Code of Criminal Procedure of the Azerbaijan Republic, 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. However, the court did not attach any attention to the testimonies of the accused and didn’t investigate them. As a rule, the judge sentences indicate that the testimonies of the accused are “protective nature”, and did not give them a legal assessment. This is contrary to the criminal procedure legislation.
Thus, according to the article 126.4 of the Code of Criminal Procedure of the Azerbaijan Republic, the value of evidence may not be assigned to statements given in the following situations:
126.4.1 when a person is agreed to be unable to comprehend or describe matters significant to the prosecution at the appropriate time;
126.4.2 when a person refuses to undergo an examination by experts of his ability to comprehend or describe matters significant to the prosecution.
Furthermore, according to the article 126.3, information given to the prosecuting authority by the suspect, accused, victim or witnesses on the basis of hearsay may not be used as evidence.
As can be seen, the court had no legitimate reasons not to give a legal evaluation of the testimonies of the accused, who pleaded not guilty.
In criminal cases, the law imposes a duty of proving and responsibility for demonstrating guilt falls and his guilt on the prosecution. According to the article 144 of the Code of Criminal Procedure of the Azerbaijan Republic, evidence collected for the purposes of prosecution shall be verified fully, thoroughly and objectively. As part of the verification process the items of evidence collected shall be analysed and compared with one another, new evidence shall be collected and the reliability of the source of the evidence obtained shall be established.
In the case of Aliakram Khurshudov the court did not take the initiative to check the irrefutability of evidence, had taken all the proofs as they were presented to investigating assessing and not given a legal assessment of the arguments of the defence.
The accused himself and his defenders during court stated that they did not see any logic in the charge, and his arrest is a customized character and is connected with his political activity in oppositional Musavat Party.
The analyzing the evidence of prosecution and arguments of the defence, it becomes clear how illogical indictment was drawn up, one proof of charge contradicts the other.
This has been illustrated on the example of the police officer Elchin Talybov’s testimony who wrote the official report. He showed that the dispute in Aliyarov’s house took about 10-15 minutes and in a few minutes later the police officers were already in place. A simple mathematical calculation will tell a lot: Elnara Karimova reported about the conflict in service 102 at 17:57. This takes a maximum 1-2 minutes. The service 102 during the next 1-2 minutes transmits the information to the Police Department of Shirvan City. The duty officer Hikmat Ismayilov accepted the official report and reported it to the Department. The official report is compiled and reported what had happened. It takes 10 minutes. Further, the investigation team receives information about incident and it takes 2-3 minutes. According to the information of the members of the investigation team, they arrive at the scene within 15-20 minutes. Thus, all this process takes about 60 minutes (1 hour).
How can it be that the police arrived much earlier in N. Aliyarov’s house?
Despite the fact that the testimony of E. Talybov is not accurate, the court hasn’t shown any initiative in a full and objective investigation of other circumstances of the case.
According to article 346.1 of the Code of Criminal Procedure of the Azerbaijan Republic, following matters relating to the results of the court’s examination of the case shall be discussed by the court (or examined by the judge) in the deliberation room:
346.1.1. whether the criminal act is proved;
346.1.2. whether it is proved that the act committed by the accused has a criminal
content;
346.1.3. whether it is proved that the accused was connected with the commission of the
offence;
346.1.4. whether the accused is proved guilty of committing the offence;
346.1.5. whether the act committed by the accused corresponds to the ingredients of the
offence with which the accused is charged under the relevant provision of criminal law;
346.1.6. whether there are circumstances that preclude the act being an offence;
346.1.7. whether there are circumstances aggravating or mitigating the criminal
responsibility of the accused;
346.1.8. whether there are grounds for exonerating the accused from criminal
responsibility;
346.1.9. whether the accused should be punished for the act committed;
346.1.10. whether there are grounds for punishing the accused for reoffending;
346.1.11. which punishment to impose on the accused (including consideration of
previous offences, the total number of offences, the total length of sentences, the
combination of penalties, calculation of the length of sentences, an alternative penalty,
reduction of sentence, the jurors’ recommendation of a lighter sentence instead of the
statutory penalty provided for in respect of this offence, and the possibility of imposing
a conditional sentence);
346.1.12. whether the accused should serve the sentence;
346.1.13. if the accused is sentenced to deprivation of liberty, to which penal or
corrective institution he should be committed;
346.1.14. whether it is necessary to impose additional penalties on the person found
guilty of the offence, and if so, which penalty;
346.1.15. whether it is possible to apply compulsory corrective training measures to an
under-age accused and, if so, which measures;
346.1.16. whether it is possible to apply compulsory measures of a medical nature to the
accused and, if so, which measures;
346.1.17. in whose interest and for what amount the civil claim should be secured;
346.1.18. whether the attachment of property, either for the purpose of confiscation or
to pay for the damage caused by the offence, should be rescinded;
346.1.19. how to decide the matter of the material evidence;
346.1.20. whether to annul, modify or adopt a restrictive measure (and if so, which
measure), including how to resolve the matter of bail;
346.1.21. whom to charge with the court expenses, and their amount;
346.1.22. when the sentence is to start;
346.1.23. whether there are grounds for giving a special decision; if so, about whom it
will be given and what its content will be.
It is clear from the judgment that all of this issues have not been resolved by the court. The sentence is not motivated. The main object of hooliganism is a public order, additional objects – human health, honor and dignity of individuals. The objective aspect of hooliganism is in gross violation of public order which expressed in obvious disrespect for society and is committed with use of weapons or the objects used as weapon. A flagrant violation of public order is such acts of the person that cause essential harm to an order, undermine of public tranquility, etc. Obvious disrespect for society means open manifestation of negligence of the person to the rule of conduct, to the identity of the person, his/her honor, dignity.
Extreme contempt of
None of the above-mentioned has nothing to do with Aliakram Khurshudov and in his actions no crime was committed. According to article 351.2 of the Code of Criminal Procedure of the Azerbaijan Republic, a conviction by the court may not be based on assumptions and shall be handed down only where guilt of the accused is proved during the court’s examination of the case. As we can see, the guilt of Aliakram Khurshudov was not proven in the court