THE COURT VIOLATES RASHAD ALIYEV’S RIGHT TO FREEDOM
Rashad Aliyev
Analysis of violation of law during Rashad Aliyev’s judicial proceedings
Collegium for Criminal Cases of the Shirvan Court of Appeal
Case № 4(106)-60/2023
8 June 2023
Presiding judge: Mahammad Bagirov
Judges: Ismayil Ahmadov, Elshad Aliyev
Defendant: Rashad Aliyev
Defender: Rasul Jafarov
With the participation of Elton Agayev, a Senior Investigator of the Investigation Department of the Jalilabad District Police Department
Rashad Aliyev was born in 1997 in Jalilabad City of Azerbaijan, is a Shiite believer, previously convicted, and has a permanent place of residence in Jalilabad.
In early 2023, the Azerbaijani Embassy in the Islamic Republic of Iran was attacked. The wave of repression against Shiite believers, which began long ago, got more intense following the attack on the Embassy. In 2023, more than 500 people were arrested, all of whom were prosecuted for the illegal drug distribution on a large scale.
Rashad Aliyev was detained on 31 January 2023 in Jalilabad.
According to the investigation, a cellophane bag with the narcotic drug, methamphetamine, weighing 38.043 grams was found in his possession. Rashad Aliyev was charged with committing a crime under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic.
On 1 February 2023, the Jalilabad District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Rashad Aliyev in the form of detention for a period of 4 months. On 25 May 2023, the Jalilabad District Court extended the term of his arrest for another two months until 31 July 2023. The defence asked to revoke the Court ruling of 25 May 2023 and release Rashad Aliyev.
In the course of the trial it was questioned a Senior Investigator of the Investigation Department of the Jalilabad District Police Department who said that R. Aliyev could hide from the investigation and trial, put illegal pressure on the people involved in the criminal procedures, interfere with the normal course of the investigation, so he asked the Court to leave the ruling of 25 May 2023 unchanged.
On 8 June 2023, a Collegium for Criminal Cases of the Shirvan Court of Appeal issued a ruling: to reject the appeal of R. Aliyev’s defense lawyer and leave the ruling of the Jalilabad District Court of 25 May 2023, unchanged.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
According to the Article 159.1 of the Code of Criminal Procedure of the Azerbaijan Republic,
At the pre-trial stage of criminal proceedings, the period of detention on remand of the accused may be prolonged by a court, depending on the complexity of the case: for those offences which do not pose a major public threat, for no longer than 1 (one) month; for minor offences, for no longer than 2 (two) months; for very offences, for no longer than 3 (three) months, and for very serious offences, for no longer than 4 (four) months.
As said above, the initial imprisonment term of R. Aliyev was 4 months due to the serious offence incriminated by the investigating authorities. Further, the Prosecutor and investigator requested to extend the term of imprisonment for another 2 months.
In the Article 159.1 of the Code of Criminal Procedure of the Azerbaijan Republic it is mentioned a “motivated motion” of the investigator and the prosecutor’s submission. However, the investigating authorities did not provide to the Court any arguments and justifications that would give grounds for the detention term extension. The investigator’s reason voiced out at the trial was not based on any evidence. As in other cases, in the case of R. Aliyev, the investigative body formally indicated, as a reason, the probability of concealment from the investigation and Court as well as exerting unlawful pressure on the criminal procedures parties.
Moreover, there was not a single argument related to the fact that the interests of society exceed the right to freedom of R. Aliyev, and the gravity of the incriminated offence cannot be sufficient for the selection of the strictest preventive measure.
In the Article 159.4 of the Code of Criminal Procedure of the Azerbaijan Republic states,
When deciding whether to prolong the remand period, the court shall have the right to substitute house arrest for detention on remand or to release the accused by granting bail and determining the amount of bail.
The Court did not exercise the legal power and failed to consider the option of changing an arrest to alternative types of preventive measures.
The present criminal case is not complicated from the point of view of participants in the proceedings, in terms of episodes, etc. There are not a large number of defendants and other participants, i.e. all this suggests that there is no need for a large amount of time to investigate the case. For the first 4 months of the investigation, it was carried out almost all investigative activities: interrogations, examinations, etc. In fact, during the next 2 months the defendant was kept in custody only on the basis of formal arguments, general phrases and an unfounded investigator’s petition.
The Right to Liberty and Personal Inviolability, apart from the Constitution of Azerbaijan, Article 28, is guaranteed by Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
According to the ECHR on the matter of the cases concerning the terrorist offences investigation:
“The Court has reiterated on several occasions in the past that the investigation of terrorist offences is undoubtedly caused for the authorities particular difficulties. However, it does not mean that the investigating bodies have carte blanche under the Article 5 to arrest and detain individuals suspected in terrorism for interrogation outside the effective control of the domestic Courts or the Convention authorities. The point is the importance of Article 5 in the Convention system: it refers to a fundamental human right, namely the protection of the individual against the State arbitrary interference on his or her liberty. The judicial control of such interference on the part of the executive power is an important element in the Article 5(3) that is intended to minimise the danger of arbitrariness and ensure respect of the Law, which is one of the ‘basic principles of a democratic society’ referred to in the Preamble of the Convention” (Sakik et al. v. Turkey). – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22sakik%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58117%22]}
Equally important is the ECHR judgment in the case of Van Der Tang v. Spain of 13 July 1995, in which it is written about the reasonableness of the accused detention:
“The reasonableness of the detention of the accused must be assessed in each case in accordance to eace case particularity. (…) Detention can be justified, in a given case, only if certain indications reveal a genuine requirement of public interest overriding, notwithstanding the presumption of innocence, respect for individual liberty”.
As is evident from the European Court of Human Rights (ECHR) case law, the issuance of arrest orders must be clearly and fully justified, and an investigator’s petition for arrest must contain detailed arguments to prove each of the grounds given by the investigating authority to justify the arrest. The personal freedom of each individual is so essential in democratic societies that even in dealing with such serious and complicated offences as terrorism, the investigating authorities and Courts are obliged to consider a defendant’s liberty prior to sentencing. This ensures not only the legal right to liberty for a defendant, but also his/her presumption of innocence, to which investigative and judicial bodies must be governed at all stages of criminal proceedings.
The unjustified extension of Rashad Aliyev’s detention violated his right to liberty, presumption of innocence and a number of other related rights.