The court violated the fundamental human rights of Elshad Sultanov

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THE COURT VIOLATED THE FUNDAMENTAL HUMAN RIGHTS OF ELSHAD SULTANOV

Elshad Sultanov

Analysis of violation of law during Elshad Sultanov’s judicial proceedings

Baku City Court of Appeal trial, Criminal Collegium

Case № 1(103)-2241/2023

12 December 2023

Presiding judge: Ramin Qaraqurbanli

Judges: Mirzali Abbasov, Anar Ibrahimov

Defendant: Elshad Sultanov

Defender: Shahin Rahimov

The State Prosecutor: Emil Mirzoyev, a Prosecutor from the Department for Protection of State Prosecution in Courts of Appeal and Cassation within the General Prosecutor’s Office of the Azerbaijan Republic

Elshad Sultanov, born in 1983, is a Shiite believer. On 10 April 2023, he was detained and charged with committing a crime under the Article 234.1-1 (Illegal acquisition, storage, manufacture, processing, transportation without purpose of sale of narcotic drugs or psychotropic substances in significant quantities, committed in large amounts) of the Criminal Code of the Azerbaijan Republic.

By a decision of the Baku City Sabayil District Court dated 12 April 2023, it was chosen a preventive measure in the form of detention against E. Sultanov.

The period of Sultanov’s arrest occurred at a time when the relations between Azerbaijan and Iran escalated, and when the country began mass arrests of believers, who were officially accused of illegal drug trafficking and unofficially exposed as agents of Iran. The state television carried out an open propaganda campaign against Shiite believers accusing them of working for Iran’s intelligence services. But despite those accusations, none of the detainees has been charged with treason or espionage.

According to the investigation, in the course of operative-search measures, on 10 April 2023, at approximately 13:40, E. Sultanov was detained by the officers of the 9th Police Department of the Sabayil District Police Department on one of the Balu central streets.  The police officers brought him to the police station, where there was conducted a personal examination, as a result of which one bag containing 7.503 grams of heroin was found in the right pocket of his trousers.

10 April 2023, two police officers approached him near the Amai shopping centre and asked his name. They then posed several more questions: which mosque he attends, how long he performs namaz (prayer), and what he writes about on Facebook. Afterwards, the police officers told him that they had had an order to accompany him to the police station. There, they placed the heroin, which he had seen for the first time in his life, in front of Sultanov. Not having been given a list of lawyers to choose from, he was assigned a state counselor at the State expense. Sultanov testified that the drugs had been put in his pocket, then twice videotaped as the place of his detention had not been identified during the first personal examination. The defendant also testified that he had never used drugs, the testimony he signed during the preliminary investigation was taken under psychological pressure. He was threatened that if he refused signing a confession his family would also be brought to the case.

Rais Mammadov, a police officer questioned as a witness at the trial, testified that on 10 April 2023, he had received operative information regarding the illegal use of drugs, and E. Sultanov had been detained near the “Amai” shopping centre and brought to the 9th police station. When detained, Sultanov did not show any resistance and walked with them. A personal examination was conducted in the office of the interrogator, and as a result drugs were found in Sultanov’s pocket.

Orkhan Selimzade, a policeman, also questioned as a witness at the trial, provided testimony similar to R. Mammadov’s one.

On 11 April 2023, it was conducted a forensic chemical examination that revealed that the found drug was heroin manufactured in an artisanal way.

The investigative body inspected two mobile phones belonging to E. Sultanov (incoming calls, messages, etc. and found no information relevant to the case.

The first instance Court considered E. Sultanov’s statements that the drugs were not his own as defence and attempt to avoid criminal liability.

The first instance Court regarded the accused’s three young children as mitigating circumstances. The Court found no aggravating factors. However, the Court ruled to leave in force the previously chosen preventive measure of restraint in the form of arrest against E. Sultanov.

The forensic narcological examination of 17 June 2023, did not determine any signs of Sultanov’s drug addiction, and therefore no compulsory medical treatment was prescribed for the period of serving the sentence.

On 23 October 2023, the Baku City Court for Serious Crimes found E. Sultanov guilty on the charges and sentenced him to 3 years’ imprisonment in the general regime penitentiary.

The defence, disagreeing with the sentence of the first instance Court dated 23 October 2023, filed an appeal. The appeal was justified by the fact that E. Sultanov’s guilt had not been proved in the course of trial, the testimonies provide by the police officers had been accepted as the grounds for the conviction, while the real evidences had not been provide in order to determine his guilt.

During the examination of the case in the court of appeal, the defendant and his defence counsel supported the appeal and asked the court to quash the trial court’s sentence of 23 October 2023.

The State Prosecutor objected to the defence’s request and asked the court to drop the appeal and leave the first instance court’s verdict unchanged.

On 12 December 2023, the Criminal Collegium of the Baku City Court of Appeal adopted a ruling on the case of E. Sultanov: to dismiss the defence appeal and leave the sentence of the first instance court of 23 October 2023 unchanged.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The appeal stated that E.Sultanov was detained on 10 April 2023, at 14:00, but the first personal search was carried out at 18:00. The appointed lawyer and two police officers attended as eyewitnesses. Then he was transferred to a temporary detention centre where, due to some misconduct, he was again brought to the police station at 23:00 and subjected to a personal search. However, the appointed lawyer was late and therefore the re-examination was conducted at 01:00. It means that the same investigative action has been carried out twice, in 10 hours after his detention.

According to the Article 148.1 of the Code of Criminal Procedure of the Azerbaijan Republic, a person suspected of committing an offence shall be detained if there is a direct suspicion that he committed the offence or other information giving grounds for

suspicion that he committed the act provided for in criminal law.

The Article 148.2 of the Code of Criminal Procedure of the Azerbaijan Republic states:

If there is a direct suspicion that a person committed an offence, the preliminary

investigator, another official of the preliminary investigating authority, the investigator or the prosecutor may detain him in the following cases:

  • if the person is caught in the act of committing an offence provided for in criminal law or immediately thereafter on the scene of the offence;
  • if the victim or other witnesses to the act themselves assert that the act provided for in criminal law was committed by this person;
  • if clear marks indicative of the commission of the criminal act are discovered on the person’s body, on his clothes or on other items he uses, in his home or in his means of transport.

 

Thus, the law clearly stipulates the conditions in which the investigative authorities could detain an individual. As stated above, the police officers detained E. Sultanov at 14:00 and conducted a personal search at 01:00 at the police station.

According to the Article 148.3 of the Code of Criminal Procedure of the Azerbaijan Republic, if there are other grounds to suspect an individual of committing an act provided for by the Criminal Law, he/she may be detained:

  • if he tries to escape from the crime scene into hiding, or to hide from the prosecuting authority;
  • if he has no permanent home or lives in another area;
  • if his identity cannot be established.

The Article 153.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, that upon detention, the investigating authorities are obliged to ensure the detainee’s rights:

  • inform the detainee immediately after detaining him of the grounds for detention, and explain to him his right not to testify against himself and his close relatives as well as his right to the assistance of defence counsel;
  • take the detainee without delay to the police or other preliminary investigating authority’s temporary detention facility, register the detention, draw up a record and show him the detention record;
  • report each instance of detention, immediately after registration in the temporary detention facility, to the head of the appropriate preliminary investigating authority and to the prosecutor in charge of the procedural aspects of the investigation (this information shall be given in writing within 12 hours of detention);
  • secure the right of the person to inform others of his detention immediately after detention (the authority in charge of the temporary detention facility, on his own initiative, shall inform the family members of any detainees who are elderly, under age
  • or unable to do so themselves because of their mental state);
  • provide opportunities for the person, from the moment of detention, to meet in private and in confidence with his lawyer and legal representative under decent conditions and under supervision;
  • if the detainee does not have a lawyer of his own, present him with a list of lawyers from the bar association offices in the vicinity of the temporary detention facility, contact the chosen lawyer and create an opportunity for the detainee to meet him;
  • if the financial position of the detainee does not enable him to retain a lawyer at his own expense, create an opportunity for him to meet the duty lawyer from one of the bar association offices in the vicinity of the temporary detention facility, at the state’s expense;
  • if the detainee refuses the services of a lawyer, receive his written request to that effect (if he evades writing the request, a record to that effect shall be drawn up between the lawyer and the representative of the temporary detention facility);
  • secure the right of any person who does not know the language of the criminal proceedings to use the services of an interpreter free of charge;
  • not treat the detainee in a way that fails to respect his personality or dignity, and pay special attention to women and persons who are under age, elderly, ill or disabled;
  • take the restrictive measure of arrest in respect of the detainee, and bring him to court in good time in order to ensure that the question of forcibly sending him to the place where the sentence or other final court decision is to be executed, replacing the penalty given to him with another or repealing his suspended sentence or conditional release is settled within the time limits provided for in Articles 148 and 150-152 of this Code;
  • perform the duties prescribed in Article 161.0.1-161.0.8 and 161.0.10 of this Code.

At the time of detention, E. Sultanov was denied at least the following rights: the reason of detention was not provided, he was not explained his right not to testify against himself, neither his right  to choose a lawyer. Furthermore, there were no conditions to inform his family of his detention; he was not provided with a list of lawyers operating in the area.

The Right to Liberty and Personal Security, guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1)(c), is said that the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.

The European Convention, Article 5, paragraph 2, obliges the investigating authorities to inform the detainee immediately in a language he/ she understands of the reason for his/ her arrest and the charges against him/ her.

The Article 6, paragraph 3, of the European Convention guarantees the following rights to a defendant:

  • to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
  • to have adequate time and facilities for the preparation of his defence;
  • to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
  • to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
  • to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

The defendant, E. Sultanov, as stated above, was deprived of the above mentioned rights.

Also, as mentioned above, E.Sultanov testified before the Court that he had been subjected to psychological pressure in order to confess against himself. Moreover, he was threatened with reprisals against his family and, as a result, Sultanov was forced to admit the drugs as his own. As it is clear from the judgement issued at the First Instance Court, and further from the ruling of the Court of Appeal, any courts did not take further initiative to investigate those testimonies. At the trial, Sultanov testified freely and said that he had been afraid for his family, but had nothing to do with the found heroin. A forensic narcological examination also proved that he neither suffered from any form of drug addiction nor required compulsory medical treatment.

Testifying against himself and his close relatives is prohibited by the Constitution of the Azerbaijan Republic, Article 66, as well as by the European Convention, Article 6(1). Whilst this is not explicitly stated in the text of the Article 6(1) of the European Convention, it is provided for in accordance with the numerous case law of the European Court of Human Rights, where this right is referred to as the ‘right to silence’ by the Court.

The judgment of the European Court in the case of Sanders v. the United Kingdom dated 17 December 1996 states,

‘’In any event, bearing in mind the concept of fairness in Article 6 (art. 6), the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating. Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature – such as exculpatory remarks or mere information on questions of fact – may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility. Where the credibility of an accused must be assessed by a jury the use of such testimony may be especially harmful.  It follows that what is of the essence in this context is the use to which evidence obtained under compulsion is put in the course of the criminal trial.” – .https://hudoc.echr.coe.int/?i=001-58009

According to the Article 63 of the Constitution of the Republic of Azerbaijan,

  • everyone has the right to presumption of innocence. Everyone who is accused of crime shall be considered innocent until his/her guilt has been proven according to law and verdict of law court has been brought into force;
  • a person under well-grounded suspicions of crime may not be considered guilty;
  • a person accused of crime shall not be obliged to prove his/her innocence;
  • evidence obtained in violation of law may not be used in the administration of justice;
  • Nobody may be considered guilty in committing a crime without a court judgment.

The presumption of innocence is also protected by the Article 6(2) of the Convention.

It is impossible to prove E. Sultanov’s guilt solely based on the police officers’ testimonies who detained him and had a direct interest in the case outcome. His guilt was not proved in the Court, the defendant’s testimony, defence arguments were not taken into account by the judges, while the evidences obtained in the case were improperly considered, assessed not according to the law, and the doubts were not interpreted in favour of E. Sultanov. An outside observer was left with valid and serious doubts about his guilt.

Thus, the bad, illegal practice of the investigative and judicial bodies played a major role in E. Sultanov’s case, as in other similar cases.

As specified in the Article 397.1. of the Code of Criminal Procedure of the Azerbaijan Republic, there are certain limits of appeals or objections consideration. Thus, the Court of Appeal verifies the accuracy of the first instance court’s determination regarding the factual circumstances of the case, as well as the application of the Criminal Law and the Code of Criminal Procedure provisions.

In connection with the consideration of the case in the Court of Appeal, the Court shall:

  • decide to maintain the judgment or decision of the court of first instance unchanged;
  • give a new judgment setting aside the judgment of the court of first instance;
  • set aside the judgment or decision of the court of first instance and decide to discontinue the criminal case, the simplified pre-trial proceedings or the proceedings on the complaint with a view to a private prosecution;
  • decide to amend the judgment or decision of the court of first instance.

The courts’ failure to comply with the provisions of the Constitution of the Azerbaijan Republic, the Criminal Law and Criminal Procedure Law, by-laws, as well as the Articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms and theis judgements led to the violation of fundamental human rights in respect of E. Sultanov, the Right to Liberty and Personal Inviolability, the Right to a Defence Counsel of his choice, the Right to Silence, the Right to a Fair Trial and the Right to the Presumption of Innocence.