THE LACK OF AN INDEPENDENT JUDICIARY HAS ONCE AGAIN LED TO THE VIOLATION OF THE AZERBAIJANI CITIZENS RIGHTS
Ruslan Izzatli
Analysis of violation of law during Ruslan Izzatli’s judicial proceedings
Baku City Court of Appeal trial, Criminal Collegium
Case № 4(103)-1077/2024
10 October 2024
Presiding judge: Elbey Allahverdiyev
Judge: Javid Huseynov, Qabil Mammadov
Defendant: Ruslan Izzatli
Defender: Rasul Jafarov
With the participation of Jeyhun Huseynov, a Senior Investigator from the Division for Investigation and Inquiry of Special Cases within the Baku Police Headquarter
Ruslan Izzatli, born in 1989, began his political activity in the Umid Party. In 2012-2013, he served as a deputy chairman of the party.
In 2013, R. Izzatli was elected Chairman of the D18 Movement, in 2015 and 2020 he was registered as a candidate in the parliamentary elections.
In May 2020, he was sent for the compulsory military service and participated in the second Karabakh war, for what he was twice awarded.
In 2021, R. Izzatli left the post of D18 Movement Chairman and continued to pursue his political career independently.
On 7 December, 2023, he and other political activists founded an organisation under the name ” The Platform of the III Republic“.
In November 2023, there were arrests of journalists from the Abzas Media online publication and then employees of the Toplum TV online resource. On 6 March 2024, the police entered the Toplum TV office, where there were the founders of the Platform and employees of the Institute for Democratic Initiatives. Ruslan Izzatli was detained, but released the same evening.
On 8 March 2024, in the morning, R. Izzatli was again detained near the Baku City Khatai District Police Department. The same day, his house was searched and as a result, the police seized 4,700 euros. His wife and young son were locked in a room while the search was conducted.
Несмотря на обжалование защитой вынесенного постановления, суд оставил меру пресечения в виде ареста в силе. Впоследствии данная досудебная мера неоднократно продлевалась.
Ruslan Izzatli was charged with committing an offence under the Article 206.3.2 (Smuggling committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic. On 9 March 2024, the Baku City Khatai District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Ali Zeynalov in the form of detention for a period of 4 months. Despite the defence’s appeal against the ruling, the Court upheld the preventive measure in the form of arrest. Subsequently, this pre-trial measure was extended again and again.
On 28 September 2024, the investigating authority requested one more time the Court to extend the preventive measure until 6 January 2025. On 1 October 2024, the Court issued an order granting the investigation request and the Prosecutor’s submission to extend the preventive measure until 6 January 2025.
The defence, not accepting that ruling, appealed to the Court.
At the trial, the defence pointed out that the first-instance court’s ruling on the extension of the preventive measure should be cancelled, and in case a necessary extension, the preventive measure in the form of arrest should be replaced with a house arrest.
On 10 October 2024, the Baku City Court of Appeal issued a ruling to decline the defence’s appeal and leave the court’s ruling issued on 1 October 2024, in force.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
According to the legislation, there must be procedural and substantive legal grounds for the imposition of a preventive measure in the form of arrest against an accused.
Substantive grounds refer to the evidence confirming an accused involvement in the commission of the act punished by the criminal law. The procedural grounds, on the other hand, consist of the grounds determined by the Court, which consist of the totality of circumstances stipulated in the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic and confirm the legality and necessity of the chosen preventive measure.
In selecting a preventive measure, the Courts should not be limited with a formal enumeration of the grounds specified in the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic; the relevance of a particular ground to the accused must be verified, and whether it is confirmed with the criminal case materials.
The Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic states,
Restrictive measures may be applied by the relevant preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court when the material in the prosecution file gives sufficient grounds to suppose that the suspect or accused has:
- 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.
As it was said under paragraph 4 of the Decision of the Supreme Court Plenum of the Azerbaijan Republic “On judicial practice on consideration of applications linked to preventive measures in the form of arrest and house arrest” and, then clarified to the Courts that when considering an implementation of arrest and house arrest as preventive measures, the Courts must first of all check the feasibility of another preventive measure provided for under the Article 154 of the Code of Criminal Procedure of the Azerbaijan Republic, and if the application is granted, the impossibility of implementing a preventive measure other than arrest must be justified
In the commented judgement there is not a single indication that the Court considered the imposition of alternative preventive measures other than arrest.
There is not a single reason or argument why the Court extended the term of the preventive measure in the form of arrest, rejecting to replace the arrest with house arrest, as requested by the defence.
The Court noted in its ruling that the criminal case, in which Mr Izyatli is an accused, is complicated, therefore additional time is required and the investigators have to conduct a number of other forensic examinations. The Court also pointed out that the grounds for arrest, previously listed in the rulings, had not been eliminated, and therefore the preventive measure in the form of arrest could not be replaced by a house arrest.
In accordance with the procedural Norms of National and International laws, the arrest must be lawful and legitimate. All suspicions must be well-founded.
One of the judgments of the European Court of Human Rights (ECHR) has stated that
‘Reasonable suspicion justifying detention is an essential element of the protection against arbitrary deprivation of liberty provided under the Article 5(1)(c). The existence of reasonable suspicion beforehand assumes the availability of facts or information which would convince an objective observer that an individual would have committed the offence. Nevertheless, the suspicious facts have not attained the level of reasonable grounds for conviction or even indictment, as is required at a subsequent stage of the criminal proceedings.”
The judgment of the European Court of Justice in the case of Kudla v. Poland dated 26 October, 2000, states,
“The Court reiterates that the reasonable term is not subject to an abstract̆ assessment. The reasonableness of an accused’s detention must be determined for each case on an individual basis in accordance with the particular features of the case. Detention may be justified, in a given case, only if specific indications reveal the existence of a genuine public interest overriding, notwithstanding the presumption of innocence, the respect for individual liberty enshrined in the Article 5. It is primarily incumbent on the domestic judicial authorities to ensure that the pretrial detention of the accused does not exceed a reasonable term. In order to do so, taking into account the principle of the presumption of innocence, they must investigate all the circumstances establishing a public interest that would justify an exception to the general requirement respecting the individual’s liberty, and consider them in their judgement concerning requests for release. Based on the reasons set out in the judgments relating to the applications for release and on the facts submitted by the applicant in his complaint, it is for the Court to determine whether there has been a violation of the Convention,Article 5 para. 3.”- https://hudoc.echr.coe.int/?i=001-58920
Thus, ‘the mere existence of a serious suspicion of involvement in serious offences, as a relevant factor, does not justify such prolonged pre-trial detention’ (Van der Tang, 63).
The lack of motivation and arguments, disregard for the principle of presumption of innocence, and the unavailability of an independent judicial system in Azerbaijan stated in the judgement led to another violation of the right to liberty and personal inviolability of R. Izzatli, which is ensured under the Article 28 of the Constitution of the Azerbaijan Republic and Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.