THE RIGHT TO PRESUMPTION OF INNOCENCE AND FAIR TRIAL HAS BEEN VIOLATED IN THE CASE OF IQBAL ABILOV
Iqbal Abilov
Analysis of violation of law during Iqbal Abilov’s judicial proceedings
Baku City Sabayil District Court
Case № 4(009)-388/2024
24 July 2024
Presiding judge: Rana Qafarova
Defendant: Iqbal Abilov
Defender: Qanqa Ibrahimov
With the participation of Fuad Almammadov, Acting Head of the Second Department of the Main Investigation Office within the Azerbaijan Republic State Security Service Investigation Department, and a Counsellor of Justice, Qadir Mammadov, a Senior Methodist-Prosecutor at the Department for Supervising the Execution of Laws in Investigation, Inquiry and Operative Investigation Activities of the State Security Service and State Border Guard Service within the AR General Prosecutor’s Office.
Iqbal Abilov, a researcher-scientist, is one of the founders of ‘Talysh National Academy’, as well as the editor-in-chief of the press publication ‘News of Talysh National Academy’. His articles have been published on various media websites.
I.Abilov is an ethno-Talish, citizen of the Azerbaijan Republic living in the Republic of Belarus. Having come to his parents in Bala Kolaghan village in Masally region, on 22 July 2024, he was detained by the State Security Service (SSS).
According to Abilov’s relatives, he had been living in Belarus since his childhood and came to Azerbaijan to attend a relative’s wedding.
On 22 July 2024, he was interrogated for 6 hours by the Masally District SSS Department officers, after which he was released. Abilov was to fly from Baku to Moscow, but he was not admitted to the aircraft. His passport and phone were confiscated.
On the pretext of recovering his passport and phone, he was again summoned to the Masally District SSS Department. From there, he was sent to Baku, not informing his parents, who subsequently applied to the Ombudsman’s Office where they were informed that Iqbal Abilov had been suspected of committing offences under the Articles 274 (High treason), 281.3 (Public appeals to violent capture of authority, violent deduction of authority or violent change constitutional grounds or infringement of territorial integrity of the Republic of Azerbaijan, committed by orders of foreign organizations or their representatives) and 283.1 (The actions directed on excitation of national, racial, social or religious hate and hostility, humiliation of national advantage, as well as actions directed on restriction of citizens rights, or establishment of the superiority of citizens on the basis of their national or racial, social belonging, creeds committed publicly, including with use of mass media) of the Criminal Code of the Azerbaijan Republic.
The investigator and Prosecutor addressed the Court with a motion and submission to impose a measure of restraint against I. Abilov in the form of remand in custody for a period of 4 months.
In the course of trial, Mr Abilov pleaded not guilty to the charges and asked the Court to dismiss the investigator’s motion and the Prosecutor’s submission to impose a preventive measure in the form of detention in custody.
On 24 July, 2024, the Baku City Sabayil District Court granted the investigator’s petition and Prosecutor’s submission to impose a measure of restraint in the form of detention in custody for a period of 4 months against I. Abilov.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
First and foremost, the bodies conducting criminal proceedings are obliged to ensure that the rights and freedoms of the individual enshrined in the Constitution are respected for all those taking part in the criminal proceedings.
The defence stated at trial that the investigating authorities did not admit a lawyer to his client for a long time. Thus, for the first time Abilov was interrogated not having a lawyer on his side, which contradicts the provisions of both the national and international laws.
Thus, according to the Article 19.1 of the Code of Criminal Procedure of the Azerbaijan Republic, during the criminal prosecution the preliminary investigator, investigator, prosecutor and court shall take measures to guarantee the right of the victim, the suspect and the accused to proper legal aid.
In the Article 19.4 of the Code of Criminal Procedure of the Azerbaijan Republic there are the lists of investigative body’s obligations ensuring a suspect’s or accused’s rights:
- to have the assistance of the counsel for the defence from the moment of detention or arrest, as the suspect before the first interrogation or as the accused as soon as charges have been laid;
- to explain his rights;
- to give him adequate time and opportunity to prepare his defence;
- to be able to defend himself in person or with the aid of counsel for the defence chosen by him or, if unable to pay for defence counsel, to receive free legal aid;
- to interrogate any witness against him.
The paragraph 3 of the Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms reads:
Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) 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.
As can be seen, these norms of law were grossly violated by the body conducting the preliminary investigation.
Further, let us consider the grounds on which the Court imposed a preventive measure in the form of remand in custody for 4 months.
According to the Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic, the grounds for imposing a preventive measure in the form of arrest might be:
- 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.
The grounds set out in the judgement are as follows:
- re-committing an act under the criminal law or posing a danger to society;
- concealment from the body conducting the criminal proceedings;
- obstruction to the preliminary investigation normal course or court proceedings involving unlawful pressure on those involved in the criminal proceedings, with the mean of concealing or falsifying materials of importance for criminal prosecution.
As indicated above, I. Abilov was first summoned for interrogation on 22 July 2024, and then, on 24 July 2024. He also informed the investigating authority that he would have to leave the country on 27 July 2024.
- Abilov did not hide his plans from the investigative body and turned up several times upon their call. It is not clear on what basis the investigative body indicated that reason. The grounds are not supported by any arguments and facts. The ruling is merely a copy of the Code of Criminal Procedure and lacks any serious grounds.
Deprivation of personal liberty prior to the Court ruling should be an exception, whereas an individual liberty should be a must. And it is not vice versa.
Detention is justified only if certain grounds reveal the existence of a public interest overriding, notwithstanding the presumption of innocence, the respect for individual liberty.
When issuing the order on remand in custody, the Court merely used general and abstract phrases drawn from the Law. It lacks any motivation. None of the stated grounds is considered in relation to a particular defendant. The judgement is substantiated only by the gravity of the charges and possible punishment. Despite the fact that it is provided in the criminal procedure legislation, but it is entirely against the European Convention norms, in accordance with which the legislation of every country, a member of the Council of Europe, must be aligned. It is one of the obligations that a state party must fulfil.
Thus, the judgment of the European Court in the case of Scott v. Spain dated 18 December, 1996, states:
“The existence of a strong suspicion of the involvement of a person in serious offences, while constituting a relevant factor, cannot alone justify a long period of pre-trial detention”
The Convention provides that only a well-founded suspicion that a person has committed a criminal offence can justify deprivation of liberty. Therefore, the reasonable suspicion is an essential part of the defence against arbitrary arrest. The existence of reasonable suspicion requires an availability of facts or information that would convince an objective observer that a certain individual may have committed the offence. Reasonableness depends on a set of circumstances.
As one of the arrest justifications, the Court indicated that I. Abilov appeared to be a danger to the society. As mentioned above the accused is a researcher-scientist who writes academic papers. What kind of danger could Abilov pose to the society if he was about to leave the country on 27 July 2024? In order to support that ground, the investigating authority had to submit some evidences to the Court, but they had none, and the Court, in its turn, obviously did not indicate any in its judgement.
The public reaction to the serious offences commission may cause a public upheaval that could justify remand in custody. However, this motivation can only be considered relevant and sufficient if it is based on facts that can demonstrate that the detainee’s release may actually violate public order. Furthermore, a detention will be lawful only if there is a real threat to the public safety.
The European Court of Human Rights (ECHR) has a pracice to place vagrants, alcoholics, drug addicts and other non-adapted in socium individuals in the category of socio-dangerous people who theoretically and practically may be dangerous to society.
However, when it comes to custodial restraint, the ECHR has a warning,
“In addition to vagrants, Article 5(e) of the Convention indicates mentally ill, alcoholics and drug addicts individuals. While the Convention authorises the deprivation of liberty in respect of these socially maladapted people, it is not the only reason to consider them a threat to public safety; their own interest may require their confinement in a psychiatric hospital. It does not follow from the authorisation to detain vagrants under Article 5 that the same grounds, even better ones, apply to someone who might be considered even more dangerous’ (thejudgment of the European Court of Human Rights in the case of Guzzardi v. Italy dated 6 November 1980). – https://hudoc.echr.coe.int/?i=001-57498
“The Court recalls that one of the necessary “lawfulness” requirements of detention in terms of Article 5(1)(e) is the non-arbitrariness of it. Deprivation of liberty is such a severe measure that it must be upheld only when other measures, less severe, have been considered insufficient to protect either an individual or public interest and requiring the deprivation of liberty. It is not sufficient that the deprivation of liberty complies with domestic law; it must also be indispensable given the circumstances of the case” (WitoldLitwa, 78).
As seen from the above, the lack of strong arguments, primary evidences, as well as unsubstantiated and unmotivated judicial ruling led to the violation of the national and international laws, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the precedents of the European Court of Human Rights. The unjustified ruling caused a violation of the fundamental rights of the accused individual, i.e. his rights to defence, to presumption of innocence, to a fair trial and other pertinent rights.