The Sabayil District Court issued a verdict against Faig Amirov

The Sabayil District Court issued a verdict against Faig Amirov

Analysis of violation of law during Faig Amirov ’s judicial proceedings

Baku City Sabail District Court

Case no. 1(009)-122/2017
July 24, 2017
Presiding Judge: Aytan Aliyeva
Public Prosecutor: Vusal Abdullayev
Accused: Faig Amirov
Defenders: Fahraddin Mehdiyev, Agil Laijev
Representative of the Ministry of Taxes of Azerbaijan: Elchin Rzayev

Faig Amirov was the Distribution Director of the Azadlig (Freedom) opposition newspaper, a member of the opposition Popular Front Party and an assistant to the chairman of the Popular Front Party. In July 2016, he told the press that he was being pursued by unknown persons and he appealed to the police in this regard.

 

On August 20, 2016 he was detained on charges of inciting ethnic, racial, social or religious hatred and enmity while using official powers – Article 283.2.2 of the Criminal Code of the Azerbaijan Republic (CC of AR ). According to the defence and Amirov himself, the employees of the investigation body took away the keys from his car and searched it. According to the investigation, Fatullah Gulen’s books (the theologian and founder of Hizmet religious movement, since 1999 he lives in the US and declared on the wanted list by Turkish President R. Erdogan for attempted coup d’etat) were found in a car belonging to Faig Amirov.

 

On August 22, 2016 F.Amirov was charged with another accusation of infringement on the rights of citizens under the pretext of performing religious rituals (Article 168.1 CC of AR). On August 22, 2016 Shalala Hasanova, a judge of the Nasimi District Court of Baku, issued a resolution on the arrest of F.Amirov for a period of 3 months. On November 11, 2016 the arrest was extended for another two months until January 12, 2017. On January 6, 2017 the arrest was again extended until March 12, 2017. On March 3, 2017 the Nasimi District Court reviewed again the petition of the investigative body and extended the preventive punishment for another 3 months.
After the arrest of Faig Amirov, the Azadlig Newspaper ceased publication. On April 17, 2017 F.Amirov was charged with new charges under Articles 213.1. (evasion from paying taxes) and 308 (abuse of official powers) of the Criminal Code of the Azerbaijan Republic. F.Amirov did not accept the accusations against him and refused to give evidence.

 

Faig Amirov believes that his arrest is a political order. However, initially, under the influence of an attempted coup in Turkey, the investigation tried to present him as a supporter and envoy of Fatullah Gulen, and later charges were brought forward under Articles 213.1. and 308 of the Criminal Code of Azerbaijan Republic. These charges showed that the purpose of his arrest is to put pressure on the Azadlig Opposition Newspaper and stop the release of the newspaper. It was this goal that was achieved.

 

The defence stated that during the investigation period no investigative actions were carried out, for this reason the repeated extension of the period of stay under arrest is illegal and unreasonable.

 

The criminal case against Faig Amirov was sent to the Sabayil District Court and charged to judge Aytan Aliyeva. The preparatory meeting was scheduled for May 19, 2017.

 

At the preparatory meeting on May 19, 2017 F.Amirov was placed in a glass chamber. The defence made two motions: on changing the measure of restraint in the form of arrest to the measure of restraint in the form of house arrest (taking into account the health problems of F.Amirov) and on the termination of the criminal case. The court refused to satisfy both motions.
The hearing was scheduled for June 1, 2017. Amirov’s lawyer Fakhraddin Mehdiyev appealed to the court with a request that the accused be released from the glass chamber and placed next to lawyers. The petition was justified by the fact that location of the accused near his lawyers will enable to hold defence better and more efficient, to consult with each other without limits. The lawyer also pointed out Amirov’s state of health. The judge granted this petition, but the officers of the Penitentiary Service did not immediately agree to comply with the judge’s instructions. They justified their refusal by the rules on keeping prisoners, but, nevertheless, the judge’s decision was executed. Another lawyer of Amirov, Agil Laijev, appealed to the court with another petition: he asked to bring the books found in Amirov’s car to court. He stated that the author of one of the books is the uncle of the current Prosecutor General of the Republic of Zakir Garalov, Zakhid Garalov, and the author of the opening speech in the other is the representative of President Ilham Aliyev, Rashad Majid. The defence also asked the court to invite witnesses involved in the search of the house and the car for questioning.

 

Then the state prosecutor read out the indictment, according to which Faig Amirov, in order to spread the ideas of Fatullah Gulen, purchased and stored his discs, and also propagated his ideas in the Azadlig Newspaper. The prosecutor also stated that Amirov, having indicated the understated sale of the newspaper, evaded paying taxes in the amount of 39 thousand manats.

 

During the trial Amirov declared his innocence and did not recognize the charge. He showed: “All charges against me are falsified. On August 20, when I left the house, 6 people approached me. They introduced themselves, but did not show any IDs. These people said that they are employees of the State Security Service and the Ministry of Internal Affairs. I confess, they treated politely. They asked for the car keys and the phone. When they asked for the keys to the car, I realized that they would plant something. I thought that it would be most likely either drugs or weapons. I was seated in another car, three of them went with me, and three others stayed near my car. About 45 minutes I was taken around the city, and then brought to the Investigation Department for Serious Crimes of the General Prosecutor’s Office. They calculated so that during this time they will be able to put something into the car. The keys were brought to the prosecutor’s office. Subsequently, I learned that Fatullah Gulen’s books and CDs were put in my car. I do not read books at all. I even raised the question of having an examination of the availability of fingerprints on these books. However, they did not do it. I was imprisoned for 10 months because of these charges, but no one asked anything. I first heard the name of Fatullah Gulen during the events in Turkey.”

 

The case was continued on July 6, 2017. The prosecutor appealed to the court with a motion to announce the testimony of witnesses who did not come to court. The defence protested and asked to bring witnesses forcibly. The judge decided to dismiss the prosecutor’s petition and granted the defence’s motion. Witness Rena Afandiyeva showed in court that she applied to the Azadlig Newspaper for giving an announcement about lost documents and paid 2 manats at the same time. She does not know Faig Amirov at all.

 

On July 12, 2017 the defence found a false testimony of the witness Sultan Ismayilov. S.Ismayilov stated at the investigation that he had been advertising in the Azadlig Newspaper for several years. He confirmed these testimonies during the trial. He said that from 2010 to 2015 he paid 6-7 manats monthly for ads, he paid personally to the office of the newspaper located near the Sahil Subway Station. The defence found false information in the witness’s testimony: since 2006 the Azadlig Newspaper left the office next to the Sahil Subway Station and moved to the Publishing House building on Matbuat Avenue.

 

The defence asked the court to exclude from the list of evidence the testimonies of the editor of the Azadlig Newspaper Rahim Hajiyev and the employee of the newspaper Khayal Babaev. During the trial Rahim Hajiyev was already in emigration. He left the country immediately after the interrogation in F.Amirov’s case. Both witnesses filed a lawsuit with the court that they had been testified by the investigators under pressure and that they refused the testimonies. The editor-in-chief of the newspaper Ganimat Zahid sent a statement to the court stating that Faig Amirov did not have the authority to make decisions on organizational and financial matters.

 

At the court session on July 14, 2017, two witnesses showed that they did not know F.Amirov, and two – that they saw him in the publishing house. All of them stated that they placed ads in the Azadlig Newspaper for free. Despite the court’s decision to force witnesses to appear to the court, almost half of them did not appear.

 

On July 17, 2017 the lawyer of F.Amirov told the court that such intensive conduct of the process in abnormally hot weather badly affects Amirov’s poor health. The accused agreed with the lawyer and said that he was experiencing great difficulties with such frequent transportation from the investigation isolation ward to the court.

 

The defence appealed to the court with another petition for interrogation of witnesses who were present during the search of the car. They were Samira Mammadova and Tazakhan Miralamli. The lawyers stated that both witnesses had not been questioned during the investigation, and therefore their interrogation in court was considered expedient. The court rejected the application.

 

On July 19, 2017, the defence filed another petition for bringing to court and interrogating of Fuad Ahmadli, member of the Youth Committee of the PFA Party (also imprisoned). There was stated in the indictment, that during the search of F.Ahmedli’s apartment, there had found a notebook where the phone number of Faig Amirov was indicated, and next to the number it was written: “Imam Faig.” To clarify this point, the defence asked to bring Fuad Ahmadli to court and interrogate him. The court rejected the motion. After that, the defence protested to the judge, but the protest was also not accepted.

 

The process continued with a speech of public prosecutor. He supported all the charges against Amirov, stated that Amirov’s guilt had been fully proved, asked the court to convict him and sentenced him for 4 years and 6 months’ imprisonment. After the speech of the prosecutor, a representative of the Ministry of Taxes asked the court to give F.Amirov an additional penalty in the form of paying taxes in the amount of 39,000 manats.

 

On July 24, 2017 lawyers issued a defensive speech, pointing out Amirov’s innocence, and asked the court to pass an acquittal. Amirov himself also spoke. Then the judge retired to the advisory room for sentencing. The court found Faig Amirov guilty of committing crimes under Articles 213.1 and 283.2.2 of CC of AR, and sentenced him to 3 years and 3 months of imprisonment with payment of taxes in the amount of 39 thousand manats. Production on previously charged Articles 168.1 and 308 of the CC of AR was terminated.

 

Commentary of an expert lawyer:

The sentence is illegal and unreasonable. According to Article 351.2 of the Code of Criminal Procedure of the Azerbaijan Republic (CCP of AR), the court’s conviction cannot be based on assumptions and is made only if during the trial the guilt of the accused has been proved. During the trial, the guilt of the accused was not proven. The verdict was pronounced with irregularities.
According to Article 283 of the Criminal Code of AR, incitement to national, racial, social or religious hatred and enmity when using official powers are actions aimed at inciting national, racial, social or religious hatred and enmity, humiliation of national dignity, as well as actions aimed at limiting the rights of citizens, or the establishment of superiority of citizens on the basis of their national or racial, social belonging, attitude to religion, if these acts were committed publicly, including using the media.

 

From the text of the article it is clear that one of the important signs of the availability of this crime is the way of committing a crime. One of the indispensable conditions of the crime is the dissemination of information and appeals in the media. This condition was not in Faig Amirov’s case. The disks seized in F.Amirov’s car also do not contain any information about actions aimed at inciting any enmity.

 

As to Article 213 of the CC of AR, it should be noted that the conclusions of the court are inconsistent with the actual circumstances of the case. Faig Amirov worked as a Distribution Director of the Azadlig Newspaper. It is clear from the labour contract concluded with F.Amirov that he did not have any administrative, organizational and financial functions. The editor-in-chief of the newspaper Ganimat Zahid and editor Rahim Hajiyev showed in their official appeals to the court that Faig Amirov did not have any authority to pay taxes, and therefore cannot be held responsible for paying taxes. There were also contradictions in the calculation of tax arrears. The distribution staff of the newspaper questioned in court as witnesses showed that, according to the service agreement, they left at their disposal 30-35% of the newspaper’s sales. However, this fact was not taken into account when checking and calculating tax debts. The debt included those 30-35%, which the sellers kept to themselves. Thus, there is neither a crime nor a criminal act in the actions of Faig Amirov.

 

During the judicial examination, the defence repeatedly drew attention to the health condition of Faig Amirov. As mentioned above, the trial was very intensive and was at the hottest time of the year. The condition of the accused worsened more and more each time because of the stuffiness in the car for the transportation of prisoners. According to Clause 50.2 of European Penal Procedures, transportation of prisoners in poorly ventilated and illuminating vehicles or conditions that cause them unnecessary physical suffering or degrading them is prohibited.

 

There is also a violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, according to which “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The European Court of Human Rights (ECHR) argues that ill-treatment must reach a minimum level of severity. The assessment of this minimum level of cruelty depends on all the circumstances of the case (Paragraph 100 of the judgment in the case of Gorodnichev v. Russia, May 24, 2007).

 

http://echr.ru/documents/doc/2465023/2465023-001.htm (in Russian)
http://hudoc.echr.coe.int/eng#{“itemid”:[“001-80611”]} (in French)

 

In the case of Faig Amirov, there is also a violation of Article 6, Clause 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Pursuant to this clause, “In the event of a dispute over civil rights and obligations or in the presentation of any criminal charge, everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The consideration of the criminal case was not impartial, independent and fair.

 

In addition, there was a gross violation of Article 6, Clause 2 of the European Convention. This paragraph reads: “Everyone charged with a criminal offense is presumed innocent until the guilt is established by law.”

 

On August 20, 2016, the Ministry of Internal Affairs, the Prosecutor General’s Office and the State Security Service issued a joint statement stating that Faig Amirov was charged with committing a crime under Article 283.2.2 CC of RA and have relations with Fatullah Gulen. It should be noted that on July 15, 2016 there was an attempt of coup d’etat in Turkey in which the Turkish authorities accused Fatullah Gulen. The Azerbaijani authorities accordingly began to accuse the opposition representatives of relations with F. Gulen.

 

According to Clause 35 of the ECHR Decree “Allenet De Ribemont v. France” of February 10, 1995: “The presumption of innocence enshrined in Article 6, Clause 2 is one of the elements of a fair trial referred to in Clause 1 of the same article (see, in particular, the ruling in the case of Deweer v. Belgium of February 27, 1980. Series A, vol. 35, p. 30, Clause 56). This principle is violated if the court declares the accused guilty, while the guilt has not been previously proven (see the above-mentioned case “Allenet De Ribemont v. France”, p. 18, Clause 37).”

 

http://europeancourt.ru/uploads/ECHR_Allenet_De_Ribemont_v_France_10_02_1995.pdf (in Russian)
http://factcheck.ge/wp-content/uploads/2017/02/pdf-1.pdf (in English)

 

Paragraph 38 of the ECHR Decree also states: “Freedom of expression, guaranteed by Article 10 of the Convention, extends to the freedom to receive and disseminate information. Consequently, Article 6, Clause 2 cannot prevent the authorities from informing the public about ongoing criminal investigations, but it requires the authorities to do so with restraint and delicacy, as required by the respect for the presumption of innocence.”

 

It follows from the abovementioned that when considering the criminal case of Faig Amirov, the norms of national and international law, as well as the precedents of the European Court of Human Rights were grossly violated