THE SON OF THE OPPOSITION LEADER IS DEFINITELY GOING TO BE IMPRISONED
Orkhan Hajili
Analysis of violation of law during Orkhan Hajili’s judicial proceedings
Baku City Yasamal District Court
Case № 4(004)-858/2023
2 November 2023
Presiding judge: Rashad Javadzade
Defendant: Orkhan Hajili
Defender: Neimat Karimli
With participation of the Prosecutor’s Assistant of Yasamal district, Mail Valiyev, and Punkhan Abilov, an investigator at the Investigation Division of the Yasamal District Police Department
Orkhan Hajili, born in 1991, the son of Arif Hajili, the Chairman of the opposition “Musavat” Party, is a member of the youth organization of the “Musavat“ Party.
On 11 October 2023, it was a traffic accident involving a car of Orkhan Hajili. Right after, on the Internet it was circulating a video of that accident. On 31 October 2023, Orkhan Hajili was charged as a suspect in a criminal case.
On 2 November 2023, Orkhan Hajili was brought to the Baku Yasamal district Prosecutor’s Office, where he was charged with committing crimes under the Articles 263.1 (Infringement by the person managing automobile, tram or other mechanical vehicle, rules of traffic or operation of vehicles, committed on imprudence entailed causing of less serious or minor serious harm to health of a victim) and 264 (Leaving a places of road and transport incident) of the Criminal Code of the Azerbaijan Republic.
The Chairman of the Musavat Party, Orkhan’s father, Arif Hajili told the media that his son was a driver of the car collided with another one, however the driver of which had no complaints. He said that the investigation’s attempts to formalize the injuries of the driver of the collided car has failed, so a new “victim” was found 20 days later. According to the investigators’ version, the injuries were sustained by a passerby who was on the sidewalk. Arif Hajili also said that the video footage, which was distributed by the investigative body clearly showed that there hadn’t been anyone at the place. – https://www.azadliq.org/a/orxan-hacili-qeza/32663560.html
The Chairman of the Musavat Party stated that his son’s arrest was related to his political activities and it was of a revenge nature, but he would not intend to stop his struggle for democracy and would keep going. – https://www.amerikaninsesi.org/a/7338409.html
Orkhan Hajili’s lawyer pointed out that his client had not pleaded guilty, he was not responsible for the accident, and the accusations that he had hit and run from the scene of the accident were false.
On 2 November 2023, the Baku City Yasamal District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Orkhan Hajili in the form of detention for a period of 2 months.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
According to the Article 154 of the Code of Criminal Procedure of the Azerbaijan Republic, a restrictive measure is a coercive procedural measure intended to prevent unlawful behaviour by the suspect or accused during criminal proceedings and to ensure the execution of the sentence; it shall be applied in the cases described in Article 155.1 of this Code.
The Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic stipulates the grounds for applying a preventive measure. The list of grounds is rather limited and consists of the following provisions:
- arrest;
- house arrest;
- bail;
- restraining order;
- personal surety;
- surety offered by an organisation;
- police supervision;
- supervision;
- military observation;
- removal from office or position.
On this list, arrest is the strictest measure of restraint that should be applied only in extreme cases specified in the law.
The Article 157.1 of the Code of Criminal Procedure of the Azerbaijan Republic states, that in accordance with the principle of the presumption of innocence, if the connection of the person to the offence committed is not proven, he may not be arrested or unnecessarily detained on remand.
According to the Article 155.2 of the Code of Criminal Procedure of the Azerbaijan Republic, in resolving the question of the necessity for a restrictive measure and which of
them to apply to the specific suspect or accused, the preliminary investigator,
investigator, prosecutor in charge of the procedural aspects of the investigation or court shall bear in mind:
- the seriousness and nature of the offence with which the suspect or accused is charged and the conditions in which it was committed;
- his personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence;
- whether he has committed a previous offence, the previous choice of restrictive measure and other significant facts.
The Article 263 of the Criminal Code of the Azerbaijan Republic, under which Orkhan Hajili was charged, is included in the category of crimes committed not intentionally but by negligence. In addition, the practice is that a measure of restraint not involving arrest is selected as a preventive measure under this article. However, in this case, the investigative authorities applied to the Court with a request to impose a preventive measure in the form of detention some 20 days later.
As grounds for the application of the arrest, the investigation and Court stated:
- nature of the offense;
- the offence circumstances;
- potential to exert unlawful pressure on those involved in the criminal proceedings,
- potential to interfere with the normal course of the preliminary investigation, possible hiding from the body carrying out the criminal proceedings.
Despite the enumeration of the above-mentioned grounds, there is no any evidence or arguments proving each of these grounds in the court ruling. They are simply coppied-pasted from the Law. A formal approach to the case is evident as well, since the judgment does not refer to the relevance of each ground to a particular defendant.
As stated above, the defendant is accused of charges that fall under the category of crimes of negligence. There was no deliberate or criminal intent in Orkhan Hajili’s conduct. Moreover, prior to his arrest, he had repeatedly turned up at the summons of the investigative body and personally submitted his documents. There was nothing in Orkhan Hajili’s deeds that could raise doubts on the part of the investigative body. He is not a recidivist, had not committed any dangerous acts, does not have a negative characteristic, and his release would not have caused any discontent to the public. In this case, it should be pointed out that Orkhan Hajili’s arrest could have been justified if his release would have caused shock, fear or public discontent.
The Court did not take into account the positive facts that O. Hajili did not drive while under the influence of alcohol or drugs, did not escape from the investigation, did not hit a pedestrian, which would have led to his death. All these serious consequences are not found in a particular criminal case. For this reason, it is not legitimate for a Court to apply the strictest measure of restraint on charges that do not fall into the category of premeditated and serious.
The investigation and Court had enough solid grounds to apply a preventive measure alternative to arrest to Orhan Hajili.
The numerous judicial precedents of the European Court of Human Rights indicate that the Right to Liberty primarily refers to the physical freedom of an individual and authorizes arrest only in the cases specified in the Law.
The judgment of the European Court of Human Rights in the case of Kurt v. Turkey of 25 May 1998 states:
“The Court notes at the outset the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is precisely for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5 § 1 circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute”. – https://hudoc.echr.coe.int/#{“fulltext”:[“kurt%20v.%20turkey”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-58198”]}
The unlawful application of a preventive measure in the form of arrest of Orkhan Hajili led to the violation of a fundamental right in a democratic society – the Right to Freedom, which is guaranteed 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.