The supreme court has not released Bahruz Aliyev

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THE SUPREME COURT HAS NOT RELEASED BAHRUZ ALIYEV

Bahruz Aliyev

Analysis of violation of law during Bahruz Aliyev’s judicial proceedings

Supreme Court of Azerbaijan Republic

Case №1(102)-648/2020

August 12, 2020 

Presiding judge: Aziz Seyidov

Judges: Tahir Kazimov, Inqlab Nasirov

Defendant: Bahruz Aliyev

Defender: Elchin Sadiqov

 The State Prosecutor: Ramiz Alverdiyev, a prosecutor of the Prosecution Support and Analytical Department at the Cassation Courts of the Prosecutor General’s Department on Supporting the State Prosecution of the Azerbaijan Republic

 Bahruz Aliyev, born in 1985 in the city of Neftchala, Azerbaijan, the editor of websites www.nia.az, www.icmaric.az, www.nia24.info , was arrested on May 30, 2018. He was charged with committed offences under the Articles 311.3.2 (Receipt of a bribe committed repeatedly) and 311.3.4 (Receipt of a bribe committed with application of threat) of the Criminal Code of the Azerbaijan Republic. On May 30, 2018, a pre-trial detention order was issued against him.

The investigation’s version was based on the fact that in 2017, Bahruz Aliyev, as the editor of the aforementioned websites, spread misleading information on the founder and actual head of “Mammadogullary” LLC, Ramazan Mirzoyev. In December 2017, B. Aliyev solicited 2.700 AZN from Asad Aliyev, an acquaintance of R. Mirzoyev, as a bribe for the removal of that information from the website.  However, not having achieved his goal, B. Aliyev left the website untouched.

On February 13, 2018, Rashadat Agayev, a close friend of Ramazan Mirzoyev, invited Bahruz Aliyev to the “Mammadogullary” LLC office, where B. Aliyev demanded 4.000 AZN by threatening him.

According to the investigation, throughout 2017, Bahruz Aliyev, being the head of the above-mentioned websites, published the improper articles in regard of the management and activities of the State Oil Company of the Azerbaijan Republic and its Integrated Excavation Works Trust, as well as the deputy head of the Trust, Isa Mammadov. The latter was demanded 100-200 AZN monthly by Bahruz Aliyev. I. Mammadov handed out the money to B. Aliyev using the help of ” Gala” cafe’s cashier in Baku, who, in his turn, was unaware of the purpose of the money.

Testifying at the trial, the defendant, Bahruz Aliyev, did not plead guilty to the charges and revealed that www.nia.az, www.icmaric.az, www.nia24.info sites did belong to him, but due to the sites being blocked, in September 2017, he founded the website www.icmaric.az, which was registered on the name of his acquaintance Aghali Mirzoyev. Aghali Mirzoyev as a computer specialist assisted him in technical matters. In 2017-2018, due to the improper activities of the head of “Mammadogullary” LLC, Ramazan Mirzoev, B. Aliyev wrote a number of articles published on his website. He testified that he had not published any false information but rather had written what was in reality. In 2018, the head of the website www.politico.az, Asad Aliyev, asked him to remove the publications about R. Mirzoyev. At his request, Bahruz Aliyev did remove a few articles. When Asad Aliyev asked him to do it again, he objected. Further, he received a phone call from a certain Rashadat Agayev, who called himself R. Mirzayev’s man and suggested to meet. On February 13, 2018, B. Aliyev met with R. Agaev at the office of “Mammadogullary” LLC. At the meeting, Rashadat Aghayev asked Bahruz Aliyev to remove those articles in exchange for remuneration. B.Aliyev replied that he did not withdraw the publications in exchange for money.

At that time, B. Aliyev addressed to the “Avrasiya” clinic in order to have a surgery on his nose. He had to pay 4.000 AZN for the surgery. Rashadat Agayev said to B.Aliyev at the meeting that he could ask him for any help. After having heard about the surgery, Rashadat Agayev, himself, offered B. Aliyev 4.000 AZN. This money was to be paid by B.Aliyev to the Avrasiya Clinic. And there were no threats addressed to Rashadat Agayev by B. Aliyev. R.Agayev volunteered to help him pay for the surgery.

Further, Bahruz Aliyev indicated that he had known Isa Mamedov as the deputy head of the Trust. He published a number of articles on his activities. Isa Mammadov personally met with him and asked not to publish articles concerning the Trust. Since that time B.Aliyev had not written any more about them. Then, Isa Mammadov called and offered him money. He said that he had left 100 manat at the cashier of the “Gala” cafe, and B.Aliyev went there to pick it up. In April 2018, B.Aliyev did indeed take 300 AZN handed to him by Isa Mamedov’s assistant. He also testified that everything he had written in the articles was indeed true, there were no a word of lie. B.Aliyev said that there had been no threats against the aforementioned individuals. He did not know that the articles he had taken from other websites would have such an impact on these people.

Rashadat Agayev, interrogated as a witness in the court, testified that he and Ramazan Mirzoyev had been on friendly terms. He stated that Bahruz Aliyev, in order to remove and no longer write about R. Mirzoyev, demanded 2.700 AZN, then 1.000 AZN, and then another 1.700 AZN. Rashadat Agayev informed R. Mirzoyev of that, and he, in his turn, refused to do so. At that time, B.Aliyev started publishing more acute articles. Thus, for this reason, Ramazan Mirzoyev applied to the State Security Service of Azerbaijan that placed a video surveillance camera. Rashadat Agayev handed over 1.000 AZN to B.Aliyev in the room where the camera had been installed. Overall, 4.000 AZN had been given to B.Aliyev.

Asad Aliyev, interrogated as a witness at the trial, testified that he had worked in the media for a long time and was the founder of the website www.politico.az. He and Bahruz Aliyev have a good relationship. In 2017, Ramazan Mirzoyev asked him for help in removing content related to his activities from the websites. He asked B. Aliyev to withdraw inappropriate materials, but Aliyev refused to do so. In exchange for the removal of 17 publications, Bahruz Aliyev asked for 2.700 AZN. The request was conveyed by Asad Aliyev to Rashadat Agayev, but the latter knew nothing about it afterwards. He learned just later that B.Aliyev had demanded money from R. Mirzoyev and therefore was brought to justice.

Ikram Rahimov, a witness, questioned in the courtroom, testified that he was the editor-in-chief of the portal www.realliq.az and had known B.Aliyev for about two years. He only recently learned that B. Aliyev had demanded from an official to pay him for the removal of undesirable publications and was criminally prosecuted for doing so. Yet, he does not know whether B.Aliyev actually demanded money from R. Mirzoyev or whether he actually took it. B.Aliyev offered him several times to meet with Rashadat Agayev, but Rashadat refused the offer. One day, upon Bahruz Aliyev’s request, Ikram Rahimov took him to the clinic, but who he met there and why, he does not know.

From Ramazan Mirzoyev’s appeal dated January 30, 2018, to the management of the State Security Service of Azerbaijan, it is clear that he requests to find and bring to justice the website www.qafqaznew.az, www.aztoday.az, www.xeberinfo.az, www.ismaric.az, www.cumhuriyyat.az journalists-racketeers who publish the articles discrediting his honor and dignity, having the nature of slander.

According to the protocol of examination from June 1, 2018, a conversation between Bahruz Aliyev and Isa Mammadov concerning the transfer of money by I. Mammadov to the cashier and its taking by Bahruz Aliyev was recorded on the CD. The CD recording also contains a conversation between B.Aliyev and Rashadat Agayev.

According to the inspection report dated June 1, 2018, the State Security Service officers, following a court order, installed a video surveillance camera. The video footage shows Bahruz Aliyev sitting in one chair and Rashadat Agayev in the other, and R. Agayev offers his vis-a-vis 3.000 AZN. But B. Aliyev tells him that he is not a 3-5 AZN journalist.  Then, R. Agayev puts 3.000 AZN on the coffee table, and Bahruz Aliyev takes the bills, stands up, puts the money in his jacket pocket, and promises to remove the content.

The forensic examination from August 3, 2018, revealed that one voice on the video recording belongs to Bahruz Aliyev, and the other to Rashadat Agayev.

The Press Council’s letter dated August 14, 2018, was submitted to the court by the investigation, which stated that Vurgun Shiraliyev, a resident of the Neftchala district, had filed a complaint on the website www.nia.az. The Council discussed the complaint and found that the site violated the Azerbaijani Regulations of Professional Journalists’ Conduct due to thoughts that defamed honour and dignity.

On November 5, 2018, the Lankaran Court of Serious Crimes issued a verdict against Bahruz Aliyev: he was found guilty of committing crimes under the Articles 311.3.2 and 311.3.4 of the Azerbaijan Republic Criminal Code and sentenced him to 8 years 6 months imprisonment with deprivation of the right to occupy any responsible posts and the right to engage in journalistic activities up to 2 years. B.Aliyev should serve his sentence in a general regime colony.

Having disagreed with the court verdict, on November 5, 2018, the defense filed an appeal. On February 13, 2019, the Penal Collegium of the Shirvan Court of Appeals, chaired by Elshad Aliyev and judges Kamil Bashirov and Etibar Jamalov, ruled on the case: to dismiss Bahruz Aliyev’s appeal and leave in force the sentence imposed by the Lankaran Court of Serious Crimes dated November 5, 2018.

Having considered the Court of Appeal’s ruling as illegal and unfounded, the defence filed a cassation appeal to the Supreme Court of the Azerbaijan Republic. The cassation appeal was justified by the fact that there is no evidence in the case that B.Aliyev threatened Ramazan Mirzoyev and solicited money by threatening him. Ramazan Mirzoyev helped Bahruz Aliyev in the form of a charitable gesture, by giving him money in the amount of 1.600 AZN for B.Aliyev’s medical treatment. The defence also believes that B.Aliyev’s accusation regarding threats against Isa Mammadov is groundless, given that there has been no complaint on the part of I.Mammadov. The conversation between Isa Mammadov and Bahruz Aliyev does not reveal what the money was given for and what B.Aliyev was supposed to do with them. At the same time, the defence drew the court’s attention to the fact that B.Aliyev has health problems and disability of the second category, there is no complaint against B.Aliyev by the above mentioned individuals, and also that he supports his elderly parents. Given the above, the defence requested the court to pass an acquittal verdict against B.Aliyev on the basis of lack of corpus delicti in his actions.

The Judicial Board of the Supreme Court of the Azerbaijan Republic ruled on August 12, 2020. The Criminal Chamber of the Supreme Court of the Republic of Azerbaijan has made a ruling in the criminal case: to deny the appeal of the accused and leave in force the judgment of the Shirvan Court of Appeal from February 13, 2019.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. The Articles brought against Bahruz Aliyev have aggravating factors: 311.3.2 and 311.3.4 of the Azerbaijan Republic Criminal Code, i.e. taking a bribe by an official in exchange of multiple illegal actions and with the use of threats.

First, we should consider the evidentiary basis for the recurrence of the crime. According to the Article 16.1 of the Azerbaijan Republic Criminal Code,

Repeatedly committed crimes shall be two or more crimes provided by one article of the present Code.

The investigation did not provide the court with sufficient evidence of the repeated commission of the crime.

In the case, there are the witnesses’ testimonies regarding this, but there is no other evidence to support their testimonies. As for the video footage, which shows Bahruz Aliyev, it does not prove that he committed the crime. Moreover, this video cannot prove that the crime was repeatedly committed, as was suggested by the investigation. Also, the fact that threats of any kind were used, is not actually proven by any evidence.

The most important point in the criminal case is that there are no complaints or claims on the part of the individuals whom B.Aliyev allegedly demanded money from. Thus, the case contains two applications submitted by Isa Mammadov and Ramazan Mirzoyev. Ramazan Mirzoyev’s statement dated June 13, 2019, is addressed to the Commission on Pardon Issues chaired by the President of the Azerbaijan Republic, in which R. Mirzoyev pointed out that he had neither claims nor complaints against Bahruz Aliyev. Isa Mammadov’s application dated November 22, 2018, is addressed to the Shirvan Court of Appeal, which considered the case on appeal. Therein, Isa Mammadov also asks to take into account the fact that there are no complaints and claims from his side against B. Aliyev.

There is also a request letter from Ramazan Mirzoyev to the State Security Service, in which he says nothing about Bahruz Aliyev and does not even mention his name.

The fact that B. Aliyev received money directly from Rashadat Agayev, as seen on the video, does not prove that B. Aliyev committed the crime he is accused of. He admitted that he did receive a certain amount of money, but this amount was intended for his treatment and surgery, not as a bribe for illegal actions. Besides, what kind of illegal actions B. Aliyev had to perform in exchange for the money? Did the investigation consider the removal of the content from the sites to be an illegal action?

As mentioned above, the act of threatening by B. Aliyev was not proven in the court due to the fact that the investigation bodies did not provide sufficient irrefutable evidence.

Although, the Criminal Law stipulates the punishment not only for bribery, but also for offering it, where the subject of the crime is a sane individual, whose age is 16 years or older. If we follow the logic of the investigation, then the officials who allegedly passed the bribe to B.Aliyev could also have been prosecuted in this case. However, the investigative body did not consider that version as a valid one, and the court did not take into account the fact that neither Isa Mammadov nor Ramazan Mirzoyev had any complaints and claims against the accused, which both clearly indicated in their official statements.

The involvement of the Azerbaijani State Security Service, which is authorized to deal with external problems rather than internal ones, is equally strange. To solve criminal situations inside the country, there is the Ministry of Internal Affairs, responsible specifically for dealing with this.

In the verdict, the Court of First Instance pointed out that the accused’s second category disability and the fact that he supported his two elderly parents were extenuating circumstances. However, upon B.Aliyev’s detention, the Court applied to him a preventive measure in the form of detention.

Article 299.3 of the Code of Criminal Procedure of the Azerbaijan Republic states, that in

all cases, during the preparatory hearing of the court with the participation of the parties to the proceedings, the following matters shall be examined:

 

  • whether the criminal case file, the file on simplified pre-trial proceedings or the complaint with a view to a private prosecution received by the court are within its jurisdiction or not;
  • whether the requirements of this Code were violated during the investigation;
  • whether the content of the complaint with a view to a private prosecution complies with the provisions of Article 293.3.1-293.3.7 of this Code;
  • whether there are grounds for suspending or discontinuing the criminal proceedings;
  • whether there are grounds for choosing, altering or cancelling a restrictive measure in respect of the criminal case;
  • whether there are grounds for the court’s examination of the criminal case concerning a serious or very serious offence to be conducted with the participation of a jury.

The last paragraph precisely states that the court is to consider the question whether there are sufficient grounds to impose a preventive measure against the defendant. In this case, given the defendant’s health issue and other circumstances, the court could have changed the preventive measure of arrest to a measure not involving his confinement.

The first instance court violated B.Aliyev’s right to freedom, and this violation was upheld by the superior courts.

The right to liberty is enshrined in the Article 28 of the Constitution of the Azerbaijan Republic, in the Article 14 of the Criminal Procedure Code, in the Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in the Article 11 of the International Covenant on Civil and Political Rights, in the Article 9 of the Universal Declaration of Human Rights.

This Norm guarantees a fundamental Right among the most important ones: the Right to Liberty and Personal Inviolability. The protection provided by this Norm is strict insofar as this Article provides an exhaustive list of cases involving deprivation of liberty and defines a precise framework for protecting individuals against arbitrary detention. For this purpose, the European Convention for the Protection of Human Rights and Fundamental Freedoms establishes the National Judicial Power as the true guardian of individual liberty. In proclaiming the Right to Liberty, this Article refers to personal liberty in its classical meaning, that is, the physical freedom of an individual.

The ECHR judgment in the case of Kurt vs Turkey from May 25, 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 exceptions to a most basic guarantee of individual freedom. https://hudoc.echr.coe.int/eng#{“fulltext”:[“kurt%20v.turkey”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-58198”]}

The decision of the European Court of Human Rights (ECHR) in the case of Scott vs Spain from December 18, 1996, states:

Detention can be justified in a particular case only if there are direct indications of a public interest which, notwithstanding the presumption of innocence, takes precedence over respect for individual liberty. In the first place, it is incumbent upon the judicial authorities to consider all the circumstances allowing the existence of such an interest justifying an exception to the general norm of respect for individual liberty and to take them into account in their decisions on the requests submitted for their release. https://hudoc.echr.coe.int/eng#{“fulltext”:[“scott%20v.”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-58010”]}

“For this purpose, there must be serious grounds for deprivation of liberty. The Convention stipulates that only a reasonable suspicion that a person has committed a criminal offence can justify deprivation of liberty. Therefore, the reasonable suspicion is an essential element of the Convention’s protection against arbitrary deprivation of liberty. The existence of a reasonable suspicion presupposes the availability of facts or information that could convince an objective observer that a person could have committed the offence” (Michele de Salvia, Case-law of the European Court of Human Rights, St. Petersburg, 2004).

The Right to Personal Liberty should be the rule; deprivation of liberty prior to a judicial verdict should be the outright exception.

The preventive measure selected against Bahruz Aliyev was not legitimate and lawful, and the courts considering that criminal case did not take that, as well as other circumstances, into account.

 The Article 416.0 of the Azerbaijan Republic Code of Criminal Procedure outlines the competence of the Appeal Court. The Supreme Court shall have the right to set aside or amend the judgment or decision of the court of first instance or appeal in the following cases:

  • if the court refused, without any grounds, to examine evidence submitted by a party to the criminal proceedings which could be of importance for the full, thorough and objective examination of the charge;
  • if the court did not examine the evidence in accordance with Articles 143-146 of this Code;
  • if the court judgment as to the guilt of the convicted person or the innocence of the acquitted person is based on inadmissible evidence;
  • if the court convicted the accused although the ingredients of a criminal offence were lacking;
  • if the court made an error in classifying the act committed;
  • if the court sentenced the accused without taking account of aggravating or mitigating circumstances.

Upon the existence of the above grounds, the Court of Cassation may overturn or modify the judgment of the Appeal Court. Despite the availability of those grounds in this case, the Cassation Court did not overturn or modify the judgment of the Appeals Court, but upheld it. The Cassation Court, otherwise referred to as the “court of right,” must verify the compliance of the Appeal Court’s ruling with the Criminal Procedural Law.

According to the Article 419.1 of the Azerbaijan Republic Code of Criminal Procedure, when conducting its substantive examination of the complaint or appeal, the Supreme Court shall only verify whether the rules of criminal law and of this Code on points of law are applied correctly or not.

Despite the norms of the Criminal Procedural Law, the Supreme Court of the Azerbaijan Republic, as well as the inferior courts, did not fulfill its legal duties, thereby also violating the defendant’s Right to Freedom нарушив в отношении обвиняемого право на свободу.