Baku City Court of Appeal trial, Criminal Collegium Case
30 August 2024
Presiding judge: Habil Mammadov
Judges: Mirzali Abbasov, Farid Eyyubov
Defendant: Imran Aliyev
Defender: Qanqa Ibrahimov
With the participation of Togrul Huseynov, a major of police and Senior Investigator at the Investigation Division for Serious Crimes within the Investigation and Inquiry Department of the Baku City Police Headquarters, and Emil Alizade, a Prosecutor at the Department for Supervision over the Execution of Laws in the Investigation, Inquiry and Investigative Activity of the Baku Internal Affairs Bodies Prosecutor’s Office
On 18 April 2024, Imran Aliyev, the site www.meclis.info manager, was detained at Baku International Airport. While being detained, he recorded a video message saying that he had been about to leave the country for Istanbul, but he was detained by the border police. Following his detention, he was taken to the Baku City Police Department. The police officers searched Imran Aliyev’s house the same night.
Imran Aliyev became yet another journalist who was detained within the criminal case against Abzas Media under the Article 206.3.2 (Smuggling, is moving large amount through customs border of the Republic of Azerbaijan of goods or other subjects, committed on preliminary arrangement by group of persons) of the Criminal Code of the Azerbaijan Republic (CC AR) launched on 20 November 2023.
Both, the investigator and Prosecutor, applied to the Court with a request to choose a preventive measure against Iran Aliyev in the form of arrest for a period of 2 months and 1 day.
In the course of trial, I.Aliyev did not plead guilty to the charges and testified that the police officers had exerted on him psychological and physical pressure. He also stated that he had undertaken to appear upon the investigation and judicial summons and would not influence either parties in any way, and therefore asked the Court to dismiss the investigator’s petition and Prosecutor’s submission. The defendant’s lawyer also urged the Court to reject the above-mentioned petition and submission.
It should be noted that Imran Aliyev had visible bruises and hematomas under his eyes when he was brought to the Khatai District Court on 19 April 2024.
On 19 April 2024, the Khatai District Court issued a ruling against Imran Aliyev to satisfy the investigator’s petition and Prosecutor’s submission to impose a measure of restraint in the form of arrest for a period of 2 months and 1 day. More details see: https://www.ipd-az.org/ru/imran-aliyevs-right-to-freedom-and-physical-and-psychological-integrity-was-grossly-violated-by-the-court/
The defence appeal did not bring any results, and the court ruling of 19 April 2024 was upheld.
On 13 June 2024, the Baku City Khatai District Court again issued an order to extend the preventive measure for another 2 months and 7 days, i.e. until 27 August 2024.
On 25 June 2024, the Baku City Court of Appeal upheld the first instance court’s ruling dated 13 June, 2024.
Due to the fact that the period of the preventive measure was about to end on 27 August 2024, on 22 August 2024, the Baku City Khatai District Court, reissued an order to extend the term of arrest for another 2 months and 22 days, i.e. until 19 November 2024, on the grounds of the investigator’s petition and prosecutor’s submission.
The defence appealed to the Court with a request to annul the aforementioned ruling of the Court of First Instance from 22 August 2024.
On 30 August 2024, the Baku City Court of Appeal issued a ruling that rejected the defence’s appeal and upheld the first instance court’s ruling dated 22 August 2024.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
The Article 154.1 of the Code of Criminal Procedure of the Azerbaijan Republic states,
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.
According to the Article 154.2 of the Code of Criminal Procedure of the Azerbaijan Republic, restrictive measures may be the following:
- arrest;
- house arrest;
- bail;
- restraining order;
- personal surety;
- surety offered by an organisation;
- police supervision;
- supervision;
- military observation;
- removal from office or position.
The period of preventive measure in the form of arrest against Imran Aliyev was extended by the Court several times, upon the investigator’s motion and prosecutor’s submission, and without providing any specific arguments to the court to justify the election of such measure of restraint in the form of arrest, and the illegal extension of its duration.
At the trial, the accused stated that he had been interested in the investigation of his case, since he had been illegally imprisoned for four months.
In the ruling, there are the following grounds for the imposition and extension of the preventive measure: potential to abscond from the investigation and court, obstruct the normal course of the investigation, influencing the witnesses and committing a new offence.
As for the ground of hiding from the investigation, it should be noted that Imran Aliyev was detained at the Baku airport. He was informed about the ban on travelling out of the country. It means that under no circumstances, Imran Aliyev will not be able to leave the country, in case of a travel ban. Therefore, this court’s argument is irrational. Moreover, it is not substantiated by any kind of proof. The investigative body and court merely indicated it in the ruling, as it is listed among other grounds in the criminal procedure legislation. However, this ground is nothing else but words without valid arguments.
The investigation’s petition and court’s ruling also referred to the other ground, i.e. unlawful pressure on those involved in the criminal proceedings. In the course of trial Imran Aliyev said that he hadn’t familiarised with the list of witnesses, and therefore, he could not influence anyone. Besides, he noted that only one investigative operation with his participation had been conducted during those four months. According to the investigation and court, that criminal case, in which the accused Imran Aliyev had been involved, was different in terms of complexity, which required additional time in order to implement additional investigative operations. However, for carrying them out, keeping the accused under arrest was not essential. The defence was eager to provide the court with assurances that in case of changing the measure of restraint from detention to house arrest, the defendant would turn up when summoned by the investigation. However, the Court declined it without providing any substantiated grounds.
The Article 155.2 of the Code of Criminal Procedure of the Azerbaijan Republic states, 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.
As it is said in paragraph 4 of the Supreme Court Plenum Decision ‘On the judicial practice in considering implementation of preventive measures in the form of detention and house arrest’ issued on 3 November 2009, it has been explained to the courts that when considering applications for the imposition of a preventive measure in the form of arrest, they must first of all consider the feasibility of imposing other preventive measures provided for under the Article 154 of the Code of Criminal Procedure of the Azerbaijan Republic, as well as justify the inapplicability of preventive measures other than arrest.
The Court did not consider any alternative preventive measures in its ruling granting an extension of the preventive measure against Imran Aliyev.
According to the Article 447.5 of the Code of Criminal Procedure of the Azerbaijan Republic,
In connection with the compulsory conduct of an investigative procedure or the application of a coercive procedural measure, the judge shall have the right to hear statements, to summon for questioning persons who confirm or deny the circumstances indicated in the application and to request the documents and material evidence required to verify the grounds for the application.
Para 8 of the Resolution adopted by the Plenum of the Supreme Court states,
‘It should be clarified to the Courts that the legal investigation in the above mentioned procedure does not include guilt determination, but only verification of the preliminary evidence specified in the application and submission indicating that a defendant has committed an act stipulated by the Criminal Law, as well as the procedural grounds for imposing a preventive measure’.
The paragraph 3 of the Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms reads:
Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
The judgment of the European Court of Human Rights (ECHR) in the case of Smirnova v. Russia dated 24 July, 2003, states,
- In examining the length of detention undergone subsequent to the date of entry of the Convention into force, the Court takes account of the stage which the proceedings had reached. To that extent, therefore, it may have regard to the previous detention (see Ventura v. Italy, no. 7438/76, Commission decision of 9 March 1978, Decisions and Reports (DR) 12, p. 38).
- A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (see, as a classic authority, Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, pp. 24-25, § 12; Yagci and Sargin v. Turkey, judgment of 8 June 1995, Series A no. 319-A, § 52). – https://hudoc.echr.coe.int/?i=001-61262
The investigation and Court did not have any valid arguments to detain Imran Aliyev and repeatedly extend his arrest.
Keeping him in custody was not necessary to prevent further wrongdoing, as stated in the Court’s ruling. Imran Aliyev’s personality and lack of previous convictions in no way suggested that he might be involved in any criminal offence. Neither was there any ground for suspicion that his release could lead to a disturbance of public order.
The above judgement of the European Court of Justice said:
- The danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre-trial detention. In this context regard must be had in particular to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts (see W. v. Switzerland, judgment of 26 January 1993, Series A no. 254-A, § 33 with further references).
- The issue of whether a period of detention is reasonable cannot be assessed in abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see W. v. Switzerland, cited above, § 30).
- Arguments for and against release must not be “general and abstract”. – https://hudoc.echr.coe.int/?i=001-61262
The judgment of the ECHR in the case of Van der Tang v. Spain dated 13 July, 1995, states,
“The domestic courts are primarily responsible for ensuring that the accused’s pretrial detention does not exceed reasonable limits in each case. To that end, they must consider all the circumstances that make apparent the existence of a public interest which, in the light of the presumption of innocence, would justify exceptions to the general rule of respect for individual liberty, and take them into account as part of their judgements on the requests for release.”.- https://hudoc.echr.coe.int/?i=001-57946
In view of the above, we can conclude that the unjustified and unlawful order on arrest and its extension in respect of Imran Aliyev, in which there were no arguments justifying the arrest, violated the Right to Freedom and Personal Inviolability guaranteed by the Constitution of the Azerbaijan Republic, Article 28, and the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5(1).
Courts: