Another trial in the so-called “Ganja case”

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Another trial in the so-called “Ganja case”
Elmir Huseynzade Shahin Verdiyev

Ganja City Court on Grave Crimes

Case №1 (100)-119/2019

30 September 2019

Presiding judge: Dadash Imanov

Judges: Muhammad Bagirov, Nural Aliyev

Public Prosecutor: Parviz Mirhashimov 

Defendants: Bahram Aliyev, Habib Qurbanov, Mirza Huseynov, Asif Javadov, Shahin Verdiyev, Elmar Huseynzade, Vugar Yusifov, Emil Mammadov

Defenders:  Eldar Aliyarov, Nuraddin Mammadov, Nazim Musayev, Elshan Hajiyev, Vugar Heydarov, Aydyn Huseynov, Qulbala Zamanov, Qulshan Salimova, Afgan Kazimov, Muhammad Gadashly, Shahla Gumbatova, Zibeyda Saddigova

Victims: Afgan Ismayilov, Tural Akbarov, Vusal Safarov, Sarkhan Nagiyev, Nijat Allahverdiyev, Sabuhi Jafarov, Samir Bayramov, Elnur Mammadov, Vugar Huseynov, Rashad Kazimov, Emin Hasanov, Asiman Mammadov, Asif Damirov, Ziyafat Hasanov, Majid Qurbanov, Tural Qarayev, Nijat Hojayev, the legal successor of the victims Seymur Quliyev, Leyli Abbasova and Rustam Zulfuqarov – the legal successor of lawyer Leyli Abbasova

Consultant-psychologists of the Commission on Work and Protection of Juvenile Rights under the Executive Power of the Baku City Sabunchi District: Ramila Quliyeva, Sabakhat Gumbatova, Elvin Mikayilov

 

On 3 July 2018, around 20:30 (8:30 pm), the armed attempt was perpetrated, in Ganja city, on a Chief of the Executive Power of the city Elmar Valiyev. At crime scene, Police arrested the suspect Yunis Safarov, Russian citizen, who seriously wounded the Chief of the Executive Power, and his bodyguard. On 4 July 2018, Yunis Safarov’s photos with the traces of tortures and beatings were disseminated in Mass Media. The origin of these photos is still unknown. Investigation bodies deny any involvement with them, and unofficial sources bring various versions in regards of the origin of these photos. According to first version, while Yunis Safarov was at Police Department, he was beaten there by a son of the Chief of Executive Power Elmir Valiyev. According to second version, Yunis Safarov was beaten and tortured by the Head of the Criminal Investigation Department colonel-lieutenant Sarkhan Ismayilov and the Chief Investigative Officer of Ganja City Main Police Department Gorkhmaz Ibrahimov. After capturing the beating to his phone, Sarkhan Ismayilov sent these photos to Elmir Valiyev – a son of Elmar Valiyev. Then, Elmir Valiyev disseminated photos in social networks for intimidation purpose.

On 10 July 2018, a protest action took place in the centre of Ganja, during which a Deputy Chief of Ganja City Main Police Department colonel Ilqar Balakishiyev and a Deputy Chief of Ganja City Nizami District Police Department  colonel-lieutenant Samad Abbasov were killed. The organizers of this action haven’t been found.

On 13 July 2018, Rashad Boyukkishiyev   was shot dead by police in Shamkir City. He was accused in the murder of Colonel Ilqar Balakishiyev.

On 21 July 2018, previously convicted Anar Bagirov, who was wanted hid in the Khojasan settlement of Binagadi district, was killed during armed resistance.

On 25 July 2018, the resident of Ganja, the member of the “Muslim Unity” Movement Aga Sarkhani was also shot dead during armed resistance. According to the law enforcement officials, Sarkhani was killed during armed resistance. A photo of the murdered Sarkhani was disseminated in Mass Media, where he was lying with gun in his right hand, although in reality he was left-handed.

On July 28, Fuad Samadov was shot dead during the special operation of National Security Service in Samukh city. According to the law enforcement officials, F. Samadov was also killed during armed resistance, and was one of the active members “of the radical religious group” and has participated in the riots in Ganja.

On 10 August, Muraz Rahimov was killed by policemen in Sumgayit City. According to law enforcement officials, he was also the member of the radical religious group and was killed during armed resistance during the special police operation in Sumgayit. Muraz Rahimov had been previously arrested for participation in protest action on hosting Eurovision-2012 in Baku.

In connection with the events in Ganja, the General Prosecutor of Azerbaijan held a meeting at which he announced that 77 people involved in the investigation of the events in Ganja had been brought to justice, and 13 people had been put on the wanted list.  As a result of investigative measures, five people mentioned above had been liquidated.

Detainees were not provided with lawyers. Elchin Sadigov, well-known lawyer, by taking “sensitive cases”, was removed from Yunis Safarov’s defence, who was accused in assassination attempt on a Chief of the Executive Power of Ganja city Elmar Valiyev due to the complaint lodged by the punitive institution. It was based on that as if E. Sadigov tried to incite Yunis Safarov to file complaints on tortures. Lawyer denies this, and finds this decision to be unlawful and ungrounded.   Russian lawyer Yevgeny Sherbatov is also not allowed to defend Y. Safarov.

On 10 July 2018, security agencies – the Prosecutor’s General Office, Ministry of Internal Affairs and State Security Service of the AR, widespread their joint statement, which stated that on July 10, 2018, around 20:00 h (8 p.m.), the group of radical believers, approximately 150-200 people, tried to brutally disturb public order. While ignoring police warnings, they committed unlawful actions and showed resistance to the police, by physically injuring them with the blunt and sharp cutting objects.  It is also mentioned in the statement, that police detained around 40 persons at a scene, but others managed to run away. Security agencies in their statement expressed their condolences over two killed policemen, who died at the square.

All detainees were brought to Ganja City Main Police Department. The criminal case was incriminated against them under following Articles: 120.2.3 (Deliberate murder of a victim in connection with implementation of a given person of service activity or performance of public debt), 120.2.7 (Deliberate murder of two or more persons), 220.1 (Mass disorders), 221.3 (Hooliganism committed with application of a weapon or subjects, used as the weapon) and 228.4 (Illegal purchase, selling or carrying of gas weapon, cold steel, including throwing weapon) of the Criminal Code of the Azerbaijan Republic (CC AR).

Indictment states that on 10 July 2018, accused participated in an unauthorised action, committed armed attack on police and caused them physical injuries, attempted to police, illegally stored and used weapons.

After the completion of the preliminary investigation, the case was brought before the Ganja Serious Crimes Court. Despite the fact that according to the jurisdictional principles, the court should have been held in the city of Ganja, however, the judges of the Ganja Serious Crimes Court went to Baku and all the trials of the so-called “Ganja case” proceeded in the building of the Sabunchi District Court in Baku.

All detainees in the “”Ganja case” were divided into several groups. We describe the trial of one of the groups below.

The indictment stated that the accused had participated in an unauthorized action on 10 July 2018, having carried out an armed attack on the police officers, inflicted bodily harm with weapons while attempting to kill the policemen.

The defendants were charged under the following articles:

  • Bahram Aliyev was found guilty under the Articles 29,120.2.1 (attempted murder committed by a group of individuals, or a group of individuals by premeditated conspiracy, or by an organized group or criminal organization); 29,120.2.3 (attempted murder of the victim or his/her relatives by virtue of the person’s official activity or public duty); 29,120.2.7 (attempted murder of two or more individuals), 29,120.2.10 (attempted murder committed repeatedly), 220.1 (mass riots), 228.4 (illegal acquisition, sale or carrying of gas or cold weapons), 315.2 (resistance to a government official performing his or her official duties with the use of violence that does not endanger life or health) of the Criminal Code of Azerbaijan Republic (CC AR);
  • Habib Qurbanov was charged under the Articles 29,120.2.1, 29,120.2.3, 29,120.2.7, 29,120.2.10, 220.1, 228.4 and 315.2 of the CC AR;
  • Mirza Huseynov was charged under the Articles 29,120.2.1, 29,120.2.3, 29,120.2.7, 29,120.2.10, 220.1, 228.4, 315.2 of the CC AR;
  • Asif Javadov was charged under the Articles 29,120.2.1, 29,120.2.3, 29,120.2.7, 29,120.2.10, 220.1, 228.4, 315.2 of the CC AR;
  • Shahin Verdiyev was charged under the Articles 29,120.2.1, 29,120.2.3, 29,120.2.7, 29,120.2.10, 220.1, 228.4, 315.2 of the CC AR;
  • Elmir Huseynzade was charged under the Articles 29,120.2.1, 29,120.2.3, 29,120.2.7, 29,120.2.10, 220.1, 228.4, 315.2 of the CC AR;
  • Vugar Yusifov was charged under the Articles 29,120.2.1, 29,120.2.3, 29,120.2.7, 29,120.2.10, 220.1, 228.4, 315.2 of the CC AR;
  • Emil Mammadov was charged under the Articles 29,120.2.1, 29,120.2.3, 29,120.2.7, 29,120.2.10 of the CC AR.

It should be noted that the accused, Asif Javadov, is the third group handicapped, epileptic and has a mental illness (dementia to an average degree, and psychopathic behavior). The accused Emil Mammadov is a minor. The accused Shahin Verdiyev suffered a heart attack after being tortured in April 2019 while in the Baku Investigative Isolator #1.

In the course of the trial, Bahram Aliyev pleaded not guilty to the charges. According to Bahram Aliyev, he had been living and working in Moscow, but due to the fact that he could not get a residence permit in Russia, he was obliged by the law to cross the border every three months and return to Azerbaijan. His temporary stay in Moscow should be terminated on 18 July 2018, however he bought a ticket a little earlier and returned to his native country on July 10. The very same day B. Aliyev flew to Ganja. His friend picked him up at the Ganja airport and they went together to drink tea. They headed to the “Golden” cafe that was opposite to the square where the events took place. On the way, two policemen in civilian clothes approached them and demanded to check their passports. The policemen explained the passport examination reason saying that a rally was going to take place at the square in front of the Executive Power building, and that document verification was a must. The passports have been checked, and the police officers left. Entering the cafe “Golden” B. Aliyev and his friend spotted two other policemen whose reflections were noticed in the mirror.  They left that place and went to another one to drink tea. Later, B. Aliyev was going home through the square where he saw people quietly resting as it happened any other day. At some point, some group of people moved to the square from a fountain side, and he was lost in that crowd. When he was trying to get out from the crowd, he bumped into the police officers. One of them wanted to grab him but Aliyev pushed him away and the policeman fell on the ground. Then he left the place and did not see what was going on there. B. Aliyev testified that he had nothing to do with the cold weapons and had never seen the dagger found in his father’s house. That dagger was hanging on the wall as a gift to his father, it had been never used, it was just a souvenir. He also testified that he had never either appealed, or resisted the police, ended up at the place by accident. He had been unaware of what was going to happen at the square. Bahram Aliyev said that he started practicing namaz (prayer) only after he had been arrested.  He also testified that he had confessed at the interrogation process under the torture and asked the court to acquit him.

The defendant Habib Qurbanov, who had been interrogated during the investigation, pleaded not guilty to the charges. According to Habib Qurbanov, he had been living and working in Turkey. On 10 July 2018, when he was visiting his relatives in Ganja, he went to a pharmacy to buy medicine for his father after tea party with a relative. When he was passing by the Executive Power building, he saw a crowd of people. Curiosity led him to the square. He was wondering why people had gathered there. Habib Qurbanov heard the police command demanding people to disperse and he went towards the mall in direction of the mosque. He was caught there by the security cameras. H. Qurbanov saw Rashad Boyukkishiyev with a dagger in his hand had been approaching a policeman. However, he did not see Rashad Boyukkishiyev leaving the place. Habib Qurbanov also said that he was denying evidence given at the investigation since he had not signed a single document, and a signature on one of the documents was not his own.

Another defendant, Mirza Huseynov, did not plead guilty to the charges during the trial. According to M. Huseynov, he saw the appeals on some social networks and just being surious went to the square. At the square, he saw a small group of people shouting religious slogans and throwing something. To protect himself, Huseynov ran towards the hotel where he saw the arrival of the police rapid reaction unit. He got on a bus and came home. At home on TV, Huseynov saw that two policemen had been killed. He also testified that he had never previously met any of the defendants, and was not religious. Huseynov also did not know Rashad Boyukkishiyev, he heard about him only after the events. He did not provide him with any help. M. Huseynov stated that he confessed under the torture during the preliminary investigation and asked the court to acquit him.

The accused Asif Javadov did not plead guilty to the charges and testified that on social networks he had seen photos of Yunis Safarov with the signs of torture on his body. He headed to the square to protest against the tortures. He walked towards the mosque, performed the rite of ablution and saw people running towards the hotel. Javadov also followed those people in the same direction, and he noticed a police cap on the ground on the way. He kicked off the cap with his foot and said, “No prisoner should be beaten like that.” Javadov saw the policemen near the Executive Power building and ran in their direction. Right then, the policemen used tear gas. Asif Javadov managed to run away and then went home. The policemen detained him on 19 July  2018. Javadov confirmed that he had indeed been at the square. Then the policemen took him to a room where they duct-taped his feet, hands and eyes, and then pushed him down to the floor kicking him with their feet and batons and standing on his back. In the evening, they took him to another room where they extinguished cigarettes on his hands. Asif Javadov couldn’t stand the tortures and told the policemen, “It would be better if you killed me”. One of the policemen pulled out his gun, loaded it and handed the gun to Javadov saying, “Then take it and kill yourself”. Javadov took the gun, put it to his temple and fired. The gun turned out to be unloaded. At this point another defendant, Shahin Verdiyev, was sitting next to him. When Asif Javadov was taken to the detention centre, his body was covered with burning marks from cigarettes and other injuries but no official records of bodily injuries were made.

Suffering from epilepsy A. Javadov had regular attacks of epilepsy in the Baku Investigative Isolator and each time he got an injection to stubilize his condition. Asif Javadov also pointed out that he had never known any of the accused including Rashad Boyukkishiyev. Javadov also testified that the lawyer appointed by the investigators, who was attending the preliminary investigation, asked him to sing a confession, promising that he would be released in 4 months. That’ s why he signed it. Asif Javadov asked the court to acquit him.

Interrogated during the trial Shahin Verdiyev did not plead guilty to the charges and testified that on 10 July 2018, he and his friend Elmir Huseynzade (the accused within this group) went to work, but due to lack of job, they had to return home. At approximately 3-4 p.m., they passed through the street behind the Executive Power building to a cafe to drink tea and play backgammon. Then, they headed to the square in front of the Executive Power building. Once reaching the square, they saw a crowd of people. Those people were walking towards the hotel.  Being interested in the scene, they approached the crowd and saw a guy with a dagger in his hands. They followed the guy who was running away in order to capture him on their phones.  However, they were unable to do so. Fearing to be involved in a conflict between the policemen and the man with the dagger, they left the square. They had no intention of taking part in the action, it all happened by accident, they did not resist the police.

Shahin Verdiyev also testified that he had been tortured during the preliminary investigation and signed a confession under the torture without reading it. He did not know any of the defendants, including Rashad Boyukkishiyev, but Elmir Huseynzade was indeed his friend. Shahin Verdiyev asked the court to acquit him.

The accused Elmir Huseynzade did not plead guilty to the charges and testified similarly to his friend Shahin Verdiyev. Furthermore, he testified that he had seen Rashad Boyukkishiyev injuring the policeman Samir Bayramov, but he did not know what the injuries were. E. Huseynzade also said that his publications concerned an assassination attempt of the Executive Power head of Ganja city Elmar Valiyev that appeared on social networks but he either did not write anything about Yunis Safarov or did not make any appeals.  E. Huseynzade stated that when he was brought to the police station of the Tovuz District to give testimony, the police did not explain the reasons for his detention. Ten days later, he was brought to Ganja. He was subjected to torture and inhuman treatment at the Nizami district police department of Ganja city.  His legs and hands were duct tapered, his eyes were covered and he was beaten with a truncheon. He could not see who had beaten him since his eyes were tapered. He testified that he had confessed under the pressure of the investigator and under the torture. Elmir Huseynzade asked the court to acquit him.

The defendant, Vugar Yusifov, interrogated during the investigation, did not plead guilty to the charges and testified that he had been working in a Shamkir café on 10 July 2018. He accidentally saw a video on Youtube encouraging everyone to go out to the square to participate in the rally. At that time, V. Yusifov used his son’s phone since his phone was being repaired in Ganja city workshop. In order to pick up his phone from the Ganja workshop and watch what kind of rally would be held, he went to the city. On 10 July 2018, Vugar Yusifov arrived in Ganja at about 8 p.m. in the evening. However, the workshop was closed.В. Yusifov along with his friend went to the square. They bought ice cream and a bottle of water not far from the fountain. Walking away from the fountain at 30-40 meters, they heard someone yelling “Somebody was killed”. His acquaintance, frightened, ran away, and he went to see what had happened. Vugar Yusifov saw 15-20 people laying on the ground, then he noticed some man (later he found out that it was Rashad Boyukkishiyev with whom he had been acquainted), with a dagger in his hand shouting religious slogans. He saw the policemen taking the dagger out of the man’s hands, and some people interfering pushing the policemen away so the police was unable to detain Boyukkishiyev. The crowd was moving in the direction of Rashad Boyukkishiyev escape. V. Yusifov did not want to step on the police cap dropped next to him and went around it. The distance between him and Rashad Boyukkishiyev was about 10 meters. A crowd of people was fighting with the policemen. The policemen employed tear gas. People started scattering. Then Vugar Yusifov returned to Shamkir. Later, he found out on the Internet that two policemen had been killed and another one had been wounded.

On 18 July 2018, Vugar Yusifov brought his son to take an exam in Ganja. On 22 July 2018, he was celebrating his son’s successful examination in a café. At that time the police came into the café and detained him. V. Yusifov was brought to the Nizami District Police department in Ganja city. He was tortured, brutally treated at the Police Department, and then said, “You killed our boss”. During the trial V. Yusifov also testified that he either hadn’t resisted to the policemen, or hadn’t committed illegal actions, or hadn’t planned anything. He had never met with Rashad Boyukkishiyev, and didn’t belong to any religious group. He started performing namaz (prayer) only after his arrest in July 2018. Vugar Yusifov asked the court to acquit him.

The defendant, Emil Mammadov, born in 2002, who had been interrogated during the trial, did not plead guilty to the charges. He testified that on 10 July 2018, he was in Goranboy. He came to visit his grandmother who lived near the department store in Ganja (the department store is located near the square) at about 18.00. Half an hour late he left his grandmother’s house and went towards Sabir Street. On his way he saw a crowd of people at the square. E. Mammadov stopped near the monitor, and he noticed a guy in black shirt who appeared there in 5 minutes. That guy (later he learned that his name was Rashad Boyukkishiyev) who he had not met before, was brandishing a dagger and running around the square. When the police arrived at the square, everyone dispersed. Emil left the square and went back to Sabir Street. Later he left for Goranboy. Two policemen detained Emil Mammadov on 27 July 2018, when he arrived again in Ganja. E. Mammadov was brought to the Nizami District Police Department. He was severely beaten by the policemen who showed him a video captured at the square and told him “You killed policemen”. E. Mammadov also revealed that two policemen held his hands at the police department, and the head of the department Adalat Sadigov beat him. Then, and officer Faiq Shabanov told the chief that Emil had been a minor. Emil had been detained for 10 days. The investigator threatened E. Mammadov with a handgun. “Tell the truth, or I will kill you”, said the investigator pulling the gun out of the closet. On 7 August 2018, Emil Mammadov’s uncle took him on bail and he was released. Approximately 5 days later, he was called back to the police department. He informed his uncle who was in Baku that day. His uncle asked him to go there along with his brother. When Emil came to the Nizami District Police Department, the police detained him again. From there, he was sent to the Kyapaz District Police Department in Ganja city, a day later he was transferred to the Ganja Investigative Isolator and then to the Baku Investigative Isolator. E. Mammadov underlined that he had not participated in the rally, he had been just passing by, had not resisted the police, he had not seen anyone throwing stones or other objects towards the police officers, asked the court to acquit him.

It should be particularly highlighted that all accused people were subjected to physical and psychological torture, as well as inhuman treatment while they were being detained.

On 30 April 2019, Shahin Verdiyev’s sister, Nigar Verdiyeva, told the press that she was talking to her brother by telephone on 26 April. He told her that he had been in a very bad condition, that his back had been covered with some blue spots. Shahin Verdiyev also said he had been examined by a doctor. When he called again on 29 April, he could hardly speak. Shahin had difficulty explaining that he had suffered a microinfarction, the left side of his body and his tongue had become numb, and he had been in pain. By the evening, she was told that her brother had been transferred to the Penitentiary Service Medical Facility. Nigar Verdiyeva confidently stated that her brother’s health problems were related to the torture he had been subjected to by the police, “My brother had been twice electroshocked, he had repeatedly lost his consciousness. There is a witness who can confirm it, his name is Asif Javadov. They both were subjected to torture, they had been kept together in the same room.”

Asif Javadov stated at the trial, “The policemen tied Shahin Verdiyev’s handsand attached him to a chair. They beat him on the head and used electroshock. Both of us were subjected to unimaginable torture. As a result of torturing, our health condition became critically deteriorated and the police had to call an ambulance. One of the policemen said, don’t call an ambulance, let them die. Nowadays, our physical conditions arevery poor as the result of torture”.

At the trial, all the defendants stated that they had not been able to see their relatives and friends for six months and could not inform them about what had happened and where they had been kept. Some of the defendants were able to contact their families and inform them about their whereabouts only when they were brought to the Baku Investigative Detention Unit, i.e. 6-7 months after their arrests. The defendants also declared that the option to meet with their families was most likely limited in order to avoid the possibility of seeing the traces of terrible tortures during those months, and the family would not have been able to tell anyone about it. All the detainees reported that they had been subjected to torture and required to “to confess” to all the charges. The tortures were mainly implemented in the Nizami district police department in Ganja city, where the Chief, Adalat Sadigov, personally had been beating and torturing people. And also in the Kyapaz District Police Department in Ganja city, where the Chief of Criminal Investigation Department, Shahin Musayev, had tortured the detained people. During the custody, the accused were not provided with the right to choose their lawyers.  Their rights were not explained to them at the time of detention.

On 30 September 2019, the Ganja Court of Grave Crimes found the defendants guilty and sentenced them:

  • Bahram Aliyev was sentenced to 15 years of imprisonment for committing crimes under the Articles 29,120.2.1, 29,120.2.3, 220.1, 228.4, 315.2 of the CC AR;
  • Habib Qurbanov was sentenced to 8 years of imprisonment for committing crimes under the Articles 29,120.2.1, 29,120.2.3, 220.1, 228.4, 315.2 of the CC AR;
  • Mirza Huseynov was sentenced to 5 years of imprisonment for committing crimes under the Articles 220.1 and 315.2 of the CC AR;
  • Asif Javadov was sentenced to 5 years of imprisonment for committing crimes under the Articles 220.1 and 315.2 of the CC AR;
  • Shahin Verdiyev was sentenced to 2 years conditionally in committing a crime under the Article 220.1 of the CC AR;
  • Elmir Huseynzade was sentenced to 5 years of imprisonment for committing crimes under the Articles 220.1 and 315.2 of the CC AR;
  • Vugar Yusifov was sentenced to 1 year 6 months and 2 days of imprisonment for committing crimes under the Article 220.1 of the CC AR;
  • Emil Mammadov was sentenced to 5 years of imprisonment for committing crimes under the Articles 29,120.2.1, 29,120.2.3 and 29,120.2.7 of the CC AR;

Shahin Verdiyev, Elmir Huseynzade and Emil Mammadov were released in the courtroom, and the previously chosen preventive measure in the form of arrest was replaced by a travel ban  for all three defendants.

 

Commentary by an expert lawyer:

The court verdict is illegal and unjustified. All the defendants testified that they had been subjected to torture and inhuman treatment in order to extort their confessions.

According to the legislation of the Azerbaijan Republic, torture, humiliation of honor and dignity of defendants are forbidden.

No one can be subjected in the course of criminal trial:

  • to treatment and punishment that degrade human dignity according to the Article 13.2.1 of the Criminal Procedure Code of the Azerbaijan Republic (CPC AR);
  • to be kept in conditions that diminish personal dignity (Article 13.2.2 of the CPC AR);
  • be forced to participate in the proceedings involving humiliation (Article 13.2.3. of the CPC AR).

According to the Article 15.2 of the CPC of AR, during the criminal prosecution the following shall be prohibited:

taking evidence from victims, suspects or accused persons or from other participants in the criminal proceedings using violence, threats, deceit or by other unlawful acts which violate their rights (Article 15.2.3 of the CPC AR).

  • The use of torture and physical and psychological force, including the use of medication, withdrawal of food, hypnosis, deprivation of medical aid and the use of other cruel, inhuman or degrading treatment and punishment (Article 15.2.1 of the CPC AR);
  • Taking evidence from victims, suspects or accused persons or from other participants in the criminal proceedings using violence, threats, deceit or by other unlawful acts which violate their rights (Article 15.2.3 of the CPC AR).

 

Article 125.1 of the CPC AR states: “If there is no doubt as to the accuracy and source of the information, documents and other items and as to the circumstances in which they were obtained, they may be accepted as evidence.”

 

Article 125.2 of the CPC AR states: “Information, documents and other items shall not be accepted as evidence in a criminal case if they are obtained in the following circumstances:

 

  • 2.1 If the accuracy of the evidence is or may be affected by the fact that the parties to the criminal proceedings are deprived of their lawful rights, or those rights are restricted, through violation of their constitutional human and civil rights and liberties or other requirements of this Code;
  • 2.2 Through the use of violence, threats, deceit, torture or other cruel, inhuman or degrading acts.

According to the Article 124.1 of the CPC AR, “Reliable evidence (information, documents, other items) obtained by the court or the parties to criminal proceedings shall be considered as prosecution evidence. Such evidence:

  • 1.1 Shall be obtained in accordance with the requirements of the Code of Criminal Procedure, without restriction of constitutional human and civil rights and liberties or with restrictions on the grounds of a court decision (on the basis of the investigator‘s decision in the urgent cases described in this Code);
  • 1.2 Shall be produced in order to show whether or not the act was a criminal one, whether or not the act committed had the ingredients of an offence, whether or not the act was committed by the accused, whether or not he is guilty, and other circumstances essential to determining the charge correctly.

The verdict of the Court referred to the defendants’ testimonies provided by them in the course of the preliminary investigation. At trial, all the defendants revoked their initial testimonies and stated that they had been forced to do so because they had been subjected to terrible tortures. Moreover, the court should not have taken into account the interrogation transcripts of the defendants, as they had been signed under the pressure. Furthermore, the court was to exclude those transcripts from the list of evidence.

On 10 March 2000, the Decision of the Plenum of the Supreme Court of the Azerbaijan Republic “On the activity of the courts in the area of human rights and freedoms protection during the justice procedure” states: «6. In the course of justice procedures it is inadmissible to use evidence obtained in an unlawful manner. Therefore, the courts should not consider such evidences at the trial. If the court comes to a conclusion that bodies of inquiry and preliminary investigation have submitted the illegally acquired evidences, then, in all cases, the court should exclude these evidences from the overall number of other evidences and make its decision regarding the actions of officials…”.

The Article 46 (III) of the Constitution of Azerbaijan states: “Nobody must be subject to tortures and torment, treatment or punishment humiliating the dignity of human beings. Medical, scientific and other experiments must not be carried out on any person without his/her consent”. The European Convention for the Protection of Human Rights and Fundamental Freedoms categorically prohibits torture, inhuman or degrading treatment, or punishment.

The Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms prohibits torture and inhuman treatment. Numerous judgments of the European Court of Human Rights (ECHR) guarantee the individual’s protection from physical and psychological abuse.

The law enforcement authorities and Courts must closely monitor the Law implementation. If any citizen claims to have been subjected to torture during the course of judicial proceedings, an effective official investigation should be carried out to identify those responsible for violating the law in order to penalize the latter ones.

In this case, despite the fact that all the defendants testified before the court that they had been tortured and some of them had mentioned the specific names of the perpetrators, the court neither conducted any investigation nor sent a specific ruling to the law enforcement agencies.

According to the Article 9 of the International Covenant on Civil and Political Rights “No one shall be subjected to torture or cruel, inhuman, degrading treatment or punishment”.

“The Court recalls that if a person was brought to the police station in good health, and at the time of his/her release a detainee was in some way injured, the State has an obligation to provide a credible explanation of the injuries origin, and if it fails to do so, then the Article 3 of the Convention enters into force” (European Court of Human Rights judgment in Dikme v. Turkey, 11 July 2000). https://hudoc.echr.coe.int/eng#{“itemid”:[“001-58751”]}

The right to liberty has been violated in respect of all accused individuals. Despite the fact that the Article 28 of the Constitution of the Azerbaijan Republic guarantees the right to freedom for all citizens, all the accused were deprived of this right. During detention, the police officers did not introduce themselves, did not explain the detainees’ rights and duties, did not provide legal defence, did not explain the reasons of detention.

The Article 5 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms states: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.

As indicated in the book by Dr. Michele de Salvia, a Legal Adviser to the European Court of Human Rights: “The Convention provides that only a reasonable presumption of a person having committed a criminal offence may justify deprivation of liberty. Therefore, a justified suspicion is an essential element of the Convention’s protection against arbitrary deprivation of liberty. Having a reasonable suspicion in advance presupposes the existence of facts or information that may convince an objective observer that a person may have committed this offence. What may be considered reasonable, however, depends on the totality of the circumstances” (Michele de Salvia, “Precedents of the European Court of Human Rights”, St. Petersburg, 2004).

The Article 9 of the International Covenant on Civil and Political Rights also guarantees the right to liberty:

  1. Everyone has the right to liberty and security of person. No one may be arbitrarily arrested or detained. No one shall be deprived of his liberty except on such grounds and in accordance with such a procedure as are established by law.
  2. Each arrested person shall be informed at the time of arrest of the reasons for his arrest, and any charge brought against him shall be urgently notified.

The Article 349.5 of the CPC AR says about the legitimacy and motivation of the court sentence.

In the following cases the court judgment shall be considered well-founded:

  • if the conclusions at which the court arrives are based only on the evidence examined during the court’s investigation of the case;
  • if the evidence is sufficient to assess the charge;
  • if the facts established by the court are consistent with the evidence investigated

 

As it is seen from the verdict, the court’s conclusions are mainly based on the evidence provided by the prosecution. The evidences submitted by the defense have not been taken into account by the court during the sentencing procedures. Moreover, all doubts in the course of the trial have not been interpreted in favor of the accused but rather in favor of the investigation.

Thus, the court’s verdict condemning the guilt and severe punishment of the accused in the case is not either justified or legitimized. It has violated the fundamental principles of a democratic society. The most heinous violation was the use of torture, which is unacceptable in any case, be it in the fight against terrorism, war or organized crime.