NEITHER FREEDOM NOR OBSERVANCE OF THE LAW ARE GUARANTEED TO ANY INDEPENDENT JOURNALIST
Aziz Orujev
Analysis of violation of law during Aziz Orujev’s judicial proceedings
Baku City Sabayil District Court
Case № 4(009)-812/2023
27 November 2023
Presiding judge: Ulviya Shukurova
Defendant: Aziz Orujev
Defender: Bahruz Bayramov
With participation of the Prosecutor’s Assistant of Sabayil district, Azar Abdulov, and Elshan Badatzade, an investigator at the Investigation Division of the Sabayil District Police Department
Aziz Orujev has been practising journalism for many years and was the Executive Director of the Internet resource chanel Kanal-13.
In 2017, it was initiated a criminal case under the Articles 192 (Illegal business) and 308 (Abusing official powers) of the Criminal Code of the Azerbaijan Republic (CC AR) against A. Orujev. On 15 December 2017, the Baku Court for Serious Crimes issued a verdict against Aziz Orujev: he was found guilty on the charges and sentenced to 6 years in jail. The additional penalty was a ban on holding certain positions for a period of 2 years. According to the Court’s order, he was released on 5 April 2018.
At the end of 2023, in Azerbaijan, there were launched a series of journalists’ arrests. For instance, there were previously arrested Ulvi Hasanli, Sevinj Vaqifqizi, Muhammad Kekalov, Nargiz Absalamova, the management and employees of Absaz Media. Then, they arested a number of other political and social activists as well as the journalists: Teymur Karimov and Hafiz Babaly.
On 26 November 2023, late in the evening, the police came to Aziz Orujev’s house and asked him to follow them. He had beforehand said goodbye to his family members, including his small children of 1 and 3 years old, being aware of his imminent arrest.
- Orujev was charged with an offence under the Article 188.2 (Unauthorized implementation of construction and installation work on the land without the legal right of ownership, use or lease) of the AR Criminal Code.
An investigator of the Baku Sabayil District Police Department’s Investigation Division and the Sabayil District Prosecutor applied to the Court with a petition and submission to elect a preventive measure in the form of detention against the journalist.
On 27 November 2023, the Baku City Sabayil District Court issued an order: to satisfy the investigator’s petition on arrest and issue a preventive measure against Aziz Orujev in the form of detention for a period of 3 months.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
According to the Article 155.1 of the Code of Criminal Procedure of the Azerbaijan Republic, restrictive measures may be applied by the relevant preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation or court when the material in the prosecution file gives sufficient grounds to suppose that the suspect or accused has certain actions.
In Azerbaijan, the application of preventive measures by the national courts is a very problematic issue. The practice of Courts on application of preventive measures is still so far from the legal norms (in particular from the international standards) that, as a rule, the arrest rulings do not differ from each other. They consist of abstract phrases, formal conclusions, and are also full of references to the legal norms. The rulings do not contain any particular arguments that would justify the use of the strictest preventive measure.
There is no difference between the ruling on the journalist’s arrest, we are considering now, and any others we have previously reviewed. As mentioned above, Aziz Orujev was accused of having committed a non-dangerous offence. According to the Article 15.3 of the AR Criminal Code, this offence falls into the category of less serious and does not pose any threat to the public. The application of preventive measure in the form of arrest is not legitimate in this case, the arrest is aimed at something not provided by the Law.
In addition to the above, the detention must be based on reasonable suspicions, which should be specified and relevant to the defendant.
“The Court must ascertain whether the other judicial reasons justify the deprivation of liberty (…). If those reasons are found to be ‘relevant’ and ‘sufficient’, the Court takes into account, furthermore, whether the competent domestic authorities have exercised the ‘due diligence’ in the procedure” (the judgment of the European Court of Human Rights in the case of Tomasi v. France of 27 August, 1992).- https://hudoc.echr.coe.int/#{%22fulltext%22:[%22Tomasi%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57796%22]}
Such general and abstract phrases as “the likelihood of absconding from the trial and investigation”, “interfere with the normal course of the investigation”, “exert unlawful pressure on those involved in the criminal proceedings”, as well as the likelihood of a harsh sentence in the case, alone may not be grounds for the imposition of a preventive measure in the form of arrest. Even though they are listed in the legislation, they must be supported with the concrete arguments, justifications and proofs. What makes the investigators and courts believe that this or that defendant may abscond from the investigation or influence other parties involved in the criminal proceedings? The answers to these questions should be precise and not cause doubts among outside observers.
However, as a ground, the arrest order stated the risk of absconding from the investigation. The European Court of Human Rights (ECHR) provides the following in such cases:
“If detention in custody is maintained solely because of a fear that an accused will abscond from justice, nevertheless he or she should be released from custody if provided with relevant assurances” (Wemhoff v. Germany, 27 June, 1968).
In determining the measure of restraint in the form of arrest, the following should also be taken into account:
- 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 presence or absence of reconciliation between the suspect/accused and the victim or his/her legal assignee, a close relative, compensation for the damage caused in the course of offence, and other relevant circumstances.
As can be concluded, none of the above grounds had been taken into account by the Court when imposing a preventive measure against A. Orujev.
The Plenum of the AR Supreme Court, in its Resolution No. 2, paragraph 3, of 3 November 2009, “On the practice of legislation application by the Courts in considering applications related to the imposition of preventive measures in the form of arrest on the accused”, stated that, according to the Law, there must be substantive and procedural legal grounds for the imposition of a preventive measure on an accused individual. The substantive grounds are the evidence proving the defendant’s involvement in the incriminating offence set out in the criminal law. The procedural grounds consist of the totality of grounds determined by the Court, which confirm the legality and necessity of the preventive measure in the form of arrest, stipulated in the Article 155 of the AR Code of Criminal Procedure.
The above Resolution of the Supreme Court Plenum states that the Courts, while applying the legislation in this area, make a number of mistakes, in particular, they do not comprehensively examine the submissions made by the pretrial investigation bodies, they do not comment on the grounds for the strictest measure of restraint such as arrest, they just use broad terms like hiding from the body conducting the criminal proceedings, obstructing the normal investigation, failure to attend when summoned by the authority conducting the criminal proceedings, and the Courts do not rely on the grounds for arrest.
The AR Supreme Court Plenum has stipulated that the Courts should not tolerate a formalistic approach to the case and, furthermore, when imposing a preventive measure, they should verify the validity and legality of arrest submissions. It must be taken into account that “reasonable suspicions” must include the existence of sufficient evidences that a defendant has committed an offence. The Resolution also states that Courts should consider the possibility of applying an alternative preventive measure other than arrest when considering an imposition of punishment.
Despite the fact that the AR Supreme Court Plenum Resolution was issued in 2009, 14 years later, the current situation in this area has remained the same. Moreover, it tends to worsen every year. The Courts, as in the past, make the same number of mistakes and do not respect the practice of the European Court of Human Rights (ECHR), as well as the Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Non-compliance with the National Procedural Norms, the Resolution of the Supreme Court Plenum of 3 November 2009, the Article 5 (Right to liberty and security of person) of the European Convention, as well as the precedents of the European Court has once again resulted in a gross violation of Aziz Orujev’s right to freedom. His release would not have caused any public discontent or concern. As we conclude, the arrest of Mr. Orujev does not comply with the Law and, therefore, is not legitimate.