20 years of imprisonment imposed on two armenian prisoners of war

20 YEARS OF IMPRISONMENT IMPOSED ON TWO ARMENIAN PRISONERS OF WAR

Ludwig Mkrtchyan and Alesha Khosrovyan

Analysis of violation of law during 2 Armenian prisoners of war judicial proceedings 

Baku Military Court

Case №1-1(093)-104/2021

August 2, 2021

Presiding judge: Elbey Allahverdiyev

Judges: Jamal Ramazanov, Rafiq Abbasov

Defendants: Ludwig Mkrtchyan, Alesha Khosrovyan

Defenders: Tofiq Aslanov, Arzu Javadov

Victims:  Elshan Islamov, Elman Hajiyev, Yashar Abdulaliyev, Zahid Hasanov, Rauf Qafarov, Zaur Rzayev, Habib Kazimov, Famil Aliyev, Kamil Babayev, Qarib Valiyev, Huseyn Javid

Victims’ assignees: Khanbala Askerov, Yegyana Yediyarova

Victim’s representative: Rashad Guliyev

The State Prosecutor: Mahir Abbasov, a Counsellor of Justice and Senior Assistant of the Prosecutor General of the Azerbaijan Republic

In September 2020, there were the violent hostilities between Azerbaijan and Armenia in and around Karabakh. As a result of the 44-day-war, Azerbaijani soldiers liberated several towns and many villages in Karabakh and the territory adjacent to it.  Dozens of Armenian soldiers were captured in the course of military operations and were convicted and sentenced to the various terms of imprisonment.

Ludwig Mkrtchyan, born in 1969 in Nakhchivan in the Azerbaijan Republic, a citizen of the Republic of Armenia, currently held in a temporary detention facility of the State Security Service of the Azerbaijan Republic, was charged with committing crimes under the articles:

• 29,120.2.1 (Attempt of deliberate murder committed by group of persons, on preliminary arrangement by group of persons, by organized group or criminal community);
• 112 (Imprisonment in infringement of international law norms);
• 113 (Application of tortures);
• 2 (Application to a persons provided in article 115.1 of the present Code, tortures, severe or brutal manipulation with them, implementation of medical, biological and other researches, including withdrawal of bodies for transplantation, and also their use as a barrier for protection of armies or objects, or maintenance as hostages, as well as attraction of civilians to forced hard labor or compulsory moving from places of a lawful settlement for other purposes);
• 3 (The acts provided by articles 115.1 and 115.2 of the present Code, entailed to death of persons or causing of heavy harm to their health);
• 2.1 (Deliberate murder committed by group of persons, on preliminary arrangement by group of persons, by organized group or criminal community);
• 2.3 (Deliberate murder of a victim in connection with implementation of a given person of service activity or performance of public debt);
• 2.12 (Deliberate murder on motive of national, racial, religious hatred or enmity);
• 29,120.2.1 (Attempt of deliberate murder committed by group of persons, on preliminary arrangement by group of persons, by organized group or criminal community);
• 29,120.2.3 (Attempt of deliberate murder of a victim in connection with implementation of a given person of service activity or performance of public debt);
• 29,120.2.7 (Attempt of deliberate murder of two or more persons);
• 29, 120.2.12 (Deliberate murder committed on motive of national, racial, religious hatred or enmity);
• 3.2 (Smuggling committed on preliminary arrangement by group of persons);
• 2.1 (Illegal purchase, transfer, selling, storage, transportation or carrying of fire-arms, accessories to it, supplies (except for the smooth-bore hunting weapon and ammunition to it), explosives committed on preliminary arrangement by group of persons);
• 2.2 (Illegal purchase, transfer, selling, storage, transportation or carrying of fire-arms, accessories to it, supplies (except for the smooth-bore hunting weapon and ammunition to it), explosives committed on preliminary arrangement by group of persons repeatedly);
• 1 (Creation of armed formations or groups, which are not provided by the legislation of the Azerbaijan Republic, and also participation in their creation and activity, supplying them by weapon, ammunition, explosives, military engineering or military equipment),
• 3 (Creation of armed formations or groups, which are not provided by the legislation of the Azerbaijan Republic entailed to destruction of people or other heavy consequences);
• 2 (Crossing of protected frontier of the Azerbaijan Republic without established documents or outside of check point of frontier, committed on preliminary arrangement by group of persons or organized group either with application of violence or with threat of its application) of the Criminal Code of the Azerbaijan Republic.

Alesha Khosrovyan, born in 1967, a citizen of the Republic of Armenia, presently kept in the temporary isolation ward of the State Security Service of the Azerbaijan Republic, was accused of committing crimes under the Articles 115.2, 115.3, 206.3.2, 228.2.1, 276 (Espionage), 279.1 and 318.2 of the Criminal Code of the Azerbaijan Republic.

According to the investigation, Ludwig Mkrtchyan violated the International Legal Norms, deprived people of their freedom, tortured them physically and psychologically, inflicted serious harm to the health of prisoners and other individuals protected by the International Humanitarian Law, treated them with cruelty and brutality, committed premeditated murder based on ethnic hatred, and smuggled, illegally crossed the State border of the Azerbaijan Republic, participated in the illegal armed groups, and unlawfully acquired, carried, stored weapons and ammunition.

It is also specified in the indictment that the illegal armed formations formed by Ludwig Mkrtchyan consisted of the Armenian nationalists. Having colluded with others to commit a crime, L. Mkrtchyan captured Ismayil Ibrahimov (born in 1962) and Yashar Mehdiyev (born in 1963), a resident of Barda, and kept them captive in a forest house in Khojaly from July 12 to July 27, 1991, constantly hitting them on various parts of their bodies with machine guns and iron bars, as well as with fists and kicks, forcing them to sleep with their hands tied, pouring gasoline on them from head to toe, letting them eat only a piece of dry bread a day, keeping them hungry, and also torturing them psychologically.

Moreover, having entered into a criminal agreement with other individuals in the course of military actions on August 31, 1993, he brutally and inhumanly treated a prisoner, Habib Kazimov, a former soldier of military unit No. N, who was illegally held in a prison in Shusha. From March 1994 to March 1995, he constantly hit him on various parts of his body with a rifle, wooden and iron bars, fists and kicks, made him perform hard labor, once a day allowed him to eat some dry bread, and tortured him psychologically.

He was torturing and inhumanly treating the captive soldier Elman Hajiyev in the Kelbadjar region on September 25, 1993, illegally keeping him, making him work at the construction site of the self-proclaimed defense minister of Nagorno Karabakh, Samvel Babayan, giving him only dry bread once a day, not allowing him to rest, constantly beating him with machine guns, wooden and iron bars, fists and kicks on various body parts, causing him severe pain.

Ludwig Mkrtchyan committed the same actions on January 2, 1994, against the captive soldier of military unit No. N, Famil Aliyev, on January 5, 1994, against the captive soldier of military unit No. N, Huseyn Javid, on February 14, 1994, against Kamil Babayev, on February 16, 1994, against Yashar Abdulaliyev, on March 8, 1994, against Zahid Hasanov, on July 7, 1994, against Rauf Qafarov, December 28, 1998, against Elshan Islamov, on September 13, 1999, against a resident of Barda region, Garib Valiyev, brought to the city of Yerevan of the Republic of Armenia.

Ludwig Mkrtchyan was also part of a separatist-minded organization called “Yerkrapa”,” established in 1993, and participated in the large-scale combat operations at Goranboy, Terter, Agdam, and Fuzuli districts in April 2016, having illegally crossed the State border of Azerbaijan.

On September 27, 2020, he came up to a military post in Yerevan to take part in the military operations against Azerbaijan, there he received the relevant weapons and illegally crossing the State border through the Lachin corridor headed to Azerbaijan.

On October 20, 2020, he participated in a raid on soldiers of the Armed Forces of Azerbaijan, during which Firavan Askerov, a soldier, received a fatal wound with a bullet penetrating through his heart, as a result of which Askerov died.

Alesha Khosrovyan’s accusations were related to the fact that on August 31, 1993, together with Ludwig Mkrtchyan and others, he used torture and inhuman treatment against a captive soldier of the AR Armed Forces, Habib Kazimov, on January 2, 1994, to the soldier Famil Aliyev, on January 5, 1994, to Huseyn Javid, on February 14, 1994, to Kamil Babayev, on March 8, 1994, to Zahid Hasanov, on April 27, 1994, to Zaur Rzayev, on July 7, 1994, to Rauf Qafarov. On October 3, 2020, with the purpose of participation in military operations against Azerbaijan, which began on September 27, 2020, he arrived in Jabrayil City illegally crossing the state border of Azerbaijan while being a member of “Yerkrapa”, a separatist organization established in 1993.

 

As stated in the verdict:

Defendants’ testimonies:

In the course of the preliminary investigation, the accused, Ludwig Mkrtchyan, pleaded guilty. During the trial, he pleaded guilty only to the illegal crossing of the Azerbaijani State border and confirmed his testimony provided during the investigation.

In the course of the preliminary investigation, the accused Alesha Khosrovyan also pled guilty. At the trial, he pleaded guilty only to the illegal crossing of the Azerbaijani State border and confirmed his testimony provided during the investigation.

 

Victims’ testimonies:

Mr. Kamil Babayev, a citizen of Azerbaijan, who was interrogated as a victim at the trial, has testified that he was called up for active military service at the military commissariat in Sabirabad on 4 January 1994. On January 15, 1994, he was captured in the area of Kelbadjar where he was beaten by a group of Armenians until he fainted. When he became conscious, he had his hands tied. He had been beaten by ethnic Armenians for three days. Then, K.Babayev was brought to Kelbadjar, and then to a cell in the Agdam police department. Afterwards, Babayev was transported to the children’s clinic in Khankendi, from there to the prison in Shusha. In December 1995, he was released from captivity with the help of the Red Cross. The victim also testified that among the individuals of Armenian nationality who subjected him to torture and inhuman treatment were people by the names Lesha, Lekha, Roba, Vanya, Kamo, Samvel, and others. The victim described the appearance of a certain Lesha, who tortured him and was particularly cruel at that time. He recognized Alyosha Khosrovyan as Lesha and Ludwig Mkrtchyan as Lecha. While in Shusha prison, they tortured him, either together or separately.

Rauf Qafarov, Famil Aliyev, Zahid Hasanov, Habib Kazimov, Huseyn Javid, Garib Valiyev, Elshan Islamov, Elman Hajiyev, Yashar Abdulaliyev, who were interrogated as victims at the trial, testified that, while in captivity, they had been tortured by the individuals of Armenian nationality. Many of them mentioned the names Lesha, Lekha, and others.

Yashar Abdulaliyev added to his testimony that while he had been in Shusha prison, a policeman by the name of Zhirik and others had beaten him. All the victims were released from captivity between 1995 and 2000.

Yegana Yediyarova, the legal successor of the victim, who was interrogated in the court, testified that her husband, I. Ibrahimov, worked as a chief mechanic at the sewing department in the city of Barda in 1991. Having gone together with his colleague to get material for their work, they were taken captive by individuals of Armenian nationality in the vicinity of the Shusha district. They were kept in the forest near Khojaly for several days and then released. Upon their release from captivity, I. Ibrahimov and his friend revealed that they had been tortured in captivity. Then, she saw numerous injuries on her husband’s body. On December 25, 2020, I. Ibrahimov died due to coronavirus infection.

Hanbala Askerov, the father of the deceased Firavan Askerov, his legal successor, who was questioned in the court, testified that his son had been drafted by the Sabirabad military commissariat to active military service in April 2019. Firavan Askerov was sent to the front line during the military operations that began on September 27, 2020. On October 20, 2020, Khanbala Askerov found out that his son had been killed in a firefight between Azerbaijani and Armenian soldiers.

 

Witnesses’ testimonies:

Jeyhun Velibekov, interrogated as a witness at the trial, testified that he and his fellow soldiers Elnur Suleymanov, Turan Davudov and Aydin Memishev were on duty in the Jabrayil district on October 3, 2020. They saw an UAZ vehicle approaching and went out on the road to see where the car was going. When the car approached them, a soldier in Armenian military uniform got out, they mistakenly took Jeyhun Velibekov and others for Armenian military personnel and started speaking Armenian. The Azerbaijani soldiers asked him to surrender in Russian. He didn’t manifest any resistance and relinquished his weapon. During the search of his car, they found some automatic rifles and cartridges. In the course of interrogation, the soldier admitted that his name was Alyosha, he was a citizen of the Republic of Armenia, who had volunteered to fight against the Azerbaijani military and had knowledge of the Azerbaijani language.

The witnesses Elnur Suleymanov, Turan Davudov, and Aidyn Memishev provided the same kind of testimonies.

 

Some other evidences:   

 In the criminal case, there are protocols of identification, according to which the victims Kamil Babayev, Rauf Qafarov, Famil Aliyev, Zahid Hasanov, Habib Kazimov, Huseyn Javid Zaur Rzayev, Garib Valiyev, Yashar Mehdiyev, Elshan Islamov, Elman Hajiyev, and Yashar Abdulaliyev identified the accused individuals and stated that Ludwig Mkrtchyan was Lekha, and Alesha Khosrovyan was Lesha.

The protocols of confrontation between the suspects (accused) and victims also confirm the victims’ words.

The testimonies verification protocols, made on the spot, confirm the fact that the Azerbaijani soldiers were illegally detained by the Armenian military, and that Ludwig Mkrtchyan and Alesha Khosrovyan subjected them to torture and inhuman treatment.

According to the protocol of examination dated May 7, 2021, there is a tattoo of dark green color inscribed in Russian letters “LMM” on Ludwig Mkrtchyan’s left hand, between his thumb and forefinger.

Based on the forensic medical expertise dated April 30, 2021, it is clearly seen that there are scars on the left eyebrow and on the lower ankle of the left leg of Famil Aliyev. These injuries were caused with a blunt object, the time and conditions of their infliction correspond to what he said, according to the degree of severity these injuries are related to the lesions that resulted in a short-term health disturbance.

According to the forensic medical examination expertise from December 28, 2012, there are scars on Elshan Islamov’s right leg and he has three broken teeth. These injuries were caused with a blunt object. The time and conditions of infliction correspond to what he said, according to the degree of severity these injuries are related to the lesions that resulted in a short-term health disturbance.

According to the forensic medical expertise from February 4, 2003, Huseyn Javid lost his vision in both eyes due to cataracts; this disease was caused by the trauma (beating on the head and eyes with a blunt object) during his captivity. The severity of the injuries were classified as serious lesions causing significant harm to his health.

The forensic medical examination report dated December 7, 2005, says that Zaur Rzayev’s nose fracture, deviation of septum, and breathing difficulties have been detected. These injuries were made with a blunt object, the time of infliction refers to April 28, 1994, and the degree of injuries are considered to be light.

According to the forensic medical expertise report dated January 22, 2007, the injuries were found on Yashar Abdulaliyev’s right leg and back, and they were inflicted with a cutting instrument (a knife, glass or iron bars) on February 19 and May 21, 1994.  The degree of its gravity has not been established due to their lightness.

The forensic medical expertise dated May 12, 2010, indicated that as a result of the injury incurred to the right side of Habib Kazimov’s head, he had an astheno-vegetative state, a syndrome of mental decay. This injury could have been caused by a projectile rupturing, and its fragments penetrating into his head. The time of the injuries corresponds to August 31, 1993. In terms of severity, these injuries were considered to be less significant.

The forensic medical expertise dated October 20, 2020, concluded that the deceased Firavan Askerov died as a result of a gunshot wound in the chest area. In terms of severity, the wound is considered to be grave, as it resulted in death.

The comprehensive out-patient forensic psychiatric and forensic psychological examinations carried out on February 26, 2021, and January 15, 2021, respectively, revealed that either Ludwig Mkrtchyan or Alesha Khosrovyan did not suffer from any mental or psychological disorders.

In the course of the forensic medical examination carried out on February 25, 2021, it was determined that Ludwig Mkrtchyan’s body injuries have been caused by a bullet within the period specified by Mkrtchyan himself (4-6 months prior to the examination).

The forensic medical examination dated February 5, 2021, revealed that there were old deformations in the lower part of Alesha Khosrovyan’s body, and no other injuries have been recorded.

 

The court verdict  

The Court found in the case of each defendant additional aggravating circumstances. On August 2, 2021, the Baku Military Court sentenced the accused:

• Ludwig Mkrtchyan was found guilty of committing crimes under the Articles 112, 113, 3, 120.2.1, 120.2.3, 120.2.12, 29,120.2.1, 29,120.2.3, 29,120.2.7, 29,120.2.12, 206.3.2, 228.2.1, 228.2.2, 279.1, 279.3 and 318.2 of the Azerbaijan Republic Criminal Code, and sentenced him to 20 years of imprisonment, while the first 10 years were to be served in the closed Gobustan prison, and the remaining 10 years in a strict regime colony.
• Alesha Khosrovyan was found guilty of committing crimes under the Articles 3, 206.3.2, 228.2.1, 276, 279.1 and 318.2 of the Azerbaijan Republic Criminal Code, and sentenced him to 20 years of imprisonment, while the first 7 years were to be served in the closed Gobustan prison, and the remaining 13 years in a strict regime colony.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified. We must first consider the charges brought against him. As can be seen, Ludwig Mkrtchyan, besides being subjected to torture and inhuman treatment, was charged with murder and attempted murder. The verdict states that in the course of the investigation and then at the trial Khanbala Askerov, the father of the killed soldier Firavan Askerov, participated as the legal successor, testifying that his son was drafted for the military service, sent to the front line on September 27, 2020, and on October 20, 2020, the news of his death was received.

Further, the widow of the victim Ismail Ibrahimov, also participated at the trial, testified that after her husband’s release from captivity his body had been covered with numerous injuries. I. Ibrahimov died as a result of a coronavirus infection in 2020. Ibrahimov’s wife did not mention any names of those responsible for causing injuries to her husband.

According to the Article 87.1 of the Code of Criminal Procedure of the Azerbaijan Republic, if there are sufficient grounds to show that the individual suffered direct nonmaterial, physical or material damage as a result of the act provided for in criminal law, he shall be referred to as a victim.

In this criminal case, there are only two aforementioned legal successors of the victims. No other deaths and murders were mentioned in the verdict. As in the first or second case, Ludwig Mkrtchyan has not been involved in; the deaths of Ismail Ibrahimov and Firavan Asgarov had nothing to do with him. The fact of L. Mkrtchyan’s participation in the combat operations against the Azerbaijani army is by no means denied, but what murders this defendant has been charged with is not stated in the verdict.

All of the above cast doubt on the legitimacy of the charges of murder and attempted murder, as the investigation did not provide the court with concrete evidence. Such evidences are abstract, not direct or irrefutable. It is obvious that hostilities result in deaths, but in order to lay a concrete charge, there must be definite evidences.

Further, the accusation of Alesha Khosrovyan in espionage seems dubious. According to the Article 276 of the Azerbaijan Republic Criminal Code, espionage is transfer, as well as kidnapping, collecting or storage with the purpose of transfer to the foreign state, foreign organization or their representatives of a data which are a state secrets, and also transfer, kidnapping with a purpose of transfer or collecting by orders of special services of the foreign states of other data for their use to detriment safety of the Republic of Azerbaijan, if espionage is committed by a foreigner or person without citizenship. 

The verdict states that Alesha Khosrovyan used to gather information concerning the number and location of the Azerbaijani army as well as the availability of their military equipment. However, the verdict does not specify through which channels the secret information has been transferred to the Armenian special services and whether it has constituted a State Secret. In the criminal case, there is no confirmation of the experts whether this information represents the State Secret or it does not. There are neither dates indicated in the verdict, nor the timeframes of the committed espionage.

The charges, as we see, embrace a sufficiently long period of time, starting in 1991 and ending in 2020. The charges are brought under the current Criminal Code of the Azerbaijan Republic. Either the investigation or court have not differentiated the crimes according to the time of their commission. The investigation and the court have not differentiated the crimes according to the time of their commission. Thus, the crimes committed prior to the entry into force of the Criminal Code currently in effect (before 2000) were to be charged under the Criminal Code that was in force before 2000, and the crimes committed after 2000 were to be qualified under the Criminal Code of nowadays.

 

According to the Article 10.1 of the Azerbaijan Republic Criminal Code,

The criminality and punish of action (action or inaction) shall be determined by the criminal law, exercised during commitment of this action (action or inaction). No one shall be applied to criminal liability for action, which was not admitted as a crime at the time of committing it.

The Article 10.2 of the Azerbaijan Republic Criminal Code states,

Time of committing socially dangerous action (action or inaction) shall be time of committing a crime irrespective on time of approach of consequences.

This means, in other words, that the law applies only for the period of time following its enactment. The law does not extend to the deeds of past, that is, it does not have retroactive force. It is only in those cases where the law removes the criminality of the act, mitigates the punishment, or improves the position of the perpetrator in any other way, that it extends its force to all past events related to the crime and its conviction.

It is remarkable that the defendants’ testimonies in the verdict were outlined in a few sentences. It does not contain their testimonies either taken in the course of investigation or at the trial, and the victims’ testimonies have been written practically word by word, all of them identical.

Perhaps, there were facts of inhuman treatment by the accused, but 20 years later could the victims and witnesses recognize their torturers as those who had tortured them then? Those facts can hardly ever be proven. The investigation should have had such evidences that directly indicated that it had been done by the accused who had committed the crimes.

The Article 139 of the Criminal Procedure Code of the Azerbaijan Republic sets out the circumstances that must be proven, namely:

• the facts and circumstances of the criminal act;
• the connection of the suspect or accused with the criminal act;
• the criminal ingredients of the act provided for in criminal law;
• the guilt of the person in committing the act provided for in criminal law;
• the circumstances which mitigate or aggravate the punishment for which
• criminal law provides;
• if there is no other circumstance covered by this Code, the grounds for a
• request by a party to the criminal proceedings or another participant in the proceedings.

The evidences obtained in a criminal prosecution must be fully comprehensively and objectively examined. At the time of verification, these evidences should be analyzed and compared with each other, and new evidence should be compiled and the reliability of the origin of the obtained evidence must be determined (the Article 144 of the Azerbaijan Republic Code of Criminal Procedure).

All evidence shall be assessed as to its relevance, credibility and reliability. The content of all evidence collected for the purposes of prosecution shall be assessed in terms of whether it is sufficient to substantiate the charge (the Article 145.1 of the Azerbaijan Republic Code of Criminal Procedure). If suspicions which emerge during the process of proving the charge cannot be removed by other evidence, they shall be interpreted in favour of the suspect or accused (the Article 145.3 of the Azerbaijan Republic Code of Criminal Procedure).

The gaps made by the preliminary investigative body were not eliminated by the court. Despite the fact that the Article 299.3.2 of the Azerbaijan Republic Code of Criminal Procedure stipulates that one of the questions considered by the court in the preliminary hearing is whether the requirements of the Criminal Code have been violated in the course of the pre-trial investigation.

The following matters relating to the results of the court’s examination of the case shall be discussed by the court (or examined by the judge) in the deliberation room:

• whether the criminal act is proved;
• whether it is proved that the act committed by the accused has a criminal
• content;
• whether it is proved that the accused was connected with the commission of the offence;
• whether the accused is proved guilty of committing the offence;
• whether the act committed by the accused corresponds to the ingredients of the offence with which the accused is charged under the relevant provision of criminal law;
• whether there are circumstances that preclude the act being an offence;
• whether there are circumstances aggravating or mitigating the criminal responsibility of the accused;
• whether there are grounds for exonerating the accused from criminal responsibility;
• whether the accused should be punished for the act committed;
• whether there are grounds for punishing the accused for reoffending;
• which punishment to impose on the accused (including consideration of previous offences, the total number of offences, the total length of sentences, the combination of penalties, calculation of the length of sentences, an alternative penalty, reduction of sentence, the jurors’ recommendation of a lighter sentence instead of the statutory penalty provided for in respect of this offence, and the possibility of imposing a conditional sentence);
• whether the accused should serve the sentence.

The court judgment shall be lawful and well-founded (the Article 349.3 of the Azerbaijan Republic Code of Criminal Procedure).

According to the Article 349.5 of the Azerbaijan Republic Code of Criminal Procedure, 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.

The commented verdict was not either well-grounded or legitimate.

In this case, the Court also treated the criminal case superficially, as in other “sensitive cases,” did not resolve the above issues, did not properly evaluate the sufficiency of the evidences, thereby depriving the defendants of their right for a fair trial, as enshrined in the Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The principle of the Norm of Law is an important pillar for the States Members of the CoE. This Norm guarantees the right to a fair trial and therefore the right of each participant in a trial to the proper administration of justice. There are two aspects on which the judicial practice concentrates, mainly they concern evidentiary matters and respect of the defendants’ rights. In the area of evidentiary matters, the following principles emerge from jurisprudence, which only reaffirm the principles that govern criminal proceedings. First of all, the burden of proving must be on the prosecution, and doubts must be interpreted in favour of the accused. As such, it follows that it is incumbent upon the prosecution to provide evidence sufficient to substantiate a claim of guilt.

It was written in the judgment of the European Court of Human Rights in the case of Kraska v. Switzerland from April 19, 1993:

According to Article 6 para. 1 (art. 6-1) of the Convention everyone is entitled to a fair trial by an impartial tribunal. The right to a fair hearing includes, inter alia, the right for the parties to the proceedings to submit to the court observations which they regard as relevant to their case. This right is, however, effective only if the submissions made to the court are also duly considered by the court. – https://hudoc.echr.coe.int/eng#{“fulltext”:[“kraska%20v.Switzerland”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-57828”]}

The fairness requirements apply to the process as a whole and are not limited to adversarial hearings. The right to a fair trial is also enshrined in the Article 14 of the International Covenant on Civil and Political Rights. This fundamental right was violated in the course of that trial.