THE JUDGE HAFIZ KAMRANOV GROSSLY VIOLATED THE RIGHT TO LIBERTY AND PERSONAL SECURITY OF SHAHIN QADIRLI
Shahin Qadirli
Analysis of violation of law during Shahin Qadirli’s judicial proceedings
Baku City Narimanov District Court
Case №4(005)-1265/2022
25 November 2022
Presiding judge: Hafiz Kamranov
Defendant: Shahin Qadirli
Defender: Iqbal Hasanov
Translator: Teymur Suleymanov
A Prosecutor of the Department for Supervision over the Implementation of Laws in Investigation, Inquiry and Operational and Investigative Activities within the Internal Affairs Bodies of the Azerbaijani General Prosecutor’s Office, Huseyn Huseynov, and Mahir Qulmammadli, an Investigator at the Investigation and Inquiry Department within the Main Department for Combating Organized Crime of the Azerbaijani Ministry of Internal Affairs
Shahin Qadirli, born in 1995 in Imishli district of Azerbaijan, a member of the “Muslim Unity” Movement, was charged with committing a crime under the Article 234.4.3 (Illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics, psychotropic substances committed in large amount) of the Criminal Code of the Azerbaijan Republic. It should be noted that the Chairman of the “Muslim Unity” Movement, Tale Bagirzade, was arrested in 2015 and sentenced to 20-year-imprisonement in 2017; be now, he has been imprisoned for 7 years in the Gobustan covered prison. Bagirzade has been recognized as a political prisoner.
According to the investigation, on 23 November 2022, Shahin Qadirli was detained by the officers of the Main Department for Combating Organized Crime within the Ministry of Internal Affairs as a suspect and was brought to the Department. He was subjected to a body search. They found on him two packages containing 3,279 and 4,319 grams of the psychotropic substance methamphetamine. On 24 November 2022, Sh. Qadirli was charged under the above mentioned Article.
In the course of the trial held behind closed doors, Sh.Qadirli objected against his arrest and promised the Court that if a measure of restraint other than arrest would be chosen, then he will attend all the sessions.
On 25 November 2022, the Baku City Narimanov District Court issued a ruling: to apply a preventive measure against Shahin Qadirli in the form of detention for a period of 4 month.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified. The Article 9.1 of the Code of Criminal Procedure of the Azerbaijan Republic written that basic principles and conditions governing criminal proceedings is
- to establish rules as a basis for criminal prosecution;
- to ensure a defence against restrictions on human and civil rights and liberties;
- to determine the legality and grounds of every criminal prosecution.
Under the circumstances provided for in this Code, violation of the principles or conditions governing criminal proceedings may render the completed criminal proceedings invalid, cause the decisions taken during them to be annulled and deprive
the evidence collected of its value (Article 9.2 of the Code of Criminal Procedure of the Azerbaijan Republic).
It means that the investigative and court authorities must precisely comply with the law, respect the rights and freedoms of the individual and citizen, otherwise the judgments they make cannot be considered legitimate.
According to the Court’s ruling regarding the arrest of Sh.Qadirli, the Court stated the following reasons for the preventive measure in the form of arrest:
- hiding from the body conducting the criminal proceedings;
- preventing the normal course of the preliminary investigation or trial by exerting unlawful pressure on the persons involved in the criminal proceedings, concealing or falsifying materials relevant to the criminal investigation;
- committing once again an offence under the criminal law, or posing a danger to society;
- failure to respond to summons by the authority conducting the criminal proceedings or evading criminal responsibility or serving the sentence in any other way without a valid excuse;
- as well as the gravity and nature of the offense.
If we pay attention to the content of the Article 155.1 of the Code of Criminal Procedure of the Azerbaijan Republic, it becomes clear that the Judge of the Baku Narimanov District Court, who was handling the case, literally copied the Article grounds in the very same order as they were listed in. At the same time, the Judge did not mention any specific fact in the ruling.
The commented judgment is no different from other unfounded detention orders in terms of one-sidedness, partiality, unreasonableness, and illegality. The same broad phrases, the same conclusions, and the same so called “grounds”.
As a matter of fact, the courts rarely issue rulings that differ in their merits (often in form) from the prosecutor’s submissions and investigators’ petitions. They literally copy the petitions and deprive people of their liberty without sufficient grounds. The given ruling regarding the arrest of Sh.Qadirli is also loaded with abstract expressions taken from the Criminal Procedure Code of the Azerbaijan Republic, as well as the phrases extracted from the context of the European Court of Human Rights’ judgments.
On 3 November 2009, the Plenum of the Supreme Court of the Azerbaijan Republic adopted the Resolution No. 2 “On the Practice of Legislation Implementation by the Courts While Considering the Submission on Detention of the Accused Individuals”. Based on this Resolution the courts were prescribed not to take a formal approach to the cases related to the preventive measure. They should not use the abstract, but refer to the concrete facts that would justify the harshest measure of restraint, an arrest, since the accused is to be isolated from the society. Furthermore, the judges should understand that isolating the defendant prior to trial is not in the public interest or safety.
As stated in the Court ruling, the defendant had said before the Court that he would be available when summoned by the Court and the investigative authority, but the Court did not consider any alternative measures of restraint other than arrest.
The Court referred to the seriousness of the charge and suggested punishment of more than 2-year-imprisonement. However, despite the fact that such a provision is stipulated in the Article 155.3 of the Criminal Procedure Code of the Azerbaijan Republic, it does not comply with the International Norms. If the Court refers to this Article as a justification for the chosen preventive measure, it may violate the accused’s presumption of innocence. In fact, at the stage of the preliminary investigation the Court has already found the accused guilty and ordered a preventive measure in the form of arrest on the basis of the potential punishment.
The Article 155.3 of the Criminal Procedure Code of the Azerbaijan Republic, contradicts to the Article 6 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, that establishes the presumption of innocence for detainees. On this matter, it is written in the Constitution of the Azerbaijan Republic, Article 151:
Whenever there is disagreement between normative-legal acts in legislative system of the Azerbaijan Republic (except Constitution of the Azerbaijan Republic and acts accepted by way of referendum) and international agreements wherein the Azerbaijan Republic is one of the parties, provisions of international agreements shall dominate.
The court’s superficial approach to the imposition of preventive measures leads to a violation of the right to liberty. According to the Article 28 of the Constitution of the Azerbaijan Republic,
- Everyone has the right for freedom.
- Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment.
The Article 14 of the Criminal Procedure Code of the Azerbaijan Republic, also guarantees the individual’s protection from arbitrary arrest.
The International Juridical Norms also point to the Right to Liberty. According to the Article 5 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms,
- 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.
This norm is to ensure a fundamental right among the most important rights: the right to liberty and personal inviolability. The protection provided by this Norm is strict insofar as the Article provides an exhaustive list of deprivations of liberty and defines a precise framework for protecting individuals from arbitrary detention. “To this end, the Convention renders the National Judiciary a true guardian of individual liberty” (Precedents of the European Court of Human Rights, Michele de Salvia, St. Petersburg, 2004).
The deprivation of liberty must also be lawful, i.e., it must be for a legitimate purpose as set out in one of the cases in the exhaustive list contained in the Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
In the judgment of Kurt v. Turkey of 25 May 1988, the European Court of Human Rights stated:
“The Court underlines the fundamental importance of the guarantee in any democratic society concerning the rights of the individual, Article 5, against his/her unlawful arrest or detention by the authorities. That is why the Court has repeatedly pointed out in its judgments that any deprivation of liberty must be in accordance not only with the substantive procedural rules of the State’s law but also with the the accordance of the objectives written down in the Article 5, i.e. to protect individuals from arbitrariness on the part of the authorities. This imperative requirement to protect the individual against any kind of abuse by the authorities is confirmed by the fact that Article 5(1) limits the circumstances under which a person may be lawfully deprived of his/her liberty, though these grounds cannot be broadly interpreted, since they are exceptions to the fundamental human liberty guarantees”.
“In proclaiming the ‘right to liberty’, the Article 5(1) refers to personal liberty in its classical sense, i.e., the individual’s physical liberty. Its essential aim is to guarantee that no one may be arbitrarily deprived of this liberty (…)” (the judgment of the European Court of Justice in the case of Engel and Others v. the Netherlands, 8 June 1976).
The failure of the Courts to comply with the Law, gross procedural violations, lack of the grounds for restraining measures, use of general and abstract terms in their rulings, lack of evidence to support their assumptions, their literal reproduction of submissions and motions by the investigative authorities, and the failure of the Courts to treat each case individually, all this leads to the violation of the basic and most important right in a democratic society — not to be a victim of arbitrary arrest, and to have a Right to personal freedom and personal inviolability.