Court issued decree on application of restrictive measure against Afghan  Muxtarli in form of deprivation of freedom for the period of 3 months

Analysis of the law violation at  Afghan Muxtarli trial

Baku City Sabail District Court

Case #4(009)-417/2017

May 31, 2017

Chairman : Rauf Ahmedov

Prosecutor of Department for Supervision over execution of laws in investigation, inquiry and  operational-search activities of General Prosecution, State Border Service and State Security Service of AR: Orxan Zeynalov.

Accused: Afghan Muxtarli

Defender: Elchin Sadiqov

Azerbaijani journalist and activist of civil society - Afghan Muxtarli was living in Georgia for two years. Afghan Muxtarli is well-known as journalist, who criticizes the ruling regime. He is the
author of the range of journalistic investigations on corruption, on offshore properties that belong to  Aliyevs - the ruling family in Azerbaijan.

In 2015, after the repressions towards tenths of activists of civil society in Azerbaijan, Afghan
Muxtarli, feared from the possibility of arrest, left together with his family to Georgia.

While living in Georgia, Afghan Muxtarli, continued criticizing authority, participating in public meetings/rallies - in front of the Azerbaijan Embassy in Tbilisi - opposing the policy of Ilham Aliyev. According to him, he has noticed the surveillance after him. Afghan Muxtarli reported this  to the corresponding agencies of Georgian Government and asked to secure his safety.  But he did not get an answer.

In spring 2017, the new wave of repressions towards the dissidents began in Azerbaijan. The eye of repression was also concentrated on the activists of civil society who have immigrated to Georgia.  On May 4, 2017, the well-known for his ties with law enforcement agencies of Azerbaijan, Eynulla Fatullayev wrote article “Anti-Azerbaijan underground in Tbilisi…” about azerbaijan dissidents, who periodically visit Georgia and those who live there, including Afghan Muxtarli and his wife Leyla Mustafayeva.

On May 22, 2017, well-known for his support to Opposition Parties  in Azerbaijan, surgeon, Farman Jeyranov was arrested in Georgia. On May 25, 2017, Gozel Bayramli - the Deputy Chairman of the Opposition Popular Front Party of Azerbaijan, who was on medical treatments in Georgia - was arrested. She was detained at Georgian-Azerbaijan border and was accused in the execution of the crime, under the article 206.1 (smuggling) of the Criminal Code of the Republic of Azerbaijan.  She was brought to Baku, by the employees of State Border Service, where the restrictive measure in form of imprisonment for the period of three months was applied towards her.

Post Gozel Bayramli arrest, the surveillance after Afghan Muxtarli intensified. He informed about this to the representatives of the Mass Media.

On May 29, 2017, after meeting with his friends, around 18:00 hours, Afghan Muxtarli was returning to his rented apartment. Within 100 meters from his house, he alighted from the bus.  Three men got off the car that was parked not far from the bus stop. Attacking Afghan Muxtarli, they beat him,  and forcibly pushed him inside the car. In car, his hands were twisted and tied from behind; and the beatings continued. According to A. Muxtarli, the car’s engine was working, and persons who kidnapped him were wearing the uniform of criminal police of Georgia.

From the place he was kidnapped , Afghan Muxtarli was taken towards the airport, by car, and black sack was put on his head. Afghan Muxtarli told his kidnappers, that he has problems with his heart and that he can die. They noticed that Afghan Muxtarli started feeling bad, so they removed the sack from his head. He saw that he was taken towards the Sagarejo region. After removing the sack from his head, they tied t-shirt around his head, using sticky tape to tape the sides. In such way, Afghan Muxtarli could not see anything again. After some period of time, the car stopped at the side of the road. Afghan Muxtarli was dragged into another car.

He was taken by the same persons who spoke Georgian. After driving short distance, the car stopped for 8-10 minutes. Soon afterwards, another car drove to this car, and Afghan Muxtarli was forcibly pushed into it. Azerbaijan song was playing in the car, and Afghan Muxtarli realized that he was passed over to Azerbaijan side.  Every 5-7 minutes one of the persons who was inside the car, spoke to some general (he was referring to him in such way) on the phone.  After some time, this person called again and said: ”Mr. General, we have brought mullah, you may come to the commemoration”.

Afghan Muxtarli was taken out from the car, and brought inside the room. There, his eyes were untied. When he saw the pictures displaying the special uniforms of the Azerbaijan State Border Service on the walls, he realized that he was brought to the military unit of SBS of Azerbaijan. There  he was informed that he crossed illegally Azerbaijan - Georgian border, and that inside his pockets, 10.000 USD  (20 x $500 notes) were found and he beat a soldier  of SBS . Afghan Muxtarli claims that he never saw this money, and that he had on him only 1 lari and 25 tetri (Georgian coins), including bank card, on which there was only 3 lari. Afghan Muxtarli claims that his kidnap was coordinated with Georgian authorities, and this is why Georgia has shut its eyes to it. He also claims, that he was not crossing the border, he did not have any USD dollars and he did not beat up anyone.

On May 31, 2017, Afghan Muxtarli was brought to Baku, where he was interrogated at the administrative building of the State Border Service of AR.  After the interrogation the employees of the SBS brought A. Muxtarli to Baku City Sabail District Court. The charges under Articles 318.1. (illegal crossing border of the Azerbaijan Republic), 206.1.(smuggling) and 315.2. (resistance or application of violence concerning the representative authority) of the Criminal Code of Azerbaijan Republic - were incriminated against him.

On May 31, 2017, Baku City Sabail District Court ruled on the application of restrictive measure towards Afghan Muxtarli in form of deprivation from freedom for the period of 3 months.

Commentary by an expert lawyer:

The court ruling was wrongful and groundless. According to the Article 5.1 of European Convention on 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”.
The imperative requirement of Article 5 of European Convention is the presumption of innocence. Persons, who have deprived anyone of his liberty, must not only prove that the exercised power on the implementation of arrest falls under one of the grounds indicated under Article 5, but also prove that these grounds can be applicable in this specific case. In any case, when it comes to the right to liberty, first of all, it is important that the judge considers the possibility of releasing the detainee. Therefore, the judge, must not wait and request only the presentation of sufficient grounds on arrest, but he must also carefully investigate these grounds in order to justify applied restrictive measures. In case, if judge arrives at the controversial conclusion, the arrest must be canceled. This is the opinion of European Court of Human Rights (ECHR) on the strictest preventive measure. The right to liberty is also stated under the Article 28 of the Constitution of Azerbaijan Republic.

In this particular ruling, the court neither considered the possibility of releasing A. Muxtarli before the trial, nor it was able to clearly and precisely justify applied preventive measure. The court justified its ruling with the following grounds:
• Execution of grave crime;
• The seriousness and nature of the offence;
• The degree of social danger;
• The possibility of hiding from the investigation and judicial bodies.

Resolution of the Plenum of Supreme Court of Azerbaijan Republic “ On the practice of courts applying legislation when considering submissions related to the selection of a preventive measure in the form of detention in respect of accused persons " from November 3, 2009 was adopted because of  the errors that are made by courts during the application of the legislation; because the validity of all special presentations is not verified; the rulings do not clarify on the grounds on application of the strictest restrictive measure in form of imprisonment, foreseen by the Article 154.2 of the Criminal Procedure Code of the Republic of Azerbaijan; the following common phrases are used as the grounds on choosing the restrictive measures in the form of arrest, as the potential to hide from the body, conducting criminal proceedings, obstruct the normal course of the investigation, failure to comply with a summons from the prosecuting authority; non availability of any links on any concrete factual situations supporting the suspicion.
Namely because of the courts’ violations of the legislation, the Plenum of the Supreme Court of Azerbaijan has provided them with the interpretation of the law, which consisted in ensuring that the courts verify the validity and lawfulness of application of restrictive measure in form of arrest towards an accused person. Despite of above mentioned interpretation of law, in Afghan Muxtarli ruling, the court has not only violated the provisions of the Constitution of Azerbaijan Republic, Criminal Procedure Code of AR, the Plenum desigion  of the Supreme Court of AR, but has also violated the decision on all fours of the  European Court of Human Rights.
The court had to establish the existence of the concrete facts relevant to arrest. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the European Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases. Courts must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release.(See: Final Judgment of ECHR: Lind v. Russia (Application no. 25664/05)from December 6, 2007.)
The court did not present any concrete facts in support of its conclusion that accused person might abscond, intervene into the normal course of investigation or proceed with the criminal activity. The court did not demonstrate any concrete circumstances that allow to conclude on Afghan Muxtarli’s potential to abscond from the court and investigation. Stated risk does not solely occur, because the accused person may or can easily cross the state border: the existence of all circumstances in aggregate leading to this must take place. Court did not indicate such circumstances in its decision and did not demonstrate on any personal characteristics of an accused person or his behavior,  that would justify the conclusion that the  accused person might abscond. Afghan Muxtarli could only cross the border, if he had his passport with him. However, Afghan Muxtarli passport, prior to his kidnap by Georgian law enforcement agencies and after - remained with his wife, who stay in Georgia. Immediately, she informed about this to Mass Media. And Mass Media disseminated the photo of his passport widely.
According to Article 155.2. of Criminal Procedure Code of  Azerbaijan Republic, 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:
155.2.1. the seriousness and nature of the offence with which the suspect or accused is charged and the conditions in which it was committed;
155.2.2. his personality, age, health and occupation and his family, financial and social positions, including whether he has dependents and a permanent residence;
155.2.3. whether he has committed a previous offence, the previous choice of restrictive measure and other significant facts.

When issuing the ruling on application of restrictive measure towards Afghan Muxtarli in form of arrest for the period of 3 months, the court completely ignored above indicated Article of Criminal Procedure Code of  Azerbaijan Republic.

The court did not justify the strict measure applied towards Afghan Muxtarli. The court ruling  is illegal, wrongful and groundless.