Appeals Court keeps Gezel Bayramly in custody

Analysis of the law violation at  Gozel Bayramli trial

Baku Court of Appeal, the Criminal Collegiums
Case number № 4(103)-298/2017
June 2, 2017
Presiding judge: Abid Abdinbeyov
Judges: Rizvan Safarov, Qail Magerramov
Investigators of the
State Border  Service of the AR:  Ramiz Alverdiyev,  Mubariz Mamedov
Accused: Gozel Bayramli
Defenders: Elchin Sadiqov, Bahruz Bayramov, Asabali Mustafayev

On May 25, 2017 Deputy Chairwoman of the opposition Popular Front Party, member of the National Council of Democratic Forces - Gozel Bayramli was detained on her way crossing Georgian - Azerbaijan border, at Azerbaijan Republic “Shixli” passport control checkpoint located  at Qazax region by the employees of State Border Service of AR.

As per Gozel Bayramli testimony, around 8:40 pm, she approached the passport control checkpoint on Azerbaijan border. There she was informed that the system to check identification was not working. Later the system started working. After G. Bayramli passport details were entered into the system, she was asked to follow into the inspection room.

Escorted by the employees of the State Border Services of AR and before reaching the customs supervision zone, she was brought with all her belongings inside the inspection room. According to Gozel Bayramli, she felt that something was put stealthily in her bag while she was passing through non illuminated part of the route. Afterwards, during the search the plastic bag with 12 thousands U.S. dollars was found in her bag. Gozel Bayramli claimed that those were not her money. But she was detained.

On the following day, on May 26, 2017, she was brought to Baku around 6 pm, where she was interrogated at the administrative building of the State Border Service of AR. After interrogation, she was accused in the execution of crime under Article 206.1(smuggling) of the Criminal Code of the Republic of Azerbaijan.

Attorneys did not agree with the accusation and filed the motion on carrying out dactyloscopic forensic expertise on the presence of Gozel Bayramli fingerprints on the plastic bag and on the cash; and the motion on the seizure of the videos from the surveillance cameras at  “Shixli” checkpoint.

Without examining these motions, Investigative Body of the State Border Service applied to the court with the request of  issuance of the arrest warrant for Gozel Bayramli.

On May 26, 2017 around 11.30 pm Baku City Sabail District Court examined the request of Investigative Body to issue the arrest warrant. The attorneys filed again the motions on assignment of dactyloscopic forensic expertise and on seizure of the video from the surveillance cameras, but the court declined these motions. Baku City Sabail District court granted the request of the State Border Service on issuance of the arrest warrant and made the decision on application of the restrictive measures against Gozel Bayramli in form of imprisonment for the period of three months.

Not agreeing with the given decision, the attorneys filed the appeal. On June 2nd, 2017, Baku Court of Appeal rejected the appeal and left the decision of Baku City Sabail District court from May 26, 2017 unchanged.

Reviews of expert-lawyer

The decision of Baku Court of Appeal is wrongful and groundless. Since September 1, 2000, the issues of criminal procedure are regulated by Code of Criminal Procedure of the Republic of Azerbaijan (CPC AR). “Preventive measures” or “restrictive measures” include house arrest; bail; a written obligation not to leave a place; personal surety/guarantee; surety offered by an organization; police supervision; supervision of commander; removal from office or position and the most strict measure - arrest (Article 154 CPC AR).

While deciding on application of restrictive measure, the competent authority must consider whether there are “enough sufficient grounds” that the suspect will hide during the investigation or court; will proceed with criminal activity or obstruct the normal course of the investigation or court proceedings in establishing the truth (Article 155.1 CPC AR); at the same time court must consider the seriousness and the nature of the offence, the suspect’s personality details, occupation, age, health condition, family and other positions (Articles 155.2.1., 155.2.2 CPC AR). Arrest should not be abstract. Decision on arrest should be clearly regulated.

The court ruling to arrest Gozel Bayramli indicate the following grounds:
- hiding from the body, conducting criminal proceedings;
- committing further act provided for in criminal law or creating a public threat;
- failure to comply with a summons from the prosecuting authority, without good reason, or otherwise ending criminal responsibility or punishment.

It is also indicated in the court ruling, that the decision of the Court of First Instance is based on the  category of the offence Gozel Bayramli is accused of, which falls under hard crimes and considers the punitive sanctions in form of the deprivation of freedom for more than two years.

According to Article 28 of the Constitution of the Republic of Azerbaijan:
“I. Everyone has the right for freedom.
II. Right for freedom might be restricted only as specified by law, by way of detention, arrest or imprisonment”

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 on Human Rights and Fundamental Freedoms  is the presumption of innocence.

European Court of Human Rights (ECHR) in its final judgment on the case of “Pshevecherski against Russian Federation” (Application no. 28957/02 from May 24, 2007 stresses that the possibility of the accused hiding or continuing with criminal activity… “cannot be assessed from a purely abstract point of view”. “It must be examined with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding and re-offending or make it appear so slight that it cannot justify detention pending trial.” (point 67)

“Shifting the burden of proof to the detained persion in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty” (point 66).

In judgment of ECHR on case of “Labita v. Italy” Application no. 26772/95 from April 6, 2000, it is said that “in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they 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.”

Courts were liable to analyze the personal situation of the accused thoroughly and bring the special reasons for keeping her in custody. But, evidently, the courts restricted  themselves to the general and abstract phrases in court ruling on choosing restrictive measure.

In the decision of the Plenum of the Azerbaijani Supreme Court on “ The practice of the application of the law by courts when submissions to order the restrictive measures of arrest in respect of the accused are considered” from November 3, 2009, there are recommendations in taking into the account all circumstances of the case, including the identity of the accused.

The decision of the court on choosing the restrictive measure in form of arrest against Gozel Bayramli is not based on facts and concrete circumstances of the case, but only on assumptions.

In summary, the courts’ decision on the application of the restrictive measure in form of arrest against Gozel Bayramli violates the norms of the Constitution of Azerbaijan Republic, the Code of  Criminal Procedure of the Republic of Azerbaijan, the Article 5.1 (on the right to liberty and security of person) of European Convention on Human Rights and Fundamental Freedoms; does not consider the obligation of the decision of ECHR.