INSTITUTE
FOR PEACE
AND DEMOCRACY

Analysis of the law violations at the trial of Aziz Orujev


The Baku Court of Appeal, the Criminal Collegiums
Case No. 4 (103) 344/17
June 29, 2017
Presiding Judge:
Faig Gasymov
Judges: Sahibkhan Mirzoev, Jamal Ramazanov
Investigator of the Investigation Department of Grave Crimes of the Prosecutor General's Office of Azerbaijan: Ramig Babayev
Accused: Aziz Orujev
Defenders: Javad Javadov, Elchin Sadygov

Aziz Orujev, the head of Internet television "Channel 13", a journalist, was detained on May 2, 2017 on charges of committing an administrative offense under Article 535.1. (non-compliance with the lawful requirement of a police officer) of the Code of Administrative Offenses of Azerbaijan Republic. The Nasimi District Court of Baku found him guilty and sentenced him to 30 days' imprisonment.

The term of imprisonment expired on June 1, 2017. On the same day he was charged with committing crimes under articles 192.2.2. (illegal business with a large amount of income) and 308.1 (abuse of official powers) of the Criminal Code of Azerbaijan Republic (CC AR) . On June 1, 2017, the Nasimi District Court of Baku issued a ruling on the election of a preventive measure to Aziz Orujov for a period of 4 months. A.Orujev was placed in the Baku Investigation Isolator No. 1.

Lawyers of A. Orudzhev appealed to the Nasimi District Court with a petition to replace the detention in jail for house arrest or release on bail. On June 15, 2017, the Nasimi District Court of Baku (Judge Babek Panakhov) ruled that the petition was refused.

Disagreeing with this decision, the defenders filed an appeal.
On June 29, 2017, the Baku Appeal Court ruled to refuse to satisfy the appeal and left the judgment of the first instance court of June 15, 2017 in force.

Commentary of an expert lawyer:

The judicial decision is illegal and unreasonable. According to Article 163.1 of the Code of Criminal Procedure of Azerbaijan Republic (CCP AR), home arrest as a measure of restraint, consists in imposition of restrictions on freedom and a number of other rights of the accused without restraint and without complete isolation from society established by a judicial decision. Article 163.2. of CCP AR states: "The issue on choosing a preventive measure in the form of house arrest can be considered by the court on the petition of the defense party only as a replacement of the adopted resolution on the choice of a preventive measure in the form of arrest."
The above restrictions may be as follows: the prohibition of leaving the place of residence completely or at a certain time (article 163.3.1 of the CCP AR ), prohibition of telephone conversations, mailings and other means of communication (article 163.3.2 of the CCP AR), prohibition of communication with certain (Article 163.3.3 of the CCP AR), the assignment of the duty to use electronic monitoring tools, their wearing and maintenance of the work of these means (Article 163.3.4 of the CCP AR), the assignment of the responsibility to respond to control telephones calls or other tell-tale signals, call, or appear personally to the body supervising the conduct of the accused (article 163.3.5 of the CCP AR), taking under the supervision of the accused or his place of residence, as well as police protection of his house, apartment or other assigned to him (Article 163.3.6 of the CCP AR), the adoption of other measures to ensure the proper behavior of the accused and his partial isolation from society (Article 163.3.7 of the CCP AR).
Home arrest is a physically-compulsory measure of restraint, which involves the forcible stay of an accused person suspected of a limited space, with isolation from society, the termination of work or other duties, the inability to freely move and communicate with an unlimited number of persons. At home arrest, the freedom of movement of the accused (suspect) is limited more than when signing for non-exit. It may be forbidden to leave permanently or at a certain time a dwelling, a building, a site of territory (cottages, hotels); to visit certain places (the district of the settlement, entertainment institutions); leave the premises unaccompanied. Because of the difference in house arrest from taking into custody, the accused (suspect) can not be forcibly placed in a specialized room (closed type). At home arrest there is no "detention". At home arrest, the accused (the suspect) is not isolated from the people living with him (Source: http://upkod.ru/chast-1/razdel-4/glava-13/st-107-upk-rf/kommentarii ).
The decision of the Baku Court of Appeal of June 29, 2017 stated that A. Orujev is accused of serious crimes, so he can not be released under house arrest. The resolution does not say a word about the restrictions set forth in Article 163 of the CCP AR, and why they are not applicable to Aziz Orujev.

In Article 157.1 of the Code of Criminal Procedure of Azerbaijan Republic states: "In accordance with the presumption of innocence, a person can not be detained or held without custody if his involvement in the commission of an act provided for in criminal law has not been proven." There were no concrete proofs of his involvement in the criminal case in the judicial decisions on the arrest of A. Orujev. The courts did not even consider alternative preventive measures, not related to the arrest. The courts had to argue why a preventive measure that was not related to the arrest could not be applied to the accused.

According to Article 28 (1) of the Constitution of the Azerbaijan Republic "everyone has the right to freedom". Paragraph 2 of this article states that this right may be restricted only in the manner prescribed by law, by detention, arrest, etc. In addition to the constitutional norm, this right is also enshrined in Article 5 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

According to this article "everyone has the right to freedom and personal inviolability. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure established by law: c) the lawful detention or imprisonment of a person made so that it is brought before the competent authority for reasonable suspicion of the commission of an offense or, there are sufficient grounds to believe that it is necessary to prevent him from committing an offense or to prevent him from hiding after his commission. "

On November 3, 2009, the Plenum of the Supreme Court of the Azerbaijan Republic adopted the Resolution "On the Practice of Legislation Applied by the Courts in Considering Submissions Relating to the Election of Preventive Measures - Arrest of Accused Persons".

This Resolution states: "It became known that when applying the law, courts allow for a number of violations, in particular, the validity of submitted submissions is not verified, the grounds on which the strictest measure of restraint is selected - arrest, as provided for in Article 154.2, is not commented on in the decisions. CCP; in the resolutions, general phrases are used regarding the concealment of the accused from the criminal investigative body, interfering with the normal course of the investigation, failure to appear in the body that is carrying out the criminal process; There is no reference to any factual circumstances supporting these assumptions. "

As we see, the Plenum of the Supreme Court of Azerbaijan witnessed a violation of the legislation on this issue and the groundlessness of the decisions passed. The Resolution states that the courts do not take into account the practice of the European Court (ECHR). In order for the courts to correctly apply the law and justify their decisions, the courts were instructed to check the possibility of choosing various preventive measures, and if the idea of choosing a preventive measure in the form of deprivation of liberty is satisfied, it must specify the reasons why it is impossible the application of a preventive measure not related to arrest.
The decision of the Baku Court of Appeal of June 29, 2017 testifies: after years the situation in the courts has not changed and the courts, as before, satisfy unfounded petitions of the investigating authorities to select the most stringent measure of restraint and refuse to satisfy the defense's petitions to change the preventive measure, not related to arrest.
Appeals Court keeps Aziz Orujev in custody