The Analysis of violation of law during Fuad Ahmadli’s judicialproceedings



The Baku Court of Appeal, Criminal Chamber

Criminal case: №7 (103)-1655/2018

October 04, 2018

Presiding Judge: Sahibkhan Mirzoyev

Judges:
Faiq Gasymov, Elshad Shamayev

Accused: Fuad Ahmadli

Defender: Muhammad Mammadov

Representative of the penal institution No. 16: Emin Abdurahmanov

Prosecutor: Anar Mammadov


Fuad Ahmadli - the chairman of the Khatai branch of the Youth Committee of opposition Popular Front Party. On December 25, 2015, F. Ahmedli was detained by the police officers at his workplace. On the same day, at 8 p.m., Baku City Khatai District Court made a decision to arrest F. Ahmedli for the period of 10 days. The Article 310.1 (Persistent insubordination of legal request of policeman or military man at execution by them of duties on protection of public order) of the Code of the Azerbaijan Republic on Administrative violations. According to F. Ahmedli, on December 23, 2015, he wrote status, at social network, where he criticised the government and he is punished for this status.

On August 18, 2016, Fuad Ahmedli was detained at his workplace at Azerfon LLC again, where he worked as operator. The search at his home already started.  According to investigation, during the search, the books of Fatullah Gulen, CDs, religious literature, including the documents which have affiliation with the persons who are referred as “Servants of Imams” (“Hizmə
t imamları”) were found.  The defence claims that everything that was seized from Ahmedli apartment, was planted inside the apartment by the officers of the investigation body. Fuad Ahmedli was accused in committing crimes under the article 302 (Infringement of the legislation on operative - search activity), and Article 308(abusing official powers) of the Criminal Code of Azerbaijan Republic. After his arrest, State Security Service of the Republic of Azerbaijan and Prosecution General’s office issued the joint statement. It stated that F. Ahmedli, who worked as operator at call centre of mobile company “Azerfon” LLC, was transferring personal data and location of certain persons to the third parties.

At the court, Fuad Ahmedli pleaded not guilty, called his arrest politically motivated, since he is one of the well known activists of the opposition party, he always openly expresses his civic stand, and he sharply criticises the policy of authorities.

On June 16, 2017, Baku City Court on Grave Crimes reclassified Article 308.2 (Abusing official powers entailed heavy consequences) to Article 308.1 (Abusing official powers without aggravating circumstances) of the Criminal Code of Azerbaijan Republic and sentenced Fuad Ahmedli to 4 years in prison.

The term of serving sentence counts from August 18, 2016, since the day of detention of F. Ahmedli and ends on August 18, 2020. Thus, by August 2018, Fuad Ahmedli served more than 1/3 of his term. Based on the law, Fuad Ahmedli appealed to Baku City Sabayil District Court with the request to be transferred from the penal colony #16 to settlement colony. On July 19, 2018 Baku City Surakhany District Court passed the decision not to satisfy F. Ahmedli application. F. Ahmedli disagreed with the decision, and filed the appeal.

On October 4, 2018, Collegium on Criminal Cases at Baku Court of Appeal made the decision not to satisfy F. Ahmedli appeal and kept the decision of Baku City Surakhany District Court from July 19, 2018 in power.

Commentary by an expert lawyer:

The court decision is unlawful and groundless. The decision of the Court of Appeal is by no means different from the decision of the court of the first instance. It is just formal, and does not reflect the facts of the case. The same arguments are present in the decision of the Court of Appeal, that were indicated in the characterisation provided by the penal colony, in particular,  that Fuad Ahmedli does not participate in the social work, does not regret of the committed crime, and acts towards other prisoners insincerely.

Regarding the first argument, according to Paragraph 206 of the Internal Regulations of the penal facility setting, each prisoner must engage in labor activity at locations determined by the governing body of the facility. The prison administration must attract prisoners to useful work, by taking into account the age, the ability to work, the health condition and the profession of each prisoner. Prisoners are usually enlisted to work under supervision guard, and in isolation in established order, at production locations inside and outside the facility.

Prisoners may occupy themselves with individual work with the permission of the governing body of the facility. As can be seen from above mentioned norms, the governing body of the facility attracts prisoners to work in accordance with their individual characteristics. It should be indicated, that the representative of the facility whereat F. Ahmedli serves his sentence, was claiming that F. Ahmedli does not participate in the social work. In response, F. Ahmedli said that he started working since he was 14 years old, that he contains his family, and prior to arrest he worked as operator at the company “Nar Mobile”. Besides, the governing body of the facility, did not enlist him to the work due to his age, health and abilities. F. Ahmedli has higher degree, he knows Russian and English languages fluently, but at the same time he has some problems with his health.

The European Prison Rules also enshrine the principle, indicated in the Internal Regulations of the Prison Setting. According to the paragraph 26.1 of the European Prison Rules, in the detention facilities, prison work shall be approached as a positive element of the prison regime and shall never be used as a punishment. According to paragraph 26.5 work that encompasses vocational training shall be provided for prisoners also to benefit from it and especially for young prisoners.

As mentioned above, in F. Ahmedli case, the governing body of the penal colony #16 used his attitude towards the work, as the ground to reject to satisfy of  his application.

The next ground for rejection was that he did not regret of his deed. In this regards, it should be indicated that during all the stages of the legal investigation F. Ahmedli did not plead guilty to the charges and called his arrest politically motivated. Therefore, to expect from him remorse is at least illogical. Besides, according to the Article 10 (1) of the European Convention for the protection of human rights and fundamental freedoms, everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Thus, he has the right to hold his own opinion and not to change it. In this case, the requirement of the governing body of the penal colony #16 is unlawful. Fuad Ahmedli was deprived from liberty by court sentence, but not from his right to hold his own opinion.

The court decree also indicates that Ahmedli does not acts towards other prisoners sincerely. This argument is not considered by any regulatory enactment or law. Therefore, the claim is groundless and unlawful.

Thus, the norms of the national and international law are violated in the decision of the Collegium on criminal cases of Baku City Court of Appeal.
The Baku Court of Appeal keeps Fuad Ahmadli in custody
INSTITUTE FOR PEACE AND DEMOCRACY