Analysis of the law violations at the trial of Movsum Samadov



Baku City Garadagh District Court
Case no. 7(002)-481/2017
June 14,
2017
Judge:
Rashad Mammadov
Accused: Movsum Samadov
Defender: Yalcin Imanov


Movsum Samadov, born on September 4, 1965 in the town of Guba, the Azerbaijan Republic, participated in the National Liberation Movement of Azerbaijan in the late 80s; he was a member of the Movement Popular Front of Azerbaijan (PFA). In 1993, he left the PFA and became a member of the Islamic Party of Azerbaijan. In 2007, M.Samadov was elected chairman of the Islamic Party.

On January 2, 2011, at a meeting of the party, he sharply criticized the policy of President Ilham Aliyev, pointing out gross violations of human rights, political repression, and corruption. Five days after this speech, he was detained and arrested. On October 7, 2011, the Baku Grave Crimes Court found M.Samadov guilty of committing crimes under Articles 214.2.1. (Terrorism committed by a group of persons by prior agreement), 214.2.3 (Terrorism committed with the use of weapons), 228.3. (Illegal acquisition, transfer, sale, storage, transportation or carrying of weapons, component parts, ammunition, explosives and explosive devices committed by an organized group) and 278 (Forcible seizure of power or forcible forfeiture of power) of the Criminal Code of the Azerbaijan Republic and sentenced to 12 years of imprisonment in a general regime colony.

However, already on October 9, 2014, Baku City Garadagh District Court ruled that Movsum Samadov should be transferred from a general regime colony to a closed-type Gobustan prison.
Based on this decision, M.Samadov spent 2 years in Gobustan prison. On November 26, 2016 he was transferred to Colony No. 12 of the general regime.

In the summer of 2017, the chief of the Colony No. 12 appealed again to Garadagh District Court with the application on ​​the transfer of M.Samadov to Gobustan prison of a closed type.

On June 14, 2017, Baku City Garadagh District Court ruled to satisfy this application and transfer Movsum Samadov to the Gobustan closed prison. The decision of court was justified by information from the chief of Colony No. 12 on the violation of rules of conduct in the colony by Movsum Samadov for the period from 2011 to 2014.

Commentary of an expert lawyer:


The judicial decision is illegal and unreasonable. As indicated, the court referred to information from the chief of the Colony No. 12 on the violation of rules of conduct in the colony by Movsum Samadov for the period from 2011 to 2014.


This became the basis for the transfer of M.Samadov to Gobustan closed prison for the second time. In the application of the chief of the Colony No. 12 there are no facts about Samadov’s violation of the rules of conduct after returning from Gobustan prison to the Colony No.12 on November 26, 2016.

In Clause 1 of the Resolution of the Plenum of the Supreme Court of the Azerbaijan Republic No. 02/2010 dated October 8, 2010 “On judicial practice related to parole, replacement of the unserved part of the sentence with a milder form of punishment, changing the type of institution for serving punishment and for illness” states : ‘Regardless of the positive or negative characteristics, courts should investigate the relationship between the validity of the characteristic and the personal case of the prisoner, the explanations of the participants in the process, and other documents, and appropriate decision must be taken depending on the result... In addition, when applying any material and procedural legal norms, the nature, essence, influence on public and individual interests, the legality of each case must be investigated... During this period, courts should not be limited to the arguments advanced in the characterization, should not be based on general and template phrases, all legal means should be used for full, comprehensive and objective verification.”

The defence claims that the various types of punishment in Colony No. 12 against Movsum Samadov were used unlawfully and unreasonably.

The decision of the chief of the Colony No. 12 of March 20, 2017 “ On the malicious violation of the procedure for the execution of penalties”, states that “During the period of serving the sentence Samadov Movsum Mardan oglu purposefully conducted anti-state conversations, conducted educational “legal” conversations among prisoners on the performance of religious rites in places not provided for by internal regulations. He was repeatedly invited to educational talks, but this did not bring a positive result.” For this, M.Samadov was 8 times subjected to different penalties by the chief of the Colony No. 12.

During the court session Movsum Samadov showed that he did not violate the established procedure, the decision to send him to Gobustan is custom-made with the aim to punish him once again for criticizing President Aliyev’s policy.

The decision of Garadagh District Court also refers to the application of the chief of the Gobustan prison of September 1, 2016 (the period when M.Samadov was serving his first term in Gobustan prison) which states that “On August 31, 2016, about 10.55 a.m. Samadov Movsum Mardan oglu walking around the place for a walk, spoke out against the state, agitating the prisoners not to vote in the referendum and launch a mass hunger strike.” This reference in the decision of the Garadagh Court is another evidence of a biased judgment.

According to Clause 12 of the abovementioned Resolution of the Plenum of the Supreme Court of the Azerbaijan Republic of October 8, 2010 “a malicious violation of the regime along with the use of measures of a censorial nature should be established by a justified decision of the management of institution on serving sentence.”
Baku City Garadagh District Court did not investigate the application of the chief of Colony No. 12 fully and objectively, and the trial was formal.

The defence asked to summon to the court and interrogate the inspectors Agshin Ismayilov and Bakhtiyar Guliyev, whose signatures were under the negative characterization of the prisoner. However, the court did not grant this petition. Thus, the court did not investigate how and why the negative characterization of M.Samadov was made.

According to Clause 2 of the abovementioned Resolution of the Plenum of the Supreme Court of the Azerbaijan Republic: “Courts in considering such applications, along with serious compliance with the requirements of the law, should approach the case individually, taking into account the personality of the prisoner. At the same time, courts should take into account the nature of criminal acts provided for by criminal and criminal procedural legislation, the degree of public danger, non-payment of damage caused as a result of a crime, the existence of an early conviction, non-recognition of guilt and other circumstances that are not an obstacle to parole, replacement of unserved part of the punishment by a milder form of punishment and the replacement of the type of institution to serve a sentence.”


It should be noted that M.Samadov suffers from a number of diseases, including varix (vein dilatation) and liver disease. His immune system is very weak. One of the ways to treat these diseases is constant exposure to fresh air and physical activity. His transfer to a closed prison will lead to deterioration in his health.

The main principle of the European Penitentiary Rules is the observance of the rights and freedoms of prisoners. Clause 5 of the Rules says: “life in places of deprivation of liberty should be as close as possible to positive aspects of life in society.”

During distribution of prisoners to various penitentiary institutions or the choice of the regime of detention, the legal status of the prisoner determined by the court or law (the person under investigation or convicted, convicted for the first time or a recidivist sentenced to a short or long term of imprisonment), special requirements for corrective action, health, gender and age are taken into account (Clause 11.1 of the European Penitentiary Rules).

Making a decision to transfer M.Samadov to Gobustan prison, Garadagh District Court ignored the European Penitentiary Rules.

According to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, no one shall be subjected to torture or to inhuman or degrading treatment or punishment. The detention of M.Samadov in conditions under which his physical and mental health will be damaged is contrary to Article 3 of the European Convention.
Garadagh court sent
Movsum Samadov to Gobustan prison
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