Discrimination in high treason …

Analysis

 

On October 14, the Sabail District Court imposed a 4-month house arrest as a measure of restraint on Ramiz Mehdiyev, the former head of the Presidential Administration and former president of the Azerbaijan National Academy of Sciences.

Mehdiyev is charged under Articles 278.1 (actions aimed at the forcible seizure of power or the forcible retention of power, as well as forcible change of the constitutional structure of the state, contrary to the Constitution of the Republic of Azerbaijan), 274 (high treason) and 193-1.3.2 (legalization of property obtained through crime, in a large amount) of the Criminal Code.

Considering R. Mehdiyev's age, the law enforcement authorities considered it appropriate to impose house arrest as a preventive measure on him during the preliminary investigation.

The acts of high treason and usurpation of power, of which Ramiz Mehdiyev is accused, are considered particularly grave crimes, while legalization of property acquired through crime is considered a grave crime.

But to what extent is it legal to impose house arrest as a preventive measure, especially for a person accused of committing a particularly grave crime? Has the same preventive measure been chosen for other accused under similar charges?

Per Code of Criminal Procedure, a preventive measure is a procedural coercive measure aimed at preventing the unlawful behavior of a suspect or accused and ensuring the execution of a sentence (Article 154.1). According to the Code, types of preventive measures include arrest, house arrest, bail, guarantee and others. (Article 154.2). Arrest, house arrest and bail may be imposed only in relation to the accused (Article 154.3).

The key precondition for the application of these measures is the possibility of the person absconding during criminal prosecution, obstructing the investigation or trial, committing a new crime, posing a threat to society, failing to appear at the summons of the body conducting the criminal proceedings, or obstructing the execution of the sentence (Article 155.1, 155.1.1-155.1.5). Upon the choice of the type of measure, the gravity of the accusation, the individual’s personality, social status and other characteristics should be taken into account (Article 155.2, 155.2.1-155.2.4).

It is sufficient that the criminal act of which the person is accused is punishable by deprivation of liberty, in order to impose a pre-trial detention as a form of preventive measure (Commentary on the Code of Criminal Procedure).

House arrest is a measure of restraint that restricts certain freedoms of a person without complete isolation and can only be imposed by a court decision (Article 156.2). If the court concludes that pre-trial detention is not crucial, it may be replaced with house arrest (Article 157.5). Upon the choice of a measure of restraint, the court must be sufficiently convinced, with reasonings, that the accused will not commit the acts that are considered grounds for arrest (Commentary on the Code of Criminal Procedure).

An individual under house arrest must not change the place of residence or leave it within the specified time, must wear an electronic monitoring device, must not leave the specified territorial boundaries, and must also perform other duties determined by the court (Articles 163.3, 163.3-1).

House arrest may be imposed by the court upon the motion of the investigator and the presentation of the prosecutor conducting the procedural management of the preliminary investigation, of the defense and upon the court's own initiative when considering the issue of selecting or extending a preventive measure of pre-trial detention (Article 163.2).

According to reports from pro-government media outlets, the house arrest decision for Ramiz Mehdiyev was issued based on the motion of the investigative body, namely the investigator conducting the case, and the presentation of the prosecutor leading the preliminary investigation.

In accordance with the Plenum Decision of the Supreme Court “On Judicial Practice on Consideration of Appeals for Restrictive Measures of Pre-trial Detention and House Arrest”, arrest is permitted, as a rule, when the interests of society prevail over the individual’s right to freedom, that is, in this case, the person’s liberty would cause negative emotions in society and would be dangerous to society (§1). Simultaneously, the court must substantiate each of the circumstances considered as grounds for imposing a restrictive measure with specific facts, taking into account the individual’s age, health, family status, and other such circumstances (§3).

In the face of the fact that there have been no convictions in recent years regarding the act provided for in Article 278.1 of the Criminal Code, and that the act under Article 193-1.3.2 is a grave crime, we will focus on cases under Article 274 (high treason) in our analysis.

It should also be delineated that one of the criminal acts that journalists and civil society representatives are accused of in the criminal cases opened against Abzas Media, Toplum TV, Meclis.info, Meydan TV and NGOs is the act of legalization a large amount of property obtained through criminal means, as provided for in Article 193-1.3.2. Most of the accused in this case were placed in pre-trial detention during the investigation period.

During the mass arrests, in relation to the events referred to in the media as the “Nardaran case”, those who were remanded in custody were also accused of, among other things, acts aimed at the forcible seizure and retention of power, and the forcible change of the constitutional order, as stipulated in Article 278, prior to the amendments made to the Criminal Code on October 28, 2016.

In domestic case-law, especially for those charged with Article 274, pre-trial detention is usually opted for. In each of the 27 judgments regarding the said article posted on the Electronic Court System, pre-trial detention was imposed.  Domestic courts usually justify this situation by the nature of the criminal act in question.

In 2016, by a decision of the Sabail District Court dated January 7, 2016, a preventive measure was chosen for Natig Karimov, who was charged with the same article, and by a decision of the same court dated January 19, the preventive measure was replaced with house arrest. By a verdict of the Baku Grave Crimes Court, Natig Karimov was given a 7-year suspended sentence, including 4 years of probation.

Article 5 of the European Convention on Human Rights states that no one shall be deprived of own liberty except in such cases and according to a such procedure as are prescribed by law. This includes the lawful arrest and detention of a person in reasonable doubt as to the circumstances prescribed by law. Nonetheless, such arrest and detention shall be subject to prompt judicial review and, if the arrest or detention is held by a court to be unlawful, the person shall be released.

In Yunusova and Yunusov v. Azerbaijan (no. 2), the European Court of Human Rights found that the detention of individuals charged with a number of criminal offences, including high treason, without reasonable suspicion constituted a restriction on their right to liberty and security and a violation of Article 5 (§§112, 113). The detention of Leyla Yunusova and Arif Yunusov was justified by the Nasimi District Court on the grounds of the gravity of the charges, the likelihood of evading and obstructing the investigation (§§52, 61).

In Mirgadirov v. Azerbaijan and Turkey, the ECtHR also found the detention of journalist Rauf Mirgadirov, who was charged with high treason, to be in violation of Article 5 (§86). The Nasimi District Court justified his detention on the grounds of the likelihood of evading or obstructing the investigation, as well as the nature of the criminal offence with which he was charged (§26).

Ingilab Ahadov, the former deputy chairman of the Islamic Party of Azerbaijan, in 2016, and Ilham Aliyev, the acting chairman of the party, were detained under the same article in 2020 and were placed under pre-trial detention during the preliminary investigation. Theologian Sardar Babayev was also detained in 2021 on charges of high treason.

The United Nations Working Group on Arbitrary Detention found Hilal Mammadov's detention in 2012 to be in violation of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (§69). Mammadov was charged under Article 234.4.3 (illegal preparation, production, possession, transportation or sale of narcotic drugs in large quantities) and was placed in pre-trial denetion by the Nizami District Court on 22 June 2012. The court justified its decision on the gravity of the charges and the possibility that H. Mammadov would evade investigation (Hilal Mammadov v. Azerbaijan, §§14, 15). On 3 July 2012, new charges were brought against him under Article 274 (high treason) and Article 283.2.2 (incitement of national, racial, social or religious hatred and enmity, committed by a person using his official position) of the Criminal Code (§17). Hilal Mammadov was sentenced to 5 years in prison by the Baku Court of Grave Crimes (ECtHR, §23).

Said Dadashbeyli was charged with a number of criminal offences, including those referred to in Articles 274 and 278 of the Criminal Code. (Dadashbeyli v. Azerbaijan, §8) He was placed in pre-trial detention by the Sabail District Court on 17 January 2017 (§6).

In recent years, Talysh researcher and scholar Igbal Abilov was arrested during the preliminary investigation period in the summer of 2024, accused of high treason.

Peace activist Bahruz Samadov was also charged in August 2024 under the same article.

According to Article 14 of the ECHR and Article 25 of the Constitution, rights and freedoms must be ensured without discrimination, and everyone is guaranteed equal rights and freedoms.

The Guide on Article 14 of the ECHR states that Article 14 does not prohibit a member state from applying different treatment to groups in order to eliminate “de facto inequalities”; even in some cases, the failure to attempt to eliminate such inequalities by means of different treatment may lead to a violation of Article 14 (§44). Resultantly, positive discrimination is acceptable to the Convention and the Court. The difference in treatment must be objectively and reasonably justified. That is, it must be both legitimate and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (§70).

In Timishev v. Russia, the Court stated that the onus of justification of differential treatment lies with the government (§57).

The choice of house arrest rather than pre-trial detention for Ramiz Mehdiyev can be considered legitimate given his age, but in the above-mentioned case, the choice of pre-trial detention for Arif Yunusov, without taking into account his health, based on the gravity of the accusation, the possibility of evading the investigation and obstructing the investigation, is a discrimination by the judiciary in favor of Mehdiyev. Nevertheless, R. Mehdiyev is the former head of the Presidential Administration (1995-2019), former president of ANAS (2019-2022), and was awarded the “Sharaf”, “Shohrat”, “Heydar Aliyev”, “Istiglal” and other orders and medals.

It implies that his ability to commit the act specified in Articles 155.1.1-155.1.5 of the Code of Criminal Procedure (hiding from the body conducting the criminal proceedings, obstructing the normal course of the preliminary investigation or court hearing, committing the act again or creating a danger to society, failing to respond to the summons of the body conducting the criminal proceedings without good reason or otherwise evading criminal liability and punishment, obstructing the execution of a court verdict) is greater than that of Yunusov, Mirgadirov, Mammadov, Ahadov and Aliyev.

“Tribunat” concludes that the imposition of house arrest on Ramiz Mehdiyev is a violation of the right to “prohibition of discrimination” as provided for in Article 14.