The departure from Azerbaijan of editor-in-chief of Sputnik Azerbaijan, who was placed under house arrest is illegal

Analysis

In July of this year, a criminal case was initiated against employees of the Sputnik Azerbaijan, the regional office of the Russian-owned news agency Sputnik, in Baku. Two employees of this media organization - executive director Igor Kartavikh and editor-in-chief Yevgeny Belousov - were charged under various articles of the Criminal Code and were placed in pre-trial detention.

However, several months fast forward, on October 9, Igor Kartavikh, the executive director of Sputnik Azerbaijan, was released, and just 7 days later, on October 16, he was sent to the Russian Federation. There is no information in open sources on what alternative measure of restraint was chosen for him. According to Yuri Ushakov, an aide to the Russian President, the decision was made on October 9 in Dushanbe on the eve of the meeting of the presidents of Russia and Azerbaijan.

Later, on October 24, by a decision of the Khatai District Court, the preventive measure chosen for another employee of Sputnik Azerbaijan, Yevgeny Belusov, was replaced with a 3-months of house arrest. Followingly, he was also sent to Moscow.

“Tribunat” analyzed the duties of the individuals under house arrest on Y. Belousov, the essence of this measure, and the mechanisms for its implementation, and examined the actual implementation of the house arrest decision imposed and the issues of personal control.

Code of Criminal Procedure of the Republic of Azerbaijan (hereinafter referred to as the CCP) indicates house arrest as a preventive measure aimed at both control and ensuring the procedural behavior of the accused by restriction of freedom.

Preventive measures may be applied in cases where the materials collected for the criminal prosecution provide sufficient grounds for the possibility of the following acts being committed by the accused (CCP, Article 155.1):

...1. hiding from the body conducting the criminal proceedings;

...2. obstructing the normal course of the preliminary investigation or court hearing by illegally influencing individuals participating in the criminal proceedings, concealing or falsifying materials of importance for the criminal prosecution;

...3. committing an act stipulated by criminal law again or creating a danger to society;

...4. failing to appear at the summons of the body conducting the criminal proceedings without good reason or evading criminal liability and punishment in any other way;

...5. obstructing the execution of a court verdict.

In this vein, house arrest is applied only in cases where it is necessary to keep an individual under control. Hence, the goal is to minimize the possibility of a real threat to the course of criminal prosecution and evading justice. If not, by the logic of the law, the preventive measure should either not be chosen or should be replaced by a lighter measure.

Article 163 of the CCP specifically lists the obligations imposed on a person placed under house arrest. These requirements include:

·       having a permanent place of residence in the Republic of Azerbaijan (163.3-2);

·       not leaving or changing address of residence without the permission of the court (163.3.1 and 163.3.4);

·       moving only within the territorial boundaries determined by the court (163.3.3);

·       carrying an electronic monitoring device in case of necessity (163.3.2)

Moreover, according to Article 155.6 of the Criminal Code, upon arrest, house arrest and bail are imposed on an accused, passport or other document proving identity shall be taken from until the full resolution of the charges and shall be added to the materials of the criminal case proceedings. These documents shall be returned only if the restraining measure has ceased to be in force; a written undertaking has been obtained from the accused person to provide prior information regarding his departure from the Republic of Azerbaijan for treatment or other necessity. It is unclear what is meant by such cases, as the legislation does not specify what other necessity may consist of. Nonetheless, no reports indicate the purpose of treatment or other necessity in connection with the departure of Igor Kartavikh and Yevgeny Belousov from the country.

Via the Migration Code, if any preventive measure is imposed on foreigners and stateless individuals, their departure from the Republic of Azerbaijan is restricted until the period of that  preventive measure expires or annulled (Article 17.1.2).

The “Entry-Exit and Registration” interdepartmental information-search system is a special state information database used by various state bodies (Ministry of Internal Affairs, State Customs Committee, State Border Service etc.). This system includes information on foreigners and stateless individuals subject to preventive measures, and the “active” status of these individuals is clearly visible (“Charter on the “Entry-Exit and Registration” Interdepartmental Automated Information-Search System”).

The Charter “On Approval of the List of Electronic Monitoring Devices Applied to Convict or Restrained Individualsand the Rules for Their Application” states that an electronic bracelet is attached to the foot of a person subjected to house arrest, which tracks geographical movement and transmits information to the monitoring center. A mobile monitoring device, which must be kept with the individual using the bracelet at all times and which identifies and transmits the tracking data received from the bracelet to the monitoring center, is installed, as is a home monitoring station installed in the individual’s home and which transmits information about presence to the monitoring center. The individual’s lack of a permanent place of residence in Azerbaijan and the house arrest measure, which is mandatory for those who have been selected, also make the installation and use of these devices impossible.

A systematic analysis of these provisions portrays that it is legally impossible for an individual placed under house arrest to leave the country. Since the legislation specifically prohibits the imposition of house arrest as a preventive measure against persons who do not have a permanent place of residence within the borders of the Republic of Azerbaijan. In addition, it is impossible to cross the border without a passport or other document. The grounds for returning the passport do not exist in the case of Yevgeny Belousov.

There is also no information about the termination of the criminal case opened against the employees of "Sputnik Azerbaijan" under Articles 178.3.1 (fraud, committed with large-scale damage), 192.2.2 (illegal entrepreneurship with large-scale income), 192.2.3 (illegal entrepreneurship committed by an organized group), 193-1.3.1 (legalization of property obtained through crime committed by an organized group or criminal association (criminal organization)), 193-1.3.2 (legalization of property obtained through crime - committed in a large amount) of the Criminal Code due to circumstances excluding the criminal component. It is implied that the criminal prosecution is ongoing and the chosen house arrest measure is in force. Accordingly, the fact that Belousov left Azerbaijan following imposition of measure gives reason to say that this decision was not actually implemented and was only formally applied.

The fact that both individuals were released from prison and sent to the Russian Federation after the meeting of the presidents of the two countries, and that the Russian presidential aide confirmed that the decision was made at the meeting, also indicates that the decision on house arrest was made due to the political, as opposed to legal reasons.

“Tribunat” concludes that house arrest is a strict control measure in the Azerbaijani legal system, designed to prevent the accused from evading the investigation, tampering with evidence, or violating procedural conduct. The application of this measure requires that the person be kept under actual control and have a permanent place of residence in the territory of the Republic of Azerbaijan. The fact that Yevgeny Belousov, the editor-in-chief of Sputnik Azerbaijan, left the country following house arrest is both contrary to the law and makes it impossible to apply the control envisaged by the preventive measure. In this regard, the house arrest decision chosen for him is of a formal nature and the function of ensuring control and procedural conduct, which is the essence of the restraining measure, remains unfulfilled.