Seven more citizens were convicted on so-called
“Ganja case”
Yaver Ismayilzade
Elvin Aliyev
Aydin Rustamov
Alim Yusifov
+  3 more people
Ganja City Court on Grave Crimes
Case #1(100)-94/2019
March 15, 2019
Presiding judge:
Emin Rustamov
Judge:
Faiq Mahmudov
Judge of Baku City Court on Grave Crimes, on whom the responsibility of Judge of Ganja District Court on Grave Crimes was imposed:
Eldar Ismayilov
Public Prosecutor: Fuad Musayev

Defendants: Yavar Ismayilzade, Zabil Mammadov, Ganbar Qarazade, Elvin Aliyev, Isa Maharramzade, Aydin Rustamov, Alim Yusifov

Defenders: Kanan Ismayilov, Vafa Ismayilova, Altay Huseynov, Vurgun Quliyev, Samir Aliyev, Qachay Mammadov, Ilham Ibadov, Vusal Orujev

Victims: Afgan Ismayilov, Tural Akperov, Vusal Safarov, Sarhan Naqiyev, Sabuhi Jafarov, Samir Bayramov, Elnur Mammadov, Rashad Kazimov, Emin Hasanov, Asiman Mammadov, Asif Damirov, Ziyafat Hasanov, Madjid Qurbanov, Tural Qarayev, Nidjat Gojayev, Nidjat Allahverdiyev

On July 3, 2018, around 20:30 h (8:30 pm), the armed attempt was perpetrated on the Chief of Ganja City Executive Power Elmar Valiyev, in Ganja. At crime scene, Police arrested the suspect, Yunis Safarov, a Russian citizen, who seriously wounded the Chief of the Executive Power and his bodyguard.
On July 4, 2018, Yunis Safarov’s photos with the traces of tortures and beatings were disseminated in Mass Media. The origin of these photos is still unknown. Investigation bodies deny any involvement in them, and unofficial sources bring various versions in regards of the origin of these photos. According to first version, while Yunis Safarov was at Police Department, he was beaten there by a son of the Chief of Executive Power Elmir Valiyev. According to second version, Yunis Safarov was beaten and tortured by the Head of the Criminal Investigation Department colonel - lieutenant Sarxan Ismayilov and the Chief Investigative Officer of Ganja City Main Police Department Qorxmaz Ibrahimov. After capturing the beating to his phone, Sarxan Ismayilov sent these photos to Elmir Valiyev - a son of Elmar Valiyev. Then, Elmir Valiyev widespread those photos in social networks for intimidation purpose.

On July 10, 2018, a protest action took place in the centre of Ganja, during which a Deputy Chief of Ganja City Main Police Department colonel Ilgar Balakishiyev and a Deputy Chief of Ganja City NizamiDistrict Police Department  colonel - lieutenant Samad Abbasov were killed.

On July 10, 2018, security agencies - the Prosecutor’s General Office, Ministry of Internal Affairs and State Security Service of the AR, widespread their joint statement, which stated that on July 10, 2018, around 20:00 h (8 p.m.), the group of radical believers, approximately 150-200 people, tried to brutally disturb public order. While ignoring police warnings, they committed unlawful actions and showed resistance to the police, by physically injuring them with the blunt and sharp cutting objects.  It is also mentioned in the statement, that police detained around 40 persons at a scene, but others managed to run away. Security agencies in their statement expressed their condolences over two killed policemen, who died at the square.

Immediately, the arrests of Ganja citizens began. Farrukh Qasimov was among the first detainees. Already on July 13, 2018, as a result of special operation carried out by officers of law enforcement agencies, R. Boyukkishiyev was killed in Shamkir city.
On July 21, 2018, as it was informed by Press Office of State Security Service, during “armed resistance” previously convicted and wanted Anar Bagirov was killed in Binagadi District Hojasan village. On July 25, 2018, a resident of Ganja city and a member of “Muslim Unity” movement Ali Huseyn oglu Sarhani was shot dead, according to law-enforcement agencies also during “armed resistance”.

The “Muslim Unity” Movement made a statement, in which it clearly pointed out the following: “Under false accusations in organising disorders in Ganja, innocent religious people are being killed there, the members of the movement are chosen as targets, authorities are trying to create fear in society”.
On July 28, 2018, during special operation of the State Security Service, Fuad Tofiq oglu Samadov was shot dead in Samukh city. According to State Security Service, F. Samadov was also killed during“armed resistance”, and that he was one of the active members “of a radical religious group” and the participant of Ganja disorders.

On August 10, 2018, Muraz Rahimov was killed by police during special operation in Sumgayit. According to law-enforcement agencies, he was also a member of “a radical religious group” and was killed during “armed resistance”.

In the first half of August, due to events in Ganja, General Prosecutor of the AR held a meeting whereat he informed that 77 persons involved in Ganja events were brought to justice, 13 were declared wanted, and 5 (whose names were mentioned above) were killed during special operation.

However, killings continued. On August 28, 2018, during special operation of the State Security Service in Khachmaz district, accused in religious extremism and terrorism Niyazi Nadjafov was killed during“armed resistance”. He was the 6th citizen of the AR, who was killed in the period of July-August 2018, under murky circumstances…

All detainees were brought to Ganja City Main Police Department. The criminal case was incriminated against them under following Articles: 120.2.3. (deliberate murder of a victim in connection with implementation of a given person of service activity or performance of public debt), 120.2.7 (deliberate murder of two or more persons), 220.2.1 (mass disorders), 221.3 (hooliganism committed with application of a weapon or subjects, used as the weapon), 228.4 (Illegal purchase, selling or carrying of gas weapon, cold steel, including throwing weapon) and 315.2 (Application of the violence dangerous to life or health, concerning the representative of the authority, in connection with performance of official duties) of the Criminal Code of the AR.

Indictment states that on July 10, 2018, accused participated in an unauthorised action, committed armed attack on police and caused them physical injuries.

Detainees were not provided with lawyers. Elchin Sadiqov, well-known lawyer, by taking “sensitive cases”, was removed from Yunis Safarov’s defence, who was accused in assassination attempt on a Chief of the Executive Power of Ganja city Elmar Valiyev due to the complaint lodged by the punitive institution. It was based on that as if E. Sadiqov tried to incite Yunis Safarov to file complaints on tortures. Lawyer denies this, and finds this decision to be unlawful and ungrounded.  Russian lawyer Yevgeny Sherbatov is also not allowed to defend Y. Safarov.

When preliminary investigation ended, the case was transferred for a review to Ganja City Court on Grave Crimes. Despite the fact, that according to jurisdiction, the court had to be held  in Ganja, the judges of Ganja Court on Grave Crimes were travelling to Baku, and the trial itself was held at Baku City Sabunchi District Court.

All detainees of ‘Ganja case’ were divided into groups, and each group had its own court proceedings. We describe below, the court proceeding of one of these groups that consists of 7 people: Yavar Ismayilzade, Zabil Mammadov, Ganbar Qarazade, Elvin Aliyev, Isa Maharramzade, Aydin Rustamov, Ali Yusifov.

Y. Ismayilzade was accused in committing crimes under Articles  220.1 (mass disorders), 229.4 (Illegal manufacturing of a gas weapon, cold steel, including the throwing weapon) 315.2 (Application of the violence dangerous to life or health, concerning the representative of the authority, in connection with performance of official duties)of the Criminal Code of the AR. During court investigation, Y. Ismayilzade did not plead guilty. He stated that he did not call for mass disorders, he did not participate in them, he did not apply violence towards police and he did not show any armed resistance.

Y. Ismayilzade testified that he found out about July 10th 2018 demonstration via social networks and planned to participate in it.  He and his friend Zabil Mammadov heard some voice nearby mosque “Shah Abbas”. They saw a person with a dragger in his hand hitting a policeman.  Then, they run away towards the direction whereto others run. When they approached to Ganja hotel, he was detained there by the members of the Special Forces, near the entrance of the park.

Zabil Mammadov was accused in committing crimes under Article 220.1 (mass disorder), and 315. 2 (Application of the violence dangerous to life or health, concerning the representative of the authority, in connection with performance of official duties)of the Criminal Code of AR. During the court, he testified that he found out about the assassination attempt on a Chief of the Executive Power and about Yunis Safarov via social networks.  Z. Mammadov also saw information about July 10th protest at social networks.

But, he did not know who the organiser of this protest was, and who widespread this information. Together with his friend Y. Ismayilzade, he decided to participate in it. On July 10, 2018, around 16:00 (4 pm), they arrived to Ganja city centre, near the building of the executive power. There were a lot of armed policemen. When they saw police, they moved to the back side of the Mosque “Shah Abbas”. Suddenly, they saw, a person in black shirt and dragger in his hand attacking policeman and hitting him with it. Policeman felt down. At this moment members of Special Forces arrived. Together with his friend, Z. Mammadov tried to leave, but they were stopped by members of Special Forces. Z.Mammadov also added that he did not call anyone to participate in the protest, that he was not able to participate in it, he did not apply any violence towards police, and did not show any armed resistance.

Ganbar Qarazade was accused in committing crimes under Articles 220.1 (mass disorders), and 315.2 (Application of the violence dangerous to life or health, concerning the representative of the authority, in connection with performance of official duties)of the Criminal Code of AR. During court, he did not plead guilty. He testified that he found out about the action in support of Yunis Safarov via social networks. G. Qarazade was not acquainted with Y. Safarov and did not have any connection with him. In order to participate in the action, he arrived to Ganja from Shamkir. He saw a lot of policemen around Q. Qarazade square, who demanded to leave the square, and so he did. He testified that he did not see how the policemen were killed, he did not shout out any slogans, did not show resistance towards policemen.

Accused in committing crimes under Articles 220.1 (mass disorders) and 315.2 (Application of the violence dangerous to life or health, concerning the representative of the authority, in connection with performance of official duties)of the Criminal Code of AR, Elvin Aliyev did not plead guilty in crimes incriminated against him, and testified that he lives in Moscow, and he came to Ganja for summer. On July 7, 2018, he found out about the July 10th action  via social network. On July 10, 2018 around 18:00 h (6pm) together with his friends, he had a dinner at cafe in Ganja. Around 19:50 h (7:50 pm) Elvin Aliyev left cafe and went towards shopping centre to buy a ticket to Moscow.  He heard shouting’s in front of the building of the executive power at the square, and at that moment he was detained by Special Forces. During court proceedings, Elvin Aliyev testified that he did not know the organisers of the action, he did not know participants of the action, he did not know R. Boyukkishiyev, and he did not show any armed resistance towards police.

Isa Maharramzade was accused in committing crimes under Article 220.1 (mass disorder), and 315.2 (Application of the violence dangerous to life or health, concerning the representative of the authority, in connection with performance of official duties)of the Criminal Code of AR. During  court hearing I. Maharramzade testified that on July 7, 2018, his friend A. Rustamov, who resides in Moscow, sent him photos of beaten Yunis Safarov (lying in  his blood on them), and voice message about July 10th action.  The action was organised in support of Y. Safarov. He did not reply to his friend. On July 10, 2018, I. Maharramzade arrived to Ganja from Samukh, where he met with A. Rustamov and his two friends. They went towards Ganja hotel. When they sat on the bench, close-by hotel, they saw confrontation between people and police. They also saw a person in black shirt hitting the police with a dragger. Isa Maharramzade testified, that he did not participate in any action, he did not call on anything, and he did not show any resistance towards police.

Aydin Rustamov was also accused in committing crimes under Articles 220.1 (mass disorder) and 315.2 (Application of the violence dangerous to life or health, concerning the representative of the authority, in connection with performance of official duties)of the Criminal Code of AR. A. Rustamov did not plead guilty.  Since 2001, A. Rustamov lives in Russia and works a taxi driver there. His testimonies were in line with I. Maharramzade’s testimonies.  He also added to his testimonies that on July 17, 2018, district militia officer called him and told him: “You got snapped by camera, and Ganja city Nizami District Police Department is looking for you”. A. Rustamov went to militia officer himself, whereat he was detained by policemen. He also testified that he did not participate in any action, he did not show any resistance towards police and he did not cause anyone injuries.

Accused in committing crimes under Article 220.1 (mass disorder) of the Criminal Code of AR, Alim Yusifov also did not plead guilty. During court hearing, he told that he found out about Y. Safarov and assassination attempt on a Chief of the Executive Power via social networks. He also found out about July 10th action via social networks. In order to participate in the action, he arrived to Ganja. On July 10, 2018, around 17:00-18:00 (5pm-6pm), he was detained by police nearby “Shah Abbas” Mosque. He was detained at the same time with Vugar Ismayilov, Bashar Mammadov, and Sakhavat  Hasanov.

All the witnesses at the court were policemen, whose testimonies were almost identical. Victims testified that they were  hit, but they did not know who hit them. One of the victims, policeman Rashad Kazimov testified,  that people shouting slogans were hitting policemen at the square. He stated so: “The participants of the actions had intention to commit mass disorder”. However, the verdict does not indicate from where he knew about the intentions of the participants (and precisely whose).

Victim Asiman Mammadov testified that he is a platoon leader commander of patrol service,  and the area of his service for the last two months covers the area nearby administrative building of executive power of Ganja city.  A. Mammadov indicated that policemen always have during their work Makarov pistol, handcuffs, tear gas cylinder and rubber club.  However, on July 10, 2018, during the action,  police received order to go to the square without those special means, that they must not cause any damage to the health and life of citizens.

During judicial investigation, all the accused told about tortures, which were applied towards them during preliminary investigation.

On March 15, 2019, Ganja City Court on Grave Crimes passed a sentence on a given group of accused. According to verdict, accused were found guilty in all pressed charges and sentenced to:

1. Yavar Ismayilzade to 9 years in prison
2. Zabil Mammadov to 8 years 6 months in prison
3. Ganbar Qarazade to 7 years 6 months in prison
4. Elvin Aliyev to 6 years 6 months in prison
5. Isa Maharramzade to 8 years in prison
6. Aydin Rustamov to 8 years in prison
7. Alim Yusifov to 7 years 6 months in prison.


The courts of First Instance and Court of Appeal currently view the judicial proceedings on other groups of accused of Ganja case.

Commentary by expert lawyer:

The court decision is unlawful and groundless.

According to presumption of innocence provided by Article 63 of the Constitution of the AR, Article 21 of the Code of Criminal Procedure of the AR and Article 6 (2) of European Convention for the Protection of Human Rights and Fundamental Freedoms, it requires that while exercising their powers, judges should deviate from prejudged idea, that defendant has committed criminal act, it shall be for the prosecution to prove the charge and the accused (the suspect) shall receive the benefit of any doubts.

This principle guarantees to any individual that the representatives of the authority cannot consider them guilty of a crime, without the verdict of law court. Not only judge or court may infringe the presumption of innocence, but also other state authorities. This should not hinder the authorities to inform about the progress of the criminal investigation to public.

However, article b, paragraph 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the right to the presumption of innocence) requires that they do this delicately and carefully, as required by the presumption of innocence.

In so called “Ganja case”, presumption of innocence was violated by following state bodies - the Prosecutor’s General, Ministry of Internal Affairs and State Security Service. Despite the fact that this principle is  provided by all national and international norms, the statement of the state security agencies that all the accused belong to the group of radical believers, participated in mass disorders and committed illegal actions - has violated the principle of the presumption of innocence.

According to Article 66 of the Constitution of the AR, nobody may be forced to testify against him/herself, wife (husband), children, parents, brother, sister.

Article 20 of the Code of Criminal Procedure of the AR states that:
20.1. Nobody may be forced to testify against himself or his close relatives, or be prosecuted on this basis.
20.2.During the investigation or court hearing, a person asked to give information which may incriminate him and his close relatives in respect of an offence shall have the right to refuse to incriminate them without fear of negative legal consequences for himself.

Besides national legislation, given principle is provided in Article 6 (1) of European Convention and in precedents of European Court on Human Rights.

“The Court recalls that, although not specifically mentioned in Article 6 of the Convention (art. 6), the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (art. 6). Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 (art. 6) (see the above-mentioned John Murray judgment, p. 49, para. 45, and the above-mentioned Funke judgment, p. 22, para. 44). The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6 para. 2 of the Convention (art. 6-2).
“ (judgement of European Court on Human Rights on Case of Saunders v. United Kingdom from December 17, 1996, item 68.)
https://hudoc.echr.coe.int/eng#{"dmdocnumber":["695886"],"itemid":["001-58009"]}

http://europeancourt.ru/uploads/ECHR_Saunders_v_the_United_Kingdom_17_12_1996.pdf

Second important condition, which we indicated above, is the application of tortures towards detainees. Tortures are prohibited by local and international legislation. Article 15.2 of the Code of Criminal Procedure of the AR, prohibits during criminal investigation:
15.2.1. the use of torture and physical and psychological force, including the use of medication, withdrawal of food, hypnosis, deprivation of medical aid and the use of other cruel, inhuman or degrading treatment and punishment;
15.2.2. the imposition of long-term or severe physical pain or acts which are detrimental to health, or any similar ill-treatment;
15.2.3. taking evidence from victims, suspects or accused persons or from other participants in the criminal proceedings using violence, threats, deceit or by other unlawful acts which violate their rights.
Article 3 of European Convention prohibits tortures, inhuman or degrading treatment. Physical inviolability of a person (torture, illegal arrests, personal searches) are indicators of the democracy in the society. According to general rule, treatment which Article 3 of European Convention prohibits, contradicts  domestic rule by itself.

If the fact of unlawful and abnormal treatment occurs, the complaint on it should be reviewed by national criminal courts. Even during the hardest cases, such as the fight with a terrorism and organised crimes, state authorities must abstain from any actions that might be viewed as the treatment prohibited by law. Such treatment is never allowed, cannot be justified even as effective method for fights with criminality.

It is the responsibility of the government to ensure that no-one is subjected to illicit treatment. Thus, if a person claims in his defence, that he was subjected to such treatment, there should be effective official investigation with a goal to establish persons responsible and their punishment. Such treatment must reach its minimum level to fall under described Article. The assessment of this minimum level is rather relative, it depends on all circumstances of the case, particularly, its duration, its influence on a physical and psychological condition, and in some cases on the sex, age, and health condition of the victim of such treatment. (Precedents of European Court on Human Rights, Michel de Salvia, 2004).

On 10 December 1984, the UN General Assembly (Resolution 39/46) adopted the Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment, which defined the concept of torture and stated that States under the Charter must take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under their jurisdiction.

The Convention excluded all circumstances, whether a state of war or a threat of war, internal political instability or any other public emergency, stating that they could not be invoked as a justification of torture. The Convention was adopted with reference to Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, as well as to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment, adopted by the UN General Assembly on 9 December 1975. 

Despite the existence of domestic and international law norms prohibiting torture, the Ganja court on serious crimes did not conduct any thorough and detailed investigation of the facts of torture, which were revealed by all the defendants and were repeatedly reported in mass media, stated by human rights activists at press conferences on the events in Ganja. Moreover, the court ignored this issue in any way in the indictment handed down in the case. Thus, the circle of persons involved in the acts of torture was not established, and the perpetrators of this crime were not brought to criminal responsibility. 

Attention should also be paid to the testimony of victims that claimed to be police officers. Almost all of them spoke about the fact that they received different kind of injuries during the action. However, most of them could not identify offenders. Some of the defendants were detained before the action began and were not in the square during the confrontation between demonstrators and the police officers. At the trial the police said that the defendants had "intentions to disturb public order". In order to find out whether the "intent" is an act of crime, attention should be paid to a matter of wording of what “crime" is. A crime is an act prohibited by criminal law under threat of punishment (https://ru.wikipedia.org/wiki/Преступление). 

An act, in criminal law, is an act of conscious and volitional conduct in the form of action or inaction, which has led to socially dangerous consequences. An act is an obligatory sign of the event of a crime and the objective side of the crime as its element (https://ru.wikipedia.org/wiki/Деяние_в_уголовном_праве).

It is clear from the foregoing that in order for an offence to be treated  under criminal law it should correspond to an act as it is called differently in jurisdiction. The investigating authorities detained the defendants because of their "intention" to participate in the action on 10 July 2018. If there is no act or crime, there is no liability.

A number of important questions remained open and uninvestigated during the trial; why were the policemen ordered to be on duty on the day of the action without appropriate equipment, while the other days they were carrying handcuffs, Makarov pistol, and more? Why wasn't security organized for the highest ranks of the police department? Why could Rashad Beyukkishiev, who is the main suspect in the attack and the murder of a high-ranking official, go to the square with a huge dagger in his hands without hiding it, approach the police officers and strike a deadly blow? Has an internal command investigation been conducted into the killing of officers by the intelligence services?

Thus, a number of substantive and procedural rules of domestic and international law, as well as judicial precedents of the European Court of Human Rights, which were binding on States parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms, had been violated in respect of the accused.  
INSTITUTE FOR PEACE AND DEMOCRACY