Defence Files Objection to Judge at Mehman Huseynov’s Appeal Hearing

April 10th, 2017

> The lawyers’ motion to consider the appeal through judicial investigation was not granted;

> Lawyer Fuad Agayev: It is a big disgrace to contribute to such an illegal judgment.

On 10 April, Baku Court of Appeal held a hearing on the appeal filed against Surakhani District Court’s judgment regarding blogger Mehman Huseynov. The hearing chaired by Judge Vagif Mursagulov was attended by media representatives, socio-political figures, and representatives of civil society, international organisations and the diplomatic corps. Due to the small size of the courtroom, many of those wishing to participate had to wait outside.

Mehman Huseynov was present at the hearing as had been ensured. His rights were defended by lawyers Elchin Sadigov, Fuad Agayev and Shahla Humbatova. Lawyer Alirza Habilov participated as the representative of the party that has brought the private prosecution.

In order to verify Mehman Huseynov’s personal data, the judge read them aloud and asked whether they were correct. Mehman’s answer to the questions was ‘I do not know’. As an explanation, he told the judge that the Ministry of Internal Affairs had been refusing to give him an identity card since 2014. “Therefore, I do not have a document confirming my identity. I myself do not know for sure whether I am Mehman Huseynov or not. I, therefore, ask the court to ensure that I am provided with an identity card. Otherwise, I am also treating this information with suspicion,” Huseynov said.

Further on, in response to the judge’s question, Mehman said he had no objection to his lawyers or to the jury composition.

Lawyer Fuad Agayev said the full text of Surakhani District Court’s judgment on Mehman Huseynov had not been served upon Huseynov himself or his defence counsel at the time when lawyer Elchin Sadigov appealed the judgment. “I and my colleague Shahla Humbatova joined Mehman’s defence team later on. Once we received the judgment, we observed significant differences in the arguments. Therefore, we are applying to make additions to the appeal,” Agayev noted.

The application was accepted by the court and was added to the case file.

Fuad Agayev said the way justice had not been served in Mehman Huseynov’s case was unparalleled. “Mehman Huseynov’s personal Facebook page has 100,000 followers. Also, the Sancaq Production page, he is the moderator of, has 326,000 followers. This is quite a significant indicator. If the court shows such an attitude to such a well-known person, imagine how they treat the have-nots,” the lawyer said.

Fuad Agayev added that the allegations that Mehman Huseynov had been prejudiced against the police and had slandered them were absolutely absurd. “It is the other way around. It is quite obvious that the police have been prejudiced against Mehman. He has been banned from leaving the country. They have illegally refused to issue him an identity card. Aside from that, he had been repeatedly, at least 4-5 times, called to the police office before. If Mehman were prejudiced and intended to slander the police, he could have done so after the previous calls. The reason Mehman made such a statement on 10 January is that he had been subjected to humiliating treatment and torture since the moment he was detained on 9 January. A similar scenario had been planned against him in December of 2016. A person, whom he did not know, tried to provoke him with deliberate hand and arm action, but Mehman managed to avoid the provocation by walking away from there,” Agayev noted.

Fuad Agayev went on to describe what had happened on 9 January. According to him, Mehman was having a walk together with his friends in the area of Baku called Torgovaya (Shopping) the evening of that day. “At 7.40 pm, he moved away from his friends for several minutes for a phone call. At that time, he saw an ‘old acquaintance’ that had called him to the police office and had a ‘preventive’ talk with him. Knowing that there was going to be a provocation, Mehman tried to get away from the place but was attacked by 4-5 plainclothes officers. Mehman suffers from vasodilatation in his left leg. They electrocuted exactly that leg and immobilised him, before forcing him into a car and driving to an unknown destination,” the lawyer added.

Fuad Agayev said the police had documented the incident as an alleged quarrel between Mehman Huseynov and someone by surname Tahmazov whom Mehman did not know, during which the two allegedly disobeyed the policemen who were allegedly trying to separate them, and after which they were allegedly put Mehman into a post patrol service (PPS) car and took him to the police office where a protocol on administrative offence was drawn up. “If it had actually been so, the police could have easily proved it. There are a lot of clubs located in that area and all of them have video cameras facing that area. Also, if Mehman had been detained by PPS, then they have a DVR and a timer registering exact time in their car. Besides that, there are video recordings of the interior and exterior of the police office, where Mehman had been taken, which could have been obtained. Then, it would have been easy to prove what circumstances Mehman was in while detained by the police, in what state he was taken to the police office, whether or not he had a bag over his head, and how he was treated in the police office. Although this evidence should have been investigated by the first court, it was not. Also, Police Chief Musa Musayev, who considers himself the filer of the private prosecution, was not summoned or interrogated in court despite tenacious petitions by the defence. None of the materials regarded as evidence in the case has a source; only the copy-paste method has been applied. It is completely illegal. The only evidence in the case heard by Surakhani court is Mehman Huseynov’s testimony. And based on that testimony, Mehman should have been acquitted not sentenced. The trial should be conducted in accordance with the adversarial principle, not by the method of inquisition. The court did not obtain any of the evidence it was entitled and obliged to obtain. The defence motions soliciting the interrogation of Mehman’s four friends, who were with him at the time of detention, were not granted, either. It was not investigated why an ambulance had been called for Mehman while he was in the police office. We all know very well how this system works. The detainee should be in a very bad condition for an ambulance to be called for him to the police office. If Mehman already had some health issues previously, it means he should have frequently called an ambulance. The court even did not see the need to obtain a medical note about it from the first aid station. If the health of a person, who never needed an ambulance before, sharply worsens just after he is taken to the police office, is there even a need to prove the torture here? They did not even commission an expert appraisal with regard to the bloodstains on Mehman Huseynov’s clothes. The investigator just wrote that it was characteristic of such stains to appear as a result of friction. Did the judge not know that the investigator was not entitled to give such an opinion,” the lawyer asked.

The lawyer added that Musa Musayev did not have the right to appeal to the court in accordance with Article 147.2. “Slander (libel) is when a person gives false information about another person. It is not about a legal entity, an organisation or a police office. During his speech, Mehman not only did not mention Musa Musayev’s name but did not know him at all. How could he slander him in that case? If Musa Musayev believes that what Mehman said there is a lie and has caused damage to him, he should prove his accusations. Nothing was presented to the court to prove the contrary of what Mehman had said,” Agayev added.

The lawyer noted that the court had not made the right decision regarding the issue of jurisdiction. “Mehman made the public speech in question in front of Nasimi District Court. If what he said there is considered a crime, it means the crime was completed at that moment. It is not clear why the complaint was filed with Surakhani District Court, given the said area belongs to Nasimi district,” the lawyer asked.

Fuad Agayev added that thousands of people both inside and outside of the country were interested in the present case. “It is a big disgrace to contribute to such an illegal judgment. This judgment is a shame on the judicial system of Azerbaijan. Although you ruled to consider the appeal without judicial investigation at the preliminary hearing, I believe that it should be decided to hear the case through judicial investigation in view of the facts that I listed above. The evidence not examined by the first instance should be examined here so that a fair decision is reached. Therefore, I request that the appeal be heard trough judicial investigation and acquittal be granted,” Fuad Agayev said.

Lawyers Elchin Sadigov and Shahla Humbatova supported their colleague’s speech. Mehman Huseynov also expressed his agreement with his lawyers.

Private prosecution party’s representative Alirza Habilov objected to the motion. He noted that the judge had asked Baku City Prosecutor’s Office to investigate Mehman Huseynov’s allegations about his

subjection to torture which he made in Nasimi District Court on 10 January. “As the investigation did not corroborate the allegations, a decision was made on refusing to launch criminal proceedings. The appeal filed against that decision was also denied by the court. Therefore, I do not see any need for a further judicial investigation,” Habilov said.

After an on-the-bench deliberation, the court denied the motion. The defence asked the court to give them time to hand in a written objection to the jury composition. However, the judge announced a break and asked the lawyers to draw up the objection immediately.

The lawyers prepared the objection during the break and presented it to the court. But as the working day was over by then, the judge said the proceedings would continue on 11 April, 4 pm, with a 3-hour hearing.

Background: Mehman Huseynov was detained by officers of Nasimi District Police Department in the evening hours on 9 January. He was released after being convicted under Article 535.1 (disobedience to lawful requirements of police) of the Administrative Offences Code and fined AZN 200 by Nasimi District Court. Speaking to journalists after leaving the court building, Huseynov said he was facing the pressure due to his professional activities and had been tortured by the police during his detention.

Huseynov appealed to the prosecutor’s office to investigate the fact of torture and to start criminal proceedings, but the prosecutor’s office refused to launch a criminal case.

The Ministry of Internal Affairs (MIA) denied the blogger’s claims and called his allegations a libel. The Ministry’s statement also read that the MIA had submitted a petition to the Prosecutor General’s Office for a legal assessment of Mehman Huseynov’s libellous accusations against the police incriminating them of a serious crime.

After that, Nasimi District Police Department chief Musa Musayev filed a private prosecution with the court. The police chief asked the court to bring Mehman Huseynov to justice under Article 147.2 (libel, involving an accusation of a serious or particularly serious crime) of the Criminal Code.

Based on this complaint, Surakhani District Court sentenced Mehman Huseynov to 2 years in jail on 3 March.