SERIOUS LEGAL VIOLATIONS DURING FATULLAYEV’S APPEAL

January 25th, 2011
Despite the working day being over, today, Baku Appeals Court Judge Mirpasha Huseynov issued a decision to reject the imprisoned journalist Eynulla Fatullayev’s lawsuit against the Garadagh District Court judgment on his pre-trial detention. The hearing was accompanied by serious legal violations.

The process started at 3pm with Fatullayev’s lawyer Anar Gasimov’s motion. The motion requested replacement of the pre-trial sentence with detention in-house. The Judge did not fulfill the motion.
Fatullayev then filed a motion requesting an independent examination of samples from his eyelashes and nails and also of the handprints on the drug packages that were found on him. In a response to the motion, the public prosecutor said that there are already a number of handprints on those packages making it impossible to hold an independent examination.
After deliberation, the Judge rejected this motion as well.
Fatullayev filed another motion requesting the court to send an inquiry to the Garadagh District Police Office questioning what measures they have taken to determine the source of drugs and another one to the Justice Ministry Penitentiary Service questioning which employees of prison #12 were punished and how they were punished for the drugs found on him on December 29, 2009.  The Judge did not fulfill the motion.
Despite the working day, as established by the Labor Code being over, the Judge announced a series of speeches.
Fatullayev told the Judge that he had been speaking about the motion for 3 hours and was very tired. Therefore he asked the Judge to reschedule the hearing.
Further, Fatullayev’s new lawyer Gasimov said that he had little time to familiarize with the case materials and requested time to prepare a speech. The Judge rejected the request and continued the process.
Fatullayev started his speech, but the judge stopped him and cited that he was intentionally delaying the process.
Gasimov asked the court to announce an interval so that they could invite other lawyers who were more familiar with the case. The judge ignored this request as well, and gave the floor to the public prosecutor.
Fatullayev stated that the prosecutor had not appealed against this decision and therefore it was illegal to allow him speak before Fatullayev.
Public Prosecutor Maharram Mustafayev said that the process has already been postponed 18 times. “There is evidence in the case materials. Fatullayev’s sentence will be calculated from 6 July, 2010. As for his illegal imprisonment, the European Court issued compensation for him. Therefore, I suppose that the complaint is ungrounded and should be rejected,” Mustafayev noted.
After a 2-minute deliberation, the Judged announced the decision, that the appeal was rejected.
Fatullayev announce in the hearing that they have appealed to the European Court against the drugs charge.
BACKGROUND

On the 20th of April, 2007, Fatullayev was arrested in court after a ruling by the Yasamal District Court on the lawsuit brought by Refugee/IDP Rights Defense Committee chairperson Tatyana Chaladze. After Fatullayev’s arrest, a criminal case was opened against him by the National Security Ministry Chief Investigative Office, regarding an article published in Realniy Azerbaijan newspaper. According to the Ministry of Foreign Affairs, the article caused foreign citizens and representatives of international organizations to be concerned for their safety. He was convicted under Articles 214.1 and 283.2.2 of the Criminal Code:  threatening terror and incitement of ethnic/national, social or religious hatred abusing authority. He was sentenced to pre-trial detention. Fatullayev was then convicted under 213.2.2 (tax evasion). He was finally sentenced to 8.5 years in prison on the 30th of October, 2007 and fined 242,522 AZN by the Grave Crimes Court.
On the 29th of December, 2009, 0.223 grams of heroin was reportedly found on Fatullayev in Prison #12 and on the 6th of July, 2010, Fatullayev was found guilty under article 234.1 (Illegal possession of narcotics in an amount exceeding the limit for personal consumption) of the Criminal Code. His sentence of two years and six months in prison began on the same date. Fatullayev and his lawyer believe that this incident was a set-up, organized so that the court could avoid complying with the decision of the European Court of Human Rights (ECHR) regarding the journalist's release.
On the 22nd of April, 2010, the ECHR issued a decision that Fatullayev should be released immediately, and that the Azerbaijani government should pay 27,822 EUR to Fatullayev in compensation. The Plenum of Supreme Court partially fulfilled this decision on November 11. However, the Supreme Court judgment was completely changed later.   
Fatullayev established and was the Editor-in-chief of both Realniy Azerbaijan and Gundelik Azerbaijan newspapers. First published in 2005, Realniy Azerbaijan ran as a weekly newspaper, while Gundelik Azerbaijan was published daily. The newspapers stopped running after Fatullayev's arrest in 2007.