Youth Activist Elgiz Gahraman’s Appeal under Review

April 27th, 2017

Summary: 1st hearing

> At the preliminary court hearing, Elgiz Gahraman’s lawyer Fariz Namazli lodged motions in writing to replace his client’s pre-trial detention with house arrest, to allow Elgiz Gahraman to sit next to his lawyer at hearings, and to conduct the proceedings through partial judicial investigation. None of the motions was granted;

> The lawyer requested a copy of the document on the outcome of his commentary on the hearing transcripts drawn up during the consideration of the case in Baku Grave Crimes Court. The court denied the motion;

> The case proceeded to the main hearing.

On 27 April, Baku Court of Appeal chaired by Judge Sahibkhan Mirzayev held a preliminary hearing on the appeal filed by opposition NIDA Civic Movement’s member Elgiz Gahraman.

Elgiz Gahraman’s lawyer Fariz Namazli lodged several motions at the hearing. The lawyer’s first motion sought to replace the pre-trial detention measure selected against Elgiz Gahraman with the preventive measure of house arrest. “One of the issues addressed at the preliminary hearing of the Appeal Court is related to substitution of the measure of pre-trial detention. Elgiz Gahraman can be awarded house arrest. He has an address of permanent residence, where the house arrest applicable to him can be enforced. On the other hand, the grounds for selection of the measure of pre-trial detention do not exist; there are no grounds proving that he will hide from the court, falsify the evidence, or influence the parties to criminal proceedings. Any arguments that he will hide are groundless and are not based on the law,” Namazli said.

The lawyer’s second motion requested that Elgiz Gahraman be removed from the enclosed glass dock and be seated next to his lawyer. “The defendant’s confinement inside an enclosed dock is not compatible with the principle of equality of arms and creates more favourable conditions for the prosecution, which in turn impedes compliance with the procedural requirements such as fair balance and equality of starting conditions. As an apparent proof, we can pay attention to the absence of a table inside the cage where the defendant is held, which means he does not have the opportunity to refer to the documents collected [in the case file] to defend himself against the charges, or to take notes. It is an important element of the defendant’s rights to have the opportunity to use the help of a defence counsel, to communicate with him in confidence, to organise his defence and to participate in it personally. The defendant’s confinement inside a cage has a negative impact on the overall effectiveness of the defence. Based on the above-mentioned, I am requesting the court to ensure that Elgiz Gahraman sits next to his defence counsels,” the lawyer noted.

In his third motion, lawyer Fariz Namazli asked the court to conduct the appeal proceedings through partial judicial investigation. “Baku Grave Crimes Court did not fully investigate the facts of the case, and the circumstances determined by the court were not proven. The witnesses requested by the defence were not invited to testify in court. The defence motions to require submission of necessary evidence were not granted. The evidence in the case file was not examined objectively. Given the arguments of the appeal, evaluating the evidence [properly] and determining whether the charges brought are well-grounded is only possible by considering this appeal through judicial investigation, granting the motions submitted by the defence and investigating the documents that we have presented. To this end, the following motions should be granted in the appeal proceedings and judicial investigation should be conducted in those parts:

1) Obtain and investigate information from the Main Organised Crime Department as to the criminal case concerning the source of the drugs split into separate proceedings from the criminal case #161900387 and what investigative actions have been implemented in that case (by presenting copies of the decisions), and also information on what kind of administrative measures have been taken against the persons who have sold religious literature;

2) Examine Oktay Aliyev, who was assigned as Elgiz Gahraman’s public defender during the preliminary investigation, as a witness;

3) Bring to court and study the log of entrances to and exits from the Main Organised Crime Department to determine the time (by showing hours and minutes) when the drugs were taken to the Forensic Examination Centre;

4) Determine the person (persons) who have provided the operational tip-off in the current case, summon them to court as a witness, bring the log of operational tip-offs of August 2016 to court and examine it.

In the light of the preceding, we request the jury to grant the above motions and to conduct a judicial investigation that involves questioning the witnesses and studying the documents mentioned above,” the lawyer said.

Elgiz Gahraman asked for the motions to be granted. The public prosecutor noted that the motions were unfounded and requested their rejection.

After a 10-minute deliberation, the jury announced that the motions were not granted.

The main hearing was set for 11 May, 3 pm.

Lawyer Fariz Namazli requested a copy of the document on the outcome of his commentary on the hearing transcripts drawn up during the consideration of the case in Baku Grave Crimes Court. The court denied the motion.

Recall that, at the hearing held on 9 March, the lawyer requested that the case be referred back to Baku Grave Crimes Court due to the absence of the questions asked of the witnesses and their responses in a transcript drawn up during the consideration of the youth activist’s case in Baku Grave Crimes Court. The court had granted the motion and postponed the appeal proceedings until Baku Grave Crimes Court considered and commented on the issue.

Elgiz Gahraman was detained on 12 August 2016. He was charged under Article 234.4.3 (large-scale drug trafficking) of the Criminal Code. On 16 January 2017, Baku Grave Crimes Court sentenced him to 5 years and 6 months in prison.