Can the money found in the apartment or office be considered contraband?

On November 20 last year, arrests began in the case of «AbzasMedia», known for its investigations of corruption. Earlier, the site's director Ulvi Hasanli, deputy director Muhammad Kekalov, and editor-in-chief Sevinj Vagifgizy were arrested. Then journalists Nargiz Absalamova, Elnara Gasimova and investigative journalist Hafiz Babaly were arrested. They are also charged under the Article 206.3.2 of the Criminal Code (smuggling by a group of persons).

After Ulvi Hasanli was detained, on November 20, the office of «AbzasMedia» was searched. It was claimed that 40 thousand euros were found in the office of the site. Ulvi Hasanli claims that there was no money there, that 40 thousand euros were planted in the office by those who claim to have discovered them.

Following «AbzasMedia», Aziz Orujev, the head of the “Channel 13” Internet TV channel, and Shamo Eminov, an employee of this structure, were also arrested on charges of smuggling.

On March 6 and 8, a group of employees of the “Toplum TV” channel and the “III Republic” Platform were arrested on the same charge.  During searches in the office of the  “III Platform” Republic and in the apartments of “Toplum TV” employees, various amounts of money were allegedly found. They were also charged with smuggling.

Why has this Article been used recently against arrested journalists and members of civil society?

Lawyer Yalchin Imanov answers the questions of ASTNA.

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Question: Recently, an Article on smuggling has been used against arrested members of civil society and journalists. What is provided for in the preamble of this article?

Answer: As a general information, I can say that smuggling is a criminal act provided for in Article 206 of the Criminal Code of the Republic of Azerbaijan. This Article is contained in the chapter "Crimes in the sphere of economic activity" of the mentioned Code. The disposition of the Article provides for the movement of goods or other items in a significant amount across the customs border of the Republic of Azerbaijan, committed in addition to or with concealment from customs control or with the fraudulent use of documents or means of customs identification, or associated with non-declaration or false declaration.

That is, the actions of this crime are committed in the following ways:

• Movement of contraband goods in addition to customs control;
• Movement of contraband goods with concealment from customs control;
• The movement of contraband goods with the fraudulent use of documents or means of customs identification;
• Movement of contraband goods with undeclared;
• Movement of contraband goods with false declaration.

So far, additions and changes have been made to this Article 6 times at different times. The public danger of the crime of smuggling is a violation of the established rules and conditions for the movement of goods or other items across the customs border of the country, which harms the rights and legally protected interests of the state, legal entities and individuals.

The subject of the crime of smuggling is any property that is considered a commodity, as well as other items that are not goods, for which a certain procedure and conditions for movement across the customs border are established, as well as cash foreign or national currency, securities, gold jewelry, etc.

To constitute a crime of smuggling, goods and items transported to the country outside customs procedures must be in significant quantities. A significant amount means an amount over 50 thousand manats, but not more than 200 thousand manats.

If there are no significant amounts, then the transportation of goods and vehicles across the customs border outside customs control, by concealment, using documents or means of identification by deception, without declaration or without proper declaration entails administrative liability.

The subject of this crime can be any person who has reached the age of 16, the age that allows him to be prosecuted.

Question: How correct is the use of this Article against members of civil society and journalists? In other words, what does journalism and civil society have to do with smuggling?

Answer: The trend of applying this Article to journalists, socio-political activists is not new.  Punishing and sentencing law enforcement agencies and the judiciary of the political authorities included smuggling in the history of political persecution several years ago. Afghan Mukhtarli, a journalist abducted from Georgia and brought to Baku in May 2017, and a functionary of the opposition party, the late Gezel Bayramli, who returned from a neighboring country after treatment the same month, were prosecuted on the same charge and sentenced to imprisonment.

By the way, I will tell you a curious thing.  In 2017, a fairly voluminous draft law was prepared providing for amendments to the Criminal Code of the Republic of Azerbaijan and providing for the removal of Article 206.1 from the Criminal Code, that is, part one of the crime of smuggling, in other words, its abolition. But then something happened, some invisible hand went through the project and it underwent changes as a result of which, the provision on the repeal of article 206.1 was excluded from the project. It is very likely that this dubious correction in the legislative process occurred for political reasons and was designed to exclude legitimate grounds for the release of Mukhtarli and Bayramli from criminal liability in the context of ongoing criminal prosecution.

As for the main part of the question, you are probably asking about the existence of legal grounds for bringing representatives of the media and civil society to criminal responsibility under this article. Of course, even if we assume that the funds in foreign currency that were allegedly found in the apartments of journalists or NGO representatives belong to them, the investigative body still needs to prove that this amount was smuggled into the country.

That is, the importation of contraband foreign currency into the customs territory, evasion of customs procedures, as well as the commission of predetermined actions to commit smuggling, illegal movement of currency across the customs border, etc. must be proven. 

According to the decision of the Supreme Court of June 2, 2016 No. 10 "On judicial practice in cases of smuggling", "... acts related to the movement of goods or other items by a person across the state border are qualified as a crime (smuggling) if the person who committed the criminal act committed one or more actions that constitute an objective the side of the crime in the disposition of Article 206.1 of the Criminal Code and contrary to the rules provided for in the Customs Code."

If there are none, then there is no smuggling - the corpus delicti is not formed.

The essence of the problem, of course, is that as a result of the introduction of reactionary changes to the laws "On Grants" and "On non-governmental organizations (public associations and Foundations)", media entities and NGOs are actually prohibited from receiving grants from foreign donors. The acceptance of grant funds as the subject of a crime (smuggling), one of the sources of monetary and other property formation of media entities and NGOs throughout the civilized world, identification with smuggling, rather indicates bringing the scale of this problem to the point of absurdity, rather than a legal transformation. 

In Azerbaijan, NGOs that do not want to be imaginary media and GONGO (Government-Organized (or Operated) Non-Governmental Organization), "State-organized non-governmental organizations" (GONGO), are nominally non-governmental public associations created on the initiative or with the participation of the authorities and working for the interests of the state - Ed.) They were deprived of irreplaceable help, which is the only guarantee of their existence. 

In this sense, the broad context and essence of the new wave of repression that has engulfed the country since last autumn is, to put it mildly, the elimination of the remnants of an independent media institute and civil society in Azerbaijan.

The purpose of their prosecution for smuggling and their impending conviction is to put an end to criticism that is politically unacceptable to the authorities.

Question: Usually, recent observations show that during searches in the offices or homes of detained representatives of civil society or journalists, various amounts of foreign currency are "discovered", and then this Article comes into play. Can the discovery of money in an apartment or office be considered contraband? What does the legislation say?

Answer: The place and space of detection of cash, which is one of the objects of the smuggling crime, is not limited by law, i.e., they can be located both in the customs zone and outside it. But it is more logical to expose this criminal act in the customs control zone. The Article 146 of the Customs Code of the Republic of Azerbaijan regulates the declaration of goods and vehicles and the place of their declaration. According to this Article, all goods and vehicles transported across the customs border are subject to declaration to the customs authority conducting their customs clearance. Declaration is made by submitting to the customs authority in the prescribed form (oral, written on paper, electronic) information about the customs procedure under which goods and vehicles are to be placed, and other information necessary for customs purposes.

In accordance with the "Rules for the Declaration of Goods and vehicles transported across the Customs border", approved by Cabinet of Ministers Resolution No. 263 of July 22, 2014, for the use by individuals of the simplified procedure for declaring goods transported across the customs border, two-channel pass systems are used at customs border checkpoints - "Green Channel" and "Red the channel". The Green Channel pass system is designed for the oral declaration of goods by individuals, with the exception of goods carried in unaccompanied baggage and sent by mail. Through this system, goods are moved on a preferential basis, that is, with exemption from customs procedures, without collecting customs duties and without applying trade policy measures. The movement of goods by an individual across the customs border using the Green Channel pass system is regarded as the absence of goods in his hand luggage and accompanying baggage that are subject to declaration in writing, and is perceived as an oral declaration of these goods to customs authorities. And the Red Channel release system is designed for their declaration in written or electronic form on paper with the issuance of a simplified declaration for goods.

If representatives of the media and non-governmental organizations were really engaged in smuggling foreign currency, would it be more convincing and reasonable, as they say, to "catch them red-handed"? The verification of socio-political activists under the conditional code "N5" or "J5" during departure and arrival at the Baku airport is not so far in the past. How could it happen that people arrested on charges of smuggling were not subjected to these checks?

Law enforcement agencies had information about the trips of these persons to foreign countries and their return, and the presence of funds subject to declaration in the customs control zone could easily be established and, as they say, prevented by interviewing an employee of the customs control authority, personal inspection or customs inspection of hand luggage or baggage.

And if the suspicion was really justified, then logically this process should have happened too.

Instead, conducting search operations in offices and apartments in gross violation of a number of requirements of Criminal Procedure legislation and the discovery of allegedly some amounts of foreign funds raises serious doubts and numerous questions.

Another noteworthy issue is the legal assessment of the actions of those arrested as contraband committed by a group of persons by prior agreement. 

According to the published open data, the investigation claims that the defendants moved foreign currency across the customs border not together, but separately. In this case, there can be no indication of a "conspiracy" of two or more persons by prior consent, and it is illegal to qualify the alleged act as committed by a "group of persons by prior agreement".

The Resolution of the Plenum of the Constitutional Court dated May 6, 2022 "On the interpretation of certain provisions of Articles 32, 33 and 34 of the Criminal Code of the Republic of Azerbaijan" also explicitly states that according to the meaning of Articles 33.3 and 34.2 of the Criminal Code, an action cannot be regarded as a crime committed by a group of persons by prior agreement, provided that the participants in the crime (the organizer, instigator or accomplice) do not take direct part in the commission of actions that constitute the objective side of the crime, or their actions lack the constituent elements of the objective side of the crime. From the point of view of the requirements of Articles 33.3 and 34.2 of the Criminal Code, if a participant in a crime does not participate in actions that are part of the objective side of the crime, together with the perpetrator, that is, if the crime was not committed by two or more persons by prior agreement, his actions provided for in Article 32 of this Code must be described in accordance with the relevant article of the Special Part of the Code.

The same position has been expressed in many collegial decisions of the Supreme Court. In this sense, the description of the actions of the accused under Article 206.3.2 of the Criminal Code contradicts the criminal law. If we assume that the currency found in the apartment or office belongs to the accused, then in this case the description of the act should be changed to article 206.1 CM. Changing the description to Article 206.1 of the Criminal Code will mean that the amount of money "passed through the customs border" does not exceed 50 thousand manats, therefore, the actions of the accused do not reveal the corpus delicti.

Question: Are there any provisions in any law limiting the amount of money stored at home or in the office?

Answer: There are no rules regarding the limit of funds stored in an apartment or office. It seems to become important for the criminal prosecution authority in the context of this topic.

But it must be proved that the funds allegedly found in the apartment or office were transported to the country without observing customs procedures. To do this, it is necessary to collect possible and reliable evidence of the accusation in a way that meets the requirements of the law.

As a person who is more or less familiar with the practice of investigative officers in Azerbaijan, I can say that the evidence base, usually revealed in such cases, is accompanied by either inadmissible evidence (for example, the deprivation of participants in criminal proceedings of a number of rights guaranteed by law, the failure to explain to them their rights and obligations, the use of violence, intimidation, deception, the use of torture and other ill-treatment, violation of the rights of the suspect or accused to protection, etc.) or is generally deprived of any evidence.

I understand that this sounds naive, but it is only a matter of time before the disclosure of evidence obtained in violation of the basic principles of criminal proceedings and the disclosure of the full extent of the illegality and unreasonableness of criminal prosecution in such cases.

Question: How and where should evidence be sought for the detention of a "smuggler", in legislation, in the Criminal Code?

Answer: According to the "Preferential and simplified rules for the transportation of goods by individuals across the customs border that are not intended for production or commercial purposes", approved by Resolution No. 305 of the Cabinet of Ministers of the Republic of Azerbaijan dated October 14, 2013, individuals can transport foreign currency resources through customs border checkpoints in accordance with the law "On Currency Regulation" and the rules established by the Central Bank. Appendix No. 1 to these Rules contains a list of goods that must be declared in writing when crossing the customs border of the Republic of Azerbaijan by individuals. The list of goods subject to declaration in writing includes foreign currency and securities, the equivalent of which exceeds 10,000 (ten thousand) US dollars.

By quoting these quotes from domestic legislation, my goal in providing these quotes from domestic legislation is to indicate a more convenient place to detain a smuggler. This is the customs border of the country. The customs territory of Azerbaijan includes the land, the internal waters of the country, the section of the Caspian Sea belonging to the Republic of Azerbaijan, and the airspace above them. Since the country's land borders have been closed for more than four years, we should probably consider the customs border of Baku Airport, which is the only place of entry and exit from the country.

More effective for identifying a smuggler and detecting contraband can be considered the corridor (green or red) through which the arrested persons passed when returning to Azerbaijan from the foreign country to which they traveled, the presence of items subject to declaration, including foreign currency, as confirmation of a copy of the customs declaration, personal inspection by an employee of the customs authority control or customs inspection of hand luggage and baggage, etc.

And proving that the foreign currency allegedly found in the apartments or offices of journalists and NGO representatives was smuggled into the country will be the responsibility of the investigation in pre-trial proceedings, and the charges in court.

Although the stage of these cases that was left behind ("AbzasMedia" and “Toplum TV”) was accompanied by a number of obvious absurdities. For example, a journalist or NGO representatives were charged with committing an aggravated crime (smuggling) by a group of persons by prior agreement.  From open sources and statements by lawyers in the media, it becomes obvious that in these accusations it is unclear how the smuggled foreign currency was imported into the country (the method of its commission), when it was imported, in what actions deliberate collusion was expressed, what exactly was the role of each accused in committing the criminal act attributed to him, all or the part of the foreign currency that is reported is contraband and so on.

Question: How can arrested journalists and members of civil society protect their rights? How can they prove that they are not smugglers? What does international law say about this?

Answer: Today, the ineffectiveness of legal remedies in the country is clear as day. The only purpose of passing through these instances is to fulfill the conditions for the admissibility of an appeal to the European Court. But until then, all violations must be recorded with maximum detail and accuracy and challenged in local courts.

Currently, the most notable violation is the illegal mass dissemination of primary investigation data in the pro-government media, which contributes to the creation of a negative (criminal) image of journalists and NGO staff. This is a violation of a number of norms of criminal procedure legislation, as well as a clear violation of the right to the presumption of innocence.

There are also real possibilities of illegality of the search and seizure procedure, legal protection, freedom from ill-treatment and a number of other violations of fundamental rights.

Also among the real possibilities are the illegality of the search and seizure procedure, legal defense, ill-treatment and a number of other violations of fundamental rights. Therefore, in such circumstances, the defense should file complaints as promptly as possible.

In current cases, the Strasbourg Court is presented as the only defense mechanism and the address that can be hoped for. Although there are also a lot of problems there, and these problems are becoming more obvious every day. But again, as they say, even in "such a situation" this court is useful in some way, and probably it will be so in the future.