Institution of legal proceedings against F. Gahramanly has no legal basis


-Samed bey, as you know, Public Prosecutor"s Office has brought an action against former deputy chairman of the PPFA, political activist Fuad Gahramanly charging him with violent actions against his family members. What do you think, is it sound decision?

-Institution of criminal case by Public Prosecutor"s Office is wrong from legal point of view. First, mass media reports say that the criminal case has been instituted to comply with Article 133 of the Criminal Code of the Azerbaijani Republic (infliction of sufferings). Under this Article, regular, not inflicting bodily injury or other violent acts, strong physical pain or psychical tortures are criminalized.

It should be remembered that a distinctive feature of this Article is a word "regularly". A previous formulation of this Article (till 2012) embraced tortures as well. Later on, an item of tortures was withdrawn to become an independent article. This indicates that under torture is meant a placement of man into a specific place to apply tortures to him. In other words, under tortures are meant tortures in a closed space. A word "regularly" goes to show this point of view. Therefore Article 133 of the Criminal Code pursues an aim to punish actions qualified as tortures in a closed space.

Press reports show that institution of criminal case is based on an interview of Zumrud Yagmur due to the events in question. The interview said that "in 2010 Fuad Gahramanly wounded a knee of his juvenile daughter Sanai; in summer 2013 he broke a finger of his wife; in November 2015 inflicted other injuries. Also, while at freedom and at prison he continued to cause them psychological sufferings".

The above-cited goes back to three incidents. First two of them (2010 and 2013) may be qualified as dealing misdemeanor (it is impossible to define it at the present stage). The last incident remains unclear. Actions as referred to say that these occurred on the basis of domestic violence and, hence, are not corpus delicti on infliction of suffering. These acts are related to Articles 127 and 128 of the Criminal Code that prohibit misdemeanor battery and easy injures. In considering the above-stated, it is possible to infer that accusation against Fuad Gahramanly on Article 133 is a legal interpretation. In this case, a criminal case could hypothetically be sued on the basis of Zumrud Yagmur" interview in line with Articles 127 and128 of the Criminal Code.

However, there are well-grounded, serious reasons to ask why no criminal case has so far been instituted. Articles 127 and 128 of the Criminal Code stipulate crimes falling under public-private prosecution. Under Article 37, a complaint of the victim or a particular case is meant to start prosecution. It is well known that the victim has not filed a complaint, so it is essential to focus on particular cases as set forth in Article 37.5 of the Criminal Code. Just one out of all particular cases is up to requirement - a crime committed in respect of underage, in particular, Sanai Yagmur-related incident of 2010. Let"s suppose that prosecutor"s office is right in instituting a legitimate criminal case given the fact that at the moment of the incident Sanai Yagmur was defined as a child falling under a particular case category.

It should be borne in mind that the incident that took place in 2010 is at best according to Article 127 - misdemeanor battery. Under Article 75 of the Criminal Code, a term of bringing to trial for dealing misdemeanor is 7 years. As for the current incident, this term ran out in 2017. In other words, there are no grounds to institute a criminal case on the matter.

As for Zumrud Yagmur, there is no particular case, so actions against her call for complaints of the sufferer. However, no complaint of this sort is available; hence, there are no grounds for instituting a criminal case in the matter of Zumrud Yagmur. Thus, actions in respect to Fuad Gahramanly are improperly interpreted, аnd there are procedural hindrances to bring an action, including absence of injured"s complaint and particular case, finally, a time limitation.

- Why, for lack of victim"s complaint, does Public Prosecutor"s Office take steps of this kind? Is there any political goal? Isn"t it an attempt to pressure Fuad Gahramanly?

-In principle, the Criminal Code (Articles 204-207) warrants the prosecutor"s office to start investigation on the basis of appeals of physical and legal entities and press media reports. However, at any rate the prosecutor"s office should pre-identify any procedural grounds for a criminal case, including time limitation, presence or absence of victim"s complaint. As for the case in question, the prosecutor"s office failed to do that. Instead, the prosecutor"s office tried to refer to a criminal act where the time limitation has not expired and no opportunity been available to reconcile with the victim.

As noted above, prosecutor"s office actions on this track are absurd from criminal law interpretation standpoint. Allowing for Fuad Gahramanly" political affiliation, as well as clamor around the case, it may be supposed that prosecutor"s office is guided by political motives pursuing purely political goals. Also, institution of criminal case may be regarded as pressures against Fuad Gahramanly and authorities" abuse of women rights. To my thinking, the pint here is about the both cases above.

-Public Prosecutor"s Office" statement say that it is guided by mass media and social network reports for instituting a criminal case. The law warrants this. However, the victims have never appealed to Public Prosecutor"s Office in connection with the incident. Even Fuad Gahramanly"s wife Zumrud Yagmur defined the situation on Facebook as a game of politics. She wrote that "I and my daughters are not a cheap chess-board for underhanded schemes. I need no justice of Ilham Aliyev, Mehriban Aliyeva, Zakit Garalov; nor SC, MIA. I"m not minded to become an instrument in their revengeful political wars and underhanded schemes". What does the law say about it? If specific victims produce no appeals, may Fuad Gahramanly be arrested?

-As I noted above, a legally substantiated accusation against Gahramanly is based on incorrect prerequisites. The accusation of this sort calls for a complaint from the victim. However, in some cases the prosecutor"s office is entitled to independently file an action. Reports above say that under pretext of a particular case the prosecutor"s office may try to rule out a question of complaint absence of the victim. It is obvious then that the prosecutor"s office tried to select a formula removing the need in victim"s complaint and thus plead the case on the basis of public discussions and statements as evidentiary fact. In so doing, Public Prosecutor"s office will be able to rely on the criminal law.

At any rate, statements of Zumrud and her daughters go to show that Fuad Gahramanly committed violent actions on family basis. Should Zumrud Yagmur and her children file beforehand a complaint to law-enforcement bodies due t the above-mentioned actions, he would be punished legally. However, Yagmur and her children declined from this to display their mistrust in law-enforcement bodies of the country. Exactly these bodies made events public to whip up the public censure. Yes, Fuad Gahramanly bears responsibility for his deeds from moral point of view. However, owing to procedural-legal reasons stated above, there are no legal grounds to assess his actions.

-I wonder, why has not Public Prosecutor"s Office taken advantage of this opportunity? Why has not this structure inquire into mass media and social network spread information, not instituted criminal cases thereupon? For example, in connection with money offshoring, loss of the high-value watch in Ibis and finally with millions and their owners on Greek islands. Why has not Public Prosecutor"s Office inquired into Nardaran, Terter and Gyanja cases? And quite unexpectedly this body immediately grasped information about an oppositionists. Isn"t that a political discrimination? The criminal case has been staged by the authorities proper, hasn"t it?

- It must be noted that Public Prosecutor"s Office is a political instrument in the hands of the authority. It has always been the case. We are well aware of the fact that actions of Public Prosecutor"s Office and the whole prosecutor"s system are illegitimate. For this reason, Public Prosecutor"s Office has never instituted criminal cases on facts of corruption and tortures. On the other hand, this structure has always been engaged in filing trumped-up suits against oppositionists. Or instituting criminal cases on heinous accusations due to potential "errors" of oppositionists. As for the case in question, it is obvious that Public Prosecutor"s Office is active as assigned by the authorities.

-If Fuad Gahramanly is arrested on accusations quoted above, will he be recognized a political prisoner?

-Owing to the fact under current circumstances there are no grounds for instituting a criminal case against Fuad Gahramanly, institution of criminal case against him and his subsequent arrest will provide grounds to consider him a political prisoner. From this standpoint, the case is politically motivated, so Fuad Gahramanly will be considered a political prisoner if arrested on this criminal case.

I do say so now that I believe in violent actions of Gahramanly on the basis of complaints of victims. I think that he must bear a moral responsibility for his actions. However, an institution of criminal case against him is ungrounded due to juridical and legal reasons. The criminal case against him is politically motivated. I hope that the authorities and Public Prosecutor"s Office will discontinue their incorrect actions and stop abusing rights of women to attain their goals.

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