AZERBAIJAN: THREE AZERBAIJANI PROSECUTORS TRAINED AT USDOJ

UNCLAS SECTION 01 OF 04 BAKU 000065

SIPDIS

DEPT FOR INL - JCAMPBELL
DEPT FOR EUR/ACE - SCOULTER - AND EUR/CARC
DOJ FOR OPDAT - CALEXANDRE/FEHRENSTAMMCNEWCOMBE - AND NAC -
KCASSIBRY

E.O. 12958: NA
TAGS: EFIN SNAR KJUS OTRA KCRM KCOR AJ
SUBJECT: AZERBAIJAN: THREE AZERBAIJANI PROSECUTORS TRAINED AT USDOJ
NATIONAL ADVOCACY CENTER SHINE IN THE SPOTLIGHT OF HIGH-PROFILE
AZERI CRIMINAL PROCESS

REF: BAKU 476 (2009)



1. SUMMARY: In April 2009, three Azeri prosecutors went with the
DOJ OPDAT Resident Legal Advisor on an INL funded study-tour to the
DOJ National Advocacy Center (NAC) Columbia, South Carolina. Under
the RLA's supervision, they took an intensive two-week trial
advocacy course. Each of these three has since put his training to
good use, not only in the Azeri courtroom but also in advancing a
western approach to the practice of criminal law in Azerbaijan,
including the execution of a USG request for documents in an ongoing
federal corruption/fraud investigation. One of the three is now a
candidate judge; the second just successfully finished handling the
first-ever money laundering trial in Azerbaijan; and the third
handled the politically sensitive, outcome preordained, and
internationally condemned bloggers case, yet did so with a high
degree of professional courtesy and responsibility. To further
advance both their and their colleagues' skills, knowledge, and
thinking, the RLA continues, with INL funding, to hold an ongoing
series of in-country programs on case development, trial advocacy,
and professional responsibility. End Summary.


Background; Prosecutors' Capabilities
-------------- --------------


2. As reported in reftel, the Prosecutor General of Azerbaijan
personally requested the DOJ OPDAT Resident Legal Advisor to educate
his prosecutors in the adversarial system, especially in how to
handle complex prosecutions and how to ethically fulfill his/her
professional responsibility obligations. Azeri prosecutors do not
have the experience or training to develop and prosecute complex
criminal cases in the fields of corruption and financial crime. Few
advocates are skilled in the finer complexities of developing the
specific theory of a case in courtroom examination and argument.
Further, Azeri prosecutors are just now learning how to comply with
the mandate of their new ethics code to act towards the court and
defendant fairly and responsibly, including the disclosure of
exculpatory evidence. Accordingly, the DOJ RLA has, with INL
funding, held an ongoing series of in-country programs designed to
advance the Azeris' knowledge, skills, and thinking in these subject
areas.


3. In April 2009, the RLA took three of the most promising and
better English-speaking young Azeri prosecutors to the DOJ National
Advocacy Center (NAC) in Columbia, South Carolina, for the two-week
trial advocacy course designed for Assistant U.S. Attorneys. This
course at the NAC teaches a prosecutor to prepare witnesses for
trial, implement trial strategy, effectively question witnesses,
argue cogently, think on one's feet, properly conduct one's self in
a courtroom, and to do so ethically and responsibly. The three
Azeris were well prepared for class every day, engaged in the
coursework with enthusiasm, and performed superbly.


4. In the intervening months, these three prosecutors have put
their training to good use and have lived up to, if not exceeded,
expectations. Each of the three has exercised his new skills in the
courtroom and passed some of the learned techniques on to their
colleagues. But each also has his own particular accomplishment,
which in turn has dovetailed with the various DOJ OPDAT programs in
Azerbaijan.

The First of the Three Prosecutors
--------------


5. Anar Rzayev was recently selected as a candidate judge. Until
his selection, he worked in the International Relations Division of
the Prosecutor General's Office.


6. As reported in reftel, the RLA and a trial attorney from DOJ's
Office of International Affairs (OIA) held a mutual legal assistance
seminar in February 2009. As a direct result of this seminar, Anar
Rzayev's office is cooperating with OIA in an assistance request
filed recently pursuant to the UN Convention Against Corruption. The
DOJ Fraud Division is requesting documents in an ongoing federal
investigation into an American oil supply company and its Azeri
affiliate. Pursuant to the OIA request, Anar Rzayev's office just
obtained and executed a search warrant on the office of the Azeri
affiliate and is gathering requested documents from the Azeri
Ministry of Taxation. These documents will then be certified and
forwarded to DOJ.


7. Four years ago, through the collaborative efforts of DOJ, ABA,
COE, OSCE, and GTZ, the Azeri judicial selection process was
transformed to become transparent and merit-based. With selection
now depending upon top performance in oral and written exams, the
failure rate of candidates is high. This new judicial selection
process is designed to create a new cadre of professional,
merit-based judges such as Anar Rzayev. Such judges will be
Azerbaijan's only hope towards achieving a qualified and independent
judiciary that is equipped to combat corruption, build respect for
the rule of law, and support economic and political growth. Two
groups of judges had previously gone through this new selection
process. The first group consisted of 55 judges appointed in 2007;
the second group, 102 judges appointed in 2008.


8. Having just passed the selection process, a third group of 80
candidate judges, including Anar Rzayev, is currently undergoing an
eight-month training program prior to assuming the bench. Upon
completion of four months of academic training, they will then
undergo four months of on-the-job training. Thereafter, they will
take a final written essay exam, consisting of writing a decision in
both a criminal and civil case. Those candidates who pass (at this
stage only one candidate, from the first group, has ever failed)
will then be formally invested as judges.


9. In December 2009, the DOJ RLA held a week-long seminar for this
new group of 80 judicial candidates. Two visiting U.S. federal
judges and the RLA were the primary instructors. A hypothetical
false-document sales and money laundering case provided the backdrop
for moot court practical exercises as well as discussions on money
laundering, plea bargaining, jury trials, decision making and
writing, media freedom, the appellate process, and judicial ethics.


10. As part of the seminar, Anar Rzayev related his experience of
sitting as a juror (together with volunteer residents of Columbia,
SC) in one of the all-day mock trials held at the end of the NAC
course. His telling added an extra dimension to the jury trial
discussions and left the other 79 candidate judges with a favorable
impression of the U.S. jury system. Each expressed the desire one
day to preside over a jury trial in Azerbaijan. Current law provides
for jury trial in select serious-crimes cases, but to date has never
been implemented.

The Second of the Three Prosecutors
--------------


11. Azar Osmanov, who works in the accusations (trial) section of
the Prosecutor General's main office, just finished handling the
first-ever money laundering trial in Azerbaijan. On January 8th, the
trial judge entered a verdict of guilty as to all counts, including
the money laundering charge, and sentenced the defendant to eight
years in prison. The case was referred to trial by the Prosecutor
General's Anti-Corruption Task Force, and came about as the result
of the RLA's cooperative work with the Task Force.


12. In a series of on-site sessions, the RLA used actual U.S.
organized crime case models to detail and explain for the Task Force
investigators and prosecutors the six-step method to investigate and
prosecute complicated cases: use of informants; technical
surveillance; undercover operations; financial tracing and net worth
analysis; plea bargaining, including immunity and witness
protection; and the charging of racketeering and money laundering
laws. Further, in July 2009, the RLA and an IRS CID Special Agent,
who is the author of a world recognized text book on money
laundering investigation, conducted a special course on how to
identify and investigate money laundering activity. In particular,
they taught the Task Force how to trace and freeze assets.


13. The task force recently utilized the RLA's suggestion to combine
an undercover sting with a net worth analysis. It successfully made
and referred to trial a corruption case against the head of a local
school district and two school principals for extorting large sums
of money in exchange for passing grades from students.


14. After the July course, the task force was inspired to actually
refer a money laundering charge to trial. With DOJ assistance, the
Azerbaijani Parliament had passed an Anti-Money
Laundering/Counter-Terrorist Financing law in February 2009, but no
prosecutions had yet been brought under the law. So, when thereafter
the task force completed its investigation of a case involving a
$100,000 embezzlement by the chief accountant of a quasi
government/private company, the director of the task force forwarded
the case to trial with a money laundering charge included. The
defendant had deposited $60,000 of the $100,000 of embezzled funds
into various local accounts established by him under false names,
and then transferred portions out of the country. A legal motion to
dismiss the money laundering law was filed by defense counsel, but
Azar Osmanov successfully parried the defense attacks on the law.
This conviction now sets a solid legal precedent for future money
laundering cases in Azerbaijan.

The Third of the Three Prosecutors
--------------


15. Jeyhun Kazimov works in the trial section of the city of Baku
Chief Prosecutor's office. He was the trial attorney in the recent
hooliganism case of bloggers Emin Milli and Adnan Hajizade.


16. As previously reported, the two bloggers were involved in a
scuffle at a restaurant during the summer. The issue at criminal
trial was whether they were the aggressors or the victims. In a
verdict that has garnered much international criticism, the two
bloggers were convicted and sentenced to two years in jail on
hooliganism charges. The European Parliament called for their
immediate release in a resolution critical of what it called the
deterioration of media freedom in Azerbaijan. International human
rights organizations have called the charges against the two men
politically motivated. Both men had been active in groups that are
highly critical of the administration of President Ilham Aliyev,
including a video circulated by internet in which an activist in a
donkey costume conducted a mock press conference. The case is
currently on appeal.


17. At the NAC, Jeyhun Kazimov was the most polite, enthusiastic,
and responsive of the three to all the RLA and other instructor's
criticisms and suggestions for improvement. As confirmed with other
international observers at the bloggers' trial, despite the hostile
atmosphere of the trial setting, Jeyhun Kazimov performed with the
same level of politeness and responsiveness. He presented his
case-in-chief evidence, namely the restaurant and police witnesses,
"as is," without trying to coach them into a smooth story that
worked over the otherwise inconsistencies and weaknesses. Each party
had its own story as to who started the fight, but nothing more to
corroborate or discredit either version. Through defense cross
examination, however, it was shown that the eye-witnesses identified
by the police really did not see who started the fight. Jeyhun
Kazimov conducted his direct and cross-examinations, and made his
objections and arguments, with reason and without the usual
histrionics attendant in these types of trials. Also, he acted with
professionalism and dignity towards the judge and opposing counsel.


18. The RLA recently met with Aziz Seyidov, the Chief Prosecutor for
the city of Baku, to discuss the case. Chief Prosecutor Seyidov
informed the RLA that as far as he was concerned, this was a low
level assault case. The political and media implications were
irrelevant to him in his decision in taking the case to trial. He
said he simply could not account for the curious pattern of media
critics being charged with instigating fights. Rather, he said he
based his decision in this case solely on the police report, which
directly blamed the bloggers for starting and continuing the fight.
His office does not do the investigations in these types of cases;
rather, that is done by the Ministry of Interior. If the MOIA report
suggests a crime, then his office has no choice but to take the case
as presented to trial. He has 24 trial attorneys who cover 11
districts. They rarely have the time or luxury to interview the
witnesses prior to the trial hearings, which are intermittent, an
hour or two at a time spaced weeks apart. Chief Prosecutor Seyidov
said he picked Jeyhun Kazimov to be the trial attorney because
"Jeyhun is young, smart, articulate, and well-trained."


19. All things being equal, this evidence most likely would not have
amounted to the "proof beyond a reasonable doubt" standard required
to sustain a criminal verdict in a U.S. courtroom. Although the
outcome of the trial was most certainly pre-ordained, that was no
reflection upon the prosecutor. Although international observers
state that the prosecution witnesses were lying and the defense
witnesses were telling the truth, that determination was for the
judge, not the prosecutor, to make. Although a jury may have arrived
at a different conclusion, the judge, for better or worse, chose to
discount the defense witnesses. Regardless, Jeyhun Kazimov did his
job by handling as professionally as he could the case that was
presented to him by the Ministry of Interior.


20. By handling the case as straightforward as he did, Jeyhun
Kazimov acted in conformity with the recently implemented Azeri Code
of Conduct for Prosecutors. Not only did he receive trial ethics
training at the NAC, but he received similar training on the Azeri
code from the RLA. As reported in reftel, the RLA and an attorney
from DOJ's Office of Professional Responsibility traveled to
different prosecutors' offices around the country to familiarize
regional Azeri prosecutors with their responsibilities under the
Azeri code, illustrate the similarities with the U.S. code, provide
examples of professional misconduct in the trial setting, and to
advise on procedures for investigating and punishing such
allegations of prosecutorial misconduct.


21. Unfortunately, the judge in the bloggers case was an older judge
who has not attended any of the OPDAT trainings held for the newer
judges. Over the past two years in seminars held for the second
group of 102 new judges, visiting U.S. federal judges have delivered
the message that the freedom of the press should be sacrosanct.
Rather than directly criticizing the political repression of the
press in Azerbaijan, the U.S. federal judges instead have talked
about how the U.S., as a young democracy and even later, made
mistakes in this area. But the federal judges drove home the theme
that slowly but surely an independent judiciary has to step in to
assert that political dissent has to be protected in a democracy in
order for the people to be able to assess the quality of their
leadership. Even falsehoods in the context of political speech need
protection, or else the party in power will decide what the "truth"
is and repress what it doesn't like.


22. The media was invited to and was present for the media freedom
lecture given at the December 2009 seminar described in paragraph
nine above. The senior visiting federal judge (Chief U.S. District
Judge from New Orleans) further gave a press interview at the
seminar room, where she reiterated these same themes of media
freedom. Her lecture and interview received wide and favorable media
coverage both in print and television/radio.


23. Unfortunately, the likelihood of true judicial independence is
still remote due to the institutional control of the executive
branch over much of the judiciary, including budgeting and review of
judges' work product, as well as the systemic problem of judicial
corruption. However, the new judges appointed since 2007 appear
idealistic. Salaries have improved, and as these younger, merit
based and thus more committed and idealistic judges elevate to high
judicial levels, hopefully these institutional vestiges of the
Communist era will eventually disappear.


24. Comment: The INL Letter of Agreement in par III mandates a
yearly evaluation by the GOAJ regarding the DOJ OPDAT program. This
end of the year review was just conducted by Fuad Alasgarov, the
head of the Azerbaijani Presidential Administration's Department for
Work with Law-Enforcement Agencies. Fuad Alasgarov stated that the
GOAJ feedback he has gotten, which he endorses, is "the RLA is doing
a fantastic job and his program must continue." The Embassy
likewise firmly endorses this sentiment. As commented in reftel, the
RLA continues to lead meaningful efforts to develop and implement
justice sector institutional, criminal procedure, and
anti-corruption reform initiatives. Accordingly, the Embassy
strongly recommends the continuation of this highly active and
useful INL-funded program.

LU