Legal analysis of the court decision on the rape of a minor in Nakhchivan

Based on Ruslan Aliyev's legal arguments, he shared on LinkedIn.

A brief summary of the incident

The facts of three military personnel repeatedly raping a minor boy in Nakhchivan were made public. The victim's father, Novruz Musayev, appealed to the president and demanded a fair investigation.

However, the court's decision clearly violated the principles of justice - one of the accused was sentenced to only 9 months in prison, the other to 1 year, and the third person was released from responsibility altogether. Later, the sentences of the accused were increased by 1 year.

The most problematic point is that the court decision indicated that the accused's "suffering from homosexuality" was applied as a mitigating circumstance in the sentence, indicating that it was a "mental disorder".

Legal issue

Presenting homosexuality as a mental illness and mitigating the sentence on this basis is a clear violation of the Criminal Code of the Republic of Azerbaijan and international law.

Legal framework

Azerbaijani Criminal Code:

• Article 6 of the Criminal Code: “All persons who have committed a crime are equal before the law.”

• Articles 21 and 23 of the Criminal Code: Exemption from liability is possible only in cases of insanity; this does not apply to cases of drunkenness and voluntary loss of self-control.

• Article 59 of the Criminal Code: The list of mitigating circumstances is closed; it is limited only to those provided for by law. “Other circumstances” are exceptions and must not contradict the spirit of the law.

• Articles 72 and 78 of the Criminal Code: Mental illness gives rise to exemption from liability only in cases where a person completely lost his or her sanity at the time of the act.

• Articles 291 and 295 of the Criminal Code: A judge or investigator who makes a knowingly unfair and unlawful decision is criminally liable.

International standards:

• Article 8 of the ECHR – right to respect for private life; courts recognize discrimination based on sexual orientation as “discrimination.”

• WHO ICD-10 and ICD-11 – Since 1994, homosexuality has been excluded from the list of mental illnesses.

• Yogyakarta Principles (2007) – oblige states to refrain from legal and medical discrimination based on sexual orientation.

Application and Ruslan Aliyev’s arguments

Lawyer Ruslan Aliyev writes:

“The judge, by using the phrase ‘suffering from homosexuality’ in his verdict, referred to it as an AIEPP – a mental disorder that does not exclude intelligibility. However, such a diagnosis does not exist. This contradicts international medical classifications and is prohibited by law.”

According to Aliyev, the judge “worked with a hidden seam” – that is, by “formally” aligning homosexuality with Article 59.1.9 (mental disorder) of the Criminal Code, he reduced the sentence without legal basis.

“This case is a crime under Articles 291 and 295 of the Criminal Code. The judge, investigator and prosecutor made a knowingly unfair decision.”

According to the lawyer’s analysis, the court applied this argument not based on mental illness, but as a “mitigating circumstance,” applying exemption from liability under the guise of a “mitigating circumstance.”

This contradicts the principles of Article 23 of the law, because:

“Just as a person who commits a crime while drunk or under the influence is not exempted from liability, being homosexual cannot exempt anyone from liability or reduce their punishment.”

Aliyev notes that this ruling:

“Contradicts the principle of equality of criminal law (Article 6) and human dignity. Homosexual orientation is neither an illness nor a mitigating factor. The judge’s inclusion of this in the sentence is itself a serious state crime.”

International legal assessment

The precedents of the European Court of Human Rights (Dudgeon v. United Kingdom, Toonen v. Australia) consider the presentation of homosexuality as a “disease” a violation of human rights. In this regard, the decision of the Nakhchivan court contradicts both Articles 8 and 14 of the ECHR and Article 25 of the Constitution of Azerbaijan.

Recommendations

• This incident demonstrates the ethical and legal decline of law enforcement and judicial bodies. The presentation of homosexuality as a mental disorder by judges and experts:

• Constitutes discrimination and moral insult;

• Is a violation of Articles 6, 59, 72–78, 291 and 295 of the Criminal Code;

• Contradicts the principles of a fair trial and equality of the ECHR.

It is recommended:

1. Abolish the legal force of the decision and conduct a re-investigation;

2. Initiation of criminal proceedings under Articles 291 and 295 of the Criminal Code against responsible persons (judge, investigator, prosecutor);

3. Alignment of psychiatric examinations with international medical classifications (ICD-11);

4. Ensuring the victim's rights to rehabilitation and social protection.

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