European Court finds rights of activist violated for criticising government
Mammadli v Azerbaijan, Application No. 47145/14
Court: European Court of Human Rights, Fifth Section
Date: 19 April 2018
The European Court of Human Rights (European Court) has upheld the claim of a civil society activist and human rights defender in Azerbaijan, who had been arrested and detained following critical statements made against the government.
The applicant, Mr Mammadli, is the chairperson and co-founder of the Election Monitoring and Democracy Studies Centre (the Centre), a non-governmental organisation (NGO) specialising in the monitoring of elections, including in Azerbaijan. Despite numerous attempts, the domestic authorities had refused to register the Centre in order for it to acquire legal status under domestic law. The applicant had been involved in the preparation of various reports relating to the organisation of elections and general human rights situation in Azerbaijan. In particular, he had been a speaker at Council of Europe events and had cooperated with United Nations (UN) institutions.
The Centre conducted both short-term and long-term observations of the last presidential elections, held on 9 October 2013, in cooperation with a partner organisation, the Volunteers International Cooperation Public Union (the Public Union). The Centre’s preliminary report concerning the results of the elections, published on 21 October 2013, concluded that the presidential elections had failed to comply with democratic standards.
On 16 December 2013, the applicant was arrested and charged under Articles 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (abuse of power) of the domestic Criminal Code. The description of the charges consisted of a single sentence which was one page long. In particular, the applicant was accused of receiving a number of grants from the United States of America’s National Democratic Institute. The applicant was accused of generating profit by paying money to himself and others involved in the projects in the guise of salaries and service fees, despite the Centre not having status as a legal entity. It was also stated that he had failed to register these grants with the relevant executive authority. Furthermore, he was accused of avoiding payment of taxes under Article 219 of the Tax Code, thus causing “significant damage to State interests protected by law, entailing grave consequences”.
On the same day, at the request of the prosecutor, the Nasimi District Court ordered the applicant’s detention pending trial for a period of three months. On 18 December 2013, the applicant appealed against the decision, claiming that the detention was unlawful, and that there was no reasonable suspicion that he had committed a criminal offence. He denied the charges that had been laid against him. The applicant’s appeal was dismissed, as was his request to be released on bail or be placed under house arrest. On 6 March 2014, the applicant’s pre-trial detention was extended for a further three months.
On 19 March 2014, the Prosecutor General’s Office charged the applicant under Articles 179.3.2 (high-level embezzlement) and 313 (forgery in public office) of the Criminal Code, in addition to the original charges under Articles 192.2.2, 213.1 and 308.2 of the Criminal Code. The description of the allegations against him was slightly expanded, but essentially remained the same as that given on 16 December 2013, with additional information alleging that the applicant had falsified various pieces of paperwork and minor contracts for services.
On 26 May 2014, the applicant was found guilty on all counts by the Baku Court of Serious Crimes, and sentenced to five and a half years’ imprisonment. This was upheld on appeal by the Baku Court of Appeal and subsequently by the Supreme Court. On 17 March 2016, following a presidentially decreed pardon, the applicant was released from serving the remainder of his sentence.
The applicant’s arrest and the institution of criminal proceedings against him attracted significant public and media interest, and was condemned by both domestic and international NGOs for being politically-motivated. As was noted by the Director of the Organization for Security and Co-operation in Europe (OSCE) for Democratic Institutions and Arrests, “the reported arrest of Anar Mammadli is disturbing as it endangers citizen election observation, the role of which in ensuring the integrity of electoral processes has been recognised by all OSCE participating States, including the Republic of Azerbaijan”.
Further, on 9 May 2014, Maina Kiai, UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, and Margaret Sekaggya, UN Special Rapporteur on the Situation of Human Rights Defenders, condemned the arrest and criminal prosecution of the applicant. In particular, the UN Special Rapporteurs stated that they were seriously concerned that three human rights defenders, including the applicant, were being prosecuted in retaliation for their legitimate work documenting alleged widespread irregularities and human rights violations around the presidential elections of 9 October 2013. They called for all charges to be dropped immediately and for the applicant to be released.
Following the arrest of the applicant, a number of politicians from the ruling party made comments about recently arrested NGO activists and human rights defenders in Azerbaijan, describing them as spies or as being a “fifth column” for foreign interests and traitors.
Before the European Court, the applicant argued that his rights to liberty and security of the person under the European Convention on Human Rights (European Convention) had been violated. In this regard, the applicant argued that there was no reasonable suspicion that he had committed an offence, and that the domestic courts had failed to provide relevant and sufficient reasons justifying his pre-trial detention.
The European Court noted that the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. In reaching its conclusion, the European Court took into account the deterioration of the legislative environment regarding the operation of NGOs, including their state regulation, funding and reporting requirements, and the difficulties faced by NGOs in trying to conduct their operations.
The European Court held that the description of the charges against the applicant lacked the level of coherence, order and clarity that should be expected, and all stemmed from the fact that he had received grants awarded to his NGO through a different registered NGO. It was undisputed that the grants had been awarded to finance the monitoring of the presidential elections. There was no further evidence to substantiate the charges that had been laid against the applicant. The European Court therefore concluded that the applicant’s rights under article 5 of the European Convention had been violated.
The European Court further noted that on the totality of the facts before it, it was apparent that the actual purpose of the impugned measures against the applicant was to silence and punish the applicant as a civil society activist for his electoral monitoring activities. As such, the European Court found that the restriction of the applicant’s liberty was imposed for ulterior purposes other than bringing him before a competent legal authority.
Accordingly, the European Court held that the applicant’s rights under articles 5(1), 5(4) and 18 of the European Convention had been violated, and awarded EUR 20 000 in non-pecuniary damage.
The full judgment is accessible here.
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