Resolution of the ECHR of September 20, 2018 in the case of Aliyev v. Azerbaijan (applications N 68762/14, 71200/14).
In 2014, the complainant was assisted in the preparation of applications. Subsequently, the applications were merged and communicated to Azerbaijan.
In the case, the detention of a human rights activist is being appealed, a search in his house and office, carried out with the aim of silencing him, punishing him and preventing him from work. The case was a violation of Article 18 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
In 2014, the applicant, a well-known lawyer, human rights activist and civil activist from Azerbaijan, was arrested and detained on charges of illegal business, tax evasion on a large scale and abuse of authority under aggravating circumstances. The applicant’s house and his office in the non-governmental organization that he headed, Legal Education Society, were searched for the charges, the applicant’s bank account and the Legal Education Society account were frozen, and a large number of documents, computers and hard Information discs were removed. In 2015, the applicant was convicted of the charges against him. In 2016, he was released, and his punishment was reduced to five years of imprisonment.
The criminal case against the applicant is the subject of a separate complaint before the European Court.
QUESTIONS OF RIGHT
Regarding compliance with subparagraph "c" of paragraph 1 of Article 5 of the Convention. The applicant was arrested and detained in the absence of “reasonable suspicion” that he had committed a criminal offense.
The case was a violation of the requirements of subparagraph "c" of paragraph 1 of Article 5 of the Convention (adopted unanimously).
Regarding compliance with Article 8 of the Convention. Azerbaijani courts sanctioned a search the day before the applicant was formally charged, justifying it only vaguely referring to the criminal case on the fact of "violations of the law established in the actions of a number of non-governmental organizations", without specifying the details of the alleged crimes. It appears that the courts of Azerbaijan did not ascertain that there was a reasonable suspicion of the applicant’s criminal offense or that relevant evidence could have been found in the places where the searches were conducted. In addition, the administrative violations allegedly committed by the applicant in obtaining and using monetary grants by the Legal Education Society could not entail criminal liability. Consequently, the searches at the applicant’s house and office and the seizure of the applicant’s property did not pursue the goal of preventing a crime or any of the legitimate aims specified in paragraph 2 of Article 8 of the Convention.
The case was a violation of Article 8 of the Convention (adopted unanimously).
Regarding compliance with Article 18 of the Convention, considered in conjunction with Articles 5 and 8 of the Convention. The Azerbaijani authorities acted on the basis of improper grounds. The actual purpose of the contested measures was to silence the applicant and punish him for his activities in the field of human rights, as well as to force the applicant to stop such activities in the future. Evidence of these hidden objectives can be found in the following special circumstances of the case.
(i) The applicant is a human rights defender, more precisely, a human rights lawyer. He acted as a representative of a large number of complaints reviewed by the European Court of Justice and filed a communication with the Committee of Ministers of the Council of Europe on behalf of the Society for Legal Education.
(ii) The applicant was charged with a serious crime, the composition of which was reasonably impossible to discern in the facts of the case.
(iii) The applicant's detention was accompanied by accusations made by government officials against local non-governmental organizations and their leaders, including the applicant, who were called “traitors” and “fifth column” in order to declare their activities illegal.
(iv) Searches in the applicant's home and office did not pursue any of the legitimate aims and were conducted arbitrarily. In addition, the authorities not only seized documents relating to the activities of the Legal Education Society, but also documents that were subject to the principle of confidentiality of client’s communication with a lawyer, including materials related to appeals to the European Court, in violation of the privilege of law.
(v) The European Court took into account the general context of the ever-stricter and restrictive legislation regulating the activities and financing of non-governmental organizations in Azerbaijan, which in the present case led to the accusation of a non-governmental organization participant due to the non-compliance with the administrative formalities established by law character Although states could have legitimate reasons to control financial transactions in accordance with international law in order to prevent money laundering and financial crimes, the ability of an organization to receive and use monetary funds to promote and protect its business was an integral part of the right to freedom of association.
(vi) The Court also noted the impact of the contested measures on the applicant's right to freedom of association. Due to the de facto criminalization of the applicant’s actions and the measures taken against him in this context, the applicant was prevented from carrying out the activities of the Legal Awareness Society in any meaningful way. Moreover, these measures had a deterrent effect on civil society as a whole, since citizens often acted together with non-governmental organizations and, fearing criminal prosecution, could eventually abandon their work in defense of human rights.
(vii) Several prominent human rights defenders who collaborated with international organizations for the protection of human rights, including the Council of Europe, were also detained and charged with serious criminal offenses that entailed serious punishments related to deprivation of liberty. These facts confirmed that the measures taken against the applicant were part of a larger campaign aimed at "cracking down on human rights defenders in Azerbaijan, which intensified in the summer of 2014."
The case was violated with the requirements of Article 18 of the Convention, considered in conjunction with Articles 5 and 8 of the Convention (adopted unanimously).
Regarding compliance with Article 46 of the Convention. Similar violations were identified in four complaints filed against Azerbaijan. Events considered in all cases, including this complaint, could not be considered separate incidents, but demonstrated the alarming pattern of the arbitrary detention and detention of individuals who criticized the authorities, civil society activists and human rights defenders, through punitive accountability and abuse of criminal law in violation of the rule of law. The actions of the state that followed this scheme may serve as a basis for repeated appeals to the European Court, as evidenced by a number of complaints affecting similar issues that are either officially communicated to the authorities of Azerbaijan or are currently being considered by the European Court.
Considering a special group of people affected by this scheme, in violation of Article 18 of the Convention, the necessary general measures that the Azerbaijani authorities should have taken had to focus primarily on protecting those who criticize the authorities, civil society activists and human rights defenders from arbitrary detention. detention and on ensuring the elimination of punitive prosecution and abuse of criminal law against a specified group of persons and the prevention of such practices in The future of.
As regards individual measures that had to be taken to achieve restitutio in integrum, the Committee of Ministers of the Council of Europe, which is in a better position compared to the European Court of Justice, to monitor special measures should be monitored on the basis of information from the authorities of Azerbaijan and with due regard for the development of the situation. the applicant’s application of such measures that are practicable, timely, adequate and sufficient to ensure the greatest possible compensation for violations of the Convention established by the European Court of Justice.
Restitutio in integrum (lat.) - restoration of previous rights.
The European Court also found unanimously a violation and the absence of a violation of Article 3 of the Convention in connection with the applicant's detention in two relevant periods, the absence of a violation of Article 3 of the Convention in relation to the provision of medical care to the applicant during his detention and the violation of Article 5 § 4 of the Convention in the absence of an effective judicial review of the lawfulness of the detention orders.
In application of Article 41 of the Convention. The European Court awarded the applicant 20,000 euros (EUR) in respect of non-pecuniary damage.